Allowed

Bajrang Lal Chhipa v. R S R T C Jaipur and Ors.

Rajasthan HC11 May 2017CW/8362/2002

Case brief

AI extract

What is this about?

The High Court held that departmental penalty and appeal dismissal orders were vitiated for non-application of mind and violation of natural justice, as the inquiry report failed to consider defense evidence and the appellate authority did not furnish reasoned consideration.

What did the court decide?

The impugned order inflicting penalty dated 19th September, 2000 and the appellate order dated 18th October, 2001, upholding it, are quashed. Consequential benefits shall be admissible on a notional b

Bajrang Lal Chhipa Vs R S R T C Jaipur and… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 8362 / 2002

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Bajrang Lal Chhipa S/o Shri Jiwan Ram Chhipa, working as Personal Assistant, Chief Manager, Rajasthan State Road Transport Corporation, Sikar.

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Petitioner

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Versus

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Rajasthan State Road Transport Corporation, Parivahan Marg, Jaipur through its Managing Director.

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The Executive Director (Administration), Rajasthan State Road Transport Corporation, Jaipur.

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Sh. Virendra Kumar Jain, Sr. Personal Assistant to the Chairman Rajasthan State Road Transport Corporation, Parivahan Marg, Jaipur.

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Sh. Mahesh Kumar Gupta, Senior Personal Assistant, C/o Dy. General Manager (Pension), Accounts Department, RSRTC, Head Office, Parivahan Marg, Jaipur.

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Sh. Balkrishan, Senior Personal Assistant, C/o General Manager, RSRTC, Jodhpur Zone, Jodhpur.

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Sh. Mahendra Mohan Mathur, Senior Personal Assistant, C/o General Manager, RSRTC, Ajmer Zone, Ajmer.

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Sh. Babu Lal Soni, Senior Personal Assistant, C/o Dy. Chief Production Manager, Central Office, RSRTC, Jodhpur.

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Sh. Dashrath Singh Shekhawat Senior Personal Assistant C/o Dy. General Manager (Checking) RSRTC, Head Office, Parivahan Marg, Jaipur.

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----Respondents

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_____________________________________________________ For Petitioner(s) : Mr. Sunil Samdaria For Respondent(s) : Ms. Manjeet Kaur

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Order

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11/05/2017

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Penalty of stoppage of two annual grade increments with cumulative effect for willful and unlawful absence has been inflicted on the petitioner vide impugned order dated 19^th

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(2 of 20)

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[CW-8362/2002]

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September 2000, and the period of absence has been treated as leave without pay by corrigendum dated 18^th October, 2010. Further, the appeal instituted by the petitioner, has been declined, of which the petitioner is aggrieved of, and therefore, has also instituted the instant writ application praying for the following relief(s):

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“For the aforesaid facts, circumstances and reasons it is most respectfully prayed that this Hon’ble Court may be graciously pleased to accept this writ petition and grant following reliefs to the petitioner.

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A. To issue suitable writ/direction/order quashing punishment promotion orders Annexure 8 to 13

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B. To issue suitable writ/direction/order to the respondents for regularization the period from 1.1.97 to 12.8.1997 by grant of due medical leave/earned leave/leave without pay on medical grounds.

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C. To issue suitable writ/direction/order to the respondents to promote the petitioner as Sr. Personal Assistant w.e.f. 30.06.2000 when his junior the respondent no.3 was promoted.

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D. To award costs of the writ petition.”

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Briefly, the essential skeletal materials facts are that the petitioner was initially appointed as LDC on 18^th July, 1968, with the Rajasthan State Road Transport Corporation (for short, the Corporation). Later on, he was appointed as Steno-grapher on 26^th June, 1976, and earned promotion to the post of Personal Assistant with effect from 10^th July, 1987. It is pleaded case of the petitioner that while working as Personal Assistant; he was transferred to Tyre Plant, CWS, Ajmer, vide order dated 7^th December, 1996 and was relieved in the afternoon on 31^st December, 1996. While the petitioner was in course of preparation to join at the transferred station i.e. Ajmer, his daughter fell ill on

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(3 of 20)

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5^th January, 1997, and developed mental disorder. The petitioner while attending his ailing daughter was himself taken ill on 8^th January, 1997. It was in those circumstances, he could not join at the transferred station. By Communication dated 8^th January, 1997, he informed his Office at Ajmer of the attendant facts and circumstances enclosing a copy of the Medical Certificate. On account of the facts and circumstances aforesaid it was not conducive for him to leave his village and to join at a distant place like Ajmer i.e. transferred station The petitioner, therefore, addressed representation(s) with a prayer for cancellation of his transfer and posting him back to Jhunjhunu or Sikar. The respondent-Corporation ultimately acceeded to the request of the petitioner and he was transferred from Tyre Plant, CWS, Ajmer to Jhunjhunu Depot vide order dated 12^th August, 1997.

