Union of India through the General Manager, Southern Railway, and others v. K. Reghupathy and Central Administrative Tribunal, Ernakulam Bench

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938** **WP(C).No.34992 of 2008 (S)** ## **--------------------------** **AGAINST THE ORDER IN OA 813/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 16.1.2008** **PETITIONER(S):** - **-------------** **1. UNION OF INDIA THROUGH THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTRS OFFICE, PARK TOWN, CHENNAI-3.** **2. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, DIVISIONAL OFFICE, PALGHAT DIVISOIN, PALGHAT.** **3. THE SENIOR DIVISOINAL OPERATIONS MANAGER, SOUTHER RAILWAY, DIVISIONAL OFFICE, PALGHAT DIVISION, PALGHAT.** **4. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, DIVISIONAL OFFICE, PALGHAT DIVISON, PALGHAT.** **5. THE STATION MANAGER, SOUTHERN RAILWAY, ERODE JUNCTION, ERODE.P.O.** **BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.C.S.DIAS, STANDING COUNSEL, RAILWAYS** **RESPONDENT(S):** - **--------------** **1. K.REGHUPATHY** - **S/O. THIRUMAN (ALIAS) KANNAIYAN, MAIL GUARD, SOUTHERN RAILWAY, ERODE, SALEM DIVISION, TAMIL NADU, RESIDING AT NO.15/31-A, KAMARAJAPURAM, CMC COLONY, COIMBATORE-2.** **2. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS, REGISTRAR, KALOOR** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SRI.G.SHYAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-07-2016, ALONG WITH W.P.(C).2633/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.34992 of 2008 (S)** ## **APPENDIX** ## **PETITIIONER'S EXHIBITS** **-----------------------** **EXT.P1 - TRUE COPY OF O.A.813/2005. EXT.P2 - TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONERS HEREIN EXT.P3 - TRUE COPY OF REJOINDER FILED BY 1ST RESPONDENT. EXT.P4 - TRUE COPY OF ORDER DATED 14.10.1999 ISSUED BY VIGILANCE BRANCH OF SOUTHERN RAILWAY. EXT.P5 - TRUE COPY OF CAT ORDER IN O.A.813/2005 ISSUED ON 16.1.2008.** **RESPONDENT'S EXHIBITS** **---------------------** ## **NIL** **/TRUE COPY/** **P.A. TO JUDGE** **sou.** ## **P.R.RAMACHANDRA MENON, J. & ANIL K. NARENDRAN, J.** **------------------------------------------------W.P.(C) Nos.34992 of 2008 & 2633 of 2009 ---------------------------------------------Dated this the 8[th] day of July 2016** ## **J U D G M E N T** ## **Ramachandra Menon, J.** Both these writ petitions have been filed by the Railways as aggrieved of the common verdict passed by the Central Administrative Tribunal, Ernakulam intercepting the course of action pursued by the Railways against the first respondent for having sublet the 'quarter' given to him for the past several years, quite contrary to the departmental instructions/orders in this regard. By virtue of the said misconduct, apart from cancellation of the allotment and realisation of damage rent, the first respondent was also inflicted with the punishment of reduction in pay to a lower scale for a period of 36 months with recurring effect, which is a 'major penalty'. 2. According to the applicant, if at all the above misconduct was proved, in so far as the subletting was in favour of an employee of the Railways, it could only be a 'minor penalty', unlike in the case of subletting to a stranger/outsider, when alone can it be by way of a procedure for imposing major penalty. The challenge raised by the W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 2 :- Department before this Court is that the observations made by the Tribunal are thoroughly wrong and unsustainable in all respects, in so far as the materials borne out by the records have been simply given a 'go-bye' and even the admissions made from the part of the applicant and the facts established in the enquiry as to the instance of subletting have been ignored, by wrongly observing that the departmental authorities were simply acting on the directions given by the Vigilance Department signing on dotted lines. This, according to the petitioners, is not at all correct and hence sought to be intercepted in these writ petitions. 3. Heard Mr.C.S.Dias, the learned Standing Counsel appearing for the Railways and Sri.T.C.Govinda Swamy, the learned counsel appearing for the first respondent at length. 4. The first respondent was working as a Goods Mail Guard in the Railways and he was allotted the 'quarter' bearing No.137-A at Erode from 29.4.1987 onwards. Various instances of subletting of the 'quarter' for personal benefits by the allottees and rampant misuse, when several eligible hands were waiting in the queue, had come to the notice of the Railways, upon which, a Circular dated 28.8.2000 was issued to all concerned to curb the menace of subletting; by constituting a Committee of four officials ensuring W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 3 :- presence of a female member in the manner as specified therein. As per the said Circular, once the instance of subletting was found out, five different causes of action were to be pursued, which are as given below :- - “i) The Railway employee who was found guilty of subletting may be taken up under DAR for having violated Rule No.15A of Railway Services (Conduct) Rules, 1966. - ii) cancellation of allotment order of the quarters. This order should contain a time limit of 15 days to vacate the quarters. - iii) If the employee does not vacate the quarters within the time limit of 15 days, the continued occupation after the expiry of the time limit will be treated as unauthorised and damaged rate of rent should be recovered. - iv) Eviction proceedings should be initiated immediately after the expiry of 15 days time limit under the provisions of Public Premises (Eviction and Unauthorised Occupants) Act, 1971. - v) In the case of subletting, if the unauthorised occupant happens to be railway servant he will also be taken up under DAR for having violated Rule No.3(1)(i) & 3(1)(iii) of Railway Services (Conduct) Rules, 1966 and if he is in receipt of HRA, the same should be disallowed from the date of detection of unauthorised occupation. If it is proved that he has been in unauthorised occupation from a prior date, HRA paid during the period should be recovered.” 5. In furtherance to the constitution of the Committee, there was a surprise inspection on 23.3.2001 in the 'quarter' of the first W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 4 :- respondent, whereupon, it was found that the first respondent was not residing there and that the same was occupied by another Railway employee, by name, Shanmugha Sundaram and his family. A statement was taken from the wife of the Shanmugha Sundaram then and there; followed by such other proceedings. On coming across the serious instance of misconduct as above, Annexure A2 proceedings dated 30.10.2002 was issued by the competent authority to cause cancellation of the quarters and it was accordingly, that Annexure A3 was issued on 10.11.2002 cancelling the allotment. 6. On receipt of Annexure A3, the first respondent surrendered the premises, though under protest and submitted Annexure A4 representation. Annexure A5 came to be issued to the first respondent on 16.1.2003, in response to which, Annexure A6 explanation was submitted on 31.1.2003. The contents of Annexure A5 were confirmed as per Annexure A7 issued on 10.3.2003. The total liability towards 'damage rent' payable for the period of subletting (1992-2001 - for 93 months) was computed as `1,02,217/and the same was required to be satisfied. The first respondent preferred Annexure A8 representation on 22.10.2003, where, it was pointed out that, as per the proceedings of the Railways, it was W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 5 :- found that one Ramesh Babu and Shanmugha Sundaram were also occupying the 'quarter' at different points of time and by virtue of the relevant norms/orders issued in this regard, they were also liable to satisfy the due amount, accordingly; thus requesting the Railways to recover the amount from the said persons by names, Ramesh Babu and Shanmugha Sundaram as well. In the course of other proceedings, it is seen that the entire 'damage rent' of `1,02,217/- has been satisfied by the first respondent. 7. While so, Annexure A1 charge sheet came to be issued to the first respondent in respect of the misconduct of subletting, with intent to proceed with disciplinary proceedings. In the statement of imputations given to the first respondent, the various instances/ incriminating circumstances were specifically adverted to. The materials procured; especially, the family ration card with residential address given as 'quarter No.137-A, Railway colony' showing the family composition as 'Shanmugha Sundaram, his wife and two children' and the salary slip for the period ending on 15.3.2001 in the name of Shanmugha Sundaram were referred to. The residence of Shanmugha Sundaram was further sought to be confirmed with his declaration of residential address as '137-A, Railway quarters, Erode' in the 'Pass Register' maintained at SMR's W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 6 :- office, Erode. Further reference was made to a receipt in respect of refill (gas cylinder) dated 26.3.2001 with consumer number 1980, showing the address as '137-A, Railway quarters, Erode'. A reference to the 'Voters list' for the year 2001, wherein, the name of Shanmugha Sundaram and his wife figured against 'quarter No.137A, Railway quarters', falling under Division '1' Assembly Constituency No.120 of page No.4, was also adverted to. Similarly, the sequence of events as to occupation of the 'quarter' by other persons like Ms.Baby during the period from April 1992 to August 1994 and Ramesh Babu, Passenger Guard/Erode staying in the said 'quarter', 137-A, for a period of 11 months from January to November, 1998 have also been referred to therein. 8. Coming to the case of the first respondent, the statement recorded from him on 27.3.2001 was cited, where he had stated that he had been residing at 15/31-A, Kamarajapuram, CMC Colony, Coimbatore-2 for the past 16 years. The family ration card showing the said residential address, the salary slip for the period ending on 15.3.2001, the Telephone connection obtained in the said address etc. were also specifically mentioned therein. It is further stated that in the 'Pass Register', entry was made that the first respondent had given his residential address as '15/31, Kamarajapuram, W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 7 :- R.S.Puram, Coimbatore-2'. It was with reference to all these factual particulars, that the possession was sought to be explained by the delinquent employee. 