By Akhil Kumar Srivastava, JM.-

1. The applicant is challenging the order dated 22.04.2022 (Annexure A1), whereby he has been removed from service.

2. The applicant has sought for the following reliefs:

“8.1 Summon the entire relevant record from the possession of Respondents for its kind perusal;

8.2 Upon holding the impugned order dated 22.04.2022 (Annexure A/1) as bad in law; quash and set aside the same.

8.3 Upon holding the entire enquiry proceedings conducted in pursuance of the charge-sheet dated 20.08.2021 (Annexure A/4) as bad in law; quash the entire proceedings and further command the respondents to conduct the enquiry in complete consonance with the principles of natural justice after affording due opportunity of hearing to the applicant.

8.4 Any other order/orders, direction/directions may also be passed.

8.5 Cost of litigation may also be awarded in favour of applicant.”

3. The applicant was provisionally appointed as Apprentice Junior Engineer-2 on 06.02.2002 and confirmed as such on 24.01.2003.

3.1 He was subsequently promoted to the post of Senior Section Engineer [(SSE) (Telecom)] vide order dated 24.07.2019 (Annexure A-3). The competent authority to issue the orders of promotion to the post of SSE is the Additional Divisional Railway Manager, Nagpur, an officer of Senior Administrative Grade (SAG).

3.2 A chargesheet was issued to the applicant on 20.08.2021 (Annexure A4) containing two articles of charges.

3.3 Since the applicant was facing certain medical issues from 09.11.2021 till April, 2022, he expressed his inability to attend the disciplinary proceedings through emails. However, the Inquiry Officer proceeded exparte and even not considered the medical certificate sent by the applicant, which is evident from the enquiry report (Annexure A-6).

3.4 The applicant, vide communications dated 11.04.2022 and 19.04.2022 (Annexure A-7 collectively) again request for deferring the enquiry proceedings on account of his illness. However, without considering the request of the applicant, an order dated 22.04.2022 (Annexure A-1) was passed, whereby the applicant was imposed with a penalty of removal from service by the respondent No.2.

3.5 The applicant submits that the respondent No.2 is the Disciplinary Authority of the applicant and is not empowered to impose the punishment being subordinate to the Appointing Authority, i.e. ADRM. Besides, the entire enquiry has been initiated in a biased and malafide manner, i.e. behind the back of the applicant knowing well that he is severely ill.

3.6 Moreover, the charges levelled against the applicant do not require vigilance angle and not as grave as projected by the Inquiry Officer.

4. The argument of learned counsel for the applicant was mainly on the ground that the punishment order was passed by the incompetent authority. In this regard, he has also placed reliance on the following decisions:

(i) Tej Pal Singh (dead) through Legal Representatives vs. Union of India, (2018) 12 SCC 343 [LQ/SC/2016/673] ;

(ii) Nahid Jahan (Smt.) vs. State of M.P. and Others, 2017 SCC OnLine MP 2173;

(iii) Original Application No.777 of 2009 decided by this Bench on 11.09.2013 (Manoj Sharma vs. Union of India & others) and Original Application No.200/312/2011 decided on 23.08.2019 (H.M. Meena vs. General Manager, West Central Railway and others).

5. In their reply, the respondents have stated that as per SOPGEN 2018 Part-F, item No.F-25 (Annexure R-1), appointing authority for non-gazetted post is the JAG rank officers in respect of post controlled by them. Hence, there is no question that the removal order has been passed by an incompetent authority.

5.1 The promotion from Junior Engineer (Telecom) to SSE (Telecom) is non selection post and the procedure for promotion is done on the basis of seniority-cum-suitability, which does not require approval of SAG committee as circulated by the Railway Board vide Master Circular No.37 dated 23.09.2019 (Annexure R-2). Therefore, the ADRM (SAG) is not the appointing authority of SSE (Tele) cadre.

5.2 Further, as per Para 538 (i) of Indian Railway Medical Manual, the applicant was required to produce the sick certificate from the competent Railway Doctor in the prescribed form, which has not been done by him.

5.3 The applicant was repeatedly reminded to remain present during the enquiry proceedings. But since he had chosen not to participate in the same, the enquiry proceedings were initiated ex-parte.

