B.C Misra, J.:— The petitioner has filed this writ petition against his removal from service. The impugned order ordering removal, was passed by the General Manager on 20th July, 1968 upon suo moto review of an earlier order dated 9th October, 1967 passed by the Divisional Mechanical Engineer who had reduced the petitioner in rank. During the pendency of the petition, the removal was confirmed by the Railway Board by dismissal of appeal of the petitioner on 3/6 March, 1969. The petitioner feels aggrieved by them. The material facts of the case are that the petitioner was employed in the Northern Railway as Driver Grade-C since 1st of October, 1943. The accident occurred on 11th May, 1957. On that day he was working on the Goods Train and he over-shot the railway signal which was ‘ON’ and the train was derailed in Sand Hump at MSDR. This led to the charge-sheet of the petitioner and a formal inquiry. The inquiry Officer's report dated 28th May, 1909 found the petitioner guilty of the charge of over-shooting the starter and thereby causing derailment. The record and the findings were accented by the Discipline Authority who awarded the punishment of reduction to the rank of Shunter Grade B for a period of 9 months. It is significant to notice that the petitioner never filed any appeal or revision against the said order in or did he challenge the findings of the inquiry Officer. The petitioner, on the other hand, began to suffer the awarded punishment from 11th October, 1967 which lasted till 11th July, 1968.
2. During this period the—General Manager, respondent No. 2, on 20th March, 1968 issued a show cause notice to the petitioner (Annexure ‘B’) intimating that in exercise of the power under Rule 1736 of Indian Railway Establishment Code Vol. I, he had reviewed the order of punishment of reduction in rank passed by the Divisional Mechanical Engineer on 9th October, 1967 and he considered that the action taken was not commensurate with the gravity of the offence and called upon the petitioner to show cause why the enhanced penalty of removal from service should not be imposed. The petitioner submitted a long representation. The General Manager thereupon passed the impugned order on 20th July, 1968 (Annexure—A) ordering the removal of the petitioner from service. Appeal against the same was dismissed by the Railway Board on 3rd March, 1963. The petitioner has assailed the said order in the writ petition. His learned counsel Mr. Gaur has contended that the power of review conferred by Rule 1736 of the Indian Railway Establishment Code Volume I. is illegal and unconstitutional as it is unguide 1 and the exercise of the power against the petitioner in the instant case was illegal and discriminatory and no reasons have been given by the authorities for enhancing the penalty and the impugned orders are not ??? orders Mr. Gaur has further contended that the Railway Board in deciding the appeal his refused to hear the petitioner in person and this has resumed in injustice. A counter-affidavit to the writ petition has been filed on behalf of the respondent by Shri R.L Dhawan, Assistant Personnel Officer in which he has denied the contentions of the petitioner. He his also brought to light the fact that the petitioner had no unblemished record of service ani he had been punished 38 times during the period of his service prior to the punishment in dispute. Along with the affidavit, two preliminary reports of the President of the Inquiry Committee have also been filed. This Committee had held an inquiry into the accident when it occurred and it same to the conclusion that the brake vacuum power came to 88.3% which was more than the prescribed limit of 85% and that the accident had occurred due to late application of brake by the driver, and that the petitioner was responsible for pissing down loop starter signal. Rejoinder to the counter-affidavit has been filed by the petitioner. I have heard Mr. Gaur, learned counsel for the petitioner at length. Rule 1736 of the Indian Railway Establishment Code Vol. I reads as follows:—
“1936—Review of orders in disciplinary cases—
(1) The Railway Board, a General Manager and any officer not below the rank of a Deputy Head of Department or Divisional Superintendent specified in this behalf by the General Manager shall have the power to on their/his own motion or otherwise to revise any order passed by an authority subordinate to them/him. They/he shall also have the power to reconsider an earlier order passed on an appeal by them/him or by a predecessor if on any subsequent date either fresh light is thrown upon the case or by his conduct the employee has established a case for-mitigation of the penalty imposed. Provided that no action under this sub-rule shall be initiated, (i) more thin 6 months after the date of the order to be reviewed in cases where it is proposed to enhance the penalty imposed; and (ii) more than one year after the date of the order to be reviewed in cases where it is proposed to reduce or cancel the penalty imposed.
(2) When an authority referred to in sub-rule (1) proposes to enhance the penalty imposed on a railway servant, he shall communicate his intention to the railway servant concerned, with the reasons therefor, and call upon him to show cause as to why the enhanced penalty should not be imposed. After considering the reply of the railway servant to this communication he shall pass such orders as he thinks fit.