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Mr. Sunil Samdaria, learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application, asserted that the petitioner has been inflicted with the penalty of stoppage of two annual grade increments with cumulative effect, in utter disregard and breach to the mandate of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, the ‘Rules of 1958’). According to learned counsel, no evidence was led by the prosecution during the inquiry conducted and this fact has been admitted by the respondents in their counter-affidavit to writ application stating that looking into nature of charges leveled upon the petitioner; Departmental Representative has not found it suitable to present any witnesses and the documents.

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(4 of 20)

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Referring to contemplation under Rule 16 (8) of the Rules of 1958, learned counsel emphasized that there is no record of enquiry available as contemplated under the relevant Rule, which provides for the material that shall be included in the record of the inquiry.

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According to learned counsel, the evidence and witnesses produced by the petitioner in defence, have not been considered for there is not even a whisper of any analysis, examination and evaluation of the evidence. Further, three witnesses namely Shri Vimal Kumar Sharma, Shri Kalyan Mal Swami and Shri Mahesh Sharma, were produced by the petitioner as defence witnesses, but the conclusion arrived at by the Enquiry Officer would reflect that the evidence has not been examined at all. Hence, the conclusion arrived at by the Enquiry Officer is perverse and cannot be sustained in the eye of law.

¶37

It is further urged that the impugned order dated 19^th September, 2000, has been made by the disciplinary authority inflicting the penalty simply according approval to the findings arrived at by the Enquiry Officer on the alleged charge of willful absence according personal hearing. Moreover, the factum of illness, has been treated to be a false pretext to avoid transfer, contrary to the materials on record without application of mind.

¶38

Assailing the impugned order made by the Appellate Authority dated 18^th October, 2001, learned counsel urged that the appellate authority did not consider the matter as ordained by Rule 30(2)(a) to (d), which provides a complete procedure for consideration of an appeal against an order imposing any of the

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(5 of 20)

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penalties specified under Rule 14 of the Rules of 1958. For the appellate authority totally ignored the consideration as to whether the procedure prescribed under the Rules of 1958, has been complied with or not and if not, whether such non-compliance has resulted in violation of any of the provisions of Constitution or failure of justice. The appellant order is also silent as to whether the facts on which the order under appeal was made; have been established; whether the facts established afford sufficient justification for making an order; and whether the penalty imposed is excessive, adequate or inadequate. Thus, the impugned orders inflicting penalty would reflect that there was no application of mind.

¶42

Highlighting contents of para 2 of the counter-affidavit, it is urged that as per Rule 22, Clause-C of the Rajasthan State Road Transport Corporation Employees Service Regulations, 1965 (for short, Regulations of 1965), contemplates that proceedings against the petitioner could have been instituted under the Regulations of 1965. Therefore, the impugned orders deserve to be quashed on that count as well.

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The impugned action of the respondents is also assailed on the ground of discrimination indicating that a similarly situated employee, namely, Shri C. P. Challani, the then Assistant , who was transferred on 7^th February, 1996 and relieved on 9^th February, 1996, did not report for duty at the transferred station and instituted a writ application being S.B. Civil Writ Petition No. 2960/1996. In compliance of, on the writ application on 26^th September, 1996; his transfer order was cancelled and

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(6 of 20)

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proceedings instituted under Rule 17 of the Rules of 1958, were dropped. Furthermore, the period w. e. f. 26^th September, 1996 to 27^th April, 1997, was regularized according leave and Mr. C. P. Challani, was also sanctioned payment for the said period. But, in the case of the petitioner, inspite he addressed as many as 30 communications detailing out his severe family problems and his critical health which prevented him to report at the transferred station on 8^th January, 1997, he has been discriminated. Further, the petitioner submitted leave applications along with medical certificates. Ultimately, his request was acceeded and transfer order was cancelled. Thus, there was no need for institution any enquiry against the petitioner. In support of his claim, learned counsel has relied upon the opinion of a Co-ordinate Bench in the case of Ramdeo Singh Vs. R. S. R. T. C : 1992 WLR(S) Raj. 696. Reference is also made to the opinion in the case of R.P. Bhatt vs. Union of India and Ors (UOI) : (1986)2 SCC 651, Ram Chander Vs. Union of India (UOI) and Ors: (1986)3 SCC 103 and Pratap Singh vs. Superintendent of Police and Ors.: 2003(1) WLC 80.

