N.N.S. Rana vs The Secretary, Railway Board And ...
2008 Latest Caselaw 2158 Del

*         HIGH COURT OF DELHI : NEW DELHI


+         Writ Petition (Civil) No. 4014 of 2005


                        Judgment reserved on: November 6, 2008

%                       Judgment delivered on: December 4, 2008


Mr. N.N.S. Rana
Ex Chief Personnel Officer
North Central Railway
Allahabad

R/o Q-60, First Floor
Rajouri Garden
New Delhi - 110 027                                   ...Petitioner

                        Through Mr. A.K. Behera, Advocate along with
                                Petitioner in person

                        Versus

1.   The Secretary
     Railway Board
     Rail Bhawan
     New Delhi

2.   The Chairman
     Railway Board
     Rail Bhawan
     New Delhi

3.   The General Manager
     North Central Railway
     Allahabad (U.P.)                                 ...Respondents

                        Through Mr. H.K. Gangwani, Advocate

WP (C) No.4014/2005                                          Page 1 of 14
 Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                Yes

2. To be referred to Reporter or not?                             Yes

3. Whether the judgment should be reported
   in the Digest?                                                 Yes


MADAN B. LOKUR, J.

The question for our consideration is this: when the appellate

authority acting under Rule 22 of the Railway Servants (Discipline and

Appeal) Rules, 1968 issues a show cause notice to a delinquent officer

only for enhancing the penalty, is it permissible for that authority to

upset, on merits, the findings of fact and conclusions arrived at by the

disciplinary authority?

Our answer to the question is in the negative. We are of the

opinion that when the appellate authority issues a notice to a delinquent

officer only for the purposes of enhancing the penalty imposed by the

disciplinary authority, it must proceed on the facts as found by the

disciplinary authority. The appellate authority can disagree with the

conclusions arrived at by the disciplinary authority, on merits, but only

after complying with the principles of natural justice by issuing a show

cause notice to the delinquent officer to this effect. In the present case,

no such notice was issued to the Petitioner.

2. The Petitioner was working as the Chief Personnel Officer

with the Railways. It appears that for an important meeting/conference,

certain papers were required. The Petitioner asked his Private Secretary

(a lady) to get the papers ready but she failed to do so. Upset by this,

the Petitioner placed her under suspension with immediate effect on 20 th

September, 1996 and a charge sheet was issued to her on 23rd

September, 1996.

3. According to the Petitioner, as a counterblast, his Private

Secretary made a complaint against him on 31 st October, 1996 alleging

that he had sexually harassed her. On the basis of the allegations made,

the Petitioner was placed under suspension and a charge sheet was

issued to him on 16th December, 1996. The departmental enquiry was

held and the enquiry officer concluded that all the four charges against

him were proved. However, the disciplinary authority, which in this

case was the Railway Board, passed a detailed order on 13 th January,

2000 holding that the first three charges were not proved against the

Petitioner but as regards the fourth charge, it was held partially proved.

4. In view of this, we are of the opinion that it is not necessary

to make any detailed reference to the first three charges levelled against

the Petitioner. However, to fully appreciate the controversy, it is

necessary to reproduce all the charges levelled against him. They are as

follows:

"1. He misbehaved and indulged in loose, lewd and suggestive talks with his Secretary, Smt. Kuljit Kaur, on several occasions on one pretext or the other with a view to sexually harass and seduce her. On one occasion he even propositioned her and suggested sexual relations which were spurned by her.

2. He deliberately created such privy situations by detaining her in office late into the night after closing hours, sometimes as late as 22:30 hrs. at night despite her protestations, under threat of D&AR action for deserting her duty.

3. He further created such privy situations by calling her to Office on Saturdays and other Gazetted holidays and detained her in office after sunset despite her protestations, under threat of D&AR action for deserting her duty.

4. When his advances were spurned by Smt. Kuljit Kaur he initiated D&AR action against her on frivolous ground with an ulterior motive of making her more pliable so

that she would give in to him."

