PER: HON'BLE SHRI M.NAGARAJAN, JUDICIAL MEMBER The grievance of the applicant in this O.A. against the respondents relates to the order of penalty reducing his pay to a lower level grade pay of Rs.4200/- for a period of three years on pay of Rs.22580/-, pursuant to the charge memorandum dated 13.01.2014.

2. The facts in brief as stated by the applicant in support of his grievance and claim are that he was appointed as Apprentice (Training) on 03.06.1992 and after successful completion of one year training, he was posted as Chargeman at FO (TMC) Ratlam by the order dated 13.07.1993. Thereafter, by the order dated 02.06.2004 he was promoted as SE/TMC with effect from 01.11.2003. On his promotion, he was given posting as Section Engineer (Track Machine) in Valsad under Mumbai Central Division. According to the applicant his Appointing Authority to the post of Section Engineer, TMC is the Chief Track Engineer operating from Western Railway, Headquarters Office.

3. While he was working as Senior Section Engineer, TMC, he was served with memorandum of charges bearing No.E/E/308/3/45(13) dated 13.01.2014 (Annexure A/1) proposing to hold a major penalty inquiry under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968. The charge leveled against the applicant in the said memorandum is as under: Shri Suresh K.Nair, SSE-MTC/BL is primarily responsible for derailment of Track Machine is hereby charged for lack of devotion to duty and careless working thereby violated rule 3.1 (ii) & (iii) of the Railway Service (Conduct) Rules 1966. The applicant denied the above charge. The respondent No.6 herein was nominated as Inquiry Officer. The inquiry was held between 02.05.2014 and 12.06.2014. The Inquiry Officer submitted his report dated 18.06.2014 holding that the charges are proved. A copy of the inquiry report was duly served upon the applicant by communication dated 25.06.2014. He was directed to file his representation, if any. On receipt of the inquiry report, the applicant submitted his representation dated 14.07.2014 against the report of the Inquiry Officer.

4. The Disciplinary Authority after considering the report of Inquiry Officer and the representation of the applicant against the same issued the order bearing No.E/E/308/3/45(13) dated 17.07.2014 vide Annexure A/3, the operative portion of the same is as under: Co has been given all opportunities but neither new facts have been put on record nor any representation has been received from CO till date. In view of above, I am imposing penalty of: Removal from Service. In the above said order dated 17.07.2014 vide Annexure A/3 it was mentioned that an appeal against the same lies to ADRM (C) BCT. Being aggrieved of the order of the Disciplinary Authority dated 17.07.2014 (Annexure A/3), the applicant preferred an appeal dated 08.08.2014 as per Annexure A/10. By a communication dated 01.10.2014 vide Annexure A/11 he was informed that a personal hearing was fixed on 08.10.2014 by the ADRM (T) BCT in his chamber. The Appellate Authority by an order bearing No.E/E/308/3/45(13) dated 16.10.2014 vide Annexure A/4 quashed and set aside the order of the Disciplinary Authority dated 17.07.2014 and ordered to impose the penalty of reduction to a lower level with Grade Pay of Rs.4200/- for a period of three years in the pay of Rs.22580/-. The operative portion of the order of the Appellate Authority dated 16.10.2014 is as under: Keeping in view these contributory factors, it is felt that the punishment of Removal from Service vide NIP of even No.dated 17/7/14 imposed by Sr.DEN (East) BCT on you is too harsh. The punishment imposed by the DA is hereby quashed and after due consideration of your appeal, you are reduced to a lower level with Grade Pay of Rs.4200/- for a period of three years on pay Rs.22580/-. After three years, you will be restored to your original Grade Pay and pay in pay band. However, the loss of three annual increments will have a permanent effect.

5. Being aggrieved of the above, the applicant has presented the instant O.A. with a prayer to call for records relating to the impugned memorandum dated 13.01.2014 vide Annexure A/1 and to quash and set aside (i) the charge memorandum bearing No.E/E/308/3/45(13) dated 13.01.2014 vide Annexure A/1, (ii) Inquiry Officers report dated 18.06.2014 vide Annexure A/2, (iii) notice of imposition of penalty bearing No.E/E/308/3/45(13) dated 17.07.2014 vide Annexure A/3, (iv) order of the Appellate Authority bearing No.E/E/308/3/45(13) dated 16.10.2014 vide Annexure A/4 and (v) communication bearing No.EE/308/3/45(13) dated 30.11.2014 at Annexure A/5. He is also seeking a direction to the respondents to restore his status including his pay as he was obtaining prior to passing of the impugned memorandum dated 13.01.2014 and pay the consequential benefits therefrom along with interest @18 per annum.

6. Pursuant to the notice of the O.A., the respondents entered appearance and filed their reply, inter alia, contending therein that none of the orders impugned in this O.A. suffer from any legal infirmity. They specifically denied the contention of the applicant that the impugned charge memorandum dated 13.01.2014 was issued by an incompetent authority. It is stated therein that the inquiry was held in strict adherence to the provisions of the Railway Servants (Discipline and Appeal) Rules, 1968. Though the Disciplinary Authority passed an order of removal from service, the Appellate Authority on examining the appeal memorandum submitted by the applicant having found that the penalty of removal from service is too harsh set aside the same, but imposed the penalty of reduction to a lower level with grade pay of Rs.4200 for a period of three years. It is contended by them that since the applicant did not point out any violation of the prescribed procedure, the Tribunal in exercise of the power of judicial review cannot interfere with any of the impugned orders. They prayed that the O.A. be dismissed with costs.

7. Though notice issued to respondent No.6 has been duly served, he did not choose to enter appearance.

8. The applicant did not choose to file any rejoinder to the reply of respondent Nos.1 to 5.

9. Heard Shri M.S.Rao, learned counsel for the applicant and Shri M.J.Patel, learned counsel for respondent Nos.1 to 5. Perused the pleadings and documents annexed thereto.

10. Shri M.S.Rao submitted that the Appointing Authority and the Disciplinary Authority being Chief Track Enginner (TM) [CE(TM)], he alone has the competency to initiate major penalty proceedings, whereas the charge memorandum vide Annexure A/1 dated 13.01.2014 came to be issued by Senior DEN(N), BCT who has no competency at all. Referring to the fact that the charge memorandum was not issued by the CE(TM), he vehemently contended that the whole proceedings get vitiated for want of competency. He further argued that the charge memorandum dated 13.01.2014 has not been even approved by the CTE (TM). The articles of charge do not disclose any misconduct on the part of the applicant, he argued. In view of the fact that the impugned charge memorandum dated 13.01.2014 (Annexure A/1) was issued by an incompetent authority, the entire inquiry conducted by the Inquiry Officer on the strength of such charge memorandum is without authority of law. Consequently, the inquiry report as well as the order of penalty imposed by the Disciplinary Authority based on such charge memorandum is also without authority of law and void ab initio. He further pointed out that the order of the Disciplinary Authority is not a speaking order. The Disciplinary Authority did not deal with any of the contentions raised by the applicant in his representation against the inquiry report.

11. Referring to the order of the Appellate Authority dated 16.10.2014 vide Annexure A/4, it was argued by Shri M.S.Rao that the same also requires to be declared as void ab initio in view of the fact that the charge memorandum dated 13.01.2014 came to be issued by an incompetent authority. He submitted, though the Appellate Authority quashed and set aside the order of penalty of removal from service, yet he has no authority or power to impose penalty pursuant to the said charge memorandum dated 13.01.2014 which came to be issued by an incompetent authority. The order of the Appellate Authority is nothing, but egoistic and as such resorted to impose the penalty of reduction to a lower level for three years with cumulative effect as a matter of prestige. The applicant in his memorandum of appeal has raised a serious contention as to competence of the Senior DEN(N), BCT to initiate major penalty proceedings against him, but the Appellate Authority failed to deal with such an issue and hence, the order of Appellate Authority also deserves to be quashed. He prayed that the OA be allowed with costs as prayed for.

12. Per contra, Shri M.J.Patel submitted that the argument of Shri M.S.Rao is not at all tenable. Reiterating to the stand of the respondents in their reply, he further submitted that in view of the fact that applicant did not point out any deviation/ violation of the prescribed procedure in the matter of conducting inquiry, the Tribunal in exercise of power of judicial review cannot find fault with the decision, but it can find fault with the decision making process. He pointed out that in the entire averments and the grounds urged, there is not even a single allegation as to the manner in which the inquiry was conducted. He further submitted that the task of the Appellate Authority is mainly to appreciate the report of the inquiry officer, the comments of the charged official against the inquiry report submitted before the Disciplinary Authority, the contents of the appeal memorandum, the gravity of the charges and the penalty imposed by the Disciplinary Authority. Accordingly, the Appellate Authority based on the report of the Inquiry Officer, the comments of the applicant against the inquiry report and the grounds urged by the applicant in his appeal memorandum, having found that the charges are proved, but the penalty imposed is too harsh set aside the order of removal from service passed by the Disciplinary Authority and imposed the penalty of reduction to lower level with grade pay of Rs.4200 for a period of three years on pay of Rs.22580/-.The order of the Appellate Authority is strictly in accordance with the rules and considering the gravity of the charges. He submitted that the applicant did not make out any case much less prima facie case, which warrants interference in any of the impugned orders and prayed that the OA be dismissed.

13. On perusal of the pleadings and documents annexed thereto and upon hearing the learned counsel for both the parties, the main questions that arise for our consideration are: (i)whether the impugned orders at Annexure A/1 to A/5 are liable to be set aside on the alleged ground that the authority which initiated the proceedings has no competency?

(ii)whether the impugned orders are in accordance with the prescribed procedure or not?

14. A full Bench of the Honble Supreme Court in the case of B.C.Chaturvedi v. Union of India & Ors. (1995) 6 SCC 749 at paragraph 12 held as under: Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

15. While applying the above principles to the facts and circumstances of the case on hand, we find that the applicant did not point out a single violation of the prescribed procedure or violation of the principles of natural justice in the matter of conducting the inquiry. No doubt it is urged that the inquiry is in violation of the procedure prescribed under the Rule, but, the same is not supported by laying firm foundation of pleadings. The allegation is as much as vague and bald. No particular violation of the prescribed procedure is specifically pointed out. The only violation pointed out is as to the competency of the Authority which initiated inquiry by issuing the charge memorandum dated 13.01.2014 vide Annexure A/1. It is well settled that the Tribunal in exercise of the power of judicial review cannot act as a court of appeal. It cannot interfere in the decision, but can interfere if there exists violation of the decision making process. Therefore, the whole and sole question that requires to be answered by us is: whether the entire proceedings get vitiated on account of the alleged fact that the authority which issued the charge memorandum dated 13.01.2014 has no competency. In our view, in the fitness of the facts and circumstances of the case, we need not delve into this question for the simple reason that the applicant without any demur or protest as to the competency of the Authority which issued the charge memorandum actively participated in the inquiry. Even at the stage of offering his comments/representation against the inquiry report also, the applicant did not raise the contention as to the competency of the authority which initiated the proceedings. Having suffered an order at the hands of the Disciplinary Authority, he preferred an appeal. It is only before the Appellate Authority, for the first time he had taken up the plea of competency of the authority which initiated the proceedings. In our opinion, if at all the applicant had any grievance as to the authority which initiated the proceedings against him, he ought to have raised the point at the stage when he was given an opportunity to submit his written statement of defence pursuant to the charge memorandum. Admittedly, it is not the case of the applicant that he had raised the contention relating to the competency of the authority which instituted the proceedings. Since from the date of issuance of the charge memorandum till the date of the order of the Disciplinary Authority, at no point of time he raised his eyebrow as to the competency of the authority which initiated the proceedings. For the first time in the appeal memorandum, he raised the question of competency. The applicant have participated in the inquiry throughout without any demur or protest as to the competency of the authority which initiated the proceedings against him. He cross-examined the witnesses and entered into the defence. As such he shall not be permitted to turnaround and contend that the authority which initiated the proceedings has no competency. The plea of competency is hit by the principle of estoppel by conduct.

16. With regard to the argument of Shri M.S.Rao as to the competency of the authority, we may usefully refer to the judgment of the Honble Supreme Court in the case of Registrar, Cooperative Societies v. F.X.Fernando (1994) 2 SCC 746. The Honble Supreme Court in F.X.Fernando (supra) referring to its earlier decision in the case of State of Madhya Pradesh v. Shardul Singh (1970) 1 SCC 108 and P.V.Srinivasa Sastry & Ors. v. Comptroller and Auditor General of India (1993) 1 SCC 419 made the position clear. 16. It was on the basis of this GO, on March 20, 1989 the Registrar issued the charge memo. In this connection, it is worthwhile to refer to a recent decision of this Court reported in P.V. Srinivasa Sastry v. Comptroller and Auditor General. The relevant observations at pages 1323-24 are as under: (SCC pp. 422-23, paras 4-5 and 6) ".But Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard 751or protection to the holder of a civil post. But in absence of any such rule, this right or guarantee does not flow from Article 311 of the Constitution. It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences, and the framers of the Constitution did not consider it necessary to guarantee even that to holders of civil posts under the Union of India or under the State Government. At the same time this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated to take a decision whether any such proceeding should be initiated. In absence of a rule, any superior authority who can be held to be the controlling authority, can initiate such proceeding. In the case of State of M.P. v. Shardul Singh the departmental enquiry had been initiated against the Sub-Inspector of Police by the Superintendent of Police, who sent his inquiry report to the Inspector General, who was the appointing authority. The Inspector-General of Police dismissed the officer concerned from the service of the State Government. That order was challenged on the ground that the initiation of the departmental enquiry by the Superintendent of Police was against the mandate of Article 311 (1) of the Constitution. This contention was accepted by the High Court. But this Court said: (SCC p. 112, para 10) We are unable to agree with the High Court that the guarantee given under Article 31 1 (1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article.' * * * Although Article 311 of the Constitution does not speak as to who shall initiate the disciplinary proceedings but, as already stated above, that can be provided and prescribed by the rules. But if no rules have been framed, saying as to who shall initiate the departmental proceedings, then on the basis of Article 311 of the Constitution it cannot be urged that it is only the appointing authority and no officer subordinate to such authority can initiate the departmental proceeding. In the present case, it was not brought to our notice that any rule prescribes that the Accountant General, who is the appointing authority, alone could have initiated a departmental proceeding." While applying the judgment of the Honble Supreme Court in F.X.Fernando (supra), P.V.Srinivasa Sastry (supra), Shardul Singh (supra), we hold that the argument of Shri M.S.Rao cannot be accepted since he is not in a position to point out any rule of the Railway Authorities as to who shall be the authority competent to initiate departmental proceedings against the applicant. Thus, in view of the consistent view of the Honble Supreme Court as to the competency of an authority subordinate to the Appointing Authority to initiate departmental inquiry against a government servant, the argument of Shri M.S.Rao relating to the competency of the Authority which initiated the inquiry against the applicant cannot be sustained at all.

17. The Honble Supreme Court in the case of Steel Authority of India & Anr. v. Dr.R.K.Diwakar AIR 1998 SC 2210 referring to its earlier judgment in the case of Director General, ESI v. T.Abdul Razak (1996) 4 SCC 708 held that an inquiry initiated cannot be interfered with by the Court on the ground that such an inquiry came to be initiated by an authority lower than the Appointing Authority. The relevant portion of the same is as under: "With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority (See: State of M.P. v. Shardul Singh; P.V. Srinivasa Sastry v. Controller & Auditor General and Inspector General of Police v. General and Inspector General of Police v. Thavasiappan). The Regional Director, being the officer-in-charge of the region, was the controlling authority in respect of the respondents. He could institute the disciplinary proceedings against the respondents even in the absence of specific conferment of a power in that regard." (Emphasis supplied) In the case on hand, it is not in dispute that the authority who issued the charge-sheet was the controlling authority. That being the position, the judgment of the High Court cannot be sustained and accordingly it is set aside and the appeals are allowed.

18. Subsequently, the Honble Supreme Court in the case of State of U.P. & Anr. v. Chandrapal Singh (2003) 4 SCC 670, by following the judgment in F.X.Fernando (supra), P.V.Srinivasa Sastry (supra) and Shardul Singh (supra) at paragraph 8 (SCC P.675 para 8) observed and held as under: 8. Thus, looking to the terms and content of Article 311(1) of the Constitution, it does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself, which is empowered to dismiss or remove an official under the said Article, unless there is an express rule governing the official requiring it to be so.

19. For the foregoing, we find no merit in the claim of the applicant. He has to fail in his claim to quash the orders at Annexure A/1 to A/4 particularised at paragraph No.5 above.

20. So far as the prayer of the applicant to quash and set aside the order bearing No.E/E/308/3/45(13) dated 30.11.2014 vide Annexure A/5, it was argued by Shri M.S.Rao that in view of the fact that the period between 02.11.2013 to 02.12.2013 and 17.07.2014 to 16.10.2014 came to be treated as not spent on duty with no work no pay, the same will have an impact on reckoning the qualifying service of the applicant for the purpose of pension. He argued that the respondents before passing such an order ought to have given an opportunity of being heard, but the same is denied to the applicant. He submitted that the order dated 13.11.2014 at Annexure A/5 is liable to be quashed on the ground of violation of principles of natural justice. Adverting to the argument of Shri M.S.Rao, it was submitted by Shri M.J.Patel that the order dated 30.11.2014 is a part and parcel of the order of the Appellate Authority dated 16.10.2014 at Annexure A/4. Be that as it may. We observe that it is open to the applicant to make a detailed representation with regard to his grievance as to the said order dated 13.11.2014 vide Annexure A/5 to the competent authority in which event the competent authority shall consider the same strictly in accordance with the law and pass appropriate orders and the same shall be communicated to the applicant.

21. The O.A. is dismissed subject to the above observations and directions relating to the order bearing No.E/E/308/3/45(13) dated 30.11.2014 vide Annexure A/5. There shall be no order as to costs. (E.K.Bharat Bhushan) (M.Nagarajan) Administrative Member Judicial Member