Central Administrative Tribunal - Allahabad
Vijay Kumar Srivastava vs N C Rly. on 30 August, 2023
O.A./75/2014
(Reserved on 24.08.2023)
Central Administrative Tribunal, Allahabad
****
Original Application No.75 of 2014
Pronounced on 30th Day of August, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Vijay Kumar Srivastava, Aged about 53 years, S/o late Shri Harish
Chandra Srivastava, Ex-Senior Section Engineer (Track, Construction-I),
North Central Railway, Kanpur R/o-620/111/W-Block, Keshav Nagar,
Kanpur-208014.
....Applicant
By Advocate: Shri N.P. Singh
Versus
1. Union of India through General Manager, North Railway, Baroda
House, New Delhi.
2. General Manager, North Central Railway, Subedarganj,
Allahabad.
3. Chief Engineer (c), North Central Railway, Subedarganj,
Allahabad.
4. Deputy Chief Engineer (C), North Central Railway, Kanpur.
5. Chief Administrative Officer (Con) North Central Railway,
Subedarganj, Allahabad.
6. Sri Anurag Yadav, Deputy Chief Engineer (C), North Central
Railway, Kanpur.
...Respondents
By Advocate: Shri Manoj Kumar Sharma
ORDER
Delivered by Hon'ble Dr. Sanjiv Kumar, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the relief to quash the charge sheet dated 14.07.2009; to quash the appellate order dated 28.06.2013; quash the order dated 22.10.2013 passed by respondent No.5; to reinstate the applicant to his original position Page 1 of 21 O.A./75/2014 with all consequential benefits; to direct the respondents to produce all original records pertaining to disciplinary proceedings before the Hon'ble Tribunal and to pass any other direction as the Tribunal may deem fit and proper and award the cost to the applicant. Subsequently the applicant has amended the relief clause on 08.04.2019 and sought the additional relief of quashing the impugned order dated 08.03.2013 passed by respondent no.4.
2. The facts of this case are that vide order dated 14.07.2009, charge sheet was issued against the applicant by the Dy. Chief Engineer (C), North Central Railway, Kanpur who is not the appointing authority in case of the applicant. Four charges were framed. One was regarding the transportation of material from one store to another railway store. The applicant contended that there was not whisper regarding any shortage or misappropriation of government material in the said charge sheet. It was mere shifting of material from one store to another. The applicant wanted to highlight that senior most trade union leader was involved and in this regard the Vigilance of Zonal Railways has taken cognizance and it was handed over by the Vigilance to the RPF, Kanpur Central for investigation and after interrogation and inquiry, a detailed report by the RPF has been furnished and in that report it is mentioned that there is no fault of the applicant in the entire episode. But contrary to the report the charge sheet dated 14.07.2009 has been framed indicating malafide biased and prejudiced nature of the disciplinary authority who was adamant to punish the applicant based on vague and frivolous charges.
3. The inquiry officer was appointed to furnish his detailed report on 29.10.2012 and the same was communicated to the applicant vide letter dated 19.02.2013 and no vigilance inquiry report was communicated with the said letter which came to his notice only vide appellate order dated 28.06.2013 and inquiry by RPF was uncalled for as it was parallel inquiry to the Vigilance inquiry. The applicant emphasizes that it is evident from the conclusion report that there was no misappropriation of government material and Page 2 of 21 O.A./75/2014 due to some mechanical fault the said Trailer could not reach at destination well within time and the aforesaid material has been unloaded at Panki store in presence of Vigilance and RPF and the entire material was found OK. The applicant further submits that the appellate order itself speaks contrary to the RPF report dated 02.07.2009. The applicant has submitted a detailed reply to the said report on 01.03.2013 after which the respondent No.4 has called the applicant to his chamber on 01.03.2013 and threatened him that he will pass his removal order which proved malafide and prejudiced nature of the respondent no.4 who exceeding his jurisdiction passed the removal order on 08.03.2013 without considering the investigation report dated 02.07.2009 furnished by the RPF on the basis of Vigilance memo dated 27.06.2009 and without any jurisdiction as he was not the appointing authority of the applicant. Hurriedly on the same day the applicant was forced to hand over his charge. The applicant preferred an appeal to Chief Engineer, North Central Railway, Allahabad on 11.03.2013 which was rejected by respondent No.3 without considering the grounds taken in the appeal through a cryptic order dated 28.06.2013. Power of respondent No.4 was restricted up to reduction to lower stage in time scale for a period exceeding three years or with cumulative effect or adversely affecting pension but while passing the impugned order dated 08.03.2013 respondent no. 4 has exceeded his jurisdiction in an arbitrary manner and gave the punishment of removal from service which was not within his powers. Hence, the said removal order was arbitrary and illegal.