¶47

In response to the notice of the writ application, the respondent-Corporation has filed its counter-affidavit raising preliminary objections. It is further pleaded that the petitioner was found guilty of willful absence from duty for a period of seven months without prior sanction of leave.

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Referring to Rule 22, Clause-C of the Regulation of 1965, it is further pleaded that it was the duty of the petitioner to present himself for duty after expiry of leave, failing which, the petitioner

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(7 of 20)

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was liable to disciplinary action for the petitioner after his transfer vide order dated 7^th December, 1996, from Sikar to Tyre Plant, Ajmer. Even after he was relived on 31^st December, 1996, he did not report for duty at the transferred station i.e. Ajmer and simply kept on sending applications to the Chief Production Manager, Tyre Plant, Central Workshop, RSRTC, Ajmer; for sanction of leave owing to alleged illness of his daughter and himself. The medical certificates reflecting his alleged sickness, were of different dates and there was no medical certificate for absence of the period of about 6 months and 5 days.

¶52

For the petitioner has been inflicted with the penalty; his claim for promotion to the post of Senior P. A. with effect from 30^th June, 2000, is not sustainable in the eye of law.

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Ms. Manjeet Kaur, Advocate, for the respondent-Corporation, while supporting the action of the respondent-Corporation in institution of departmental proceedings and penalty imposed as well as appeal declined; asserted that the claim of the petitioner alleging discrimination referring to the case of Shri C. P. Challani, is absolutely misconceived for the action in the case of Shri C. P. Challani, was taken in compliance of the order made by this Court where a notification dated 21^st August, 1991, was subject matter of challenge.

¶54

Referring to communication dated 8^th January, 1997, addressed to the Chief Production Manger, Tyre Plant, Central Workshop, RSRTC, Ajmer; by the petitioner; it is urged that despite transfer of the petitioner on 7^th December, 1996 and relieved on 31^st December, 1996; the petitioner prayed for 7 days

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(8 of 20)

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leave and that too, by a communication that was addressed on 8^th January,1997. Thus, the willful absence of the petitioner and noncompliance of the order of transfer, is apparent on the face of record, and therefore, the action of respondent-Corporation cannot be faulted.

¶58

Heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

¶59

From the factual matrix and materials available on record, it is not in dispute that the petitioner while working as Personal Assistant was transferred to Tire Plant CWS, Ajmer vide order dated 7^th December, 1996, and was relieved in the afternoon on 31st December, 1996. The petitioner could join at the transfer station owing to illness of his daughter and himself, and therefore, represented to the respondent-Corporation for cancellation of the transfer. The request of the petitioner was acceded later on. However, he was proceeded with departmental enquiry under the Rules of 1958, for willful absence from duty for the petitioner did not report at the transferred station i.e. Ajmer, in compliance of the transfer order dated 7^th December, 1996.

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It is also not in dispute that no evidence was led by the proseuction during enquiry conducted for according to the respondent-Corporation having regard to the nature of charges levelled; the departmental representative did not consider it necessary to produce any witness and/or documents to prove the charge(s).

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(9 of 20)

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The enquiry proceedings and order of penalty as well as order made by appellant authority; have been assiled for there is no evidence available on record to prove the charge of willful absence. Further, the evidence adduced and witnesses produced by the petitioner in defence; have not been considered as there is no analysis, examination and evaluation of the evidence by the enquiry officer. Here, it will be profitable to take note of the text of Rule 16 (6) which provides the procedure for imposing major penalties under the Rules of 1958, which reads thus:

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"(6) (a) (1). The evidence of any person which is of a formal character may be given by affidavit and may, subject to all just exception, be accepted in evidence in departmental proceedings. Where the enquiry officer thinks fir that the person should be summoned and examined personally, or if either party, namely the presenting officer or the delinquent officer insists on the personal attendance of the witness, arrangements should be made for the personal attendance of such witness.

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(6) (b) The enquiring Authority may, for good and sufficient reasons to be recorded in writing, recall witnesses for examination in part–heard cases being conducted by him.

