TMI Blog1986 (5) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... y Board was sustainable in law. We heard the parties and allowed the appeal by order dated March 13, 1986 directing the Railway Board to hear and decide the appeal afresh on merits in accordance with law in conformity with the requirements of r.22(2) of the Rules. We now proceed to give reasons therefor. The facts, the appellant Ram Chander, Shunter, Grade at Loco Shed Ghaziabad was inflicted the penalty of removal from service under r.6(viii) of the Railway Servants (Discipline Appeal) Rules, 1968 by order of the General Manager, Northern Railway dated August 24, 1971. The gravamen of the charge was that the appellant was guilty of misconduct in that he had October 1, 1969 at 7.30 p.m. assaulted his immediate superior Banarsi Das, Assistant Loco Foreman while he was returning after performing his duties. The immediate cause for the assault was that the appellant had on September 30, 1969 applied for medical leave for one day i.e. for October 1, 1969. On that day there was a shortage of Shunters, he accordingly asked Banarsi Das for the cancellation of leave and permit the appellant to resume his duties but Banarsi Das refused to cancel the leave. It is said that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty imposed is adequate, inadequate or severe ; and Pass orders - (i) confirming, enhancing, reducing or setting aside the penalty, or F (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case : The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India Ors., (C.A. No. 3165/81 decided on December 14, 1982) this Court, in somewhat similar circumstances, interpreting r.27(2) of the Central Civil Services (Classification, Control Appeal) Rules, 1965 which provision is in pari materia with r.22(2) of the Railway Servants (Discipline Appeal) rules, 1968, observed : It is clear upon the terms of r.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 non compliance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, the impugned order passed by the Railway Board is liable to be set aside. It was not the requirement of Art. 311(2) of the Constitution prior to the Constitution (Forty-Second Amendment) Act, 1976 or of the rules of natural justice, that in every case the appellate authority should in its order state its reasons except where the appellate authority disagreed with the findings of the disciplinary authority. In State of Madras v. A.R. Srinivasan, A.I.R. [1966] S.C. 1827 a Constitution Bench of this Court while repelling the contention that the impugned order by the State Government accepting the findings being in the nature of quasi-judicial proceedings was bad as it did not give reasons for accepting the findings of the Tribunal, observed as follows : In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order, imposing a penalty on the delinquent officer, we cannot overlook the fact that the discipline proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by report and the Public Service Commission is consulted where ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he omission to give reasons for the decision may not by itself be a sufficient ground for passing such order, relying on the test laid down by Subba Rao, J. in Madhya Pradesh Industries Ltd.. v. Union of India [1966] 1 S.C.R. 466. Ordinarily, the appellate or revisional authority shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons. D These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, r. 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under r. 27(2) of the Central Civil Services (Classification, Control Appeal) Rules, 1965. R. 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in r. 6 or enhancing any penalty imposed under the said rule, the appellate authority shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailway servant, it shall make an order imposing such penalty and it shall not be necessary to give railway servant any opportunity of making representation on the penalty proposed to be imposed : Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the railway servant. We may here mention that a corresponding change in the Central Civil Services (Classification, Control Appeal) Rules, 1965 has been brought by substituting r.15(4) taking away the procedural safeguard of making a representation at C the second stage i.e. before imposing punishment on the basis of the evidence at the inquiry. In Union of India Anr. v. Tulsiram Patel, [1985] 3 S.C.C. 398 a five-judge Bench by a majority of 4:1 held that where a departmental inquiry was wholly dispensed with in the three situations under the second proviso to Art. 311(2), the only right to make a representation on the proposed penalty which was to be found in c1.(2) of Art. 311 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not contemplated by law nor justified by the legislative history. In I.M. Lall's case, Lord Thankerton while interpreting the words ' a reasonable opportunity of showing cause against the action proposed to be taken in regard to him' Ln sub-s.(3) of s. 240 of the Government of India Act, 1935 speaking for the Judicial Committee of the Privy Council, observed : In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. (Emphasis supplied) That very distinguished Judge went on to say : A It is on that stage reached that the statute gives the civil servant the opportunity for which sub-s.(3) makes provision. And then added : Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Art. 311(2) so as to convert the protection into a constitutional safeguard. The legal consequence therefore was that : At the second stage, the delinquent Government servant was therefore entitled to contend - (a) that the inquiry at which the findings were arrived at was vitiated by a breach of the Principles of natural justice. (b) That the findings were not supported by the evidence in the proceedings, or that the evidence against him was not worthy of credence or that he was not guilty of any misconduct to merit and punishment at all. (c) That the punishment proposed could not be properly awarded on the findings arrived at, that is to say, the charges proved did not require the Particular punishment proposed to be awarded. After Parliament frustrated the attempt of the Government to delete the constitutional safeguard as evolved by this Court in Khem Chand's case following the principles laid down in the Privy Council decision in I.M. Lall's case by deletion of the words ' a reasonable opportunity of showing cause against the action proposed to be taken in regard to him' by the Constitution (Fifteenth Amendment) Act, 1963, it seems somew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the civil servant against the penalty proposed. me point taken was that in future some irresponsible Government might do way with rule 25 ignoring the assurance given to Parliament. Well, then, I told the representatives of the civil servants and other representatives of the INTUC who had come to see me to give me a draft which would make it quite clear that the representation against the penalty proposed would not include any right to insist on further hearing and further evidence being given. They gave me that draft which I have accepted with a slight modification. I, therefore, dispel any idea, if there is any, that there has been any-deviation from the ideals of democracy and preservation of the vital rights not only of civil servants but of the citizens. I hope we shall never deviate from that course because it-is our great strength and it is through the processes of democracy that we are functioning, not through the processes of fear or force. (Lok Sabha Debates, 3rd Series, Vol. XVIII, 1963, 4th Session, p. 13152-54). The Fifteenth Amendment, in fact, clarified the legal position under the existing law by requiring that opportunity must be given to the delinquent Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 311 would be the same except that it would not be necessary to give to a civil servant an opportunity to make representation with respect to the penalty proposed to be imposed on him. In such a case, a civil servant who has been dismissed, removed or reduced in rank by applying to his case one of the clauses of the second proviso to Art.311 (2) or the analogous Service Rule has two remedies available to him. These remedies are : (i) the appropriate departmental appeal provided for in the relevant Service Rules, and (ii) if still dissatisfied, invoking the Court's power of judicial review. In Satyavir Singh Ors. v. Union of India Ors., [1985] 4 S.C.C. 252 there is an attempt made to analyse the ratio of the majority decision in Tulsiram Patel's case and the nature of the remedies left to the civil servant at pp.276-281 of the report. If that be so, in a case governed by one of the clauses of the second proviso to Art. 311(2) or an analogous Service Rule, there is still all the more reason that in cases not governed by the second proviso, a civil servant subjected to disciplinary punishment of dismissal, removal or reduction in rank under cl. (2) of Art. 311 would have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel's case unequivocally lays down that the only stage at which a Government servant gets 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him' i.e. an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charge proved against him are not of such a character as to merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing of a departmental appeal. Such being the legal position, it is of utmost importance after the Forty-Second Amendment as interpreted by the majority in Tulsiram Patel's case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasize that reasoned decisions by tribunals, such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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