Union of India & Ors. v. The Registrar

3. The Deputy Chief Mechanical Engineer (Loco) Southern Railway Ponmalai Tiruchirapalli-44. The Registrar Central Administrative Tribunal Chennai 600 104... RespondentsWP.No.28393/2006:-V. S. Chandran,Ex. Welder, Grade II,Wagon Assembly Shop,Southern Railway, Ponmalai,Tiruchirappalli 4....Petitionervs1. Union of India, rep. by the General Manager Southern Railway Chennai 600 0032. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram Chennai 600 0233. The Workshop ManagerCarriage and Wagon,Southern Railway,Trichy 4.4. The Registrar Central Administrative Tribunal Chennai 600 104...RespondentsWP.No.28394/2004:-Mr. P. Manoharan,Ex. Senior Clerk, DSD,Railway WorkshopSouthern Railway, Ponmalai,Tiruchirappalli 4....Petitioner https://hcservices.ecourts.gov.in/hcservices/ vs1. Union of India, rep. by the General Manager Southern Railway Chennai 600 0032. The Deputy Chief Materials Manager,Southern Railway, Ponmalai,Trichy 4.3. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram, Chennai 600 0234. The Registrar Central Administrative Tribunal Chennai 600 104...Respondents.* * *All the petitions are filed under Art.226 of the Constitution ofIndia. W.P.No.25606 of 2006 has been filed praying to issue a Writof Certiorari to call for the records of the 1st respondent inO.A.No.766 of 2005 and 283/05 respectively including the order dated5.6.2006 and quash the same (in WP. 25606 & 25607/06)(ii) calling for the records relating to the order of the fourthrespondent in O.A.No.768 of 2005 dated 5.6.2006 confirming the orderof the first respondent herein dated 29.7.2005 in No.P (A)90/2005/433and quash the same and direct the respondents to reinstate thepetitioner in service as carpenter grade I with effect from 31.1.2004with all attendant benefits (in WP.28392/2006).(iii) calling for the records relating to the order of thefourth respondent in O.A.No.769 of 2005 dated 5.6.2006 confirming theorder of the first respondent herein dated 29.7.2005 in No.P (A)90/2005/435 and quash the same and direct the respondents toreinstate the petitioner in service as Welder grade I with effectfrom 31.1.2004 with all attendant benefits (in WP.28393/2006) and;(iii) calling for the records relating to the order of thefourth respondent in O.A.No.767 of 2005 dated 5.6.2006 confirming theorder of the first respondent herein dated 29.7.2005 in No.P (A)93/Misc/383 and quash the same and direct the respondents toreinstate the petitioner in service as Senior Clerk with effect from31.1.2004 with all attendant benefits (in WP.28394/2006). https://hcservices.ecourts.gov.in/hcservices/ * * *For Petitioners: Mr. AR.L. Sundaresan in W.P. Nos.28392 Senior Counsel for to 28394/2006 and Ms.AL Gandhimathi 2nd Respondent in W.P. Nos.25606 and 25607 of 2006 For Respondent 1 to 3 in: Mr. R. Thiagarajan W.P.Nos.28392 to Senior Counsel for 28394 of 2006 and Mr.V.G. Sureshkumar petitioners in W.P. No.25606 & 25607/0628393/06* * *COMMON ORDERDHARMA RAO ELIPE, J.This common order will dispose of the above five writ petitionsas they have in common the fact-situation and the issues arisingtherefrom. In all these writ petitions, the challenge is to theorder dated 5-6-2006 passed by the Central Administrative Tribunal(in short 'the Tribunal'). While W.P.Nos.28392 to 28394 of 2006 werefiled by the three original applicants, W.P.Nos.25606 and 25607 of2006 were filed by the Railways.2. On a perusal of the materials placed on record and uponhearing the learned senior counsel for both, it comes to be knownthat the petitioners in W.P. Nos.28392 to 28394 of 2006 andrespondents in W.P.Nos.25606 and 25607 of 2006 (hereinafter referredto as 'the delinquent-employees') were the employees of the Railways.Alleging that on 30-1-2004, they all, with premeditated mind,gathered on the platform of the Tiruchy Railway Junction, hurledverbal abuses against a retired Railway officer, who was leavingTrichy by train along with his family members, assaulted andthreatened him and also threatened and intimidated the other railwayofficers who were there to see-off the retired officer and therebycreated panic, terror and tension in the minds of not only theretired officer and his family members and the other railwayofficers, but also the other passengers and the general public, anorder of dismissal was passed on 30-1-2004. A complaint was alsolodged with the Railway Police, resulting in a criminal case. It waspointed out in the order of dismissal that it would not bepracticable to hold an enquiry before directing dismissal. The https://hcservices.ecourts.gov.in/hcservices/ departmental appeals filed by the delinquent-employees were rejected.The delinquent-employees were, however, acquitted in the criminalcase. On the revision/representation filed by the delinquent-employees, the revisional authority set aside the penalty ofdismissal from service in respect of three delinquent-employees andordered their reinstatement with reduction in rank to the lower post,but summarily rejected the revision/representation filed by the othertwo delinquent employees. Challenging the order of the revisionalauthority, original