Supreme Court of India
UNION OF INDIAversusALOK KUMAR
- Citation
- 2010 INSC 216
- Decided
- 16 April 2010
- Disposal
- Appeal(s) allowed
- Bench
- AFTAB ALAM
Holding
Rule 9(2) authorises the appointment of retired railway officers as "other authority" for departmental inquiries, and no de facto prejudice was shown from the non‑supply of CVC advice.
Summary
The Union of India challenged the disciplinary orders imposed on railway employees, arguing that retired railway officers could not be appointed as inquiry officers under Rule 9(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, and that the non‑furnishing of Central Vigilance Commission (CVC) advice caused prejudice. The Supreme Court held that Rule 9(2) permits the appointment of any "other authority", including retired officers, and that the 1998 circulars merely supplement the rule without conflict. It further ruled that the respondents failed to demonstrate any de facto prejudice from the alleged non‑supply of CVC notes, and that such advice is not mandatory. Consequently, the Court set aside the Tribunal and High Court judgments and allowed the appeals.
Issues considered
- Whether Rule 9(2) of the Railway Servants (Discipline & Appeal) Rules, 1968 bars the appointment of retired railway officers as inquiry officers.
- Whether the 1998 circulars issued by the Railway Board conflict with Rule 9(2) and are valid.
- Whether the non‑furnishing of Central Vigilance Commission advice to the delinquent officer caused de facto prejudice warranting setting aside the disciplinary order.
Legislation cited
- Public Servants (Inquiries) Acts. Section 2, s. Section 3
Subjects
Service lawDepartmental inquiryRailway Servants RulesRetired officerInquiry officerOther authorityNatural justiceDe facto prejudiceCentral Vigilance CommissionStatutory interpretationCirculars
Judgment
[2010) 5 S.C.R. 35
UNION OF INDIA A
v.
ALOK KUMAR
(Civil Appeal NO. 3369 of 2010 etc.)
APRIL 16, 2010
B
[AFTAB ALAM AND SWATANTER KUMAR, JJ.]
Railway Servants (Discipline and Appeal) Rules, 1968:
r. 9(2) - Inquiry under the Rules - Retired officers of the C
Department appointed as 'inquiry officer' - Circulars issued
by Government permitting such appointment - Appointment
challenged being violative of the rules and Public Servants
(Inquiries) Act - Held: Recourse to the provisions of the Act
not applicable in the facts of the case - Appointment of retir~d
officers as 'inquiry officer' is permissible - Expression 'other D
authority' ulr. 9(2) does not mean a person in service alone -
The Rule does not exclude appointment of retired employees
as other authority- Application of principle of exclusion cannot
be inferred in absence of specific language in the Rule - The
circular is not in conflict with r. 9(2) - It is rather supplementing E
the Rule - The appointment was also done in public interest
- The practice of such appointment has been adopted for a
considerable time and there is no bar to such practice - The
delinquents having accepted it, cannot challenge it -
Delinquents have also not been able to show that they suffered F
serious prejudice because of appointment of retired officers
- Service Law - Departmental Proceedings - Public Servants
(Inquiries) Act, 1850.
rr. 9(2) and (6) and Schedule 3 - Interpretation of r. 9(2) G
- Appointment of retired officers as inquiry officers under the
Rules, challenged as violative of spirit of the Rule - Held: The
expression 'other authority' is intended to cover a vast field, it
should not be given a narrow meaning - The provision
35 H
36 SUPREME COURT REPORTS [201 OJ 5 S.C.R.
A provides a discretion in matter of appointment of 'inquiry
officer' ...; The provision vesting discretion cannot be
interpreted in a manner which could take away the
discretionary power - Interpretation should be such as to
further the object of such rule - A statute should be examined
8 in its entirety arid not merely looking at a provision in isolation
- Principle of ejusdem generis is attracted where the words
preceding the general words pertains to class genus and not
heterogeneous collection of items - Principle of ejusdem
generis not applicable to r. 9(2) -Rule of contextual
C interpretation is applicable to the provision in question -
interpretation of Statutes.
Administrative Law - Natural justice - Non-furnishing of
documents (issued by eve) to the delinquent - Wheth~r
caused prejudice to delinquent - Held: In absence of proof
D that eve advice was taken into consideration in, departmental
proceedings or that there is any rule providing that
implementation of such advice is mandatory, prejudice
against the delinquent cannot be presumed - Onus is on the
delinquent to· show that non-furnishing of the document
E resulted in de facto prejudice - Prejudice de facto should not
be based on a mere apprehension or even on a reasonable
suspicion - It is not permissible to set aside departmental
inquiries merely on the basis of apprehended prejudice -On
facts, delinquent failed to show any de facto prejudice on
F account of non-furnishing of the document - Service Law -
Departmental Proceedings.
Maxim - ejusdem generis - Applicability of.
Doctrines I Principles:
G
Principle of necessary implication - Applicability of
Principle of exclusion - Applicability of
Words and Phrases: 'authority' - Meaning of
H
UNION OF INDIA v. ALOK KUMAR 37
The question for consideration in ttte appeals was A
whether under the relevant Rules and provisions of
Public Servants (Inquiries) Act, 1850, the Railway
Authorities have the jurisdiction to appoint a retired
employee of the Department as 'Inquiry Officer' within the
ambit of Rule 9(2) of the Railway Servants (Discipline & B
Appeal) Rules, 1968. In one of the appeals, an additional
issue arose as to V'!fhether non-furnishing of the Central
Vigilance Commission advice/notes, to the delinquent,
resulted in prejudice to him.
Allowing the appeals, the Court
c
HELD: 1.1. The Departmental proceedings against
the respondent was rE!stricted to the applicability of Rule
9 of Railway Servants (Discipline and Appeal) Rules,
1968. Thus, recourse to the provisions of the Public D
Servants (Inquiries) Act, 1850 for the purposes of
interpretation or deciding the controvercies in issue was
entirely unwarranted in the facts and circumstances of
the case. [Para 18) [57-A-B]
E
1.2. The language of Rule 9(6) shows that there is a
discretion vested in the disciplinary authority, enabling
it to hold the inquiry itself or get the truth of imputations
inquired by any 'other authority' in terms of the Rule. It
will be appropriate to read Rule 9(1) and 9(2) together but F
cautiously. [Para 20) [59-E-F]
1.3. The language of Rule 9 demonstrates that the
Rules and the Act are neither inter-dependent nor convey
a legislative intent that a departmental inquiry has to be
held under both, collectively or at the discretion of the G
disciplinary authority. The provisions of the Act are
applicable to a very limited class of persons i.e., the
officers who are removable or liable to be dismissed from
service only with the sanction of the Government. The
H
38 SUPREME COURT REPORTS · [2010) 5 S.C.R.
A Rules are applicable to non-gazetted officers and officials
of the Department of Railways except Grade-A officers
specified under Schedule 3 of the Rules. Thus, under the
scheme of the Rules and the Act and particularly, keeping
in view the preamble of the Act, it is not correct to say
B that absolute discretion is vested in the authorities
concerned to subject a person to departmental inquiries
in terms of the Rules or the Act. They have to exercise
the power in accordance with the provisions of the
relevant statute. Such an approach is amply indicated
c even in the language of Rule 9(2). [Para 20) [59-G-H; 60-
A-D]
1.4. The Rules require the disciplinary authority to
form an opinion that the grounds for inquiry into the truth
of imputations of misconduct or misbehaviour against
D the railway servant exists. Further, that they have
enquired into the matter. Then, such inquiry may be
conducted by the disciplinary authority itself or it may
appoint under the Rules a Board of Inquiry or other
authority to enquire into the truth thereof. Formation of
E such an opinion is a condition precedent for the
disciplinary authority, whether it intends to conduct the
inquiry under the Rules or under the Act as the case may
be. The expression "as the case may be" clearly
suggests that law which will control such departmental
F inquiry would depend upon the class of officers/officials
whose misconduct or misbehaviour subject them to such
inquiry. If the employee is covered under the Act, the
disciplinary authority shall have to appoint an inquiry
officer and proceed with the inquiry under the provisions
G of the Act, whereas if he is covered under the Rules, the
procedure prescribed under the Rules will have to be
followed. [Para 20] [60-0-G]
1.5. Other important feature in the language of Rule
9(2) is appoint under this Rule a Board of Inquiry or other
H
UNION OF INDIA v. ALOK KUMAR 39
Authority. The expression 'other authority' has neither A
been explained nor defined under the Rules. In terms of
Rule 2(1 )(2), the words which have not been defined·
under these Rules shall be deemed to have been
assigned the same meaning as assigned under the
Railway Act, 1890. Even the Railway Act does not define B
the term 'authority' though this expression has been
used in conjunction with other words in the Rules as well
as the Act. In absence of any specific definition or
meaning, the court has to rely upon understanding of this
expression in common parlance. [Para 21-22) [60-G-H; 61- c
A-8)
1.6. In common parlance, the word 'authority' is
understood to be power to exercise and perform certain
duties or functions in accordance with law. Authority may
vest in an individual or a person by itself or even as a D
delegatee. It is the right to exercise power or permission
to exercise power. Such permission or right could be
vested in an individual or a body. It can also be in
conferment of power by one person to another. This
expression has been used differently in different statutes E
and can be given a different meaning or connotation
depending upon the context in which it is used. The
purpose and object of using such expression should be
understood from the provisions of the relevant law and
the purpose sought to be achieved. [Para 22) [61-C-F] F
Far/ex Free Dictionary; Oxford Dictionary; Law Lexicon,
2nd Edition, 1997 pg. 171, referred to
1.7. The .expression 'other authority' appearing in
Rule 9(2) is intended to cover a vast field and there is no G
indication of the mind of the framers that the expression
must be given a restricted or a narrow meaning. It is
possible that where the authority is vested in a person
or a body as a result of delegation, then delegatee of
such authority has to work strictly within the field H
40 SUPREME COURT REPORTS (2010] 5 S.C.R.
A delegated. If it works beyond the scope of delegation, in
that event it will be beyond the authority and may even,
in given circumstances vitiate the action. [Para 24] [64-
B-D)
8 1.8. There is an element of discretion vested in the
competent authority to appoint 'other authority' for the
purposes of conducting a departmental inquiry. It is a
settled principle of interpretation that exclusion must
either be specifically provided or the language of the Rule
should be such that it definitely follows by necessary
C implication. The words of the Rule, therefore, should be
explicit or the intent should be irresistibly expressed for
exclusion. If it was so intended, the framers of the Rule
could simply use the expression like 'public servant in
office' or 'an authority in office'. Absence of such specific
D language exhibits the mind of the framers that they never
intended to restrict the scope of 'other authority' by
limiting it to the serving officers/officials. The principle of
necessary implication further requires that the exclusion
should be an irresistible conclusion and should also be
E in conformity with the purpose and object of the rule.
[Para 26) [65-A-D]
1.9. It is not correct to say that the framers of the
Rules have excluded appointment of former employees
F of Railway Department as other authority (inquiry officer)
under the provisions u/r. 9(2). An exclusion clause should
be reflected in clear, unambiguous, explicit and specific
terms or language, as in the clauses excluding the
jurisdiction of the court the framers of the law apply
specific language. In some cases, as it may be, such
G exclusion could be read with reference to irresistible
implicit exclusion. Application of principle of exclusion
can hardly be inferred in absence of specific language.
[Para 27) [65-E-F]
H
UNION OF INDIA v. ALOK KUMAR 41
New Moga Transporl Co. v. United, India Insurance Co. A
Ltd, AIR 2004 SC 2154, referred to.