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(6) (c) The Inquiring Authority shall give a notice within 10 days of the order or within such further time not exceeding 10 days as the Enquiring Authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub–rule

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(6) (a). Note :–The Government Servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. The Inquiring Authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with as requisition for the production of the document by such date as may be specified in such requisition: Provided that the Enquiring

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(10 of 20)

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Authority may, for reasons to be recorded by it in writing, refuse to requisite such of the documents as are in its opinion, not relevant to the case. On receipt of the requisition, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Authority: Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or, any of such documents would be against the public interest or security of the State, it shall inform the Inquiring Authority accordingly and the Inquiring Authority shall, on being so informed, communicate the information to the Government Servant and withdraw the requisition made by it for the production or discovery of such documents.

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(6) (d) In case of joint departmental enquiry under rule 18 or in the case of enquiry under rule 16 of these rules, the Government Servant/s/fail/fails to appear without sufficient cause on the date fixed for the hearing of which he had the notice, the Inquiry Authority, may proceed with the enquiry in the absence of such Government Servant(s).

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(6) (A) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not including in the list given to the Government Servant or may itself call for new evidence or re-call re-examine any witness and such case the Government Servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry for three clear days before the production of such new evidence, exclusive of the days of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Government Servant to produce new evidence, if it is of the opinion that production of such evidence is necessary in the interest of justice. Note:–New evidence shall not be permitted or called for or, any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent

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(11 of 20)

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lacuna or defect in the evidence which has been produces originally.

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(6) (B)(a) Where a Disciplinary Authority competent to impose any of the penalties specified in clauses (i) to (iii) of Rule 14, but not competent to impose any of the penalties specified in clauses (iv) to (vii) of Rule 14, has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regarding to its own findings or having regard to its decision on any of the findings of any Inquiring Authority appointed by it, is of the opinion that the penalties specified in clauses (iv) to (vii) of Rule 14 should be imposed on the Government Servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.

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(b) The Disciplinary Authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any witnesses is necessary in the interest of justice, recall the witnesses and examine, cross–examine and re–examine the witness and may impose on the Government Servant such penalty as it may deem fit in accordance with rules."

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On conclusion of the enquiry, the Enquiring Authority is required to prepare report of the enquiry, recording its findings on each of the charges together with reasons therefore; as contemplated under Rules 16(7). Further, the record of the enquiry is required to include the charges framed against the delinquent Goverment Servant along with statement of allegations, his written statement of defence, if any, evidence adduced by the parties, documentary evidence considered etc. Under Rules 16(8) of the Rules of 1958, there is a specific contemplation as to the contents of the record of enquiry, which reads thus:

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(12 of 20)

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"(8) The record of the inquiry shall include: –

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(i) the charges framed against the Government Servant and the statement of allegations furnished to him under sub–rule (2) ;

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(ii) his written statement of defence, if any ;

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(iii)the oral evidence taken in the course of the enquiry ;

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(iv)the documentary evidence considered in the course of the enquiry ;

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(v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to inquiry ; and (vi)a report setting out the findings on each charge and the reasons therefore."

¶87

From a glance of the enquiry report dated 16^th November, 1998, it is reflected that there is no discussion of the evidence adduced by the petitioner during the course of enquiry proceedings. Though the enquiry officer has taken note of statement deposed by one Shri Mahesh Sharma S/o Mohan Lal Sharma, produced as a witness by the petitioner in defence, but there is no finding recorded on appriciation of his statement and evidence. There is no discussion of the statements of the other two witnesses produced in defence. The medical certificates produced and applications made have not been considered with reasoining.

¶88

From the enquiry report, it is also evident that the petitioner addressed as many as 28 telegrams and photocopies of 3 medical certificates, but there is no conclusion with reasoning on those facts by the Enquiring Authority. Further, the enquiry officer while recording finding concluded that no medical certificate was produced along with the application whereas the details of the medical certificates originated from the concerned Hospitals, have been specifically taken note of by the Enquiring Authority in the

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(13 of 20)

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enquiry report. Hence, non-consideration of the material on record is also evident. Thus, the enquiry proceedings have not been conducted in accordance with law and procedure prescribed under Rule 16(6) and (8) of the Rules of 1958.

¶92

A glance of the provisions as contemplated under Rule 16(6) of the Rules of 1958, would reflect that a complete procedure has been provided in consonance of the principles of natural justice. The procedure contemplates for manner and mode for accepting evidence with excepations, summoning of witnesses, recalling of witnesses in partheard cases, discovery and production of any documents, requisition for production of document from the authority in whose custody or possession the documents are kept, consequences of non-appearance etc. The enquiry officer, on the basis of the material collected during the course of enquiry proceedings and evidence adduced by the parties, is required to apply its mind and record conclusion on each of the charge with the reasonings in support thereof.

