Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.14259 of 2018 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950 --------------- 1. Union of India (Railway) represented through its General Manager, East Coast Railway Rail Vihar, Chandrasekharpur Bhubaneswar, Khordha District 2. General Manager, East Coast Railway Rail Vihar, Chandrasekharpur Bhubaneswar, Khordha District 3. Senior Divisional Commercial Manager East Coast Railway Rail Vihar, Chandrasekharpur Bhubaneswar Khordha District … -VERSUS- 1. Krishna Chandra Biswas Petitioners Son of Sri Dhirendranath Biswas permanent resident of Bagula College Pada P.O.: Nadia, P.S.: Haskhali District: Nadia at present working as Train Ticket Inspector In East Coast Railway being posted at Puri P.O./District: Puri, Odisha … Opposite Party W.P.(C) No.14259 of 2018 Page 1 of 43 2. Chairman, Railway Board At: Room No.256A, Rail Bhawan Raisana Road, New Delhi-110001. 3. N. Padhi, Enquiry Officer-cum- Deputy Chief Vigilance Officer (Traffic) Office of General Manager, East Coast Railways Bhubaneswar, District: Khordha. …Pro forma Opposite Parties Counsel appeared for the parties: For the Petitioners : Mr. Prasanna Kumar Parhi, Deputy Solicitor General of India for High Court of Orissa and Mr. Satya Sindhu Kashyap, Central Government Counsel For the Opposite Party No.1 : Ms. Rakhi Sikdar and Mr. Amitosh Sikdar, Advocates for the opposite party No.1 P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN AND Date of Hearing : 10.10.2023 :: Date of Judgment : 18.10.2023 JUDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: Assailing the Order dated 24th May, 2018 passed by the learned Central Administrative Tribunal, Cuttack Bench, W.P.(C) No.14259 of 2018 Page 2 of 43 Cuttack in O.A. No.260/00557 of 2015 filed under Section 19 of the Administrative Tribunals Act, 1985, whereby the Order dated 08.05.2013 of the Disciplinary Authority got upheld; and the notice dated 28.11.2014 as also the Order dated 27.02.2015 of the Revising Authority are quashed with direction to reinstate the opposite party No.1, the petitioners have approached this Court by way of filing this writ petition with the following prayer(s): “Under the circumstance, it is, therefore, humbly prayed that this, Hon’ble Court may graciously be pleased to issue a writ(s) in the nature of certiorari and such other writ, for quashing the impugned Judgment/Order dated 24.05.2018 passed in O.A. No.260/00557 of 2015 under Annexure-1; And the Hon’ble Court be pleased to pass such other order/orders, direction/directions as the Hon’ble Court deem fit and proper in the circumstances of the case.” 2.1. The petitioners have questioned the propriety of the Order dated 24.05.2018 on the ground that the same was passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack on erroneous consideration of Rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968. THE FACTS: 3. The factual matrix leading to decision to carry the matter to this Court for indulgence is that during the vigilance W.P.(C) No.14259 of 2018 Page 3 of 43 checking conducted in the Train bearing No.18410 on 27.12.2011, the opposite party No.1, Train Ticket Inspector (“TTI”, for convenience), was found demanding and accepting Rs.800/- as gratification from two of the passengers for allotting berths. Accordingly, Memorandum of Charge was issued under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 (“RSDA Rules”, for brevity) in Standard Form No.5— “Charge Sheet for Major Penalty”— on 16.04.2012, responding thereto the opposite party No.1 submitted his reply. 3.1. Pursuant to submission of enquiry report, disciplinary proceeding initiated by the Senior Divisional Commercial Manager, Khurda Road (“Disciplinary Authority”) imposed punishment vide Order dated 08.05.2013 to the following effect:
Legal Reasoning
“The present pay of Sri K.C. Biswas, TTI/KUR is reduced by two stages, i.e., from Rs.14,640/- to 13,700/- in Pay Band with Grade Pay Rs.4,200/- for a period of two years with cumulative effect, i.e., the punishment shall operate to postpone the future increments on restoration.” 3.2. As the case was initiated on the vigilance report, the matter of punishment was referred to Vigilance Branch, which did not agree with the order of the Disciplinary Authority for the punishment imposed does not commensurate with the gravity of offence committed by the opposite party No.1. Therefore, the matter was W.P.