5 JL BEFORE THE HIGH COURT GF jyOICATURE AT JABALPUR. W.P.^G. A'ol^/2000 PETITIGNERSs 1. Union of, India, through its Secretary Ministryof Railways, Rail Bhwan , NewDelUii 2. The General Manager,South Eastern Rai.twaYlS Garden Reach, Caleutta. 3. The Chief Engineer,South Eastern Rail'^ay, Gardeh Reach, Caleutta. 4. The Senior D.is.N,, Soutb Easfern Railways Bilaspur, Dis.tt. Biiaspur (MP) V/s RESPONDENTSs<i.1. The Central Administrative Tribunal, Bench at Jabalpur. 2. Shri. B.P.Stngh,S/o Shri K.L.Singh, 52 yrs, Ex. P.W.I, Bhilai, Marshalling Yaid, South Eastern Railway, Charoda,P.O.Bhilai Marsha.LJ.ing Yard, Distt. Burg. : IR1T PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTIOffi OF INDIA. ~~. ~- ::^ r^— HIOH COURT OF JUDtCATURE CHHAmSGARH: BILASPUR (DivisionSench) CORAM : Hon'bte Shri A.K. Patnajk, CJ & Hon'bie Shri S.K. Agnihotri, J. WRIT PETITION N0.1094 OF 2000 Union of India & Others Versus The Central Admjnistratiye Tribunal, Jabalpur & Another • Present : Mr. Vinay Harit, Sr. Advocate with Mr. Ashok Swamkar, ieamed counsel for the petitioner. Mr. U.N.S. Deo, with Mr. Pantaj Shrivatava, learned counsef for respondent No.2. ORDER (16thofJune2005) A.K.P^tnaik, CJ: The following Order ofthe Court was passed by In thiswrit petition under Articles 226/227 of the Constitution of Sndia, the petitioners have challenged the order dated 22.re.1999 passed by the Centra! Administrative Tribunal, Jabalpur Bench, Jabalpur in Original Appiication No.456 of 1991 . "-(,. li " s" M'; K:'' Kt 2. The facts bn'efly are that the respondent No.2 was working as a Permanent Way Inspector under the South Eastem Railways. A departmental enquiry was initiated against the respondent No.2. In ttie said departmenta! enquiry two articles of charge were framed against respondent No.2. The two articles of charge are asfollows: "Article-1: That the saidSri B.P.Singh while functioning as PWI/MBY during 198S had accepted989 pcs. OfB.G. Sal wooden sleepers /special frbm the associates ofM/s.M.P. Export Corp. Ltel. Without Booking Instructions of -1 ~F - '~^.- •f -~f-r L. •".V- Dy.CE/SLC/GRC or any instruction from his superior ofRcers. Bytheabove act Sri Singh failed to main absolute integrity, devotion to duty andacted in a manner whteh is unliiecoming ofaRly. sen^ntand there by violated rule 3(i), (ii) & (iit) of the RSC Rutes, 1966. Article-lt: That during the aforesahl period and while functioning in the aforesaid office.fte said Sri B.P. Singh has granted 12/EG-15 (Acknowledgment) forthe aforesaid 989 Pcs. Of B.G. Sal wooden sleepere /specials quoting 6 Bls meant for other consignees^and one for PWI/BMY. On the strength of those 13 EG-15, the Contractor has daimed bsll of Rs.10,09,305.20P to Dy. CE/SLC/GRC. He granted 13 Nos. clear EG-15 for 989 pcs. Of sleepers / spscials quoting 6 fake B.l. Nos. meant for some other units. The B.l. No.303 was meant for PWI/BMY and the sleepers were passed at Depot No.371 of Pendra Road, but Sri Sngh received the materials from other depots of Dhamtari & Raipur. Thus, Sri Singh has failed to main absolute integrity, devotion to duty and acted in a manner which 's unbecoming of a Rly. Servant as required under rute 3(l)(i),(h') & (iii) of the RSC Rules, 1966." The Enquiry Officer recorded findings in the enquiry report that the two articles of charge were proved against respondent No.2 and the said flndings Were accepted by the Disciplinary Authority and the respondent No.2 was removed from service by order dated 25.10.1989 of the disciplinaiy authority with the obssn/ation ttiat he was a pereon of doubtfut integrity and was nota fit pereon to be rstained in service. Aggrieved by the said order of removal, the respondent No.2 preferred an appeal before the appellateauthority. But before the appea! was dscided, respondent No.2 filed Origina! AppHcation No.456 of 1999 before the Central Administratiye Tribunat, Jabalpur Baneh, Jabalpur. The Tribunal after hearing fte parties disposed of the Original Application by| modifying ttie order of remoyal to an order of compulsory retirementwith ^ffect from the "^;^?