ORDER
Lakshmi Swaminathan, J. (Vice Chairman)
1. The applicant is aggrieved by the penalty orders issued by the respondents, that is the Disciplinary Authority’s order dated 13.7.1994 and the Appellate Authority’s order dated 9.11.1998. The Appellate Authority’s order and Revisional Authority’s order impugned in this application have been passed after the Tribunal had disposed of an earlier application (O.A. 2011 of 1995) filed by the applicant, by order dated 1.8.1997.
2. As mentioned above, this is the second round of litigation of the applicant. By Tribunal’s order dated 1.8.1997, the earlier order passed by the Appellate Authority dated 21.11.1994 as also the order of the Revisional Authority dated 28.3.1995 were quashed, with a direction to the Appellate Authority to consider the appeal filed by the applicant de-novo keeping in view the observations made in the order and also the decision of the Hon’ble Supreme Court in Ramchander v. Union of India and Ors., AIR 1986 SC 1173=1986(2) SLJ 249 (SC). It had been observed by the Tribunal that the points raised by the applicant in his appeal had not been considered in the light of the provisions contained in Rule 22 (2) (a) and (b) of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as ‘the Rules’) and also that a speaking order had not been passed by that authority- Accordingly, the Appellate Authority has passed the impugned order dated 17.9.1997, in pursuance of the earlier directions of the Tribunal in O.A. 2011/95. The Disciplinary Authority in his order dated 13.7.1994 had imposed “the major penalty of reversion on a permanent measure to the post of Head Clerk in grade Rs. 1400-2300 at stage Rs. 1400/-.” The Appellate Authority, after consideration of the applicant’s appeal, confirmed the Disciplinary Authority’s order dated 13.7.1994. It is relevant to note that in the earlier Appellate Authority’s order dated 21.11.1994 which had been impugned in O.A. 2011 of 1995, the Disciplinary Authority’s order had been modified to that of reduction from the post of Chief Clerk to the lower grade of Head Clerk in the scale of Rs. 1400-2300 at Rs. 1400 for a period of five years with non-recurring effect, that is without the effect of postponing the future increments. However, in the Appellate Authority’s order dated 17.9.1997, the punishment imposed by the Disciplinary Authority of reversion on a permanent basis has been confirmed.
3. The applicant has filed M.A. 119 of 2001 on 20.3.2001, praying for condonation of delay in filing the application in the interest of justice. He has referred to the financial constraints, mental agony and tortures, family circumstances, reduction in salary and constant medical treatment of himself and family members as reasons for condoning the delay which he states are unintentional and bona fide. He also states that if this is not done, this would result in miscarriage of justice and would cause irrecoverable loss and injury to him which cannot be compensated in terms of money. He has relied on the judgment of the Karnataka High Court in Sharana Gowda v. Narayana, ILR 1995 Karnataka 3241, and he has prayed that M.A. 119 of 2001 may be allowed. This application has been opposed by Mr. A.N.V. Gowda, learned Counsel for the respondents who has submitted that the reasons mentioned in the Miscellaneous Application cannot be considered as good or sufficient reasons, as provided under Section 21(3) of the Administrative Tribunals Act, 1985, under which alone the delay can be condoned. He has submitted that after the Tribunal had passed the order dated 1.8.1997 in O.A. 2011 of 1995, the Appellate Authority had considered the appeal submitted by the applicant and passed the order dated 17.9.1997 confirming the Disciplinary Authority’s penalty order. Thereafter, the revision petition submitted by the applicant had also been considered by the Competent Authority who had passed a detailed and speaking order on 9.11.1998. This O.A. has been filed on 5.2.2001 which means that more than two years and two months’ delay in filing the application is to be condoned which, according to the learned Counsel for the respondents, cannot be condoned on the vague reasons submitted by the applicant. He has submitted that the applicant has not stated what were the financial constraints or family problems and when he and his family members had taken medical treatment and so on, to support his case. Learned Counsel has, therefore, submitted that in the circumstances of the case, M.A. 119 of 2001 may be dismissed along with the O.A.
