* THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND *THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION No. 21395 of 2005 % 24.03.2006 # Narinder Kumar … Petitioner and . $ The Union of India rep. By its Secretary to Government, Ministry of Railways, New Delhi and 4 others RESPONDENTS ! Counsel for the Petitioner: Sri Nooty Ramamohana Rao ^ Counsel for the Respondent : Sri R.S.Murthy, S.C. for respondent < Gist: > Head Note: ? CITATIONS: (1998)7 SCC 84 2 AIR 1964 SC 364 3 1969 (1) LLJ 300 (Cal HC) 4 (1997) 3 SCC 72 5 2005 SCC (L&S) 1006 6 (1999)7 SCC 739 7 AIR 1991 SC 1507 8 AIR 1994 SC 1074 9 AIR 1996 SC 1669 THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE RAMESH RANGANANTHAN WRIT PETITION No.21395 OF 2005 JUDGMENT: (per Hon’ble Sri Justice Ramesh Ranganathan) In this writ petition, the order of the Central Administrative Tribunal, in O.A.72 of 2005 dated 15.2.2005, and the proceedings of the Railway Board dated 24.9.2002, as confirmed by the 1st respondent in his proceedings dated 17.3.2004, are sought to be quashed. 2. Facts, in brief, are that the petitioner, a post graduate in Engineering (Structures) from Punjab University, consequent upon his selection by the Union Public Service Commission (UPSC) at the Combined Engineering Services Examination, came to be appointed to the Indian Railway Service of Engineers in 1988 and was promoted to the Junior Administrative Cadre in the month of January, 1999. He was confirmed in the said cadre during April 2004 along with the 1992 batch of IRSE officers. He was superseded by his 1988 batchmates and his juniors from the 1989, 1990 and 1991 batches, in view of the impugned order of punishment. While working as a Divisional Engineer, (gauge conversion), Hubli, Karnataka State, in the year 1995, a stretch of 90 kilometers of existing meter gauge, between Hubli – Londa railway stations, was taken up for conversion into broad gauge. Railway traffic had to be stopped in the section and since the broad gauge conversion was sought to be achieved in record time, efforts were made by the railway administration, to achieve the said object, by attending to the works simultaneously from both ends. The petitioner, as a Divisional Engineer, is said to have regularly camped at the site attending to various duties being performed almost round the clock. The entire work is said to have been broken into 19 reaches and important works entrusted to qualified and competent engineering contractors, whose work and performance was monitored and supervised and guided by a team of railway officials including the petitioner. Petitioner would submit that gauge conversion work was completed in a record time of 30 days and this achievement was appreciated in all quarters. On suspicion that the local railway administration had paid various contractors monies, in excess of their entitlement, the Vigilance branch of the South Central Railway asked the petitioner on 14.6.1996 to explain four items. The petitioner is said to have drawn up a detailed note in reply thereto on 6.7.1996. Not being satisfied, a memorandum of charge was drawn by the General Manager, South Central Railway, vide proceedings dated 25.6.1996. The charges levelled against the petitioner are as under: “ARTICLE-I: Shri Narinder Kumar, Dy.CE/C/Hubli, while working as Divisional Engineer/Gauge Conversion/Hubli, had committed grave misconduct, in that he certified bills for payment for item NS/11 in bills-CC/III for Reach IX, CC/II for Reach XIII, CC/II for Reach XIV, CC/II for XVI and CC/1 for Reach XIX of track linking contracts for Hubli-Londa section, without actual execution of work. Shri Narinder Kumar, therefore, failed to maintain absolute integrity and devotion to duty and thus, violated Rule 3(1)(i) and (ii) of Railway Service (Conduct)Rules, 1966. ARTICLE-II: Shri Narinder Kumar, Dy.CE/C/Hubli, while working as Divisional Engineer/Gauge Conversion/Hubli, had committed grave misconduct, in that he certified bills for payment – CC-III for Reach IX, CC/II for Reach XIII, CC/II for Reach XIV, CC/II for Reach XVI and CC/I for Reach XIX of track linking contracts for Hubli-Londa Section without conducting mandatory test check as stipulated in GM/W/SC’s letter No.W.55/I/1/vol.IX, dated 18.6.1991. Shri Narinder Kumar, therefore, failed to carry out administrative instructions regarding mandatory test check and thus, violated rule 26 of Railway Service (Conduct) Rules, 1966.” 