Prokash Gupta Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. the applicant, ex-fitter under scw/chitpur, has, by means of the present application, challenged the order dt. 21.2.94 passed by the appellate authority, pursuant to the direction issued by this tribunal in o.a. no. 687 of 1990 decided on 23.8.93, by which the appeal of the applicant against his removal from service was rejected.2. the service of the applicant was terminated on the ground that he assaulted one shri a.c. burman, supervisor and there by causing injuries to him on account of which he had to be hospitalised for many days and even thereafter, he could not resume duty for a considerable period. the removal order was passed by the disciplinary authority after dispensing with the requirement of holding a regular enquiry under rule 14(ii) of the railway servants (discipline and appeal) rules, 1968 (hereinafter referred to as rules). it may also be incidentally pointed out here that the applicant had not made any challenge to the original order dt. 2.7.86 passed by the disciplinary authority whereby the order of removal from service was passed after dispensing with the requirement of holding of enquiry under rule (ii) of the rules.3. from the facts as set out in the applicant, during the office hours, had assaulted and caused injuries to shri a.c. burman, supervisor on 1.7.86. shri burman made a complaint to the higher authorities upon which a criminal case was also registered against the applicant under section 323 ipc. further, the disciplinary authority, on the basis of the said incident, reported by another supervisor, who was on the spot and who accompanied shri burman and was an eye witness, passed the order of removal from service against the applicant vide its order dt.2.7.86 after dispensing with the requirement of holding enquiry under rule 14(ii) of the rules. the applicant preferred an appeal dt. 20.8.86 against this order. since the appeal was not decided, the applicant filed o.a. no. 1135 of 1989 with mp 202 of 1989 challenging the order of removal from service under rule 14(ii) of the rules, and it was alleged that no decision had been conveyed to the applicant on his appeal filed before the appellate authority. during the course of argument, it was brought to the notice of the tribunal that the appeal of the applicant stood already decided by the appellate authority, but the learned counsel for the applicant submitted that the applicant did not receive any intimation so far. consequently, the tribunal vide its order dt. 15.1.90, while deciding the o.a. no. 1135/89, directed the respondent authorities that the appellate order be made available to the applicant within 30 days from 15.1.90. it may further be stated here that before the disposal of the appeal by the appellate authority vide its order dt. 31.10.86, the applicant had also filed a mercy petition on 20.8.86. on receipt of the appellate order dt. 31.10.86, pursuant to the direction of the tribunal as aforesaid, the applicant challenged that order by filing another o.a. which was registered as o.a. no. 687 of 1990. the appellate order was challenged on the grounds that the appellate authority had not given the applicant an opportunity of personal hearing and that the order disposing the appeal should be a speaking order. the tribunal while disposing of this o.a. vide its order dt. 23.8.93, observed that the appellate authority while disposing of the appeal of the applicant vide its order dt. 31.10.86 passed a very cryptic order as follows: 4. the tribunal while setting aside the aforesaid appellate order dt.31.10.86 further directed the appellate authority to consider all the applications/representations of the applicant by giving him a personal hearing and communicate the decision thereon to the applicant by passing a speaking order. it was further observed that while disposing of the appeal, the appellate authority should consider the case from all its aspects and decide as to whether the action of the disciplinary authority under rule 14(ii) of the rules was an appropriate order or not. the authority should also consider as to whether there were sufficient grounds for invoking rule 14(ii) and whether there was sufficient material before the disciplinary authority to come to the finding that holding of regular enquiry was not possible and then the pass appropriate orders. a copy of the order passed by the tribunal in o.a. 687 of 1990 dt. 23.8.93 is annexed as annexure-c to this o.a.5. the appellate authority thereafter disposed of the appeal of the applicant by giving him a personal hearing and also by taking into consideration the observations made by the tribunal in its order dt.23.8.93, (annexure-c) by passing a speaking order on 21.2.94, a copy of which has been annexed as annexure-d. it is this order which is under challenge in this o.a. and the relief sought by the applicant is that a direction be issued to the respondent authorities to cancel and/or withdraw the order dt. 21.2.94 (annexure-d) and further direction be given to the respondent authorities to consider the case of the applicant keeping in view the earlier order of this tribunal dt.23.8.93, (arinexure-c) and the latest pronouncements of the hon'ble supreme court on the issue.6. the respondent authorities have filed a counter affidavit contesting the application in which they have denied all the allegations made by the applicant and have submitted that the appellate authority has disposed of the appeal after affording the applicant a personal hearing and after taking into consideration all the observations made by the tribunal in its earlier order dt. 23.8.93 and by passing a speaking order and as such no interference with the order of the appellate authority is called for.7. we have heard the learned counsel for the parties at length and perused the record of the case.8. article 311 of the constitution of india (hereinafter referred to as the constitution) provides certain safeguards to a personal employed in civil capacities under the union or a state, which may be summarised as follows:-- (1) no person who is a member of a civil service of the union or an all india service or a civil service of a state or holds a civil post under the union or a state shall be dismissed or removed by an authority subordinate to that by which he was appointed. (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.9. proviso to clause (2) of article 311 of the constitution speaks of three situations where the enquiry contemplated by clause (2) can be disposed with. these situations are: (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. "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." 11. similar provisions are also contained in rule 14 (ii) of the railway servants (discipline and appeal) rules, 1968 which reads as follows:-- "where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or..." 12. the constitutional provisions referred to above require that an enquiry shall be held against a government servant into the charges of misconduct for which he is sought to be removed from service and that in that enquiry he shall be afforded an opportunity of hearing which necessarily includes, inter alia, the right to file a reply to the charges and to lead evidence in support of the reply as also the right to cross-examine the witnesses, if any, produced against him in the enquiry.13. the question whether reasonable opportunity was given to the delinquent to defined his case or whether proper procedure was followed by the inquiry officer is not under consideration as the enquiry itself in this case was dispensed with and, therefore, the question whether the enquiry was properly dispensed with is one of the questions on which the fate of this application hinges.14. a perusal of the above constitutional as well as statutory provisions would indicate that before an enquiry is dispensed with, two conditions have to be satisfied, viz. (i) the authority competent to dismiss or remove or reduce in rank an employee is satisfied that it would not be reasonably practicable to hold the enquiry; and (ii) that there are reasons for such satisfaction and those reasons are recorded by the authority in writing.15. the decision