CONSTITUTIONAL AND SERVICE JURISPRUDENCE : PART-I TO III

• SOME REFLECTIONS IN CONSTITUTIONAL AND SERVICE JURISPRUDENCE : THE ANALOGY OF ARTICLE 311 (2) (b) OF THE CONSTITUTION OF INDIA: DISMISSAL OR REMOVAL OF A PUBLIC SERVANT SANS ENQUIRY : PART – I

AJAYA KUMAR SAMANTARAY, DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN,DHANBAD : 826 003

Prelude : - While writing an article on the case – law pertaining to Southern Railway Officers Association vrs. Union of India and others [2009 (4) LLN 665 : 2009 (123) FLR 417 : 2009 – IV – LLJ – 1], I came across thirteen case – laws which were referred to in that case. In order to make a sequel of the articles I decided to write around 11 articles and penned an article on the case – law pertaining to Divisional Personnel Officer vrs. T. R. Chellappan [1976 SCC (L&S) 398] and made it part – I. When I proceeded to write part – II of the article on the case – law pertaining to Satyavir Singh vrs. Union of India [1986 SCC (L&S) 1] I found that the Hon’ble Supreme Court referred to the case – law pertaining to Union of India vrs. Tulsiram Patel [1985 SCC (L&S) 672 : (1985) 3 SCC 398] wherein Chellappan’s case (supra) was also referred to. On Chellappan’s case, the Hon’ble Supreme Court observed as follows:

(a)      The three – Judge Bench of this Court in Divisional Personnel Officer, Southern Railway vrs. T. R. Chellappan [1976 SCC (L&S) 398 : (1976) SCR 783 : (1976) 3 SCC 190] was in error in interpreting Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, by itself and not in conjunction with the second proviso to Article 311 (2).

(b)      The Court in Chellappan's case (supra) also erred in holding that the addition of the words “ the disciplinary authority may consider the circumstances of the case and make such order as it deems fit” in the said Rule 14 warranted an interpretation of the said rule different from that to be placed upon the second proviso to Article 311 (2).

(c)       The Court in Chellappan's case also erred in the interpretation placed by it upon the word ‘consider’ occurring in the above phrase in the said rule 14. The view taken by the court in that case that a consideration of the circumstances of the case cannot be unilateral but must be after hearing the delinquent civil servant would render that part of the said Rule 14 unconditional as restricting the full exclusionary operation of the second proviso to Article 311 (2).

(d)      The word ‘consider’ in its ordinary and natural sense is not capable of the meaning assigned to it in Chellappan's case.

(e)      The consideration of the circumstances under the said Rule 14 must, therefore, be ex parte, and without affording to the concerned civil servant an opportunity of being heard.

(f)       The decision in Chellappan's case never held the field for the judgment in that case was delivered on September 15, 1975, it was reported in (1976) 1 SCR at page 783 ff., and hardly was that case reported, then in the next group of appeals in which the same question was raised the matter was referred to a larger Bench by an order made on November 18, 1976, in view of the earlier decision of another three Judge Bench in M Gopala Krishna Naidu vrs. State of M. P. [AIR 1968 SC 240 : 1968 Lab I.C. 216 : 1968 – II – LLJ – 125 : (1968) 1 SCR 355]. The correctness of Chellappan case was therefore, doubted from the very beginning.

AUTHOR’S NOTE

           A Full Bench of the Hon’ble Supreme Court of India, in Civil Appeal No. 2376 of 1966 took a view contrary to Chellappan’s case. The said Civil Appeal (2376 of 1966) was between Gopalkrishna Naidu vrs. State of Madhya Pradesh. I intend to write an article on this case – law and make this article Part – I as the judgment was delivered in the year 1967 (24 August 1967).

FACTS OF THE CASE

M. GOPALA KRISHNA NAIDU

vrs

STATE OF MADHYA PRADESH

C.A. No. 2376 of 1966

[AIR 1968 SC 240, 1968 (16) FLR 432, 1968,1967 SLR 800, 1968 (1) SCR 355, 1968 Lab I C 216, 1968 Mah L J 48, 1968 M P L J 49,1968 – II – LLJ – 125, www.indiankanoon.org/doc/701389]

DoJ : 24th AUGUST 1967 (FULL BENCH)

FACTS OF THE CASE:           Shri. M. Gopal Krishna Naidu, prior to 17 December 1947, was working as an overseer with the Public Works Department of Central Province and Berar Government. He was placed under suspension on 17 December 1947 and prosecuted under Section 161 of the Indian Penal Code. On completion of trial he was convicted but his conviction was set aside in an appeal preferred by him on the ground that no proper sanction was obtained before launching prosecution against him. He was again prosecuted on the same charge but the Special Judge trying him quashed the charge sheet on the ground that the investigation had not been carried out by the proper authorities. In revision the High Court of Nagpur held that the Special Judge was in error in so holding but recommended that the prosecution should not be proceeded with as nearly ten years had gone by since it was launched against him. Following the recommendation the prosecution was dropped but a departmental enquiry was held on the same charges. The inquiry officer found the delinquent not guilty but the Government disagreed with that finding and served a notice to show cause why he should not be dismissed. By an order dated 5 December 1960, the Government held that the charges against the appellant were not proved beyond reasonable doubt. It also held that the suspension and the departmental enquiry “were not wholly unjustified”. The order then directed that the delinquent should be reinstated in service with effect from the date of the order and retired from that date, he having already attained superannuation age on 5 September 1960 and that the entire period of absence from duty should be treated as period spent on duty under Fundamental Rule 54 (5) for purpose of pension only, but that he should not be allowed any pay beyond what he had actually or what was allowed to him by way of subsistence allowance during the period of suspension.

           The delinquent made a representation against the above order but the same came to be rejected. He, then filed a writ petition in the High Court under Article 226 of the Constitution of India praying to quash the said order and to direct the Government to treat the period of absence from duty as period spent on duty under clause (2) of the said Fundamental Rules and to revise the pension payable to him under that clause. The High Court of Madhya Pradesh dismissed the petition but granted certificate to file an appeal before the Hon’ble Supreme Court. 

THE CASE BEFORE THE SUPREME COURT

           The Hon’ble Supreme Court, having taken up the case for adjudication referred to the salient proviso of the Fundamental Rules which read as follows :

(1)      When a Government servant who has been dismissed, removed or suspended is reinstated; the authority competent to order the reinstatement shall consider and make a specific order -

(a)      regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty and

           (b)      whether or not the said period shall be treated as a period spent on duty.

(2)      Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated in the case of suspension, that it was wholly unjustified, the Government Servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as the case may be

(3)      In other cases, the Government Servant shall be given such proportion of such pay and allowance as such competent allowance are admissible;

Provided that payment of allowances under Cl. (2) or (3) shall be subject to all other conditions under which such allowances are admissible :

Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances, admissible under Rule 53.

(4)      In a case falling under Cl. (2), the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5)      In a case falling under Cl. (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority especially directs that it shall be so treated for any specified purpose;

           

           Provided that, if the Government Servant so desired, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government Servant.

           On behalf of the delinquent employee two points were urged before the High Court, which are as follows :

(1)      that before passing the impugned order the appellant ought to have been given a reasonable opportunity to show cause against the action proposed, and

(2)      that it was Cl. (2) and not Cl. (5) which applied to his case.

           The above two contentions were rejected by the High court, and, as aforesaid, the petition was dismissed. The Counsel for the delinquent convassed the same contentions before the Hon’ble Supreme Court. The Counsel, on behalf of the State of M. P., however, argued that Fundamental Rule 54 does not in express terms lay down a duty on the part of the authority to give an opportunity to show cause to the Government employee and therefore the question would be whether the rule imposed such a duty by necessary implication. He argued that the rule cannot be said to lay down such duty by implication inasmuch as the impugned order is only a consequential order, that it was passed following a departmental inquiry held against the delinquent during the course of such opportunity to show cause was already afforded. He contended that the only duty laid down by Fundamental Rule 54 was that the Government should consider whether the delinquent was fully exonerated and in cases of suspension whether such suspension was wholly unjustified and that once the authority formed the opinion that it was not so, Clause (3) and (5) would apply. The Government having formed the opinion that the suspension was not wholly unjustified Clause (5) applied and the impugned order was not liable to be challenged.

