Paragraph numbers below are the court’s original numbering, recovered from the source text.
23. The .law laid down by this Court being clear and explicit, the question which would arise for our consideration is whether in then prevailing situation, what a reasonable man taking a reasonable view would have done.
24. The High Court in its judgment opined :- (i) That the statement of the disciplinary authority that "I am convinced that it is not reasonably practicable to hold an inquiry" is against the dicta laid down by c this Court in Tu/siram Patel (supra). (ii) In the absence of any reason, much less recorded, as has been mandated under the Rule, to show that ·it was not reasonably practicable to hold a disciplinary inquiry, we are of the opinion that the discretionary power was exercised for extraneous purpose to dismiss the delinquents and that the same is arbitrary and perverse since no reasonable person could form such an opinion on the given material and thus the impugned orders of dismissal are hit by malice also. The alleged incident and the impugned orders of dismissal were all dated 31.1.2004 which shows the haste in which the disciplinary authority has acted. (iii) While invoking the stringent extraordinary provisions like Rule 14(ii), principles of natural justice require every care to be taken by the concerned authorities. Any haste in invoking such stringent provisions, without even complying with the mandatory requirements of the provision, would make such decision of the disciplinary authority illegal, being an abuse of power conferred upon it. (iv) It can very well be held that the impugned orders of dismissal suffer from want of materials and in the absence of any material to substantiate the mere oral stand of the Department that holding an inquiry was not reasonably practicable, without offering any reasons, much less in writing, as mandated by law, the impugned orders of dismissal are liable to be quashed. (v) In the case in hand, since the authorities have invoked the extraordinary power under Rule 14(ii) dispensing with the inquiry, and further since the alleged incident was held to be not proved by the SOUTHERN RAILWAY OFFICERS ASSN. AND ANR. 451 v. UNION OF !NOIA AND ORS. [S.B. SINHA, J.] criminal court, after thorough trial, the appellate and revisional authorities ought to have considered the said aspect of acquittal while imposing the punishment. Therefore, we are of the view that the fact of acquittal is a circumstance to be considered while awarding punishment in this case.
25. We with respect are unable to agree therewith. The disciplinary authority in its order dated 31st January, 2004 categorically stated :- c (i) That the delinquent employees attempted to cause bodily harm to Shri S.M. Krishnan; created an ugly scene which brought a bad name to the railway ; officers who tried to protect Shri S.M. Krishnan were badly abused ; Shri S.M. Krishnan and his family were threatened to be killed if he goes to Chennai ; it was a pre-planned attempt as a handwritten poster was displayed in the workshop as well as at the railway station wherein it was stated that Shri S.M. Krishnan will die on 31.1.2004 and his cremation will be done at 1430 hours when train No.6128 leaves the railway station . (ii) That all of them have conspired and assaulted Shri S.M,. Krishnan as a result whereof he could not undertake the journey and had to go by road with escort. (iii) The formality of holding a disciplinary proceeding was dispensed with stating :- …. "You along with other associates threatened, intimidated and terrorized all the officers. The atmosphere of violence,- general indiscipline and insubordination is prevailing. In view of this situation I am convinced that it is not reasonably practicable to hold an enquiry." It was concluded :- ,k "I, therefore, in exercise of the powers conferred upon me under rule 14(ii) of RS (D&A) Rules, 1968, hereby dismiss you from Railway Service with effect from 31/1/2004 (A/ N). You are required to handover the railway property in your custody. You are also required to vacate the Railway quarters, if in occupation, within one month from the date on which a copy of this notice is delivered. You are hereby advised that under Rule 18 and 19 of the Railway Servants c (D&A) Rules 1968, you may prefer an appeal against these orders to CWM/GOC provided that : i. The appeal is preferred within a period of 45 days from the date on which a copy of this notice is delivered. ii. The appeal is to be preferred in your own name and presented to the authority to whom the appeal lies and does not contain any disrespectful and improper language."
26. An order of a disciplinary authority in a case of this E nature, as laid down by this Court in Tulsiram (supra), must be judged by a Court exercising power of judicial review by placing himself in his arm chair. The disciplinary authority was a man at the spot. He acted on the basis of a report made to him. He also knew about the written poster having been displayed. The F atmosphere which was prevailing in the workshop must be known to him-. Not only the disciplinary authority but also the appellate a_uthority, having regard to the materials brought on record, arrived at the said finding.