(C) No.14259 of 2018 Page 4 of 43 referred to the General Manager for enhancement of the punishment in terms of power conferred under clause (b) of sub-rule (1) of Rule 25 of the RSDA Rules as the time stipulation of six months prescribed had already expired. 3.3. Accordingly, in exercise of power conferred under clause (iii) of sub-rule (1) and sub-rule (5) of Rule 25 on the General Manager (Zonal Head), suo motu revision being initiated by issue of Notice dated 28.11.2014 contemplating enhancement of punishment, the opposite party No.1 furnished his reply on 20.01.2015. On consideration of totality of material on record, the General Manager-Revising Authority passed Order dated 27.02.2015 to the following effect: “In view of the above findings and in exercise of power conferred upon me under Rule 25(1)(iii) and (5) of the Railway Servants (Discipline & Appeal) Rules, 1968. I, as Revisionary Authority, have taken the decision to enhance the punishment imposed against the Charged Officer by Disciplinary Authority in accordance with Rule 6 of Railway Servants (Discipline & Appeal) Rules, 1968 to meet the ends of justice. However, he may be allowed with a compassionate allowance by paying 2/3rd of pension and gratuity as admissible.” from service’ ‘removal to 3.4. Dissatisfied with Order of enhancement of penalty in terms of Rule 6, the opposite party No.1 preferred appeal/representation purportedly under Rule 18 to the Railway Board-Appellate Authority as specified under Rule 19 of RSDA Rules, which resulted in dismissal; W.P.(C) No.14259 of 2018 Page 5 of 43 thereby, the Order of the General Manager enhancing the penalty got affirmed vide Order dated 12.08.2015. 3.5. Still dissatisfied, laying challenge against the Order of the General Manager-Revising Authority, as also the Order of the Chairman of Railway Board-Appellate Authority, the opposite party No.1 approached the Central Administrative Tribunal, Cuttack Bench, Cuttack by way of filing Original Application which was registered as O.A. No.260/00557 of 2015.
Decision
3.6. Said O.A. No.260/00557 of 2015 came to be disposed of by Order dated 24.05.2018 with the following observation: “In the present case, on a cumulative reading of the Order of the Revisional Authority, Railway Board’s Letter No. E (D&A) 71 RG 5-18, dated 12.12.1972 and the decisions rendered by the co-ordinate Benches of the Tribunal, cited supra and going through the facts of the present case, we do not see any justifiable reason to make a departure from the view already taken in the cases referred to above. The most reasonable impediment in not upholding the order of the Revisional Authority is sub-rule 5(b) of Rule 25 of Railway Servants (Discipline and Appeal) Rules which clearly envisages that no action under the above rule shall be initiated by the revising authorities after more than six months from the date of the order to be revised. Accordingly, while upholding the order of the Disciplinary Authority, we quash the show cause notice dated 28.11.2014 and the order of Revisional Authority the dated 27.02.2015 (Annexure-A/10) and direct W.P.(C) No.14259 of 2018 Page 6 of 43 Respondents to reinstate the applicant forthwith but without any back wages. However, the applicant shall be entitled to get his pay fixed notionally and the period of service shall be counted towards all other benefits such as pension, if any, seniority etc.” 3.7. Questioning legal sanctity of said Order dated 24.05.2018 of the Central Administrative Tribunal, the petitioners have come up before this Court on the ground that there was non-application of mind in allowing the original application of the opposite party No.1-dismissed railway employee inasmuch as the General Manager-Revising Authority was competent and vested with power to interfere with the Order of the Disciplinary Authority in terms of Rule 25(5)(b) of the RSDA Rules; as such, there was no occasion for the Tribunal to consider the aspect of limitation. It is the case of the petitioners that the enhancement of penalty imposed by revising the Order of the Disciplinary Authority is in consonance with the terms of Rule 6. The Central Administrative Tribunal has misapplied the decisions in Saraju Prasad Sinha & Ors. Vrs. Union of India & Ors., OA No.83/2003, decided on 11.06.2004 by Central Administrative Tribunal, Calcutta Bench, Calcutta; R.P. Jadeja Vrs. Union of India & Ors., OA No.115/2002, decided on 07.02.2003 by the Central Administrative Tribunal, Ahmedabad Bench, Gujarat; Manoj Kumar Singh Vrs. Union of India & Ors., OA No.190/2012, disposed of on 02.09.2016 by the Central Administrative W.P.