Analysis of the Tulsiram Patel Case on "holding inquiry in Appeal/Revision"
It may kindly be recalled that in Union of India vs. Tulsiram Patel (1985), 3 SCC 398), the Supreme Court has had the occasion to explain the scope and reach of article 309, 310 and 311, and in particular of the second proviso to article 311(2) of the Constitution. This case was decided by a five-judge Constitution Bench of the Supreme Court. Immediately thereafter, in Satyavir Singh Vs. Union of India ( (1985) 4 SCC 252), a three-judge Constitution Bench of the Supreme Court Gave a clear summary of the conclusions reached by the majority in Tulsiram Patel case. This summary was given by Maden, J. who earlier delivered the majority judgement in T.P. Case.
It may kindly be recalled that in Union of India vs. Tulsiram Patel (1985), 3 SCC 398), the Supreme Court has had the occasion to explain the scope and reach of article 309, 310 and 311, and in particular of the second proviso to article 311(2) of the Constitution. This case was decided by a five-judge Constitution Bench of the Supreme Court. Immediately thereafter, in Satyavir Singh Vs. Union of India ( (1985) 4 SCC 252), a three-judge Constitution Bench of the Supreme Court Gave a clear summary of the conclusions reached by the majority in Tulsiram Patel case. This summary was given by Maden, J. who earlier delivered the majority judgement in T.P. Case.
2. The
Department of Personnel & Training had issued an Official Memorandum dated
11 Nov., 1985 setting out therein what are essentially the conclusions reached
by the Supreme Court in the aforesaid two judgements.
3. The Supreme Court held that its
earlier decision in Challappan case ( (1976) 3 SCC 190) is not correct with
respect to the interpretation placed by it upon Rule 14 of the Railway
Servants, (Discipline and Appeal) Rules, 1968, and particularly upon the word
“consider” occurring in the last part of that rule and in conjunction with the
second proviso to article 311(2). The
consideration under Rule 14 of what penalty should be imposed upon a delinquent
railway servant must be ex-parte.
(iv) The Supreme Court gave an account of the
Railway Servants (Discipline and Appeal) Rules, 1968, and interpreted some of
them in paras 109 to 115 of its judgement in T.P. case and paras 6(94) to 6(96)
of its judgement in S.S. case. A perusal
of this account is useful.
4. In S.S.
case, the Supreme Court observed:
“A civil servant who has been dismissed or removed from
service or reduced in rank by applying to his case clause (b) of the second
proviso to Article 311 (2) or an analogous service rule can claim in appeal or
revision that an inquiry should be held with respect to the charges on which
such penalty has been imposed upon him unless a situation envisaged by the
second proviso is prevailing at the hearing of the appeal or revision
application. Even in such a case the
hearing or the appeal or revision application should be postponed for a
reasonable length of time for the situation to return to normal.
“In a case where a civil servant has been dismissed or
removed from service or reduced in rank by applying clause (c) of the second
proviso or an analogous service rule to him, no appeal or revision will lie if
the order of penalty was passed by the President or the Governor. If, however, the inquiry has been dispensed
with by the President or the Governor and the order of penalty has been passed
by the disciplinary authority ( a position envisaged by clause (iii) of Rule 14
of Railway Servants (Discipline & Appeal) Rules, 1968, and clause
(iii) of Rule 19 of the Central Civil
Services Classification, Control and Appeal) Rules, 1965, a departmental appeal
or revision, will lie. In such an appeal
revision the civil servant can ask for an inquiry to be held into alleged conduct unless at the
time of the hearing of the appeal or revision a situation envisaged by the
second proviso to Article 311 (2) is prevailing. Even in such a situation the hearing of the
appeal or revision application should be postponed for a reasonable length or
time for the situation to become normal.
The civil servant, however, cannot contend in such appeal or revision
that the inquiry was wrongly dispensed with by the President or the Governor.”
Those observations, in their turn, are based on the
findings of the court in para 137 of the judgement in T.P. Case.
5. The findings of the court, extracted in the previous
paragraph are not warranted by the provisions of article 311. In support of these findings, the court held
that “no prejudice could be caused to the Government or the Department if the
hearing of an appeal or revision application, as the case may be, is postponed
for a reasonable time (para.137 of the judgement in T.P. Case). The Court is blowing hot and cold at the same
time. While turning down Challappan
ruling, the Court held that the language used in the second proviso to article
311 leaves no scope for introducing into the second proviso some kind of
inquiry or opportunity to show cause by process of inference or implication,
that where there is express mention or certain things, then anything not
mentioned is excluded, and that considerations fair play
and justice do not enter into the picture.
If this be so, and perhaps rightly so, then it escapes logic how the
Court arrived at the findings extracted in para. 4 above which are by no means
warranted by the language employed in the second proviso. These findings are also open to other
objections mentioned in the following paragraphs.