9. An enquiry was conducted in tune with the relevant provisions of law and adhering to the principles of natural justice. As many as 27 documents were produced and 12 witnesses were examined. On conclusion of the enquiry, a detailed report was submitted by the Enquiry Officer, wherein, the first respondent was found guilty of the charges levelled against him. Based on the contents of the enquiry report, the punishment as mentioned already was inflicted upon the first respondent, as per Annexure A20 in W.P.(C) No.2633 of 2009. Though the first respondent preferred an appeal and thereafter a revision, the same did not turn to be fruitful and both the appeal as well as the revision came to be dismissed as per Annexures A23 and A27 respectively. 10. The course of action pursued by the Railways by way of realisation of 'damage rent' and disciplinary action came to be challenged by filing O.A.Nos.811 and 813 of 2005 before the Tribunal. The reliefs were resisted from the part of the Railways by filing a detailed reply statement and producing the relevant documents. After hearing both the sides, the Tribunal held that the W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 8 :- action taken against the applicant and cancellation of allotment were before completion of the disciplinary proceedings and further that the disciplinary authority was virtually acting as directed by the Vigilance Officer, signing on dotted lines, which was not correct or sustainable. Accordingly, the punishment was set aside, intercepting the orders passed by the authorities concerned; simultaneously ordering refund of the entire 'damage rent' already recovered from the employee. Aggrieved thereby, the Railways have approached this Court by filing W.P.(C) No.34992 of 2008 challenging the order in O.A.No.813 of 2005 in respect of 'damage rent' and W.P.(C) No.2633 of 2009 arising from O.A. No.811 of 2005 in relation to the disciplinary proceedings. 11. Learned Standing counsel appearing for the Railways submits that the Original Application itself was a 'time barred' one and a specific pleading was raised in the reply statement to the effect if was not maintainable in the said circumstance. It is also pointed out that there is absolutely no plea of any irregularity with regard to the conducting of domestic enquiry; despite which, the proceedings (Annexures A31 and A34 produced along with the rejoinder) were set aside, for which, there was no prayer in the Original Application. By virtue of the law declared by the Supreme W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 9 :- Court, that no relief can be granted, which is actually not sought for. The relief granted by the Tribunal, without having the Original Application amended in any manner and challenging the adverse proceedings, setting aside of A31 and A34 is beyond all canons of law, submits the learned counsel. 12. It is brought to the notice of this Court by the learned Standing Counsel appearing for the Railways that sufficient opportunity was given to the first respondent/applicant, to go through the relevant records, which were sought to be relied on in the enquiry and all the witnesses were cross examined by him. The course and events were categorically asserted by the concerned witnesses including the occupants of the 'quarter', which in fact was allotted to the first respondent/applicant. The collection of rent/consideration by him also stands asserted by the persons/ witnesses, by names, Ramesh Babu and Shanmugha Sundaram, though payment of any amount is denied by the other person, by name, Ms.Baby, who however conceded that she was also residing in the 'quarter' as permitted by the applicant. 13. The learned counsel appearing for the first respondent/ applicant submits that the 'quarter' was never sublet by the first respondent/applicant and that he had only permitted the co-workers W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 10 :- (who were finding it extremely difficult for getting shelter), to reside in his 'quarter' and that he had never obtained any consideration, remuneration or rent in this regard. It is also pointed out that, even going by the contents of the Circulars/instructions issued by the Railways, even if there is any instance of subletting, if the same is in favour of an employee of the Railways, the proceedings can be pursued only as applicable in the case of imposing of a 'minor penalty', whereas, in the instant case, the steps pursued by the Railways are in relation to imposition of a 'major penalty'. The answer given by the learned Standing Counsel for the Railways in this regard is that, there is no dispute with regard to the fact that the subletting effected by the first respondent/applicant was in favour of an employee of the Railways, but three different instances were there and three different families were inducted at different points of time. It is also pointed out that such delinquency continued for nearly one decade and by virtue of Clause No.3 as contained in the very same Circular, each case has to be considered separately, depending upon the facts and circumstances and as such, it was open for the Railways to have invoked the said clause. Learned counsel also points out that finalisation of disciplinary action is not a 'sine qua non' to order realisation of 'damage rent', W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 11 :- by virtue of paragraph 1711 of IREM Vol.II, which aspect was not properly considered by the Tribunal, despite the assertion made in this regard. 