4. The applicant was selected through Railway Service Commission vide advertisement No. 1/81/82 against category no.5 on the post of Permanent Way Inspector and his appointment letter was issued by General Manager (P), Northern Railway New Delhi. He was trained at Zonal Training School, Chandausi from where a letter was issued on 01.02.1983 addressed to the General Manager (P), Northern Railway, Headquarter office, New Delhi, who is the appointing authority for him. The applicant quotes letter No. E(D&A) 76 Rly. 6-49, SC 108/77 dated 20.08.1977 of Railways Page 3 of 21 O.A./75/2014 Board where it has been clarified that the appointing authority cannot delegate his functions or powers to any lower authority. Further delegation may serve the purpose only so long as the employee is not in a position to prove that he was not actually appointed by any higher authority in spite of the delegation and, accordingly, punishment of dismissal/ removal/ compulsory retirement from service cannot be inflicted by such staff or authority lower than the General Manager. Hence, the order of the authority as per him was without jurisdiction and illegal. He emphasized that charge no.1 has been proved on the basis of preponderance of probability which is in contradiction of the observation made by the I.O. Therefore, the first charge sheet does not stand proved by the finding given by the I.O. himself. The second charge in respect of issuance of challan was also proved by the I.O. which is against the evidence adduced by the P.W.5 i.e. Shri Rajvir Singh Sr. Clerk. Charge No.3 with respect to the materials which had left from Jakharkatti before 17:38 hrs. on 26.06.2009 but had not reached Panki up to 16:35 hrs. on 27.06.2009 and that the applicant had intentionally not informed his senior RPF or Police or Civil Police before Vigilance in a reasonable time and as a result charge sheet had been found partially proved is factually not correct and away from the inquiry report. Charge no.4 has been found not proved and the appellate authority has observed that the aforesaid charge sheet has been issued on the basis of vigilance investigation but the copy of the vigilance investigation has not been incorporated in annexure no.3 of the list of documents and not supplied to the applicant along with the charge sheet nor with the inquiry report.
5. In compliance of the direction of the Tribunal dated 11.04.2013 the respondents decided the appeal dated 11.03.2013 in illegal and arbitrary manner without giving any reason for rejection and while deciding the appeal the authority is not the same as the appointing authority in the case of the applicant and he also did not consider that removal from service was too harsh a penalty for the technical irregularities whereas all the evidences on record were available Page 4 of 21 O.A./75/2014 that there is no misappropriation or embezzlement of Railway material. The applicant further wants to say that he was issued notice dated 15.10.2009 and vide order dated 07.10.2009 he was repatriated to his parent division, Delhi, so the respondents could not have issued charge sheet and initiated the disciplinary proceedings imposing the major penalty against him and in no way they have power or jurisdiction to pass the removal order against the applicant. The applicant has quoted rule 15 regarding railway servants lent to State Governments etc. which clearly says that borrowing authorities cannot pass orders for removal and the respondents have violated this provision in his case as he was borrowed from Delhi division. So, considering these facts, the O.A. should be allowed and the impugned order should be set aside.
