IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20.6.2007 CORAM: THE HONOURABLE MR.JUSTICE DHARMA RAO ELIPE AND THE HONOURABLE Ms.JUSTICE K. SUGUNA W.P.Nos.25606 and 25607 of 2006 and 28392 to 28394 of 2006 & M.P. Nos.1 and 2 of 2006 W.P.No.25606 of 2006: 1. Union of India, rep. by the General Manager Southern Railway Chennai 600 003 2. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram Chennai 600 023 3. The Deputy Chief Mechanical Engineer (Loco) Southern Railway Ponmalai Tiruchirapalli-4 ... Petitioners Vs. 1. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-600104. 2. K.Babu Rajendran ... Respondents WP.No.25607/06:- 1. Union of India, rep. by the General Manager Southern Railway Chennai 600 003 https://hcservices.ecourts.gov.in/hcservices/ 2. Division Railway Manager, Trichy Division, Southern Railway, Tiruchirappalli 4. 3. The Senior Divisional Mechanical Engineer, Diesel Shed, Golden Rock, Tiruchirapalli. 4. The Divisional Mechanical Engineer, Diesel Shed, Golden Rock, Tiruchirapalli. ...Petitioners vs 1. The Registrar Central Administrative Tribunal Madras Bench Chennai 600 104 2. L. Arputharaj, No.4/198, Thirunagar, Ponmalai, Trichy.4. ...Respondents W.P.No.28392 of 2006: G. Lakshmanan Ex-Technician Grade-I Railway Workshop Southern Railway Tiruchirappalli-4 ... Petitioner Vs. 1. Union of India, rep. by the General Manager Southern Railway Chennai 600 003 2. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram Chennai 600 023 https://hcservices.ecourts.gov.in/hcservices/ 3. The Deputy Chief Mechanical Engineer (Loco) Southern Railway Ponmalai Tiruchirapalli-4 4. The Registrar Central Administrative Tribunal Chennai 600 104 ... Respondents WP.No.28393/2006:- V. S. Chandran, Ex. Welder, Grade II, Wagon Assembly Shop, Southern Railway, Ponmalai, Tiruchirappalli 4. ...Petitioner vs 1. Union of India, rep. by the General Manager Southern Railway Chennai 600 003 2. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram Chennai 600 023 3. The Workshop Manager Carriage and Wagon, Southern Railway, Trichy 4. 4. The Registrar Central Administrative Tribunal Chennai 600 104 ...Respondents WP.No.28394/2004:- Mr. P. Manoharan, Ex. Senior Clerk, DSD, Railway Workshop Southern Railway, Ponmalai, Tiruchirappalli 4. ...Petitioner https://hcservices.ecourts.gov.in/hcservices/ vs 1. Union of India, rep. by the General Manager Southern Railway Chennai 600 003 2. The Deputy Chief Materials Manager, Southern Railway, Ponmalai, Trichy 4. 3. The Chief Workshop Manager Carriage and Wagon Works Ayanavaram, Chennai 600 023 4. The Registrar Central Administrative Tribunal Chennai 600 104 ...Respondents. * * * All the petitions are filed under Art.226 of the Constitution of India. W.P.No.25606 of 2006 has been filed praying to issue a Writ of Certiorari to call for the records of the 1st respondent in O.A.No.766 of 2005 and 283/05 respectively including the order dated 5.6.2006 and quash the same (in WP. 25606 & 25607/06) (ii) calling for the records relating to the order of the fourth respondent in O.A.No.768 of 2005 dated 5.6.2006 confirming the order of the first respondent herein dated 29.7.2005 in No.P (A)90/2005/433 and quash the same and direct the respondents to reinstate the petitioner in service as carpenter grade I with effect from 31.1.2004 with all attendant benefits (in WP.28392/2006). (iii) calling for the records relating to the order of the fourth respondent in O.A.No.769 of 2005 dated 5.6.2006 confirming the order of the first respondent herein dated 29.7.2005 in No.P (A) 90/2005/435 and quash the same and direct the respondents to reinstate the petitioner in service as Welder grade I with effect from 31.1.2004 with all attendant benefits (in WP.28393/2006) and; (iii) calling for the records relating to the order of the fourth respondent in O.A.No.767 of 2005 dated 5.6.2006 confirming the order of the first respondent herein dated 29.7.2005 in No.P (A) 93/Misc/383 and quash the same and direct the respondents to reinstate the petitioner in service as Senior Clerk with effect from 31.1.2004 with all attendant benefits (in WP.28394/2006). https://hcservices.ecourts.gov.in/hcservices/ * * * For Petitioners : Mr. AR.L. Sundaresan in W.P. Nos.28392 Senior Counsel for to 28394/2006 and Ms.AL Gandhimathi 2nd Respondent in W.P. Nos.25606 and 25607 of 2006 For Respondent 1 to 3 in : Mr. R. Thiagarajan W.P.Nos.28392 to Senior Counsel for 28394 of 2006 and Mr.V.G. Sureshkumar petitioners in W.P. No.25606 & 25607/06 28393/06 * * * COMMON ORDER DHARMA RAO ELIPE, J. This common order will dispose of the above five writ petitions as they have in common the fact-situation and the issues arising therefrom. In all these writ petitions, the challenge is to the order dated 5-6-2006 passed by the Central Administrative Tribunal (in short 'the Tribunal'). While W.P.Nos.28392 to 28394 of 2006 were filed by the three original applicants, W.P.Nos.25606 and 25607 of 2006 were filed by the Railways. 