UNION OF INDIA AND OTHERS

R. REDDAPPA AND ANOTHER

AUGUST 5. 1993

[S.C. AGRAWAL AND R.M. SAHAI, JJ.]

SeJVice Law : Railway Sovice (Discipline and Appeal) Rules: Rule 14(2)-Dismissal from se1vice without depmtmental inquily on the ground of being not reasonably practicable-Action vitiated, if there was no niatenaz on - ivhich any reasonable person could con1e to that conclusion_.:..An ord~~· othenvise illegal passed by disciplina1y auth01ity cannot be assumed to be legal on 111ere affinnation in apjJeal or revision-Disniissa/ set aside-Direction regarding payment of backwages and pensionwy benefits issed.

Constitution of India 1950 : A1ticle 3ll-Dismissa/ of from sen•ice without holding enqui, y-Mlhcther violation of

About 800 railway employees were dismissed under Rule 14 (2) of Railway Service (Discipline and Appeal Rules, for participation in Loco Running Statf Association strike in January, 1981. In each case, the disciplinary authority held that it was not practicable to hold an inquiry.

Most of the employees pursued their remedy by appeals, re, isions, writ Petitions and Claim Petitions. Some of the applications, filed by the empfoiees in the High Court of Andhra Pradesh were allowed as appellate authority had pascd non-speaking orders. The Revie\.V Petition filed by

the employees, whose Writ Petitions had been dismissed by the High Court, were allowt'd, in view of decision of this Court in U.O.f. v. Tulsi Reon Patel, F [1985] 3 SCC 398. Directions were issued to the Appellate authority to decide appeals afresh n the light of observations made by this Court in Satya Vir Singh v. Uniun of India a11d Others, [1985] 4 SCC 252 and Ram Chander v. Union of India, [1986] 3 SCC 103. However, the appellate authorit)' na.aintaiucd ther.order of dismissal. The Central Administrative G Tribunal. (Hyderabad) set aside the order of the appellate authority for non-application of mind and absence of 1naterial justifying dismissal.

The employees working in Loco Running Sheds of Jodhpur had also challenged their dismissal by way of appeals before the departmental authority. They filed Writ Petitions in the Rajasthan High Court, as the H 503

A appeals were not decided within reasonable time. The Writ Petitions were transferred to this Court and were disposed of, alongwith the decision in Tulsi Ram Patel case. Revision Petitions filed by the employees, in view of the observations made by the court, were dJsmissed by the revision authority. The Central Admin.istrative Tribunal, Jodhpur, quashed the B orders passed by the revision authority.

The employees working in Chandigarh area had challenged the orders of their dismissal by Writ Petition, which were transferred to this court and disposed of alongwith the Tulsi Ram Patel case. The employees filed Revision Petition seeking direction to the concerned authority to C decide the case. The Central Administrative Tribunal, held that the ratio of Tulsi Ram Patel was of no assistance, as appeals had been rejected earlier and nothing was pending.

The employees approached the Minister and he passed an order reinstating them just one day prior to the Ministry fell. However, it was D rescinded by the President.

Union of India filed appeals against the orders of the Central Administrative Tribunal, allowing claim Applications of the employees.

The employees, whose claim Applications had been dismissed by the Tribunal also preferred appeals before this Court.

Disposing of the appeals, this Court

HELD : Jurisdiction to exercise power under Rule 14(2) of the Railway Service (Discipline and Appeal) Rules was dependent on existence of the primary fact that it was not reasonably practicable to hold enquiry.

If there was no material, on which any reasonable person could have came to that conclusion, then the action taken was vitiated by erroneous assumption of jurisdictional fact. (509-G]

Union of India v. Tulsi Ram Patel, [19M5] 3 SCC 398, Satya Vir Singh G v. Union of India and Others, (1985] 4 SCC 252 and Ram Chander v. Union

of India and Others, (1986] 3 SCC 103, referred to.

2. Illegal order passed by the disciplinary authority does not assume character of legality, because of afiirmation in appeal or revision, unless the higher authority is found to have applied its mind to the basic infir- H. mities. Mere re-iteration. or repetition, instead of adding strength to the

U.0.l. v. R. REDDAPPA 505

orders, renders it weaker and more vulnerable. [509-H, SHI-A]

3. Jurisdiction exercised by the High Court under Article 226 of the Constitution of India or the Administrative Tribunal is not as wide as it is in appeal or revision but once the Court is satisfied of injustice and arbitrariness, the restriction, self-imposed or statutory, stands removed and no rule or technicality can stand in the way of rendering justice.