(C) No.14259 of 2018 Page 7 of 43 Tribunal, Patna Bench, Patna; and Robert Rosario Vrs. Union of India, OA 773/2011, disposed of by the Central Administrative Tribunal, Cuttack Bench, Cuttack read with Railway Board’s Letter No.E(D&A) 71 RG 5-18, dated 12.12.1972. COUNTER-AFFIDAVIT OF THE OPPOSITE PARTY NO.1: 4. Taking strong objection to the enhancement of punishment by the General Manager-Revising Authority under Rule 25 as confirmed by the Chairman, Railway Board, the opposite party No.1 stemming on ratio laid down in Bhagat Ram Vrs. State of Himachal Pradesh, AIR 1983 SC 454; Ranjit Thakur Vrs. Union of India, AIR 1987 SC 2386; Union of India Vrs. Girija Sharma, AIR 1994 SC 215; B.C. Chaturvedi Vrs. Union of India, AIR 1996 SC 484 = (1995) 6 SCC 749; Central Industrial Security Force Vrs. Abrar Ali, (2017) 4 SCC 507, contended that this Court may not interfere with the punishment already inflicted on the opposite party No.1 by the Disciplinary Authority which was upheld by the learned Central Administrative Tribunal vide Order dated 24.05.2018. The principles of aforesaid reported Judgments lead to suggest that judicial review under Article 226/227 of the Constitution of India permits intervention by the High Court when the punishment/sentence is outrageously in defiance of logic and such punishment could be reduced by application of doctrine of proportionality. Referring to W.P.(C) No.14259 of 2018 Page 8 of 43 Deb Singh Vrs. Punjab Tourism Corporation Ltd., (2003) 8 SCC 9 = AIR 2003 SC 3712, it is submitted by the opposite party No.1 that if punishment imposed by the Disciplinary Authority or Appellate Authority shocks conscience of the Court, this Court in exercise of power under Article 226/227 of the Constitution of India can go into proportionality of punishment vis-à-vis proof of misconduct. To the same effect, the Supreme Court has also spelt out in Union of India Vrs. Subrata Nath, (2022) 18 SCR 605. Be that as it may, the opposite party No.1, being peace-loving, has given quietus to the punishment handed out by the Disciplinary Authority. 4.1. Opposing averments made in the writ petition, the opposite party No.1 has, therefore, submitted that the subsequent action of the petitioners, after acceptance of the punishment/sentence of penalty inflicted by the opposite party No.1, to enhance the punishment is not only whimsical and capricious, but also illegal as the Order passed by the General Manager-Revising Authority is hit by double jeopardy, when the earlier proceeding for suo motu revision initiated by the Additional Divisional Railway Manager, Khurda Road got dropped in view of the fact that such proceeding was barred by time limit prescribed under Rule 25(5) of the RSDA Rules. ARGUMENTS: W.P.(C) No.14259 of 2018 Page 9 of 43 5. Since pleadings are completed, on the consent of learned counsel for both sides, this matter is disposed of at the stage of admission. This Court heard Sri Prasanna Kumar Parhi, learned Deputy Solicitor General of India for High Court of Orissa along with Sri Satya Sindhu Kashyap, learned Central Government Counsel for the petitioners and Smt. Rakhi Sikdar, learned Advocate appearing for the opposite party No.1. 6. Sri Prasanna Kumar Parhi, learned Deputy Solicitor General of India, urged that the Central Administrative Tribunal misread Rule 25(1) read with Rule 25(5) of the RSDA Rules and followed the decisions rendered by the Central Administrative Tribunal in others’ cases under different context and different statutory provisions. Referring to clause (v) of sub-rule (1) of Rule 25, he went on to argue that since restriction to initiate proceeding for revision has been provided for under Rule 25(5) qua the authorities described under said clause (v), in the present case, the General Manager, who is an authority falling within the ambit of clause (iii) of sub-rule (1) of Rule 25, having initiated proceeding for suo motu revision, period of limitation as envisaged in said sub- rule (5) shall not be attracted in view of second proviso appended to sub-rule (5) of Rule 25. Therefore, the action for revision under said Rule by the General W.P.(C) No.14259 of 2018 Page 10 of 43 Manager is perfect and should not have been interfered with by the Central Administrative Tribunal. 