R. B. Mehrptra, J.@mdashSri Pushkar Chandra Gupta filed a suit No. 204 of 1971 against Union of India in the Court of Civil Judge, Bareilly wherein a relief for a declaration was sought to the effect that the order dated 2751971, passed by the Production Engineer, Railway, Izzatnagar, dismissing the plaintiff from service, be declared as illegal and void and further a relief was claimed for mandatory injunction directing Union of India to continue the plaintiff in service. In addition thereto, a decree tor Rs. 103157 paise was also prayed for.
2. The suit was contested by the Union of India, which was arrayed as defendant in the suit. On the basis of the pleadings of the parties, the trial court framed issues. Only following issues are relevant for the decision of the present appeal:
"Issue No. 4.Whether the order of plaintiff''s dismissal from service dated 21 51971 is illegal, null and void and without proved charges from the reason mentioned in the plaint ?
Issue No. 5.Whether the plaintiff was appointed by Dy. General Manager (Personnel) on 391958 or by the Senior Personnel Officer ?
Issue No. 6.Whether the provisions of Article 311 (1) of the Constitution were violated in dismissing the plaintiff ?
Issue No. 7.Whether the plaintiff was not afforded a reasonable opportunity as envisaged under Article 311(2), and thus the order of dism issal is void ?
Issue No. 8. Whether the production Engineer was competent to dismiss the plaintiff ?"
The trial court dismissed the plaintiff''s suit.
3. Aggrieved thereby the plaintiff filed Civil Appeal 1380 of 1973 which was also dismissed by the IIIrd Additional District Judge, Bareilly, vide his judgment dated 2781979.
4. Aggrieved thereby, the present second appeal has been filed by the plaintiff.
5. The facts, necessary for the decision of the appeal, are being succintly noticed herein below.
6. The plaintiff was working as a General Clerk attached to the Boundary Railway Workshop in the North Eastern Railway, Izzafnagar. The plaints was appointed on 491958, according to the plaintiff, by the Deputy General Manager. On 2491970 he was served with two charge sheets, one dated 1791970 and the other dated 1191970. In the first charge sheet the charge against the plaintiff was that he absented from duty on 891970 without taking permission. The other chargesheet related to the preparation of a free (privilege) pass in his own favour for using it for himself and his family.
7. Regarding the alleged absconding, plaintiff''s version was that on 891970 he received a telephonic call from his wile that due to some quarrel with tenant she came to Bareilly to take him to Moradabad. On receiving this call, the plaintiff immediately left the office. He tried to contact the Foreman, Sri R. C. Saxena, but he was not available. Hence he could not obtain prior permission for leaving the station. However, the plaintiff left an application for have with one Sri Mazhar Hussain. When on 991970 Sri Mazhar Hussain presented his application to the Foreman, the latter forwarded it to Deputy Chief Mechanical Engineer with the report that the plaintiff was absconding.
8. The second charge is altogether denied by the plaintiff. After holding a regular departmental enquiry the plaintiff was dismissed from service. Aggrieved thereby the plaintiff filed suit, giving rise to the present second appeal.
9. I have heard the learned counsel for the appellant, Sri A. S. Diwekar and Sri Lalji Sinha, learned counsel for the defendantrespondent.
10. In the memo of appeal, as many as 11 substantial questions of law have been framed, however, the learned counsel for the appellant has submitted only following substantial questions of law for consideration of this Court t
(1) Whether the order of dismissal was passed against the plaintiff by an officer below the rank of appointing authority and as such, the order of dismissal was in violation of Article 311(1) of the Constitution ?
(2) Whether the Assistant Chemist and Metallurgist (A.C.M.T.) had no authority to issue chargesheet, appoint himself as enquiry officer, submit the enquiry report and the procedure adopted by the A.C.M.T. is in violation of Rule 9 read with Rule 6 Schedule 2 of Railway Servants (Discipline and Appeal) Rules, 1968 ?
(3) Whether the order dismissing the plaintiff from service was passed in violation of the constitutional guarantee provided by Article 311(2) of the Constitution of India ?
11. The submissions made by the learned counsel for the appellant are being dealt with in the same seriatim in which they have been submitted.