applications were filed before the Tribunal. TheTribunal, by the common order, quashed the orders passed by therevisional authority and directed the restoration of the originalapplicants to their original position and directed the Railways toregulate the period of their dismissal from 31-1-2004 to the date ofreinstatement strictly in accordance with law. Aggrieved, while theDepartment has filed W.P.Nos.25606 and 25607 of 2006 challenging theorder of reinstatement of two employees, three employees, who werereduced in rank, have filed W.P.Nos.28392 to 28394 of 2006. Since acommon issue is involved, all these writ petitions are taken up forcommon disposal.3. For the sake of convenience and for easy reference, thepetitioners in W.P.Nos.28392 to 28394 of 2006 and the 2nd respondentin W.P.Nos.25606 and 25607 of 2006 are referred to as the delinquent-employees while the officials, who have filed W.P.Nos.25606 and 25607of 2006 and who are the respondents in W.P.Nos.28392 to 28394 of 2006are referred as respondents.4. The learned senior counsel appearing for the delinquent-employees submitted that the action of the third respondent inresorting to Rule 14(ii) of the Railway Servants (Disciplinary andAppeal) Rules (in short 'the Rules') for dispensing with the enquiryagainst the delinquent-employees and passing the order of dismissalon the very same day is arbitrary, illegal and unjust and violativeof the principles of natural justice; that there was no compellingreasons shown in writing by the third respondent for invoking theextraordinary provisions of Rule 14(ii) of the Rules; that the unduehaste shown by the third respondent in resorting to Rule 14(ii) ofthe Rules and passing the dismissal orders would only exhibit thenon-application of mind by the third respondent and the pre-determined mind of the authorities to victimise the employeesconcerned. 5. According to the learned senior counsel when once theauthorities have chosen to file a criminal case against the employeesconcerned, they ought to have await the judgment of the criminalcourt or, at least, they should have, instead of resorting to Rule 14(ii), initiated the regular departmental action against thedelinquents by issuing a charge memo and holding an enquiry or at themost could have suspended them till the conclusion of the criminal https://hcservices.ecourts.gov.in/hcservices/ case. In support of his contention, learned counsel relied on theSupreme Court decision in UNION OF INDIA v. THULSIRAM PATEL (AIR 1985SC 1416) and certain executive instructions issued by the Railwaysand the Government of India.6. The learned senior counsel for the delinquent employees wouldfurther submit that the third respondent, who passed the dismissalorder dated 31.1.2004 was not competent to pass such an order.According to the learned senior counsel, in view of Rule 2(1)(a) ofthe Railway Servants (Discipline and Appeal) Rules, 1968 read withSchedule II annexed thereto, the third respondent, not being theappointing authority of the delinquent-employees, is not competent topass the order of dismissal. As the order of dismissal was passed bythe authority who has no jurisdiction to pass, the same is liable tobe set aside.7. The next submission of the learned senior counsel for thedelinquent employees is that since the criminal case filed againstthe delinquent-employees concerned on the very same set of allegedfacts has ended in acquittal, they are entitled for the reinstatementin their respective original position with effect from 31-1-2004 withall attendant service benefits. 8. It was also contended that that when the disciplinaryauthority himself had been cited as a witness in the FirstInformation Report filed on the very date of the alleged occurrence,he ought not to have passed the dismissal order. In suchcircumstances, the proper course was to refer the matter to someother authority. In support of this contention, learned counselrelied on the decision of the Supreme Court in ARJUN CHAUBEY v. UNIONOF INDIA (1984 [2] SCC 578).9. Thus, according to learned senior counsel for the delinquentemployees, the imposition of major penalty of dismissal from servicewithout holding any enquiry and the subsequent penalty of reductionin rank with low pay scale imposed by the revisional authorityignoring the order of acquittal passed in the criminal case areillegal, unjust and unsustainable in law. The impugned order is,therefore, liable to be set aside and the delinquent-employees areentitled for the reinstatement to their original position as on 31-1-2004 with all attendant service benefits.10. On the contrary, the learned senior counsel appearing forthe Railways submitted that the Tribunal, after having accepted thecontentions of the Railways relating to the delinquency of theemployees and the competency of the authority to take action underRule 14(ii) of the Rules, erred in interfering with the quantum ofpunishment awarded to two employees on the ground that leniency wasshown to the other three employees; that the Tribunal overlooked the https://hcservices.ecourts.gov.in/hcservices/ fact that in the case of the three employees there were mitigatingcircumstances in their favour for taking a lenient view whereas inthe case one Babu Rajendran, his past service record was tainted withmisconduct and he has been inflicted with various penalties such aswithholding of passes/PTOs, reduction of pay, etc. 11. The learned senior counsel for the Railways furthersubmitted that when once the misconduct is proved, the quantum ofpunishment is within the domain of the disciplinary authority andunless the punishment imposed is shockingly disproportionate to thecharges levelled against the delinquent, there is no scope forinterference with the same. The Tribunal proceeded on a wrong footingthat when the punishment was reduced in the case of threedelinquents, the other two delinquents should also be treated alike.It is well settled that there is no equality in illegality. In thepresent case, the revisional authority had taken into considerationvarious factors such as the extent and gravity of the misconduct,past service records of the delinquents, the judgment of the criminalcourt, etc. to come to the conclusion that in the case of three ofthe delinquents, lesser punishment could be imposed and in the caseof the other two delinquents, the order of dismissal was justified.12. The Tribunal has framed three issues for determination,viz. (i) whether the order of dismissal was approved and issued bythe competent authority; (ii) whether the decision not to hold theenquiry under the relevant rules are valid or not; and (iii) whetheron receiving representations from the applicants for reinstatementafter the criminal case filed against them had ended in acquittal wasproperly considered or not.13. The Tribunal has come to the conclusion that the order ofdismissal was ordered and issued by the competent authority; thatthere is no infirmity in the action of the respondents who haddispensed with the inquiry leading to dismissal. The Tribunal alsohold that the failure on the respondents to objectively consider theappeals as well as revision petitions after the acquittal of theaccused in criminal cases, renders the decision, as conveyed throughthe impugned orders, illegal.14. We have given our anxious consideration to the rivalcontentions of the parties. We have also gone through the entirematerials on record, including the judgment passed by the criminalcourt. The points that arise for consideration in these matters are:(1) Whether the third respondent, who passed the orders ofdismissal, is competent to pass such orders of dismissal?(2) Whether the respondents are justified in dispensingwith enquiry and invoking Rule 14(ii) of the RailwayServants (Discipline and Appeal) Rules, 1968?(3) Whether the Tribunal is right in ordering reinstatement https://hcservices.ecourts.gov.in/hcservices/ of two employees and not interefering with the order ofreduction of rank and pay scale in respect of threedelinquent-employees?(4) What relief, the parties are entitled to?POINT No.1:-15. The learned senior counsel for the employees submit that inview of the provisions of Rule 2(1)(a) of the Railway Servants (D&A)Rules read with Schedule II thereunder, the third respondent, notbeing the appointing authority of the employees, is not the competentauthority to pass the orders of dismissal and since the impugnedorders of dismissal were passed by the incompetent authority, thesame are liable to be quashed. As an answer to this, the learnedsenior counsel for the Railways would submit that the 3rd respondent,as the Junior Administrative Grade Officer, is competent to exercisethe powers of the Appointing Authority in respect of employeesdrawing pay in the scale upto Rs.5500-9000 and it is well within hisjurisdiction, as conferred upon him under Sub Rule 2 of Rule 7 aslaid down in the second schedule of the Railway Servants (Disciplineand Appeal) Rules 1968 and as clarified in Personnel Branch CircularNo.161/2004. 16. A thorough perusal of Rule 4 and sub-rule (2) of Rule 7 andthe Schedule-II of the Railway Servants (Discipline and Appeal) Rules1968 and the Railway Board Communication No.E(D&A) 2002 RG 6-30,dated 25.11.2002 relied on by the learned senior counsel for thepetitioners, we are able to find that by virtue of the clarificationissued in Personnel Branch Circular No.161/2004, the 3rd respondent isthe competent authority to pass such orders of dismissal, as has beenrightly decided by the Tribunal. Therefore, the argument advanced onthe part of the learned senior counsel for the petitioners isrejected, holding that the 3rd respondent is competent to pass suchorders. 