Telangana High Court
P.V.Padmaja vs Union Of India on 11 September, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HIGH COURT FOR THE STATE OF TELANGANA :: HYDERABAD
***
W.P.No. 26147 of 2023
W.P.No.3807 of 2021
Between:
P.V. Padmaja
.........Petitioner
And
1. UOI rep. by its General Manager, South Central Railway and others.
.......Respondents
Date of Judgment pronounced on : 11-09-2024
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
1. Whether Reporters of Local newspapers : Yes
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes
Of the Judgment?
2 AKS,J & LNA,J
W.P.No.26147 of 2023
HIGH COURT FOR THE STATE OF TELANGANA :: HYDERABAD
***
W.P.No.26147 of 2023
%11-09-2021
# P.V. Padmaja
.... Petitioner
Versus
$ 1. UOI rep. by its General Manager, South Central Railway and others.
..... Respondents.
< GIST:
> HEAD NOTE:
!Counsel for the petitioner : Sri G. Trinadha Rao
^ Additional Solicitor General of India : Sri B. Narasimha Sharma
For R-1 to R-5
? Cases referred
1
W.P.No.13520 of 2014 dt.25-01-2017
2
2005 (6) ALD 494
3 AKS,J & LNA,J
W.P.No.26147 of 2023
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
W.P.No.26147 of 2023
ORDER:
(Per Hon'ble Sri Justice Abhinand Kumar Shavili)
This Writ Petition is filed aggrieved by the orders passed by
the Central Administrative Tribunal, Hyderabad (for brevity, 'the
Tribunal') in O.A.No.797/2022, dated 21-08-2023.
2. Heard Sri G.Trinadha Rao, learned counsel appearing
for the petitioner, Sri Sri B. Narasimha Sharma, learned Additional
Solicitor General of India, appearing for respondents and Sri
Rachapalli Anurag, learned counsel, who ably assisted the learned
Additional Solicitor General of India.
3. It has been contended by the petitioner that she was
working as Accounts Assistant/Traffic in the office of the Finance
Advisory and Chief Accounts Officer/Traffic/SC, under the
administrative control of the 4th respondent-Additional Chief
Accounts Officer/Traffic/SC, Secunderabad. The 3rd respondent-
Deputy Chief Accounts Officer/Traffic/Stores and Workshop/SC, is
4 AKS,J & LNA,J
the regular officer and when the 4th respondent was not available,
the 3rd respondent has worked to discharge the duties of 4th
respondent on in-charge basis, vide proceedings dt.20-08-2019.
However, an Officer who is working on link arrangement basis/in-
charge basis cannot act as disciplinary authority nor he could
discharge the statutory duties. While so, the 3rd respondent has
issued a charge memo to the petitioner on 18-11-2021, on the basis
that he was discharging duties on in-charge basis in the 4th
respondent office as per the Master Circular No.67, dated 23-12-
2019. The 3rd respondent has issued a corrigendum also to the
charge memo on 21-04-2022. The petitioner has submitted
explanation to the charge memo denying the issuance of charge
memo as the 3rd respondent is not the competent authority to initiate
disciplinary proceedings. The petitioner has approached the
Tribunal by filing O.A.No.797/2022 and the Tribunal has dismissed
the said O.A., vide orders dt.21-08-2023 without appreciating any
of the contentions raised by the petitioner.
4. Learned counsel for the petitioner has contended that
since in the 4th respondent's office, there is no regular Deputy Chief
5 AKS,J & LNA,J
Accounts Officer/Traffic, the 3rd respondent was posted on
in-charge basis to take care of administrative and financial matters
of 4th respondent office and as per Master Circular No.67, a person
who is looking after the current duties of a post cannot exercise the
disciplinary functions assigned to the said post.
