JUDGMENT
K.R. Prasada Rao, J. (Vice Chairman)
1. The applicant filed the present O.A. challenging the charge memo dated 8.1.1993 issued by the Divisional Mechanical Engineer, Carriage and Wagon, South Central Railway, Guntakal (5th respondent) for want of competency and also the impugned orders dated 13.2.1997 passed by the Divisional Railway Manager, S.C. Railway, Guntakal (3rd respondent) and the orders dated 17.9.1997 passed by the Chief Mechanical Engineer, S.C. Railway, Secunderabad (2nd respondent) and the orders dated 22.1.1999 passed by the Additional General Manager, S.C. Railway, Secunderabad (1st respondent) imposing penalty of reduction to the lower grade/post from Chief Train Examiner in the pay scale of Rs. 1600-2660 to Train Examiner in the scale of Rs. 1400-2300 and also lower stage from Rs. 2975/- to Rs. 1400/- for a period of 3 years (NR) with effect from 1.8.1996 and sought for setting aside the same by holding that the said punishment was imposed by the respondents arbitrarily and illegally in violation of Articles 14, 16 and 21 of the Constitution of India. The applicant also sought for the consequential relief to direct the respondents to treat him as having continued as Chief Train Examiner with the pay of Rs. 2975/- from 1.8.1996 and grant consequential benefits.
2. The applicant while working as Chief Train Examiner, Tirupathi in the scale of pay of Rs. 2000-3200 (RSRP), was served with a charge memo issued by the Divisional Mechanical Engineer, C&W, Guntakal dated 8.1.1993 calling upon him to submit his representation in respect of the charges framed against him intimating that he proposes to hold an inquiry under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. It is alleged in the Article-I of the said charge that the applicant while working as CWI, Guntakal Division in the year 1991 committed serious misconduct and failed to maintain integrity and devotion to duty in that he failed to ensure that MS sheets of 10.195 M/Ts drawn from DCOs/G&S/M&T during the months April, May, June 1991 by K.M. Doula C&W Fitter Grade II, worth Rs. 1,20,000/- were received and accounted in C&W stores/ GTL. Shri K.M. Doula sold away these materials for Rs. 50,000/- and this could not be detected till vigilance check due to failure in exercising proper supervision. In the Article-II, it is alleged that the applicant failed to supervise and ensure correct drawal and distribution of drawn materials among C&W depots of Guntakal Division by Shri D.M. Doula during the years 1988 onwards which resulted in non-receipt of these materials by C&W depots causing heavy loss to the Railway Administration. In the Article-III it is alleged that the applicant failed to check the indents prepared by Shri K.M. Doula which resulted in manipulation by Shri K.M. Doula by writing one description of the item in the office copy and some other description on the other copies. In the Article-IV of the charge it is alleged that the applicant failed to supervise drawal of materials by Shri K.M. Doula from Stores, Depots and prompt disposal to C&W Depots although he was available at Secunderabad along with Shri K.M. Doula purchasing of materials on 11/12.1.1990, 23/25.1.1990 and 12.9.90 to 14.9.90. In reply to the charge sheet, the applicant denied the charge. Thereupon an Inquiry Officer was appointed who has commenced the inquiry from 14.9.1993 and completed the inquiry proceedings and submitted his report to the Disciplinary Authority. The Senior Divisional Mechanical Engineer, C&W, Guntakal in his letter dated 2.8.1994 has called for representation against the report of the Inquiry Officer holding that Articles-I and II of the charge are proved, Article. Ill of the charge is not proved and Article-I of the charge is partly proved. The applicant submitted his objection to the said report. Thereafter, the Senior Divisional Mechanical Engineer, Carriage and Wagon, Guntakal (4th respondent) imposed the penalty of reduction to the lower post, pay scale and the lower stage for a period of 7 years (NR)i.e., from CTXR with basic pay Rs. 2975/- (Rs. 1600/2660) to TXR in the scale of Rs. 1400-2300 with pay Rs. 1400/- from 1.8.1996, by concurring with the findings of the Inquiry Officer. Thereafter the applicant submitted his appeal dated 21.8.1996 to the Divisional Railway Manager, South Central Railway, Guntakal who in his letter dated 13.2.1997 has reduced the duration of the punishment from 7 years to one year (NR) on the ground that the punishment already imposed will be counter