Central Administrative Tribunal - Jodhpur
Ashok Sharma vs Union Of India (Uoi) And Ors. on 24 May, 2002
Equivalent citations: 2003(1)SLJ117(CAT)
ORDER A.P. Nagrath, Member (A)
1. While working as Senior Clerk a major penalty memorandum dated 8.5.98 under Rule 9 of the Railway Servants (Disciplinary & Appeal) Rules, 1968 (for short, the Rules, 1968) was issued to the applicant alleging violation of Rule 3.1(i)(ii)(iii) of the Railway Servants (Conduct) Rules, 1966. The charge against the applicant was that he misbehaved using abusive and objectionable language when he was called upon by the Assistant Personnel Officer to explain his conduct of 28.4.98. He is alleged to have conducted himself in an objectionable manner when memo was served on him on 28.4.98 by one Shri Ghanshyam Sharma, Confidential Assistant. The applicant denied the allegation vide his letter dated 18.5.98. On 26.8.98, the charge-sheet dated 8.5.98 was cancelled and another charge-sheet dated 26.8.98 was issued. The articles of charge in this cahrgesheet remained the same as were included in the chageshcet dated 8.5.98. This was followed by another letter dated 7.9.98 in which the reasons for cancelling the earlier charge-sheet have been indicated. An oral inquiry was held and the charge of misbehaviour was held to be established. The disciplinary authority vide order dated 19.5.99 (Ann.A/2) imposed upon the applicant the penalty of removal from service. In appeal, the appellate authority i.e. DRM Jodhpur modified the penalty by reducing the same from 'removal from service' to that of reduction in lower grade from Rs. 4500-7000/ - to the grade Rs. 3050-4590/- permanently with pay at Rs. 3350/- per month. It was further mentioned in the penalty order that the applicant shall be posted out of his cadre and for his promotion to the post of Senior Clerk he will have to qualify in the suitability test. As a result of this order, the applicant was posted to work under Senior Section Engineer, Samdari, i.e. he was shifted from the cadre of Personnel Branch to the Engineering Branch. By filing this OA, the applicant has challenged the order of the disciplinary authority dated 19.5.99 (Ann.A/2) and order of the appellate authority dated 21.9.99 (Ann.A/3). He has also assailed the charge-sheet dated 26.8.98.
2. Plea of the applicant is that the charge-sheet is void ab initio mainly for two reasons; (i) while cancelling the earlier charge-sheet no reasons have been disclosed. It is only by a latter communication, the reasons have been indicated and this makes the charge-sheet illegal as two charge-sheets cannot be issued on the same charge; (ii) the charge-sheet has been issued by Assistant Personnel Officer, who is not competent to issue a major penalty charge-sheet to the applicant.
3. In view of the above stated reasons the applicant contends that since the initial order i.e. the charge-sheet itself is illegal, any order passed on such charge-sheet deserves to be quashed and set aside. He further stated that he was denied the reasonable opportunity to defend his case and the entire inquiry was completed in one day. He has assailed the impugned orders dated 19.5.99 and 21.9.99 for the reasons that they have been passed in a sterio-typed manner and without application of mind. The appellate authority is said to have not dealt with the points raised in the appeal. Further, the applicant has taken a plea that the punishment imposed is grossly disproportionate to the alleged misconduct.
4. The respondents in their reply have denied the averments of the applicant in the OA and have stated that there is no infirmity in the entire proceedings. The charge-sheet has been issued by the competent authority and the oral inquiry has been held by giving full opportunity to the applicant. The respondents have defended the order of penalty as modified by the appellate authority by saying that in so far as the posting of the applicant to Engineering Department is concerned, it is an administrative matter and no a matter of penalty. Otherwise, according to the respondents, the order of penalty suffers from no illegality.
5. Heard the learned Counsel for the parties. The main plank of attack by the learned Counsel for the applicant is that the fresh charge-sheet issued on 26.8.98 illegal and contrary to the rules. The learned Counsel for the applicant argued at great length to stress that on the same charge no fresh charge-sheet could have been issued. For this, he placed reliance on the case of Chandra Shekhar Seth v. UOI, (1990) 12 ATC 868 (16), and also relied on Railway Board's letter No. RBE 171/93 and submitted that as per Railway Board's own orders the disciplinary authority was required to disclose the reasons in the order cancelling the earlier charge-sheet. Since this was not done, the fresh charge-sheet became illegal and such illegality cannot be over come by a second clarificatory letter. For this reason, the learned Counsel contended that further orders of the disciplinary authority and appellate authority stand vitiate once the initial charge-sheet itself is void. To buttress his contention, the learned Counsel referred to the cases of P.V. Srinivasa Sastry v. Comptroller & Auditor General, AIR 1993 SC 131 (6), and B. Mishra v. Orissa High Court, AIR 1976 SC 1899 (25) & 28.