[509-E-F]

4. The exercise of power by the authorities was arbitrary. There can

be no justification for denying the benefit to the employees. Technical arguments apart, once this Court is satisfied that participants in strike were treated unjustly, the Court is not only competent but has obligation C to act in a manner, which may be just and fair. [510-G-l:I; 511-A]

. 5. Whether an out-going Government could take a policy decision one day before quitting the office or whether the succeeding Government could honour it, cannot be regulated by Courts. [510-CD] D

6. In the above circumstances, the employees l\'ho were dismissed under Rule 14 (2) for having participated in the Loco Staff strike of 1981 should be restored to their respective posts within a period of three months. [511-B]

The Court issued directions for the payment of backwages/pansionary benefits to reinstated employees and retired/deceased retired employees. [510-C]

CIVIL APPEAL JURISDICTION : Civil Appeal Nos. 4681-82 of 1992 etc., etc.

From the Judgement and Order dated 5-9-90 of the Central Administrative Tribunal Hyderabad in 0.A. No. 232/87 and 233/87.

V.R. Reddy, ASG, Dr. Anand Parkash, C.V.S. Rao, V.K. Verma G AK. Srivastava, Ms. Indu Goswamy and S. Wasim A. Quadri for the appellants.

P.S. Poti, K.Madhava Reddy, R.K. Garg, Dr. Tapas Ray, H.K. Puri, M.A. Krishnamoorthy, Mrs. Chandan Ramamurthy, ATM Sampath and R.P. Wadhwani for the respondents.

A The Judgment of the Court was delivered by

R.M. SAHA!, J. Railway employees working in Loco Running Staff, of different zones numbering approximately 800, were dismissed under Rule 14(2) of Railway Service (Discipline and Appeal) Rules for their B participation in Loco Running Staff Association strike in January 1981. In each of these cases the disciplinary authority held that it was not reasonably practicable to hold any inquiry. Since then most of the employees have been pursuing their remedy by way of appeals, revisions, writ petitions and claim petitions. They have also been making effort politically to get themselves reinstated. The legal battle has been long one. Some of it is noticed C in the order passed by the Central Administrative Tribunal (referred as

'CAT'), Hyderabad. Other orders impugned are passed by CAT, Jodhpur and CAT, Chandigarh. Appeal Numbers 4681-82 of 1992 and 4651-4680 of 1992 arise out of the order passed by the CAT, Hyderabad. Earlier the employees challenged their dismissal by way of the writ petitions in the D High Court f Andhra Pradesh. Some of these petitions were allowed as the appellate authority had passed non-speaking orders. Others were dismissed. Against the orders dismissing the writ petitions the employees filed a review petition which was allowed in view of decision of this Court in Union of India v. Tulsi Ram Patel, [1985] 3 SCC 398 and a direction was given to the appellate authority to decide the appeals afresh in light of E observations made by this Court in Satyavir Singh v. Union of India and

Others, [1985] 4 SCC 252 and Ram Chander v. Union of India and others, [1986] 3 SCC 103. The appellate authority once again maintained the order of dismissal. It has been set aside by the CAT both for failure to apply mind and absence of any material justifying dismissal. Following directions F were issued :

"In result, we set aside the orders cJ the appellate authorities/ reviewing authorities rejecting the appeals/review petition of the applicants and the orders of the disciplinary authorities dismissing the applicants from senice. In O.A. Nos. 24/86, 369/86, 232/87, 402/88, 403/88, 694/88, 808/88, 809/88, 810/88, 811/88, 812/88, 865/88, 868/88, 869/88, 870/88, 871/88, 883/88, 44/89, 46/89, 92/89, 93/89, 103/89, 231/89, 298/89, 299/89, and 300/89, we direct the appellate authority to conduct an enquiry either himself or through an enquiring authority appointed by it in accordance with the Railway Services (Discipline and Appeal) Rules, 1968. If an en-

U.O.L v. R. REDDAPPA[R.M.SAHAJ, J.] 507

quiry is not possible at all, the applicants will be entitled to. be A reinstated with all consequential benefits. In 0.A. Nos. 233/87, 329/87, 767/87, 43/89 and 45/89 it is represented that the applicants have since retired. The question of holding an enquiry in their cases does not, therefore, arise. The orders of the disciplinary authority/appellate authority in these cases are set aside as has been done by the Gauhati Bench in 0.A. No. 408/86 ( Golul Ch.

