Kalu Prasad And Ors. vs Union Of India (Uoi) And Anr. on 7 February, 1983

Patna High Court
Kalu Prasad And Ors. vs Union Of India (Uoi) And Anr. on 7 February, 1983
Equivalent citations: 1983 (31) BLJR 277
Author: S J Sinha
Bench: S Jha, A Sinha


JUDGMENT

S.K. Jah and A.K. Sinha, JJ.

1. There are four petitioners in this application under Article 226 of the Constitution of India. They all have felt aggrieved by the order of termination of their service or order of removal as contained in annexure 1 series. Although in the writ petition several other questions were raised and other remedies with regard to certain incidental matters were claimed, Mr. Ras Bihari Singh, learned Counsel for the petitioners has not chosen to press the challenge made to annexure 3 series or other incidental orders because if annexure 1 series are held to be valid in law, the other reliefs sought by the petitioners would automatically be rejected. On the contrary, if the petitioners’ challenge to the order of removal as contained in annexure 1 series is held to be illegal be and invalid the petitioners would be entitled to others ancillary and consequential reliefs which the petitioners have prayed for.

2. The only point for consideration in this case is as to whether order of removal as contained in annexure 1 series can be upheld as being in accordance with law or otherwise. The point involved is an interpretation of Rule 14(11) of the Railway Servants (Discipline and Appeal) Rules 1968 (hereinafter to be referred to as the Rules). Learned counsel for the petitioners has argued that the non-holding of a regular enquiry as envisaged in the aforementioned rule vitiates the entire proceeding.

3. In view of the settled principle of law governing such cases as reported in a Bench decision of this Court in the case of Virendra Prasad Mishra v. The Union of India and Ors. 1982 B.B.C.J. 87 and some earlier Bench decision, which it is not necessary for us to refer to, we may straightway proceed to examine the validity/legality of the impugned order of removal of the petitioners from service in view of the Rule 14(ii) of the Rules. The aforementioned rule envisages that–

                 *          *          *          *          *
 

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

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

We are not concerned with the proviso for appreciating the legal principle involved. It is worthwhile to mention the ground on which an order purported to be under Rule 14(ii) of the Rules as incorporated in annexure 1 services should be taken note of. The common ground on which provision of Rule 14(ii) of the Rules has been made applicable by the Railway administration to the case of the petitioners against them is that “each of the petitioner absented himself unauthorisedly along with many others under a common understanding with the purpose of bringing the normal train running to a halt which tent amounts to resorting to illegal strike and also participated in large scale intimidation of the willing workers resulting in disruption of supply of essential commodities of the community”. In paragraph 3 of annexure 1 series, it has been stated that “whereas it has been considered that the circumstances of the case are such that no witness is likely to come forward to adduce evidence in view of the present atmosphere surcharged with threats and acts of violence, it would not be reasonably practicable to hold any enquiry in the manner provided for in the Railway Servants (Discipline and Appeal) Rules, 1968,”

4. It is pertinent to take notice of the fact in this case that not even a single witness was noticed to come and depose against the petitioners, It has just been presumed that in the circumstances it should be deemed that the petitioners would use threats or intimidation or physical violence as against such witnesses at the instance of the administration. It has been held in Virendra Prasad case (supra) that the mere possibility of use of violence on the part of a person who is proceeded against cannot lead to the conclusion that it was not reasonably practicable to hold an enquiry. Had it been otherwise, it would mean that in any case where violence is the subject matter of charge, no enquiry can be held because of the remote possibility (not probability) of use of violence in future. It has been further been held in that case that if a series of such acts were there, it might have been possible to say that an enquiry was not feasible or practicable, but only one incident of coercion could not by itself lead to the conclusion that an enquiry as euvisaged in the Rules was not practicable, where a number of witnesses including officers of the Department could have been competent witness in the enquiry. In the instant case, the only ground on which a regular and legal enquiry has been sought to be dispensed with is that the petitioners have indulged in an illegal strike and that there was a common understanding along with many others with the purpose of bringing the normal train running to halt which tantamounts to resorting to illegal strike. The petitioners are further said to have participated in large scale intimidation of the willing workers. This is the only allegation as against them. It cannot be held by any reasonable and prudent authority that in the circumstances no witnessess would be likely to come forward to adduce evidence in view of the present atmosphere surcharged with threats and acts of violence. Something could have been said in favour of the impugned order if even a single witness could have said something and he would have shown his inability to appear and adduce evidence in view of any intimidation on the part of the petitioners That being not so, we do not think that the mere possibility of use of violence on the part of the petitioners cannot lead to the conclusion that it was not reasonably practicable to hold enquiry. It is, thus manifest that resort to Rule 14(ii) of the Rules for dispensing with regular enquiry as envisaged by Rules 9 to 13 cannot be said to be to the satisfaction of any reasonable authority.

5. Mr. Ojha, learned Counsel for the railway administration very fairly accepted the legal position as it stands today as indeed he could not have done otherwise, that the provisions of Rule 14(ii) of the Rules were not attracted.

6. In the circumstances, we are constrained to allow this application and quash the orders of removal of the petitioners from their service as contained in annexure 1 series. There shall, however, be no order as to costs.

7. It goes without saying that the petitioners would now be deemed to have continued in service from the date of the removal onwards.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *