Judgment:
A.K. Sikri, J.
1. Repeated attempts of the petitioner herein to scale the wall have failed. This writ petition is filed against judgment dated 5.7.2006 passed by the Tribunal which was fourth round of litigation. In this fifth attempt, whether the petitioner is able to succeed in getting the relief in which he failed up to now? If we have to begin this judgment with an answer to this question, our answer is emphatic No. The outcome of the writ petition which we have disclosed at the very outset is followed by the detailed discussion as under:
The petitioner was appointed as Telephone Operator under Divisional Railway Manager's Office Northern Railways and at relevant time working at its State Entry Road, New Delhi Office. On 1.12.1999 he was arrested for violating the provisions of Section 145 and 180 of the Indian Railways Act. He was produced before Railway Magistrate, New Delhi and was sent to judicial custody. On 15.12.1999, when he was produced before the Railway Magistrate again he pleaded guilty to the charge. A fine of Rs. 200/- was imposed upon him and in default it was directed that he would undergo a simple imprisonment of 15 days. The petitioner defaulted in depositing the fine. Since he had already spent 15 days in judicial custody the said period was treated as simple imprisonment already undergone and he was accordingly set free. Sections 145 and 180 under which he was charged read as under:
Section 145. Drunkenness or nuisance - If any person in any railway carriage or upon any part of a railway-
(a) is in a state of intoxication; or
(b) commits any nuisance or act of indecency or uses abusive or obscene language; or
(c) willfully or without excuse interferes with any amenity provided by the railway administration so as to affect the comfortable travel of any passenger,
he may be removed from the railway by any railway servant and shall, in addition to the forfeiture of his pass or ticket, be punishable with imprisonment which may extend to six months and with fine which may extend to five hundred rupees:
Provided that in the absence of special and adequate reasons to the contract to be mentioned in the judgment of the court, such punishment shall not be less than -
(a) a fine of one hundred rupees in the case of conviction for the first offence; and
(b) imprisonment of one month and a fine of two hundred and fifty rupees, in the case of conviction for second or subsequent offence.
Section 180. Arrest of persons likely to abscond etc. (1) If any person who commits any offence under this Act, other than an offence mentioned in Section 179, or is liable to pay any excess charge or other sum demanded under Section 138, fails or refuses to give his name and address or there is reason to believe that the name and address given by him are fictitious or that he will abscond, any railway servant authorised in this behalf or any police officer not below the rank of a head constable may arrest him without warrant or written authority.
(2) The railway servant or the police officer may call to his aid any other person to effect the arrest under Sub-section (1).
(3) Any person arrested under this section shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate unless he is released earlier on giving bail or if his true name and address are ascertained on executing a bond without sureties for his appearance before the Magistrate having jurisdiction to try him for the offence.
(4) The provisions of Chapter XXIII of the Code of Criminal Procedure, 1973, shall so far as may be, apply to the giving of bail and the execution of bonds under this section.
2. One can make out from the above that the allegations against the petitioner were that when he was arrested, he was under the influence of liquor etc. while on duty. He had confessed to this charge by pleading guilty.
3. Subsequently the respondent served a show cause notice dated 31.8.2000 under Rule 14(1) of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as `the Rules' for short) stating therein that he was convicted by the Court of Law on an aforesaid criminal charge in which he was imprisoned for 15 days and this conduct of the petitioner which led to the conviction was treated serious which rendered his further retention in public service undesirable. A provisional conclusion was thus made that he was not a fit person to be retained in services and, thereforee, show cause notice was given under Rule 14(1) of the Rules as to why penalty of removal from service be not imposed upon him. The petitioner submitted his reply to the said show cause notice in which his Explanationn was that on 1.12.99 while he was going to duty he met with a minor accident and his colleagues gave him some brandy to provide him a little stimulation to go to his home. He also stated that when he was talking to his colleagues his tongue was little staggering in conversation, as a result of which some of his colleagues issued a memo to Railway Protection Force (RPF) staff because of which he was arrested and produced before the Magistrate. The exact words in which he described this incident in his reply to show cause notice are extracted below:
a) That on 1-12-99 while I was going to duty I met with minor accident and to my misfortune a colleague of mine gave me little brandy to provide me a little stimulation to go to my home.
b) That while I talking to my colleagues, in this regard my tongue was little staggering in my conversation, as a result of which some of my colleagues issued a memo to RPF staff and what happened afterwards, is known.
Sir, I may submit once again that whatever had happened was neither do not deliberate nor under normal circumstances, but under a different situation which I agree should not have happened. I assure you, sir, that nothing like this shall ever happen in future under any circumstances.
4. It is clear from the above that the petitioner had admitted that he was under the influence of liquor and was not coherent while talking to his colleagues. In fact it was also admitted that he had consumed alcoholic substance which created the aforesaid situation though his Explanationn was that it was in the form of brandy which was given because he met with an accident.