3. The imputations of charge were detailed in Annexure-II to the charge memo. Four documents were listed in Annexure-III as the basis and supporting evidence for sustaining the charges. No witnesses were cited to establish the charges leveled against him. The petitioner submitted a detailed reply denying the charges. The General Manager appointed Sri C.N. Sastry, a former Chief Mechanical Engineer of the South Central Railway, as the enquiry officer. The petitioner participated in the enquiry proceedings which were held on various dates and places including at Hubli. While the prosecution did not examine any witnesses, the petitioner examined 11 witnesses in his defence, all of whom belonged to the Civil Engineering Department of the South Central Railway and had attended works connected with broad gauge conversion carried out between Hubli – Londa sections. The petitioner filed several documents. Several records were summoned and marked on behalf of the defence. The enquiry officer finalized his report and recorded a finding that the petitioner was not guilty of the allegations levelled against him. The enquiry officer held that the executing team, attending the broad gauge conversion work, at Hubli-Londa, had thoroughly complied with the safety standards and norms prescribed in various railway manuals and circulars and that the executing team was not guilty of misdemeanour. 4. A detailed rebuttal, of the Articles of charge, is given by the petitioner in his affidavit, which for reasons infra, need not be gone into. Suffice to note that since the General Manager, South Central Railway, Secunderabad, intended to disagree with the findings of the enquiry officer, and to conclude that both articles of charge, levelled against the petitioner, had been proved, the petitioner was called upon, vide memorandum dated 08.03.2000, to show cause thereto. The petitioner submitted an exhaustive and detailed reply vide letter dated 29.6.2000. He also solicited a personal hearing in the matter. The General Manager, South Central Railway, vide Memorandum dated 16.10.2000, accorded personal hearing to the petitioner at 15.00 hours on 20.10.2000. The petitioner availed the opportunity and submitted details of the entire case before Sri N.Kirtivasan, the then General Manager, South Central Railway. According to the petitioner, the General Manager heard him for 15 minutes, perused various documents marked by the petitioner as exhibits before the enquiry officer, and as he was completely satisfied with the enquiry officer’s report, he decided that it deserved complete acceptance and did not require any departure to be made therefrom. Petitioner would submit that though the General Manager had recorded his decision exonerating the petitioner of the charges, formal orders dropping disciplinary proceedings were not communicated and the matter was kept pending, despite several reminders vide letters dated 30.7.2001, 12.8.2001 and 30.8.2001. The petitioner took up the issue with the Member, Engineering and Ex- officio Secretary to the Government, Ministry of Railways on 1.10.2001 and 11.3.2002, but to no avail. Petitioner would refer to the case of one Sri K. Suryanarayana, Divisional Engineer who, along with the petitioner, was one of the members involved in the Hubli-Londa gauge conversion work, and contend that the entire set of allegations made against him were also repeated against Sri K. Suryanarayana, the charges were identical, the enquiry officer was the same and even the findings of the enquiry officer in the case of Sri K. Suryanarayana were similar to that of the petitioner. On the Ministry of Railways seeking its opinion, the UPSC, after exhaustive examination, advised the President on 28.6.2000, that the findings recorded by the enquiry officer, in the enquiry held against Sri K.Suryanarayana, were cogent and relevant, that no exception could be drawn thereto and that the officer did not deserve any punishment to be visited on him. Petitioner would contend that he has been discriminated against, and while the advise of the UPSC was accepted and disciplinary proceedings against Sri K.Suryanarayana were dropped on 11.7.2001, he was imposed a major penalty. 5. The petitioner filed O.A.No.1019 of 2002, to have all the charges against him quashed, for the reason of inordinate delay in finalizing the disciplinary proceedings. It was only thereafter, that the impugned order was passed on 24.10.2002. The Joint Secretary (Establishment) of the Railway Board, vide proceedings dated 24.10.2002, imposed on the petitioner, the major penalty of reduction in the time scale of pay by two stages for a period of one year with cumulative effect. Petitioner would contend that a reading of the order dated 24.10.2002 would unmistakably disclose as if a single individual had considered the matter and had passed the order, and as the Railway Board is a multi member body, if the Railway Board had really considered the matter and had passed orders, the expression in the singular form would not have been used. Petitioner would submit that if, instead of the Railway Board, a single member had decided the issue, the entire proceedings would stand vitiated, and that the Joint Secretary, Railway Board was not the competent disciplinary authority to impose any punishment, since the petitioner held the same rank and status of a Joint Secretary to the Railway Board. Against the said order dated 24.10.2002, the petitioner preferred an appeal to the President on 14.11.2002. The petitioner again