The Writ Court may exercise its extraordinary jurisdiction and prescribe appropriate punishment commensurate with the delinquency alleged and proved: Telangana High Court
Ordinarily, whenever the Court opines that the punishment imposed is harsh and disproportionate, the Court should remit it to the competent authority to impose appropriate punishment. However, there are exceptions carved out to this course. Such observations are made by the Hon’ble Telangana High Court before Hon’ble Justice P.NAVEEN RAO &amp; Hon’ble Justice P.SREE SUDHA in the matter of Union of India, rep. by its General Manager vs Sri Y.R.Gettiyawar, s/o.Ramappa [WRIT PETITION NOS.21082 OF 2005 &amp; 1635 OF 2006]. The facts of the matter were that the applicant was appointed as Ticket Collector and earned promotions as Travelling Ticket Examiner, Head Travelling Ticket Examiner (HTTE), and Travelling Ticket Inspector (TTI). On the allegation of committing misconduct while working as HTTE, disciplinary proceedings were initiated against the applicant. First charge memo was issued on 3/11.03.1988 and on 8/14.09.1988 revised charge memo was issued containing three charges. Based on the findings recorded by the Enquiry Officer, the Disciplinary Authority imposed punishment of removal from service. On appeal, the Appellate Authority affirmed the said punishment. In the revision preferred by the applicant, the Revisional Authority modified the punishment to that of reduction to a lower post/grade of HTTE in the scale of  5000-8000/- fixing his pay at the minimum of the scale i.e.,  5000/- for a period of five years with recurring effect. Aggrieved by the said order the applicant preferred the instant appeal. The Hon’ble High Court held that “though charges as alleged were very grave, they stood diluted. Further, on charge-III, the officers forming part of the Vigilance Team were also responsible, for reasons best known, no action was taken against the Vigilance Team. Only applicant was singled out. The Court cannot countenance the arbitrary exercise of power and action by the Disciplinary Authority treating the two employees similarly situated differently” Finally, the Hon’ble High Court used the extraordinary power and modified it to reduce to the stage of  5500/- in the scale of  5500- 9000/- in the post of Travelling Ticket Inspector for a period of two years with recurring effect.
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 W.P.No.210805: Union of India rep.by its General Manager South Central Railway Now South Western Railway Hubli and two others. ….. Petitioners and Sri Y.R.Gettiyawar s o.Ramappa Aged 45 years occu: Head Travelling Ticket Examiner Hubli. DATE OF JUDGMENT PRONOUNCED 25.11.2021 THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA 1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments 2. Whether the copies of judgment may be : Yes marked to Law Reporters Journals 3. Whether Their Lordship wish to see the fair copy of the Judgment : No PNR J & PSS J WP Nos.210805 & 16306 HONOURABLE SRI JUSTICE P.NAVEEN RAO HONOURABLE SMT JUSTICE P.SREE SUDHA + WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 25.11.2021 WP No.210805: Union of India rep.by its General Manager South Central Railway Now South Western Railway Hubli and two others. Vs. Sri Y.R.Gettiyawar s o.Ramappa Aged 45 years occu: Head Travelling Ticket Examiner Hubli. … Petitioners …. Respondent standing counsel for Railways for petitioners in W.P.No.21082 of 2005 and Mr. Siva learned counsel for Petitioner in WP No.1635 of 2006. Counsel for the petitioner(s) : Mr. P.Bhaskar learned Counsel for the Respondent(s): Mr. Siva learned counsel for Gist : Head Note: Cases referred: 2002SLR 595 1995) 6 SCC 749 1999SCC 257 2021 SCCOnline SC 1041 2013) 12 SCC 372 Respondent in WP No.21082 of 2005 and Mr.P.Bhaskar learned standing Counsel for Railways for respondents in WP No.1653 of 2006 PNR J & PSS J WP Nos.210805 & 16306 HONOURABLE SRI JUSTICE P.NAVEEN RAO HONOURABLE SMT JUSTICE P.SREE SUDHA WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 COMMON ORDER:The parties are referred to as arrayed before the Central Administrative Tribunal. Heard Mr. Siva learned counsel for the applicant and the Mr.P.Bhaskar learned standing counsel for Railways. Applicant joins service as Ticket Collector and earned promotions as Travelling Ticket Examiner Head Travelling Ticket Examinerand Travelling Ticket Inspector5000 8000 and scale of pay of Travelling Ticket Examiner was5500 9000 . On the allegation of committing misconduct while working as HTTE disciplinary proceedings were initiated against applicant. First charge memo was issued on 3 11.03.1988 and on 8 14.09.1988 revised charge memo was issued containing three charges. The substance of the allegation of first charge is deliberately with an intention to mislead the gullible public applicant allowed two passengers by name V.S.Kulkarni and P.K.Kurlarni in S 4 compartment by collecting an amount of 50 from them not issuing receipts with an intention to appropriate the money for his personal use. The allegation in second charge is though he produced correctly the private and railway cash in the Vigilance Check at the first instance he subsequently produced excess and unaccounted amount of PNR J & PSS J WP Nos.210805 & 16306 301 from his pocket which included the unauthorized amount of cid:31) 50 from two passengers. The allegation in third charge is on 19 20.05.1993 he allowed a passenger travelling with ticket bearing No.34013 Ex.UBL SURM dated 16.05.1993 though the ticket was no longer valid. In the domestic enquiry the Enquiry Officer held all three charges as proved. Based on the findings recorded by the Enquiry Officer the Disciplinary Authority imposed punishment of removal from service. On appeal the Appellate Authority affirmed the said punishment. In the revision preferred by the applicant the Revisional Authority modified the punishment to that of