THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition No. 5485 of 2004 -02-2010 Between: Mr. Ch.Sankaraiah ……….Petitioner And The Senior Divisional Engineer/Coordination, O/o.Divisional Railway Manager (Transportation), South Central Railways, Vijayawada and two others. ………Respondents THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition No. 5485 of 2004 ORDER : (Per Hon’ble Sri Justice Noushad Ali) This Writ Petition is filed against the orders in O.A.No.506 of 2001, dated 10-11-2003 on the file of the Central Administrative Tribunal, Hyderabad Bench at Hyderabad, confirming the orders of punishment imposed on the petitioner by reduction to the lower grade, vide orders dated 29-09-2000/05-10-2000 of the first respondent-Senior Divisional Engineer/Coordination, South Central Railways, Vijayawada, confirmed by orders dated 01-02-2001 of the second respondent-Divisional Railway Manager, South Central Railways, Vijayawada. 2. The petitioner was working as Supervisor (Permanent Way Inspector), Vijayawada South, South Central Railway. On 11-08-1998, at about 2.45 AM there was a de-railment of Train No.7048, Gowthami Express, while proceeding from Secunderabad to Kakinada between Point Nos.163/A and 163/B at K.Ms.429/30, Vijayawada North Cabin Home Signal. A Fact Finding Committee (for short ‘the Committee’) to enquire into the cause of incident was constituted with SRI J.S.TOLIA, SR.DEN/CO-ORD/BZA as President and Sri J.Nagaraju, Sr.DSO/BZA, Sri T.G.Singh, Sr.DEE/TRO/BZA and Sri N.V.Ramana Murthy, Sr.DME/C&W/BZA as Members. The Committee held an enquiry on 14-08-1998 and examined the petitioner. It also examined the train driver, Traction Assistant, Mail Guard and others. The petitioner in his statement to the Committee indicated that he attended Point No.163/B during the period from 07-03-1998 to 13-08-1998 and attended sleeping changing work, packing, levelling and ganging work at the point and other works assigned by SSE/P.Way. The Committee arrived at a finding that the incident was due to bad condition of the wooden sleepers and spikes and that the fittings were not holding rails properly between the points 163/A and 163/B wherein the gauge was varying from + 12 MM to +50 MM. The Committee was of the view that four persons including the petitioner responsible for the incident. 3. The first respondent initiated enquiry under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 vide Memorandum No.B/T.5/98/8/11/1, dated 28-10-1998 and communicated the statement of articles of charges to the petitioner. The charges framed are as under : “Statement of Articles of Charges framed against Sri Ch.Sankaraiah, Supervisor/P.Way/S/BZA. Article – I : That the said Sri Ch.Sankaraiah, while working as Supervisor of SE/P.Way/S/BZA failed to supervise and ensure the train parameters up to the standard between Point No.163/A and 163/B. This resulted in derailemtn of No.7048 Express at BZA on 11-08-1998 and rerailment. Thus, he violated Rule-3(i)(ii), Railway Service (Conduct) Rules, 1966. Statement of imputations of mis-conduct or misbehaviour in support of the Articles of charges framed against Sri Ch.Sankaraiah, SE/P.Way/S/BZA. Article –I : That the said Sri Ch.Sankaraiah, while functioning as Supervisor of SE/P.Way/S/BZA failed to maintain absolute devotion to duty in that he failed to supervise and ensure the track parameters up to the standard between point No.163/A and 163/B wherein (i) the gauge was varying from +12 to +50 and (ii) track fittings i.e., wooden sleepers were in bad condition and spikes were deficient and fittings were not holding rails properly. This resulted in derailment and rerailment of 6 coaches of No.7048 Express at BZA on 11-08-1998. Thus he violated Rule –3 (i)(ii) of Railway Service (Conduct) Rules, 1966.” 4. List of documents and witnesses was also enclosed with the Memorandum of Charge Sheet, dated 28-10-1998. The Memo was issued by J.S.TOLIA, SR.DEN/CO-ORD/BZA. In response, the petitioner submitted representation, dated 14-11-1998. In his representation the petitioner took a stand that he was not in-charge of the section where the incident had occurred. Thereupon, the first respondent in exercise of powers under Rule 9 (2) of the Rules appointed one M.H.Satyanarayana, AEN/BZA as Enquiry Officer. The Enquiry Officer conducted enquiry and submitted a report holding that the above mentioned Articles of Charges were proved against the petitioner beyond doubt. The first respondent vide letter dated 29-06-1998 while enclosing the Enquiry Report, called upon the petitioner to submit his representation. The petitioner acknowledged the same on 07-07-1999 and submitted his