REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL 3369 OF 2010  (@ SLP (C) NO. 25293 OF 2008)

Union of India & Ors. …Appellants

Versus

Alok Kumar                     …Respondent

WITH

CIVIL APPEAL 3370 OF 2010  (@ SLP (C) NO. 24748 OF 2008)

Union of India & Ors. …Appellants

Versus

Ram Bahor Yadav                    …Respondent

CIVIL APPEAL 3372 OF 2010  (@ SLP (C) NO. 11173 OF 2009)

Union of India & Ors. …Appellants

Versus

Chandra Bhushan Prasad Srivastava         …Respondent

CIVIL APPEAL 3373 OF 2010  (@ SLP (C) NO. 17185 OF 2009)

Union of India & Ors. …Appellants Versus

Ratneshwar Singh         …Respondent

CIVIL APPEAL 3373 OF 2010  (@ SLP (C) NO. 17044 OF 2009)

Union of India & Anr.           …Appellants

Versus

Suryadeo Tripathi        …Respondent

CIVIL APPEAL 3375 OF 2010  (@ SLP (C) NO. 17045 OF 2009)

Union of India & Ors.          …Appellants

Versus

Udai Shankar Singh      …Respondent

CIVIL APPEAL 3376 OF 2010  (@ SLP (C) NO. 17049 OF 2009)

Union of India & Ors.          …Appellants

Versus

Satrughan Pal       …Respondent

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JUDGMENT

SWATANTER KUMAR,  J.

1. Delay condoned in SLP (C) No. 25293 of 2008.

2. Leave granted.

3. This judgment shall dispose of all the above mentioned appeals as  

common question of law on somewhat similar facts arise in all the appeals  

for consideration of this Court.

4. The Union of India being aggrieved by the judgment of the High  

Court  of Judicature at  Allahabad,  Lucknow Bench dated 25th February,  

2008 has filed the present appeals under Article 136 of the Constitution of  

India.  The High Court declined to interfere with the Order passed by the  

Central Administrative Tribunal, Lucknow Bench (hereinafter referred to  

as ‘the Tribunal’) wherein the Tribunal, in exercise of its powers under  

Section 19 of the Central Administrative Tribunal Act had set aside the  

orders  of  punishment  passed  by  the  Disciplinary  Authority  and  the  

Appellate  Authority.   However,  the  High  Court  granted  liberty  to  the  

Disciplinary  Authority  to  conduct  the  inquiry  afresh  from the  stage  of  

nomination of the inquiry officer.

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5. A  simple  but  question  of  some  significance  under  service  

jurisprudence falls for consideration in the present appeals, whether or not  

under  the  relevant  Rules  and  provisions  of  the  Act,  the  Railway  

Authorities  have  the  jurisdiction  to  appoint  a  retired  employee  of  the  

Department  as  ‘Inquiry  Officer’  within  the  ambit  of  Rule  9(2)  of  the  

Railway Servants (Discipline & Appeal) Rules, 1968 (for short referred to  

as ‘the Rules’).

6. The facts necessary for dealing with this batch of appeals can be  

summarily stated.  The respondents in all these appeals are the members in  

service of the Railway Establishment.  Alok Kumar, respondent in SLP  

(C) No. 25293 of 2008, is a Group-A officer, while in all other appeals the  

respondents are from clerical cadre of the Railway Department.  This is  

primarily the only distinguishing feature in the facts of the present appeals.  

The High Court as well  as the Tribunal in all  these cases recorded the  

finding that a retired officer of the Railways cannot be appointed as an  

inquiry officer within the meaning of the provisions of Rule 9 of the Rules.

7. Keeping  in  view  the  common  question  of  law  that  has  been  

answered against Union of India, it may not be necessary for us to refer to  

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the facts of each case in detail.  Suffice it to notice the facts in some detail  

in Shri Alok Kumar’s case.  Shri Alok Kumar, respondent, an officer of  

the  Indian  Railway  Services  of  Engineers  was  appointed  as  Senior  

Divisional  Engineer and  was  one  of  the  Members  of  the  Tender  

Committee as well.  It is the case of the appellants before us that some  

irregularities of the Tender Committee   were noticed.

8. The Competent  Authority  on 11th September,  2001 thus served a  

charge sheet upon the delinquent officer under Rule 9 of the Rules, calling  

upon him to render his explanation with regard to the Article of Charges  

and imputations stated therein.  It was alleged that Shri Alok Kumar, as  

convener member of the Committee besides the official position he was  

holding, submitted a brief calling for tenders on the basis of highly inflated  

estimates with a view to justify award of contract at very high rates.  It was  

also alleged that he did not submit proper information before the Tender  

Committee and deliberately misled the other members of the Committee.  

The Tender Committee which met on 13th July, 1999, upon comparing the  

rates quoted by M/s Rajpal Builders with the estimated tender value, had  

found that these were (–) 1.7% lower than the estimated rates.

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9. In short,  it  was stated that  by misusing his official  status he had  

awarded the contract to the contractor of the Department at high rates.  To  

this, the delinquent filed reply denying the Article of Charges.  One Shri  

J.K. Thapar, retired CAO/FOIS, Northern Railways was appointed as an  

Inquiry Officer.  The inquiry was conducted by him during the year 2001-

02.  The entire file including the Central Vigilance Commission (for short  

‘CVC’)  advice  was  also  placed  before  the  competent  authority.   The  

Disciplinary Authority expressed disagreement and issued a Memorandum  

dated 6th May, 2003 giving a chance to Shri Alok Kumar for making a  

representation.  The Railway Board vide its letter dated 14.6.2004, passed  

an order imposing punishment upon the respondent of reduction by one  

stage in the time scale of pay for a period of one year.   

10. Aggrieved by this Order of punishment, the respondent preferred an  

appeal  which  came  to  be  decided  by  the  Ministry  of  Railways.   The  

Competent Authority rejected the same vide Order dated 18th July, 2005.  

Since  the  respondent  could  not  get  any  relief,  he  filed  an  Original  

Application No. 458 of 2006 before the Tribunal against the orders of the  

Disciplinary Authority and the Appellate Authority.  Different points were  

raised  in  the  application  by  the  respondent,  however  finally  only  two  

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issues were raised before the Tribunal which were noticed in paragraph 6  

of its judgment as under:-  

“(a)Whether, CVC’s advice should be made available  to the defender and (b)Whether a retired person can be appointed as inquiry  officer.”

11. The  Tribunal  while  noticing  the  provisions  of  Rule  9  (2)  of  the  

Rules took the view that the Disciplinary Authority, with an intention to  

examine  the  truth  of  any  imputation  of  misconduct  or  misbehaviour  

against  the  Railway servant,  can conduct  an inquiry  itself  or  appoint  a  

Board of Inquiry or other authority under the Rules.  However, it held that  

even on the strength of the Circular relied upon by the present appellants  

issued by the Railways,  empowering them to prepare a panel of retired  

officers  to  be  nominated  as  inquiry  officers;  the  appellants  have  no  

authority to appoint a former employee as ‘Inquiry Officer’.  The Tribunal  

also took the view that the orders of punishment were vitiated for non-

supply of copy of advice/notes given by the CVC and it was mandatory on  

the part of the Disciplinary Authority to furnish the same to the delinquent.  

Thus on the basis of these findings, the impugned orders were set aside in  

all the cases. The High Court accepted the view of the Tribunal and Writ  

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Petition No. 252 of 2008 filed by the Union of India, and other connected  

writ petitions were dismissed by the High Court giving rise to the present  

petitions.

12. In cases of Satrughan Pal, Suryadeo Tripathi, Ratneshwar Singh and  

Ram Bahor Yadav, it only needs to be noticed that all are from clerical  

cadre of booking clerk etc. In these cases, the Tribunal had decided against  

the appellants relying upon its judgment in the case of Ram Bahor Yadav,  

while taking the view that retired railway officer could not be appointed as  

the Inquiry Officer.  Consequently, the orders of punishment in each case  

were set aside.  

13. In the case of Ram Bahor Yadav, the High Court affirmed the view  

taken by the Tribunal that the words “other authority” in Rule 9 (2) of the  

Rules will not include a retired Railway Officer and, that empanelment of  

retired  Railway Officers  by the  Railway Board’s  letter  dated 29th July,  

1998 does not constitute amendment of Rules and consequently set aside  

the orders of punishment imposed upon the respondents in those cases.   

14. The Union of India has challenged the judgment of the High Court  

in Ram Bahor Yadav’s case in SLP (C) No. 24748 of 2008 and all other  

judgments in the aforementioned  appeals.   With  the  exception of  Alok  

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Kumar’s case, in all the other cases, as is evident from the above narrated  

facts,  we would be  concerned  with  the  interpretation  of  the  Rules  and  

provisions  of  the  Act  read  with  the  Circular  issued  by  the  Railways  

Department/Board to answer the controversy, whether a retired Railway  

Officer can be appointed as Inquiry Officer for the purposes of conducting  

departmental inquiries against the employees of the Railway Department.  

In case of Shri Alok Kumar an additional issue will have to be dealt with  

by us with regard to the alleged non-furnishing of the Central Vigilance  

Commission advice/notes, to the delinquent and its effect on the merits of  

the case.   

