- (1.) THE facts giving rise to this second appeal by the defendant Union of India are these - THE respondent-plaintiff was appointed as a Khalasi on 29 May, 1947 in Loco Workshop, Western Railways, Ajmer and was confirmed as such in 1963. He was drawing Rs. 85/- per month as pay and Rs, 47/- per month as Dearness Allowance and also Rs. 7. 50 as house rent. He alleged that he had been falsely implicated in a case under secs. 324 and 323/341 read with sec. 34 I. P. C. THE court of Additional Munsiff Magistrate first class, Ajmer (East) tried the case and convicted him under sec. 324 read with sec. 34 I. P. C. and sentenced him to pay a fine of Rs. 250/ -. It is admitted case of the parties that on the basis of the said conviction he was removed from service on 3 March, 1966 (Exhibit A/6 ). This order was served upon him on 4 March, 1966 (Exhibit A/1 ). THE respondent challenged the validity of this order on several grounds one of which was that without considering the conduct of the respondent and the circumstances leading to his conviction the punishing authority pressed into service special procedure provided in R. 1719 (i) of Discipline and Appeal Rules for Railway Servants other than those employed in the Railway Protection Force contained in Indian Railway Establishment Code Volume I (which for the sake of brevity will hereinafter be called 'the Rules') and removed him from service. He prayed for declaration that the order of his removal was illegal and invalid. Prayer for a decree for arrears of salary was also made.
(2.) THE defendant-appellant traversed all the grounds relied upon by the respondent in support of his plea of invalidity of the impugned order of removal and pleaded, inter alia, that from the facts and circumstances of the case it was clearly borne out that the punishing authority had taken into consideration the conduct of the respondent which had led to his conviction on a criminal charge and, therefore, R. 17l9 (i) of the Rule has been rightly applied to the respondent by the punishing authority. Both the lower courts have decided this point in the plaintiff's favour and since I, too, have felt that the matter can be disposed of on this point alone I do not think it necessary to make reference to other grounds relied upon by the plaintiff. R. 1719 reads as under - "1719 Special procedure in certain coses Notwithstanding anything contained in sec. 5 or sec. 6 - (i) where a 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 in writing that it is not reasonably practical to follow the procedure prescribed in the said rules; or (iii) where the president is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit. Provided that the Union Public Service Commission shall be consulted before passing such orders in any case in which such consultation is necessary. " Section V and Section VI referred to in the opening sentence of this Rule prescribes the procedure to be followed in cases of imposition of major and minor penalties respectively. It is further clear that if R. 1719 is pressed into service in a particular case the procedure prescribed under the aforesaid sections need not be followed. In the present case it was admittedly not followed. The only question, therefore, which calls for determination is whether condition No. (i) prescribed under R. 1719 was fulfilled in the present case. The learned District Judge has held that there is nothing on the record to show that the penalty was imposed on the respondent on the ground of conduct which has led to his conviction nor there is anything to show that the Disciplinary Authority had considered the circumstances of the case. The impugned order of punishment may be divided into two parts. The first part is office note which has been submitted for orders and the latter part is the order by the Authority which is a short one and can be conveniently reproduced here. "shri Phoolchand and Tarachand have been convicted by the Court, but they have suppressed this information from this office. Since they have both been convicted, they are removed from service. D E. E. (W) may be informed regarding the action taken by us against Phoolchand and Tarachand. Sd/- S. C. Bansal W. M. (L) 3-3-66. "
(3.) THERE is no denying the fact that there is nothing in the order to indicate that the penalty had been imposed on the ground of conduct of the respondent which led to his conviction or that the Disciplinary Authority had taken into consideration the circumstances of the case. Learned counsel for the appellant, however, submitted that the impugned order has been passed on the basis of the office note preceding it and the office note does lead to an inference that the conduct of the appellant leading to his conviction had been taken into consideration and so also the circumstances of the case. His contention is that the punishing authority must be deemed to have adopted the reasoning contained in the office note. Granting for argument's sake that the office note may be considered as a part of the order itself or as the basis of the impugned order, the question still remains whether there is anything in the office note to show that the conduct of the appellant leading to his conviction and the circumstances of the case had been taken into consideration. ;