G. Bikshapathy, J
1. The writ petition is filed challenging the Order of Central Administrative Tribunal in O.A. No. 194 of 2003, dated 8.7.2003.
2. The petitioner is the Applicant before the Tribunal. She filed the application challenging the disciplinary proceedings initiated against her by the 3rd respondent Chief Personnel Officer, South Central Railway dated 28.10.2002 as being illegal, arbitrary and unsustainable and for consequential declaration that she is liable to be treated to have been promoted as Senior Personnel Officer from 31.1.2003, the date on which Mr. S. Subba Rayudu was promoted to the said post and for attendant benefits.
3. Certain facts leading to the filing of O.A. by the Applicant are narrated thus:
Petitioner joined the Railways as Clerk in 1980 and she was being promoted to higher posts from time to time. Finally, she was promoted to the post of Assistant Personnel Officer with effect from 21.7.1994. It is the case of the petitioner that she was deputed as Member to represent the Personnel Branch to the Selection Committee for filling up 33 1/3% posts from Group-D employees by promotion. According to notification issued by the Railways, 18 posts were to be filled up and brake up thereof was O.C. 14 S.C. 3, and S.T.-1 respectively. The selection committee was headed by Mr. Manish Arora, District Controller of Stores, P. Rama Rao, Senior System Manager representing the reserved community and the petitioner. Interviews were conducted on 7.12.2001 and 33 candidates were interviewed, panel of 18 names were prepared based on the selection process. 7 candidates belonging to S.C. category and one candidate belonging to S.T. were also in the selected panel. The candidates cleared by the selection committee were promoted to the post of Junior Clerks by an Order dated 13.12.2001 by the competent authority. It appears that some enquiry was conducted by the Vigilance Department relating to the selection of the candidates for promotion to the post of clerks from Group-D category and the petitioner was also asked to furnish some information, which was supplied by her. Subsequently, it appears that the respondent issued Orders on 20.6.2002 cancelling the panel prepared on the alleged grounds, that some irregularities were observed in the selection process. Aggrieved by the said cancellation, some of the employees filed O.As. before the Tribunal and the Tribunal passed Orders on 20.6.2002 allowed O.A. cancelling the promotion Orders. Thereafter, the petitioner has been served with a major penalty charge memo under Rule 9 of the Railway Service (Discipline and Appeal) Rules, 1968 dated 28.10.2002. Two charges were framed against the petitioner. It is stated that the petitioner committed irregularities in selecting the candidates for promotion from the post of clerks without following the principle of reservation thereby 2 O.C. candidates were denied the promotion. The petitioner submitted explanation to the charge-sheet and tried to vindicate her action by stating that the selection process was in accordance with rules and she also stated that the charges as framed would not fall within the description of misconducts attracting the disciplinary provisions as at the most, it would be error of judgment, but not an act of delinquency. She also stated that the procedure following was not only in conformity with the guidelines issued by the Railways, but also in accordance with the judgment of the Supreme Court in
4. The learned Counsel for the petitioner Mr. Nooty Rama Mohana Rao submits that the very initiation of disciplinary proceedings is illegal and incompetent, inasmuch as no misconduct can be attributed to the petitioner. He further submits that when no misconduct is alleged issuing a charge-sheet and proceeding further with the departmental enquiry is nothing but humiliation and harassment to the petitioner. He continues to submit that the promotion panel was prepared by the Committee consisting of three members including the petitioner and therefore, the petitioner cannot be proceeded with on the ground that she has committed certain misconducts warranting major punishments. Even on merits also, he submits that the panel prepared by the Committee is quite legal and valid and it is in accordance with rules. The learned Counsel would also submit that when the charges as framed against the petitioner would not comprehend within the four corners of misconduct, subjecting further enquiry is wholly without jurisdiction. But, however, the Tribunal erred in observing that it is premature basing on the judgment referred to above. Thus, he submits that the Order of the Tribunal is liable to be set aside and the charge-sheet is liable to be quashed.