15. Before we proceed to examine the relevant provisions, we may also  

notice that a different view was taken by the Bench of Guwahati  High  

Court in the case of Kendriya Vidyala Sangthan v. Vijay Bhatnagar, Writ  

Petition No.  6795 of 2005 than the view taken by the Allahabad High  

Court,  Lucknow  Bench,  in  the  impugned  judgment.  The  Bench  of  

Guwahati High Court while dealing with Rule 14 (2) of the CCS Rules had  

set aside the judgment of the Tribunal and held that a retired person could  

be appointed as Inquiry Officer which judgment is heavily relied upon by  

the appellants before us.

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DISCUSSION ON LAW

16. During  the  British  regime  some  of  the  persons  holding  high  

positions,  in  the  governance of  the  Indian  Dominion were  found to  be  

acting as autocrat.  Their behaviour as public servants became a cause of  

concern for the Government.  In order to have a check on this, a Bill was  

introduced in the Legislature on 1st November, 1850.  By Act 1 of 1897 it  

was enacted as ‘The Public Servants (Inquiries) Act, 1850’.  This Act was  

enacted  with  an  object  to  amend  the  law  of  regulating  inquiries  into  

behaviour  of  public  servants,  not  removable  (from their  appointments)  

without the sanction of the Government and to make the same uniform  

throughout the Indian Territory.  The provisions of this law clearly show  

that it is a self-sufficient code right from the stage of serving of Articles of  

Charges which were to be drawn up for the public inquiry to be conducted  

in the cases of the misbehaviour by public servants, till submission of the  

records  of  proceedings  to  the  competent  Government.   The  competent  

Government on consideration of  the report  may order  taking of further  

evidence or direct the authority to which the person was subordinate for  

their opinion and finally pass such orders thereon as may appear consistent  

with  its  powers  in  such  cases.   Section  3  of  this  Act  which  has  been  

referred to and even relied upon by the authorities reads as under:

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“Authorities  to  whom  inquiry  may  be  committed  –  Notice  to  accused  –  The  inquiry  may  be  committed  either to the Court, Board or other authority to which  the  person  accused  is  subordinate  or  to  any  other  person  or  persons,  to  be  specially  appointed  by  the  Government, commissioners for the purpose: notice of  which commission shall be given to the person accused  ten days at least before the beginning of the inquiry.”

17. The Act  remained unimplemented  as the  provisions  thereof  were  

hardly invoked by the authorities concerned.  The President of India in  

exercise  of  the  powers  conferred  by  the  proviso  to  Article  309 of  the  

Constitution  of  India,  1950  made  the  rules  termed  as  the  ‘Railway  

Servants Discipline and Appeal (Rules 1968)’. They came into force on  

1st October, 1968.

18. The Preamble of the Act also indicates the Legislative intent as to  

which class of persons the provisions of the Act would be applicable.  It is  

abundantly clear that the persons who are covered under the provisions of  

the Act are persons who are public servants and not removable from their  

appointment without sanction of the Government.  This criterion has to be  

specified before the provisions of the Act can be made available, and an  

inquiry can be conducted under its provisions.  In fact,  the language of  

Sections 2 & 3 of  the Act  is  quite  distinguishable  from the provisions  

normally covering the disciplinary action in departmental  inquiries.   In  

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terms of Section 2, the Government has to form an opinion that sufficient  

grounds existed for making a formal and public inquiry into the truth of  

any  imputation  of  misbehaviour  by  any  person  in  the  service  of  the  

Government,  who cannot be removed from his appointment without its  

sanction. Such an inquiry could be conducted by a Board or other authority  

to which the said Officer is subordinate or any other person or persons to  

be  specifically  appointed  by  the  Government.   However,  in  terms  of  

Section 4, the Government, where it thinks fit to conduct the prosecution,  

shall nominate some person to conduct the same on its behalf.  Under this  

Section, the prosecution has to be completed in terms of the provisions of  

the Act by the persons so appointed or the Commissions so appointed.  In  

other  words,  inquiry  or  prosecution  has  to  be  conducted  strictly  in  

consonance with these provisions.  The scope of applicability of this Act  

cannot be enlarged and it must be construed somewhat narrowly and the  

persons who are not specifically covered under the provisions of this Act  

cannot be included by implication or exemption.  It  is a settled rule of  

interpretation that where the legislature in its wisdom has made an Act  

applicable to a particular class of persons, there it will be impossible to  

construe it in a manner so as to enlarge the scope of its applicability.  The  

provisions afore-referred as well as scheme of the Act makes it clear that  

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the provisions are applicable to the public servants who can be removed  

from service  only  with  the  sanction  of  the  Government.   In  the  cases  

before us, including that of Mr. Alok Kumar, it had not been suggested by  

either party that they are removable from service only with prior sanction  

of  the  Government.   In  fact,  they  can  be removed by the  Disciplinary  

Authority in accordance with the law.  The charge-sheet, which was served  

in  Form No.  5  under  Rule  9  of  the  Rules,  did  not  even  refer  to  the  

provisions of the Act.  The Memorandum, in which the charge-sheet was  

contained,  described  him  as  Senior  DE/1  Northern  Eastern  Railways,  

Lucknow and referred to  the  provisions  of  Rule  9  and Rule 20 of  the  

Railway  Service  Conduct  Rules  1966.   In  other  words,  the  competent  

authority did not direct either a public inquiry or a prosecution under the  

relevant provisions of the Act.  The departmental proceeding against the  

said respondent was restricted to the applicability of Rule 9 of the 1968  

Rules.   Thus, recourse to the provisions of the Act for the purposes of  

interpretation  or  deciding  the  controversies  in  issue  was  entirely  

unwarranted in the facts and circumstances of the case in hand.

19. Now,  let  us  examine  the  ambit,  scope  and  ramifications  of  the  

Railway Service Disciplinary Rules, 1968 in relation to the departmental  

inquiries in the Department of Railways and the delinquent.  The Rules in  

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question, noticed at the very threshold, are a complete code in itself.  It  

opens  with  the  words  “these  rules  have  been framed  under  proviso  to  

Article 309 of the Constitution and are applicable to the officers/officials  

of  the  Railways”.   Rule  2  of  the  Rules  defines  ‘appointing  authority’,  

‘disciplinary authority’, ‘Head of the Department’ and ‘service’ under its  

different sub-rules.  Service is stated to mean, service under the Ministry  

of Railways and in terms of Rule 3.  The Rules are applicable to every  

railway servant but  shall  not apply to the class of members  or  persons  

indicated in Rule 3 (i) (a) to (d).  Rule 5 empowers the competent authority  

to place a railway servant under suspension and this power is controlled by  

the provisions of Rule 4 which requires the specified authorities alone to  

act  in  terms of  Schedule  1  and 2 respectively  for  passing such orders.  

These  Schedules  not  only  specify  the  class  of  employees  who  can  be  

placed under suspension but also the authority which can pass such orders  

as well as the authority which shall be the appellate authority for dealing  

with the grievances raised by the delinquent officer/official.   It  may be  

noticed that Schedule 1 deals with a class of non-gazetted railway servants  

including Grade-B non-gazetted officers/officials.  Schedule-II deals with  

different grades of railway officers and senior supervisors of non-gazetted  

staff.   Schedule  III  spells  out  the  class  of  railway  servants  covered,  

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authority  empowered  to  place  a  railway  servant  under  suspension  or  

impose penalty and its nature as well as the appellate authority.  Railway  

servants of Grade-A and Grade-B are dealt with under this Schedule and  

the President is vested with full powers.  Where the orders are passed by  

the Railway Board, the appeal lies to the President.  The penalties that can  

be  imposed  upon  a  delinquent  officer/official  for  good  and  sufficient  

reasons have been spelt out in Rule 6, for which a disciplinary authority  

has been specified under Rule 7.  While Rule 8 deals with authority to  

institute the proceedings, there is Rule 9 which falls under Part IV of these  

Rules, which provides the procedure for imposing major penalties.  In fact,  

Rule  9  to  Rule  12  are  the  most  relevant  provisions  which  detail  the  

procedure which is to be followed and the imposition of punishments and  

communication  of  such  orders.   Rule  9  contemplates  the  complete  

procedure  for  imposition  of  major  penalty  including  appointment  of  

inquiry officer and submission of the report by the inquiring authority to  

the disciplinary authority.  Rule 10 specifies the action which can be taken  

on the submission of  the inquiry report.   Keeping in view the primary  

challenge raised in these appeals, it will be useful to refer to the relevant  

part of Rule 9:

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“Rule 9. Procedure for imposing major penalties

(1) No order  imposing  any  of  the  penalties  specified  in  Clauses (v) to (ix) of Rule 6 shall be made except after  an  inquiry  held,  as  far  as  may  be,  in  the  manner  provided in  this  rule  and Rule  10,  or  in  the  manner  provided by the Public Servants (Inquiries) Act, 1850  (37 of 1850) where such inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion  that there are grounds for inquiring into the truth of any  imputation  of  misconduct  or  misbehaviour  against  a  railway servant,  it  may itself  inquire  into,  or  appoint  under  this  rule  or  under  the  provisions of  the  Public  Servants (Inquiries) Act, 1850, as the case may be, [a  Board of Inquiry or other authority] to inquire into the  truth thereof.

