RAM CHANDERversusUNION OF INDIA & ORS.

    980


A
                                   v.
                         UNION OF INDIA & ORS.

                               MAY 2, 1986

                      [A.P. SEN AND B.C. RAY, JJ.)
B
          Railway Servants (Discipline & Appeal) Rules, 1968, Rule
    22(2) - "Consider" - Interpretation of - Duty of Railway Board f'
    to record its findings and pass reasoned order.

          Constitution of India, Art. 311(2) - Tulsiram Patel's
c   case - Effect of - Appellate Authority - Duty of - To give
    hearing to delinquent servant - Pass a reasoned order in the
    departmental appeal.

           The appellant who was employed as Shunter, Grade 'B' was
     removed from service. The charge against him was that he was
D   guilty of misconduct in that he had assaulted his illllll!diate
    superior. As he did not appear at the enquiry, the Enquiry
    Officer proceeded ex-parte and examined witnesses and found
     the charge proved. 'nle General Manager agreed with the report
    of the Enquiry Officer and came to the provisional conclusion
     that the penalty of removal from service should be inflicted, •
E   issued a show cause notice to the appellant, who in
    compliance, showed cause but his explanation was not accepted ••
    'nle General Manager by an order dated August 24, 1971 imposed            -
    the penalty of removal from service.

          The appellant preferred an appeal before the Railway         -t     r-
F   Board under rule 18(ii) of the Railway Servants (Discipline
    and Appeal) Rules, 1968 but the Railway Board dismissed the
    appeal. 'nle High Court also dismissed the writ petition of the
                                                                       +
    appellant holding that since the Railway Board agreed w,1.th the
    findings of the General Manager, there was no duty cast on the
    Railway Board to record reasons for its decision. 'nle
G   appellant's Letters Patent Appeal before a Division Bench was
    also dismissed in limine.

          Allowing the appeal and remanding the matter to the          ,.._
    Railway Board,

H
                           RAM CHANDER v. U.O. I.                  981

                                                                           A
  -1         HELD: 1. The judgment and order of the Single Judge and
       that of the Division Bench are both set aside, so also the
       impugned order of the Railway B9ard dated March 11, 1972. The
       Railway Board is directed to hear and dispose of the appeal
       after affording a personal hearing to the appellant on merits
       by a reasoned order in conformity with the requirements of          B
       Rule 22(2) of the Railway Servants (Discipline and Appeal)
       Rules, 1968. [999 H; 1000 A-B]
   i
           2. Rule 22(2) of the Railway Servants Rules in express
     terms requires the Railway Board to record its finding on the
     three aspects stated therein. It provides that in the case of
     an appeal against an order imposing any of the penalties              c
  )' specified in rule 6 or enhancing any penalty imposed under the
     said rule, the Appellate Authority shall 'consider' as to the
   r matters indicated therein. [989 E-F]
             2.1 The word 'consider' has different shades of meaning
       and 1D1st in rule 22(2), in the context in which it appears,        D
       mean an objective consideration by the Railway Board after due
       application of mind which implies the giving of reasons for
       its decision. [989 F-G]

                In the instant case, the impugned order is just a
         mechanical reproduction of the phraseology of rule 22(2)
         without any attempt on the part of the Railway Board either to
         marshall the evidence on record with a view to decide whether
         the finding arrived at by the Disciplinary Authority could be
         sustained or not. There is also no indication that the Railway
...+     ·Board applied its mind as to whether the act of misconduct
         with which the appellant was charged together with the            F
     1.. attendant circumstances and the past record of the appellant
    -r were such that he should have been visited with the extreme
          penalty of removal from service for a single lapse in a span
          of 24 years of service. There being non-compliance with the
          requirements of Rule 22(2) of the Railway Servants Rules, the
          impugned order passed by the Railway Board is liable to be set   G
          aside. [987 A-D]

             3. Dismissal or removal from service is a matter of
       grave concern to a civil servant, who after such a long period
       of service may not deserve such a harsh punishment. [987 C-D]
                                                                           H
    982                  SUPREME COURT REPORTS      [1986] 2 S,C.R.


A         State of Madras v. A.R. Srinivasan, A.I.R. [1966 S.C.
    1827, Som Datt Datta v. Union of India & Ora., [1969) 2 S.C.R. ~
    176, Tara Qiand Khatri v. Municipal Corporation of Delhi &
    Ora., [1977) 2 s.c.R. 198 and Madhya Pradesh Industries Ltd.
    v. Union of India, [1966) 1 s.c.R. 466, referred to.

          4.1 After the constitutional change brought about by the
B   Forty-Second Amendment the only stage at which now a civil
    servant can exercise this valuable right is by enforcing his~
    remedy by way of a departmental appeal or revision, or by way
    of judicial review. [997 E-F)

          4.2 A civil servant who has been dismissed, removed or
c   reduced in rank by applying to his case one of the clauses of -(
    the second proviso to Art. 311(2) or the analogous Service
    Rule has two remedies available to him. These remedies are : 1
    (i) the appropriate departmental appeal provided for in the
    relevant Service Rules ; and (ii) if still dissatisfied,
    invoking the Court's power of judicial review. [997 G-H)
D
          4. 3 It is of utmost importance after the Forty-Second
    Amendment as interpreted by the majority in Tulsi Baa Patel's
    case that the Appellate Authority 1111st not only give a hearing
    to the government servant, but also pass a reasoned order •
    dealing with the contention raised by him in the appeal. The


