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PATNA HIGH COURT
R.K.Choudhary and A.B.N.Sinha JJ.
Gangadhar Pandey
Versus
Union Of India
Appeal from Original Decree No. 84 of 1959 ;
Decided On : AUGUST 30, 1963
RAILWAY EMPLOYEE - REMOVAL FROM SERVICE - JURISDICTION - EMPLOYEE'S STATUS AS UNION OFFICIAL - ARTICLE 311(2) OF THE CONSTITUTION - REASONABLE OPPORTUNITY TO SHOW CAUSE - SCOPE AND AMBIT - DEPARTMENTAL ENQUIRY - NON-COOPERATION BY EMPLOYEE - EFFECT - JURISDICTIONAL POINT - EMPLOYEE'S CAPACITY AS UNION OFFICIAL AND AS RAILWAY EMPLOYEE - DISTINCTION - MISCONDUCT - INSUBORDINATION - BREACH OF DISCIPLINE.
Fact of the Case:
The plaintiff, an Assistant Station Master and Branch Secretary of the North Eastern Railway Mazdoor Union, was removed from service for misconduct. He challenged the order of removal on the grounds that (i) the District Traffic Superintendent had no authority to remove him, (ii) there was a violation of his constitutional rights in not having been given an opportunity, after the issue of the second notice, to cross-examine the witnesses examined by the enquiry committee and to adduce evidence in his defence; and (iii) the enquiry held by the enquiry committee was absolutely without jurisdiction in view of the fact that he had approached the District Mechanical Engineer in his capacity as the Branch Secretary of the Union and not in his capacity as an Assistant Station Master.
Finding of the Court:
1. The District Traffic Superintendent had the authority to remove the plaintiff from service as he was the appointing authority. 2. The plaintiff was given reasonable opportunity to show cause against the proposed penalty and the refusal of the prescribed authority to permit him to re-open the enquiry by allowing him to cross-examine the witnesses and adducing evidence in his defence was, in the circumstances of the case, not unjustified and that did not in any way violate the provisions of Article 311(2) of the Constitution. 3. The plaintiff's contention that the departmental enquiry was without jurisdiction as he had approached the District Mechanical Engineer in his capacity as the Branch Secretary of the Union and not as an Assistant Station Master was rejected. The court held that the plaintiff did not cease to be an employee of the railway even though he was the Branch Secretary of the Union and that he could not distinguish between his capacity as an Assistant Station Master and his capacity as the Branch Secretary of the Union.
Issues: 1. Whether the District Traffic Superintendent had the authority to remove the plaintiff from service? 2. Whether there was a violation of the plaintiff's constitutional rights in not having been given an opportunity, after the issue of the second notice, to cross-examine the witnesses examined by the enquiry committee and to adduce evidence in his defence? 3. Whether the enquiry held by the enquiry committee was absolutely without jurisdiction in view of the fact that the plaintiff had approached the District Mechanical Engineer in his capacity as the Branch Secretary of the Union and not in his capacity as an Assistant Station Master?
Ratio Decidendi: 1. The appointing authority of the plaintiff was the District Traffic Superintendent, and not the Traffic Manager. Therefore, the District Traffic Superintendent had the authority to remove the plaintiff from service. 2. The plaintiff was given reasonable opportunity to show cause against the proposed penalty. The refusal of the prescribed authority to permit him to re-open the enquiry by allowing him to cross-examine the witnesses and adducing evidence in his defence was, in the circumstances of the case, not unjustified and that did not in any way violate the provisions of Article 311(2) of the Constitution. 3. The plaintiff did not cease to be an employee of the railway even though he was the Branch Secretary of the Union. He could not distinguish between his capacity as an Assistant Station Master and his capacity as the Branch Secretary of the Union. Therefore, the departmental enquiry was not without jurisdiction.
Final Decision: The appeal was dismissed with costs.
R.K.Choudhary, J.
1. This is an appeal by the plaintiff whose suit, for declaration that his removal from service was wrongful, illegal, ultra vires and without jurisdiction and that he still continued to be in service, and for recovery of his salary from the date of dismissal, has been dismissed by the learned Additional Subordinate Judge, Chapra. The plaintiff was appointed as Assistant Station Master in July, 1949 and posted at Tirki Railway station in the district of Gonda. At the time when the incident which resulted in his removal happened, he was posted as Assistant Station Master at Barauni Junction railway station on the North Eastern Railway. At the relevant period, he was the Branch Secretary of the North Eastern Railway Mazdoor Union, Samastipur Branch, a legal body having a legal existence under the Trade Unions Act of 1926 and duly recognised by the railway management. It is alleged that on the 9th of June, 1956, the plaintiff forced entry in the office room of the District Mechanical Engineer, Sonepore, without his permission and, on objection being raised by the District Mechanical Engineer, and his refusal to discuss any matter with him, the plaintiff became impertinent and insulted and abused him by calling him rouge and scoundrel.
It appears that on the 25th of July, 1956, a charge-sheet of serious misconduct was drawn up against the plaintiff stating the incident referred to above and he was called upon to show cause by written explanation within seven days from the date of the receipt of the same. The charge-sheet was received by the plaintiff on the 28th of July, 1956, and on the 2nd of August, 1956, he sent his reply with regard to the charge-sheet challenging the drawing up of the same against him as Assistant Station Master of Barauni Junction railway station and stating that, if the administration had got any complaint against the branch Secretary of the North Eastern Railway Mazdoor Union, Samastipur Branch, the matter may be reported to the General Secretary of the North Eastern Railway Mazdoor Union. This latter (sic) is marked Ext. G/I in the case. On the 7th of August, 1956, the District Traffic Superintendent of the North Eastern Railway, Sonepore, wrote a letter (Ext. G) to the plaintiff that, as he had not submitted his defence to the charge referred to above, it was presumed that he had no explanation to offer, and intimating that the departmental confronted enquiry by District Officers in connection with the above charge, would be held at Muzaffarpur in the office of the Regional Superintendent on the 16th August, 1956 and the 17th of August 1956.
He was also informed that in order to allow him all reasonable facilities to defend himself in the enquiry, he might elect bis defence Counsel. On the 10th of August, 1956, the plaintiff, by a letter Ext. G/4, nominated Sri Prabhat Biswas, Vice-President of the North Eastern Railway Mazdoor Union, as his defence Counsel and prayed for time till after the 18th August, 1956, as the said nominated Counsel was out of station. Time was, however, not granted and the enquiry was to be held on the 16th of August, 1956. On that date, the plaintiff again prayed for adjournment on account of the absence of his Counsel. Tbe enquiry was, therefore, postponed to the 22nd and 23rd of August, 1956, in order to enable the plaintiff to arrange the attendance of his Counsel. The next sitting of the enquiry committee was, therefore, held at Muzaffarpur on tbe 22nd of August, 1956, and the plaintiff appeared with his Counsel Sri Biswas. On that date, the plaintiffs Counsel wanted the enquiry committee to clarify whether the plaintiff was being prosecuted in his capacity as Assistant Station Master and as an employee of the railway administration or as an Union official. The committee explained to him that, so far as the District Traffic Superintendent of Sonepore was concerned, the position appeared to be quite clear from the charge-sheet itself wherein the pla
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