6. Another ground which was strongly convassed by the learned Counsel for the applicant was that the charge-sheet was void ab initio for the reason that the same was issued by an authority not competent to do so. He stated that the charge-sheet has been issued by the Assistant Personnel Officer (APO) and under provisions of Rule 8(2) of the Rules, 1968 the APO is not competent to issue a major penalty charge-sheet. The learned Counsel submitted that this matter also stands clarified by Railway Board's letter No. E(D&A) 70 RG6-36 dated 4.2.71. The entire thrust of the arguments of the learned Counsel for the applicant rested on the grounds as mentioned above. In addition, the learned Counsel stated that the order of penalty as modified by the appellate authority was a defective order as the penalties imposed are multiple penalties which do not conform to the penalties as specified under Rule 6 of the Rules, 1968.
7. The learned Counsel for the respondents, while agreeing that the order imposing penalty has also included the order issued on the administrative side regarding posting of the applicant but that, according to him, does not vitiate the order of penalty. Regarding competence of the APO to issue a major penalty charge-sheet to a railway servant holding the post of Senior Clerk, the learned Counsel submitted that in the schedule of the Rules, 1968 powers have been delegated to APO in Group-B to impose a penalty of censure even on a railway servant holding the post in the grade of Rs. 1400-2300, which now has been revised to Rs. 5000-8000. This grade is higher than the grade of Senior Clerk. While adverting to the Rules, 1968, the learned Counsel submitted that under provisions of Rule 8(2) of the Rules, 1968 any disciplinary authority which is competent to impose any of the minor penalties can issue charge-sheet against any railway servant even for imposing a major penalty. The learned Counsel for the respondents forcefully argued that the charge-sheet has been issued by a competent authority and suffers from no illegality. Regarding issuance of a fresh charge-sheet, the learned Counsel submitted that the reasons have been made clear in the communication dated 7.9.98 as to why the earlier charge-sheet had to be cancelled. He defended the charge-sheet on the ground that no prejudice has been caused to the applicant by issuing a fresh charge-sheet more so when the articles of charge have remained the same. It was only that the form used earlier had undergone slight change and it was considered appropriate by the respondents to use the modified form.
8. We have given our thoughtful consideration to the rival contentions and have perused the documents brought on record and the case law cited by the learned Counsel for the applicant.
9. We have seen the contents of the charge-sheet issued first on 8-5,98, which was subsequently cancelled and a fresh charge-sheet dated 26.8.98 got issued. A careful scrutiny of these two documents reveal that there is only minor change in the form; and the articles of charge undoubtedly have remained the same. This is a very minor technicality and in no case can be stated to have caused any prejudice to the applicant. The law in the matters of disciplinary proceedings is now well settled that a mere provision in the rules and provision in the statutory rules cannot render an action illegal ipso facto unless it is established by the delinquent official that by such an action a prejudice has been caused to him. In this case, there is not even an iota of evidence to suggest that by cancellation of the charge-sheet issued on 8.5.98 and giving a fresh charge-sheet dated 26.8.98 any prejudice has been caused to the applicant. The plea raised on this issue on behalf of the applicant has no merit and the case law cited by the learned Counsel for the applicant is of no help to the applicant's case. Even if a lapse had occurred for having not disclosed the reasons for cancelling the earlier charge-sheet, the same had been overcome when letter dated 7.9.98 came to be issued, thereby making good the deficiency. As we have observed earlier, this slip has not been shown to have caused any prejudice to the applicant.
10. Second major plank of the applicant is that APO is not the competent authority to issue a major penalty charge-sheet to a railway servant holding the post of Senior Clerk. Rule-8 of the Rules, 1968 relates to the authority to institute proceedings. Para (2) of Rule-8 provides as follows:-
"(2) 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 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 latter penalties."
A clear reading of this indicates that if any authority which is competent to impose any of the penalties specified in Clause (i) to (iv) of Rule 6 can institute disciplinary proceedings against any railway servant for imposition of any of the penalties specified in Clause (v) to (ix) of Rule 6, notwithstanding that such disciplinary authority is not competent to impose such latter penalties. Clause (i) to (iv) of Rule 6 refer to minor penalties and the first penalty under Rule 6 is the penalty of 'censure'. We have referred to this schedule under which powers have been delegated to officers at various levels to impose penalty under Rules, 1968. We find that an Assistant Officer (Junior Scale and Group-B) can impose a penalty of 'censure' to Group-D and C staff in grades upto and including Rs. 1400-2300. This grade of Rs. 1400-2300 is higher than the grade of a Senior Clerk. Obviously, the APO who is a Group-B Officer can under the rules initiate the disciplinary proceedings even relating to major penalties. The learned Counsel for the applicant vehemently contested this interpretation of the rules on the ground that Rule 8(2) is subject to the provisions of Clause (c) of Sub-rule (1) of Rule 2. This clause defines 'as to what is a disciplinary authority' and Sub-rule (i) Clause (c) reads as follows:, "(1) in relation to the imposition of a penalty on a Railway servant the authority competent, under these rules, to impose on him that penalty."