5. On the other hand, the learned Standing Counsel for the Railways, however, submits that when once the charge-sheet has been issued, it is open for the petitioner to submit the explanation and face the departmental enquiry. But, she cannot challenge the same which is nothing but pre-empting the right of management to proceed against her in a departmental enquiry. The Tribunal has quite correctly observed that the O.A. as filed was premature and therefore, the Order passed by the Tribunal is quite legal and valid. He also submits that the Committee consisting of three members, the petitioner, being the Personnel Officer is expected to guide the Committee members for preparing the panel in accordance with the Rules. The S.C. candidates were unduly placed in the panel with the result, the O.C. candidates, who ought to have been promoted as Clerks were denied the same. Therefore, the preparation of panel is contrary to the guidelines issued by the Railways and it is a misconduct attracting the disciplinary proceedings against the petitioner. Thus, he submits that the Order of the Tribunal is quite legal and valid and the same is unassailable.
6. The issue that arises for consideration is the Order of the Tribunal in dismissing the application on the ground of premature is sustainable?
7. The facts are not much in dispute. The Committee consisting of three members inferred to above was constituted for preparing the panel of promotees from the Group-D posts to clerical cadre. Panel of 18 candidates has to be prepared with reservation. 3 S.C., candidates, 1 S.T. candidate and balance open competition. It is also not in dispute that the panel was prepared. Ultimately, the competent authority promoted the candidates who were empanelled in the promotion list, but when the said promotions were sought to be cancelled, they were challenged by the promotees before the Central Administrative Tribunal and the O.As. were allowed by the Tribunal on the ground that the Order was in violation of the principles of natural justice. But, however, it is not known as to what further proceedings were initiated in the matter. But, the Railway Administration issued charge-sheet to the members of the Committee alleging misconduct under Rule (3) of the Conduct Regulations. We are not concerned with the charges framed against the other members. As far as the petitioner is concerned, the charge-sheet was issued with the following charges:
"Article-1
That the said Smt. B. Vana Kumari, APO/ Rules/HQ, while functioning as a Member of the Selection Committee for selection to the post of Jr. Clerks from Group ''D'' to Group ''C'' against 33 1/3% quota in Stores Department held in December, 2001, had committed serious misconduct, in that, she failed to adhere to the rules governing empanelment of candidates that result irregular empanelment of two ineligible S.C. candidates against UR posts in the selection depriving 2 eligible UR candidates from being empanelled.
Thus, Smt. B. Vana Kumari, APO/Rules/HQ, failed to maintain devotion to duty and acted in a manner unbecoming of a Railway Servant violating Rule No. 3 (1)(ii) and (iii) of the Railway Services (Conduct) Rules, 1966.
"Article-1I:
That the said Smt. B. Vana Kumari, APO/ Rules/HQ, while functioning as a Member of the Selection Committee for selection to the post of Jr.Clerks from Group ''D'' to Group ''C'' against 33 1/3% quota in Stores Department held in December, 2001, had committed serious misconduct, in that, she recommended a panel of 18 employees consisting names of two ineligible employees, as detailed in the statement of imputations, contrary to the Selection Rules resulting cancellation of the so formed panel of 18 employees for promotion to the post of Jr. Clerk-cum-Typist from Group ''D'' to Group ''C'' causing unwarranted situation to the Administration.
Thus, Smt. B. Vana Kumari, APO/Rules/HQ has failed to maintain devotion to duty and acted in a manner unbecoming of a Railway Servant violating Rule No. 3(1)(ii) and (iii) of the Railway Services (Conduct) Rules, 1966."
8. The issue that arises for consideration is whether the charges alleged against the petitioner are falling within the parameters of the misconduct?
9. The Railway Servants are governed by the provisions contained in the Railway Services Conduct Rules, 1960. Various misconducts have been specified under the said Rules warranting initiation of disciplinary proceedings and imposing punishment in accordance with the procedure contained in Railway Servants (Discipline and Appeal) Rules, 1968. However, Rule 3 is general in nature specifying certain misconducts of general nature. The misconduct alleged against the petitioner are grouped in Rule (3) which is extracted below:
"3. General :--(1) Every Railway Servant shall at all times:
(i) maintain absolute integrity:,
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Railway Servant.
(2) (i) Every Railway Servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Railway Servants for the time being under his control and authority;
(ii) Every Railway Servant shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in the best judgment except when he is acting under the direction of his official superior;
(iii) The direction of the official superior shall ordinarily be in writing, and where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter, and
(iv) A Railway Servant, who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible whereupon it shall be the duty of the official superior to confirm the direction in writing."
