Full Judgment
2. The brief facts of the case are that the applicant was faced with the disciplinary proceedings for major penalty. An oral enquiry was held, the enquiry officer held the charges as proved and punishment of removal from service was inflicted by the disciplinary authority. The applicant challenges the said penalty order before this Bench of the Tribunal vide O.A. No. 734/98, the same was disposed of vide order dated 10.6.99 with a direction to the respondents that if the applicant prefers a revision petition (Annexure A-1) the respondents will decide the same as expeditiously as possible. He accordingly preferred a revision petition on dated 2.7.99 (Annexure A-2) to the ADRM Baroda.
Pursuant to the said revision petition he was allowed personal hearing and thereafter an order dated 6/7.4.2000 (Annexure-A), was passed whereby penalty was modified as under:- Shri Jamnadas in his petition has mentioned that he has got two blind sons dependent of him. Considering the same and taking all aspects into account, I feel that the punishment awarded in higher side. Since the delinquent employee was promoted from Battery man to TCI-III, therefore he is reverted permanently as Battery man at the initial pay. The period of "Removal" will be treated as "Dies non".
As per this order he has been reverted to the post of Battery man permanently at the initial pay by treating the intervening period as dies non.
3. Further case of the applicant is that the applicant could not prefer further appeal to the General Manager but if this Hon'ble Tribunal so feel he would inclined to prefer appeal to the General Manager but in the meantime he would like that the order at Annexure A alleast is implemented without prejudice to the rights and contentions raised by the applicant in the departmental appeal against the impugned order.
Despite the specific order of the revisional authority i.e., order dated 6/7.4.2000 the applicant has not been reinstated in service and so he submitted a representation to the DRM on dated 11.7.2000 and this followed by reminders dated 13.2.2001, but no response has been result.
The applicant is having a large family consisting of five persons out of which two children are blind and his son's wife is also blind. In this view of the matter he seeking relief of reinstatement.
4. The O.A. has been filed on multiple grounds i.e., non-implementing the orders issued by them itself is ex-fade arbitrary and it tentamounts to inflicting the penalty of removal from service, the stand of the respondent is self-contradictory and one side they are taking lenient view and other side they are not implementing their own orders. The applicant is faced with the peculiar domestic problems inasmuch as the entire family is leading a miserable life and is required to have genuine legal aid etc.
5. The respondents have filed detailed counter reply to the O.A. but have stated it to be only for the purpose of opposing admission and the prayer for interim relief. However they have not found it expedient to file any detailed reply. The contention of the respondents is that the applicant passed a trade test for the post of Battery man which was at the relevant time in the scale Rs. 210-290 when he was promoted to the post of Battery man from 21.5.1986. Subsequently the post of Battery man was re-classified in the scale of Rs. 260-400/950-1500 and merged with TCM Grade II scale Rs. 950-1500. Since there is no post of Battery man the applicant could not be reverted as Battery man. Hence the matter was remitted back to the revisional authority vide letter dated 16.11.2000 to review the order given to the applicant for posting him in other post in the scale of Rs. 2650-4000 so that order can be issued. Thereafter another letter dated 29.3.2001 was issued by the divisional office Baroda requesting for his decision at an early date.
This was again followed vide letter dated 30.5.2001, lastly the revisioning authority has issued order dated 14.6.2001 revising the punishment and reverted applicant as Senior Khalasi in scale Rs. 2650-4000 at the initial pay permanently instead of reverted permanently as Battery man at the initial pay and in this view of the matter the divisional office is taking further action posting the applicant as senior khalasi and orders will be issued.
6. We have heard the learned Counsel for both the parties and carefully perused the records of this case.
7. This O.A. was presented before this Tribunal on dated 4.4.2001 and the show-cause notices were issued to the Railway on the same date. The notices were duly served on the respondents and Mr. N.S. Shevde entered his appearance on their behalf on dated 20.4.2001. As per the factual aspect of the matter is concerned, there is hardly any dispute, however we observe that the revisional authority has reviewed its own order dated 6/ 7.4.2000 vide some letter dated 14.6.2002 revising the punishment, but the copy of the same has not been placed on record.
However, as regards the other matter there is no dispute as far as the facts of the case are concerned.
8. We are constrained to observe that certain orders have been passed by revising authority in the matter and the applicant was forced to invoke the jurisdiction of this Tribunal for execution of the order of the revising authority. When the notices were sent/ served, the respondents could woke up that there is some fault in the order of revising authority which is sought to be implemented before this Tribunal. Along with the reply they came out that the matter was again referred to the same authority for revising its own order.
9. It is amazing to note that under what rule the revising authority has been given power to revising its own orders. There is no provision for 2nd revision by any authority. The relevant rules i.e., Railway Servants (D&A) Rules, 1968, Rule 25 do not envisage that same authority can revise its own order, thus the order which has been passed by the revising authority as alleged by the respondent in the reply the order dated 14.6.2001 is ex-facie, void and without jurisdiction and it is not even required to be set aside by any specific order of any Court.
We find support of this view as per the verdict of Hon'ble Supreme Court in a Constitution Bench in the case of State of Madhya Pradesh and Ors. v. Syed Qamarali, 1967 SLR page 228, there it has been held that if the order is without jurisdiction the same has no legal existence and it is nonest in the eye of law. Thus no cognizance has can been taken to the so called order passed by the revising authority in this case.
10. We are also of the considered view that once the order has come before the Tribunal for implementing or otherwise challenged the order is to be taken as it is and nothing can be added or reduced and no explanation whatsoever would be permitted to justify the stand of the respondents otherwise every order can be legalised by taking support of some affidavit or otherwise. We find support of our view in this matter by the Constitution Bench judgment of the Apex Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., AIR Constitution of India, Article 226 - Order by statutory authority - Validity of -How to be judged.
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out, AIR 1952 SC 16, Rel. on.
11. In this view of the matter the respondents are estopped from interfearing with the order of the revising authority. After all there has to be some predictability in the action of the respondents and the authorities should not play with the fundamental rights of the applicant in particular and others in general, when the question of infringment of fundamental rights has inflicted under Article 21 of the Constitution of India is raised inasmuch as the applicant has been put to almost an economic death without there being any fault from his part. The respondents cannot be allowed to enjoy premium for their wrong and also the applicant cannot be made to suffer due the fault or mistake committed by the respondents. The respondents are expected to keep their house clean and they cannot be permitted to below hot and cold together as well as reprobate and approbate. They have to act in such a fashion so that the public confidence is inspired and their action remain infact without any interference, they have to act rationally and reasonably but in the present case all these factors have been given good-bye and the applicant has been victimised.
12. We also observed that the Tribunal is not an execution Court for carrying out execution of the order which are passed by the departmental authorities and if the departmental authorities compel and drag their employees to go for litigation in such matters it is nothing but misuse of the process of the Court.
13. In view of the foregoing discussions we are of the considered opinion that there is a substance and substantial force in this O.A.and we pass the order as under: "The O.A. is allowed with costs. The cost is quantified at Rs. 2000/- and the same may be recovered from the official responsible in the matter. The applicant shall be reinstated forthwith and will be entitled to all consequential benefits and the period from 6/7.4.2000 (i.e., the date of impugned order) till his reinstatement shall be treated as spent on duty for all purpose including the arrears of pay, fixation, promotion etc. However, the respondents would be at liberty to employ the applicant on an alternative post which is carrying the pay scale equivalent to that of Battery man i.e., in the scale of Rs. 950-1500/3050-1950".
14. The registry is directed to send a copy of this order directly to the Chairman, Railway Board New Delhi so as to enable him to ensure that such instances are not repeated in future.