                                                                        -
E   duty to give reasons is an incident of the Judicial process.
    [999 E-F)

          4.4 Reasoned decisions by Tribunals, such as the Railway
    Board in the present case, will promote public confidence in      + "'
    the administrative process. As objective consideration is
F   possible only if the delinquent servant is heard and given a
    chance to satisfy the authority regarding the final orders
    that may be passed on his appeal. Considerations of fairplay
                                                                      +
    and justice also require that such a personal hearing should
    be given. [999 F-G]

G         R.P. Bhatt v. Union of India & Ors., (C.A.No. 3165/81
    decided on Dec. 14, 1982), Union of India & Anr. v. Tulsir..
    Patel, [1985) 3 s.c.c. 398, Secretary, Central Board of kclse ~
    & llJsto.i & Ors. v. K.S. lfahalingaa (C.A. No. 1279/86 decided
    on April 24, 1986 and Satyavir Singh & Ors. v. Union of India
    & Ors., (1985] 4 s.c.c. 252, relied upon.
H
,I
r                       RAM CHANDER v. U.O.I. [SEN, J.]           983

                                                                          A
            5. High Camlssioner for India v. I.M. Lall, L.R. (1947-
    ~ 48) 75 I.A. 225, Kha Qiand v. Union of India & Ors., (1958]
      S.C.R. 1080 and Swadeshi Cotton Ml.Us v. Union of India,
      [1981] 2 s.c.R. 533, referred to.

            The majority decision in Tulsiraa Patel's case seeks to       B
      justify the amendment effected by the Forty-Second Amendment
      of cl.(2) of Art. 311 by observing that 'cl.(2) of Art. 311 as
     ~originally enacted and the legislative history of that clause
      wholly rule out the giving of any opportunity'. The Court
      expressed its reservations about the correctness of this
       proposition. [992 C-E]
'                                                                         c
               CIVIL APPELLATE JURISDICTION   Civil Appeal No. 1621 of
    'r 1986.
     ~
              From the Judgment and Order dated 15th February, 1984 of
         the Delhi High Court in L.P.A. No. 178 of 1983.
                                                                          D
               M.K. Ramamurthi, M.A. Krishnamoorthy and Mrs. Chandan
         for the Appellant.

               O.P. Sharma, P.P. Singh and C.V. Subba Rao for the
         Respondent.
     "         The Judgment of the Court was delivered by
                                                                          E

l              SEN, J. The central question in this appeal is whether
         the impugned order passed by the Railway Board dated March 11,
      ~ 1972 dismissing the appeal preferred by the appellant, was not
         in conformity with the requirements of r.22(2) of the Railway
                                                                          F
         servants (Discipline & Appeal) Rules, 1968. At the hearing on
    -+-February 13, 1986, learned counsel for the Union of India took
         time to enable the Railway Board to reconsider its decision as
         to the quantum of punishment. At the resumed hearing on March
         13, 1986 we were informed by the learned counsel that there
         was no question of the Railway Board reconsidering its deci-
                                                                          G
         sion. Arguments were accordingly heard on the question as to
         whether the impugned order of the Railway Board was sustain-
       , able in law. We heard the parties and allowed the appeal by
    "'I order dated March 13, 1986 directing the Railway Board to hear
         and decide the appeal afresh on merits in accordance with
                                                                              H
    984                  SUPREME COURT REPORTS     [1986] 2 s.c.R.

A
    law in conformity with the requirements of r.22(2) of the
    Rules. We now proceed to give reasons therefor.                  'r
             The facts, the appellant Ram Chander, Shunter, Grade B
     at Loco Shed Ghaziabad was inflicted the penalty of removal
     from service under r. 6( viii) of the Railway Servants
B    (Discipline & Appeal) Ruls, 1968 by order of the General
     Manager, Northern Railway dated August 24, 1971. The gravamen
     of the charge was that the appellant was guilty of misconduct
     in that he had October 1, 1969 at 7.30 p.m. assaulted his ,.
     illDllediate superior Banarsi Das, Assistant Loco Foreman while
     he was returning after performing his duties. The illDllediate
c    cause for the assault was that the appellant had on September
     30, 1969 applied for medical leave for one day i.e. for
     October 1, 1969. On that day there was a shortage of Shunters,
    he accordingly asked Banarsi Das for the cancellation of leave
     and permit the appellant to resume his duties but Banarsi Das 1
     refused to cancel the leave. It is said that the appellant
D   nursed a grouse against Banarsi Das because his refusal to
    permit him to resume his duties deprived him of the benefit of
    one day's additional wages for October 2, 1969 which was a
    national holiday. The Enquiry Officer fixed the date of
    enquiry on May 11, 1970 at Ghaziabad. The enquiry could not
    be held on that date due to some administrative reasons and
E   was then fixed for the July 11, 1970. The appellant was duly
    informed of t'e date but he did not appear at the enquiry. The
    Enquiry Officer accordingly proceeded ~ parte and examined
    witnesses. By his report dated May 26, 1971, the Enquiry
    Officer found the charge proved. The General Manager agreed
    with the report of the Enquiry Officer and came to the
F   provisional conclusion that the penalty of removal from          +
    service should be inflicted and issued a show cause notice
    dated May 26, 1971. In compliance the appellant showed cause
    but his explanation was not accepted. The General Manager,
    however, by order dated August 24, 1971 imposed the penalty of
    removal from service. The appellant preferred an appeal before
                                                                     +
G   the Railway Board under r.18(ii) of the Railway Servants
    (Discipline & Appeal) Rules, 1968 but the Railway Board by the
    impugned order dated March 11, 1972 dismissed this appeal.
    Thereafter, the appellant moved the High Court by a petition
    under Art. 226 of the Constitution. A learned Single Judge by
    his order dated August 16, 1983 dismissed the writ petition
H
    holding that since the Railway Board agreed with the findings
                   RAM CHANDER v. u.o.I. [SEN, J. 1             985

