By Mukesh Kumar Gupta, Member (J) : MA 2302/2004 filed under rule 4 (5) of CAT (Procedure) Rules, 1987 for joining together is allowed.

2. 4 Applicants in this OA challenge validity of show cause notice dated 11.06.2004 issued under the purported exercise of powers conferred vide clause (vi) of sub-rule (1) of Rule 29 of CCS (CCA) Rules, 1965 read with Department of Posts Notification dated 29.05.2001, proposing to enhance the punishment awarded vide order dated 30.07.2001 and to inflict one of the major penalties as specified in clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules, 1965. Validity of order dated 29.09.2004, vide which major penalty proceedings were drawn under rule 14 of CCS (CCA) Rules, have also been impugned.

3. Facts as stated are that Sr. Supdt. of Post Office, Ghaziabad Division, Ghaziabad issued charge Memorandum dated 14.03.2001 under Rule 16 of CCS (CCA) Rules, against first three applicants. Identical charge sheet dated 12/30.04.2001 was also issued against applicant No.4, alleging that they violated certain departmental instructions in cash-remittance, which allegations were denied by submitting detailed representations. Vide identical orders dated 30.07.2001, Sr. Supdt. of Post Office, Ghaziabad Division, holding applicants responsible for irregular remittance, imposed penalty of recovery of Rs.2,000/- in 5 equal instalments. When such was the position, all of a sudden, Respondent No.2 (CPMG) issued impugned show cause notice dated 11.06.2004, alleging that the penalty imposed by the SSPOs, Ghaziabad Division, was not commensurate with the charges framed and, therefore, in exercise of powers conferred under clause (vi) of sub-rule (1) of Rule 29 of CCS (CCA) Rules, 1965 read with Department of Posts Notification dated 29.05.2001, proposed to enhance the said punishment awarding one of the major penalties and consequently required them to submit representations, if any, within the prescribed time limit. They filed reply/representation dated 3.7.2004, followed by supplementary reply dated 10.08.2004 raising numerous legal pleas against the proposed action. In the meantime, a statutory appeal was also preferred on 05.08.2004 along with request to condone delay in filing such an appeal. Immediately thereafter, Respondent No.3 issued impugned charge memorandum dated 29.09.2004, which contained 3 articles of charge. Further representation was preferred before Respondent No.1 on 5.10.2004, seeking direction to Respondents 2 and 3 to withdraw the impugned notice and charge sheets.

4. Shri D.S. Chaudhary, learned counsel for applicants stated that said representation as well as appeal remained undecided till date. It was forcefully contended that once a punishment is imposed, which has been undergone by each of the applicants, Respondents are estopped in law to revive the same proceedings for the purpose of enhancing the said punishment undergone. Such a course of action is unconstitutional, violative of the doctrine of double jeopardy as defined under Article 20 (2) of the Constitution of India. It is contended that Respondent No.2 acted with punitive mind and also transferred applicants inter-divisionally due to same incident, which action is under challenge before this Tribunal by separate proceedings. The impugned action of respondents is actuated with bias and is contrary to the principles of natural justice, good conscious and equity. Learned counsel vehemently contended that Respondents impugned action also violates the provisions of rule 29 of CCS (CCA) Rules, 1965. Under the aforesaid provision, the appellate authority can take recourse to the said rules within six months from the date of order proposed to be revised. Learned counsel further urged that action under clause (vi) of sub-rule (1) of Rule 29 of CCS (CCA) Rules sought to be invoked, has to be resorted within a reasonable period and such power cannot be exercised at the sweet will of concerned authority.

5. Reliance was placed on ATR 1988 (1) CAT 257, Govind Lal Chopra vs. Union of India, wherein it has been held that where the authority issuing show cause notice for a more severe penalty to be imposed on review does not give only reasons for differing with the disciplinary authority in his order, such order manifests non-application of mind. Reliance was also placed on ATR 1988 (1) CAT 713, Mukundlal H. Dave vs. Union of India & Ors., wherein it has been held that the reviewing authority should assign the reasons when he differed from the disciplinary authority. The impugned notices were vitiated due to lack of application of mind and carried a kind of bias inasmuch as the authorities viewed the matter such as to warrant as severe form of punishment, which reflected a closed mind, impaired by a sort of bias. The learned counsel also contended that the only reason assigned vide impugned communication dated 11.06.2004 was that the penalty imposed earlier was not commensurate with the charges framed. No other reasons were either supplied or communicated even in the reply affidavit filed by the respondents, contended learned counsel. Merely because the punishment imposed is alleged to be not-commensurate could not be a ground for the reviewing authority to re-draw the entire disciplinary proceedings by issuing charge memorandum under Rule 14 particularly when the earlier proceedings issued and finalized under Rule 16 had already been undergone by the delinquent officials.

6. Respondents contested the claim laid stating that applicants charge sheeted on 14.03.2001 under Rule 16 were awarded the penalty of recovery of Rs.2,000/-, against which they preferred appeal. Thereafter, Respondent No.2 reviewed the case as per provisions of Rule 29, which confers powers upon him and issued impugned show cause notice dated 11.06.2004 for enhancement of penalty. On consideration, Respondent No.3 issued impugned charge memorandum dated 29.09.2004. Said action was undertaken with due application of mind. Applicants did not care for the Government money and remitted huge amounts lavishly and un-meticulously, in which process the Department sustained loss. Imposition of penalty, which is not commensurate with gravity of fault committed, is sufficient reason to invoke powers under Rule 29 (i) - (vi). The present OA is premature inasmuch as applicants would be at liberty to place their effective defence during the course of oral enquiry to be held under Rule 14, contended Shri S.M. Arif, learned counsel for Respondents. Allegations of bias etc. were denied. The decision to enhance the penalty was not taken abruptly, as alleged.

7. We have heard learned counsel for the parties and perused the pleadings and material placed on record.

8. The short question which falls for consideration in this proceeding is whether Respondents are justified in issuing impugned show cause notice dated 11.06.2004 particularly when penalty imposed vide order dated 30.07.2001 had already been operated.

9. Shri D.S. Chaudhary, learned counsel for applicants strenuously urged that the impugned show cause notice dated 11.6.2004 has been issued under Clause (vi) of sub rule 1 of Rule 29 of CCS (CCA) Rules, 1965 proposing to enhance the punishment awarded vide memorandum dated 30.07.2001 to the extent of one of the major penalties as specified in Clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules. The said rule 29 under Part VIII of the Rules deals with Revision and confers powers upon competent authority to - (a) confirm, modify or set aside the order; or confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or pass such other orders as it may deem fit: Exercise of aforesaid powers is circumscribed and subject to certain limitations and satisfaction of necessary safeguards provided therein including the time limit. Appellate authority can exercise such powers within six months of the order proposed to be revised and other authorities can exercise such powers at any time. The term at anytime cannot be indefinite period and there has to be a reasonable period within which such power should be exercised. Apart from stating that penalty imposed earlier was not commensurate with the charges framed, no other reasons were neither detailed nor communicated to applicants.

10. Learned counsel further pointed out that perusal of earlier charge memorandum issued under Rule 16 dated 14.3.2001 vis-`-vis the one issued now on 29.09.2004 under Rule 14 would show that all the material used therein are identical and same. Once such are the facts, the exercise of power by Respondent No.2 is not only arbitrary but also illegal and smacks bias approach.

11. Shri S.M. Arif, learned counsel for respondents, on the other hand, contended that all aspects were considered by the respondents before taking the impugned action against applicants and further that the OA is premature inasmuch as applicants would be allowed to produce reasonable defence and would be given fullest opportunities.

12. We may note that Mumbai Bench of this Tribunal in its Circuit Sitting at Nagpur had the occasion to deal with the scope and ambit of rule 25 of Railway Servants (Discipline & Appeal) Rules, 1968, which is almost pari-materia to Rule 29 of CCS (CCA) Rules, in OA No.2155/2004, Shri N.P. Patil vs. Union of India & Ors, on 05.09.2006. In the said order and judgment, the question had been considered in the following manner:- 14. As such further question which falls for consideration is whether the proviso of sub-rule (5) of rule 25 is applicable or not. The basic distinction discernable from reading of said sub-rule as a whole is that under proviso to sub-rule (5), when a revision is undertaken by Railway Board or the General Manager of a Zonal Railway or an authority of the status of General Manager in any other Railway Unit or Administration, such exercise can be done without restriction to any time limit, while under normal circumstances, action under sub-rule (5) cannot be taken after more than six months from the date of the order to be revised to the detriment of Railway servant, or one year where the order proposed is in favour of Railway servant. As such we observe that the said sub-rule (5) in total prescribes three periods of limitation, firstly six months when the order proposed is detrimental to Railway servant, secondly one year when the order proposed is favourable to Railway servant and thirdly without restriction of any time limit when such an exercise of revision is undertaken by authorities enumerated under proviso of said sub-rule. Further issue needs consideration is what is scope of term without restriction of any time limit, as stated under Proviso to sub-rule (5). Should such a revision be not undertaken within a reasonable period? Whether the aforesaid term means that authorities enumerated therein can review such order as & when it desires e.g. when the penalty period prescribed has already expired, or when the delinquent is due for promotion or due to attain the age of superannuation. Should such term be read & interpreted in a reasonable & restricted manner? (emphasis supplied)

13. After noticing the rule position as well as Honble Supreme Courts judgments in Ram Chand & Ors vs. UOI, 1994 (1) SCC 44, N. Rama Rao vs. President, CSIR & Anr., 1987 (5) ATC 575, E.S. Athityaraman vs. Commissioner, Hindu Religious & Charitable Endowments, Madras, 1971 (2) SLR 41, Kundan Lal vs. Delhi Administration, 1976 (1) SLR 133 and Shri Govind Lal Chopra vs. Union of India, 1988 (7) ACT 40, the Co-ordinate Bench of this Tribunal ruled as under: 18. On a cumulative reading of the rule position, the law noticed hereinabove as well as facts of the case, we are of the considered view that the question raised hereinabove, namely, as to whether applicants case falls within the proviso of sub rule (5) or otherwise, our answer is that it is proviso to sub rule (5) of rule 25, which would be attracted in the present case, as the show cause notice dated 18.02.2003 had been issued by the General Manager, Central Railway, who is otherwise one step higher than the authority to whom further revision would have lie as stated vide appellate order. Vide appellate order dated 21.05.1998 it was specified that a revision against the said order would lie to AGM. The further issue examined by us is as to whether term employed under aforesaid proviso, namely, without restriction to any time limit has to be read liberally & reasonably. On bestowing our careful consideration to all aspects of the case, we are of the considered view that aforesaid power should be exercised within a reasonable period. No attempt was made to explain the delay of 4 years 9 months in issuing said show cause notice, leave aside valid explanation for delay. The aforesaid term did not confer an unbridled power upon the concerned authority to exercise said power irrespective of any time frame & has to be read down. Therefore, we have no hesitation to conclude that said impugned action dated 18.02.2003 as well as penalty enhanced thereafter vide order dated 12.05.2003 is illegal, arbitrary and unjust and cannot be sustained in law. In our considered opinion, aforesaid law aptly applies in the facts & circumstances of the present case.

20. Taking an overall view of the matter, we do not find any justification in the contention raised by Respondents as no explanation has come forth about the delay in issuing the show cause notice dated 18.2.2003 which culminated in imposition of higher penalty vide order dated 12.05.2003 particularly when the period of punishment prescribed by the appellate authoritys order dated 21.05.1998 had already been undergone by the applicant. As such, we find that the General Manager, Central Railways committed an illegality in issuing the show cause notice dated 18.02.2003 & also imposing enhanced punishment vide order dated 12.5.2003. Since these orders were void ab-initio, illegal & contrary to the mandate of the aforesaid provision to said rule, the appeal preferred before the Railway Board is inconsequential. We find support in taking such view from the observations made in 1993 (4) SCC 269 Union of India & Ors. Vs. R. Reddappa & Anr., wherein it was held that infirmity in the dismissal order is not curable by mere affirmation in appeal or revision. An illegal order passed by the disciplinary authority does not assume the correctness of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. (emphasis supplied)

14. In our considered view, the said judgment which clearly concludes the issue raised hereinabove is binding upon this Bench as a legal precedence and we are bound by the same. No attempt has been made by Respondents herein to explain the delay of almost three years in issuing the impugned show cause notice dated 11.04.2004 as well as the charge memorandum dated 29.09.2004. We may further note that respondents issued fresh charge memorandum under rule 14 vide charge memorandum dated 29.09.2004 without passing and communicating any specific written order, rejecting applicants objections raised against the aforenoted show cause notice. Such a course of action is alien to the law and rules particularly when they were supposed to take a decision on applicants objection raised against the show cause notice dated 11.06.2004. There is not even a whisper in the reply affidavit also as to how they arrived at such a decision.

15. In view of the discussion made hereinabove, we have no hesitation to conclude that the impugned action cannot be sustained in law. Resultantly, the show cause notice dated 11.06.2004 and charge memorandum dated 29.09.2004 are quashed and set aside with all consequential benefits. OA is allowed. No costs. (N.D. Dayal) (Mukesh Kumar Gupta) Member (A) Member (J) /PKR/