1 wp-6014-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6014 OF 2010 Union of India and ors. .. Petitioners Vs. Mukesh B. Madhavdas .. Respondent Mrs. Neeta V. Masurkar for petitioners. Mr. Sandeep Marne for respondent. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. OCTOBER 01, 2010. P.C. 1. Heard Mrs. Masurkar, the learned counsel for the petitioners, who are aggrieved by the order dated 9/3/2010 passed by the Central Administrative Tribunal, Mumbai Bench, thereby allowing O.A. No. 457 of 2009 filed by the present respondent (applicant). 2. On 18/8/2008 the disciplinary authority passed an order purportedly under Rule 14(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 (for short the Rules) and without conducting any 2 wp-6014-10 enquiry or issuing any charge-sheet and dismissed the applicant from service by way of punishment. The applicant, therefore, submitted an appeal to the appellate authority on 8/9/2008 against the order of dismissal. On 30/6/2009 the appellate authority purportedly invoking his powers under Rule 22 of the Rules passed an interim order asking the disciplinary authority to conduct a departmental enquiry and remit the findings thereof to him so as to consider the appeal on merits. Pursuant to the said order, the disciplinary authority by his letter dated 30/6/2009 informed the applicant that an enquiry was required to be conducted against him by appointing an Enquiry Officer as directed by the appellate authority. He was also informed that he will be issued a charge-sheet and the issuance of charge- sheet and holding of an enquiry did not confer upon him any right to challenge/quash the order of dismissal dated 18/8/2008 and the said order had remained intact till the disposal of the appeal by the appellate authority. 3. Aggrieved by the said communication dated 30/6/2009, the applicant approached the Tribunal in O.A. No. 457 of 2009. The Tribunal in the impugned order has referred to Rules 2, 9, 18 and 22 of the Rules and allowed the appeal and directed to reinstate the applicant and he would be deemed to be reinstated with effect from 30/6/2009. Para 6.7 of the 3 wp-6014-10 impugned order of the Tribunal reads as under:- “6.7 From the above it is clear that inquiries under Rule 9 of the RSDA Rules can be initiated only against an existing Railway servant and not against one who has ceased to be a Railway servant. Of course, so far as a retired Railway servant is concerned, the authority for disciplinary proceedings in his case is not to be found under the RSDA Rules per se but under the Railway Servant (Pension) Rules.” 4. Mrs. Masurkar, the learned counsel for the petitioners, has invited our attention to the scheme of Rules 2, 6, 9, 20 and 22 of the Rules and submitted that the Tribunal has passed an apparently erroneous order and when the appeal is pending, the appellate authority was justified in directing the disciplinary authority to conduct a Departmental Enquiry and submit the findings thereof to the appellate authority so that the appeal could be considered on merits and such a power is available to the appellate authority under Rule 22. As per Mrs. Masurkar even if the applicant is not in the employment of the railways, pending an appeal, the appellate authority can, by way of interim order, direct the disciplinary 4 wp-6014-10 authority to conduct a Departmental Enquiry and submit the findings thereof so as to decide the appeal on merits. The Tribunal has failed to consider this and has fallen in error apparent on the face of the record. Mrs. Masurkar also submitted that the appellate authority has not set aside the dismissal order dated 18/8/2008 and, therefore, the Tribunal was wrong in directing reinstatement of the applicant. As per her, the applicant cannot approach the Tribunal unless the pending appeal is decided on receiving the Enquiry Officer’s findings and, therefore, on that ground the Original Application was not maintainable. 5. We have gone through the reasoning set out by the Tribunal and given our anxious considerations to the arguments advanced before us by Mrs. Masurkar. The concerned file of the appellate authority has been placed before us and the interim order passed by the appellate authority on 27/10/2008 reads as under:- “After reviewing the appeal with reference to the documents placed on file, I am of the view that at the time of issue of NIP to Shri Mukesh B. Madhavdas, the conditions were not conducive for holding of an enquiry. It is noted from the 5 wp-6014-10 proceedings of the time that the enquiry was impracticable in view of the threat perception. However, at the present point of time it is felt that it would be feasible to hold an enquiry. This is required not just in the interest of natural justice but also to aid the appellate authority to exercise proper application of mind while considering the appeal. In view of the above, D.A. may arrange to have the due enquiry as per DAR proceedings conducted.” 