(3) When any such authority proposes to impose any of the penalties specified in clauses (iv) of sub-rule (1) of Rule 1707, in case where, any of the penalties specified in clauses (i) to (iii) of that sub-rule has been imposed, he shall, subject to the provisions of rule 1719, direct that an inquiry under rule 1709 be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make only on the basis of evidence adduced during such inquiry against such penalty, pass such orders as he may deem fit.”
3. A perusal of the rule shows that the Railway Board, General Manager or high officers have been given the power to suo moto or otherwise review any order passed by any authority subordinate to them. The only limitation placed is that the enhancement of penalty cannot be made after more than six months and if it be proposed to enhance the penalty, intention should be communicated to the Railway Servant concerned and he be called upon to show cause as to why the enhanced penalty should not be imposed. Another safeguard provided is that in case the lower authority has imposed a minor penalty being Nos. 1, 2 and 3 mentioned in Rule 1707 and the reviewing authority proposes to enhance the punishment to some major penalty specified in the other clause of the said rule, he shall direct an inquiry to be held. Under Rule 1734 similar powers of revision and review have been conferred on the President. In a large establishment like that of the Railway there are hundreds of cases of disciplinary action and the power of revision has to be conferred on the higher authorities to prevent mis-carnage of justice. Such power is conferred on very high officers like the Railway Board, General Manager. The fact that the discretion to exercise the power ??? in highly pieced officers and not in ordinary officers constitute enough safeguard against the abuse of the power. Such power must in its very nature be unlimited in its extent and scope. It does not need any further guiding principles of canalization. The exercise of the power is subject to further safeguard thin is implicit in the rules namely the period of limitation, a show cause notice and an inquiry if it his already not been held. Moreover, it is subject to a farther appeal/revision to the General Manager, Railway Board or as the case may be. The ??? for exercise of the power is to be found in the rule itself and other provisions governing such cases. Rule 1736 cannot be struck down as an instance of excessive delegation or unguided powers nor does it in any way violate Article 20(2) are any other Article of the Constitution of India.
4. So far as exercise of the power in instant case is concerned I am unable to find any legal infirmity. The petitioner points out from Annexure ‘H’ that the punishment awarded to various railway drivers for overshooting the signal was reduction in rank for a period ranging from six months to two years. It is, however, significant that none of the eight incidents pointed out by the petitioner are cases involving derailment and they are merely of over-shooting. On the other hand, the respondents have pointed out, in Annexure ‘A’ attached to the counter affidavit that from the period 5th January, 1954 till 3rd January, 1967 the petitioner had received penalties and suffered punishments at not less than 38 times, including censure and small fines and withholding of the increment for some periods from six months to one year. Three of the offences proved against him appear to be quite serious. Item No. 17 points out that on 22-6-1954, he was responsible for trailing through without signal which resulted in trailing through at some points. Item No. 22 dated 20th October, 1955 shows that the petitioner was responsible for failing to secure engine at Hapur as a result of which it moved and derailed. Item No. 37 dated 15th May, 1965 appears to be more serious. The charge found was not being vigilant and cautious when moving his engine from traffic to Loco yard and in that he failed to ensure the correct setting of load inasmuch as he failed to see if the fixing of points was clear and not jammed with the result that his engine collided against the other engine and consequently the other engine derailed causing damages to both the locomotives. For these offences he was given punishment of with holding of increment for one year. It appears that these punishments had not had the desired effect on the petitioner. The offence established against the petitioner in the instant case was for over-shooting the signal and trailing of the engine. The fact that no bogie capsized and no loss of life or property occurred is not of any consequence. Undoubtedly, the award of punishment rests in the discretion of the authority concerned and they are the best persons to adjudge what punishment should be awarded for commission of such offences and in exercise of the power, they are entitled to take into consideration various relevant factors. The Court in exercise of its writ jurisdiction cannot sit in appeal over the General Manager as to why has considered it fit to award the punishment of removal from service, in the facts and circumstances of the case. He had the power to award the punishment which he did and no legal infirmity can be found in this regard. The order is not at all discriminatory and it is amply justified in the facts and circumstances of the case. The contention of the counsel has no substance.
5. The next grievance of the petitioner is that the show cause notice and impugned order do not give any reason. This suggestion is not sustainable either in fact or in law. The show cause notice issued by the General Manager in Annexure ‘H’ states that the punishment of reduction in rank was not commensurate with the gravity of the offence and he, therefore, proposed to enhance the penalty to the removal of service. This is quite a sufficient reason to indicate as to why the General Manager proposed to enhance the penalty. In other words, he considered the awarded punishment as inadequate and so he thought fit to enhance it. The petitioner filed a very long representation on the subject, which was considered and not found to be satisfactory. In the impugned order (Annexre “A”), the General Manager has stated that he has considered, the representation of the petitioner but he did not find it to be satisfactory. The General Manager has stated that he held the petitioner guilty of the charges levelled against him and so decided to impose penalty of removal from service. The punishment was accordingly imposed. As noticed above, the petitioner previously never made any grievance of the report of the Inquiry officer or the finding recorded by him nor against the punishment of reduction in rank awarded to him by the Divisional Mechanical Engineer. The finding had, therefore, become final against him though he did dispute it in his show cause against enhancement of penalty. The General Manager was certainly not required to advance reasons for his concurring with the findings of the Inquiry officer and lower punching authority. The General Manager considered the awarded punishment to be inadequate and so he imposed the higher penalty. No other reason was necessary to be given in the order and I am unable to find any legal infirmity in the said order.
6. So far as the decision of the appeal by the Board is concerned, this order had not been communicated to the petitioner at the time he filed the writ petition. So the same has directly not been challenged in the writ petition. However, the same has been filed by the petitioner during the pendency of the writ petition (Annexure. I). The order proceeds to state that the appeal preferred by the petitioner against the order of the General Manager removing the petitioner form service hm been carefully considered by the Railway Board in terms of Rule 22(2) of the 1963 Rules and the Board did not find any justification to review the decision already taken in the case, and it therefore rejected the appeal. In other words, the Board agreed with the order of the General Manager removing the petitioner from service and after considering the representation of the petitioner, the Board dismissed the revision. In view of the facts mentioned above that the findings of the inquiry officer had become final and could not be challenged by the petitioner and, therefore, his grievance was directed against the order of the General Manager enhancing the punishment, it is no. 4 possible to contend that the Railway Board ought to have given any detailed reasons in the matter. The order of the Board, therefore, does not suffer from any legal infirmity.
7. Mr. Gaur has relied upon a decision of the Supreme Court in State of Punjab v. Bakhtawar Singh (1) This was a case of removal of a member of the State Electricity Board by the Government. The order had been passed by the Minister which is reproduced in the judgment. In that order he had stated that he had carefully considered the whole file, show cause notice and the explanation furnished by the respondent and the opinion of the Advocate General and that the Minister agreed with the Secretary.
8. As was apparent from the order of the Minister the Supreme Court noticed that the Minister had not found the petitioner guilty of any of the charges levelled against him. On the other hand, the Minister thought it fit to remove him on the ground that he was taking part in politics and the Supreme Court held that both the charges had not been levelled against the petitioner in that case, and so the Minister was not justified in taking into consideration a charge in respect of which the member had not been given any opportunity. The facts of that case were entirely different and do not assist the petitioner before me at all. Next case relied upon by Mr. Gaur is State of Assam v. M.K Dass (2). In this case the Supreme Court reversed the judgment of the High Court of Assam and Nagaland and quashed the inquiry proceeding; and set aside the order of dismissal. The Court held that if it is established that the material behind the back of the delinquent officer had been collected during the enquiry and such material had been relied on by the enquiry officer, without its having been disclosed to the delinquent officer, the enquiry proceedings are vitiated, if in such a case the disciplinary authority himself is the enquiry officer the position will be still worse and the mere fact that the order passed by the disciplinary authority had been confirmed by the appellate authority without anything more, will not alter the position in favour of the department. Where however the enquiry officer is not the disciplinary authority who is competent to impose punishment against the delinquent officer and the latter has independently gone into the evidence on record in respect of the charges against the officer's guilt which is again considered independently and confirmed by the appellate authority, no principle of natural justice can be said to have been violated. This decision again does not help the petitioner at all. In the case in hand, no grievance has been made out that any material had been collected by the inquiry Officer behind the back of the petitioner which was used and not disclosed to him. Again the findings of the inquiry officer had become final against the petitioner herein challenging them. The General Manager only wanted to review the punishment imposed of which show cause notice had been given and after considering the representation he passed the impugned order. In this action of the respondent, neither any provision or rule of law, nor any principle of natural justice has been violated. The impugned order does not suffer from any legal infirmity.
9. The last contention of the counsel is that the petitioner had been refused the personal hearing by the Board. This was certainly not necessary in the circumstances of the case and has not caused any prejudice to the petitioner. Moreover, the relevant rules on the subject give guidance and discretion to the authority as to when the personal hearing should be granted. In the instance case no personal hearing was called for. As a result I find that the writ petition has no merit and the same is dismissed. In the circumstances of the case, there will be no order as to costs.
10. Petition dismissed.