27. Submission of Mr. Ganguli that the appellate authority could not rely upon any other material may not be entirely correct. In terms of Rules 18 and 19 of the said Rules, the delinquent employees were entitled to prefer an appeal. The appellate authority was entitled to consider the entire fact situation. The appeal provides for a post-decisional hearing to SOUTHERN RAILWAY OFFICERS ASSN. AND ANR. 453 v, UNION OF INDIA AND ORS. [S.B. SINHA, J.] the employee concerned. All defences must have been taken by them. In Ram Chander v. Union of India and others, [ ( 1986) 3 SCC 103], this Court relying upon Tulsiram (supra) opined as under:- "In Satyavir Singh v. Union of India there is an attempt made to analyse the ratio dicidendi of the majority decision in Tulsiram Patel case and the nature of the remedies left to the civil servant at pp. 276-81 of the Report. If that be so, in a ca,se governed by one of the clauses of the second proviso to Article 311 (2) or an analogous service rule, there c is still all the more reason that in cases not governed by the second proviso, a civil servant subjelpted to disciplinary punishment of dismissgil, removal or reduction in rank under clause (2) of Article 311 would have these remedies left to him. Virtually this i? tantamount to a post-decisional ·>1 hearing," The appellate order, in our opinion, satisfies tne dicta laid down in Ram Chander (supra)
28. While, thus, considering as to whether there had been enough material before the disciplinary authc;ity for the purpose of arriving at its satisfaction that it was not reasonably practicable to hold departmental proceedings, the appellate authority, in our opinion, was entitled to consider the situation prevailing from the confidential reports submitted by other employees. They were not relied upon for the purpose of proving misconduct but for the purpose that in the situation, which was prevailing, whether it was reasonably practicable to hold an enquiry. There is no dispute that the protection accorded to an employee by reason of the constitutional G provision of mandate of recording of reasons is of great significance. Such reasons, in our opinion, in the instant case, have been recorded.
29. The High Court, in our opinion, was also not t;Orrect in opining that an immediate action, which was taken, was done A in haste. It was, in fact, a case where an immediate action was absolutely essential.
30. This Court in Ajit Kumar Nag v. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia and Ors [ (2005) 7 B SCC 764 ] noticed the dicta laid down in Tulsiram Patel (supra), which reads as under:- "not taking prompt action may also be construed by the trouble-makers as a sign of weakness on the part of the authorities and thus encourage them to step up their c activities or agitation. Where such prompt action is taken in order to prevent this happening, there is an element of deterrence in it but this is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creatioo of the authorities."
31. So far as the finding of the High Court that the orders of dismissal suffer from want of material, is concerned, the orders of the disciplin;:iry authority themselves disclose existence of sufficient materials. Before the statutory authorities, E the incident was not denied. Lodging of the first report was also not denied. The fact that one of the delinquent officials was arrested on the same day was not denied. Arrest of others after a period of two weeks also stood admitted. Display of handwritten poster both at the workshop and at the railway F station had also not been denied. We do not find that before the High Court the delinquent employees brought on record any material that the grounds stated in the orders of dismissal were wholly non-existent. No mala fide on the part of the disciplinary authority was attributed.
32. It is not the case of the delinquent employees that the disciplinary authority in passing the said order took into consideration any irrelevant fact not germane therefor or failed to take into consideration any relevant fact.
