BERI, J. - (1.) THIS is a petition under Art. 226 of the Constitution of India by Harbanslal, once a clerk in the Northern Railway Bikaner, who challenges his dismissal from service on the grounds that he was dismissed by an authority subordinate to the one by which he was appointed and that he had not been aforded reasonable opportunity of showing cause and he prays that his dismissal order be quashed.
(2.) THE petitioner was served with a charge-sheet accusing him that he received a bribe in the sum of Rs. 150/- for the transfer of Pindi Das, a fitter in the Loco Shed from Hanumangarh Junction to Delhi Sarai Rohilla. THE Charge-sheet was accompanied by the statement of allegations. He was required to show cause within 7 days of its receipt as to why he should not be dismissed from service or punished with any of the lesser penalties specified in Rule 1707 of the Indian Railways Establishment Code, Volume 1. THE petitioner categorically denied the charges levelled against him. An Enquiry Committee consisting of the Workshop Assistant Accounts Officer, Northern Railway, Bikaner was constituted to enquire into the charges against the petitioner. A charge-sheet was again given to the petitioner by the enquiry Committee on 29th January, 1964. THE petitioner protested saying that the Enquiry Committee had no authority to amend the charge. THE Enquiry Committee observed by their order of the 29th January, 1964 that it was merely to make him understand the nature of allegations against him that the charge-sheet was served on him and the charges were the same as were originally levelled against him. THE petitioner was required to answer. THE petitioner ''demanded" the copies of the statements of the "prosecution witnesses examined by the Investigating Authority, that is the Special Police Establishment in this case, and later-complained that the statements of Mahavir Prasad and Puran Singh were not furnished to him. Enquiry was held and petitioner was found guilty. Another notice was served on him to show cause why the proposed action of dismissal be not taken against him. THE petitioner again submitted his reply on 9th June, 1964 but by order of 19th December, 1965 passed by the Deputy Chief Accounts Officer and Financial Advisor, Northern Railway, New Delhi, respondent No. 2, the penalty of dismissal was imposed upon him THE petitioner preferred an appeal to the Financial Advisor and the Chief Accounts Officer Northern Railway, respondent No. 3, which was dismissed on 3-5-1965. He then preferred this petition challenging the aforesaid dismissal order on the ground that the General Manager or the Chief Administrative Officer, that is the Divisional Superintendent, Bikaner alone were competent to impose the punishment against him. THE order of dismissal by the respondent No 2 he contends is in violation of Art. 311 (1) of the Constitution of India and is, therefore, inoperative and void ab initio. THE further ground raised is that the enquiry against the petitioner was a complete farce and was violative of the principles of natural justice because at the stage of the framing of charge no punishment could be proposed as was done in the charge-sheet and this prejudiced the mind of the Enquiry Committee and thereby it violated Art. 311 (2) of the Constitution of India. He further contends that the charge of misconduct alleged against him was not a serious misconduct according to the Railway Rules and the proper and the only course against the petitioner was to proceed against him in accordance with law. THE enquiry was, therefore, without jurisdiction. He also claims that the non-supply of the statements recorded by the Investigating Officer of the Special Police Establishment of two witnesses resulted in prejudice and vitiated the enquiry and therefore his dismissal order should be quashed. All the three respondents have filed a reply to the aforesaid petition. According to the Railway the petitioner was appointed by the Chief Auditor of the ex-Bikaner State Railway. According to the notification the Chief Auditor of the ex Bikaner State Railway has been equated to the present rank of a Senior Accounts Officer in the Northern Railway. Therefore, the dismissal of the petitioner by Deputy Chief Accounts Officer is not by an authority sub-ordinate to the one which appointed him. The petitioner who is a class III servant of the Railway could even otherwise be appointed or dismissed by an officer of the rank of the Deputy Chief Accounts Officer. The claim that the General Manager or the Chief Administrative Officer (of latter designation there is no officer on the Northern Railway) alone could have dismissed him was stoutly contested. Copies of all the statements as requested by the petitioner were given to him and those witnesses whose copies the petitioner complains were not supplied are persons who were never examined by the Special Police Establishment, therefore, their statements could not be supplied. The language of the charge dated 29th October, 1964 is practically the same as of the original charges and it is futile to suggest that there was any amendment. The petitioner was merely trying to hamper the enquiry by raising such frivolous objections. When Mahavir Prasad appeared as a witness he was corss-examined by the counsel for the petitioner without any objection. No question was directed to challenge the Railway's stand that Mahavir Prasad was never examined by the Investigating Officer of the Special