                                                                       A
    of the General Manager there was no duty cast on the Railway
-1 Board   to record reasons for its decision. The appellant
    therefore preferred a Letter Patent Appeal, but a Di vision
    Bench by its order dated February 15, 1984 dismissed the
    appeal in in limine.
                                                                       B
          Rule 22(2) of the Railway Servants Rules provided as
    follows

              "22(2) In the case of an appeal against an order
              imposing any of the penalties specified in Rule 6
              or enhancing any penalty imposed under the said
              rule, the appellate authority shall consider -           c
              (a) Whether the procedure laid down in these rules
              has been complied with, and if not, whether such
              non-compliance has resulted in the violation of any
              provisions of the Constitution of India or in the
              failture of justice ;                                    D

               (b) whether the findings of the disciplinary
               authority are warranted by the evidence on the
               record; and

               (c) whether the penalty or the enhanced penalty         E
               imposed is adequate, inadequate or severe ;

    and pass orders -

               (i) confirming, enhancing,    reducing   or   setting
               aside the penalty, or                                   F

               (ii) remitting the case to the authority which
               imposed or enhanced the penalty or to any other
               authority with such directions as it may deem fit
               in the circumstances of the case : "
                                                                       G
         The duty to give reasons is an incident of the judicial
    process. So, in LP. Bhatt v. Union of India & Ors.• (C.A.
    No. 3165/81 decided on December 14, 1982) this Court, in
1   somewhat similar circumstances, interpreting r.27(2) of the
    Central Civil Services (Classification, Control & Appeal)
    Rules, 1965 which provision ts in pari materia. with r.22(2) of    H
    986                     SUPREME COURT REPORTS     [1986] 2 s.c.R.
A

    the Railway Servants       (Discipline   & Appeal) rules,     1968,
                                                                          )-   I
    observed :

               "It is clear upon the terms of r. 27(2) that the
               appellate authority is required to consider (1)
B              whether the procedure laid down in the rules has
               been complied with; and if not, whether such non-
               compliance has resulted in violation of any of the
               provisions of the Constitution of India or in the ~
               failure of justice ; (2) whether the findings of
               the disciplinary authority are warranted by the
c              evidence on record ; and (3) whether the penalty
               imposed is adequate, inadequate or severe, and pass
               orders confirming, enhancing, reducing or setting ,_;
               aside the penalty, or remit back the case to the l'
               authority which imposed or enhanced the penalty, -{
               etc."
D
    It was held that the word 'consider' in r.27(2) of the Rules
    imp lied 'due application of mind'. The Court emphasized that
    the Appellate Authority discharging quasi-judicial functions
    in accordance with natural justice must give reasons for its
    decisions. There was in that case, as here, no indication in
E   the impugned order that the Director-General, Border Road
    Organisation, New Delhi was satisfed as to the aforesaid
    requirements. The Court observed that he had not recorded any
    finding on the crucial question as to whether the findings of
    the disciplinary authority were warranted by the evidence on
    record. In the present case, the impugned order of the Railway
F   Board is in these terms :

               "(l)    In terms of rule 22(2) of the Railways
               Servants (Discipline & Appeal) Rules, 1968, the
               Railway Board have carefully considered your appeal
               against the orders of the General Manager, Northern
G              Railways, new Delhi imposing on you the penalty of
               removal from service and have observed as under

              (a) by the evidence on record, the findir.Js   of    the
               disciplinary authority are warranted ; and                  ~


H             (b) the penalty of removal from service imposed on
              you is merited.
                 RAM CHANDER v. u.o.r. [SEN, J.]             987

                                                                    A
            (2) The Railway Board have therefore rejected the
            appeal preferred by you."

        To say the least, this is just a mechanical reproduction
   of the phraseology of r.22(2) of the Railway Servants Rules
   without any attempt on the purt of the Railway Board either to   B
   marshall the evidence on record with a view to decide whether
   the findings arrived at by the disciplinay authority could be
 -1sustained or not. There is also no indication that the Railway
   Board applied its mind as to whether the act of misconduct
   with which the appellant was charged together with the
   attendant circumstances and the past record of the appellant
   were such that he should have been visited with the extreme      c
\..penalty or removal from service for a single lapse in a span
 r of 24 years of service. Dismissal or removal from service is a
 \matter of grave concern to a civil servant who after such a
   long period of service, may not deserve such a harsh
   punishment. There being non-compliance with the requirements
   of r.22(2) of the Railway Servants Rules, the impugned order     D
   passed by the Railway Board is liable to be set aside.

        It was not the requirement of Art. 311(2) of the
  Constitution prior to the Constitution            (Forty-Second
AAmendment) Act, 1976 or of the rules of natural justice, that
  in every case the appellate authority should in its order         E
  state its reasons except where the appellate authority
  disagreed with the findings of the disciplinary authority. In
  State of Madras v. A.R. Srinivasan, A.I.R. [1966] s.c. 1827 a
  Constitution Bench of this Court while repelling the
t contention that the impugned order by the State Government
  accepting the findings being in the nature of quasi-judicial      F
  proceedings was bad as it did not give reasons for accepting
+ 1:he findings of the Tribunal, observed as follows :

             "In dealing with the question as to whether it is
             obligatory on the State Government to give reasons
             in support of the order, imposing a penalty on the     G
             delinquent officer, we canaot overlook the fact
             that the discipline proceedings against such a
             delinquent officer begin with an enquiry coaducted
             by an officer appointed in that behalf. That
             enquiry is ,followed by report aad the Public
             Service Commissioa is consulted where necessary.       H
    988                    SUPREME COURT REPORTS       (1986] 2 s.c.R.

A
                Having regard to the material which is thus made ~
                available to the State Government and which is made
               available to the delinquent officer also, it seems
                to us somewhat unreasonable to suggest that the
               State Government must record its reasons why it
                accepts the findings of the Tribunal. It is
B              conceivable that if tl.e State Government does not
               accept the findings of the Tribunal which may be in
               favour of the delinquent officer and proposes to )-
               impose a penalty on the delinquent officer, it
               should give reasons why it differs from the
               conclusion of the Tribunal, though even in such a
c              case, it is not necessary that the reasons would be
               detailed or elaborate. But where the State {
               Government agrees with the findings of the Tribunal
               which are against the delinquent officer, we do not~
               think as a matter of law, it could be said that the
               State Government cannot impose the penalty against
D              the delinquent officer in accordance with the
               findings of the Tribunal unless it gives reasons to
               show why the said findings were accepted by it. The
               proceedings are, no doubt, quasi-judicial; but
               having regard to the manner in which these
               enquiries are conducted, we do not think an k
E              obligation can be imposed on the State Government
               to record reasons in every case."

           Again, in Som Datt Oat ta v. Union of India & Ors., [ 196 9]
    2 S.C.R. 176 a Constitution Bench of this Court rejected the
    :ontention that the order of the Chief of the Army Staff              +
F   :onfirming the proceedings of the General Court Martial under
    3, 164 of the Army Act, 1950 and the order of the Central
    '.;overnment dismissing the appeal of the delinquent officer
    Jnder s. 165 of the Act were illegal and ultra vires as they
                                                                          +
    iid not give reasons in support of the orders, and summed up
    the legal position in these words :
G
               "Apart from any requirement imposed by the statute
               or statutory rules either expressly or by necessary
               implication, there is no legal obligation that the         ~
               statutory tribunal should give reasons for its
               decision. There is also no general principle or any
H
                 RAM CHA.NDER v. u.o.I. [SEN, J.]           989

                                                                   A
            rule of natural justice that a statutory tribunal
            should always and in every case give reasons in
            support of its decision."

      So also in Tara a.and Khatri v. ~cipal Corporation of
 Delhi & Ors., [1977] 2 S.C.R. 198 this Court observed that        B
  there was a vital difference between an order of reversal by
  the appellate 11Uthority and an order of affirmance and the
  omission to give reasons for the decision may not by itself be
'\a sufficient ground for passing such order, relying on the
  test laid down by Subba Rao, J, in Madhya Pradesh Industries
  Ltd. v. Union of India [1966] 1 S.C.R. 466.
                                                                   c
            "Ordinarily, the appellate or revisional authority
            shall giv, its own reasons succinctly; but in a
            case of affirmance where the original tribunal
            gives adequate reasons, the APpellate Tribunal may
            dismiss the appeal or the revision, as the case may
            be, agreeing with those reasons."                      D

       These authorities proceed upon the principle that in the
 absence of a requirement in the statute or the rules, there is
 no duty cast on an appellate authority to give reasons where
 the order is one of affirmance. Here, r. 22(2) of the Railway
~Servants Rules in express terms requires the Railway Board to     E
 record its findings on the three aspects stated therein.
 Similar are the requirements under r. 27(2) of the Central
 Civil Services (Classification, Control & Appeal) Ruls, 1965.
 R. 22(2) provides that in the case of an appeal against an
+order imposing any of the penalties specified in r. 6 or
 enhancing any penalty imposed under the said rule, the            F
 appellate authority shall 'consider' as to the matters
~ndicated therein. The word 'consider' has different shades of
 meaning and must in r. 22(2), in the context in which it
 appears, mean an objective consideration by the Railway Board
 after due application of mind which implies the giving of
  reasons for its decision.                                        G

        After the amendment of cl.(2) of Art. 311 of the
  Constitution by the Constitution (Forty-Second Amendment) Act,
-1.1976 and the consequential change brought about in r.10(5) of
  the Railway ~crvants (Disciplince & Appeal) Rules, 1968,
  substituted by the Railway Servants (Discipline & Appeal)        H
    990                 SUPREME COURT REPORTS     [1986] 2 S.C,R.