WHETHER THE STATE WAS DUTY BOUND TO AFFORD AN OPPORTUNITY TO THE DELINQUENT TO SHOW CAUSE BEFORE THE AUTHORITY FORMED THE OPINION ABOUT HIS EXONERATION?

           In this context the Hon’ble Supreme Court proceeded to examine the first question, which requires consideration, is whether there was duty on the competent authority to afford an opportunity to the delinquent to show cause before that authority formed the opinion as to whether his suspension was wholly unjustified. Under Fundamental Rule 54 where a Government Servant is re-instateted, the authority has to consider and make a specific order. The relevant proviso may be narrated as follows :

(i)        regarding pay and allowances payable to him for the period of his absence from duty;  and

(ii)       whether such period of absence should be treated as one spent on duty.

           The consideration of these questions depends on whether on the facts and circumstances of the case the Government Servant had been fully exonerated and in case of suspension whether it was wholly unjustified. If the authority forms an opinion, the Government Servant is entitled to full pay and allowances which he could have been entitled to had the order of dismissal, removal or suspension, as the case may be, not been passed. Where the authority cannot from such an opinion, the Government Servant may be given such proportion of pay and allowances as the authority may prescribe. In the former case the period of absence from duty has to be treated as period spent on duty for all purposes and in the latter case such period is not to be treated as period spent on duty. But the authority has the power in suitable cases to direct that such period in suitable cases to direct that such period of absence shall be treated as period spent on duty in which cases the Government Servant would be entitled to full pay and allowances.

 STATUS OF THE ORDER UNDER RULE 54 OF FUNDAMENTAL RULES

           The Hon’ble Supreme Court, then, proceeded to examine the status of Rule 54 of the Fundamental Rules. It stated that the order under Fundamental Rule 54 is in a sense a consequential order in that it would be passed after an order of reinstatement is made. But the fact that it is a consequential order does not determine the question whether the Government Servant has to be given an opportunity to show cause or not. It is also true that in a case where reinstatement is ordered after a departmental inquiry, the Government Servant would ordinarily have had an opportunity to show cause. In such a case, the authority no doubt would have before him the entire record including the explanation given by the Government Servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has been fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such a case the order passed under a Rule might be said to be a consequential order following a departmental inquiry. But there are three classes as laid down by the proviso in Article 311 where a departmental inquiry would not be held, viz.,

(a)      where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge,

(b)      where the authority empowered to dismiss, or remove a person or to reduce him in rank is satisfied for reason to be recorded in writing that it is not reasonably practicable to hold such an enquiry, and

(c)       where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry.

THE ROLE OF THE AUTHORITY IN THE ABOVE SITUATIONS

           Since there would be no inquiry in the above classes of cases, the authority would not have before him any explanation by the Government Servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held. Therefore an order passed under Fundamental Rule 54 is not always consequential order, nor is such order a continuation of the departmental proceeding taken against the employee.

OPPORTUNITY TO SHOW CAUSE TO THE EMPLOYEE : NO EXPRESS PROVISO UNDER THE RULE

           The Counsel of the State of M. P. , during the course of argument submitted that Fundamental Rule 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under Clause (2) or (5) of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the Government Servant adversely if it is one made under Clauses (3) and (5). Consideration under this rule depending as it does on facts and circumstances in their entirely, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government Servant, must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case, if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.

RELIANCE ON CASE – LAWS

           The Hon’ble Supreme Court, while discussing the case as hereinbefore narrated, referred to a case – law of its own in the case of State of Orissa vrs. Dr. (Miss)Bihapani Dei [1967 – II – LLJ – 266]. In this case, the Hon’ble Supreme Court held that an order fixing the date of birth of the Government Servant concerned there and declaring that she should be deemed to have retired on a particular date so determined without giving an opportunity to show cause against the action proposed was invalid on the ground that the determination was in violation of the principles of natural justice. The relevant citation / ruling is as follows :

“…..The State was undoubtedly not precluded, merely because of the acceptance of the date of birth of respondent in the service register, from holding an inquiry if there existed sufficient ground for holding such enquiry and for refixing her date of birth. But the decision of the State could be based upon the result of an enquiry in a manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice…..”

           The Hon’ble Supreme Court also referred to another case – law of the High Court of Maharashtra in the case of V. R. Gokhale vrs. State of Maharashtra [AIR 21963 Bom 183] and inclined to take the same view on the nature of function under rule 152 of the Bombay Civil Service Rules, 1959, a rule in terms identical to those of Fundamental Rule 54. 

VIEWS OF THE HON'BLE SUPREME COURT

           The Hon’ble Supreme Court expressed a view on Rule 54 of the Fundamental Rules that the said rule contemplates a duty to act in accordance with the basic condept of justice and fairplay. The authority, therefore, had to afford a reasonable opportunity to the delinquent to show cause why Clauses (3) and (5) should not be applied and that having not been done the order must be held to be invalid.

THE VERDICT

           The Hon’ble Supreme Court allowed the appeal, filed by the delinquent (Shri Naidu) and set aside the order of the High Court. It directed the competent authority to consider the question de novo after giving to the delinquent a reasonable opportunity to show cause against the action proposed against him. It also directed the State of Madhya Pradesh to pay to the delinquent the cost of the appeal as also the cost of the petition in the High Court. (AKS : 21/04/2010, MUMBAI)

SOME REFLECTIONS IN CONSTITUTIONAL AND SERVICE JURISPRUDENCE : THE ANALOGY OF ARTICLE 311 (2) (b) OF THE CONSTITUTION OF INDIA : DISMISSAL OR REMOVAL OF A PUBLIC SERVANT SANS ENQUIRY : PART – II

AJAYA KUMAR SAMANTARAY, DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL), SHRAM BHAWAN, DHANBAD : 826003

Prelude : - While writing an article on a case – law pertaining to Southern Railway Officers Association vrs. Union of India [2009 (4) LLN 665] I came across 13 more decisions which have been referred to by the Hon’ble Supreme Court in the above judgment. The decisions are as follows :

01.      Union of India vrs. Tulsiram Patel : 1985 (2) LLN 488 : 1985 SCC (L&S) 672

02.      Satyavir Singh vrs. Union of India : 1986 SCC (L & S) 1 : 1986 (1) LLN 496

03.      Ram Chander vrs. Union of India : 1986 SCC (L & S) 383 : 1986 (2) LLN 81

04.      Hariram Motiram vrs. Balakrishna Chatrababu Thacker : 1989 (2) SCC 655

05.      Chief Security Officer vrs. Singasan Rabi Das : 1991 SCC (L & S) 415 : 1991 (1) LLN 1068 : 1991 (62) FLR 501

06.      Union of India vrs. R. Redappa : 1994 (1) LLN 367 : 1994 SCC (L& S) 142

07.      Kuldip Singh vrs. State of Punjab : 1997 (1) LLN 62 : 1997 SCC (L&S) 346

08.      P.R. Deshpande vrs. Maruti Balram Haribakti : (1998) 6 SCC 507

09.      Sahadeo Singh vrs. Union of India : 2003 (1) LLN 815 : 2003 SCC (L & S) 101

10.      Indian Railway Contruction Co. Ltd. vrs. Ajay Kumar : 2003 (3) LLN 4 : 2003 SCC (L & S) 528

11.      Ajit Kumar Nag vrs. General Manager, Indian Oil Corporation Ltd : 2005 (4) LLN 344 : 2005 SCC (L&S) 1020 : 2005 (107) FLR 407: 2005 – III – LLJ - 1129

12.      Prithipal Singh vrs. State of Punjab : (2006) 13 SCC 314 : 2006 (111) FLR 904 : 2005 – 06 SCCJ 389

13.      Tarsem Singh vrs. State of Punjab : (2006) 13 SCC 581 : 2008 SCC (L&S) 14

           While going through the case – law pertaining to Singasan Rabi Das (sl. no. 05 above) I came across another case – law pertaining to Divisional Personnel Officer, Southern Railway and another vrs. T.R. Chellapan [1976 SCC (L & S) 398]. Thus there are a total of 14 case – laws on which I propose to write a sequel of articles to show to the esteemed readers as to how the Constitutional Jurisprudence and also the service laws have evolved since 1976.

           Out of the case – laws listed hereinbefore it is intended to write articles on the case – laws except those at sl. nos. 01,04 and 08. This is due to the fact that the judgment pertaining to Tulsiram Patel (sl. no. 01) runs to 100 pages and the esteemed readers may run out of patience. As far as sl. 04 and 08 are concerned, those cases do not pertain to labour/service laws concerning Article 311 (2) of the Constitution of India.

           In the present part of the article it is intended to discuss the case – law pertaining to Divisional Personnel Officer, Southern Railway vrs. T. R. Chellapan [1976 SCC (L & S) 398]. However, before going to discuss the case – law, I think it would be quite apposite to reproduce the proviso of Article 311 in its entirety which reads as follows :

“Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State –

(1)      No person who is a Civil Servant of the Union or an all – India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2)      No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

           Provided that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty awarded.

           Provided further that this clause shall not apply –

(a)      where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b)      where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or

(c)       where the President or the Governer, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.

(3)      If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such enquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”

FACTS OF THE CASE

           After having discussed Article 311 of the Constitution of India we will now proceed to discuss the following case – law :

DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY AND ANOTHER

vrs.

T.R.CHELLAPPAN

[ AIR 1975 (SC) 2216, 1976 (32) FLR 96, 1975 LIC 1598, 1976 -III-LLJ-68, 1976 (1) LLN 269, 1976 SLJ 8, 1975 (2) SLR 587, 1976 (3) SCC 190, 1976 (1) SCR 783, 1976 (1) LLJ 68, 1976 SCC (L&,S) 398, 1975 Lab I C 1598, www.indiankanoon.org/doc/571773]

DoJ: 15TH SEPTEMBER 1975

           In this matter there were 3 Civil Appeals before the Hon’ble Supreme Court as follows :

(i)        The Divisional Personnel Officer vrs. T. R. Chellappan (Civil Appeal No. 1664 of 1974)

(ii)       Union of India and others vrs. Narasingh (Civil Appeal No. 891 of 1975)

(iii)      Union of India and others vrs. Abdul Hamid (Civil Appeal No. 892 of 1975)

           Before going to dissect the case – laws, I think it would be in fairness and fitness of the subject to have brief ideas about the above Civil Appeals. Let us discuss the above, one by one, which are as follows :

(i)        Civil Appeal No. 1664 of 1974 : In this case the delinquent – employee Shri. T. R. Chellappan was working in Southern Railways as a pointsman at Olavakkot Division. On August 12, 1972 at about 3.30 p.m. he was arrested at the Olavakkot Railway Station platform for disorderly, drunken and indecent behaviour against which a Criminal Case under Section 51 (A) of the Kerala Police Act was registered against him. After due investigation the challan was presented before the Sub – Magistrate, Palghat who, after finding the respondent guilty, instead of sentencing him, released him on probation under Section 3 of the Probation of Offenders Act. After he was released the disciplinary authority of the department by its order dated January 3, 1973 removed him from service in view of the misconduct which led to his conviction on a criminal charge as hereinbefore mentioned. The order removing the delinquent from service merely shows that it proceeded on the basis of the conviction of the accused in the criminal case and there is nothing to show that the respondent was heard before passing the order. The Kerala High Court held that as the respondent was released by the Criminal Court ans no penalty was imposed on him, therefore, Rule 14 (1) under which the delinquent was removed from service did not in terms apply. The High Court accordingly quashed the order passed by the disciplinary authority and allowed the writ petition filed by the delinquent.

(ii)       Civil Appeal No. 891 of 1975: This is also a case pertaining to a Railway Servant who was working as a railway Khallasi at the railway workshop at Jodhpur and was found to be in possession of stolen copper weighing 4 kilos and 600 grams. The delinquent was prosecuted and was ultimately convicted by the trial Magistrate under Section 3 of the Indian Railway Property (Unlawful Possession) Act, 1966. On appeal, the learned Additional Sessions Judge, Jodhpur, while maintaining the conviction of the delinquent set aside the sentence and released him on probation under the provisions of the Probation of Offenders Act. On the basis of the order of the conviction passed by the Criminal Court the Assistant Personnel Officer (W), who was the disciplinary authority, removed the delinquent froms service by the order dated February 26, 1971 and the departmental appeal against this order was eventually rejected. Thereafter the delinquent moved the High Court in its writ jurisdiction and the petition was allowed by the High Court and the order of removal from service was quashed by the High Court Rajasthan.

(iii)      Civil Appeal No. 892 of 1975 : In this case, a fireman working at railway workshop, Jodhpur was prosecuted and ultimately convicted by a Criminal Court under Section 420 of the Indian Penal Code by the Special Magistrate, Jaipur by his order dated September 9, 1970. The Magistrate, however, instead of sentencing him, ordered him to be released on probation under the provision of the Probation of Offenders Act. The Assistant mechanical Engineer of the Railway Workshop by his order dated February 3, 1971, removed the delinquent from service on the ground of his conviction by a criminal court and the departmental appeal was rejected on March 2, 1971. Thereafter the delinquent moved the Rajasthan High Court under Article 226 of the Constitution and the High Court quashed the order by which the delinquent was removed from service. The Railway Administration, therefore, by special leave, approached the Supreme Court against the judgment of the High Court. On the above 3 cases, there is a common point which arises for discussion is :

“WHETHER THE POWER CONFERRED ON THE EMPLOYER UNDER ARTICLE 311 (2) OF THE CONSTITUTION OF INDIA IS SO WIDE THAT AN EMPLOYER CAN DISPENSE WITH THE DOMESTIC ENQUIRY UNDER ALL SITUATIONS?”

           In the above 3 cases, all the employers chose to dispense with the enquiry against the delinquents. In my considered and well thought out views Article 311 (2) (a) of the Constitution of India should not be used as a short – cut to dispense with the services of an employee. Wherever it is possible and feasible to hold a domestic enquiry against a delinquent the employer should hold the enquiry. Only when it is not reasonably practicable or possible to hold an enquiry or the interest of the State is likely to be prejudiced (for example if a person is involved in some espionage case, terror linked case and such other cases involving security and integrity of the State) a domestic enquiry may be dispensed with as it is likely to cause damage to the legal process / judicial trial.

ANALYSIS OF THE CASES

           If the above cases are analysed in detail there would be revelations to the effect that the issues involved in the three cases are by and large the same, or, let us say identical. Of course it is a fact that the respective High Courts’ dealing with the cases are slightly different.

THE PLEADINGS ON BEHALF OF THE EMPLOYERS

           The Counsel, appearing on behalf of the three employers made the following submissions before the Hon’ble Supreme Court :

(a)      That Section 12 of the Probation of Offenders Act contemplates an automatic disqualification attached to the conviction and not an obliteration of the misconduct of the accused so as to debar the disciplinary authority from imposing penalties under the Rules against an employee who has been convicted for misconduct.

(b)      Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 is in terms similar to proviso (a) to Article 311 (2) of the Constitution and confers power on the appointing authority to pass an order of dismissal against an employee who is found guilty of a criminal offence without giving any further notice to the delinquent employee. Further, Rule 14, does not in terms, contemplate that the appointing authority will consider the penalty after either hearing the accused or after ordering special enquiry.