of the authority concerned to dispense with the enquiry is final under clause (3) of article 311 of the constitution.clause (3) speaks of the "decision," which decision is obviously referable to the decision to dispense with the enquiry under clause (b) of the proviso in which two conditions set out above are contained. it, therefore, follows that the finality will be available to only that decision which complies with the two requirements contemplated by clause (b) of the proviso. if the authority has neither recorded the satisfaction nor has he recorded the reasons for such satisfaction, the decision to dispense with the enquiry will not be final even under clause (3) of article 311.16. two questions immediately arise: (i) whether the order dispensing with the enquiry is open to judicial secrutiny and (ii) what is the effect of finality contemplated by clause (3) of article 311 in respect of the aforesaid order.17. the answers to both the questions are not far to seek as both the questions stand answered by a number of decisions of the hon'ble supreme court.18. in uoi v. tulsi ram patel, air 1985 sc 1416=1985(2) slj 145 (sc), the hon'ble apex court after reviewing the entire case law observed as under: "the governing words of the second proviso to clause (2) of article 311, namely, "this clause shall not apply," are mandatory and not directory and are in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under article 311(2) or from giving any kind of opportunity to the concerned civil servant in a case where one of the three clauses of the second proviso becomes applicable. there is thus no scope for introducing into the second proviso some kind of inquiry or opportunity to show cause by a process of inference or implication." 19. it was further held that in the case of a civil servant to whom the provisions of the second proviso to article 311(2) have been applied, he has the right of a departmental appeal in which he can show that the charges made against him are not true and an appeal is a wider and more effective remedy than a right of making a representation.20. it is true that while considering the scope of second proviso, their lordships in tulsi ram patel's case (supra) also observed that- "the disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the department's case against the civil servant is weak and must fail. the word 'inquiry' in clause (b) of the second proviso includes a part of an inquiry. it is, therefore, not necessary that the situation which makes the holding of an inquiry not reasonably practicable should exist before the inquiry is instituted against the civil servant. such a situation can also come into existence subsequently during the course of the inquiry, for instance, after the service of a charge-sheet upon the civil servant or after he has filed his written statement thereto or even after evidence has been led in part. it will also not be reasonably practicable to afford to the civil servant an opportunity of a hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it, the civil servant absconds and cannot be served or will not participate in the inquiry. in such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. the recording of the reason for dispensing with the inquiry is a condition precedent to the application of clause (b) of the second proviso. this is a constitutional obligation and if such reason is not recorded in writing the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. it is, however, not necessary that the reason should find a place in the final order but it would be advisable to record it in the final order in order to avoid an allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. the reason for dispensing with the inquiry need not contain detailed particulars but it cannot be vague or just a repetition of the language of clause (b) of the second proviso." "the finality given to the disciplinary authority by article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the enquiry as also the order imposing penalty....." 21. the effect of the above observations is that although the decision of the disciplinary authority to dispense with the inquiry is final, the court still retains its power of judicial review and therefore, it can, in appropriate cases, investigate whether the constitutional pre-requisites in dispensing with the enquiry have been compiled with or not and whether the reasons for which the enquiry has been dispensed with could reasonably constituted the basis of satisfaction of the authority.22. the rule of justiciability as laid down in tulsiram patel's case was reiterated in satyavir singh v. uoi, air 1986 sc 555=1986(1) slj 1 (sc) and jaswant singh v. state of punjab, air 23. mr. samir ghose, ld. counsel for the applicant has contended that the order passed by the appellate authority is not in conformity with the observations made by this tribunal in o.a. 687 of 1990 dt. 23.8.93 (annexure-c), and as such the appellate order dt. 21.2.94 (annexure-d) should be cancelled and/or withdrawn and the case should be considered afresh in the light of the earlier order of this tribunal as also the law laid down by the apex court. it is also argued that the applicant was acquitted of the criminal charge for the same incident by the learned magistrate and as such this aspect of the matter should have been considered by the appellate authority while passing the impugned order.24. on the other hand, the learned counsel for the respondents has drawn our attention to paras 7 and 14 of the reply affidavit. the relevant portion of the same are extracted below:-- "7. it is specifically denied that the applicant was falsely implicated by the then supervisor a.c. burman. from records it would be clear that the applicant had physically assaulted the then supervisor. the said incident was specifically admitted by the applicant in his mercy appeal dated 20.8.86. a copy of the said mercy appeal is annexed hereto and marked as annexure-a." 14. i say that as per the order of this hon'ble tribunal, the respondent authorities had acted in strict compliance thereof and had carried out the hearing of the appeal in accordance with law and after considering the facts and circumstances of the case in full and also after hearing both sides. i say that the respondent authority had acted reasonably and fairly. i say that the decision of the appellate authority was good, legal and binding. i deny that the action of the appellate authority is perverse, arbitrary, unreasonable or in any way in violation of articles 14 and 16 of the constitution of india. i further say that the order of the learned sub divisional judicial magistrate, sealdah has no bearing or relevance in a domestic enquiry or disciplinary proceedings. i say that the applicant has suppressed material fact here that he has in his mercy appeal admitted that he had committed the offence.." 25. at the outset, it may stated here that it is not the case of the applicant in this application that reasons in writing were not recorded by the disciplinary authority before dispensing with the enquiry or the reasons so recorded in writing before passing the final order was subsequently fabricated or dispensing with the enquiry on the grounds mentioned therein cannot be justified or the charges levelled against him have not been made out. furthermore, nothing has been brought to our notice that the plea regarding the fact that no charge has been made out, was even taken before the appellate authority and the appellate authority had failed to examine the matter in that perspective. in the absence of any such allegation, the respondent authority has rightly confined its averments to only two points raised by the applicant, viz. the appellate authority has not passed its order vide annexure-d in conformity with the earlier decision of the tribunal in o.a. 687 of 1990 dt. 23.8.93, as also the law laid down by the apex court and also that the applicant was acquitted in the criminal case for the self-same incident. at this stage it may also be noticed that even in the earlier application, the only contention raised by the applicant was that the appellate order was cryptic one and that it only stated that "the action taken