14. The verdict passed by the Tribunal has virtually resulted in extending premium to the wrong-doer, which is not correct in view of the law declared by the Supreme Court in **Union of India** v. **Sisir Kumar Deb** [(2010) 15 SCC 788]. In response to the contention of the applicant that no 'damage rent' has been realised from the persons, who were actually occupying the 'quarter' or that no action has been taken against such employees of the Railways, the learned Standing Counsel submits that, merely for the reason that no action has been taken against other similarly situated persons, who may be delinquent, it cannot be said that proceedings cannot be taken against the petitioner, who is actually delinquent. Reliance is sought to be placed on the verdict passed by the Supreme Court in **State of W.B. and others** v. **Sultan Singh** [(1998) 8 SCC 477] (paragraph 4). Reliance is also sought to be placed on the verdict passed by the Supreme Court in **S.D.Bandi** v. **Divisional Traffic Officer, Karnataka State Road Transport Corporation and others** [(2013) 12 SCC 631], referring to various W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 12 :- guidelines and explaining how to curb the menace of subletting, giving various suggestions to be implemented. 15. The fact that the 'quarter' was allotted to the first respondent/applicant and that the same came to be occupied by different persons like, Ms.Baby, Ramesh Babu, Shanmugha Sundaram and his family are borne out by the records, particularly, the ration card, Pass Register and so many other documents discussed herein before. The factual position is not disputed by the applicant as well, whose explanation is that it was only because of philanthropic concern; ie, by way of humanitarian consideration, that he had permitted such persons/employees to occupy the 'quarter'. Even if it is assumed that no amount was obtained as rent while permitting another person, who is not a member of the family to reside in the 'quarter', without approval of the Railways, it amounts to 'subletting' and is a misconduct. In the case of the applicant, the deposition made by the concerned witnesses (produced before the Tribunal and also forming part of the proceedings filed before this Court) clearly revealed that atleast Ramesh Babu and Shanmugha Sundaram have deposed that they were paying amounts to the applicant and as such, the action pursued by the Railways could not have been simply brushed aside W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 13 :- by the Tribunal on hyper technical grounds, extending misplaced sympathy to the wrong-doer. 16. As mentioned already, the main reason for interference made by the Tribunal is that the disciplinary authority was acting as dictated by the Vigilance authority. It was accordingly, that those instructions as contained in Annexures A31 and A34 were also intercepted, though there was no prayer in this regard. The Tribunal has observed in paragraph 15 of the verdict under challenge that the Chief Vigilance Officer had instructed the Divisional Railway Manager (DRM) to nominate 'his own man', Shri.V.D.Sunny as the Presenting Officer, which is stated as obeyed by the DRM. The observation “his own man” is not of good taste and it casts an aspersion that the person, by name, V.D.Sunny was sought to be appointed as the Presenting Officer with a hidden agenda. It remains a fact that Mr.V.D.Sunny is a Railway employee and his role is only as Presenting Officer, that is; as in the case of an advocate and nothing more. He is not a witness, nor is an authority to adjudicate the issue. It was open for the Railways to have appointed anybody as a Presenting Officer of their choice. Further, the contents of Annexures A31 and A34 reveal that no direction was given by the Vigilance authority to proceed with the matter in a W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 14 :- given manner. What is stated in Annexure A31 is only a recommendation. Similarly, A34 is only a matter of advice to the officers concerned, as to the course of action. This appears to be in tune with the course of action to be taken by the Railways, whenever such instance of subletting occurs and a misconduct is revealed, necessitating realisation of 'damage rent'. It is obligatory for the departmental authorities concerned to pursue appropriate action in accordance with the relevant Circulars/instructions in this regard and merely for the reason that the Vigilance authority had alerted the disciplinary authority in this regard, it cannot be said that the disciplinary authority was simply signing on the dotted lines. 