JUDGMENT
S.K. Agrawal, Member (A)
1. There are 126 O.As. in this bunch of cases which have been separately filed by different applicants. Since the point involved is the same in all the cases, all the O.As. are taken up together to be disposed of by a single order.
2. The applicants were represented by S/Shri Dr. Ashok Nigam, P.M. Singh, R. Trivedi, R.L. Misra, R.A. Misra, A.M. Tripathi, R.S. Awasthi and S. Kumar. The respondents were represented by S/Shri A.K. Chaturvedi, N.K. Agrawal, Anil Srivastava, P.C. Khare, S. Verma, Prashant Kumar, Ajmal Khan, M.K. Singh, Smt. Maya Sinha and Km. Kiran Kapur. The arguments went for three days continuously and Counsel on both sides were duly heard.
3. The facts of the cases in all the applications arc almost the same except the date of order of respondent authorities, by which the services of the applicants were terminated, the date of joining at Lucknow and the Station from where they came on transfer e.g. Karnal, Ludhiyana, Jodhpur, Varanasi, Firozpur, Faizabad, Sialdah, Ambala, Sultanpur etc. are different in each case. In large number of cases they were shown as first joined at BSL/Shed/ MGH/Lucknow and then transferred to Carriage and Wagon Shop Alambagh Lucknow. Their date of joining and date of alleged appointment is also different in each case. On a scrutiny of the O.As it has been seen that 110 applicants served the railways between 3 to 5 years and their break up is as follows:
1995-2000 26
1996-2000 35
1996-1999 20
1997-1999 11
1994-1999 1
1996-2001 2
1998-2001 3
The remaining applicants had worded for a period less than 3 years except the applicants in two cases wherein it has been found that in O.A No. 30/2000 (Shitab Rai who came on transfer from Lucknow to Diesel Shed Alambagh Lucknow) has worked for 8 years from 10.10.91 to 30.11.99 and the other case of O.A. No. 188/01 (Satendra Kumar who came from Ambala to Lucknow Diesel Shed, Alambagh Lucknow) worked for only three months between 12.6.99 to 16.6.99. Counsel for both the sides therefore, suggested that for the sake of convenience we may take up the case of Sher Singh (O.A. No. 124/2000) as a sample case which is represented by Dr. Ashok Nigam from applicants side and Shri A.K. Chaturvedi from the respondents side and deal with the same, since except the date of joining, date of termination and the place from where they came on transfer, other facts are similar in all the cases. The other Counsels on both sides stated that their arguments may also be taken as put forth by the above Counsel.
4. The above O.As. are being preferred against the order dated 31.12.99 by which the services of the applicant (in O.A. No. 124/2000) had been terminated without affording any opportunity to the applicants. The O.As, have been filed against the impugned order passed by the Assistant Works Manager, Northern Railway, Alambagh, Lucknow who is the respondent No. 4 (in O.A. 124/2000).
5. The facts of the case, in brief are that the applicants being unemployed persons were informed by their acquaintees in the office of opposite party No. 3 that some vacancies of Khalasis are existing in the Railway office and that they may apply for the same. Accordingly, the applicants submitted their applications for appointment in the Railway office. The applicants thereupon kept on visiting the office and enquiring about the result of their applications. In the first week of January, 1996 the applicants were informed that they can join duties w.e.f. 9th January, 1996 which is the date in the case of Sher Singh (O.A. No.124/2000). Accordingly, the applicants reported for duty immediately in the office of opposite party No. 3 and were given duty in the SRM Section which is meant for fresh recruits and for their training. It was however, stated by the applicants’ Counsel that the applicants were not given any written appointment letters. When the applicants requested for the same, they were informed that the same will be given to them after their confirmation.
6. It has been further stated in the O.As. that after joining in the SRM section, the applicants were sent for 45 days through training in the workshop vide order dated 29.6.96 to Varishth Adhikshak Basic Training School Alambagh Lucknow. After successfully completing the training the applicants were sent back to SRM section for further posting. Thereafter from SRM Section, the applicants were transferred and posted under Shop Superintendent Carriage and Wagon Shop vide order dated 25.12.96. It is further submitted by the applicants that due to their hard work they were promoted the post of Khalasi to the post of Khalasi Helper w.e.f. October, 1996 and they joined as Khalasi Helper in the Alambagh Workshop Northern Railway in the year 1996. From November, 1996, the applicants were being issued regular Computerised Pay Slips giving their designation as Khalasi Helper, copies of which have been filed by the applicants with their O.As. It is further submitted by the applicants that they had been paid their salary regularly through Computerised Pay Slips which were being issued to them till the year 1999 when their services were suddenly terminated. The applicants have further submitted that all of a sudden vide impugned order dated 31st December,1999, in the case of Sher Singh (O.A. No. 124/2000) passed by Assistant Works Manager/NC Carriage and Wagon Shop, Alambagh, Lucknow the services of the applicants were terminated. The impugned order of termination came as a bolt from the blue to the applicants all of a sudden without any basis, rhyme or reason. It has been alleged in the impugned order that some fake transfer applications were submitted by the applicants seeking their transfer from stations such as Ludhiyana, Karnal, Firozepur etc. to C&W Shop, Northern Railway, Alambagh, Lucknow and that the authorities, taking cognizance of the said letter gave consent to the applicants to join their duties at Lucknow.