by the disciplinary authority should stand." it was also contended that a speaking order should be passed only after affording a personal hearing to the applicant. it is also pertinent to notice that on earlier occasion, no challenge was ever made regarding the validity of the order dt. 2.7.86 passed by the disciplinary authority either on merit or the validity of the decision to dispense with the enquiry under rule 14(ii) of the rs (da) rules. in the absence of any such challenge and also that it has never been the case of the applicant that the order dt. 3.7.86 passed by the disciplinary authority was passed without recording any reasons or reasons were subsequently fabricated or that it is not a case in which it is not reasonably practicable to hold enquiry as the grounds so mentioned and the reasons so recorded in writing did not confirm to the standard of reasons which a man of reasonable prudence would arrive. in that view of the matter, we hold that the order of the disciplinary authority does not suffer from any infirmity.26. the case in hand is not of such nature where it can be said that there was no reason for dispensing with the enquiry at the relevant time, that is to say, when the applicant had assulted his supervisor shri a.c. burman thereby causing grevious injuries to him on account of which he had to be hospitalised for many days and even had to remain away from duty for a considerably longer period thereafter. thus, the incident, according to the authorities, was of brutal nature which could not be termed as an act of simple disobedience at the spur of moment, but a planned one to terrorise the supervisor concerned and warranted severest punishment to prevent repetition of such acts. it was, therefore, decided to dispense with the enquiry as the situation prevailing was not conducive to holding a regular enquiry. it may also be mentioned here that there is no allegation of mala fide except general allegation of mala fide without any particular instance. the appellate authority while examining the question whether compliance of rule 14(ii) has been made out or whether the penalty of removal was appropriate in the facts and circumstances, has passed the following orders:-- "... based "on the spot" incident report of another supervisor who accompanied sri a.c. barman and was thus an eye witness, disciplinary action under rule 14(ii) was taken by the competent authority. the condition of sri a.c. barman who was attacked upon was serious and had to be hospitalised for many days and even thereafter had to remain away from work to heal his wound. thus, the incident of such brutal attack at the place of work on the supervisory officials cannot be termed an act of simple disobedience at the spur of moment, but a planned one to terrorise the supervisor concerned. persons guilty of such offences deserve the severest punishment to prevent repitition of such acts. therefore, the misconduct and the circumstances compelled the competent authority to apply rule 14(ii) and remove him from service to restore the morale of the supervising community. in any opinion, the application of rule 14(ii) was in order and the punishment was appropriate...." 27. a reading of the relevant portion of the impugned order (annexure-d) makes it quite clear about the reasons for the disciplinary authority to impose the punishment of removal from service and to dispense with the enquiry under rule 14(ii) are based of facts that (1) the incident was witnessed by another supervisor, who was on the spot and submitted a report to the disciplinary authority and as such he was a witness of the occurrence and as such it cannot be said that the order of the disciplinary authority is based on no evidence; (2) the condition of shri a.c. barman was very serious and that he had to be hospitalised for many days and even thereafter he had to remain away from work to heal his wound. the incident of such brutal attack at the place of work on the supervisory officials could not be termed as an act of simple disobediance on the spur of moment, but a planned one to terrorise the supervisor concerned; (3) the persons guilty of such offences deserved the severest punishment to prevent repetition of such acts. thus the appellate authority has given its finding on all the three points as observed by the tribunal in its order at annexure-c.28. it is well settled position of law that in considering the relevancy of the reasons given by the disciplinary authority, the court will not, however, sit in judgment over the reasons like a court of first appeal in order to decide whether or not the reasons are germane to clause (b) of the second proviso or an analogous service rule. the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable manner would have done. it will judge the matter in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. where two views are possible, the court will decline to interfere.29. the learned counsel for the applicant also submitted that no adverse inference should be drawn on the fact that the applicant had not chosen to challenge the finding of the disciplinary authority to dispense with the requirement of holding a regular enquiry as according to him, the appellate authority could have gone into this question by reasons of clause (4) of article 311 or analogous provision of service rules. true it is that as per legal position settled by the apex court in tulsiram patel's case, it is not open to a civil servant to contend in appeal, revision or review that the inquiry was wrongly dispensed with, but such a question is amenable to judicial review and could have been raised by the applicant in earlier o. a. 687 of 1990 and also in the present o.a. which he has not done. that apart, the applicant could have definitely contended before the appellate authority that the charge levelled against him was false and the appellate authority could have, in that event, gone into that question, but this is not the case here.30. anyhow, the matter has been examined by the appellate authority in detail. from a perusal of the order of the appellate authority, it is clear that according him, the disciplinary authority has exercised his power properly under rule 14(ii) of the rules. thus, we see no infirmity with the order of the appellate authority.31. the application must also fail yet on another ground. sub-clause (ii) of clause (c) of the first proviso to rule 25(1) of the railway servants (discipline and appeal) rules, 1968, inter alia provides that where an inquiry has not been held, the revising authority shall itself hold such inquiry or direct such inquiry to be held, subject to the provisions of rule 14 of the said rules, which is analogous to the second provision to article 311(2). thus under the said rules a railway servant has a right to demand in revision an inquiry into the charges against him subject to a situation envisaged in rule 14 of the said rules not prevailing at that time.32. as per law laid down by the apex court in tulsiram patel case, it has been held that though there is no similar provision under rule 22(2) of the rs(da) rules, but while deciding an appeal, a provision similar to the said sub-clause (ii) of clause (c) of the first proviso to rule 25(1) should be read and imported in to the provisions relating to appeals in the said rules. thus by incorporation of the said provision, the applicant had a right to demand a regular enquiry before the appellate authority, but the applicant has failed to avail this chance available to him according to the law.33. thus, after two decades of the order of removal passed by the disciplinary authority, the applicant cannot be heard to say that he has been removed from service without holding any enquiry especially when he has not demanded any such enquiry to be held before the appellate authority. even before this tribunal the applicant has not made any plea that the order dispensing with the enquiry has not been passed in confirmity with the provisions of law or that the competent authority has acted mala fide or for extrenous considerations.34. in view of what has been discussed above, the application must fail. accordingly, we dismiss it without passing any order as to costs.