representation dated 19-07-1999. The first respondent thereupon agreeing with the findings of the Enquiry Officer, imposed penalty of reduction to a lower Grade of Senior Gangman in the scale of 2650 – 4000 (RSRP) on pay of Rs.3,580/- with effect from 20-10-2000 for a period of four years with loss of seniority. Thus, the petitioner was reduced from Group-C to Group-D Grade. The petitioner preferred an appeal to the second respondent and the same was dismissed by orders in Memorandum No.B/P.88/VII/2000/19(A), dated 01-02-2001. The petitioner without availing the remedy of revision petition, filed O.A.No.506 of 2001 before the Central Administrative Tribunal, Hyderabad Bench. The Tribunal on consideration of the matter, dismissed the O.A. by orders, dated 10-11-2003. Aggrieved by the same, the petitioner has filed the present Writ Petition. 5. Heard Sri Siva, learned counsel for the petitioner and Smt.Pushpender Kour, learned counsel for respondents. 6. At the out set, we may mention that the learned counsel appearing for the petitioner did not dispute the validity and the procedure followed in conducting the enquiry against the petitioner. He also did not dispute the fact that the petitioner was afforded reasonable opportunity to defend himself at the enquiry and also before the respondents. It is also not in dispute that enquiry report was supplied to the petitioner and orders were passed after notice to him. In this view of the same, we need not embark into the validity or otherwise of the enquiry proceedings and the correctness of the Enquiry Report. 7. His contention in this writ petition is that the 1st respondent i.e. the Senior Divisional Engineer/Coordination acted as the Head of the Fact Finding Committee, as such he should not have functioned as Disciplinary Authority as per the Railway Board’s Letter, dated 23-12-1968, as clarified by a later Board’s Letter, dated 23-05- 1969. By virtue of the said clarification contained in the letter, the 1st respondent suffered inherent lack of jurisdiction and his jurisdiction stood ousted as Disciplinary Authority. He further contended that there was no material to connect the petitioner to the incident. He further contended that the punishment is grossly disproportionate to the charge levelled against the petitioner. 8. Per contra, the learned counsel for the respondents contended that the 1st respondent was competent under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short ‘the Rules, 1968’) and that the aforesaid clarificatory circular which is sought to be relied upon by the petitioner does not take away the jurisdiction of the 1st respondent. It was further contended that a thorough enquiry was conducted affording full opportunity to the petitioner, after which alone the punishment was imposed and the same is in accordance with law. It was further contended that the punishment is adequate and at any rate the proportionality cannot be gone into in this Writ Petition. 9. In the light of the contentions raised by the petitioner it has to be seen whether the 1st respondent suffered inherent lack of jurisdiction in initiating enquiry and awarding punishment. 10. In elaboration of submissions on the question of jurisdiction, the learned counsel for the petitioner submitted that the 1st respondent himself was the President of the Fact Finding Committee which was constituted by the Divisional Railway Manager, Vijayawada Division, South Central Railway. The Committee relied on the statements of some witnesses and gave a finding that the petitioner and three others were responsible for the incident. By recording such a finding, the petitioner was adjudged guilty even before a regular enquiry was held. By holding that the petitioner was responsible for the incident, a categorical finding as to the guilt of the petitioner was recorded. The 1st respondent being a party to the enquiry in the capacity as the President of the Committee, should not have acted as disciplinary authority. His jurisdiction to act as disciplinary authority is ousted by virtue of the Railway Board’s letter No.E (D&A) 63 RG.63, dated 23-05-1969. On such ouster of jurisdiction, the 1st respondent had no authority of law to initiate any disciplinary action against the petitioner and the 1st respondent having done so, the proceedings culminating in the punishment are illegal and void. 11. In order to appreciate this contention, it is necessary to examine the contents of the Railway Board’s letter, dated 23-05-1969. The contents of the letter are extracted below : “Copy of Railway Board’s confidential Letter No.E(D&A) 63 RG. 63, dated 23-05-1969 addressed to GM’s/All India Railways and Others. Sub : Circumstances in which an Authority who has acted as a Member of Chairman of the Fact Finding Enquiry can act as Disciplinary Authority. . . . 