reduction to a lower post grade of HTTE in the scale of5000 8000 fixing his pay at the minimum of the scale i.e. 5000 for a period of five years with recurring effect. Challenging the said order of the Revisional Authority applicant filed O.A.No.672 of 2002. By order dated 24.06.2005 the Central Administrative Tribunal partly allowed the O.A. setting aside the order of the revisional authority dated 25.06.2001 and remanded the matter to the Revisional Authority to pass orders strictly in accordance with the Rule 6 of the Railway Servants Discipline & Appeal) Rules 1968the Hon’ble Supreme Court held that specifying the pay to be drawn by an employee in the reduced scale or grade is in accord with the provision contained in Rule 6 of the Rules 1968. This was not appreciated by the Tribunal. While holding that the applicant was found guilty of the charges levelled against him the Revisional Authority thought it fit to modify the punishment of removal from service to that of reduction. Once charge is held proved it is no more permissible for the Court to interfere on the nature of punishment imposed by the employer. The law is well settled on this aspect. He therefore submits that in the facts of this case punishment imposed by the Revisional Authority is just and proportionate and do not warrant interference. 12. We have gone through the record and carefully considered the respective submissions. Having regard to the orders passed by the Revisional Authority the issue is in very narrow compass. PNR J & PSS J WP Nos.210805 & 16306 13. Having regard to law laid down by the Hon’ble Supreme Court in G.Veerasamy we are in agreement with the submission of learned counsel for respondent Railways on specifying the stage of fixing the pay in the lower scale or grade. The Hon’ble Tribunal erred in holding otherwise. However the matter does not rest here. 14. Though the Enquiry Officer held all the three charges are proved as accepted by the Disciplinary Authority and the Appellate Authority the Revisional Authority reassessed the evidence brought on record and recorded his findings. On first charge the Revisional Authority found that of the two passengers Mr. P.K.Kulkarni though initially stated that he paid 25 to applicant he turned hostile and denied payment of the amount. Further Mr. V.S. Kurlarni did not attend to the enquiry. The Revisional Authority therefore observed that “as one of the two prosecution witnesses had denied making of payment of25 and other prosecution witness did not attend the inquiry proceedings the Article I of the charge looses its ground and evidentiary value”. 15. With reference to the allegation in Article II the Revisional Authority accepted the defence of the applicant that at the last minute his neighbour handed over300 to him to purchase two blankets from Solapur and therefore it was not reflected in the declaration given by him before boarding the Train. The Revisional Authority held “from the foregoing the undersigned is of the opinion that the plea of the charged employee is acceptable even though he had remitted the excess amount to the Railways fearing complications resulting out of Vigilance Check.” He therefore observed that it was at the most amount to an act of negligence in not getting certified the PNR J & PSS J WP Nos.210805 & 16306 excess amount by a Supervisor at Station or in train which can be treated as a procedural lapse. The Revisional Authority also negatived the observation of the Enquiry Officer about tutoring the witnesses as it was not substantiated by any evidence and held “does not stand for reasoning”. 16. With reference to the Article III the explanation offered by the applicant why he could not check the ticket held by the passenger was accepted. The Revisional Authority observed that though officers forming part of Vigilance Team were required to collect penal charges from the passenger for travelling on a lapsed ticket they did not penalize him. Thus they are equally responsible whereas only against applicant action was initiated. He has noted that no explanation was offered by the prosecution on this selective action. He observes that both have to be made responsible and sustained the third charge partially. In view of these findings of the Revisional Authority though charges as alleged were very grave they stood diluted. Further on charge III the officers forming part of the Vigilance Team were also responsible for reasons best known no action was taken against the Vigilance Team. Only applicant was singled out. The Court cannot countenance the arbitrary exercise of power and action by the Disciplinary Authority treating the two employees similarly situated differently as held by the Hon’ble Supreme Court in K.Sukhendar Reddy Vs State of A.P. and another3. 18. While holding that the charges are not proved fully and holding that the punishment of removal from service is excessive PNR J & PSS J WP Nos.210805 & 16306 and disproportionate the Revisional Authority resorted to impose punishment of reduction to a lower post grade fixing the pay at the minimum of the time scale of lower post. This has two fold effect on the applicant. First he was reverted from higher post to lower post and second in view of fixing his pay in the lower grade at 5000 on restoration after five years also his pay would be fixed at5000 and would progress upwards from that stage for remainder of his service. Therefore punishment imposed is too harsh when compared to finding recorded by the Revisional Authority. Thus on this ground punishment is not sustainable. In addition in our opinion proceeding against the applicant alone on the delinquency forming part of Article III while letting off the officers forming part of the Vigilance Team is arbitrary and discriminatory. We are therefore of the opinion that the punishment imposed against the applicant is not sustainable. 