2. On a perusal of the materials placed on record and upon hearing the learned senior counsel for both, it comes to be known that the petitioners in W.P. Nos.28392 to 28394 of 2006 and respondents in W.P.Nos.25606 and 25607 of 2006 (hereinafter referred to as 'the delinquent-employees') were the employees of the Railways. Alleging that on 30-1-2004, they all, with premeditated mind, gathered on the platform of the Tiruchy Railway Junction, hurled verbal abuses against a retired Railway officer, who was leaving Trichy by train along with his family members, assaulted and threatened him and also threatened and intimidated the other railway officers who were there to see-off the retired officer and thereby created panic, terror and tension in the minds of not only the retired officer and his family members and the other railway officers, but also the other passengers and the general public, an order of dismissal was passed on 30-1-2004. A complaint was also lodged with the Railway Police, resulting in a criminal case. It was pointed out in the order of dismissal that it would not be practicable to hold an enquiry before directing dismissal. The https://hcservices.ecourts.gov.in/hcservices/ departmental appeals filed by the delinquent-employees were rejected. The delinquent-employees were, however, acquitted in the criminal case. On the revision/representation filed by the delinquent- employees, the revisional authority set aside the penalty of dismissal from service in respect of three delinquent-employees and ordered their reinstatement with reduction in rank to the lower post, but summarily rejected the revision/representation filed by the other two delinquent employees. Challenging the order of the revisional authority, original applications were filed before the Tribunal. The Tribunal, by the common order, quashed the orders passed by the revisional authority and directed the restoration of the original applicants to their original position and directed the Railways to regulate the period of their dismissal from 31-1-2004 to the date of reinstatement strictly in accordance with law. Aggrieved, while the Department has filed W.P.Nos.25606 and 25607 of 2006 challenging the order of reinstatement of two employees, three employees, who were reduced in rank, have filed W.P.Nos.28392 to 28394 of 2006. Since a common issue is involved, all these writ petitions are taken up for common disposal. 3. For the sake of convenience and for easy reference, the petitioners in W.P.Nos.28392 to 28394 of 2006 and the 2nd respondent in W.P.Nos.25606 and 25607 of 2006 are referred to as the delinquent- employees while the officials, who have filed W.P.Nos.25606 and 25607 of 2006 and who are the respondents in W.P.Nos.28392 to 28394 of 2006 are referred as respondents. 4. The learned senior counsel appearing for the delinquent- employees submitted that the action of the third respondent in resorting to Rule 14(ii) of the Railway Servants (Disciplinary and Appeal) Rules (in short 'the Rules') for dispensing with the enquiry against the delinquent-employees and passing the order of dismissal on the very same day is arbitrary, illegal and unjust and violative of the principles of natural justice; that there was no compelling reasons shown in writing by the third respondent for invoking the extraordinary provisions of Rule 14(ii) of the Rules; that the undue haste shown by the third respondent in resorting to Rule 14(ii) of the Rules and passing the dismissal orders would only exhibit the non-application of mind by the third respondent and the pre- determined mind of the authorities to victimise the employees concerned. 5. According to the learned senior counsel when once the authorities have chosen to file a criminal case against the employees concerned, they ought to have await the judgment of the criminal court or, at least, they should have, instead of resorting to Rule 14 (ii), initiated the regular departmental action against the delinquents by issuing a charge memo and holding an enquiry or at the most could have suspended them till the conclusion of the criminal https://hcservices.ecourts.gov.in/hcservices/ case. In support of his contention, learned counsel relied on the Supreme Court decision in UNION OF INDIA v. THULSIRAM PATEL (AIR 1985 SC 1416) and certain executive instructions issued by the Railways and the Government of India. 6. The learned senior counsel for the delinquent employees would further submit that the third respondent, who passed the dismissal order dated 31.1.2004 was not competent to pass such an order. According to the learned senior counsel, in view of Rule 2(1)(a) of the Railway Servants (Discipline and Appeal) Rules, 1968 read with Schedule II annexed thereto, the third respondent, not being the appointing authority of the delinquent-employees, is not competent to pass the order of dismissal. As the order of dismissal was passed by the authority who has no jurisdiction to pass, the same is liable to be set aside. 7. The next submission of the learned senior counsel for the delinquent employees is that since the criminal case filed against the delinquent-employees concerned on the very same set of alleged facts has ended in acquittal, they are entitled for the reinstatement in their respective original position with effect from 31-1-2004 with all attendant service benefits. 