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Rajasthan High Court · body

2001 DIGILAW 1948 (RAJ)

Mool Chand Yadav v. Union Of India (Uoi)

2001-12-15

HARBANS LAL, M.R.CALLA

body2001
JUDGMENT 1. - The petitioner herein was working as a Head Booking Clerk at Ajmer in the year 1985. He was subjected to a Disciplinary Enquiry under Rule 18 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Rules of 1968) on the charges for issue of Printed Card Tickets instead of showing the tickets in the concessional forms o 4 physically handicapped persons and their companions. The Enquiry Officer found the charges to be proved and, on that basis, the Disciplinary Authority passed an order dated 1.12.1988 imposing penalty of removal from service against him. Against this order dated 1.2.1988, he preferred an appeal. The Appellate Authority passed order dated 26.5.1989 imposing the penalty of reducing him to the start of next lower grade for a period of 5 years with future effect i.e. postponing the future increments and affecting his seniority and the intervening period was treated as "not spent on duty". The Chief Commercial Superintendent issued a notice sou-motu to the petitioner under Rule 25 of the Rules of 1968 calling upon him to show cause as to why the penalty of removal from service should not be imposed against him for the reasons, which were enclosed with this very notice in Annexure-A. The petitioner herein filed a reply to the aforesaid notice and thereafter, the Chief Commercial Superintendent i.e. the Revisional Authority exercising powers under the Discipline and Appeal Rules imposed penalty of removal from service as had been imposed by the Disciplinary Authority by his order dated 15.2.1990. Against this order dated 15.2.1990 the petitioner preferred original Application No. 125/90 before Central Administrative Tribunal, Jodhpur Bench, Jodhpur. The Central Administrative Tribunal by its order dated 5.1.1994 decided the original application in the following terms and the operative part thereof (10) is reproduced hereunder: "10. We, therefore, hold that Annex. A/1 is not a speaking order and is liable to be quashed on that ground. Accordingly, we quash the order of the Chief Commercial Superintendent (Annex. A/10) enhancing the punishment on the applicant from reduction, to lower grade for five years to that of removal. The punishment imposed by the appellate authority i.e. the Additional Divisional Railway Manager of reduction vide Annex. A/6 is considered a valid order and would be operative after quashing of Annex. A/10. A/10) enhancing the punishment on the applicant from reduction, to lower grade for five years to that of removal. The punishment imposed by the appellate authority i.e. the Additional Divisional Railway Manager of reduction vide Annex. A/6 is considered a valid order and would be operative after quashing of Annex. A/10. The respondents are however at liberty to consider the representation of the applicant placed at Annex. A/9 and pass a speaking order after taking into account all the points raised therein." 2. As the liberty was granted by the Central Administrative Tribunal for consideration of representation, the Chief Commercial Manager decided the petitioner's representation referred to as Annex. A/9 in the operative part of the Central Administrative Tribunal's order as above. By its order dated 29.6.1994 dealing with the grounds as were raised by the petitioner, the Chief Commercial Manager decided that the penalty of removal from service with immediate effect be imposed against the petitioner. In view of the order passed by the Central Administrative Tribunal on 5.1.1994, it has been stated before us that the petitioner was taken back in service and after the order dated 29.6.1994 passed by the Chief Commercial Manager, he was again removed from service. The petitioner then approached the General Manager, against this order dated 29.6.1994 passed by the Chief Commercial Manager but General Manager also rejected the representation and, thereafter, the petitioner approached the Central Administrative Tribunal, Jodhpur Bench, Jodhpur through Original Application No. 336/96. This O.A. No. 336/96, in the second round of litigation, was decided by the Central Administrative Tribunal by its order dated 5.10.2000 and the application was dismissed. 3. Aggrieved from the order dated 5.10.2000. the present petitioner has preferred this writ petition before this Court under Article 226 of the Constitution of India. The writ petition was presented on 3.12.2000 and placed before this Court on 4.12.2000. and the same came up before the Court on 19.12.2000. The Court passed the following order on 19.12.2000: "Though in this petition inquiry as well as punishment order both are challenged but the challenge to the enquiry is not pressed into service and challenge is restricted only to quantum of punishment. Hence, notice is ordered to be issued to the respondents on the point of penalty only to show cause as to why this petition should not be disposed of at the admission stage itself. Hence, notice is ordered to be issued to the respondents on the point of penalty only to show cause as to why this petition should not be disposed of at the admission stage itself. Notice returnable on 19.2.2001." 4. In response to the notice, as aforesaid, issued by the Court, the respondents filed reply on 5.5.2001 to which a rejoinder dated 6.6.2001 was also filed by the petitioner on 11.6.2001. 