¶93

By now, it is well settled that departmental enquiry proceedings are quasi-judicial proceedings, and therefore, the report of the enquiry officer is required to be a report wherein conclusions are arrived at on the basis of reasonings in the backdrop of evidence and materials available on record.

¶94

From a glance of the enquiry report, it is evident that the conclusions arrived at as to willful absence, hearing accorded to the petitioner in person and conclusion to the effect of false pretext of illness of the petitioner; are conclusions arrived at without application of mind to the evidence and material available

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(14 of 20)

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on record with any reasoning in support thereof.

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The Disciplinary Authority while inflicting penality of stopage of two annual grade incriments with cumulative effect vide impugned order dated 19^th September, 2000, did no better. The impugned order reflects reprodtion of the contents of charge in the first paragraph, narration on facts finds place in next paragraph and concurrence with the findings of the enquiry officer are recorded in third paragraph while penalty has been imposed in the concluding fourth paragraph. Thus, the impugned order made by Disciplinary Authority reflects total non-application of mind.

¶99

In the case of Ramdeo Singh (supra), a Coordinate Bench of this Court held that recording of conclusion is not to be sufficient compliance of the principles of natural justice so as to requirement of passing of a speaking order is concerned. It is relevent to take note of text of paragraph 9 of the adjudication aforesaid, which reads thus:

¶100

"9. A perusal of order, Exhibit-7 shows that Regional Manager, Sikar had merely recorded one line conclusion that after careful perusal of the inquiry report and the connected papers, he has reached to the conclusion that the charges levelled against the petitioner delinquent are fully proved. The order does not indicate any reason, which could show application of and which could disclose mental application of the competent authority to the contents of the inquiry report and connected record. This is possible only if specific reasons for recording finding of guilt has been recorded by the competent authority and communicated the same to the petitioner. Mere recording of conclusion is not the sufficient compliance of the principles of natural justice so far as requirement of passing of speaking order is concerned. The law relating to speaking order is now well settled by the Judge- made law during last more than 30 years. It is now well settled that all quasi judicial orders, which affect an employee of the

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(15 of 20)

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Government, statutory bodies or public bodies must contain reasons and bald conclusion of guilt recorded in disciplinary proceedings cannot be considered as sufficient compliance of the principles of natural justice, as has been held in State of Rajasthan V/s. Amolak Chand (1983 R.L. R. 246). This principle has been accepted and reiterated by the Division Bench of this Court and I am in full agreement with the view expressed by the Division Bench."

¶104

In the case of Ram Chander (supra), the Apex Court of the land relying upon the earlier opinion in the case of R.P. Bhatt Vs. Union of Inida: (1986) 2 SCC 651, in no uncertain terms held that the charge of mis-conduct would vitiate on account of nonapplication of mind. The rules referred to in the case of Ram Chander (supra), were pari-materia to the Rules of 1958. It will be profitable to take note of text of para 3, 4 and 5 of the judgement which reads thus:

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"3. Rule 22(2) of the Railway Servants Rules provided as follows:

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22(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider -

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(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 ;

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

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and pass orders -

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

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(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

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(16 of 20)

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fit in the circumstances of the case :

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The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India and Ors., (C.A. No. 3165/81 decided on December 14, 1982) this Court, in somewhat similar circumstances, interpreting Rule 27(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which provision is in pari materia with Rule 22(2) of the Railway Servants (Discipline & Appeal) rules, 1968, observed :

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It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the rules has been complied with; and if not, whether such noncompliance has resulted in violation of any of the provisions of the Constitution of India or in the failure of justice ;(2) whether the findings of the disciplinary authority are warranted by the evidence on record ; and (3) whether the penalty imposed is adequate, inadequate or severe, and pass orders confirming, enhancing, reducing or setting aside the penalty, or remit back the case to the authority which imposed or enhanced the penalty, etc

¶118

It was held that the word 'consider' in Rule 27(2) of the Rules implied 'due application of mind'. The Court emphasized that the Appellate Authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decisions. There was in that case, as here, no indication in the impugned order that the Director-General, Border Road Organisation, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had not recorded any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Board is in these terms:

¶119

(1) In terms of Rule 22(2) of the Railways Servants (Discipline & Appeal) Rules, 1968, the Railway Board have carefully considered your appeal against the orders of the General Manager, Northern Railways, new Delhi imposing on you the penalty of removal from service and have observed as under:

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(a) by the evidence on record, the findings of the disciplinary authority are warranted ; and

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(b) the penalty of removal from service imposed on you is merited.

