JUDGMENT :

Sandeep V. Marne, J.

By this Petition, Petitioner has set up a challenge to order dated 5 November 1999 passed by the Disciplinary Authority imposing the penalty of removal from service as well as order dated 11 April 2006 passed by the Appellate Authority replacing the penalty of removal with that of reduction to the lowest scale and grade in Group C with cumulative effect. Rule in the Petition was issued on 2 April 2008.

2. Brief factual background of the case is as under :

Petitioner was appointed in the Konkan Railway Corporation Limited (KRCL) on the post of Computer Operator initially for a period of six months on daily salary of Rs.40/-. By order dated 15 July 1992 his services were converted to consolidated salary in the pay scale of Rs.1400- 2300 (5000-8000). Petitioner was later brought on to the regular scale of pay by order dated 23 November 1992. He was later subjected to a written test and interview and empaneled for regular absorption in Computer category vide office order dated 15 February 1996. This is how Petitioner came to be regularized in service.

3. Petitioner came to be transferred and posted as Computer Operator in the office of Regional Accounts Officer, Ratnagiri Division. While being posted at Ratnagiri, till the month of July 1997 he was drawing basic pay of Rs.1600/-. There was sudden increase in his pay by two increments in the month of August 1997 raising his basic pay to Rs.1700/-. Petitioner claims that he brought the factum of his wrong pay fixation to the notice of the concerned officials vide representations dated 28 October 1997, 20 November 1997, 5 February 1998 and 19 March 1998. In those letters Petitioner, requested for recovery of excess payment from his salary.

4. It appears that the error in pay fixation was noticed in the internal audit and on 25 March 1998, Petitioner was issued a communication calling for his explanation about sudden rise in his basic pay in August 1997 from Rs.1600-/- to 1700/-. It was alleged that Petitioner was personally handling the work of pay sheet at Ratnagiri including the feeding of the relevant data. Petitioner gave his explanation by letter dated 4 April 1998 and sought to blame the software program for occurrence of the technical error. He once again requested for recovery of excess payment by his letter dated 15 May 1998.

5. Disciplinary proceedings were initiated against Petitioner vide Memorandum dated 21 April 1998 alleging that while personally handling the work of pay-sheet of Ratnagiri including feeding of data directly at his level, he gave two undue increments to himself in the month of August 1997 raising his basic pay to Rs.1700/-. It was alleged that Petitioner’s act resulted in undue and intentional benefit to him. It was also alleged that he failed to bring the error in pay to the notice of higher authorities immediately. Petitioner denied the charges and took a defence that he had voluntarily brought the factum of wrong pay fixation to the notice of higher officials and therefore did not have any intention of drawing any undue benefits. Enquiry Officer was appointed to conduct disciplinary enquiry. Petitioner requested for change of Enquiry Officer by seeking appointment of his Controlling Officer, which request was turned down by the Respondents by communication dated 22 May 1998. The Enquiry Officer conducted enquiry and submitted report without recording any definite finding about proof or otherwise of charges. However the findings recorded by the Enquiry Officer do indicate that Enquiry Officer was inclined to hold Petitioner guilty of misconduct. Report of the Enquiry Officer was served on Petitioner vide letter dated 21 September 1998. Petitioner submitted his response on 3 October 1999.

6. The Disciplinary Authority thereafter passed order dated 1 November 1999 imposing the penalty of removal from service. Petitioner preferred appeal before the Appellate Authority. After granting personal hearing, the Appellate Authority was p