(c)       That in the absence of any provision similar to Rule 14 the Government is entitled, in the exercise of its executive power, to terminate the services of the employee who has been convicted of a criminal charge without any further departmental enquiry. (In my view this argument has sufficient force : Author)

COUNTER SUBMISSIONS

           As against the pleadings / submissions on behalf of the employers, the Counsel appearing for the delinquents in C.A. No. 891 and 892 of 1975 submitted that the judgment of the High Court laid down the correct law and that the mere fact that the delinquent employee has been convicted of a criminal charge cannot ispo facto result in his automatic dismissal from service.

THE VIEWS OF THE SUPREME COURT

           On hearing the submissions and counter – submissions made on behalf of the parties the Hon’ble Supreme Court made the following observations, which are very important from the point of view of disposal of the civil appeals :

(i)        That the Kerala High Court allowed the writ petition solely on the ground that the order of the Magistrate releasing Shri. T. R. Chellappan on probation did not amount to imposition of penalty as contemplated by Rule 14 of Railway Servants (Discipline and Appeal) Rules, 1968 and therefore the order passed by the disciplinary authority was illegal.

(ii)       That a clear examination of Rule 14 of Railway Rules would throw light on the second point which has been dealt with at great length by the Rajasthan High Court viz. the import of the closing part of Rule 14 where the disciplinary authority has to consider the circumstances of the case before making any order.

INTERPRETATION OF CLAUSE (1) OF RULE 14

           The Hon’ble Supreme Court, after referring to the premises of the Kerala and Rajasthan High Courts as narrated hereinbefore, proceeded to interpret the proviso of clause (1) of Rule 14 of Railway Servants (Discipline & Appeal) Rules, 1968 which provides as follows :

“Not withstanding anything contained in rules 9 to 13 : -

(1) where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.”

           After referring to the above proviso, the Hon’ble Supreme Court stated as follows:

The word ‘penalty’ imposed on a railway servant, in our opinion, does not refer to a sentence awarded by the court to the accused on his conviction, but though not happily worded it merely indicates the nature of the penalty imposable by the disciplinary authority if the delinquent employee has been found guilty of conduct which has led to his conviction on a criminal charge. Rule 14 of the Rules of 1968 appears in part IV which expressly contains the procedure for imposing penalties. Furthermore, Rule 14 itself refers to Rule 9 to 13 which contain the entire procedure for holding a departmental inquiry. Rule 6 of Part III gives the details regarding the major and minor penalties. Finally Rule 14 (1) merely seeks to incorporate the principle contained in proviso (a) to Article 311 (2) of the Constitution which runs thus :

           “No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such enquiry, to impose on him any such penalty, while he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :

provided that the clause shall not apply –

(a)      where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.”

ANALYSIS OF THE PROVISO OF ARTICLE 311 (2) (a)

           An analysis of the proviso of Article 311 (2) (a) would give us the following propositions :

(1)      The constitutional guarantee contemplates three stages of departmental inquiry before an order of dismissal, removal or reduction can be passed, namely :

(i)           that on receipt of a complaint against a delinquent employee charges should be framed against him and a departmental inquiry should be held against him in his presence;

(ii)       that after the report of the departmental inquiry is received, the appointing authority must come to a tentative conclusion regarding the penalty to be imposed on the delinquent employee; and

(iii)      that before actually imposing the penalty a final notice to the delinquent employee should be given to show cause why the penalty proposed against him be not imposed on him.

(2)      Proviso (a) to Article 311 (2), however, completely dispenses with all the three stages of departmental inquiry when an employee is convicted on a criminal charge.

(3)      The reason for the proviso [Article 311 (2)] is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegation against him and to make out his defence.

(4)      In criminal trial, charges are framed to give clear notice regarding the allegations made against the accused.

(5)      In the criminal trial, witnesses are examined and cross – examined in his presence and by him (accused – delinquent).

(6)      In criminal trial, the accused is given full opportunity to produce his defence and it is after hearing the arguments that the Court passes the final order of conviction or acquittal.

           In the above circumstances, if after conviction by the Court a fresh departmental enquiry is not dispensed with, it will lead to unnecessary waste of time and expense and a fruitless duplication of the same proceedings all over again. It was for this reason that the founders of the constitution thought that where once a delinquent employee has been convicted of a criminal offence that should be treated as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311 (3), namely, dismissal, removal or reduction in rank.

The Hon’ble Supreme Court further stated that –

           It appears to us that proviso (a) to Article 311 (2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted (underlined / italicised by the Author for emphasis). The matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Departmental Rules is dispensed with. In these circumstances, therefore, we think that Rule 14 (i) of the Rules of 1968 only incorporate the principles enshrined in proviso (a) to Article 311 (2) of the Constitution. The words ‘where any penalty is imposed’ in Rule 14 (1) should actually be read as ‘where any penalty is imposable’, because so far as the disciplinary authority is concerned it cannot impose a sentence. It could only impose a penalty on the basis of the conviction and sentence passed against the delinquent employee by a competent court. Furthermore the rule empowering the disciplinary authority to consider circumstances of the case and make such orders as it deems fit clearly indicates that it is open to the disciplinary authority to impose any penalty as it likes. In this sense, therefore, the word ‘penalty’ used in Rule 14 (1) of the Rules of 1968 is relatable to the penalties to be imposed under the Rules rather than a penalty given by a criminal court.

THE CONCEPTS OF ‘PENALTY’ AND ‘SENTENCE’

           After discussing the salient proviso of Article 311 (2) and Rule 14 (i) of the Railway Servants (Discipline and Appeal) Rules, 1968 the Hon’ble Supreme Court discussed the concepts of ‘penalty’ and ‘sentence’ to establish the differentiating relation between the two. At paragraph no. 10 of the judgment it has been discussed as follows:

Another important aspect of the matter is that a criminal court after conviction does not impose any penalty but passes a sentence whether it is one of fine, or imprisonment or whipping or the like. The Penal Code has been on the statute book for a large number of years and the rule making authority was fully aware of the significance of the words ‘conviction’ and ‘sentence’ and if it really intended to use the word ‘penalty’ as an equivalent for ‘sentence’, then it should have used the word ‘sentence’ and not ‘penalty’. In these circumstances we are satisfied that the word ‘penalty’ has been used in juxtaposition to the other connected provisions of the Rules appearing in the same part. The view of the Kerala High Court, therefore, that as the Magistrate released the delinquent employee on probation no penalty was imposed as contemplated by Rule 14 (i) of the Rules of 1968 does not appear to us to be legally correct and must be overruled. Nevertheless we would uphold the order of the Kerala High Court, on the gorund, that the last part of Rule 14 of the Rules of 1968 which requires the consideration of the circumstances not having been complied with by the disciplinary authority, the order of removal from service of the delinquent employee was rightly quashed.

TWO INTERCONNECTED QUESTIONS

           After discussing the concepts of ‘penalty’ and ‘sentence’, the Hon’ble Supreme Court proceeded to consider two interconnected questions as follows :

(i)        to what effect of the order of the Magistrate releasing the accused on probation

           (ii)       the effect of Section 12 of the Probation of Offenders Act.

What was suggested by the delinquent ? : During the course of pleading it was suggested on behalf of the delinquent that if the Magistrate does not choose, after convicting the accused, to pass any sentence on him, but releases him on probation then the stigma of conviction is completely washed out and obliterated, and therefore, Rule 14 (1) of the Rules of 1968 will not apply in terms.

What did the Hon'ble Supreme Court say on the above plea ? : The Hon’ble Supreme Court was not convinced on the above submission / pleading of the accused (delinquent). It would be quite apposite to reproduce what the Hon’ble Supreme Court said in this context :

“We are, however, unable to agree with this somewhat broad proposition. A perusal of the provisions of the Probation of Offenders Act, 1958, clearly shows that the mere fact that the accused is released on probation does not obliterate the stigma of conviction” ( italicised by the Author for emphasis).

The Hon’ble Supreme Court, having said what have been extracted hereinabove, made a reference to Section 3 of Probation of Offenders Act, 1958 which reads as follows:

“…..not withstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4, release him after the admonition.”

Section 4 (1) of the Probation of Offenders Act, 1958 reads thus –

“….. not withstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour.”