17. The learned counsel for the respondents has sought to rely on the decision reported in **K.G.A. Hotels & Resorts Pvt. Ltd.** v. **State of Kerala** [2015 (2) KLT 683] contending that no authority is supposed to sign on dotted lines and on such an event, it is liable to be declared as bad and is to be intercepted. This does not apply to the case in hand in so far as the disciplinary authority has considered the matter independently, with proper application of mind and the position is revealed from the pleadings and other materials on record, particularly, the evidence let in. Even the W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 15 :- applicant/first respondent has conceded the factum of allotment of the 'quarter' to him; the act of accommodating some other Railway employees to reside in the 'quarter' allotted to him and further that his family was actually residing in Coimbatore. The materials collected by the Railways as mentioned already including the 'Pass Register' reveal that the occupants of 'quarter' No.137-A were not the applicant and his family. This being the position, the factum of 'subletting' is made out; which aspect has been simply ignored by the Tribunal. When the factual position/insinuation has been established, based on the evidence let in, it cannot be said that the disciplinary authority had simply signed on the dotted lines. We find that the finding and reasoning given by the Tribunal in this regard are not correct or sustainable. 18. Another aspect to be noted is with regard to rigour of proof in disciplinary proceedings. There is no challenge to the relevant rules, instructions, orders or as to the course of action to be pursued by the Railways in respect of the instance of subletting, ie; charging of 'damage rent', cancellation of the 'quarter' and the disciplinary action to be taken. The rigour of proof, when it comes to disciplinary proceeding, stands on different footing where 'preponderance of probability' is sufficient to arrive at a finding. In W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 16 :- the instant case, it has been substantiated by the Railways that the 'quarter' No.137-A was being occupied by some others, who were not members of the family belonging to the first respondent. The 'quarter' was allotted to the applicant way back in the year 1987 and during the period from 1992 to 2001, it was being occupied by different persons and their families. The position has been conceded by the applicant himself as revealed from 'Ground (C)' of the Original Application No.811 of 2005 filed before the Tribunal, which is extracted below for convenience of reference :- “It is respectfully submitted that some time around 1992 the applicant was directed to occupy the Quarters No.137 A since it was vacant and no demand was there from the eligible persons. The quarters No.137 A belongs to the pool of “essential category”. The applicant was staying there with family for some time and subsequently he shifted his family to Coimbatore for educational purpose of his daughters. Since it was a spacious quarters for a single individual, he requested the sixth respondent to permit him to vacate the quarters. However due to the extant orders prohibiting such vacation by the essential category staff the sixth respondent refused to permit the applicant to vacate the quarters. In due course the demand for Erode increased and many staff were not in a position to get quarters after their transfers to Erode. During such occasions, due to the sustained request made by the employees, the applicant allowed the staff to stay with him for a shorter W.P.(C) Nos.34992 of 2008 & 2633 of 2009 ## -: 17 :- period till they get quarters or suitable accommodation outside. This was done after informing the sixth respondent under whose the quarters was lying and recording such stay in all the relevant registers at Erode without hiding this fact. The Sixth Respondent has recorded this fact in all the official records. It is true that the applicant did not make a request for sharing of accommodation, which was purely to a bonafide belief that the employee who sought the sharing only had to apply for such sharing of accommodation. However the employees informed the applicant that they have advised the sharing of accommodation to the divisional office. It is pertinent to note that no rent was either charged or received by the applicant. It was done purely on humanitarian ground and there was no question of subletting.” The version put forward by the applicant was that he actually wanted to vacate the building/quarter as it was too big for him, for a single person; but, he was never permitted to vacate the quarter by the Station Master. This Court finds it difficult to glibly swallow the said version without a pinch of salt. This by itself would indicate the fact that the first respondent/applicant was not having any consistency in the case projected before the Tribunal and before this Court. In the said circumstances, the course of action pursued by the Railway cannot be deprecated and so also the case with regard to the realisation of the 'damage rent', which is done in accordance ## W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 18 :- with the relevant Rules and instructions. Accordingly, the verdict passed by the Tribunal intercepting the order in O.A.No.813 of 2005 and ordering refund of the amount to the applicant/first respondent has to be set aside. 