8. It was also contended that that when the disciplinary authority himself had been cited as a witness in the First Information Report filed on the very date of the alleged occurrence, he ought not to have passed the dismissal order. In such circumstances, the proper course was to refer the matter to some other authority. In support of this contention, learned counsel relied on the decision of the Supreme Court in ARJUN CHAUBEY v. UNION OF INDIA (1984 [2] SCC 578). 9. Thus, according to learned senior counsel for the delinquent employees, the imposition of major penalty of dismissal from service without holding any enquiry and the subsequent penalty of reduction in rank with low pay scale imposed by the revisional authority ignoring the order of acquittal passed in the criminal case are illegal, unjust and unsustainable in law. The impugned order is, therefore, liable to be set aside and the delinquent-employees are entitled for the reinstatement to their original position as on 31-1- 2004 with all attendant service benefits. 10. On the contrary, the learned senior counsel appearing for the Railways submitted that the Tribunal, after having accepted the contentions of the Railways relating to the delinquency of the employees and the competency of the authority to take action under Rule 14(ii) of the Rules, erred in interfering with the quantum of punishment awarded to two employees on the ground that leniency was shown to the other three employees; that the Tribunal overlooked the https://hcservices.ecourts.gov.in/hcservices/ fact that in the case of the three employees there were mitigating circumstances in their favour for taking a lenient view whereas in the case one Babu Rajendran, his past service record was tainted with misconduct and he has been inflicted with various penalties such as withholding of passes/PTOs, reduction of pay, etc. 11. The learned senior counsel for the Railways further submitted that when once the misconduct is proved, the quantum of punishment is within the domain of the disciplinary authority and unless the punishment imposed is shockingly disproportionate to the charges levelled against the delinquent, there is no scope for interference with the same. The Tribunal proceeded on a wrong footing that when the punishment was reduced in the case of three delinquents, the other two delinquents should also be treated alike. It is well settled that there is no equality in illegality. In the present case, the revisional authority had taken into consideration various factors such as the extent and gravity of the misconduct, past service records of the delinquents, the judgment of the criminal court, etc. to come to the conclusion that in the case of three of the delinquents, lesser punishment could be imposed and in the case of the other two delinquents, the order of dismissal was justified. 12. The Tribunal has framed three issues for determination, viz. (i) whether the order of dismissal was approved and issued by the competent authority; (ii) whether the decision not to hold the enquiry under the relevant rules are valid or not; and (iii) whether on receiving representations from the applicants for reinstatement after the criminal case filed against them had ended in acquittal was properly considered or not. 13. The Tribunal has come to the conclusion that the order of dismissal was ordered and issued by the competent authority; that there is no infirmity in the action of the respondents who had dispensed with the inquiry leading to dismissal. The Tribunal also hold that the failure on the respondents to objectively consider the appeals as well as revision petitions after the acquittal of the accused in criminal cases, renders the decision, as conveyed through the impugned orders, illegal. 14. We have given our anxious consideration to the rival contentions of the parties. We have also gone through the entire materials on record, including the judgment passed by the criminal court. The points that arise for consideration in these matters are: (1) Whether the third respondent, who passed the orders of dismissal, is competent to pass such orders of dismissal? (2) Whether the respondents are justified in dispensing with enquiry and invoking Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968? (3) Whether the Tribunal is right in ordering reinstatement https://hcservices.ecourts.gov.in/hcservices/ of two employees and not interefering with the order of reduction of rank and pay scale in respect of three delinquent-employees? (4) What relief, the parties are entitled to? POINT No.1:- 15. The learned senior counsel for the employees submit that in view of the provisions of Rule 2(1)(a) of the Railway Servants (D&A) Rules read with Schedule II thereunder, the third respondent, not being the appointing authority of the employees, is not the competent authority to pass the orders of dismissal and since the impugned orders of dismissal were passed by the incompetent authority, the same are liable to be quashed. As an answer to this, the learned senior counsel for the Railways would submit that the 3rd respondent, as the Junior Administrative Grade Officer, is competent to exercise the powers of the Appointing Authority in respect of employees drawing pay in the scale upto Rs.5500-9000 and it is well within his jurisdiction, as conferred upon him under Sub Rule 2 of Rule 7 as laid down in the second schedule of the Railway Servants (Discipline and Appeal) Rules 1968 and as clarified in Personnel Branch Circular No.161/2004. 