IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21/10/2005 Coram The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.K. KRISHNAN W.P.No. 11220 of 2002 and W.P.No.19751 of 2002 and W.P.M.P.No. 15158 of 2002 W.P.No. 11220 of 2002 1. Union of India, represented by the Secretary, Ministry of Railways, Railway Board, Rail Bhavan, New Delhi-110 001. 2. The General Manager, Southern Railway, Chennai-600 003. .. Petitioners. -Vs- 1. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. 2. J.K. Viswanathan. .. Respondents.
W.P.No.19751 of 2002
J.K. Viswanathan.
.. Petitioner..
Vs.
1. Union of India, represented by the
Secretary, Ministry of Railways,
Railway Board, Rail Bhavan,
New Delhi-110 001.
2. The General Manager,
Southern Railway, Park Town,
Chennai-600 003.
3. The Registrar,
Central Administrative Tribunal
Additional Bench, Chennai-104.
.. Respondents.
Writ Petitions have been filed under Article 226 of the Constitution
of India (i) for issuance of a Writ of Certiorari calling for records of first
respondent in O.A.No. 1155 of 2000 including the order dated 28-11-2001 and
quash the same; and (ii) for issuance of a Writ of Certiorarified Mandamus,
calling for records pertaining to the portion of the order dated 28-11-2001
made in O.A.No. 1155 of 2000 on the file of third respondent the Central
Administrative Tribunal, Madras Bench modifying the punishment of dismissal
from services to that of compulsory retirement and quash the same and
consequently direct the respondents to reinstate the petitioner into service
with all the consequential benefits.
!Mr. V.G. Sureshkumar:- For petitioner in W.P.No.
11220/2002 and respondents 1 and 2 in W.P.No.
19751/2002.
^Mr. P.P. Shanmugasundaram, senior counsel for
Mr. N.R. Elango for petitioner in W.P.No.
19751/2002 and for 2nd respondent in W.P.No.
11220/2002.
:COMMON ORDER
(Order of Court was made by P. Sathasivam, J.,)
Since both the writ petitions filed against the very same order of the
Central Administrative Tribunal, dated 28-11-2001, they are being disposed of
by the following common order.
2. Aggrieved by the order of the Central Administrative Tribunal,
Madras Bench dated 28-11-2001 made in O.A.No. 1155 of 200 0 modifying the
penalty of dismissal from service into one of compulsory retirement with
effect from 24-2-1999, Ministry of Railways and Southern Railway have
preferred W.P.No. 11220/2002. Questioning the very same order of the
Tribunal modifying the punishment, the applicant, namely, J.K. Viswanathan
filed W.P.No. 19751/2002 praying for quashing of the said order and for
consequential direction to reinstate him into service with all consequential
benefits.
3. For convenience, we shall refer the parties as arrayed before the
Tribunal. The applicant by name J.K. Viswanathan was charge-sheeted on two
grounds, namely, (i) that he was in dual employment when he engaged himself as
Manager with M/s. Kirloskar Electric Company, Bangalore from 1-12-1995 to
8-1-1997 without prior permission; (ii) and that he had misused the Metal Pass
on two occasions i.e., on 9-11-1995 and 10-11-1995. A full-fledged enquiry
was conducted and after the conclusion of the enquiry, the Enquiry Officer had
held both the charges had proved. Though initially the General Manager,
Southern Railway issued a show-cause notice, calling upon the applicant to
show cause why he should not be dismissed from service in view of the Service
Rules applicable to the applicant, he (General Manager) forwarded the papers
to the Railway Board/di sciplinary authority for passing appropriate order
based on the enquiry report. The Railway Board had imposed penalty of
dismissal from service. Thereafter, the appellate authority in consultation
with the Union Public Service Commission, had rejected the appeal filed by the
applicant and confirmed the order of the disciplinary authority. The order of
dismissal was challenged before the Central Administrative Tribunal, Madras
Bench in O.A.No. 1155/2000. The Tribunal after recording the fact that there
is no dispute regarding the enquiry and the manner in which findings were
rendered by the enquiry officer, taking note of the proportionality of the
punishment imposed on the applicant and considering his unblemished service to
a span of 32 years, and all other circumstances, set aside the extreme penalty
of dismissal and converted into one of compulsory retirement. Questioning the
same, the Railway administration as well as the applicant preferred the above
writ petitions.
