- (1.) This petition under Article 226 of the Constitution of India has been filed by I. N. Srivastava. who was a confirmed Stock Verifier of Accounts Department in Northern Railway. Lucknow, working under the Senior Accounts Officer in the same Railways at Lucknow. He was attached to the Loco Workshop. Charbgsh. Lucknow, His primary duty consisted of verification of delivery of sold materials to the contractors in accordance with agreements. On 12-4-1966 the petitioner witnessed the loading of sold material Shop Sweeping and Rubbish and Iron Foundry Clinkers which was loaded in two trucks after weighment. After the trucks had passed out of the gate and had proceeded some distance thev were subjected to a raid by two raiding parties of the Railway Board. These were subjected to re-weighment in the presence of witnesses brought bv Vigilance On re-weighment it was said to have been found that the trucks contained 220 and 452 Kgs. material in excess of that which was shown to have been actually delivered. The contents of these trucks were placed under lock and key. Thereafter, the petitioner was served with an office memo dated 14-9-1967 bv which I. N. Srivastava was ordered to face disciplinary enauiry (Annexure 1 of the writ petition) and he was also served with charges which are contained in Annexures Nos. 2 and 3 of the writ petition. The submitted reply to the charges framed against him bv the Senior Accounts Officer, Northern Railway. Alambagh. Lucknow. who was the disciplinary authority of the petitioner. who exonerated the petitioner of all the charges on 6-7-1968, a fact appearing from letter of the General Manager. Northern Railway (Annexure No. 5 of the writ petition). After two years of the order of exoneration the General Manager reviewed the petitioner's case, set aside the order of exoneration holding that a departmental enauiry was not held in the case and appointed another Enquiry Officer, namely, Sri Kapoor Singh, and directed him to initiate action for imposition of major penalty and to carry on departmental disciplinary enauirv into the charges already framed and served upon the petitioner. This order is contained in the letter of the General Manager dated 6-6-1970 (Annexure No. 6 of the writ petition). Thereafter, the petitioner was served with a show cause notice dated 27-12-1972 proposing the penalty of his reduction to the next lower grade (Annexure No. 7 of the writ petition). The petitioner challenges the legal validity of the orders contained in Annexure Nos. 6 and 7 On the ground that the General Manager had no iurisdiction to review the order of exoneration of the petitioner after a lapse of two years and that no disciplinary proceedings were pending against the petitioner on 6-6-1970, he having been exonerated on 6-7-1968. The provision for review contained in Rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the 1968 Rules) did not apply and the General Manager had no Power to pass the impugned order contained in Annexure No. 6 under Rule 25. The order of review being on these contentions lacking in iurisdiction the show cause notice which was passed in implementation of that order was also illegal" The petitioner on these grounds prays for quashing of Annexures Nos. 6 and 7 by certiorari.
(2.) The above facts are not disputed bv the opposite parties in their counter-affidavit, but they contest that the General Manager had no iurisdiction to review the order of exoneration under Rule 25 of 1968 Rules. The opposite parties maintain that no disciplinary enauirv was in fact held by the Senior Accounts Officer who without any such enauirv took the view that the petitioner should be exonerated of the charges framed against him and he communicated this to the Deputy Chief Accounts Officer. The recommendation of the Senior Accounts Officer to the Deputy Chief Accounts Officer was only in the nature of a proposal. The petitioner was never in fact exonerated because no order exonerating him of the charges was actually issued or served upon the petitioner.
(3.) The first submission of the learned counsel for the petitioner is that order of the General Manager dated 6-6-1970 (Annexure No. 6 of the writ petition) reviewing the order of exoneration made by the Senior Accounts Officer was one without jurisdiction, because no such order could be passed under Rule 25 of 1968 Rules and in any case it could not be passed more than six months after the date of the order to be reviewed. The Railway Servants (Discipline and Appeal) Rules, 1968 were enacted bv the President under Article 309 of the Constitution regulating the prpcedure for disciplinary action against railway servants. It came into force on the 1st dav of October, 1968. Before this disciplinary Proceedings against Railway servant except those in the Railway Protection Force were regulated by Rules 1701 to 1738 contained in Chapter XVII of Indian Railways Establishment Code. Volume I. Rule 29 of 1968 Rules repeal the Discipline and Appeal Rules for railway servants other than those employed in the Railway Protection Force which were in force from 1-8-1961 and also orders issued thereunder in so far as they are inconsistent with these rules. Rule 29, however, contained saving provisions. The proviso to Rule 29 is couched in the following language: "Provided that (a) such repeal shall not affect the previous operation of the said rules, or any order made, or anything done, or any action taken, thereunder: (b) anv proceedings under the said rules, pending at the commencement of these rules shall be continued and disposed of. as far as may be, in accordance with the provisions of these rules as if such proceedings were proceedings under these rules" Bub-rule (4) of Rule 29 laid down: "(4) As from the commencement of these rules any appeal or application for review against any orders made before such commencement shall be preferred or made under these rules as if such orders were made under these rules. Provided that nothing in these rules shall be construed as reducing any period of limitation for any appeal or review provided bv anv rule in force before the commencement of these rules." Rule 1736 of R. I. contained also a provision for review of orders in disciplinary cases in the following words: "1736 (1) The Railway Board, a General Manager and anv officer not below the rank of a Deputy Head of Department or Divisional Superintendent specified in this behalf bv the General Manager shall have the power on their/his own motion or otherwise to revise anv order Ipassed by an authority subordinate to them/him. They/he - shall also have the power to reconsider an earlier order passed on an appeal bv them/him or by a predecessor if on a subseauent date either fresh light is thrown upon the case or by his conduct the employee has established a case for mitigation of the penalty imposed. Provided that no action under this sub-rule shall be initiated: (i), more than 6 months after the date of the order to be reviewed in cases where it is proposed to enhance the penalty imposed; and (ii) more than one year after the date of the order to be reviewed in cases where it is proposed to reduce or cancel the penalty imposed." Rule 25 to the extent relevant for the present purpose is in the following words: "25. Review (1) Notwithstanding anything contained in these rules (i) the President, or (ii) the Railway Board, or (iii) the General Manager of a Zonal Railway or an authority of that status in any other Railway Unit or Administration, in the case of a Railway servant serving under his or its control, or (iv) .................. (v).................. may at any time either on his or its own motion or otherwise call for the records of any enauiry and review anv order made under these rules or under the rules repealed by Rule 29 from which an appeal is allowed but from which no appeal has been preferred or from which no anneal is allowed and may after consultation with the Commission where such consultation is necessary (a) .................. (b) .................. (c) .................. (d) pass such other orders as it may deem fit. Provided that .................. Provided further that no power of review shall be exercised under this rule: (i) by the appellate or reviewing authority where it has already considered the appeal or the case and passed orders thereon: and (ii) by a reviewing authority unless it is higher than the appellate authority. Provided further that no action under this rule shall be initiated by (a) an appellate authority other than the President or (b) the reviewing authorities mentioned in Item (v) of sub-rule (1) (i) more than six months after the date of the order to be reviewed in cases where it is proposed to impose or enhance a penalty, or modify the order to the detriment of the railway servant: or (ii) more than one vear after the date of the order to be reviewed in cases Where it is proposed to reduce or cancel the penaltv imposed or modify the order in favour of the railway servant. Note 1..................... Note 2When review is undertaken by the Railway Board or the General Manager of a Zonal Railway or an authority of the status of a General Manager in any other Railway Unit or Administration, when they are higher than the appellate authority, and by the President, even when he is the appellate authority. this can be done without restriction of any time-limit." Discipline and Appeal Rules for railway servants other than those employed in the Railway Protection Force contained in paras 1701 to 1738 of R. I. (hereinafter referred to as the Old Rules) having been repealed ,bv Rule 29 of 1968 Rules the power of review could no longer be exercised under para. 1736 of R. I. One of the points urged bv the learned counsel for the petitioner was that the power of review could net be exercised under Rule 25 of 1968 Rules also because this case was not covered by the saving provision contained in clause (b) of Rule 29 (1) of the said Rules as the proceedings under the Old Rules were not pending at the commencement of 1968 Rules. This is not to my mind sound argument as the matter must be judged with reference to the language of Rule 25 and sub-rule (4) of Rule 29 of 1968 Rules. Sub-rule (4) expressly provides that anv application for review against an order made before the commencement of the 1968 Rules shall be preferred under the 1968 Rules and such orders although made before the commencement of 1968 Rules shall be deemed to be orders made under these Rules. Besides Rule 25 provides that power of review may be exercised in respect of an order made 'under these rule's or made under the rules repealed bv R. 29 from which no appeal is allowed. The order of exoneration is one from which no appeal is allowed and having been passed under the Old Rules, repealed by Rule 29, was subject to review in view of express provision of Rule 25. In view of Rule 29 (4) such an order will be deemed fictionally to be an order passed under 1968 Rules. Clause (b) of Rule 29 (1). to which learned counsel for the petitioner draws attention, has no application to the present case as it applies to those cases only where certain proceedings are pending at the commencement of 1968 Rules and by the repeal of those rules they cannot be carried on further. The problem arising in respect of such proceedings has been provided for by the Legislature in clause (b) of Rule 29 (1) bv enacting that such pending proceedings shall be continued and disposed of so far as may be in accordance with the provisions of these Rules the pending proceedings being treated as proceedings arising under these Rules. I, therefore, hold that the General Manager had jurisdiction to review the order of exoneration under Rule 25 of 1968 Rules and Para. 1736 of R. I. had no application on account of repeal by Rule 29.;