           While discussing the above proviso, under Sections 3 and 4 (1) of the Probation of Offenders Act, 1958 it would also be quite pertinent to refer to Section (3) and (4) of the Act which reads as follows :

“9 (3) if the Court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith-

(a)      Sentence him for the original offence; or

(b)      Where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub – section (3) is not paid within such period as the Court may fix, the Court may sentence the offender for the original offence.”

           After referring to and extracting the proviso as hereinbefore described the Hon’ble Supreme Court said that the above proviso would clearly show the following :

(i)        An order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence.

(ii)       The conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order of release on probation of the offender.

(iii)      The order of release on probation is merely in substitution of the sentence to be imposed by the Court.

(iv)      The order of release of an offender on probation has been made permissible by the statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals.

(v)       The proviso of Section 9 (3) of Probation of Offenders Act, 1958 clearly shows that the control of the offender is retained by the criminal court and where it is satisfied that the conditions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence.

(vi)      The factum of the guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation.

(vii)     Under Sections 3,4 or 6 of the Probation of Offenders Act, 1958, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof.

           In the circumstances, as hereinbefore narrated, said the Supreme Court, it is unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.

EFFECT OF SECTION 12 OF THE PROBATION OFFENDERS ACT, 1958

           The Supreme Court stated that another point which is closely connected with this question is as to the effect of Section 12 which reads as follows:

“Not withstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.”

WHETHER SECTION 12 OF THE P.O. ACT, 1958 OBLITERATES THE CONVICTION OF AN OFFENDER ?

           It was argued on behalf of the delinquents that Section 12 of the Probation of Offenders Act, 1958 completely obliterates the effect of any conviction and wipes out the disqualification attached to a conviction of an offence under such law. On this pleading, the Hon’ble Supreme Court stated as follows :

“The argument, in our opinion, is based on a gross misreading of the provisions of Section 12 of the Act. The words “attaching to a conviction of an offence under such law” refer to two contingencies : (i) That must be a disqualification resulting from a conviction; and (ii)      That such disqualification must be provided by some law other than the Probation of Offenders Act. The Penal Code does not contain any such disqualification. Therefore, it cannot be said that Section 18 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of criminal misconduct of the accused. It is also manifest that disqualification is essentially different in its connotation from the word ‘misconduct’. Disqualification cannot be an automatic consequence of misconduct, unless the statute so requires. Proof of misconduct may or may not lead to disqualification because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is covered. In the instant case neither Article 311 (2) proviso (a) nor Rule 14 (i) of the Rules of 1968 contain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311 (2) proviso (a) is an enabling provision which merely dispenses with the various, stages of the departmental inquiry and the show – cause notice. Rule 14 despite incorporating the principles of proviso (a) to Article 311 (2) enjoins on the disciplinary authority to consider the circumstances of the case before passing any order. Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without anything more will result in his automatic dismissal or removal from service.”

THE ANALOGY OF RULES 9 TO 13 AND 14 (i)

           It was argued on behalf of the employer that Rule 14 (i) of Railway Servants (Discipline and Appeal) Rules, 1968 is the provision which contains the disqualification by dispensing with the departmental enquiries contemplated under Rules 9 to 13. The Hon’ble Supreme Court stated as follows on this pleading :

“…..This cannot be the position, because as we have said Rule 14 (i) only incorporates the principle of proviso (a) to Article 311 (2). If Section 12 of the Probation of Offernders Act completely wiped out the disqualification contained in Article 311 (2) proviso (a) then it would have become ultra vires as it would have come into direct conflict with the provisions of proviso (a) to Article 311 (2). In our opinion, however, Section 12 of the Act refers to only such disqualifications as are expressly mentioned in other statutes regarding holding of offices or standing for elections and so on. This matter was considered by a number of High Courts and there is consensus of judicial opinion on this point that Section 12 of the Act is not automatic disqualification attached to the conviction itself.”

REFERENCE TO SOME CASE – LAWS

           The Hon’ble Supreme Court referred to certain case – laws as follows :

(i)        R. Kumarswami Aiyar vrs. Commissioner, Municipal Council, Tiruvannamalai [1957 Cri L J 255 (1956) 2 MLJ 562]

           In this case the Madras High Court held as follows :

           “If for instance the petitioner is dismissed from service because he has been found guilty of an offence involving moral turpitude it cannot be said that he is suffering from a disqualification attaching to a conviction. What Section 12 – A has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the accused. In my judgment the possibility of disciplinary proceedings being taken against a person found guilty is not a disqualification attaching conviction within the meaning of Section 12 – A of the Probation of Offenders Act.”

(ii)       Om Prakash vrs. Director, Postal Services (Post and Telegraph Deptt), Punjab Circle      [AIR 1973 Punj 1 : ILR (1972) 2 Punj 72 : (1972) 1 SLR 643]

In this case the ratio laid down in R Kumarswami Aiyar (supra) was followed and the view endorsed by a full bench of the Punjab and Haryana High Court. It would be quite pertinent to extract the relevant portion of the judgment which reads as follows :

“What Section 12 removes is a disqualification attaching to a conviction. In my opinion, neither liability to be departmentally punished for misconduct is a disqualification, nor it attaches to the conviction. ‘Disqualification’ in its ordinary dictionary meaning connotes something that disqualifies or incapacitates. To disqualify a person for a particular purpose means to deprive that person of the qualities or conditions necessary to make him fit for that purpose.”

           It was further observed as follows :

“The other reason why Section 12 of the Act does not help the petitioner is that the departmental proceedings are not taken because the man has been convicted. The proceedings are directed against the original misconduct of the government servant….. No part of Section 12 is intended to exonerate a government servant of his liability to departmental punishment for misconduct. The provision does not afford immunity against disciplinary proceedings for the original misconduct. What forms basis of the punishment is the misconduct and not the conviction.”

(iii)      Director of Postal Services vrs. Daya Nand [1972 SLR 325 at p 341 : 1972 Lab IC 736]           

This case was dealt with by a Full Bench of the Delhi High Court wherein it has been observed as follows :

“Firstly, the ordinary meaning of ‘qualification’ is the possession of some merit or quality which makes the possessors eligible to apply for or to get some benefit. The word ‘disqualification’ used in Section 12 has the opposite meaning. It imposes a disability on the person to whom the disqualification is attached in applying for or getting such benefit. The disqualification contemplated by Section 12 is, something attached to the conviction, namely, something which is a consequence or the result thereof. Instances of such disqualification may be found in a statute, statutory rule or in administrative practice. Under Section 108 of the Representation of Peoples Act, 1951, a person is disqualified to be a member of Parliament or State Legislature if he is convicted of certain offences, it would also be an administrative consideration in entertaining application for jobs or for grant of licenses to disfavour an applicant who is a convict. Such a disqualification is removed by Section 12. This meaning of disqualification does not include the reason by a hearing prior to punishment is dispensed with by proviso (a) to Article 311 (2) of the constitution. Secondly the object of Section 12 is to remove a disqualification attached to conviction. It does not go beyond it.”

(iv)      Akella Satyanarayana Murthy vrs. Zonal Manager, Life Insurance Corporation of India, Madras [AIR 1969 AP 371 at p 373 : 1969 Cri LJ 1218 : 1969 Lab I.C. 1241]

           In this case, the High Court of Andhra Pradesh stated as follows :

“…..we are of the view that what Section 12 of the Central Act has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the official concerned. The disciplinary authority is not precluded under Regulation 89 (4).”

(v)       Premkumar vrs. Union of India [1971 Lab I.C.823 at 824]

           This was a judgment delivered by the Madhya Pradesh High Court wherein it was ruled as follows :

           “We have heard the learned Counsel at some length but we find ourselves unable to agree with the above contention. The relevant words of the section are ‘shall not suffer disqualification, if any, attaching to a conviction of an offence under such law’. The words can only be read so as to remove the disqualification which under some law may attach to a person on account of his conviction. For instance, if a person is convicted of an offence, he is disqualified from standing for election to the Central or State Legislatures. But if such a person is given benefit under the Probation of Offenders Act, then by virtue of Section 12 of that Act the disqualification for that purpose (standing for election) will stand removed.”

