- (1.) PETITIONER Shikhar Chand has filed this Writ Petition under Article 226 of the Constitution and it arises out of the following circumstances:--On February 2, 1959. petitioner Shikhar Chand was working as a Second Fireman, colloquially known as 'agwala'. He was booked on Engine No. 9545-W. G. which was nominated to run the goods train 966 Up from Gangapur City to Kota. The crew on that engine consisted of driver Dukhi Ram, First Fireman Chatrulal and the petitioner as a Second Fireman (Agwala ). It is alleged by the petitioner that the driver found certain deficiencies in the engine and the matter was brought to the notice of the Supervisor to make good the deficiencies. It is said that the staff did not properly attend to the complaints made by the driver and the crew was asked to take the engine out of the loco shed. It is further alleged that the feeding staff did not provide engine drenching pipe on that engine and therefore the petitioner had to make repeated requests to provide the said pipe. Since the engine on which the petitioner was deputed to work was not found fit in accordance with Rule 116 of the General and Subsidiary rules (Western Railway), the driver, the petitioner and also the first Fireman refused to work the engine till the deficiencies were made good. This refusal of the crew ultimately resulted in the cancellation of the goods train. The grievance of the petitioner is that as the petitioner was an active worker in the union of the railway employees and had also served as a Secretary to the Western railway Mazdoor Sangh, the Railway authorities found it to be a suitable occasion to pick him up for taking disciplinary action against him for the alleged refusal to work the engine on 2nd of February, 1959, though the other members of the crew were equally responsible for the same. Consequently, the petitioner was served with a charge sheet Ex. P/1 alleging that he refused to obey the order of loco foreman and obstructed other railway staff in the discharge of their duties and himself refused to perform his duties. The petitioner denied all the charges. An enquiry was then set up. The enquiry officer after recording the statements of certain witnesses and also examining the petitioner, found that the petitioner was willing to work only when coal drenching pipe was provided which, according to him, meant that he (the petitioner) refused to work, and on that basis, the petitioner was found guilty of the charge of refusing to perform his duties. The enquiry report was placed before the disciplinary authority viz. Assistant Operating superintendent, Kota, who found the petitioner guilty of the said charge and passed the order of dismissal on 13th February, 1960. The petitioner preferred an appeal against the said order to the Divisional superintendent Kota, but he could not get any relief from the appellate authority also. Thereafter the petitioner preferred to file a civil suit against the Union of india in the court of Munsiff, Gangapur praying that a declaration may be given that the order of dismissal passed by the Divisional Mechanical Engineer Kota on 13-2-66 as upheld by the Divisional Superintendent Kota on 23-4-60 be held as illegal and void. He also sought a decree for Rs. 1504/12/-as arrears of pay due to him from the railway up to the date of the suit i. e. 31-7-60 and further prayed that his pay at the rate of Rs. 126/4/-p. m. may also be decreed till the suit was decided by the court. The Union of India filed its written statement in the suit and on the basis of the pleadings various issues were struck by the trial court. The main issue on which the arguments of the parties have centred round is Issue No. 4 --which was framed by the trial court into two parts. This issue reads as follows:--4 (a) Whether this Court can go into the correctness of the facts on the strength of which the plaintiff was dismissed from service? 4 (b) If yes, whether the dismissal order is justified on the facts found to be proved by the court. After recording the evidence on behalf of the parties the trial court decided the case in favour of the petitioner and held that the dismissal of the petitioner was illegal as it was based on inferences which were not permissible in law but were a result of a pure guess and conjecture. The court therefore set aside the order of dismissal and passed a decree of Rs. 1504. 75 along with pendente lite salary at the rate of Rs. 126/4/- till the date of the dismissal. The Union of India filed an appeal against the said judgment of the learned Munsiff dated 30th April, 1963 in the court of the Senior Civil Judge, Gangapur. That appeal was decided by the learned Senior Civil Judge on 21-3-66 and by his judgment the decree passed by the trial court in favour of the petitioner was upheld in toto. The Union of India, however, did not prefer any second appeal against the judgment and decree of the Senior Civil Judge, Gangapur, and under the decree of the court the defendant paid the amount of the decree to the petitioner/plaintiff, but the authorities in spite of the unequivocal declaration of the court in favour of the petitioner, that his dismissal was illegal did not reinstate the