Ba1Ua & Ors. v. Union of India & Ors.). The applicants therein will

be entitled to receive the salary for the period from the date of dismissal to the date of their attaining the age of superannuation and thereafter to pension as if they had retired from service on attaining the age of superannuation."

Special Leave petitions have been filed against the order of CAT, • J odhpur. The employees working in Loco Running Sheds of Jodhpur had challenged their order of dismissal by way of appeals. As the appeals were

not decided within reasonable time they filed writ petitions in the Rajas- D than High Court which were transferred to this Court on an application made hy the Union of India. All these petitions were disposed of along with the decision in Tulsiram Patel. In view of the observation made in that decision the employees whose appeal had been rejected during pendency of the writ petition filed revision before the revising authority which was dismissed. Against the order dismissing their revision they filed the E claim petition which was decided in July 1992 and following directions were issued :

"In view of the above discussion, we allow the applications partly, quash the orders passed by the Revisional Authority and direct F that a fresh order may be passed in the Revision Petition f the applicants after taking into account observations contained in this order. Since applicants are out of job for over 11 years, the revisional authority shall pass the fresh orders on the Revision Petitions within 4 months of receipt of the copy of this order. The respondents are directed to allow the applicants to retain their G quarters until 2 months after the fresh orders are passed in their Revision Petition, or until the normal period for which they are entitled under rules to retain the quarters after superannuation in case of those who have attained the age of superannuation, subject to payment of all arrears of rent at the rate applicable before their H

dismissal from service within 4 months of this order. Where the revisional authority holds or orders an enquiry under D.A.R., the applicants will be allowed to retain the quarters till final decision in the enquiry proceedings subject to the above conditions. Parties to bear their own costs. 11

So far the appeals arising out of order passed by CAT, Chandigarh arc concerned the employees working in that area 'challenged the orders of disciplinary and appellate authority by way of writ petitions which were transferred to this Court. After the decision of the case in Tulsiram Patel the employees filed Revision Petitions and sought a direction that the C concerned authorities be directed to decide the same. The CAT Chandigarh held that the ratio of Tulsiram Patel was of no assistance as the appeals had been rejected earlier and nothing was pending.

So far the political endeavour is considered it is narrated in an D affidavit that in March 1990 the then Railway Minister made a statement

on the floor of the House assuring that the cases of the dismissed employees would be reviewed and a decision would be taken for their reinstatement. It is further stated that in pursuance of the said statement of the Minister an order was passed on 20th June 1990 by the Board for review of cases and on 8th September 1991, 37 employees of South Central E Railway were recommended for reinstatement. Later on the Chairman. of

the Railway Board submitted a note to the Railway Minister that instead of reinstating the employees they may be paid one time compensation. The affidavit states, that it was not agreed to by the Minister and a decision was taken by him to reinstate all the employees which was approved by the

F Cabinet. However since the decision was taken one day prior to the fall of the Ministry it was rescinded by the President. The affidavit states that the Railway Minister of the interim Government again made a statement in 1991 on the floor of the House that all the dismissed employees shall be reinstated. The succeeding CJovernment, ho\vever, did not pass any order of reinstatement. But the learned counsel for respondents has produced a G copy of the Government's decision made in 1993 to re-employ all such employees who had not approached the Court.

When the special leave petition was filed by the Union of India

against th~~ order of CAT, Hyderabad, a state1nent was made on 14th l-[ November 1991 that the Govcrn1ncnt \Vas seriously considering the ques-

U.0.l. v. R. REDDAPPA[R.M. SAHA!, J.] 509

tion of withdrawing the proceedings against all the persons who took part A in the strike in 1981. The statement was supported by an affidavit filed in

- January 1992, by Sr. Personnel Officer. In March 1992 another affidavit was filed by another Chief Personnel Officer stating categorically that the Government of India had decided not to reinstate these employees in service. In yet another affidavit filed in July 1992 it was stated that the B matter was receiving attention of ministries concerned and a recommendation was being made for grant of monetary benefit to the employees. The statement was supported by an affidavit and it was stated that although the punishment of dismissal was not being withdrawn the Government as a matter of sympathetic consideration had decided to examine the feasibility C of granting to the employees ex-gratia payment. In October 1992 the Deputy Director, Eastern Railway Board filed an affidavit stating that the railway employees who had been dismissed due to participation in the trade union agitation will be paid ex-gratia as one time payment on certain terms and conditions. In November 1992 when the petitions were taken up for hearing it was slated the attempt to settle the dispute, amicably, has failed.