Judgment:
1. The applicant, Ex-Fitter under SCW/Chitpur, has, by means of the present application, challenged the Order dt. 21.2.94 passed by the appellate authority, pursuant to the direction issued by this Tribunal in O.A. No. 687 of 1990 decided on 23.8.93, by which the appeal of the applicant against his removal from service was rejected.

2. The service of the applicant was terminated on the ground that he assaulted one Shri A.C. Burman, Supervisor and there by causing injuries to him on account of which he had to be hospitalised for many days and even thereafter, he could not resume duty for a considerable period. The removal order was passed by the disciplinary authority after dispensing with the requirement of holding a regular enquiry under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as Rules). It may also be incidentally pointed out here that the applicant had not made any challenge to the original Order dt. 2.7.86 passed by the disciplinary authority whereby the order of removal from service was passed after dispensing with the requirement of holding of enquiry under Rule (ii) of the Rules.

3. From the facts as set out in the applicant, during the office hours, had assaulted and caused injuries to Shri A.C. Burman, Supervisor on 1.7.86. Shri Burman made a complaint to the higher authorities upon which a criminal case was also registered against the applicant under Section 323 IPC. Further, the disciplinary authority, on the basis of the said incident, reported by another supervisor, who was on the spot and who accompanied Shri Burman and was an eye witness, passed the order of removal from service against the applicant vide its Order dt.

