C. M. LODHA, C. J. - (1.) BY this writ petition under Article 226 of the Constitution, the petitioner has challenged the validity of the order of Divisional Personnal Officer, Western Railway, Jaipur, dated July 30, 1976, by which the petitioner was compulsorily retired from service.
(2.) THE petitioner was a clerk belonging to non-gazetted class III cadre in Western Railway. An enquiry pertaining certain charges of corruption was conducted against him and ultimately the petitioner was compulsorily retired by way of penalty by the order of the Divisional Personnal Officer, Jaipur. The petitioner filed an appeal before the Divisional Superintendent, Western Railway, Jaipur, but the same was dismissed. Thereupon, he filed a review application before the Chief Personnal Officer, Bombay, but was unsuc-cessful. He also filed another review application before the General Manager, Western Railway, Bombay, but that too was rejected. Learned counsel for the petitioner has urged the following points in support of this petition - (i) that the Divisional Personnal Officer, who passed the impugned order against the petitioner, was not competent to do so as he was not the appointing authority of the petitioner and thus there has been violation of Article 311 of the Constitution; (ii) that no reasonable opportunity was given to the petitioner to defend himself inasmuch as he was not permitted to examine some material witnesses in his defence; and (iii) that it is a case of no evidence. Mr. Baphna has appeared on behalf of the railway to oppose the admission of the writ petition. Consequently, I have heard learned counsel for both the parties. As regards the first point, it may be pointed out that no such objection was taken either before the Enquiry Officer or before the Divisional Personnal Officer, who had issued show cause notice to the petitioner as to why his services should not be terminated. Admittedly, no objection was taken even in the appeal before the Divisional Superintendent, Western Railway, Jaipur. Apart from that. Mr. Baphna has placed before me a booklet of Schedule of powers delegated by the General Manager to Heads of the Departments and other officers of the Western Railway. At page 12 of this booklet, it is mentioned that the power of making initial appointment to non-gazetted post has been delegated to Divisional Officers, as shown in column 5. Learned counsel for both the parties are agreed that the Divisional Personnal Officer is the same as Divisional Personnal Officer. This power was delegated as far back as in 1970. The impugned order was passed on July 30, 1976. Thus, it is clear that on the date the impugned order was passed, the Divisional Personnal Officer, Western Railway, Jaipur, was competent to make appointment to a non-gazetted post which is held by the petitioner. Learned counsel for the petitioner, however, urges that the petitioner, could have been removed only by the authority equivalent to the authority who actually appointed him. 1 am, however, unable to accept this contention. All that is required is that the person who passed the impugned order must be competent, at the time the impugned order was passed, to appoint the petitioner and that position does not admit of doubt in view of the schedule of powers referred to above. In this view of the matter I do not see any force in the first contention.
(3.) THE second contention raised by the petitioner is also without force inasmuch as it appears from Annexure 5 (b) that after evidence by the Department as well as the defence, evidence had been closed, the petitioner was examined and he expressed a desire to examine five more witnesses. A question was however put to him as to what was the relevancy of evidence of those witnesses? To this, he could not give any satisfactory answer and consequently the Enquiry Officer refused to summon the additional witnesses after the defence evidence had been closed on the ground that the petitioner was adopting dilatory tactics. In my opinion, the view taken by the Enquiry Officer is correct and does not suffer from any error of law or fact. This brings me to the last point urged by the learned counsel viz. , that it is a case of no evidence. However, on perusing the findings of the Disciplinary Authority (Annexure 8), it transpires that as many as 10 witnesses were examined by the Department, all of whom deposed that the petitioner was regularly taking illegal gratification from them for taking them as substitutes and was thus harassing the substitutes working in his office in order to gain pecuniary advantage to himself. This is a finding of fact. Learned counsel for the petitioner has failed to point out as to how this finding is vitiated. In view of the overwhelming evidence produced by the Department, there is no room for argument that it is a case of no evidence. The result is that I do not find any force in this writ petition and dismiss it summarily. . ;