7. It has further been alleged that another fake letter dated 26th December, 1995 purported to be from D.R.M. Northern Railway, Firozpur and the second letter dated 8.1.96 from Ludhiyana was also given to the office of respondent No. 3 and because of these letters the applicants were allowed to join duties at Lucknow. The applicants have further stated in the O.As. that it has also been alleged in the impugned order that on verification from D.R.M. Firozpur, he has informed that he had never issued any such transfer order or Memo. The impugned order further says that thus all the above letters are fake and fabricated and consequent upon the same, letters mentioned in the impugned order dated 12.12.95, 10.12.96 and 31.12.96 are cancelled and the services of the applicants are terminated with immediate effect as they are not railway employees and joined the railways on fraudulent way.
8. The applicants have further stated in the O.As. that they have no knowledge about the above referred letters or orders purported to have been passed by various officers at Firozpur and Ludhiyana including those dated 24.8.95, 12.12.95, 9.1.96, 10.1.96, 11.1.96 and 27.12.95 which have been mentioned in the alleged impugned letters. The applicants have specifically stated that they have never submitted any letters before the respondents or any other office. They had simply submitted applications for appointment giving their biodata. They never claimed that they were employees of the Northern Railway, Firozpur or Ludhiyana or that they were transferred from there. According to the applicants, they had applied fresh for employment before the respondent No. 3 and were given employment as a fresher. This would be proved from the fact that they were posted initially in the DRM section which is meant for trainees and freshers and thereafter immediately sent on 45 days training vide order dated 29.1.96. According to the applicants, it is totally incorrect to allege that they had submitted any farudulent papers in the office of respondents or obtained the job by fraud.
9. It has, therefore, been alleged by the applicants in their respective O.As. that though the termination orders are totally based on allegation of fraud, no departmental enquiry whatsoever, has been conducted in the matter. Moreover, the applicants have not been given any show cause notice nor have been given any opportunity to know the charge/allegation against them to defend themselves. The impugned orders are thus, dismissal orders passed without following due process of law and in gross violation of principles of natural justice, equality and good conscience and as such is violative of Articles 14, 16 and 311 of the Constitution of India and hence the same are liable to be quashed.
10. The applicants have further alleged that the impugned order passed by the respondents imputes serious misconduct on the part of the applicants and charges them of committing fraud and hence it causes stigma on them and such stigmatic order could not be passed without following due process of law and holding departmental enquiry and giving them opportunity of hearing. It is also clear from the impugned order that no departmental enquiry was ever conducted in the matter and on the sole version of the CDO Ludhiyana that such letters were never issued by him, all guess, conjectures and surmises have been made and the applicants have not been given opportunity to point out that they have not submitted any such papers and thus papers, if on record might have been manufactured by the office of the respondents themselves for which the applicants are not responsible.
11. The applicants have further stated in their O.As. that they were appointed on various dates (9.1.96 in the case of the applicant of O.A. 124/2000) and have worked for sufficient number of years in regular capacity and were also promoted, hence they have acquired a vested right to continue in service which cannot be taken away from them without due process of law as provided in the Service Rules. If the respondent authorities had any doubt of any irregularity committed in their appointments, or respondents proposed to terminate the services of the applicants, the applicants ought to have been given a show cause notice, an opportunity to defend themselves. Failure to do so, has vitiated the entire process and the order so passed is void ab initio and hence liable to be quashed.
12. The applicants have further submitted that the applicants continued on their posts for a number of years (4 years in the case of applicant of O.A. No 124/2000) even though they were appointed erroneously and as such could not be removed from their posts in the garb of rectification of mistake.
13. In their counter reply, the respondents have stated that all the applicants through application dated Nil while claiming themselves to be Khalasis requested for transfer to the Divisional Railway Manager Northern Railway, Firozpur (in case of O.A, No. 124/2000) and the said applications of the applicants were forwarded through the alleged forged letter dated 24.8.95 by the office of D.R.M. Northern Railway, Firozpur. The office of respondents, on the presumption that D.R.M. Northern Railway Firozpur Division, Firozpur letter dated 24.8.95 is genuine one accepted the request of the applicant for transfer with bottom seniority through letter dated 12.12.95 (in O.A. No. 124/2000). The office of D.R.M. Northern Railway, Firozpur through alleged forged letter dated 27.12.95 ordered for relieving of the applicants. Through alleged forged letter dated 8.1.96 the applicants were spared to join new place of posting namely Carriage and Works Depot Alambagh, Lucknow. The applicants, therefore, submitted joining reports in the case of respondents office and the same was accepted through letter dated 10.1.96 (in the case of O.A 124/2000). Thereupon, the applicants reported for duty in the supervisor seat of Material (SRM) Carriage and Wagon Shop Northern Railway, Alambagh, Lucknow and accordingly the order dated 31.1.96 was issued with regard to the applicants whereupon the respondents requested the office of D.R.M. Northern Railway, Firozpur and Coaching Depot Officer, Northern Railway, Ludhiyana (in the case of O.A.124/2000) and all the heads of department from where the applicants were shown as coming on transfer to verify the documents pertaining to the applicants and in response to the same those officers through letter dated 28.12.96 informed the respondents that the applicants did not belong to their office. Keeping in view the material on record, the competent authority decided to cancel the letter dated 12.12.95 and staff order dated 31.1.96 (in the case of O.A. 124/2000) and to terminate the services of the applicants w.e.f. 31.12.99 through staff order of that date as the applicants were not the railway employees and had joined the railways by fraudulent way.