-::; •s-?'n'-'^^''^s;g^t:i3i'j[yBSti 3- ;—'^~ ^-tff /• /. date from which the respondent No.2 was removed from service. ParagraphsS &6oftheorderdatsd 22.09.1999 ofthe Tribunalin the said O.A.No.456of 1991 which contain the reasons for modifying the order of removal toone ofthecQmpulsoryretirsment are quotetfherein below: "5. We have duly considered the submisston of both sidesand minutely pemsetjthe records. It is true ttat the applteant was posted as Permanent Way tnspector in Bhilliai Marshatling Yard where he had to see to the maintenance of Raihway tracks. The applicant was required materials / stocks which were necessary for the maintenance. The said materials were supplied to the Raihways bythe M.P. Export Corporation Limited, Bhopal. It is a'leged ttiat during the period 1986-87, the applicant had received materials / stock, which on check was found to be short. The respondents in their reply themseh/es admit that the responsibility was not that of the applicant who iras the P.W.I. but the Senior D.E.N, D.E.N. and the A.E.N. were equally responsible and ttiey were avrare ofthe problems of the Bhitlal Marshalling Yard. If it be so, the materiafs supplied to the Raihyays ought to have been checked by the superior officers / authorities as well because the bills are to be uffimately passed through thsm. No doubt the misappropriation of materials might have been due to lack of devotion of duty on the part of the applicantas alleged, however, the fact remains that there was negligence on the partofthe superior officere likethe Sr. DEN and AENwho were not taken to task by the respondent - department for the reasons best known to them. Only the applicant was circled out and held responsible for the government loss. •/ 6. In viewofwhat has been discussed above and after hearing the counselfor both parties and having perusedthe records on ffle, sre findthat the applicant was notthesote pereon whose negligence attributed to the acceptance of sub standard material butsome sentor ofRcers were al|so responsible and they were spared for the reasons best r53'^:;?;!^r;^^rl - 4-- known to ttie official respondents. We also flnd that for shortageof251 sleepers, utilized intrackrepairs.fourjunior PWIs who wers also responsible for accounting & transaction were also spared by the officiat. tn e circumstences, the punishment imposed upon the applicant is considered too harsh and we are of the opinion that the same should be modified. In this connection wa also rely on the decisionoffte Hon'ble Supreme Court in the case of B.C. Chaturvedi vs. Union of India, (1995) 6 SCC 749. We accordingly dispose of this application and modHy tfie impugned punishment of removal from service to that of compulsory retirement w.e.f. the date fromwhich he was removed from sep/ice. The respondente shall take all necsssary measures as required under the Rules for making payment of pensionary benefits to the applicant to Which hewill be entitled to wfthin six months from today." 3. Mr. Vinay Harit, Sr. Adyocate appearing for the petitioners submitted that ths twochargesagainst the respondent No.2 wereserious in nature and had been proved in ttre departmental enquiry. He vehementfy argued that since it has been established in the departmental enquiry thatths respondent No.2 had failed to maintain absolute integrity in the discharge of his duty and has also misappropriated 251 numbers of New Wooden Crossings Sleepers and thereby put the Raihray to heavy financial loss.ttie order of rsmoval passed by the disciptinary author'rty was proport'onate to the gravity of misconduct andshould not have been interfsred with by the Tribunal in the impugned order. He submitted that the Supreme Court has held in B.G. Chaturvedi vs. Union of India & Others reported in (1995) 6 SCC 749 that it is only when the Tribunal finds that the punishment imposed by the disclplinary authority is shocking, it witl interfere with the punishmentand remitthe matter back to the disciplinary authority or the appellate authority to reconsider the punishment to be imposed on ths delinquent and only in exceptional and rars cases the Tribunal can impose alesser punishment. He atso relied oh the decisions dfthe Supreme Court in Union of India & Another vs. G. Ganayutham reported in AIR 1997 SC 3387aswsll as Canara Bank n^J^^.^•^^ - s a ^ vs. V.K. Awasthy reported fn 2005 AIR SCW 2005 for the proposition th^ the Tribunal witl not interfere with the order of punishment unless the same is wholly irrational or illegal. Hs submitted that in this case, the Tribunal whils reducing the punishment fronr one of removal to compulsory retirement has recorded some flndings ofnegligence against some superior cfficers and junior officers which are not based on any material in the records ofthe departmental enquiry. 