4. The learned Counsel for the applicant has submitted that the aforesaid major penalty orders have been issued under the provisions of Rule 6 (vi) of the Rules. This rule provides for a major penalty being imposed for good and sufficient reasons on a Railway Servant, that is reduction to lower time scale of pay, grade, post or service with or without further directions regarding conditions of restoration to the grade or post or service from which the Railway servant was reduced and his seniority and pay on such restoration to that grade, post or service. He has submitted that under the Explanation to Rule 6, Clauses (iv) and (v) refer to reversion of a Railway Servant in the circumstances mentioned in these clauses which does not amount to a penalty within the meaning of this Rule. He has emphasised that the Disciplinary Authority has used the word ‘reversion’ and not ‘reduction’ to a lower time scale of pay, as provided under Rule 6 (vi). He has, therefore, contended that the word ‘reversion’ used in the penalty order passed by the Disciplinary Authority which has been confirmed by the Appellate Authority and Revisional Authority cannot be construed as a penalty, in terms of the Explanation given below the Rule. He has also relied upon the instructions issued by the Railway Board from time to time as to how the order of reduction is to be framed and passed by the authorities contained in Railway Board’s letters dated 30.7.1964 and 27.8.1966. He has contended that under these Instructions, it was necessary for the Competent Authority to indicate the period of reduction to the lower post which has to be specified in the form laid down in the Instructions.
5. Another ground taken by the learned Counsel is that the punishment order is severe because, as mentioned above, the Appellate Authority’s order which had been struck down by the Tribunal in O.A. 2011 of 1995 had reduced the punishment order imposed by the Disciplinary Authority. The same has now been confirmed by the Appellate Authority only because the applicant had approached the Tribunal. The learned Counsel for the applicant has relied on the judgment of the Hon’ble Supreme Court in Hartwell Presscott Singh v. The Uttar Pradesh Government and Ors., AIR 1957 SC 856. In this case the Apex Court had held that reversion from a temporary post held by a person does not per se amount to reduction in rank and he has, therefore, submitted that as the authorities have used the word ‘reversion’ and not ‘reduction’ as provided in Rule 6 (iv) of the Rules, the same cannot be considered as penalty orders as explained below the Rule itself.
6. We have seen the reply filed by the respondents and heard Mr. A.N.V. Gowda, learned Counsel. Learned Counsel has submitted that apart from the grounds of limitation, even on merits the applicant has no case. He has submitted that the applicant cannot now reagitate the issues by challenging the validity of the Disciplinary Authority’s order as he ought to have taken these grounds in O.A. 2011/95. The learned Counsel has also submitted that a reading of the Disciplinary Authority’s order clearly shows that the intention was to impose a major penalty on the applicant, that is of ‘reduction’ on a permanent measure to the post of Head Clerk which can only be read as penalty order under Rule 6 (vi) of the Rules. He has emphasised that the applicant was holding a permanent post and was not holding a temporary post so that the rules of reduction will apply to him. In the circumstances, he has submitted that the judgment of the Hon’ble Supreme Court in Hartwell Prescott Singh’s case (supra) relied upon by the applicant will not assist him in the facts of the present case.
7. Another ground taken by the learned Counsel for the respondents is that in terms of the Tribunal’s order dated 1.8.1997, after the earlier order of the Appellate Authority had been quashed and set aside, the Competent Authority has passed fresh order on 17.9.1997 taking into consideration the observations of the Tribunal, including the grounds taken by the applicant in his appeal and passed a detailed order. In the circumstances, he has submitted that there is no question of any mala fide action taken by the Appellate Authority in imposing a severe punishment when he confirmed the Disciplinary Authority’s order, even though the earlier order passed by the Appellate Authority had modified the same to one of reduction in rank for a period of five years, instead of on a permanent basis. Similarly, he has contended that the Revisional Authority’s order is also legal and valid. In the circumstances of the case, he has prayed that the O.A. may be dismissed both on the grounds of limitation and merit.
8. We have carefully considered the pleadings and the submissions made by the learned Counsel for the parties.
9. On perusal of M.A. 119/2001, we find force in the submissions made by the learned Counsel for the respondents that no clear reasons, let alone sufficient reasons, have been given in the application for condonation of delay in filing the O.A., admittedly after more than three years of the passing of the impugned order by the Appellate Authority dated 17.9.1997. The reasons given by the applicant are vague as he does not even refer to what were the family circumstances or medical treatment for himself and others he refers to which had caused the delay in filing this O.A. on 5.2.2001. Therefore, having regard to the facts and circumstances of the case and the provisions of Section 21 (3) of the Administrative Tribunals Act, 1985, we find no good grounds to condone the delay in the present case. Accordingly, the O.A. is liable to be dismissed on this ground alone.
10. However, as both the learned Counsel have made submissions on the merits of the case also, we have also considered the same.
11. Rule 6 (vi) of the Rules reads as follows;
“6. Penalties;
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Railway Servant, namely:
(i) to (v) xxx xxx xxx (vi) Reduction to a lower time scale of pay, grade, post or service, with or without further directions regarding conditions of restoration to the grade or post or service from which the Railway servant was reduced and his seniority and pay on such restoration to that grade, post of service." Explanation (iv) and (v) below this Rule reads as follows: "(iv) reversion of a Railway servant officiating in a higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher service, grade or post, or on any administrative ground unconnected with his conduct; (v) reversion of a Railway servant appointed on probation to any other service, grade or post, to his permanent service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation."