14. The respondents have further stated in the counter reply that no opportunity was required to be given to the applicants prior to the issuance of the staff order terminating their services keeping in view the settled legal position as per Hon’ble Supreme Court judgment reported in 1971 Vol. II SCC 410, State of Maharashtra v. Lok Shikshan Sansthan; 1992Vol.2SCC 206, Karnataka Public Service Commission v. B.M. Vijay Shankar, 1993 Vol. 4 SCC 727-1993(3) SLJ 193 (SC), Managing Director, ECIL Hyderabad v. B. Karunakaran and Ors.; 1994 Suppl. Vol. 2 SCC 468, State Bank of India v. S.S. Kaushal; AIR 1995 SC 388=1995(1) SLJ 118 (SC), Union of India v. Anand Kumar Pandey and AIR 1996 SC 1175, Gursharan Singh v. New Delhi Municipal Committee.
15. The respondents have further stated in their counter that large number of cases of obtaining employment through fraudulent means have come into the knowledge of the respondents and the same subject matter is under investigation of the C.B.I./SPE Lucknow vide FIR dated 25.10.99 filed by the respondents in this regard.
16. The respondents have charged the applicants that they have not availed any departmental remedy prior to approaching this Tribunal with regard to impugned staff order and as such the O.As. are barred by Section 20 as well as this Tribunal will have no jurisdiction to entertain the present O.As. keeping in view of the provisions of A.T. Act, 1985.
17. The respondents have further submitted that the applicants through their applications dated nil claiming themselves to be Khalasis in railway requested for transfer to their Divl. Heads where they were shown to be working and the said applications were forwarded through the alleged forged letter dated 24.8.95 (in the case of O.A. No. 124/2000) by the office of D.R.M., Northern Railway. The office of the respondents, on the presumption that the D.R.M., N. Railway Firozpur letter dated 24.8.95 is genuine one, accepted the request of the applicants for transfer with bottom seniority. Thereupon, the office of D.R.M., Northern Railway Firozpur Division, through alleged forged letter dated 24.12.95 ordered the transfer of the applicant on the basis of the same and the Divisional Head of the railways spared the applicants to join at Lucknow. The applicants through their applications dated 9.1.96 (in the case of O.A. 124/2000) submitted the joining report in the respondents office and the same was accepted through letter dated 10.1.96. When the respondents’ Counsel was asked to produce the applicants request letter for their transfer and also their letters dated 24.8.95, 12.12.95, 27.12.95, 8.1.96, 1.9.96 and 10.1.96 the learned Counsel for the respondents raised his hands that none of these papers are available with them and whatever papers were with them, had been handed over to the C.B.I. for enquiry. It has been further reiterated by the respondents that thereupon, they had requested the Divisional Head of offices where the applicants were earlier/alleged to be working to verify the documents pertaining to the applicants and in response to the same, the Divl. Heads replied vide letters dated 28.12.99 (in the case of O.A.124/2000) that the applicants do not belong to that Division and none of the papers were either received by them or issued by them. Thereafter, keeping in view the material on record the competent authority decided to terminate the services of the applicants from 31.12.99 (in case of applicant of OA. 124/2000) through staff order dated 31.12.99 on the ground that the employees were not railway employees and had joined the railway service by fraudulent means.
18. It has further been stated by the respondents that the applicants were never appointed under the respondents. The fact is that the applicants through fraudulent means sought employment by way of transfer under the respondents. The termination order was therefore, passed keeping in view all the material on record by the competent authority as such the claim of the applicant is wholly fraudulent.
19. The learned Counsel for the applicants has cited certain judicial pronouncements in favour of the applicants. These are as under:
(i) Shrawan Kumar Jha and Ors. v. Ram Sewak Sharma (AIR 1991 SC 309). In this case appointments of 175 teachers appointed by District Superintendent of Schools were cancelled by the Government on the ground that District Superintendent had no authority but no prior opportunity was given to the applicants before cancellation of their appointments. It was held by Their Lordships that in the facts and circumstances of the case, they were of view that the appellants should have been given the opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It was further held that it is well settled law that no order to the detriment of appellants could be passed without complying with the rules of natural justice.
(ii) Director General of Police and Ors. v. Mrityunjoy Sarkar and Ors., 1996(8) SCC 280. In this case Constables were discharged from service and the foundation for discharge was production of false list of persons from the Employment Exchange for recruitment as Armed Reserved Constables. It was held that if that is accepted then it would case stigma on the applicants for future recruitment as they have produced fictitious record to secure employment. The principle of natural justice require that they should be given reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed. It was further held that it would be open to the respondents to issue notice to all the applicants and consider their cases and then pass appropriate orders with reasons however, brief they may be.
(iii) Nepal Singh v. State of U.P., AIR 1985 SC 84. In this case the services of temporary Sub Inspectors of Police were terminated. Order was passed based on mere allegation and on unspecific and vague grounds. The decision of Allahabad High Court was reversed. It was held by Their Lordships that when a Government servant satisfies the Court, prima facie with the order terminating his services violates Articles 14 and 16 of the Constitution of India, the competent authority must discharge the burden of showing that the power to terminate the services was exercised honestly and in good faith, on valid considerations, fairly and without discrimination. Held the orders terminating the services were liable to be quashed.
