HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION No.26344 of 2001 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is ﬁled aggrieved by the order passed in O.A.No.1388 of 2000 dated 31-08-2001 on the ﬁle of Central Administrative Tribunal, Hyderabad, dismissing O.A. The petitioner is also challenging the action of ﬁfth respondent – Senior Divisional Commercial Manager, Secunderabad Division, South Central Railway, Secunderabad, in imposing the punishment of reduction to one stage lower in the existing time scale of pay for a period of one year with cumulative eﬀect and to restore back to the grade from where he has been reduced, after completion of the punishment period, without aﬀecting seniority. 2. The brief facts of the case are that the petitioner was appointed as Assistant Catering Manager on 17-03-1980 at Secunderabad Railway Station Unit and promoted as Catering Manager in the year 1984 and also as Catering Inspector, Grade-II and worked at various places. He was further promoted on 17-11-1995 as Catering Inspector, Grade-I, which was on ad hoc basis and later regularised and conﬁrmed in the promotion post on 06-03-1997 with immediate eﬀect. Even before the promotion was eﬀected, a charge-sheet is said to have been issued on 01-12-1994 and also a show cause notice was issued to the petitioner stating that the promotion to the higher grade was eﬀected when the disciplinary proceedings were pending and therefore it is proposed to revert him to a lower grade. He submitted an explanation to the show cause notice. The disciplinary authority after considering the explanation, reverted him to the lower post of Catering Inspector, Grade-II. It is averred that before the order of reversion was communicated, the petitioner ﬁled O.A.No.494 of 2000 before the Tribunal, which was disposed of directing him to prefer an appeal against the reversion order. Pursuant thereto, the appeal preferred by him was rejected vide order dated 19-09-2000, which was impugned in the O.A.No.1388 of 2000. 3. The case of the petitioner was that he was regularised and conﬁrmed in the substantive post of Catering Inspector Grade-I and discharged the duties for more than one year and in view of the Railway Board letter No.(D&A)87-RG 6-2, dated 18-12-1987, he cannot be reverted on the ground that the disciplinary proceedings have been initiated and pending. The stand of the Railways was that the petitioner was promoted and regularised erroneously, when the disciplinary proceedings were pending against him, and the Department had given show cause notice to him and after considering his explanation and regular enquiry, reverted him to the lower cadre. The Tribunal after considering the rival contentions upheld the action of Railways on the ground that administrative errors can be corrected at any time and a Railway servant cannot be promoted till the disciplinary proceedings are concluded and he is cleared oﬀ all the charges. Hence, this writ petition is filed by the applicant. 4. Heard learned counsel for the petitioner and learned standing counsel appearing for South Central Railway and also perused the record. 5. Learned counsel for the petitioner contended that the incident pertains to the year 1990, a preliminary enquiry was conducted in 1992 and a charge-sheet was issued on 01-12-1994. He has also submitted that the petitioner was promoted as Catering Inspector Grade-I in November, 1995 on ad hoc basis and later conﬁrmed and regularised on 06-03-1997; that the show cause notice issued by the authority does not state that the promotion was eﬀected by mistake and it merely states that since the disciplinary proceedings are pending, the petitioner is proposed to be reverted. Learned counsel further contended that it is settled law that there is no bar for eﬀecting promotion even during the pendency of disciplinary proceedings and that the disciplinary proceedings are in respect of misconduct and stand on a diﬀerent footing, and in case misconduct is proved, suitable punishment will be imposed. It is brought to our notice that the disciplinary proceedings have been ultimately concluded and the punishment was imposed reducing the petitioner to one stage lower in the existing time scale of pay for a period of one year with cumulative eﬀect, with further direction that after completion of the punishment, he will be restored back to his grade from where he has been reduced and that the seniority will not be effected. 6. On the other hand, learned standing counsel appearing for respondents contended that the mistake committed in eﬀecting promotion cannot be perpetuated, though regularised and conﬁrmed by the higher authority. He also contended that as on the day when the promotion was eﬀected, disciplinary proceedings were pending and therefore, he is not entitled to have the beneﬁt of the administrative lapse, which was sought to be rectified. 7. We have considered the rival contentions of both the counsel. Admittedly, the petitioner was promoted from Catering Inspector Grade-II to Grade-I and regularised in that cadre with eﬀect from 06-03- 1997, during the pendency of disciplinary proceedings as the charge-sheet is said to have been issued on 01-12-1994. It is seen from the record that the disciplinary proceedings ended in imposition of punishment of reduction to one stage lower in the existing time scale of pay for a period of one year with cumulative eﬀect and to restore back to the grade from where he has been reduced after completion of the punishment period, without aﬀecting seniority. Thus, the disciplinary authority had awarded punishment, which the petitioner had already suﬀered. When once the petitioner had suﬀered punishment with regard to the misconduct, he cannot be penalised again by way of reversion to the lower cadre on the ground that the promotion was illegal and was eﬀected by mistake. Further, a perusal of the show cause notice reveals that the promotion given was against the Rules and it does not specify that by mistake, the petitioner had been given promotion. No Rule or Regulation has been placed before us to show that when the disciplinary proceedings are pending against the delinquent oﬃcer, he shall not be given promotion to the higher category. The Tribunal has not considered this matter in proper perspective. In fact, the penalty itself is to the eﬀect that after the expiry of punishment period, the petitioner shall be restored to the grade from where he has been reduced and his seniority will not be aﬀected. When once the petitioner had suﬀered the punishment, and he was promoted and regularised in the higher cadre, he has to be restored in that cadre, but cannot be reverted merely because the authority had eﬀected the promotion by mistake. 8. It is settled law that this court in exercise of judicial review cannot interfere and substitute the punishment imposed by the disciplinary authority unless it is shockingly disproportionate to the proved misconduct or shakes the judicial conscience of the court. Therefore, we are of the view that the punishment imposed is in proportion to the proved misconduct, and are not inclined to interfere with the punishment imposed on the petitioner. However, in view of the fact that the petitioner has already suﬀered stoppage of one increment with cumulative eﬀect and seniority in the higher cadre was restored, the reversion order is liable to be set aside and it is accordingly set aside. 9. In the result, the writ petition is allowed to the extent of setting aside the order of reversion and consequently, the petitioner is entitled to all consequential beneﬁts arising therefrom, and the writ petition shall stand dismissed insofar as the punishment imposed by the disciplinary authority is concerned. No order as to costs. ___________________________ GHULAM MOHAMMED, J. _________________________ G.BHAVANI PRASAD, J. 29-09-2008 bsc