O.V. Ramesh Kumar v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938** **WP(C).No. 14895 of 2009 (S) ----------------------------** **AGAINST THE ORDER IN OA 575/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 25.9.2008** **PETITIONER:** **-------------** **O.V. RAMESH KUMAR, AGED 48 YEARS, S/O.C.M. GOPALAN, ASSISTANT STATION MASTER, SOUTHERN RAILWAY, MANGALORE, RESIDING AT, CHANDANA, POOKODE POST, VIA PATHAYA KUNNU, TELLICHERY.** **BY ADVS.SRI.M.A.SHAFIK SRI.R.SREERAJ SMT.SHAMEENA SALAHUDHEEN** **RESPONDENTS:** **--------------** **1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY,, CHENNAI -3.** **2. THE CHIEF OPERATIONS MANAGER, SOUTHERN RAILWAY, CHENNAI -3.** **3. THE DIVISIONAL RAILWAY MANAGER, PALGHAT DIVISION, SOUTHERN RAILWAY,, PALGHAT.** **4. THE SENIOR DIVISIONAL OPERATING MANAGER, PALGHAT DIVISION, SOUTHERN RAILWAY, PALGHAT.** **R1 TO R4 BY ADV. SRI.C.S.DIAS,SC, RAILWAYS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) No.14895/2009** **-2-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1- PHOTOSTAT COPY OF THE ORDER DATED 25.9.2008 IN O.A.575/2006 OF THE C.A.T.** **EXT.P2- PHOTOSTAT COPY OF THE O.A. NO.575/2006 FILES BEFORE THE CAT. EXT.P3-PHOTOCOPY OF THE REPLY STATEMENT FILED BEFORE THE C.A.T.IN O.A.575/2006.** **EXT.P4-PHOTOCOPY OF THE REJOINDER FILES IN O.A.575/2006 BEFORE C.A.T. EXT.P5-PHOTO COPY OF THE ADDL.REPLY STATEMENT FILES IN O.A.575/2006.** ## **RESPONDENT'S EXHIBITS: NIL.** **TRUE COPY** **P.S. TO JUDGE** **AL/-** **“CR”** ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(c) No.14895 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of June 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the applicant in O.A. No.575/2006 on the file of the Central Administrative Tribunal, Ernakulam Bench. The said O.A. was filed by the petitioner herein seeking for an order to quash Annexures A1, A2 and A3 orders being arbitrary and illegal. He has also sought for an order to grant him all consequential benefits as if Annexures A1, A2 and A3 orders are not in existence. The relief sought for in the O.A. was opposed by the respondents by filing Ext.P3 reply statement. The Tribunal, after considering the rival contentions, dismissed the O.A. by Ext.P1 order dated 25.9.2008. Feeling aggrieved by the said order, the petitioner is before this Court in this Writ Petition. 2. We heard the arguments of Smt. Shemeena Salahudheen, the learned counsel for the petitioner/applicant and also Sri. C.S.Dias, the learned Standing Counsel for Southern W.P.(c) No.14895 of 2009 :2: Railway, representing the respondents. 3. The pleadings and materials on record would show that, while the applicant was working as a Station Master at Tellicherry Railway Station, he was placed under suspension and disciplinary proceedings were initiated against him on the following charge; “ **CHARGE** : Sri.O.V.Rameshkumar, Staff No.J/T2121, SM/III/TLY while working as Station Master III/Tellicherry on 27.6.2002 was careless and negligent in his duties in that he failed to exchange Private Number with the Gatekeeper of LC No. 224 at KM 728/200-300 between Tellicherry-Mahe before authorising Train No.6345 Express to depart from Tellicherry. This has resulted in the collision between Train No.6345 Express and Matador Van No.KL.13F.4698 at Level Cross No.224, at about 08.54 hrs. on 27.06.2002, causing the death of the Van Driver and grievous injury to a school going boy seated in the van”. 4. The disciplinary proceedings initiated against the applicant culminated in Annexure A1 order of dismissal by the disciplinary authority. Against the said order, the applicant filed statutory appeal. The appellate authority by Annexure A2 order allowed the appeal in part and the applicant was ordered to be reinstated in service, after imposing the punishment of reduction in rank, status and salary. The said order was under challenge in a W.P.(c) No.14895 of 2009 :3: revision, which ended in dismissal as time barred by Annexure A3 order. The revisional authority has even considered the merits of the matter and declined interference on a finding that, the appellate authority has already modified the punishment, giving substantial relief to the applicant. Feeling aggrieved by the order of punishment, the applicant approached the Tribunal in O.A No.575/2006 seeking an order to quash Annexures A1, A2 and A3 orders and for other consequential reliefs. 5. The relief sought for in the O.A. was opposed by the respondents by filing Ext.P3 reply statement. In Ext.P3 reply, the respondents justified the punishment imposed on the applicant, contending that, since the findings of the disciplinary authority, appellate authority and revisional authority are based on relevant materials on record, no interference of the Tribunal is warranted. On receipt of Ext.P3 reply, the applicant filed Ext.P4 rejoinder, reiterating the contentions raised in the O.A., which was followed by Ext.P5 additional statement filed by the respondents. 6. The Tribunal, after considering the rival contentions, dismissed the O.A. by Ext.P1 order. The Tribunal found that, the W.P.(c) No.14895 of 2009 :4: charge levelled against the applicant was proved beyond doubt, both by the admission of the applicant as well as by the deposition by the prosecution witness and that, just because the Gatekeeper violated the rules, the applicant cannot escape from the responsibility. In the absence of any procedural infirmity pointed out in the conduct of the the disciplinary proceedings, the Tribunal held that no interference is warranted in the punishment imposed. 7. The sole issue that arises for consideration in this writ petition is as to whether Ext.P1 order passed by the Tribunal in O.A. No.575/2006 warrants interference of this Court, in exercise of the writ jurisdiction under Article 226/227 of the Constitution of India. 8. As held by the Apex Court in **Mahalingam R. v. Chairman, TNPSC (2013 (14) SCC 379)** the scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily concerned with the question whether the enquiry has been held by the competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also consider whether there was some tangible evidence W.P.(c) No.14895 of 2009 :5: for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment, except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court. 9. In **Union of India v. P.Gunasekaran (2015 (2) SCC 610)** the Apex Court reiterated that, in disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (i) the enquiry is held by a competent authority; (ii) the enquiry is held according to the procedure prescribed in that behalf; (iii) there is violation of the principles of natural justice in conducting the proceedings; (iv) W.P.(c) No.14895 of 2009 :6: the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (v) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (vi) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (vii) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (viii) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; or (ix) the finding of fact is based on no evidence. 10. In the decision in Gunasekaran’s case (supra), the Apex Court reiterated the settled law that, under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it W.P.(c) No.14895 of 2009 :7: may appear to be; or (vii) go into the proportionality of punishment unless it shocks its conscience. 11. In the instant case, as we have already noticed, the charge levelled against the applicant was that, he failed to exchange Private Number with the Gatekeeper of Level Cross No.224 at KM.728/200-300 between Tellicherry-Mahe, before authorising Express Train No.6345 to depart from Tellicherry. The alleged misconduct on the part of the applicant has also resulted in the collision between Express Train No.6345 and a Matador Van bearing registration No.KL-13/F-4698 at Level Cross No.224, causing death of the Van Driver and grievous injury to a school going boy seated in the van. 12. The Tribunal, on appreciation of the materials on record, with reference to Annexure A14 instructions relating to Level Cross No.224 at Tellicherry, the oral evidence of the prosecution witnesses including the Gatekeeper, who was examined as PW2, and also the admission made by the applicant in a representation submitted in his own handwriting dated 28.5.2003, found that the charge levelled against him stands proved beyond reasonable doubt. The Tribunal W.P.(c) No.14895 of 2009 :8: has also noticed that, the applicant could not point out any procedural infirmity in conducting the enquiry. 13. The applicant contended that, since he had admittedly informed the Gatekeeper regarding the movement of Express Train No.6347 (which passed through the level crossing in question within a time gap of 5 minutes) and ensured closure of the level crossing by duly exchanging the Private Number, even if he had inadvertently omitted to exchange the Private Number with the Gatekeeper for Express Train No.6345, the accident would not have occurred, had the Gatekeeper adhered to Rule 3.3.1 of Annexure A14 Station Working Rule applying to Tellicherry Station. Rule 3.3.1 of Annexure A14 provides that, the level crossing in question, which shall normally kept closed for road traffic, shall be opened for road traffic only when there is no train movement over the level crossing. Such opening shall be with the consent of the Station Master, Tellicherry, supported by a Private Number. 14. As the Station Master on duty, it was the primary responsibility of the applicant to ensure proper exchange of 'Private Number' to the Gatekeeper, in order to ensure that the level W.P.(c) No.14895 of 2009 :9: crossing in question is closed for safe movement of the train and the passengers travelling in it. In such circumstances, merely for the reason of any lapse on the part of the Gatekeeper, the applicant cannot escape from his responsibilities and as such, he cannot be absolved from the charge levelled against him. Moreover, when the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment, except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court. We also notice that, though the disciplinary authority has taken a serious view in the matter and imposed the severe penalty of removal from service, the appellate authority has taken a very lenient view and modified the order as one imposing the punishment of reduction in rank, status and salary. Even though the review petition filed by the applicant was beyond the limitation period, the revisional authority has even considered the merits of the matter W.P.(c) No.14895 of 2009 :10: and declined interference on a finding that appellate authority has already given substantial relief to the applicant. It was in such circumstances, the Tribunal declined interference by Ext.P1 order holding that, in the absence of any procedural infirmity pointed out in the conduct of the the disciplinary proceedings, no interference is warranted in the punishment imposed. 15. It is trite law that, while testing the correctness or otherwise of an order passed by a Tribunal or any other quasijudicial authority, in exercise of the writ jurisdiction under Article 226/227 of the Constitution of India, this Court plays only a limited role. As has been repeatedly held by the Apex Court, the function of the High Court, in such proceeding is not appellate in nature and as such, finding of a fact arrived at by a Tribunal or a quasi-judicial authority, cannot be interfered with upon re-appreciation of evidence. In such matters, the High Court is concerned with the determination of the question as to whether the Tribunal has or has not acted within the limits of its jurisdiction, or has acted in breach of the principles of natural justice in exercise of its jurisdiction, or whether the order of the Tribunal or quasi-judicial authority is W.P.(c) No.14895 of 2009 :11: vitiated by mala fides or perversity. In that view of the matter, it is not open to this Court, while exercising the writ jurisdiction under Article 226/227 of the Constitution of India, to convert itself into a court of appeal and examine the correctness of Ext.P1 order of the Tribunal or decide the appropriate view to be taken or the order to be made. In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **P.R.RAMACHANDRA MENON JUDGE** **Sd/-** **ANIL K.NARENDRAN JUDGE** al/-