(vi)      Iqbal Singh vrs. Inspector General of Police, Delhi [AIR 970 Delhi 240 : (1971) 2 SLR 257]

           In this case, the High Court of Delhi had taken a contrary view but subsequently the decision got overruled by a later decision of the Full Bench of the same High Court in Director of Postal Services vrs. Dayanand (supra).

           The High Court of Rajasthan in its judgment concerning Civil Appeal No. 891 of 1975, endorsed the view taken by the Madras High Court and followed by other High Courts. The Hon’ble Supreme Court found itself in full agreement with the view taken by the Madras High Court as referred to hereinbefore which has been endorsed by the High Courts of Delhi, Punjab, Madhya Pradesh, Andhra Pradesh and Rajasthan.

           The Hon’ble Supreme Court, thereafter proceeded to deal with the third point viz. the extent and ambit of the last part of Rule 14 of the Rules of 1968.The relevant portion of the Rules read as follows :

“…..the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.”

           With reference to the above, the Counsel for the Appellant employers submitted as follows :

(a)      That the provision of Rule 14 does not contemplate a full – dress or a fresh inquiry after hearing the accused but only requires the disciplinary authority to impose a suitable penalty once it is proved that the delinquent employee has been convicted on a criminal charge.

(b)      The Rajasthan High Court in Civil Writ Petition No. 352 of 1971 concerning Civil Appeal No. 891 of 1975 has given a very wide connotation to the word ‘consider’ as appearing in Rule 14 and has held that the word ‘consider’ is wide enough to require the disciplinary authority to hold detailed determination of the matter.

WHAT DID THE HON’BLE SUPREME COURT FEEL ON THE ABOVE PLEADINGS / SUBMISSIONS ?

           The Hon’ble Supreme Court felt that it is not in a position to go to the extreme limit to which the Rajasthan High Court has gone. The word ‘consider’ has been used in contradistinction to the word ‘determine’. The rule – making authority deliberately used the word ‘consider’ and not ‘determine’ because the word ‘determine’ has a much wider scope. The word ‘consider’ merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. In other words, the term ‘consider’ postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an inquiry would be a summary to be held by the disciplinary authority after hearing the delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of the Rules of 1968 which incorporates the principle contained in Article 311 (2), proviso (a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T. R. Chellapan in Civil Appeal No. 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider. In this context the Hon’ble Supreme Court has mentioned some of these factors by way of instances which are merely illustrative but not exhaustive. In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry are to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the enquiry if the authority is of the opinion that the offence is too trivial or of a technical nature. It may refuse to impose any penalty in spite of the conviction. This is a very salutary provision which has been enshrined in these Rules and one of the purposes for conferring this power is that in cases where the disciplinary authority is satisfied that the delinquent employee is a youthful offender who is not convicted of any serious offence and shows poignant penitence or real repentance he may be dealt with as lightly as possible. This appears to be the scope and ambit of this provision, stated the Hon’ble Supreme Court. The Hon’ble Supreme Court, while dealing with the cases, stated as follows :

“….we must, however, hasten to add that we should not be understood as laying down that the last part of Rule 14 of the Rules of 1968 contains a licence to employees convicted of serious offences to insist on reinstatement. The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should, be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fairplay. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interest of the administration to retain such a person in service.”

THE VERDICT

           In the instant cases, the disciplinary authorities did not comply with the last part of Rule 14 of the Rules of 1968. The Hon’ble Supreme Court noted that in none of the cases the disciplinary authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all. The Supreme Court stated, on the other hand in all the cases the disciplinary authority has proceeded to pass the order of removal from service straightaway on the basis of conviction of the delinquent employees by the criminal courts. In view of the same, the Hon’ble Supreme Court dismissed all the appeals filed by the employers.

SOME REFLECTIONS IN CONSTITUTIONAL AND SERVICE JURISPRUDENCE : THE ANALOGY OF ARTICLE 311 (2) (a) (b) AND (c) : DISMISSAL OR REMOVAL OF A PUBLIC SERVANT SANS ENQUIRY : PART - III   

                                                         AJAYA KUMAR SAMANTARAY

Prelude : I have already penned 2 articles on two case – laws pertaining to Gopala Krishna Naidu and T. R. Chellappan. In the part II of the article pertaining to T. R. Chellappan I had listed 14 case –laws. In that article I had stated that since the case – law pertaining to Tulsiram Patel runs to 100 pages I would not write an article on the said case – law. But after having an overview of the said judgment I felt that the entire sequel of the article may remain incomplete if Tulsiram Patel’s case is not discussed. Therefore, I decided to write few articles on Tulsiram Patel’s case which would cover some important constitutional aspects as follows :

(i)        The Pleasure Doctrine – Article 310 (1) of the Constitution of India.

(ii)       The Inquiry under Article 311 (2)

(iii)      Article 14 and Service Rules

(iv)      The Executive Instructions and the Allied Provisions.

(v)       The Salient Feature of Clause (c) of Article 311 (2) and the Remedies.

(vi)      Judicial Review

THE CASE – LAW

UNION OF INDIA

vrs.

TULSIRAM PATEL

( C.A. No. 6814 of 1981 )

[ AIR 1985 SC 1416, 1985 (S2) SCR 131, 1985 (3) SCC 398, 1985 (2) SCALE 133, 1985 (3) Comp L J 45, 1985 (2) CCC 945, 1985 (51) FLR 362, 1985 (2) LLJ 206, 1985 (2) LLN 488, 1985 (2) SLJ 145, 1985 (2) SLR 576, 1985 (2) Scale 133, 1985 SCC(L&S) 672, 1985 Lab IC 1393, www.indiankanoon.org/doc/1134697]

DoJ :11TH JULY 1985 

           The esteemed readers may note that a Five Judges Constitution Bench had dealt with 7 (Seven) cases in this decision [Tulsiram Patel]. The cases are as follows :

1.        Union of India and Another vrs. Tulsiram Patel           [Civil Appeal No. 6814 of 1983]

2.        Union of India and others vrs. Sadanand Jha and others           [Civil Appeal No. 3484 of 1982]

3.        Union of India and others vrs. G. P. Kaushal           [Civil Appeal No. 3512 of 1982]

4.        Biswaroop Chatterjee and others vrs. Union of India and others

5.        Achinta Kumar Biswas and others vrs. Union of India and others           [Civil Appeal Nos. 3231 of 1981 and 4067 of 1983]

6.        Nabendu Bose and others vrs. Union of India and others

7.        Laxmi Narayan and others vrs. State of Madhya Pradesh           [Writ Petition No. 1953 of 1981]

           In this part of the article I intend to discuss the overruling of Chellappan’s case. The esteemed readers are aware that I have already penned Part II of the article on the case – law pertaining to Chellappan wherein a 3 – Judge Bench of the Hon’ble Supreme Court dismissed Civil Appeal No. 1664 of 1974. 

           In Chellappan’s case, the Hon’ble Supreme Court had an occasion to deal with 3 appeals. The esteemed readers are aware that I have discussed this case in detail showing as to how the appeals filed by the employers were dismissed. Now, it is intended to discuss in detail as to how the Chellappan’s case has been overruled by a Five Judge Constitution Bench.

THE OVERRULLING OF CHELLAPPAN’S CASE

           The readers are aware that Shri. T. R. Chellappan was prosecuted and convicted under Section 51 (A) of the Kerala Police Act for drunkenness, disorderly and indecent behaviour. Instead of sentencing him, the Sub – Magistrate, Palgrat, released him on probation under Section 3 of Probation of Offenders Act, 1958. Thereafter, the Railway Administration, on the basis of his conviction, removed him from services without holding any inquiry. The order of removal of Shri. T.R. Chellappan was passed by the Disciplinary Authority under clause (i) of Rule 14 of Railway Servants Rules. The Kerala High Court held that as no penalty was imposed upon him clause (i) of Rule 14 did not in terms apply, and allowed his writ petition. So far as other two railway employees are concerned, one was convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, and other under Section 420 of the Indian Penal Code. Both of them were released on probation and were similarly removed from railway services.

