KARTARAM Vs. GENERAL MANAGER, RAJASTHAN RAILWAY

JUDGEMENT

(1.) This is a petition by Kartaram under Article 226 of the Constitution of India for the issue of a writ of certiorari.

(2.) The petitioner was employed as Head Clark in the Audit Department of the Rajasthan Railway at Udaipur since 6-11-1944. Previous to this, he was serving in the Bikaner Railway and as stated in the petition, possibly had unblemished career, but it was conceded that it cannot influence a decision of the question whether dismissal of the petitioner by the Manager of the Rajasthan Railway, Udaipur, on 6-61950 was justified, and therefore we will not refer to it. According to the allegations contained in the petition, some enquiry was being held by the Anti-Corruption Officer at Jaipur against Mr. Padam Singh Khamesra, General Manager, regarding certain corrupt practices and Kartaram petitioner was directed to appear as a witness before the Anti-Corruption Officer at Jaipur on 4-1-1950. A duty pass was issued to him and fee went to Jaipur for the purpose. Since the petition and the affidavit are both silent as to details in connection with the order issuing this duty pass, it is not known under whose orders it was issued. It is alleged in the petition and this fact is sworn too in the affidavit that the General Manages, Mr. Khamesra came to know of the fact that the petitioner had appeared as a witness against him and accordingly, transferred him from his substantive post as Head-clerk, Works in the Engineering Department to that of Head Clark on Special Duty in the Audit Branch. On account of this transfer, it was conceded, the petitioner suffered no loss, monetary or otherwise, but it was urged that if he had continued as a Head Clerk in the Engineering Department, he would have remained in touch with the activities in the Department. This contention tends to show the temperament of the petitioner who was obviously interested in matters extraneous to his duties as Head Clerk in the Department. It is urged that by transferring him from the Engineering Department, the petitioner was deprived of the opportunity of collecting information regarding what was happening in the Department and that this indicated the bias of the General Manager against him. The position, to say the least, appears to he rather strange and since the transfer did not result in any loss to the petitioner, it cannot be held to have been brought about by way of penalty or punishment or as the result of a bias against the petitioner. So far as his departure for Jaipur goes, it is conceded that he did not apply for leave but it is urged that he was permitted to go to Jaipur to make the statement. He accordingly left on 4-1-1950 and although his deposition was recorded between 5 1-1950 and 9 1-1950, he did not come back to Udaipur till 15-1-1950. It is stated that he fell ill and remained at Jaipur under the treatment of Dr. Mathur. This fact however is not contained in the affidavit. Granting for a moment that the petitioner bad been permitted to go to Jaipur, it is admitted that during the period of his illness, he did not send an application for leave but it is urged that he had sent a telegram and mentioned this fact in his explanation to the charge for having remained absent without leave. The telegram, however, is not available in the records of the Railway Department which have been brought to this Court by the respondent and the explanation referred to above is also silent regarding it. When he came back on 16-1-1950, he was treated as absent from fluty without leave and was transferred to the Audit Branch. He was no doubt called upon to explain his conduct but no action was taken against him beyond a warning being extended to him. Thereafter, it appears that a watch was kept on the activities of the petitioner and certain facts came to light, according to which he was found to have been responsible for certain publications in newspapers charging the Railway Administration with corruption and breaches of the Railway rules. A circular letter appears to have been issued by the General Manager on 29- 4-1949 in which the railway employees were warned that they shall not resort to indiscreet action in publishing lies, half-truths and distorted facts in local newspapers. Since this warning did not produce the desired effect so far as the petitioner is concerned, a charge-sheet was delivered to him on 22-2-1950 alleging disobedience of order, disloyalty to the administration and various other matters, and he was called upon to submit his explanation within seven days. With regard to this charge-sheet, there is an allegation in para. 12 of the petition that it was not in accordance with any rules. On the learned counsel for the petitioner being called upon to explain what this meant, he stated that the penalties, to which the petitioner was to be subjected ultimately if his explanation was not found to be satisfactory, were not mentioned in the charge sheet and that for this reason, the charge-sheet contravened the rules. The learned counsel was, however, unable to point out to any such rule on the point, and accordingly the allegation in para. 12 is incorrect. The reply to the charge-sheet was submitted on 1-3-1960 and was found by the General Manager to be couched in insubordinate language. The petitioner had stated in his reply that the charges were lies of the highest order and had come out from a sordid brain. He had also stated that the allegations lacked imagination and were bound to recoil on those who had insinuated them. He even went to the extent of mentioning that he really wondered who had manoeuvred such ideas in "your" head as the allegations were false and malicious. The result of this explanation was that the General Manager framed another charge-sheet against the petitioner on 8-3-1950 and it was mentioned in it that his explanation was mischievous and couched in insubordinate language and contained insinuations. He was informed that his reply was another instance of serious misconduct and he was, therefore, called upon to submit his explanation in seven clear days A reply to