Guljar Singh vs Union Of India (Uoi)
2005 Latest Caselaw 1400 Del

JUDGMENT

Page 1485

Sanjiv Khanna, J.

1. The petitioner Mr. Guljar Singh was appointed as a Gangman in the Civil Engineering Department of Northern Railway. After several promotions, he was working as Inspector at Railway Station, Jhandiala, Punjab. On 3.6.1983 there was a rail accident in which last four wheels of the rear trolley of the last coach of a train got derailed, however, no one died in the said accident.

2. Disciplinary proceedings were initiated against the petitioner in respect of the said accident. During the course of the enquiry proceedings, the petitioner made an application dated 3rd December, 1984 to call five persons, namely, Nathu Ram, Chander Mandal, Budh Prakash, R.S. Mathur and Joginder Singh, as defense witnesses. Later on by letter dated 24th January, 1985, this list was reduced and the petitioner informed the enquiry officer that he wanted to examine Mr. Budh Prakash, Mr. R.S. Mathur and the driver of the train as his defense witnesses. The enquiry officer was asked to arrange to summon the said witnesses and it was stated that unless these witnesses were examined it would be difficult for the petitioner to submit defense note as these witnesses had great bearing on the charges made against him.

3. The enquiry officer rejected the said request of the petitioner vide his letter dated 4th February, 1985, which is reproduced below:-

''In reference to your letter No. 15-G/85 dated 2.1.1984 it is intimated that Sh. R.S. Mathur then DEN/ASR has since retired from service. So it is not possible to arrange his presence at this stage. Further I have been instructed to finalize the said enquiry before 15th February, 1985 as per DEN's Order, it is therefore desired to please submit the defense note at the earlier so as to reach this officer on or before 10.2.1985.''

4. It is clear from the above that the enquiry officer was in a great hurry and haste to complete the enquiry. Merely because Mr. R.S. Mathur had retired from service was not a good ground not to summon him as a defense witness if he was a relevant and a material witness. No reason or explanation whatsoever has been given by the enquiry officer not to summon the other two witnesses, namely, Budh Prakash and the driver of the train.

5. The enquiry report was submitted on 10th February, 1985 to the disciplinary authority, who thereafter vide order dated 14th February, 1985 has held the petitioner to be guilty of the charges and imposed punishment of compulsory retirement with immediate effect. The petitioner filed an appeal against the aforesaid order passed by the disciplinary authority dated 14th February, Page 1486 1985 but the said appeal was dismissed on 27th October, 1985 by a non-speaking and non-reasoned order.

6. This appellate order was later on set aside by the learned Central Administrative Tribunal in the original application No. 276/87 decided on 19th August, 1993, with a direction to the appellate authority to pass a speaking and reasoned order.

7. The appellate authority vide its order dated 11th March, 1994 again dismissed the appeal of the petitioner and confirmed the penalty of compulsory retirement. Thereafter, petitioner once again challenged the orders and the punishment of compulsory retirement before the Central Administrative Tribunal in OA No. 748/1994 which was disposed of on 26th September, 1997. The original application filed by the petitioner was dismissed by this order and accordingly the orders passed by the Disciplinary Authority, Appellate Authority and the learned Central Administrative Tribunal have been challenged in the present writ petition before this Court.

8. Learned counsel for the petitioner has raised two contentions. Firstly that as per the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Rules, for short), the petitioner was required to be furnished with a copy of the enquiry report. Reliance is placed on Rule 10(5)(i). The said Rule provides that if the disciplinary authority is of the opinion that penalty under Rule 6(v)-(ix) should be imposed on a railway servant, copy of the enquiry report and its findings on each article of charge should be furnished to a delinquent officer. He referred to the judgment of the Supreme Court in the case of Managing director, ECIL, Hydrabad v. B. Karunakar . It is submitted that contrary to Rule 10(5)(i) of the Rules, enquiry report was not furnished and thus the entire proceedings are void and illegal. Secondly, it is submitted that the enquiry officer wrongly and contrary to law and principles of natural justice did not summon and record evidence of defense witnesses and, therefore, the entire enquiry proceeding stand vitiated.

9. The learned counsel appearing for the respondent has admitted that the enquiry report was not supplied to the petitioner by the disciplinary authority, which passed the punishment order dated 14th February, 1985. It is stated that the said enquiry report was supplied later on with the copy of the order of punishment passed by the Disciplinary Authority. With regard to the defense witnesses, it is stated that the statement of Mr. Budh Prakash was recorded in preliminary fact finding enquiry and probably the enquiry officer did not consider the presence of the said witness to be essential and necessary in the facts and circumstances of the present case.

10. The Supreme Court in the case of B. Karunakar (supra) has held that it is a right of every employee to have a copy of the enquiry report to defend himself effectively. The disciplinary authority, therefore, should before deciding charges ensure that the delinquent employee has been supplied with the Page 1487 copy of the said report. It has been held that the earlier decision in the case of Union of India and Ors. v. Mohd. Ramjaan Khan , lays down the correct law and is applicable to all government, non-government public sector and private sector undertakings. It has been further held that copy of the enquiry report must be supplied even if the statutory rules are silent and whether or not an employee has asked for the same. However, the Supreme Court noticed that there were conflicting decisions earlier and, therefore, the law laid down in Mohd. Ramjaan Khan's case (supra) was held to be prospective in operation and applicable to all orders of punishment passed on 20th November, 1999 and thereafter.