17. At this juncture, the learned senior counsel for thepetitioners/employees would submit that Mr.K.Raman, who wasDy.CME/GOC, who passed the order of dismissal dated 31.1.2004, oughtnot to have passed the said order since he had been cited as awitness in the FIR filed earlier in the day with the police. Insupport of his contention, the learned senior counsel for thepetitioners relied on a judgment of the Apex Court in ARJUN CHAUBEYvs. UNION OF INDIA [(1984) 2 SCC 578] wherein it has been held:"No person can be a judge of his own cause and no witnesscan certify that his own testimony is true and anyone whohas a personal stake in an enquiry must keep himself alooffrom the enquiry."18. We have no quarrel with the above said proposition of lawlaid down by the Apex Court. But, the said judgment was rendered inthe context when an officer, who lodged the complaint, was made the https://hcservices.ecourts.gov.in/hcservices/ enquiry officer to deal with the delinquent in a domestic enquiry.The same is not the position here. In the case on hand, as could beseen from the judgment in C.C.No.287 of 2004 on the file of theJudicial Magistrate No.IV, Trichy, the said Raman has been cited asP.W.5. Since the departmental proceedings and criminal proceedingsare distinct and separate, it cannot be said that the said Ramancould not have passed the dismissal orders. Since being theauthority concerned with the affairs of the Department that too inpassing the orders of dismissal order, it is but natural for the saidRaman to be cited as a witness before the criminal court, which,cannot, in no way be termed as either illegal or irregular.Therefore, the submission of the learned senior counsel for thepetitioners does not hold water and the same is, accordingly,rejected. Point No.1 is accordingly answered.POINTS No.2 TO 4:-19. Rule 14 of the Railway Servants (Discipline and Appeal)Rules, 1968, which is analogous to Article 311(2) of the Constitutionof India, wherefrom the power has been drawn by the DisciplinaryAuthority, to pass the impugned order of dismissal reads:"14. Special Procedure in certain cases - Notwithstanding anything contained in Rules 9 to 13-(i) ....(ii) where the disciplinary authority is satisfied,for reasons to be recorded by it in writing, that it isnot reasonably practicable to hold an inquiry in themanner provided in these rules, or(iii) ...The disciplinary authority may consider thecircumstances sof the case and make such orders thereon asit deems fit;Provided that the Commission shall be consulted wheresuch consultation is necessary, before any orders are madein any case under this rule."Thus, Rule 14(ii) itself mandates that the disciplinary authorityshall record his reasons in writing that it is not reasonablypracticable to hold an inquiry in the manner provided in these rules.20. As already adverted to supra, Rule 14(2) is analogous toArticle 311(2) of the Constitution. In UNION OF INDIA AND ANOTHERvs. TULSIRAM PATEL (AIR 1985 SC 1416), the Constitutional Bench ofthe Apex Court has held in para No.130, as follows:"The condition precedent for the application of clause (b)is the satisfaction of the disciplinary authority that "itis not reasonably practicable to hold" the inquirycontemplated by clause (2) of Article 311. What ispertinent to note is that the words used are "notreasonably practicable" and not "impracticable". Accordingto the Oxford English dictionary "practicable" means https://hcservices.ecourts.gov.in/hcservices/ "capable of being put into practice, carried out in action,effected, accomplished, or done, feasible". Webster'sThird New International Dictionary defines the word"practicable" inter alia as meaning "possible to practiceor perform: capable of being put into practice, done oraccomplished: feasible". Further the words used are not"not practicable" but "not reasonably practicable".Webster's Third New International Dictionary defines theword "reasonably" as "in a reasonable manner: to a fairlysufficient extent". Thus, whether it was practicable tohold the inquiry or not must be judged in the context ofwhether it was reasonably practicable to do so. It is nota total or absolute impracticability which is required byclause (b). What is requisite is that the holding of theinquiry is not practicable in the opinion of a reasonableman taking a reasonable view of the prevailingsituation. .... The reasonable practicability of holdingan inquiry is a matter of assessment to be made by thedisciplinary authority. Such authority is generally on thespot and knows what is happening. It is because thedisciplinary authority is the best judge of this thatclause (3) of Article 311 makes the decision of thedisciplinary authority on this question final. Adisciplinary authority is not expected to dispense with adisciplinary inquiry lightly or arbitrarily or out ofulterior motives or merely in order to avoid the holding ofan inquiry or because the Department's case against thegovernment servant is weak and must fail. The finalitygiven to the decision of the disciplinary authority byArticle 311(3) is not binding upon the court so far as itspower of judicial review is concerned and in such a casethe court will strike down the order dispensing with theinquiry as also the order imposing penalty." 21. In this case, as could be seen from the impugned order ofdismissal, no reasons for dispensing with the enquiry are given bythe disciplinary authority, except saying that it is not reasonablypracticable to hold an inquiry. In UNION OF INDIA AND ANOTHER vs.TULSIRAM PATEL (AIR 1985 SC 1416), the Apex Court has categoricallyheld in para No.133 as follows::"The second condition necessary for the valid applicationof clause (b) of the second proviso is that thedisciplinary authority should record in writing its reasonfor its satisfaction that it was not reasonablypracticable to hold the inquiry contemplated by Article311(2). This is a Constitutional obligation and if suchreason is not recorded in writing, the order dispensingwith the inquiry and the order of penalty followingthereupon would both be void and unconstitutional."(emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