approached the Central Administrative Tribunal, in O.A. 1307 of 2002, which was disposed of on 25.11.2003 directing the appellate authority to dispose of the appeal dated 14.11.2002 and pass appropriate orders within three months. The UPSC tendered its opinion on 5.3.2004, based on which the petitioner’s appeal was rejected and the order communicated on 17.3.2004. Aggrieved by the order of the Railway Board dated 24.9.2002, as confirmed in the proceedings of the 1st respondent dated 17.3.2004, the petitioner filed O.A.72 of 2005. The Tribunal, in its order dated 15.02.2005, held that the scope of interference in such matters was very limited, that it was not entitled to re-appreciate evidence or substitute its views for the view taken by the disciplinary authority and that its interference would only be on account of malafides, for want of compliance with principles of natural justice or in a case where there was no evidence at all or total absence of evidence. The Tribunal held that there was material on record to sustain the findings of the disciplinary authority as also the appellate authority and, in that view, it did not find any merit in the case. The O.A. was summarily rejected without costs. Hence, this writ petition. 6. In the counter affidavit filed, on behalf of respondents 1 and 3 to 5, by the Deputy Chief Personnel Officer (G), South Central Railway, it is stated that for the purpose of gauge conversion work on Hubli-Londa Section, tender notification was issued, that the work was entrusted to contractors during the year 1995, and that the petitioner, as a Divisional Engineer (Gauge Conversion), Hubli, was in charge of track linking contracts in connection with gauge conversion works in the Hubli-Londa Section. Respondents would contend that it came to their notice about the certification and release of payments to the contractors without any work being executed or measured, though the petitioner was obligated to check and justify payment. Charges were framed, vide charge memo dated 15.6.1998, in terms of Rule 8(2) read with Rule 2C(ii) and Schedule III (1) of the Railway Servants (Discipline and Appeal) Rules 1968. On the petitioner denying the charges, enquiry was ordered and after an elaborate enquiry, the enquiry officer submitted his report on 4.8.1999. It is stated that the then General Manager, as disciplinary authority, after going through the enquiry report, felt that the findings in the enquiry report were not consistent with the evidence on record and that certification for payments to the contractors was issued without works being executed and mandatory checks, as required under the administrative instructions, being carried out. The General Manager is said to have issued the memorandum of disagreement enclosing a copy of the enquiry report. It is stated that the petitioner’s representation thereto on 29.6.2000 was duly considered by the General Manager and an opportunity of personal hearing, as sought by the petitioner, was granted and at that stage the matter was forwarded to the Railway Board, which is competent to impose any of the penalties under sub-clause (i) to (vi) of Rule 6, in terms of Item 1 of Schedule III of the Railway Servants (Discipline and Appeal) Rules, 1968, since the General Manager, as the disciplinary authority, was empowered to impose only minor penalties under Clauses (i), (iii), (iii-a) (iii-b) and (iv) of Rule 6. It is stated that the Railway Board, after going through the entire records including the disagreement memo of the General Manager and the representations made thereto by the petitioner, imposed on him the penalty of reduction in the time scale of pay by two stages for a period of one year with cumulative effect and this order was communicated, vide proceedings dated 24.9.2002, by the Joint Secretary, who is competent to communicate orders of the Railway Board in terms of Rule 26-A of the Railway Servants (Discipline & Appeal) Rules, 1968. It is stated that, after careful consideration of the entire matter, the petitioner’s appeal was rejected, that the same was communicated to the petitioner, vide proceedings dated 17.3.2004, by the Joint Secretary, competent to communicate the orders of the President in terms of Rule 26-A of the Rules. 