Union of India and Others v. C.M. Chandrasekharan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 WP(C).No. 26827 of 2008 (S) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 262/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 28-05-2008 PETITIONER(S): ------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY,, HEADQUARTERS OFFICE, PARK TOWN POST,, CHENNAI - 3. 2. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE,, PARK TOWN POST, CHENNAI - 3. 3. THE PRINCIPAL CHIEF ENGINEER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE,, PARK TOWN POST, CHENNAI - 3. 4. THE SR.DIVISIONAL ENGINEER, SOUTHERN RAILWAY, MADURAI. 5. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, MADURAI DIVISION,, MADURAI. BY ADVS. SRI.C.S.DIAS,SC, RAILWAYS RESPONDENT(S): -------------- C.M.CHANDRASEKHARAN, S/O.MUNDAN, JUNIOR ENGINEER/II, PERMANENT WAY,, SIVAGANGA R.S. & P.O., PERMANENT ADDRESS, JAYAVILASAM, THENMALAI P.O., QUILON DISTRICT. R,R1 BY ADV. SRI.T.C.GOVINDA SWAMY R,R1 BY ADV. SMT.D.HEERA R,R1 BY ADV. SMT.R.R.REJITHA R,R1 BY ADV. SRI.G.SHYAM RAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 26827/2008 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF O.A.NO:262/2006 ALONG WITH ANNEXURES OF CAT/ERNAKULAM EXT.P2: -DO- REPLY STATEMET ALONG WITH ANNEXURES FILED IN O.A.NO:262/2006 OF CAT/ERNAKULAM EXT.P3: -DO- MISCELLANEOUS APPLICATION M.A ALONG WITH ANNEXURES IN O.A.262/2006 OF CAT/ERNAKULAM EXT.P4: -DO- ORDER DT.28.5.2008 OF CAT/ERNAKULAM IN O.A.NO:262/2006 JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------W.P(C) NO.26827 OF 2008 ---------------------------------Dated this the 22[nd ] March, 2016. ## JUDGMENT Surendra Mohan, J. The writ petitioners are the respondents in O.A.262/2006 of the Central Administrative Tribunal, Ernakulam Bench ('CAT' for short). They challenge Ext.P4 order by which, Annexures A1, A2 and A3 orders imposing punishment on the respondent herein has been interfered with and set aside for the reason that Annexure A1 was not passed by the person competent to pass the said order. 2. The petitioner was working as a Junior Engineer in charge of the track parameters. While he was posted at Quilon railway station of the Southern Railway, the derailment of a diesel coach took place on 23.8.2003 between Quilon and Kundara railway stations. With respect to the said incident WPC 26827/2008 2 disciplinary action was initiated against the respondent. A disciplinary enquiry was conducted. The Enquiry Officer found that two of the charges levelled against the respondent were not proved. However two charges were held to be proved. The fourth petitioner/disciplinary authority disagreed with the findings of the enquiry officer and passed Annexure A1 order dated 21.7.2004 removing the respondent from service. The respondent challenged the said order in a departmental appeal. The Appellate Authority by Annexure A2 dated 3.9.2004 interfered with the punishment and reduced the same to a punishment of reduction to the lower grade with minimum pay which was not limited to any period of time. The respondent took up the matter in revision. By Annexure A3 order dated 7.3.2005, the punishment was again reduced and limited to minimum pay over a period of five years. Dissatisfied with the orders Annexures A1, A2 & A3, the respondent approached the CAT by filing O.A.262/2006 challenging the entire disciplinary proceedings WPC 26827/2008 3 initiated against him. 3. It was contended in the O.A that there was violation of Art.311 of the Constitution of India. According to the respondent, his appointing authority was the second petitioner whereas, the impugned order Annexure A1 was issued by the fourth petitioner. The petitioners contested the O.A by filing a reply statement. According to the petitioners, the fourth petitioner was the disciplinary authority. According to them, as per the schedule of powers of disciplinary matters, the lowest appointing authority as far as the petitioner was concerned was the fourth petitioner. Therefore, he was fully competent to impose the punishment that was imposed by Annexure A1. 4. CAT considered the respective contentions of the parties on the above pleadings. The competency of the Senior Divisional Engineer to issue Annexure A1 order removing the petitioner from service was considered placing reliance on another order passed by the CAT in O.A.535/2005. Quoting WPC 26827/2008 4 extensively from the said order the CAT found the fourth petitioner was not the competent authority to initiate disciplinary action against the respondent. Therefore the impugned orders Annexures A1, A2 and A3 were set aside. It has been made clear in Ext.P4 that, the CAT has not considered the merits of the contentions put forward by the respondent and that, the competent disciplinary authority was at liberty to consider the enquiry report and to pass fresh orders in the matter. 