12. The first substantial question of law raised by the plaintiffappellant has been dealt with by the lower appellate court in its judgment at point No. 3 The finding by the said court is being reproduced below :
"I find that paper No. 36/K.ha is appointment letter which was issued to the appellant in the case. In the first at the top is mentioned the name of the N. E. Railway and then office order and after the language of the appointment letter and names of the clerk the Senior Personnel Officer has signed this order. Thus this appointment order was complete when it was signed by that officer. On the second page copy of this letter was forwarded to various persons for in formation and necessary action and the same officer has signed this forwarding letter under the signature for Deputy General Manager (P). Thus it is cleat from this appointment letter that the plaintiff appellant was appointed by the Senior Personnel Officer and not by Deputy General Manager as alleged by the learned counsel for the appellant."
13. In the light of the finding 1 examined paper No. 36 Kha which is the appointment letter. The appointment order has clearly been signed by the Senior Personnel Officer. The second page where the copies have been forwarded of the said order in favour of various officers and authorities, the Senior Personnel Officer has signed for Deputy General Manager. By no stretch of argument if can be accepted that the appointment order, itself was passed by the Deputy General Manager. The submission of the learned counsel for the plaintiffappellant on this aspect is patently misconceived,
13A. The services of the plaintiff were terminated by Sri S. Venkataraman, Production Engineer, North Eastern Railway, Izzatnagar. It is not in dispute that the Production Engineer is equivalent to the post of Senior Personnel Officer However, the learned counsel for the plaintiffappellant has contended that the appointing authority of the plaintiff was General Manager and there is no evidence on record that the General Manager or any other authority delegated the power of appointment to the Senior Personnel Officer, as required under Rule 134 of the Railway Establishment Code and on the aforesaid basis, submitted that the appointing authority of the plaintiff in law was the General Manager. Though appointment order of the plaintiff may have been signed by the Senior Personnel Officer, but that will not alter the legal position, whereby the plaintiff''s appointment should be presumed to have been made by the General Manager. In the same continuation, it is contended that assuming the power of making appointment was delegated to the Senior Personnel Officer, the said delegation of power will not be available for dismissing the ; plaintiff from services, as the delegation was only for the purposes of making appointment, there was no delegation for dismissing the plaintiff from service.
14. Rule 134 of the Railway Establishment Coda provides the authority competent to make first appointments to nongazetted posts in the offices detailed below shall be as shown against each. In subclause (c) the category provided in Indian Railway and other Railway Administrations. In the column authority the word mentioned is The General Manager, Chief Administrative Officer or lower authority to whom he may delegate the power. A chart has been annexed regarding delegation of powers under Rule 134 (c) and in respect of Class III and IV posts it has been mentioned that the candidates approved by Railway Service Commission shall only be recruited in Class III posts and it has been further mentioned that the letter of appointment shall be signed by the officer competent to make appointment under his own designation and not on behali of another officer, except where the orders of higher authorities have already been obtained in advance. This clearly shows that the General Manager was competent to delegate its powers to any lower authority and the further fact that the appointment order of the plaintiff was signed by the Senior Personnel Officer, leads only to the conclusion that the Senior Personnel Officer was the appointing authority of the plaintiff.
15. Both the courts below have recorded the findings to the said effect. This view, also support, in the following decisions :
(1) Gorakhnath Vpadhya v. Chief Commercial Superintendent, N. E. Railway, 1971 ALJ 11043.
(2) Raghubir Singh v. State of Haryana, AIR 1974 1516.
(3) Union of India v. Rajendra Singh, AIR 1993 SC 205.
Under Clause 16 of General Clauses Act the power to appoint include power to dismiss.
16. The first submission made by the learned counsel for the appellant has no substance and is accordingly rejected.
17 The second contention of the appellant''s counsel is that A.C.M.T. was not competent to initiate disciplinary proceedings against the appellant, as such the entire proceedings are vitiated in law. For buttressing his submission the learned counsel for the appellant has submitted that the disciplinary authorities competent to initiate disciplinary proceedings are defined in Railway Servants (Disciplinary and Appeal) Rules (hereinafter referred to as the rules}. The A.C.M.T. was not competent to hold disciplinary enquiry and submit report.
18 For appreciating the aforesaid submissions, it is necessary to reproduce the relevant rules on which the reliance has been placed by the learned counsel for the appellant:
"Rule 2(c) "disciplinary authority" means
(i) in relation to the imposition of a penalty on a Railway servant, the authority competent, under these rules, to impose on him that penalty ;
(ii) in relation to Rule 9 and clauses (a) and (b) of subrule (1) of Rule 11 in the case of any Gazetted Railway servant, an authority to impose any of the penalties specified in Rule 6 ; (iii) in relation to Rule 9 in the case of any nongazetted Railway servant, an authority competent to impose any of the major penalties specified in Rule 6 ;
(iv) in relation to clauses (a) and (b) of subrule (1) or Rule 11, in the case of a nongazetted railway servant, an authority competent to impose any of the penalties specified in Rule 6.