1.10. The inquiry officer appointed by the disciplinary
authority is a delegatee and has to work within the limited
authority so delegated to him. The charges and article of
8
charges and imputations are s_e.rved by the disciplinary/
competent authority. The inquiry report is submitted
again to the competent authority which is expected to
apply its mind to the entire record and then decide
whether any punishment should be imposed upon the
delinquent officer or not. Thus, all substantive functions C
are performed by the disciplinary or the specified
authority itself. It is only an interregnum inquiry. It is
conducted by the delegatee of the said authority. That
being the purpose and specially keeping in mind the
language of Rule 9(2), it cannot be said that 'other D
authority' has to be a person in service alone. [Para 28)
[66-B-E]
Ravi Malik v. National Film Development Corporation
Ltd. and Ors. 2004 (13) SCC 427, distinguished. E
1.11. The Rule has not specified any qualifications or
pre-requisites which need to be satisfied before a person
can be appointed as an inquiry officer. It has been left to
the discretion of the disciplinary authority. Unless such
exclusion of a former employee of the Government was F
spelt out specifically in the Rule, it will be difficult for the
Court to introduce that element and the principle of
implication simplicitor. [Para 29) [67-F-G]
1.12. The Schedule specifies the powers of the G
respective authorities to take disciplinary action against
the delinquent officer, either in certain terms or even by
interpretation, it does not suggest which class of persons
should or should not be appointed as inquiry officers. On
the contrary, Rule 9(2) specifically empowers the H
42 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Disciplinary Authority to inquire into the matter itself or
appoint another authority to conduct the inquiry. In other
words, the functions of the Inquiry Officer are that of a
delegating nature and this delegation ex facie, is limited
delegation. An Inquiry Officer is not even entitled to
B suggest the punishment unless the Rule so requires
specifically, which is not the case here. It is a settled rule
that the provisions of an Act/Rules should be examined
in their entirety along with the scheme before a particular
meaning can be given to an expression or sentence used
c in a particular language. Thus the Rules must be
examined in their entirety along with the conditions of the
Schedule and not merely look at Rule 9(2) in isolation.
[Para 32] [70-F-H; 71-A-B]
1.13. It is not correct to say that in view of the
D language of Rule 9(2), the expression "other authority"
would have to be read ejusdem generis to the earlier part
of Rule 9(2) and that they must take colour from the earlier
part of the Rule. The rule of ejusdem generis is applied
where the words or language of which in a Section is in
E continuation and where the general words are followed
by specific words that relates to a specific class or
category. The maxim ejusdem generis is attracted where
the words preceding the general word pertains to class
genus and not a heterogeneous collection of items. The
F language of Rule 9(2), on its plain reading shows that the
words are disjunctive and therefore, this principle of
interpretation would be hardly applicable to the facts of
the present case. [Paras 34, 35, 36 and 37] (71-E-F; 72-B-
C, G; 73-A]
G
Commissioner of Income Tax, Udaipur, Rajasthan vs.
Mcdowell and Company Limited 2009 (10) SCC 755,
distinguished.
1.14. It will be useful to apply the rule of contextual
H interpretation to the provisions of Rule 9. It would not be
UNION OF INDIA v. ALOK KUMAR 43
permissible to import any meaning or make additions to A
the plain and simple language of Rule 9(2) in relation to
"other authority." The rule of contextual interpretation
requires that the court should examine every word of
statute in its context, while keeping in mind the preamble
of the statute, other provisions thereof, pari material s
statutes, if any, and the mischief intended to be remedied.
Context often provides a key to the meaning of the word
and the sense it carries. When the rules and regulations
have been framed dealing with different aspects of the
service of the employees, the courts would attempt to c
make a harmonious construction and try to save the
provision, not strike it down rendering the provision
ineffective. The Court would normally adopt an
interpr~tation which is in line with the purpose of such
regulations. The rule of contextual interpretation can be
0
purposefully applied to the language of Rule 9(2). The
legislative background and the object of both the Rules
and the Act is not indicative of any implied bar in
appointment of former employees as inquiry officers.
[Para 38) [73-E-H; 74-A-B]
E
Gudur Kishan Rao v. Sutirtha Bhattachaarya (1998) 4
SCC 189; Nirmal Chandra Bhattacharjee v. Union of India
1991 (Supp (2) SCC 363; Central Bank of India v. State of
Kera/a (2009) 4 SCC 94, relied on.
F
Housing Board of Haryana v. Haryana Housing Board
Employees Union (1996) 1 SCC 95, referred to.
1.15. There is no conflict, much less the
contradiction between the language of Rule 9(2) and the
circular of 1998 issued by the appellants which G
contemplated preparation of a panel of former officers/
· employees of the railway department, who can be
appointed as inquiry officers to conduct the departmental
inquiry as the disciplinary/competent authority. The
circular only aids Rule 9(2) further while saying that in the H
44 SUPREME COURT REPORTS [2010] 5 S.C.R.
A interest of the administration and in consonance with the
Rules, the former/retired officers of the railway
department who satisfy the eligibility criteria can be
appointed as inquiry officer and submit their report to the
disciplinary authority· in accordance with law. It is clear
B that th·~ circular issued is only supplementing Rule 9(2)
and is in no way in conflict with the language or spirit of
Rule 9(2). WheP a circular is issued for the purposes of
supplementing the removal of ambiguity in the Rule or to
achieve the purpose of the Rule more effectively, it can
C hardly be said that there is a conflict between the two.
[Paras. 30 and 31) [69-B-D; F-G)
1.16. While examining the provisions of vesting of
discretion, it cannot be said that they should be
. interpreted .in a manner which would take away the
D discretion cont~mplated under the Rule. Rather it would
be appropriate to adopt an interpretation which would
further the object of such rule. Once there is no conflict,
then the Rule and the circular should be harmoniously
read. [Para 31) [70-A-B-E]
E
Union Qf India and Ors. v. Virpal Singh Chauhan and Ors.
1995 (6) sec 684, referred to.
1.17. There is no challenge in any of the applications
filed before the Tribunal to any of the circulars. By
F passage of time and practice the competent authorities
and even the delinquent officers in disciplinary cases
have given effect to these circulars and they were. treated
to be good in law. It is only in the arguments addressed
before this Court, where it is suggested that these
G circulars supersede or are in cor.:lict with the Rules. [Para
40) [7 4-E-G]
1.18. It is not opposed to any canons of service
jurisprudence that a practice cannot adopt the status of
H an instruction, provided it is in consonance with law and
UNION OF INDIA V. ALOK KUMAR 45
has been followed for a considerable time. This concept A
is not an absolute proposition of law but can be applied
depending on the facts and circumstances of a given
case. [Para 41] [74-G-I-!; 75-A]
Confederation of Ex-Service Man Associations and Ors. B
v. Union of India and Ors. (2006) 8 sec 699, relied on.
1.19. A practice adopted for a considerable time,
which is not violative of the Constitution or otherwise bad
in law or against public policy can be termed good in law
as well. What has been part of-the general functioning of C
the authority concerned can safely be adopted as good
practice, particularly, when such practices are clarificatory
in nature and have been consistently implemented by the
concerned authority, unless it is in conflict with the
statutory provisions or principal document. A practice D
which is uniformly applied and is in the larger public
interest may introduce an element of fairness. A good
practice of the past can even provide good guidance for
future. This accepted principle can safely be applied to a
case where the need so arises, keeping in view the facts E
of that case. [Para 42] [75-E-H; 76-A]
Deputy Commissioner of Police and Ors. vs. Mohd.
Khaja Ali 2000 (2) SLR 49, relied on.
1.20. The practice- of appointing former employees F
had been implemented for quite some time in the
Department. This practice is not opposed to any statutory
provision or even public policy. To bar such a practice,
there has to be a specific prohibition under the statutory
provision~. [Para 43] [76-8-C] G
. 1.21. In the issuance of the circulars by the Railways,
larger public interest is served. The background stated
by the appellants necessitating the issuance of these
circulars, clearly stated that large number of cases of H
46 SUPREME COURT REPORTS [2010] 5 S.C.R.
A departmental inquiries are pending and have not attained
finality, primarily for the non-availability of the inquiry
officers~ Even that consideration would tilt the balance,
in achieving larger public purpose and interest, rather
than to take an approach which would add to the misery
B of the Railway officials who are facing departmental
inquiries. [Para 44] [76-C-E]
1.22. In the present case even the respondents have
participated in the entire inquiry and received the order
C of punishment without any protest. They, in fact, have
admitted to the established practice of appointment of
former raflway employees as inquiry officers. [Para 45]
[76-F-G] .
. 2.1. There is nothing on record to show that the
D alleged CVC notes have actually been taken into
consideration and that the same have affected the mind
of the disciplinary authority while considering the
defence of the delinquent officer and imposing
punishment upon him. Unless .such notes were actually
E considered and had some prejudicial effect to the interest
of the delinquent officer, it will not be necessary for the
Court to interfere in the departmental inquiry proceedings
on that ground. All these ingredients are not satisfied in
the records. It is a settled rule of departmental
F proceedings that, it is for the delinquent officer to
specifically raise such an issue .and discharge the onus
of prejudice. [Paras 49 and 52] [78-E; 79-D-F]
Sunil Kumar Banerjee v. State of West Bengal and Ors.
1980 (3) SCC 304; State Bank of India and Ors. v. D.C.
G Aggarwal and Anr. 1993 (1) SCC 13, referred to.
2.2. Unless the Rules so require, advice of the CVC
is not binding. In absence of any specific rule that
seeking advice and implementing thereof is mandatory,
H it will not be just and proper to presume that there is
UNION OF INDIA v. ALOK KUMAR 47
prejudice to the concerned officer. Even in the cases A
where the action is i:aken without consulting the Vigilance
Commission, it necessarily will. not vitiate the order of
removal passed after inquiry by the departmental
authority. [Para 54] [81-C-E]
State of A.P. and Anr. v. Dr. Rahimuddin Kamal 1997 (3)
8
SCC 505; Deokinandan Prasad v. State of Bihar 1971 (2)
sec 330, relied on.
2.3. Some element ot prejudice is essential before an
order of imposing penalty can be interfered with by the c
court, particularly when the inquiry otherwise had been
conducted in accordance with law and no grievance was
raised by the respondent on that behalf except the poifits
raised for consideration of the Tribunal. Thus, no
statutory rule or regulation has been violated by the 0
appellant nor any eve notes were actually taken into
consideration for imposing the punishment upon the
respondent. [Para 55] [82-D-F]
2.4. Earlier, in some of the cases, this Court had taken
the view that breach of principle of natural justice was in E
itself a prejudice and no other 'de facto' prejudice needs
to be proved. In regard to statutory rules, the prominent
view was that the violation of mandatory statutory rules
would tantamount to prejudice but where the Rt1_le is
merely dictatory the element of de facto prejudice needs F
to be pleaded and shown. With the development of law,
rigidity in these Rules is somewhat relaxed. The instance
of de facto prejudice has been accepted as an essential
feature where there is violation of non-mandatory rules
or violation of natural justice as it is understood in its G
common parlance. [Para 57] [83-C-E]
S.L. Kapoor v. Jagmohan 1980,(4) SCC 379; KL Tripathi
v. State Bank of India (1984) 1 SCC 43; ECIL v. B. Karunakar
(1993) 4 SCC 727; Haryana Financial Corporation v. Kai/ash
Chandra Ahuja 2008 (9) SCC 31, relied on. H
48 SUPREME COURT REPORTS (2010] 5 S.C.R.
A. 2.5. In a departmental inquiry where. the Department
relies upon .a large number of documents; ·majorityrof
which are furnished and an opportunity is granted to the
delinquent officer to defend himself except that some
· copies of formal documents had not been furnished to
B the delinquent. In that event the onus is upon the
employee to show that non-furnishing of these formal
· '\ documents have resulted in de facto prejudice and he has
been put to a disadvantage as a result thereof. In the light
of the peculiar facts and circumstances of the present
q case, it is obligatory upon the respondents to show that
they have suffered some serious prejudice because of
appointment of retired Railway officers as inquiry
officers. The respondents have not satisfied this test of
law. [Para 57] [83-E-G; 84-A-B] ·
D 2.6. The well established canons controlling the field
of bias in service jurisprudence can reasonably extend
to the element of prejudice as well in such matters.