(iv) Allahabad High Court (Writ Petition No. 5276/97, Shivanand Singh and Ors. v. State of U.P. (unreported). In this case following the decision of Hon. Supreme Court in the case of Shrawan Kumar Jha v. Stale of Bihar and Ors., (supra), it was held that as per view taken by the Apex Court, the order of cancelling the appointment without giving opportunity of hearing, was against the principles of natural justice and consequently void. It was further held by Their Lordships of the High Court that the principles of natural justice have been flagrantly violated in this case. Vested rights of the applicants could not be disturbed in the manner in which it was done by abruptly passing the impugned order.
(v) Allahabad High Court Regional Manager, Region III, State Bank of India v. Lakshmi Nath Mehrotra and Anr., (1997) 2 UPLBEC 1092. There was termination of services of Bank employee on the ground of loss of confidence without holding domestic enquiry which was held to be illegal. It was further held that the domestic enquiry should have been held before passing the impugned order of termination.
(vi) Shridhar v. Nagar Palika Jaunpur and Ors., (1990) 1 UPLBEC 1= 1990(1) SLJ 85 (SC). It was held that the High Court committed serious error in holding the order of the Government in setting aside the applicant’s appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. It was further held that the order of appointment conferred a vested right in the appellant/applicant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing him. The order passed in violation of principles of natural justice is rendered void. The High Court committed serious error in upholding the Commission’s order setting aside the applicant’s appointment and in view of the same, orders of the High Court as well as the Commissioner are not sustainable.
(vii) Lucknow Bench of Allahabad High Court in the case of Raja Ram Pandey and Ors., (Writ Petition No. 3544 of 1998 and 3506 of 1998) observed that it had consistently been held by the Apex Court in a large number of cases and also by this Court that if the orders are passed affecting the civil rights of any person without affording him opportunity of hearing to defend himself or to show cause and explain his case, the orders are non-est. It was further held that if the principles of natural justice are violated, such orders passed are non-est and unendorceable in the eyes of law. It was further held by Their Lordships of the High Court that for awarding major punishment, charge sheet should be prepared and supplied to the delinquent Government servant within two weeks of the decision to initiate disciplinary proceedings. The suspension order should be passed simultaneously or after the charge sheet against the delinquent Government servant. Delinquent should be given at least one month’s time or maximum two months for filing his explanation, all papers relevant in this should be supplied to the delinquent Government servant, if for any reason it is not convenient, then he should be permitted for inspection of the record within two weeks. If the enquiry officer proposes penalty of dismissal, removal or reduction in rank, copy of report should be supplied to the delinquent employee to submit his explanation. After considering the report and other materials and the explanation of the employee, the order of punishment if necessary would be passed by the punishing authority. It is further provided that the aforesaid time schedule should be observed strictly failing which defaulting officer should be dealt with and punished.
(viii) Case of Allahabad High Court (unreported) in C.M. Pandey v. State of U.P and Anr. There were about 1022 employees whose services were terminated as their appointments were temporary and ad hoc. It was held by Their Lordships that even though the appointments were temporary and ad hoc and were on probation for one year, termination of services cannot be done in an arbitrary manner as arbitrariness violates Article 14 of the Constitution of India as held by the Apex Court in Maneka Gandhi v. Union of India, AIR 1978 SC 599. The impugned order was passed in wholly arbitrary manner without giving any opportunity of hearing to the petitioner before passing the impugned order, hence the impugned order dated 26.8.99 was quashed.
(ix) Allahabad High Court in the case of Govind Narain and Ors. v. Union of India, Writ Petition No. 11003 (decided on 21.3.1984). In this case there was cancellation of appointments as Extra Departmental mail man after putting in service of more than two years on the ground of irregularities in selection. Held, the petitioner had been appointed on selection and had acquired a right to continue in service unless terminated in accordance with service rules. Further held that termination by cancellation of appointment without prior opportunity of hearing was violative of principles of natural justice and therefore, null and void.
(x) Allahabad High Court Virendra Prasad Singh v. State of U.P. 1999 All. LJ 131 (Writ Petition No. 3898 of 1998, decided on 13.8.19.98). In this case there was termination of service on the ground of irregular appointments. No material was disclosed by authority to indicate appointment of employee was irregular or illegal. The order of termination was without holding proper and thorough investigation. Moreover, the employee was not given opportunity of hearing. Held that the order terminating the services was liable to be set aside.
19A. The learned Counsel for the respondents has stated in reply that they have not over looked the provisions contained in Article 311 of the Constitution of India and their action in removing the applicants from service was quite in order. Clause (2) of Article 311 of the Constitution of India which states that no person shall be removed or reduced in rank except after enquiry in which he has been informed of the charges against him and given 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 evidence adduced during such enquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. Besides, the respondents’ Counsel has cited various judicial pronouncements of various Courts to support their case.
(i) Union of India v. Anand Kumar Pandey, (supra). There was cancellation of test of non-technical category in Eastern Railway for adopting unfair means by the candidates in the written examination. It was held that the selection by railway authorities even without affording opportunity to candidates is proper and principles of natural justice are not violated.