2.7.86 after dispensing with the requirement of holding enquiry under Rule 14(ii) of the Rules. The applicant preferred an appeal dt. 20.8.86 against this order. Since the appeal was not decided, the applicant filed O.A. No. 1135 of 1989 with MP 202 of 1989 challenging the order of removal from service under Rule 14(ii) of the Rules, and it was alleged that no decision had been conveyed to the applicant on his appeal filed before the appellate authority. During the course of argument, it was brought to the notice of the Tribunal that the appeal of the applicant stood already decided by the appellate authority, but the learned Counsel for the applicant submitted that the applicant did not receive any intimation so far. Consequently, the Tribunal vide its order dt. 15.1.90, while deciding the O.A. No. 1135/89, directed the respondent authorities that the appellate order be made available to the applicant within 30 days from 15.1.90. It may further be stated here that before the disposal of the appeal by the appellate authority vide its order dt. 31.10.86, the applicant had also filed a mercy petition on 20.8.86. On receipt of the appellate order dt. 31.10.86, pursuant to the direction of the Tribunal as aforesaid, the applicant challenged that order by filing another O.A. which was registered as O.A. No. 687 of 1990. The appellate order was challenged on the grounds that the appellate authority had not given the applicant an opportunity of personal hearing and that the order disposing the appeal should be a speaking order. The Tribunal while disposing of this O.A. vide its order dt. 23.8.93, observed that the appellate authority while disposing of the appeal of the applicant vide its order dt. 31.10.86 passed a very cryptic order as follows: 4. The Tribunal while setting aside the aforesaid appellate order dt.

31.10.86 further directed the appellate authority to consider all the applications/representations of the applicant by giving him a personal hearing and communicate the decision thereon to the applicant by passing a speaking order. It was further observed that while disposing of the appeal, the appellate authority should consider the case from all its aspects and decide as to whether the action of the disciplinary authority under Rule 14(ii) of the Rules was an appropriate order or not. The authority should also consider as to whether there were sufficient grounds for invoking Rule 14(ii) and whether there was sufficient material before the disciplinary authority to come to the finding that holding of regular enquiry was not possible and then the pass appropriate orders. A copy of the order passed by the Tribunal in O.A. 687 of 1990 dt. 23.8.93 is annexed as Annexure-C to this O.A.5. The appellate authority thereafter disposed of the appeal of the applicant by giving him a personal hearing and also by taking into consideration the observations made by the Tribunal in its order dt.

23.8.93, (Annexure-C) by passing a speaking order on 21.2.94, a copy of which has been annexed as Annexure-D. It is this order which is under challenge in this O.A. and the relief sought by the applicant is that a direction be issued to the respondent authorities to cancel and/or withdraw the order dt. 21.2.94 (Annexure-D) and further direction be given to the respondent authorities to consider the case of the applicant keeping in view the earlier order of this Tribunal dt.

23.8.93, (Arinexure-C) and the latest pronouncements of the Hon'ble Supreme Court on the issue.

6. The respondent authorities have filed a counter affidavit contesting the application in which they have denied all the allegations made by the applicant and have submitted that the appellate authority has disposed of the appeal after affording the applicant a personal hearing and after taking into consideration all the observations made by the Tribunal in its earlier order dt. 23.8.93 and by passing a speaking order and as such no interference with the order of the appellate authority is called for.