5. The Explanationn was not found satisfactory and vide orders dated 9th/14th November,2000 he was inflicted with the punishment of removal from the service. His statutory appeal was also rejected on 19.4.2001. Various rounds of legal battle commenced, details of which may be noted below:
A. First application filed under Section 19 of the Administrative Tribunal Act was registered as O.A. No. 1897/2001. In this, plea was raised by the petitioner that the Appellate Authority had not made any attempt to discuss various issues raised in the appeal. This OA was disposed of vide orders dated 31.7.2001 accepting the aforesaid plea and setting aside the Appellate Order with liberty to the Appellate Authority to reconsider the said appeal and pass a speaking and reasoned order.
Appellate Authority passed fresh order dated 16.10.2001 rejecting the appeal and maintaining the penalty. The Revision Petition filed there against was also dismissed on 31.12.2003
B. Second O.A. No. 111/2002 was filed by the petitioner. It was, however, dismissed as withdrawn vide orders dated 14.1.2002. While dismissing the OA as withdrawn, no liberty to re-agitate the matter was sought or granted.
C. The petitioner thereafter filed OA.1947/2002 which was rejected vide orders dated 16.9.2003 on the ground that while withdrawing the OA.111/2002, no liberty to re-agitate the matter was sought and, thereforee, said OA was barred on the principles of constructive rest judicata. However, permission to file the Revision Petition before the Revisionary Authority was granted. The petitioner filed R.A.309/2003 seeking review of orders dated 16.9.2003 which was also rejected on 13.11.2003.
D. Notwithstanding all these aforesaid rejections the petitioner filed OA.934/2004 which has been dismissed vide detailed judgment dated 5.7.2006 against which present application is preferred. A perusal of the impugned judgment would indicate that the respondents herein had again pressed into service the principles of rest judicata and reliance was placed on the judgment of the Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. : [1987]1SCR200 wherein it has been held that the principle underlying Rule 1 of Order XXIII CPC should be extended even to writ petitions in the interests of administration of justice on the ground of public policy. The respondents had also raised another preliminary objection, namely, suppression and concealment of the fact that factum of review was not disclosed in the OA. No. 1947/2002 and, thereforee, the OA suffered from suppression of material facts. The learned Tribunal accepted both these submissions. Still the Tribunal went into the merits of the controversy and found that the petitioner had no case on merits as well.
Re: rest Judicata
6. Before we address this issue, we may reproduce the relevant observation from the case of Sarjuja Transport Service (supra):
The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of rest judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to rest judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
7. In fact relying upon this judgment, OA. No. 1947/2002 was dismissed. The said judgment of the Tribunal became final. Inasmuch as after the dismissal of review petition, no further steps were taken by the petitioner to challenge that judgment.
8. However, at the same time we find that while dismissing the OA on the ground of constructive rest judicata, the Tribunal also granted the petitioner liberty to file a Revision Petition in the following words:
We have considered rival contentions of parties and given thoughtful consideration to same as well as carefully analyzed the judgments relied upon. In our considered view, applicant has not approached this Tribunal with clean hands and, thereforee, he deserves no sympathy and leniency. On our pointed query raised to applicant about authenticity of his representation dated 18-12-1999, its factum had not been denied. Neither was it suggested that its contents were factually incorrect. Obviously, in view of the fact that applicant had been in judicial custody in Delhi from 1st December to 15th December, 1999, he could not have been present at 'Kurukshetra', his Uncle's house, as stated by him in the aforesaid representation. Applicant has not only made a false representation before concerned authority, but suppressed material facts from this Tribunal, which was revealed only when Respondents filed their reply annexing a copy of said representation.
9. It is not in dispute that thereafter the petitioner had filed the Revision Petition and it was rejected by the Revisionary Authority. According to the petitioner it provided fresh cause of action to the petitioner. The Tribunal in the impugned judgment has, however, held that giving opportunity to the petitioner to file Revision Petition would not inject a fresh cause of action. To this extent the view of the Tribunal may not be correct. The petitioner may be right in his submission that once the Revision Petition is decided on merits after the liberty was granted by the Tribunal on the earlier occasion, the petitioner would get right to challenge the said order passed in revision. However, we make it clear that in that case the only limited cause of action would be to challenge the order in the Revision Petition alone.