22. In Para No.134 of the said judgment, it has been held:"It is obvious that the recording in writing of the reasonfor dispensing with the inquiry must precede the orderimposing the penalty. The reason for dispensing with theinquiry need not, therefore, find a place in the finalorder. It would be usual to record the reason separatelyand then consider the question of the penalty to be imposedand pass the order imposing the penalty. It would,however, be better to record the reason in the final orderin order to avoid the allegation that the reason was notrecorded in writing before passing the final order but wassubsequently fabricated. The reason for dispensing withthe inquiry need not contain detailed particulars, but thereason must not be vague or just a repetition of thelanguage of clause (b) of the second proviso. Forinstance, it would be no compliance with the requirement ofclause (b) for the disciplinary authority simply to statethat he was satisfied that it was not reasonablypracticable to hold any inquiry...."23. In the said judgment itself, while dealing with the argumentthat if reasons are not recorded in the final order, they must becommunicated to the concerned government servant to enable him tochallenge the validity of the reasons in a departmental appeal orbefore a court of law and that failure to communicate the reasonswould invalidate the order, the Apex Court, though rejected the saidargument, has observed in para No.135 of its judgment as follows:"... the constitutional requirement in clause (b) is thatthe reason for dispensing with the inquiry should berecorded in writing. There is no obligation to communicatethe reason to the government servant. At clause (3) ofArticle 311 makes the decision of the disciplinaryauthority on this point final, the question cannot beagitated in a departmental appeal, revision or review. Theobligation to record the reason in writing is provided inclause (b) so that the superiors of the disciplinaryauthority may be able to judge whether such authority hadexercised its power under clause (b) properly or not with aview to judge the performance and capacity of that officerfor the purposes of promotion etc. It would, however, bebetter for the disciplinary authority to communicate to thegovernment servant its reason for dispensing with theinquiry because such communication would eliminate thepossibility of an allegation being made that the reasonshave been subsequently fabricated. It would also enablethe government servant to approach the High Court underArticle 226 or, in a fit case, this Court under Article 32.If the reasons are not communicated to the government https://hcservices.ecourts.gov.in/hcservices/ servant and the matter comes to the court, the court candirect the reasons to be produced, and furnished to thegovernment servant and if still not produced, a presumptionshould be drawn that the reasons were not recorded inwriting and the impugned order would then standinvalidated. Such presumption can, however, be rebutted bya satisfactory explanation for the non-production of thewritten reasons."24. In para No.137 of the said judgment, it has been held:"Where a government servant is dismissed, removed orreduced in rank by applying clause (b) or an analogousprovision of the service rules and he approaches either theHigh Court under Article 226 or this Court under Article32, the court will interfere on grounds well established inlaw for the exercise of power of judicial review in matterswhere administrative discretion is exercised. It willconsider whether clause (b) or an analogous provision inthe service rules was properly applied or not. Thefinality given by clause (3) of Article 311 to thedisciplinary authority's decision that it was notreasonably practicable to hold the inquiry is not bindingupon the court. The court will also examine the charge ofmala fides, if any, made in the writ petition. Inexamining the relevancy of the reasons, the court willconsider the situation which according to the disciplinaryauthority made it come to the conclusion that it was notreasonably practicable to hold the inquiry. If the courtfinds that the reasons are irrelevant, then the recordingof its satisfaction by the disciplinary authority would bean abuse of power conferred upon it by clause (b) and wouldtake the case out of the purview of that clause and theimpugned order of penalty would stand invalidated. Inconsidering the relevancy of the reasons given by thedisciplinary authority the court will not, however, sit injudgement over them like a court of first appeal. In orderto decide whether the reasons are germane to clause (b),the court must put itself in the place of the disciplinaryauthority and consider what in the then prevailingsituation a reasonable man acting in a reasonable way wouldhave done. The matter will have to be judged in the lightof the then prevailing situation and not as if thedisciplinary authority was deciding the question whetherthe inquiry should be dispensed with or not in the cool anddetached atmosphere of a courtroom, removed in time fromthe situation in question. Where two views are possible,the court will decline to interfere." https://hcservices.ecourts.gov.in/hcservices/