7. We have heard the learned Counsel for the parties at length and perused the record of the case.

8. Article 311 of the Constitution of India (hereinafter referred to as the Constitution) provides certain safeguards to a personal employed in civil capacities under the Union or a State, which may be summarised as follows:-- (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(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.

9. Proviso to Clause (2) of Article 311 of the Constitution speaks of three situations where the enquiry contemplated by Clause (2) can be disposed with. These situations are: (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.

"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." 11. Similar provisions are also contained in Rule 14 (ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 which reads as follows:-- "Where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or..." 12. The constitutional provisions referred to above require that an enquiry shall be held against a Government servant into the charges of misconduct for which he is sought to be removed from service and that in that enquiry he shall be afforded an opportunity of hearing which necessarily includes, inter alia, the right to file a reply to the charges and to lead evidence in support of the reply as also the right to cross-examine the witnesses, if any, produced against him in the enquiry.

13. The question whether reasonable opportunity was given to the delinquent to defined his case or whether proper procedure was followed by the Inquiry Officer is not under consideration as the enquiry itself in this case was dispensed with and, therefore, the question whether the enquiry was properly dispensed with is one of the questions on which the fate of this application hinges.

14. A perusal of the above constitutional as well as statutory provisions would indicate that before an enquiry is dispensed with, two conditions have to be satisfied, viz. (i) the authority competent to dismiss or remove or reduce in rank an employee is satisfied that it would not be reasonably practicable to hold the enquiry; and (ii) that there are reasons for such satisfaction and those reasons are recorded by the authority in writing.

15. The decision of the authority concerned to dispense with the enquiry is final under Clause (3) of Article 311 of the Constitution.

Clause (3) speaks of the "decision," which decision is obviously referable to the decision to dispense with the enquiry under Clause (b) of the proviso in which two conditions set out above are contained. It, therefore, follows that the finality will be available to only that decision which complies with the two requirements contemplated by Clause (b) of the proviso. If the authority has neither recorded the satisfaction nor has he recorded the reasons for such satisfaction, the decision to dispense with the enquiry will not be final even under Clause (3) of Article 311.

16. Two questions immediately arise: (i) Whether the order dispensing with the enquiry is open to judicial secrutiny and (ii) what is the effect of finality contemplated by Clause (3) of Article 311 in respect of the aforesaid order.

17. The answers to both the questions are not far to seek as both the questions stand answered by a number of decisions of the Hon'ble Supreme Court.

18. In UOI v. Tulsi Ram Patel, AIR 1985 SC 1416=1985(2) SLJ 145 (SC), the Hon'ble Apex Court after reviewing the entire case law observed as under: "The governing words of the second proviso to Clause (2) of Article 311, namely, "this clause shall not apply," are mandatory and not directory and are in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned civil servant in a case where one of the three clauses of the second proviso becomes applicable. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity to show cause by a process of inference or implication." 19. It was further held that in the case of a civil servant to whom the provisions of the second proviso to Article 311(2) have been applied, he has the right of a departmental appeal in which he can show that the charges made against him are not true and an appeal is a wider and more effective remedy than a right of making a representation.

20. It is true that while considering the scope of second proviso, their lordships in Tulsi Ram Patel's case (supra) also observed that- "The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department's case against the civil servant is weak and must fail.

The word 'inquiry' in Clause (b) of the second proviso includes a part of an inquiry. It is, therefore, not necessary that the situation which makes the holding of an inquiry not reasonably practicable should exist before the inquiry is instituted against the civil servant. Such a situation can also come into existence subsequently during the course of the inquiry, for instance, after the service of a charge-sheet upon the civil servant or after he has filed his written statement thereto or even after evidence has been led in part. It will also not be reasonably practicable to afford to the civil servant an opportunity of a hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it, the civil servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority.

The recording of the reason for dispensing with the inquiry is a condition precedent to the application of Clause (b) of the second proviso. This is a constitutional obligation and if such reason is not recorded in writing the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is, however, not necessary that the reason should find a place in the final order but it would be advisable to record it in the final order in order to avoid an allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated.

The reason for dispensing with the inquiry need not contain detailed particulars but it cannot be vague or just a repetition of the language of Clause (b) of the second proviso." "The finality given to the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the enquiry as also the order imposing penalty....." 21. The effect of the above observations is that although the decision of the disciplinary authority to dispense with the inquiry is final, the Court still retains its power of judicial review and therefore, it can, in appropriate cases, investigate whether the constitutional pre-requisites in dispensing with the enquiry have been compiled with or not and whether the reasons for which the enquiry has been dispensed with could reasonably constituted the basis of satisfaction of the authority.