4. Mr. U.N.S. Deo, leamed counset appearing fbr respondent No.2, on the other hand, submitted that the contention oftte petitioners before the Tribunalinter aliawasthat the respondent No.2 was posted as Permanent Way Inspector in Bhillai Marshalling Yard where he was to see the maintenance of railway tracks and he was not thesole person who was responsible forthe receipt orloss of materials in the railway yard and the Sr. D.E.N., D.E.N. and A.E.N.and other junior PWIS were equally Tesponsibte and yet respondent No.2 was singled out for thedifferential treatment and proceeded against in the departmental enquiry and finally removed from the service. He submitted that the Tribunal was therefore right in coming to the conclusion that the respondent No.2 was not the sote person responsible for accepting substandard materials or for the shortage of 251 Steepersand in reducing the punishment from ons of removal from service to one of compulsory retirement. He ateo relied on the aforesaid decision of Supreme Court in B.C. Chaturvedi (supra) wherein it has been held that if the punishment imposed by the djsciplinary authority shocks the judicial conscience, the Tnbunal can interfere with the same and in some cases can also reducs the punishment to shorten the litfgation. He cited the decision of the Supreme Court in Kailash Nath Qupta vs. Enquiry Officer (R.K. Rai), Allahabad Bank & Others reported in (2003) 9 SCC 480 wherein ft has been held that if relevant factors are not taken note of while determiningthe quantum of punishment, the Courtcan direct reconsideration or In anappropriat&case to shorten the litigation indicate the punishment to be awarded. He also cited the decisJQn of Supreme Court in Pritam Singh vs. Union of Indla & Others reported in 2004 AIRSCW 5391, whereinthe Supreme Court interfered with the ordsr of punishment of compulsory retirement as Wie railway employee had put in 31 years of long servjce withciut any blemish. ii ^ He submitted thatin the present case.the respondent No.2 had put in 29 years of unblemished servicsand he should not have been removed from service and the order of the Tribunal reducing the punishment of removal to one of computeory retirement was justified. Finally, he submitted that beforethe Tribunal, respondentNo.2 had raised various other grounds such as; violation of principles of natural justice and irregularities in the enquiry, but these grounds have not been considered by ttie Tribuna! in the impugned order. To a query by s Court as to whythe respondent No.2 has not challenged eorder ofthe Tribunal, Mr. Deo submitted that since the Tribunal by the impugnec! order reduced the punishment from one of removal to one of compulsoryretirement and the respondent No.2 on such computeory retirement wou!d beentitled to his pension.the respondent No.2 did not challenge the order ofthe Tribunat. .''.;:- 5. !n B.C. Chaturvedi (supra) the Supreme Court has hetd that the discitriinary authority or the appellate authority, being the facts finding authorities have exclusive pcwer to consider the evidence with a view to maintain disciplineand they are invested with the discretion to impose appropriate punishment keeping in view the magnitudeor gravity of the misconduct. In thesaid decision, ttie Supreme Court has furttier held that the High Court / Trtbunal, while exercising the power of judteial review, cannot normally substitute their own conclusion on penalty and impose some other penafy, but if the punishment imposed by fte disciplinary authority or the appellate authorify shocks the conscience of the High Court / Tribuna!, !'t would appropriately mould the relief, either directing the discip'inary / appellate authority to reconsider the penalty imposed,or to shortsn the litigation, it may Hself, in exceptiona! and rarecases, impose appropriate punjshmentwithcogent rsasons in supportthereof. 6. tn Union of India S Another vs. G. Ganayutham (supra) ttie Supreme Court considered the law with regard to proportionality of punishment both in the U.S. and in England as we!l as in Indiaand finally came to conclusion that the positiQn in our country in Administratjve Law is that the Cpurts / Tribunate willonly playa secondary rofe while ths primary judgment as to reasonableness wil! remain with the exscutive or ttie administrative authority and the secondary judgment oftheGourtiisitobe i's'^T^'r'??^''"s.ss' 7 'H based on Wednesbury and CCSU principtes to find iftheexecutive or administrative authority has reasonably arrived at his decision as the primary authority. Para 31 of this judgment of the Supreme Court, which is relevant is quoted herein below:. ^' •'l $.•'.'\. t. '»*? \ !-.