Remanded

The Union of India, v. T. Seshachalapathi

Telangana HC5 Mar 2014WP/11021/2009

Case brief

AI extract

What is this about?

The Court remitted a departmental disciplinary matter back to the authority. It upheld that charges of misconduct regarding inflated rates were evidenced but struck down a suggested penalty for quantum, stating punishment determination is exclusively within the disciplinary authority's domain. The matter is rebound for fresh consideration within six months.

What did the court decide?

Remitted to the disciplinary authority to decide appropriate punishment; specific observation by the Tribunal on penalty quantum set aside.

The Union of India, Vs T. Seshachalapathi — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION Nos.11021 of 2009 and 28019 of 2009

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COMMON ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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These Writ Petitions are filed challenging the order dated 16.02.2009 in Original Application No.46 of 2005 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, “the Tribunal”).

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2. The petitioners in Writ Petition No.11021 of 2009 are respondents, and the petitioner in Writ Petition No.28019 of 2009 is the petitioner, in the Original Application. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the Tribunal.

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3. The brief facts are as follows:

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The applicant, after serving in Indian Army and Indian Naval Hydrographic Service, joined as Class I Officer in the Indian Railway Service of Engineers on 15.09.1975 and worked in various capacities in the Railways till his retirement on 30.04.2011. During the period 1993-96, while he was serving as the Chief Engineer, Construction IV, South Central Railway, he was responsible for gauge conversion of Hubli-Londa-Goa Section. In 1996, he was transferred to Integral Coach Factory and from there to Southern Railway and from there to South Western Railway, Bangalore as the Chief Personnel Officer. One month before his retirement on superannuation, he was served a charge memo on 20.03.2001 containing two articles of charges alleging grave misconduct, relating to works connected with aforesaid gauge conversion. He submitted his statement of defence by way of

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representation dated 16.7.2001. The disciplinary authority, having not accepted the same, appointed an enquiry officer for conducting a regular departmental enquiry. The enquiry officer, after conclusion of enquiry, submitted report holding that charge in Article-I was proved and the charge in Article-II was partly proved. The disciplinary authority disagreed with the findings of the enquiry officer and held that both the charges are proved. As the applicant had retired from service on 30.04.2001 on superannuation and after considering the facts and circumstances of the case, the President took a provisional decision to impose a penalty of cut in his pension. The Minister of Railways, on behalf of the President, after consulting Union Public Service Commission, came to the conclusion that the charges were proved against him and that he committed a grave misconduct, and imposed punishment of 50% cut in monthly pension on permanent basis. Review petition dated 15.09.2004 filed by the applicant against the order of the disciplinary authority, was rejected by the President in Railway Board’s letter dated 29.10.2004. Challenging the same, the applicant filed the Original Application No.46 of 2005 before the Tribunal.

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4. The Tribunal, vide impugned order, partly allowed the Original Application and confirmed the findings recorded by the disciplinary authority but set aside the order of the disciplinary authority dated 23.7.2004 and of the appellate authority dated 29.10.2004, and remitted the matter to the disciplinary authority for reconsideration of the punishment in the light of the observations in the said order. Incidentally, the Tribunal suggested that a cut of 5 % to 10% in pension on permanent basis or 25% to 50% for a specified period, say 5 years, would have met the ends of justice. Challenging the said order, the present Writ Petitions are filed by

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the railways and the applicant respectively.

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5. Learned counsel for the applicant contended that the findings of the disciplinary authority are perverse and that charges 1 and 2 have not been proved; that the applicant is only a recommending authority and he estimated the rates and submitted the same to the approving authority; that he cannot be punished for the event which has not happened; that both the charges were held to be proved based on surmises and therefore he prays to interfere with the order of the disciplinary authority.

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6. On the other hand, learned counsel for the respondents contended that the applicant, being a responsible officer, inflated rates contrary to the finance restrictions in calling for special tenders; that findings of the disciplinary authority are based upon some material on record, and they need no interference by this Court.

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7. Law is well settled that it is for the disciplinary authority to impose an appropriate punishment. Ordinarily, Courts will not interfere with the imposition of punishment unless it is shown that there is no evidence for the enquiry officer to conclude with regard to proving of the charges. This Court cannot sit over as in an appeal to re-appreciate the evidence adduced before the enquiry officer. Adequacy or inadequacy of the evidence cannot be a ground to challenge the proceedings of the disciplinary authority. Unless it is shown that it is a case of no evidence, then only, interference is called for. If the enquiry officer gave a perverse finding or the findings are not based upon any evidence, then only, the interference is called for. When the enquiry was conducted in accordance with law and there are no serious irregularities

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committed during the course of enquiry, normally, the order of enquiry officer needs no interference.