6. In fact, in S.S. Case, the Supreme Court observed: “It is
important to note that the majority judgement in Tulsiram Patel case is more
beneficial to civil servants and confers greater rights upon them than
Challappan case did. According to
Challappan case, a civil servant to whom a service rule analogous to the second
proviso to Article 311(2) is sought to be applied has only the right to be
heard with respect to the penalty proposed to be imposed upon him. The majority judgement in Tulsiram Patel
case has, however, conferred upon the civil servants who have been dismissed or
removed from Service or reduced in rank by applying the second proviso to
Article 311(2) or an analogous service rule the right to a full and complete
inquiry in an appeal or revision unless a situation envisaged by the second
proviso is prevailing at the time of the hearing of the appeal or revision
application. Even in such a case under
the majority judgement the hearing of the appeal or revision application is to
be postponed for a reasonable length of time for the situation to become
normal. “(Vide paras 6(97), 6(99) and 8
in the judgement in the S.S. Case).”
7. This holding appears to suggest that a civil servant has a
right to inquiry in an appeal or revision even in a case covered by clause (a)
of the second proviso. This view appears
to be totally unwarranted in as much as clause (a) does not speak in terms of
inquiry at all, unlike clauses(b) and (c) or the second proviso. This is not to suggest that even clauses (b)
& (c) provide for inquiry. Clause
(a) does not seem to warrant the holding of any inquiry either at the initial
stage or at the subsequent stages. Nor
do the service rules make provision for inquiry in such a case.
8. In support of the view that inquiry has to be held in an
appeal or revision, the Supreme Court has sought to derive support from the
service rules dealing with departmental remedies. The relevant observations or this Court in
this regard are extracted below:
“Service
rules generally provide for departmental remedies by way of an appeal, revision
and review in the case of disciplinary action taken against a civil servant.
“Sub-clause
(ii) of clause (o) of the first proviso to Rule 25(1) of the Railway Servants
(Discipline and Appeal) Rules, 1968, inter alia provides that where an inquiry
has not been held, the revising authority shall itself hold such inquiry of
direct such inquiry to be held, subject to the provisions of Rule 14 of the
said Rules which is analogous to the second proviso to Article 311(2). Thus, under the said Rules a railway servant
has a right to demand in revision an inquiry into the charges against him
subject to a situation envisaged in Rule 14 of the said Rule not prevailing at
that time.
“Although
a provision similar to sub-clause (ii) of clause (c) of the first proviso to
Rule 25 (1) of the Railway Servants (Discipline and Appeal Rules, 1968, does
not exist in the rules relating to appeals in the said Rules having regard to
the factors set out in rule 22(2) of the said Rules which are to be considered
by the appellate authority in deciding an appeal, a provision similar to the
said sub-clause (ii) of clause (c) of the first proviso to Rule 25(1) should be
read and imported into the provisions relating to appeals in the said Rules.
“Where
service rules do not contain a provision similar to sub-clause (ii) of clause
(c) or the first proviso to Rule 25(1) of the Railway Servants (Discipline and
Appeal) Rules, 1968, having regard to the factors to be taken into account by
the appellate authority in deciding an appeal, a provision similar to the said
sub clause (ii) of clause (c) of Rule 25(1) of the Railway Servants (Discipline
and Appeal) Rules, 1968, should be read and imported into the provisions
relating to appeals and revision contained in such service rules. This would, however, be subject to a
situation envisaged by the second proviso to Article 311(2) not existing at the
time of the hearing of the appeal or revision.”
(See
also para. 123 of the jugement in T.P. case.)
9. With respect to the court, it appears that the Supreme Court appears to have wrongly construed the
scope of sub-clause (ii) of clause (c) of the first proviso to rule 25(1). Clause (c) reads as follows:
“Subject to the provisions of Rule 14, the revising
authority shall,-
(i)
Where the enhanced penalty which the revising
authority proposed to impose in the one specified in clause (iv) of Rule 6 and
falls within the scope of the provisions contained in sub-rule (2) of Rule 11;
and
(ii)
Where an inquiry in the manner laid down in Rule
….. has not already been held in the case, itself hold such inquiry of direct
that such inquiry be held in accordance with the provisions of Rule 9 and
thereafter on a consideration of the proceedings of such inquiry, pass such
orders as it may deem fit.”
10. The Court erred in reading sub-clause (ii) of clause (c)
independently of sub-clause (i) of clause (c).
In short, sub-clause (ii) provides for holding and inquiry only in the
case covered by sub-clause (i) (which is a case of minor penalty or withholding
or increments of pay), and not generally in all cases, especially cases
involving major penalties. Clause (C)
subjects its provisions to the provisions of Rule 14 only for the purpose of
indicating that even in the case covered by clause (c) inquiry can be dispensed
with a under Rule 14. Proceeding on a
wrong interpretation of clause (c), the Court read the requirement of inquiry
into rule 22 relating to appeals, and also further held that the requirement of
inquiry should be read into other service rules also, even if they do not
contain a provision similar to sub-clause (ii) of clause (c) of the first
proviso to rule 25(1) of the Railway Servants Rules.