Police Establishment. The form of charge-sheet as employed in the first instance was in accordance with the rules in force and the petitioner has been given adequate opportunity as envisaged by rules, law and the principles of natural justice. The writ petition, the Railway claims, should be dismissed with costs. This petition and another petition of Daulatraj v. Union of India (Writ Petition No. 396 of 1965) came up for hearing before one of us. The pronouncement in Parmeshwar Dayal vs. State (1) wherein it was held that Class III employees of ex-Bikaner State Railway could only be dismissed by the General Manager of the Northern Railway under the altered set up was strenuously contested by the learned counsel for the respondents. It was felt that in view of the documents produced by the Railway, which documents were not placed before the learned Judge deciding Parmeshwar Dayal's case (l), and further because the matter was important and had far-reaching consequences one of us directed that the cases be laid before the Chief Justice for being referred to a larger Bench. This is how both the cases are before us for decision. We are disposing of only Harbanslal's petition for the time being and its decision regarding the status of the appointing authority in case of Class III servants of the ex-Bikaner State Railway shall govern the case of Daulatraj also (Writ Petition No. 396 of 1965) From the rival contentions raised in the petition, the following points emerge for consideration, (1) Whether the petitioner has been dismissed by an authority subordinate to the one by which he was appointed? (2) Whether the petitioner has been aforded reasonable opportunity as envisaged by Article 311 of the Constitution of India and is there any violation of the principles of natural justice? Point No. 1 - An anwer to the question covered by this point necessitates a survey of the recent hisory of the Indian Railways' reorganisation. Like many other Railways of the erstwhile Indian States the ex-Bikaner State Railway was owned by the State of Bikaner. The United State of Rajasthan was completed in three stages. The third stage was reached on the 15th of May, 1949. (Cf. "white Paper on Indian States", 1950 Edition, pages 53 and 283 ). When the Constitution of India came into force on the 26th of January, 1950, according to the terms of Art. 295 of the Constitution of India all property and assets which immediately before the commencement of the Constitution vested in any Indian State corresponding to a State specified in Part B of the First Schedule were to vest in the Union if the purposes for which such property and assests were held immediately before such commencement were to be purposes of the Union relating to any of the matters enumerated in the Union List All rights, liabilities and obligations of the Government of any Indian State whether arising out of any contract or otherwise were to be the rights, liabilities and obligations of the Government of India if the purposes for which such rights were acquired or liabilities or obligations incurred before such commencement related to the purposes of the Government of India to matters enumerated in the Union list. This was subject to any agreement entered into in that behalf by the Government of India with the Government of that State. In the Seventh Schedule, Item 22 "railways" is one of the matters enumerated in the Union List. Therefore, subject to the agreement, which later on came to be called as the Federal Financial Integration of States, the assets relating to the ex-Bikaner State Railway became the assests of the Union. On the 25th February, 1950 the Ministry of Railways issued a letter (Ex. A) to the Chief Secretaries of the various States including the Chief Secretary of the United State of Rajasthan containing certain instructions for the guidance of the Railway Administration as regards their working and management with effect from 1st April, 1950, the day on which the ex-Bikaner State Railway, amongst others, was to come under the "direct administrative control of the Ministry of Railways (Railway Board)". By a press communique (Ex. A/1) it was notified as follows: "as a result of federal financial integration of States and Unions of States, the Bikaner Railway will come under the direct administrative control of the Govt, of India, Ministry of Rly?. (Railway Board) with effect from 1-4-50. All Rly. staff are hereby informed that for the present, until a decision is reached as regards the terms and conditions to be applied to them, they will continue to be governed by their existing terms and conditions of service " A large number of Railway employees of different set-ups and varying sizes were to be absorbed and instead of issuing individual letters of appointment the Ministry of Railways, Government of India issued general orders applicable to all of them. On the 24th Maich. 