22. The rule of justiciability as laid down in Tulsiram Patel's case was reiterated in Satyavir Singh v. UOI, AIR 1986 SC 555=1986(1) SLJ 1 (SC) and Jaswant Singh v. State of Punjab, AIR 23. Mr. Samir Ghose, Ld. Counsel for the applicant has contended that the order passed by the appellate authority is not in conformity with the observations made by this Tribunal in O.A. 687 of 1990 dt. 23.8.93 (Annexure-C), and as such the appellate order dt. 21.2.94 (Annexure-D) should be cancelled and/or withdrawn and the case should be considered afresh in the light of the earlier order of this Tribunal as also the law laid down by the Apex Court. It is also argued that the applicant was acquitted of the criminal charge for the same incident by the learned Magistrate and as such this aspect of the matter should have been considered by the appellate authority while passing the impugned order.

24. On the other hand, the learned Counsel for the respondents has drawn our attention to paras 7 and 14 of the reply affidavit. The relevant portion of the same are extracted below:-- "7. It is specifically denied that the applicant was falsely implicated by the then supervisor A.C. Burman. From records it would be clear that the applicant had physically assaulted the then supervisor. The said incident was specifically admitted by the applicant in his mercy appeal dated 20.8.86. A copy of the said mercy appeal is annexed hereto and marked as Annexure-A." 14. I say that as per the order of this Hon'ble Tribunal, the respondent authorities had acted in strict compliance thereof and had carried out the hearing of the appeal in accordance with law and after considering the facts and circumstances of the case in full and also after hearing both sides. I say that the respondent authority had acted reasonably and fairly. I say that the decision of the appellate authority was good, legal and binding. I deny that the action of the appellate authority is perverse, arbitrary, unreasonable or in any way in violation of Articles 14 and 16 of the constitution of India. I further say that the order of the learned Sub Divisional Judicial Magistrate, Sealdah has no bearing or relevance in a domestic enquiry or disciplinary proceedings. I say that the applicant has suppressed material fact here that he has in his mercy appeal admitted that he had committed the offence.." 25. At the outset, it may stated here that it is not the case of the applicant in this application that reasons in writing were not recorded by the disciplinary authority before dispensing with the enquiry or the reasons so recorded in writing before passing the final order was subsequently fabricated or dispensing with the enquiry on the grounds mentioned therein cannot be justified or the charges levelled against him have not been made out. Furthermore, nothing has been brought to our notice that the plea regarding the fact that no charge has been made out, was even taken before the appellate authority and the appellate authority had failed to examine the matter in that perspective. In the absence of any such allegation, the respondent authority has rightly confined its averments to only two points raised by the applicant, viz. the appellate authority has not passed its order vide Annexure-D in conformity with the earlier decision of the Tribunal in O.A. 687 of 1990 dt. 23.8.93, as also the law laid down by the Apex Court and also that the applicant was acquitted in the criminal case for the self-same incident. At this stage it may also be noticed that even in the earlier application, the only contention raised by the applicant was that the appellate order was cryptic one and that it only stated that "the action taken by the disciplinary authority should stand." It was also contended that a speaking order should be passed only after affording a personal hearing to the applicant. It is also pertinent to notice that on earlier occasion, no challenge was ever made regarding the validity of the order dt. 2.7.86 passed by the disciplinary authority either on merit or the validity of the decision to dispense with the enquiry under Rule 14(ii) of the RS (DA) Rules. In the absence of any such challenge and also that it has never been the case of the applicant that the order dt. 3.7.86 passed by the disciplinary authority was passed without recording any reasons or reasons were subsequently fabricated or that it is not a case in which it is not reasonably practicable to hold enquiry as the grounds so mentioned and the reasons so recorded in writing did not confirm to the standard of reasons which a man of reasonable prudence would arrive. In that view of the matter, we hold that the order of the disciplinary authority does not suffer from any infirmity.

26. The case in hand is not of such nature where it can be said that there was no reason for dispensing with the enquiry at the relevant time, that is to say, when the applicant had assulted his supervisor Shri A.C. Burman thereby causing grevious injuries to him on account of which he had to be hospitalised for many days and even had to remain away from duty for a considerably longer period thereafter. Thus, the incident, according to the authorities, was of brutal nature which could not be termed as an act of simple disobedience at the spur of moment, but a planned one to terrorise the supervisor concerned and warranted severest punishment to prevent repetition of such acts. It was, therefore, decided to dispense with the enquiry as the situation prevailing was not conducive to holding a regular enquiry. It may also be mentioned here that there is no allegation of mala fide except general allegation of mala fide without any particular instance. The appellate authority while examining the question whether compliance of Rule 14(ii) has been made out or whether the penalty of removal was appropriate in the facts and circumstances, has passed the following orders:-- "... Based "on the spot" incident report of another Supervisor who accompanied Sri A.C. Barman and was thus an eye witness, disciplinary action under Rule 14(ii) was taken by the competent authority. The condition of Sri A.C. Barman who was attacked upon was serious and had to be hospitalised for many days and even thereafter had to remain away from work to heal his wound. Thus, the incident of such brutal attack at the place of work on the supervisory officials cannot be termed an act of simple disobedience at the spur of moment, but a planned one to terrorise the supervisor concerned.