5.4 The applicant has not availed the statutory remedies available to him by filing any appeal or revision petition and since he has not exhausted the departmental remedy available to him, this Original Application is premature.

6. In the rejoinder, the applicant has averred that the JAG officer has got full power in respect of the posts controlled by him to make initial appointments of non-gazetted officers. But, as per the provisions contained in the Railway Servants (Discipline and Appeal) Rules, 1968, the authority which appoints a Railway Servant to a grade is also an appointing authority.

6.1 Further, the movement of an employee from lower grade to higher grade from one class to another class amounts to promotion and, therefore, it has nothing to do with selection or non-selection post.

6.2 The emails sent by the applicant show that the same were specifically addressed to the Chief Medical Superintendent and it is incorrect to say that the applicant has not given any information about his sickness in terms of the Indian Railway Medical Manual.

6.3 The entire enquiry was initiated at the behest of the vigilance department and no independent assessment of charges was taken up by the Disciplinary Authority while issuing the chargesheet to the applicant.

7. The respondents have also filed their additional reply to the rejoinder filed by the applicant reiterating their earlier stand taken in the reply.

8. We have heard the learned counsel for the parties and also perused the pleadings and the documents available on record. We have also gone through the written submission supplied by learned counsel for the applicant.

9. Since the core issue for consideration as to whether the Senior Divisional Signal and Telecom Engineer (respondent No.2) is competent to impose the penalty of removal from service upon the applicant as a Disciplinary Authority, we do not deem it appropriate to consider the other grounds raised by the applicant in his Original Application and rejoinder.

10. During the course of argument, learned counsel for the respondents has placed on record the schedule of disciplinary powers and powers of suspension of different grades of Railway Officers and Senior Supervisors in respect of non-gazetted staff of Zonal Railways. In Sl. No.4 of ScheduleII, the Junior Administrative Grade Officers and Senior Scale Officers holding independent charge or in-charge of a Department in the Division has been delegated with the power to place all classes of non-gazetted staff under suspension or to impose penalties specified in clauses (i) to (vi) of Rule 6 of Railway Servants (Discipline & Appeal) Rules, 1968. But, in the present case, the applicant has been imposed with the penalty of removal from service, which is specified in clause (viii) of the 1968 Rules. Thus, apparently, the respondent No.2 has over exceeded its jurisdiction while awarding the major penalty of removal from service for which he is not empowered to do so as per the Schedule-II.

11. We also find that the applicant was promoted as Sr. Section Engineer vide order dated 24.07.2019 (Annexure A-3) and the said promotion order was issued by the Senior Divisional Personnel Officer with the approval of the competent authority, whereas the impugned punishment order dated 22.04.2022 (Annexure A-1) has been issued by the Senior Divisional Signal and Telecom Engineer, who cannot be equated to be the appointing authority of the applicant.

12. In the case of Krishna Kumar vs. Divisional Assistant Electrical Engineer and others, (1979) 4 SCC 289, [LQ/SC/1979/288] the Hon’ble Apex Court has held as under:

“In defence of the legality of the order of removal, counsel for the respondents relies on paragraph 2 of respondent 1's affidavit, dated January 7, 1978, wherein he has stated that the power to make appointments to the post of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer. It is urged that since the Div. Asstt. Elect. Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Art. 311 (1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of respondent 1 in regard to making appointments to the post held by the appellant cannot confer upon respondent 1 the power to remove him. On the date of the appellant's appointment as a Train Lighting Inspector, respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.

Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts has been delegated to him.”

13. In the present case also, the impugned order of punishment of removal from service has been passed by the Senior Divisional Signal and Telecom Engineer, who had no authority and jurisdiction to impose the penalty of removal from service on the applicant under the relevant rules. The objection raised by the respondents that the applicant has not availed the efficacious remedies by filing any appeal or revision is overruled in view of the fact that the order passed by the Disciplinary Authority is itself found to be illegal.

14. Accordingly, this Original Application is allowed. The impugned order dated 22.04.2022 (Annexure A-1) passed by an incompetent authority is quashed and set aside being ab-initio void. However, the respondents shall be at liberty to take appropriate action in the matter through a competent disciplinary authority, in accordance with law. No costs.