19. Coming to the order passed by the Tribunal in O.A.No.811 of 2005, which is the subject matter of W.P.(C) No.2633 of 2009, as mentioned already, in the case of a subletting to a Railway employee, the proceedings as per the orders/Circulars issued by the Railways could have been only for imposing a minor penalty. The penalties of different nature, minor and major, as discernible from Rule 6 of the Railway Servants (Discipline & Appeal) Rules, 1968, are extracted below :- **“6. Penalties.** The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Railway servant namely :- ## **Minor Penalties** (i) Censure : (ii) Withholding of his promotion for a specified period ; (iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government or Railway Administration by negligence or breach of order ; (iii)(a) With-holding of the privilege of Passes or Privilege Ticket Orders or both ; W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 19 :- (iv) Withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period this will or will not have the effect of postponing the future increments of his pay. ## **Major Penalties** (v) Reduction to the lower stage in the time-scale of pay for a specified period, with further directions as to whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay ; (vi) Reduction to a lower time scale of pay, grade, post or service, with or without further directions regarding conditions of restoration to the grade or post or service from which the Railway servant was reduced and his seniority and pay on such restoration to that grade, post or service ; (vii) Compulsory retirement ; (viii) Removal from service which shall not be a disqualification for future employment under the Government or Railway Administration. (ix) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or Railway Administration. Provided that in case of persons found guilty of any act or omission which resulted or would have, ordinarily, resulted in collisions or railway trains, one of the penalties specified in clauses (viii) and (ix) shall ordinarily, be imposed and in case of passing Railway signals at danger, one of the penalties specified in clauses (v) to (ix) shall, ordinarily, be imposed and where W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 20 :- such penalty is not imposed, the reasons therefore shall be recorded in writing.” This Court finds considerable force in the submission made by the learned counsel for the first respondent/applicant to the effect that the said respondent has been inflicted with a 'major penalty' as it appears in Rule 6 (5). It is true that three different instances of subletting were involved during the period from 1992 to 2001, but it also remains a fact that the Railways were sleeping on arm chair, without taking any action to see that no subletting was being done; despite the specific rules and instructions issued in this regard. On the other hand, the documents maintained by the Railways including the 'Pass Register' revealed the particulars of persons, who were occupying the 'quarter' No.137-A, but no cross verification or doubt was expressed questioning the authority of the person concerned to reside in the said 'quarter'; nor was the applicant confronted with such instances of subletting. Had appropriate action been taken by the Railways then and there, no second instance of subletting would have been there, after the first one during the year 1998. It is also a matter to be borne in mind that the Railway employees, who are occupying the quarters, on subletting, are also equally to be blamed and they are also liable to satisfy the 'damage rent'. But, admittedly, no action has been taken against them. It is true that merely for the W.P.(C) Nos.34992 of 2008 & 2633 of 2009 -: 21 :- reason that no action has been taken against such other employees, the delinquent employee as in the instant case cannot be set free. But this must have a bearing with regard to the extent of punishment to be imposed upon him and we find that the 'major penalty' under Rule 6(v) is not required to be imposed. We find it appropriate to have it modified as punishment under Rule 6(iv) of the Railway Servants (Discipline & Appeal) Rules, 1968; without any variation with regard to the extent of '36 months' as already ordered. We also make it clear that it would only be without cumulative effect. Subject to the above, the verdict passed by the Tribunal stands intercepted and modified. Further steps shall be pursued by the Railways to give effect to this verdict immediately. The writ petition stands allowed to the said extent. No costs. **Sd/-** ## **P.R.RAMACHANDRA MENON** **JUDGE** **Sd/-** **ANIL K. NARENDRAN JUDGE** Jvt/19.7.2016