RBE No. 53/1992: Imposition of penalties under Rule 14(ii)
No.E(D&A)92 RG6-48, dated 06.04.1992
Sub: Imposition of penalties under Rule 14(ii) of Railway Servants (Discipline & Appeal) Rules, 1968.
1. Attention is invited to Board’s letter No.E(D&A)85 RG6-72, dated 06.02.1986, and 16.05.1986 (RBE No. 90/1986) and No.E(D&A)86 RG6-74, dated 13.04.1989 on the above subject. It is advised in these letters that in terms of principles laid down by the Supreme Court the Disciplinary Authority was not expected to dispense with the disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case is weak and therefore bound to fail and that recording in writing the reasons for dispensing with the inquiry was a constitutional obligation. It was also mentioned that the circumstances which make the disciplinary authority conclude that it was not reasonably practicable to hold the enquiry should actually subsist at the time when the conclusion is arrived at and that it would not be correct on the part of the disciplinary authority to anticipate such circumstances as those are likely to arise. Merely recording that if normal procedure is followed it is likely that evidence may be destroyed or witnesses may not come up to give evidence on account of fear or thread/ harassment etc. would not be adequate for dispensing with the inquiry.
2. In this connection, extracts from the judgment dated 27.11.1990 of the Supreme Court in the case of Jaswant Singh v. State of Punjab [AIR 1991 SC 385] are given in Annexure. Accordingly, it is essential that the reasons recorded by the Disciplinary Authority for dispensing with the inquiry are supported by objective facts and/or independent material.
3. Since the decision of the disciplinary authority to dispense with inquiry is challengeable in a Court of Law, including the CAT, all disciplinary authorities may be asked to bear in mind the above mentioned guidelines while applying Rule 14(ii) of Railway Servants (Discipline and Appeal) Rules.
ANNEXURE
Extracts of para 5 of the judgment of Supreme Court in Jaswant Singh v. State of Punjab [AIR 1991 SC 385]
“5.This impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he with the help of other police employees will not allow holding of any departmental enquiry against him, and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two Revision Applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981, but he was immediately placed under suspension. Thereafter, two show cause notice dated April 4, 1981, were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incidence of alleged attempt to commit suicide took place on the morning of Apple 6, 1981, at about 11 a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was in hospital, the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices the third respondent passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the Revision Applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent No.3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311(2). The learned counsel for the respondents could not point out clause (iv)(a) of sub-para 29(A) of the counter which reads as under:
“The order dated 07.04.1981 was passed as the petitioner’s activities were objectionable. He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful.”
This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant has thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No.3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at p.270 [of 1985 (Supp) 2 SCR 131] : [at p.1479 of AIR 1985 SC 1416] [1985 (2) SLJ 145 SC] or Tulsi Ram’s case:
“A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrary or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department’s case against the government servant is weak and must fail.”
The decision to dispense with the departmental enquiry cannot therefore be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of Law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by the third respondent it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police official to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc., when he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the grounds that he was instigating his colleague and was holding meetings with other police officials with a view to is spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur. On April 3, 1981, reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one’s contention that the said SHO was threatened. The third respondent’s counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained.
Download Railway Board Circular RBE No. 53/1992
Forward reference ⇒ RBE No.