-y» ^. "31. In sucha situation, untess the Court/ Tribunal opines !R Hs secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishmerrt cannot be quashed. Even then, the mafter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi's case (1995 AIR SCW 4374) that the Court might, - to shorten litigation - think of substituting it own view as to theQuanhjmof punishment in the place of the punishment awarded by the competent authority." !n para 27 of the judgment in Canara Bank vs. V.K. Awasthy (supra) the Supreme Court has quoted the propositions of taw as laid down in Union of India vs. G. Ganayutham (supra). ?. !n Kailash Nath Gupte vs. Enquiry Officer (R.K. Rai) Allahabad Bank & Others (supra) the Supreme C-ourt after discussing the law as laid down in B.C. Chaturvedi (supra) and G. Ganayuttiam and inothercases has held that the power of interference by the Court with the quantum of punishment isextremely limited, butwhen relevant factors are not taken note of, which have some bearing on the quantym of" punishment, certainlythe Court can direct reconsideration or in an appropriate case to shorten the litigation, indicate the punishment to be awarded. - 8. Coming to the facts of the presentcase, paragraphs 5 & 6 of the order of the Tribuna! which ha'/e been quoted above would show that tiie factore which have been taken into eonsideratioR by the Tribunal in interfering v/ith the order of punishment of removal passed by the disciplinary authorify is that besides respondenfe No.2, other superior ofRcers like Sr. D.E.N., .D.E.N., A.E.N, and 4 APWIare also r^sponsible. E'ff' g»a ^ t..-, ^s? ButthesefindingsthatsuperiorofRcerelikeSr.D.E.N.,D.E.N.,A.E.N.and 4 Junior PWte were also responsible along with respondent No.2, are not based on any materiats in the record coltected in the departmental enquiry. In exercise of the power of judicial review the+ligh Court or the Tribunaf cannot record fresh findingof facts which are not part of the recordof the disciplinary proceedings. The power of the High Court / Tribunal is to only examine the order passed by the disciplinary authority or the appellate authority on ttie basis of materiate whrch formed part of the departmenta! enquiry. !f in the given case, the High Court or the Tribunal is of the view that certain further Tacte need to be inquired into, the 1-ligh Court orthe Tribuna! can remit the matter back to the disciplinary authority for re-enquiry on those facts, but.white exercising the power of judidal review the High Court or the Tribunal cannot act as the disciplinary authority or theappellate authority and record its own finding offacts on the basis of materials p'aced before the High Court or Tribunal. As has been clarified in the case of B.G. Chaturvedi (supra) the disciplinaiy and on appeal the appellateauthorify, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. Even otherwise, the fact that the ether offieere were also responsible along with respondent No.2 in respect of the two charges against respondent No.2 cannot be a ground for reducing ttie quantum of punishment imposed on respondent No.2. The respondent No.2 has been found guiHy of the two charges in the departmental enquiry and the findings in the enquiry report have been accepted by the disciplinary authority. The two charges quoted above are certainly gravecharges and the penalty of removal from service cannot be held to be shocking to judicial conscience or irrational or arbitrary and cannot be interfered with as per the aforesaid decisions of the SupremeCourt. !n ouf'considered opinion, unless the findings of the disciplinary authority with regard to the guilt of respondent No.2 on the two charges were setaside, the Tribunal could not possibly reduce the quantum of punishment from oneof removal to that of compulsory retirement. 9. !t has, however, been submitted by Mr. Deo, tearned counsel appearing for respondent No.2 besides the challenge to tfie quantum of punishment, the respondent No.2 had raised rarious other grounds K:X S^y^ <» complaining of violation of prindples of natural justice and irregularities in the dspartmenta! enquiry which have not been considered by the Tribunal. We havs perussd the records of the Tribunal which have been produced before us and we find that in para 5 of the Original App'ication the rsspondent No.2 has dsteiled various grounds including violation of D & A Rules andthe principles of natural justice Inths departmental enquiry. By virtueofthe impugned order ofthe Tribunal the respondent No.2 would ha'/e bsen entitled to pension and perhaps for this reason he has not challenged the impugned order of the Tribunal. We are of the view that in the ends of justice, the matter should be remanded back tothe Tribunal for a fresh deciston in accordance with law on the grounds which have not been considered by the Tribuna!. 8 <i 10. For the reasons stated above, we set aside theimpugned order dated 22.09.1999 ofthe Central Administrath/e Tribunal, Jabafpur Bench, Jabalpur in OA.no.456 of 1991 and remit the matter back to the Tribuna! for fresh hearing and dscision in accordance with law on the grounds not considered by the Tribunal. Since this is an old case, the Tribuna! will do well to complete the hearing and finally dispose ofthe mattsr within four months from the date of receipt ofcertified copy ofthis order. Sd/- Chief Justice Sd/- Satish l£Agmhatri Judge m ili'ilu tS ^l"