IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 1585 of 2005 1. The Chief Engineer HQ Southern Railway Office Personnel Branch, Chennai 2. The General Manager Southern Railway Chennai 3 ... Petitioners -vs- 1. The Registrar Central Administrative Tribunal Chennai Bench Chennai 104 2. S. Kathiresan 3. S. Jayashankar ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records in O.A. No. 56 of 2004 on the file of the Central Administrative Tribunal dated 08.10.2004 and quash the same. For Petitioner : Mr. R. Thiagarajan, SC for Mr. V.G. Sureshkumar For Respondent 2 : Mr. S.V. Selvakumar ORDER
K. CHANDRU, J.
Heard the arguments of Mr. R. Thiagarajan, learned Senior Counsel representing Mr. V.G. Sureshkumar, learned standing counsel for the Southern Railways and Mr. S.V. Selvakumar, learned counsel appearing for the second respondent and have perused the records.
2. This writ petition is filed by the Chief Engineer, Southern Railway and the General Manager, Southern Railway against the order of the Central Administrative Tribunal [for short, ‘CAT’] dated 08.10.2004 made in O.A. No. 56 of 2004 insofar as it had set aside the punishment of compulsory retirement imposed on the second respondent and remanded the matter for fresh consideration to the appellate authority for imposing an appropriate punishment.
3. The grievance of the petitioners is that on such remand, the CAT had circumscribed their power to impose any penalty as it had directed them to impose only a minor penalty thereby curtailing the discretion vested on them by the Rules.
4. We have heard the matter elaborately and were also taken through the entire enquiry proceedings. At one stage, this Court also suggested the petitioner Railways to consider sympathetically the punishment to be imposed on the second respondent without insisting this Court’s order. Since that attempt had filed we were constrained to pass orders on the merits of the case.
5. The second respondent belonged to Scheduled Caste community and was holding a Diploma in Mechanical Engineering. He joined the Railways in the year 1978 as an Apprentice Train Examiner. Thereafter, he changed his job category as Permanent Way Inspector Grade III in 1983. He was promoted to Grade II in 1983 and to Grade I in the year 1984 and he also got Special Grade. On 24.3.1999, while shunting the goods train, some coaches got derailed at point No. 100 near Thiruvannamalai Railway Station. It happened due to the Pointman not setting up the point correctly for shunting. Subsequently, restoration was carried out.
6. The charge against the petitioner was that he was not found at the spot at 10.30 pm and for a few hours though his services were required. Since the petitioner had taken sleeping pills, he could not immediately wake up even though his name was called out through the window. An enquiry against the charge of negligence was conducted and it was stated that his conduct of failing to attend the restoration work was grave. In the enquiry, the second respondent deposed that due to some illness, he had to take a sleeping pill and, therefore, he cannot be held responsible for not reporting to work when his name was called out. By an order dated 02.9.2002, the second respondent was given the punishment of compulsory retirement. The second respondent filed an appeal against the said penalty by his appeal dated 26.8.2002. As he did not get any reply, he filed the Original Application before the CAT. In the meanwhile, the appellate authority also rejected his appeal by an order dated 20.10.2003.
7. The Tribunal held held that considering the fact that the restoration was completed before the second respondent reached the spot and because of his illness he had taken sedatives and considering his age and family, the punishment of compulsory retirement was disproportionate. In that view of the matter, the order of the appellate authority was held to be unsustainable and it was further held that the appellate authority had not considered the grounds raised by the second respondent. Therefore, the appellate authority was directed to modify the penalty into one of minor punishment .
8. Mr. R. Thiagarajan, learned Senior Counsel appearing for the Railways did not dispute the factual basis on which the Tribunal came to the conclusion that the punishment was disproportionate. His grievance was that it is not for the Tribunal to direct that the quantum of punishment should be given in a particular manner. He further stated that it should have allowed the appellate authority or the disciplinary authority to deal with the penalty without being fettered by its direction.
9. In the present case, the finding of the Tribunal that the appellate authority had not dealt with the case as projected by the second respondent by the order dated 20.10.2003 is accepted. Inspite of the fact that there was no dispute about the second respondent being under sedatives, the appellate authority did not deal with the said issue. In fact, the finding of the enquiry officer that the Doctor’s prescription was not forthcoming so as to believe the version of the second respondent having taken the sleeping pills cannot be accepted. Any one can take note of the fact that such sleeping pills are available in any Pharmacy and that they were issued without a physician’s prescription. Therefore, the appellate authority’s finding that the second respondent was sleeping in the bed at the time his services was required does not take the case any further.
10. The question was whether the second respondent was in any constraint from reporting to work at 10.30 pm when his services was required. The explanation offered by the second respondent cannot be brushed aside and the fact that the second respondent did not have the prescription to take sleeping dosage cannot be put against him. The finding that the punishment of Compulsory Retirement is disproportionate considering that the petitioner had put in 21 years of service at the time of the charge-sheet also cannot be found to be erroneous.
11. We are of the view that in exceptional circumstances, the Court can impose punishment instead of remitting the matter for imposing a lesser penalty though the power of imposition of a penalty only lies with the employer. In the present case, the CAT though remitted the matter to the appellate authority, but at the same time restricted the scope for giving a broad discretion and also indicated its mind regarding imposition of a minor penalty. We do not find anything illegal or improper in giving such a direction especially when the CAT had stated that the penalty imposed on the second respondent shocked its conscience.
12. In this regard, it is relevant to refer to the recent decision of the Supreme Court in Union of India and other v. P.K. Kuttappan [2007 AIR SCW 1587]. In that case, though a serious charge was levelled against a government servant, the Tribunal interfered with the punishment and confirmed by the High Court and when the matter was finally challenged before the Supreme Court, it was held in paragraphs 6 and 7 of the judgment which is as follows:
Para 6: “In our opinion, the charges are very serious in nature. However, the Tribunal and the High Court taking a lenient view of the matter ordered reinstatement with 50% back wages.
Para 7: In our opinion, the respondent, if at all, should have been reinstated in service only without 50% back wages and, therefore, the said part of the order passed by the Tribunal and as affirmed by the High Court requires modification. We, therefore, modify the order passed by the Tribunal and as affirmed by the High Court and order only reinstatement and delete the direction in regard to payment of 50% back wages. The respondent shall be reinstated without one week from today.”
13. In the light of the above, while confirming the order of the CAT impugned in the writ petition, we hereby direct the petitioners to impose a minor penalty on the second respondent. In the light of the decision of Supreme Court cited above, we are also of the view that the second respondent is not entitled for any wages for the period during which he was out of employment except for the allowances already paid. However, the period of interregnum will be treated as continuous service for all other purposes including for terminal benefits. This exercise shall be carried out by the petitioners within a period of four weeks from the date of receipt of a copy of this order.
14. The writ petition is disposed of accordingly. However, there will be no order as to costs.
(P.K.M., J.) (K.C., J.)
24..3..2008
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Central Administrative Tribunal
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P.K. MISRA, J.
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K. CHANDRU, J.
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W. P. No. 1585 of 2005
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24..3..2008