6. Respondents have filed objection on the maintainability of this case on 04.04.2014 wherein they have mentioned inter alia other things that with O.A./75/2014 the applicant has filed another Original Application no.325/2013 (V.K. Srivastava Vs. Union of India and others) challenging the removal order dated 08.03.2012 which was passed on the basis of the charge sheet dated 14.07.2009 and the applicant has claimed the reliefs in O.A./325/2013 to quash the order dated 08.03.2013 passed by respondent no.4 therein and to direct respondent no.3 to decide the representation of the applicant on Statutory Appeal dated 11.03.2013 within fifteen days and during the pendency of the appeal dated 11.03.2013 the applicant may be permitted to discharge his duties with salary etc. They contend that the Original Application no. 75/2014 filed by the applicant is barred by principles of constructive res judicata as it is of the same matter wherein the charge sheet dated 14.07.2009 is also challenged which led to the said order in the first O.A. but in the present O.A. initially they did not challenge the removal order and parallel proceedings were going on and two proceedings in the same cause of action is not permissible. They relied on Hon'ble Apex Court's Judgements in the case of S.M. Sharma Vs. Shri Page 5 of 21 O.A./75/2014 Krishna Sinha A.I.R. 1959 S.C. Supreme Court page 395, Daryao Vs. State of U.P., AIR 1961 SC 1457, Devilal Vs. Sales-tax Officer, AIR 1965 SC 1150, Gulab Chand Vs. State of Gujrat, AIR 1965 SC 1153 & Padmanabhan Nair Vs. State of Kerala, AIR 1966 Ker 110 (121). Hence, the present application is not maintainable. They further pointed out that in column 7 in the O.A. "matter not previously filed or pending with the Tribunal" the applicant clearly discloses that he has not filed any application or suit regarding the matter in respect of which this application has been made before this Tribunal. He has not declared that he has previously filed an original application no.325 of 2013 before this Tribunal regarding the same disciplinary proceeding and concealed the aforesaid facts and a false averment on this ground alone the original application should be dismissed as the applicant has not approached this court with clean hands.
7. The respondents have further filed another counter affidavit on 02.04.2014 wherein they quoted the rules about the appointing authority in relation to the Railway servant and they wanted to assert that as per the record of the service book of the applicant, the Divisional Personnel Officer is written as the appointing authority. Shri V.K. Srivastava was appointed in Grade 1400-2300 (RPS) in the engineering branch. After that he got one regular promotion and as per records the promotion was given by Sr. Divisional Personnel Officer and he was given MACP benefit by the Deputy Chief Engineer/ Construction/ Kanpur. The applicant did not use these two letters and tried to take help of the letters for adhoc appointment to show that his disciplinary authority as well as appointing authority was only the General Manager. Shri V.K. Srivastava was appointed by Divisional Personnel Officer/ Northern Railway/ New Delhi as PWI/Grade-III in pay scale of Rs. 425-700 in 1983 and transferred under SEN(C) Sutagarh in the year 1984, but his lien was maintained in Delhi Division of Northern Railway. He was subsequently transferred to SEN(C)/Kanpur in 1988 and there he was promoted as Page 6 of 21 O.A./75/2014 PWI/Grade-II in Grade of Rs. 550-750 on adhoc basis in the year 1995 and his adhoc promotion was regularised vide DRM/NDLS's letter dated 27.03.1995 and formal letter of promotion in Construction Organization was issued under the signature of CAO/Construction on 02.05.1995. He was further promoted as PWI/ Grade-I in Grade Rs. 2000-3200 (RPS) on adhoc basis on 06.07.1995 in terms of Divisional Personnel Officer letter dated 19.04.2006 and promoted on regular basis with effect from 01.11.2003 under cadre restructuring vide letter of Deputy Chief Engineer/Construction/Kanpur under the signature of Executive Engineer Kanpur. He was granted further financial upgradation on 04.08.2010 and from entries in his service record it was crystal clear that he was initially appointed by Divisional Personnel Officer/ Northern Railway/ New Delhi and as per Railway rules Deputy Chief Engineer/ Construction/ Kanpur is competent to remove him from service as per D&AR 1968 as the disciplinary authority is competent authority to impose the penalty and clause no. 9 is not applicable in this case as in the present case there is no doubt about the appointing authority and it is available on record.