10. The issue relating to interpretation of misconduct as to its applicability has come up for consideration before the Supreme Court in catena of decisions. Similar expression of general nature of misconduct is also contained in Industrial Standing Orders as well as the Conduct Rules of the Government Servants. In
"(10) Drunkenness, fighting, indecent or disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees or conduct likely to cause a breach of the peace or conduct endangering the life or safety of any other person, assault or threat of assault, any act subversive of discipline and efficiency and any act involving moral turpitude, committed within the premises of the establishment, or in the vicinity thereof;
(16) Conduct of a workman singly or in combination with- others endangering the lives or the safety of other workmen or endangering the safely of the Company''s premises, machinery or equipment;
(30) Being rude towards officers, employees, customers of and visitors to the company."
11. The Company has proceeded against the workmen alleging that the Workmen resorted to illegal strike near the factory gate and intimidated and obstructed the other workers desirous of joining duty. Thereupon, Company approached the Civil Court and obtained ex parte injunction restraining the workmen indulging in unfair and illegal activities. It was alleged that some of the striking men including the delinquent-workman boarded the bus and during the journey in the bus at different places manhandled the loyal workmen. This part on the part of the workman was treated as misconduct under clause 10, 16 and 30 of the Standing Orders. Accordingly, they were charge-sheeted and removed from service. When the matter came up for consideration before the Labour Court, the Labour Court held that the Company was not entitled to charge-sheet the delinquent workman for the alleged misconduct said to have been committed by them outside the establishment and not in the vicinity thereof and a writ petition filed by the Company, the Division Bench of Allahabad High Court affirmed the findings of the Tribunal. Therefore, the matter was carried before the Supreme Court. The Supreme Court primarily considered the question as to whether various acts of misconduct collocated in clause 10 would attract misconduct punishable under Standing Order 23, if committed within the premises of the establishment or in the vicinity thereof or irrespective of the time-place content, they are per se such acts of misconduct that they would be punishable notwithstanding where and when they were committed. The Supreme Court after referring to various decisions on this point, however, upheld the findings of the Labour Court. Thus, holding that the alleged misconduct would not comprehend within the misconduct enumerated in the Clause 10 of the Standing Orders. One of the contention raised before the Supreme Court was that expression misconduct committed within the premises of the establishment or in the vicinity thereof can qualify only the expression "any act subversive of discipline and efficiency and any act involving moral turpitude'' but not the earlier portion of the clause. But, this was rejected by the Supreme Court by observing as follows:
"13. After reading Clause 10, Mr. Shanti Bhushan contended that the expression ''committed within the premises of the establishment or in the vicinity thereof can qualify only the expression ''any act subversive of discipline and efficiency and any act involving moral turpitude'' but not the earlier portion of the clause. Numerous acts of misconduct have been collocated in Clause 10 such as drunkenness, fighting, indecent or disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees etc. Says Mr. Shanti Bhushan that these acts of misconduct are per se misconducts that each one of them cannot have any correlation to the time or place where it is committed and each one of them is an act of misconduct irrespective of the time and place where it is committed. Expanding the submission, it was urged that drunkenness is such a socially reprehensible action that if it is committed within the premises of the establishment or in the vicinity thereof or anywhere else at any point of time it would nonetheless be an act of misconduct comprehended in Clause 10 and punishable, under Standing Order 23. If this construction were even to be accepted the employer will have more power than the almighty State because State chooses to punish drunkenness in public place. But on the construction canvassed for if a man consumes liquor in his own house with the doors closed and gets drunk, the employer can still fire him. If a man uses abusive language towards his close relation in his own house with closed door, the employer would be entitled to fire him, and this approach overlooks the purpose of prescribing conditions of service by a statute. To enable an employer to peacefully carry on his industrial activity, the Act confers powers on him to prescribe conditions of service including enumerating acts of misconduct when committed within the premises of the establishment. The employer has hardly any extra-territorial jurisdiction. He is not the custodian of general law and order situation nor the Guru or mentor of his workmen for their well regulated cultural advancement. If the power to regulate the behaviour of the workmen outside the duty hours and at any place wherever they may be was conferred upon the employer, contract of service may be reduced to contract of slavery. The employer is entitled to prescribe conditions of service more or less specifying the acts of misconduct to be enforced within the premises