6.1. At this juncture, Smt. Rakhi Sikdar, learned Advocate appearing for the opposite party No.1 brought to the notice of this Court the Additional Affidavit dated 21.06.2022. Placing reliance on Annexure-A enclosed to such Additional Affidavit, she submitted that prior to initiation of suo motu proceeding by issue of Notice bearing No. ECoR/ Pers/ NG/ D&A/ Revision/ KCB/ 428/ 242, dated 28.11.2014 by the General Manager, the Additional Divisional Railway Manager, Khurda Road issued Notice bearing No. SDCM/Con/Vig/Major-03/12, dated 26.03.2014 contemplating suo motu revision of self-same punishment as set forth by the Disciplinary Authority. 6.2. Since the Additional Divisional Railway Manager, who is lower in rank to the General Manager, falls within the meaning of authorities enumerated in clause (v) of sub- rule (1) of Rule 25, the period specified under sub-rule (5) of Rule 25 got attracted. It is submitted that pursuant to Notice bearing No. SDCM/Con/Vig/Major- 03/12, dated 26.03.2014 issued by the Additional Divisional Railway Manager, he “never passed any order”. 6.3. Smt. Rakhi Sikdar, learned Advocate appearing for the opposite party No.1 referred to Master Circular No.67 W.P.(C) No.14259 of 2018 Page 11 of 43 [No. E(D&A) 2019 RG 6-12], dated 23.12.2019 issued by the Government of India, Ministry of Railways, Railway Board, wherein the following narration finds mentioned: “Revision is one-time exercise and there is no provision for a second revision of the case. However, if the revisionary order imposes a penalty where no penalty was earlier imposed or if it enhances the penalty, the rules provide for submission of an appeal against such imposition/enhancement of the penalty, to the next higher authority. There is no provision for further revision of that appellate order.” 6.4. In the case at hand since the Additional Divisional Railway Manager had invoked power of suo motu revision by issue of Notice on 26.03.2014, there was no scope for second revision by the General Manager by issue of Notice dated 28.11.2014. Realising that by the time Notice dated 26.03.2014 came to be issued by the Additional Divisional Railway Manager, it was hit by time stipulation specified in sub-rule (5) of Rule 25, the General Manager adopted subterfuge device by issuing Notice dated 28.11.2014 contemplating initiation of suo motu revision for the self-same cause of action for the second time. It has vehemently been urged that such a course of action would not clothe the Revising Authority with the jurisdiction. 6.5. Under the above premise, it is contended by the learned counsel for the opposite party No.1 that looking at any W.P.(C) No.14259 of 2018 Page 12 of 43 angle, the decision of the Central Administration Tribunal, Cuttack Bench, Cuttack does not warrant indulgence of this Court. 6.6. Against such a contention with reference to the documents enclosed to the Additional Affidavit dated 21.06.2022 of the opposite party No.1, the petitioners through Divisional Commercial Manager, E.Co. Railway, Khurda Road have filed reply Affidavit dated 20.12.2022 inter alia stating therein: “3. That the Additional Divisional Railway Manager on 26.03.2014 issued notice to the opposite party No.1 proposing to charge him by major penalty but the said proceeding was dropped as the Additional Divisional Railway Manager, Khurda Road is not competent to initiate a revision proceeding after six months from the date of the order by the Divisional Authority (sic. Disciplinary Authority) i.e. passed on 08.05.2013. The opposite party No.1 has also not participated in the said proceeding, therefore it can be said that the said proceeding has never been taken up by the petitioner nor participated by the opposite party No.1.” 6.7. In such view of the matter Sri Prasanna Kumar Parhi, learned Deputy Solicitor General of India has stated that the matter deserves remand to the Central Administrative Tribunal, Cuttack Bench, Cuttack for fresh adjudication on merits. DISCUSSIONS AND ANALYSIS: W.P.(C) No.14259 of 2018 Page 13 of 43 7. There is no dispute that the opposite party No.1 has accepted the punishment/sentence imposed by the Disciplinary Authority vide Order dated 08.05.2013. With regard to grievance of the opposite party No.1, it has been discussed in the Order dated 24.05.2018 (Annexure-1) of the Central Administrative Tribunal in the following manner: “*** The grievance of the applicant is that though the aforesaid Order dated 08.05.2013 was already implemented, the Additional Divisional Railway Manager, Khurda Road (Revising Authority) issued a letter dated 26.03.2014, beyond the period of limitation as provided under Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968, and decided to initiate suo motu revision of the punishment imposed by the Disciplinary Authority on the ground that the punishment imposed by the Disciplinary Authority is not proportionate to the gravity of misconduct committed and further provisionally proposed to enhance the punishment imposed by the Disciplinary Authority and accordingly, the applicant was given opportunity to submit his representation, if any. ***” 7.1. It may be fruitful to extract herein below the text of Notice dated 26.03.2014 showing initiation of suo motu revision by the Additional Divisional Railway Manager: “East Coast Railway Khurda Road Division Office of the Divisional Railway Manager, Khurda Road No. SDCM/Con/Vig/Major-03/12 Dated 26.03.2014 To W.P.(C) No.14259 of 2018 Page 14 of 43 Sri K.C. Biswas, TTI/PURI [Through Sr. DCM/KUR] Sub.: Suo motu revision of the punishment imposed by the Sr. DCM/KUR as Disciplinary Authority Ref.: Major Penalty Charge Sheet vide No. Even dated 16.04.2012 *** In terms of Rule 25 of RS (D&A) Rules, 1968, the undersigned as the Revising Authority, after going through the case in detail, has decided to conduct suo motu revision of the punishment imposed by the D.A. vide his order did. 08.05.2013. The case initiated against you vide Memorandum dtd. 16.04.2012 was duly inquired into by the inquiry officer. On receipt of inquiry report dtd. 15.10.2012 and your final representation dtd. 16.11.2012 thereto, Sr. DCM as D.A. imposed the punishment reducing your pay by two stages i.e. Rs.14,640/- to Rs. 13,790/- for two years with cumulative effect vide orders dated 08.05.2013. While examining the case in detail, it is observed that the punishment imposed by the D.A. is not in proportion to the gravity in consideration of gravity of the case, it is provisionally proposed to enhance the punishment imposed by the D.A. committed. As of misconduct such, However, in honour of natural justice, you are hereby given an opportunity of submitting your representation within 15 days as to why you will not be awarded with enhanced punishment, failing which the case will be decided on merits without further reference. W.P.(C) No.14259 of 2018 Page 15 of 43 Please acknowledge receipt. Sd/- [M.K. Poddar] Addl. Divisional Railway Manager Khurda Road Revising Authority” 7.2. It may be noteworthy to refer to sub-rules (1) and (5) of Rule 25 of the RSDA Rules, which stand as follows: “Part VI Revision and Review 25. Revision.— (1) Notwithstanding anything contained in these rules,— (i) the President, or (ii) the Railway Board, or (iii) a Railway the General Manager Administration or an authority of that status in the case of a Railway servant serving under his control, or of (iv) the appellate authority not below the rank of a Divisional Railway Manager in cases where no appeal has been preferred, or (v) any other authority not below the rank of Deputy Head of Department in the case of a Railway servant serving under his control— may at any time, either on his or its own motion or otherwise, call for the records of any inquiry and W.P.(C) No.14259 of 2018 Page 16 of 43 revise any order made under these rules or under the rules repealed by Rule 29, after consultation with the Commission, where such consultation is necessary, and may— (a) (b) (c) confirm, modify or set aside the order; or confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such orders as it may deem fit: Provided that: (a) no order imposing or enhancing any penalty shall be made by any revising authority unless the Railway servant concerned has been given reasonable opportunity of making a a representation against the penalty proposed; (b) the scope of subject to the provisions of Rule 14, where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 6 or the penalty specified in clause (iv) of Rule 6 which falls within the provisions contained in sub-rule (2) of Rule 11 or to enhance the penalty imposed by the order under revision to any of the penalties specified in this sub-clause, no such penalty shall be imposed except after following the procedure for inquiry in the manner laid down in Rule 9, W.P.(C) No.14259 of 2018 Page 17 of 43 unless such inquiry has already been held, and also except after consultation with the Commission, where such consultation is necessary. *** (5) No action under this rule shall be initiated by— (a) an appellate authority other than the President; or (b) the revising authorities mentioned in item (v) of sub-rule (1), after more than six months from the date of the order to be revised in cases where it is proposed to impose or enhance a penalty or modify the order to the detriment of the Railway servant; or more than one year after the date of the order to be revised in cases where it is proposed to reduce or cancel the penalty imposed or modify the order in favour of the Railway servant: Provided that when revision is undertaken by the Railway Board or the General Manager of a Zonal Railway or an authority of the status of a General Manager or Administration when they are higher than the appellate Authority, and by the President even when he is the appellate authority, this can be done without restriction of any time limit. other Railway Unit in any Explanation: For the purposes of this sub-rule the time limits for revision of cases shall be reckoned from the date of issue of the orders proposed to be revised. In cases W.P.(C) No.14259 of 2018 Page 18 of 43 where original order has been upheld by the appellate authority, the time limit shall be reckoned from the date of issue of the appellate orders.” 7.3. Bare reading of aforesaid provisions makes it clear that the Additional Divisional Railway Manager, Khurda Road having initiated proceeding for suo motu revision by issue of Notice dated 26.03.2014 in connection with Order dated 08.05.2013 of the Disciplinary Authority, the same is time-barred. 7.4. On 16.12.2022, this Court in course of hearing of present writ petition, passed the following Order: “3. Mr. S.S. Kashyap, learned Central Government Counsel appearing for the petitioners-Union of India (Railway) contended that the proceeding initiated by the General Manager, East Coast Railway against opposite party No.1 does not require any restriction of time limit as per the provisions contained in Railway Servants (Discipline & Appeal) Rules, 1968. 4. Mrs. R. Sikdar, initiated by learned counsel appearing for opposite party No.1 contended that the suo motu revision proceeding the General Manager, East Coast Railway cannot be sustained in the eye of law, in view of the fact that on 26.03.2014, the Additional Divisional Railway Manager, Khurda Road issued suo motu revision against opposite party No.1 on the punishment imposed by the Sr. DCM/KUR as Disciplinary authority and, as such, the said suo motu revision has not been disposed till date and is still pending. Therefore, the second revision at the instance of W.P.(C) No.14259 of 2018 Page 19 of 43 General Manager, East Coast Railway cannot be sustained in the eye of law. 5. Mr. S.S. Kashyap, learned Central Government Counsel appearing for the petitioners-Union of India (Railway) contended that the suo motu revision having been started by the Additional Divisional Railway Manager, Khurda Road beyond six months period, it may hit by the provisions contained in Rule 25 of Railway Servants (Discipline & Appeal) Rules, 1968, because after more than six months no revision lies, which is restricted by sub-rule (5) of Rule 25 of the said Rules. Therefore, in order to overcome the question of limitation, the suo motu the Additional revision proceeding Divisional Railway Manager, Khurda Road has not been given effect to. He has no instructions as to whether or not the suo motu revision initiated by the Additional Divisional Railway Manager, Khurda Road is pending, and he wants to obtain instruction to that effect and will file the same by way of an affidavit. initiated by 6. Put up this matter after two weeks.” 7.5. Pursuant to above Order, an Affidavit dated 20.12.2022 has come to be filed sworn to by the Divisional Commercial Manager, E.Co. Railway, Khurda Road wherein vide Paragraph 3 (already reproduced herein above) it has been candidly affirmed that since the initiation of suo motu revision was beyond the period stipulated under Rule 25(5), such proceeding was dropped. W.P.(C) No.14259 of 2018 Page 20 of 43 7.6. Sri Prasanna Kumar Parhi, learned Deputy Solicitor General of India has, therefore, submitted that as the General Manager, being an authority described at clause (iii) of sub-rule (1) of Rule 25, was competent to initiate suo motu revision proceeding against the Order dated 08.05.2013 of the Disciplinary Authority for the second time as limitation does not attract in view of proviso to sub-rule (5) of Rule 25. Such submission of Sri Prasanna Kumar Parhi, has been forcefully objected to by Smt. Rakhi Sikdar by arguing that the contention of the counsel for the petitioners cannot hold good in view of Master Circular No.67 [No. E (D&A) 2019 RG 6-12], dated 23.12.2019, which in clear terms restricts that revision is one-time exercise. 