6. The dismissal order dated 18/8/2008 issued against the applicant by the disciplinary authority reads as under:- “In the present circumstances, an enquiry is not possible as the plausible administrative witnesses Shri K. V. Desai and Shri Chagan Fulani have expressed their inability to associate any further with the case. Hence, in exercise of the powers conferred under Rule 14(2) 6 wp-6014-10 of Railway Servant Disciplinary and Appeals Rules 1968, I am of the opinion that a normal DAR process is impractical in this case. Therefore, holding an enquiry is impractical in the complaint against Shri Mukesh B. Madhavdas, Sr.TE-CCG. If action is not taken in the case today, then the entire working of the office will be disturbed. Hence, no further procedure under DAR can be followed. The employee Shri Mukesh B. Madhavdas by way of associating himself in the physical assault, that too without any provocation, of Shri D. Roy has violated the Rule 3(1)(iii) by conducting himself in a manner unbecoming of a railway servant. By committing such an act, he has vitiated the entire working atmosphere in the office, whereby officials are unable to discharge their duties freely and fairly and without any prejudice. Such a trend in the office by way of physical assaults should be nipped in the bud. The punishment should be exemplary and should serve as a deterrent. In such a scenario, I impose the penalty of dismissal on Shri Mukesh B. 7 wp-6014-10 Madhavdas, Sr.TE-CCG.” 7. From the record, it appears that the report submitted on 18/8/2008 by Shri D. Roy – DCM (PM) -BCT was the basis of the dismissal order and the first para of the said report reads thus, “This is to bring to your kind attention that on 14-8-08 at 15.30 hrs. Shri Ajit Meher, retired Railway Employee from PL Workshop, Shri Mukesh B. madhavdas, Sr.TE-CCG along with 5 others entered my chamber at ground floor DRM Office and assaulted me with slaps and blows on my face and my head. I was badly hurt and my lip was injured and was bleeding. This continued for about 3-4 minutes after which I was threatened that I would be assaulted at my residence also.” 8. As per the disciplinary authority the atmosphere on 18/8/2008 was not conducive to conduct a Departmental Enquiry and, therefore, the order of dismissal was passed against the applicant. It is also pertinent to note that before the order of dismissal was issued, there was no charge- sheet issued against the applicant. Under the Rules, it was necessary to 8 wp-6014-10 issue a charge-sheet and call upon the applicant to submit his reply, based on which the decision, either to conduct an enquiry or not to conduct an enquiry could have been taken. At the same time, if the disciplinary authority was satisfied that the presence of the applicant in the office was not conducive to discipline, the disciplinary authority had the powers to suspend him, pending an enquiry and nothing of this was done and it is claimed that such an order was passed under Rule 14(ii) of the Rules. It states that notwithstanding anything contained in Rules 9 to 13 where the disciplinary authority satisfies, for the reasons to be recorded by it in writing, that it is not reasonably practicable to hold an enquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit. The reasons in the dismissal order are that the witnesses were not inclined to be associated with the enquiry and the presence of the applicant in the office would not be conducive to the discipline. In our opinion, these reasons could not support the decision taken by the disciplinary authority to invoke Rule 14(ii) of the Rules and it appears the appellate authority rightly stepped in, but the interim order passed which has been sought to be supported by Mrs.Masurkar could not have been passed without setting aside the order of dismissal. Rule 22 of the Rules reads as under:- 9 wp-6014-10 “22. Consideration of appeal: [1] In the case of an appeal against an order of suspension the appellate authority shall consider whether in the light of the provisions of Rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. [2] In the case of an appeal against an order imposing any of the Penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider:- (a) whether the procedure laid down in these rules has been complied with, and if now, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or servere; and pass orders:- (i) confirming, enhancing, reducing or setting aside the penalty, or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case; 10 wp-6014-10 Provided that :- (i) the Commission shall be consulted in all cases where such consultation is necessary; (ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Sub-rule (1) of Rule 6 and an inquiry under Rule 9 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 14, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry and make such orders as it may deem fit; (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Sub-rule (1) of Rule 6 and an inquiry under Rule 9 has already been held in the case, the appellate authority shall, after giving the appellant a reasonable opportunity, as far as may be in accordance with the provisions of Sub-rule (5) of Rule 10, of making a representation against