per incuriam

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.

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.

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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.