11. In the present case the order of punishment is dated 14.2.1985, i.e., before 20th November, 1999, when the Supreme Court decided Mohd. Ramjaan's case. However, there is one vital distinction. The petitioner was required to be furnished with the copy of the enquiry report as per Rule 10(v) of the Rules. The said rule is reproduced below:-

''10(v) (i). If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 6 should be imposed on the Railway servant, it shall-(a) furnish to the Railway servant a copy of the report of the enquiry held by it and its findings on each article of charge, or, where the inquiry has been held by an inquiring authority, appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for its disagreement, if any, with the findings of the inquiring authority.''

12. Under Rule 6 of the aforesaid Rules major penalties have been categorised in sub-clauses (v) to (ix). Rule 6(vii) provides for punishment of compulsory retirement, which has been awarded to the petitioner in the present case. A bare reading of Rule 10 (v)(i) makes it clear that it was mandatory for the disciplinary authority to furnish to the Railway servant a copy of the enquiry report in case he was of the opinion that any of the penalties specified in clause (v) to (ix) of Rule 6 should be imposed on the petitioner. Admittedly, therefore, this Rule has not been complied with in the present case.

13. This distinction between violation of statutory provisions and violation of principles of natural justice was also noticed in the case of B. Karunakar (supra) wherein it has been held as under:-

''It is for the first time in Mohd. Ramzan Khan case that this Court laid down the law. That decision made the law laid down there prospective in Page 1488 operation, i.e., applicable to the orders of punishment passed after November 20, 1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the enquiry officer's report to the employee. The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.''

14. The present case is one of failure to comply with mandatory provisions of the Rules and not merely principles of natural justice. It is settled law that if a provision is mandatory an act done in breach thereof will be invalid. (Refer: Maharvali v. Commissioner of Income Tax and State of Andhra Pradesh v. K. Rama Chandran (Dr.) . This general rule that non-compliance of mandatory provision results in nullification is subject to some exceptions including waiver where the requirement of the statute does not involve question of public interest or public policy but is a condition prescribed for protection of an individual.

15. In this connection, it will be appropriate to also refer to the judgment of the Supreme Court in the case of Krishan Lal v. State of J and K .

''16. As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Government of the Province of Madras in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council it was held that even if a notice under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by the Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve ''an important purpose'', in which case there would not be waiver (see paragraph 14).

17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Shudhir Chandra Ghosh and a question was posed in paragraph Page 1489 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what as stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania at page 72 and some other decisions of the Calcutta High Court along with one of Patna High Court and it was held that if a judgment-debtor, despite having received not ace of proclamation of sale, did not object to the non-compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest.

18. The aforesaid view was reiterated in Lachoo Mal v. Radhey Shyam in which it was stated, qua Section 1-A of U.P. (Temporary) Control of Rent and Eviction Act, 1943, that the same being meant for the benefit of owner of buildings, if a particular owned did not wish to avail of the benefit of the section, there was no bar in his waiving the benefit. It was further observed in this connection in paragraph 8 that no question of policy, much less public policy being involved, the benefit or advantage could always be waived.

19. What has been held in Indira Bai v. Nand Kishore by a three-Judge Bench speaking through Sahai, J. of this Court is still more clinching inasmuch as in that case the right conferred on a pre-emptee by Section 8 of the Rajasthan Pre-emption Act, 1966 requiring a vendor to serve notice on persons having right of pre-emption as a condition of validity of transfer was held as amenable to waiver. It was pointed out that the nature of the interest created by the aforesaid section was a right of the party a one and not of the public as such. It was then observed that if it be a right of the party alone it is capable of being abnegated, as such a right cannot be said to involve any interest of community or public welfare so as to be in mischief of public policy.

20. Having seen the pronouncements of judicial fora, we can now inform ourselves as to the view of the reputed authors on interpretation of statutes as well as administrative law. We may start with what has been stated in Maxwell's The Interpretation of Statutes. This aspect has been dealt at pages 328-330 (12th Edn.) and it has been stated that if the benefit be for the protection of an individual in his private capacity the same can be waived. To illustrate, reference has been made about waiver of the benefit of the Limitation Act. This is on the maxim of law ''Quilibet potest renunciare juri pro se introducto'', meaning ''an individual may renounce a law made for his special benefit''. Maxwell then says that if the benefit be one which has been imposed in public interest there can be no waiver of the same.

21. Craies in his Statute Law has opined the same, as would appear from what has been stated at page 269 of 7th Edn. By drawing attention to the aforesaid maxim, it has been observed that if the object of a statute is ''not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable''. To illustrate this principle, it has been stated that if the statutory condition be imposed Page 1490 simply for the security or the benefit of the parties to the action themselves, such condition will not be considered as indispensable and either party may waive it.