The Making of Railway Servants’ Rules

The esteemed readers may note that the Railway Servants Rules have been made by the President of India pursuant to the powers conferred on him /her by the proviso of Article 309 of the Constitution of India, 1950. Rule 6 of the said rules specifies the penalties which can be imposed upon a railway employee. These penalties are divided into minor penalties and major penalties. Major penalties include removal from service which is not to be a disqualification for future employment under the Government or Railway Administration and dismissal from service which is ordinarily to be disqualifications for future employment under the Government or railway administrative. Under sub – rule (1) of Rule 7, the President may impose any of the penalties specified in Rule 6 on any railway employee. Sub – rule (2) of Rule 7 states that without prejudice to the proviso of sub – rule (1), any of the penalties specified in Rule 6 may be imposed on a railway servant by the authorities specified in Schedule I, II and III to the Railway Servants Rules. Rule 1 and 10 prescribe a detailed procedure for imposing major penalties while Rule 11 prescribes the procedure for imposing minor penalties Originally, sub – rule (5) of Rule 10 required that a notice be given to a railway servant informing him of the penalty proposed to be imposed upon him and giving him an opportunity of making a representation on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 9. The whole of that sub – rule was substituted by the Railway Servants (Discipline and Appeals) (Third Amendment) Rules, 1978 to bring sub – rule (3) in conformity with clause (2) of Article 311 as amended by the Constitution (Forty – second) Amendment Act, 1976. It may be mentioned that on the respective dates of the orders impugned is Chellappan’s case the original sub – rule (3) of rule 10 formed part of the Railway Servants Rules and Clause (2) of Article 311 in force was that clause as amended by the Constitution (Fifteenth Amendment) Act, 1963. This however, does not make any difference to the point which falls to be decided.

Salient Features of Rule 14

           While discussing the rule making power of the President under Article 309, it would be quite pertinent to cite the salient features of Rule 14 which read as follows :

14.      Special procedure in certain cases – Not withstanding anything contained in Rules 9 to 13.

(i)        where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii)       where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii)      where the President is satisfied that in the interest of the security if the State, it is not expedient to hold an inquiry in the manner provided in these rules;

the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit :

           Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.

Clause (b) of Rule 2 of the Railway Servants Rules defines the word ‘Commission’ as meaning the “Union Public Service Commission”.

Order against which No Appeal lies

           After discussing the salient features of Rule 14, I think, it would be in fairness and fitness of the things to discuss Rule 17 of Railway Servants Rules which sets out the orders against which no appeal lies. Under that rule, no appeal inter alia lies against any order made by the President. Under rule 18, subject to the provisions of Rule 17, an appeal inter alia lies against an order imposing any of the penalties specified in Rule 6, whether made by the disciplinary authority or by any appellate or reviewing authority. Rule 20 prescribes a period of limitation for filing an appeal. The appellate authority is, however, conferred the power to condone the delay in filing the appeal if it is satisfied that the appellant had sufficient cause for not preferring the appeal. Rule 22 (2) provide as follows :

(2)      In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing penalty imposed under the said rule, the appellate authority shall consider –

(a)      whether the procedure laid down in these rules has been – complied with, and if not, whether such non – compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

(b)      whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c)       whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;

and pass orders –

(i)           confirming, enhancing, reducing or setting aside the penalty; or

(ii)       remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.

Conferment of power on various Authorities

           Now it would be quite apposite to discuss the power conferred on various authorities under Railway Servants (Discipline and Appeal) Rules, 1968. In this regard it would be in fairness of the things to refer to Rule 25 which confers power upon :

(i)        the President

(ii)       the Railway Board

(iii)      the General Manager of a Zonal Railway or an authority of that status in any other Railway Unit or Administration in the case of a railway servant serving under him or its control,

(iv)      the appellate authority not below the rank of Deputy Head of Department or a Divisional Railway Manager in the case of a railway servant serving under its control, at any time, either on his or its own motion or otherwise, to call for the records of any enquiry and revise any order made under the Railway Servants Rules. Clause (c) of the first proviso to Rule 25 (1) inter alia provides as follows :

Provided that –

(i)        subject to the provisions of Rule 14, the revising authority shall, -

(ii)       where an inquiry in the manner laid down in Rule I has not already been held in the case, itself hold such inquiry or direct that such enquiry be held in accordance with the provisions of Rule 9 and thereafter on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit.

Revisional Proceedings under the Rule

           The Railway Servants ( Discipline and Appeal ) Rule, 1968 provided for revisional proceedings under Rule 25 (1). According to this rule, a period of limitation for initiating any revisional proceedings by an appellate authority other than the President or a revising authority mentioned in item (ii) in the list of authorities set out, as hereinbefore mentioned. In the case of other authorities, the power of revision is not subject to any time – limit. Rule 25 – A confers power upon the President at any time either on his own motion or otherwise to review any order passed under the Railway Servants Rules when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case has come or has been brought to his nature. Rule 25 and 25 – A were substituted by the Railway Servants (Discipline and Appeal) (First Amendment) Rules 1983, for the original Rule 25 which provided for a review in somewhat similar terms as the present Rule 25.

The Ground on which Chellappan’s writ petition was allowed

In Chellappan’s case the Kerala High Court allowed the writ petition filed before it solely on the ground that the orders of the Magistrate releasing the concerned railway employee on probation did not amount to imposition of penalty as contemplated by Rule 14 of the Railway Servants Rules. Reversing that view the Supreme Court held that the word ‘penalty’ in clause (i) of rule 14 of the Railway Servants Rules does not refer to a sentence awarded by the Court to the accused on his conviction but it merely indicates the nature of the penalty imposable by the disciplinary authority if the delinquent employee has been found guilty of conduct which has led to the conviction on a criminal charge. The Hon’ble Supreme Court observed as follows :

“The view of the Kerala High Court, therefore, that as the Magistrate released the delinquent employee on probation no penalty was imposed as contemplated by Rule 14 (i) of the Rules of 1968 does not appear to us to be legally correct and must be overruled. Nevertheless we would uphold the order of the Kerala High court, on the ground, that the last part of Rule 14 of the Rules of 1968 which requires the consideration of the circumstances not having been complied with by the disciplinary authority, the order of removal from service of the delinquent employee was rightly quashed.”

The Observation of Constitution Bench on the above Ruling

           The Hon’ble Supreme Court pointed out that Clause (i) of Rule 14 merely sought to incorporate the principles embodied in clause (a) of the second proviso. The Court in the course of the judgment reproduced the provisions of clause (2) of Article 311 along with clause (a) to the proviso thereto, at that time clause (2) of Article 311 in force being that clause as amended by the Constitution (Fifteenth Amendment) Act, 1963, that is, clause (2)prior to its amendment by the Constitution (Forty – second Amendment) Act, 1976, and the proviso thereto being the same as the second proviso to clause (2) as amended by the Constitution (Forty – second Amendment) Act. The Courts then pointed out that there were three stages in a departmental inquiry under Article 311 (2), the third being the stage before actually imposing the penalty in which a final notice to the delinquent employee should be given to show cause why the penalty proposed against him be not imposed on him. It then stated that clause (a) of the proviso (now the second proviso) to Article 311 (2), however, completely dispensed with all the three stages of a departmental inquiry when an employee was convicted on a criminal charge because the employee already had in the criminal trial a full and complete opportunity to contest the allegations against him and to make out his defence, the Court pointed out that clause (a) of the proviso (now the second proviso) is merely an enabling provision and does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. The Court then considered the extent and ambit of the last part of Rule 14, namely, the phrase “the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit” and stated its conclusions as follows (at page 795 – 797…..

