Central Administrative Tribunal - Hyderabad
Shri M.A. Rasheed Jameel vs Syed Fareeduddin Oshaukat In Slp ... on 2 September, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.As. No. 868 OF 2005 & 875 OF 2007 DATE OF ORDER: THE 2ND SEPTEMBER, 2008 Between:
OA 868/ 2005 Shri M.A. Rasheed Jameel S/o M.A.G. Jameel Health Inspector/ GTL Colony South Central Railway Guntakal Division Guntakal, Anantapur District. ... Applicant And
1. The Chief Medical Superintendent Guntakal Division South Central Railway Guntakal, Anantapur District.
2. The Senior Medical Superintendent (Admn.) Railway Hospital South Central Railway Guntakal Division, Guntakal Anantapur District. ... Respondents Counsel for Applicant : Mr. P.S. Ramachandra Murthy, Advocate Counsel for Respondents : Mr. M.C. Jacob, SC for Rlys.
OA 875/ 2007 Shri M.A. Rasheed Jameel S/o M.A.G. Jameel Health Inspector Railway Station/ Vijayawada South Central Railway ... Applicant And
1. The Chief Medical Superintendent Railway Hospital South Central Railway Guntakal Division, Guntakal.
2. Shri Dr. B. Joshi Chief Medical Superintendent Railway Hospital South Central Railway Guntakal Division, Guntakal.
3. The Chief Medical Superintendent Railway Hospital South Central Railway Vijayawada Division, Vijayawada.
24. The Senior Medical Superintendent Health & Family Welfare, Railway Hospital South Central Railway Guntakal Division, Guntakal.
5. The Senior Divisional Personnel Officer South Central Railway Guntakal Division, Guntakal.
6. The Senior Divisional Personnel Officer South Central Railway Vijayawada Division, Vijayawada. ... Respondents Counsel for Applicant : Mr. P.S. Ramachandra Murthy, Advocate Counsel for Respondents : Mr. M.C. Jacob, SC for Rlys.
Coram :
The Hon'ble Mr. Justice P. Lakshmana Reddy, Vice Chairman The Hon'ble Mr. R. Santhanam, Member (Admn.) (Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC) Both these applications are filed by the same applicant and against the same respondents and as the issue involved in both the applications are inter connected, we consider it expedient to dispose of both these OAs by way of this common order.
2. OA 868/ 2005 is filed seeking to quash and set aside the impugned proceedings dated 30.11.2004 and 28.4.2005 by which the applicant was initially compulsorily retired and on appeal was reduced to lower pay from 6900/- to 6725/- for a period of 5 years with recurring effect by declaring the same as wholly without jurisdiction, arbitrary, illegal and violative of Articles 14, 16 and 311 (1) of the Constitution of India.
3. The punishment of reduction of pay from 6900/- to 6725/- for a period of 5 years with recurring effect was corrected to reduction of the scale from 6900/- to 6025/- with effect from 13.6.2005 for a period of 5 years with recurring effect by way of issue of corrigendum dated 28.11.2007. Challenging the said 3 corrigendum, OA 875/ 2007 is filed to set aside the said corrigendum issued by R-2 in the capacity of R-1 by declaring the same as entirely without jurisdiction, malicious, illegal, arbitrary, violative of the statutory provisions contained in Rule No.25 of Railway Servants (Discipline and Appeal) Rules, 1968 and violative of Article 14, 16 & 21 of the Constitution of India.
