CIVIL WRIT JURISDICTION CASE No.10253 OF 2008 In the matter of an application under Article 226 of the Constitution of India. ---- 1. The Union of India through the General Manager, North East Frontier Railway, P.O.- Maligaon, District- Kamrup ( Assam). 2. The Electrical Engineer, North East Frontier Railway, P.O.- Maligaon, District- Kamrup ( Assam) 3. The Divisional Railway Manager, N.F. Railway, Katihar 4. The Sr. Divisional Electrical Engineer, N.F. Railway, Katihar 5. The Divisional Railway Manager ( Personnel), N.F. Railway, Katihar. ---- Respondents- petitioners. Versus R.E.Das ( Ram Ekbal Das ) Son of Shri Rup Lal Das, Railway Quarter No. 464/B, Railway New Colony, N.F. Railway, Katihar --- Applicant- Respondent. --- For The Petitioner : Mr. Chittaranjan Sinha, Sr. Advocate with Mr. Siddhartha Prasad, Advocate. For The Respondent :M/S M.M.P. Sinha and Nagendra Upadhyay, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA --- Shiva Kirti Singh & Birendra Prasad Verma,JJ. : This writ petition has been preferred by Union of India and its officials to assail the order dated 23.04.2008 passed by the Central Administrative Tribunal whereby O.A. No. 226 of 2006, preferred by the respondent ( hereinafter referred to as “the employee” ) was allowed and order of punishment against him was quashed on the ground that it was passed by Senior Divisional Electrical Engineer who is in Junior Administrative grade and not by the appointing authority, the Chief Electrical Engineer who is in Senior Administrative grade. 2. Except the issue as to who is the appointing authority in respect of the concerned employee and, therefore, the disciplinary authority, other facts are not in dispute. The employee was posted as Senior Section Engineer/ Electrical in the pay scale of Rs. 2 2375-3500/- when he was served with charge-sheet for major penalty dated 11.06.2004 issued by Senior Divisional Electrical Engineer (hereinafter referred to as “ Senior D. E. E.” ). After enquiry was completed, Senior D.E.E. imposed the punishment of removal from service on the basis of report of enquiry, vide order dated 01.03.2005. The order was confirmed by the appellate authority but the revising authority, while confirming the order, converted the punishment from removal from service to compulsory retirement. 3. The order of punishment was challenged by the employee before the Central Administrative Tribunal, Patna Bench Patna through the O.A. noticed above. Inter-alia, it was pleaded on behalf of the employee that the order of punishment, which had the effect of removing him from service, was by an authority subordinate to his appointing authority. Hence breach of Article 311 (1) of the Constitution of India was alleged. After considering the reply given by the petitioners who were the respondents before the Tribunal, it was found by the Tribunal that the employee was appointed by promotion to the post of Senior Section Engineer/ Electrical by the Chief Electrical Engineer who was superior to the authority who had imposed the order for removal from service and, therefore, the action of the disciplinary authority was in breach of mandate of Article 311 of the Constitution of India. 4. Learned counsel for the petitioners fairly submitted that the original file relating to the promotion of the employee on the post in question is no longer available and appears to have been destroyed and, therefore, the petitioners were unable to adduce direct evidence as to who is the disciplinary authority of the respondent-employee. However, he placed reliance upon the provisions in the Railway 3 Manual wherein schedule of powers in establishment matters are laid down and are to govern the case of the employee. That schedule has been annexed as Annexure-11 to the rejoinder to the counter affidavit. On behalf of the employee also the relevant schedule has been brought on record shown to be from a publication of 2008. Since the promotion in question was given to the employee in the year 1993, there could have been an occasion to enquire as to the contents of the schedule in the year 1993 but fortunately the relevant provisions in Annexure-11 are same as those in Annexure- R/2 annexed to the supplementary counter affidavit of the respondent- employee. 5. Learned counsel for the petitioners has submitted that as per the said schedule, in the matter of regular promotions to group C and Group D posts to which the respondent-employee was promoted at the relevant time, the Junior Administrative Grade Branch Officer had also been given full powers and hence the Senior D. E. E. who belongs to Junior Administrative grade, also had power to appoint the respondent- employee by way of promotion. In reply our attention was drawn to the entries under the column “Head of the Department (HOD)” who is admittedly a Senior grade officer, to show that even such superior officer had been given power of granting regular promotion to group C and group D grade but only upto the scale of Rs. 5000- 8000/- . At the relevant time the respondent-employee was admittedly in the scale of Rs. 7450- 11,500/- . 