(3) Where a Board of Inquiry is appointed under sub-rule  (2) it shall consist of not less than two members, each  of  whom  shall  be  higher  in  rank  than  the  Railway  servant against whom the inquiry is being held an none  of whom shall be subordinate to the other member or  members, as the case may be, of such Board.

Explanation:  

Where the disciplinary authority itself holds the  inquiry, any reference in sub-rule (12) and in sub-rule  (14) to sub-rule (25), to the inquiring authority shall be  construed as a reference to the disciplinary authority.”

20. Sub rule 6 of Rule 9 states that,  where it  is proposed to hold an  

inquiry against a railway servant under Rule 9 and Rule 10, there a charge  

sheet and imputation of conduct and misbehaviour upon the said officer  

shall  be served and the procedure  as  specified shall  be followed.   The  

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language of this rule clearly shows that there is a discretion vested in the  

disciplinary authority, enabling it to hold the inquiry itself or get the truth  

of imputations inquired by any ‘other authority’ in terms of the Rule.  It  

will  be appropriate  to  read  Rule 9(1)  and 9(2)  together  but  cautiously.  

Rule 9(1) starts with a negative language putting an embargo on passing of  

an order imposing penalties as specified under clause 5 to clause 9 of Rule  

6,  major  penalties  can  be  imposed  except  after  an  inquiry  held.   The  

inquiry contemplated can be held as per the procedure spelt out in Rule 9  

and Rule 10 of these Rules.  The other mode of holding an inquiry is in the  

manner provided by the Public Service Inquiries Act,  1850, when such  

inquiries are held under that Act.  The language of Rule 9 of the Rules,  

therefore, clearly demonstrates that the Rules and the Act are neither inter-

dependent nor convey a legislative intent that a departmental inquiry has to  

be  held  under  both  collectively  or  at  the  discretion  of  the  disciplinary  

authority.  We have already clarified it above, that the provisions of the  

Act are applicable to a very limited class of persons i.e., the officers who  

are removable or liable to be dismissed from service only with the sanction  

of the Government.  The Rules, as framed, are applicable to non-gazetted  

officers  and  officials  of  the  Department  of  Railways  except  Grade-A  

officers specified under Schedule 3 of the Rules.  Thus, under the scheme  

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of the Rules and the Act and particularly, keeping in view the preamble of  

the Act, it  is not correct to say that absolute discretion is vested in the  

authorities concerned to subject a person to departmental inquiries in terms  

of the Rules or the Act.  They have to exercise the power in accordance  

with the provisions of the relevant statute.   Such an approach is amply  

indicated  even  in  the  language  of  Rule  9(2).   The  Rules  require  the  

disciplinary authority to form an opinion that the grounds for inquiry into  

the truth of imputations of misconduct or misbehaviour against the railway  

servant exists.  Further,  that they have enquired into the matter.   Then,  

such inquiry may be conducted by the disciplinary authority itself  or it  

may  appoint  under  the  Rules  a  Board  of  Inquiry  or  other  authority  to  

enquire into the truth thereof.  Formation of such an opinion is a condition  

precedent for the disciplinary authority, whether it intends to conduct the  

inquiry  under  the  Rules  or  under  the  Act  as  the  case  may  be.   The  

expression  “as  the  case  may  be”  clearly  suggests  that  law  which  will  

control  such  departmental  inquiry  would  depend  upon  the  class  of  

officers/officials whose misconduct or misbehaviour subject them to such  

inquiry.   If  the  employee  is  covered  under  the  Act,  the  disciplinary  

authority  shall  have to appoint  an inquiry officer  and proceed with the  

inquiry under the provisions of the Act, whereas if he is covered under the  

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Rules, the procedure prescribed under the Rules will have to be followed.

21. Other important feature in the language of the Rule is appoint under  

this  Rule  a  Board  of  Inquiry  or  other  Authority.   What  shall  be  the  

constitution  of  the  Board of  Inquiry  and how the same would proceed  

further with the inquiry has been stated in sub-rules 3, 4 and 5 of Rule 9 of  

the Rules.  The expression “other authority” has neither been explained  

nor defined under the Rules.  In terms of Rule 2(1) (2), the words which  

have not been defined under these Rules shall be deemed to have been  

assigned  the same meaning  as assigned under  the  Indian Railway Act,  

1890.  

22. Even the Indian Railway Act does not define the term “authority”  

though this expression has been used in conjunction with other words in  

the Rules as  well  as  the Act.   In absence of any specific  definition or  

meaning we have to rely upon understanding of this expression in common  

parlance.  In common parlance, the word ‘authority’ is understood to be,  

power to exercise and perform certain duties or functions in accordance  

with law.  Authority may vest in an individual or a person by itself or even  

as a delegatee.  It is the right to exercise power or permission to exercise  

power.  Such permission or right could be vested in an individual or a  

19

body.  It can also be in conferment of power by one person to another.  

This expression has been used differently in different statutes and can be  

given a different meaning or connotation depending upon the context in  

which it is used.   The purpose and object of using such expression should  

be understood from the provisions of  the relevant  law and the purpose  

sought to be achieved.  The word ‘authority’ is derived from the latin word  

auctoritas, meaning  intention,  advice,  opinion,  influence  or  command  

which originate from an auctor, indicating that authority originates from a  

master,  leader  or  author,  and  essentially  is  imposed  by  superior  upon  

inferior  either  by  force  of  law  (structural  authority)  or  by  force  of  

argument (sapiential authority)   

23. Farlex Free Dictionary explains the word ‘authority’ as follows:  

“Authority  n.  permission,  a  right  coupled  with  the  power to do an act or order others to act.  Often one  person gives another authority to act, as an employer to  an employee, a principal to an agent, a corporation to  its officers, or governmental empowerment to perform  certain functions.  There are different types of authority  including “apparent authority” when a principal gives  an  agent  various  signs  of  authority  to  make  others  believe he or she has authority, “express authority” or  “limited  authority”  which  spell  out  exactly  what  authority  is  granted  (usually  a  written  set  of  instructions), “implied authority” which flows from the  position one holds, and “general authority” which is the  broad power to act for another.

20

Oxford Dictionary explains the word as under:  

“1.  (a)  The  power  to  enforce  laws,  exact  obedience,  command, determine, or judge.

     (b) One that is invested with this power, especially  a government or body of government officials  :  land  titles issued by the civil authority.   2. Power  assigned  to  another;  authorization:  Deputeis were given authority to make arrests.

Merrium  Webster’s  Law  Dictionary,  1996  explains  the  word  as  under :  

“Authority pl. – ties

1. an  official  decision  of  a  court  used  esp.  as  a  precedent.

2. (a) a power to act est. over others that derives from  status, position, or office.  Example : the authority  of the president.

(b)  the  power  to  act  that  is  officially  or  formally  granted (as by statute, corporate bylaw, or court order).

3. …….

4 (a)  a  government  agency  or  corporation  that  administers  a  revenue-producing public  enterprise.  Example : the transit authority

    (b)  a  government  agency  or  public  office  responsible  for  an  area  of  regulation.    Example  :  should apply for a permit to the permitting authority.”

21

In Law Lexicon, 2nd Edition, 1997 pg. 171, the word ‘authority’ has  

been explained and elucidated as follows :  

“A person or persons, or a body, exercising power of  command;  generally  in  the  plural:  as,  the  civil  and  military  authorities.   Power  or  admitted  right  to  command or to act,  whether original or delegated: as  the authority of a prince over subjects and of parents  over children ; the authority of an agent to act for his  principal.  An authority is general when it extends to all  acts,  or  all  connected  with  a  particular  employment,  and special when confirmed to a single act.

“Authority, is nothing but a power to do something; it  is sometimes given by word, and sometimes by writing;  also  it  is  by  writ,  warrant,  commission,  letter  of  attorney & c. and sometimes by law.  The authority that  is given must be to do a thing lawful: for if it be for the  doing anything against law, as to beat a man, take away  his goods, or disseise him of his lands this will not be a  good authority to justify him that doth it.:

“Authority  (In  contracts)  the  lawful  delegation  of  power by one person to another.

Authority(In  administrative  law)  is  a  body  having  jurisdiction in certain matters of a public nature.   

Authority.  Permission.   Right  to  exercise  powers;  to  implement  and  enforce  laws;  to  exact  obedience;  to  command; to judge.  Control over; jurisdiction.  Often  synonymous with power.  The power delegated by a  principal to his agent.  The lawful delegation of power  by  one person to  another.   Power  of  agent  to  affect  legal relations of principal by acts done in accordance  with principal’s manifestations of consent to agent.”

22

24. It  is  clear  from above  that  there  is  some  unanimity  as  to  what  

meaning  can  be  given  to  the  expression  ‘authority’.   The  authority,  

therefore,  should  be  understood  on  its  plain  language  and  without  

necessarily curtailing its scope.  It will be more appropriate to understand  

this expression and give it a meaning which should be in conformity with  

the context and purpose in which it has been used.  The ‘other authority’  

appearing in Rule 9(2) is intended to cover a vast field and there is no  

indication of the mind of the framers that the expression must be given a  

restricted or a narrow meaning.  It is possible that where the authority is  

vested in a person or a body as a result of delegation, then delegatee of  

such authority has to work strictly within the field delegated.  If it works  

beyond  the  scope  of  delegation,  in  that  event  it  will  be  beyond  the  

authority and may even, in given circumstances vitiate the action.

