IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 10696 of 2006(S) -------------------------- OA.758/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN, CHENNAI-3. 2. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 3. THE CHIEF OPERATIONS MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 4. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 5. THE SENOR DIVISIONAL MECHANICAL ENGINEER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT: --------------- V. VASANTHA KUMAR, S/O. M.S. VAIDYANATHAN, EX.DIESEL ASSISTANT, SOUTHERN RAILWAY, ERODE, RESIDING AT NO.D.103, SAMPATH NAGAR, ERODE-11. ADV. SRI.T.C.GOVINDA SWAMY FOR R SMT.D.HEERA FOR R SRI.P.NPANKAJAKSHAN PILLAI FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.10696/2006 APPENDIX PETITIONERS' EXTS: EXT.P1: COPY OF O.A.NO.758/2003 ALONG WITH ANNEXURES, FILED BY THE RESPONDENT HEREIN, BEFORE CAT, ERNAKULAM BENCH. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY RAILWAY IN O.A.NO.758/2003 BEFORE THE CAT. EXT.P3: COPY OF REJOINDER FILED BY THE RESPONDENT HEREIN, BEFORE CAT DT.22.3.2004. EXT.P4: COPY OF ADDL.REPLY STATEMENT FILED BY RAILWAY BEFORE CAT. EXT.P5: COPY OF ADDL.REJOINDER FILED BY RESPONDENT HEREIN, BEFORE CAT DT.6.8.2004. EXT.P6: COPY OF ADDL.REPLY STATEMENT FILED BY RAILWAY BEFORE CAT. EXT.P7: COPY OF ORDER DT.12.1.2006 OF CAT IN O.A.NO.758/2003 //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------------- W.P.(C) No.10696 OF 2006 ------------------------------------- Dated this the 6th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioners are the respondents in O.A.No.758/2003 before the CAT, Ernakulam Bench. The respondent herein was the appellant. 2. The applicant was a Diesel Assistant/Assistant Driver under the Palghat Division of the Southern Railway since 4.11.1998. He was charge sheeted and disciplinary proceedings for imposition of major penalty were initiated against him in connection with an incident on 26.8.2001 in which the train he was working happened to stop beyond signal. The driver failed to apply the break in time. It was alleged that the applicant failed to alert the driver or apply the emergency break by himself. In connection with the above incident, the driver was also charge sheeted and subjected to disciplinary action. Against the driver of the train, summery proceedings were W.P.(C) No.10696/2006 2 initiated and completed, as he was on the verge of retirement when the incident took place. He was compulsorily retired from service one month prior to his normal date of superannuation. In the case of the applicant, an enquiry was held, in which he was found guilty. After following the due procedure, as per Annexure A1 order dated 8.8.2002, the disciplinary authority imposed the punishment of compulsory retirement on him. He appealed. The appellate authority by Annexure A2 order dated 7.12.2002 dismissed the appeal filed against Annexure A1. Though a revision was attempted, that was also dismissed by the revisional authority as per Annexure A3 dated 12.3.2003. Challenging Annexures A1, A2 and A3, the applicant filed the aforementioned Original Application. 3. Though he attacked the impugned orders on various grounds, the Tribunal declined to interfere with the finding of guilt against him. But, it was held that the penalty imposed was grossly disproportionate with the gravity of the offence. So, the punishment of compulsory retirement was set aside with a direction to the appellate authority to impose some other W.P.(C) No.10696/2006 3 appropriate punishment, so that, he can continue in service. Feeling aggrieved by the said direction of the C.A.T, the respondents have come up before this Court by filing this writ petition. 4. The learned counsel for the writ petitioners submitted that the Tribunal does not have any appellate power. It cannot substitute its own decision, in the matter of imposition of penalty. Only, in exceptional circumstances and that too on valid grounds, the Tribunal or the High Court could interfere with the penalty imposed by the competent authority. The High Court or the Tribunal should confine itself to the legality of the decision/decision making process. It can examine whether there was any violation of principles of natural justice or infringement of any rules governing disciplinary action. The adequacy or the proportionality of the punishment is beyond the reach of Tribunal or the High Court while they exercise their power of judicial review. In this case, the learned counsel for the petitioners also brought to our notice, the relevant rules governing the imposition of penalty. If the mis-conduct involved W.P.(C) No.10696/2006 4 resulted in collision of trains or passing of railway signals at danger, it is mandatory to impose one of the major penalties, unless there are special reasons to impose a lesser penalty. So, the Railways viewed the misconduct of passing the railway signal as a very serious misconduct. Therefore, the Tribunal should not have lightly interfered with the penalty imposed by the disciplinary authority, which was concurrently upheld by the appellate and revisional authorities. 