4. The relevant facts in brief are as follows:
The applicant, M.A. Rasheed Jameel, was appointed as Health Inspector in the year 1990 and while he was working as Health Inspector in Guntakal Railway Colony, disciplinary proceedings were initiated against him for imposition of a major penalty for certain lapses alleged to have been committed by him, viz. The applicant performed official tours during the year 1996-97 without prior permission from his immediate superior and had claimed TA by showing fictitious movements on 24.10.97 and 4.11.97. As the applicant denied the charges, an inquiry officer was appointed. After inquiry he submitted a report finding the applicant guilty of the charges framed against him and after communication of the said report and inviting comments from the applicant, R-4, viz. The Senior Medical Superintendent, Health & Family Welfare, Railway Hospital, S.C. Railway, Guntakal Division, Guntakal accepted the findings of the inquiry officer and imposed punishment of compulsory retirement by impugned order dated 30.11.2004. Against the said penalty, the applicant preferred an appeal on 5.12.2004 to R-1, viz. the Chief Medical Superintendent, Guntakal Division, S.C. Railway, Guntakal contending among other grounds that R-4 is not competent to act as disciplinary authority to impose the penalty of compulsory retirement against him. R-1 upheld the contention of the applicant regarding the incompetency of Senior Medical Superintendent (Admn.) to act as disciplinary authority and to impose punishment of compulsory retirement, and set aside the 4 orders of compulsory retirement passed by the Senior Medical Superintendent (R-2). But, R-1 proceeded to pass orders holding that the charges against the applicant have been proved, and then imposed penalty of reduction of pay from Rs.6900/- to Rs.6725/- in the scale of Rs.5500 9000 for a period of 5 years with the effect of postponing future increments by his orders dated 28.4.2005. Later, on 30.4.2005, the applicant reported for duty and his pay has been fixed reducing the same from Rs.6900/- to Rs.6725/-. In the orders dated 28.4.2005, R-1 advised the applicant under Rules 18 & 19 of Railway Servants (D&A) Rules, 1968 that he may prefer an appeal against these orders to CMD/ SC within 45 days from the date of receipt of a copy. Thereafter, the applicant filed the present application on 28.9.2005 challenging the orders dated 30.11.2004 passed by R-2 and 28.4.2005 passed by R-1 on the following grounds which read as follows:
(a) The second respondent being subordinate to the CPO/ SC in rank, and since the CPO/ SC happens to be the appointing authority for the applicant herein, the second respondent is not empowered to impose the penalty of compulsory retirement on the applicant. When the initial penalty imposed by the disciplinary authority is itself without jurisdiction, the consequential orders of the appellate authority dated 28.4.2005 also deserves to be set aside.
(b) The respondents ought to have seen that the 1st respondent himself admitted in his orders dated 28.4.2005 that the Sr. MS/ Admn/ GTL (i.e. the 2nd respondent herein) that the 2nd respondent is not empowered to impose the penalty of compulsory retirement on the applicant herein and as such the orders passed by the 2nd respondent is entirely without jurisdiction.
(c ) The Hon'ble Supreme Court in the case of S.C. Railway Vs. Syed Fareeduddin Oshaukat in SLP (Civil) 2006 of 1990 dated 5.1.1995 had held the same view and dismissed the SLP filed by the Railway Administration for the reason that the appointing authority had not removed the Railway Servant, but was removed by a lower authority to that of appointing authority, and as such the removal is violative of Article 311 (1) of the Constitution of India.
(d) The Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & ors, 1998 (1) SCC 1 had held that alternative remedy is not a bar for filing Writ Petition application where the proceedings are wholly without jurisdiction.
5(e) The Lucknow Bench of the Hon'ble Tribunal in the case of K.N. Bharadwaj Vs. Union of India & ors, 2002 (2) ATJ 477 had held that the plea of alternative remedy is not acceptable in cases where the application is filed challenging the jurisdiction of the authority issuing such order.
(f) The Kerala High Court in the case of Anantha Krishnan Vs. Oriental Fire & General Insurance C. Ltd. 1988 LLJ 526 had held that when the initial orders are itself without jurisdiction, he consequential orders are also invalid in the eyes of law and the inquiry cannot become valid on account that the inquiry was held in conformity with the principles of natural justice.
(g) The findings of the disciplinary and appellate authorities are not based on any evidence adduced during the course of inquiry but was based on extraneous matters.
(h) The respondents have failed to take into account that the applicant was never under the control of DMO/ DKJ and as such there was no necessity for him to have obtained the prior permission of the DMO/ DKJ.