25. Now, we have to examine the argument of the respondents before  

the court that the expression ‘other authority’ shall have to be construed to  

cover only the persons who are in the service of the railways.  In other  

words, the contention is that the expression ‘person’ used under Section 3  

of the Act and expression ‘authority’ used under Rule 9(2) contemplates  

the person to be in service and excludes appointment of an inquiry officer  

(authority) of a retired railway officer/official.

23

  26. Heavy reliance was placed by the respondents upon the judgment of  

this  Court  in  the  case  of  Ravi  Malik  v.  National  Film  Development  

Corporation  Ltd.  &  Ors.   [2004  (13)  SCC  427].   We  have  already  

discussed at some length the scheme of the Rules.  As already noticed, we  

are not required to discuss in any further elaboration the inquiries taken  

under the Act, inasmuch as none of the respondents before us have been  

subject  to public  departmental  inquiry  under the  provisions of  the  Act.  

Rule 9 (2) requires the authority to form an opinion, whether it should hold  

the inquiry into the truth of imputation of  misconduct  or  misbehaviour  

against the railway servant itself or should it appoint some other authority  

to do the needful.  Thus, there is an element of discretion vested in the  

competent  authority  to  appoint  ‘other  authority’  for  the  purposes  of  

conducting  a  departmental  inquiry.   It  is  a  settled  principle  of  

interpretation  that  exclusion must  either  be specifically  provided or  the  

language of the rule should be such that it definitely follows by necessary  

implication.  The words of the rule, therefore, should be explicit  or the  

intent should be irresistibly expressed for exclusion.  If it was so intended,  

the framers of the rule could simply use the expression like ‘public servant  

in office’ or ‘an authority in office’.  Absence of such specific language  

exhibits the mind of the framers that they never intended to restrict the  

24

scope of ‘other authority’ by limiting it to the serving officers/officials.  

The principle of necessary implication further requires that the exclusion  

should be an irresistible conclusion and should also be in conformity with  

the purpose and object of the rule.   

27. The  learned  counsel  appearing  for  the  respondents  wanted  us  to  

accept  the  argument  that  provisions  of  Rule  9  (2)  have  an  implicit  

exclusion in its language and exclusion is absolute.  That is to say, the  

framers  have  excluded  appointment  of  former  employees  of  Railway  

Department as other authority (inquiry officer) under these provisions.  We  

find no merit in this contention as well.  An exclusion clause should be  

reflected in clear, unambiguous, explicit and specific terms or language, as  

in the clauses excluding the jurisdiction of the court the framers of the law  

apply specific language.  In some cases, as it may be, such exclusion could  

be read with reference to irresistible implicit exclusion.  In our opinion the  

language of Rule 9(2) does not support the submission of the respondents.  

Application of principle of exclusion can hardly be inferred in absence of  

specific language.  Reference in this regard can be made to the judgment  

of  this  Court  in  the  case  of  New Moga Transport  Co.  v.  United India  

Insurance Co. Ltd. [AIR 2004 SC 2154].

25

28. In  the  present  case,  neither  of  these  ingredients  appear  to  be  

satisfied.  Ultimately, what is the purpose of a departmental inquiry?  It is,  

to put to the delinquent officer/official the charges or article of charges and  

imputation and seek his reply in the event of there being no substance to  

hold  an  inquiry  in  accordance  with  the  rules  and  principles  of  natural  

justice.  The inquiry officer appointed by the disciplinary authority is a  

delegatee and has to work within the limited authority so delegated to him.  

The  charges  and  article  of  charges  and  imputations  are  served  by  the  

disciplinary/competent authority.  The inquiry report is submitted again to  

the competent authority which is expected to apply its mind to the entire  

record and then decide whether any punishment should be imposed upon  

the delinquent officer or not. Thus, all substantive functions are performed  

by  the  disciplinary  or  the  specified  authority  itself.   It  is  only  an  

interregnum inquiry.  It is conducted by the delegatee of the said authority.  

That being the purpose and specially keeping in mind the language of Rule  

9 (2), we are unable to accept the contention that ‘other authority’ has to  

be a person in service alone.  Thus, it is not only the persons in service  

who could be appointed as inquiry officers (other  authority)  within the  

meaning  of  Rule  9(2).   Reliance  placed  by  the  respondents  upon  the  

judgment of this Court in the case of Ravi Malik (supra) is hardly of any  

26

assistance  to  them.   Firstly,  the  facts  and  the  Rules  falling  for  

consideration  before  this  Court  in  that  case  were  entirely  different.  

Secondly, the Court was concerned with the expression ‘public servant’  

appearing in Rule 23 (b) of the Service Rules and Regulations, 1982 of the  

National Film Development Corporation.  The Court expressed the view  

that public servant  should be understood in its  common parlance and a  

retired officer would not fall within the meaning of public servant, as by  

virtue  of  his  retirement  he  loses  the  characteristics  of  being  a  public  

servant.  That is not the expression with which we are concerned in the  

present case.  Rule 9 (2) as well as Section 3 of the Act have used a very  

different expression i.e. ‘other authority’ and ‘person/persons’.  In other  

words,  the  absence  of  the  word  public  servant  of  the  Government  is  

conspicuous by its very absence.  Thus, both these expressions, even as per  

the dictum of the Court should be interpreted as understood in the common  

parlance.  Another factor which we may notice is that the definition of the  

public servant appearing in the Indian Penal Code (for short ‘the Code’),  

reliance upon which was placed by the respondents, was not brought to the  

notice of the Court while dealing with the case of Ravi Malik (supra).  In  

terms of Section 21 of the Code a public servant denotes a person falling  

under any of the descriptions stated in the provision.  While it refers to a  

27

different kind of persons it also brings within its ambit every arbitrator or  

every person to whom any cause or matter has been referred for decision  

or  report  by  any  court  or  any  other  competent  public  authority.  

Furthermore, as per the 12th clause of inclusion, in this very section, even  

“every person” can be a public servant.  In fact, in terms of Section 21 (a)  

a person who is in service of the Government or remunerated by fees or  

commission for the purpose of any public duty of a Government is also a  

public servant.   

29. Thus, a person who is engaged by a competent authority to work on  

a  fee  or  a  fixed  remuneration  can  be  a  public  servant.   We  fail  to  

understand then how a person engaged for the purposes of performing a  

delegated function in accordance with law would not be ‘other authority’  

within  the  meaning  of  the  Rule 9(2).   The Rule has  not  specified  any  

qualifications or pre-requisites which need to be satisfied before a person  

can be appointed as an inquiry officer.  It has been left to the discretion of  

the disciplinary authority.  Unless such exclusion of a former employee of  

the Government was spelt out specifically in the Rule, it will be difficult  

for the Court to introduce that element and the principle of implication  

simplicitor.  Another aspect of the matter which would require deliberation  

of the Court is that, the competent authority in the Department of Railways  

28

as well as the Railway Board, Ministry of Railways, Government of India  

has  issued  certain  circulars,  specifically  contemplating  preparation  of  a  

panel of former officers/employees of the railway department, who can be  

appointed as inquiry officers to conduct the departmental inquiry as the  

disciplinary/competent  authority.   Firstly,  the  circular  is  stated  to  have  

been  issued  on  16th July,  1998  wherein  it  has  been  noticed  by  the  

authorities that a large number of cases are coming up before the Vigilance  

Department.   These  cases  relate  to  corruption  and  other  serious  

irregularities.   Number of such cases pertain to non-gazetted staff.   An  

inquiry  is  essentially  conducted  before  imposition  of  major  penalty  in  

terms of Rule 9(2).  Number of cases have been pending at the inquiry  

stage for a considerable time and cannot be disposed of because of non-

completion.   So,  in order  to liquidate  the large  outstanding position of  

department cases expeditiously, it was felt necessary to empanel certain  

retired senior-scale and JA Grade officers who would be relatively free to  

undertake  the  inquiries.   This  further  led  to  the  criteria  of  eligibility,  

remuneration  and  the  work  expected  to  be  performed  by  the  former  

employees to be appointed as inquiry officers.  Again a circular is stated to  

have been issued on 16th October, 2008 on the same lines and taking a  

view that the former employees could be appointed as inquiry officers.  Of  

29

course, the circular of 2008 may not be of great relevancy before us as the  

charge sheet was served upon the delinquent officer/official much prior to  

the  implementation  of  this  circular.   However,  the  circular  of  1998  is  

relevant.  

30. The contention raised before us is  that the circular  issued by the  

appellants is in contradiction to the language of Rule 9(2).  It is a settled  

rule that a circular cannot supersede the provisions of the Rules and thus  

appointment of the former employees of the railway department as inquiry  

officer is impermissible and the appellants had no jurisdiction to issue such  

circular.  On the other hand, it is contended on behalf of the appellant, that  

special instructions can be issued by the department for dealing with its  

affairs and such circulars are permissible.  It  is also submitted that, the  

circular being in furtherance to the provisions of law would even prevail  

over the Rules without having been issued for a specific purpose.  Reliance  

is placed upon the judgment of this Court in the case of Union of India &  

Ors. v. Virpal Singh Chauhan & Ors. [1995 (6) SCC 684].  Firstly, we are  

unable  to  see  any  conflict,  much  less  the  contradiction  between  the  

language of Rule 9(2) and the circular of 1998 issued by the appellants.  

