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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: K. RAJAPPA MENON

DATE OF JUDGMENT: 07/10/1968

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. MITTER, G.K. HEGDE, K.S.

CITATION:  1970 AIR  748            1969 SCR  (2) 343  CITATOR INFO :  RF         1980 SC1650  (3,8)

ACT:     Conduct and Disciplinary  Rules, r.   1713--Disciplinary authority  whether  required to give  detailed  reasons  for confirming finding established at departmental enquiry.     Constitution  of India, Art. 311 (2)--Second show  cause notice--If  authority  can make up mind  tentatively  before receipt of explanation.

HEADNOTE:     After   the   reply   of   the   respondent--a   railway employee--in  respect of certain charges p.referred  against him  was  received, a departmental enquiry  was  held.   The Enquiring  Officer  found all the charges  proved.   A  show cause  notice,  was  then served stating that  it  had  been tentatively  decided by the Chief Commercial  Superintendent that the respondent should be dismissed from service.   This notice was served after the’ Chief Commercial Superintendent had  recorded an order stating that he had seen the  enquiry proceedings, that the procedure had been correctly followed, and  that  he  agreed with the  findings  of  the  Enquiring Officer.    The   respondent  submitted   his   explanation; thereafter his dismissal was ordered.  The respondent  filed a writ petition in the High Court.  The single Judge allowed the    petition   holding   that   the   Chief    Commercial Superintendent   was  bound  to>  pass  a   detailed   order expressing  his views about each of the charges and  that  a general  agreement with the findings of the Enquiry  Officer did  not satisfy the requirements of r. 1713 of the  Conduct and  Disciplinary Rules. This decision was affirmed  by  the Division Bench.  In ’appeal, this COurt, HELD: The: appeal must be allowed.     (i)  Rule 1713 does not lay down any particular form  or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is  that the  record  of  the  enquiry  should  be  considered   ’and disciplinary authority should proceed’ to give its  findings on  each charges.  This does not and cannot mean that it  is obligatory  on  the disciplinary authority  to  discuss  the

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evidence and the facts and circumstances established at  the departmental  enquiry in detail and write as if it  were  an order  or  a  judgment of a  judicial  tribunal.   The  rule certainly  requires  the  disciplinary  authority  to   give consideration  to  the record of the proceedings  which  was done by the Chief Commercial Superintendent. When he  agreed with,  the  findings of the Enquiry Officer  that  all   the charges  mentioned in the charge sheet had been  established it  meant that he was affirming the findings on each  charge and  that  would’  certainly fulfil the requirement  of  the Rule. [345 H--346 D]     (ii)  There was no force in the respondent’s  contention that  the  disciplinary authority was not entitled  to  have finally  made  up its  mind before the  explanation  to  the second  show cause notice had been received by it and  at  a stage  prior to the issuance of the notice.   The  procedure which   is.  to  be  followed  under  Art.  311(2)  of   the Constitution of ’affording a reasonable opportunity includes the. giving of two notices, One at the enquiry stage and the other  when  the  competent authority as  a  result  of  the enquiry  tentatively  determines  to  inflict  a  particular punishment. 344 It  is  quite obvious that unless the  disciplinary  or  the competent  ’authority arrives at some tentative decision  it will  not  be  in a position to  determine  what  particular punishment to inflict and a second show cause notice  cannot be issued without such a tentative determination. [346 E] Khem  Chand  v. Union of India & Ors., [1958]  S.C.R.  1080, followed.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1064  of 1966.     Appeal  by  special leave from the judgment  and  order, dated August 4, 1965 of the Kerala High Court in Writ Appeal No. 205 of 1964.     B. Sen and S.P. Nayar, for appellant No. 1.     A.S. Nambiar and Lily Thomas, for the respondent.     The Judgment of the Court was delivered by     Grover,  J. This is an appeal by special leave from  the judgment  of the Kerala High Court in which the  only  point which  arises  for  decision is whether  Rule  1713  of  the Conduct and Disciplinary Rules hereinafter called the Rules, for railway servants was correctly applied and the dismissal of  the  respondent,  who  at  the  material  time,  was  an Assistant  Station  Master was rightly set  aside  for  non- compliance with that Rule.     The facts lie within a narrow compass. In July 1963  the respondent, who was working as an  Assistant Station  Master at  Chalakudy  railway station was served with  a  statement containing  charges  relating to certain  matters  after  an inspection  report  had been submitted  to  the  authorities concerned.  After  the  reply of  the  respondent  had  been received  a departmental enquiry was held and the  Enquiring Officer  submitted  a report finding all  the  four  charges which.  had been preferred against the respondent proved.  A show  cause notice was then served in September 1963  giving the findings of the Enquiring Officer (Assistant  Commercial Superintendent  )  and  it  was  stated  that  it  had  been tentatively  decided by the Chief Commercial  Superintendent that  the respondent should be dismissed from service.  This notice was served after the Chief Commercial  Superintendent

