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Nanjundaradhya Vs. Enquiry Authority - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 7704 of 1978
Judge
Reported inILR1985KAR3331
ActsRailway Establishment Code - Rule 153; Railway Discipline and Appeal Rules - Rule 6
AppellantNanjundaradhya
RespondentEnquiry Authority
Appellant AdvocateM. Papanna, Adv.
Respondent AdvocateG. Dayananda, Adv.
Excerpt:
.....resulted in forfeiture of his 35 years' service which the rules did not empower and that under rule 6 penalty imposed could only have been substituted. per contra, contended that under rule 153 revisional authority had power to direct re-employment even while confirming order of removal from service.;rule 153, as its wording shows, has nothing to do with the imposition of the penalties under the railway discipline and appeal rules. that rule can be invoked by a person who has been dismissed from service either in the railway department or in any other department of the central government, to secure eligibility for re-employment or employment.;the note below rule 153 regulates re-employment of railway servants who had been dismissed, removed or compulsorily retired from service and..........about the scope of the power of the revisional authority under the railway discipline and appeal rules. rule 6 of the said rules prescribes various penalties which could be imposed against a railway servant. they are:(i) censure ;(ii) withholding of his promotion for a specified period ;(iii) recovery from his pay of the whole or part of the pecuniary loss caused by him to the government or railway administration by negligence or breach of orders ;(iii-a) withholding of the privilege of passes or privilege ticket orders or both.(iv) withholding of increments of pay for a specific period with further directions as to whether on the expiry of such period this will or will not have the effect of postponing the futureincrements of his pay ;(v) reduction to a lower time scale of pay, grade,.....
Judgment:
ORDER

Rama Jois, J.

1. The petitioner, a technician in the Railway Department of the Central Government, has questioned the legality of the order by which he was removed from service which order was confirmed in appeal but modified in revision only to the extent of taking him back to service as a fresh entrant.

2. The facts of the case, in brief, are as follows : During the year 1974, the petitioner was working as an Artisan Grade II at Mysore Railway Workshop. A departmental inquiry was instituted against him on the following charge-

'That the said Sri N. S. Nanjundaradhya, T. No. 1442 Electrical Shop CWS MYSS while functioning as highly skilled Artisan Grade II under Train lighting side dealing with volts supply system committed a malicious and inhuman intentional mischief, in that on 25-5-1974 at 0-750 hours during the course of his allotted POH work in the coach VPU 4887 stabled at the corner end of the point shop by manipulating the AC power supply 230 Volts from the nearest supply point of the water cooler through 2 wires endangered lives of other workmen coming in contact with the said coach.

Thus he acted in a manner unbecoming of a Railway Servant and thereby contravened Rule 3(i) (ii) and (iii) of Railway Service Conduct Rules, 1966.'

After holding the inquiry, the petitioner was found guilty of the charge. The works manager, who was the disciplinary authority imposed the penalty of removal from service against the petitioner. He preferred an appeal to the Assistant Personnel Officer. The appeal was disposed of by the Assistant Personnel Officer by order dated 26-4-1977 (Annexure-H). The said order reads -

'I am directed to advise you that the Deputy Chief Electrical Engineer/General has, in terms of Rule 22(2) of the R.S. (D &. L) Rules, 1968, considered your appeal quoted above and rejected the same observing that no fresh points have been, brought forth by you to merit any re-consideration of the penalty already imposed and that the penalty imposed on you is adequate and should stand.

2) You may, if you so desire, submit a revision Petition to the General Manager within two months from the date of receipt of this advice.'

Aggrieved by the appellate order, the petitioner preferred a revision petition to the General Manager. The General Manager confirmed the findings in the departmental inquiry but directed that the petitioner may be appointed as a fresh entrant for all purposes in the post in which he was working immediately prior to his removal from service. Aggrieved by these orders, the petitioner has presented this Writ Petition.'

3. Sri M. Papanna, Learned Counsel for the petitioner, urged the following contentions -

(i) The findings recorded on the charge was based on no evidence.

(ii) The appellate order was not a speaking order and, therefore, liable to be quashed.

(iii) The order in revision, in so far it directs that the petitioner should be treated as a fresh entrant in the Railway Department was without the authority of law.