Under Rule 9(2), the disciplinary authority has the discretion to appoint a  

‘Board  of  Inquiry’  or  ‘other  authority’  to  conduct  inquiry  against  the  

30

delinquent officer/official.  The circular only aids it further while saying  

that in the interest of the administration and in consonance with the Rules,  

the  former/retired  officers  of  the  railway  department  who  satisfy  the  

eligibility  criteria  can  be  appointed  as  inquiry  officer  and submit  their  

report to the disciplinary authority in accordance with law.  It is clear that  

the circular issued is only supplementing Rule 9(2) and is in no way in  

conflict with the language or spirit of Rule 9(2).  The argument advanced  

on behalf of the respondents is that in the event of clear conflict between  

circulars and the statutory rules, the circular cannot be permitted to prevail.  

This argument would be of worth consideration only if the respondents are  

able to demonstrate before the Court without ambiguity that it is a case of  

conflict and the circular issued is in terms contrary to the language of the  

statute.   

31. We are unable to see any such conflict or contradiction.  When a  

circular  is  issued  for  the  purposes  of  supplementing  the  removal  of  

ambiguity  in  the  Rule  or  to  achieve  the  purpose  of  the  Rule  more  

effectively, it can hardly be said that there is a conflict between the two.  

The matter shall certainly be on a different footing, where the Rule by a  

specific  language or  by necessary implication makes  such exclusion or  

provides that a particular class of persons cannot be appointed as authority  

31

(inquiry officer).   It  may also be true in the case where the Rule itself  

makes it mandatory for the disciplinary authority to appoint a particular  

class of persons and no other as inquiry officers.  While examining the  

provisions of vesting of discretion, it cannot be said that they should be  

interpreted  in  a  manner  which  would  take  away  the  discretion  

contemplated under the Rule.  Rather it would be appropriate to adopt an  

interpretation which would further the object of such rule.  In the case of  

Virpal  Singh  Chauhan  (supra),  this  Court  was  concerned  with  the  

circular/letters providing for reservation in favour of SC & ST and their  

operation  on  the  subject  of  seniority  as  between  reserved  and  general  

category  candidates.  Certain  instructions  had  been  issued  and  after  

perusing the facts of that case this Court took the view that, the Railway  

Board circulars which are provided specifically for such a situation and are  

not  being  violative  of  the  constitutional  provisions,  should  prevail  and  

given effect to.  In that case also it was not brought to the notice of the  

Court  that  the  letter/circular  was  in  any  way  inconsistent  with  the  

provisions of any law, as in the present case the respondents have failed to  

demonstrate that the circular issued is in conflict with or opposed to any  

specific rule enacted under proviso to Article 309 of the Constitution or  

any other  constitutional  protection.   Once there is  no conflict,  then the  

32

Rule and the circular should be harmoniously read.

32. Another  indication  under  the  Rules  which  is  suggested,  is  non-

application of the Rule of strict construction to the provisions with regard  

to  appointment  of  an  Inquiry  Officer  and  where  the  expressions  

Appointing  Authority,  Disciplinary  Authority  and  Appellate  Authority  

have been duly explained and provided for, either under the Rules or in the  

schedule to these Rules.  As0. already noticed, the Schedule specifies the  

powers of the respective authorities to take disciplinary action against the  

delinquent officer, either in certain terms or even by interpretation, it does  

not suggest which class of persons should or should not be appointed as  

inquiry officers.  On the contrary, Rule 9 (2) specifically empowers the  

Disciplinary Authority to inquire into the matter itself or appoint another  

authority  to  conduct  the  inquiry.   In  other  words,  the  functions  of  the  

Inquiry Officer are that of a delegating nature and this delegation ex facie,  

is limited delegation.  An Inquiry Officer is not even entitled to suggest the  

punishment unless the Rule so requires specifically, which is not the case  

here.   It  is  a  settled  rule  that  the  provisions  of  an Act/Rule  should  be  

examined  in  their  entirety  along  with  the  scheme  before  a  particular  

meaning can be given to an expression or sentence used in a particular  

33

language.  Thus we must examine the Rules in their entirety along with the  

conditions of the Schedule and not merely look at Rule 9 (2) in isolation.

33. Still another aspect of the case can be that, the expression “public  

servant”  cannot  be  equated  to  the  term “other  authority”.   Both  these  

expressions cannot be treated as inter-changeable or synonymous.  They  

have different connotations and meaning in law.  “Public servant” is a term  

which is well defined and explained in the field of law, while “authority”  

is a generic term and is used in different places with different meanings  

and purposes.  ‘Authority’ thus is an expression of wide magnitude and is  

frequently used not only in legal jurisprudence but also in administrative  

and executive field.  Therefore, it is to our mind not permissible to permit  

restricted meaning of this term.

34. It  was  also  contended  on  behalf  of  the  respondents  that  the  

competent authority exercising power under Rule 9 (2) is vested with a  

choice  whether  to  take  action  under  these  Rule  or  under  the  Act.  

Emphasis is laid on the language of Rule 9 (2) while submitting that the  

expression “other authority” would have to be read ejusdem generis to the  

earlier part of Rule 9 (2) and that they must take colour from the earlier  

part of the Rule.  While reliance is placed upon the judgment of this Court  

34

in  the  case  of  Commissioner  of  Income  Tax,  Udaipur,  Rajasthan  Vs.  

Mcdowell and Company Limited [2009 (10) SCC 755] to contend that the  

Rules and the provisions of the Act contemplate ‘other authority’ only as  

the  persons  in  service.   We  are  not  impressed  with  either  of  these  

submissions.  Firstly, the general rule stated in the case of Mcdowell and  

Company (supra) is a matter relating to fiscal laws, the interpretation of  

which is controlled by the rule of strict construction.  We have already  

discussed at some length that it is not possible for this Court to apply the  

rule  of  strict  construction  to  the  provisions  in  question  before  us.  

Applicability of such doctrine to the rules of procedure under the service  

jurisprudence can hardly be justified.   

35. The rule of ejusdem generis is applied where the words or language  

of which in a section is in continuation and where the general words are  

followed by specific words that relates to a specific class or category.  This  

Court in the case of Mcdowel and Company Ltd. (supra) while discussing  

this doctrine at some length held as under:

“The principle of statutory interpretation is well known  and well settled that when particular words pertaining  to a class, category or genus are followed by general  words are construed as limited to things of the same  kind as those specified.  This rule is known as the rule  of ejusdem generis.  It applies when:

35

(1) the  statute  contains  an  enumeration  of  specific  words;

(2) the  subjects  of  enumeration  constitute  a  class  or  category;

(3) that  class  or  category  is  not  exhausted  by  the  enumeration;

(4) the general terms follow the enumeration; and (5) there  is  no  indication  of  a  different  legislative  

intent.   

        36. The maxim ejusdem generis is attracted where the words preceding  

the general word pertains to class genus and not a heterogeneous collection  

of items in the case of Housing Board, Haryana (supra).

37. The language of Rule 9(2), on its plain reading shows that the words  

are  disjunctive  and  therefore,  this  principle  of  interpretation  would  be  

hardly applicable to the facts of the present case.  It is also incorrect to  

suggest,  much less  to argue,  that  under Rule 9 (2)  a discreet  choice is  

vested under the authority concerned. We have already indicated that the  

Act is applicable to a special class of persons while Rules are applicable to  

other  class  of  persons  including  Grade  –  A  to  Grade  –  D.   Once  the  

provisions  of  the  Act  are  attracted,  a  public  inquiry  has  to  be  held  in  

accordance with the provisions of the Act.  The Rules and the Act, as self-

contained codes within themselves,  operate in a way without impinging  

upon the field of the other.  There is hardly any discretion vested in the  

36

competent authority, it is only for the purposes of conducting an inquiry  

personally or through some other appointed authority that the discretion is  

vested.   In  the  event  of  delegation  by  the  competent  authority,  the  

delegatee  authority  has  to  function  within  the  limit  of  the  authority  

delegated to it. At the cost of repetition we may notice that neither in the  

Rules  nor  in  the  provisions  of  the  Act  which  are  independent  in  their  

application, there is any requirement or even suggestion that appointment  

of an authority or Board has to be essentially of a person in service, even a  

former employee could be appointed so.

38. It will be useful to apply the rule of contextual interpretation to the  

provisions of Rule 9.  It would not be permissible to import any meaning  

or make additions to the plain and simple language of Rule 9(2) in relation  

to “other authority.”  The rule of contextual interpretation requires that the  

court should examine every word of statute in its context, while keeping in  

mind the preamble of the statute, other provisions thereof, pari material  

statutes, if any, and the mischief intended to be remedied.  Context often  

provides a key to the meaning of the word and the sense it carries.  It is  

also a well established and cardinal principle of construction that when the  

rules and regulations have been framed dealing with different aspects of  

the  service  of  the  employees,  the  Courts  would  attempt  to  make  a  

37

harmonious construction and try to save the provision, not strike it down  

rendering the provision ineffective.  The Court would normally adopt an  

interpretation which is in line with the purpose of such regulations.  The  

rule  of  contextual  interpretation  can  be  purposefully  applied  to  the  

language of Rule 9 (2), particularly to examine the merit in the contentions  

raised by respondent before us.  The legislative background and the object  

of  both  the  Rules  and the  Act  is  not  indicative  of  any  implied  bar  in  

appointment of former employees as inquiry officers.   