productive. Thereupon, the applicant submitted revision petition on 6.3.97 to the 2nd respondent to revise the decision of the Disciplinary Authority and the Appellate Authority. But the 2nd respondent has issued show cause notice proposing to revise the punishment of reversion to the lower grade of Train Examiner for a period of 3 years (NR) and called upon the applicant to submit representation. Accordingly the applicant has submitted his detailed representation dated 4.8.97 requesting not to revise the punishment and also to cancel the modified penalty imposed by the Appellate Authority. However, the 2nd respondent by the impugned order dated 17.9.97 has revised the penalty of reduction to the lower grade of Train Examiner, Tirupathi in the scale of Rs. 1400-2300 on pay Rs. 1400/- for one year to 3 years (NR). Thereupon the applicant filed an appeal dated 16.10.1997 to the 3rd respondent. The 3rd respondent kept the matter pending for a period of more than 3 years and passed the impugned order dated 22.1.1999 confirming the revised penalty. The applicant, therefore, challenged the impugned orders passed by the said authorities in the present O.A. The applicant mainly contended in the present O.A. that the charge memo issued to him by the Divisional Mechanical Engineer, C&W, Guntakal acting as the Disciplinary Authority is liable to be quashed since the said authority is not competent to act as the Disciplinary Authority for initiating major penalty charge sheet proceedings for holding inquiry under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The applicant also contended that on the same ground, the impugned orders passed by the authorities on the basis of the inquiry conducted on the charge memo issued by the said authorities are liable to be set aside. The applicant further contended that the punishment of reduction in the lower grade and also to lower stage in the scale of pay for 3 years constitute two penalty proceedings under Rule 6, Clause (v) of the Railway Servants (Discipline and Appeal) Rules, 1968. The reduction of the applicant from Chief Train Examiner to the Train Examiner in the pay scale of Rs. 1600-2660 comes under the punishment No. VI whereas fixation of pay from Rs. 2975/- to Rs. 1400/- comes under the punishment No. V of Rule 6 of Railway Servants (Discipline and Appeal) Rules, 1968. On this ground also, according to the applicant, the impugned orders are liable to be set aside. The applicant also urged several other grounds in the present O.A. for setting aside the impugned orders. But the learned Counsel for the applicant has argued the above two main grounds urged in the O.A. and submitted that the impugned charge memo issued to the applicant as well as the impugned orders passed by the authorities, are liable to be set aside on the said two grounds.
3. The respondents filed reply statement contending inter alia that as per Schedule-II to Railway Servants (Discipline and Appeal) Rules, 1968, Junior Administrative Grade Officers and the Senior Scale Officers holding independent charge/incharge of the Department on the Division are empowered to issue major penalty charge sheet on Group-D and Group-C staff. Accordingly, the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal who is senior scale officer holding independent/incharge of Carriage and Wagon Department on the Division had issued major penalty charge sheet dated 8.1.1993 on the applicant. The post of Divisional Mechanical Engineer/Carriage and Wagon/Guntakal was upgraded to the post of Junior Administrative Grade with effect from 25.11.1993 and consequently, the DAR proceedings further in the instant case were completed by the Senior DME/C&W/ Guntakal as the Disciplinary Authority. The respondents, therefore, contended that the DME/C&LW/Guntakal who initiated disciplinary proceedings by issue of the charge memo dated 8.1.1993 for major penalty was competent to act as the Disciplinary Authority. The respondents further contended that the penalty imposed on the applicant is a major penalty and it does not amount to double penalty. The penalty imposed falls under Rule 6(vi) of Railway Servants (Discipline and Appeal) Rules, 1968. The respondents have also contended that the impugned orders passed by the authorities are completely valid and that the Reviewing Authority has rightly exercised his powers to enhance the punishment by following the procedure prescribed under Rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968. The respondents, therefore, prayed for dismissal of this O.A.