where the workmen gather together for rendering service. The employer has both power and jurisdiction to regulate the, behaviour of workmen within the premises of the establishment, or for peacefully carrying the industrial activity in the vicinity of the establishment. When the broad purpose for conferring power on the employer to prescribe acts of misconduct that may be committed by his workmen is kept in view, it is not difficult to ascertain whether the expression ''Committed'' within the premises of the establishment or in the vicinity thereof would qualify each and every act of misconduct collocated in Clause 10 or the last two only, namely, ''any act subversive of discipline and efficiency and any act involving moral turpitude''. To buttress this conclusion, one illustration would suffice. Drunkenness even from the point of view of prohibitionist can at best be said to be an act involving moral turpitude. If the misconduct alleging drunkenness as an act involving moral turpitude is charged, it would have to be shown that it was committed within the premises of the establishment or vicinity thereof but if the misconduct charged would be drunkenness the limitation of its being committed within the premises of the establishment can be disregarded. This makes no sense. And it may be remembered that the power to prescribe conditions of service is not unilateral but the workmen have right to object and to be heard and a statutory authority namely, Certifying Officer has to certify the same. Therefore, keeping in view the larger objective sought to be achieved by prescribing conditions of employment in certified Standing Orders, the only construction one can put on Clause 10 is that the various acts of misconduct therein set out would be misconduct for the purpose of Standing Order 22 punishable under Standing Order 23, if committed within the premises of the establishment or in the vicinity thereof."
12. In
"The conduct of the petitioner in suppressing the material facts and misrepresenting his past on the material aspect cannot be said to be a good conduct. On the contrary it is unbecoming of him that he should have deliberately suppressed the material fact and tried to obtain employment by deceiving the Municipal Corporation. It is clearly a misconduct."
The Supreme Court disagreed with the said observations.
13. In
Government of Tamil Nadu v. K.N. Ramamurthy (1997 S.C. 3571)
Taking into consideration the aforesaid judgments, two issues arose for consideration before the Supreme Court:
(1) If levy of penalty under Rule 173-Q is obligatory? And
(2) Was there enough any background material for the Central Government to form a prima facie opinion to proceed against the Officer on the charge of misconduct, on his failure, to levy penalty under Rule 173-Q?
The Supreme Court observed in Para 36 as follows:
"The question is : If such a stance by the appellant was to "favour" the assessee or the officer was rightly of the view that it was not a case of levy of penalty. It is a quasi-judicial order. Merely because penalty imposable has not been imposed, which was obligatory for the officer to impose, could it be said that it is a case of misconduct and he is liable to be proceeded against? The officer did impose the excise duty and also ordered confiscation of the goods. What is the evidence before the authority to come to prima facie view of levying charge of misconduct on the officer? He was served with the memorandum dated September 2, 1997. It was accompanied with Annexure I (Article of charge), Annexure II (Statement of Imputations of misconduct or misbehaviour in support of (he Article of Charge), Annexure HI (List of documents) and Annexure IV (List of witnesses). Article of charge we have reproduced above. Statement of Imputations of misconduct or misbehaviour referred to the Order in Original passed by the officer and his explanation as to why he did not think it fit to impose penalty. List of documents mentions only three documents, namely, Order-in-original, (2) order of the Board u/s 129 of the Act for filing appeal and (3) explanation dated November 18, 1996 of the Officer. There is no witness mentioned in the list of witnesses. So the Order in Original, the explanation of the officer and the direction of the Board for filing appeal are the basis for the charge of misconduct or misbehaviour."
Deliberating on the jurisdiction of the authority to initiate disciplinary proceedings in respect of the negligence in discharging of a quasi-judicial adjudication, the Supreme Court observed in Para 40 thus:
"When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness inadvertence or omission but as culpable negligence. This is how this Court in
The Supreme Court further observed in Paras 41, 42, 43 and 44 as follows:
"41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed ''favour'' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal.
42. Initiation of disciplinary proceedings against an officer cannot take place on an information, which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed."
Thus, the Supreme Court held that the initiation of disciplinary proceedings is illegal and unwarranted.
14. In
"Article I
Shri A.L Kalra while functioning as Deputy Finance Manager-Grade II in the Finance Division of the PEC during April, 1979 applied and drew an advance of Rs. 16,050/-for purchase of a plot of land at Faridabad. But he did not furnish the relevant documents in the office nor did he refund the amount of advance to the Corporation within two months of the date of drawal of the advance as required under Rule 10(1)(c)(i) of PEC House Building Advance (Grant and Recovery) Rules.
Shri Kalra by his above act exhibited lack of integrity and conduct unbecoming of a public servant and violated Rule 4(1) and (iii) and Rule 5(5) of the PEC Employees'' (Conduct, Discipline and Appeal) Rules and Rule 10(1)(c)(i) of PEC House Building Advance (Grant and Recovery) Rules and thereby committed misconduct punishable under the PEC Employees'' (Conduct, Discipline and Appeal) Rules, 1975.
Article-1I
Shri A.L. Kalra drew a conveyance advance of Rs. 11,000/- in July, 1979 for purchasing a motor-cycle, but did not utilise the amount for the above purpose and did not furnish cast receipt etc., evidencing purchase of the vehicle within one month as required under Rule 8 of the PEC Conveyance Advance (Grant and Recovery) Rules. Nor did he refund the amount of advance to the Corporation as required under Rule 10 (1) ibid
Shri A.L. Kalra by his above act exhibited lack of integrity and conduct unbecoming of a public servant and violated Rule 4(1)(i) and (iii) and Rule 5(5) of PEC Employees'' (Conduct, Discipline and Appeal) Rules and also violated Rule 8 and Rule 10(i) of the PEC Conveyance Advance (Grant and Recovery) Rules and thereby committed misconduct punishable under the PEC Employees'' (Conduct, Discipline and Appeal) Rules, 1975."
The appellant was also asked to submit his defence statement within 10 days from the date of the receipt of the memorandum. The appellant by his letter dated February, 13, 1980 requested for extension of time to file the defence statement. It appears that he sought further extension of time by three weeks which request was declined by the memorandum dated February 23, 1980. The Committee of Management in exercise of the powers conferred by Sub-rule (4) of Rule 27 of the 1975 Rules appointed Shri A.S. Nangia, Chief Marketing Manager as the Enquiry Officer to enquire into the charges against the appellant. The appellant submitted on June 13, 1980 a detailed statement pointing out that the inquiry was the outcome of malice for various reasons therein mentioned and also explaining why there was delay in refunding the advances and specifically pleaded that in view of the fact that the first advance was sought to be recovered by withholding his salary and adjusting the pay towards advance and charging penal interest and in the second case by accepting the document evidencing purchase of scooter, no misconduct could be said to have been committed by the appellant and the disciplinary enquiry was uncalled for. Various other contentions were also raised in the defence statement. The Enquiry Officer conducted the enquiry in respect of the aforementioned two charges. One U.S. Aggarwal, Finance Manager of the Corporation appeared as Presenting Officer. The appellant conducted his own defence."
On the basis of the report of the Enquiry Officer, the disciplinary authority imposed punishment of removal from service. His appeal before the Board was also negatived. On a writ petition filed before the Delhi High Court, the contention raised before the High Court inter alia was that the enquiry was held in violation of principles of natural justice and the disciplinary authority failed to give reasons in support of the Order and therefore, it is in violation of Articles 14 and 16 of the Constitution of India. Further, it was also contended that the charges themselves do not conduct within the expression of the Rules. The Division Bench dismissed the writ petition observing that the writ petition itself was not maintainable as no writ petition could be filed against the Company. On a Special Leave Application filed by the employee, the Supreme Court held that the writ petition was maintainable. While delving upon the facts, the Supreme Court observed in Paras 22 and 23 thus:
"22. Rule 4 bears the heading ''General''. Rule 5 bears the heading ''misconduct''. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals arid expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in
23. Mr. Ramamurthi learned Counsel for the appellant further contended that the very initiation of the disciplinary enquiry and imposition of punishment of removal from service is thoroughly arbitrary and discloses a vindictive attitude on the part of the respondent-Corporation. It was urged that the two heads of charges per se do not constitute any misconduct and they can be styled, as trumped-up which even, if held provide would not render the appellant liable for any punishment. The two heads of charges have been extracted hereinbefore. Charge No. 1 refers to the drawal of a House Building Advance and failure to comply with the requisite rules prescribed for House Building Advance. According to the finding recorded by the Inquiry Officer, the failure of the appellant to refund the amount of advance to the respondent-Corporation within two months of the date of the drawal would be violative of Rule 10(1)(c)(i) of the House Building Advance Rules and it would constitute misconduct within the meaning of the expression in Rule 4(1)(iii) of 1975 Rules. Rule 10(1) provides that the advance shall be drawn in installments as prescribed in various sub-clauses. The relevant sub-clause in this case is Sub-clause (c) which provides that "when advance is