M.L Pendse, J.:— The petitioner joined the North Western Railway as an Apprentice Carpenter on May 31, 1946. The petitioner was absorbed in Central Railway as a skilled carpenter in Matunga Workshop. Bombay in January 1948 and thereafter was promoted from time to time and at the relevant time was holding the post of Carpenter (Inspector) under the Additional Chief Mechanical Engineer, Matunga. The duties of the petitioner required checking and inspection and the petitioner and certain other Officers were allotted a table which was ear-marked for inspection work.
2. The Railway authorities received secret information through intelligence that the petitioner was indulging in Matka gambling activities in Workshop premises during duty hours. On the basis of the secret information on March 21, 1981, the raiding party led by Mr. J.B Patil, Assistant Vigilance Officer apprehended two employees of the Workshop, viz. (1) Virdhaval Dhananjay Worlikar and (2) Vinayak Dhananjay Worlikar red-handed while accepting bets from co-workers. The Worlikar brothers on interrogation confessed that they were doing the business of Matka gambling under the control of the petitioner. The Vigilance party thereafter contacted the petitioner and raided the table which was used by the petitioner and some other Inspectors. The petitioner was asked to take out the contents of the drawer and 55 chits used for Matka gambling were found in the drawer of the table.
3. The chits were recovered under the Panchanama signed by panchas Kishore Mahadeo Sathe of Karjat and Sudhakar Dattatraya Kulkarni of Thane. The panchanama was also signed by one Kawli, who was working as Rate Fixer in the Workshop and S.N Chakravarty, Works Manager (Repair) Matunga. The petitioner was questioned as to what amount he was carrying on his person and the petitioner took out the currency notes of the value of Rs. 600/. In view of the raid carried out by the Vigilance Officer and the incriminating documents found from the petitioner, he was suspended by an order dated March 22, 1980.
4. The order of suspension recites that the disciplinary proceedings would be adopted against the petitioner. Subsequently, on June 17, 1980, the Works Manager (R). Matunga passed an order dismissing the petitioner from employment with immediate effect in exercise of the powers vested under sub-Rule (ii) Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968. The Disciplinary authority came to the conclusion that it was not reasonably practicable to hold the Departmental Enquiry in a manner provided under the Rules and, therefore, in exercise of the powers under Rule 14(ii) of the Rules, the petitioner was dismissed from service without holding any enquiry. The petitioner carried an appeal before the Additional Chief Mechanical Engineer as provided by the Rules, but the appeal ended in dismissal by an order dated February 2, 1981. The petitioner has thereafter approached this Court to challenge the legality of the action of the respondents in dismissing him without holding any departmental enquiry.
5. The principal contention urged by Shri Singhvi, learned counselr appearing in support of the petition, is that the exercise of the powers undee Rule 14(ii) of the Rules was entirely uncalled for and the action of thy respondents in dismissing the petitioner without holding an enquiry is enlirelillegal. The learned counsel also urged that the evidence on which the disciplinary authority relied upon to pass the order of dismissal was not only vague but was inadmissible. On behalf of the respondents, Mr. R.C Kashyap, Works Manager (Manufacturing) Matunga has filed the return sworn on September 8, 1983, and it is inter alia, contended that the exercise of the powers under Rule 14(ii) of the Rules was not only justified on the facts and circumstances of the case but holding of an enquiry would have caused several problems.
6. In view of these rival contentions, it is first necessary to examine whether the disciplinary authority was justified in resetting to the provisions of Rule 14(ii) of the Rules. Rule 14 prescribes for special procedure in certain cases and the relevent portion reads as under:—
“Notwithstanding anything contained in rules 9 to 13—
(i)……..