4. We have heard the arguments advanced by the learned Counsel for the applicant and the learned standing Counsel for the respondents.
5. The learned Counsel for the applicant vehemently contended that the impugned charge memo has been issued on 8.1.1993 to the applicant while he was working as Chief Train Examiner, Tirupathi in the scale of Rs. 2000-3200 (RSRP) by the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 and at the time of issue of the said charge sheet to the applicant, the Divisional Mechanical Engineer, C&W Guntakal was not competent to act as the Disciplinary Authority in respect of the applicant since he was only a senior scale, officer not holding independent charge of a division and is not competent to impose any one of the minor penalties much less major penalty in respect of Group-C employees and as such he is not competent to initiate disciplinary action by way of major penalty charge sheet on the applicant as on 8.1.93. It is further pointed out by him that according to the Railway Board circular noted below Rule 3(2c) of Railway Servants (D&A) Rules, it is only the authority who is competent to impose any of the major penalties, is empowered to initiate disciplinary action by way of major penalty charge sheet. In reply to the above submission, the learned standing Counsel for the respondents submitted that the Divisional Mechanical Engineer/ Carriage and Wagon, Guntakal who issued the impugned charge memo to the applicant was senior scale officer holding independent/incharge of the Carriage and Wagon Departmental of the division and no he was competent to act as the Disciplinary Authority in respect of the applicant, who is a Group-C employee. It is pointed out by him that as per Schedule-II, Column.IV, of the Railway Servants (Discipline and Appeal) Rules, 1968, powers of junior administrative grade officers and the senior scale officers holding independent charge/ incharge of the department on the division are given and it is clear from the said table that the said authorities are entitled to impose all the major penalties in respect of Group-D and Group-C staff. He, therefore, submitted that the Divisional Mechanical Engineer who issued the major penalty charge memo to the applicant on 8.1.1993 being a senior scale officer holding independent charge/incharge of the department of Carriage and Wagon Department on the division, was the Competent Authority to act as the Disciplinary Authority in respect of the applicant, who is a Group-C employee. But it is pointed out by the learned Counsel for the applicant that the respondents themselves have stated in the reply statement that the Senior Divisional Mechanical Engineer, Carriage and Wagon, Guntakal has ordered for DAR inquiry against the applicant duly appointing Shri N.V. Ramana Murthy, Assistant Enquiry Officer/II/Secunderabad as the Inquiry Officer vide order dated 31.5.1993 acting as the Disciplinary Authority. Thus the respondents have admitted the fact that only the Senior Divisional Mechanical Engineer, Carnage and Wagon, Guntakal was the incharge of the Department on the division and he alone was the Competent Authority to act as the Disciplinary Authority. He, therefore, submitted that it is not open to the respondents to still contend that even the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal was holding the independent charge/incharge of the department on the division! It is further pointed out by him that the charge memo has been issued to the applicant only by the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal but not by the Senior Divisional Mechanical Engineer, Carriage and Wagon, Guntakal. The said submission of the learned Counsel for the applicant is found to be correct on a perusal of the records. The charge memo has been issued to the applicant only by the Divisional Mechanical Engineer Carriage and Wagon, Guntakal dated 8.1.1993. Since it is found from the above statement made by the respondents in the reply statement that the Senior Divisional Mechanical Engineer, Carriage and Wagon, Guntakal who was a senior scale officer holding the charge/incharge of the department on the division, is the Competent Authority to act as the Disciplinary Authority and the respondents even claimed that he ordered for DAR inquiry against the applicant duly appointing the Inquiry Officer, it is clear that the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal was not the Competent Authority to issue major penalty charge sheet in respect of the applicant