5. In view of the order dated 19.12.2000 passed by this Court, as to why the petition should not be disposed of at admission stage, we have treated this petition as if it has been admitted and both the sides requested that the matter may be finally, heard and decided in terms of this Court's order dated 19.12.2000 at this stage itself. 6. Learned Counsel for the petitioner has raised before us the following contentions: 1. That it is of course correct that the statement was made by him before the Court on 19.12.2000 that challenge in this petition be restricted to the quantum of punishment only, once the matter is treated as admitted, it is open for him to argue all the questions including the challenge to the enquiry and on that basis, learned Counsel for the petitioner has also pointed out certain lacunae in the enquiry. Particularly, with regard to not affording the reasonable opportunities inasmuch the relevant Daily Ticket Cash (DTC) statements were not produced and he was not allowed to put all the questions, which could be put by the petitioner during the course of enquiry to the concerned witness regarding companions were disallowed by the Enquiry Officer. Certain other grievances have also been raised challenging the correctness and the legality of the enquiry proceedings on the ground of denial of reasonable opportunity and the violation of the principles of natural justice. 2. Certain other grievances have also been raised challenging the correctness and the legality of the enquiry proceedings on the ground of denial of reasonable opportunity and the violation of the principles of natural justice. 2. That in terms of the order as has been passed by the Central Administrative Tribunal, in the first instance i.e. the order dated 5.1.1994 by which Original Application No. 125/90 was decided, that once the CAT had quashed and set aside the order passed by the Revisional Authority i.e. the Chief Commercial Superintendent enhancing the punishment, may be on the ground that it was not a speaking order, it had been held in no uncertain terms that the punishment imposed by the Appellate Authority i.e. the Additional Divisional Railway Manager was valid order and the same would be operative after the order passed by the Revisional Authority; it was not open for the Revisional Authority in exercise of the liberty granted by the CAT to restore the penalty of removal from service and it could only consider the petitioner's representation Annexure-A/9, so as to decide as to whether any penalty short than the one imposed by the Appellate Authority, was required to be imposed or not. In other words, the submission of the learned Counsel is that the Revisional Authority, while exercising the liberty to consider the petitioner's representation, again could not impose any penalty higher than that which had been imposed by the Appellate Authority. 3. That in any case, the punishment of removal from service in the facts and circumstances of the case was highly disproportionate to the element of misconduct involved in this case and further that the petitioner had been subjected to uneven treatment vis-a-vis the other employees who faced similar or more grave charges. While elaborating this argument, he has made reference to statement showing the details of Printed Card Tickets issued on the Handicapped/Blind concessions by Ajmer Booking Office during the Month of May, 1985 which is a statement which was prepared by the respondents themselves under the signatures of the Chief Booking Supervisor, Booking Office, Western Railway, Ajmer, which have been placed on record. It has been submitted that the charges which were levelled against Shri H.S. Shekhawat and Shri G.C. Jatav were of similar nature or of more grave nature than the allegations which formed the subject matter of enquiry against the present petitioner. It has been submitted that the charges which were levelled against Shri H.S. Shekhawat and Shri G.C. Jatav were of similar nature or of more grave nature than the allegations which formed the subject matter of enquiry against the present petitioner. The grievance has been raised that so far as these two employees namely Mr. H.S. Shekhawat and G.C. Jatav were concerned, who had suffered the same identical punishments at the hands of the Disciplinary Authority and the Revisional Authority - both of them challenged the orders passed against them before the Ahmedabad Bench of CAT and the Ahmedabad Bench of CAT set aside the orders passed against the respondents in those Original Applications filed by these employees on the ground that the copy of the enquiry report had not been made available to them before passing the final punishment order. It has been further submitted that so far as Mr. H.S. Shekhawat is concerned, the action which has to be taken against him after the order passed by the CAT, was not taken within time and the respondents preferred a Review Application before the Court. They had also applied for extension of time before the CAT but that application was also rejected and review application had also been rejected. The respondents therefore had initiated an, enquiry afresh against Mr. H.S. Shekhawat and, in that case, Mr. H.S. Shekhawat again approached the CAT and the CAT stayed the enquiry on the basis of the charge-sheet afresh against Mr. H.S. Shekhawat on 4.2.1997 and they are continuing in service. It is further submitted that so far as Mr. G.C. Jatav is concerned in his case, the respondents initiated no further action and did not serve fresh charge sheet and no action was taken till May, 2001 when Mr. Jatav expired. It has been submitted that so far as Mr. H.S. Shekhawat is concerned, he is still continuing in service and the enquiry proceedings against him are unconcluded and so far as Mr. G.C. Jatav is concerned, there is no question of any further action now because he had already expired on 27.3.2001. 