6. Learned counsel for the employee has further submitted that the apparent discrepancy in the schedule vesting limited power to H.O.D. and granting full powers to a junior Officer like Divisional Railway Manager and Additional Divisional Railway Manager as well as the Junior Administrative grade Officer has not been explained by the 4 petitioners otherwise it would have been clear that full powers to such junior officers are to be exercised only for posts available with the Divisional Offices/ Establishments and not in relation of posts under the Headquarter to which the respondent- employee was promoted. 8. Learned counsel for the employee has further placed reliance upon the discussion made by the learned Tribunal in respect of judgment of a Full Bench of the Tribunal in the case of Gafoor Mian which has been approved by the Supreme Court in the case of Scientific Adviser to the Ministry of Defence vs. Daniel & others, 1991 SCC ( L & S ) 355. According to that judgment the disciplinary authority has to be determined with reference to the post held by the concerned employee at the time of taking action against him. The Tribunal has held that an appointing authority does not become a disciplinary authority unless constituted as such and even after being constituted as disciplinary authority, such authority cannot impose penalties specified in Article 311 of the Constitution of India unless that authority is equivalent or superior in rank to the appointing authority. Nothing was pointed out to dispute the above propositions. 9. On considering the rival submissions and on going through the materials brought on record we are of the view that the petitioners have not been successful in showing that in case of the respondent- employee the appointing authority was Deputy Chief Electrical Engineer who is equivalent to Sr. D.E.E., both being Junior Administrative grade officers. We find no good reason to interfere with the finding of facts given by the Tribunal on the issue of disciplinary authority of the respondent- employee competent to take disciplinary action against him in accordance with Article 311 of the Constitution. 5 10. Normally in view of the aforesaid finding no further order was required to be passed but we are of the considered view that when the Tribunal has found the order of punishment to be bad on a technical plea that it was passed by a subordinate authority and not by the appointing authority, it ought to have given liberty to the employer to proceed further in the disciplinary proceeding so that if the employer is so inclined, appropriate orders may be passed in accordance with law by the competent disciplinary authority. On this limited issue we are in agreement with the learned counsel for the petitioners and hence the order passed by the Tribunal is modified only to the extent that a liberty is granted to the petitioners that if so advised, they may proceed in the matter against the respondent- employee in accordance with law. There is no dispute between the parties that on account of such remark the functions of the disciplinary authority can be discharged either by the Chief Electrical Engineer or by the Additional General Manager who are in Senior Administrative grade and High Administrative grade, respectively. 11. Learned counsel for the respondent- employee has appealed to us for justice by giving the employee a liberty to once again raise a plea that the punishment in this case is disproportionate to the gravity of charge levelled against him. He has pointed out that the Tribunal did not go into this issue because the O.A. was allowed on another ground, as indicated above. Considering that the matter is lingering for a long period, we are of the view that the aforesaid liberty is fit to be granted in the interest of justice. It is therefore made clear that if the petitioners decide to continue with the disciplinary proceeding, they must give intimation of this fact to the employee by issuing an order within three months from today. Thereafter it will be 6 open for the respondent- employee to file representation to reiterate the plea that the punishment is disproportionate to the gravity of charges. It is expected that if the proceeding is continued further, it shall be concluded expeditiously , preferably within a period of six months from today. It is also made clear that consequential benefits and emoluments for the interregnum period shall abide the result of further proceeding if it is continued as indicated above, otherwise the respondent-employee shall be entitled for consequential benefits. 12. With the aforesaid observations/directions, the writ petition is allowed to the extent indicated above. But there shall be no order as to costs. ( Shiva Kirti Singh, J ) ( Birendra Prasad Verma, J ) Patna High Court, Patna Dated 6th July 2010 B.Tiwary/N.A.F.R.