8. The respondents emphatically state that inquiry report was based on evidences and the applicant's replies were also considered and accordingly penalty has been imposed and the appellate authority has also awarded the penalty with due process of law after examination of the facts on record and the order of disciplinary authority as well as the appellate authority is speaking order and after due application of mind on the material available on record and as all charges have been proved and they were serious, hence, the penalty was imposed. Hence, there is no irregularity at any point in the impugned order. Hence, O.A should be dismissed.
9. Supplementary affidavit dated 11.03.2014 has been filed by the applicant wherein they have reiterated some of the facts as in the O.A. and the order in Writ Petition No. 11037/2014 is filed wherein the Hon'ble High Court of Allahabad has observed that "We see no good reason to interfere with the order of the Page 7 of 21 O.A./75/2014 Tribunal. The writ petition is dismissed. However, it is provided that the Tribunal may endeavour to decide the original application finally preferably within three months from the date a certified copy of this order is filed before it." The said writ petition was filed by the petitioner. However, the written affidavit has been filed on 06.05.2014 wherein the applicant has reiterated these facts as in the Original Application and has emphasised that the charge sheet was malafide and only because the authorities were hostile to the applicant they framed charges, went ahead with the inquiry and also in in spite of facts on record which were in favour of the applicant went ahead to impose the penalty and to consider that all charges were proved although the main charge of delay in delivery of goods from one store to other store of Railways was due to possible break down of the trailer. The applicant again emphasised rule 15 regarding railway servants lent to State Governments etc and tries to show that the authority who passed the order against him had no jurisdiction as they were only his borrowing authority and hence, there is no legitimacy in imposition of penalty against him.
10. Further supplementary affidavit has been filed on behalf of respondents on 16.03.2021 wherein they emphasise that they have filed the notification regarding appointing authority and disciplinary authority with respect to the applicant. They have emphatically stated that for the purpose of disciplinary proceedings power conferred upon the authorities has been mentioned in schedule-II of the Railway Servant (Discipline & Appeal) Rules 1968 in which at sl. No.4 it has been clearly mentioned that Junior Administrative grade officers and senior scale officers holding independent charge or incharge of department in the division has Schedule of disciplinary powers for all classes of Non-Gazetted staff. Hence JAG officer i.e. Dy. Chief Engineer/ Construction/ Kanpur is competent as disciplinary authority in respect to the applicant who was in scale of 4600/- pay grade at time of disciplinary action. They further emphasise that in para 802.3 Chapter VIII, Indian Page 8 of 21 O.A./75/2014 Railway Vigilance Manual-2006 it is mentioned that "Railway Administraton should notify a "Schedule of Power" which should clearly specify the authorities, authorised to make appointments in respect of each grade/category of staff." and accordingly with reference to para 802, chapter VIII, IRVM-2006, N.C. Railway issued Schedule of Powers on establishment matters i.e. NCR/SOP/August/2012 in which delegation of powers of General Manager has been delegated to lower authorities (Non-Gazetted) Schedule-B. As per SOP on establishment matter, SG/JAG has full power as appointing authority of Non-Gazetted Group 'C' & 'D' staff. Hence, JAG officer i.e. Dy. Chief Engineer/Construction/Kanpur is competent as disciplinary authority (as appointing authority) in respect of the applicant.
11. The respondents have further filed affidavit of compliance on 25.08.2019/05.09.2019 wherein certain documents have been filed. Written argument has been filed on behalf of the applicant wherein they have reiterated their stand as in the O.A. and wherein main contention of the applicant is that the impugned order has been passed by non-competent disciplinary authority and charge sheet is also issued by a lower authority than the authority which could have imposed the penalty for removal and they have annexed Supreme Court order in State of Uttarakhand Vs. Yogendra Nath Arora dated 18.03.2013.
12. The case came up last for hearing on 24.08.2023. Shri N.P. Singh, learned counsel for the applicant and Shri Manoj Kumar Sharma, learned counsel for the respondents were present. We have heard learned counsel for the parties and carefully gone through the whole record and considered the rival contentions.