33. Acquittal in a criminal case by itself cannot be a ground SOUTHERN RAILWAY OFFICERS ASSN. AND ANR. v. UNION OF iNblA AND ORS. [S.S. SINHA, J.] -;i_ for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge. In Sahadeo Singh v. Union of India, ((2003) 9 SCC 75], this Court held:- "7. Learned counsel for the appellants, as stated above, strongly relied upon the judgment of this Court in the case c of Singasan Rabi Das. A perusal of this case shows that the observations of this Court in the said case do not apply to the facts of the present case. In that case, the Railways gave an excuse that it is not feasible or desirable to procure the witnesses because they were likely to suffer D personal humiliation and may become the targets of acts of violence. This opinion expressed in the said case was held to be not justified as could be seen from the said judgment because of lack of material produced by the Railways, hence, this Court proceeded on the basis that on facts of that case, the Railways were only trying to protect the witnesses and in fact there was no reasonable apprehension that the witnesses will not appear before the inquiry officer. That is not the case in these appeals, as noticed by us hereinabove. The three preliminary enquiries made on the spot, clearly established the fact that though people have witnessed the theft of rice bags in which incident these appellants are involved, they are not willing to come forward because they apprehend danger to their lives. The apprehension of danger to life in this appeal is not that of the inquiry officer but is that of the witnesses themselves. Therefore, we do not think the appellants can take advantage of the observations of this Court in the case of Singasan Rabi Das."
34. This Court upon perusal of the entire record satisfied A itself that the same was sufficient to dispense with the enquiry. . .r
35. We may also notice a decision of this Court in Prithipal Singh v. State of Punjab, [ (2006) 13 SCC 314] wherein the delinquent official was exonerated of the charges and the B departmental proceedings were dropped, but despite the same the department, taking recourse to clause (b) of the second proviso appended to clause (2) of Article 311 of the Constitution of India, dismissed the delinquent employee. It was in the aforementioned situation, this Court opined :- c "6. It is not in dispute that pursuant thereto or in furtherance of the said order dated 18-10-1988, the appellant was reinstated in service. Thereafter the departmental proceedings were held and therein the charges, having not been proved, were dropped. Once in the disciplinary proceedings the appellant was exonerated of the charges framed against him, the question of taking recourse to ,,,__ Clause (b) of the second proviso appended to Clause (2) of Article 311 of the Constitution of India did not and could not arise. It is unfortunate that although, the same had been duly noticed by the learned trial Judge, it failed to receive due attention of the appellate court as also of the High Court. The very purpose, for which the said provision was enacted, had lost its relevance once a departmental proceeding was held. The Director General of Police, while passing the order dated 5-2-1990, furthermore failed to take into consideration that in an appeal preferred by the delinquent from such an order it was obligatory on the part of the disciplinary authority to produce all records to show that there were enough materials before the disciplinary authority to arrive at a positive and categorical finding that in the departmental proceeding the witnesses were not -t- likely to depose. It was not done. Resultantly, the entire proceeding became vitiated in law." (See also Tarsem Singh v. State of Punjab, [ (2006) 13 H sec 581 J. SOUTHERN RAILWAY OFFICERS ASSN. AND ANR. 457 v. UNION OF INDIA AND ORS. [S.B. SINHA, J.] ·-i_
36. Regarding submission of the learned senior counsel for the respondents that the Union of India had waived its right to maintain special leave petition by undertaking to comply with the order of the High Court, reliance has been placed on Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker, [1989 Supp (2) sec 655]. That case related to a rent control matter. It refused to exercise its discretionary jurisdiction under Article 136 of the Constitution of India stating :- "It appears that the undertaking was affirmed on November 9, 1984 wherein it was stated that the appellant would c vacate and give vacant possession of the suit premises by 31-12-1985 i.e., to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court". This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year's time. We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filing the undertaking and taking the different stand, in applications under Article 136 of the Constitution. In that view of the matter the interim order is vacated and we direct that the appellant should hand over possession to the respondents forthwith."
37. The said judgment is not an authority for the proposition that a right of appeal can be waived only because an undertaking had been given to comply with the order. On the other hand in P.R. Deshpande v. Maruti Balaram Haibatti, ((1998) 6 SCC 507 ], a three Judge Bench of this Court held:- "11. A party to a lis can be asked to give an undertaking to the court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking, no court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional Jr remedy. If the order is reversed or modified by the superior court or even the same court on a review, the undertaking given by the party will automatically cease to operate. Merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and c operative. However, it is open to such superior court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the party concerned has given undertaking in the lower court to abide by the decree or order within the time fixed by that court."
38. For the reasons aforementioned the impugned judgment cannot be sustained. The same as well as the judgment of the Tribunal are set aside accordingly. The appeals are allowed. No costs. D.G. Appeals allowed. II