who is a Group-C employee, to act as the Disciplinary Authority as on the date of issue of the charge memo as at that time he was not holding independent charge/incharge of the Department on the division. As per Column 3 of Schedule-II of the Railway Servants (Discipline and Appeal) Rules, 1968, senior scale officers have powers to impose major punishment only respect of Group-C and Group-D staff except is grade Rs. 1600-2660. Since the applicant was in the scale of Rs. 2000-3200 (RSRP) by the date of issue of the charge sheet, it is clear that the Divisional Mechanical Engineer, Carriage and Wagon, Gunlakal was not Competent Authority to act as the Disciplinary Authority in respect of the applicant for issue of a major penalty charge sheet. Further, under Rule 2, Clause (c), Sub-clause (iii) of the Railway Servants (Discipline and Appeal) Rules, 1968, the Disciplinary Authority in relation to Rule 9 in the case of any non-gazetted Railway servant, is the authority competent to impose any of the major penalties specified in Rule 6. Since it is found that the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal was only the senior scale officer not holding any independent charge/incharge of the Department on a division by the date of issue of the charge memo had no powers to impose major penalties in respect of Group-C staff in grades Rs. 1600-2660 and above and as the applicant is a non-gazetted Railway servant drawing pay in the pay scale of Rs. 2000-3200 (RSRP), we find that the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal was not competent to act as the Disciplinary Authority against the applicant by the date when he issued the major penalty charge memo to the applicant. The fact that subsequently the said authority was upgraded to the post of Junior Administrative Grade Officer with effect from 25.U.1993, cannot be taken into consideration since as on the date of issue of the charge sheet i.e., as on 8.1.1993 he was only a senior scale officer without holding any independent charge/incharge of the department on the division. Though the respondents contended that the Senior Divisional Mechanical Engineer, Carriage and Wagon, Guntakal who was competent to act as the Disciplinary Authority has ordered for initiation of the departmental inquiry against the applicant, since it is found that he has not issued the charge memo to the applicant under his signature, it must be taken that the disciplinary proceedings were not initiated by him against the applicant. In this view of the matter, we agree with the contention of the applicant that the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal who issued charge memo was not Competent Authority to act as the Disciplinary Authority and to issue the impugned charge memo to him. In this view of the matter, we find that the impugned charge memo issued to the applicant and the inquiry proceedings conducted against him on the basis of the said charge memo and the impugned orders passed by the authorities are liable to be quashed.
6. It is also contended by the learned Counsel for applicant that the punishment imposed by way of reduction to the lower post carrying the pay scale of Rs. 1400-2300 on a pay of Rs. 1400/- from the scale of Rs. 1600-2660 by the Disciplinary Authority by the impugned order dated 16.7.96 though the applicant was drawing pay of Rs. 2975/- at that time in the pay scale of Rs. 2000-3200, is not permissible since the applicant can be reverted to the next lower grade to Rs. 1600-2660 and not to the lowest grade of Rs. 1400-2300 when there is intermediate grade i.e., Rs. 1600-2660. He further contended that reduction to the lower scale and also fixation of pay in the lowest minimum of the lower scale of pay, amounts to imposition of two independent punishments. In support of this contention he relied upon a decision rendered by this Tribunal in the case of R. Devadanam v. Union of India and Ors., 1989 (2) SLJ (CAT) 131, wherein it was held that,
“Applicant in grade Rs. 550-750 was reduced to lower scale of pay Rs. 425-700 as a measure of penalty and was also ordered to be fixed at Rs. 500/-. Before promotion he drew Rs. 620/- p.m. Reduction in scale is penalty No. VI and reduction in stage is penalty No. V of RS (D&A) Rules, 1968-Held it was imposition of 2 penalties and cannot be sustained”.
It was further held that,
“Applicant was reduced in scale of pay as well as in stage in the time scale of pay -Held those were of penalties vide Rule 6(iv) and (vi) and cannot be imposed.”