5. It is clear from the charges levelled that the basis of the

fourth charge is the sexual advances alleged to have been made by the

Petitioner. But since none of the charges relating to sexual harassment

were proved against him, it appears to us that the allegation that the

Petitioner had initiated disciplinary action against his Private Secretary

on a frivolous ground with the ulterior motive of making her more

pliable so that she would give in to him, must necessarily fall to the

ground.

6. It also appears to us that the Railway Board appreciated this

difficulty and that is why it broke up the fourth Article of Charge into

three parts: the alleged sexual advances made by the Petitioner, the

suspension of the Private Secretary on a frivolous ground and the

ulterior motive of the Petitioner of making her more pliable so that she

would give in to him. The Railway Board held that the first and third

parts of the charge were not proved but held that the second part, that is,

the suspension of the Private Secretary on a frivolous ground was

proved. On this basis, the Railway Board held that the fourth charge

was partially proved against the Petitioner. The Railway Board held

that the Petitioner overreacted to a perceived intentional lapse which

resulted in the charge sheet being issued to the Private Secretary. The

Railway Board categorically held that it was not possible to conclude

that the initiation of disciplinary action by the Petitioner was aimed at

making the Private Secretary more pliable and to submit to his alleged

sexual overtures.

7. With regard to the imposition of the penalty, the Railway

Board was of the view that since the Petitioner had shown a lack of

sensitivity, managerial and leadership qualities over a relatively trivial

matter, the ends of justice would be met by imposing a minor penalty of

reduction of one stage in the same pay scale for a period of six months

without cumulative effect. The Petitioner has since undergone the

penalty.

8. Feeling aggrieved by the imposition of penalty on an

allegation which was not even a part of the charge sheet, the charge

essentially having not been proved, the Petitioner preferred a

departmental appeal. Since his appeal was not being taken up for

consideration, the Petitioner filed an Original Application before the

Central Administrative Tribunal for a direction, inter alia, for its

expeditious disposal.

9. During the pendency of the case before the Tribunal, a show

cause notice dated 19th December, 2001 was issued to the Petitioner by

the appellate authority for enhancing the punishment awarded. The

basis for issuing the notice for enhancement was that in a case of sexual

harassment, it is difficult to conclusively prove the case and that such an

action has to be sternly dealt with. The show cause notice mentioned

that there was irrefutable documentary evidence to suggest indecent

behaviour and conduct on the part of the Petitioner and since the fourth

charge had been partially proved, there must be very strong reasons why

the Petitioner should suspend his Private Secretary and issue her a major

penalty charge sheet, unless there was some background or previous

history of his sexual advances having been spurned.

10. The Petitioner responded to the show cause notice and

eventually an order dated 26th December, 2002 was passed by the

appellate authority to the effect that the fourth Article of Charge cannot

be taken as merely arising out of lack of sensitivity, managerial and

leadership qualities and that it was quite probable that the Petitioner was

responsible for other misconduct including sexual harassment as per the

charges levelled against him. The appellate authority was of the view

that the punishment awarded to the Petitioner was far too lenient and

that he deserved to be removed from service.

11. The Petitioner challenged the order of the appellate authority

by amending his Original Application before the Tribunal. By the

impugned order dated 24th October, 2003 the Tribunal rejected the

Original Application. The Petitioner then filed a Review Application

being RA No. 8 of 2004 but that was also dismissed by the impugned

order dated 9th July, 2004 and that is how the Petitioner is now before

us.

12. As we have mentioned above, on a reading of the fourth

charge, it is quite clear that the alleged cause for suspending the Private

Secretary of the Petitioner was that she had spurned his alleged sexual

advances. However, it was not proved that the Petitioner had made any

sexual advances. Therefore, the cause for suspending the Petitioner's

Private Secretary was not proved against him. Consequently, the fourth

charge against the Petitioner ought to have been dropped. But for

reasons that are not clear (and which we need not go into) the Railway

Board split up the fourth charge and concluded that the suspension and

issuance of a charge sheet to the Private Secretary was with reference to

a trivial matter and an independent charge and to that extent the fourth

charge against the Petitioner was proved.