7. Sri R.S. Murthy, Learned standing counsel, placed before this Court the original records of both the Railway Board and General Manager, the contents of which, to the extent necessary, are briefly referred to. The General Manager, vide proceedings dated 5.11.1999 had taken a tentative view to impose a major penalty on the petitioner and the matter was referred to the Central Vigilance Commission. Agreeing with the tentative view of the disciplinary authority the Commission, vide office memorandum dated 2.2.2000, advised imposition of suitable major penalty on the petitioner. Subsequent thereto, vide memorandum dated 8.3.2000, the General Manager, South Central Railway, indicated the reasons for his disagreement with the findings of the enquiry officer and in holding that both the charges leveled against him were duly proved. While enclosing a copy of the enquiry officer’s report, the General Manager, vide memo dated 08.03.2000, indicated his reasons for disagreement with the findings of the enquiry officer. The petitioner was informed, vide proceedings 13.3.2000, that the disciplinary authority would take a suitable decision after considering his representation, if any, on the report/disagreement memo and if he wished to make any representation, he may do so in writing, to the disciplinary authority, within 15 days. After the petitioner was given a personal hearing, the General Manager considered the representation dated 29.6.2000 and having heard him in person on 20.10.2000, indicated on file that none of the charges were proved. Agreeing with the findings of the enquiry officer, and disagreeing with the views of the earlier General Manager on the enquiry officer’s report, the General Manager absolved the petitioner of the charges. Since the Central Vigilance Commission had advised that suitable major penalty be imposed on the petitioner and since the decision of the General Manager deviated from the Central Vigilance Commission’s second stage advise, the matter was referred to the Central Vigilance Commission to obtain information for further processing the case. This decision of the General Manager, absolving the petitioner of the charges, was however not communicated to the petitioner. The Railway Board, vide letter 97/V3/SC/11 dated 12.9.2001, advised that a major punishment be imposed as per the Central Vigilance Commission’s second stage advise and as the disciplinary authority, for imposition of a major penalty, was the Board, the South Central railway was asked to refer the case to the Secretary (Estt)/Railway Board, under intimation to the Vigilance Directorate. The Vigilance Directorate of the Railway Board informed the General Manager, South Central Railway, that the petitioner’s representation, against the memorandum of disagreement with the General Manager’s provisional views in the above case, were examined and the Board had decided that the Central Vigilance Commission’s second stage advise to impose a major penalty on the petitioner was acceptable. As the disciplinary authority to impose a major penalty was the Railway Board, the South Central Railways was asked to refer the case to the Railway Board as per procedure. Vide letter dated 3.10.2001, the entire file and other documents were forwarded to the Railway Board. The Railway Board, vide letter dated 7.1.2002, informed the General Manager, South Central Railway, that while referring the case to the Board, the General Manager had not made any specific recommendations, in the case of the petitioner, but had only stated that he had already expressed his views and that the Board’s instructions may be carried out. Since the General Manager had not made any specific recommendations, the matter was considered in consultation with the Legal Adviser of the Railway Board and the General Manager was asked to reconsider his provisional views in the matter once again as the General Manager’s earlier recommendations in the case were at variance with the Central Vigilance Commission’s second stage advice. Vide letter dated 7.2.2002, the Railway Board was informed, that as per its advise, the petitioner’s case was put up to the General Manager for reconsideration and that the General Manager, after considering the case, had indicated that a minor penalty would serve the purpose. The General Manager, in his note dated 4.3.2002, felt that there was no major lapse in execution of the two items mentioned and at best a minor penalty would serve the purpose for not recording the mandatory test checks in the measurement book and that the Board may be advised accordingly. Since the decision of the General Manager was after the Vigilance Commission’s second stage advice to impose a major penalty, the matter was referred to the Railway Board (Vigilance) for obtaining Central Vigilance Commission’s clearance. The Railway Board, vide proceedings dated 17.6.2002, advised that the petitioner’s entire file be forwarded to the Railway Board to process the case. Accordingly the case papers were forwarded to the Railway Board, vide letter dated 10.7.2002. Thereafter, the Railway Board, vide order dated 24.9.2002, imposed on the petitioner the major penalty of reduction in the time scale of pay by two stages for a period of one year with cumulative effect. 