^s^- . -^-^^" ^ P fz^/ IN THE HON'BIE HIGH COURT OF CHHATTISGARH AT BILASPUR rCHHATTISGARH) Writ Petition (Ser^ice) No. 7 2-^s^0f2007, PETITIONER :- ^ Darash Ram, son ofMahagu, resident of Infront ofNetram's House, Near Torwa Primary School, Bilaspur (Chhattisgarh). VERSUS RESPONDENTS :-^1. Union oflndia, Through General Manager, ^, South Eastem Central Railway,Bilaspur ^? ; . . (Chhattisgarh), "^^S. Senior Divisional Mechanical Engineer, D.R.M. Complex, W.R.S.Colony, Raipur (Chhattisgarh), ^n'ti%/. ^.^-^ ^. Coaching Depot Officer, South Eastem Central Railway, Bilaspur (Chhattisgarh), ,4. Divisional Mechanical Engineer (Freight), South Eastem Central Railway, Bilaspur (Chhattisgarh). PETITION UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA ...*• ^' y i:^ w HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench t Coram: - Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Petitioner Respondents W. P. (Sl No.7225/2007 Darash Ram Versus Union of India and others ^:. (Petition under Article 226/227 of the Constitution of India) Present: - Shri H. B. Agrawal, Senior Advocate with Shri Pankaj Agrawal, counsel for the petitioner. Shri Abhishek Sinha with Shri Ghanshyam Patet, counsel for the respondents. ORDER (Passed on this Jl^iay of March,2010) Per Manindra Mohan Shrivastava.A By this petition, the petitioner has challenged the order dated 10-04-2007 (Annexure P-20) passed by the Central Administrative Tribunal, Jabalpur Bench (henceforth "the Tribunal") in Original Application No.143/2006 by which the original application filed by the petitioner challenging the order of imposition of penalty and dismissal of appeal has been dismissed. (2) The facts relevant and necessary for adjudication of controversy involved in the petition are that the petitioner while functioning as Khalasi/Helper under respondent-Railways was charge sheeted vide charge sheet dated 30-10-1996 "^ c L (Annexure P-1) issued by the Coaching Depot Officer, S. E. Railway, Bilaspur. It was alleged that the petitioner is remaining absent from duty w.e.f. 02-03-1996 and onwards unauthorizedty without any communication and has thereby contravened the provision of Rule 3(i) (iii) of Railways Services (Conduct) Rules, 1966. On 05-2-1997 (Annexure P-2), an order was passed by the Divisional Mechanical Engineer (Freight), S. E. Railway, Bilaspur, imposing penalty that next increment raising pay from Rs.926/- to Rs.940/- shall be withheld for a period of three years with non-cumulative effect with effect from the date it becomes due. It has been stated in the order that the period of punishment of three years shall not operate to postpone further increments on the expiry of the punishment. The said order referred to the charge sheet dated 05-12-1^6. It was communicated to the petitioner on 01-03-1^7 as seen from the endorsement made on the said order by the petitioner. While the petitioner was under impression that the enquiry has come to an end with the imposition of aforesaid minor penalty as ordered vide order dated 05-02-1^7 (Annexure P-2), he received a notice dated 11/12-03-1997 (Annexure P-3) atong with enquiry report requiring She petitioner to make representation or submission to the discip!inary authority within 15 days of receipt of the letter. In the meantime, an order was passed on 01-04-1997 by the respondent-Railways (Annexure R-10) filed along with the reply of respondents befbre the Tribunal. This was followed by order dated 20-10-1997 (Annexure P-4) imposing major penalty of removal from Railway service. The petitioner then submitted an appeal on 15-01-1998 (Annexure P-6) to the Divisional Mechanical Engineer (Freight). It was followed by representation dated 17-05-2001 (Annexure P-7) addressed to the Divisional Railway Manager, S. E. Railway and copy thereof was endorsed to the Senior D.P.O., S. E. Railway, Bilaspur and Senior D.M.E., S.E. Railway, Bilaspur for t 1- ^ information and necessary action. Vide order dated 08-10-2001 (Annexure P-8), with reference to appeal dated 17-05-2001 addressed to Divisional Railway Manager, S.E. Railway, Bilaspur, petitioner was advised that he may submit mercy appeal to Divisional Mechanical Engineer, S.E. Railway, Bilaspur(Appellate authority). (3) As the matter stood thus, original application was filed by the petitioner before the Tribunal registered as Original Application No.466 of 2005, which was finally disposed of vide order dated 22-09-2005 (Annexure P-15). The Tribunal directed the petitioner to file a fresh appeal addressed to the Sr.D.M.E., S.E. Railway, Raipur within a period of four weeks from the date of receipt of copy of the order of the Tribunal. The Sr. D.M.E., S.E. Railway, Raipur-the Appellate authority was directed to consider the appeal of the petitioner and take decision by passing a detailed, reasoned and speaking order within four months from the date of receipt of a copy of the appeal from the petitioner. The petitioner preferred an appeal on 24-10-2005 (Annexure P-16) before the Sr.D.M.E., S.E. Railway, Raipur. Vide order dated 05/06-12-2005 (Annexure P-17), order of removal from service passed by the disciplinary authority was revised to removal from service without any compassionate allowance. (4) Aggrieved by the order dated 05/06-12-2005 (Annexure P-17), the petitioner again approached the Tribunal by filing Original Application No.1 43 of 2006 challenging the order mainly on following grounds:- (A) That, once minor penalty of withholding of increments for three years with non-cumulative effect was imposed vide order dated 05-02-1997, it was not permissible under the taw to proceed