4. As far as the first contention of the petitioner is concerned, the finding recorded against the petitioner as modified by the Revisional Authority is that he had unauthorisedly connected the electric wire to the water cooler even though he was not authorised to do so. Though the disciplinary authority and the appellate authority had found thepetitioner guilty of having made the unauthorised connection with the bad intention as indicated in the charge, the Revisional Authority has come to the conclusion that the bad intention attributed to thepetitioner in respect of this unauthorised action cannot be believed. This finding of fact is based onevidence. Therefore I am unable to accept the first contention.

5. As far as the second contention is concerned, it is true that the appellate order is not a speaking order. But in revision, the Revisional Authority has considered the case in its entirety and as pointed out earlier, it came to theconclusion that the charge was partly proved against the petitioner i.e., to the extent he had unauthorisedly connected electric wire to the water cooler. In view of the well considered order in revision on the findings recorded in the inquiry, the attack against the appellate order does not survive.

6. In support of the third contention, Learned Counsel for the petitioner submitted as follows : The Revisional Authority came to a definite conclusion that punishment or removal from service was not justified having regard to the nature of the charges held proved against the petitioner by that authority. In paragraph 4 of the order, the Revisional Authority stated that the petitioner be taken back to duty as a fresh entrant on the same pay and scale in which he was working at the time of his removal from service. The effect of the said order was, while the petitioner was taken back to the service, the entire service rendered by thepetitioner from the day of his first appointment for about 35 years stood forfeited and for doing so there was no power under the rules. In view of the decision of the Revisional Authority to take the petitioner back to service, theRevisional Authority could have substituted the penalty of removal from service by imposing any of the penalties other than those which would result in the determination of the tenure of the petitioner, which are set out in Rule 6 of the Railway Discipline and Appeal Rules, but could not forfeit the past service.

7. As against the above submission, Sri Dayananda, Learned Counsel for the Respondents, submitted as follows: The revisional authority was of the view that the charge was proved in a modified form.He, however, did not intend to disturb the penalty of removal from service.He therefore directed re-employment of the petitioner. For doing so he had the power under Rule 153 of the Railway Establishment Code, Vol. I. The said Rule reads :

'153. No person who has been dismissed from Government service or convicted of a criminal offence shall be re-employed or employed, without the sanction of the President, or, if the employment or re-employment is to anon-gazette post, without the sanction of the General Manager.

Note-If a Railway servant who is dismissed, removed or compulsorily retired from service, is to be re-employed by an authority vested with such powers either under this rule or delegations madethere under, this should not be done without the specific approval of the authorities indicated below :

(a) In cases where no appeal was preferred or no review was done.

(b) In cases where an appeal was preferred or review was done and the action of dismissal, removal or compulsory retirement from service was upheld on appeal/review.

The authority next higher than the authority who had dismissed removed or compulsory retired him from service. The authority higher than the appellate/ reviewing authority.

Learned Counsel submitted that under the above rule, as the General Manager was also the revisional authority, he had the power to direct re-employment of the petitioner even while confirming the order of removal from service.'

8. The submission made on behalf of the Respondents though at first sight appears to be attractive, on carefulconsideration, I find no substance in the contention. Rule 153, as its wording shows, has nothing to do with the imposition: of penalties under the Railway Discipline and Appeal Rules. That rule can be invoked by a person who has beendismissed from service either in the Railway Department or in any other department of the Central Government, to secure eligibility for re-employment or employment. To illustrate, if 'A' had been dismissed from service either in the Railway Department or in any other department of the Central Government, as according to the rules of recruit-ment, dismissal from service is a disqualification for appointment under the Central Government, he cannot be given either employment orre-employment. In such a case, he could only apply to the competent authority under Rule 153 requesting the authority to remove the disqualification to enable him to secure employment or re-employment. The above rule confers power on the President and the General Manager to consider the facts and circumstances of the case and to remove the disqualification. After such disqualification is removed by an express order, the person concerned could be employed or re-employed under the Government.

9.The note below Rule 153 regulates re-employment of railway servants who had been dismissed, removed or compulsorily retired from service and specifies the authority who is competent to accord permission for re-employment of such persons. The present case is not one in which the petitioner was seeking re-employment after removal from service. He had preferred Revision Petition against the removal itself. Therefore, the real question is about the scope of the power of the Revisional Authority under the Railway Discipline and Appeal Rules. Rule 6 of the said Rules prescribes various penalties which could be imposed against a Railway servant. They are:

(i) Censure ;

(ii) Withholding of his promotion for a specified period ;

(iii) Recovery from his pay of the whole or part of the pecuniary loss caused by him to the Government or Railway Administration by negligence or breach of orders ;

(iii-a) Withholding of the privilege of passes or privilege ticket orders or both.

