IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14966 of 2008(S)
1. UNION OF INDIA REPRESNETED BY
... Petitioner
2. THE SENIOR DIVISIONAL ENGINEER,
3. THE DIVISIONAL RAILWAY MANAGER,
4. THE PRINCIPAL CHIEF ENGINEER,
5. THE CHIEF PERSONAL OFFICER,
Vs
1. K.G.VALSALAN,S/O.K.GOPALAN,
... Respondent
For Petitioner :SRI.M.C.CHERIAN,SR.SC.,RAILWAYS
For Respondent :SRI.T.C.GOVINDA SWAMY
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :30/06/2009
O R D E R
K. BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
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W.P.(C) NO. 14966 OF 2008
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Dated this the 30th day of June, 2009
JUDGMENT
Balakrishnan Nair, J.
The writ petitioners are the respondents in O.A. No.535 of 2005
before the Central Administrative Tribunal, Ernakulam Bench. The
respondent herein filed the Original Application, Ext.P1, challenging
Annexure A1, A2 and A3 orders of the Disciplinary Authority, Appellate
Authority and the Revisional Authority respectively. The brief facts of the
case are the following:
2. The applicant was a Junior Engineer II, in Permanent Way,
Southern Railway at Punalur. An accident of derailing took place in the
sector under the charge of the applicant. On the basis of the prima facie
finding that the derailing took place for want of proper maintenance of the
track, disciplinary proceedings were initiated against him. The Enquiry
Officer submitted Annexure A6 report finding the applicant not guilty.
WP(C) NO. 14966/2008 2
The Disciplinary Authority issued Annexure A7 dated 7.7.2004 informing
the applicant that he has arrived at a finding of guilt against him based on
the report of the Enquiry Officer and called upon him to file his
representation. The applicant filed Annexure A8 objection. Overruling
the said objection, Annexure A1 order was passed by the Disciplinary
Authority – the second respondent imposing on the applicant a punishment
of removal from service. The applicant appealed. The Appellate
Authority, by Annexure A2 order, modified the order of punishment . The
applicant was ordered to be placed at a lower stage in the time scale of pay
applicable to him for a period of five years with recurring effect. It was
also clarified that the order will have the effect of postponing his future
increments. Though a revision was attempted before the competent
authority, that stood rejected by Annexure A3 order. Challenging
Annexures A1 to A3, the Original Application was filed.
3. The applicant contended that the officer who passed Annexure
A1 order is lower in rank than his appointing authority and, therefore, the
punishment imposed on him by the said officer was in violation of Article
311 of the Constitution of India. On merits, it was contended that
overruling of the finding of the Enquiry Officer by the Disciplinary
Authority was not validly made, as is evident from Annexure A7 notice. It
WP(C) NO. 14966/2008 3
was also canvassed that there were no lapses from his part and that the
charge against him itself was unfounded. The respondents in the Original
Application, who are the writ petitioners, resisted the application,
contending that the officer who passed Annexure A1 has the status equal
to that of the appointing authority. Even assuming that he is lower in rank,
now that the punishment imposed is not removal from service, as the same
has been modified by the Appellate Authority, the technical ground that
the officer who imposed the punishment is lower in rank to the appointing
authority no longer survives, it is submitted. The writ petitioners also
contended that the other grounds raised by the applicant are also
unfounded. The Tribunal, after hearing both sides, upheld the contentions
of the applicant that the order was passed by an officer lower in rank to the
appointing authority of the applicant. The contention of the Railways that
now the punishment of removal from service is modified, the said point
does not arise for consideration was not dealt with by the Tribunal.
Regarding the overruling made by the Disciplinary Authority, certain
observations were made, but the Tribunal did not render any final decision
on that point. Based on the finding that the Disciplinary Authority has no
jurisdiction to pass an order of removal from service, the impugned orders
were set aside and the Tribunal ordered reinstatement of the respondent/
applicant. Feeling aggrieved by the said order, a copy of which is produced
WP(C) NO. 14966/2008 4
as Ext.P5, this Writ Petition is filed.