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had  recorded   the following order (Exh. R. 8 ):                    "The  employee, in his reply  dated  3-8-               1963  to this  charge sheet, has not  accepted               the   charges  contained  in  the  same.    An               enquiry, therefore was arranged.  It was  held               by  the  Assistant  Commercial  Superintendent               Olavakkot  from 22-8-63 to 29-8-1963.  I  have               seen   the enquiry proceedings.  I  find  that               the  procedure  has been  followed  correctly;               that   the  accused  has  been   given   every               reasonable opportunity  for  his  defence  and               I  agree  with  the findings  of  the  Enquiry               Officer 345               that all the charges mentioned in the  charge-               sheet have been established.  Since these  are               serious charges, it is tentatively decided  to               impose  the penalty of dismissal from  service               on Shri K.  Rajappa  Menon,  Assistant Station               Master/Chalakudi.   He should,  therefore,  be               asked  to  show  cause why he  should  not  be               dismissed from service accordingly." He  was  given  a week for showing cause  why  the  proposed penalty   should  not  be  inflicted  on  him.   After   the explanation  of  the  respondent  had  been  received    his dismissal     was   ordered   by   the   Chief    Commercial Superintendent.     The  respondent filed a petition under Art. 226  of  the Constitution  in the High Court and a number of points  were raised  before  the learned Single Judge.   The  only  point which  prevailed  with  him Was  that  the  Chief.Commercial Superintendent had not recorded an order as required by Rule 1713.  He examined the other contention raised on behalf  of the  respondent before him that at the stage of  the  second show  cause notice the Chief Commercial  Superintendent  had finally made up his mind which he could not or ought not  to have  done  until  the  reply  or  the  explanation  of  the respondent had been received and considered by him.  In view of a bench decision of the Kerala High Court he did not rest his decision on the second point but  decided  in favour  of the  respondent  on the first point holding that  the  Chief Commercial Superintendent had not given findings  on each of the charges.  In his opinion the rule contemplated that  the evidence  which had been adduced at the enquiry in  relation to  each charges should be examined and considered  by   the punishing authority and  he should  give his own  assessment and  finding relating to each. individual charge  which  was not done in the present case.  The division :Bench on appeal by  the  present  appellant affirmed  the  judgment  of  the learned Single Judge.     Now   Rule  1713  provides  that  if  the   disciplinary authority  is not the Enquiring Authority-it shall  consider the  record of the enquiry and. record its findings on  each charge.   The argument which prevailed with the  High  COurt was  that the order embodied in Exh. 8 did not  comply  with the aforesaid rule because findings relating to each  charge were  not  given  after a proper  discussion  .and  analysis of .the: evidence produced at the departmental enquiry.   In other words, the Chief CommerCial Superintendent .was bound. to  pass a detailed order  expressing his  views about  each charge and that a general agreement with the findings of the Enquiry  Officer  did not satisfy the requirements  of  Rule 1713.     We  are  altogether  unable  to  agree  with  the   view expressed  by the High Court.  Rule 1713 does not  lay  down

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any particular sup. cI/69--5 346 form  or manner in which the disciplinary  authority  should record  its  findings  on each charge.  All  that  the  Rule requires  is  that  the  record of  the  enquiry  should  be considered and the disciplinary authority should proceed  to give  its findings on each charge. This does not and  cannot mean that it is obligatory on the disciplinary authority  to discuss  the  evidence  and  the  facts  and   circumstances established at the departmental enquiry in detail and  write as if it were an order or a judgment of a judicial tribunal. The  rule certainly requires the disciplinary  authority  to give  consideration to the record of the proceedings  which, as  expressly  stated in Exh. R. 8, was done  by  the  Chief Commercial Superintendent.  When he agreed with the findings of the  Enquiry that all the charges mentioned in the charge sheet  had been established it meant that he  was  affirming the findings on each charge and that would certainly  fulfil the  requirement of the Rule.  The Rule after all has to  be read  not  in  a pedantic manner ,but  in  a  practical  and reasonable  way and so read it is difficult escape from  the conclusion  that  the Chief  Commercial  Superintendent  had substantially  complied with the  requirements of the  Rule. The interference by the High Court, therefore, on the ground that  there had been non-compliance with Rule 17 13 was  not justified.     Learned  counsel for the respondent has sought to  raise the  second  point  which the High  Court  had  declined  to decide,  namely,  that the disciplinary  authority  was  not entitled  to  have  finally  made up  its  mind  before  the explanation  to  the  second  show  cause  notice  had  been received  by it and at a stage prior to the issuance of  the notice.   Such a contention is wholly untenable in  view  of the decisions of this Court.  It has been made  quite  clear in  Khem  Chand  v. The Union of India &  Ors.(1)  that  the procedure  Art. 311 (2) of the  Constitution of affording  a reasonable  opportunity includes the giving of two  notices, one  at the enquiry stage and the other when  the  competent authority as a result of the enquiry tentatively  determines to  inflict  a particular punishment.  It is  quite  obvious that  unless  the disciplinary or  the  competent  authority arrives  at  some  tentative decision it will not  be  in  a position to determine what particular punishment to  inflict and  a  Second show cause notice  cannot be  issued  without such a tentative determination.     The  appeal is consequently allowed and the judgment  of the  High Court is hereby set aside.  The petition filed  by the  respondent  under Art. 226 shall  stand  dismissed.  No order as to costs. Y.P.                                Appeal allowed. (1) [1958] S.C.R. 1080. 347