with the enquiry on the same charges of misconduct and pass another order imposing major penalty of removat from servics wde order dated 20-10-1997 as this amounts to double ) ^: \^o (B) That, imposition of major penalty of removal from service is extremely harsh and excessive and not commensurate to the gravity of misconduct i.e. absence from 02-03-1996 to 27-12- 1996. (5) The learned Tribunal vide its order dated 10-04-2007 dismissed the original application. The Tribunal has held that the minor penalty of stoppage of increment for three years imposed on the petitioner having been cancelled before major penalty was imposed, it could not be said to be a case of double punishment. It has also been recorded that ample opportunity was afforded to the petitioner. The Tribunal further held that the petitioner preferred representation only on 15-01 -1998 against the penalty of removal from service, after much water had flown. The Tribunal has also observed that the petitioner was casual in his duty in not submitting representation for !ong period and that he was not serious about the matter. The learned Tribunal further goes on to record that the petitioner was not serious about pursuing his grievance at any point oftime. (6) Assailing the order of removal and the orders passed by the appellate authority and disciplinary authority imposing major penalty of removal from service, Shri H. B. Agrawal, Senior Advocate with Shri Pankaj Agrawal, counsel for the petitioner argued that in respect of the said allegation of remaining absence from duty from 02-03-1996, an order of punishment was already passed on 05-02-1997 reducing pay from Rs.940/- to Rs.926/- for a period of three years without cumulative effect and thus matter came to an end, it was not permissible under the law to proceed with the enquiiy on the same charges of misconduct and pass another order of imposition of penalty on the petitioner. It has been urged that though there is mention of another charge sheet dated 05-02-1997 but the respondents have not placed on record any such charge sheet before the Tribuna! or before this Court. Learned counsel for the petitioner contended that >--•.' y/-"" -s'?»- "i \^ L-- the petitioner's case has been that he did not defend the charges as he was told that he would be visited with a minor penalty only. It is further submitted that order issued on 01-04-1997 was served only on 04-04-1997 which does not contain any reason. Placing reliance on the decision of the Supreme Court in the case of K. R. Deb vs. The Collector of Central Excise, Shllong, AIR 1971 SC 1447, it has been argued that it was not permissible for the respondents to conduct enquiry in respect of the same charges which has already been imposed and then to impose any penalty. Placing reliance on the decision of the Supreme Court in the case of K.C.P.E. Assocn. Madras Vs. K.C.P. Ltd.,AIR 1978 SC 474, it has also been argued that if two conflicting orders are there, then one beneficial to the employee is to be given effect to. (7) Per contra, submission made by leamed counsel for the respondents is that there is no illegality in the order of imposition of penalty passed on 20-10- 1997 and subsequent order passed by the appellate authority on 05/06-12-2005 by which penaltyof removal from service without any compassionate allowances has been imposed. It is argued that the order of penalty datsd 05-02-1^7 having been cancelled vide order dated 01-04-1997, it cannot be said to be a case of double jeopardy. The petitioner was not at all subjected to rigour of minor penalty as awarded vide order dated 05-02-1997 as the same was not given effect to and was ultimately cancelled. He further submits that the petitioner was granted due and proper opportunity of hearing during the course of enquiry but he did not submit any reply to defend himself. Prosecution witnesses were examined in his presence and he was given opportunity to cross-axamine the prosecution witnesses which also he did not avail. It is also argued that the petitioner admitted the charges leveied against him. Learned counsel for the respondente further submits that taking into consideration the nature of gravity of misconduct, imposition of penalty of removal from service cannot be said to be disproportionate or excessive so as to shock the conscience ofthe Court. (8) We have carefully gone though the pleadings and records of the case and considered the submissions made by the learned counsel for the respective parties. (9) We find that after the penalty was imposed on the petitioner vide order dated 20-10-1997 Annexure P-5, the petitioner had submitted appeal whereafter he was advised vide letter dated 08-10-2001 (Annexure P-8) to submit mercy appeal to another authority namely D.M.E., S.E. Raiiway, Bilaspur. Thsreafter, the petitioner approached the said authority and when the matter remained pending without any decision, petitioner filed Original Apptication No.466 of 2005. In that case, return was filed by respondents, copy of which has been placed on record as Annexure P-14. It was specifically pleaded that the earlier order of punishment dated 05-02-1997 has been cancelled vide order dated 01/09-04- 1997 and also communicated to the petitioner on 14-04-1997 under his acknowledgment. That order dated 01/09-04-1997 was also placed on record as Annexure R-1. But from the pleadings made in Original Application No.466 of 2005. there is no reference to the said order dated 01/09-04-1^7 canceling earlier order dated 05-02-1997. Petitioner did not even challenge the same. The said original application was finally disposed of vide