Union of India and others v. R. Harindrakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR &** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929** **WP(C).No. 28090 of 2006(S)** **---------------------------------------** **OA.781/2005 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ...............................................** **PETITIONERS:** - **--------------------** **1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3.** **2. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN POST, CHENNAI-3.** **3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.** **4. THE CHIEF VIGILANCE OFFICER, SOUTHERN RAILWAY, HEADQUARTERS, PARK TOWN P.O., CHENNAI-3.** **BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS** **RESPONDENTS:** **----------------------** **R.HARINDRAKUMAR, S/O. N.R.RAMAKRISHNA PANICKER, RTD. SENIOR CLERK PERSONNEL BRANCH, SOUTHERN RAILWAY, PALGHAT DIVISION, RESIDING AT "SIVASHAKTI", PATHIRI, DHONI P.O., PALGHAT.** **BY ADV. SRI.T.C.GOVINDA SWAMY SMT.D.HEERA SRI.P.NPANKAJAKSHAN PILLAI SMT.K.C.SARALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO: 28090/2006 S** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **EXT.P1. COPY OF THE LETTER DT. 21/2/2002 OF SRI. SURESH BABU, SPORT RELATIONS OFFICER.** **EXT.P2. COPY OF THE LETTER DT. 29/3/2001 OF SRI. S.P. PILLAI, OF DEPA OF PHYSICAL EDUCATION, KERALA AGRL. UNIVERSITY COLLEGE.** **EXT.P3. COPY OF THE STATEMENT DT. 30/06/00 GIVEN BY RESPONDENT HEREIN.** **EXT.P4. COPY OF THE DEPOSITION DT. 19/2/2003 OF SRI. SURESH BABU AS SW1, IN THE DEPARTMENTAL ENQUIRY.** **EXT.P5. COPY OF THE DEPOSITION DT. 23/5/2003 OF SRI. S.P. PILLAI, AS SW2 IN THE DEPARTMENTAL ENQUIRY.** **EXT.P6. COPY OF THE O.A. NO. 781/2005 FILED BY RESPONDENT HEREIN, IN CAT/ERNAKULAM, ALONG WITH ANNXURES.** **EXT.P7. COPY OF THE REPLY STATEMENT FILED BY RAILWAY IN O.A NO.781/2005.** **EXT.P8. COPY OF THE REJOINDER FILED BY RESPONDENT HEREIN IN OA NO. 781/2005 BEFORE CAT, ALONG ANNEXURES.** **EXT.P9. COPY OF THE ORDER DT. 1/09/2006 OF CAT/ERNAKULAM IN OA NO. 781/2005.** **EXT.P10. COPY OF THE LETTER NO. E(D&A) 88 RG 6 12 DT. 7/5/90 OF RAILWAY BOARD AS COMMUNICATED THROUGH LETTER DATED 10/07/90 OF HEAD QUARTERS OFFICE, S. RLY, MADRAS.** **EXT.P11. COPY OF THE LETTER NO. E(D&A) 2002 RG 6-36 DT. 25/11/2002 OF RAILWAY BOARD COMMUNICATED THROUGH P.B. CIRCULAR NO. 237/02.** **EXT.P12. COPY OF THE LETTER NO. E(D&A) 2003 RG-6-36 DT. 2/09/2003 OF RAILWAY BOARD.** **EXT.P13. COPY OF THE P.B. CIRCULAR NO. 161/2004 DT. 31/08/2004 ISSUED BY RAILWAY.** ## **RESPONDENT'S EXHIBITS** **NIL.** _True copy_ _tga_ ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.P(C).No.28090 of 2006 ========================** ## **Dated this the 18[th] day of January, 2008.** ## **JUDGMENT** ## **Balakrishnan Nair,J.** The respondents in O.A.No.781 of 2005 are the writ petitioners. The applicant therein is the respondent. The applicant filed the O.A. challenging Annexures A1 and A2 orders. Annexure A1 is an order passed by the Chief Personnel Officer imposing a penalty of compulsory retirement from service. The allegation against him was that he got employment under sports quota by producing a bogus certificate. The applicant appealed against Annexure A1 before the Statutory Appellate Authority. The said appeal was dismissed by Annexure A2 order. Challenging those orders,the O.A.was filed. The Tribunal upheld the contention of the applicant that the Chief Personnel Officer is not competent to impose the penalty of compulsory retirement from service. On that short ground, the application was allowed and Annexures A1 and A2 were set aside. The competent appointing authority was WP(C) 28090/06 -: 2 :- given liberty to pass fresh orders in the matter. The Railways feeling aggrieved by the finding of the Tribunal that the Chief Personnel Officer is not the appointing authority of the petitioner, filed this writ petition. 2. Rule 2(1)(a) of the Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as "the Rules") defines "appointing authority". It includes the authority which appointed the railway servant to such service, grade or post, as the case may be. The same is evident from Rule 2(1)(a)(iii) of the Rules. Rule 6 of the Rules deals with the various penalty that could be imposed on a railway servant. Compulsory retirement is penalty No.(vii), which is described as a major penalty under Rule 6 of the Rules. As per schedule II of the said Rules, a penalty of compulsory retirement from service can be imposed on Group D and C employees by the appointing authority or an authority of equivalent rank or any higher authority. The writ petitioners submitted that the Chief Personnel Officer is an officer who appointed the applicant. His admission on this aspect is contained in the appeal memorandum filed by him against Annexure A1 order. The said appeal memorandum is available in WP(C) 28090/06 -: 3 :- the paper book as Annexure A21. Special reference is made to paragraph 6(3) (running page 2 of that Annexure) which reads as follows: "The appointing authority viz. CPO had perused all original documents at the time of my appointment and having satisfied, sent me for trial and after satisfied with my physical performance, appointed me against a sports quota." In view of the said admission of the applicant that the Chief Personnel Officer appointed him and therefore in the light of the rules mentioned above, the said officer has the power to issue Annexure A1, it is submitted. 