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2005 DIGILAW 2749 (RAJ)

B. N. Kasana v. Union of India

2005-10-20

RAJESH BALIA, S.N.JHA

body2005
Judgment 1. The petitioner has called in question the decision of the Central Administrative Tribunal, Jodhpur Bench, Jodhpur dated 212.2002 in O.A. No. 214/2001. He had filed the application for quashing the order dated 26.07.2001 by which he had been awarded the penalty of reduction of pay in the same scale from Rs. 6,900/-to 8,100/-for a period of three years without cumulative effect. The main ground on which the validity of the order was challenged was that the authority which had passed the order was not competent in terms of the delegation of powers. The Tribunal relying on a decision in O.A. No. 28/2000 titled as R.K.P. Singh vs. Union of India & Ors., held that the authority holding independent charge of the Branch is competent to award penalty and accordingly rejected the application. The Tribunal, however gave opportunity to the petitioner to prefer appeal against the impugned order before the appellate authority. 2. It may be mentioned here that, simultaneously, the petitioner had preferred appeal before the appellate authority a fact which he did not disclose in the application before the Tribunal. The said appeal came to be disposed of by the appellate authority vide order dated 24.04.2002 whereby while maintaining the finding of guilt, the quantum of penalty was reduced by reducing the period from three years to one year. Not satisfied, the petitioner approached this Court by the present writ petition. 3. The sole question for consideration is whether the authority namely Shri Alok Mishra, Divisional Engineer Headquarter, N. Rly., Jodhpur was competent to award the penalty in terms of the delegation of powers. 4. The delegation of powers is contained in Schedule II of the Railway Servants (Discipline and Appeal) Rules, 1968. In the instant case we are concerned with Part 5(a) of the Schedule. It is not in dispute that the petitioner at the relevant time was a Group C staff and therefore, covered under Column 4 of the said Part. The authority competent to award the penalty has been described in the said column as under:- “Junior Administrative Grade Officers and Senior Scale Officers holding independent charge/incharge of a Department on the Division.” 5. The submission of Mr. The authority competent to award the penalty has been described in the said column as under:- “Junior Administrative Grade Officers and Senior Scale Officers holding independent charge/incharge of a Department on the Division.” 5. The submission of Mr. Dave, learned Counsel for the respondents is that Shri Alok Mishra held the position of Senior Scale Officer and he held independent charge over Jodhpur - Marwar Junction and Samdari - Bhildi (ex) Section of Jodhpur Division of the Engineering Department and, therefore, was competent to award the impugned penalty. Counsel submitted that use of the oblique (/) mark interjecting between “independent charge” and “incharge” shows that the person holding independent charge is competent to award the penalty. The submission overlooks the fact that the words “independent charge” and “incharge” are qualified by the words “of a department on the Division”, and, therefore, unless the person either holds independent charge of the Department or is incharge of the Department, he cannot be regarded as competent to award the penalty. The mark “/” indeed shows that the two expression “independent charge” and “incharge” are to be read as connoting the same thing conjunctively. 6. The Tribunal took the view that in course of time, in exigency of service and administration, the Engineering Department got divided into several branches and if the person in independent charge of a branch was in the senior scale, he would be competent to award the punishment. This precisely was the submission of Mr. Dave too. In our opinion as already indicated above, the key words are independent charge/incharge “of a Department” on the Division. Unless the person either holds independent charge of the department or is incharge of department, he would not be competent to pass the order irrespective of his own grade or scale. There is no dispute between the parties that Shri Alok Mishra was holding independent charge of particular Sections or Branch of the Department, even though in the senior scale. As such, he was not competent to award the penalty. In these premises, the order of penalty dated 26.07.2001 as well as the appellate order dated 24.04.2002 arising therefrom are set-aside. 7. As we have set-aside the impugned orders on a technical ground, we would give liberty to the concerned competent authority to pass fresh order in respect of the alleged misconduct of the petitioner in accordance with law. 8. In these premises, the order of penalty dated 26.07.2001 as well as the appellate order dated 24.04.2002 arising therefrom are set-aside. 7. As we have set-aside the impugned orders on a technical ground, we would give liberty to the concerned competent authority to pass fresh order in respect of the alleged misconduct of the petitioner in accordance with law. 8. The writ petition is allowed subject to the observation made hereinabove.