4. Besides this, it has also been pointed out that there are number of mitigating factors on the basis of which the penalty of removal deserves to be reduced to that of the penalty which had been passed by the Appellate Authority. (i) That Mr. 4. Besides this, it has also been pointed out that there are number of mitigating factors on the basis of which the penalty of removal deserves to be reduced to that of the penalty which had been passed by the Appellate Authority. (i) That Mr. H.S. Shekhawat, against whom there were identical charges, is continuing in service even uptill now where as the petitioner is out of the job in the first instance eversince from the passing of the order dated 1.2.1988 and, again after the order dated 5.10.2000 passed by the CAT in the application which had been filed by the petitioner in the second round of litigation. That so far as Mr. G.C. Jatav is concerned despite the charges of more grave nature, he has continued in service untill 27.3.2001 i.e. the date on which he had expired. (ii) Regarding the allegation that in one of the cases, the petition had issued the concessional tickets in case of physically handicapped person on the basis of certification by an unauthorised competent Medical Officer that the person was a physically handicapped person, it has been submitted that it was only an error of procedure. (iii) While making reference to the statement Annexure-4 about which, we have already made a reference herein above, it was pointed out that this chart would show that so far as the present petitioner is concerned, against him the allegations are dated 7.5.1986, 19.5.1985, 12.5.1985 and 8.5.1985 i.e. in respect of 4 dates whereas in case of Shri H.S. Shekhawat, the charges are dated 16.5.1985, 15.5.1985, 12.5.1985, 18.5.1985. 21.5.1985, 19.5.1985, 7.5.1985, 16.5.1985 and 1.5.1985, i.e., 9 times in all, and against Shri G.C. Jatav, the charges are dated 6.5.1985, 8.5.1985, 5.5.1985, 10.5.1985 and 6.5.1985 i.e. 5 times in all. (iv) Reference has also been made to the chart filed with the petition by the petitioner at page 27-A to 27-F in order to show that the charges against Shri H.S. Shekhawat and Shri G.C. Jatav were of more serious nature than those against the petitioner. That in the year 1985-86, the issue of Printed Card Tickets to the physically handicapped persons were used as per the practice and in the entire Ajmer Division, this practice was going on and continued which would appear from the letter dated 22.12.1987 sent by the Divisional Railway Manager, Ajmer to the Station Superintendent of Ajmer, Udaipur City, Bhuj, etc. 7. 7. Learned Counsel for the respondent Mr. S.S. Vyas has submitted that once the petitioner had confined the scope of this petition to the quantum of punishment, there remains no question of any challenge to the correctness and validity of the enquiry proceedings or raising of grievances of not affording reasonable opportunity and the violation of principles of natural justice. It is submitted that the Daily Ticket Cash Forms were not available and, therefore, there was no question of producing the same and the question with regard to the companion was disallowed because it was found that it has nothing to do with the issue of the tickets in concessional forms to the physically handicapped persons and in this case the course of action adopted by the petitioner by issuing the Printed Card Tickets to the physically handicapped persons from Ajmer to Jaipur was to use the benefit of the concession by issuing tickets to other person. It has been submitted that the question which was disallowed is of no consequence and non- production of Daily Ticket Cash does not impinge upon the validity of the enquiry proceedings in any manner. It has been pointed out that these contentions were not raised earlier before this Court. The challenge has been made to the question of quantum of punishment and, therefore, no grievances, which have been raised with regard to the enquiry proceedings can be considered by this Court. 8. Learned Counsel for the respondents has further submitted that even if first order which has been passed by the CAT is taken into consideration, that no punishment higher than one imposed by the Appellate Authority could be imposed by the Revisional Authority and an order imposing lesser penalty only could be passed, in fact, the petitioner had never raised any grievance against the order as had been passed by the Appellate Authority rather he felt satisfied with that order and the order of removal and the punishment of removal was restored by the Revisional Authority by issuing the notice suo-motu. It was set aside by the Tribunal on the ground that it was not a speaking order and, therefore, it is not open for the petitioner to argue on the basis of the order passed by the CAT in the first instance that the liberty as had been granted by the CAT to the Revisional Authority was only for the purpose of considering as to whether any punishment lesser than the one imposed by the Appellate Authority was required to be imposed. It has also been submitted that this point was never raised by