1. In Board’s letter of even No., Dated 23-12-1968, it was clarified that an Authority who has acted as a member of Chairman of the Fact Finding/Accident Enquiry Committee should not function as Disciplinary Authority for the purpose of considering the explanation to the Charge Sheet, ordering a departmental enquiry etc., for the reason that such authority has already come to a conclusion and made recommendation regarding the guilt of the employee and it would be difficult for him to approach the case with an open mind. 2. Some Railway Administrations have experienced practical difficulties in implementing these instructions in that these would limit the powers of officers to act as Disciplinary Authorities; the levels at which the appeals against the punishment awarded will be dealt, would be raised etc. 3. The matter has been reconsidered and it has been decided that there is no objection to an Officer, who has acted as Chairman or Member of the Fact Finding/Accident Enquiry Committee, to act as Disciplinary Authority, provided his findings do not give an indication that he has come to a definite conclusion regarding the guilt of the employee(s) the report of the Fact Finding/Accident Enquiry Committee, to act as Disciplinary Committee should, therefore, only indicate that against any particular Railway Servant named in the report. Prima facie grounds exist for initiating disciplinary proceedings and that the duly constituted Disciplinary Authority under the relevant rules will ultimately decide whether the particular Railway servant is in fact guilty or not of the violation of the rules/regulations alleged against him. If this is done, and if the findings of the Committee are suitably worded in keeping with this decision, there would be no legal objection to an officer who has acted as Chairman or Member of the Fact Finding/Accident Enquiry Committee to act as ‘disciplinary Authority. 4. It should, however, be ensured that the Enquiry Officer to be nominated for conducting a proper departmental enquiry is different from the personnel of the Fact Finding/Accident Enquiry Committee who may be a Disciplinary Authority. In other words, the proper statutory departmental enquiry should be conducted by an officer(s) who is unbiased and has not prejudged the guilt of the employee(s) concerned even provisionally, at an earlier stage. 5. The Board desire that the above position should be brought to the notice of all concerned for guidance.” 12. An analysis of the above letter discloses that the Board earlier issued instructions vide letter, dated 23-12-1968 to the effect that an authority who is part of a Fact Finding Committee should not act as Disciplinary Authority in the disciplinary proceedings. However, by letter dated 23-05-1969 after considering the practical difficulties, instructions have been revised to the effect that such an Officer who acted as Chairman or Member of the Committee could act as Disciplinary Authority if his findings do not give an indication that he has come to a definite conclusion regarding the guilt of the employee and that it should be ensured that the Inquiry Officer to be nominated for conducting a proper departmental enquiry is different from the persons of the Committee. 13. It is therefore to be seen whether there was any definite conclusion reached by the 1st respondent herein in his capacity as the President of the Committee. As noted supra in the Committee, there were three Members in addition to the first respondent who was appointed as the President of the Committee. It is significant to note that one, Sri J.S.Tolia who was the then Senior Divisional Engineer/Coordination acted as the President of the Committee, examined the connected persons, including the petitioner and joint findings as to the cause of accident were recorded. The Report merely named the petitioner and three others as responsible for the incident. The Enquiry was like a preliminary enquiry and by the very nature and nomenclature was constituted as a Committee to enquire into the facts and circumstances that led to the derailment and rerailment of the train. It was not a fulfledged enquiry to find out the guilt of any particular individual. The committee in fact did not record any definite conclusion that the petitioner alone was responsible for the incident. Therefore, it cannot be said that a definite conclusion was reached as regards the guilt of the accused. That apart one Sri J.S.Tholia was the Senior Divisional Engineer/Coordination acted as the President of the Committee and although the same officer issued the charge memo dated 28-10-1998, he himself did not conduct the enquiry against the petitioner. But one M.H.Satyanarayana was appointed as an Inquiry Officer. The petitioner participated in the enquiry without any protest. The Inquiry Officer submitted the report and the order dated 29-09- 2000/05-10-2000 passed by one A.K.Sinha who was then holding the office as Senior Divisional Engineer/Coordination. It cannot, therefore, be said that the officer who acted as the President of the Committee himself acted as the disciplinary authority. 