(i) The respondents ought to have seen that the applicant was under the control of the Area Officer/ BDCR and there was no complaint from the AO/ BDCR non-obtaining of prior sanction for conducting official tours.
(j) The respondents ought to have seen that the applicant was never paid the alleged T.A. Amounts and that the claim did not bear the applicant's signature.
5. The respondents contested the application and filed reply statement stating that due inquiry was conducted against the applicant and based on the findings of the inquiry officer, the second respondent by proceedings dated 30.11.2004, imposed punishment of compulsory retirement from service. Aggrieved by the said order, the applicant filed OA 1268/ 2004 questioning the competency of the disciplinary authority and simultaneously filed an appeal before R-1 against the orders of R-2. This Tribunal disposed of the OA on 15.2.2005 directing R-1 to dispose of the appeal within a period of six weeks. The appellate authority after considering the entire material on record, agreed with the contention of the applicant in regard to imposing the penalty of compulsory retirement by R-2, is 6 without competency and modified the penalty to that of reduction of pay by five stages in the time scale of pay of Rs.5500-9000 for a period of five years recurring, duly treating the period between the date of compulsory retirement till the date of joining as dies non. The said order further advised the applicant that he can file an appeal to the Chief Medical Officer at Secunderabad under Rule 18 & 19 of the Railway Servants (D&A) Rules, 1968. Based on the said revised order, the applicant joined duty and filed the present OA to quash and set aside the order dated 30.11.2004 and 28.4.2005. The respondents pleaded that the order of the disciplinary authority dated 30.11.2004 is no more available to the applicant to challenge the same in view of the orders dated 28.4.2005 passed by R-1. The first respondent imposed the punishment on the applicant as disciplinary authority duly canceling the earlier order of R-2. Hence, the contention of the applicant that the order is without jurisdiction and competency is incorrect and is liable to be rejected. The first respondent being the Chief Medical Superintendent, Railway Hospital, Guntakal, is equivalent in rank to that of Chief Personnel Officer, is also competent to impose the punishment of removal/ dismissal/ compulsory retirement as the applicant was granted alternative effective remedy of appeal against the order of R-1, the OA is liable to be rejected on the said ground alone. The respondents prayed for dismissal of the application as devoid of merits.
6. The applicant filed rejoinder almost reiterating the contentions raised in the application. He further pleaded that in view of the unequivocal admission by the respondents themselves in the reply, the appellate authority modified the penalty of compulsory retirement to that of reduction of pay, it clearly established that the first respondent had acted as appellate authority and had considered the appeal under Rule 22 (2) of the Railway Servants (D&A) Rules, 1968. Even in the impugned order dated 28.4.2005, in para 1, it is stated that in terms of Rule 22 (2) 7 of RS (D&A) Rules, 1968, the appellate authority has carefully considered the appeal and that being the position, the contention of the respondents that the first respondent acted as a disciplinary authority is not tenable. R-1 cannot exercise the powers under Rule 22(2) and Rule 10 simultaneously. As according to the respondents, the earlier order of compulsory retirement was modified by R-1, the orders of R-1 is a consequential order of the earlier order of compulsory retirement Therefore, when the initial orders itself are without jurisdiction, the consequential orders are also invalid in the eyes of law. The applicant disputed the contention of the respondents that R-1 is equivalent to the rank of Chief Personnel Officer. According to the applicant, the Chief Personnel Officer's post is an higher administrative grade post whereas R-1 is only a senior administrative grade officer. The applicant further pleaded in the rejoinder that when R-1 himself had acted as appellate authority and disposed of the appeal, he cannot further direct the applicant to again appeal to the next higher authority. As the initial orders are without jurisdiction, as had been admitted by R-1 himself, the need for exhausting further remedy does not arise. From the mere reading of the order dated 28.4.2005, it becomes clear that the orders passed by R-1 are under Rule 22 (2) and not as disciplinary authority.