7. In the instant case also, the penalty impose on the applicant under the impugned order reducing the applicant to the lower grade in scale Rs. 1400-2300 on a pay of Rs. 1400/- for a period of 3 years and reducing him to the lower post of Train Examiner from the post of Chief Train Examiner, in our view, clearly amounts to imposition of double punishments falling under Clauses (v) and (vi) of Rule 6 of the Railway Servants (Discipline and Appeal) Rules, 1968 and, therefore, the impugned orders cannot be sustained. Further, we find that while imposing the punishment of reduction to the lower stage in the time scale of pay, the applicant at the most can be reverted to the next lower grade from Rs. 2000-3200 to Rs. 1600-2660, but it is not permissible to reduce the applicant to the lowest grade/, e., Rs. 1400-3200 when there is an intermediate grade of Rs. 1600-2660 under the provisions of Rule 6, Sub-clause (vi) of the Railway Servants (Discipline and Appeal) Rules, 1968. In our view, reduction to the lower time scale of pay cannot be interpreted so such a way to permit the Disciplinary Authority to reduce the time scale of pay by two lower stages i. e., to the lowest time scale of pay. Thus, we find that in this view of the matter also, the impugned orders passed cannot be sustained and are liable to be set aside.
8. The learned standing Counsel for the respondents has relied upon a decision 2003( 1) SLJ (CAT) 117 of the Central Administrative Tribunal, Jodhpur Bench, in the case of “Ashok Sharma v. Union of India and Ors.” wherein it was held that:
“Major charge sheet issued by APO to a Senior Clerk on whom he can impose only Censure – Rule 8(2) analysed which empowers an authority competent to impose even a minor penalty to issue a major charge sheet-Rule 2(1 )(c) provides Disciplinary Authority to impose penalty – Held, APO could issue the charge sheet but penalty could be imposed by DPO only which was correctly done in this case.”
9. But in the above decision, the Tribunal has not considered the provisions of Sub-clause (iii), Clause (c) of Rule 2 which clearly specifies that in relation to Rule 9 in the case of any non-gazetted Railway servant, an authority competent to impose any of the major penalties specified in Rule 6 is the Disciplinary Authority. Only with reference to the provisions of Sub-rule (i), Clause (c) of Rule 2, the Tribunal observed in the above decision that:
“A reading of the said Sub-rule (1) makes it clear that while under provisions of Rule 8(2) of Rules, 1968 any Disciplinary Authority can initiate disciplinary proceedings so long as that authority has the powers to impose any of the minor penalties but in relation to the actual penalty impose the Disciplinary Authority would be determined by virtue of Sub-rule (1) of Clause (c) of Rule 2 of the Rules, 1968.”
10. Thus, in the above decision, the provisions of Sub-rule (c), Sub-clause (iii) of Rule 2 arc not considered, which are applicable in respect of the applicant who is a non-gazetted Railway employee. Apart from this fact, according to the powers given under Schedule-II of Railway Servants (Discipline and Appeal) Rules, 1968, a senior scale officer has no powers even to impose a minor penalty of Censure in respect of Group-C staff in the grade of Rs. 2000-3200. Since the applicant was in the said grade of Rs. 2000-3200 by the date of issue of the charge memo, it is clear that the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal who was only a senior scale officer at the time of issue of the charge memo to the applicant, was not Competent Authority to impose even a minor penalty to the applicant and was not competent to act as the Disciplinary Authority.
11. In the result, this O.A. is allowed. The impugned charge memo date 8.1.1993 issued to the applicant by the Divisional Mechanical Engineer, Carriage and Wagon, Guntakal and the impugned orders passed by the respondents 1 to 3 are hereby set-aside. As a consequence, the respondents are directed to treat the applicant as having continued as Chief Train Examiner on the pay of Rs. 2975/- from 1.8.1996 with all consequential benefits. There shall be compliance with this order within a period of two months from the date of receipt of a copy of this order. In the circumstances, we direct the parties to bear their respective costs.