1950 the President was pleased to decide by Notification No. O. M. N. F. 6 (34) E. 111/50 dated the 14th March, 1950 that pending further orders existing personnel staff shall be deemed to have been appointed under proper authority, unless in any particular case the services of a person are dispensed with in accordance with the procedure that may be laid down in this regard. On the 2nd July, 1951 the Government of India in the Ministry of Home Affairs issued an order in para 3 (i) where it was declared: "steps should be taken expeditiously (wherever this has not already been done) to equate the posts which formerly existed under the State Government in the Departments dealing with 'central' subjects, with appropriate posts in the corresponding Departments of the Central Government, for this purpose, ad hoc Committees will be constituted by Ministries on which their Financial Advisers will be represented. The Committees will submit their recommendations to Government for the equation of posts, having due regard to the nature and extent of the responsibilities attached to the former posts in the Indian States, the size of the charge and other relevant factors, without actually involving a personal appraisement on merits of the persons holding the posts. " It further laid down in paragraph 3 (iii) - "when the equation of posts is completed by the ad hoc committees and approved by Government [as may be prescribed in this behalf by orders issued by the Ministry of Railways in respect of Railway servants. . . . . . . . . . . . " (Cf. Compilation of Important Orders issued in connection with the taking over of Audit and Accounts functions of the erstwhile Indian States as a consequence of Federal Financial integration" - 1956 Edition ). On the reorganisation of the Indian Railways a new set up came into being and the present Northern Railway was thus born. On 16th April, 1952 General Manager, Northern Railway issued an order (Ex. H) which laid down the schedule of powers and it is said therein that pending the promulgation of the schedule of powers of the Divisional Superintendents the General Manager had accorded sanction to the Divisional Superintendents of Jodhpur and Bikaner to exercise the existing powers of General Manager and will continue to do so upto 15th May, 1952. The posts of the Bikaner State Railway were equated by the Government of India, Ministry of Railways, Railway Board by their express letter dated 24-4-1952 (Ex. C ). It provided that the gazetted posts existing on 31-3-1950 on the ex-Bikaner State Railway have been equated to the grades in the prescribed scales obtaining on the former Indian Government Railways as shown in the attached Schedule 1. We might quote that Schedule as is relevant for our purposes: "1. General Manager . . . Junior Administrative. 9. Chief Auditor (now designated as Chief Accounts Officer) . . . Senior Scale. " It would thus appear that the General Manager of the ex-Bikaner State Railway by virtue of this process was equated to the post of a Junior Administrative Officer and the Chief Auditor of the then Bikaner State Railway was equated to the post of a Senior Scale Officer in the Northern Railway. The contention of the Rly. is that even if the appointment of the petitioner by the Chief Auditor of the ex-Bikaner State Railway is accepted, in the present set up to the Northern Railway, that post is equated to the rank of a senior scale officer and the Deputy Chief Accounts Officer is higher in rank to a senior scale officer and he was, therefore, competent to dismiss the petitioner. In our opinion this contention is correct and must prevail. Our reasons are that the Union of India absorbed the employees of the ex-Bikaner State Railway subject to the conditions that the Union of India, Ministry of Railways may lay down in this behalf. They had by the aforesaid process provided an equation for determination of comparative ranks of the Railway officers of the ex-Bikaner Railway with those of the Indian Government Railways and from that stand point of view the dismissal of the petitioner by the Deputy Chief Accounts Officer, respondent No. 2 is valid because this officer is not an authority subordinate in rank to the one who had originally appointed the petitioner. Strong reliance was placed on Parmeshwar Dayal's (1) case. We might notice this case in some detail. Parmeshwar Dayal's appointment was originally sanctioned by the General Manager of the ex-Bikaner State Railway. He came to be prosecuted for an offence under the Prevention of Corruption Act and a sanction was necessary under sec. 6 thereof before he could be prosecuted. The sanction to prosecute Parmeshwar Dayal was granted by the Divisional Engineer of the Nothern Railway. The learned single Judge held that this sanction in the light of Art. 311 of the Constitution of India was invalid because the initial appointment of Parmeshwar Dayal was sanctioned by General Manager of the ex-Bikaner State Railway. The question was examined from two points of view. The first was that both according to Art. 311 (1) of the Constitution of India as well as R. 1705 of the Railway Establishment Code Vol. I no Railway servant could be removed or dismissed by an authority lower than that by which he was appointed to the post held by him substantively. The second reason was that ordinarily in the Schedule of Powers under para 134 of the Railway Establishment Code Vol. I read with R. 19 of the Discipline and Appeal Rules for Non-Gazetted Servants of the Northern Railway it was only the General Manager who could have appointed a person of the rank of Parmeshwar Dayal. In our view before the learned single Judge, in spite of his giving several opportunities to the counsel for the State, necessary notifications were not placed enabling him to reach a correct conclusion. He was thus left to interpret the material placed before him without reference to the documents which we have set out above. A letter issued by the Railway for the purposes of delegation of powers in regard to the imposing of