7. During the course of hearing, the learned counsel for the applicant reiterated the contentions raised in the application and rejoinder. The learned counsel further contended that R-2 is not empowered to initiate disciplinary proceedings against the applicant, much less to impose the penalty of compulsory retirement. Therefore, the orders dated 30.11.2004 are not sustainable in law and when that order is not sustainable, subsequent orders passed in respect of such orders are also not sustainable in law. On the other hand, the learned counsel for the respondents submitted that the impugned order dated 30.11.2004 passed by R-2 has already 8 been set aside by R-1 and therefore, there is no purpose in challenging the order dated 30.11.2004, and that the order dated 28.4.2005 is to be taken as the order passed by disciplinary authority as in the said orders, it is clearly stated that the applicant has got right to appeal before the higher authorities against the orders dated 28.4.2005. He further submitted that no prejudice is caused to the applicant as his right of appeal is protected by informing the applicant that he can file an appeal against the orders dated 28.4.2005.
8. The points that arise for consideration in this application are:
(i) Whether R-2 is competent to initiate disciplinary proceedings and to pass an order of penalty of compulsory retirement against the applicant?
(ii) Whether the impugned order dated 28.4.2005 can be treated as an order passed by disciplinary authority on the basis of the inquiry officer's report?
(iii) If not, whether the impugned orders dated 28.4.2005 is sustainable in law?
(iv) Whether the corrigendum dated 28.11.2007 is liable to be set aside?
(v) To what result?
9. Point No. (i):
So far as the power of R-2 to impose penalty of compulsory retirement against the applicant is concerned, R-1 in his order dated 28.4.2005 held that R-2 is not competent to pass an order of compulsory retirement, and also set aside the orders of penalty dated 30.11.2004 passed by R-2. Therefore. There is no need to challenge the orders dated 30.11.2004 passed by R-2 which was set aside by R-1. During the course of hearing, the learned counsel for the applicant contended for the first time that R-2 is not competent to even initiate disciplinary proceedings in respect of major penalty proceedings and therefore the entire disciplinary 9 proceedings are vitiated. In support of this contention he invited our attention to Rule 2 (1) (c) (iii) of the Railway Servants (Discipline & Appeal) Rules, 1968 wherein it is stated that the disciplinary authority means 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. Rule 8 deals with the authority to institute proceedings. As per sub rule (2) of Rule 8 of Railway Servants (Discipline & Appeal) Rules, 1968, a disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may; subject to the provisions of clause (c ) of sub-rule (1) of Rule 2, institute disciplinary proceedings against any railway servant for the imposition of any of the major penalties specified in clauses (v) to (ix) of Rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the major penalties. Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 deals with the procedure for imposing major penalties. As we are now considering whether R-2 is competent to initiate disciplinary proceedings in respect of major penalties, Rule 9 has no relevance and it is only Rule 8 which is relevant. Therefore, Rule 2 (1) (c ) (iii) relied on by the counsel for the applicant is not applicable to the facts of this case. In view of Rule 8 (2) of Railway Servants (Discipline & Appeal) Rules, 1968, though R-2 is not competent to impose major penalties, he is empowered to initiate disciplinary proceedings even in respect of major penalties. Therefore, we find no force in the belated contention raised by the counsel for the applicant. Thus, this point is found accordingly.
10. Points (ii) & (iii):
The impugned order dated 28.4.2005 is filed as Annexure A-11, which read as follows:
Sub: Vigilance action against Shri M.A. Rasheed Jameel, HI/RC Ref: Appeal dated 5.12.2004 to CMS/ RH/ GTL.10
In terms of Rule 22 (2) of Railway Servants (Discipline & Appeal) Rules, 1968, the undersigned, the Appellate Authority has carefully considered the appeal cited with relevant records and observed as under:
