HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G.V. SEETHAPATHY W.P.No.11851 of 2001 Date: 01-03-2011 Between: Union of India and another ………. Petitioners and S. Rama Rao ….. Respondent HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G.V. SEETHAPATHY W.P.No.11851 of 2001 ORDER: (Per BPR, J) The petitioners are the Union of India and its railway authorities who filed this writ petition under Article 226 of the Constitution of India, inter alia, seeking for a writ of Certiorari assailing the correctness of the orders passed in O.A.No.52 of 2000, dated 05-03-2001, on the file of the Central Administrative Tribunal, Hyderabad Branch, and to quash the same. Briefly the facts, which gave rise to the present proceedings, are that the respondent herein has been employed in the railways and was working as Travelling Ticket Examiner (Sleeper Coaches) on the relevant date i.e., on 07-01-1998. While he was on duty in Train No.2618, which was running between Vijayawada to Renigunta, he was found with certain irregularities. Having regard to the same, a charge memo was issued on 17-08-1998 by giving the account of the twin charges viz.: “Article-I: That the said Sri S. Rama Rao, TTE/SL/BZA while working as such by train No.2618 Express from BZA to Renigunta as incharge of S/6 to S/10 coaches on 7-1-1998 has failed to maintain absolute integrity devotion to duty and also acted in a manner unbecoming of a Railway Servant and committed the following serious misconduct in that— He had demanded and collected Rs.110/- as against actual amount of Rs.60/- towards conversion charges for providing berth Nos.30 in S/8 coach from Sri G. Ghouse Basha for his journey upto Erode who was in possession of II M/E ticket from Vijayawada to Erode, as detailed in the statement of imputations and thus liable vide para 2430 (a) of IRCM Vol.II. Thus, Sri S. Rama Rao, TTE/SL/BZA has violated rule No.3(1) (i)(ii) and (iii) of Railway Services (Conduct) Rules, 1966. Article-II: That the said Sri S. Rama Rao, TTE/SL/BZA while working as such by train No.2618 express as incharge of S/6 to S/10 from Vijayawada to Renigunta on 7-1-1998 has failed to maintain absolute integrity, devotion to duty and has committed the following serious irregularity in that— He has produced Rs.106/- excess in Railway Cash in a transaction of Rs.1154/- which was remitted to railways vide EFT No.181583 of 7-1- 1998 and thus liable vide para 2429 9a) of IRCM Vol.II. Thus Sri S. Rama Rao has violated rule No.3(1) (i) and (ii) of Railway Services (Conduct) Rules, 1966.” The above allegations as per the Railway Services (Conduct) Rules, 1966 constitute misconduct and hence, warranted an enquiry. After providing necessary opportunities, an enquiry was held and a report was submitted and the disciplinary authority, as per the orders dated 12-05-1999, imposed the penalty of reduction in time scale by two stages i.e., from Rs.4,400/- to Rs.4,200/- in the scale of Rs.4000- 6000 for a period of 24 months with recurring effect from 20-05-1999. Admittedly no challenge has been made either way against these proceedings in the manner, which is known to the law, either by way of Appeal or otherwise. However, it is now contended on behalf of the petitioners that in exercise of the powers as conferred under Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short ‘the Rules’), a review was sought to be exercised by the revising authority to enhance the punishment by revising the said order, dated 12-05- 1999. Rule 25(1)(iv) of the Rules empowers the appellate authority not below the rank of Divisional Railway Manager to revise the orders. Therefore, a notice, dated 02-11-1999 was issued to the respondent herein by the Additional Divisional Railway Manager since he was holding the same scale of pay of Divisional Railway Manager and was entrusted with the duties of appeals and revisions for the administrative convenience as per the orders issued on 08-07-1982. Hence, the Additional Divisional Railway Manager being equivalent to that of the Divisional Railway Manager, the proceedings initiated are said to be perfectly competent and within jurisdiction. The respondent sought for personal hearing as per the letter, dated 16-11-1999 and he was accordingly heard on 02-12-1999. Thereafter, final orders were passed on 05-01-2000 imposing the penalty of compulsory retirement w.e.f. 20-01-2000. Challenging the same on various grounds including want of power, authority and jurisdiction, the respondent filed O.A.No.52 of 2000 before the Central Administrative Tribunal, Hyderabad Branch, to declare the said proceedings, dated 05-01-2000 as illegal, without jurisdiction and beyond the period of limitation. After contest, the Tribunal did undergo all the pleas set forth from both sides and ultimately allowed the said O.A. on the ground that the authority, who sought to exercise the revisional powers in the present case, is not competent and therefore, the orders are liable to be set aside and accordingly, set aside the same, through the order, dated 05-03-2001. It is this order, which is now challenged before this Court at the instance of the petitioners herein. The main contention urged on behalf of the petitioners is to the effect that having regard to the authority as contemplated under Rule 25 (1) of the Rules, the authority, who had exercised the revisional powers in the present case viz., Additional Divisional Railway Manager, is fully competent and therefore, nothing lies in the mouth of the respondent to challenge his jurisdiction since the said Additional Divisional Railway Manager is equivalent