5. According to Adv.C.S.Dias who appears for the petitioners, the order on which reliance has been placed in Ext.P4 had been the subject matter of challenge before this Court in WPC 14966/2008. As per judgment dated 30.6.2009 the said writ petition was disposed of sustaining the order of the CAT but, on a different ground. As per the judgment of this Court, liberty has been given to the disciplinary authority to start from the stage of over ruling the findings of the Enquiry Authority. For the above reason it is contended that, WPC 26827/2008 5 a similar direction should be issued in the present case also. It is further contended by the counsel for the petitioners that, since Annexure A1 order has been interfered with by the appellate and revisional authorities setting aside the order of removal from service of the respondent, competence of the disciplinary authority to impose the initial punishment has ceased to be of any relevance. For the above reason it is contended that the reasoning adopted by the CAT is faulty. 6. Adv.T.C.Govindaswamy who appears for the respondent on the other hand points out that, where the initial order is lacking in jurisdiction the said defect cannot be cured by the orders passed by the appellate or revisional authority. Reliance is also placed on a decision of the Apex Court in Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg [AIR 1977 SC 747]. According to the learned counsel, the order of the CAT does not call for any interference and the writ petition is only to be dismissed. 7. Heard. A perusal of Ext.P4 order of the CAT shows WPC 26827/2008 6 that, though Annexures A1, A2 and A3 orders have been set aside, the competent disciplinary authority has been granted the liberty to take appropriate action on the basis of the materials available. In view of the above, we do not find that any prejudice has been caused to the petitioners herein by the order of the CAT. A perusal of the judgment of this Court in WPC 14966/2008 on which reliance has been placed by the counsel for the petitioners shows that this Court has not interfered with or set aside the order of the CAT in OA 535/2005. This Court has only permitted the disciplinary authority to proceed with the disciplinary proceedings from the stage at which the disciplinary authority had differred from the findings of the enquiry officer. Therefore the reliance placed on the order in O.A535/2005, to find that the fourth petitioner lacked the authority to take action against the respondent, cannot be found fault with. For the above reason, the findings of the CAT on the said aspect is confirmed. WPC 26827/2008 7 8. The other contention that is put forward is that, since Annexure A1 order has been interfered with consecutively by the appellate and revional authorities, reducing the punishment that was imposed, the absence of authority on the part of the disciplinary authority was no more relevant. The appellate and revisional authorities being authorities who were duly empowered to pass the order Annexures A2 & A3, there was no justification for setting aside the said orders. However, we are unable to accept the said contention. The basic order being Annexure A1, an infirmity that goes to the root of the matter would render the same nonest and invalid. Annexures A2 and A3 being orders passed modifying only the punishment imposed by Anneuxre A1 cannot be considered to have rectified the defect from which Annexure A1 was suffering from the inception. The counsel for the respondent has placed reliance on paragraph 14 of the decision in Mysore State Road Transport Corporation v.Mirja Khasim Ali Beg (supra). We notice that, the dictum of the WPC 26827/2008 8 Apex Court relating to a similar infirmity is that, the defect cannot be cured by the appellate and revisional orders. The relevant portion of the said direction is extracted hereunder: “The second contention urged on behalf of the appellants that as the General Manager of the Mysore Government Road Transport Department confirmed on appeal the orders of dismissal of the first respondent that should be considered as substantial compliance with the provisions of Article 311(1) of the Constitution is, in our judgment, devoid of substance. The original order of dismissal of the first respondents being without jurisdiction and as such void and inoperative having been passed in contravention of the provisions of Article 311(1) of the Constitution, the order passed on appeal by the General Manager could not cure the initial defect.” In the result we do not find any grounds to interfere with the impugned order of the CAT Ext.P4. This writ petition is accordingly dismissed. Sd/- K. SURENDRA MOHAN Judge Sd/- P.V.ASHA Judge jj /True copy/ WPC 26827/2008 9