(ii) State of U.P. v. Kaushal Kishore, (1991) 1 SCC 697=1991(2) SLJ 96 (SC). It was held that where termination of service of senior is affected for unsuitability, on assessment of work in terms of contract of service and the service rules by retaining the juniors, there is no violation of Article 14 and 16 of the Constitution of India in such situation. Held, such an order was valid and not punitive so as to attract Article 311 (2) of the Constitution of India.
(iii) Union of India v. Chakradhar, (2002) 3 SCC 146=2002(2) SLJ 275 (SC). Panel of select list or waiting list of appointment. Cancellation thereof, on the ground of illegalities and irregularities in conducting the selection, it was held individual notice to candidates were not necessary where the mischief in conducting the selection was so widespread and all pervasive affecting the result, that it was difficult to identify the person unlawfully benefited or wrongfully deprived of selection. It was held that the whole selection could be cancelled without issuing any show cause notice.
(iv) Jitendra Pal v. Union of India (Civil Appeal No. 1421 of 1995) Supreme Court. In this case appointment of 16 persons of different categories such as Assistant Station Master, Skilled Fitter, Goods Clerk, Trains Clerk etc. had been made by practicing fraud and as such their appointments had been cancelled, where offer had been issued offer was withdrawn and training had been withdrawn where the applicants were undergoing the training and no appointment had been made. The Court while examining the material on record, came to the conclusion that a forged panel came into existence which was the result of deep rooted manipulation and conspiracy by some vested persons and therefore, no rights can be said to have accrued to these applicants. It was held that no infirmity was found with the impugned judgment requiring interference under Article 136 of the Constitution of India.
(v) The respondents have also cited a decision of this Bench of the Tribunal in O.A. No. 955/93 dated 1.12.96 in which the applicant who was working as Dakpal, was removed from service. It was held that the decision relied upon by the respondents’ Counsel goes to show that the principles of natural justice is not to be applied as a straight jacket formula. It has to be applied with discription.
20. We have heard the learned Counsel for the parties and we have also (sic) gone through all the facts of the case and record which are available on the file. We had asked the learned Counsel for respondents Shri A.K. Chaturvedi to produce before us the copies of the letters dated 24.8.95, 12.12.95, 9.1.96, 10.1.96, 11.1.96 and 27.12.96 (in the case of O.A. No 124/2000) and similar letters of other applicants but he failed to produce before us even a single letter. Ultimately, he agreed that all these letters were fraudulently prepared and in fact the services of the applicants started from the date they joined at C&W Shop Northern Railway Alambagh, Lucknow. It was greatness on the part of the learned Counsel for the respondents that he agreed that there was definitely connivance of the railway employees along with applicants and may be there are some touts, who got the applicants in touch with those corrupt railway employees. Since the case of the applicants was already there that they had joined the services of the railways for the first time at the C&W Shop Alambagh Lucknow and they have no knowledge whatsoever of the earlier alleged letters mentioned by the respondents in the termination letter dated 31.12.99 issued to the applicants (in the case of O.A.124/2000), the version of the applicants as well as the respondents on this point co-incides that all these applicants had started their employment in the railways from the date they joined the service at the C&W Shop Alambagh Lucknow and 6 letters issued on various dates as mentioned in the termination order by the respondents were nothing but fake. The involvement of the railway employees has not been denied by the learned Counsel for the respondents in this whole episode. However, on further enquiry, the learned Counsel for the respondents admitted that no enquiry was made to identify the people who were involved in this racket. He however, stated that it is for the C.B.I. to investigate this matter and they are still continuing with their job in this regard.
21. The learned Counsel for the respondents had mentioned Article 311 of the Constitution of India in his defence. It is therefore, necessary to discuss the provisions contained in Article 311 of the Constitution of India which reads as under:
"311. Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or a State (1)*** 2. No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges xxx xxx xxx 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 inquiry; or (c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
A bare perusal of the situations and contingencies in which a disciplinary inquiry affording a reasonable opportunity of being heard before imposing the enumerated penalty can be dispensed with will clearly show that the power is not given to dismiss, remove or reduce in rank the delinquent worker but the power conferred by the aforementioned provision is to dispense with an inquiry before imposing major penalty. Sub-article (3) of Article 311 provides that “if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry 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”. Now three situations contemplated by the provision are such that holding of an inquiry would be counterproductive. Where the penalty of dismissal, removal or reduction in rank is to be imposed on the ground of a conduct which has led to his conviction on a criminal charge, obviously, the inquiry will be superfluous or a repeat performance because a judicial Tribunal has held the charges proved. But where the authority empowered to impose the penalty is satisfied for reasons to be recorded by it in writing to dispense with an inquiry, the reasons so recorded must ex facie show that it was not reasonably practicable to hold a disciplinary inquiry. Similarly, where in the interest of security of the State, the President or the Governor, as the case may be, is satisfied that it is not expedient to hold such inquiry, the same can be dispensed with. In the last mentioned situation the highest executive of the country, the President and the highest executive of the State, the Governor alone is entitled to dispense with the inquiry, if he is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. Dispensing with the inquiry in the first and third situation does not present a difficulty because in the first situation there is a conviction by a criminal court and in the third situation the highest executive in the Centre and the State is empowered to dispense with the inquiry. It is in the second fact situation that one must evaluate the width of discretionary power to dispense with inquiry. The Appointing Authority is invested with power to dispense with inquiry. And in case of persons belonging to Class IV services, the Appointing Authority may be someone in the lower administrative hierarchy and such an officer is invested with such draconian powers. Where such a power