5. Admittedly, the petitioner was working in the 4th
respondent's office and the 3rd respondent was looking after the
current duties of the 4th respondent on link arrangement basis and
as per the Master Circular No.67, dated 23-12-2019, the 3rd
respondent could not be acted as a disciplinary authority and initiate
disciplinary proceedings against the petitioner. If there is no
regular officer in the 4th respondent's office, then the Officer above
the rank of 4th respondent i.e. Finance Advisory Chief Accounts
Officer in the Head Quarters can act as a disciplinary authority
as per the Railway Employees' Railway Service (Discipline and
Appeal) Rules, 1968 (for brevity 'the 1968 Rules'). Rule 7 of the
Rules, 1968, deals with the 'Disciplinary Authorities' and as per the
said Rule; (1) The President may impose any of the penalties
specified in Rule 6 on any Railway servant; (2) Without prejudice
6 AKS,J & LNA,J
to the provisions of sub-rule (1), any of the penalties specified in
Rule 6 may be imposed on a Railway servant by the authorities
specified in Schedules I, II and III; (3) The disciplinary authority in
the case of a Railway servant officiating in a higher post, shall be
determined with reference to the officiating post held by him at the
time of taking action.
6. Rule 8 of the 1968 Rules deals with Authority to
Institute Proceedings and as per the said Rule; (1) the President or
any other authority empowered by him, by general or special order,
may - (a) institute disciplinary proceedings against any Railway
servant; (b) direct a disciplinary authority to institute disciplinary
proceedings against any Railway servant on whom that disciplinary
authority is competent to impose under these rules any of the
penalties specified in Rule 6; (2) A disciplinary authority competent
under these rules to impose any of the penalties specified in clauses
(i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of
sub-rule (1) of Rule 2, institute disciplinary proceedings against any
Railway servant for the imposition of any of the penalties specified
in Rule 8, Clauses (v) to (ix) of Rule 6, notwithstanding that such
7 AKS,J & LNA,J
disciplinary authority is not competent, under these rules, to impose
any of the latter penalties.
7. Learned counsel for the petitioner had contended that
as per the Fundamental Rule 49 issued under Government of
India's Official Memo dated 24-01-1963, the Law Ministry has
advised that an officer appointed to perform the current duties of an
officer can exercise administrative or financial powers vested in the
full-fledged incumbent of the post but he cannot exercise statutory
powers, whether those powers are derived directly from an Act of
Parliament, e.g. Income Tax Act or Rules, Regulations and
By-Laws made under various Articles of the Constitution i.e.
Fundamental Rules, Classification, Control and Appeal Rules, Civil
Service Regulations, Delegation of Financial Powers Rules, etc.
According to the said Rule, as the 3rd respondent was discharging
his duties on in-charge basis in the 4th respondent's office, he could
not have initiated disciplinary proceedings against the petitioner.
This fact was not properly appreciated by the Tribunal and the
Tribunal has mechanically dismissed the O.A. without appreciating
any of the contentions raised by the petitioner.
8 AKS,J & LNA,J
8. Learned counsel for the petitioner has further
contended that the Legal Defence Assistant of the petitioner has
sought information under the Right to Information Act, 2005 that
whether a person, who is discharging his duties on link
arrangement basis, can initiate disciplinary action or not. The
petitioner's Legal Defence Assistant got the information under the
said Act, 2005, on 29-02-2024, wherein, it was clarified that the
person, who is posted on link arrangement basis, can discharge both
financial as well as administrative functions and it was also
clarified that since the Master Circular No.67 is invoked, the 3rd
respondent could not have initiated disciplinary proceedings against
the petitioner.
9. Learned counsel for the petitioner has contended that
an Officer working on in-charge basis can have the powers of
financial as well as administrative. However, the disciplinary
powers are quasi-judiciary and those powers cannot be exercised by
a person who is discharging his duties on in-charge basis or on link
arrangement basis. Therefore, charge memo issued by the 3rd
respondent is liable to be set aside as he is incompetent to institute
9 AKS,J & LNA,J
disciplinary proceedings against the petitioner. Therefore,
appropriate orders be passed in the Writ Petition by setting aside the
charge memo issued by the 3rd respondent and allow the Writ
Petition.
