# 5 S.C.R. 35 UNION OF INDIA v. ALOK KUMAR

- **Citation:** [2010] 5 S.C.R. 35
- **Court:** Supreme Court of India
- **Decided:** 2010-04-16
- **Case number:** Civil Appeal NO. 3369 of 2010
- **Bench:** Aftab Alam, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-35-union-of-india-v-alok-kumar-27030
- **Pages:** 54

## Headnote

Railway Servants (Discipline and Appeal) Rules, 1968:
A
B
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.
G
H
Maxim - ejusdem generis - Applicability of.
Doctrines I Principles:
Principle of necessary implication - Applicability of
Principle of exclusion - Applicability of
Words and Phrases: 'authority' - Meaning of
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
HELD: 1.1. The Departmental proceedings against
the respondent

## Text

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[2010) 5 S.C.R. 35
UNION OF INDIA
v.
ALOK KUMAR
(Civil Appeal NO. 3369 of 2010 etc.)
APRIL 16, 2010
[AFTAB ALAM AND SWATANTER KUMAR, JJ.]
Railway Servants (Discipline and Appeal) Rules, 1968:
A
B
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.
G
H
Maxim - ejusdem generis - Applicability of.
Doctrines I Principles:
Principle of necessary implication - Applicability of
Principle of exclusion - Applicability of
Words and Phrases: 'authority' - Meaning of
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
HELD: 1.1. The Departmental proceedings against
the respondent was rE!stricted to the applicability of Rule
c
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]
1.2. The language of Rule 9(6) shows that there is a
discretion vested in the disciplinary authority, enabling
E
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; 60A-D]
D
E
F
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
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
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
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]
H
1.5. Other important feature in the language of Rule
9(2) is appoint under this Rule a Board of Inquiry or other
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] [64B-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-BC, 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]
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.
E
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
F
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
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.
v. Union of India and Ors. (2006) 8 sec 699, relied on.
B
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
D
law. [Para 57] [83-E-G; 84-A-B]
·
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
F
set aside. the departmental inquiries in any of these
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
AIR 2004 SC 2154
referred to.
Para 27
B
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
(2006) 8 sec 699
relied on.
Para 41
D
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
A
B
c
D
50
SUPREME COURT REPORTS
[2010] 5 S.C.R.
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.
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
SWATANTER KUMAR, J. 1. Delay condoned in SLP (C)
No. 25293 of 2008.
2. Leave granted.
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.
H
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
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. ·
7. Keeping in view the common question of law that has
been answered against Union of India, it may not be necessary
D
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.
~\ .'
8
9. In short, it was stated that by"misusing his official status
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 2001C · 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
H
(b) Whether a retired person ca~ be appointed as inquiry
officer."
.;
11. ·The Tribunal while noticing the provisions of Rule 9 (2)
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."
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
E
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.