4. Heard Mr. V.G. Sureshkumar, learned counsel for Railway
Administration and Mr. P. Shanmugasundaram, learned Senior Counsel for the
applicant.
5. Mr. V.G. Sureshkumar, learned counsel for the Railway
Administration, by drawing our attention to Rule 10 of Railway Servants
(Discipline and Appeal) Rules, 1968 and Rule 15 sub-rule (1) and sub-rule (5)
of the Railway Services (Conduct) Rules, 1966, submitted that the Tribunal is
not justified in interfering with the punishment and prayed for setting aside
the impugned order. On the other hand, the contention of Mr. P.
Shanmugasundaram, learned senior counsel for the applicant, is that inasmuch
as the General Manager has initiated the proceedings and issued show-cause
notice and also forwarded the papers to the disciplinary authority with his
recommendation for dismissal on the ground that he is not competent authority
under the Rules, the ultimate penalty imposed by the disciplinary authority
and modified by the Tribunal cannot be sustained. He also contended that
inasmuch as the applicant was not furnished with the copy of the report of the
Union Public Commission/Central Vigilance Commission, the order of dismissal
is liable to be set aside on the ground of violation of principles of natural
justice.
6. We have carefully considered the rival contentions and also
perused all the materials.
7. Inasmuch as the applicant had no grievance over the enquiry
proceedings as well as the findings rendered by the enquiry officer, there is
no need to traverse the enquiry and the findings of the enquiry officer. The
fact remains that both the charges levelled against the appellant are found to
be proved. As pointed out by the learned counsel appearing for the Railway
administration, if the disciplinary authority is of the opinion that the
penalty warranted is such as is not within its competence, he has to forward
the records of the enquiry to the appropriate disciplinary authority. This is
evident from Rule 10 of the Railway Servants (Discipline and Appeal) Rules,
1968. It is not in dispute that the competent authority for imposition of
penalty of dismissal, is the Railway Board; accordingly the General Manager
who issued show cause notice conveying the proposed punishment has forwarded
all the proceedings to the Railway Board for further action. Ultimately, the
Railway Board considering all the materials, including the gravity of the
proved charges, imposed the penalty of dismissal from service and the same was
upheld by the appellate authority. Learned counsel for the Railways also
contended that inasmuch as the applicant engaged himself in a private concern,
namely, M/s. Kirloskar Electric Company for the period between 1-12-95 and
8-1-97 which is contrary to Rule 15 (1) and (5) of the Railway Services
(Conduct) Rules, 1966, the Railway Board is fully justified in imposing the
extreme penalty of dismissal and according to him, the Tribunal committed an
error in interfering with the punishment. It is true that as per the above
mentioned Rule, no railway servant shall, except with the previous sanction of
the Government, engage directly in any trade or business or negotiate for or
undertake any other employment. It is clear that without the sanction of the
prescribed authority, no railway servant is permitted to undertake any other
employment, when he was in service. However, as rightly observed by the
tribunal, except the above violation, there is no deficiency of service in the
case of the applicant, more particularly when he had completed 32 years of
service with an unblemished record. These two prime aspects have been
considered by the Tribunal which after finding that except the proved charges
no other short comings noticed in the discharge of his duties, modified the
penalty of dismissal into one of compulsory retirement. Inasmuch as the
Tribunal has adduced acceptable reasons for such modification, we concur with
the same and reject the argument of the counsel for the Railway
administration.
8. It is also relevant to note that when the Rule does not empower
the General Manager to impose penalty of dismissal, as rightly pointed out by
the Tribunal and argued by the learned senior counsel for the applicant, the
General Manager ought not to have recommended the punishment of dismissal to
the competent authority, namely, the Railway Board. In other words, the
burden of awarding punishment lies on the Railway Board.
9. Now we shall consider whether the Tribunal is justified in
modifying the punishment? In this regard, it is useful to refer the following
conclusion of the Supreme Court in B.C. CHATURVEDI v. UNION OF INDIA,
reported in (1995) 6 Supreme Court Cases 749: (pp.18 and 22)
“18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the evidence with a
view to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty. If the punishment imposed by the disciplinary authority
or the appellate authority shocks the conscience of the High Court/Tribunal,
it would appropriately mould the relief, either directing the disciplinary/
appellate authority to reconsider the penalty imposed, or to shorten the
litigation, it may itself, in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support thereof.