39. These principles are well established and have been reiterated with  

approval by the courts, reference can usefully be made to the judgments of  

this  court  in the cases of Gudur Kishan Rao v. Sutirtha Bhattachaarya,  

[(1998)  4  SCC 189],  Nirmal  Chandra Bhattacharjee  v.  Union of  India,  

[1991  (Supp  (2)  SCC 363],  Central  Bank  of  India  v.  State  of  Kerala,  

[(2009) 4 SCC 94], Housing Board of Haryana v. Haryana Housing Board  

Employees Union, [(1996) 1 SCC 95].

40. The circulars have been issued by the Department of Railways, from  

time to  time,  to  recognize  preparation  of  panels  for  appointing inquiry  

officers as per the terms and conditions, including the eligibility criterion  

stated in those circulars.  We may notice here that, there is no challenge in  

38

any of the applications filed before the Tribunal to any of the circulars,  

despite  the  fact  that  they  have  been  duly  noticed  in  the  impugned  

judgments.  By passage of time and practice the competent authorities and  

even the delinquent officers in disciplinary cases have given effect to these  

circulars  and  they  were  treated  to  be  good  in  law.   It  is  only  in  the  

arguments  addressed before this  Court,  where it  is  suggested that these  

circulars  supersede or  are  in  conflict  with  the  Rules.   This  part  of  the  

contention we have already rejected.   

41. It  is  not  opposed  to  any  canons  of  service  jurisprudence  that  a  

practice  cannot  adopt  the  status  of  an  instruction,  provided  it  is  in  

consonance with law and has been followed for a considerable time.  This  

concept is not an absolute proposition of law but can be applied depending  

on the facts and circumstances of a given case.  This Court in the case of  

Confederation of Ex-Service Man Associations and Ors. v. Union of India  

and Ors., [(2006) 8 SCC 699] was concerned with providing of Medicare  

/Medical aid to ex-servicemen and the scheme framed by the Government  

to provide ex-defence personnel medical services provided they paid “one-

time contribution”, was held not to be arbitrary and based on the practice  

followed earlier.  In such circumstances, this Court held as under:

39

“In such cases, therefore, the Court may not insist an  administrative authority to act judicially but may still insist it  to act fairly.  The doctrine is based on the principle that good  administration  demands  observance  of  reasonableness  and  where it has adopted a particular practice for a long time even  in the absence of a provision of law, it should adhere to such  practice without depriving its citizens of the benefit enjoyed  or privilege exercised.”

42. A practice adopted for a considerable time, which is not violative  

of the Constitution or otherwise bad in law or against public policy can  

be termed good in law as well.   It  is a  settled principle  of law, that  

practice adopted and followed in the past   and within the knowledge of  

the  public  at  large,  can  legitimately  be  treated  as  good  practice  

acceptable in law.  What has been part of the general functioning of the  

authority  concerned  can  safely  be  adopted  as  good  practice,  

particularly,  when such practices  are clarificatory  in nature and have  

been consistently implemented by the concerned authority, unless it is in  

conflict with the statutory provisions or principal document.  A practice  

which  is  uniformly  applied  and  is  in  the  larger  public  interest  may  

introduce an element of fairness.  A good practice of the past can even  

provide good guidance for future. This accepted principle can safely be  

applied to a case where the need so arises, keeping in view the facts of  

that case.  This view has been taken by different High Courts and one  

40

also finds glimpse of the same in a judgment of this Court in the case of  

Deputy Commissioner of Police & Ors.  Vs. Mohd. Khaja Ali  (2000 (2)  

SLR 49).

43. There can be hardly any doubt that the practice of appointing former  

employees had been implemented for quite some time in the Department.  

We  are  unable  to  see  how  this  practice  is  opposed  to  any  statutory  

provision or even public policy.  To bar such a practice, there has to be a  

specific  prohibition  under  the  statutory  provisions,  then  alone  the  

argument raised on behalf of the respondents could have some merit.

44. We  may  also  notice  that  in  the  issuance  of  the  circulars  by  the  

Railways, larger public interest is served.  The background stated by the  

appellants necessitating the issuance of these circulars, clearly stated that  

large number of cases of departmental inquiries are pending and have not  

attained finality, primarily for the non-availability of the inquiry officers.  

Even that consideration would tilt the balance, in achieving larger public  

purpose and interest, rather than to take an approach which would add to  

the misery of the Railway officials who are facing departmental inquiries.  

It is a known fact that in most of the inquiries the delinquent is placed  

either under suspension or faces other adverse consequences.

41

45. In the present case even the respondents before us have participated  

in the entire  inquiry and received the order of punishment without  any  

protest.   They,  in  fact,  have  admitted  to  the  established  practice  of  

appointment  of  former  railway  employees  as  inquiry  officers.   The  

cumulative result of this discussion is that, it is not possible for this Court  

to  hold,  in  the  facts  and  circumstances  of  the  case,  that  the  “other  

authority” has to be only a person in service.

Non-furnishing  of  advise  of  Central  Vigilance  Commission  and  its  consequences  

46. In its impugned judgment the Tribunal accepted the contention of  

the  respondents  that  the  CVC’s  advice/note  should  have  been  made  

available to the delinquent during the stage of inquiry.  While referring to  

another judgment of the Tribunal itself, it concluded that the case was akin  

to  the  referred  judgment  and  the  notes  of  the  CVC should  have  been  

furnished and thus set aside the order of punishment.  It will be useful to  

refer to the reason and conclusion recorded by the Tribunal in its order.  

There  are  only  two  paragraphs  i.e.,  Paragraph  Nos.  17  and  18  of  the  

Tribunal’s judgment which have been recorded in this regard:  

42

“17. We are of the opinion that this case is akin to the  two cases mentioned above as far as the non supply of  CVC’s advise is concerned.

18. If  the  advise  of  the  Central  Vigilance  Commission has been considered during the course of  the  disciplinary  proceedings,  the  same  should  have  been supplied to the delinquent official if asked for at  appropriate time.  In very special cases, such request  may  not  be  considered,  but  in  such  situations,  the  competent authority should have recorded the reasons  for not supplying such documents.”

47. The High Court has really not dealt with this issue in any further  

elaboration, except affirming the order of the Tribunal.  The High Court  

mainly  considered the arguments  founded on the interpretation  of  Rule  

9(2).  The reasons recorded by the Tribunal are in no way sufficient to  

sustain  that  finding.   Before  setting  aside  the  impugned orders  on that  

ground, the Tribunal should have concluded in relation to certain facts.  

They be :

(a) Whether  there  were  any  CVC  notes  having  a  direct bearing on the inquiry in question,

(b) Whether such report was actually brought by the  delinquent officer,  

(c) Whether  such  notes  were  actually  taken  into  consideration by the disciplinary authority while  passing the impugned orders and finally,

43

(d) Whether  the  delinquent  officer  has  suffered  de  facto  prejudice  as  a  result  of  non-furnishing  of  advise.

48. Unfortunately,  the  findings  recorded  by the  Tribunal  are  entirely  

silent on the above material aspects, as is clear from Paragraph Nos. 17  

and 18 of its judgment.   

49. From the records before us, it appears that the circular issued by the  

Vigilance Department was actually asked for by the delinquent officer in  

the application filed before the Tribunal and even in the reply filed before  

the High Court.  It is nowhere stated what was the relevancy of this alleged  

CVC note,  whether  it  had  actually  been  taken  into  consideration  and,  

whether  it  had  caused  prejudice  to  the  delinquent  officer.   All  these  

ingredients are not satisfied in the records before us.  It is a settled rule of  

departmental  proceedings  that,  it  is  for  the  delinquent  officer  to  

specifically raise such an issue and discharge the onus of prejudice.  The  

concept of prejudice, we shall discuss shortly.  But for the present, we are  

only discussing its factual aspect and the law relating thereto.   

50. The documents  and the circulars  issued by the  Central  Vigilance  

Commission, Government of India which have been placed on record as  

Annexure  R-3  dated  28th September,  2000  relate  to  furnishing  of  

information of the CVC advice and the purpose sought to be achieved as  

44

well  as  the  need of  the  employee’s  representation  in  that  regard.   The  

record is entirely silent as to what were the comments of the CVC and  

whether  they  have  been  taken  into  consideration  by  the  disciplinary  

authority or not.   

51. Despite the factual aspect of the case, the learned counsel appearing  

for the appellants has relied upon the judgment of this Court in the case of  

Sunil  Kumar Banerjee  v.  State  of  West  Bengal  & Ors.  [1980 (3)  SCC  

304],  contending  that  it  was  not  necessary  and  no  prejudice  had  been  

caused  to  the  respondent  because  of  the  alleged  non-supply  of  the  

Vigilance note.   On the contrary, the learned counsel appearing for the  

respondents has relied upon the judgment of this Court in the case of State  

Bank of India & Ors. v. D.C. Aggarwal & Anr. [1993 (1) SCC 13], to raise  

a counter plea that any document taken into consideration for imposing a  

punishment and if the CVC recommendations were prepared at the back of  

the officer, the order of punishment so passed would be liable to be set  

aside.   The  proposition  of  law stated  in  the  above  two judgments  can  

hardly be disputed.  What is really required to be seen by the Court is,  

whether the duty to furnish such a report arises out of a statutory rule or in  

consonance  with  the  principles  of  natural  justice  and  whether  non-

45

furnishing  of  such  a  report  has  caused  any  prejudice  to  the  officer  

concerned.   