5. The learned counsel for the respondent on the other hand submitted that going by the materials on record, the disciplinary authority should have found that the applicant was not at fault. The primary responsibility for crossing the signal rests with the driver. Having regard to the deposition of the driver in the enquiry, the applicant could not have been found guilty. Even assuming, the finding of the guilt is correct, it is submitted that the imposition of the major penalty of compulsory retirement was unwarranted on the facts of this case. So he supported the order of the C.A.T. W.P.(C) No.10696/2006 5 6. The limits of judicial review, while interfering the quantum of penalty is well settled. The examination as to whether the punishment is proportionate to the gravity of the offence falls more appropriately within the realm of appeal. While exercising the power of judicial review, this Court, normally, can examine whether the penalty is grossly disproportionate to the offence proved. In that event, it can be said that the disciplinary authority is not authorised to impose such grossly disproportionate penalty and therefore his action is ultra vires and unauthorised 7. In this case, going by the rules, nine penalties are provided, which could be imposed on a delinquent. Penalties (i) to (iv) are described as minor penalties and (v) to (ix) are major penalties. The relevant portion of the Rule 6 of Railway Servants (D &A) Rules, 1968, reads as follows: 6. Penalties:- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Railway W.P.(C) No.10696/2006 6 servant, namely: Minor penalties (i) Censure: ii) Withholding of his promotion for a specified period; iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government or Railway Administration by negligence or breach or orders. iii (a) Withholding of the Privilege Passes or Privilege Ticket Orders or both; iii (b) Reduction to a lower stage in the time- scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. iv) Withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period this will or will not have the effect of postponing the future increments of his pay. Major Penalties: v) Save as otherwise provided for in clause (iii)(b) reduction to the lower stage in W.P.(C) No.10696/2006 7 the time-scale of pay for a specified period, with further directions as to whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; 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. vii) Compulsory retirement; viii) Removal from service which shall not be a disqualification for future employment under the Government or Railway Administration. ix) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or Railway Administration. Provided that in cases of persons found guilty of any act or omission which resulted or would have, ordinarily, resulted in collisions of Railway trains, one of the penalties specified in clauses (viii) and (ix) shall ordinarily be W.P.(C) No.10696/2006 8 imposed and in cases of passing Railway signals at danger, one of the penalties specified in clauses (v) to (ix) shall, ordinarily, be imposed and where such penalty is not imposed, the reasons therefore shall be recorded in writing. Provided further that in cases of persons found guilty of possessing assets disproportionate to known sources of income or found guilty of having accepted or having obtained from any person any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act, one of the penalties specified in clauses (viii) or (ix) shall ordinarily be imposed and where such penalty is not imposed, the reasons therefore shall be recorded in writing.” 8. Going by the first proviso to the above rule, it could be seen that for the misconduct of passing railway signals at danger any of the penalties from (v) to (ix) could be imposed. In other words, even if penalty No.(v) or (vi) is imposed, the same will be sufficient for punishment as per the statutory scheme. The special grounds noted by the Tribunal to interfere with the penalty are the following: W.P.(C) No.10696/2006 9 1) This is the first offence committed by the delinquent and there is no earlier history of punishments against him. 2) He is aged only 42 years and he has got 16 years service left. 3) The driver, who was mainly responsible for the offence, was let off practically without any punishment. 4) The applicant has got a large family to support. 9. Based on the above facts, the Tribunal decided to interfere with the penalty. We feel that the view taken by the Tribunal is a plausible view on the facts. It cannot be described as an exercise of appellate power. As mentioned earlier, the scheme of the Rule would indicate that penalty No.(v) and (vi) could also have been imposed on the delinquent. Therefore, we are not inclined to hold that the exercise of the discretion made by the Tribunal in this case is ultra vires or without jurisdiction. But, we feel that in view of the 1st proviso to Rule 6, which we have already quoted above, while imposing the penalty, the W.P.(C) No.10696/2006 10 appellate authority shall be guided by the mandate of that proviso. That is, normally, penalty No.(v) or (vi) should be imposed, unless there are special grounds to impose a lesser penalty. With the above observation, this writ petition is disposed of. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps