-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R D.B. CIVIL WRIT PETITION NO. 1971/2005 (Union of India & Ors. Vs. Deva Khan & Ors.) D.B.CIVIL WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA Date of Order : 14th August, 2007 P R E S E N T HON’BLE MR. JUSTICE P.B.MAJMUDAR HON’BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Kamal Dave for the petitioners. Mr. S.K.Malik for the respondents. REPORTABLE BY THE COURT : (PER MR. THANVI,J.) 1. This writ petition is directed against the order dated 03.12.2004 passed by the Central Administrative Tribunal in Original Application No.129/2002. By the aforesaid order, the Tribunal partly allowed the Original Application filed by respondent No.1 Deva Khan and remitted the case to the Disciplinary Authority to consider any penalty other than removal -2- or dismissal from service, which was inflicted by the Disciplinary Authority. The respondent No.1 Deva Khan was working as a Diesel Driver, Loco Forman, Western Railway, Chittorgarh at the relevant time. While, he was serving as a Diesel Driver, Loco Forman, Western Railway, Chittorgarh, a charge sheet dated 21.09.92 was issued to him. The substance of the charge was on the ground that on 27.7.1992, delinquent was booked to work NBH Spl. Dn. goods train (BG). The train was stopped dead due to the water level being above danger mark in the river Sakkhanda Bridge No.256. The delinquent sent his Assistant to check the load for vacuum and he also left the loco unmanned and with throttle in advance reversor set in COR direction without putting off G.F. switch and applying brakes, as a result of which, the train loaded back forwards COR and covered a distance of 16.5 kms. before it was stopped dead. The Enquiry Officer found that the delinquent was negligent in performing his duty and he was charged as under: “On 27.7.92 Shri Deva Khan S/o Shri Rajuji, Driver/COR under IC/COR was booked to work NBH Spl. Dn. goods train (BG) having load 103- 1/3/3350t. (4) BOX + BVG/loco No.17319 WDM2 of RTM shed. The train was stopped dead at km 199/11 due to the water level being above danger mark in the river Satkhanda bridge No.256. Driver Sent his Asstt. to check the load for vacuum not increasing above 12 tms. Subsequently, the Driver also left the loco unmanned and with -3- throttle in advance, reversor st in COR direction without putting off G.P.Switch and applying brakes. As a result, the train rolled back towards COR and covered distance of 16.5 km before it was stopped dead on bridge No.232 km. 183/15 near BEC Cabin by the crew of a MGL/Engine waiting there for signal. The Driver Shri Deva Khan thus violated G.R.4 61 & (SR) 6.04.” 2. The Enquiry Officer in his report held that respondent No.1 Deva Khan was negligent in performing his duty but found that the same may be due to tension and fear of floods. On the basis of the said report, the Disciplinary Authority passed an order, by which, respondent No.1 Deva Khan was removed from service with immediate effect. The said order was challenged by respondent No.1 Deva Khan by way of departmental appeal. However, the same was dismissed by the Appellate Authority. The said order was challenged by respondent No.1 Deva Khan by way of O.A.No.66/95 before the Tribunal. The Tribunal found that the appellate order was not a speaking order. The Tribunal accordingly sent the matter back to the Disciplinary Authority to decide the appeal afresh after giving an opportunity of being heard to respondent No.1 Deva Khan. The Appellate Authority, therefore, passed a fresh order after hearing respondent No.1 Deva Khan and rejected the said appeal. The said order was challenged by respondent No.1 Deva Khan by way of revision -4- petition, which was rejected by the Revisional Authority. The same was again challenged by respondent No.1 Deva Khan before the Tribunal by way of O.A.No.153/97. The Tribunal again remanded the matter back by its order dated 23.6.2000 with a direction to decide the appeal afresh in accordance with law. The said appeal was again dismissed. Thereafter, the revision petition was also dismissed and ultimately, respondent No.1 Deva Khan preferred an O.A. No.129/2002 before the Central Administrative Tribunal, Jodhpur Bench. The Tribunal by the impugned order ultimately came to the conclusion that the misconduct against the delinquent has been proved. The Tribunal found that the concerned employee was given due opportunity to defend his case and accordingly upheld the finding about misconduct. The Tribunal, however, interfered with the order of penalty inflicted on the delinquent. The Tribunal found that the penalty is disproportionate to the degree of offence alleged against respondent No.1 Deva Khan. The Tribunal further found that the applicant before it (herein respondent No.1) had served the Railways for about 29 years on different posts and there was a slight negligence on his part and that too in going to attend the telephone call of the Station Master that there were certain shortcomings, which were required to be rectified and the delinquent thought that the Station Master has given a call on telephone for the purpose of removal of such shortcomings and -5- on that basis, the negligent act on the part of the delinquent does not call for imposing of extreme penalty of removal from service as the same is prima facie shocking to the judicial conscience of the Tribunal. The Tribunal, accordingly, partly allowed the application by setting aside the order of penalty. The Tribunal, accordingly, set aside the order of Appellate Authority as well as the revisional order. So far as the question of removal or dismissal from service is concerned, the Tribunal has sent the matter back to the Disciplinary Authority for considering any other penalty except the penalty of removal or dismissal from service. It is the aforesaid order of the Tribunal, which is impugned at the instance of the petitioners. 3. Learned counsel Mr. Kamal Dave appearing on behalf of the petitioners submitted that the delinquent has committed a serious misconduct as he left the engine unattended, as a result of which, the train rolled back up to 16.5 kms. He submitted that this could have resulted in to a major accident. It is submitted that the driver, who was in-charge of the engine was not required to left the same unattended and, therefore, it is a case of serious negligence and a major accident could have taken place in view of such act on the part of the delinquent. It is submitted that the powers of the Court/Tribunal are very limited in the matter of judicial review in connection with the -6- punishment orders. It is submitted that even otherwise, it cannot be said that the penalty of removal from service is disproportionate to the misconduct, which has been proved against the delinquent. It is submitted that normally, the Court/Tribunal should not interfere with the order of penalty, for which, the learned counsel has referred various Supreme Court judgments to point out that the powers of the Court/Tribunal are very limited in such type of cases. It is submitted by the learned counsel for the petitioners that the Railway Administration has already taken a liberal view by not initiating criminal proceedings against the delinquent, though such type of negligency is an offence under Section 173 of the Indian Railways Act. 4. On the contrary, learned counsel Mr. S.K.Malik appearing on behalf of respondent No.1 Deva Khan has submitted that the punishment awarded by the Disciplinary Authority was disproportionate to the act of negligence and the Tribunal has rightly held that its conscience has shocked by the order of the punishment. According to him, the circumstances under which the train was rolled back were such, wherein, the respondent No.1 Deva Khan was left with no option but to leave the train and informing the Station Master about the alleged act of incident because according to him, from both the sides of the railway track, there was heavy flood water and vacuum was also -7- short. 5. We have heard learned counsel for the parties. In our view, the Tribunal was not justified in interfering with the order of punishment inflicted by the Disciplinary Authority because by the alleged act on the part of the delinquent, the train rolled back up to 16.5 kms. and which could have resulted into a major accident. We fail to understand as to how the Tribunal has came to the conclusion that there was a psychological factor involved in the matter. The engine driver, who is in-charge of the train is not expected to leave the engine unattended. It is a co- incidence that it was a goods train. It makes no difference whether it was a goods train or a passenger train as it was expected from the delinquent to remain in the engine without leaving the same unattended. It is not expected from an engine driver to leave the train unattended on the ground that he was scared of flood or afraid of the same. When an engine driver, who is in-charge of the same, in our view, is expected to see that it reaches at its destination in a safe manner and he cannot be expected to leave the train in lurch by getting down from the engine in an attended manner. In our view, such type of misconduct cannot be viewed lightly and as a matter of fact such type of misconduct is to be taken seriously and under the Railways Act, delinquent could have been sent to imprisonment -8- for two years for such type of negligency. The powers of this Court in connection with interfering the question of punishment is very limited and normally the Court should not interfere with the same unless an exceptional case is made out and it is found that punishment is disproportionate to the charges levelled against the delinquent. Surely, the present case is not one of such cases, wherein, the Tribunal should have interfered with the order of punishment. Even though, it is true that the delinquent had remained in service for more than 29 years and his service record is also may be unblemished, yet in a given case, one solitary act of negligence may be enough for imposing maximum penalty. The present case is required to be considered from different angle i.e. that a person, who is an engine driver has left the train unattended may be for whatever reason, which resulted in rolling back of the train up to 16.5 kms., even a solitary act of negligence is enough for imposing major penalty. In such cases, the Disciplinary Authority is the best judge as to what type of punishment is required to be inflicted in such type of cases. 6. Considering the facts and circumstances of the case, in our view, the Tribunal was not justified in interfering with the order of punishment as it cannot be said that the punishment awarded to the delinquent is shockingly disproportionate in considering the act of misconduct proved against him. Thus, we are unable -9- to accept the conclusion reached by the Tribunal for remitting the case to the Disciplinary Authority on the question of reconsideration of penalty imposed by the Disciplinary Authority on the delinquent. The reasoning of the Tribunal, in our view, is not sustainable in coming to the conclusion that the penalty is disproportionate to the misconduct proved against the delinquent. 7. We accordingly set aside the order of the Tribunal. However, it is pointed out to this Court that the delinquent has reached the age of superannuation and now he is in advance age. Considering the fact that the delinquent has served for more than 30 years in the Department and having unblemished past career, it would be just and proper to direct the Railway Administration to sanction compassionate allowance to him as provided under Rule 65 of the Railway Service (Pension) Rules, 1993. The said Rule reads as under : “(1) A railway servant who is dismissed or removed from service shall forfeit his pension and gratuity: Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had -10- retired on compensation pension. (2) A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than three hundred seventy-five rupees per mensem.” 8. In our view, it is a deserving case, wherein the said benefit should be made available to respondent No.1 Deva Khan as now he has already reached the age of superannuation and that twice the matter has gone to the Tribunal and the same has remitted back and the delinquent remained in agony because of the pendency of the matter for many-many years. We, therefore, recommend that the petitioners should consider the case of respondent No.1 Deva Khan for compassionate allowance as per the aforesaid Rules narrated above and said benefit should be made available to him. For this purpose, we permit the respondent No.1 Deva Khan to make appropriate representation to the competent authority within a period of two months from today and on receipt of the same, the competent authority is directed to take appropriate decision in this connection in the light of the observations made by this Court and in consonance with Rule 65 of the Railway Service (Pension) Rules, 1993. The Railway Administration may take appropriate decision after receiving representation from respondent No.1 within a period of two months from the date of the receipt of the same and what -11- ever the benefits are available as per the Rules shall be given to the delinquent immediately. 9. Subject to what is stated above, this writ petition is allowed by setting aside the order of the Tribunal. No order as to costs. (DEO NARAYAN THANVI),J. (P.B.MAJMUDAR),J. ms rathore