A reading of this makes it clear that while under provisions of Rule 8(2) of Rules, 1968 any disciplinary authority can initiate disciplinary proceedings so long as that authority has the powers to impose any of the minor penalties but in relation to the actual penalty imposed the disciplinary authority would be determined by virtue of Sub-rule (i) of Clause (c) of Rule 2 of the Rules, 1968. In the case before us, the penalty has been imposed by the DPO and under the schedule of powers DPO is fully competent to impose penalty of removal on a Government servant holding the post of Senior Clerk. The rules clearly distinguish between the disciplinary authority competent to initiate proceedings and disciplinary authority competent to impose a penalty. In the instant case, both the authorities have been found to be competent. So, the ground raised by the applicant that the charge-sheet is void ab initio holds no water. For this very reason, the support drawn from the case of P. V. Srinivasa Sastry is of no consequence to the applicant as in our view the order of the initial authority i.e. APO cannot be stated to be void and in fact we do not see any informity in this order and on this ground the further orders of the disciplinary authority and appellate authority cannot be questioned.
11. In addition to these two grounds the only other ground pressed by the learned Counsel for the applicant was that the order of penalty is defective. Though the applicant in his averments has stated that he did not get adequate opportunity during the inquiry but there is no evidence on record to prove that aspect of the case. As mentioned by us earlier, this point was not pressed during the arguments. The appellate authority has passed the order after giving an opportunity of personal hearing to the applicant. We now proceed to examine the order of penalty, as modified by the appellate authority. Operative part of this order dated 21.1.99 reads as follows:
"I have decided to take a lenient view and give one chance for improvement and therefore reduce the punishment of removal from service to Reduction in lower grade from 4500-7000 to Grade 3050-4590 permanently with pay Rs. 3350 p.m. He can seek his promotion in due turn after qualifying due suitability/selection only".
In the next paragraph it has been stated that:
"The charged official Sh. Ashok Sharma be posted out of Personnel Branch. He may be posted in any other Deptt. out of Jodhpur where vacancy exists."
It is clear from the above that the order of penalty is separate from the administrative order and we obviously find that the officer who communicated this order has been negligent in including the administrative portion of the order alongwith the order of penalty. The portion of the order where it has been decided to post the applicant out of Personnel Branch cannot be read as a part of the order of penalty. Now that it has been communicated as such to the applicant, this portion is required to be omitted from the penalty order. We have examined the rest of the order. We do find it suffers from some defects. It is apparent that the appellate authority has imposed penalty which is covered under Rule 6(vi) of the Rules, 1968, which reads as follows:-
"(vi) Reduction to a lower time scale of pay, grade, post or service, with or without further directions regarding conditions of restoration to the grade or post or service from which the Railway servant was reduced and his seniority and pay on such restoration to that grade, post or service"
There is no provision under this rule that the authority imposing penalty, while ordering reduction to a lower time scale of pay, grade, post or service can also direct as to at what stage the pay of the charged official in the lower grade shall be fixed. However, the order states that the applicant is reduced to lower grade permanently but further goes on to add that he can seek his promotion in due turn after qualifying suitability/selection only. There is a contradiction in terms. If he has been reverted permanently then there should not be a question of his seeking further promotion. On the other hand, if the word 'permanently' has to be read with pay Rs. 3350 then also it renders the order as detective for the reason that this would amount to stoppage of increments in the grade Rs. 3050-4590 permanently. This is also not permitted under the rules. Of course, the authority imposing penalty is competent to give directions in regard to the conditions of restoration to the grade or post from which the railway servant was reduced and in respect of his seniority and pay on such restoration to that grade, post or service. This the appellate authority has done by directing that the applicant can seek is promotion in due turn after qualifying the suitability test only. To that extent, this order is as per rules. Thus, we see from the analysis above that the order is defective in parts, while it is in order in other aspect but over all, this order is not in conformity with the provisions of Rule 6 (vi) and in this form it is not sustainable.
12. Another part of the order is that the intervening period shall be treated as dies-non. This has become necessary for the reason that the applicant was placed under suspension on 29.4.98. This order was revoked on 2.6.98. The appellate authority by virtue of this order has treated this period from 29.4.98 to 2.6.98 as dies-non. There is no provision under the rules to treat the period of suspension as dies-non when the same is followed by some punishment. The rules for this purpose have been clearly specified in the Fundamental Rules and these rules have no provision for treating the period of suspension as dies-non. From the discussion aforesaid, we find that order of the appellate authority suffers from various infirmities, while imposition of a penalty is warranted in this case, but the order of the appellate authority is not sustainable.
13. We, therefore, allow this OA partly. We quash and set aside the order of the appellate authority dated 21.9.99 (Ann.A/3). However, the appellate authority is free to pass a fresh order under the rules and as per law. The same shall be done within a period of one month from the date of receipt of a certified copy of this order. No order as to costs.