required partly for purchase of land and partly for constructing a single storied new house thereon, (i) not more than 20% of the sanctioned advance on execution by the applicant employee an agreement in the required form for repayment of the advance. The amount will be payable to the applicant only for purchasing a developed plot of land on which construction can commence immediately and sale deed in respect thereof be produced for the inspection of CPM/RM within two months of the date on which 20% of the advance is drawn or within such further time as the CPM/RM may allow in this behalf failing which the employee shall be liable to refund at once the entire amount to the Corporation together with interest thereon". A bare reading of the relevant rule will show that it provides for obtaining advance, which in this case was taken for purchasing a plot. The Inquiry Officer accepts the evidence of Mr. Chugh that the appellant had negotiated with him for purchase of a plot but some dispute arose about some additional expenditure and the negotiations protracted over a period of six months. Now para 1 Sub-clause (c) confers on CPM/RM/power to extend the time for finalising the deal or call upon the employee to refund the entire amount and he is liable to pay interest thereon. This is the only consequence of taking advance and failure to keep to the time-schedule. The relevant rule is a self-contained provision, providing for the condition for grant of advance, time table for repayment and consequence of failure to keep to the time schedule. The House Building Advance was drawn on April 4, 1979. On November 13, 1979 the appellant was asked to refund the entire amount. Immediately on November 16, 1979, an order was made withholding the entire salary of the appellant. Even the Inquiry Officer was constrained to observe that the appellant was exposed to double jeopardy inasmuch as his salary as a whole was withheld and he was being removed from service. It is also pertinent to note that the Inquiry Officer is not clear when he said ''that once the power to extend the time to repay the advance is conferred and penal interest is charged, is any rule violated''. This is not an attempt to reappreciate evidence in the case but the entire thing is being analysed to point out that the action apart from being arbitrary is motivated and unjust. If the rules for granting the advance themselves provided the consequence of the breach of conditions, it would be idle to go in search of any other consequence by initiating any disciplinary action in that behalfunless the 1975 Rules specifically incorporate a rule that the breach of House Building Advance Rules would by itself constitute a misconduct. That is not the case here as will be presently pointed out. Seeking advance and granting the same under relevant rules, is at best a loan transaction. The transaction may itself provide for repayment and the consequence of failure to repay or to abide by the rules. That has been done in this case. Any attempt to go in search of a possible other consequence of breach of contract itself appears to be arbitrary and even motivated. However, the more serious infirmity in framing this head of charge is that according to the inquiry officer this failure to refund the advance within the time-frame in which it was sanctioned constitutes violation of Rule 4(1)(iii). Let us turn to the charge-sheet drawn-up against the appellant. Under the first head of charge it was stated that the appellant was guilty of misconduct as prescribed in Rule 4(1)(i) and (iii). Rule 4(1)(i) provides that every employee shall at all times maintain absolute integrity. How did the question of integrity arise passes comprehension. The appellant applied for House Building Advance. Inquiry Officer says that the appellant had negotiated with Mr. Chugh for purchase of a plot. There is not even negative evidence or evidence which may permit an inference that the house building advance was utilised for a purpose other than for which it was granted. Therefore Rule 4(1)(i) is not only not attracted but no attempt was made before us to sustain it. And as far as Rule 4(1)(iii) is concerned, we fail to see how an advance not refunded in time where it was recovered by withholding the salary of a highly placed officer discloses a conduct unbecoming of a public servant. Therefore, the first head of charge is an eyewash. It does not constitute a misconduct if it can be said to be one even if it remains unrebutted. The Inquiry Officer has not said one word how the uncontroverted facts constitute a conduct unbecoming of a public servant, or he failed to maintain absolute integrity."
Finally, the Supreme Court held in Para 26 thus:
"No if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se under 1975 Rules the respondent had neither the authority nor the jurisdiction nor the power to impose any penalty for the alleged misconduct. An administrative authority who purports to act by its regulation must be held bound by the regulation. ''Even if these regulations have no force of law the employment under these corporations is public employment, and therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulations''.