“The word ‘consider’ has been used in contradistinction to the word ‘determine’. The rule – making authority deliberately used the word ‘consider’ and not ‘determine’ because the word ‘determine’ has a much wider scope. The word ‘consider’ merely connotes that there should be active application of the mind by the disciplinary authority, after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. The matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final order that may be passed by the said authority. In other words, the term ‘consider’ postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an inquiry would be a summary enquiry to be held by the disciplinary authority after hearing the delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of Rules of the 1968 which incorporates the principle contained to 311 (2) proviso (a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administrative and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T. R. Chellappan in Civil Appeal 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance violation of the transport rules or the rules under the Motor Vehicles Act and so on where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider but I have mentioned some of these factors by way of instances which are merely illustrative and not exhaustive. In other words, the position is the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction. This is a very salutary provision which has been enshrined in these Rules and one of the purposes for conferring this power is that in cases where the disciplinary authority is satisfied that the delinquent employee is a youthful offender who is not convicted of any serious offence and shows poignant penitence or real repentance he may be dealt with as lightly as possible. This appears to us to be the scope and ambit of this provision. We must, however, hasten to add that we should not be understood as laying down that the last part of Rule 14 of the Rules of 1968 contains a licence to employees convicted of serious offences to insist on reinstatement. The salutary provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fair play. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service.

           Mr. S. N. Prasad appearing for the appellant submitted that it may not be necessary for the disciplinary authority to hear the accused and consider the matter where no provision like Rule 14 exists, because in such cases the Government can, in the exercise of its executive powers, dismiss, remove or reduce in rank any employee who has been convicted of a criminal charge by force of proviso (a) to Article 311 (2) of the constitution. In other words, the argument was that to cases where proviso (a) to Article 311 (2) applies a departmental inquiry is completely dispensed with and the disciplinary authority can on the doctrine of pleasure terminate the services of the delinquent employee. We however refrain from expressing any opinion on this aspect of the matter because the cases of all the three respondents before us are cases which clearly fall within Rule 14 of the Rules of 1968 where they have been removed from service without complying with the last part of Rule 14 of the Rules of 1968 as indicated above. In some of the cases has the disciplinary authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all. On the other hand in all these cases the disciplinary authority has proceeded to pass the order of removal from service straightaway on the basis of the conviction of the delinquent employees by the Criminal Courts.”

The Reading of Article 311 (2)

           The Hon’ble Supreme Court, at paragraph no. 114, stated that so far as Chellappan’s case is concerned, it is not possible to find any fault either with the view that neither clause (a) of the second proviso to Article 311 (2) nor clause (i) of Rule 14 of the Railway Servants Rules is mandatory or with the considerations which have been set out in the judgment as being the consideration to be taken into account by the disciplinary authority before imposing a penalty upon a delinquent government servant. Where a situation envisaged in one of the three clauses of the second proviso to Article 311 (2) or of an analogous service rules arises, it is not mandatory that the major penalty of dismissal, removal or reduction in rank should be imposed upon the concerned government servant. The penalty which can be imposed may be some other major penalty or even a minor penalty depending upon the facts and circumstances of the case. In order to arrive at a decision as to which penalty should be imposed, the disciplinary authority will have to take into consideration the various factors set out in Chellappan’s case. It is however, not possible to agree with the approach adopted in Chellappan’s case in considering Rule 14 of Railway Servants Rules in isolation and apart from the second proviso to Article 311 (2), nor with the interpretation placed by it upon the word ‘consider’ in the last part of Rule 14. Neither Rule 14 of the Railway Servants Rules nor a similar rule in other service rules can be looked at apart from the second proviso to Article 311 (2). The authority of a particular office to act as a disciplinary authority and to impose a penalty upon a government servant is derived from rules made under the proviso to Article 309 or under an Act referable to that article. As pointed out earlier, these rules cannot impinge upon the pleasure of the President or the Governor of a State, as the case may be because they are subject to Article 310 (1). Equally, they cannot restrict the safeguards provided by clauses (1) and (2) of Article 311 as such a restriction would be in violation of the provisions of those clauses. In the same way. They cannot restrict the exclusionary impact of the second proviso to Article 311 (2) because that would be to impose a restriction upon the exercise of pleasure under Article 310 (1) which has become free of the restrictions placed upon it by clause (2) of Article 311 by reason of the second proviso to that clause. The only cases in which a government servant can be dismissed, removed or reduced in rank by way of punishment without holding an enquiry contemplated by clause (2) of Article 311 are the three cases mentioned to the proviso to that clause. A rule which provides for any other case in which any of these three penalties can be imposed would be unconstitutional. Service rules may reproduce the provisions of the second proviso authorizing the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in the three cases mentioned in the second proviso to that clause or any one or more of them. Such a rule, however, cannot be valid and constitutional without reference to the second proviso to Article 311 (2) and cannot be read apart from it. Thus, while the authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of his power to dispense with the inquiry is derived from the second proviso to Article 311 (2) and not from any service rules. There is a well – established distinction between the source of authority to exercise a power and the source of such power. The Court in Chellappan case was, therefore, in error in interpreting Rule 14 of the Railway Servants Rules by itself and not in conjunction with the second proviso (at that time the only proviso) to Article 311 (2). It appears that in Chellappan case the Court felt that the addition of the words “the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit” warranted as interpretation of Rule 14 different from that to be placed upon the second proviso. This is also not correct. It is true that the second proviso does not contain these words but from this it does not fellow that when acting under the second proviso, the disciplinary authority should not consider the facts and circumstances of the case or make an order not warranted by them. It is also not possible to accept the interpretation placed upon the word ‘consider’ in Chellappan case. According to the view taken in that case, a consideration of the circumstances of the case cannot be unilateral but must be after hearing the delinquent government servant. If such were the correct meaning of the word “consider”, it would render this part of Rule 14 unconditional as restricting the full exclusionary operation of the second proviso. The word ‘consider’, however, does not bear the meaning placed upon it in Chellappan case. The word ‘consider’ is used in Rule 14 as a transitive verb. The meaning of the word ‘consider’ as so used is given in the Oxford English Dictionary as “To contemplate mentally, fix the mind upon; to think over, mediate or reflect on, bestow attentive thought upon, give head to, take note of . The relevant definition of the word ‘consider’ given in Webster’s Third New International Dictionary is “to reflect on; think about with a degree of care or caution.” Below this definition are given the synonyms of the word ‘consider’, there synonyms being “contemplate, study, weigh, resolve, excogiate”. While explaining the exact different shades of meaning in this group of words, Webster’s Dictionary proceeds to state as under with respect to the word ‘consider’ :

‘consider’ often indicates little more than think about. It may occasionally suggest somewhat more conscious direction of thought, somewhat greater depth and scope, and somewhat greater purposefulness.

It is thus obvious that the word ‘consider’ in its ordinary and natural sense is not capable of the meaning assigned to it in Chellappan's case. The consideration under Rule 14 of what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrant is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent government servant. Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Chellappan's case. As pointed out earlier consideration of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311 (2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not. There are a number of orders which are of necessity passed without hearing the party who may be affected by them. For instance, courts of law can and often do pass ex parte ad interim orders on the application of a plaintiff, petitioner or ad interim appellant without issuing any notice to the other side or hearing him. Can it, therefore, be contended that the judge or judges, as the case may be, did not apply his or their mind while passing such an order?

THE CONCLUSION

           The decision in Chellappan's case is, therefore, not correct with respect to the interpretation placed by it upon Rule 14 of the Railway Servants Rules and particularly upon the word ‘consider’ occurring in the last part of that rule and in interpreting Rule 14 by itself and not in conjunction with the second proviso to Article 311 (2). Before parting with Chellappan's case we may, also point out that that case never held the field. The judgment in that case was delivered on September 15, 1975, and it was reported in (1976) 1 SCR at pages 783 ff. Hardly was that case reported then in the next group of appeals mentioned earlier, an order of reference to a larger Bench was made on November 18, 1976. The correctness of Chellappan's case was, therefore, doubted from the very beginning. [AKS : 25/04/2010, Mumbai]