Prejudice de facto should not be based on a mere
apprehension or even on a reasonable suspicion. It is
E important that the element of prejudice should exist as a
matter of fact or there should be such definite inference
of likelihood of prejudice flowing from such default, which
relates statutory violations. It will not be permissible to
set aside. the departmental inquiries in any of these
F classes merely on the basis of apprehended prejudice.
[Para 61] [86~E-F]
2.7. De facto prejudice is ~ne of the essential
ingredients to be shown by the delinquent officer before
an order· of punishment can be set aside, of course,
G depending upon the facts and circumstances of a given
case. Judicia posteriora sunt in lege fortiori. Prejudice
normally would be a matter of fact and a fact must be
pleaded and shown by cogent documentation to be true.
Once this basic feature lacks, the appellant may not be
H able to persuade the Court· to interf~re with the
UNION OF INDIA v. ALOK KUMAR 49
departmental inquiry or set aside the orders of A
punishment. [Para 63] [88-B-D]
Case Law Reference
2004 (13) sec 427 distinguished. Para 26
B
AIR 2004 SC 2154 referred to. Para 27
1995 (6) sec 684 referred to. Para 3u
2009 (10) sec 755 distinguished. P~ra 34
(1998) 4 sec 189 ·relied on. Para 39 ·c
(1991) Supp (2) sec 363 relied on. Para 39
(2009) 4 sec 94 relied on. Para 39
(1996) 1 sec 95 referred to. Para 39
D
(2006) 8 sec 699 relied on. Para 41
2000 (2) SLR 49 relied on. Para 42
19so (3) sec 304 referred to. Para 51
1993 (1) sec 13 referred to. Para 51 E
\
1997 (3) sec 505 relied on. . Para 54
1911 (2) sec 330 relied on. Para 54
1980 (4) sec 379 relied on. Para 58
F
(1984) 1 sec 43 relied on. Para 59
(1993) 4 sec 121 relied on. Para 60
2008 (9) sec 31 relied on. Para 60
CIVIL APPELLATE JURISDICTION : Civil Appeal No. G
3369 of 201 o.
From the Judgment & Order dated 25.2.2008 of the High
Court of Lucknow in Writ Petition 252 of 2008.
H
50 SUPREME COURT REPORTS [2010] 5 S.C.R.
A WITH
C.A. Nos. 3370, 3372, 3373, 3374, 3375, 3376 of 2010.
S. Wasim A. Qadri, Jubair Ahmad Khan, Anand Verma,
Minnat Ullah, A. K. Sharma, Ron Bastin for the Appellant.
B
P.P. Khurana, Santosh Kumar, Mushtaq Ahmad, S.
Prasad, Ambar Qamaruddin, Manoj Prasad, Satyendra
Kashyap, Sadashiv Gupta, Vishal Somany for the Respondent.
The Judgment of the Court was delivered by
c
SWATANTER KUMAR, J. 1. Delay condoned in SLP (C)
No. 25293 of 2008.
2. Leave granted.
D
3. This judgment shall dispose of all the above mentioned
appeals as common question of law on somewhat similar facts
arise in all the appeals for consideration of this Court.
4. The Union of India being aggrieved by the judgment of
E the High Court of Judicature at Allahabad, Lucknow Bench
dated 25th February, 2008 has filed the present appeals under
Article 136 of the Constitution of India. The High Court declined
to interfere with the Order passed by the Central Administrative
Tribunal, Lucknow Bench (hereinafter referred to as 'the
F Tribunal') wherein the Tribunal, in exercise of its powers under
Section 19 of the Central Administrative Tribunal Act had set
aside the orders of punishment passed by the Disciplinary
Authority and the Appellate Authority. However, the High Court
granted liberty to the Discipiinary Authority to conduct the inquiry
G afresh from the stage of nomination of the inquiry officer.
5. A simple but question of some significance under
service jurisprudence falls for consideration in the present
appeals, whether or not under the relevant Rules and provisions
of the Act, the Railway Authorities have the jurisdiction to
H
UNION OF INDIA v. ALOK KUMAR 51
[SWATANTER KUMAR, J.]
appoint a retired employee of the Department as 'Inquiry A
Officer' wit_hin the ambit of Rule 9(2} of the Railway Servants
(Discipline & Appeal} Rules, 1968 (for short referred to as 'the
Rules').
6. The facts necessary for dealing with this batch of
8
appeals can be summarily stated. The respondents in all these
appeals are the members in service of the Railway
Establishment. Alok Kumar, respondent in SLP (C) No. 25293
of 2008, is a Group-A officer, while in all other appeals the
respondents are from clerical cadre of the Railway Department.
This is primarily the only distinguishing feature in thefact~ of C
the present appeals. The High Court as well as the Tribunal in
all these cases recorded the finding that a retired officer of the
Railways cannot be appointed as an inquiry officer within the
meaning of the provisions of Rule !:I of the Rules. ·
D
7. Keeping in view the common question of law that has
been answered against Union of India, it may not be necessary
for us to refer to the facts of each case in detail. Suffice it to
notice the facts in some detail in Shri Alok Kumar's case. Shri
Alok Kumar, respondent, an officer of the Indian Railway E
Services of Engineers was appointed as Senior Divisional
Engineer and was one of the Members of the Tender Committee
as well. It is the case of the appellants before us that some
irregularities of the Tender Committee were noticed.
8. The Competent Authority on 11th September, 2001 thus F
served a charge sheet upon the delinquent officer under Rule
9 of the Rules, calling upon him to render his explanation with
regard to the Article of Charges and imputations stated therein.
It was alleged that Shri Alok Kumar, as convener member of
the Committee besides the official position he was holding, G
submitted a brief calling for tenders on the basis of highly
inflated estimates with a view to justify award of contract at very
high rates. It was also alleged that he did not submit proper
information before the Tender Committee and deliberately
misled the other members of the Committee. The Tender H
52 SUPREMi= COURT REPORTS [2010] 5 S.C.R.
, I
A Committee which met on 1.3th July, 1999, upon comparing the
rates quoted by M/s Rajpal Builders with the e~timated tender
value, had found that these were (-) 1.7% lower than the ·
estimated rates. ~\ .'
9. In short, it was stated that by"misusing his official status
8
he had awarded the contract to the contractor of the
Department at high .rates. To this,. the delinquent fifed reply
de,nying the Article of Charges. One Shri J.K. Thapar, retired
CAP"FOIS, Northern Railways was appointed as an Inquiry
.Officer. The inquiry was conducted by him during the year 2001-
C · 02. The entire file including the Central Vigilance Commission
(for.short 'CVC') advice was also placed before the competent
authority. The Disciplinary Authority expressed disagreement
and issued a Memorandum dated 6th May, 2003 giving a
chalice to Shri Alok Kumar for making a representation. The
D Railway Board vide its letter dated 14.6.2004, passed an order
imposing punishment upon the respondent of reduction by one
stage in the time scale of pay for a period of one year.
.
10. Aggrieved by this Order of punishment, the respondent
E preferred an appeal which came to be decided by the Ministry
of Railways. The Competent Authority rejected the same vide
Order dated 18th July, 2005 .. Since the respondent could not
get any relief, he filed an Original Application No. 458 of 2006
before the Tribunal against· the orders of the Disciplinary
F Authority and the Appellate Authority. Different points were
raised in the application by the respondent, however finally only
two issues were raised before the Tribunal Which.were.noticed
in paragraph 6 of its judgment as under:-<-:;::;.,;_
. . . ···.,.. .
"(a) Whether, CVC's advice should be made available to
G the defender and
(b) Whether a retired person ca~ be appointed as inquiry
officer."
.;
11. ·The Tribunal while noticing the provisions of Rule 9 (2)
H
UNION OF INDIA v. ALOK KUMAR 53
[SWATANTER KUMAR, J.]
of the Rules took1he view that the Disciplinary Authority, with A
an intention to examine the truth of any imputation of misconduct
or misbehaviour against the Railway servant, can conduct an
inquiry itself or appoint a Board of Inquiry or other authority
under the Rules. However, it held that even on the strength of
the Circular relied upon by the present appellants issued by the B
Railways, empowering them to prepare a panel of retired
officers to be nominated as inquiry officers; the appellants have
no authority to appoint a former employee as 'Inquiry Officer'.
The Tribunal also took the view that the orders of punishment
were vitiated for non-supply of copy of advice/notes given by c
the eve and it was mandatory on the part of the Disciplinary
Authority to furnish the same to. the delinquent. Thus on the
basis of these findings, the impugned orders were set aside
in all the cases. The High Court accepted the view of the
Tribunal and Writ Petition No. 252 of 2008 filed by the Union D
of India, and other connected writ petitions were dismissed by
the High Court giving rise to the present petitions.
12. In cases of Satrughan Pal, Suryadeo Tripath1,
Ratneshwar Singh and Ram Bahor Yadav, it only needs to be
noticed that all are from clerical cadre of booking clerk etc. In E
these cases, the Tribunal had decided against the appellants
relying upon its judgment in the case of Ram Bahor Yadav,
while taking the view that retired railway officer could not be
appointed as the Inquiry Officer. Consequently, the orders of
punishment in each case were set aside. F
13. In the case of Ram Bahor Yadav, the High Court
affirmed the view taken by the Tribunal that the words "other
authority" in Rule 9 (2) of the Rules will not include a retired
Railway Officer and, that empanelment of retired Railway G
Officers by the Railway Board's letter dated 29th July, 1998
does not constitute amendment of Rules and consequently set
aside the orders of punishment imposed upon the respondents
in those cases. ·
14. The Union of India has challenged the judgment of the H
54 SUPREME COURT REPORTS [2010] 5 S.C.R.
A High Court in Ram Bahar Yadav's case in SLP (C) No. 24748 •
of 2008 and all other judgments in the aforementioned appeals.
With the exception of Alok Kumar's case, in all the other cases,
as is evident from the above narrated facts, we would be
concerned with the interpretation of the Rules and provisions
B of the Act read with the Circular issued by the Railways
Department/Board to answer the controversy, whether a retired
Railway Officer can be appointed as 'Inquiry Officer for the
purposes of conducting departmental inquiries against the
employees of the Railway Department. In case of Shri Alok
c Kumar an additional issue will have to be dealt with by us with
regard to the alleged non-furnishing of the Central Vigilanc~
Commission advice/notes, to the delinquent and its effect on
the merits of the case.
15. Before we proceed to examine therelevant provisions,
D we may also notice that a different view was taken by the Bench
of Guwahati High Court in the case of Kendriya Vidya/a
Sangthan v. Vijay Bhatnagar, Writ Petition No. 6795 of 2005
than the view taken by the Allahabad High Court, Lucknow
Bench, in the impugned judgment. The Bench of Guwahati High
E Court while dealing with Rule 14 (2) of the CCS Rules had set
aside the judgment of the Tribunal and held that a retired person
could be appointed as Inquiry Officer which judgment is heavily
. relied upon by the appellants before us.