On Merits
10. Be that as it may, since the merits of the case had also been gone into by the Tribunal, we also heard counsel for the parties on this aspect. Before giving our analyses, we may note the mind of the Tribunal on this aspect as disclosed in paras 12 and 13 of the judgment, which read as under:
12. We may note that in Union of India v. Tulsi Ram Patel : (1985)IILLJ206SC , a Constitution Bench judgment, the Hon'ble Supreme Court considered the scope of interpretation of Articles 309, 310 & 311 of the Constitution. At the outset we may note that the language employed under Rule 14 of Railway Servants (D&A;) Rules, 1968 is identical with that of Rule 19 of the Central Civil Services (D&A;) Rules, 1965. Articles 311(2) of the Constitution is the foundation of the above Rules. Under Rule 14(i) of the Rules, 1968, when a disciplinary authority comes to know that a Govt. servant has been convicted on a criminal charge, it must consider whether his conduct, which has led to his conviction, was as such warrants imposition of a penalty and if so, what that penalty should be. For this purpose, it will have to peruse judgment of the criminal court and consider all facts and circumstances of the case and various factors as detailed in Challappan's case : (1976)ILLJ68SC . This cannot be done ex parte and has to be done only after affording an opportunity of hearing by way of representation under first proviso of the said Rules. A Government servant, who is aggrieved by such penalty imposed can agitate in appeal, revision or review as the case may be, that the penalty was too severe or excessive and not warranted by facts and circumstances of the case.
13. Keeping these principles in view, if we examine the facts of present case, we find that applicant was not only afforded an opportunity of hearing but was also allowed to file his appeal. His conduct had also been noticed in specific. The contention raised that there was simple imposition of a fine of Rs. 200/- without any conviction cannot be accepted for simple reason that term 'conviction' includes imposition of fine and/or imprisonment. It is undisputed fact that applicant was punished under Section 180 of the Indian Railways Act, 1989. Section 145 deals with offence committed by any person including a Railway servant under influence of liquor as well as for nuisance. Section 180 deals with arrest of person likely to abscond etc. It is undisputed that no appeal had been filed against the conviction. Shri Mainee, learned Counsel, however, raised the plea that order passed by LD. Railway Magistrate suffered from illegalities as the safeguards provided and as observed by the Hon'ble Supreme Court in Pawan Kumar (supra) had not been observed. We may observe at once that we are not dealing with the correctness or otherwise of the conviction ordered and punishment imposed by the Ld. Railway Magistrate. The observations made therein as to what procedure is required to be followed in dealing with such proceedings is alien to present proceedings. In our considered view, the said judgment is inapplicable inasmuch as it has not been shown to us that the observations made under para 14 therein had been translated into certain legislation by the Parliament.
11. We are in agreement with the aforesaid view taken by the Tribunal. As already noted above, the charge against the petitioner in the criminal case was that he was under the influence of liquor. He was also charged for creating nuisance. What is important is to note that the petitioner had pleaded guilty to this charge which means that he accepted that while in duty he was under the influence of liquor and he had created nuisance as well. Thus in judicial proceedings when guilty is accepted, the issuance of show cause under Rule 14(1) of the Rules which deals with special procedure that can be adopted on the basis of conviction on a criminal charge was rightly followed. We have already pointed out above that even in reply to this show cause notice the petitioner virtually accepted the charge though gave his Explanationn which hardly inspires any confidence and is clearly an afterthought.
12. Learned Counsel for the petitioner had attempted to draw sustenance from the two judgments - one of Punjab and Haryana High Court and other of Guwahati High Court. Hari Ram v. Dakshin Haryana Bijli Vitaran Nigam Ltd and Anr. reported in 2006 (2) ATJ 298 is the judgment of Punjab and Haryana High Court. In this case an employee of State Electricity Board was dismissed from service on account of conviction on criminal case. The Court held that conviction on the basis of said criminal case was not automatic. We do not dispute this proposition. However, as noted above, in the present case after the conviction, show cause notice was issued under Rule-14 of the Railway Servants (Discipline and Appeal) Rules, 1968 and, thereforee, procedure as applicable was duly followed. We extract below the relevant portion of Rule 14:
14. Special procedure in certain cases
Notwithstanding anything contained in Rule 9 to 13:
(i) where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) x x x x
(iii) x x x x
Provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before only an order is made in a case falling under Clause (i).
Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule.
13. The Disciplinary Authority had applied his mind in the instant case. thereforee, the aforesaid judgment of the Punjab and Haryana High Court would not come to the rescue of the petitioner.
14. The judgment of Guwahati High Court is that of a Single Judge in the case of Pradhuman Singh v. Union of India and Ors. 2006 (7) SLR 647. That was a case where penalty of dismissal was given for overstaying leave by 28 days. The Court opined that mere fact that the petitioner belonged to disciplinary force (CRPF) in the said case cannot be sufficient to inflict a penalty of dismissal from the service for overstaying leave by 28 days that too, after he was sentenced to undergo 30 days of simple imprisonment on identical facts and allegations. Here the charge is much more serious. Furthermore the aforesaid opinion of the Guwahati High Court was having regard to the provisions of CRPF whereas in the present case action is taken under Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 which permits such a course of action. This authority is unable to provide any succor to the petitioner.
15. These are our reasons which have prompted us to dismiss this petition.