3. The learned counsel for the respondent - applicant submitted that in fact, this is a case where the General Manager, Railways issued the appointment order. The Chief Personnel Officer only issued the consequential orders directing the applicant to report for further proceedings. The learned counsel also pointed out that this fact is admitted by the respondent - applicant in paragraph 6 of the reply statement. The relevant portion of the reply statement reads as follows: "Regarding Para 4(C) it is humbly submitted WP(C) 28090/06 -: 4 :- that General Manager is the authority competent to make appointment against sports quota in group "C" category wherein the procedure followed is, approval of General Manager is obtained and office order issued by Chief Personnel Officer. Based on the certificate produced by the candidate, the candidates are normally subjected for a trial as said by the applicant. This respondent is not having any record to prove whether a trial was conducted before the applicant's appointment." The learned counsel also relied on Annexure A22 in support of his submission, the relevant portion of which reads as follows: "As the Railways are aware, in terms of Rule 2 (1)(a) of RS (D&A) Rules, appointing authority in relation to railway servant means the authority empowered to make appointment to the service of which the railway servant is, for the time being a member or to the grade of the service in which the railway servant is, for the time being included or the authority empowered to make appointment to the post which the Railway servant for the time being holds or the authority which actually appointed the Railway servant to such service, grade or post as the case may be, whichever is the highest authority. It is advised that the authority WP(C) 28090/06 -: 5 :- empowered to make appointment, referred to in Rule 2(1)(a) above, means the authority empowered to make appointment to the grade or post which the railway servant is holding, at the time of imposition of penalty. This authority may be higher or lower in rank than the authority which was empowered to make appointment at the time of induction of the Railway servant to the relevant grade or post or the authority which actually appointed him to that grade or post. The intention of the rule is that the penalties of dismissal, removal or compulsory retirement from service on a Railway servant should be imposed only by the highest of these authorities i.e., either by the authority which actually appointed the railway servant to the relevant grade or post or the authority which is empowered to make appointment to that grade or post at the time of imposition of penalty, whichever is the higher authority. The penalty of dismissal, removal or compulsory retirement from service should obviously not be imposed by an authority which have merely issued the offer of appointment or order of promotion, with regard to the appointment or promotion ordered by a competent authority higher to that authority." WP(C) 28090/06 -: 6 :- In view of the above facts, the learned counsel submitted that only the General Manager, Southern Railways or an officer superior to him alone is competent to impose penalty of compulsory retirement from service. So, the decision of the Tribunal is perfectly legal and valid. The learned counsel for the Railways in answer submitted that their case should be understood to the effect that the General Manager is the competent officer to sanction appointment under the sports quota. The Chief Personnel Officer is the appointing authority in relation to Group D and C employees and therefore, the appointing authority in the case of the applicant is the Chief Personnel Officer. Therefore, there is nothing wrong with the Chief Personnel Officer passing the impugned penalty. The learned counsel for the Railways also pointed out that the Tribunal rendered the impugned order relying on one decision of the Apex Court and also a Full Bench decision of this Court. Those decisions no longer lay down the correct legal position in view of the decision of the Apex Court in **Union of India and others** v. **Banwarilal and others** - 1990 Suppl. S.C.C. 374. WP(C) 28090/06 -: 7 :- 4. We notice that the applicant has not challenged the competence of the Chief Personal Officer to impose a penalty in his appeal. He has also admitted that the Chief Personnel Officer is his appointing authority. Now the records of appointment are not available with the Railways. The applicant also submits that he does not have a copy of the appointment order with him now. When the applicant himself admitted that the Chief Personnel Officer is the officer who appointed, we think, it is unnecessary for us to go further into the matter. The explanation offered by the Railways for their pleadings in the reply statement that sanction alone is given by the General Manager and appointment made by the Chief Personnel Officer has to be accepted. Further, we notice that Annexure A22 relied on by the applicant will clinch the issue. The appointing authority for the purpose of imposing penalty as per Annexure A22 is the authority competent to make appointment to the post held by the delinquent at the time of imposition of the penalty. It is common case that the Chief Personnel Officer is the appointing authority of the present post held by him when penalty was imposed. So the said officer is competent to impose the penalty of compulsory retirement. In WP(C) 28090/06 -: 8 :- view of the above position, we hold that the Chief Personnel Officer is competent to impose the penalty of compulsory retirement from service on the respondent. He does not dispute that the persons in his cadre who came through other channels can be dismissed or removed or imposed a penalty of compulsory retirement by the Chief Personnel Officer. The applicant cannot claim any special privilege on the ground that he was appointed in the sports quota. 5. In the result, the order of the Tribunal is set aside and the O.A. is restored to file. The Tribunal shall consider the other contentions of the applicant on merits in accordance with law and pass final orders in the O.A. as expeditiously as possible. The writ petition is allowed as above. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 18/1