is conferred on an authority entitled to impose penalty of dismissal or removal or reduction in rank, before it can dispense with the inquiry, it must be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry. Power to dispense with inquiry is conferred for a purpose and to effectuate the purpose power can be exercised. But power is hedged in with a condition of setting down reasons in writing why power is exercised. Obviously therefore, the reasons which would permit exercise of power must be such as would clearly spell out that the inquiry if held would be counter productive. The duty to specify by reasons the satisfaction for holding that the inquiry was not reasonably practicable cannot be dispensed with. The reasons must be germane to the issue and would be subject to a limited judicial review. Undoubtedly Sub-article (3) of Article 311 provides that the decision of the authority in this behalf is final. This only means that the Court cannot inquire into adequacy or sufficiency of reasons. But if the reason ex facie are not germane to the issue namely of dispensing with inquiry the Court in a petition for a writ of certiorari can always examine reasons ex facie and if they are not germane to the issue record a finding that the prerequisite for exercise of power having not been satisfied, the exercise of power was bad or without jurisdiction. If the Court is satisfied that the reasons which prompted the concerned authority to record a finding that it was not reasonably practicable to hold the inquiry, obviously the satisfaction would be a veneer to dispense with the inquiry and the Court may reject the same. What is obligatory is to specify the reasons for the satisfaction of the authority that it was not reasonably practicable to hold such an inquiry. Once the reasons are specified and are certainly subject to limited judicial review as in a writ for certiorari, the Court would examine whether the reasons were germane to the issue or was merely a cloak, device or a pretence to dispense with the inquiry and to impose the penalty. Let it not be forgotten that is laid down by a catena of decisions that where principles of natural justice namely a reasonable opportunity to present one’s case and controvert the adverse evidence must have full play. Thus, even where the Constitution permits dispensing with the inquiry, a safeguard is introduced that the concerned authority must specify reasons for its decision why it was not reasonably practicable to hold the inquiry.
21A. In our opinion, therefore, when the decision of the employer to dispense with the enquiry is questioned the employer must be in a position to satisfy the Court that holding of the enquiry would have been either counter productive or would have caused irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered. This minimum requirement cannot and should not be dispensed with to control void discretionary power and to guard against drastic power to inflict such a heavy punishment of denial of livelihood and cause stigma without giving slightest opportunity to the employee to controvert the allegations. However, no such steps about holding of enquiry or dispensing with the same were taken up by the respondents in the present case.
22. In the case decided by the Allahabad High Court as referred to by the learned Counsel for the applicant in the case of Ganesh Shanker Mishra v. State of U.P., Writ Petition No. 3506/98 and Raja Ram Pandey v. State of U.P. (supra), it was held by Their Lordships that if the enquiry officer proposed penalty of dismissal, removal or reduction in rank, copy of enquiry report should be supplied to the delinquent employee calling upon his explanation within a certain period. Thereafter, after considering the report and other material the explanation of the delinquent employee, the order of punishment could be issued by the punishing authority. In the present case however, we find that the respondent authorities hardly took any time to initiate disciplinary proceedings and to conclude their action by passing order of dismissal from service against the applicants . Moreover, the applicants were not supplied the charge sheet and they were not given opportunity to file their explanation. No enquiry in our knowledge or notice, was held at all by the enquiry officer, no show cause notice was admittedly issued or served upon the applicant against the proposed punishment and their services were terminated wholly arbitrarily and illegally. The disciplinary proceedings rushed through in violation of principles of natural justice and the provisions of service rules and in contravention of relevant provisions of Constitution of India and in utter lurch of principles of natural justice as well as in violation of decision of the Apex Court and as such the impugned orders are liable to be held illegal and non est in the eyes of law. Besides, at the cost of repetition, it may be stated that Rule 55 and 55 A of the CCA Rules provided procedure for taking disciplinary action against the delinquent railway servants. The said rules are fully applicable in the present cases we have therefore, no hesitation in holding that the respondents have completely failed to avail the constitutional and statutory provisions, rules and regulations and have arbitrarily passed the impugned orders against the applicants which are non est and unenforceable in law and are liable to be quashed.
23. In our view, the fact cannot be denied that the action taken by the respondents would cast stigma on the applicants for their future recruitment as they had secured employment on fictitious grounds and therefore, principles of natural justice require that they should be given reasonable opportunity of being heard and then only proper action with reasons in support thereof need be taken. The impugned orders terminating the services of all the applicants in all O.As. are liable to be set aside and the same are quashed.
24. It would, therefore, be open to the respondents to issue notice to all the applicants within a period of six weeks from the date of receipt of this judgment and consider the cases of the applicants and then pass appropriate orders with reasons in support thereof. The said notices shall be given to all the applicants stating grounds on which they seek to dismiss them and the applicants are directed to submit their side and objections with material in support thereof within one month thereof. After receipt of replies from the applicants, the respondent authorities are directed to consider their objections carefully and pass appropriate orders within six weeks thereafter and communicate the same to all the applicants under registered post acknowledgement due. The order, as aforesaid should contain concise reasons in support of the conclusions arrived at by the respondents. As regards the past wages of such applicants, the same cannot be given to them on the well settled principle of ‘No work no pay’ as per decisions of the Hon. Apex Court in the cases of R. Rajender Singh v. Depot Manager, A.P. SRTC, 2000 SCC( L&S) 101 and in the case of Bank of India v. T.S. Kelawala, (1990) 4 SCC 744=1990(3) SLJ 1 (SC), and Rajasthan State Road Transport Corporation v. Bhagyomal, 1994 SCC (L&S) 648.