25. Therefore, while dealing with such matters, a duty is castupon the Court, putting itself in the place of the disciplinaryauthority and consider what in the then prevailing situation, areasonable man acting in a reasonable way would have done and thematter will have to be judged in the light of the then prevailingsituation. It is in this context, now we have to see the way inwhich the impugned order of dismissal has been passed.26. In the impugned order, as has already been extracted supra,the disciplinary authority has simply stated that 'I am convincedthat it is not reasonably practicable to hold an enquiry.' which isquite against the dictum laid down by the Apex Court in UNION OFINDIA AND ANOTHER vs. TULSIRAM PATEL (AIR 1985 SC 1416), extractedsupra, wherein it has been held in no uncertain terms that 'it wouldbe no compliance with the requirement of clause (b) for thedisciplinary authority simply to state that he was satisfied that itwas not reasonably practicable to hold any inquiry'. Except tonarrate the alleged incident, nothing else has been mentioned in theimpugned order of dismissal dated 31.1.2004. Therefore, it suffersfrom lack of reasons for dispensing with the enquiry.27. At this juncture, the learned counsel for therespondents/Railways invited our attention to the decision of theApex Court in AJIT KUMAR NAG vs. GENERAL MANAGER (PJ), INDIAN OILCORPORATION LTD., HALDIA AND OTHERS [(2005) 7 SCC 764], wherein whiledealing with the question of dismissal without enquiry, the ApexCourt has held:"Taking of appropriate action in exceptional circumstancesis a matter of assessment to be made by the disciplinaryauthority and must be judged in the light of thecircumstances then prevailing. Normally, it is theofficer on the spot who is the best judge of the situationand his decision should not be interfered with lightly.In certain cases, the exigencies of a situation wouldrequire that prompt action should be taken and suspending(a workman) would not serve the purpose and sometimes nottaking prompt action might result in the trouble spreadingand the situation worsening and at times becominguncontrollable. Not taking prompt action may also beconstrued by the troublemakers as a sign of weakness onthe part of the authorities and thus encourage them tostep up their activities or agitation. Where such promptaction is taken in order to prevent this happening, thereis an element of deterrence in it but this is anunavoidable and necessary concomitance of such an actionresulting from a situation which is not of the creation ofthe authorities." https://hcservices.ecourts.gov.in/hcservices/

28. We have no quarrel with the proposition laid down by theApex court in the above case. The Tribunal, relying on the saidjudgement, has held that there is no infirmity in the action of therespondents who had dispensed with the inquiry leading to dismissal,forgetting the bottom line of the above judgement that 'it is theofficer on the spot who is the best judge of the situation...'Admittedly, the person who signed the dismissal order, viz. the thirdrespondent herein, was not present at the scene of occurrence and assaid above, no reason, as mandated under Rule 14(ii) itself, has beenassigned in the impugned order of dismissal for dispensing with theenquiry. The Tribunal, without assessing the facts and circumstancesof the case and ignoring the law laid down by the Apex court in UNIONOF INDIA AND ANOTHER vs. TULSIRAM PATEL (AIR 1985 SC 1416), to theeffect that in such circumstances, 'the court must put itself in theplace of the disciplinary authority and consider what in the thenprevailing situation a reasonable man acting in a reasonable waywould have done' has arrived at a wrong conclusion that 'there isno infirmity in the action of the respondents who had dispensed withthe inquiry'.29. Since already a criminal complaint has been lodged by theretiring officer Mr.S.M.Krishnan, and since the disciplinaryauthority himself was not present at the scene of occurrence andfurther, no compelling reasons to dispense with the enquiry have beenexplained in writing, thereby to presume legally that no suchcompelling reasons are present to dispense with the enquiry, in allfairness, the disciplinary authority, ought to have contemplated anenquiry before proceeding with the matter and ought to have given areasonable opportunity to the delinquent officers to explain thecharge. In the absence of any reasons, much less recorded as hasbeen mandated under Rule, to show that it was not reasonablypracticable to hold a disciplinary inquiry, we