SHARDA PRASAD TIWARI Vs. DIVISIONAL SUPERINTENDENT CENTRAL RAILWAY NAGPUR DIVISION

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution by the three petitioners who are non-gazetted employees of the Central Railway, foe writs of mandamus, certiorari and other appropriate writs, orders or directions in the matter of disciplinary inquiries which are being held against them, by respondent who is the Divisional Superintendent of the Central Railway at Nagpur. Petitioner No. 1 is also the Honorary President of the Co-operative Society called the Central Railway Employees' Consumers Co-operative Society, Limited, Ajni, Nagpur, which will hereinafter be referred to as the Society- Petitioner No. 2 is the Honorary Secretary of the Society. In the petition it is averred that petitioner No. 3 was a member of the Society and worked as a Treasurer only for 12 days from 18-6-56 to 30-6-56 when he was relieved of his charge as Treasurer by one Ramnarayan, that new office-bearers of the Society were elected on 31-8-58, and that the new Committee of the Society sought the assistance of the respondent, namely, the Divisional Superintendent of the Central Railway at Nagpur, for getting proper accounts from the outgoing committee of the Society on the allegation that the outgoing Committee had not handed over cash and accounts to the newly elected Committee. The Assistant Registrar of the Co-operative Societies also complained to the respondent that proper accounts of the Society were not forthcoming. The respondent thereupon ordered the suspension of petitioners Nos. 1 and 2 on 27-2-58. Petitioner No. 3 was not suspended. Charges were framed against all the three petitioners by the respondent on 8-11-58, 8-11-58 and 5-12-58 respectively. The charge against petitioner No. 1 was that while he wag the President of the Society during the period from 1-7-56 to 31-8-58, he failed to discharge his duties and responsibilities as prescribed in the byelaws of the Society, resulting in excess credits being granted to members and the non-recovery of credit dues from members; that he did not check the credit and proper posting of the cash book, stock book and other account books of the Society; that he did not hand over the cash balance as noted in the cash book, to the new Committee which took over charge on 31-8-58. which was tantamount to embezzlement of the funds of the Society; and generally that the President contributed to the general mismanagement of the Society. The charge against petitioner No. 2 was almost in similar terms. The charge against petitioner No. 3 was that he committed serious misconduct while he was a Treasurer of the Society from 1-7-56 to 31-7-58: that he failed to discharge his duties and responsibilities as prescribed in the byelaws of the Society; and that he did not hand over the cash balance to the new Committee which took over charge on 31-8-58.

(2.) ON these charges the respondent started disciplinary enquiry against the three petitioners, and intimated the petitioners that Officers' Enquiry would be held at Ajni on 30-1-59. petitioners 1 and 2 wrote to the respondent, objecting to the legality of the proceedings. The respondent rejected these objections by a memorandum dated 27-1-59, After the objections were rejected, the petitioners have approached the High Court for appropriate writs, challenging the order of suspension dated 27-3-5s and the charge sheets filed -against them on 8-11-58 and 5-12-58 as illegal on the grounds that the respondent had no jurisdiction to take any disciplinary action against the petitioners for any act or omission of theirs as members or office-bearers of the Society, that subsidiary rule No. 4, said to have been made under R. 1706 of the Discipline and Appeal Rules (Non-Gazetted) by the General Manager of the Central Railway, on the basis of which the disciplinary action is said to have been taken, had not been made or promulgated by the General Manager, that the action taken by the respondent was outside the scope of subsidiary Rule 4 to Rule 1706 of the Discipline and Appeal Rules, and that the subsidiary rule is further beyond the scope of the powers invested in the General Manager by Rule 1726 of the Discipline and Appeal Rules. In the petition another ground was urged, that the power given to the General Manager by Rule 1726, to make subsidiary rules, is an unlawful delegation of rule-making powers. But this point has not been urged before us by the learned counsel for the petitioners. On these grounds the petitioners pray for appropriate writs, orders and directions,

(3.) THIS is a case where the Central Railway wants to take disciplinary action against three of its servants for alleged serious misconduct. The Governor General has made rules under Sub-section (2) of Section 241 of the Government of India Act 1935, which are to be found in the Indiaiv Railway Establishment Code. These rules have continued to be in force after the Constitution of India by virtue of Article 313 of the Constitution. Rule 2 of Chapter XVII, which is numbered as 1702 in the Code, enumerates the penalties which may, for good and sufficient reasons, be imposed upon railway servants. The penalties enumerated include dismissal from service. Rule 6 in chapter XVII, which is rule No. 1706 in the Code, enumerates the circumstances under which a railway servant is liable to be dismissed from service, and these circumstances are : (i) Conviction by a criminal court, or by a court martial, or (ii) serious misconduct, or (iii) neglect of duty resulting in, or likely to result in, loss to Government or to a Railway Administration, or danger to the lives of persons itsing the railway. It is therefore within the competence of the Central Railway to institute a disciplinary proceeding against a railway servant if according to it any of these aforesaid circumstances existed. One of these circumstances is serious misconduct.