Persons guilty of such offences deserve the severest punishment to prevent repitition of such acts. Therefore, the misconduct and the circumstances compelled the competent authority to apply Rule 14(ii) and remove him from service to restore the morale of the supervising community. In any opinion, the application of Rule 14(ii) was in order and the punishment was appropriate...." 27. A reading of the relevant portion of the impugned order (Annexure-D) makes it quite clear about the reasons for the disciplinary authority to impose the punishment of removal from service and to dispense with the enquiry under Rule 14(ii) are based of facts that (1) the incident was witnessed by another supervisor, who was on the spot and submitted a report to the disciplinary authority and as such he was a witness of the occurrence and as such it cannot be said that the order of the disciplinary authority is based on no evidence; (2) the condition of Shri A.C. Barman was very serious and that he had to be hospitalised for many days and even thereafter he had to remain away from work to heal his wound. The incident of such brutal attack at the place of work on the supervisory officials could not be termed as an act of simple disobediance on the spur of moment, but a planned one to terrorise the supervisor concerned; (3) the persons guilty of such offences deserved the severest punishment to prevent repetition of such acts. Thus the appellate authority has given its finding on all the three points as observed by the Tribunal in its order at Annexure-C.28. It is well settled position of law that in considering the relevancy of the reasons given by the disciplinary authority, the Court will not, however, sit in judgment over the reasons like a Court of first appeal in order to decide whether or not the reasons are germane to Clause (b) of the second proviso or an analogous service rule. The Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable manner would have done. It will judge the matter in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Court-room, removed in time from the situation in question. Where two views are possible, the Court will decline to interfere.

29. The learned Counsel for the applicant also submitted that no adverse inference should be drawn on the fact that the applicant had not chosen to challenge the finding of the disciplinary authority to dispense with the requirement of holding a regular enquiry as according to him, the appellate authority could have gone into this question by reasons of Clause (4) of Article 311 or analogous provision of service rules. True it is that as per legal position settled by the Apex Court in Tulsiram Patel's case, it is not open to a civil servant to contend in appeal, revision or review that the inquiry was wrongly dispensed with, but such a question is amenable to judicial review and could have been raised by the applicant in earlier O. A. 687 of 1990 and also in the present O.A. which he has not done. That apart, the applicant could have definitely contended before the appellate authority that the charge levelled against him was false and the appellate authority could have, in that event, gone into that question, but this is not the case here.

30. Anyhow, the matter has been examined by the appellate authority in detail. From a perusal of the order of the appellate authority, it is clear that according him, the disciplinary authority has exercised his power properly under Rule 14(ii) of the Rules. Thus, we see no infirmity with the order of the appellate authority.

31. The application must also fail yet on another ground. Sub-clause (ii) of Clause (c) of the first proviso to Rule 25(1) of the Railway Servants (Discipline and Appeal) Rules, 1968, inter alia provides that where an inquiry has not been held, the revising authority shall itself hold such inquiry or direct such inquiry to be held, subject to the provisions of Rule 14 of the said Rules, which is analogous to the second provision to Article 311(2). Thus under the said Rules a railway servant has a right to demand in revision an inquiry into the charges against him subject to a situation envisaged in Rule 14 of the said Rules not prevailing at that time.

32. As per law laid down by the Apex Court in Tulsiram Patel case, it has been held that though there is no similar provision under Rule 22(2) of the RS(DA) Rules, but while deciding an appeal, a provision similar to the said Sub-clause (ii) of Clause (c) of the first proviso to Rule 25(1) should be read and imported in to the provisions relating to appeals in the said Rules. Thus by incorporation of the said provision, the applicant had a right to demand a regular enquiry before the appellate authority, but the applicant has failed to avail this chance available to him according to the law.

33. Thus, after two decades of the order of removal passed by the disciplinary authority, the applicant cannot be heard to say that he has been removed from service without holding any enquiry especially when he has not demanded any such enquiry to be held before the appellate authority. Even before this Tribunal the applicant has not made any plea that the order dispensing with the enquiry has not been passed in confirmity with the provisions of law or that the competent authority has acted mala fide or for extrenous considerations.

34. In view of what has been discussed above, the application must fail. Accordingly, we dismiss it without passing any order as to costs.