14. The learned counsel for the petitioner, however, sought to impress upon us by contending that the incumbent officer might be different but the officer is same by designation i.e. Senior Divisional Engineer/Coordination. In other words, his contention is that the designation of an officer is alone relevant but not the incumbent holding such office. We are not impressed with this contention. What is to be seen is whether a designated authority is competent to act as a Disciplinary Authority and not a particular incumbent holder of such office. It is not in dispute that under Rule 9 of the Rules, Senior Divisional Engineer/Coordination is the competent disciplinary authority. As such the Board’s Letter, dated 23-05-1969 cannot take away his jurisdiction vested in him under Rule 9 of the Rules. Having thus examined the Board’s letter in juxtaposition to the Report of the Committee and the fact that a different incumbent considered the enquiry report and passed orders, we hold that the first respondent was not ousted of his jurisdiction to act as a Disciplinary Authority. 15. The learned counsel for the petitioner further contended that there is no material to connect the petitioner to the incident and as such he is not liable to be punished. Reliance is sought to be placed on the judgment in Sher Bahadur v. Union Of India and Others[1]. In our opinion, the judgment has no application to the facts of the case. In the instant case, the petitioner’s contention that he was not in-charge of the Section at the relevant point of time was found to be incorrect. The petitioner having taken stand that he was not in-charge of the location did not discharge his burden to support his stand. On the other hand, he admitted that he was working in the Section on the oral instructions of the then AEN/BZA. In his reply dated 14-11-1998 to the Charge Memo dated 28-10-1998 the petitioner took a stand that he was no way concerned as Supervisor/P.Way and that he was not in charge of G.No.8 in which jurisdiction the derailment took place. His attempt was to show that he was a Supervisor/P.Way of North and he sought to justify that there was no order appointing him as in-charge of the area. But during the enquiry, he admitted that he was working in SSE/P.Way/S/BZA as per the oral instructions of the then AEN/BZA. He did not even contest this fact before the appellate authority i.e. 2nd respondent. The petitioner was given ample opportunity to adduce evidence on his behalf during the enquiry but he failed to establish that he was not in-charge of the area at the relevant time when the incident took place. Thus, the contention that there is no material to connect the petitioner to the incident is without any substance. 16. The learned counsel for the petitioner lastly contended that the punishment is disproportionate to charge and the same is liable to be reduced. 17. The learned counsel for the respondents, however, contended that having regard to the nature of duties which the petitioner is expected to discharge and having regard to the potential risk to which the passengers are exposed, the authorities have rightly imposed the punishment and this Court cannot go into the proportionality of the punishment in this writ petition. 18. The Apex Court in Union of India v. Parma Nanda,[2] in para-27, held as follows: “We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.” 19. We are, therefore, of the view that it is not the function of this Court to go into the proportionality of the punishment. No other point has been canvassed before us and having examined the aforesaid contentions carefully, we are of the view that there is no illegality or infirmity in the orders of the Tribunal warranting judicial review by this Court under Article 226 of the Constitution of India. 20. The writ petition is accordingly dismissed. There shall be no order as to costs. __________________________ JUSTICE A.GOPAL REDDY Dated: -02-2010 ________________________ JUSTICE NOUSHAD ALI KVR/SKMR [1] 2002 (7) S.C.C. 142 [2] 1989 (2) S.C.C. 177