8. Sri Nuty Ramamohana Rao, learned counsel for the petitioner, would contend that the entire proceedings, including the order of imposition of punishment by the disciplinary authority, as confirmed by the appellate authority, was vitiated for violation of the rules of natural justice, while the objections were heard by the General Manager, South Central Railway, the order of punishment was passed by the Railway Board, which did not give the petitioner an opportunity of oral hearing. Learned counsel would submit that irrelevant and extraneous material, such as statements made by certain officers to the Vigilance Officer, was relied upon, though these documents did not form part of the material on record in the departmental enquiry. Learned counsel would submit that since the General Manager is the authority competent to impose minor penalties, the memorandum of disagreement issued by the General Manager was only with regards imposition of minor penalty and since a major penalty had been imposed on the petitioner, the Railway Board had necessarily to record its independent disagreement with the findings recorded by the enquiry officer and should have given the petitioner an opportunity to show cause as to why it should not disagree with the findings. Learned counsel would rely o n Punjab National Bank Vs. Kunj Behari Misra. He would submit that the inordinate delay in finalizing disciplinary proceedings had visited the petitioner with civil consequences as he was denied his promotion and his batch mates and juniors had superseded him. Learned counsel would contend that the 2nd respondent did not follow uniform standards and while it differed with the findings of the enquiry officer in the petitioner’s case, in the case of Sri K.Suryanarayana it concurred with the findings of the enquiry officer, though the charges levelled both against the petitioner and Sri K.Suryanarayana were identical and in both the cases, the enquiry officer had absolved them of the charges. Learned counsel would submit that since the Railway Board, a multi member body, could alone have passed the order imposing on the petitioner a major penalty and since the impugned order, contains several passages in the singular, it is either an order passed by the Joint Secretary, who is not competent to do so and in case it was passed by the Railway Board, the use of expressions in the singular would reveal non-application of mind. Learned counsel would submit that while it is open to the General Manager to record his opinion that the charges levelled against the petitioner necessitated major penalty being imposed and thereafter to transmit the records to the Railway Board, it was not open to the Railway Board to suo motu summon the records and impose a major penalty on the petitioner. Learned counsel would submit that even if it is held that the Railway Board, as the disciplinary authority, had imposed the punishment, it could only have done so after putting the petitioner on notice and recording its independent reasons as to why it chose to differ with the findings of the enquiry officer. Learned counsel would submit that the findings of the Railway Board are based on no evidence, are perverse, and cannot form the basis to hold the petitioner guilty of the charges and to impose on him a major penalty. 9. Sri R.S.Murthy, learned standing counsel for the Railways, would seek to sustain the orders of the disciplinary authority. He would submit that the charges held proved against the petitioner were grave and serious necessitating imposition of a major penalty. Learned standing counsel would submit that since the disciplinary authority, for imposing a major penalty on officers, to which cadre the petitioner belonged, was the Railway Board, it was open for it to call for the records from the General Manager for imposition of a major penalty. Learned standing counsel would submit that since the General Manager had recorded his reasons for disagreeing with the findings of the enquiry officer and the petitioner was given an opportunity to show cause as to why the General Manager should not do so, and since the very same reasons weighed with the Railway Board in imposing the major penalty, it was not necessary for the Railway Board to provide an opportunity afresh to the petitioner or to record separate reasons for its disagreement. Learned Standing counsel would contend that since the rules do not provide for a personal hearing, the petitioner was not entitled, as a matter of right, to claim that he should have been given an opportunity of personal hearing by the Railway Board. Learned counsel would submit that no prejudice has been caused to the petitioner on account of the Railway Board summoning the records from the General Manager and imposing a major penalty on him, more so, as the rules do not require a show cause notice to be issued with regards the proposed punishment. Learned Standing Counsel would place reliance on Union of India v. H.C.Goel; Bibhuti Bhusan Paul v. State of West Bengal; Indian Oil Corporation Ltd v. Ashok Kumar Arora; and National Fertilizers Ltd v. P.K.Khanna. 10. Before we examine the rival contentions, it is necessary that the rules, governing disciplinary proceedings against railway servants, be taken note of. 11. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as ‘the Rules), were made. Rule 2(1)(a) defines ‘appointing authority’ in relation to a railway