A
    (Third Amendment) Rules, 1978, it is no longer necessary to
    afford a second opportunity to the delinquent servant to show ¥-
    cause against the punishment. The Forty-Second Amendment has
    deleted from cl.(2) of Art. 311 the requirement of a
    reasonable opportunity of making representation on the
    proposed penalty and, further, it has been expressly provided
B   inter alia in the first proviso to cl.(2) that :

              "Provided that where it is proposed after such
              inquiry, to impose upon him any such penalty, such ~
              penalty may be imposed on the basis of the evidence
              adduced during such enquiry and it shall not be
c             necessary to give such person any opportunity of
              making representation on the penalty proposed."

         After the amendment, the requirement of cl. (2) will be
    satisfied by holding an inquiry in which the Government 1
    servant has been informed of the charges against him and given
D   a reasonable opportunity of being heard. But the essential
    safeguard of showing his innocence at the second stage i.e.
    after the disciplinary authority has come to a tentative
    conclusion of guilt upon a perusal of the findings reached by
    the Inquiry Officer on the basis of the evidence adduced, as
    also against the proposed punishment, has been removed to the
E   detriment of the delinquent officer. In view of the said "'
    amendment of Art. 311(2) of the Constitution, r.10(5) of the
    Railway Servants Rules has been substituted to bring it in
    conformity with cl.(2) of Art. 311, as amended. R. 10(5), as
    substituted, provides as follows :

F             "10(5). If the disciplinary authority, having t
              regard to its findings on all or any of the
              articles of charge and on the basis of the evidence l
              adduced drulng the inquiry, is of the opinion that 'T
              any of the penalties specified in clauses (v) to
              (ix) of rule 6 should be imposed on the railway
G             servant, it shall make an order imposing such
              penalty and it shall not be necessary to give
              railway servant any opportunity of making
              representation on the penalty proposed to be
              ~M~!                                                  ~

H
                    RAM CHANDER v. U.O. I. (SEN, J,]          991
                                                                      A

               Provided that in every case where it is necessary
               to consult the Colllllission, the record of the
               inquiry shall be forwarded by the disciplinary
               authority to the Colllllission for its advice and
               such advice shall be taken into consideration          B
               before making an order imposing any such penalty on
               the railway servant."

         We may here mention that a corresponding change in the
~ Central Civil Services (Classification, Control & Appeal)
     Rules, 1965 has been brought by substituting r.15(4) taking
     away the procedural safeguard of making a representation at      c
     the second stage i.e. before imposing punishment on the basis
     of the evidence at the inquiry.
'r
          In Union of India & Am. v. Tulsir. . Patel,     [ 1985] 3
 t s.c.c. 398 a five-judge Bench by a majority of 4: 1 held that
   where a departmental inquiry was wholly dispensed with in the      n
   three situations under the second proviso ttl Art. 311(2), the
   only right to make a representation on the proposed penalty
   which was to be found in cl. (2) of Art. 311 of the
   Constitution prior to its amendment having been taken away by
   the Constitution (Forty-Second Amendment) Act, 1976, there is
   no provision of law under which a Government servant can claim     E
-" this right. This Court lllst week in the Secretary, Central
   Board of Excise & <mitmm & Ors. v. LS. Kahalingaa (C.A.No.
   1279/86 decided on April 24, 1986) after referring to the
   constitutional changes brought about observed :

                "After the amendment, the requirement of cl. (2)          F
 +              will be satisfied by holding an inquiry in which
                the Government servant has been informed of the
                charges against him and given a reasonable
                opportunity of being heard."

        After the majority decision in Tulsiraa Patel's case, it          G
   can no longer be disputed that the right to make a
   representation on the proposed penalty which was to be found
   in cl.(2) of Art. 311 of the Constitution having been taken
 ~ away by the Forty-Second Amendment, there is no provision of
   law under which a Government servant can claim this right.
                                                                          H
     992                  SUPREME COURT REPORTS        (19861 2 s.c.R.

A
             It seems to be purely academic to refer to the vintage·~
      decisions of the Privy Council in IH.gh Coumlssioner for India
      v. I.M. Lall, L.R. (1947-48] 75 IA 225 and that of this Court
      in IChem Qiand v. Union of India & Ors., (1958] S.C.R. 1080
      following it or the plethora of decisions thereafter which
     have now become otiose after the Forty-Second Amendment by
B
     which the words ' a reasonable opportunity of showing cause
     against the action proposed to be taken in regard to him' were
     deleted a~ the end of cl. (2) of Art. 311 and proviso to cl.~
      (2) substituted, with the object of doing away with the second
     opportunity of making representation at the stage of imposing
     penalty i.e. at the conclusion of the inquiry. It is however
c    necessary to refer to these two decisions briefly with the
     object of showing the prejudicial effect on such delinquent-{
     Government servants. More so, because the majority decision in
     Tulsiraa Patel's case seeks to justify the amendment effectedi
     by the Forty-Second Amendment of cl. (2) of Art. 311 by
     observing that 'cl. (2) of Art. 311 as originally enacted and
D
     the legislative history of that clause wholly rule out the
     giving of any opportunity'. We have our own reservations about
     the correctness of this proposition. It is not quite accurate
     to suggest that the opportunity of showing cause before a
     Government servant was dismissed, removed or reduced in rank
     was not contemplated by law nor justified by the legislative il
E    history.