F DISCUSSION ON LAW
16. During the British regime some of the persons holding
high positions, in the governance of the Indian Dominion were
found to be acting as autocrat. Their behaviour as public
servants became a cause of concern for the Government. In
G order to have a check on this, a BilLwas; introduced in the
Legislature on 1st November, 1850. By Act 1 of 1897 it was
enacted as 'The Public Servants (lnqviries) Act, 1850'. This Act
was enacted with an object to amend the law of regulating
inquiries into behaviour of public servants, not removable (from
H their appointments) without the sanction of the Government and
UNION OF INDIA v. ALOK KUMAR 55
[SWATANTER KUMAR, J.]
to make the same uniform throughout the Indian Territory. The A
provisions of this law clearly show that it is a self-sufficient code
right from the stage of serving of Articles of Charges which were
to be drawn up for the public inquiry to be conducted in the
cases of the misbehaviour by public servants, till submission
of the records of proceedings to the competent Government. B
The competent Government on consideration of the report may
order taking of further evidence or direct the authority to which
the person was subordinate for their opinion and finally pass
such orders thereon as may .appear consistent with its powers
in such cases. Section 3 of this Act which has been referred to c
and even relied upon by the authorities reads as under:
"Authorities to whom inquiry may be committed - Notice
to accused - The inquiry may be committed either to the
Co1,1rt, Board or other authority to which the person
accused is subordinate or to any other person or persons, D
to be specially appointed by the Government,
commissioners for the purpose: notice of which
commission shall be given to the person accused ten days
at least before the beginning of the inquiry."
E
17. The Act remained unimplemented as the provisions
thereof were hardly invoked by the authorities concerned. The
President of India in exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India, 1950 made
the rules termed as the 'Railway Servants Discipline and F
Appeal (Rules 1968)'. They came into force on 1st October,
1968.
18. The Preamble of the Act also indicates the Legislative
intent as to which class of persons the provisions of the Act
would be applicable. It is abundantly clear that the persons who G
are covered under the provisions of the Act are persons who
are public servants and not removable from their appointment
without sanction of the Government. This criterion has to be
specified before the provisions of the Act can be made
available, and an inquiry can be conducted under its provisions. H
56 SUPREME COURT REPORTS [2010] 5 S.C.R.
A In fact, the language of Sections 2 & 3 of the Act is quite
distinguishable from the provisions normally covering the
disciplinary action in departmental inquiries. In terms of Section
/
2, .the Government has to form an opinion that sufficient
grounds existed for making a formal and public inquiry into the
B truth of any imputation .of misbehaviour by any person in the
service of the Government, who cannot be removed from his
appointment without its sanction. Such an inquiry could be
conducted by a Board or other authority to which the s'aid
Officer is subordi.nate or any other person or persons to be
c specifically appointed by the Government. However, in terms
of Section 4, the Government, where it thinks fit to conduct the
prosecution, shall nominate some person to conduct the same
on its behalf. Under this Section, the prosecution has to be
completed in terms of the provisions of the Act by the persons
D so appointed or the Commissions so appointed. In other words,
inquiry or prosecution has to be conducted strictly in
consonance with these provisions. The scope of applicability
of this Act· cannot be. enlarged and it must be construed
somewhat narrowly and the persons who are not specifically
covered under the provisions of this Act cannot be included by
E implication or exemption. It is a settled rule of. interpretation that
where the legislature in its wisdom has' made an Act applicable
to a particular class of persons, there it will be impossible to
construe it in a manner so as to enlarge the scope of its
applicability. The provisions afore~referred as well as scheme
F ofthe Act makes it clear that the provisions are applicable to
the public servants who can be removed from service only with
the sanction of the Government. In the cases before us,
including that ofMr. Alok Kumar, it had not been suggested by
either party that they are rem,ovable from service only with prio~
G sanction of the Government. In fact, they can be removed by'
the Disciplinary Authority in accordance 'with the law. The
charge-sheet, which was served in FC?rm No. 5 under Rule 9
of the Rules, did no~ even refer to the provisions of the Act. The
Memorandum, in which the ch;arge 1sheet was contained,
H described him as Senior DE/1 Northern.Eastern Railways,
UNION OF INDIA v. ALOK KUMAR 57
[SWATANTER KUMAR, J.]
Lucknow and referred to the provisions of Rule 9 and Rule 20 A
of the Railway Service Conduct Rules 1966. In other words, the
competent authority did not direct either a public inquiry or a
prosecution under the relevant provisions of the Act. The
departmental proceeding against the said respondent was
restricted to the applicability of Rule 9 of the 1968 Rules. Thus, B
recourse to the provisions of the Act for the purposes of
interpretation or deciding the controversies in issue was entirely
unwarranted in the facts and circumstances of the case in hand.
19. Now, let us examine the ambit, scope and ramifications
of the Railway Service Disciplinary Rules, 1968 in relation to C
the departmental inquiries in the Department of Railways and
the delinquent. The Rules in question, noticed at the very
threshold, are a complete code in itself. It opens with the words
"these rules have been framed under proviso to Article 309 of
the Constitution and are applicable to the officers/officials of D
the Railways". Rule 2 of the Rules defines 'appointing authority',
'disciplinary authority', 'Head of the Department' and 'service'
under its different sub-rules. Service is stated Tb mean, service
under the Ministry of Railways and in terms of Rule 3. The Rules
are applicable to every railway servant but shall not apply to the E
class of members or persons indicated in Rule 3 (i) (a) to (d).
Rule 5 empowers the competent authority to place a railway
servant under suspension and this power is controlled by the
provisions of Rule 4 which requires the specified authorities
alone to act in terms of Schedule 1 and 2 respectively for F
passing such orders. These Schedules not only specify the
class of employees who can be placed under suspension but
also the authority which can pass sucll orders as well as the
authority which shall be the appellate authority for dealing with
the grievances raised by the delinquent officer/official. It may G
be noticed that Schedule 1 deals with a class of non-gazetted
railway servants including Grade-B non-gazetted officers/
officials. Schedule-II deals with different grades of railway
officers and senior supervisors of non-gazetted staff. Schedule
Ill spells out the class of railway servants covered, authority H
58 SUPREME COURT REPORTS [2010] 5 S.C.R.
A empowered to place a railway servant under suspension or
impose penalty and its nature as well as the appellate authority.
Railway servants of Grade-A and Grade-B are dealt with under
this Schedule and the President is vested with full powers.
W.here the orders are passed by th~ Railway Board, the appeal
lies to the President. The penalties that can be imposed upon
a delinquent officer/official for good and sufficient reasons have
been spelt out in Rule 6, for which a disciplinary authority has
been specified under Rule 7. While RI.lie 8 deals with authority
to institute the proceedings, there is Rule 9 which falls under
c Part IV of these Rules, which provides the procedure for
imposing major penalties. In fact, Rule 9 to Rule 12 are the most
relevant provisions which detail the procedure which is to be
followed and the imposition of punishments and communication
of such orders. Rule ·9 contemplates the complete procedure
for imposition of major penalty including appointment of inquiry
0
officer and submission of the report by the inquiring authority
to the disciplinary authority. Rule 10 specifies the action which
can be taken on the submission of the inquiry report. Keeping
in view the primary challenge raised in these appeals, it will be
useful to refer to the relevant part of Rule 9:
E
~Rule 9. Procedure for imposing major penalties
(1) No order imposing any of the penalties specified
in Clauses (v) to (ix) of Rule 6 shall be made except
F after an inquiry held, as far as may be, in the
manner provided in this rule and Rule 10, or in the
manner provided by the Public Servants (Inquiries)
Act, 1850 (37 of 1850) where such inquiry is held
under that Act.
G (2) Whenever the disciplinary authority is of the opinion
that there are grounds for inquiring into the truth of
any imputation of misconduct or misbehaviour
against a railway servant, it may itself inquire into,
or appoint under this rule or under the provisions
H ofihe Public Servants (Inquiries) Act, 1850, as the
UNION OF INDIA v. ALOK KUMAR 59
[SWATANTER KUMAR, J.]
case may be, [a Board of Inquiry or other authority] A
to inquire into the truth thereof. ·
(3) Where a Board of Inquiry is ~ppointed under sub-
ru le (2) it shall consist of not less than two
members, each of whom shall be higher in rank B
than the Railway servant against whom the inquiry
is being held an none of whom shall be subordinate
to the other member or members, as the case may
be, of such Board.
Explanation: c
Where the disciplinary authority itself holds the
inquiry, any reference in sub-rule (12) and in ,:;1,;~
rule (14) to sub-rule (25), to the inquiring authority
shall be construed as a reference to the disciplinary 0
authority."
20. Sub rule 6 of Rule 9 states that, where it is proposed
to hold an inquiry against a railway servant under Rule 9 and
Rule 10, there a charge sheet and imputation of conduct and
misbehaviour upon the said officer shall be served and the E
procedure as specified shall be followed. The language of this
rule. clearly shows that there is a discretion vested in the
disciplinary authority, enabling it to hold the inquiry itself or get
the truth of imputations inquired by any 'other authority' in terms
of the Rule. It will be appropriate to read Rule 9(1) and 9(2) F
together but cautiously. Rule 9(1) starts with a negative
ianguage putting an embargo on passing of an order imposing
penalties as specified under clause 5 to clause 9 of Rule 6,
major penalties can be imposed except after an inquiry held.
The inquiry contemplated can be held as per the procedure G
spelt out in Rule 9 and Rule 10 of these Rules. The other mode
of holding an inquiry is in the manner provided by the Public
$ervice Inquiries Act, 1850, when such inquiries are held under
that Act. The language of Rule 9 of the Rules, therefore, clearly
demonstrates that the Rules and the Act are neither inter- H
60 SUPREME COURT REPORTS [2010) 5 S.C.R.
A dependent nor convey a legislative intent that a departmental
inquiry has to be held under both collectively or at the discretion
of the disciplimiry authority. We have already clarified it above,
that the provisions of the Act are applicable to a very limited
class of persons i.e., the officers who are removable or liable
B to be dismissed from service only with the sanction of the
Government. The Rules, as framed, are applicable to non-
gazetted officers and officials of the Department of Railways
except Grade~A officers specified under Schedule 3 of the
Rules. Thus, under the scheme of the Rules and the Act and
c _ particularly, keeping in view the preamble of the Act, it is not
correct to say that absolute discretion is vested in the
authorities concerned to subject a person to departmental
inquiries in terms of the Rules or the Act They have to exercise
the power in accordance with the provisions of the relevant
D statute. Such an approach is amply indicated even in the
language of Rule 9(2). The Rules require the disciplinary
authority to form an opinion that the grounds for inquiry into the
truth of imputations of misconduct or misbehaviour against the
railway servant exists. Further, that they have enquired into the
matter. Then, such inquiry may be conducted by the disciplinary
E authority itself or it may appoint unde'r the Rules a Board of
Inquiry or other authority to enquire into the truth thereof.
Formation of such an opinion is a condition precedent for the
disciplinary authority, whether it intends to conduct the inquiry
under the Rules or under the Act as the case may be. The
F expression "as the case may be" clearly suggests that law which
will control such departmental inquiry would depend upon the
class of officers/officials whose misconduct or misbehaviour
subject them to sUch inquiry. If the employee is covered· under
the Act, the disciplinary authority shalfhave to appoint an inquiry
G officer and proceed with the inquiry under the provisions of the
Act, whereas if he is covered un:::ler the Rules, the procedure
prescribed under the Rules will have to be followed.
21. Other important feature in the language of the Rule is
H appoint under this Rule a Board of Inquiry or other Authority.
UNION OF INDIA v. ALOK KUMAR 61
[SWATANTER KUMAR, J.]
What shall be the constitution of the Board of Inquiry and how A
the same would proceed further with the inquiry has been stated
in sub-rules 3, 4 and 5 of Rule 9 of the Rules. The expression
"other authority" has neither been explained nor defined under
the Rules. In terms of Rule 2(1) (2), the words which have not
been defined under these Rules shall be deemed to have been B
assigned the same meaning as assigned under the Indian
Railway Act, 1890.
