ORDER
Madan B. Lokur, J.
1. The Appellant preferred an appeal under Clause X of the Letters Patent directedagainst the judgment and order dated 9th July, 1993 passedbya learned Single Judge of this Court in Civil Writ Petition No. 389 of1984. Bythe impugned judgment and order, the learned Single Judgequashedthe order dated 7th December, 1983 dismissing the Respondent from service.The Respondent was also granted all consequential benefits.
2. The Respondents joined the services of the Appellant on probation as a Junior Engineer (Civil) on 29th June, 1981 and was posted under the Project Manager, Indian Railway Construction Co. Ltd., Anpara in the State of Uttar Pradesh. Apparently, his performance was not very satisfactory and,therefore, by an order dated 28th June, 1982 he was transferred to the Corporate OfficeinNewDelhi and his probation period was alsoextendedbysix months.
3. According to the Appellant, the Respondent committed someirregularitiesfor which his explanation was called for by a Memorandumdated24th January,1983.Hewas also alleged tohaveunauthorisedlymarkedhis presencein the attendance register, tampered with some recordsandpreferredfalseclaimsfor conveyance charges. For thesereasons,hewas issued another Memorandum dated 7th June, 1983 calling for his explanation. Inview of his conduct, the services of the Respondent were notconfirmed and he continued to remain on probation.
4. Subsequently, by an order dated 10th November, 1983 the Respondent was againtransferred to Anpara but he did not accept the transferandchallengedthe same in a Civil Court which granted an injunctionagainsthis transfer.
5. Itwas alleged by the Appellant that on 6th December, 1983atabout 2.30p.m. the Respondent along with some associates barged into thecabin of a senior official of the Appellant, namely, Mr. S.L. Gupta. The Respondentwasalleged to have abused Gupta and even gave threats tohislife. Laterintheday, at about 5.00 pm, the Respondentalongwithanother employee physically assaulted and manhandled Gupta in his office cabin.At thattime also the Respondent was accompanied by a few employees.Abusive andfilthy language was said to have been used and the purse of Guptawas removedfrom his table. Gupta cried for help and so someotherofficers, including one lady come to his rescue. These officers were also abusedand threatened. Gupta managed to escape from his cabin after which the Respondent and his associates left the room.
6. Writtencomplaints about the two incidents which occurred at 2.30pm and 5.00 pm on 6th December, 1983 were made to the General Manager(Admn.) ofthe Appellant by Gupta and four witnesses. A FirstInformationReport was also lodged by Gupta with the concerned police station.
7. Thereafter, the General Manager of the Appellant passed an order dated 7thDecember, 1983 dismissing the Respondent from servicewithimmediate effect. This action was taken by the General Manager in exercise ofpowers conferredby Rule 30(ii) of the Indian Railway Construction Co. Ltd.Conduct,Disciplineand Appeal Rules, 1981 (hereinafter referred toasthe Rules). Rule 30 (ii) reads as follows :
“Rule 30 SPECIAL PROCEDURE IN CERTAIN CASES:
Notwithstandinganything contained in Rules 25 or 26 or 27,thedisciplinary authority may impose any of the penaltiesspecified
in Rule 23 in any of the following circumstances :-
(i)xxx xxx
(ii) where the disciplinary authority is satisfied for reasons tobe recorded by it in writing that it is not reasonablypracticable to hold an enquiry in the manner provided in these rules; or
(iii) xxx xxx”
The penalties specified in Rule 23 includes dismissal from service.
The disciplinary authority, that is, the General Manager recordedhis reasons for dispensing with the enquiry and this is what he had to say :
“….After considering the following aspects, I am of the opinionthatIT is not reasonably practical to hold an enquiryinthe
manner provided under rule 25 of the said conduct rules :-
(a)The delinquents have taken the extreme step of freelyusingabusivelanguageand assaulting Shri S.L. Guptarightinthe
centre of the activities of the Corporate Office of theCompany.Withsuchhigh-handed and recalcitrant attitude ofthedelinquents, I am convinced that they can indulge in such intimidatingandviolent acts against other employees when they comeforwardto give evidence during the course of the enquiry. It will therefore be difficult to hold a proper enquiry and witnesses maynotcome forward to give frank and true evidence.
(b)The holding of the enquiry will take some time and withtheattitude of the delinquents mentioned above, I am convincedthat
theywill continued to indulge in such violent activitieswhichwill seriously disrupt the functioning of the Company apartfrom effecting the safety of the employees.
(c)Thedelinquentshave threatened the lifeof,theseniorOfficer of the rank of a Manager in scale Rs. 1500-2000 openly in
the office premises after hurling abuses. This assault appears tohave been intentional and deliberately executed. It canreasonablybe inferred that the delinquents can resort to suchmethodsagainstotherhigherofficersalsoincaseanenquiryis held….”