16. A thorough perusal of Rule 4 and sub-rule (2) of Rule 7 and the Schedule-II of the Railway Servants (Discipline and Appeal) Rules 1968 and the Railway Board Communication No.E(D&A) 2002 RG 6-30, dated 25.11.2002 relied on by the learned senior counsel for the petitioners, we are able to find that by virtue of the clarification issued in Personnel Branch Circular No.161/2004, the 3rd respondent is the competent authority to pass such orders of dismissal, as has been rightly decided by the Tribunal. Therefore, the argument advanced on the part of the learned senior counsel for the petitioners is rejected, holding that the 3rd respondent is competent to pass such orders. 17. At this juncture, the learned senior counsel for the petitioners/employees would submit that Mr.K.Raman, who was Dy.CME/GOC, who passed the order of dismissal dated 31.1.2004, ought not to have passed the said order since he had been cited as a witness in the FIR filed earlier in the day with the police. In support of his contention, the learned senior counsel for the petitioners relied on a judgment of the Apex Court in ARJUN CHAUBEY vs. UNION OF INDIA [(1984) 2 SCC 578] wherein it has been held: "No person can be a judge of his own cause and no witness can certify that his own testimony is true and anyone who has a personal stake in an enquiry must keep himself aloof from the enquiry." 18. We have no quarrel with the above said proposition of law laid down by the Apex Court. But, the said judgment was rendered in the context when an officer, who lodged the complaint, was made the https://hcservices.ecourts.gov.in/hcservices/ enquiry officer to deal with the delinquent in a domestic enquiry. The same is not the position here. In the case on hand, as could be seen from the judgment in C.C.No.287 of 2004 on the file of the Judicial Magistrate No.IV, Trichy, the said Raman has been cited as P.W.5. Since the departmental proceedings and criminal proceedings are distinct and separate, it cannot be said that the said Raman could not have passed the dismissal orders. Since being the authority concerned with the affairs of the Department that too in passing the orders of dismissal order, it is but natural for the said Raman to be cited as a witness before the criminal court, which, cannot, in no way be termed as either illegal or irregular. Therefore, the submission of the learned senior counsel for the petitioners does not hold water and the same is, accordingly, rejected. Point No.1 is accordingly answered. POINTS No.2 TO 4:- 19. Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, which is analogous to Article 311(2) of the Constitution of India, wherefrom the power has been drawn by the Disciplinary Authority, to pass the impugned order of dismissal reads: "14. Special Procedure in certain cases - Notwithstanding anything contained in Rules 9 to 13 - (i) .... (ii) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or (iii) ... The disciplinary authority may consider the circumstances sof the case and make such orders thereon as it deems fit; Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule." Thus, Rule 14(ii) itself mandates that the disciplinary authority shall record his reasons in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules. 20. As already adverted to supra, Rule 14(2) is analogous to Article 311(2) of the Constitution. In UNION OF INDIA AND ANOTHER vs. TULSIRAM PATEL (AIR 1985 SC 1416), the Constitutional Bench of the Apex Court has held in para No.130, as follows: "The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English dictionary "practicable" means https://hcservices.ecourts.gov.in/hcservices/ "capable of being put into practice, carried out in action, effected, accomplished, or done, feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. .... The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty." 21. In this case, as could be seen from the impugned order of dismissal, no reasons for dispensing with the enquiry are given by the disciplinary authority, except saying that it is not reasonably practicable to hold an inquiry. In UNION OF INDIA AND ANOTHER vs. TULSIRAM PATEL (AIR 1985 SC 1416), the Apex Court has categorically held in para No.133 as follows:: "The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ 22. In Para No.134 of the said judgment, it has been held: "It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry...." 23. In the said judgment itself, while dealing with the argument that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order, the Apex Court, though rejected the said argument, has observed in para No.135 of its judgment as follows: "... the constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. At clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would,