K.C. Agarwal, J. - (1.) ARJUN Chaubey, the petitioner, has challenged the order dated 15th June, 1982, of the Deputy Chief Commercial Superintendent (C). N. Railway, Varanasi, terminating him from the post of senior clerk working in the O.C.S's office Varanasi. The termination order was passed under Rule 14(ii) if the Railway Servants (Discipline and Appeal) Rules, 1968. The relevant portion of the termination order is as under: I, the undersigned, having the powers to dismiss or remove you from service, am fully satisfied that for the reasons which have been recorded in writing it is not reasonably practicable to hold an enquiry in the manner provided under Rule 9 of the Discipline and Appeal Rules 1968 and in exercise of powers vested in me under Rule 14(ii) of these rules read with proviso (b) to Article 311(2) of the Indian Constitution and considering the circumstances of your case, I have come to the conclusion that you are not fit to be retained in service and, therefore, have decided to dismiss you from service from the post of Senior clerk in scale 330 -560 with effect from 15.6.1982 (afternoon). The relevant rules applicable to the petitioner are Railway servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Rules). Rule 6 provides the penalties which may, for good and sufficient reasons be passed on railway servants. Rules 9 to 13 contain an elaborate procedure for holding enquiry of imposing major penalty. Rule 14 deals with the cases where the procedure prescribed by Rules 9 to 13 may be dispensed with. This rule since has an important bearing on the controversy in dispute, the same is being produced below; 14. Special procedure in certain cases. Notwithstanding anything contained in Rules 9 to 13. (i) where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably, practicable to hold an enquiry in the manner provided in these rules; or (iii) where the president is satisfied that in the interest of security of the State, it is not expedient to hold an enquiry in the manner provided in these rules; the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.
(2.) CHALLENGING the dismissal order, the petitioner has raised three arguments. The first is that the reason recorded for dispensing with the enquiry on the ground that it is not reasonably practicable to hold an enquiry in the manner provided in these rules, should be communicated to the employees concerned. According to the learned counsel, reasons are required to be communicated before the order terminating the service is made by the appointing authority. In the alternative, the submission made in this regard was that if the communication of reasons is not held to be necessary before the actual passing of the dismissal order, the same must accompany the order terminating or dismissing the employee. The argument of the learned counsel for the petitioner way that under Rule 14, not only the giving of reasons for dispensing with the enquiry is a condition precedent but also its communication separately to him within a reasonable time. In support of his submission, the petitioner has relied upon K.A. Subramaniam v. Union of India and others, 1982 L.I.C. 1059 P.K. Chowdhary and others v. Union of India, 1977 L.I.C. 450 Ram Khilari v. Union of India A.I. Raj. : 1976 R. 219 and Bhola Nath v. Union of India, 1975 S.L.R. 277 Guj. Before discussing the requirement of communicating the reasons and its consequence in the event of failure in doing so, we may mention that there was no dispute between the parties that the requirement of giving reasons for dispensing with the enquiry under Rule 14(ii) of the Rules is mandatory. Since the requirement of giving reasons is mandatory, failure to do so, is vitiated in the order of termination made against a railway employee. Not only the context but also the language used in Rule 14(ii) makes it incumbent on the authority concerned to give or record reasons for dispensing with the holding of enquiry as is required by Rules 9 to 13 of the aforesaid rules. A mandatory provision in the statute is one, the omission of which renders the proceedings void. To terminate the service of an employee without holding any enquiry is a serious matter and might result in denying him to defend himself to the charges on the basis of which he is terminated. Giving of reasons is the essence of the thing required to be done. In case, therefore, the service of a railway employee is terminated under Rule 14(ii) without giving reasons which induced him for not holding the enquiry, would be vitiated and would be liable to be quashed on that ground.
(3.) WE have quoted above the order by which the petitioner had been dismissed. This order was passed both under Rule 14(ii) and Article 311(2)(b) of the Constitution. Before making the order dismissing the petitioner, the Deputy Chief Commercial Superintendent recorded his satisfaction in writing that it was not reasonably practicable to hold enquiry contemplated by Rule 18 to 13. The reasons recorded by him are being reproduced below: (1) Sri Arjun Chaubey, in order to show his supremacy and with mala fide intentions to overpower the new Dy. C.C.S. who took over charge recently on 4.5.1982 shouted and threatened officers in office repeatedly on 11.5.1982 and 19.5.1982 on one pretext or other in order to gain undue advantage. By shouting and creating chaotic conditions in the office he paralyzed working of the office and thus causing colossal loss of many hours to the Railway Administration. (2) On 11.5.1982 and again on 19.5.1982, Sri Arjun Chaubey forced his entry in the chamber of Dy. C.C.S.C. and shouted on him repeatedly, Dy. C.C.S.C. tried to pacify him and advised him to go to his seat in the section. He did not pay any heed and became more furious and challenged him with threats of dire consequence. (3) Sri Arjun Chaubey in furtherance of his sinister motive deployed miscreants who chased Dy. C.C.S. after start from office for residence at 5.30 P.M. on 20.5.1982. He also employed Vikram the bungalow peon of Dy. C.C.S. to harass him and his family with the assistance of miscreants. He has thus created serious security problem for Dy. C.C.S. and his family members. Dy. C.C.S. immediately lodged complaints with D.M. and S.P. in this regard on 21.5.1982. He also lodged complaints with ASO/R.P.F. SO/GRP and S.H.O. Sigra. (4) Faced with repeated acts of indiscipline and intimidations Sri Arjun Chaubey was served with a notice dated 22.5.1982 to show cause why stern action should not be taken against him for his undesirable activities due to which running of administration was becoming impossible. Instead of mending and giving his explanation to the show cause notice he took an offence and served a threatening notice dated 2.6.1982 to the senior officers through his lawyer demanding withdrawal of the show cause notice failing which he threatened to launch criminal and civil proceedings. Later, on 9.6.1982 he submitted his reply to the show cause notice evading the main charges and the same is not at all convincing. (5) Due to serious threat from Sri Arjun Chaube to the discipline and working of office, an emergent meeting of officers was called on 14.6.1982 by the Dy. CCS/C to decide the course of action by the Administration to meet the situation. The officers narrated their experience and tale of woes in dealing with Sri Arjun Chaube in the past as well as present and expressed their inability to conduct any enquiry as Sri Arjun Chaube was capable of going to any extent including threat to their security after office hours. Officers also feel strongly that due to turbulent mood and intimidatory tactics of Sri Arjun Chaube there is no possibility that any member of staff will come forward to give evidence against him for fear of violence from him.;