this was sent on 4-4-1950. In the meanwhile, an application for a writ of Mandamus was moved in the High Court of Rajastan at Udaipur but it was withdrawn, it is alleged, on 21-4-1950 on the ground, as mentioned in para. 20 of the petition, that the counsel for the General Manager had informed the petitioner that, his request for a departmental enquiry had been acceded to. On 22-4-1950, an Enquiry Committee consisting of the Chief Mechanical Engineer as the President and Traffic Manager, Chief Accounts Officer and Chief Engineer as members was duly constituted and the report was submitted by it on 24-5-1950. It was a unanimous report and the members found, after going into the various charges in considerable detail, that the petitioner was guilty of serious misconduct. Accordingly, the same day, he was called upon to show cause why he should not be dismissed and the order dismissing him was passed on 6-6-1950, The enquiry conducted by the Committee was alleged to be defective and it is stated at the end of the petition that since the rules of evidence were set at maught and the originals of documents were not produced nor their authors, a writ of certiorari may be issued against the General Manager of the Rajasthan Railway and the record of the proceedings taken against the petitioner sent for and the order of dismissal quashed, During the course of arguments, however, the learned counsel for the petitioner narrowed down his grounds for the writ and prayed that it may be issued as the order of dismissal was the result of mala fides on the part of the General Manager and had been passed arbitrarily and illegally. The General Manager has placed a detailed reply on the record and supported it by an affidavit from the Chief Engineer and Acting General Manager. Most of the para of the petition relating to facts contrary to the records have been denied. It is not necessary to recite the reply in detail but reference may be made to some of the paras. It was stated in para. 7 that although the petitioner had obtained a duty pass, he had left the head quarters without obtaining permission either from the General Manager or the Branch Officer concerned or from the seniormost Railway official on duty, namely, the Traffic Superintendent. It was alleged in para. 9 that the petitioner was transferred as Head Clerk on Special Duty in the Audit Branch, having regard to the administrative requirements of the Railway only and not because the General Manager had come to know that the petitioner had appeared as a witness against him. In fact, with regard to the allegation that the petitioner had appeared as a witness, is was stated in para 8 that this fact was not within the knowledge of the General Manager, With regard to the charge-sheet, which was delivered to the petitioner, it was stated in para. 12 that the charge-sheet was in order in accordance with the rules and that under Rule 18 (1) of the Mewar State Railway Establishment Manual, 1945, serious misconduct on the part of an employee rendered him liable to dismissal. The petitioner had alleged in the petition that he was restrained from taking legal advice. It was stated in reply in paras. 15 and 16 that this allegation was incorrect. He was never restrained from taking such legal advice as was available at the headquarters and an offer to place all reasonable departmental facilities at his disposal was made to him on 11.3.1950. The petitioner, however, did not intimate the name of the Railway officer whose assistance he needed and in reply simply stated that as the General Manager wanted to dismiss him, he was anxious to take legal advice but since he did not permit him to leave the headquarters, he left it at that. With regard to the allegations contained in para. 25 on which the prayer for the issue of a writ was grounded, it was stated that the Committee Recorded the statements of all the witnesses produced by the petitioner and also afforded him an opportunity of cross-examining the witnesses produced by the Railway Administration and that as a matter of fact, the petitioner did cross- examine all the witnesses so produced. As regards the original documents not having been produced, it was stated that they were not available but that their photographic copies were placed on the record. The author of these documents, Shastri, would obviously not appear for the Railway Administration on account of his relations with the petitioner and when the latter was asked, he offered to produce him in defence, if necessary. In para. 31 of the reply, is was stated generally that the petitioner was found responsible for certain publications in the various newspapers containing allegations against the railway. Reference was made to a letter which had been addressed by the petitioner to the Prime Minister, Government of India and relevant portion of which ran as follows:

(3.) The learned counsel for the petitioner conceded that the General Manager of the Railway had jurisdiction to dismiss him provided he was found to be guilty of serious misconduct. Reference was made in this connection to Rule 18, Mewar State Railway Establishment Rules and it was urged that since serious misconduct was not defined in these rules, it was necessary to have a resort to Appen. XI of the State Railway Establishment Code containing rules framed under S 47 (e), Railways Act. The learned counsel took us through the list and pointed out that the various charges which had been enquired into by the Enquiry Committee did not constitute '"serious misconduct", as they were not contained in or. covered by the list. Even assuming for a moment that the case of the petitioner is governed by the rules, it may [be pointed out that the list contained in the appendix cannot be said to be exhaustive and must be treated as illustrative. There must arise by the very nature of things several matters in the day to day administration of the railway which cannot find a place in the list, and if according to general standards they constitute misconduct on the part of a railway employee, there seems to be no reason why action should not be taken against him.