KAMAL NARAYAN Vs. UNION OF INDIA
LAWS(CAL)-1992-3-52
HIGH COURT OF CALCUTTA
Decided on March 19,1992

KAMAL NARAYAN Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

Bhagabati Prosad Banerjee, J. - (1.) This is an appeal against the judgment and order dated 17th July, 1986 passed in C.R. No. 9218(W) of 1978 by the learned trial Judge whereby the writ application was dismissed. The writ application was filed a against an order of dismissal passed under Rule 47 of the Railway Protection Force Rules, 1959 without holding any enquiry by an order of removal dated 29th September, 1976. The said order of removal was passed on the ground that it was not reasonably practicable to hold an enquiry under the normal Rules 44, 45 and 46 of the said Rules. Against the said order of removal by following special procedure an appeal was preferred before the appellate authority, namely, the Chief Security Officer of the Railway Protection Force. The said appeal was disposed of by an order dated 9th December, 1976 which reads as follows:- "....... Perused the mercy appeals submitted by HR-4896/Kamal Narayan, R. K.-3336/Anand Missir-R.K.-1830/Ram Bachan Pandey and R.K.-2012/Ram Surat Singh of RPH and looked into the facts and circumstances of the cases. On careful examination, I see no reasons to interfere with the orders of the security officer on mercy appeals. The petitions are, therefore, rejected. Sd/- R.B. Singh, Chief Security Officer." Against that order a revision petition was filed before the Inspector General of Police, Railway Protection Force and that the same was also rejected. In the writ application many points were taken but it is not necessary to go into the details of those points. One of the points that was raised is that the notice of removal from service under Rule 47 of the said Rules without holding any enquiry should be a speaking order and as such the same was liable to be set aside inasmuch as the disciplinary authority has failed to disclose under what circumstances it was not reasonably practicable to hold enquiry under the normal Rules and the dismissal of the appeal by the appellate authority was made in a manner which had caused substantial failure of justice. The learned trial Judge on consideration of the facts and circumstances of the case was pleased to dismiss the writ application holding inter alia that there was no infirmity in the proceedings and accordingly upheld the actions taken by the respondents. Our attention was drawn by the learned Advocate appearing for the appellants to the decision of the Supreme Court in the case of Ram Chander v. Union of India reported in AIR 1986 SC 1173 , wherein the Supreme Court had observed that it is of utmost importance after the Forty Second Amendment as interpreted by the majority in Tulsiram Patel's case (1985)3 SCC 399 that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. Reasoned decisions by tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Consideration of fairplay and justice also require that such a personal hearing should be given, in the instant case the appellate order is very cryptic and on the face of it appears that the appellate authority disposed of the appeal without objective consideration of the matter. As in the instant case admittedly the appellate authority had not applied its mind and had not given any reasoned decision after objective consideration of the points raised and the materials on record, we are of the view that the order of the appellate authority cannot be sustained. Moreover, the Supreme Court in the case of Jaswant Singh v. State of Punjab, 1991(1) SCT 125 (SC) : AIR 1991 SC 385 , has also observed that in case of dismissal without holding any enquiry on the ground that it is not reasonably practicable to hold an enquiry in that case before taking such decision dispensing with the enquiry the authority concerned has to form an opinion objectively on the basis of the materials on record and if existence of materials are challenged the same is also subject to judicial review. Accordingly, after hearing the learned Advocates for the parties we are of the view that since the appellate authority has not discharged its function in the manner observed by the Supreme Court in Ram Chander's case (supra) the order passed by the Chief Security Officer dated 9th December, 1976 as well as the decision of the revisional authority should be set aside and the same are hereby set aside. We direct the appellate authority to dispose of the appeal in the manner laid down by the Supreme Court as indicated above and on consideration of the materials on record the appellate authority shall not only dispose of the appeal on its merits in the light of the observations made by the Supreme Court but also shall decide this question whether on the basis of the materials on record the disciplinary authority was right in taking the view that it was not reasonably practicable to hold enquiry and on consideration of the appeal in the light of the observations as indicated above the appellate authority shall pass the reasoned order. We make it cleat that we have not adjudicated upon any of the points on its merits and all points are left open and we simply set aside the order of the appellate authority in view of the judgment of the Supreme Court mentioned above and direct the appellate authority to hear and dispose of the appeal in the light of the observations made in this judgment. While disposing of the appeal the appellate authority shall also give hearing to the appellants and shall also take into consideration the relevant Rules which have been issued by the authorities concerned laying down the procedure to be followed in the matter of taking action under Rule 47 of the said Rules. 2. In the result, the order and judgment of the learned trial Judge dated 17th July, 1986 is set aside and the appeal is allowed to the extent indicated above. Let a xerox copy of this order and judgment be given to the learned Advocates for the parties on usual terms and conditions. Ordered accordingly.;


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