High Court
Case Details
WP(C) 4533/2009 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGMENT & ORDER (Ansari, J.) The material facts, leading to this writ petition, may, in brief, be set out as under: (i) The respondent herein, Dr. Prabir Kumar Deb, joined Indian Railw ay Service, on 07.07.1986, as Medical Officer and was, in course of time, promot ed to the post of Senior Divisional Medical Officer. As Senior Divisional Medica l Officer, the respondent became an officer of Group-A in Junior Administrative Grade. (ii) While working as Senior Divisional Medical Officer, Alipurduar j unction, the respondent was, on 16.12.2003, transferred as Senior Divisional Med ical Officer, New Bongaigaon. Instead of acting on the order of transfer, so mad e, the respondent submitted, on 18.12.2003, an application seeking 15 day’s leav e with effect from 23.12.2003. Quickly thereafter, respondent put to challenge t he order of transfer, dated 16.12.2003, aforementioned, by way of an application , made under Section 19 of the Administrative Tribunal Act, 1985, which gave ris e to Original Application (in short, ’OA’) No.295/2003. (iii)
Decision
An interim order was passed, on 30.12.2003, in O.A. No. 295/2003 , by the learned Central Administrative Tribunal, Guwahati Bench, keeping in abe yance the impugned order of transfer. The respondent’s representation, dated 23. 02.2003, was disposed of, on 08.01.2004, by holding that the transfer, in questi on, was a routine one and the respondent’s service would be beneficial for devel oping the railway hospital at New Bongaigaon. Following disposal of the represen tation, so made, the learned Tribunal passed an order, on 16.02.2004, vacating i ts earlier interim order passed on 30.12.2003. (iv) No sooner the interim order was vacated, as indicated above, the respondent, on 20.02.2004, withdrew the OA No.295/2003 and submitted, on the sa me day, i.e., on 20.02.2004, a medical certificate from a non-government medical practitioner, but he did not report to the railway doctor for the ailments, whi ch he had claimed to have been suffering from. The railway authorities, highligh ting the manner and method in which the respondent had conducted himself since a fter issuance of the transfer order, dated 16.12.2003, required him to join, wit hin a week, the hospital at New Bongaigaon. (v) As the respondent failed to do so, he was served by a Memorandum of Char ge, dated 04.10.2004, under Rule 9 of Railway Servants (Discipline and Appeal) R ules, 1968, (in short, ’the 1968 Rules’), whereunder it was alleged that the res pondent had remained on unauthorized absence from duty with effect from 17.02.20 03 and thereby exhibited lack of devotion to duty and acted in a manner, which w as unbecoming of a Railway servant and thereby violated the provisions of para 3 (i), (ii) and (iii) of the Railway Servants (Conduct) Rules, 1966. (vi) The respondent submitted his written statement, on 10.11.2004, t o the Memorandum of Charge so served on him. As the respondent’s written stateme nt did not satisfy the authority concerned, i.e., General Manager, N.F. Railway, an Enquiry Officer was appointed, on 29.12.2004, by the said authority to enqui re into the charges levelled against the respondent. (vii) The Enquiry Officer submitted his enquiry report, on 12.05.2005, holding the respondent guilty of the charge. A copy of the said enquiry report was, then, furnished to the respondent, whereupon the respondent submitted, on 1 5.06.2005, his representation against the said enquiry report. (viii) Having received the respondent’s representation against the enquiry repo rt, which had held the respondent guilty of the charge, General Manager, N.F. Ra ilway, forwarded the enquiry proceeding to the Railway Board seeking further nec essary action. On a reference being made to the Union Public Service Commission (in short, ’UPSC’), the UPSC advised, on 03.03.2006, imposition of penalty of di smissal from service on the respondent. The Railway Board, then, on consideratio n of the matter, forwarded the matter to the President, who, in turn, imposed, o n 01.05.2006, penalty of dismissal from service. The said order of penalty of di smissal from service was, on 12/15.05.2006, communicated to the respondent. (ix) Aggrieved by his dismissal from service, respondent carried the matter t o the learned Central Administrative Tribunal, Guwahati Bench, by making an appl ication under Section 19 of the Administrative Tribunals Act, 1985. The applicat ion, so made, gave rise to OA No.103/2007. By its order, dated 19.12.2008, the l earned Tribunal allowed the OA by setting aside the proceeding drawn up against the respondent including the penalty of dismissal from service, which had been i mposed on the respondent, and directed his reinstatement in service with all bac k wages. (x) While passing its order, the learned Tribunal, in its order, dat ed 19.12.2008, aforementioned, recorded, at para 11, that initiation of the majo r penalty proceeding was not bad. Having, however, arrived at this finding, the learned Tribunal proceeded to hold that an authority, which is competent to impo se only minor penalty, has also been vested with the power to ’initiate’ a proce eding involving major penalty, but such an authority does not have the power to proceed with or finalise such a proceeding and, therefore, after having ’initiat ed’ the disciplinary proceeding, the matter, in the present case, ought to have been placed before the authority competent to impose major penalty, which had no t been done, in the present case, and, thus, while the initiation of the proceed ing was correct, its further continuation and culmination into submission of enq uiry report, holding the respondent herein guilty of the charge, was bad in law. Based on these reasonings, the OA, as indicated hereinbefore, was allowed and the direction for respondent’s reinstatement, in service, was passed. (xi) We have heard Mr. U.K. Nair, learned Standing Counsel, N.F. Railways, an The findings of the learned Tribunal, contained in the order, da ted 19.12.2008, aforementioned, and the resultant directions flowing therefrom, stand impugned in the present writ petition made, under Article 226 of the Const itution of India, by the present petitioners. 2. d Mr. A. Dasgupta, learned counsel, for the sole respondent. 3. Referring to Schedule III of the 1968 Rules, it has been contended, on behalf of the petitioners, by Mr. Nair, learned Standing Counsel, N.F. Railway, that since the respondent is an officer of Group-A in Junior Administrative Gra de, General Manager, NF Railway, is the competent authority to initiate a procee ding for imposition of any of the penalties, major or minor, as contemplated by Rule 6 read with Rule 8(2) of the 1968 Rules, though a General Manager is not em powered to impose any of the major penalties enumerated in Rule 6. 4. In order to support his contention that General Manager, N.F. Railway, w as, in the present case, competent authority to issue Memorandum of Charge, unde r Rule 9 of the 1968 Rules, Mr. Nair has also referred to the definition of ’dis ciplinary authority’ as given in Rule 2 (1)(c)(ii) of the 1968 Rules and points out that the Memorandum, dated 04.10.2004, was issued by the General Manager, N. F. Railway, drawing disciplinary proceeding against the respondent under Rule 9 of the 1968 Rules and since Rule 9(2) of the 1968 Rules provides that whenever ’ disciplinary authority’ is of the opinion that there are grounds for enquiry int o the truth of any imputation of misconduct or misbehaviour against a railway se rvant, it may itself inquire into, or appoint any other authority to enquire int o, the truth thereof. 5. Mr. Nair also points out that disciplinary authority, in relation to Rul e 9, has been defined, under Rule 2(c)(ii), to be, in case of any Gazetted Railw ay servant, an authority competent to impose ’any’ of the penalties specified in Rule 6. Deriving strength from the definition of ’disciplinary authority’ so gi ven, it is contended by Mr. Nair that General Manager, NF Railway, being, in the light of Schedule III of the 1968 Rules, authorized to impose the penalties, sp ecified in Clauses (i), (iii) (iiia), (iiib) and (iv) of Rule 6, is competent to ’institute’ departmental proceeding against a Group A Officer in Junior Adminis trative Grade, such as, the respondent herein, and hold enquiry as contemplated by Rule 9. 6. The above position, according to Mr. Nair, is also clear from the provis ions of Rule 8(2) of the 1968 Rules, wherein it has been clarified that a discip linary authority, which is competent to impose any of the penalties specified in Clauses (i) to (iv) of Rule 6, which prescribes ’minor penalties’, may, subject to the provisions of Rule 2(1)(c), ’institute’ disciplinary proceeding against any Railway Servant and impose major penalties, which are specified in Clauses ( v) to (ix) of Rule 6, notwithstanding the fact that such a disciplinary authorit y is, otherwise, not competent to impose any of the latter penalties, which are, in terms of the Clauses (v) to the (ix) of Rule 6, major penalties. 7. In other words, what Mr. Nair contends is that an authority, such as, th e General Manager, N. F. Railway, which is competent to impose those ’minor pena lties’, which are mentioned in Schedule III to the 1968 Rules, but not competent to impose any of the ’major penalties’, as specified in Clauses (v) to (ix) of Rule 6, is nonetheless empowered, in terms of Rule 8(2), to ’institute’ a discip linary proceeding culminating into imposition of any of the major penalties as s pecified in Clauses (v) to (ix) of Rule 6. 8. Concedes, however, Mr. Nair that while the 1968 Rules empowers the Gener al Manager, as a disciplinary authority, to hold an enquiry under Rule 9 and als o to impose any of the minor penalties specified in Clauses (i) to (iv) of Rule 6, it is not within the competence of the said authority to impose any of the ma jor penalties as specified in Clauses (v) to (ix) of Rule 9 of the 1968 Rules an d, for this purpose, points out Mr. Nair, General Manager, N. F. Railway, having ordered enquiry and having obtained ’inquiry report’, which had found the respo ndent guilty of the charge, submitted the whole proceeding to the Railway Board, which is competent to impose ’major penalties’ as specified in Clauses (v) and (vi) of Rule 6 and, it was, thereafter, that the Railway Board, which having con sidered the matter, forwarded the proceedings to the UPSC for its consideration and recommendations and, in course of time, having taken into account all aspec ts of the matter including the recommendation/opinion of the UPSC, the President has imposed the impugned penalty of dismissal from service on the respondent an d this penalty, having been imposed by a competent authority and the penalty bei ng commensurate to the gravity of the misconduct, is wholly legal and ought not to have been interfered with by the learned Tribunal. 9. Resisting the writ petition, Mr. Dasgupta, learned counsel, appearing fo r the respondent, has submitted that resort to Rule 9 can be had only when a mis conduct may attract any of the major penalties as specified in Clauses (v) to (i x) of Rule 6. 10. In the case at hand, according to Mr. Dasgupta, it is the President, who is the competent disciplinary authority, and, hence, a General Manager, such as , the General Manager, N.F. Railway, has had no power to initiate disciplinary p roceeding without, in the light of the Railway Board’s letter, bearing No. E (D& A) 69RG6/12, dated 18.06.1969, and the learned Tribunal was wholly correct in ta king the view that, in the case at hand, the General Manager ought to have forwa rded the matter, for the decision, at the very initial stage, to the President a nd, depending upon the decision of the President, a disciplinary proceeding, inv olving imposition of major penalty, could have been instituted and carried to it s logical conclusion. Reference, in this regard, is, as indicated hereinbefore, made by Mr. Dasgupta to the communication of the Railway Board bearing No. E (D &A) 69RG6/12, dated 18.06.1969. 11. As the initiation of the disciplinary proceeding, in the present case, c ontends Mr. Dasgupta, was without the approval of the Minister concerned, though required by the Railway Board’s communication, dated 18.06.1969, aforementioned , initiation of the disciplinary proceeding by the General Manager, N.F. Railway , was wholly without jurisdiction and has, therefore, been rightly interfered wi th by the learned Tribunal. 12. Seeking to strengthen the above argument, Mr. Dasgupta has also submitte d that since the Memorandum of Charge was issued under Rule 9, it becomes clear that the disciplinary authority had construed the alleged misconduct of the resp ondent as a misconduct, which could warrant imposition of major penalty, and, he nce, in a case of this nature, it is an authority, which is competent to impose major penalty, as embodied in Rule 6, was the one, which ought to have initiated the disciplinary proceeding; whereas, in the case at hand, the Memorandum of Ch arge was served, under Rule 9, by the General Manager, N.F. Railway, without any reference having been made to, and/or approval having been obtained from, the M inister concerned. Viewed from this angle, contends Mr. Dasgupta, the entire pro ceeding, from its commencement to its conclusion, held against the respondent, w as bad in law and has been rightly set at naught by the learned Tribunal’s order , which stands impugned in this writ petition. 13. In the light of the rival submissions noted above, let us, now, determin e if the order, passed by the learned Tribunal and impugned in the present writ petition, calls for interference in exercise of this Court’s extra-ordinary juri sdiction under Article 226 of the Constitution of India. 14. With regard to the above, it needs to be recalled, as already pointed ou t above, that the learned Tribunal has conceded that the General Manager, NF Rai lway, was competent to ’initiate’ the disciplinary proceeding against the presen t respondent, though the disciplinary proceeding involved major penalty. 15. Having arrived at the above conclusion, the learned Tribunal has pointed out that since the General Manager, NF Railway, is not a competent authority to impose any of the major penalties, specified in Clauses (v) to (ix) of Rule 6 o f the 1968 Rules, the General Manager, N. F. Railway, ought to have, as a necess ary corollary, forwarded the proceeding to the competent authority for further n eedful action. The relevant observations made by the learned Tribunal reads, (cid:28)Such an authority, as a necessary consequence, upon initiation of a major penal ty proceeding, ought to have transmitted the papers to the authority competent t o impose major penalty for needful further action. (cid:29) 16. le in law ? Our quest for an answer to the above question brings us to have a brief 17. survey of the relevant provisions embodied in 1968 Rules. On making such a surv ey, what attracts our attention, most prominently, is that Rule 2(1)(c)(i) defin es a disciplinary authority to mean, (cid:28)in relation to the imposition of a penalty , on a Railway Servant, the authority competent, under 1968 Rules, to impose, on Whether the conclusion, so reached by the learned Tribunal, is sustainab the Railway Servant, that penalty. (cid:29) 18. Generally, therefore, an authority, which is competent to impose a presc ribed penalty, on a Railway Servant, is the competent disciplinary authority for imposition of ’that’ penalty. 19. Logically extended, Rule 2(1)(c)(i) makes it abundantly clear that when an authority is competent to impose a minor penalty on a Railway Servant, the sa id authority would be regarded as the competent disciplinary authority, within t he meaning of Rule 2(1)(c)(i), to impose ’that’ minor penalty and, similarly, wh en an authority is empowered to impose any of the major penalties, on a Railway Servant, such an authority would be regarded as the competent disciplinary autho rity within the meaning of Rule 2(1)(c)(i). 20. What further logically follows from the above discussion is that if the General Manger, N.F. Railway, is found to be an authority competent to impose, o n a Railway Servant, belonging to Group A and falling under Junior Administrativ e Grade, any of the minor penalties, as specified in Rule 6, the said authority would be regarded as a competent disciplinary authority in relation to the impos ition of a minor penalty on a Group A Railway Servant, who falls under Junior Ad ministrative Grade. In other words, if the General Manager, N.F. Railway, is fo und to be an authority competent to impose any of the minor penalties, as specif ied in Rule 6, on a Railway Servant of Group A, belonging to Junior Administrati ve Grade, then, the General Manger, N.F. Railway, would be regarded as the compe tent disciplinary authority for imposition of minor penalty on a Railway Servant of Group A belonging to Junior Administrative Grade. 21. No wonder, therefore, that sub-Clause (ii) of Clause(c) of sub-Rule (1) of Rule 2 of the 1968 Rules defines a ’disciplinary authority’ to mean an author ity competent to impose any of the penalties, specified in Rule 6, ’in relation to Rule 9 and clauses (a) and (b) of sub-rule (1) of Rule 11 in the case of any Gazetted Railway Servant’. 