IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 21183 of 2006(S) -------------------------- OA.903/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): ------------------------- 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. 2. THE CHIEF COMMERCIAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. 3. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM-14. 4. THE SR.DIVISIONAL COMMERCIAL MANAGER, SOUTHERN RAILWAY, TRIVANDRUM-14. BY ADV. MR.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT(S): ---------------------------- B.GOPINATH, AGED 46 YEARS, S/O.BALAKRISHNA PANICKER, RETIRED CATERING SUPERVISOR GR.I, SOUTHERN RAILWAY, TRIVANDRUM AND RESIDING AT CHENNAMPALLIL HOUSE, MOOLAVATTOM P.O., KOTTAYAM. R1 BY ADVS. MR.M.P.VARKEY, MR.MARTIN G.THOTTAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009 ALONG WITH WPC.NO.29559 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21183/2006 S APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DEPOSITION OF THE WITNESS SW3 IN THE DEPARTMENTAL ENQUIRY. EXT.P2: COPY OF O.A.NO.903/2004 OF CAT/EKM DTD. 10/12/2004 FILED BY THE RESPONDENT HEREIN ALONG WITH ANNEXURES. EXT.P3: COPY OF THE REPLY STATEMENT IN O.A.903/04 DTD. 22/09/2005 FILED BY PETITIONERS HEREIN. EXT.P4: COPY OF THE RELEVANT PORTION OF THE SERVICE REGISTER OF THE RESPONDENT. EXT.P5: COPY OF ORDER DTD. 13/04/2006 OF CAT/ERNAKULAM IN O.A.903/2004. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.P(C) NOS: 21183 & 29559 OF 2006 ----------------------------------------------------------------------------------- Dated this the 4th February, 2009. JUDGMENT BALAKRISHNAN NAIR, J. These writ petitions are filed challenging the order of the Central Administrative Tribunal, Ernakulam Bench in O.A.903/2004. The respondents in that O.A have filed W.P(C) 21183/2006 and the applicant has preferred W.P(C) 29559/2006. Since these writ petitions are directed against the very same order, they are heard together and disposed of by this common judgment. W.P(C) 21183/2006 2. The brief facts of the case are the following. The respondent herein was a Catering Supervisor Gr.I attached to Trivandrum-New Delhi Kerala Express. The vigilance wing of the railways inspected the pantry car when the train reached Coimbatore on 11.5.2000. It was found that the respondent was in possession of unaccounted cash of Rs.20,000/- in a sealed cover. The said cover was kept in a suit case in the cabin allotted to him. In his purse it was found that there was Rs.50/- which was found undeclared. There was a shortage of stores worth Rs.653.75 and W.P(C) Nos: 21183 & 29559/2006 2 excess quantities in seven store items. He was placed under suspension on 16.5.2000. He was served with Ext.A1 charge memo dated 29.8.2000. Since he denied the charges, enquiry was held into them and in the enquiry he was found guilty of the charges. The disciplinary authority, after following the due procedure, imposed the penalty of compulsory retirement on him by Annexure A6 order dated 3.3.2004. The petitioner appealed by filing Annexure A7 dated 16.3.2004. The appellate authority dismissed the appeal by Annexure A8 order dated 18.10.2004. Challenging Annexures A6 and A8 the respondent filed O.A.903/2004 before the Central Administrative Tribunal, Ernakulam Bench. A copy of the memorandum of original application is produced as Ext.P2. The writ petitioners resisted the application by filing Ext.P3 statement. The Tribunal after hearing both sides, allowed the original application in part, by Ext.P5 order dated 13.4.2006. 3. The Tribunal found that the disciplinary authority relied on applicant's previous history of various punishments to award the penalty of compulsory retirement. The same was done without alerting the applicant. The Tribunal also took the view that the only charge proved was the possession of unaccounted cash. If that be W.P(C) Nos: 21183 & 29559/2006 3 so, it was held that the punishment of compulsory retirement from service is grossly disproportionate to the gravity of the offence. So, the penalty was set aside and the matter was remitted to the disciplinary authority to reconsider the matter in accordance with law. The aggrieved writ petitioners challenge the above order of the CAT on various grounds. According to the railways, the penalty was imposed not only for the possession of unaccounted cash, but also based on the finding of excess unaccounted stores. It was specifically found that there were two bags, with 30 kgs of atta, which were not accounted in the stock register. According to the railways, the rules governing disciplinary action permits taking into account past history of the delinquent while imposing the penalty. Since the applicant was not put to notice regarding the intention of the disciplinary authority to take into account his past punishments, the railways may be given a chance to pass fresh orders against him taking into account the previous punishments imposed on him. The railways will put the applicant on notice regarding the same. In other words, the railways wanted to pass fresh orders in the matter taking into account the charges proved against him in the disciplinary enquiry and the punishments W.P(C) Nos: 21183 & 29559/2006 4 imposed on him in the past. W.P(C) 29559/2006 4. Since we have already stated the facts of the case, while dealing with W.P(C) No: 21183/2006, it is unnecessary to refer to them again. The grievance of the writ petitioner who was the applicant before the CAT was that the disciplinary authority did not take into account Rule 2429 of the Indian Railways Commercial Mannual Volume II, the relevant portion reads as follows:- “Private cash should not be kept in the railway cash chest, drawers, ticket tubes, cash sales etc. If any such amount or extra cash, whether stated to be private or otherwise, is found by the supervisory staff or inspecting officials, it should be remitted to the cash office.” The writ petitioner herein, who was the applicant, would submit that the above provision does not prevent the applicant from keeping his private cash in his suit case in his cabin. Keeping of private cash in cash chest etc alone is prohibited. The disciplinary authority as well as the appellate authority failed to advert to the above aspect. The Tribunal also missed the said point. Further two bags of atta found in excess, belonged to two workmen who were employed as servers in the pantry car. In their deposition before the enquiring authority, they have stated the correct facts. But the W.P(C) Nos: 21183 & 29559/2006 5 disciplinary authority did not advert to the said satisfactory explanation offered by the applicant for the presence of two bags of excess atta in the store. The appellate authority also did not consider the said point. The Tribunal proceeded on the footing that the said aspect has not been taken into account while imposing the penalty. The said assumption was incorrect. For the above reasons, he attacks the impugned order. 5. Having regard to the facts of the case, we agree with the finding of the Tribunal that the impugned orders of the disciplinary authority and the appellate authority Annexures A6 and A8 should be set aside. We uphold the order of the Central Administrative Tribunal to the extent it quashes those orders. But we feel that the disciplinary authority should be given a free hand to consider the matter afresh. Therefore we make the remand an open remand. The applicant shall be given a chance to represent against relying on the previous punishments for imposing penalty on him. The disciplinary authority, needless to say, will consider the same. It shall also consider the impact of Rule 2429 of Indian Railways Commercial Mannual Volume II while taking a decision regarding the possession of the petitioner of excess cash to the tune of W.P(C) Nos: 21183 & 29559/2006 6 Rs.20,060/-. The disciplinary authority shall also take into account the explanation of the applicant regarding the presence of two bags of atta found in the store. The disciplinary authority shall pass a fresh speaking order dealing with the above aspects. This the disciplinary authority shall do within two months from the date of production of a copy of this order. In case it is not done within the said time limit, the respondent in W.P(C) 21183/2006 and the writ petitioner in W.P(C) 29559/2006 shall be reinstated in service with all consequential benefits. Writ petitions are disposed of accordingly. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: