Kamlaben B Solanki vs M/o Railways on 30 October 2026

ORDER

Per: Hon’ble Shri Sanjiv Kumar, Member (A)

1. The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs: “8.1 Lord Ships be pleased to admit this petition. And be pleased to issue order quash and setting aside Order no. E/308/10.3/71 (06) Dated 13.03.2015 Passed by RA & Sr. DOM/BRC (Annex. A/1), Order no. E/308/10/3/71 (06) Dated 05.01/2.2014 passed by AA & DOM/BRC (Annex. A/2) and Order no. E/308/10.3.71 (06), Dated 17.11.2008 passed by AOM/BRC (Annex. A/3). 8.2 Be pleased to direct the respondent to release the all the retirement/death benefit to the applicant. 8.3 The Order to call for the record. 8.4 Any other relief which the Hon’ble Tribunal deems fit. 8.5 Cost of suit be awarded.”

2. The facts, as stated by the applicant, are briefly as follows: - 2.1 2.1 The applicant is the widow of late Shri Bhaiji U. Solanki, who joined Western Railway on 26.11.1982 and was working as Gangman at Kanjari-Boriyavi Railway Station. P ANUKUMA

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2.2 A charge-sheet dated 27.02.2006 (Annexure A/4) was issued to him under the Railway Servants (Discipline and Appeal) Rules, 1968, for unauthorised absence from duty from 23.04.2003 to 31.12.2005. The Inquiry Officer, by report dated 17.07.2008 (Annexure A/5), held the charge proved. The disciplinary authority, by order dated 17.11.2008, imposed the penalty of removal from service. 2.3 The employee filed an appeal on 04.06.2013, which was rejected on 05.02.2014. His revision petition dated 11.03.2014 was rejected on 13.03.2015. He died on 23.02.2016. The applicant filed this OA on 21.08.2018, along with M.A. No. 392/2018 seeking condonation of delay.

3. Learned counsel for the applicant submitted that the inquiry was held, in substance, ex parte, and the employee did not get a fair chance to defend himself. Relevant documents were not supplied. He was not allowed a defence assistant or a chance to cross- examine witnesses. The original attendance records were not examined. His absence was due to illness, which the authorities ignored. His request for voluntary retirement dated 15.02.2008 was not considered. Removal after more than twenty years of service is too harsh and has left the family without support. 3.1 In the written notes of arguments, it was further submitted that, as held by the Supreme Court in Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178, unauthorised absence is not misconduct unless it is proved to be wilful, and no authority recorded such a finding. It was also submitted that no Presenting Officer was appointed, so the Inquiry Officer acted as both P ANUKUMA

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prosecutor and judge. Reliance was placed on Union of India v. Ram Lakhan Sharma, Civil Appeal No. 2608 of 2012, decided by the Supreme Court on 02.07.2018, and on the judgment of the Gujarat High Court in Satish S/o Ramprasad Agnihotri v. Union of India, R/Special Civil Application No. 7466 of 2019. The delay in filing the OA was attributed to the illness and death of the employee.

4. The respondents have filed a reply opposing the OA. Learned counsel for the respondents submitted that the inquiry was held as per the rules. The employee was informed of the dates of inquiry and given the chance to take a defence assistant, but he did not attend. He cannot now blame the department for his own non-participation. The charge was proved on the basis of the record, and the appellate and revisional authorities examined the matter and upheld the penalty. It was also pointed out that the appeal itself was filed about four and a half years after the penalty order.

5. The applicant has filed a rejoinder reiterating the averments made in the OA.

6. We have heard learned counsel for the parties and perused the record, including the written notes of arguments filed on behalf of the applicant.

7. The following points arise for determination:

(i) Whether the delay in filing the OA deserves to be condoned?

(ii) Whether, even otherwise, the penalty of removal and the appellate and revisional orders call for interference? P ANUKUMA

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8. We first take up the question of delay. Under Section 21 of the Administrative Tribunals Act, 1985, an OA must be filed within one year from the date of the final order. The final order in this case is the revisional order dated 13.03.2015. The OA should, therefore, have been filed in March, 2016. It was filed on 21.08.2018, that is, about two years and five months late. 8.1 The applicant attributes the delay to the illness and death of her husband. We are unable to accept this explanation. Her husband was alive for almost the whole of the one-year period available to him; he died only on 23.02.2016. During that period he did not approach this Tribunal. Even the plea of illness is not supported by any medical record. After his death on 23.02.2016, the applicant took a further two and a half years to file the OA. No reason at all is given for this period. The delay is not explained at all, much less shown to be due to sufficient cause. The M.A. for condonation of delay is, therefore, liable to be rejected, and the OA is barred by limitation.

9. Even otherwise, we have examined the matter on merits. Before doing so, we note the settled law on the limited role of courts and tribunals in disciplinary matters. 9.1 As regards the scope of judicial review in disciplinary matters, we refer to the judgment of the three-Judge Bench of the Hon’ble Apex Court in the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80] wherein it was held as under: “13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has P ANUKUMA

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coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court/tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR p. 728 (AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.” 9.2 In another judgment rendered by the Three Judge Bench in the case of SBI vs. Ajai Kumar Srivastava, reported in (2021) 2 SCC 612: (2021) 1 SCC (L&S) 457, by referring the law laid down in B.C. Chaturvedi (supra) and catena of other judgments, the Hon’ble Apex Court held as under:- “23. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority………………

24. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Bench of this Court in Pravin Kumar v. Union of India [Pravin Kumar v. Union of India, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103].

25. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision- making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the P ANUKUMA

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disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

26. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:

(i) whether the enquiry was held by the competent authority;

(ii) whether rules of natural justice are complied with;

(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.

27. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.

28. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.

29. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. P ANUKUMA

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where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.” 9.3 Further, the Hon'ble Apex Court in the State of Karnataka & Anr. vs. Umesh, (2022) 6 SCC 563: (2022) 2 SCC (L&S) 321, emphasized about the scope of judicial review by the Courts/Tribunal in the matter of disciplinary/departmental inquiry and held that:- "17. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct." 9.4 We have also gone through the verdict of the Hon’ble Supreme Court delivered in the matter of Union of India & Ors. v. Subrata Nath, Civil Appeal Nos. 7939–7940 of 2022 @ SLP (C) Nos. 3524–25 of 2022 dated 23rd November, 2022 [2022 SCC OnLine SC 1617 : 2022 INSC 1221], wherein the Hon’ble Apex Court has observed and held as follows: “15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are P ANUKUMA

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malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.

16. In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra): “12. 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 reappreciate 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. P ANUKUMA

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13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. xxx xxx xxx xxx xxx xxx

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” [Emphasis laid]

17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below : “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where P ANUKUMA

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such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, Union of India v. G. Ganayutham, Bank of India v. Degala Suryanarayana and High Court of Judicature at Bombay -vs- Shashikant S. Patil). [Emphasis laid]

18. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that : “21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved.”

19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran reported in (2015) 2 SCC 610 held thus : “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority; P ANUKUMA

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(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.” XXXXXXXXXXX

22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the P ANUKUMA

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misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefore.” 9.5 We now examine the applicant’s pleas in the light of these principles. 9.6 The main grievance is that the inquiry was held ex-parte. The Inquiry Officer’s report dated 17.07.2008 records that the procedure to inform the employee of the charges was followed and five dates of hearing were fixed. Notices were sent to him by registered post and to his permanent address, and were also pasted at various places. He was given enough time to present his case, but he did not attend or cooperate. An employee who does not join the inquiry despite repeated notices cannot later complain that it was held in his absence. Nor can he complain that he was denied documents, a defence assistant, or the chance to cross-examine witnesses, when he never appeared to ask for them. 9.7 The next plea rests on Krushnakant B. Parmar (supra). There, the Supreme Court held that the department must prove that the absence was wilful, and that absence caused by compelling circumstances is not misconduct. The present case stands on P ANUKUMA

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different facts. Here, the employee remained absent for about two years and eight months, from 23.04.2003 to 31.12.2005. He did not join the inquiry, despite five dates and notices sent by several modes, and gave no explanation of his absence at any stage before the Inquiry Officer. No medical record showing illness during the period of absence has been placed before the authorities or before us. Nothing was placed before the disciplinary authority, appellate or revisional authority to show that the absence was the result of compelling circumstance which prevented him from reporting for duty, which was the situation in Krushnakant B. Parmar (supra). In these circumstances, the finding that the charge of unauthorized absence is proved cannot be faulted. 9.8 The present case stands on different facts. We have gone through the inquiry report dated 17.07.2008 (Annexure A/7), which is on record. It records that the Station Superintendent concerned was examined and the records were taken into account and that on this basis the charge was found proved. The report does not show that the Inquiry Officer led the evidence by putting questions, cross-examined the witness, or otherwise took the side of the department. More importantly, the fact of absence is not in dispute. The applicant only explains it as being due to illness, for which there is no medical record. The evidence of the Station Superintendent and the records only proved a fact that is admitted. The employee chose not to appear despite repeated notices, and did not question that evidence. Further, unlike in Satish Agnihotri (supra), the appellate and revisional authorities P ANUKUMA

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here considered the matter and gave reasons, referring to the procedure followed and the repeated opportunities given to the employee. The decisions relied upon by the applicant, therefore, do not help her. 9.9 The applicant has also referred to a request for voluntary retirement dated 15.02.2008. No copy of the request, or of any order on it, has been placed on record. The request was in any case made when the disciplinary proceedings were pending. The plea is not substantiated and cannot be examined further. 9.10 As to the penalty, the employee remained absent without leave for about two years and eight months and did not take part in the inquiry. The penalty imposed is removal, not dismissal. We do not find it so disproportionate as to call for interference. The appellate and revisional authorities considered the matter and gave reasons for upholding the penalty.

10. In the result, M.A. No. 392/2018 for condonation of delay is rejected. Even on merits, the penalty order dated 17.11.2008, the appellate order dated 05.02.2014 and the revisional order dated 13.03.2015 are in line with the settled law as noted above. Accordingly, the OA is dismissed.

11. There shall be no order as to costs.

12. Pending MA(s), if any, also stand disposed of.

(Sanjiv Kumar)

(Jayesh V Bhairavia)

Member (A)

Member (J)

//Anu// P ANUKUMA