order dated 22-09-2005. (10) After dismissal of appea! vide order dated 05/06-12-2005, the petitioner approached the Tribunal again in the second round of the litigation by filing Original Application No.143/2006, out of which, the instant petition has arisen.A careful perusal of the pleadings made in Original Application No.143/2006, copy ^ ») . s': \^ of which has been placed on record as Annexure P-18, we find that the petitioner chose not to assail the legality and validity of order dated 01-04-1997, by which, eariier order dated 05-02-1997 was cancelled. It is clear that this was within the knowledge of the petitioner yet the petitioner challenged the order of dismissal of appeal and the punishment orders on the ground that punishment having already been imposed on 05-02-1997, the charges could not be enquired further nor could punishment be changed from minor penalty-stoppage of increment to major penaity-removal from service. Though several grounds have been raised to assail the validity of the subsequent order of punishment of removal from service and order of dismissal of appeal, no challenge was posed to order dated 01-04-1997, by which, earlier order of imposition of minor penalty passed on 05- 02-1997 was cancelled. (11) !n the absence of any speciflc dispute raised before the Tribunal by calling in question the validity of order dated 01-04-1997, there was no occasion for the Tribunal to go into the correctness of the said order. In substance, this question was never raised before the Tribunal as to whether the order dated 01-04-1997 canceling earlier order of punishment dated 05-02-1997 is correct and in accordance with law. The Tribunal therefore, in our view, did not commit any jllegality in not considering this aspect of the matter but had proceeded on undisputed factual position that the eariier order of penaity dated 05-02-1997 having been cancelled, imposition of major penalty therefore did not result in double punishment. Even before this Court, it has not been stated on affidavit by the petitioner that even orally any such challenge to the legality and validity of order dated 01-04-1997 was raised before the Tribunal. Even in the petition filed by the petitioner before this Court, there is no whisper as to the legality and validity of order dated 01-04-1997 much less challenge to the same on any l^-'*^'^ [\^ ground whatsoever. In the absence of any challenge to the legality and validity of order dated 01-04-1^7 passed by the D.M.E., S. E. Railway, Bilaspur, in the original proceedings before the Tribunat, challenge to issuance of subsequent orders of penalty dated 20-10-1997, subsequent dismissal of appeal vide order dated 05/06-12-2005 on the ground that order of punishment having been passed on 05-02-1997, subsequent order dated 20-10-1997 could not be passed, mustfail. The scope of supervisory jurisdiction conferred upon this Court under Article 227 of the Constitution of India is limited. This Court while exercising supervisory jurisdiction would not embark upon an issue/dispute which was not raised before the Tribunal. if the petitioner had any grievance, it was open for the petitioner, while assailing validity of the order dated 20-10-1997 jmposing penalty of removal from service and order passed in appeal on 05/06- 12-2005, to raise speciflc challenge to the legality and validity of order dated 01-04-1997 on whatsoever ground which might be applicable to the petitioner before the Tribunal. tf the order dated 01-04-1997 is taken as it is, we are unable to accept that there was any legality or violation of any statutory provisions in imposing penalty of removal from service vide order dated 20-10-1^7 on the ground that earlier a penalty was imposed on 05-02-1997. In so far as second limb of submission relating to quantum of punishment of removal from service is concemed, we find thatthe learned Tribunal has not recorded any finding on this aspect. A perusal of Original Application No.143/2006 (Annexure P-18) filed before the Tribunal would show that the petitioner challenged the order of punishment of removal from service on the ground that it was harsh and excessive. !n substance, the petitioner sought to challenge the order of punishment passed earlier on the ground that the rigorous punishment of removal from service was not commensurate to the gravity of misconduct i.e. absence from 02-03-1996 to 27-12-1996 i.e. a littie more than 9 months. It has aiso been pleaded that the previous record of the petitioner was not bad. In our opinion, the Tribunal was under an obligation to examine this aspect of the matter which has not been done. The Tribunal, swayed by the fact that the petitioner was casual in his approach while challenging the correctness, legality and validity of enquiry proceedings and orders passed therein, has not recorded any finding on this ground of challenge raised by the petitioner in his original application before the Tribunal. (12) We are therefore inclined to remit the case to the Tribuna! for the limited purpose of examining the ground raised in the original application as to whether the order of imposition of penalty of removal from service without compassionate ailowance was in aceordance with the provisions of the Raitway Servants (Discipline & Appeal) Rules, 1968 and whether the same is harsh/excessive, after taking into consideration the relevant facts and cireumstances of the case and the law applicable in this regard. (13) The petition is accordingly partly allowed to the extent as held above. No order as to costs. ------___ Sd/- Satish K.Agnihotri Judge Sd/- M.M. Shrivastava Judge