22. Even the Indian Railway Act does not define the term
"authority" though this"expression has been used in conjunction C
with other words in the Rules as well as the Act. In absence of
any specific definition or meaning we have to rely upon
understanding of this expression in common parlance. In
common parlance, the word 'authority' is understood to be,
power to exercise and perform certain duties or functions in
accordance with law. Authority may vest in an individual or a D
person by itself or even as a delegatee. It is the right to exercise
power or permission to exercise power. Such permission or
right could be vested in an individual or a body. It can also be
in conferment of power by one person to another. This
expression has been used differently in different statutes and E
can be given a different meaning or connotation depending
upon the context in which it is used. The purpose and object of
using such expression should be understood from the
provisions of the relevant law and the purpose sought to be
achieved. The word 'authority' is derived from the latin word F
auctoritas, meaning intention, advice, opinion, influence or
command which originate from an auctor, indicating that
authority originates from a master, leader or author, and
essentially is imposed by superior upon inferior either by force
of law (structural authority) or by force of argument (sapiential G
authority)
23. Farlex Free Dictionary explains the word 'authority' as
follows:
"Authority n. permission, a right coupled with the power to H
62 SUPREME COURT REPORTS [2010] 5 S.C.R.
A do an ·act or order others to act. Often one person give~ ·
another authority to .act, as an employer to an employee,
a principal to an agent, a corporation to its officers, or
governmental empowerment to perform certain functions .
. There are different types of authority including "ap~arent ·
B authority" when a principal gives an agent various signs
of authority to make others believe he or she has authority,
"express authority" or "limited authority" which spell out
exactly what authority is granted (usually a written set of
instructions), "implied authority" which flows from the
c position one holds, and "general authority" which is the
broad power to act for another.
Oxford Dictionary explains theword as under:
"1. (a) The power to enforce laws, exact obedience,
D command, determine, or judge.
(b) One that is invested with this power, especially
a government or body of government officials : land titles
issued by the civil authority .
.E 2. Power-assigned to another; authorization: Deputies
were given authority to make arrests.
Merrium Webster's Law Dictionary, 1996 explains the
word as under :
F
"Authority pl. - ties
1. an official decision of a court used esp. as a precedent.
2. (a) a power to act est. over others that derives from
G status, position, or office. Example : the authority of the
president.
(b) the power to act that is officially or formally granted (as
by statute, corporate bylaw, or court order).
H 3........
' ,.,.· -\ , ~
f \ '. :t~: ...
-..-. '"' ". ·,
UNION OF INDIA v. ALOK KUMAR 63
[SWATANTER KUMAR, J.]
4 (a) a government agency or corporation that administers. A
a revenue-producing public enterprise. Example : the
transit authority
(b) a government agency or public office responsible
for an area of regulation. Example : should apply for a
8
permit to the permitting authority."
In Law Lexicon, 2nd Edition, 1997 pg. 171, the word
'authority' has been explained and elucidated as follows :
"A person or persons, or a body, exercising power of c
command; generally in the plural: as, the civil and military
authorities. Power or admitted right to command or to act,
whether original or delegated: as the authority of a prince
over subjects and of parents over children ; the authority
of an agent to act for his principal. An authority is general 0
when it extends to all acts, or all connected with a particular
employment, and special when confirmed to a single act.
"Authority, is nothing but a power to do something; it is
sometimes given by word, and sometimes by writing; also
it is by writ, warrant, commission, letter of attorney & c. and E
sometimes by law. The authority that is given must be to
do a thing lawful: for if it be for the doing anything against
law, as to beat a man, take away his goods, or disseise
him of his lands this will not be a good authority to justify
him that doth it.: · F
"Authority (In contracts) the lawful delegation of power by
one person to another.
Authority (In administrative law) is a body havin'g jurisdiction
in certain matters of a public nature. G
Authority. Permission. Right to exercise powers; to
implement and enforce laws; to exact obedience; to
cornmand; to judge. Control over; jurisdiction. Often
synonymous with power. The power delegated by a H
64 SUPREME COURT REPORTS [2010) 5 S.C.R.
A principal to his agent. The Jawful delegation_ of power by
one person to another. Power.()f agent to affect legal
relations of principal by acts done in acsordance with
principal's manifestatiori_s of consent to agent."
24. It is clear from above that there is some unanimity as
8
to what meaning can be given to the expression 'authority'. The
authority, therefore, should be understood on its plain language
and without necessarily curtailing its scope. It will be more
appropriate to understand this expression and give it a meaning
which should be in conformity with the context and purpose in
C which it has been used. The 'other authority' appearing in Rule
9(2) is intended to cover a vast field and there is no indication
of the mind of the framers that the expression must be given a
restricted or a narrow meaning. It is possible that where the
authority is vested in a person or a body as a result of
D delegation, then delegatee of such authority has to work strictly
\ within the field delegated. If it works beyond the scope of
delegation, in that event it will be beyond the authority and may
even, in given circumstances vitiate the action.
E 25. Now, we have to examine the argument of the
respondents before the court that the .expression 'other authority'
shall have to be construed to cover only the persons who are
in the service of the railways. In other words, the contention is
that the expression 'person' used under Section 3 of the Act
and expression 'authority' used under Rule 9(2) contemplates
F
the person to be in service and excludes appointment of an
inquiry officer (authority) of a retired railway officer/official.
26. Heavy reliance was placed by the respondents upon
the judgment of this Court in the case of Ravi Malik v. National
G Film Development Corporation Ltd. & Ors. [2004 (13) SCC
427). We have already discussed at some length the scheme
of the Rules. As already noticed, we are not required to discuss
in any further elaboration the inquiries taken under the Act,
inasmuch as none of the respondents before us have been
H subject to public departmental inquiry under the provisions of
UNION OF INDIA v. ALOK KUMAR 65
[SWATANTER KUMAR, J.]
the Act. Rule 9 (2) requires the authority to form an opinion, A
whether it should hold the inquiry into the truth of imputation.of _
misconduct or misbehaviour against the railway servant itself
or should it appoint some other authority to do tfie needful.
Thus, there is an element of discretion vested in the competent .
authority to appoint 'other authority' for the purposes of B
conducting a departmental inquiry. It is a settled principle of
interpretation that exclusion must either be specifically provided
or the language of the rule should be such that it definitely
follows by necessary implication. The words of the rule,
therefore, should be explicit or the intent should be irresistibly c
expressed for exclusion. If it was so intended, the framers of
the rule could simply use the expression like 'public servant in
office' or 'an authority in office'. Absence of such specific
language exhibits the mind of the framers that they never
intended to restrict the scope of 'other authority' by limiting it
0
to the serving officers/officials. The principle of necessary
implication further requires that the exclusion should be an
irresistible conclusion and should also be in conformity with the
purpose and object of the rule.
27. The learned counsel appearing for the respondents E
wanted us to accept the argument that provisions of Rule 9 (2)
have an implicit exclusion in its language and exclusion is
absolute. That is to say, the framers have excluded
appointment of former employees of Railway Department as
other authority (inquiry officer) under these provisions. We find . F
no merit in this contention as well. An exclusion clause should
be reflected in clear, unambiguous, explicit and specific terms
or language, as in the clauses excluding the jurisdiction of the
court the framers of the law apply specific language. In some
cases, as it may be, such exclusion could be read with G
reference to irresistible implicit exclusion. In our opinion the
language of Rule 9(2) does not support the submission of the
respondents. Application of principle of exclusion can hardly be
inferred in absence of specific language. Reference in this
regard can be made to the judgment of this Court in the case H
66 SUPREME COURT REPORTS [2010] 5 S.C.R.
A of New Moga Transport Co. v. United India Insurance Co. Ltd.
[AIR 2004 SC 2154].
28. In the present case, neither ofthese ingredients appear
to be satisfied. Ultimately, what is the purpose of a departmental
inquiry? It is, to put to the delinquent officer/official the charges
8
or article of charges and imputation and seek his reply in the
event of there being no substance to hold an inquiry in
accordance with the rules and principles of natural justice. The
inquiry officer appointed by the disciplinary authority is a
C delegatee and has to work within the limited authority so
delegated to him. The charges and article of charges and
imputations are·served by the disciplinary/competent authority.
The inquiry report is submitted again to the competent authority
which is expected to apply its mind to the entire record and then
decide whether any punishment should be imposed upon the
D delinquent of~icer or not. Thus, all substantive functions are
performed by the disciplinary or the specified authority itself. It
is only an interregnum inquiry. It is conducted by the delegatee
of the said authority. That being the .purpose and specially.
keeping in mind the language of Rule 9 (2), we are unable to
E accept the contention that 'other authority' has to be a person
in service alone. Thus, it is not only the persons in service who
could be appointed as inquiry officers (other authority) within the
meaning of Rule 9(2). Reliance placed by the respondents upon
the judgment of this Court in the case of Ravi Malik (supra) is
F hardly of any assistance to them. Firstly, the facts and the Rules
falling for consideration before this Court in that case were
entirely different. Secondly, the Court was concerned with the
expression 'public servant' appearing in Rule 23 (b) of the
Service Rules and Regulations, 1982 of the National Film
G Development Corporation. The.Court expressed the view that
public servant should be understood in its common parlance and
a retired officer would ~ot fall within the meaning of public
servant, as by virtue of his retirement he loses the characteristics
of being a public servant. That is not the expression with which
H we are concerned in the present case. Rul.e 9 (2) as well ~s
UNION OF INDIA v. ALOK KUMAR 67
[SWATANTER KUMAR, J.]
Section 3 of the Act have used a very different expression i.e. A
'other authority' and 'person/persons'. In other words, the
absence of the word public servant of the Government is
., conspicuous by·its very absence. Thus, both these expressions,
even as per the dictum of the Court should be interpreted as
understood in the common parlance. Another factor which we B .
may notice is that the definition of the public servant appearing
in the Indian Penal Code (for short 'the Code'), reliance upon
which was placed by the respondents, was not brought to the
notice of the Court while dealing with the case of Ravi Malik
(supra). In terms of Section 21 of the Code a public servant c
denotes a person falling under any of the descriptions stated
in the provision. While it refers to a different kind of persons it
also brings within its ambit every arbitrator or every person to
whom any cause or matter has been referred for decision or
report by any court or any other competent public authority.
0
Furthermore, as per the 12th clause of inclusion, in this very
section, even "every person" can be a public servant. In fact, in
terms of Section 21 (a) a person who is in service of the.
Government or remunerated by fees or commission for the
purpose of any public duty of a Government is also a public
servant. E
29. Thus, a person who is engaged by a competent
authority to work on a fee or a fixed remuneration can be a
public servant. We fail to understand then how a person
engaged for the purposes of performing a delegated function F
in accordance with law would not be 'other authority' within the
meaning of the Rule 9(2). The Rule has not specified any
qualifications or pre-requisites which need to be satisfied
before a person can be.appointed as an inquiry officer. It has
been left to the discretion of the disciplinary authority. Unless G
such exclusion of a former employee of the Government was
spelt out specifically in the Rule, it will be difficult for the Court
to introduce that element and the principle of implication
simplicitor. Another aspect of the matter which would require
deliberation of the Court is that, the competent authority in the H
68 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Department of Railways as well as the Railway Board, Ministry
of Railways, Government of India has issued certain circulars,
specifically~contemplating .preparation of a panel of former
officers/employees of the railway department, who can be
appointed as inquiry officers to conduct the departmental
B inquiry, as the disciplinary/competent authority. Firstly, the
circular is stated to have been issued on 16th July, 1998
whl:!rein it has been noticed by the authoritie·s that a large .
. number of cases are coming up before the Vigilance
Department. These cases rel~te to corruption and other serious
c irregularities. Number of such cases pertain to non-gazetted
staff. An inquiry is essentially conducted before imposition of
major penalty in terms of Rule 9(2). Number of cases have been
pending at the inquiry stage for a considerable time and cannot
be disposed of because of non-completion. So, in order to
D liquidate the large outstanding position of department cases
expeditiously, it was felt necessary to empanel certain retired
· senior-scale and JA Grade officers who would be relatively free
to undertake the inquiries. This further led to the criteria of
eligibility, remuneration and the work expected to be performed
by the former employees to be appointed as inquiry officers.
E Again a circular is stated to have been issued on 16th October,
2008 on the same lines and taking a view that the former
employees could be appointed as inquiry officers. Of course,
the circular of 2008 may not be of great relevancy before us
as the charge sheet was served upon the delinquent officer/
F official much prior to the implementation of this circular.
However, the circular of 1998 is relevant.
30. The contention raised before us is that the circular
issued by the appellants is in contradiction to the language of
G Rule 9(2). It is a settled rule that a circular cannot supersede
the provisions of the Rules and thus appointment of the former
employees of the railway department as inquiry officer is
impermissible and the appellants had no jurisdiction to issue
such circular. On the other hand, it is contended on behalf of
H the appellant, that special instructions can be issued by the
UNION OF INDIA v. ALOK KUMAR 69
[SWATANTER KUMAR, J.]
department for dealing with its affairs and such circulars are , A
permissible. It is also submitted that, the circular being in
furtherance to the provisions of law would even prevail over the
Rules without having been issued for a specific purpose.
Reliance is placed upon the judgment of this Court in the case
of Union oflndia & Ors. v. Virpal Singh Chauhan & Ors. [1995 B
(6) sec 684). Firstly, we are unable to see any conflict, much
less the contradiction between the language of Rule 9(2) and
the circular of 1998 issued by the appellants. Under Rule 9(2),
the disciplinary authority has the discretion to appoint a 'Board
of Inquiry' or 'other authority' to conduct inquiry against the c
delinquent officer/official. The circular only aids itfurther while
saying that in the interest of the administr~tion and in
consonance with the Rules, the former/retired officers of the
railway department who satisfy the eligibility criteria can be.
appointed as inquiry officer and submit their report to the
0
disciplinary authority in accordance with law. It is Clear that the
cirr.ular issued is only supplementing Rule 9(2) and is in no way
in conflict with the language or spirit of Rule 9(2). The argument
advanced on behalf of the respondents is that in the event of
clear conflict between circulars ana the statutory rules, the
circular cannot be permitted to prevail. This argument would be E
of worth consideration only if the respondents are able to
demonstrate before the Court without ambiguity that it is a case
of conflict and the circular issued is in terms contrary to the
language of the statute.
F
31. We are unable to see any such conflict or contradiction.
When a circular is issued for the purposes of supplementing
the removal of ambiguity in the Rule or to achieve the purpose
of the Rule more effectively, it can hardly be said that there is a
conflict between the two. The matter shall certainly be on a G
different footing, where the Rule by a specific language or by
necessary implication makes such exclusion or provides that
·a particular class of persons cannot be appointed as authority
(inquiry officer). It may also be true in the case where the Rule
itself makes it mandat9ry for the disciplinaryJ~uthority to appoint H
70 SUPREME COURT REPORTS . [2010] 5 S.C.R.
A a particular class of persons and no other as inquiry officers.
While examining the provisions of vesting of discretion, it cannot
be said that they should be interpreted in a manner which
would take. away the discretion contemplated under the Rule.
Rather it would be appropriate to adopt an. interpretation which
B would further the object of such rule. In the case of Virpal Singh
Chauhan (supra), this Court was concerned with the circular/
letters providing for reservation in favour of SC & ST and their
operation on the subject of seniority as between reserved and
general category candidates. Certain instructions had been
c issued and after perusing the facts·of that case this Court took
the view that, the Railway Board circulars which are provided
specifically for such a situation and are not being violative of
the constitutional provisions, should prevail and given effect to.
In that case also it was not brought to the notice of the Court
that the letter/circular ·was in any way inconsistent with the
0
provisions of any law, as in the present case the respondents
have failed to demonstrate that the circular issued is in conflict
with or opposed to any specific rule enacted under proviso to
Article 309 of the Constitution or any other constitutional
E protection. Once there is no conflict, then the Rule and the
circular should be harmoniously read.
32. Another indication under the Rules which is suggested,
is non-application of the Rule of strict construction to the
provisions with regard to appointment of an Inquiry Officer and
F where the expressions Appointing Authority, Disciplinary
Authority and Appellate Authority have been duly explained and
provided for, either under the Rules or in the schedule to these
Rules. AsO. already noticed, the Schedule specifies the powers
of the respective authorities to take disciplinary action against
G the delinquent officer, either in certain terms or even by
·interpretation, itdoes:not suggest which class of persons should
or should not be appointed as inquiry officers. On the contrary,
Rule 9 (2) specifically empowers the Disciplinary Authority to
inquire into the matter ~tself or appoint another authority to
. H conductthe inquiry. In other words, the functions of the Inquiry
UNION OF INDIA v. ALOK KUMAR 71
[SWATAN~ER KUMAR, J.]
Officer are that of a delegating nature and this delegation ex A
facie, is limited delegation. An Inquiry Officer is not even entitled
to suggest the punishment unless the Rule so requires
specifically, which is not the case here. It is a settled rule that
the provisions of an Act/Rule should be examined in their
entirety along with the scheme before a particular meaning can B
be given to an expression or sentence used in a particular
language. Thus we must examine the Rules in their entirety
along with the conditions of the Schedule and not merely look
at Rule 9 (2) in isolation.
33. Still another aspect of the case cari be that, the C
expression "public servant" cannot be equated to the term
"other authority". Both these expressions cannot be treated as
inter-changeable or synonymous. They have different
connotations and meaning in law. "Public servant" is a term
which is well defined and explained in the field of law, while D
"authority'' is a generic term and is used in different places with
different meanings and purposes. 'Authority' thus is an
expression of wide magnitude and is frequently used not only
in legal jurisprudence but also in administrative and executive
field. Therefore, it is to our mind not permissible to permit E
restricted meaning of this term.
34. It was also contended on behalf of the respondents that
the competent authority exercising power under Rule 9 (2) is
vested with a choice whether to take action under these Rule F
or under the Act. Emphasis is laid on the language of Rule 9
(2) while submitting that the expression "other authority" would
have to be read ejusdem generis to the earlier part of Rule 9
(2) and that they must take colour from the earlier part of the
Rule. While reliance is placed upon the judgment of this Court G
in the case of Commissioner of Income Tax, Udaipur,
Rajasthan Vs. Mcdowell and Company Limited [2009 (10)
SCC 755) to contend that the Rules and the provisions of the
Act contemplate 'other authority' only as the persons in service.
We are not impressed with either of these submissions. Firstly,
H
72 SUPREME COURT REPORTS [2010] 5 S.C.R.
A the general rule stated in the case of Mcdowell and Company
(supra) is a matter relating to fiscal laws, the interpretation of
which is controlled by the rule of strict construction. We have
already discussed at some length that it is not possible for this
Court to apply the rule of strict construction to the provisions in
B question before us. Applicability of such doctrine to the rules
of procedure under the service jurisprudence can hardly be
justified.
35. The rule of ejusdem generis is applied where the
C words or language of which in a section is in continuation and
where the general words are followed by specific words that
rel~tes to a 'specific class or category. This Court in the case
of Mcdowel and Company Ltd. (supra) while discussing this
doctrine at some length held as under:
D "The principle of statutory interpretation is well known and
well settled that when particular words pertaining to a
class, category or genus are followed by general words are
construed as limited to things of the same kind as those
specified. This rule is lrnown as the rule of ejusdem
E generis. It applies when:
(1) the statute contains an enumeration of specific words;
(2) the subjects of enumeration constitute a class or
category;
. F
(3) that class or category is not exhausted by the
enumeration;
(4) the general terms follow the enumeration; and
G (5) there is no indication of a different legislative intent.
36. The maxim ejusdem generis is attracted where the
words preceding the general word pertains to class genus and
not a heterogeneous collection of items in the case of Housing
H. Board, Haryana' (supra).
UNION OF INDIA v. ALOK KUMAR 73
[SWATANTER KUMAR, J.]
37. The language of Rule 9(2), on its plain reading shows A
that th? words are disjunctive and therefore, this principle of
interpretation would be hardly applicable to the facts of the
present case. It is also incorred to suggest, much less to argue,
that under Rule 9 (2) a discreet cboice is vested under the
authority concerned. We have already indicated that tile Act is B
applicable to a special class of persons while Rules are
applicable to other cla.ss of persons including Grade - A to
Grade ,.... D. Once the provisions of the Act are attracted, a
public inquiry has to be held in accordance with the provisions
of the Act. The Rules and the Act, as self-contained codes c
within themselves, operate in a way without irppinging upon the
field of the other. There is hardly any discretion vested in the
competent authority, it is only for the purposes of conducting
an inquiry personally or through some other appointed authority
that the discretion is vested. In the event of delegation by the 0
competent authority, the delegatee authority has to function
within the limit of the authority delegated to it. At the cost of
repetition we may notice that neither in the Rules nor in the
provisions of the Act which are independent in their application,
there is any requirement or even suggestion that appointment E
of an authority or Board has to be essentially of a person in
service, even a former employee could be appointed so.
38. It will be useful to apply the rule of contextual
interpretation to the provisions of Rule 9. It would not be
permissible to import any meaning or make additions to the F
plain and simple language of Rule 9(2) in relation to "other
authority." The rule of contextual interpretation requires that the
court should examine every word of statute in its context, while
keeping in mind the preamble of the statute, other provisions
thereof, pari material statutes. if any, and the mischief intended G
~ro be remedied. Context often provides a key to the meaning
of the word and the sense it carries. It is also a well established
and cardinal principle of construction that when the rules and
regulations have been framed dealing with different aspects of
the service of the employees, the Courts would attempt to make H
74 SUPREME COURT REPORTS [2010] 5 S.C.R.
A a harmonious construction and try to save the provision, not
strike it down rendering the provision ineffective. The Court
would normally adopt an interpretation which is in line with the
purpose of such regulations. The rule of contextual
interpretation can be purposefully applied to the language of
B Rule 9 (2), particularly to examine the merit in the contentions
raised by respondent before us. The legislative background
and the object of both the Rules and the Act is not indicative of ·
any implied bar in appointment of former employees as inquiry
officers.
c .39. These principles are well established and have been
reiterated with approval by the courts, reference can usefully be
made to .the judgments of this court in the cases of Gudur
Kishan Rao v. Sutirtha Bhattachaarya, [(1998) 4 SCC 189],
Nirmal Chandra Bhattacharjee v. Union of India, [1991 (Supp
Di (2) SCC 363], Central Bank of India v. State of Kera/a, [(2009)
4 SCC 94], Housing Board of Haryana v. Haryana Housing
Board Employees Union, [(1996) 1 SCC 95].
40. The circulars have been issued by the Department of
E Railways, from time to time, to recognize preparation of panels
for appointing inquiry officers as per the terms and conditions,
including the eligibility criterion stated in those circulars. We
may notice here that, there is no challenge in any of the
applications filed before the Tribunal to any of the circulars,
F despite the fact that they have been duly noticed in the
impugned judgments. By passage of time and practice the
competent authorities and even the delinqueht officers in
disciplinary cases have given effect to these circulars and they
were treated to be goqd in law. It is only in· the arguments
G addressed before this Court, where it is suggested that these
circulars supersede or are in conflict with the Rules. This part
of the contention we have already rejected.
41. It is not opposed to any canons of service jurisprudence
that a practice cannot adopt the status of an instruction,
H
UNION OF INDIA v. ALOK KUMAR 75
[SWATANTER KUMAR, J.)
provided it is in consonance with law and has been followed A
for a considerable time. This concept is not an absolute
proposition of law but can be applied depending on the facts
and circumstances of a given case. This Court in the case of
Confederation of Ex-Service Man Associations and Ors. v.
Union of India and Ors., [(2006) 8 sec 699) was concerned B
with providing of Medicare /Medical aid to ex-servicemen and
the scheme framed by the Government to provide ex-defence
personnel medical services provided they paid "one-time
contribution", was held not to be arbitrary and based on the
practice followed earlier. In such circumstances, this Court held c
as under:
"In such cases, therefore, the Court may not insist an
administrative authority to act judicially but may still insist
it to act fairly. The doctrine is based on the principle that
good administration demands observance of D
reasonableness and where it has adopted a particular
practice for a long time even in the absence of a provision
of law, it should adhere to such practice without depriving
its citizens of the benefit enjoyed or privilege exercised."
E
42. A practice adopted for a considerable time, wh1cn is
/ not violative of the Constitution or otherwise bad in law or
against public policy can be termed good in law as well. It is a
settled principle of law, that practice adopted and followed in
the past and within the knowledge of the public at large, can F!
legitimately be treated as good practice acceptable in law.
What has been part of the general functk>ning of the authority
concerned can safely be adopted as good practice, particularly,
when such practices are clarificatory in nature and have been
consistently implemented by the concerned authority, unless it G
is in conflict with the statutory provisions or principal document.
A practice which is uniformly applied and is in the larger public
interest may introduce an element of fairness. A good practice
of the past can even provide good guidance for future. This
accepted principle can safely be applied to a case where the H
76 SUPREME COURT REPORTS (2010) 5 S.C.R.
A need so arises, keeping in view the facts of that case. ]'his view
has been taken by different High Courts and one also finds
glimpse of the same in a judgment of this Court in the case of
Deputy Commissioner of Police & Ors. Vs. Mohd. Khaja Ali
(2000 (2) SLR 49).
B
43. There can be hardly any doubt that the practice of
appointing former employees had been implemented for quite
some time in the Departm~nt. We are .unable to see how this
practice is opposed to any statutory provision or even public
policy. To bar such a practice, there has to be a specific
C prohibition under the statutory provisions, then alone th~
argument raised on behalf of the respondents could have some.
merit.
44. We may also notice that in the issuance of the circulars
D by the Railways, larger public interest is served. The
background stated by the appellants necessitating the issuance
of these circulars, clearly stated that large number of cases of
departmental inquiries are pending and have not attained
finality, primarily for the non-availability of the inquiry officers.
E Even that consideration would tilt the balance, in achieving
larger ·public purpose and interest, rather than to take an
approach which would add to the misery of the Railway officials
who are facing departmental inquiries. It is a known fact that in
most of the inquiries the ~_elinquent is placed either under
F suspension or faces other adverse consequences:
45. In the present case even the respondents before us
have participated in the entire inquiry and received the order
of punishment without any protest. They; in fact, have admitted ·
to the established practice of appointment of former railway
G employees as inquiry officers. Tbe cumulative result of this
discussion is that, it is not possible for this Court to.hold, in the
facts and circumstances of the case, that the "other authority"
has to be only a person in service.
H
UNION OF INDIA v. ALOK KUMAR 77
[SWATANTER KUMAR, J.]
Non-furnishing of advise of Central Vigilance A
Commission and its consequences
46. In its impugned judgment the Tribunal accepted the
contention of the respondents that the CVC's advice/note
should have been made available to the delinquent during the B
stage of inquiry. While referring to another judgment of the
Tribunal itself, it concluded that the case was akin to the referred
judgment and the notes of the eve should have been furnished
and thus set aside the order of punishment. It will be useful to
refer to the reason and conclusion recorded by the Tribunal in C
its order. There are only two paragraphs i.e., Paragraph Nos.
17 and 18 of the Tribunal's judgment which have been
recorded in this regard:
"17. We are of the opinion that this case is akin to the two
cases mentioned above as far as the non supply of CVC's D
advise is concerned.
18. If the advise of the Cenfral Vigil~mce Commission has
been considered during the course ofthe disciplinary
proceedings. the same should have been supplied to the E
delinquent official if asked for at appropriate time. In very
special cases, such request may not be considered, but
in such situations, the competent authority should have
recorded the reasons for not supplying such documents."
47. The High Court has really not dealt with this issue in F
any further elaboration, except affirming the order of the Tribunal.
The High Court mainly considered the arguments founded on
the interpretation of Rule 9(2). The reasons recorded by the
Tribunal are in no way sufficient to sustain that finding. Before
setting aside the impugned orders on that ground, the Tribunal G
should have concluded in relation to certain facts. They be :
(a} Whether there were any eve notes having a direct
bearing on the inquiry in question,
H
78 SUPREME COURT REPORTS [2010] 5 S.C.R.
A (b) Whether such report was actually brought by the
delinquent officer,
(c) Whether such notes were actually taken into
consideration by the disciplinary authority while passing the
impugned orders and finally,
B
(d) Whether the delinquent officer has suffered de facto
prejudice as a result of non-furnishing of advise.
48. Unfortunately, the findings recorded by the Tribunal are
c entirely silent on the above material aspects, as is clear from
Paragraph Nos. 17 and 18 of its judgment.
49. From the records before us, it appears that the circular
issued by the Vigilance D~partment was actually asked for by
the delinquent officer in the application filed before the Tribunal
D and even in the reply filed before the High Court. It is nowhere
stated what was the relevancy of this alleged CVC note,
whether it had actually been taken into consideration and,
whether it had caused prejudice to the delinquent officer. All
these ingredients are not satisfied in the records before us. It
E is a settled rule of departmental proceedings that, it is for the
delinquent officer to specifically raise such an issue and
discharge the onus of prejudice. The concept of prejudice, we
shall discuss shortly. But for the present, we are only discussing
its factual aspect and the law relating thereto.
F
50. The documents and the circulars issued by the Central
Vigilance Commission, Government of India which have been
placed on record as Annexure R-3 dated 28th September, 2000
relate to furnishing of information of the eve advice and the
G purpose sought to be achieved as well as the need of the
employee's representation in that regard. The record is entirely
silent as to what were the comments of the eve and whether
they have been taken into consideration by the disciplinary
authority or not.
H 51. Despite the factual aspeQLof the case, the learned
UNION OF INDIA v. ALOK KUMAR 79
[SWATANTER KUMAR, J.]
counsel appearing for the appellants has relied upon the A
judgment of this Court in the case of Sunil Kumar Banerjee v.
State of West Bengal & Ors. [1980 (3) SCC 304), contending
that it was not necessary and no prejudice had been caused
to the respondent because of the aileged non-supply of the
Vigilance note. On the contrary, the learned counsel appearing s
for the respondents has relied upon the judgment of this Court
in the case of State Bank of India & Ors. v. D. C. Aggarwal &
Anr. [1993 (1) sec 13). to raise a counter plea that any
document taken into consideration for imposing a punishment
and if the CVC recommendations were prepared at the back c
of the officer, the order of punishment so passed would be liable
to be set aside. The proposition of law stated in the above two
judgments can hardly be disputed. What is really required to
be seen by the Court is, whether the duty to furnish such a
report arises out of a statutory rule or in consonance with the
0
principles of natural justice and whether non-furnishing of such
a report has caused any prejudice to the officer concerned.
52. From the aforenoticed facts it is clear that, there is
nothing on. record to show that the alleged CVC notes have
actually been taken into consideration and that the same have E
affected the mind of the disciplinary authority while considering
the defence of the delinquent officer and imposing punishment
upon him. Unless such notes were actually considered and had
some prejudicial effect to the interest of the delinquent officer,
it will not be necessary for the Court to interfere in the F
aepartmental inquiry proceedings on that ground. In the case
of Sunil Kumar Banerjee (supra), where the Vigilance
Commissioner had been consulted, there 'l(Vas alleged non-
supply of Vigiiance Commissioner's report to the officer. A
three Judge-Bench of this Court took the view that the findings G
of the disciplinary authority and its decision was not tainted and,
therefore, would not be termed as illegal. The Court in Para 4
of the judgment held as under:
"4. We do not also think that the disciplinary authority
H
80 SUPREME COURT REPORTS (201~}--S S.C.R.
A committed any serious or material irregularity in consulting
the Vigilance Commissioner, even assuming that it was
so done. The conclusion of the disciplinary authority was
not based on the advice tendered by the V,igilance
Commissioner but was arrived at independently, on the
B basis of the charges, the relevant material placed before
the Inquiry Officer in support of the charges, and the
defence of the delinquent officer. In fact the final
conclusions of the disciplinary authority on the several
charges are so much at variance with the opinion of the
c Vigilance Commissioner that it is impossible to say that
the disciplinary authority's mind was in any manner
influenced by the advice tendered by the Vigilance
Commissioner. We think that if the disciplinary authority
arrived at its own conclusion on the material available to
it, its findings and decision cannot be said to be tainted
D
with any illegality merely because the disciplinary authority
consulted the Vigilance Commissioner and obtained his
views the very same material. One of the submissions of
the appellant was that a copy of the report of the Vigilance .
Commissioner should have been made available to him·
E when he was called upon to show cause why the
punishment of reduction in rank should not be imposed
upon him. We do not see any justification for the insistent
request made by the appellant to the disciplinary authority
that the report of the Vigilance Commissioner should be
F made available to him. In the preliminary findings of the
disciplinary authority which were communicated to the
appellant there was no reference to the view of the
Vigilance Commissioner. The findings which were
communicated to the appellant were those of the
G disciplinary authority and it was wholly unnecessary for the
disciplinary authority to furnish the appellant with a copy
of the report of the Vigilance Commissioner when the
findings communicated to the appellant were those of the
disciplinary authority and not of the Vigilance
H Commissioner. That the preliminary findings of the
UNION OF INDIA v. ALOK KUMAR 81
[SWATANTER KUMAR, J,]
disciplinary authority happened to coincide with the views A
of the Vigilance Commission is neither here nor there."
53. No rule has been brought to our notice where it is a
mandatory requirement for the disciplinary authority to consult
the vigilance officer and take the said report into consideration 8
before passing any order. If that was the position, the matter
would have been different.
54. In the present case, firstly, no such rule has been
brought to our notice and secondly, there is nothing on record
to show that the alleged notes of the eve were actually taken C
into consideration and the same effected or tainted the findings
or mind of the authority while passing the orders of punishment.
Thus, in our view, the findings of the Tribunal cannot be
sustained in law. Unless the Rules so require, advice of the
CVC is not binding. The advice tendered by the CVC, is to D
enable the disciplinary authority to proceed in accordance w~h
law. In absence of any specific rule, that seeking advice and,
implementing thereof is mandatory, it will not be just and proper
to presume that there is prejudice to the concerned officer.
Even in the cases where the action is taken without consulting E
the Vigilance Commission, it necessarily will not vitiate the order
of removal passed after inquiry by the departmental authority.
Reference in this regard can also be made to the judgment of
this court in the cases of State of A.P. & Anr. V. Dr.
Rahimuddin Kamal [1997 (3) SCC 505) and Deokinandan F
Prasad v. State of Bihar [1971 (2) SCC 330). In the case of
Dr. Rahimuddin Kamal (supra), this Court was concerned with
Rule 4(2) of the Andhra Pradesh Civil Services (Disciplinary
Proceedings Tribunal) Rules, 1961, where the expression 'shall'
had been used in the Rules, making it obligatory upon the part G
of the Government, which required it to examine the records
and after consulting the Head of the Department, pass an
appropriate order. But before taking a decision, the
Government shall consult the Vigilance Commission. In that case
the order of removal from service was passed in accordance
with law and after conducting appropriate inquiry but without H
82 SUPREME COURT REPORTS [2010] 5 S.C.R.
A consulting the Commission. The Court expressed the view that
the expression 'shall' had to be construed as 'may' and non
consultation with the Commission would not render the order
illegal or ineffective. In view of the larger Bench judgment and
particularly, with reference to the facts of the present case, we
B are unable to accept the contention of the respondents before
us.
