Sukhram Singh Alias S.R. Singh Vs. Union of India (Uoi) and ors. - Court Judgment

Kalyanmoy Ganguli, J.

1. The petitioner challenges in the instant application under Article 226 of the Constitution of India, an order of dismissal dated November 5, 1976 and the order passed by the appellate authority on February 2, 1990.

2. It appears that the matter was initially moved on April 19, 1990 and a formal rule was issued on September 6, 1990. It further appears from records that the rule is not yet ready as regards service. But as the contesting respondents have entered appearance and have filed an affidavit in-opposition, service of the rule may be dispensed with and the matter may be treated as ready as regards both service and affidavits.

3. The writ petition is not very comprehensive and is rather sketchy and the sequence of events have to be gathered from the petition, the affidavit-in-opposition and the affidavit-in-reply together with the written submissions made by both the parties.

4. It appears that on certain allegations of misconduct a charge-sheet was issued against the petitioner way back in 1976. It further appears that an enquiry ensued, in which, according to the respondents, the petitioner was given the fullest possible opportunity to defend his case and ultimately he was removed from service by an order dated November 5, 1976. This application was moved, as already been stated on April 19, 1990. Naturally,. the question of delay is very much involved as a period of 14 year's have elapsed from the date of the impugned order of removal. But the appellate order was passed on February 16, 1990 and as such the question of delay may be ruled out. Further in this connection a reference may be made to the case of P. B. Roy v. Union of India reported in : [1972]3SCR449 . In paragraph 8 of the said decision it was observed as follows :-

'Paragraph 8. The learned Judge who had initially heard the petition had pointed out that the representation of the Appellant was first rejected on My 29, 1960 and that it did not matter that the petitioner had continued making subsequent representations. The learned Judge had noticed the explanation that the petitioner could not approach the court as he was admitted to a Tuberculosis Clinic in June, 1961. The learned Judge having found that this was not sufficient to explain the delay between July 29, 1960 and June 1961, was disposed to reject the petition on the ground of laches. But in view of the decision of the majority of the Full Bench of the Punjab High Court in S. Gurmej Singh v. Election Tribunal, Gurdaspur (1964 PLR 589), the delay in filing the petition was overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is 'positively good'.'

5. In the instant case also the reason for delay is almost identical with this exception only that in the matter before the Hon'ble Supreme Court the petitioner was afflicted with Tuberculosis and in the instant case the petitioner was afflicted with mental disharmony. It is needless to point out that the ratio dici dendi of the Supreme Court case did not depend on the exact nature of the malady but on the basic principle of the disability to move the court within a reasonable time.

6. In the circumstances, this court decides to hear the matter on merits.

7. Although the episode of the enquiry proceeding has been omitted from the writ 'petition, yet the respondents have been able to show mat some enquiry was held into the charges levelled against the petitioner in which he was given reasonably adequate opportunities to defend his case.

8. It is the allegation of the petitioner that no enquiry report was ever sent to the petitioner as it is the counter allegation of the respondents that such report was served on the petition. In the circumstances, it was incumbent on the respondent to annex a copy of the enquiry report to the affidavit-in-opposition along with the proof of acknowledgement of the same by the petitioner. This not having been done no reliance can be placed on the bald statement of the respondents.

9. The order of removal has been annexed to the petition marked with the letter 'A'. The respondents contend that this is not the impugned order of removal but the respondents did not think it proper to annex the actual order of dismissal. However, it appears from the order impugned in the petition that the order of removal is totally uninformed by any reason. It does not discuss the case, it does not discuss the report of the enquiry, it does not disclose reasons for agreeing with the report of the enquiry officer. In fact, it does not discuss anything excepting the fact that the petitioner was removed from service with effect from November 6, 1976.

10. In this connection a reference may be made to Clause (2) of Sub-rule 10 of Rule 44 of the Railway Protection Force Rules, 1959, hereinafter referred to as the Rules.

44(10) (2) 'If it is of opinion that any of the penalties specified in Clause s (a) 'to (d) of Rule 41 should be imposed, it shall-

(a) furnish the member so charged with a copy of the report of the Inquiring Authority and where the Disciplinary Authority, is not the Inquiring Authority, a statement of its finding together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority;

(b) give hint a notice stating the action proposed to be taken on regard to him and calling upon him to submit with a specified time such representation as he may wish to make against the proposed action; and

(c) consider the representation, if any, made by the member so charged in response to the notice under Clause (b) and determine what penalty, if any, should be imposed' on the member so charged, and pass appropriate orders on the case.'

11. All the aforesaid mandatory safeguards are sadly missing in the instant case. It has been emphasised by the learned advocate appearing for the respondents that the Railway Protection Force is a highly disciplinary organisation and it does not tolerate any laxity in the matter of discipline. The authorities sadly betrayed such lack of discipline in the matter of enforcing their own rules in treating a delinquent member of itself.

12. Regarding the furnishing of the report of enquiry even before the passing of the final order, a reference may be made to a large number of cases but as this branch of law has already been crystalised, no useful purpose will be served by quoting in ex tense from the said judgment. Reference may be made to the case of Union of India v. M. L. Kapoor : (1973)IILLJ504SC , Anil Kumar v. Presiding Officer and Ors. : (1986)ILLJ101SC ; Collector of Customs v. Biswanath Mukherjee (1974 CLJ 251); Union of India v. Md. Ramzan Khan : (1991)ILLJ29SC etc.

13. In the circumstances, neither the matter of penalty of removal from service nor the Appellate Order can be sustained in law.

14. The respondents are directed to start afresh from the stage of filing of the report of the enquiry. The respondents are to act according to the sequence prescribed here in under if they want to prosecute the matter any further. The respondents are however, at liberty not to proceed any more with the enquiry proceeding and straightway re-instate the petitioner with effect from November 6, 1976 and pay all his back wages forthwith with annual increments and promotions etc. But if they choose to pick up the thread of the enquiry where it snapped, the following procedure is prescribed.

(a) The respondents shall forward to the petitioner a copy of the report of the enquiry forthwith;

(b) The petitioner shall within 7 days from the receipt of the report of the enquiry make his representation, if any, in respect of such report to the authority concerned;

(c) The disciplinary authority on consideration of Such representation of the petitioner, shall pass a second show cause notice along with the proposed penalty inviting the petitioner to give a reply to the same;

(d) The petitioner shall submit his reply to the second show cause notice within 10 days of the receipt of the letter containing the proposed penalty; and

(e) On receipt of the reply to the second show cause notice the appropriate authority will pass orders strictly in accordance with - law and the rules referred to hereinabove.

15. If, before passing of the order of removal the petitioner was under suspension, he will continue to remain under suspension from November, 6 1976 up to the date of passing of final order and all his arrears of subsistence allowance have to be paid within 8 weeks from the date of communication of this order. If the petitioner was not in suspension before November 6, 1976 then he will be' deemed to be in continuous service and on duty for the aforesaid period and in such a case his entire emoluments including arrears are also to be paid within the specified period of 8 weeks from the date of communication of this order.

16. The rule is disposed of as above without any order as to costs.