the penalty proposed on the basis of the evidence adduced during the inquiry, make such orders as it may deem fit; and “(iv) subject to the provisions of Rule 14, the appellate authority shall, - (a) where the enhanced penalty which the appellate authority proposes to impose is the one specified in clause (iv) of Sub- rule (1) of Rule 6 and falls within the scope of the provisions 11 wp-6014-10 contained in Sub-rule (2) of Rule 11; and (b) where an inquiry in the manner laid down in Rule 9 has not already been held in the case, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit”; [R.B’s.No.E(D&A) 70 RG-6-41 of 4-12-71, N.R.S.N.5545] (v) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with provisions of Rule 11, of making a representation against such enhanced penalty. [3] In an appeal against any other order specified in rule 18, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable.” 9. As per Mrs. Masurkar, the appellate authority under Rule 22(2) (c)(ii) of the Rules has powers to remit the case to the disciplinary authority with such directions as it may deem fit in the circumstances of the case and this would include calling upon the disciplinary authority to conduct a departmental enquiry and without setting aside the dismissal order. The Tribunal has rejected the very same contention and in our 12 wp-6014-10 opinion rightly so. 10. The interim order passed by the appellate authority would require that a charge-sheet is issued to the applicant, he has to be given time to file his reply and thereafter enquiry proceedings would commence. A list of witnesses will be furnished to him along with the documents to be placed before the Enquiry Officer. As and when the Enquiry Officer submits a report, it is imperative under the service jurisprudence that the disciplinary authority applies his mind to the said report. He may concur with the findings or he may not and this power of the disciplinary authority cannot be vested with the appellate authority. By the impugned order, the whole process has been sought to be short circuited. If the appellate authority deemed it appropriate that the departmental enquiry is required to be conducted against the applicant, it was necessary that the dismissal order was set aside and the disciplinary authority was directed to take steps to conduct a departmental enquiry. The enquiry report may or may not go against the applicant and it could not be presumed for sure that the charges leveled against the applicant would be proved in the departmental enquiry. The complaint on the basis of which the dismissal order has been passed itself indicated that apart from the applicant, there were some others who had engaged in an assault on the complainant. Notwithstanding the nature 13 wp-6014-10 of the complaint, the service rules require that the Enquiry Officer’s report is first considered by the disciplinary authority and if the disciplinary authority agrees with the findings of the Enquiry Officer, the applicant will have to be issued a second show cause notice proposing either major or minor penalty and he may have to be heard by the disciplinary authority after he files his reply to the second show cause notice. The interim order, if implemented, takes away these procedural requirements which are part of the principles of natural justice. We, therefore, hold that the appellate authority does not have the powers of directing a departmental enquiry without setting aside the dismissal order. As per Rule 22(2) of the Rules, the appellate authority shall consider, whether the procedure laid down in the Rules has been complied with, and if not, whether such non compliance has resulted in the violation of any of the provisions of the Constitution of India or in failure of justice, whether findings of the disciplinary authority are warranted by the evidence on the record and whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe or disproportionate and pass orders, (i) confirming, enhancing, reducing or setting aside the penalty or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in 14 wp-6014-10 the circumstances of the case. When the appellate authority decides to remit the case to the disciplinary authority, it is envisaged that it will be a de novo exercise by setting aside the order of dismissal/punishment. The exercise which is sought to be done by the appellate authority, may be , in a given case, permissible when the penalty imposed is a minor penalty and the employee is in service. This interpretation would not cause any prejudice in conducting a departmental enquiry against the applicant after his reinstatement in service, as the appellate authority or this court cannot take away the disciplinary authority’s powers to suspend the delinquent, pending the enquiry. 11. In these circumstances, we are satisfied that the challenge raised in this petition to the order passed by the Tribunal directing the reinstatement of the respondent-employee is devoid of merits and the petition must fail. 12. Hence, the petition is dismissed. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)