55. In its letter dated 28th December, 2001, the respondent
claimed certain documents during the course of departmental
C inquiry. In Annexure-1 to this letter, at Sr. No.1, he had prayed
for the circular dated 28th September, 2000 from CVC to
CVO's of all the Ministries. At Sr. No. 2, he had asked for
CVC's first stage advice and Railway's note sent to CVC for
arriving at the first stage advice. Thus, both these documents
were of a very general nature and in no way suggested that the
D concerned disciplinary authorities had taken into consideration
any particular notes advising action against the said officer.
Some element of prejudice is essential before an order of
imposing penalty can be interfered with by the Court, particularly
when the inquiry otherwise had been conducted in accordance
E with law and no grievance was raised by the respondent on that
behalf except the points raised for consideration of the Tribunal.
Thus, we are of the view that no statutory rule or regulation has
been violated by the appellant nor any eve notes were actually
taken into consideration for imposing the punishment upon the
F respondent. Thus, the second argument of the respondent also
merits rejection.
Whether the de facto prejudice was a condition
precedent for grant of relief and if so, whether
G respondents had discharged their onus.
56. In the submission of the appellants, there is no violation
of any statutory rule or provision of the Act. Departmental inquiry
has been conducted in accordance with the Rules and in
consonance with the principles of natural justice. The
H respondents have not suffered any prejudice, much less
UNION OF INDIA v. ALOK KUMAR 83
[SWATANTER KUMAR, J.]
prejudice de facto, either on account of retired employees of A
the railway department being appointed as inquiry officers in
terms of the Rule 9(2) of the Rules or in the case of Alok Kumar,
because of alleged non furnishing of CVC report. The
contention is that the prejudice is a sine qua non for vitiation of
any disciplinary order. However, according to the respondents, s
they have suffered prejudice ipso facto on both these accounts
as there are violation of statutory rules as well as the principles
of natural justice. In such cases, by virtue of operation of law,
prejudice should be presumed and judgment of the Tribunal and
the High Court call for no interference. c
57. Earlier, in some of the cases, this Court had taken the
view that breach of principle of natural justice was in itself a
prejudice and no other 'de facto' prejudice needs to be proved.
In regard to statutory rules, the prominent view was that the
violation of mandatory statutory rules would tantamount to D
prejudice but where the Rule is merely dictatory the element of
de facto prejudice needs to be pleaded and shown. With the
development of law, rigidity in these Rules is somewhat relaxed.
The instance of de facto prejudice has been accepted as an
essential feature where there is violation of non-mandatory rules E
or violation of natural justice as it is understood in its common
parlance. Taking an instance, in a departmental inquiry where
the Department relies upon a large number of documents
majority of which are furnished and an opportunity is granted
to the delinquent officer to defend himself except that some F
copies of formal documents had not been furnished to the
delinquent. In that event the onus is upon the employee to show
that non-furnishing of these formal documents have resulted in
de facto prejudice and he has been put to a disadvantage as
a result thereof. Even in the present cases, Rule 9 (2) G
empowers the disciplinary authority to conduct the inquiry itself
or appoint other authority to do so. We have already held that
the language of Rule 9(2) does not debar specifically or even
by necessary implication appointment of a former employee of
the Railways as inquiry officer. Even if, for the sake of H
84 SUPREME COURT REPORTS [2010] 5 S.C.R.
A argument, it is assumed otherwise, all the respondents have
participated in the departmental inquiries without protest an'd
it is only after the orders of the competent authority have been
passed that they have raised this objection before the Courts.
In tl"1e light of the peculiar facts and circumstances of the
B present case, it is obligatory upon the respondents to show that
they have suffered some serious prejudice because of
appointment of retired Railway officers as inquiry officers. We
have no hesitation in stating that the respondents have no way
satisfied this test of law. Thus, if their argument was to be
c accepted on the interpretation of Rule 9 (2), which we have
specifically objected, even then the inquiries conducted and the
order passed thereupon would not be vitiated for this reason.
58. Doctrine of de facto prejudice has been ap'plied both
in English as well as in Indian Law. To frustrate the departmental
D inquiries on a hyper technical approach have not found favour
with the Courts in the recent times. In the case of S.L. Kapoor
v. Jagmohan [1980 (4) SCC 379], a three Judge Bench of this
Court while following the principle in Ridge v. Baldwin stated
that if upon attmitted or indisputable facts only one conclusion
E was possible, then in such a case that principle of natural justice
was in its selfprejudice would not apply. Thus, every case would .
have to be examined on its own merits and keeping in view
the statutory rules applying to such departmental proceedings.
The Court in S.L. Kapoor (supra) held as under:
F
"18 In Ridge v. Baldwin [1964 AC 40, 68: 1963 2 All ER
66, 73] One of the arguments was that even if the appellant
have been heard by the Watch Committee nothing that he·
could have said could have made any difference. The
House of Lords observed at (p. 68):
G
"It may be convenient at this point to deal with an argument
that, even if as a general rule a watch committee must hear
a constable in its own defence before dismissing him this
case was so clear that nothing that the appellant could
H have said could have made any difference. It is at least
UNION OF INDIA v. ALOK KUMAR 85
[SWATANTER KUMAR, J.]
very doubtful whether that could be accepted as an A
excuse. But, even if it could, the watch committee would,
in my view, fail on the facts. It may well be that no
reasonably body of men could have reinstated the
ap!Jellant. But at between the other two courses open to
the watch committee the case is not so clear. Certainly, B
on the facts, as we know them the watch committee could
reasonably have decided to forfeit the appellant's pension
rights, but I could not hold that they would have acted
wrongly or wholly unreasonably if they have in the exercise
of their discretion decided to take a more lenient course." C
59. Expanding this principle further, this Court in the case
of K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43] held
as under:
"It is not possible to lay down rigid rules as to when the o
principles of natural justice are to apply, nor as to their
scope and extent. There must also have been some real
prejudice to the complainant; there is no such thing as a
merely technical infringement of natural justice. The
requirements of natural justice must depend on the facts E
and circumstances of the case, the nature of the inquiry,
the rules under which the tribunal is acting, the subject-
matter to be dealt with, and so forth."
60. In the case of ECIL v. B. Karunakar [(1993) 4 SCC
727], this Court noticed the existing law and said that the theory F
of reasonable opportunity and the principles of natural justice
have been evolved to uphold the rule of law and to assist the
individual to vindicate his just rights. They are neither
incantations to be invoked nor rites to be performed on all and
sundry occasions. Whether, in fact, prejudice has been caused G
to the employee or not on account of denial of report to him,
has to be considered on the facts and circumstances of each
case. The Court has clarified even the stage to which the
departmental proceedings ought to be reverted in the event the
order of punishment is set aside for these reasons. It will be H
86 SUPREME COURT REPORTS [2010] 5 S.C.R.
A useful to refer to the judgment of this Court in the case of
Haryana Financial Corporation v. Kai/ash Chandra Ahuja
[2008 (9) SCC 31] at page 38 where the Court held as under:
"From the ratio laid down in B. Karunakar it is explicitly
clear that the doctrine of natural justice requires supply of
B
a copy of the inquiry officer's report to the delinquent if such
inquiry officer is other than the disciplinary authority. It is
also clear that non-supply of report of the inquiry officer is
in the breach of natural justice. But it is equally clear that
failure to supply a report of the inquiry officer is in the
c breach of natural justice. But it is equally clear that failure
to supply a report of the inquiry officer to the delinquent
employee would not ipso facto result in the proceedings
being declared null and void and the order of punishment
non est and ineffective. It is for the delinquent employee
D to plead and prove that non-supply of such report had
caused prejudice and resulted in miscarriage of justice. If
he is unable to satisfy the court on that point, the order of
punishment cannot automatically be set aside."
E 61. The well established canons controlling the field of bias
in service jurisprudence can reasonably extend to the element
of prejudice as well in such matters. Prejudice de facto should
not be based on a mere apprehension or even on a reasonable
suspicion. It is important that the element of prejudice should
exist as a matter of fact or there should be such definite
F inference of likelihood of prejudice flowing from such default,
which relates statutory violations. It will not be permissible to
set aside the departmental inquiries in any of these classes
merely on the basis of apprehended prejudice.
G 62. In the light of the above enunciated rudiments of law,
let us revert to the two points argued before us. Firstly, the
contention of the respondents that Rule 9 (2) necessarily debars
appointment of former railway employees as inquiry officers
(other authority) is without any merit. Secondly, they have
H
UNION OF INDIA v. ALOK KUMAR 87
[SWATANTER KUMAR, J.]
suffered no prejudice at least none has brought to our notice A
from the record before us or even during arguments. The
contention was that this being violation of the statutory rule there
sha!I be prejudice ipso facto. We may also notice that the
circulars issued by the Department of Railways cannot be
ignored in their entirety. They have only furthered the cause B
contemplated under Rule 9 (2) of the Rules and in terms of
judgment of Virpal Singh Chauhan (supra) the Court had taken
the view that circulars should be read harmoniously and in given
circumstances, may even prevail over the executive directions
or Rules. c
63. We do not find any merit even in the contention that if
departmental inquiry has been conducted under the Rules of
1968 in accordance with law, principles of natural justice and
no de facto prejudice is pleaded or shown by cogent
documentation, the court would be reluctant to set aside the D
order of punishment on this ground alone. Secondly, the
argument in relation to non-furnishing of eve notes is again
without any foundation as it has not even been averred in the
application before the Tribunal, that these alleged notes were
part of the record and that they were actually considered by the E
Disciplinary Authority and such consideration had influenced the
mind of the competent authority while passing the impugned
orders. Absence of pleading of these essential features read
with the fact that no such documentation has been placed on
record except demanding circulars of the CVC, we are of the F
considered view that even on this account no prejudice, as a
matter of fact, has been caused to the delinquent officers (in
the case of Shri Alok Kumar). We are not able to accept the
contention addressed on behalf of the respondents that it is not
necessary at all to show de facto prejudice in the facts of the G
present cases. We may notice that the respondents relied upon
the judgment of this Court in the case of ECIL (supra), that
imposition of punishment by the Disciplinary Authority without
furnishing the material to the respondents was liable to be
quashed, as it introduced unfairness and violated sense of right H
88 SUPREME COURT REPORTS [2010] 5 S.C.R.
A and liberty of the delinquent in that case. No doubt in some
judgments the Court has taken this view but that is primarily on
the peculiar facts in those cases where prejudice was caused
to the delinquent. Otherwise right from the case of S.L. Kapoor
(supra), a three Judge Bench of this Court and even the most
B · recent judgment as referred by us in Kai/ash Chandra Ahuja's
case (supra) has taken the view that de facto prejudice is one
of the essential ingredients to be shown by the delinquent officer
before an order of punishment can be set aside, of course,
depending upon the facts and circumstances of a given case.
c . Judicia posteriora sunt in lege fortiori. In the later judgment the
view of this Court on this principle has been consistent and we
see no reason to take any different view. Prejudice normally
would be a matter of fact and a fact must be pleaded and
shown by cogent documentation to be true. Once this basic
feature lacks, the appellant may not be able to persuade the
0
Court to interfere with the departmental inquiry or set aside the
orders of punishment.
64. The judgment of the Tribunal and the High Court in our
view are contrary to the settled principles of law and thus cannot
E be sustained, therefore, we set aside the judgment of the
Tribunal as well as the High Court in all these cases. The
appeals are allowed. However, in the facts and circumstances
of the case we leave the' parties to bear their own costs.
K.K.T. Appeals allowed.
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