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2018 Supreme(Bom) 1693
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, SHALINI PHANSALKAR-JOSHI, JJ.
V.M. Shukla, Parcel Clerk, Central Railway, Kalyan - Petitioner
Versus
Union of India and Ors. - Respondents
Writ Petition No. 8036 of 2005 Along with Writ Petition No. 7017 of 2005
Decided On : 04-12-2018
Mr. R.G. Walia for the Petitioner in WP/8036/2005 and for the Respondent in WP/7017/2005.
Mr. Suresh Kumar for the Petitioners in WP/7017/2005 and for the Respondents in WP/8036/2005.
The main legal point established in the judgment is that a Charge-Sheet issued by an officer not competent to impose major penalties is not legal and valid, and the penalty imposed by an incompetent authority is vitiated.
Headnote:
Charge-Sheet - Railway Administration - Railway Servants (Disciplinary and Appeal) Rules, 1968 - Summary: The court considered whether an officer superior in rank and pay-scale, but not competent to impose major penalties, can issue a Charge-Sheet and whether the Divisional Commercial Manager was competent to impose a major penalty of compulsory retirement. The court referred to Rule 8(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 and previous judgments to conclude that the Charge-Sheet issued by an officer not competent to impose major penalties is not legal and valid. The court held that the Divisional Commercial Manager was not competent to impose the major penalty, and therefore, the initiation of the enquiry and the penalty imposed were vitiated.
Fact of the Case:
The case involved two counter Writ Petitions arising from a judgment and order passed by the Central Administrative Tribunal, Bombay Bench at Mumbai, regarding the authority to issue a Charge-Sheet and impose a penalty on an employee of the Railway Administration.
Finding of the Court:
The court found that the Charge-Sheet issued by an officer not competent to impose major penalties was not legal and valid. It also found that the Divisional Commercial Manager was not competent to impose the major penalty of compulsory retirement.
Issues: The issues before the court were whether the Charge-Sheet issued by an officer superior in rank and pay-scale, but not competent to impose major penalties, can be legal and valid, and whether the Divisional Commercial Manager was competent to impose the major penalty of compulsory retirement.
Ratio Decidendi: The court relied on Rule 8(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 and previous judgments to establish that the Charge-Sheet issued by an officer not competent to impose major penalties is not legal and valid. It also found that the Divisional Commercial Manager was not competent to impose the major penalty.
Final Decision: The court allowed the Writ Petition preferred by the Petitioner-employee, quashed and set aside the impugned order passed by the Tribunal, and dismissed the Writ Petition preferred by the Respondent-Union of India.
1. Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Walia, learned counsel for the Petitioner in Writ Petition No.8036 of 2005, who is Respondent in Writ Petition No. 7017 of 2005; and Mr. Suresh Kumar, learned counsel for the Respondents in Writ Petition No.8036 of 2005, who are the Petitioners in Writ Petition No. 7017 of 2005.
2. Writ Petition No.8036 of 2005 is preferred by the 'Employee'; whereas, Writ Petition No.7017 of 2005 is preferred by the 'Railway Administration'.
3. For the sake of convenience, the parties are referred to by their original nomenclature as 'Petitioner' and 'Respondents' in Writ Petition No.8036 of 2005.
4. These two counter Writ Petitions are arising out of the 'Judgment and Order' dated 1st December 2004, passed by the Central Administrative Tribunal, Bombay Bench at Mumbai, (for short, “the Tribunal”), in Original Application No.822 of 2003, raising two short none the less important questions for consideration as to, 'whether the Authority, which is though an Authority superior to the employee, but not the Appointing Authority, can issue a 'Charge-Sheet' and if on the basis of such Charge-Sheet, the enquiry is initiated, then, whether its result becomes vitiated?' The second question raised for consideration is, 'whether the penalty imposed by such Authority, which is not competent to impose the major penalty, can be legal and valid ?'
5. The factual aspects of the case are not in the realm of dispute and they are to the effect that, Petitioner was appointed in the 'Railway Administration' on 13th May 1981 in the pay-scale of 'Rs.260 - 430'. The 'Appointing Authority' was the APO (BB). The Petitioner was thereafter promoted in the pay-scale of 'Rs.1,400 - 2,300' vide 'Office Order' dated 17th December 1992. The promotion order was issued by the Divisional Personnel Officer. As per the 5th Pay Commission, the pay-scale of the Petitioner was enhanced to 'Rs.5,000 - 8,000', which pay-scale the Petitioner was holding when the penalty was imposed on him.
6. Respondent No.4 – the Divisional Commercial Manager (Goods) has issued the 'Charge-Sheet' to the Petitioner on 29th April 1999, under the Railway Servants (Disciplinary and Appeal) Rules, 1968, on the basis of which the enquiry was conducted, in which the Petitioner has participated. The Enquiry Officer has submitted the report on 31st August 2001, holding the Petitioner guilty for the Charge Nos. I, II and III. The 'Disciplinary Authority' has thereafter, considering the 'Report' of the 'Enquiry Officer' and the representation made by the Petitioner, imposed the major penalty of “compulsory retirement”, vide order dated 29th January 2002. The Petitioner has preferred an Appeal against the said order to the Appellate Authority, which came to be rejected by order dated 2nd May 2002. The Petitioner has then filed Revision Petition against the said order to the Revisional Authority, which has, vide its impugned order dated 8th November 2002, reduced the penalty of compulsory retirement to that of reversion to 'Junior Parcel Clerk' in the 'Grade Pay' of 'Rs.3,200 - 4,900', fixing the 'Basic Pay' @ Rs.3,200/- per month for a period of five years, with cumulative effect.
7. Being aggrieved by the said order, the Petitioner has preferred this 'Original Application' before the Tribunal contending, inter alia, that, the 'Charge-Sheet' was issued to him by the 'Divisional Commercial Manager (Goods)', though he was not competent to impose any of the major penalties and was also not holding independent charge of Commercial Department of Mumbai Division of Central Railway, in which the Petitioner was working. According to the Petitioner, the 'Divisional Commercial Manager' was authorized to impose only a “minor” penalty and not any of the major penalties, in accordance with 'Schedule-II' of the Railway Servants (Disciplinary and Appeal) Rules, 1968. It was submitted that, the 'Divisional Commercial