11. A perusal of the judgement of the Court would reveal that the
Court sought support for its view regarding holding of inquiry in an appeal or
revision from the Railway Servants Rules and not from the constitution
itself. If the said support cannot be
drawn from the relevant rule in the Railway Servants Rules, the entire foundation
for the holding of the Supreme Court would fall.
12. The Court, however, held that even in the safeguard of inquiry
does not flow from the Constitution but only from the Service Rules, such Rules
would be held to be constitutional. It
observed:
“Where an
Act or a rule provides that in a case in which the second proviso to Article
311(2) applies any of the safeguards excluded by that proviso will be available
to a civil servant, the constitutionality of such provision would be preserved
by interpreting it as being directory and not mandatory. The breach of such directory provision would
not however, furnish any cause of action or ground of challenge to civil
servant because at the threshold such cause of action or ground of challenge
would be barred by the second proviso to Article 311(2) .”
13. The aforesaid observations of the Court are open to the
following objections, among other:
First, at the level of facts, it is wrong to assume that the service
Rules provide for the
safeguard of the inquiry. Secondly, they run counter to the main
thesis of the Court that a service rule will have to be read subject to the
relevant provisions of the Constitution and not the otherway around, and that a
rule will be unconstitutional if it restricts the full exclusionary operation
of the second proviso to article 311(2).
And yet the Court first lifted the requirement of inquiry from the
Railway Service Rules (a requirement for which there is no basis in the said
Rules), read it into other Service Rules, called such a service rule a directory
provision, and finally elevated so-called safeguard to the level of a
constitutional safeguard under the second proviso to article 311 without the
need for a further back up from the Service Rules. Thirdly, the holding that the Service
Rule providing for inquiry will only be a directory provision and that courts
cannot interfere to compel the performance of such provision is contrary to the
general jurisprudence of the court that, even in the exercise or discretionary
powers, the action taken should not be arbitrary. This will invariably lead one to the question
of permissible limits within which, or class or classes or cases in which, the
directory provision should not be invoked.
Fourthly, if the service rule making provision for inquiry is to
be treated as merely directory, there is then no basis for the court to hold
that civil servants have a right to a full and complete inquiry.
14. In fact, the Court itself has proclaimed that “the majority
judgement in Tulsiram Patel case has conferred upon the civil
servants….. the right to a full and complete inquiry” (vide para 8 of the
judgement in S.S. case. Emphasis
supplied). Will not be a classic case of “judicial legislation.”
There is no doubt that the judgement in T.P. case confers greater rights
upon civil servants than the judgement in Challappan case did.
15. Whenever next opportunity presents itself we should take steps to draw the attention of the Hon'ble Supreme Court to the
untenability of the interpretation placed by them on Rule 25 of the Railway
Servants Rules. Be that as it may, until the
findings of the Court are over-ruled by the Supreme Court, they reflect the law
declared by the Supreme Court.
****
In A.R. Antulay v. R.S. Nayak MANU/SC/0002/1988 : (1988) 2
SCC 602, Sabyasachi Mukherji, J. (as His Lordship then was) observed that:
42.... 'Per incuriam'
are those decisions given in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on the court concerned, so
that in such cases some part of the decision or some step in the reasoning on
which it is based, is found, on that account to be demonstrably wrong.
At a subsequent stage
of the said authority, it has been held that:
47.... It is a
settled rule that if a decision has been given per incuriam the court can
ignore it.
44. In Union of India and Ors. v. R.P. Singh
MANU/SC/0500/2014 : (2014) 7 SCC 340, the Court observed thus: In Siddharam
Satlingappa Mhetre v. State of Maharashtra MANU/SC/1021/2010 : (2011) 1 SCC
694, while dealing with the issue of "per incuriam", a twoJudge
Bench, after referring to the dictum in Young v. Bristol Aeroplane Co. Ltd.
1944 KB 718. and certain passages from Halsbury's Laws of England and Union of
India v. Raghubir Singh MANU/SC/0619/1989 : (1989) 2 SCC 754, had ruled thus:
The analysis of English and Indian Law clearly leads to the irresistible
conclusion that not only the judgment of a larger strength is binding on a
judgment of smaller strength but the judgment of a coequal strength is also
binding on a Bench of Judges of coequal strength. In the instant case,
judgments mentioned in paras 124 and 125 are by two or three Judges of this
Court. These judgments have clearly ignored a Constitution Bench judgment of
this Court in Sibbia case MANU/SC/0215/1980 : (1980) 2 SCC 565 which has
comprehensively dealt with all the facets of anticipatory bail enumerated Under
Section 438 Code of Criminal Procedure. Consequently, the judgments mentioned
in paras 124 and 125 of this judgment are per incuriam. Tested on the aforesaid
principles, it can safely be concluded that the judgment in S. Swvigaradoss
(supra), as far as the second principle is concerned, is per incuriam.