are of the opinionthat the discretionary power was exercised for an extraneous purposeto dismiss the delinquents and that the same is arbitrary andperverse since no reasonable person could form such an opinion on thegiven material and thus the impugned orders of dismissal are hit bymalice also. The alleged incident and the impugned orders ofdismissal were all dated 31.1.2004, which shows the haste in whichthe disciplinary authority has acted. Following the dictum laid downby the Apex Court in UNION OF INDIA AND ANOTHER vs. TULSIRAM PATEL(AIR 1985 SC 1416), this Court, putting itself in the place of thedisciplinary authority, is able to find that as on the date ofpassing the impugned orders of dismissal, the disciplinary authority,being not even present at the scene of occurrence, has not collectedany evidence from any corner to issue the orders of dismissal on thedelinquents but has taken a haste decision, not supported by anyevidence, to invoke the extraordinary provision of Rule 14(ii), whichis unreasonable. While invoking the stringent extraordinary https://hcservices.ecourts.gov.in/hcservices/ provisions like Rule 14(ii), principles of natural justice requireevery care to be taken by the concerned authorities. Any haste ininvoking such stringent provisions, without even complying with themandatory requirements of the provision, would make such decision ofthe disciplinary authority illegal, being an abuse of power conferredupon it. 30. Further more, in UNION OF INDIA vs. R.REDDAPPA [(1993) 4 SCC269], when about 800 railway employees were dismissed under R.14(ii)of Railway Servants (Discipline and Appeal) Rules for participatingin the Loco Running Staff Association strike in January, 1981 on theground that holding an inquiry was not reasonably practicable and theHyderabad Bench of the Central Administrative Tribunal set aside theorders of dismissal on the ground of absence of any material tosupport the said finding. When the same was assailed by theDepartment before the Apex Court contending that the Tribunal hadexceeded its jurisdiction, the Apex Court has held:"The jurisdiction to exercise the power under R.14(ii) wasdependent on existence of this primary fact. If there wasno material on which any reasonable person could have cometo the conclusion as is envisaged in the rule, then theaction was vitiated due to erroneous assumption ofjurisdictional fact. Therefore, the Tribunal was wellwithin its jurisdiction to set aside the orders on thisground. An illegal order passed by the disciplinaryauthority does not assume the character of legality onlybecause it has been affirmed in appeal or revision unlessthe higher authority is found to have applied its mind tothe basic infirmities in the order. Mere reiteration orrepetition instead of adding strength to the order rendersit weaker and more vulnerable as even the higher authorityconstituted sunder the Act or the rules for properappraisal shall be deemed to have failed in discharge ofits statutory obligation."Following the above said judgment also, it can very well be held thatthe impugned orders of dismissal suffers from want of materials andin the absence of any material to substantiate the mere oral stand ofthe Department that holding an inquiry was not reasonablypracticable, without offering any reasons, much less in writing, asmandated by Law, the impugned orders of dismissal are liable to bequashed.31. At this juncture, the learned senior counsel appearing forthe respondents/Railways would contend that the scope of judicialreview in matters of disciplinary proceedings is very limited and theCourt cannot traverse into the facts of the case. In support of hiscontentions, he relied on a judgment of the Apex Court in CHAIRMANAND MANAGING DIRECTOR, UNITED COMMERCIAL BANK AND OTHERS vs.P.C.KAKKAR [(2003) 4 SCC 364], wherein the Apex court has held that https://hcservices.ecourts.gov.in/hcservices/ "The punishment imposed by disciplinary authority unlessshocking to the conscience of the court/tribunal is notsubject to judicial review. Where the court finds thepunishment to be shockingly disproportionate, it mustrecord reasons for coming to such conclusion and merelystating that the punishment was shockingly disproportionateare not sufficient. On finding the punishment to beshockingly disproportionate normally the court shoulddirect the disciplinary authority or appellate authority toreconsider the penalty imposed. However, to shortenlitigation the court may in exceptional or rare casesimpose appropriate punishment after recording cogentreasons in support thereof."32. In the cases on hand, without conducting any enquiry andwithout assigning any reason, as mandated under law, the stringentprovisions of Rule 14(ii) were applied by the respondents to dismissthe delinquent employees. As already adverted to supra, the act ofthe respondents is unjust and arbitrary and hit by malice also. InMATHURA PRASAD vs. UNION OF INDIA [(2007) 1 SCC 437], the Apex Courthas held:"When an employee, by reason of an alleged act ofmisconduct, is sought to be deprived of his livelihood, theprocedures laid down under the sub-rules are required to bestrictly followed. A judicial review would lie even ifthere is an error of law apparent on the face of therecord. If statutory authority uses its power in a mannernot provided for in the statute or passes an order withoutapplication of mind, judicial review would be maintainable.Even an error of fact for sufficient reasons may attractthe principles of judicial review."Therefore, since the disciplinary authority has used hisdiscretionary power in haste and without application of mind, therebydepriving the livelihood of the employees, this Court can certainlyinterfere by way of judicial review. Therefore, the argumentadvanced on the part of the learned senior counsel for therespondents/Railways is rejected. 