19 to 21. xx xx
22. The aforesaid has, therefore, to be avoided and I have no doubt that a
High Court would be within its jurisdiction to modify the punishment/penalty
by moulding the relief, which power it undoubtedly has, in view of a long line
of decisions of this Court, to which reference is not deemed necessary, as the
position is well settled in law. It may, however, be stated that this power
of moulding relief in cases of the present nature can be invoked by a High
Court only when the punishment/penalty awarded shocks the judicial
conscience.”
10. In STATE OF UP. v. JAIKARAN SINGH, reported in (2003) 9 Supreme
Court Cases 228, it was held that,
“Normally, the Court in exercise of power under Article 22 6 does not
interfere with the quantum of punishment alone if the charges are established
against the delinquent and there is no lacuna in the procedure adopted in the
departmental proceedings. But at times if the Court feels that the punishment
inflicted is grossly unjust and shocks the conscience then in appropriate
cases the Court may interfere….”
11. In Writ Petition No. 92/98 dated 08-10-2001 (A. RAMASWAMY v.
STATE OF TAMIL NADU, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OOF
EDUCATION, CHENNAI-9), a Division Bench of this Court, almost in identical
circumstance and taking note of the fact that there was only a single instance
of proof of receipt of Rs.5,000/- from a friend on the promise of getting her
selected for the Teacher’ s post, that he also repaid the amount together with
interest and he had put in 33 years of unblemished service and on the verge of
retirement, the said incident had taken place, accepted the plea for reduction
of the penalty and passed an order modifying the penalty of removal from
service into one of compulsory retirement.
12. In view of the factual conclusion, namely, that except the two
charges, no other shortcoming has been noticed during the tenure of 32 years
of service rendered by the applicant and of the fact that he had no other
deficiency in service, in the light of the judicial pronouncements, as
discussed above, we hold that the Tribunal is fully justified in modifying the
extreme penalty of dismissal from service into one of compulsory retirement
and no interference is called for at the instance of Railway administration.
13. Coming to the claim of the applicant regarding non supply of the
Advice tendered by UPSC and CVC, admittedly, there is no rule or Government
Order mandating the department to supply copy of the Advice received by those
bodies. As rightly pointed out by the Railway counsel, as well as concluded
by the Tribunal that both these bodies are entitled to submit their advice and
the fact that the copy was not furnished to the applicant would not vitiate
the entire proceedings. As rightly pointed out, the applicant had taken part
in the enquiry and the enquiry officer ultimately concluded that both the
charges had proved. As observed earlier, it is not the case of the applicant
that the enquiry was not conducted in the manner known to law or he was not
given adequate opportunity nor the findings of the enquiry officer are
perverse. In such circumstances, in the absence of enabling rule or
notification or order by the department or Government, it cannot be contended
that due to non-supply of the advice tendered by UPSC and CVC, the entire
proceedings are vitiated. The Tribunal properly considered this aspect and
rightly rejected the claim of the applicant. We are in
agreement with the said conclusion.
14. With regard to the suggestion of the General Manager regarding
proposed punishment, as said earlier, after finding that the proper authority
to impose penalty of dismissal is the Railway Board, the General Manager has
forwarded the entire records to the said authority and merely because he
suggested the mode of punishment to be inflicted, the entire proceedings
cannot be quashed. This aspect was also considered by the Tribunal and taking
note of all the circumstances, including the past record of service of the
applicant, the Tribunal rightly modified the penalty of dismissal into one of
compulsory retirement.
15. Under these circumstances, we are in agreement with the
conclusion arrived at by the Tribunal and unable to accept the contentions
raised by the Railway Administration as well as the applicant. Consequently,
both the writ petitions are dismissed. No costs. Connected miscellaneous
petition is closed.
Index:- Yes.
Internet:- Yes.
R.B.
To:-
1. The Secretary, Union of India,
Ministry of Railways,
Railway Board, Rail Bhavan,
New Delhi-110 001.
2. The General Manager,
Southern Railway, Park Town,
Chennai-600 003.
3. The Registrar,
Central Administrative Tribunal
Additional Bench, Chennai-104.