25. Accordingly, we hold that it will be open for the contesting respondents to pass orders as aforesaid after following the procedure prescribed under law and in the light of the observations given above.
26. In the result, all the O.As. are allowed with no order as to costs.
Smt. Meera Chhibber, Member (J)
1. I have read the order passed by Hon’ble Mr. S.K. Agarwal, Member (A). Even though I agree with Hon’ble Mr. Agarwal as far as the ultimate conclusion is concerned but for different reasons, therefore, I am passing separate order giving my own reasons.
2. These bunch of O.As. are filed by those Helper/Khalasis whose services were terminated by the respondents on the ground that they had produced fake letters seeking transfer from other places viz. Kama, Ludhiyana, Jodhpur, Varanasi, Firozpur, Faizabad, Sialdah, Ambala, Sultanpur etc. to CDO, Lucknow. On the basis of such fake transfer letters they were allowed joining at Alambagh Lucknow w.e.f. different dates (in the lead case of Sher Singh in O.A. No. 124/2000 it was 11.1.1996) treating them to be bonafide Railway Employees. However, later it transpired that these persons had produced fake letters as they were neither employed in there present divisions nor they were spared to join at Lucknow. Accordingly respondents cancelled the letters by which they were allowed to join and they were terminated with immediate effect as they were not Railway Employees but had joined by fraudulent means.
3. The short point raised by Dr. Nigam, Counsel for the applicants in these cases is that once applicants were given joining as Khalasis by the respondents, sent for training, given further promotion as Helper Khalasis also and were allowed to work for years together they acquired a right therefore, their services could not have been terminated without following due process of law specially when stigma is being attached by saying that applicants had secured appointment by fraudulent means. He also relied on Railway Servants (Discipline and Appeal) Rules to state that laid down procedure had to be followed even if they felt appointment was taken by fraudulent means. In support of his arguments, he relied on the following judgments:-
(i) Sharawan Kumar Jha and Ors. v. Ram Sewak Sharma, AIR 1991 SC 309. (ii) Director General of Police and Ors. v. Mrityunjoy Sarkar and Ors., (1996) 8 SCC 280. (iii) Nepal Singh v. State of U.P, AIR 1985 SC 84. (iv) Allahabad High Court Writ Petition No. 5276/97, Shivanand Singh and Ors. v. State of U.P. (unreported) (v) Allahabad High Court Regional Manager, Region III, State Bank of India v. Lakshmi Nath Mehrotra and Anr., (1997) 2 UPLBEC1092. (vi) Shridhar v. Nagar Palika Jaunpur and Ors., (1990) 1 UPLBEC 1 = 1990(1) SLJ 85 (SC). (vii) Lucknow Bench of Allahabad High Court in the case of Raja Ram Pandey and Ors., W.P. No. 3544 of 98 and 3506 of 1998. (viii) Allahabad High Court (unreported) in C.M. Pandey v. State of U.P. and Anr.. (ix) Allahabad High Court in the case of Govind Narain and Ors. v. Union of India, WP No. 11003, decided on 21.3.1984. (x) Allahabad High Court in Virendra Prasad Singh v. State of U.P., 1999 All. LJ 131, WP No. 3898 of 1998, decided on 13.8.98.
4. Respondents Counsel on the other hand submitted that there are two modes of appointment as Khalasi under the rules. It could either be by way of direct recruitment or regularisation by way of screening in case of Casual Labour/substitute. In the instant case, admittedly, as per applicant’s own averment, they were not regularised after screening but were given fresh appointment yet none of the applicants have produced any appointment letter which itself shows that they were not appointed in accordance with law therefore they have no right to continue in service. Since their appointment itself was void, they cannot seek protection either under the Railway Servants (D&A) Rules as they are not Railway Servants nor under Article 311 of the Constitution.
5. Even otherwise respondent’s Counsel submitted that in these circumstances, there is no question of screening because there is nothing more applicants can say in their defence as admittedly, none of them has an appointment letter, therefore, it would be a futile exercise to afford them an opportunity. He further submitted that they have not been terminated on the ground of misconduct therefore, there is no need to follow the procedure laid down in rules. On the contrary they have been terminated as they had gained entry in Railways by illegal means. He also submitted that Hon’ble Supreme Court has repeatedly held that Courts should not quash the termination in a mechanical manner simply on the ground of violation of principles of natural justice but Courts should see as to what prejudice has been caused to the persons and whether they have any right to claim protection of P.N.J. in given circumstances. He relied on the following judgments in support of his arguments:-
(i) 1971 Vol.II SCC 410, State of Maharashtra v. Lok Shikshan Sansthan. (ii) 1992 Vol. 2 SCC (sic), Karnataka Public Service Commission v. B.M. Vijay Shankar. (iii) 1993 Vol. 4 SCC 727=1993(3) SLJ 193 (SC), Managing Director ECIL Hyderabad v. B. Karunakaran and Ors (iv) 1994 Supple. Vol. 2 SCC 468, State Bank of India v. S.S. Kaushal (v) AIR 1995 SC 338=1995(1) SLJ 118, Union of India v. Anand Kumar Pandey. (vi) AIR 1996 SC 1175,Gursharan Singh v. New Delhi Municipal Committee.