the petitioner himself in the application which he filed before the CAT against the order of the Revisional Authority which had been passed after the earlier order of the CAT and even before this Court. So far as the grounds which have been raised with regard to the quantum of punishment, Mr. Vyas, learned Counsel for the respondents has submitted that the order as has been passed by the CAT after affording opportunity and the order passed second time by the Revisional Authority, does not suffer from any illegality of fact or law and, therefore, there is no question of interference by this Court with that order. On the the settled principles, with regard to the issue of the writ of certiorari - Mr. Vyas has also cited before us the decision in the case of Mohd. Yunus v. Mohd. Mustqim AIR 1984 page 38 . We do not find it necessary to multiply the number of authority by referring to certain other decisions on this aspect of the matter cited by the learned Counsel as there cannot be any dispute with regard to the settled principles for issue of a writ of certiorari. 9. We have considered the submissions as have been made on behalf of both the sides and the facts of this case in its entirety. It cannot be said that the issue of the Printed Card Tickets in case of physically handicapped candidates instead of issuing the tickets in the concessional forms does not involve any violation of rules. It is certainly a violation of rules and even if a ticket in concessional form is issued to physically handicapped person on the basis of a certificate issued by the 'Baidhya', it is also a violation of rules. It is certainly a violation of rules and even if a ticket in concessional form is issued to physically handicapped person on the basis of a certificate issued by the 'Baidhya', it is also a violation of rules. In a given case, such violation may also give an opportunity to concerned booking clerk to take undue advantage of money. Nevertheless, we find that this practice was going on at several stations in the Ajmer Division as is apparent from the record. We, therefore, find that it has to be treated as a case of mistake and if at all it is a case of mistake and not a case of mischief, a lenient view with regard to the violation of rules involving the procedure has to be taken. The settled principle of law in such matters is that the mischief is to be punished and a person who commits mistake is not to be punished severely on the principle that punishment should be commensurate to the element of misconduct. In our view, a lenient view is required in the matter of punishment in such cases and the punishment in such cases should not be extreme so as to render him jobless. The frequency of issue of the Printed Card Tickets to physically handicapped persons in case of other two persons namely Shri. H.S. Shekhawat and Shri G.C. Jatav was more in comparison to that of the petitioner. The fact that Shri H.S. Shekhawat is still continuing in service and Shri G.C. Jatav also continued in service till he expired are also not disputed, may it be that it was on account of litigation which was pursued by Shri H.S. Shekhawat again after the order was passed. 10. We find that in such matters, uneven consequences should not be allowed to flow. So far as the present petitioner is concerned, we also find that he has already, suffered the agony of litigation for all these years ever since the order which had passed against him with regard to his removal from service way-back in 1988. At present he is 47 years, and he is facing this litigation ever since the time when he was about 33 or 34 years of age. At present he is 47 years, and he is facing this litigation ever since the time when he was about 33 or 34 years of age. At this stage when he is 47 years, if the penalty of removal stands, he will not be able to get any benefit of the period of service which he had rendered earlier and it is obvious that at this stage it will not be easy for him to find any employment. For all these reasons and for the mitigating circumstances, as have been narrated in the earlier part of the order we find that the order, as had been passed against him with regard to the removal from service, cannot be sustained and the penalty should be reduced from removal to the one as was imposed by the Appellate Authority. 11. In the facts of the present case, when the appellant himself had restricted the scope of this petition to the question of quantum of punishment, we do not find it appropriate to deal with the other contentions raised before us against the validity of enquiry proceedings, denial of reasonable opportunity and breach of principles of natural justice. 12. In the result, this writ petition succeeds in part and the same is accordingly partly allowed. The order dated 5.10.2000 passed by the CAT is hereby quashed and set aside. The order passed by the Chief Commercial Manager read with the order dated 29.6.1994 and the order of Chief General Manager are hereby quashed and set aside and the order dated 26.5.1989 passed by the Appellate Authority is hereby restored. It is directed that the petitioner shall be reinstated in service with all legal consequences to follow on the basis of the order as above passed by the Appellate Authority. The order with regard to the salary for the intervening period for which the petitioner remained out of employment, shall be passed in accordance with law by the concerned authorities. Costs are made easy.Writ petition partly allowed. *******