           In I.M. I.all's case, Lord Thankerton while interpreting
     the words ' a reasonable -0pportunity of showing cause against
     the action proposed to be taken in regard to him' in sub-s.
     (3) of s. 240 of the Government of India Act, 1935 speaking+
F    for the Judicial Committee of the Privy Council, observed :

               "In the opinion of their Lordships, no actioo is+ -
               proposed within the IE3lling of the snMectioo
               until a definite conclusioo has been come to oo the
               charges, and the actual punishment to follOil is
G              provisionally determined on. Before that stage, the
               charges are unproved and the suggested punishments
               are merely hypothetical."
                                                                         ~
                                                  (Emphasis supplied)

HI
                  RAM CHANDER v. u.o.I. [SEN, J.]             993


~That   very distinguished Judge went on to say                       A

              "It is on that stage reached that the statute gives
              the civil servant the opportunity for which sun.
              (3) makes provision."

  And then added :                                                    B

              "Their Lordships would only add that they see no
              difficulty in the statutory opportunity being
              reasonably afforded at .:ire than one stage. If the
              civil servant has been through an enquiry under
              Rule SS, it would not be reasonable that he should
              ask for a repetition of that stage, if duly carried     c
              out but that would not exhaust his statutory right,
              and he would still be entitled to represent against
              the punishment proposed as the result of the
              findings of the inquiry."

         The phrase ' a reasonable opportunity of showing cause       D
   against the action proposed to be taken in regard to him'
   appearing in sub-s. (3) of s. 240 of the Government of India
   Act, 193S was reproduced in cl. (2) of Art. 311 of the
   Constitution as originally enacted i.e. prior to its amendment
 -"by the Constitution (Fifteenth Amendment) Act, 1963. It would
   appear that in the original Art. 311(2) as it stood before the     E
   Fifteenth Amendment, the obligation to afford an opportunity
   at two stages, namely, at the stage of inquiry into the
    charges and, again, at the stage of awarding punishment, was
  +not explicitly stated in the Article itself. It merely
    required that opportunity must be given to show cause against
 _i_;,he 'action propposed'. As already stated, the obligation to     F
  f;ffer such opportunity at two stages was however deduced
    judicially by the Privy Council in I.M. I.all's case.

          In Kbea Oiand's case, the Court following the judgment of
   the Privy Council in I.M. I.all's case came to the same
   conclusion from the word 'reasonable'. The Government servant      G
   llllst not only be given an opportunity but sueh opportunity
 -{llllst be a reasonable one. In order that the opportunity to
   show cause against the proposed action may be regarded as a
   reasonable one, it is quite necessary that the Government
   servant should have the opportunity, to say, if that be his
                                                                      H
    994                   SUPREME COURT REPORTS      [1986] 2 s.c.R.


A   case, that he has not been guilty of any misconduct to merit
    any punishment at all and also that the particular punishment'r
    proposed to be given is lll.lch more drastic and severe than he
    deserves. It referred to the above passages from the judgment
    of the Privy Council in I.M. I.all's case, and observed :

               "Further opportunity is to be given to the
B              Government servant after the charges have been
               established against him and a particular punishment
               is proposed to be meted out to him."              ~

    In short, the substance of the protection provided by Rules,
    like r. 55 referred to above, was bodily lifted out of the
c   rules and together with an additional opportunity embodied in;
    s.240(3) of the Government of India Act, 1935 so as to give a1
    statutory protection to the Government servants and had n~
    been incorporated in Art. 311(2) so as to convert the
    protection into a constitutional safeguard. The legal
    consequence therefore was that :
D
               "At the second stage, the delinquent Government
               servant was therefore entitled to contend -

               (a) that the inquiry at which the findings were
               arrived at was vitiated by a breach of the"'
E              principles of natural justice.

               (b) That the findings were not supported by the
               evidence in the proceedings, or that the evidence
               against him was not worthy of credence or that h~
               was not guilty of any misconduct to merit . and
F              punishment at all.

               (c) That the punishment proposed could not        ~­
               properly awarded on the findings arrived at, that
               is to say, the charges proved did not require the
               particular punishment proposed to be awarded."
G
         After Parliament frustrated the attempt of the Government
    to delete the constitutional safeguard as evolved by thiit
    Court in Kliem Qiand's case following the principles laid dowif'
    in the Privy Council decision in I.M. I.all's case by deletion
    of the words ' a reasonable opportunity of showing cause
H
                    RAM CHANDER v. U.O, l. [SEN, J,]              995

                                                                          A
       against the action proposed to be taken in regard to him' by
-<f the Constitution (Fifteenth Amendment) Act, 1963, tt seems
       somewhat strange that after more than a decade the Government
       of the day thought it fit to remove this valuable safeguard by
       the Forty-Second Amendment. It is particularly important to
       notice how closely Members of Parliament scrutinised the
                                                                          B
       motives of the Government while discussing the Fifteenth
       Amendment Bill and it is profitable to read the debates
       leading to the passsng of the Fifteenth Amendment. 'nlere could
 ·-..\ scarcely be a better example of the principle that the
       constituent powers to amend the Constitution, however
       permissible, 11J.1St be used with scrupulous attention to their
        true purpose and for reasons that are relevant and proper. A
       determined attempt on the part of the Government to unsertle
                                                                          c
 ~ the law as laid down by this Court was successfully frustrated
        on that occasion. Although the clause as orl.ginally drafted in
   ·~ the Amendment Bill was deficient insofar as it conferred no
        express protection as regards the second stage i.e. the stage
        of punishment, but the Fifteenth Amendment Act as passed,
                                                                          D
        introduced the requirement of giving a reasonable opportunity
        on the penalty proposed, after the conclusion of the inquiry
         into the charges and after a penalty had been provisionally
        determined. After considerable debate in Parliament, Shri
         Ashok Sen, Law Minister, intervened, in deference to the
   ~ concern expressed by Members representing all sections of the
                                                                          E
         House over the Amendment Bi 11 by which the Government was
         seeking to remove the opportunity at the second stage, and
         gave an assurance that he would move an amendment, making it
         clear that the second opportunity in regard to the punishment
,+       proposed would be retained, but such opportunity shall be only
         on the basis of the evidence adduced during the inquiry. ni.e
          Government accordingly moved the following amendment :          F