52. From the aforenoticed facts it is clear that, there is nothing on record  

to  show  that  the  alleged  CVC  notes  have  actually  been  taken  into  

consideration and that the same have affected the mind of the disciplinary  

authority  while  considering  the  defence  of  the  delinquent  officer  and  

imposing  punishment  upon  him.   Unless  such  notes  were  actually  

considered and had some prejudicial effect to the interest of the delinquent  

officer,  it  will  not  be  necessary  for  the  Court  to  interfere  in  the  

departmental  inquiry proceedings on that  ground.   In the case of  Sunil  

Kumar  Banerjee  (supra),  where  the  Vigilance  Commissioner  had  been  

consulted,  there  was  alleged  non-supply  of  Vigilance  Commissioner’s  

report to the officer.  A three Judge-Bench of this Court took the view that  

the findings of the disciplinary authority and its decision was not tainted  

and, therefore, would not be termed as illegal.  The Court in Para 4 of the  

judgment held as under:   

“4. We do not also think that the disciplinary authority  committed  any  serious  or  material  irregularity  in  consulting the Vigilance Commissioner, even assuming  that it was so done. The conclusion of the disciplinary  authority was not based on the advice tendered by the  Vigilance  Commissioner  but  was  arrived  at  independently, on the basis of the charges, the relevant  

46

material placed before the Inquiry Officer in support of  the charges, and the defence of the delinquent officer.  In  fact  the  final  conclusions  of  the  disciplinary  authority  on  the  several  charges  are  so  much  at  variance  with  the  opinion  of  the  Vigilance  Commissioner  that  it  is  impossible  to  say  that  the  disciplinary  authority’s  mind  was  in  any  manner  influenced  by  the  advice  tendered  by  the  Vigilance  Commissioner.  We  think  that  if  the  disciplinary  authority arrived at its own conclusion on the material  available to it, its findings and decision cannot be said  to  be  tainted  with  any  illegality  merely  because  the  disciplinary  authority  consulted  the  Vigilance  Commissioner  and obtained his views the very same  material. One of the submissions of the appellant was  that a copy of the report of the Vigilance Commissioner  should have been made available to him when he was  called  upon  to  show  cause  why  the  punishment  of  reduction in rank should not be imposed upon him. We  do  not  see  any  justification  for  the  insistent  request  made by the appellant to the disciplinary authority that  the  report  of  the  Vigilance  Commissioner  should  be  made available to him. In the preliminary findings of  the disciplinary authority which were communicated to  the appellant there was no reference to the view of the  Vigilance  Commissioner.  The  findings  which  were  communicated  to  the  appellant  were  those  of  the  disciplinary  authority  and it  was  wholly  unnecessary  for  the  disciplinary  authority  to  furnish  the  appellant  with  a  copy  of  the  report  of  the  Vigilance  Commissioner when the findings communicated to the  appellant were those of the disciplinary authority and  not  of  the  Vigilance  Commissioner.  That  the  preliminary  findings  of  the  disciplinary  authority  happened to coincide with the views of the Vigilance  Commission is neither here nor there.”

53. No rule  has  been brought  to  our  notice  where  it  is  a  mandatory  

requirement for the disciplinary authority to consult the vigilance officer  

and take the said report into consideration before passing any order.  If that  

was the position, the matter would have been different.   

47

54. In the present case,  firstly,  no such rule has been brought to our  

notice and secondly, there is nothing on record to show that the alleged  

notes  of  the  CVC were actually  taken into  consideration and the same  

effected or tainted the findings or mind of the authority while passing the  

orders of punishment.   Thus,  in our view, the findings of the Tribunal  

cannot be sustained in law.  Unless the Rules so require,  advice of the  

CVC is not binding.  The advice tendered by the CVC, is to enable the  

disciplinary authority to proceed in accordance with law.  In absence of  

any  specific  rule,  that  seeking  advice  and  implementing  thereof  is  

mandatory, it will not be just and proper to presume that there is prejudice  

to  the  concerned  officer.   Even in  the  cases  where  the  action is  taken  

without  consulting  the  Vigilance  Commission,  it  necessarily  will  not  

vitiate  the  order  of  removal  passed  after  inquiry  by  the  departmental  

authority.  Reference in this regard can also be made to the judgment of  

this Court in the cases of State of A.P. & Anr. v. Dr. Rahimuddin Kamal  

[1997 (3) SCC 505] and Deokinandan Prasad v. State of Bihar [1971 (2)  

SCC 330].   In the case of Dr. Rahimuddin Kamal (supra), this Court was  

concerned  with  Rule  4(2)  of  the  Andhra  Pradesh  Civil  Services  

(Disciplinary  Proceedings  Tribunal)  Rules,  1961,  where  the  expression  

‘shall’ had been used in the Rules, making it obligatory upon the part of  

48

the  Government,  which  required  it  to  examine  the  records  and  after  

consulting the Head of the Department, pass an appropriate order.  But  

before  taking  a  decision,  the  Government  shall  consult  the  Vigilance  

Commission.  In that case the order of removal from service was passed in  

accordance with law and after conducting appropriate inquiry but without  

consulting  the  Commission.   The  Court  expressed  the  view  that  the  

expression ‘shall’ had to be construed as ‘may’ and non consultation with  

the Commission would not render the order illegal or ineffective.  In view  

of the larger Bench judgment and particularly, with reference to the facts  

of  the  present  case,  we  are  unable  to  accept  the  contention  of  the  

respondents before us.

55. In  its  letter  dated  28th December,  2001,  the  respondent  claimed  

certain  documents  during  the  course  of  departmental  inquiry.   In  

Annexure-1 to this letter, at Sr. No.1, he had prayed for the circular dated  

28th September, 2000 from CVC to CVO’s of all the Ministries.  At Sr. No.  

2, he had asked for CVC’s first stage advice and Railway’s note sent to  

CVC for arriving at the first stage advice.  Thus, both these documents  

were of a very general nature and in no way suggested that the concerned  

disciplinary authorities had taken into consideration any particular notes  

advising  action against  the  said officer.   Some element of  prejudice  is  

49

essential before an order of imposing penalty can be interfered with by the  

Court,  particularly  when  the  inquiry  otherwise  had  been  conducted  in  

accordance with law and no grievance was raised by the respondent on  

that  behalf  except  the  points  raised  for  consideration  of  the  Tribunal.  

Thus,  we are  of  the  view that  no statutory  rule  or  regulation has been  

violated  by  the  appellant  nor  any  CVC notes  were  actually  taken  into  

consideration for imposing the punishment upon the respondent.  Thus, the  

second argument of the respondent also merits rejection.

Whether the de facto prejudice was a condition precedent for grant of  relief and if so, whether respondents had discharged their onus.

56. In  the  submission  of  the  appellants,  there  is  no violation  of  any  

statutory  rule  or  provision  of  the  Act.   Departmental  inquiry  has  been  

conducted  in  accordance  with  the  Rules  and  in  consonance  with  the  

principles  of  natural  justice.   The  respondents  have  not  suffered  any  

prejudice,  much  less  prejudice  de  facto,  either  on  account  of  retired  

employees of the railway department being appointed as inquiry officers in  

terms of the Rule 9(2) of the Rules or in the case of Alok Kumar, because  

of  alleged  non  furnishing  of  CVC report.   The  contention  is  that  the  

prejudice  is  a  sine  qua  non  for  vitiation  of  any  disciplinary  order.  

However, according to the respondents, they have suffered prejudice ipso  

50

facto on both these accounts as there are violation of statutory rules as well  

as the principles of natural justice.  In such cases, by virtue of operation of  

law, prejudice should be presumed and judgment of the Tribunal and the  

High Court call for no interference.

57. Earlier,  in some of the cases,  this  Court  had taken the  view that  

breach of principle of natural justice was in itself a prejudice and no other  

‘de facto’ prejudice needs to be proved.  In regard to statutory rules, the  

prominent view was that the violation of mandatory statutory rules would  

tantamount to prejudice but where the Rule is merely dictatory the element  

of  de  facto  prejudice  needs  to  be  pleaded  and  shown.   With  the  

development of  law, rigidity  in these Rules is  somewhat  relaxed.   The  

instance of de facto prejudice has been accepted as an essential  feature  

where  there  is  violation  of  non-mandatory  rules  or  violation  of  natural  

justice as it is understood in its common parlance.  Taking an instance, in a  

departmental inquiry where the Department relies upon a large number of  

documents majority of which are furnished and an opportunity is granted  

to  the  delinquent  officer  to  defend himself  except  that  some copies  of  

formal documents had not been furnished to the delinquent.  In that event  

the onus is upon the employee to show that non-furnishing of these formal  

documents have resulted in de facto prejudice and he has been put to a  

51

disadvantage as a result  thereof.  Even in the present cases, Rule 9 (2)  

empowers the disciplinary authority to conduct the inquiry itself or appoint  

other authority to do so.  We have already held that the language of Rule  

9(2)  does  not  debar  specifically  or  even  by  necessary  implication  

appointment  of  a  former  employee  of  the  Railways  as  inquiry  officer.  