33. The learned senior counsel for the petitioners-delinquentemployees would further submit that since the criminal court hadcategorically held that the offences under Sections 147,294-B, 323and 506(ii) IPC had not been proved, the petitioners are entitled tobe reinstated in service with all consequential benefits. 34. In catena of decisions, the Apex Court has held thatacquittal of the delinquent employee in a criminal case, ipso facto,does not absolve him from the liability under the disciplinaryjurisdiction and a judgment of acquittal passed in favour of theemployees in a criminal action initiated in respect of the misconduct https://hcservices.ecourts.gov.in/hcservices/ (s) concerned, by giving benefit of doubt, would not, per se ,bebinding upon the employer and does not automatically give theemployee the right to be reinstated, vide AJIT KUMAR NAG vs. G.M.(PJ), INDIAN OIL CORPORATION LTD. [(2005) 7 SCC 764] and MANAGER,RESERVE BANK OF INDIA vs. S.MANI [(2005) 5 SCC 100]. Therefore, theargument of the learned senior counsel for the petitioners/delinquentemployees that on the acquittal of the delinquents in the criminalcase, the authorities should have, automatically, reinstanted them inservice, cannot be appreciated. 35. However, in CHAIRMAN ANDMANGING DIRECTOR, UNITED COMMERCIALBANK AND OTHERS vs. P.C.KAKKAR [(2003) 4 SCC 364], the Apex Court hasobserved:"Acquittal in the criminal case is not determinative of thecommission of misconduct or otherwise, and it is open tothe authorities to proceed with the disciplinaryproceedings, notwithstanding acquittal in the criminalcase. It, per se, would not entitle the employee to claimimmunity from the proceedings. At the most, the factum ofacquittal may be a circumstance to be considered whileawarding punishment. It would depend upon the facts ofeach case and even that cannot have universal application."36. In the case on hand, since the authorities have invoked theextraordinary power under Rule 14(ii), dispensing with the enquiry,and further since the alleged incident was held to be not proved bythe criminal court, after thorough trial, the appellate andrevisional authorities ought to have considered the said aspect ofacquittal while imposing the punishment. Therefore, we are of theview that the factum of acquittal is a circumstance to be consideredwhile awarding punishment in this case.37. For all the reasons, we hold that the impugned orders ofdismissal passed against the delinquent employees, dispensing withthe enquiry, are bad in law, though the authority who passed theimpugned orders of dismissal is competent to pass the same and thatthe appellate and revisional authorities ought to have considered theacquittal of the delinquent employees in the criminal case, beforeimposing punishment on them. Points 2 and 3 are answeredaccordingly. POINT No.4:-In the result, W.P.Nos.28392 to 28394 of 2006 filed by thedelinquent employees are allowed and W.P.Nos.25606 and 25607 of 2006filed by the Railways are dismissed. The delinquent employees are ordered to be reinstated intoservice in their original position, with all service benefits and https://hcservices.ecourts.gov.in/hcservices/ backwages, from 31.1.2004, as if they are continuing in theirrespective positions without any break, within thirty days from thedate of receipt of a copy of this order.No order as to costs.Consequently, M.P.Nos.1 and 2 of 2006 are closed.Jai/RaoSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The General Manager Southern Railway Chennai 600 0032. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram Chennai 600 0233. The Deputy Chief Mechanical Engineer (Loco) Southern Railway Ponmalai Tiruchirapalli-44. The Registrar Central Administrative Tribunal Madras Banch Chennai 600 1045. The Divisional Railway Manager, Trichy Division, Southern Railway, Tiruchirapalli 4.6. The Senior Divisional Mechanical Engineer, Diesel Shed, Golden Rock, Tiruchirapallai. https://hcservices.ecourts.gov.in/hcservices/

7. The Divisional Mechanical Engineer, Diesel Shed, Golden Rock, Tiruchirapalli.8. The Workshop Manager Carriage and Wagon,Southern Railway,Trichy 4.9. The Deputy Chief Materials Manager,Southern Railway, Ponmalai,Trichy 4.+ 2 ccs to Mrs. A. L. Gandhimathi, Advocate SR no. 36199+ 1 cc to Mr. V. G. Suresh Kumar, Advocate SR No. 36338NG(CO)SR/21.6.2007 Common Order in W.P.Nos.25606, 25607 & 28392 to 28394/2006