petitioner in his post, and passed another order on 10-6-66 suspending the petitioner from the back date when he was dismissed by the D. M. E. i. e. , from 13th of February, 1960. The D. M. E. also ordered a fresh enquiry into the same charges which had formed the basis of the previous enquiry resulting in the wrongful dismissal of the appellant. The petitioner on receipt of the second charge sheet, submitted his reply on 3rd of july, 1966, whereby he challenged the competence of the authorities to order a fresh enquiry on the same charges. In that reply it was specifically mentioned by the petitioner that the judgments and the decrees of the civil courts enjoin on the railway administration to treat the petitioner as an employee in the railway from the date of the original suspension. It so appears that this plea of the petitioner did not find favour with the Railway authorities who by one stroke of pen annulled the effect of the judgment and decree of the competent Civil court by suspending the petitioner from the date when he was dismissed by the D. M. E. on those charges. The petitioner also made it clear that if he were not reinstated in his job and the railway authorities pursued the de novo enquiry, then the petitioner shall be compelled to invoke the extraordinary jurisdiction of this Court. In spite of this reply the railway authorities persisted in holding a de novo enquiry on the old charges. Having felt aggrieved by this attitude of the railway authorities, the petitioner has filed this writ application praying that by issuing a writ of certior-ari or any other writ, order or direction, the order of suspension passed by the D. M. E. (E) Kota on the 10th of June, 1966, and directing to hold a fresh enquiry may be quashed and the respondents may be prohibited to make any further probe into the same charges from which the petitioner had already been exonerated by the judgment of the Civil Court which binds the railway.
(2.) IT appears that after the filing of this writ application, the railway authorities did not proceed with the fresh enquiry, though no order was passed by this Court restraining the respondents to hold any such enquiry against the petitioner.
(3.) DURING the pendency of this writ application, it appears that the petitioner, who was under suspension by virtue of the impugned order of the D. M. E. shifted to jaipur for further studies. This action of the petitioner was found objectionable by the railway authorities and therefore he was again charge-sheeted, vide Ex. P/8 dated 12/28-2-68 for remaining absent from the headquarters without the permission of his superior authorities but this charge, as is apparent from Ex. P/8, was later on amended by the respondents and a new charge was framed against the petitioner that he was guilty of serious misconduct and did not maintain absolute integrity and cheated the Railway Administration by drawing the suspension allowance during the suspension period for which he was not entitled, to leave the headquarters without permission, and by doing this, he violated the provisions of Para. 2004 of Indian Railways Establishment Code Vol. II. It may also be mentioned here that the petitioner when he found himself in tight financial circumstances decided to leave the job of the railwavs and tendered his resignation on 19-1-1968 which date falls prior to the date of the second charge sheet given to the petitioner for absenting himself from the headquarters during the suspension period. Since these subsequent developments were not the subject-matter of the writ petition, the petitioner brought them to the notice of this Court by moving an application dated 24th January, 1969, praying that the respondents may be restrained from making further enquiries in connection with the subsequent second charge sheet. This Court however did not give any interim relief to the petitioner as prayed for by him as the second charge sheet was not the subject-matter of the writ application. The railway authorities, it appears, proceeded with the enquiry in the second charge sheet and passed an order on the 19th February, 1969, removing the petitioner from service with immediate effect The petitioner however did not get his writ application amended and challenged this subsequent order of removal but during the course of arguments it was urged by Mr. J. P. Jain that the subsequent enquiry was made by the Railway authorities at the back of the petitioner and no fresh charge sheet was ever served on him. This Court on 30th of July, 1969. passed an order directing the learned counsel appearing on behalf of the respondents to file reply to the facts mentioned in the application of the petitioner dated 24-1-1969 and also required him to furnish information regarding the fact whether the second charge sheet on the basis of which the petitioner is said to have been removed from service was ever served on him or not. He was also directed that if the second charge sheet was served on the petitioner, then he should give the details about the date of service of that charge sheet. It is regretted to note that the respondents did not care to comply with the orders of this Court dated the 30th of July, 1969.;