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(2) The Railway Board have therefore rejected

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(17 of 20)

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the appeal preferred by you.

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To say the least, this is just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshal the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty or removal from service for a single lapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh punishment. There being non-compliance with the requirements of Rule 22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside."

¶127

Under Rule 30 of the Rules of 1958, procedure has been provided to deal with the appeal instituted under Rule 23, which reads thus:

¶128

"30. Consideration of appeals.– (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provision of rule 13 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the order accordingly.

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(2) In the case of an appeal against an order imposing any of the penalties specified in rule 14, the appellate authority shall consider –

¶130

(a) whether the procedure prescribed in these rules has been compiled with and if not, whether such non– compliance has resulted in violation of any provisions of Constitution or in failure of Justice;

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(b) whether the facts on which the order was passed has been established;

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(d) whether the penalty imposed is excessive, adequate or inadequate and after giving a personal hearing to

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(18 of 20)

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Government Servant to explain his case, if he desires so and after consultation with the Commission if such consultation is necessary in the case, pass order –

¶137

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

¶138

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

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Provided that –

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(i) the appellate authority shall not impose any enhance penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose.

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(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which may wish to make against such enhanced penalty; and

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(iii) if the enhanced penalty which the appellate authority propose to impose is one of the penalties specified in clause (iv) to (vii) or rule 14 and an inquiry under rule 16 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 18, itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry pass such orders as it may deem fit."

¶143

The Appellate Authority, while declining the appeal of the petitioner, which runs into eleven pages, vide impugned order dated 18^th October, 2001, simply affirmed the order of the Disciplinary Authority in three paragraphs recording the factual matrix and in one line conclusion stating that on a detailed and careful consideration of the memo of charge, response filed by the petitioner, and in view of the enquiry officer's report so also upon according personal hearing to the petitioner; no case was made out for interference in the penalty inflicted.

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(19 of 20)

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[CW-8362/2002]

¶146

True it is that there is no general principle or any rule of natural justice contemplating that statutory authority should always and in every case give reasoning in support of its decision in the case of affirmance and ommission to give reasons for the decision may not by itself be a sufficient ground for ordinarily, the Appellate or Revisional Authority gives adequate reasons; in such cases, the Appellate Authority or Revisional Authority may dismiss the appeal or revision prividing the adequate reasons.

¶147

Be that as it may, a glance of rule 30 of the Rules of 1958, would reveal that it contemplates consideration of the order under appeal and the word "consider" has different shades of meaning with reference to the context, therefore, for the purpose of an objective consideration after due application of mind reasons are required for its decision.

¶148

On the basis of the principles deduciable from the opinions of the Supreme Court, it can safely be concluded that in principal, observance of the principles of natural justice, is necessary at both stages i.e. initial stage as well as appellate stage. Furthermore, if the principles of natural justice are violated at the first stage, the right of appeal may not be a true right. Hence, a corrected initial hearing and adjudication followed by appeal and/or revision as a case may be, would be desirable.

¶149

In the case at hand from the factual matrix and materials available on record, it is evident that the procedure for imposing major penalties under Rule 16 and consideration of appeal under Rule 30 instituted under Rule 23 of the Rules of 1958, has not

¶150

(20 of 20)

¶151

[CW-8362/2002]

¶152

been followed. Therefore, the impugned orders inflicting penalty dated 19^th September, 2000, affirmed by the Appellate Authority vide order dated 18^th October, 2001, as well as the process of decision making stands vitiated for non-observance of the statutory procedure prescribed under the Rules of 1958 and for violation of principles of natural justice.

¶153

For the reasons and discussions aforesaid, the writ application succeeds and is hereby allowed.

¶154

The impugned order inflicting penalty dated 19^th September, 2000 as well as appellate order dated 18^th October, 2001, upholding it, are hereby quashed.

¶155

Since the petitioner has retired attaining the age of superannuation; consequential benefits shall be admissible on notional basis.

¶156

No costs.

¶157

(VEERENDR SINGH SIRADHANA)J.

¶158

Ashu/113

Bajrang Lal Chhipa v. R S R T C Jaipur and Ors.

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Bajrang Lal Chhipa v. R S R T C Jaipur and Ors.

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