13. From the contentions of the parties, it is very clear that the argument of the applicant in his defence is mainly of two types. One broad category is regarding adequacy of the evidences and quality of evidences adduced and charges framed and inference drawn by the inquiry officer and accordingly the appreciation of Page 9 of 21 O.A./75/2014 the evidence by the authorities who made the disciplinary order and appellate order and the revisional order and quantum of punishment. From the general examination of the record and materials produced before us we are satisfied that as per due process charges were framed and the order was passed after giving adequate opportunity of being heard to the applicant and there was a detailed inquiry as well as examination of witnesses and the documents relied upon. Considering the adequacy of evidence in case of disciplinary inquiry, preponderance of evidences is sufficient as conclusive proof beyond doubt is only requested in criminal cases, and as ruled by various court judgements there are no wide discretion with this Tribunal to sit as an appellate authority to go into those aspects of evidence which the applicant is trying to plead before us in the Original Application as well as in the written argument. For this we rely on the following judgements which are very relevant to this case as power of judicial review in disciplinary proceedings are very limited.
14. 7- In the case of Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72 the Hon'ble Supreme Court has held as under:-
"At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. v. S. Sree Rama Rao [(1964) 3 SCR 25 : AIR 1963 SC 1723 : (1964) 2 LLJ 150] , State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 :
1975 SCC (L&S) 349 : (1976) 1 SCR 521] , Corpn. of the City of Nagpur v. Ramchandra [(1981) 2 SCC 714 : 1981 SCC (L&S) 455 : (1981) 3 SCR 22] and Nelson Motis v. Union of India [(1992) 4 SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382 : AIR 1992 SC 1981]".
15. In the case of Lalit Popli v. Canara Bank, (2003) 3 SCC 583 the Hon'ble Supreme Court has held as under:-
Page 10 of 21O.A./75/2014 "17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice.
Judicial review is not akin to adjudication of the case on merits as an appellate authority.
16. In OAs challenging the orders in disciplinary proceedings, the scope of interference of the Tribunals is very limited. In a catena of judgments by the Hon'ble Apex Court, it has been held that the judicial review in the disciplinary matters should not be in the form of re-appreciation of evidence. The Courts should only look at the correctness of process and not get into re-evaluation of evidence before the Inquiry Officer. The findings recorded by the Disciplinary Authority which are affirmed or diluted by the Appellate Authority should not be interfered with unless the applicant shows that the order is without jurisdiction; or that there is procedural irregularity in conducting the enquiry. The Hon'ble Apex Court in the case of S.R.Tewari vs. Union of India 2013(7) Scale Page 417 has held that "The role of the court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review.
The court has to record reasons as to why the punishment is Page 11 of 21 O.A./75/2014 disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice".
17. In a large number of cases including the case of Bank of India v.
Apurba Kumar Saha ; (1994) 2 SCC 615, State Bank of India and Others v. Ramesh Dinkar Punde (2006) 7 SCC 212, State of Andhra Pradesh v. Sree Rama Rao; AIR 1963 SC 1723,Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup; AIR 1957 SC 82, State Bank of Bikaner and Jaipur v. Prabhu Dayal Graver, 1995(6) SCC (L&S) 279=1996(1) SLJ 145 (SC), Deokinandan Sharma v. UOI and Ors., 2000 SCC (L&S) 1079, State Bank of India vs. Ram Lal Bhaskar & Another (2011 STPL (web) 904) and Union of India & Ors. Vs. Raghubir Singh and another, CWP No. 1154/2014 decided on 06.05.2014 by Punjab and Haryana High Court, the underlying theme is that the High Court/tribunal does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. They have to see whether there is violation of natural justice and fair play or any procedural irregularity committed by the inquiry officer, Disciplinary authority and due procedure was adopted strictly in accordance with the service rule.
Page 12 of 21O.A./75/2014
18. Recently, the Hon'ble Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;Page 13 of 21
O.A./75/2014
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
Xx xx xx
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
19. The Hon'ble Apex Court in the case of B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court are not competent and cannot Page 14 of 21 O.A./75/2014 appreciate the evidence . In this regard, the Hon'ble Apex Court has been pleased to observe as under:-
"The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986.The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.