More than a decade had gone since these employees were dismissed for participating in strike called by the Union recognised by the Railways.

But end has not reached. Barring appellate and revisional authority whose discretion too was attempted lo be curtailed by issuing circular no Court E or tribunal has found the orders to be well founded on merits. True the jurisdiction exercised by the High Court uuder Article 226 or the tribunal is not as wide as it is in appeal or revision but once the Court is satisfied of injustice or arbitrariness then the restriction, self imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice. We are not impressed by the vehement sub- F mission of the learned Additional Solicitor General that the CAT, Hyderabad exceeded its jurisdiction in recording the finding that there was no material in support of the finding that it was not reasonably practicable to hold an enquiry. The jurisdiction to exercise the power under Rule 14(2) was dependent on existence of this primary fact. If there was no material G on which any reasonable person could have come to the conclusion as is envisaged in the rule then the action was vitiated due to erroneous assumption of jurisdictional fact therefore the tribunal was well within its jurisdiction to set aside the orders on this 6'TOUnd. An illegal order passed by the disciplinary authority does not assume the character of legality only be- H

A cause it has been affirmed in appeal or revision unless the higher authority

is found to have applied its mind to the basic infirmities in the order. Mere reiteration or repetition intcad of adding strength to the order renders it \Veaker and more valncrahle as even the higher authority constituted under the Act or the rules for proper appraisal shall be deemed to have failed in

discharge of its statutory obligation.

Reliance was placed on the Cabinet decision taken in November 1990 and it was urged that the succeeding Government should have honoured it and directed reinstatement of all employees and payment of back wages.

We do not think that we are called upon to decide it as the decision was rescinded by the President. Suffice it to say that in Parliamentary system of Government the democracy grows and matures by healthy conventions and traditions. Should an outgoing Government take a policy decision one day before quitting the office or should the succeeding Government honour it, cannot be regulated by courts.

However, what is apparent is that the order of dismissal against the employees has not been sustained in the Courts. Although Jodhpur Bench has not examined the matter on merits and the CAT Chandigarh had dismissed the claim petitions on bare technicality, yet there can be no doubt that the Government whether in 1990 or in 1991 or in 1992 has been considering the matter, and efforts had been to grant relief to these employees. What should be done then which may do justice to both the parties? Overall picture is that there are five types of employees, one, whose claim petition before tribunal has been allowed and they have been directed to be reinstated; second, whose claims petitions had been allowed to a limited extent, namely, the appellate and revising authority had been directed to re-examine their cases; third, those who have retired during pendency of the claim petition; fourth, where the claim petitions have been dismissed because the appeals filed had already been dismissed; and fifth; those who did not approach the Court and the Government have taken a decision to re-employ them. We are not concerned with last category. But the rationale behind this decision of t:hc Government is to atone the injustice done to these employees. It has not been found by any tribunal that the'orders passed against the respondents was in any manner .iustified.

Jn other words, the exercise of power was arbitrary. If this be so as is apparent then there can be no justification for denying the benefit to H employees. Technical arguments apart once this Court is satisfied that the

U.0.1. v. R. REDDAPPA [R.M. SAHA!, J.] 511

parllc1pants in the strike were unjustly treated the Court is not only A competent but has an obligation to act in a manner which may be just and fair. Keeping this in light we issue following directions:

(i) Employees who were dismissed under Rule 14(2) for having participated in the Loco Staff strike of 1981 shall be restored to their respective post within a period of three months from today.

(ii) (a) Since more than three years have elapsed from the date the orders were found to be bad on merits by one of the tribunal . it is just and fair to direct the appellant to pay the employees compensation equivalent to three years salary inclusive of dearness allowance calculated on the scale of pay prevalent in the year the C judgment was delivered, that is, in 1990.

(b) This benefit shall be available even to those employees who have retired from service. In those cases where the employees are dead compensation shall be paid to their dependents. The com- D pensation shall be calculated on the scale prevalent three years immediately before the date of retirement or death.

(iii) Although the employees shall not be entitled to any promotional benefit but. they shall be given notional continuity from the date of termination till the date of restoration for purposes of E calculation of pensionary benefits. This benefit shall be available to retired employees as well as to those who are dead by calculating the period till date of retirement or death.

All the appeals and petitions are disposed of accordingly. Since the employees are being directed to be paid compensation there shall be no F order as to costs.

I.S.G.

Appeals disposed of.