 t              "And where it ts proposed, after such inquiry, to
                impose on him any such penaltty, until he has been
                given a      reasonable  opportunity of making
                representation on the penalty proposed, but only on
                the basis of the evidence adduced during such             G
                inquiry."

-1        We may recall the words of the law Minister on that
     occasion while intervening in the debate on the original
     draft:
                                                                          ff
         996                   SUPREME COURT REPORTS      (19861 2 s.c.R.

    A               "Now, Sir, as I explained, when the motion was
                    first before the House and before it went to the ~
                   Joint Committ;ee it was never the intention of the
                   Government to vary rule 25 of the civil service
                   rules which provided for representation by the
                   civil servant against the penalty proposed. The
                   point taken was that in future some irresponsible
B                  Government might do way with rule 25 ignoring the
                   assurance given to Parliament. Well, then, I told
                   the representatives of the civil servants and other ~
                   representatives of the INTUC who had come to see me
                   to give me a draft which would make it quite clear
                   that the representation against the penalty
c                  proposed would not include any right to insist on
                   further hearing and further evidence being given.        1
                   They gave me that draft which I have accepted with
                   a slight modlf ication.                             ~

                   I, therefore, dispel any idea, if there ls any,
D                  that there has been any deviation from the ideals
                   of democracy and preservation of the vital rights
                   not only of civil servants but of the citizens. I
                   hope we shall never deviate from that course
                   because it is our great strength and it is through
                   the processes of democracy that we are functioning, •
E                  not through the processes of fear or force. (Lok
                   Sabha Debates, 3rd Series, Vol. XVIII, 1963, 4th
                   Session, p. 13152~54),

               The Fifteenth Amendment, in fact, clarified the legal
        position under the existing law by requiring that opportunity       i
F       1111st be given to the delinquent Government servant not only at
        the first stage to be heard in respect of the charges but also
        at the second stage i.e. after the disciplinary authority had
                                                                            f
        come to a tentative conclusion of guilt at the conclusion of
        the inquiry and had decided upon the punishment proposed to be
        inflicted. It was a necessary and sufficient safeguard against
G       arbitrary and excessive executive action written into the
        Constitution. Unfortunately, now the Forty-Second Amendment
        has achieved what the Fifteenth Amendment could not. By the
        constitutional amendment, the Government has taken away the             ~
        essential Constitutional safeguard.
H
                   RAM CHANDER v. U.O.I. [SEN, J.]              997

                                                                        A
          It is a fundamental rule of law that no decision 1111st be
j taken which will affect the rights of any person without first
    giving him an opportunity of putting forward his case. Both
    the Privy Council as well as this Court have in a series of
    cases required strict adherence to the rules of natural
    justice where a public authority or body has to deal with           B
    rights. Unfortunately the first proviso to cl. (2) of Art. 311
    has eliminated the rule audi alteram partem at the second
    stage i.e. observance of the rules of natural justice and the
  ~ requirement    of    a reasonable opportunity of making
    representation on the proposed action. The question still
    remains as to the stage when the delinquent Government servant
    would get the opportunity of showing cause against the action
    taken against him. Where does he get an opportunity to
                                                                        c
'~ exonerate hi1111elf from the charge unless he is allowed to show
     that the evidence adduced at the inquiry is not worthy of
 \ credence or consideration ? Does he ever get a right to show
     that he has not been guilty of any misconduct so as to deserve
     any punishment, or that the charges proved against him are not
                                                                        D
     of such a character as to merit the extreme penalty of
     dismissal or even of removal or reduction in rank and that any
     of the lesser punishments ought to have been sufficient in his
     case ? But we are bound by the majority decision in 'IUlsiram
     Patel's case.
                                                                        E
          After the constitutional change brought about it see111S
     that the only stage at which now a civil set"1ant can exercise
     this valuable .right is by enforcing his remedy by way of a
     departmental appeal or revision, or by way of judicial review.
     In 'IUlsira Patel's case, -the majority decision has pointed
  f- out that even after the Forty-Second Amendment, the inquiry
     required by cl. (2) of Art. 311 would be the same except that      F
 \ it would not be ·necessary to give to a civil servant an
-"t opportunity to make representation with respect to the penalty
     proposed to be imposed on him. In such a case, a civil servant
     who has been dismissed, removed or reduced in rank by applying
     to his case one of the clauses of the second proviso to Art.
      311 (2) or the analogous Service Rule has two remedies            G
     available to him. These remedies are : ( i) the appropriate
     departmental appeal provided for in the relevant Service
i    Rules, and (ii) if still dissatisfied, invoking the Court's
     power of judicial review. In Satyavir Singh & Ors. v. Union of
      India & Ors., [1985) 4 s.c.c. 252 there is an attempt made to
     analyse the ratio of the majority decision in 'l\llsiraa Patel's   H
    998                  SUPREME COURT REPORTS     (19861 2 s.c.R.