10. Learned Additional Solicitor General of India
appearing for the respondents had contended that the Master
Circular is only a Circular, and it cannot supersede the Rules. A
perusal of Rule 8 of the 1968 Rules makes it very clear that a
person who is heading the 4th respondent institute is entitled to
initiate disciplinary proceedings. A perusal of the said Rule also
makes it clear that the functions of the disciplinary authority can be
discharged by a person who is working on link arrangement basis or
in-charge basis also. Rule 7 of the 1968 Rules deals with
Disciplinary Authority and Rule 8 of the said Rules deals with the
Authority to institute proceedings. The word 'disciplinary
authority' is specified in Schedules I, II and III. A perusal of the
said schedules annexed to the Rules would abundantly make it clear
that a person who has been holding the independent charge or in-
charge of department in a Division can also institute disciplinary
10 AKS,J & LNA,J
proceedings. In the instant case, there is serious charge of
misappropriation of railway funds to a tune of Rs.8.50 crores
against the petitioner, due to which, the petitioner was prematurely
retired under Rules 1802, 1803 and 1804 of the Indian Railway
Establishment Code (IREC), as continuation of the petitioner would
be detrimental to the interests of the Railways, and hence, the 3rd
respondent, who was working on link arrangement basis, has rightly
initiated disciplinary proceedings against the petitioner.
11. Learned Additional Solicitor General appearing for the
respondents has relied on the judgment of a Division Bench of this
Court in Union of India v. Govinda Rajulu1, wherein, it is held
that a person who is discharging his duties on in-charge basis as a
Director of Indian Council of Medical Research, is competent to
initiate disciplinary proceedings and he has also relied on a
judgment of another Division Bench in Financial Advisor and
Chief Accounts Officer (WST), SCR and Others v. C.
Janardhan Rao 2, wherein, it is held that the authority which is not
competent to impose major penalties can still initiate disciplinary
W.P.No.13520 of 2014 dt.25-01-2017
2005 (6) ALD 494
11 AKS,J & LNA,J
proceedings and can impose minor penalty, and thereafter, the
competent authority can impose major penalty. Thus, the learned
Additional Solicitor General appearing for the respondents has
contended that the 3rd respondent has power to initiate disciplinary
proceedings against the petitioner, and hence, the Tribunal has
rightly not interfered with the charge memo issued by the 3rd
respondent.
12. The learned Additional Solicitor General appearing for
the respondents has further contended that a regular officer has
taken charge of the 4th respondent's office on 03-08-2022, and
hence, the entire records in the disciplinary proceedings were
handed over to him. Therefore, the regular officer would be
continuing the disciplinary proceedings, and moreover, the
petitioner has not taken any objection in this regard while giving
reply to the charge memo. Therefore, the Tribunal was justified in
dismissing the O.A., and there are no merits in the Writ Petition and
the same is liable to be dismissed.
13. In reply, learned counsel for the petitioner has
contended that as far as the judgment relied upon by the
12 AKS,J & LNA,J
respondents in Govinda Rajulu's case (1 supra) is concerned, in
that case, though the Director was initially appointed on in-charge
basis, subsequent to her retirement, again she was re-employed as
Director. In those set of circumstances, a Division Bench of this
Court held that a Director of Indian Council of Medical Research
was competent to initiate disciplinary proceedings. But, in the
instant case, no such regular appointment has taken place and the
3rd respondent was holding the post on link arrangement basis i.e.
on in-charge basis and Master Circular No.67, dated 23-12-2019
makes it abundantly clear that an in-charge officer or an officer
looking after the current duties cannot exercise the functions
relating to disciplinary proceedings assigned to the said post.
14. Learned counsel for the petitioner has also relied upon
F.R. 49 and contended that a person working on in-charge basis
cannot act as disciplinary authority and even as per the information
furnished by the petitioner's legal defence assistant under the Right
to Information Act, 2005, it is clear that a person discharging his
duties on link arrangement basis cannot initiate disciplinary action.
13 AKS,J & LNA,J
15. Learned counsel for the petitioner has further
contended that during pendency of the charge memo, the petitioner
was prematurely retired in terms of Rules 1802, 1803 and 1804 of
the Indian Railway Establishment Code (IREC) and the
continuance of disciplinary proceedings once the petitioner was
retired prematurely, cannot be sustained. Therefore, appropriate
orders be passed setting aside the order of the Tribunal and also set
aside the charge memo dated 18-11-2021 as well as the
corrigendum dated 21-04-2022 issued by the 3rd respondent and
allow the Writ Petition.