8. TheRespondent preferred a writ petition challenging the orderdated 7thDecember, 1983. He submitted before the learned Single Judge thatthe workmenemployedin the Corporate Office of the Appellantandintheir variousprojectshad formed a trade union calledIRCONEmployeesUnion (hereinafter referred to as the Union) which was registered with the Registrarof Trade Unions on 9th November, 1983. The Respondent wasthefirst President of the Union. He alleged that on 10th November, 1983 he hadsent aletter to the Appellant requesting for recognition of the Unionbutby wayofretaliation,he was transferred out to Anpara onthesameday. According to the Respondent, since he had challenged the order oftransfer and had obtained an injunction from the Civil Court, the management ofthe Appellantgot further annoyed. The Appellant coerced severalmembersand officebearers of the Union to resign from its membership. TheRespondent
submittedthatsincehe belonged to a Scheduled Caste,headdresseda letteron 5th December, 1983 to the Commissioner of ScheduledCastesand Scheduled Tribes stating his grievances and voicing an apprehension that he may be removed from service on account of his union activities. The Commissionertookactionon his complaint on the same day bywritingtothe Appellantandattachingtherewith a copy of the complaintmadebythe Respondent.TheRespondent alleged that the action todismisshimfrom servicewas mala fide and was with a view to victimise him forhisunion activities.
9. The Respondent further alleged that along with him one V.K. Talwar who wastheGeneralSecretary of the Union was alsodismissedwithoutany enquiry being held against him. Later, on 5th January, 1984 theRespondent andTalwar were called by the Managing Director of the Appellant andwere told to sign a letter and thereafter the order of dismissal would bewithdrawn.While the Respondent declined to sign the letter, Talwar agreedto do so because he was facing an acute financial crisis. In the letterwhich was signed by Talwar, it was mentioned, inter alia, that he had no relation withtheUnion and had dissociated himself therefrom. Hefurtherstated that “For all that has happened I sincerely beg apology… and a chance may begiven to me to prove my worth and ability.” We were toldthatdespite thisTalwarwas not reinstated. As mentioned earlier, thewritpetition filedbythe Respondent was allowed by the learned Single Judgeandthe order dated 7th December, 1983 was quashed.
10.Weheardlearnedcounsel for the Appellant andtheRespondentin personon25th and 26th October, 1999 and 15th, and 24thNovember,1999 when judgment was reserved.
11.Learned counsel for the Appellant submitted before us that the learned Single Judge was wrong in holding that the order of dismissal was liable to be set aside because it was passed by an authority inferior in rank tothe authority who actually appointed the Respondent. Learned counselsubmitted thattheprotection offered by Article 311 of theConstitutionwasnot availabletothe Respondent. He also submitted thatthelearnedSingle Judgewas in error in judicially reviewing the decision todispensewith theenquiry.According to learned counsel, the learned SingleJudgehad transgressedthe limits of judicial review and it was not permissiblefor him to go behind the decision to dispense with the inquiry, even if itwas a mala fide decision. Learned counsel did not attempt to justify thedecisiontodispensewith the inquiry. Consequently,ifwedisagreewith learned counsel and hold that the decision to dispense with the inquiryis judiciallyreviewable, then, in the absence of any justification forthat decision, we have no alternative but to quash the same.
12.In support of his first contention, learned counsel for theAppellant relied upon three decisions of the Supreme Court, namely, Dr. S.L.Agarwal Vs. The General Manager, Hindustan Steel Ltd., , PyareLal
Sharma Vs. Managing Director, Jammu and Kashmir Industries Ltd. & Ors., and State Bank of India Vs. S. Vijaya Kumar, .
13.InDr.S.L. Agarwal, the Supreme Court held that anemployeeofa company(entirely owned by the Union of India) “…..does notanswerthe descriptionofaholderof `a civil postundertheUnion’…..”and”…..was not entitled to the protection of Article 311.” (paragraph 10of the Report)
14.In Pyare Lal Sharma, the Supreme Court was concerned with anemployee ofa company wholly owned and managed by the State of JammuandKashmir. The Supreme Court held (in paragraph 19 of the Report) that”,…employees ofthe company are not civil servants and as such they canneitherclaim theprotectionofArticle 311(1) of the onstitution ofIndianorthe extension of that guarantee on parity.” The Supreme Court further held that “Anemployeeof the company cannot, therefore, claim thathecannotbe dismissedor removed by an authority subordinate to that by whichhewas appointed.”
15.S. Vijaya Kumar is to the same effect, but this decision proceededon an admission as mentioned in paragraph 24 of the Report.
16.TheRespondent,whowas initially represented byanadvocatebut ultimatelydecidedtoargue his case in person, submittedthathewas appointed by one V.K.J. Rane, General Manager in the pay scale of Rs2500-2750but was dismissed by one A.K. Raman who was a Deputy GeneralManager re-designatedasGeneral Manager and holding the pay scale ofRs.2250-2500.Accordingtothe Respondent, his services wereterminatedbyan officersubordinate to the appointing authority and this wascontraryto lawandthe learned Single Judge was right in deciding in hisfavourin this regard.