19. Having held so what is the course to be adopted by the Court is the next aspect requiring consideration. Ordinarily whenever the Court opines that the punishment imposed is harsh and disproportionate the Court should remit it to the competent authority to impose appropriate punishment. However there are exceptions carved out to this course. In B.C.Chaturvedi the Hon’ble Supreme Court while cautioning the High Courts against substituting the punishment and holding that it should be left to the discretion of the competent authority to impose appropriate punishment also held that in the given circumstances of a case and to put quietus to the litigation the writ Court may exercise its extraordinary PNR J & PSS J WP Nos.210805 & 16306 jurisdiction and prescribe appropriate punishment commensurate with the delinquency alleged and proved. This principle is consistently followed in all subsequent decisions by the Hon’ble Supreme Court. In Union of India and others vs. Ex. Constable Ram Karan4 the Hon’ble Supreme Court extracted the principles summarized in the decision in Lucknow Kshetriya Gramin Bank vs. Rajendra Singh5. Paragraph 25 reads as under: “25. It has been further examined by this Court in Lucknow Kshetriya Gramin Bank v. Rajendra Singh :12 SCC 372 as under:— “19. The principles discussed above can be summed up and summarised as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above would be in those cases where the co delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co delinquent are equally placed. However there has to be a complete parity between the two not only in respect of nature of PNR J & PSS J WP Nos.210805 & 16306 charge but subsequent conduct as well after the service of charge sheet in the two cases. If the co delinquent accepts the charges indicating remorse with unqualified apology lesser punishment to him would be justifiable.” After taking due note of the view expressed by the Hon’ble Supreme Court in B.C.Chaturvedi the Hon’ble Supreme Court further held: “22. The well ingrained principle of law is that it is the disciplinary authority or the appellate authority in appeal which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee it is not open for the Courts to assume and usurp the function of the disciplinary authority. 23. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case after setting aside the penalty order it is to be left to the disciplinary appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons.” 23. From the precedent decisions two principles can be culled out. Firstly in the ordinary circumstances whenever the Court is of the opinion that the punishment imposed in the disciplinary proceedings is disproportionate to the delinquency alleged and proved the Court should ordinarily remit the matter for imposing appropriate punishment and the Court should not take on itself the task of prescribing any particular punishment. This is in recognition of well settled principle that it is the prerogative of the PNR J & PSS J WP Nos.210805 & 16306 employer to take disciplinary action against his employee and to impose appropriate punishment as deemed fit by the employer having regard to the delinquency alleged against his employee. Secondly the Constitutional Courts have carved out an exception to this solitary principle. In given facts of a case and to shorten the litigation this Court can take up the task of prescribing appropriate punishment. 24. Coming back to the facts of this case as noted above the disciplinary proceedings date back to 1998 that resulted in imposing punishment of removal initially modified to that of reduction in grade by the order of the Revisional Authority dated 11.06.2001. On a challenge the Tribunal partly allowed the O.A.No.6702 holding that punishment imposed against the applicant amounts to double punishment and not prescribed in Rule 6 of Rules 1968. The Tribunal has not appreciated the contentions urged by the applicant on the finding recorded by the Revisional Authority. In writ petition No.210805 filed by the Railways this Court stayed the decision of the Tribunal. Therefore the issue stands as at the stage of order of the Revisional Authority dated 11.06.2001. the meantime applicant retired from service. Taking due regard to the chronology of events at this stage remanding the matter to the Revisional Authority to review the punishment imposed by him and to impose lesser punishment is not just and equitable. Therefore in the peculiar facts of these cases we are inclined to adopt the middle course as held by the Hon’ble Supreme Court in B.C.Chaturvedi supra). PNR J & PSS J WP Nos.210805 & 16306 If two employees are alleged to have committed delinquency forming part of Article III but only one employee is proceeded and visited with a grave punishment whereas another employee is let off the Court can hold such action as amounting to arbitrary exercise of power and authority. Taking due note of this aspect also and having regard to the conclusion recorded by the Revisional Authority in his order dated 11.06.2001 and in the peculiar facts of these cases in our considered opinion the Court should prescribe appropriate punishment commensurate to the delinquency alleged and proved. In the facts of these cases the punishment of reduction to lower post grade of HTTE in the scale of5000 8000 fixing his pay at the minimum of the scale of 5000 8000 is modified to that of reduction to the stage of5500 in the scale of5500 9000 in the post of Travelling Ticket Inspector for a period of two years with recurring effect. 27. The Writ Petition No.21082 of 2005 and W.P.No.1635 of 2006 are disposed of accordingly. Pending miscellaneous petitions if any shall stand closed. JUSTICE P.NAVEEN RAO JUSTICE P.SREE SUDHA Date: 25.11.2021 Note: L.R. copy to be marked : Yes Kkm PNR J & PSS J WP Nos.210805 & 16306 HONOURABLE SRI JUSTICE P.NAVEEN RAO HONOURABLE SMT JUSTICE P.SREE SUDHA WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 Date: 25.11.2021 