SOMARAJU Vs. UNION OF INDIA

JUDGEMENT

(1.) The controversy is very short in this case but the point raised is important. The petitioner was working as a Teacher with the respondents from 1967. He was placed under suspension by an order dated 3-10-85. The allegations against the petitioner were that while he was working as Graduate Assistant in the Railway High School, Bitragunta he had misbehaved with a girl student who was studying in 9th class during the interval on 26-7-1985. He was asked to give his explanation. After he gave explanation a charge memo dated 18-10-85 was served on him. There was no action for some time but the charge memo dated 18-10-85 was cancelled by an order dated 8-4-86. Thereafter, a fresh charge memo was issued on 25-4-86. The earlier charge memo had been issued under Rule 11 of Railway Servants Discipline and Appeal Rules, 1968 which would attract a minor penalty, but the later charge memo issued on 25-4-86 was under rule 9 of Railway Servants Discipline and Appeal Rules which would attract major penalty. This charge also alleged that while he was functioning as a Teacher he had committed misconduct and misbehaved with a student on 26-7-85. The case of the petitioner was that, although occurrence was same but the allegations leveled in the earlier charge memo were altogether different than the allegations leveled in the second charge memo. The petitioner submitted his explanation on 15-6-86 denying the charges. The respondents appointed Assistant Personnel Officer (Mechanical), South Central Railway, Vijayawada as Enquiry Officer to enquire against the charges leveled against the petitioner. Enquiry was held. Statement of witnesses had been recorded. The petitioner also produced two witnesses. The statement of the petitioner was also recorded. The Enquiry Officer was of the opinion that the charge against the petitioner was proved and he submitted his report on 29-10-86. Thereafter an order of removal from service was passed against the petitioner on 3rd December, 1986. Aggrieved by the order of removal the petitioner preferred an appeal to the Divisional Manager, South central Railway, Vijayawada on 14-12-1986 under Rule 22 of the Railway Servants Discipline and Appeal Rules, 1968. The said appeal was also rejected by an order dated 30th December,1986. Against the order of removal and order passed in the appeal a review petition was filed by the petitioner under Rule 25 of the Railway Servants Discipline and Appeal Rules. The review petition was dismissed on 14-6-87. Thereafter the petitioner approached Central Administrative Tribunal, Hyderabad Bench through O.A.No. 428/87. The O.A was contested by the respondents. This O.A was dismissed by Central Adminsitrative Tribunal on 7-8-87. A ground had been taken in the O.A that the authority who had removed the petitioner from service was not competent to remove him from the service. This ground had not been addressed to by the Tribunal in its judgment dated 7-8-87. Therefore, the petitioner filed a review application No. 31/87 before the Central Administrative Tribunal, Hyderabad seeking review of the judgment. This application was allowed by the Central Administrative Tribunal, Hyderabad and the order of removal as confirmed by the authorities in appeal and review was set aside. Though the order was set aside the petitioner was not taken back into service. He filed a contempt petition being C.C.No. 23/88 before the Tribunal. The contempt petition was disposed of by the Tribunal on 22-8-88 directing the respondents to implement the order dated 29-2-88 within a period of two months from the date of receipt of the order. Although the petitioner was not reinstated to his job but the respondents issued proceedings on 1-11-88 allowing him to draw his salary on the basis of notional reinstatement with effect from 1-11-88 at the rate at which he was drawing salary at the time of removal from service. He was not given any work to perform. In the meantime, it is submitted that the respondents approached the Supreme Court and filed an SLP being SLP No. 13455/88 challenging the order passed in Review by the Tribunal. This S.L.P was entertained by the Supreme Court on 16-1-89 but no stay was granted. Leave was granted and the SLP was numbered as Civil Appeal No. 175/89. The appeal was ultimately dismissed by the Supreme Court by an order dated 30th March, 1995. Even after the dismissal of the appeal by the Supreme Court the consequential benefits arising out of quashing of the review order were not given to the petitioner in spite his making representations on 7-4-95 and 7-6-95. Therefore, he filed a Miscellaneous Application No. 767/95 before the Central Administrative Tribunal seeking directions to implement the judgment dated 29-2-88 in Review Application No. 31/87. This was disposed of by the Tribunal on 8-9-95 directing the respondents to dispose of the representations made by the petitioner within a period of one month. In spite of this no action was taken. Although the Supreme Court had passed the order on 30-3-95 nothing was done by respondents till 26-2-96 when an order had been passed by the 1st respondent in proceedings No. P.90/D&A/BZA/CHSR/701 removing the petitioner from service on the charges on which he had been removed from service earlier. Aggrieved by the order of removal the petitioner again filed an appeal before the Railway Board. This appeal was rejected on 17-4-97. Thereafter, the petitioner again came to the Tribunal challenging the order of removal and rejection of his appeal through O.A.No. 849/97. This O.A. has been dismissed by the Tribunal therefore this Writ petition has been filed.

(2.) The facts have been mentioned in detail so that the controversy that is required to be settled by this Court is appreciated in its correct perspective. The learned counsel for the petitioner has only raised one question which relates to the legality or otherwise of the action of respondent No.1 in reopening the matter after it had been decided by the Supreme Court and ordering removal of the petitioner from service. It is contended that once the matter was finally decided by the Supreme Court no authority judicial or administrative had any power to reopen the matter. On the other hand the submission made by the learned counsel for respondents was that the Tribunal had found a technical fault with the order of removal, the fault being that it had not been passed by a competent authority, therefore the disciplinary proceedings till the time of completion of enquiry and submission of report of enquiry was valid and only the order of termination had been vitiated as it had been passed by an incompetent authority, therefore the competent officer in the department could pass a fresh order based on the enquiry report.

(3.) Now, in the light of the argument of the counsel for the petitioner and the counter argument of the respondents counsel the orders passed by the Tribunal and the Supreme Court will have to be looked into. The operative portion of the order of the Tribunal in R.A.No. 31 of 1987;