6. We had heard both the Counsel and had perused the pleadings as well as judgments. Perusal of these judgments would show that judgments are in favour as well as against both the sides. There is no straight jacket formula in these kind of cases as each case has ultimately to be decided on the given facts of the case therefore, these cases are being decided on the facts before us, of course keeping in view the principles laid down by the Hon’ble Supreme Court. Before I deal with the merits of the case, it would be relevant to state that in some OAs respondents had annexed the letters as given by the applicant seeking their transfer to Lucknow but all the letters were not annexed as according to respondents, the documents were seized by the CBI who are investigating the matter. He produced the original letter of seizire to show that the documents were not in their possession.
7. Counsel for the respondents also admitted that so far Railways have not held any enquiry to probe the involvement of its own officers even though it is a case where involvement of officers cannot be ruled out.
8. It is relevant to mention here that as per applicant’s own averments, none of the applicants have got any appointment letter which itself shows that applicants appointment cannot be said to be an appointment as per law as neither they have shown any advertisement showing vacancies and calling applications nor have they undergone any selection process nor they have any appointment letter so definitely their appointments is not as per the accepted mode in accordance with rules in any case.
9. In these circumstances, the question that arises for consideration is whether applicants can claim the protection or procedure enumerated in Railway Servants (Discipline and Appeal) Rules to be followed before terminating their services. In my considered view since applicants have not been able to show that they were appointed in Railways in accordance with rules, they cannot claim protection under Railway Servants (Disciplne and Appeal) Rules because that would amount to giving premium to those, who have gained entry in Railways by an unknown methods, not permitted by rules. If it is encouraged it would amount to recognising those who have gained back door entry, Therefore, this contention of the applicant’s Counsel is rejected.
10. Even though applicants are not entitled to protection under the Railway Servants (Discipline and Appeal) Rules however since the applicants were admittedly allowed to join at Lucknow by an order said to have been issued by proper authority and were given promotion also by competent authority. They had also drawn salary from 1996 and were given provident fund Account Number and their fund was also being deducted, it surely shows that the entire blame cannot be put on the applicants alone because transfer itself involves a process which requires official correspondence between two divisions. According to the respondents, applicants produced certain fake letters, on the basis of which, they were allowed transfer to Lucknow division but they have forgotten to plug the potholes in the said story, I am rather surprised as to why no effort was made by the respondents to hold an in house enquiry to find out the truth. After all it is not a case of one individual, there are as many as 125 persons before us in this batch and we are informed there are many more such cases, It goes without saying that inter-Divisional transfer can be effected only through official correspondence and it is not possible at the mere asking of an individual as it involves full process including correspondence between both the Divisions at DRM level and even after transfer is permitted by Lucknow Division, they would have written letter to the Division from where applicants are supposed to have sought transfer. Then their parent Department would be required to relieve them, send their names to new division, send their service books and last pay certificates etc. as without these documents, their pay at Lucknow Division could not have been fixed or disbursed, obviously all these documents could not have been prepared by applicants at their own level without the help of some officers working in the respondent’s office. A very moot question arise, why respondents have not tried to expose those officers who were involved in this episode. After all from the facts, it is clear that there is a big racket giving rise to these kind of appointments and the least that was expected from G.M. was to expose such racket to that it does not reoccur. Simply terminating such persons is not the solution. Solution lies in busting such racket otherwise after terminating these persons, the same process would be started all over again so it is important that the G.M. sets his own house also right, therefore, I expect that respondent No. 1 would at least now try to find out who arc the officers involved in this racket and take appropriate action against them. This action would, however, be independent of these cases.
11. Coming back to the point whether in these circumstances any show cause notice is required to be given or not. I feel since, applicants had already worked for 4 to 5 years with the respondents and had been given further promotion also, the least that was required of respondents was to give show cause notice to the applicants so that they could at least give their version/defence to explain as to how they were appointed. In the instant case, no show cause notice was given to the applicant before terminating their services. Moreover the tenor of termination order is such, which casts total blame on applicants for having joined Railways fraudulently. The termination order therefore, gets vitiated as it is violative of principles of natural justice Hon’ble Supreme Court has repeatedly held that any order which has civil consequences cannot be passed without giving show cause notice to the person concerned. I, therefore, quash the termination order. However, since termination orders are quashed due to an irregularity for not having issued show cause notice, applicant would not be entitled to back wages. The respondents would be at liberty to give show cause notice to applicants within 6 weeks from the date of receipt of a copy of this order calling upon them to explain within one month as to how they were appointed, who asked them to join and who is their acquaintee as stated in the OAs. After they give reply to the show cause notice within the stipulated period, it would be open to the respondents to pass appropriate speaking orders in accordance with law within 6 weeks thereafter under intimation to the applicants. Till such lime this exercise is completed, applicants shall be kept under suspension.
12. In view of the above discussion, the O.As. are allowed with no order as to costs.