Order
1. This appeal is filed against the order of the Central Administrative Tribunal, Bombay Bench, Bombay in OA No. 848 of 1990 dated 23-11-1994. The respondent in this appeal was a Class IV railway servant. He was not entitled to the accommodation of a railway quarter at the relevant time. At his request and with the consent of one Syed Rahim who was the main allottee, the respondent was permitted to share the accommodation with the said Syed Rahim. While permission to share the accommodation was given, an undertaking was taken from the respondent that he would vacate the accommodation in the event of the main allottee vacating the same on the ground of transfer or otherwise. It is not in dispute that the main allottee after transfer vacated the quarter on 1-11-1987. In spite of directions from the Railway Authorities, the respondent refused to vacate the quarter and retained the same unauthorisedly. The authority concerned was of the view that this conduct on the part of the respondent amounts to misconduct within the meaning of Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966. Accordingly, the disciplinary proceedings were taken against the respondent. After an enquiry, the disciplinary authority imposed a penalty of “reduction to the minimum of the scale of Rs 750-940 per month for a period of three years with the effect of postponing the future increments”.
2. Aggrieved by that, the respondent preferred a statutory appeal to the appellate authority. The appellate authority was of the view that the punishment imposed by the disciplinary authority was not adequate having regard to the misconduct proved and, therefore, notice was issued for enhancing the punishment. The appellate authority, namely, the Senior Divisional Commercial Superintendent, by an order dated 13-9-1990 enhanced the punishment to one of dismissal of the respondent from service.
3. Aggrieved by the order of dismissal, the respondent preferred OA No. 848 of 1990 before the Central Administrative Tribunal, Bombay. The Tribunal was of the view that the charge of misconduct for not vacating the quarters will not attract the Railway Services Conduct Rules to impose the punishment of dismissal. The Tribunal has also referred to an earlier decision of the Tribunal for coming to the above conclusion. On that view of the matter, the Tribunal set aside the punishment in toto and allowed the application. It is under these circumstances that the appellant has preferred this appeal by special leave.
4. The learned Senior Counsel, Mr Malhotra, appearing for the Union of India contends that the refusal of the respondent to vacate the accommodation on the facts of this case certainly amounts to misconduct within the Railway Services Conduct Rules. It is also fairly stated by the learned Senior Counsel that the earlier decision on which reliance was placed by the Tribunal was not taken on appeal to this Court and that cannot be a ground to give relief to the respondent as well.
5. The learned counsel appearing for the respondent submitted that the act of the appellate authority in enhancing the punishment without giving a reasonable opportunity to the respondent cannot be sustained. He also submitted that for refusing to vacate the accommodation allotted to the railway servant, the authorities cannot invoke the Service Rules.
6. We have considered the submission of the counsel on both sides and also appreciated the facts of this case. We have seen earlier that the respondent had given a solemn undertaking to vacate the premises when the main allottee vacated the same. Notwithstanding such solemn undertaking, the refusal to vacate the premises when the main allottee vacated the accommodation cannot be appreciated or encouraged. The authorities are, therefore, right in initiating disciplinary proceedings on the facts of this case. However, the punishment imposed by the appellate authority by issuing notice to enhance the punishment given by the disciplinary authority requires some consideration. The disciplinary authority, after taking into consideration the facts and circumstances concerning the charge, has imposed the punishment as noticed above. The appellate authority in the appeal filed by the respondent has issued notice for enhancing the punishment. No doubt the appellate authority has jurisdiction to issue such a notice but the question is whether the facts and circumstances of the case warrant such enhancement of the punishment. On the facts, we are of the view that the enhanced punishment given by the appellate authority dismissing the respondent is too harsh and, therefore, we set aside the order of the appellate authority to that extent and restore the punishment imposed by the disciplinary authority.
7. We make it clear that the respondent, if he has not vacated the premises in question already, should vacate the same within two months from this date, failing which the appellate authority's order of dismissal will stand. This order will not prejudice any right of the respondent to apply for another quarter in accordance with law.
8. The appeal is accordingly disposed of with no order as to costs.