13. On these facts, the appellate authority issued a show cause

notice issued to the Petitioner for a limited purpose, namely, to enhance

the punishment awarded to him. The show cause notice did not pertain

to the merits of the case and was not intended to upset the views

expressed by the disciplinary authority. In fact, the show cause notice

dated 19th December, 2001 specifically mentioned that the Petitioner is

being given an opportunity to make a representation, if any, against the

provisional decision of the President to enhance the penalty imposed on

him to that of removal from service. In other words, the appellate

authority accepted the decision of the Railway Board on merits and the

only issue for consideration was the quantum of punishment.

14. In its final order, the appellate authority went wrong in

upsetting the factual conclusions arrived at by the disciplinary authority.

This was not permissible, given the fact that no show cause notice was

given to the Petitioner in this regard. On a plain reading of the show

cause notice dated 19th December, 2001 it is not possible to discern

anything to suggest that the appellate authority was of the view that the

conclusions of the disciplinary authority on the merits of the case are

incorrect. The appellate authority was concerned only with the

inadequacy of the punishment awarded and nothing else and it should

have limited itself to this issue only.

15. It is significant that the decision rendered by the appellate

authority on 26th December, 2002 recites that the show cause notice

issued to the Petitioner was only with a view to giving him an

opportunity to explain why the penalty imposed be not enhanced to that

of removal from service. Under the circumstances, it is quite

inexplicable how and why the appellate authority decided to overrule

the conclusions of the Railway Board on merits, even though these

conclusions were not under scrutiny or required any reconsideration by

the appellate authority.

16. Learned counsel for the Respondents sought to rely upon

Rule 22 of the Railway Servants (Discipline & Appeal) Rules, 1968 to

justify the action of the appellate authority. The relevant portion of

Rule 22 reads as follows:

"22. Consideration of appeal.

(1) xxx xxx xxx

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider -

(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders -

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case."

17. A perusal of the above rule no doubt suggests that the

appellate authority is entitled to consider whether the findings of the

disciplinary authority are warranted by the evidence on record and it

may confirm, enhance, reduce or set aside the penalty. But, this is

possible only if the delinquent official is put to notice that the findings

of the disciplinary authority are incorrect or not warranted by the

evidence on record or that the punishment imposed is inadequate.

18. In the present case, as already mentioned above, the

Petitioner was put to notice on a limited issue, that is, with regard to the

quantum of penalty - he was not put to any notice with regard to the

correctness or otherwise of the findings of the Railway Board. Under

the circumstances, the appellate authority should have applied its mind

only to the penalty imposed on the Petitioner and nothing else. The fact

that the appellate authority applied its mind to the merits of the case,

without putting the Petitioner to notice in this regard, clearly suggests

that the principles of natural justice were violated. The Petitioner was

not given a fair opportunity of putting forth his point of view on the

merits of the case. It is now very well settled that a delinquent official

cannot be visited with civil consequences without complying with the

principles of natural justice, unless those principles are specifically and

statutorily excluded. In so far as Rule 22 of the Railway Servants

(Discipline & Appeal) Rules, 1968 is concerned, the principles of

natural justice have not been excluded, either specifically or even

otherwise. The principles of natural justice were not complied with, in

so far as the Petitioner is concerned with regard to the merits of the case.

19. Taking all these facts into consideration, in our opinion, it is

quite clear that the appellate authority completely misdirected itself in

law in upsetting the factual conclusions arrived at by the Railway Board

and thereafter enhancing the punishment awarded to the Petitioner. For

this reason, the order passed by the Tribunal upholding the decision of

the appellate authority is required to be set aside.

20. In a situation such as this, ordinarily, we would have had to

remit the case to the appellate authority for reconsideration of the matter

in its correct perspective. But, we have been told that the Petitioner has

since retired and has also suffered the monetary penalty that was

originally imposed upon him by the Railway Board. Therefore, we do

not think it appropriate to remit the matter back to the Respondents for a

reconsideration of the issue. The case is about 12 years old and

deserves to be given a quiet burial.

21. The writ petition is allowed, but there will be no order as to

costs. The Petitioner will, however, be entitled to all consequential

benefits.

                                             MADAN B. LOKUR, J



December 4, 2008                             SURESH KAIT, J
ncg


Certified that the corrected copy
of the judgment has been
transmitted in the main Server.