4. We heard the learned counsel on both sides. In Annexure A6, the
Enquiring Authority has given his findings in the following words:
“Shri K.G. Valsanan, JE/P.Way has stated
in his defence statement that the Para 118 of
IRWPM 1986 is not a Para relevant to the
defendant as he is not a section incharge P.Way
Engineer. While referring IRWPM, it reveals that
the Para 118 is not relevant to Sub Section PWI.
In light of above evidences and;
1) Since the gauge at the point of drop was
recorded as +20 mm and +26mm was recorded
only at point of drop under loaded condition also
under free condition the Gauge +20mm which is
permitted as per Para 224 E(V) of IRWPM and
theoretical play between chair hole screw spike
permitted is +8mm as per Drawing No. T 10674
of Track manual as such total of 20+8=28mm
can be there and under loaded condition +26mm
Gauge was recorded. That means that is the total
of chair shifting plus the gauge available at that
point. And 10 points per KM exceeding the ‘C’
Category that is +6mm above the theoretical
gauge is permitted as per Para 607 of IRWPM
and
2) Since the joint track reading in case file
does not mention anything about the ballast
availability on track and since the Administrative
witness No.1 has answered to Q.No.67 that the
ballast available at outside of curve was 105 cm
width and on inside of curve was 62 cm. widthWP(C) NO. 14966/2008 5
from the non gauge face of the rail and as such
there was no ballast deficiency exist and
3) Since the Administrative witness No.2
has answered to Q. No.9 that 5mm to 10 mm
chair shifting mark was recorded and
Administrative witness No.1 has answered to
Q.No.65 that there was chair shifting mark of 5
mm and even in point track reading available in
case file no where chair shifting to the extent of
35 mm were recorded.
I conclude that the charges are NOT
PROVED.”
Overruling the said finding, the Disciplinary Authority issued Annexure
A7 which reads as follows:
"The report of the Inquiry Officer is
enclosed. The tentative views of the
undersigned, the Disciplinary Authority is also
furnished below.
“Gone through carefully enquiry report and
the report of the E.O. and I come to the
conclusion that the track was not
maintained to standard. From the enquiry
and as per the track readings, at ‘O’ station
the PSC sleeper, the insert and the pandrol
clip were found missing at the point of
mount and the wooden sleepers were in
poor state of affair which required
maintenance. Being subsection
maintenance JE, he could have paid more
attention to maintain the track in which he
failed.”
WP(C) NO. 14966/2008 6
If you wish to make any representation or
submission, you may do so in writing to the
Disciplinary Authority within 15 days of receipt
of this letter.”
5. Going by Annexure A7, we are of the view that the same cannot
be treated as an overruling of Annexure A6. If the Disciplinary Authority
does not agree with the findings of the Enquiry Authority, based on the
materials on record, he should give his reasons with reference to those
materials on record and also specifically say on what point there is
disagreement and the grounds therefor should also be stated. Therefore,
Annexure A7 is unsupportable in law and based on it, no action can be
taken against the applicant. Therefore, we sustain the quashing of the
impugned orders by the Tribunal, though on a different ground. In view of
the above position, we modify the impugned order, Ext.P5 by giving
liberty to the Disciplinary Authority to start from the stage of overruling
the findings of the Enquiry Authority, if so advised. In view of this order,
the technical ground regarding the status of the officer who passed the
order of removal from service no longer survives. But, the contentions of
both sides regarding the merits of the case are left open. The Disciplinary
Authority, if so advised, shall pass fresh proceedings, overruling the
findings in Annexure A6, within three months from the date of receipt of a
copy of this judgment. If further proceedings are proposed after
WP(C) NO. 14966/2008 7
overruling the findings in Annexure A6, the Disciplinary Authority shall
endeavour to complete the proceedings as expeditiously as possible,
preferably within three months from the date of the order, if any, passed
overruling the findings in Annexure A6.
The Writ Petition is disposed of as above.
(K. BALAKRISHNAN NAIR)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
WP(C) NO. 14966/2008 8
K.BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
W.P.(C) NO.14966/2008
JUDGMENT
30th June, 2009
WP(C) NO. 14966/2008 9