Judicial review in disciplinary cases limited to perversity or conscience-shocking disproportionality; upheld enquiry proving record tampering for one-day absence but directed revision of compulsory retirement as disproportionate absent grave consequences.

ORDER (O R A L)

Per Hon’ble Mr.Pankaj Kumar, Member-Administrative

In this case relating to punishment, the applicant has sought the following reliefs:

“(a) To issue an order or direction to set aside the order dated 09.04.2008 as well as 28.07.2015 passed by Respondent No. 2 and 4 respectively contained as Annexure No. 1 & 2 to this Original Application.

(b) To issue a direction upon the respondents to reinstate the applicant, and to pay the entire arrears of salary, seniority as well as other consequential benefits forthwith along with existing rate of interest.

(c) Any other relief, which this Hon’ble Tribunal may deem fit, just and proper under the circumstances of the case, be also passed.

(d) allow the Original Application with cost.”

2.1 The applicant, while working in the Accounts Department under the respondents since 1989, was proceeded against departmentally for having signed an issue note in backdate attempting to establish his presence on 23.02.2006 at his place of posting, Bhojipura. An enquiry was conducted under the Railway Servant (Discipline & Appeal) Rules, 1968 and the charge was found proved. Major penalty of compulsory retirement from service was imposed by the disciplinary authority vide order dated 09.04.2008 and the applicant’s appeal was rejected by the appellate authority vide order dated 18.06.2008. The applicant challenged the impugned orders passed by the disciplinary authority and the appellate authority in OA No. 859 of 2008 before the Allahabad Bench of this Tribunal whereupon this Tribunal set aside the impugned orders vide order dated 21.08.2008 holding that a retired railway officer cannot act as an enquiry officer. This view was upheld, on appeal, by Hon’ble High Court, but on further appeal to Hon’ble Supreme Court in a batch of appeals, including the applicant’s matter [Civil Appeal 3373 of 2010 arising out of SLP (C) No. 17185 of 2009 Union of India&Ors vs Ratneshwar Singh], the judgment and orders passed by this Tribunal and Hon’ble High Court were set aside vide order dated 16.04.2010 of the Apex Court.

2.2 Thereafter, the applicant filed OA No. 472 of 2012 before this Tribunal whereupon, vide order dated 11.05.2015, the order of appellate authority dated 18.06.2007 was quashed and the appellate authority directed to re-examine the appeal and pass a detailed and reasoned order. The appellate authority passed order dated 28.07.2015 in compliance to this Tribunal’s order dated 11.05.2015. Aggrieved at the order dated 28.07.2015 passed by the appellate authority, the applicant has preferred this OA.

3.1 It is contended by the applicant that he performed his duties without blemish and that the appellate authority is adamant to punish the applicant without having any evidence or adverse material against the applicant in the disciplinary proceedings. There is no allegation of financial misappropriation. The applicant appeared before the appellate authority on 08.07.2015 for personal hearing and submitted a statement but was shocked to receive the same decision which shows prejudice on part of the appellate authority.

3.2 It is further contended that during the enquiry, none of the prosecution witness corroborated the charge and thus the enquiry report itself is arbitrary and perverse. The applicant’s reply dated 12.03.2008 to the enquiry report was not considered by the disciplinary authority while passing the impugned order dated 09.04.2008 and reflects the annoyance of disciplinary authority in response to the applicant’s request for saving water.

4.1 The respondents state that the applicant was debarred from all works regarding stock verification vide order dated 06.07.2006 which shows that the applicant’s claim of having an excellent record is false. The enquiry was conducted as per law and its findings are based on the evidence led as per the principle of preponderance of probability. Further, the ap