A   case and the nature of the remedies left to the civil servant
    at pp.276-281 of the report. If that be so, in a case governed ~
    by one of the clauses of the second proviso to Art. 311(2) or
    an analogous Service Rule, there is still all the more reason
    that in cases · not governed by the second proviso, a civil
    servant subjected to disciplinary punishment of dismissal,
    removal or reduction in rank under cl. (2) of Art. 311 would
B   have these remedies left to him. Virtually this is tantamount
    to a post-decisional hearing. There has been considerable
    fluctuation of judicial opinion in England as to whether a ~
    right of appeal is really a substitute for the insistence upon
    the requirement of a fair hearing or the observance of natural
    justice which implies 'the duty to act judicially'. Natural
c   justice does not require that there should be a right of
    appeal from any decision. This is an inevitable corollary of -{
    the fact that there is no right of appeal against a statutory
    authority unless the statute so provides. Professor H.W.R. 1
    Wade in his Administrative Law, 5th edn., at P• 487 observed:
D             ''Whether a hearing given on appeal is an acceptable
              substitute for a hearing not given, or not properly
              given, before the initial decision is in some cases
              an arguable question. In principle there ought to
              be an observance of natural justice equally at both
              stages •••• If natural justice is violated at the ,l..
E             first stage, the right of appeal is not so llllCh a
              true right of appeal as a corrected initial
              hearing: instead of fair trial followed by appeal,          ~
              the procedure is reduced to unfair trial followed
              by fair trial."
                                                                     '+
F   After referring to Megarry, J. 's dictua in a trade union
    expulsion case holding that, as ·a general rule, a failure of
    natural justice in the trial body cannot be cured by a
                                                                     t
    sufficiency of natural justice in the appellate body, the
    learned author observes :
G             "Nevertheless it is always possible that some
              statutory scheme may imply that the 'appeal' is to
              be the only hearing necessary."

         Professor de Smith a~ pp. 242-43 refers to the recent
    greater readiness of the Courts to. find a breach of natural
H   justice 'cured' by a subsequent hearing before an appellate
                     RAM CHANDER v. u.o.I. [SEN, J, l              999
                                                                           A
  ~tribunal.    In Swadeshi Cotton Mills v. Union of Indis, [1981] 2
  · S,C,R, 533 although the majority held that the rule of audi
     alteram partem was not excluded from s.18A{l)(a) of the
     Industrial Undertakings (Development and Regulation) Act,
     1951, Chinnappa Reddy, J. dissented with the view and
                                                                           B
     expressed that the expression 'immediate action' may in
     certain situations mean exclusion of the application of the
     rules of natural justice and a post-<lecisional hearing
  ~provided by the statute itself may be a sufficient substitute.
     It is not necessary for our purposes to go into the vexed
     question whether a post-decisional hearing ls a substitute of
     the denial of a right of hearing at the initial stage or the
     observance of the rules of natural justice since the majority
                                                                           c
 }-·in Tulsiraa Patel's case unequivocally lays down that the only
      stage at which a Government servant gets 'a reasonable
   )- opportunity of showing cause against the acti.on proposed to be
      taken in regard to him' i.e. an opportunity to exonerate
      himself from the charge by showing that the evidence adduced
                                                                           D
      at the inquiry is not worthy of credence or consideration or
      that the charge proved against him are not of such a character
      as to merit the extreme penalty of dismissal or removal or
      reduction in rank and that any of the lesser punishments ought
      to have been sufficient in his case, is at the stage of
  ,.._hearin~ of a departmental appeal.          Such being the legal
                                                                           E
       position, it is of utmost importance after the Forty-Second
       Amendment as interpreted by the majority in Tulsiraa Patel's
       case that the Appellate Authority 111.1st not only give a hearing
       to the Government servant concerned but also pass a reasoned
       order dealing with the contentions raised by him in the
~ +appeal. We wish to emphasize that reasoned decisions by                         '
       tribunals, such as the Railway Board in the present case, will      F ''--
    \ promote public confidence in the administrative process. An
  --y objective consideration is possible only if the delinquent
       servant is heard and give a chance to satisfy the Authority
       regarding the final orders that may be passed on his appeal.
       Considerations of fairplay and justice also require that such
       a personal hearing should be given.                                     G

           In the result, the appeal 111.1st succeed and is allowed.
    i The judgment and order of a learned Single Judge of the Delhi
     · High Court dated August 16, 1983 and that of the Division
       Bench dismissing the Letters Patent Appeal filed by the
                                                                               H
    1000                 SUPREME COURT REPORTS     [1986] 2 s.c.R.
A
    appellant in limine by its order dated February 15, 1984 are\-
    both set aside, so also the impugned order of the Railway
    Board dated March 11, 1972, We direct the Railway Board to           r
    hear and dispose of the appeal after affording a personal
    hearing to the appellant on merits by a reasoned order in
    conformity with the requirements of r.22(2) of the Railway
B
    Servants (Discipline & Appeal) Rules, 1968, as expeditiously
    as possible, and in any event, not later than four months from
    today.                                                         ~




    A.P.J.                                        Appeal allowed. -{




                                                                     t