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8. It is not a case where enquiry was not conducted in accordance with Rules or principles of natural justice were violated. Admittedly, it is not a case of misappropriation or using corrupt practices for the purpose of gain by the applicant. However, a perusal of the charges would go to show that there is improper use of the power by the applicant. It is alleged in Article of charge no.1 that had the high rated limited tenders, as estimated by the applicant, been awarded, railway would have been put to a loss of Rs.5.68 crores. Admittedly, the estimates, as submitted by the applicant, have not been approved by the approving authority. Therefore, the question of loss to the railway may not arise. But, as a responsible officer, the applicant has to discharge his duties without showing gross negligence and in accordance with parameters laid down by the finance department.

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9. Misconduct is more than negligence. If the intention of the delinquent officer to do something which he knows to be wrong or not caring what the result may be, then it is a misconduct. Any unlawful behaviour by a delinquent officer in relation to the duties of his office, wilful in character, amounts to misconduct. The specific allegation is that face value of the Special Limited Tenders was highly inflated and no coherent reasons were brought out at any stage to justify those highly inflated estimates. Even assuming for a moment that delay in completion of project is likely to cause prejudice, still the estimation must be reasonable. Therefore, it is clear from the material on record that the applicant gave no justification for the abnormal increase of estimates and also for further revision of estimates made by him.

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10. Although the office of the Finance Advisor and Chief Accounts Officer (Construction) vetted these proposals, the vetting was conveyed subject to two conditions viz. the material modification should be sent to the Railway Board within 15 days with the revised quantities and no commitment to be entered into till the Railway Board had sanctioned the material modification. In the enquiry, the plea of the applicant is that the finance has vetted his proposal without any restrictions. But, as seen from the material on record, the vetting was conveyed with two conditions. Therefore, it cannot be said that article of charge no.1 is held to be proved without any material on record.

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11. With regard to article of charge no.2, it states that the applicant called 14 tenders at a very high estimated cost, but it was reduced by the finance department. In all these tenders, the applicant, as Tender Accepting Authority, has not made any remarks or orders i.e. Tender Committee’s specific observations regarding unrealistic rates, both high and low, and the need to keep check on verifications/vitiations, and therefore, it indicates lack of full application of mind to the Tender Committee proceedings. As an officer, in-charge of that Section, the applicant has to pass clear orders on the Tender Committee’s recommendations regarding unrealistic rates and need to control variations of quantities. But, he has not made any such observations with regard to variation of the quantities. No doubt, with regard to charge no.2, there is a lack of responsibility of the field staff both engineering and accounts, but as a controlling officer, it is the duty of the applicant to check the variations in terms of the concerned provisions which are relevant for calling special tenders or open tenders. So, it cannot be said that it is a

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case of no evidence. Basing on some material on record, the enquiry officer gave the finding that the charges levelled against him are proved. Therefore, there is no need to interfere with the findings of the enquiry officer with regard to charges levelled against him.

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12. The enquiry officer has categorically held that in the event of acceptance of estimates made by the applicant, the railways would have been put to loss to a tune of Rs.5.68 crores. However, those estimates were not accepted by the Tender Accepting Committee. There is no evidence to show that the applicant estimated the higher rates for extraneous consideration. It is not a corrupt practice so as to cause loss to the railways.

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13. With regard to quantum of punishment, the Tribunal suggested that a cut of 5 % to 10% in pension on permanent basis or 25% to 50% for a specified period, say 5 years, would have met the ends of justice. Having found that the punishment given to the applicant is highly disproportionate to the proved misconduct, the Tribunal ought to have remanded the matter to the disciplinary authority. The Tribunal ought not to have given such a suggestion to the disciplinary authority and such an observation is unwarranted. Imposing a penalty is exclusively within the jurisdiction and domain of the disciplinary authority. Therefore, the observation of the Tribunal in paragraph no.12 of the impugned order, viz. ‘A cut of 5 to 10% in pension on permanent basis or 25% to 50% for a specific period, say 5 years, in our opinion, would have met the ends of justice in this case’, is set aside. However, considering the over all facts and circumstances of the case, it is not a case of corruption or causing loss to the Government or that the applicant inflated rates for any extraneous

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consideration or that he had any hand-in-glove with the contractors. So, punishment of 50% cut in pension on permanent basis is not warranted. Hence, the matter is remitted to the disciplinary authority for deciding the appropriate punishment to the proved misconduct of the applicant. The said process shall be completed by the disciplinary authority within a period of 6 months from the date of receipt of a copy of this order.

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14. Accordingly, the Writ Petitions are disposed of. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS

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Date: 05.03.2014 DRK

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION Nos.11021 of 2009 and 28019 of 2009