Decided on June 16,2005



A.K.PATNAIK,J. - (1.) In this writ petition under Article 226/227 of the Constitution of India, the petitioners have challenged the order dated 22-9-1999 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur in Original Application No. 456 of 1991.
(2.) The facts briefly are that the respondent No. 2 was working as a Permanent Way Inspector under the South Eastern Railways. A departmental enquiry was initiated against the respondent No. 2. In the said departmental enquiry two articles of charge were framed against respondent No. 2. The two articles of charge are as follows :-- "Article I : That the said Shri B.P. Singh while functioning as PWI/MBY during 1986 had accepted 989 pcs. of B.G. Sal wooden sleepers/special from the associates of M/s. M.P. Export Corp. Ltd. without Booking Instructions, of Dy. GE/SLC/GRC or any instruction from his superior officers. By the above act Shri Singh failed to main absolute integrity devotion to duty and acted in a manner which is unbecoming of a Rly. servant and there by violated Rule 3(i), (ii) and (iii) of the RSC Rules, 1966. Article II : That during the aforesaid period and while functioning in the aforesaid office, the said Shri B.P. Singh has granted 12/EG-15 (Acknowledgment) for the aforesaid 989 Pcs. of B.G. Sal wooden sleeper's/specials quoting 6 Bls meant for other consignees and one of PWI/BMY. On the strength of those 13 EG-15, the contractor has claimed bill of Rs. 10,09,305.20 P to Dy. CE/SLC/GRC. He granted 13 Nos. clear EC-15 for 989 pcs. of sleepers/specials quoting 6 fake B.I. Nos. meant for some other units. The B.I. No. 303 was meant for PWI/BMY and the sleepers were passed at Depot No. 371 of Pendra Road, but Shri Singh received the materials from other depots of Dhamtari and Raipur. Thus, Shri Singh has failed to main absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Rly. servant as required under Rule 3(I)(i), (ii) and (iii) of the RSC Rules, 1966." The Enquiry Officer recorded findings in the enquiry report that the two articles of charge were proved against respondent No. 2 and the said findings were accepted by the Disciplinary Authority arid the respondent No. 2 was removed from service by order dated 25-10-1989 of the disciplinary authority with the observation that he was a person of doubtful integrity and was not a fit person to be retained in service. Aggrieved by the said order of removal, the respondent No. 2 preferred an appeal before the appellate authority. But before the appeal was decided, respondent No. 2 filed Original Application No. 456 of 1999 before the Central Administrative Tribunal, Jabalpur Bench, Jabalpur. The Tribunal after hearing the parties disposed of the Original Application by modifying the order of removal to an order of compulsory retirement with effect from the date from which the respondent No. 2 was removed from service Paragraphs 5 and 6 of the order dated 22-9-1999 of the Tribunal in the said O.A. No. 456 of 1991 which contain the reasons for modifying the order of removal to one of the compulsory retirement are quoted herein below :-- "5. We have duly considered the submission of both sides and minutely perused the records. It is true that the applicant was posted as Permanent Way Inspector in Bhilai Marshalling Yard where he had to see to the maintenance of Railways tracks. The applicant was required materials/stocks which were necessary for the maintenance. The said materials were supplied to the Railways by the M.P. Export Corporation Limited, Bhopal. It is alleged that during the period 1986-87, the applicant had received materials/stock, which on check was found to be short. The respondents in their reply themselves admit that the responsibility was not that of the applicant who was the P.W.I, but the Senior D.E.N., D.E.N. and the A.E.N. were equally responsible and they were aware of the problems of the Bhillai Marshalling Yard. If it be so, the materials supplied to the Railways ought to have been checked by the superior officers/authorities as well because the bills are to be ultimately passed through them. No doubt the misappropriation of materials might have been due to lack of devotion of duty on the part of the applicant as alleged, however, the fact remains that there was negligence on the part of the superior officers like the Sr. DEN and AEN who were not taken to task by the respondent-department for the reasons best known to them. Only the applicant was circled out and held responsible for the Government loss. 6. In view of what has been discussed above and after hearing the Counsel for both parties and having perused the records on file, we find that the applicant was not the sole person whose negligence attributed to the acceptance of sub standard material but some senior officers were also responsible and they were spared for the reasons best known to the official respondents. We also find that for shortage of 251 sleepers, utilized in track repairs, four junior P.W.I.s who, were also responsible for accounting and transaction were also spared by the official. In the circumstances, the punishment imposed upon the applicant is considered too harsh and, we are of the opinion that the same should be modified. In this connection we also rely on the decision of the Hon'ble Supreme Court in the case of B.C. Chaturvedi v. Union of India, : (1996)ILLJ1231SC . We accordingly dispose of this application and modify the impugned punishment of removal from service to that of compulsory retirement w.e.f. the date from which he was removed from service. The respondents shall take all necessary measures required, under the Rules for making payment of pensionary benefits, to the applicant to which he will be entitled to within six months from today."
(3.) Mr. Vinay Harit, Sr. Advocate appearing for the petitioners submitted that the two charges against the respondent No. 2 were serious in nature and, had been proved in the departmental enquiry. He vehemently argued that since it has been established in the departmental enquiry that the respondent No. 2 had failed to maintain absolute integrity in the discharge of his duty and has also misappropriated 251 numbers of New Wooden Crossings Sleepers and thereby put the Railway to heavy financial loss, the order of removal passed by the disciplinary authority was proportionate to the gravity of misconduct and should not have been interfered with by the Tribunal in the impugned order. He submitted that the Supreme Court has held in B.C. Chaturvedi v. Union of India and Ors., reported in : (1996)ILLJ1231SC , that it is only when the Tribunal finds that the punishment imposed by the disciplinary authority is shocking, it will interfere with the punishment and remit the matter back to the disciplinary authority or the appellate authority to reconsider the punishment to be imposed on the delinquent and only in exceptional and rare cases the Tribunal can impose a lesser punishment. He also relied on the decisions of the Supreme Court in Union of India and Anr. v. G. Ganayutham, reported in : (2000)IILLJ648SC as well as Canara Bank v. V.K. Awasthy, reported in AIR 2005 SCW 2005 for the proposition that the Tribunal will not interfere with the order of punishment unless the same is wholly irrational or illegal. He submitted that in this case, the Tribunal while reducing the punishment from one of removal to compulsory retirement has recorded some findings of negligence against some superior officers and junior officers which are not based on any material in the records of the departmental enquiry.;

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