penalties on Railway servants was produced in Parmeshwar Dayal's case (l) and from it the learned single Judge concluded that the delegation of powers as envisaged by that letter could not run counter to the basic principles enshrined in Art 311 of the Constitution of India. Reliance was placed in that case on Mahadev Prasad vs. S. N. Chatterjee (AIR 1954 Patna, 285) which laid down that a rule under Art. 309 which delegated authority on persons of lower rank had not the effect of eating up the principle of Art. 311 of the Constitution of India. We are in agreement with this principle abstractly speaking. As we have already noticed the assets of the ex-Bikaner State Railway came to vest in the Union of India under Art. 295, and the service conditions of those ex-Bikaner State Railway employees who were absorbed by the Indian Rly. were determined by the President by the Notifications quoted earlier and the employees commenced serving the Union of India subject to those conditions. A uniform principle of equation of the official ranks in the ex-Bikaner State Railway (as distinguished from delegation) was declared rationalising the divergent conditions prevailing in different ex-State Railway whose employees came to be absorbed pursuant to the provisions of Art. 295 of the Constitution. Unfortunately the various steps leading to the constitutional changes were not placed before the learned single Judge and he decided Parmeshwar Dayal's cased) in the light of the material that was before him. In our opinion, therefore, the correct position is that for the purpose of determining the rank of the appointing authority of the ex-Bikaner State Railway and for that matter of the ex Jodhpur State Railway resort should be had to the process of equation given above. That also seems to be the intention of Note (c) to R. 19 of the Discipline and Appeal Rules for Non-Gazetted Railway Servants of the Northern Railway. It reads - "the appointing authority in the case of staff of Bikaner and Jodhpur ex-State Railway should be deemed to be the same as in the case of staff of the same category on Indian Government Railways as no formal orders of appointment were issued to the staff at the time of integration of those ex-State Railways with the Indian Government Railways. " It is by a "deeming" process that the appointing authority of the ex-Bikaner State Railway has to be ascertained. Thus with great respect the conclusions reached in Parmeshwar Dayal's case are not correct. There is another aspect of the matter. The initial appointing authority in the case before us has became defunct. Its corresponding authority is sought to be found out by mere designation. This procedure is erroneous because designations do not necessarily provide equality of rank. In Raghunath Singh vs. State of Madhya Bharat (2) this aspect of the matter was considered and the learned Judges held that the D. I. G. Police of Madhya Bharat could not be said to be subordinate in rank to the I. G. of the erstwhile Gwalior State. Where an authority has ceased to exist and its corresponding authority has been declared by competent authority then in our opinion the defunct authority's status must be determined by the corresponding authority thus created. As a result of the discussion aforesaid there is no substance in the contention that the petitioner has been dismissed by an authority subordinate to the one by which he was appointed. Point No. 2 - As regards the question of reasonable opportunity, we have examined the papers produced by the parties. We accept the respondents' contention that the statements of Mahavir Prasad and Puransingh were not recorded by the Special Police Establishment and therefore the question of supplying copies of these statements to the petitioner at the time of the enquiry does not arise. The grievance that the charge framed on the 29th April, 1964 was an amendment of an earlier charge is equally frivolous. We have examined the charge. It is substantially the same. In fact it was to acquaint the petitioner with the precise allegation that was made against him that the charge of 29-4-1964 was drawn and it is surprising that instead of being thankful for amplification the petitioner is converting it as an occasion for complaint. Under Rule 17 the Northern Railway Discipline and Appeal Rules a Railway servant has been made liable to be dismissed from the railway service if he is guilty of serious misconduct. According to the grammatical meaning the word "misconduct" inter alia means "improper conduct". (See Oxford English Dictionary, Vol. VI, Ed. 1933 ). In our opinion accepting bribe is not only an improper but illegal conduct. In this context it is relevant to recall what is considered to be "criminal misconduct" in law. Sec. 5 (l) (d) of the Prevention of Corruption Act reads as follows - "5. Criminal misconduct in discharge of official duty - (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty - (d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. " A public servant who is accused of taking bribe can be guilty of criminal misconduct. Criminal misconduct is certainly an aggravated form of misconduct. If R. 17 provides that a railway servant shall be liable to be dismissed for serious misconduct he can certainly be dismissed of what the law describes to be a criminal misconduct.
(3.) NO other point has been pressed before us. In view of this matter, the writ petition has no substance and it is dismissed with costs. .;