Rule 6, subrules (i) to (iv) provided for minor penalties and subrules (v) (ix) provided for major penalties. Rule 8(2) provided :
"Rule 8(2) A disciplinary authority competent under those rules to impose any of the penalties specified in clause (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of subrule (1) of rule (2), institute disciplinary proceedings against any railway servant for the imposition of any of the penalties specified in clauses (v) to (ix) of Rule 6, notwithstanding that such disciplinary authority is not competent, under these rules, to impose an of the latter penalties."
19. The lower appellate court has dealt with the aforesaid point and has rejected the appellant''s contention, The finding record 3d by the lower appellate court is being reproduced below :
"Under Rule 7 subclause (2) a disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of subrule (1) and clauses (i) and (ii) of subrule (2), of Rule 6 may, subject to the provisions of clause (c) of subrule (1) of Rule 2, institute disciplinary proceedings against any Railway servant for the imposition of any of the penalties specified in clauses (v) to (ix) of subrule (1) of Rule 6, notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties. Thus, according to this rule even the disciplinary authority not competent under thcae rules to impose any of the major penalty has got power to enquire into the matter against the Railway servant, what to say of the authority in the present case. Thus the submission of the learned counsel for the appellant in this regard has got no substance and the A.C.M.T., Izzatnagar had full power to conduct enquiry himself against the appellant and there is nothing illegal therein."
(It seems, by typographical error, instead of Rule 8, Rule 7 has bean typed.)
20. The contention of the learned counsel for he appellant is that for inflicting major punishment as contemplated by Rule 9, A.C.M.T. was not competent authority to initiate disciplinary proceedings.
21. It is not disputed that under the rule, A.C.M.T. was competent to impose minor punishment. The first chargesheet was submitted by the ACMT initially for absence without leave, so the initiation of disciplinary proceeding was not of such nature, which warranted major punishment. A.C.M.T. was competent to inflict any minor punishment. The rules provided that in case the disciplinary authority feels that a major punishment is required to be given, he will refer the matter to the authority competent to inflict the major punishment and the A.C.M.T., being satisfied that the plaintiff deserved a major punishment of dismissal, submitted the enquiry report to the production Engineer, who was competent to inflict the major punishment. The rules are para material with the Central Service (Classification and Appeal) Rules and a Division Bench or this court in the matter of Director Postal Services v. Oudh Behari Singh, 1980 All India Services Law Journal 142 held ;
"Rule 11 enumerates the various kinds of penalties which may be imposed on a Government servant; They are ''minor penalties'' falling within clauses (i) to (iv), and ''major penalties'' covered by clause (v) to (ix), reduction to a lower timescale of pay grade or service being one of the major penalties. Under the schedule senior Superintendent of Post Offices but the ''major penalties'' could only be imposed by the Director of Postal Services. Counsel for the writ petitioner contended that since the inquiry officer was not, in the present case, appointed by the Director, to inquire into the truth of the allegations made against the charged servant the proceedings were void from their very inception ; whereas, the counsel appearing on behalf of the appellants has brought to his use subrule (2) oi Rule 13, that since the Senior Superintendent of Post Offices was competent to impose any other penalties specified in clause (i) to (v) he could as disciplinary authority, institute disciplinary proceedings against the writ petitioner for the imposition of any of the major penalties, and this being so, the argument proceeds, the disciplinary proceedings initiated in the instant case do not sailer from the vice of lack of power in the authority initiating the proceedings. To reinforce the contention he has called in aid subrule (2l)(a) of Rule 14 which provides that where a disciplinary authority competent to impose any of the minor penalties but not competent to impose any of the major penalties has itself inquired into or caused to be inquired into the articles of any charge and that authority having regard to its own findings or having regard to his decision on any of the findings of any inquiring authority appointed by it, is of the opinion that any of the major penalties should be imposed on the Government servant, that authority shall forward the records of the inquiry to such authority as is competent to impose the last mentioned penalty. From subrule (21)(a) it is, therefore, clear that an authority competent to impose any of the minor penalties can himself inquire into the articles of charge or cause it to be inquired into by any other person appointed by him and in that case the order awarding any of the major penalties, made by the authority competent to impose such major penalty will not be deemed bad in law merely on the ground that the disciplinary proceedings had been initiated by an authority competent only to inflict any of the minor penalties. The construction which we have put on subrule (2) of Rule 13 is consistent with the scheme built in the rules."