22. Because of the fact that Rule 9 embodies the procedure for imposition of major penalty and Rule 11 deals with minor penalty, Rule 2(1)(c)(ii) defines a disciplinary authority to mean, in relation to Rule 9 as well as in relation to Clauses (a) and (b) of Sub-Rule (1) of Rule 11, an authority competent, in the c ase of any Gazetted Railway Servant, to impose any of the penalties specified in Rule 6. To put it a little differently, an authority, such as, General Manager , N.F. Railway, if competent to impose any of the ’minor penalties’, as embodied in Rule 6, would be competent, as a ’disciplinary authority’, to institute a ’d isciplinary proceeding’, in terms of Rule 9 of the 1968 Rules, which may warrant a ’major penalty’ . Bearing in mind what a disciplinary authority means, when we turn to Rul 23. e 6, we notice that Rule 6 embodies the penalties, which can be imposed, on a Ra ilway Servant, for a given misconduct. These penalties have been divided into tw o categories, namely, minor penalties and major penalties. While Clauses (i) to (iv) of Rule 6 embody those penalties, which are described as minor penalties, C lauses (v) to (ix) of Rule 6 embody those penalties, which have been described a s major penalties. 24. Coupled with the above, Rule 9, which contains the procedure for imposit ion of major penalty, lays down that no order imposing any of the major penaltie s, specified in Clauses (v) to (ix) of Rule 6, shall be made except after holdin g an inquiry, as far as may be, in the manner as provided in Rule 9. 25. Sub-Rule (2) of Rule 9 clearly lays down that whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Railway Servant, it ma y itself inquire into, or appoint under this Rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry o r other authority to inquire into the truth thereof. 26. ibed by Rule 11, which lays down as under: Similarly, procedure, for imposition of minor penalties, has been prescr (cid:28)Procedure for imposing minor penalties - (1) Subject to the provisions of sub-clause (iv) of clause (a) of sub-rule (9) o f Rule 9 and of sub-rule (4) of Rule 10, no order imposing on a Railway servant any of the penalties specified in clauses (i) to (iv) of Rule 6 shall be made ex cept after - (a) informing the Railway servant in writing of the proposal to take action agai nst him and of the imputations of misconduct or misbehaviour on which it is prop osed to be taken, and giving him a reasonable opportunity of making such represe ntation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub-rules (6) to (25) of Rule 9, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the Railway servant under cl ause (a) and the record of inquiry, if any, held under clause (b) into considera tion; (d) recording a finding on each imputation of misconduct or misbehaviour; and (e) consulting the Commission where such consultation is necessary. (2) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a ca se, it is proposed, after considering the representation, if any, made by the Ra ilway servant under clause (a) of that sub-rule to withhold increments of pay an d such withholding of increments is likely to affect adversely the amount of pen sion or special contribution to Provident Fund payable to the Railway servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be he ld in the manner laid down in sub-rules (6) to (25) of Rule 9, before making any order imposing on the Railway servant any such penalty. (3) *** (4) The record of the proceedings in cases specified in sub-rules (1) and (2) sh all include- (i) a copy of the intimation to the Railway servant of the proposal to take acti *** *** on against him; (ii) a copy of the statement of imputations of misconduct or misbehaviour delive red to him; (iii) his representation, if any; (iv) the evidence produced during the inquiry, if any; (v) the advice of the Commission, if any; (vi) the findings on each imputation of misconduct or misbehaviour; and (vii) the orders on the case together with the reasons therefor. (cid:29) While one has to resort to Rule 9 for imposing major penalties, Rule 11 27. has to be taken recourse to for imposition of minor penalty. Bearing in mind what is indicated above, let us, now, come to the Schedu 28. le-III of the 1986 Rules, which Mr. U. K. Nair has relied upon. The relevant pro visions, contained in Schedule III, are reproduced below: (cid:28)SCHEDULE III {See rule 4 and sub-rule (2) of rule 7} Item No. ailway Servant under suspension or to impose penalty and its nature. e Authority 1 Class of Railway servants Authority empowered to place a R Appellat 2 1 3 Railway Servants Group ’A’ 4 President - Full powers _ Railway Board - Suspension and the penalties specified in Clause s (i) to (vi) of Rule 6. General Manager/Additional General Manager who has been ordered by the Competent Authority to look after the current duties of General Manager i n the absence of a regularly posted General Manager, Director General/RDSO, Prin cipal/ Railway Staff College, Chief Administrative Officers (having independent charge of their organisations) -Suspension and the penalties specified in clause s (i), (iii), (iii-a), (iii-b) and (iv) of Rule 6 in the case of Officers upto a nd including Selection Grade Officers of Junior Administrative Grade. (cid:29) 29. From what have been reproduced above, it is clear that in the case of a Group A officer, such as the respondent herein, who belongs to Junior Administra tive Grade, the Railway Board is empowered not only to suspend, but also impose penalties, which are specified in Clauses (i) to (vi) of Rule 6, and that a Gene ral Manager is competent to suspend or impose penalties specified in Clauses (i) ,(iii), (iiia), (iiib) and (iv) of Rule 6. We must hasten to add that in the li ght of the contents of Schedule III, the penalties, which a General Manager is e mpowered under Clauses (i), (iii), (iiia), (iiib) and (iv) of Rule 6 to impose m inor penalties; whereas the Railway Board can impose, in an appropriate case, ’m ajor penalties’, which are prescribed by Clauses (v) and (vi) of Rule 6. 30. Situated thus, it is clear that a General Manager is not empowered to im pose any of the major penalties embodied in Clauses (v) to (ix) of Rule 6. In th e case at hand, therefore, General Manager, NF Railway, was not the competent au thority to impose any of the major penalties specified in Clauses (v) to (ix) of Rule 6. When the General Manager, NF Railway, was not the competent authority t o impose any major penalty, could he have ’instituted’ a proceeding for impositi on of any of the major penalties prescribed by Clauses (v) to (ix) of Rule 6 ? 31. hich lays down as under: (cid:28)8 (1) *** (2) A disciplinary authority competent under these rules to impose any of the pe nalties specified in Clauses (i to (iv) of Rule 6 may; subject to the provisions of Clause (c) of sub-rule (1) of Rule 2, institute disciplinary proceedings aga inst any Railway servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties. (cid:29) Our search for an answer to the above question brings us to Rule 8(2), w ***. *** 32. From a bare reading of the provisions of Rule 8(2), it becomes abundantl y clear that a disciplinary authority, which is competent to impose any of the m inor penalties, as specified in Clauses (i) to (iv) of Rule 6, may institute dis ciplinary proceeding against a Railway Servant, for imposition of any of the maj or penalties, too, as specified in Clauses (v) to (ix) of Rule 6. However, such a disciplinary authority would not be competent to impose any of the penalties, which are described, under Rule 6, as major penalties. 33. In other words, an authority, which is not competent to impose any of th e major penalties, can nevertheless ’institute’ a disciplinary proceeding for im position of major penalties if such an authority is, otherwise, competent to imp ose any of the minor penalties, though the authority concerned, in such a case, would not be able to impose any of the major penalties. When an authority is emp owered to ’institute’ a disciplinary proceeding involving major penalties, but h e cannot impose any of the major penalties, it necessarily follows that there is no bar, on the part of such an authority, to ’institute’ a disciplinary proceed ing, involving both kinds of penalties, whether minor or major. What such an au thority cannot do is only to impose any of the major penalties. For the imposi tion, therefore, of a major penalty, the disciplinary proceeding, which may have been instituted, would be required to be submitted to the authority competent t o impose major penalties. More clearly speaking, short of imposing major penalty , an authority, which is competent to impose minor penalty, can ’institute’ a di sciplinary proceeding, which involves any of the major penalties and can complet e such a proceeding by holding an inquiry, if necessary, and, then, lay the proc eeding before the competent authority along with the enquiry report and response thereto of the charged officer, who has been proceeded against, for imposition of appropriate major penalty if, in the opinion of an authority, such as, Genera l Manager (who can only impose minor penalties) the misconduct warrants impositi on of any of the major penalties. 34. It would, however, remain open to the authority, which is competent to i mpose major penalties, decide to impose or not to impose any of the major penalt ies. Since an authority, which is competent to impose the major penalties, is n ot debarred from imposing a minor penalty. It would, therefore, remain open to such an authority to impose, in a given case, even a minor penalty for proven mi sconduct instead of imposing a major penalty if the authority concerned is of th e view that the proven misconduct warrants a minor penalty and not any of the ma jor penalties. 35. ing of Rule 10, more particularly, Sub-Rule (3) thereof, which reads (cid:28)10. (1) (2) (3) Where the disciplinary authority is of the opinion that the penalty warrante d is such as is not within its competence, he shall forward the records of the i nquiry to the appropriate disciplinary authority, who shall act in the manner as The above position of law becomes clear from a careful and cautious read *** *** *** *** *** *** provided in these rules. (cid:29) Because of the fact that Sub-Rules (4) and (5) of Rule 10 are also relev 36. ant, in the present case, both the Rules are quoted below: (cid:28)(4) If the disciplinary authority having regard to its findings on all or any o f the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 6 should be imposed on the railway servant, it sh all, notwithstanding anything contained in rule 11, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the C ommission for its advice and such advice shall be taken into consideration befor e making any order imposing any penalty on the Railway Servant. (5) If the disciplinary authority, having regard to its findings on all or any o f the articles of charge and on the basis of the evidence adduced during the inq uiry, is of the opinion that any of the penalties specified in clauses(v) to (ix ) of rule 6 should be imposed on the railway servant, it shall make an order imp osing such penalty and it shall not be necessary to give the railway servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission f or its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the railway servant (cid:29). 37. A combined reading of Sub-Rules (4) and (5) of Rule 10 further show that if the disciplinary authority, having regard to its findings on all or any of t he articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 6 should be imposed on the Railway servant, it shall , notwithstanding anything contained in Rule 11, make an order imposing such a m inor penalty. Of course, irrespective of the fact whether a proven misconduct w arrants minor or major penalty, the record of the inquiry shall be forwarded by the disciplinary authority to the UPSC for its advice if it is, otherwise, neces sary to consult the UPSC and the advice, given by the UPSC, shall, in such a cas e, be taken into consideration before making any order imposing any penalty on t he Railway servant. We would, however, show a little later, that a charged offic er’s response to the advice of the UPSC shall be sought for by the disciplinary authority concerned before imposing a penalty, which required consultation with the UPSC. 38. Moreover, if the disciplinary authority, having regard to its findings o n all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the major penalties, specified in clauses (v) to (ix) of Rule 6, should be imposed on the Railway servant, it shall make an order imposing such penalty and it shall not be necessary to give the Railway servant any further opportunity of making representation on the pena lty proposed to be imposed. In such a case, too, where it is necessary to consu lt the UPSC, the record of the inquiry shall be forwarded by the disciplinary au thority to the UPSC for its advice and such advice shall be taken into considera tion before making an order imposing any such penalty on the Railway servant. We would, however, show a little later stage that even in respect of such category of cases, which we have presently referred to, the charged officer’s response t o the advice of the UPSC shall be sought for by the disciplinary authority conce rned before imposing a penalty, which requires consultation with the UPSC. The provisions, embodied in Sub-Rules (3), (4) and (5) of Rule 10, clear 39. ly show that when the Union Public Service Commission is required to be consulte d before any penalty is imposed on a Railway servant, the disciplinary authority , which is competent, shall obtain the advice of the UPSC and, then, shall take into consideration the advice of the UPSC before making an order imposing any of the penalties, minor or major, on the Railway servant. 40. Coupled with the above, in the light of the decision, in S. N. Narula -V s- Union of India, reported in (2011) 4 SCC 591, it also becomes abundantly clea r that before the authority concerned takes a decision on the question of imposi tion of penalty, where consultation with the UPSC is provided for, the authority concerned shall, before taking, in the light of the advice given the UPSC, a f inal decision, make over a copy of the advice of the UPSC to the charged officer giving an opportunity to the charged officer to have his say on the advisory op inion of the UPSC and if any representation is made by the charged officer, in t his regard, the same shall also be taken into account along with the advisory op inion the of UPSC and other materials available on record. 41. In the light of the law discussed above, when we revert to the facts of the case at hand, we notice that the General Manager, NF Railway, is the compete nt authority to impose, on a Group A officer of Junior Administrative Grade, any of the minor penalties as specified in Clauses (i), (iii), (iii) (a), (iii)(b) and (iv) of Rule 6 and, hence, he is a disciplinary authority within the meaning of Rule 2(1)(c)(i). Though, however, General Manager, N.F. Railway, cannot, ad mittedly, impose any of the major penalties as specified in Clauses (v) to (ix) of Rule 6, he is, nevertheless, competent, in the light of sub-Rule (2) of Rule 8, read with Rule 2(1)(c)(ii)to ’institute’ a disciplinary proceeding for imposi tion of any of the major penalties specified in Clauses (v) to (ix) of Rule 6 an d it is obviously for him to decide, on the basis of the materials available bef ore him, if the charge has been proved against the railway servant or not and if he is satisfied that the charge is proved and that the misconduct, so proved, i s one, which warrants imposition of a major penalty, he has to forward the proce eding, including the enquiry report, the response of the charged officer thereto and his own comments, if any, to the Railway Board, which is competent to impos e major penalties as specified in Clauses (v) and (vi) of Rule 6. 42. If, however, the Railway Board is of the view that the proven misconduct would warrant any of the penalties specified in Clauses (vii) to (ix) of Rule 6 , then, the Railway Board has to, in turn, forward the proceedings to the Presid ent of India. This is what has been done in the present case. 43. For the sake of clarity, we deem it apposite, at this stage, to deal wit h the word, ’institute’, occurring in Rule 2(1)(c)(ii) of the 1968 Rules. The w ord, ’institute’, according to Oxford Advanced Learner’s Dictionary (new edition ), means (cid:28)to start a process (cid:29). Chambers Advanced Dictionary defines the word, ’institute’, to mean (cid:28)to initiate or begin (cid:29). 44. The opinion, given by the General Manager, N. F. Railway, will not, in s uch a case, be binding on the Railway Board inasmuch as the Railway Board would be free to come to its own independent judicious opinion after having consulted the UPSC, if so required, and after having given opportunity to the Railway Serv ant concerned to have his say on the advisory opinion given by the UPSC. If, ho wever, the Railway Board forms the opinion that any of the major penalties, spec ified in Clauses (vii) to (ix) of Rule 6, is warranted for a proven misconduct, the Railway Board, not being competent to impose penalties specified in Clauses (vii) to (ix) of Rule 6, would have to forward the proceedings, for necessary co nsideration and order, to the President and it would be, in turn, for the Presid ent to take a decision in the matter after consulting, wherever necessary, the U PSC, and after giving an opportunity to the charged officer to give his response thereto. 45. Since the General Manager, N.F. Railway, being, in the light of Schedule III, competent to impose some of the ’minor penalties’, is a disciplinary autho rity within the meaning of ’disciplinary authority’, as defined by Section 2(1)( c)(ii), he would be competent to determine, in such a case, if a misconduct has been proved or not and, if proved, whether it would warrant major penalty or not . It is only when he finds that the misconduct is proved and the proven miscond uct warrants imposition of major penalty that he is required to forward the enti re proceeding, with his opinion with regard to the nature of penalties imposable on the charged officer, to the appropriate disciplinary authority, i.e., Railwa y Board, if Railway Board is the competent authority, and it would, then, be for the Railway Board to decide and determine, in the light of the advisory opinion of the UPSC, wherever such opinion is needed, and the response, if any, thereto of the charged officer, whether to impose any penalty on the Railway Servant or not. If the Railway Board finds that the proven misconduct requires any of the penalties, which the Railway Board is empowered to impose on the Railway Servan t, it may do so; or else, where the Railway Board finds that the proven miscondu ct warrants imposition of any of the major penalties specified in Clauses (vii) to (ix) of Rule 6, the proceedings are required to be forwarded to the President for his decision in the manner as indicated above. 46. Apprehending that this Court may take the view that, in the present case , General Manager, N.F. Railway, was the competent authority to serve the Memora ndum of Charge, dated 04.10.2004, and also competent to hold enquiry and, then, submit the proceedings to the Railway Board for its decision in accordance with law, Mr. Dasgupta, learned counsel, has referred to the case of Union of India a nd Others vs. S. K. Kapoor, reported in (2011) 4 SCC 589, to contend that, in t he case at hand, since the respondent had not been given any opportunity for his comments by furnishing to him a copy of the advice, given by the UPSC, the prov isions of Rule 10 have been violated and the impugned penalty of dismissal from service may be held to be bad in law inasmuch as the President, in the present c ase, has imposed penalty of dismissal from service on the respondent, in consult ation with the UPSC, without giving any opportunity to the charged officer (i.e. , the respondent herein) to have his say on the opinion given by the UPSC. Reacting to the above submissions, which Mr. Dasgupta, learned counsel, 47. has made, Mr. U. K. Nair, learned Standing counsel, N.F. Railway, contends that the mere omission to furnish a copy of the opinion of the UPSC to the respondent herein would not vitiate the final order, dated 12/15.05.13, imposing penalty o f dismissal from service, when the respondent has not contended, or been able to show, that any prejudice has been caused to him for omission to furnish to him a copy of the advice of the UPSC. 48. It is also pointed out by Mr. Nair, learned Standing counsel, N.F. Railw ay, that the order, dismissing the respondent from service, was never challenged before the learned Tribunal on the ground of non-furnishing of a copy of the op inion of the UPSC to the respondent. Not to speak of the proceedings, which too k place before the learned Tribunal, even in this writ petition, further points out Mr. Nair, the respondent has, nowhere, contended, in his affidavit-in-opposi tion, that the impugned order of his dismissal from service is bad in law, becau se of the omission to furnish to him, for his comments, the opinion of the UPSC. In such circumstances, according to Mr. Nair, the impugned order of penalty of dismissal from service does not call for any interference, particularly, when n o prejudice could be shown to have been caused to the respondent for the omissio n, on the part of the Railway Board, to furnish to the respondent, a copy of the opinion of the UPSC. 49. Coupled with the above, Mr. Nair, learned counsel, further points out th at it is Rule 12 of the 1968 Rules, which requires furnishing of a copy of the o pinion of the UPSC, to the charged officer, along with the order of penalty and this part of the requirement of law has been complied with by the present petiti oners inasmuch as the respondent has been served not only with the order of his dismissal from service, but also the opinion, which was given by the UPSC. 50. In order to determine the correctness or otherwise of the submissions, m ade by Mr. U. K. Nair, it needs to be pointed out that Rule 10, which embodies t he provisions as regards taking of action on an enquiry report, does not make, i n specific terms, any provision for furnishing of the copy of the opinion, which may have been rendered, in a given case, by the UPSC. It may also be pointed o ut, in this regard, that it is Rule 12 of the 1968 Rules, which, in specific ter ms, provides that a charged officer shall be furnished, along with the order of imposition of penalty, a copy of the advice, which may have been given by the UP SC. 51. What, now, needs to be noted is that the case of S. N. Narula vs. Union of India and others was decided, in fact, on 30.01.2004, though it came to be re ported in (2011) 4 SCC 591, wherein the Court, referring to the doctrine of audi alteram partem, which is one of the cardinal principles of natural justice, too k the view that since the opinion, given by the UPSC, had not been communicated to the officer, who had been proceeded against, before the final order was passe d by the disciplinary authority, the final order was bad in law and, on this bas is, the Supreme Court, in S. N. Narula’s case (supra), upheld the decision of th e learned Central Administrative Tribunal, which had, while quashing the impugne d order of penalty, remanded the case to the disciplinary authority to pass a de tailed order after furnishing a copy of the opinion of the UPSC so as to nullify the violation of principle of natural justice. 52. The decision, in S. N. Narula’s case (supra), was a decision of a two Ju dge Bench. However, in the latter decision, in Union of India and other vs. T. V. Patel, reported in (2007) 4 SCC 785, which was also a decision of a Coordinat e Bench, the Court took the view that while imposing penalty/punishment, supplyi ng copy of the advice, given by the UPSC, to the delinquent employee, was not ne cessary and would not, therefore, warrant interference. 53. When the decision in T.V. Patel’s case (supra) was rendered, the decisio n, in S. N. Narula’s case (supra), was not brought to the notice of the Coordina te Bench, though S. N. Narula’s case (supra) was, as already a pointed out above , a case decided prior, in point of time, to the decision in T.V. Patel’s case ( supra). 54. Having noticed the above aspect of the matter, yet another Coordinate Be nch, in S. K. Kapoor’s cae (supra), has pointed out that since the latter decisi on, in T.V. Patel’s case (supra), was rendered without noticing the decision, in S. N. Narula’s case (supra), the decision, in T.V. Patel’s case (supra), was a judgement per incuriam and that it is the decision, in S. N. Narula’s case (sup ra), which will be binding on the subsequent Bench of equal strength. In the light of the above observations, made in S.K. Kapoor’s case (supr 55. a), a two Judge Bench of the Supreme Court rejected the submissions, made in S.K . Kapoor’s case (supra), that the supplying of the copy of the report of the UPS C to the respondent employee, along with the dismissal order, was sufficient com pliance of the law contained in that behalf. 56. In other words, it was contended, in S.K. Kapoor’s case (supra), that i n the light of the decision, in T.V. Patel’s case (supra), the law was complied with, when a copy of the opinion of the UPSC had been supplied to the delinquent employee along with the order of dismissal. This is precisely what has been co ntended by Mr. U. K. Nair, learned counsel, before this Court too. However, thi s submission was not acceded to by the Court, in S. K. Kapoor’s case (supra), in asmuch as it has been observed, in S.K. Kapoor’s case (supra), at paragraph 5, (cid:28) It is a settled principle of natural justice that if any material is to be relie d upon in departmental proceedings, a copy of the same must be supplied in advan ce to the charge-sheeted employee so that he may have a chance to rebut the same . (cid:29) 57. In S.K. Kapoor’s case (supra), it has been further pointed out by the Su preme Court that where the opinion of the UPSC is not relied upon by the discipl inary authority, the omission to supply copy of the opinion of the UPSC would no t render the final decision invalid. However, when the opinion of the UPSC is r elied upon, then, such reliance must precede furnishing of a copy of the opinion of the UPSC to the employee concerned so that the delinquent employee can respo nd to the opinion, given by the UPSC and, if it is not done, then, it will be in violation of the principle of natural justice. 58. In the light of the above clearly laid down position of law, judicial di scipline demands that we adhere to the decision, in S.K. Kapoor’s case (supra), and hold, without, however, determining the question as to whether any prejudice has been caused, or has not been caused, to the respondent for the omission to furnish to him a copy of the opinion of the UPSC, that, in the case at hand, the respondent ought to have been furnished with a copy of the advice, which had be en given by the UPSC, and his response thereto ought to have been sought for bef ore taking a final decision in the matter. 59. Situated thus, while we find that interference by the learned Tribunal w ith the impugned order of dismissal on the ground that General Manager, N. F. Ra ilway, ought not to have drawn the disciplinary proceeding without necessary app roval from the competent authority, was bad in law, we also find that the order of dismissal, in question, cannot, in the light of the decision, in S.K. Kapoor’ s case (supra), be sustained and the proceeding needs to be remanded back to the Railway Board for doing the needful in accordance with law. 60. Because of what have been discussed and pointed out above, this writ pet ition partly succeeds. The impugned order, dated 19.12.2008, passed by the lear ned Tribunal, is hereby set aside. We also set aside the order, dated 12/15.05. 2006, whereby the respondent stands dismissed from the service and we direct tht the final decision shall be taken after having furnished to the respondent an o pportunity to have his say on the advisory opinion of the UPSC. 61. We direct that final decision shall be taken, in the present proceeding, within a period of three months from the date of receipt of a copy of this orde r. We also make it clear that the respondent shall be directed to give his resp onse to the opinion of the UPSC within a period of three weeks from the date of receipt of the opinion of the UPSC. We also set aside, in the light of the disc ussion held above, the learned Tribunal’s direction to reinstate the respondent in service and we direct that the respondent be placed forthwith under suspensio n until the time a final order, in the light of the law, discussed above, is pas sed by the Railway Board. 62. We may also point out that, referring to the letter No. E (D&A) 69RG6/12 , dated 18.06.1969, of the Railway Board, Mr. Dasgupta, learned counsel, has sub mitted that, in the present case, the President, being the competent disciplinar y authority, the disciplinary proceeding against the respondent could not have b een initiated without approval of the Minister concerned. The submission, so ma de on behalf of the respondent, is not sustainable for the simple reason that th e clarification, embodied in the letter, dated 18.06.1969, aforementioned, issue d by the Railway Board, relates to a case, where the President is the disciplina ry authority; whereas, in the case at hand, as we have already pointed out above , the General Manager, N.F. Railway, was the competent disciplinary authority an d, hence, approval of the Minister concerned, was not required before the discip linary proceeding was ’instituted’ against the respondent herein. 63. nd disposed of. 64. With the above observations and directions, this writ petition shall sta No order as to costs.