12. The learned Counsel for the applicant had sought to make a distinction between ‘reduction’ and ‘reversion’ as provided in the above Rule he has submitted that the very use of the word ‘reversion’ in the impugned penalty orders would have to be read as not amounting to a penalty within the meaning of the Explanation. A perusal of the impugned penalty order shows that the Disciplinary Authority had taken a decision for imposing the major penalty of ‘reversion’ of a permanent measure to the post of Head Clerk in Grade Rs. 1400-2300 at stage Rs. 1400/- on the applicant. Therefore, the mere use of the term ‘reversion’ instead of ‘reduction’ in the penalty order will not make it as not amounting to a penalty, as the intention of the Disciplinary Authority was obviously to impose the major penalty of reduction of a permanent nature on the applicant to the lower post of Head Clerk. In the circumstances, the judgment of the Hon’ble Supreme Court in Hartwell Prescott Singh’s case (supra) relied upon by the applicant will not be applicable to the facts of the case as the applicant was holding a substantive post and that case deals with reversion of a Government servant from a temporary post.
13. However, in the circumstances of the case, there was no reason why the Disciplinary Authority could not have used the correct terminology as provided in Rule 6(vi), that is the word ‘reduction1 instead of ‘reversion’ when he had intended to impose a penalty of reduction of a permanent nature to the lower post on the applicant, This has led to the present litigation wherein it has been vehemently argued by the learned Counsel for the applicant that the use of the word ‘reversion’ in the penalty order could give rise to the meaning that it was not penalty and so on. It is relevant to note that the subsequent order passed by the Appellate Authority dated 17.9.1997 also uses the expression ‘reversion’ on a permanent measure which has also been repeated by the Revisional Authority in his order dated 9.11.1998. The Competent Authorities while passing these orders ought to have used the word ‘reduction’ instead of the word ‘reversion’ as clearly provided in Rule 6(vi) of the rules, which is the provision they have relied on while imposing the penalty of reduction to a lower post on permanent basis. These orders, therefore, indicate that the Competent Authorities have acted in a negligent manner without application of mind to the particular Rule in question before imposing a major penalty on the applicant as provided under the Rules. These repeated errors on the part of such senior officers of the Railway Administration, that is the Disciplinary Authority who is the Divisional Personnel Officer, the Appellate Authority whose designation is not printed in Annexure A-21 and the Revisional Authority who is the Chief Personnel Officer/G1, should not have occurred in the first instance, especially when they are passing a major penalty order against a Railway employee. There is no reason why the officers of the Railway Administration could not have passed the major penalty orders against the applicant, in terms of Rule 6 (vi) of the Rules, instead of using inept and inappropriate words and expressions. These remarks are made in order to ensure that the respondents do not repeat such mistakes in future and because they are expected to act strictly in accordance with the relevant law, rules and instructions.
14. We find no substance in the contention of the learned Counsel for the applicant that only because the applicant had filed earlier O.A. 2011/95, the Appellate Authority had confirmed the Disciplinary Authority’s order, while the earlier Appellate Authority had modified the order to a lesser punishment of reduction from the post of Chief Clerk to the post of Head Clerk for a period of five years with non-recurring effect. By order dated 1.8.1997, the Tribunal had quashed the earlier order passed by the Appellate Authority dated 21.11.1994. Accordingly, in pursuance of the Tribunal’s order, the Appellate Authority had passed another order which is a speaking order, confirming the punishment imposed by the Disciplinary Authority. Having regard to the provisions of Rule 22(2) of the Rules, there is no illegality in his confirming the earlier order. Therefore, this ground fails and is rejected.
15. Taking into consideration the nature of the charges levelled against the applicant which have been held proved, we therefore, reject the contention of the learned Counsel for the applicant that the penalty imposed on him is excessive. The Revisional Authority has stated that a stringent penalty of removal/dismissal from service should have been imposed on the applicant but considering his past service and family status, he has taken a lenient view in the matter which cannot be held to be either illegal or arbitrary to justify any interference in the matter. Therefore, this ground also fails and is rejected. We have also considered the other grounds taken by the learned Counsel for the applicant but find that the rules and procedures have been complied with by the respondents. Accordingly, we do not find any good grounds justifying interference in the matter on merits.
16. In the result, for the reasons given above, the O.A. fails and is dismissed. However, in the facts and circumstances of the case, we consider it appropriate to impose a cost of Rs. 5000/- (Rupees five thousand only) against the respondents and in favour of the applicant, which the respondents shall recover from the concerned officers who have passed the impugned penalty orders, as mentioned in Para 13 above.