22. The third submission in the appeal has also been dealt with by the courts below at great length and after discussing the evidence on record, both the courts below have recorded a finding that the plaintiffappellant was afforded due opportunity of hearing in accordance with rules and the procedure of the rules regarding giving opportunity in accordance with the provisions of Article 311(2) of the Constitution were fully complied with. The relevant portion of the judgment of the lower appellate court is being extracted herein below :
"If we examine the proceedings of the enquiry in this case, then we find that the enquiring officer concluded his enquiry after recording evidence of witness and considering the same. The copy of the noting of the file of the Inquiring Officer filed before this court, vide paper lis 29/Cl, goes to show the above facts. One order sheet, dated 1241971 also shows that he submitted the proceedings of the enquiry to the production Engineer along with necessary paper with remark "I being disciplinary authority in this case feel that punishment higher than reduction inmerited in this case which is beyond my competency. The case therefore be put up to the competent authority for his perusal and orders." Noting dated 1541971 goes to show that it was submitted to the production Engineer by the A.P.O. concerned. On 2041971 the Production Engineer accepted the findings and ordered for issue of N.P:P. for dismissal from service. On 1351971 the representation of the appellant was put up before him. On 2051971 the Production Engineer considered the enquiry report as well as the representation of the appellant in view of the showcause notice and he found the A.C.M.T. competent to hold enquiry as well as chargesheet in order and the charges leveled against him fully proved, hence he ordered for his dismissal, and for issue of notice about dismissal from service. Paper Nos. 45/8, 46/8, 48/8 and 50/8 also go to support these facts. The deposition of appellant also goes to show that he was informed by the Enquiry Officer about the date fixed in the case but he did not attend the proceedings, hence enquiry was held exparte against him. On 22371 ho received a letter from the enquiry officer that A.C.M.T. Izatnagar was competent to hold enquiry against him. Thus his explanation also supports the case of defendant and I find no irregularity or illegality in the procedure followed by the enquiry officer in this case."
23. I have myself perused the record of the case and I find that both the courts have considered at length the question of affording due opportunity to the plaintiffappellant and have rightly arrived at a conclusion that the plaintiff was afforded due opportunity of hearing and the procedure contemplated by law was followed. No such procedural illegality has been pointed to me on the basis of which it can be held that the findings recorded by the courts below on this point are vitiated in law.
24. Lastly, an attempt was made by the learned counsel for the plaintiff appellant to contend that rules provide that punishing authority can be the appointing authority or an authority equivalent to the appointing authority any other higher authority. The contention of the plaintiff is that Senior Personnel Officer is his appointing authority in the pay scale of Rs. 10601968, The Production Engineer, who dismissed the plaintiff, has been shown in the pay scale of Rs. 9401966, so the Production Engineer was not an officer of equivalent rank of the Senior Personnel Officer who was his appointing authority.
25. The learned counsel for the defendantrespondent has objected to this submission that this factual aspect of the matter cannot be permitted to be raised for the first time in second appeal, as the plaintiffappellant has never raised this issue before the courts below. On merits also the learned counsel for the respondent has submitted that production Engineer was of equivalent rank than of the Senior Personnel Officer. The categories of the officers are defined and ranking depend on the classification and not on the pay scale and in the same reference he has referred to the schedule of the Railway Establishment Code with reference to Rule 134 wherein the powers in the matters relating to the Staff Establishment, the General Manager delegated its powers to Junior Scale Officers to appoint Class IV, Artisan, Class III and grades rising up to Rs. 240.
26. It is not disputed that A.C.M.T. was the Junior Scale Officer, as such, wag of the same rank to which the Senior Personnel Officers being. The pay scale are not determinative of the ranking of the officers. I am of the view that the contention of the learned counsel for the respondent is correct, on both the counts, the factual controversy to the effect that the Production Engineer was not of equivalent rank to Senior Personnel Officer on the basis of pay scale cannot be permitted to be agitated for the first time in second appeal and the ranking of an officer is not to depend on the pay scales. A.C.M.T. who was an officer in junior pay scale, was competent to punish the plaintiff.
27. All the contentions raised by the counsel for the plaintiffappellant Lave failed. The appeal is accordingly dismissed.
28. However, in the circumstances of the case, the parties will bear their own costs in appeal.