(ii) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that is not reasonably practicable to hold as enquiry in the manner provided in these rules; or
(iii)………
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it may deem fit…”
7. The powers conferred under Rule 14 of the Rules are to be exercised in exceptional cases and very sparingly because the exercise of the powers deprives the employee of the protection guaranteed under Article 311 of the Constitution of India. Rules 9 to 13 prescribe for holding of a departmental enquiry and which is parallel to the protection provided under Article 311 of the Constitution of India. As Article 311(2) of the Constitution of India enables the disciplinary authority to remove an employee without holding an enquiry, the powers under Rule 14 of the Rules enables the Railway authorities to dismiss an employee in cases referred to in Rule 14. Rule 14(ii) demands that the disciplinary authority must be satisfied that it is not reasonably practicable to hold an enquiry and such satisfaction must be recorded in writing. The requirement of the rules makes it clear that the satisfaction of the disciplinary authority is not subjective but objective and that fact becomes clear when an appeal is provided to an employee against whom the action is taken and it is open for the appellate authority to examine the correctness of the exercise of the powers under Rule 14 of the Rules. The disciplinary authority has recorded the reasons for exercise of the powers and the copy of the reasons is annexed as Ex. 5 to the return. The disciplinary authority has set out the facts leading to the raid on Worlikar brothers and the petitioner and recovery of incriminating articles. The disciplinary authority thereafter, on the basis of the reports, documents, statements and panchanama and the record of the interview with the delinquent and after a critical evaluation of the circumstances that led to the Matka gambling chits, claims to be satisfied that the petitioner was guilty of engaging himself in the conduct of Matka gambling in Matunga workshop. The disciplinary authority thereafter sets out the following reasons:—
“3.0 On the basis of reports at pages 89, 84, 81, 78, and 75 it is seen that Shri Shabd Prakash, Shri Alaji Tida, Shri V.M Raul, Shri B.S Cadge and Shri D.V Kale have all stated that the evidence that they have given should be kept secret as any leakage is likely to result in retaliation against them. It is also seen from Page 98— Para 1 that Shri Kawale, Rate Fixer, who sits by the side of Shri Amirchand was extremely afraid of Shri Amirchand and was not prepared to sign the Panchanama in the beginning. Also it is seen that Shri Uttam Ramchandra, who had given statement at page 71 that “the work of taking Kalyan Janta Matka was being done by Worlikar brothers.” earlier, has subsequently stated at page 106 that he did not actually see the Worlikar Brothers doing the Matka business. In view of the above and in view of what is recorded in-the report at pages 97, 98, 99, 100, 6 and 7, I am convinced that it is not reasonably practicable, to hold enquiries as specified in the Railway Servants (Discipline and Appeal) Rules, 1968 against Shri Vinayak Dhananjaya Worlikar, Shri Virdhaval Dhananjaya Worlikar and Shri Amirchand Ramkrishan as—
3.1 There is no likelihood of independent witnesses turning up.
3.2 The charges being on the basis of a surprise raid conducted by the Vigilance Team on the basis of a secret watch, and secret evidence of witnesses, enquiries conducted in the manner specified in the Railway Servants (Discipline and Appeal) Rules 1968 will result in the revelation of the individual identities and adversely affect the Administration.”
8. Finally, the disciplinary authority observes that under the powers vested under Rule 14(ii) of the Rules, the penalty of dismissal is imposed on the petitioner and the Worlikar Brothers. What is essential to be noted in the reasons recorded by the disciplinary authority is that the reasons covered the case not only of the petitioner but also of Worlikar Brothers and it is very difficult to split up the reasons which would apply to the petitioner alone and to the Worlikar Brothers.
9. Shri Sethna, learned counsel appearing on behalf of the respondents, made a very brave effort to claim that the reasons indicate that Shri Kawli who was designated as a Rate Fixer in the Workshop and who was sitting by the side of the petitioner was initially extremely afraid to sign the panchanama and that fact indicates that the petitioner must be a very strong man of whom the other employees were afraid. Shri Kawli, the Rate Fixer has ultimately signed the panchanama. Shri Sethna also pointed out that the reasons recorded by the authorities set out the names of certain employees whose statements were recorded and who had requested the authority not to disclose their names as the leakage was likely to result in retaliation against them by the delinquent. Shri Sethna submits that the reasons set out by the disciplinary authority should lead to the conclusion that it was not reasonably practicable to hold the departmental enquiry against the petitioner. I am afraid, it is not possible to accept this submission.
10. The main evidence against the petitioner is of the raiding party. The Worlikar Brothers were caught red-handed while accepting the Matka betting and the petitioner could be connected with the crime only with reference to the recovery of the betting slips from his possession by the raiding party. The raiding party consists of the Vigilance Officer Mr. Patil, the two panchas and another Officer of the Workshop. The reasons recorded by the disciplinary authority nowhere indicate that any member of the raiding party was afraid of the petitioner or would not have come forward to depose against the petitioner in a departmental enquiry. Shri Sethna very fairly stated that there was no apprehension that members of the raiding party would back out and not support the action which they have carried out. Shri Sethna submitted that though the evidence of the raiding party was crucial to connect the petitioner with the commission of the crime, still, the disciplinary authority must have felt that the evidence of other witnesses which was recorded was also necessary to prove the charge against the accused and as those witnesses were not willing to depose against the petitioner, the disciplinary authority must have felt that it was reasonably practicable not to hold an enquiry. The submission cannot be accepted for more than one reason. It is now well settled that the powers under Rule 14(ii) are to be exercised very sparingly and not in the usual routine course because the exercise of such powers deprives an employee from very valuable rights conferred under Article 311 of the Constitution of India and exposes the employee to a summary dismissal without an opportunity to establish his innocence. As mentioned hereinabove as the satisfaction of the disciplinary authority is not subjective but objective, it is necessary for the Court to ascertain whether any reasonable prudent man would have reached the same conclusion about holding of enquiry on the material available on the record or in the facts and circumstances of the case. In my judgment, in the present case, the best evidence or the crucial evidence against the petitioner was of the members of the raiding party and as there was no apprehension that such evidence would be tampered, there was no occasion whatsoever to come to the conclusion that it was not reasonably practicable to hold the departmental enquiry. The mere fact that some of the employees working in the Workshop had communicated to the diciplinary authority that their names should not be disclosed as that would result in retaliation is no ground to hold that it would be necessary to dispense with the enquiry. The disciplinary authority has observed while recording the reasons that there is no likelihood of independent witnesses turning up but this observation either overlooks that the members of the raiding party were independent witnesses or the observation is made in connection with the evidence collected against Worlikar Brothers. In my judgment, on the facts and circumstances of the case, it is impossible to come to the conclusion that it was not reasonably practicable to hold departmental enquiry against the petitioner. The exercise of powers under Rule 14(ii) of the Rules was entirely uncalled for and the petitioner was clearly deprived of the protection guaranteed under Article 311 of the Constitution of India without any sound reason.
11. Shri Sethna referred to the order passed by the appellate authority but the appellate authority has not done anything better except observing that the crime committed by the petitioner is of a serious nature and could not be tolerated on the floor of the Workshop. It is undoubtedly true that if the petitioner is found guilty of conducting Matka gambling in the Workshop premises, then it is a serious crime, but seriousness of the crime should not lead the disciplinary authority to dispense with the enquiry and pass an order of summary dismissal by exercise of powers under Rule 14(ii) of the Rules. It is necessary that when the charge is serious, then the delinquent should have more opportunity to defend himself. In my judgment, the summary dismissal of the petitioner by exercise of powers under Rule 14(ii) of the Rules was wholly illegal and the order of dismissal requires to be set aside. In view of this conclusion, it is not necessary to consider the alternate submission of Shri Singhvi that the disciplinary authority has relied upon inadmissible and vague evidence.
12. Accordingly, the petition succeeds and the rule is made absolute in terms of prayers (a) and (b) of the petition. In the circumstances of the case, there will be no order as to costs.
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