1. Procedure laid down in these rules has been complied with
2. Findings are warranted with evidence on record.
I have carefully gone through the appeal dated 5.12.2004 submitted by Shri M.A. Rasheed Jameel, Health Inspector/ RC against the penalty of compulsory retirement imposed by the Disciplinary Authority, viz., Sr. MS/ Admn./ RH/ GTL, and also the appeal submitted by him during his personal interview with the undersigned on 7.4.2005 along with the case file, inquiry proceedings, IO's report etc. I have observed that there was no regular doctor at health unit/ BDCR but being manned by the relieving duty doctor. The charged employee was under control of 2 controlling authorities. However the charged employee should have obtained prior permission for his line programmes from any one of them, which he failed. Instead he took advantage of this situation for his benefit, thus claiming TA as he liked. Performing journeys without prior approval and claiming of TA for journeys not performed are serious lapses.
I agree with the findings of the Inquiry Officer and the speaking orders of disciplinary authority i.e. Sr. MS/ Admn and I am convinced that charges against the CE have been proved. From the reading of the paragraphs, it is clear that the first respondent passed the said order exercising his appellate powers. Of course, at the end of the order, it is stated that the applicant may prefer an appeal against these orders to to CMD/ SC under Rule 18 & 19 of the Railway Servants (Discipline & Appeal) Rules, 1968. It is true that Rules 18 & 19 are the Rules which provides an appeal against the orders of disciplinary authority to the appellate authority, but the Rule 22 referred to in the first paragraph of the orders deals with consideration of appeal filed against the orders of disciplinary authority. Further, in the orders, the first respondent observed as follows:
I agree with the findings of the Inquiry Officer and the speaking orders of disciplinary authority i.e. Sr. MS/ Admn and I am convinced that charges against the CE have been proved. From these sentences, it is clear that the first respondent did not consider himself as a disciplinary authority passing the orders on the basis of the inquiry officer's 11 report. Instead, he considered not only the findings of the inquiry officer but also the speaking orders of R-2. The speaking orders referred therein are no other than the impugned orders dated 30.11.2004, which were set aside by R-1 on the ground of incompetency of R-2 to pass such an order. If R-1 was exercising his powers as a disciplinary authority, he ought not to have considered the orders of R-2 at all and he ought to have considered only the inquiry officer's report and the record of inquiry with open mind and then pass orders as a disciplinary authority. Therefore, in our considered view, the impugned order dated 28.4.2005 cannot be taken as an order passed by disciplinary authority, without being influenced by the orders of R-2 who is found incompetent to pass such orders. Therefore, we consider that this is a fit case to set aside the impugned order dated 28.4.2005 and remit back the matter to the first respondent with a direction to pass orders afresh, taking into consideration only the report of the inquiry officer along with the inquiry records or proceedings and the representation submitted by the applicant against the findings of the inquiry officer's report and pass appropriate orders. Thus, these points are found accordingly.
11. Point No. (iv):
In view of the findings in the orders dated 28.4.2005, passed by R-1 in respect of which the impugned corrigendum was issued, are set aside, the corrigendum automatically goes and therefore there is no need to pass orders specifically setting aside the said impugned corrigendum dated 28.11.2007.
12. Point No. (v) In the result, the impugned order dated 30.11.2004 passed by R-2 and the impugned order dated 28.4.2005 passed by R-1 are set aside and the matter is remitted back to R-1 to consider the inquiry officer's report, inquiry records/ proceedings and the representation submitted by the applicant against inquiry 12 officer's report and to pass appropriate orders in accordance with law within three months from the date of receipt of this order. The applicant is at liberty to submit fresh representation, if any, against the findings of the inquiry officer addressed to R-1. Status quo ante, i.e. Prior to 30.11.2004 shall be restored pending final orders to be passed by the competent disciplinary authority, viz. R-1. OA 868/2005 is accordingly disposed of. OA 875/ 2007 is disposed of as no orders need to be passed in view of setting aside the orders dated 28.4.2005 and remitting the matter to the disciplinary authority. No order as to costs.
(R. Santhanam) (P. Lakshmana Reddy)
Member (A) Vice-Chairman
Dated: 2nd September, 2008