to that of the Divisional Railway Manager and he has been fully conferred with the powers. These submissions are sought to be repelled on behalf of the respondent on the same lines as done before the Tribunal. Hence, taking into account the aforesaid submissions from both sides, the only point which arises for consideration is, whether the action on the part of the petitioners in exercising the revisional powers and setting at naught the earlier orders and passing the impugned order, dated 05-01-2000 is valid? Shorn of all other facts, which have already been narrated in the preceding paras, in respect of which there being no dispute, it is to be seen that the Tribunal, by referring to Rule 25 of the Rules, found categorically that the said authority viz., Additional Divisional Railway Manager is not competent. It was found that the aforesaid Rule contemplates the exercise of the powers only by the Divisional Railway Manager who has to exercise the revisional jurisdiction. There is no dispute to the fact that the Additional Divisional Railway Manager is below the rank of the Divisional Railway Manager. The counter was silent as to the equal position in the category, cadre or post. Except referring to the drawal of same scale of pay by both the Divisional Railway Manager and the Additional Divisional Railway Manager and referring to certain proceedings issued by the petitioners, nothing has been pointed out, as observed by the Tribunal, to bring both the posts on equal platform. Further, admittedly the respondent is the railway servant working under the Divisional Railway Manager and therefore even as per the aforesaid Rule, it is only the Divisional Railway Manager, who is competent authority. As far as the Additional Divisional Railway Manager is concerned, the aforesaid Rule is totally silent nor does it make any inclusive authority to widen the definition of Divisional Railway Manager. Further it is also observed that the disciplinary authority being a Divisional Commercial Manager, the Senior Divisional Commercial Manager becomes the appellate authority and the Additional Divisional Railway Manager becomes the revising authority. The aforesaid Rule provides only for Divisional Railway Manager and therefore the impugned order, dated 05-01-2000 is held to be without jurisdiction. On a reading of the aforesaid Rule, we are satisfied about the interpretation as sought to be given and as made applicable to the facts of the case in drawing the distinction between the post of the Divisional Railway Manager and that of the Additional Divisional Railway Manager and no other reason nor any other provision has been shown to come to any different conclusion. Since the impugned action being an action in penal in its nature, necessarily the Rule concerning such exercise and power has to be interpreted strictly but not otherwise to give any scope for its liberal exercise by any other authority. Even in the affidavit filed in support of this writ petition, nothing has been pointed out except again referring to the discharge of same duties and functions and drawing the same scale of pay, on which we are of the opinion and in agreement with the Tribunal to say that the same would not constitute any basis as such to bring forth both the posts on equal rank. Another attempt has been made on behalf of the petitioners to show that the Tribunal itself has taken a different view in O.A.No.11 of 2000, dated 30-04-2001 holding that the power under the aforesaid Rule can be exercised by the Additional Divisional Railway Manager. However, we have perused the said order, the copy of which has been made part of the material papers, and find that there is no discussion as such much less on a point directly arising in regard to the competency of the Additional Divisional Railway Manager for exercising the powers as conferred on the Division Railway Manager. Therefore, it cannot be said that the said order constitute as any precedent for the purpose of holding that the Additional Divisional Railway Manager could be treated as Divisional Railway Manager for the purpose of constituting disciplinary authority over the employees who fall under him. Therefore, we do not find any justification in the contention urged by placing reliance on the said order. That part, certain other submissions were also made, which are not part of the pleadings, during the course of arguments in regard to the period between 05-01-2001 and 31-07-2009 as to how the same should be taken into consideration for the purpose of giving benefits to the respondent herein. There being no dispute to the fact that initially the punishment was imposed on the respondent on 12-05-1999 and it is only thereafter the petitioners themselves sought to vary with the said punishment by alleging exercise of the revisional powers, and the impugned orders came to be passed on 05-01-2000, which was ultimately set aside by the Tribunal with which we are in entire agreement on the main ground of want of jurisdiction. Therefore, the entire proceedings since inception in regard to such exercise of revisional or review power by or on behalf of the petitioners, becomes non-est and therefore, there cannot be any dispute to hold that the respondent would get all the benefits that would follow as a consequence to the earlier order passed against him on 12-05-1999, as per the Rules. Subject to the above, we do not find any merits in this writ petition. The writ petition is, accordingly, dismissed. No costs. _________________ B. PRAKASH RAO, J ___________________ G.V. SEETHAPATHY, J Date:01-03-2011 YCR