22. Crawford in his Interpretation of Laws takes the same view as would appear from pages 540-542 (1989 Reprint). The learned author while quoting the aforesaid maxim states at page 542 that requirement like giving of notice may be waived as the same is intended for the benefit of the person concerned.

23. We may also refer to the views expressed by Francis Bennion in his Statutory Interpretation (1984), wherein this aspect has been dealt with at pages 27 et seq and it has been stated that if the performance of statutory duty be one which would come within the aforesaid maxim, the person entitled to the performance can effectively waive performance of the duty by the person bound. As an illustration mention has been made (at page 29) of decisions in toronto Corporation v. Russell and Stylo Shoes Ltd. v. Pries Tailors Ltd. wherein it was held that a duty to give notice of certain matters can be waived by the person entitled to notice, if there is no express or implied indication that absence of notice would be fatal.

24. H.W.R. Wade's name is well known in the world of administrative law. He has dealt with this aspect at page 267 of the 6th Edn. of his treatise wherein he has quoted what Lord Denning, MR said in Wells v. Minister of Housing and Local Government which is as below:

''I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid.''

25. We may end this journey into the field of law by referring to the meaning of the words ''irregularity'' as given at page 469 of Vol. 22-A of ''Words and Phrases'' (Permanent Edition) and of nullity at pages 772 and 773 of Vol. 28-A of the aforesaid book. As to ''irregularity'' it has been stated that it is ''want of adherence to some prescribed rule or mode of proceeding''; whereas ''nullity'' is ''a void act or an act having no legal force or validity'' as stated at page 772. At page 773 it has been mentioned that the safest rule of distinction between an ''irregularity'' and a ''nullity'' is to see whether ''a party can waive the objection: if he can waive, it amounts to irregularity and if he cannot, it is a nullity''.

26. Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived; if it be latter, it cannot be. Though Shri Mehta has urged that this requirement serves a public purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned which is to enable him to know as to what had taken place during the course of the proceedings so that he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose.

Page 1491

27. We, therefore, hold that the requirement mentioned in Section 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same would be a nullity. In the resent case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law.

16. In the present case there is no waiver or even an allegation that there is waiver. Violation of Rule 10(v)(i) and failure to supply and furnish enquiry report has resulted in the entire proceedings being void and illegal.

17. Regarding the second contention also the enquiry officer has not given any reason and ground for not summoning two persons mentioned as defense witnesses. No justification is also forthcoming in this regard. The learned Tribunal in its order has mentioned that Mr. Budh Prakash was examined as a witness in the preliminary enquiry and, therefore, there was no need to summon him again if enquiry officer found that the evidence of the said witness was not essential. It is not clear from where learned Tribunal came to the conclusion that the enquiry officer has held that the evidence of Mr. Budh Prakash was irrelevant and immaterial. This is not the ground on which the said witness was not summoned. No reason was given in letter dated 4th February, 198(sic) for not summoning Mr. Budh Prakash. Further, even if statement of Mr. Budh Prakash was recorded in the preliminary enquiry, the petitioner was entitled to call him as a defense witness. No reason has been given why the driver of the train was not summoned. Similarly, Mr. R.S.Mathur was not summoned by the enquiry officer on the ground that he had retired. As long as evidence of Mr. R.S.Mathur was relevant and material, summons could have been issued to him for his appearance. It is admitted that Mr. R.S Mathur was a Railway employee prior to his retirement and it has not been denied by the enquiry officer that his statement was relevant.

18. The letter of the enquiry officer dated 4th February, 1985 makes it clear that the entire enquiry was held in great and undue haste and hurry and, therefore, due to paucity of time the enquiry officer refused to summon and call the defense witnesse so as to enable him to submit his report on or before 10th February, 1985. Such haste and hurry when career of a government employee is at stake can result in miscarriage of justice and defeat the entire purpose and object of having an independent impartial enquiry officer who is required to give full, adequate and reasonable opportunity to a delinquent officer to prove and establish his defense. We, therefore, feel that there has been violation of principle of natural justice. The concept of fairness and legal bias in administrative action is well recognised. The petitioner was not allowed and permitted to call defense witnesses without any justification and reason.

19. As already stated above, there is also violation of statutory rules as the enquiry report was not supplied to the petitioner before the disciplinary authority passed its order dated 14th February, 1985.

20. In view of the above findings, we have no option but to quash the order dated 14th February, 1985 passed by the disciplinary authority and the Page 1492 appellate order dated 11th March, 1994 confirming the order passed by the disciplinary authority as well as the order dated 26th September, 1997 passed by the Central Administrative Tribunal upholding the same. However, as the disciplinary proceedings have been set aside for violation of statutory rules and principles of natural justice, the respondents entitled to continue with the enquiry proceedings in accordance with law against the petitioner. If the respondents do not want to continue the disciplinary proceedings, the petitioner will be entitled to reinstatement with all consequential benefits.

21. In view of the above, the writ petition is allowed. The petitioner will also be entitled to costs of Rs. 10,000/-.