(iv) Withholding of increments of pay for a specific period with further directions as to whether on the expiry of such period this will or will not have the effect of postponing the futureincrements of his pay ;

(v) Reduction to a lower time scale of pay, grade, post or service, with or without further directions regarding conditions of restoration to the grade or post or service from which the Railway Servant was reduced and his seniority and pay on such restoration to that grade, post or service ;

(vi) Compulsory retirement ;

(vii) Removal from service which shall not be a disqualification for future employment under the Government or RailwayAdministration ;

(ix) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or Railway Administration.

There is no penalty, by way of forfeiting the past service, which is indicated as one of the penalties which could be imposed against a railway servant. Therefore in exercise the power to impose a penalty the Disciplinary Authority or the Appellate Authority or the Revisional Authority have to select one or the other penalties specified in Rule 6. Forfeiture of past service not being one of the penalties prescribed under Rule 6, no such penalty could be imposed in a disciplinary proceeding.

10. In the case of N.M. Marigowda -vs- Deputy Commissioner, Mandya, W.P. 14047 of 1977 dt. 18-2-1982 a similar question arose out of an appellate order made by the Divisional Commissioner, Mysore Division under the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957. In that case also while setting aside the penalty of removal from service as harsh,the Divisional Commissioner directed that the appellant before him be taken back to service as a fresh recruit. The order was set aside by this Court. The relevant part of the order reads :

'4. Rule 8 of the K.C.S. (CCA) Rules, 1957 specifies the penalties which could be imposed on a civil servant of this State. Forfeiting of past service rendered by a Civil servant is not one of the penalties specified therein. Therefore, the Divisional Commissioner had no authority to impose such penalty. On this short ground, the order is liable to be set aside.'

A Similar order was made in the case of Satyanarayanarao -v.- Divisional Commissioner, Mysore, W.P. No. 8114 of 1977, date. 18-12-82.

11. Turning now to the facts of the case, after the Revisional Authority recorded a finding to the effect that the charge was proved and was of the view that the petitioner should be taken back to service, it could have imposed any one of the penalties specified in Rule 6 other than dismissal or removal from service or compulsory retirement which would result in the determination of the tenure of the petitioner. Instead, the Revisional Authority directed the re-employment of the petitioner as a fresh entrant. The effect of it is forfeiture of the benefit of about 35 years of service of the petitioner as a measure of penalty, for which there is no power under the discipline rules.

12. There is also another aspect which precludes the taking of the view that this is a case of re-employment. As far as employment or re-employment is concerned, the request must come from the person concerned and it is for the authorities concerned to concede the request or not. The petitioner never sought for re-employment and, there-fore, the question of giving him re-employment did not arise. Further the impugned order does not even say that it was a case of re-employment, but only says that thepetitioner be taken back to service as a fresh entrant. The impugned order is therefore without authority of law and is liable to be quashed.

13. Before concluding, it is necessary to observe that the petitioner has retired from service on 1-1-1983 and therefore it is for the General Manager to consider as to what order could be made under the rules.

14. In the result, I make the following order :

(i) The Writ Petition is partly allowed.

(ii) The order of the General Manager (Annexure-K) in so far it directed that the petitioner should be treated as a fresh entrant on the same pay and scale in . which he was working at the time of hisremoval from service is set aside and the order in so far it directs that thepetitioner be taken back to service remains undisturbed and the petitioner shall be entitled to all consequential benefits flowing from this order.

(iii) The General Manager shall be at liberty to consider as to whether any penalty other than dismissal, removal or compulsory retirement from service, could be substituted and to pass an appropriate order in accordance with law. If any such order is made the con-sequential benefits to which the petitioner is entitled to by the quashing of the impugned order shall be determined in the light of that order.

(iv) If no order is passed within six months from the date of this order, the petitioner shall be entitled to the benefit of the entire past service as if he had been in service without imposition of any penalty of removal from service and to get all consequential benefits.


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