Per Ramaswamy and Jeevan Reddy, JJ "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
20. In another case the Hon'ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357 has been Page 15 of 21 O.A./75/2014 pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."
21. Not only this the Hon'ble Apex Court has even pleased to observe in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan Vs. Md. Ayub Naaz reported in 2006 (1) SCC 589.
The Hon'ble Apex Court has been pleased to observe as under:-
"10. This Court in Om Kumar and Others vs. Union of India, (2001) 2 SCC 386 while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights.
In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant materials and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."
22. Considering the ratio of above judgements we are not getting into the question of quality and adequacy of evidence adduced and relied upon and quantum of punishment imposed by various Page 16 of 21 O.A./75/2014 authorities as we do not find anything in this case which can be considered as pertinent to interfere with those aspects of the case.
23. Second broad category of plea which has been taken by the applicant is regarding the procedural aspect which are following:
one that the applicant says that he was not given certain documents but as per the pleadings of the parties and also agreed by the applicant subsequently these were provided to him. Hence, this point also does not sustain.
24. While arguing the case of the applicant, in exclusion of the other pleas taken, learned counsel for the applicant also principally relied on the ground that the said disciplinary inquiry was initiated as well as conducted and penalty was imposed by an authority which was not competent to pass such an order. Hence, the order is illegal and arbitrary and so this O.A. should be allowed and all his prayers should be granted. He quotes rule 15 of the Discipline Appeal and Conduct Rules which is as below:
" Rule-[15] Provisions regarding railway servants lent to State Governments etc.:- (1) Where the services of a railway servant are lent to any other Ministry of Department of the Central Government or to a State Government or an authority subordinate thereto or to a local or other authority (hereinafter in this rule referred to as "the borrowing authority"], the borrowing authority shall have the powers of the authority competent to place the railway servant under suspension for the purpose of placing him under and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him;
Provided that the borrowing authority shall forthwith inform the authority which lent the services of the railway servant (hereinafter in this rule referred to as "the lending authority") of the circumstance leading to the order of his suspension or the commencement of the disciplinary proceedings, as the case may be.
[2] In the light of the findings in the disciplinary proceeding conducted against the railway servant:-
(i) if the borrowing authority is of the opinion that any of the penalties specified in clauses (i) to (iv) of Sub-rule (1) and clauses (i) and (ii) of Sub-rule (2), of Rule 6 should be imposed on the railway servant, it may, after consultation with the lending authority, make such orders on the case as it deems necessary;Page 17 of 21
O.A./75/2014 Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the railway servant shall be replaced at the disposal of the lending authority;
(ii) if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (ix) of Sub-rule (1) of Rule 6 should be imposed on the railway servant, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority may, if it is the disciplinary authority, pass such orders thereon as it may deem necessary, or if, it is not the disciplinary authority, submit the case to the disciplinary authority which, shall pass such orders on the case as it may deem necessary;
Provided that before passing such order the disciplinary authority shall comply with the provisions of Sub-rule (4) and (5) of Rule-10.
Explanation:- The disciplinary authority may make an order under this clause on the record of the inquiry transmitted to it by the borrowing authority, or after holding such further inquiry as it may deem necessary, as far as may be, in accordance with Rule 9."