17.Having examined the judgments cited by learned counsel for theAppellant, we are of the view that the decision of Pyare Lal Sharma fully covers thequestion in favour of the Appellant and against the Respondent.There isno dispute about the fact that the Appellant is a company whollyowned andcontrolled by the Government of India. He have alreadyextractedthe relevantportion of the decision in Pyare Lal Sharma. In view of theunequivocal statement of law by the Supreme Court, we accept the contention of theAppellant and hold that the learned Single Judge was in error insetting aside the order of termination on the ground that it was passed byan officer subordinate to the appointing authority.
18.In support of his second submission, learned counsel for the Appellant relieduponUnionof India & Anr. Vs. Tulsiram Patel
SatyavirSingh and Ors. Vs. Union of India & Ors., .K.
Senand Ors. Vs. Union of India & Ors. andKuldipSingh
Vs. State of Punjab & Ors., .
19.Contraryto what was submitted by learned counsel for theAppellant, the Constitution Bench of the Supreme Court has clearly stated inTulsiram Patel that :
“…Thereasonablepracticability of holding aninquiryisa matterof assessment to be made by thedisciplinaryauthority.Such authority is generally on the spot and knows what is happening.It is because the disciplinary authority is the bestjudge of this that clause (3) of Article 311 makes the decision ofthe disciplinaryauthorityon this question final.Adisciplinaryauthority is not expected to dispense with a disciplinary inquirylightlyor arbitrarily or out of ulterior motives ormerelyinordertoavoidtheholdingofaninquiryorbecausetheDepartment’s case against the government servant is weak and must
fail.Thefinality given to the decisionofthedisciplinary authority by Article 311(3) is not binding upon the court so farasits power of judicial review is concerned and in such acasethe Court will strike down the order dispensing with theinquiryasalsothe order imposing penalty….” (Paragraph 130ofthe Report).
20.Itwas further stated by the Constitution Bench in paragraph138of the Report :
“….Thefinalitygivenby clause (3) of Article 311tothe
disciplinaryauthority’sdecision that itwasnotreasonablypracticableto hold the inquiry is not binding uponthecourt.Thecourtwill also examine the charge of mala fides,IF any,madeinthe writ petition. In examining therelevancyofthereasons, the court will consider the situation which according tothe disciplinary authority made it come to the conclusion that itwas not reasonably practicable to hold the inquiry. If thecourtfinds that the reasons are irrelevant, then the recording ofitssatisfactionby the disciplinary authority would be an abuseofpower conferred upon it by clause (b) and would take the case outofthe purview of that clause and the impugned order ofpenaltywould stand invalidated…..”.
That a Court can judicially review an order dispensing with an enquiry was also accepted by the Supreme Court in Satyavir Singh (Paragraph 6(104 to 114) of the Report) and in Kuldip Singh (paragraph 8 of the Report), the decision in A.K. Sen does not say anything to the contrary.
21.TheRespondent, appearing in person, drew our attention to thefindings of the Supreme Court in the case of Jaswant Singh Vs. State ofPunjab & Ors., in para 5 of the Report as follows :
“…Thedecision to dispense with the departmental enquirycannot,therefore, be rested solely on the ipse dixit ofthecon-
cerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on thosewhosupporttheorderto show that the satisfactionisbasedoncertainobjectivefacts and is not the outcome of thewhimorcaprice of the concerned officer….”.
22.In view of the law clearly laid down by the Constitution Bench ofthe SupremeCourt, we have no doubt that an order dispensing withaninquiry can be judicially reviewed. We, therefore, reject the contention of learned counselforthe Appellant in this regard. Since learned counselmadeno attempt to support the order dispensing with the inquiry, we have no option butto affirm the finding of the learned Single Judge that the orderdispensing with the inquiry was mala fide and deserves to be quashed.
23.On the question of relief, learned counsel for the Appellant submitted thatthe Respondent should not have been grantedconsequentialbenefits. Learnedcounsel placed reliance on Managing Director, Uttar PradeshWarehousing Corporation and Another Vs. Vijay Narayan Vajapyee
andState of U.P. and Another Vs. Atal Behari Shastri & Another&(1993) Supp 2 SCC 207. It was also submitted by learned counsel that the Appellant maynowbe allowed to hold a departmental inquiry into theincidentand take appropriate action. In support of this submission, reliance was placed on State of Orissa & Ors. Vs. Dinabandhu Beheta and Ors. ,
M.K.Agarwal Vs. Gurgaon Gramin Bank and Ors. (1987) Supp SCC 643Jaswant Singh Vs. State of Punjab & Ors. (1990) 4 JT 554.
24.We would have considered these submissions and the cases relied onby learned counsel if the order dispensing with the inquiry was bona fidebut wasotherwise not sustainable in law, for whatever reason. However,since the order was mala fide (and no attempt was made to support it). We donot find it appropriate to consider whether the learned Single Judge wasright in granting all consequential benefits or not. As regards the holding of an inquiry,we think that the Respondent has already suffered enough forthe last16 years and given the attitude of the Appellant, a fair inquirymay not be possible on the facts and in the circumstances of this case.
25.Accordingly,the appeal is dismissed. The setting aside of theorder dated7thDecember,1983 by the learned Single Judgeisaffirmed.The Respondentwill be entitled to all consequential benefitsincludingback wages, seniority etc. There will, however, be no order as to costs.