While summing up, the Supreme Court observed that (i) that the action is thoroughly arbitrary and is violative of Article 14(ii) that the alleged misconduct does not constitute misconduct within the 1975 Rules; (iii) that the Inquiry Officer himself found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double jeopardy; and (iv) that the findings of the Inquiry Officer are unsupported by reasons and the order of the Disciplinary Authority as well as the Appellate Authority suffer from the same vice.
15. Therefore, a reading of the aforesaid decisions in respect of the jurisdiction of the disciplinary authority to initiate action would be available only if the act is alleged or complained of against the Officer falls within the enumerated misconduct. Admittedly, in the instant case, misconduct was grouped on the general type of misconducts. Therefore, it has to be necessarily scanned whether the alleged omission or commission on the part of the petitioner is a general misconduct attracting the expression "unbecoming of an Officer of the Railways", as to facts are already narrated above would clearly establish that she was the member of the selection committee and selection committee prepared panel of promotees. The thrust of the argument of the Railways was that the panel was not prepared in accordance with rules and therefore, two O.C. candidates were denied the promotion. But, this contention is wholly unsustainable inasmuch as, the competent authority to promote the employees is not the petitioner when the panel of promotees placed before the competent authority, it is the bounden duty of the competent authority to ensure whether the panel has been prepared properly or whether there was any omission or commission. If it finds that there are any commissions or omissions, it is always open for the competent authority to send back the selection list to the selection committee or set right by himself. But, can it be said that the members of the Committee have committed any misconduct in the absence of any allegations of mala fide, corruption or misconduct touching the integrity of the Officer. Obviously, no such allegation on those lines were made except stating that the preparation of panel has denied the promotion to two O.C. candidates. Further, it is also on record that the petitioner had been contending throughout that the panel was prepared in accordance with rules and also the principles laid down by the Supreme Court. But, the preparation of panel even assuming that it is not in accordance with the guidelines cannot be said to be a misconduct, when the higher authority is ultimate authority, who is competent to issue promotion Orders. It cannot be found fault with the members of the selection committee. Admittedly, in the instant case, the reason for initiating the disciplinary proceedings appeared to be extraneous. When the promotion Orders were cancelled by the authority on the presumption that they were not in accordance with the rules or regulations by the Railway Board, they were challenged by the promoted employees and the Tribunal has set aside the Orders of cancellation on the ground that no opportunity was given. Obviously, the Orders were passed in violation of principles of natural justice. But, to evade the responsibility on the part of the Administration, and without proceeding further with the matter by issuing notice to the promotee candidates, axe was sought to be turned on the selection committee members on the premise that the panel was prepared in contravention of the rules. As already observed that there was no charge of the collusion, favouritism or corruption in preparing panel. In such case, it cannot be held that it is a misconduct within Clause 3 of the Conduct Rules. When the competent authority failed to discharge his duties and to scrutinise the panel if at all he finds some omissions or commissions, it is always within his competence to set right the panel. Finding fault with the members of the D.P.C. would be nothing, but passing deficiencies on the part of the competent Officer so as to save himself from the situation, it was created on account of the cancellation of the promotion Orders without notice. It is also not in dispute that when the charges as framed do not fall in the expression "misconduct" it would be appropriate for the employee to challenge the same even before the departmental enquiry is initiated as held by the Supreme Court referred to above. Otherwise, it would be an humiliation to the honest and devoted Officers to face the departmental enquiry in respect of the act which is not a misconduct within the Conduct Rules. Even in
16. Under those circumstances, we are of the view that the Tribunal failed to consider this aspect in proper prospective and rendered an erroneous judgment.
17. Accordingly, we set aside the Order of the Tribunal and quash the charge-sheet dated 28.10.2002. However, it is stated in the O.A. filed by the petitioner that on account of the pendency of the charge-sheet, her case for further promotion was withheld and her juniors were promoted. In view of our finding that the charge itself is incompetent, the authorities are directed to consider her case for promotion to higher post from the date when her immediate junior was promoted ignoring the charge-sheet dated 28.10.2002. This exercise shall be done within a period of two months from the date of receipt of a copy of this Order.
18. The writ petition is allowed accordingly.
19. No costs.