25. If we examine this rule, it is very clear that it speaks of provisions regarding Railway servant lent to State Government etc and counsel for the applicant has emphasized that the services of the applicant were lent from Delhi Division to Kanpur Division, hence, this case is covered under Rule 15 and so the order passed by the authority is by someone who was not his appointing authority but borrowing authority. His appointing and disciplinary authority were in Delhi and not in Kanpur. If we carefully see rule 15 it mentions the provisions regarding Railway servants lent to State Government etc and later on it is made amply clear that it does not speak about lending within the Railways but speaks about where the services of the Railway servants are lent to any other Ministry or Department of the Central Government or to State Government or an authority subordinate thereto or to a local or other authority hereinafter in this rule referred to as borrowing authority. Borrowing authority shall have the powers of the authority competent to place the railway servant under suspension etc. Nowhere does it say that borrowing or lending within the Railway division will in Page 18 of 21 O.A./75/2014 any way affect the status of the disciplinary or appointing authority even if the railway servant is lent from one division to another or one zone to another. Even in the borrowing zone equivalent officers who are equal to appointing and disciplinary authority could have taken disciplinary action and imposed penalty as disciplinary authority, appellate authority and revisionary authority. One fact to be noted here is that when the disciplinary authority in Kanpur imposed the penalty and passed an order against the applicant, if the applicant thought his authorities were in Delhi, he had discretion to go in appeal and revision there but he preferred appeal and revision in Kanpur. In no way Rule 15 comes in way to rescue the applicant and his contention is not right and we are not swayed by the arguments of the applicant on this behalf.
26. The second major argument of the applicant is that his appointing authority was General Manager and he had tried to prove it based on certain letters which he received initially at the time of his appointment and training from and to the General Manager and he is trying to also say that in his case there was no clear appointing authority. As per Northern Railway letter No.52(E/O/31 E(D&A) dated 21.08.1964 the appointing authority of all the class III and IV employees is the General Manager. But as we can see in the arguments of the respondents who have emphatically stated that in the case of the applicant his appointing authority is clearly known and initially when he was appointed as per his service record Divisional Personnel Officer is written as appointing authority in the Grade of 1400 to 2300 (RPS) Engineering Branch and after that he has got promotion at various times and they have filed Schedule II of the Railway Service Discipline and Appeal Rules 1968 wherein clause on railway servants over whom disciplinary powers can be exercised is clearly mentioned and the fourth row of the same is as under:
Page 19 of 21O.A./75/2014 Sl.no Authority Class of Nature of Appellate empowered to Railway penalties Authority place a Railway Servants over mentioned in servant under whom rule 6 which suspension or to disciplinary the authority impose penalties powers can be in column 2 is under rule 6 exercised empowered to impose on Railway Servants mentioned in corresponding entires in column 3 and powers of that authority to place them under suspension 4 Junior All classes of Penalties Additional Administrative non-gazetted specified in Divisional Grade Officers staff clauses (i) to Railway and Senior Scale (vi) and Managers in Officers holding suspension relation to the independent Departments Charge or attached to In-charge of a them or Department in Divisional the Division Railway Managers
27. There is no doubt that his lien was in the Northern Railway but even in Kanpur, the authority who was competent as per this rule could have imposed the penalty as the disciplinary authority as well as appointing authority of the applicant. In Schedule II of Railway Servants Discipline and Appeal Rules, 1968 at Sl.no. 4 it has been clearly mentioned that junior administrative grade officer and senior scale officers holding independent charge or In-charge of a department in the division has all disciplinary powers for all classes of non-gazetted staff. Hence, JEG officer i.e. Deputy Chief Engineer/ Construction/ Kanpur is competent as disciplinary authority in respect of the applicant who was in the scale of 4600 Grade pay at the time of disciplinary action and was competent authority to initiate as well as impose penalties which have been imposed.
28. Thus the rules are very clear and go against the contention of the applicant that his appointing and disciplinary authority is only the Page 20 of 21 O.A./75/2014 General Manager. Even on the first page of the service book at item 15 signature of appointing authority is there, although not very clear, but it does not appear to be that of any General Manager. But it is clear that the said document is maintained by some Executive Engineer. Hence, we are satisfied that the contention of the applicant regarding his appointing authority is not convincing and we have nothing to discredit the fact that in case of the applicant the authority was competent to initiate the disciplinary action and frame charges as well as to pass the disciplinary order and impose penalty on the applicant.
29. Considering this we do not find any ground to interfere with any of the impugned orders, hence, the O.A. is liable to be dismissed and is, accordingly, dismissed. All associated MAs stand disposed of accordingly. No costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member-A Member-J
Madhu
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