16. Having considered the rival submissions made by the
learned counsel for both the parties, this Court is of the considered
view that the 3rd respondent was placed as in-charge of the 4th
respondent's office on link arrangement basis. A perusal of the
Master Circular No.67, dated 23-12-2019 makes it abundantly clear
that a person who is looking after the current duties of a post cannot
exercise the disciplinary functions. Therefore, the Tribunal was not
justified in not setting aside the orders of the 3rd respondent,
whereby, the 3rd respondent has initiated disciplinary proceedings
14 AKS,J & LNA,J
by issuing charge memo and corrigendum on 18-11-2021 and on
21-04-2022, respectively.
17. Even as per F.R. 49 also, the person who is working on
in-charge basis, cannot act as a disciplinary authority and that an
officer appointed to perform the current duties of a post can
exercise administrative or financial powers vested in the
full-fledged incumbent of the post but he cannot exercise statutory
powers, whether those powers are derived directly from an Act of
Parliament like the Income Tax Act or Rules, Regulations and
By-Laws made under various Articles of the Constitution i.e.
Fundamental Rules, Classification, Control and Appeal Rules, Civil
Service Regulations, Delegation of Financial Powers Rules, etc.
Though the officer working on link arrangement basis can have
powers of finance as well as administrative, but when it comes to
disciplinary powers, he will be discharging quasi-judicial powers,
and as admittedly, no quasi-judicial functions are made available to
a person working on link arrangement basis.
18. As far as the contention of the learned Additional
Solicitor General appearing for the respondents and the judgment
15 AKS,J & LNA,J
relied on by him in Govinda Rajulu's case (1 supra) is concerned,
wherein, though the Director of Indian Council and Medical
Research was initially appointed as Director in-charge,
subsequently the very same Director was reemployed after
retirement as regular officer. In those set of circumstances, this
Court had held that the Director of ICMR was competent to initiate
disciplinary proceedings. Further, as far as the judgment relied
upon by the learned Additional Solicitor General appearing for the
respondents in C. Janardhan Rao's case (2 supra) is concerned, a
Division Bench of this Court has held that though the authority was
not competent to impose major penalties has initiated disciplinary
proceedings, the major penalty can be imposed by the authority
competent to impose such penalty. In that case, the disciplinary
authority was not competent to issue disciplinary proceedings for
major penalties, was permitted to initiate disciplinary proceedings
initially for minor penalty but finally the major penalty was
imposed by the authority competent to impose such major penalty.
19. In the instant case, the Master Circular No.67,
dated 23-12-2019 makes it clear that the person who is discharging
16 AKS,J & LNA,J
duties on link arrangement basis cannot initiate disciplinary action
and it prohibits the 3rd respondent from acting as a disciplinary
authority. Further, if the charge is serious, then the respondents
ought to have withdrawn the charge sheet issued by the 3rd
respondent and got it issued by the authority higher in rank than
that of the 4th respondent i.e. Chief Accounts Officer and Finance
Advisor, but continuing the charge memo which was issued by the
3rd respondent who is incompetent to issue the same, cannot be
permitted. The respondents could have issued the very same charge
sheet through the higher authority than that of the 4th respondent i.e.
Finance Advisor and Chief Accounts Officer, however, without
doing so, they made the petitioner retire prematurely and after
retirement also, they intend to continue the very same charge sheet
which was issued by the authority not competent under law. The
respondents ought to have followed the Master Circular of the
Railway Board while issuing the charge memo.
20. In the light of the reasons recorded above, the charge
memo issued by the 3rd respondent while working on link
arrangement basis in the 4th respondent's office, is liable to be set
17 AKS,J & LNA,J
aside on the ground that he is not competent authority to initiate
disciplinary proceedings against the petitioner. Thus, the Writ
Petition deserves to be allowed.
21. Accordingly, the Writ Petition is allowed and the
impugned orders of the Tribunal in O.A.No.797/2022,
dated 21-08-2023 are hereby aside and consequently, the charge
memo issued on 18-11-2021 and the corrigendum issued on
21-04-2022 by the 3rd respondent are also set aside. There shall be
no order as to costs.
22. As a sequel, the miscellaneous petitions pending, if
any, shall stand closed.
______________________________
ABHINAND KUMAR SHAVILI, J
_________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 11.09.2024
Note:
Mark the LR copy.
B/o.
Kvr