Even  if,  for  the  sake  of  argument,  it  is  assumed  otherwise,  all  the  

respondents have participated in the departmental inquiries without protest  

and it is only after the orders of the competent authority have been passed  

that they have raised this objection before the Courts.  In the light of the  

peculiar facts and circumstances of the present case, it is obligatory upon  

the respondents to show that they have suffered some serious prejudice  

because of appointment of retired Railway officers as inquiry officers.  We  

have no hesitation in stating that the respondents have no way satisfied this  

test  of  law.   Thus,  if  their  argument  was  to  be  accepted  on  the  

interpretation  of  Rule  9 (2),  which we have specifically objected,  even  

then the inquiries conducted and the order passed thereupon would not be  

vitiated for this reason.   

58. Doctrine of de facto prejudice has been applied both in English as  

well as in Indian Law.  To frustrate the departmental inquiries on a hyper  

technical approach have not found favour with the Courts in the recent  

52

times.  In the case of S.L. Kapoor v. Jagmohan [1980 (4) SCC 379], a  

three Judge Bench of this Court while following the principle in Ridge v.  

Baldwin stated  that  if  upon  admitted   or  indisputable  facts  only  one  

conclusion  was  possible,  then  in  such  a  case  that  principle  of  natural  

justice was in its self prejudice would not apply.  Thus, every case would  

have to be examined on its own merits and keeping in view the statutory  

rules  applying  to  such  departmental  proceedings.   The  Court  in  S.L.  

Kapoor (supra) held as under:

“18. In Ridge v. Baldwin [1964 AC 40, 68 : 1963 2 All  ER 66, 73] One of the arguments was that even if the  appellant  have  been  heard  by  the  Watch  Committee  nothing that he could have said could have made any  difference.  The House of Lords observed at (p. 68): “It  may  be  convenient  at  this  point  to  deal  with  an  argument  that,  even  if  as  a  general  rule  a  watch  committee  must  hear  a  constable  in  its  own defence  before  dismissing  him  this  case  was  so  clear  that  nothing that the appellant could have said could have  made  any  difference.   It  is  at  least  very  doubtful  whether that could be accepted as an excuse.  But, even  if it could, the watch committee would, in my view, fail  on the facts.  It may well be that no reasonably body of  men  could  have  reinstated  the  appellant.   But  at  between  the  other  two  courses  open  to  the  watch  committee the case is not so clear.  Certainly, on the  facts,  as  we  know them the  watch  committee  could  reasonably  have  decided  to  forfeit  the  appellant’s  pension rights,  but  I  could  not  hold  that  they  would  have  acted  wrongly  or  wholly  unreasonably  if  they  have in the exercise of their discretion decided to take a  more lenient course.”

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59. Expanding  this  principle  further,  this  Court  in  the  case  of  K.L.  

Tripathi v. State Bank of India [(1984) 1 SCC 43] held as under:

“It is not possible to lay down rigid rules as to when the  principles of natural justice are to apply, nor as to their  scope and extent.  There must also have been some real  prejudice to the complainant; there is no such thing as a  merely technical infringement of natural justice.  The  requirements  of  natural  justice  must  depend  on  the  facts and circumstances of the case, the nature of the  inquiry, the rules under which the tribunal is acting, the  subject-matter to be dealt with, and so forth.”

60. In the case of ECIL v. B. Karunakar [(1993) 4 SCC 727], this Court  

noticed the existing law and said that the theory of reasonable opportunity  

and the principles of natural justice have been evolved to uphold the rule  

of law and to assist the individual to vindicate his just rights.  They are  

neither  incantations to be invoked nor rites  to be performed on all  and  

sundry  occasions.   Whether,  in  fact,  prejudice  has  been  caused  to  the  

employee or not on account of denial of report to him, has to be considered  

on the facts and circumstances of each case. The Court has clarified even  

the stage to which the departmental proceedings ought to be reverted in the  

event the order of punishment is set aside for these reasons.  It will be  

useful  to  refer  to  the  judgment  of  this  Court  in  the  case  of  Haryana  

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Financial  Corporation v.  Kailash Chandra Ahuja  [2008 (9)  SCC 31] at  

page 38 where the Court held as under:

“From  the  ratio  laid  down  in  B.  Karunakar  it  is  explicitly  clear  that  the  doctrine  of  natural  justice  requires supply of a copy of the inquiry officer’s report  to the delinquent if such inquiry officer is other than  the  disciplinary  authority.   It  is  also  clear  that  non- supply of report of the inquiry officer is in the breach  of natural justice.  But it is equally clear that failure to  supply a report of the inquiry officer is in the breach of  natural  justice.   But it  is  equally clear  that  failure to  supply a report of the inquiry officer to the delinquent  employee  would  not  ipso  facto  result  in  the  proceedings being declared null and void and the order  of  punishment  non est  and ineffective.   It  is  for  the  delinquent  employee  to  plead  and  prove  that  non- supply of such report had caused prejudice and resulted  in miscarriage of justice.  If he is unable to satisfy the  court  on  that  point,  the  order  of  punishment  cannot  automatically be set aside.”

61. The well established canons controlling the field of bias in service  

jurisprudence can reasonably extended to the element of prejudice as well  

in  such  matters.   Prejudice  de  facto  should  not  be  based  on  a  mere  

apprehension or even on a reasonable suspicion.  It is important that the  

element of prejudice should exist as a matter of fact or there should be  

such  definite  inference  of  likelihood  of  prejudice  flowing  from  such  

default, which relates statutory violations.  It will not be permissible to set  

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aside the departmental inquiries in any of these classes merely on the basis  

of apprehended prejudice.  

62. In the light of the above enunciated rudiments of law, let us revert to  

the two points argued before us.  Firstly, the contention of the respondents  

that  Rule  9  (2)  necessarily  debars  appointment  of  former  railway  

employees  as  inquiry  officers  (other  authority)  is  without  any  merit.  

Secondly, they have suffered no prejudice at least none has brought to our  

notice  from  the  record  before  us  or  even  during  arguments.   The  

contention was that this being violation of the statutory rule there shall be  

prejudice ipso facto.  We may also notice that the circulars issued by the  

Department of Railways cannot be ignored in their entirety.  They have  

only furthered the cause contemplated under Rule 9 (2) of the Rules and in  

terms of judgment of Virpal Singh Chauhan (supra) the Court had taken  

the  view  that  circulars  should  be  read  harmoniously  and  in  given  

circumstances, may even prevail over the executive directions or Rules.

63. We do not find any merit even in the contention that if departmental  

inquiry has been conducted under the Rules of 1968 in accordance with  

law, principles of natural justice and no de facto prejudice is pleaded or  

shown by cogent documentation, the court would be reluctant to set aside  

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the order of punishment on this ground alone.  Secondly, the argument in  

relation to non-furnishing of CVC notes is again without any foundation as  

it has not even been averred in the application before the Tribunal, that  

these alleged notes were part  of the record and that they were actually  

considered  by  the  Disciplinary  Authority  and  such  consideration  had  

influenced  the  mind  of  the  competent  authority  while  passing  the  

impugned orders.   Absence of  pleading of  these essential  features read  

with the fact that no such documentation has been placed on record except  

demanding circulars of the CVC, we are of the considered view that even  

on this account no prejudice, as a matter of fact, has been caused to the  

delinquent officers (in the case of Shri Alok Kumar).  We are not able to  

accept the contention addressed on behalf of the respondents that it is not  

necessary at all to show de facto prejudice in the facts of the present cases.  

We may notice that the respondents relied upon the judgment of this Court  

in  the  case  of  ECIL  (supra),  that  imposition  of  punishment  by  the  

Disciplinary Authority without furnishing the material to the respondents  

was liable to be quashed, as it introduced unfairness and violated sense of  

right  and  liberty  of  the  delinquent  in  that  case.   No  doubt  in  some  

judgments  the  Court  has  taken  this  view  but  that  is  primarily  on  the  

peculiar facts in those cases where prejudice was caused to the delinquent.  

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Otherwise right from the case of S.L. Kapoor (supra), a three Judge Bench  

of  this  Court  and  even  the  most  recent  judgment  as  referred  by  us  in  

Kailash Chandra Ahuja’s  case (supra)  has taken the view that  de facto  

prejudice is one of the essential ingredients to be shown by the delinquent  

officer  before  an  order  of  punishment  can  be  set  aside,  of  course,  

depending  upon the  facts  and  circumstances  of  a  given  case.   Judicia  

posteriora sunt in lege fortiori.  In the later  judgment the view of this  

Court on this principle has been consistent and we see no reason to take  

any different view.  Prejudice normally would be a matter of fact and a  

fact must be pleaded and shown by cogent documentation to be true.  Once  

this  basic  feature  lacks,  the  appellant  may not  be able  to  persuade the  

Court to interfere with the departmental inquiry or set aside the orders of  

punishment.   

64. The judgment of the Tribunal and the High Court in our view are  

contrary  to  the  settled  principles  of  law and thus  cannot  be  sustained,  

therefore, we set aside the judgment of the Tribunal as well as the High  

Court in all these cases.  The appeals are allowed.  However, in the facts  

and circumstances of the case we leave the parties to bear their own costs.

........................................J.

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[ AFTAB ALAM ]

 New Delhi ........................................J. April 16, 2010       [ SWATANTER KUMAR ]  

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