7.7. This Court wishes to remark that the instructions issued by the Department are binding on the authorities for the reason that issuing a circular/instruction is intimately conversant with the policy of legislation for the purposes of the provisions of the statute. Apart from the fact that circular/instruction is binding on the Departmental Authority, it is in the nature of contemporanea expositio furnishing legitimate aid to the construction of the relevant provisions. [Vide, State of Odisha Vrs. Dinabandhu Sahu, AIR 1976 SC 1561; K.P. Varghese Vrs. Income Tax Officer, AIR 1981 SC 1922 = (1981) 4 SCC 173; UCO Bank Vrs. Commissioner of Income Tax, AIR W.P.(C) No.14259 of 2018 Page 21 of 43 1999 SC 2082 = (1999) 4 SCC 599; Collector of Central Excise Vrs. Dhiren Chemical Industries, AIR 2002 SC 453 = (2002) 2 SCC 127]. 7.8. In Assistant Commercial Taxes Officer Vrs. Azad Bakery, (1977) CTR 27 (Raj) = 1976 WLN UC 539 it has been clearly spelt out in the following terms the concept of value of the circulars issued by the highest authority of the department: “Learned Counsel for the Revenue, however, contends that the Commissioner’s circular does not have the force of law There is no dispute with the proposition that the circular has no statutory force but it certainly provides extraneous aid to construction being contemporanea exposition. When the Commissioner of Commercial Taxes who is a principal executive authority charged with the duty of administering the Act and has the power under Section 12A of the Act to decide a disputed question as to whether or not any tax is payable in respect of a particular sale or purchase, puts a certain construction which is being acted upon for nearly a decade, there is no reason for us to depart from the construction placed by him. The Revenue must be consistent in its approach, if process of baking then biscuits are the undoubtedly cooked food.” test is 7.9. In State of Madhya Pradesh Vrs. G.S. Dal & Flour Mills, (1991) 80 STC 138 (SC) = 1992 Supp (1) SCC 150 = AIR 1991 SC 772, Supreme Court of India has laid down the applicability of the doctrine “contemporanea expositio” in the following terms: W.P.(C) No.14259 of 2018 Page 22 of 43 It is true that the principle of contemporanea “*** expositio is invoked where a statute is ambiguous but is shown to have been clearly and consistently understood and explained by the administrators of the law in a particular manner. *** But, this apart, the principle will not be applicable here for two reasons. In the first place, the instructions of 1983 do not anywhere “expound” the terms of the notification. They do not give any indication that the State had applied its mind to the precise terms of the notification or their interpretation. They do not explain or clarify that, though the notification is silent, it has been intended that the limitations of the previous schemes should be read into it. Secondly, the cases referred to will show that the doctrine applies in cases where the plea is that, though the language of the statute may appear to be wide enough to seem applicable against the subject in particular situations, the State itself— which was the progenitor of the statute— had not understood it in that way. But, to apply the doctrine to widen the ambit of the statutory language would, however, virtually mean that the State can determine the interpretation of a statute by its ipse dixit. That, certainly, is not, and cannot be, the scope of the doctrine. The doctrine can be applied to limit the State to its own narrower interpretation in favour of the subject but not to claim its interpretation in its own favour as conclusive.” 7.10. In construing a statute, Courts will give much weight to the interpretation put upon it at the time of its enactment by those whose duty it has been to construe, execute and apply. [See, State of Orissa Vrs. Nabin Kumar Beura, 2010 (II) ILR–CUT 681]. W.P.(C) No.14259 of 2018 Page 23 of 43 7.11. This Court, thus, on perusal of record is of the opinion that the exercise of power for revision suo motu subsequently by the General Manager vide Notice dated 28.11.2014 after dropping the first suo motu revision proceeding initiated by the Additional Divisional Railway Manager vide Notice dated 26.03.2014 is incompetent. On the date of exercise of power of suo motu revision the Additional Divisional Railway Manager was within his knowledge the RSDA Rules. After taking decision to drop the suo motu proceeding initiated by issue of Notice dated 26.03.2014, second revision is impermissible. Smt. Rakhi Sikdar, learned counsel for the opposite party No.1 has aptly referred to Letter No. E (D&A) 71 RG 6-18, dated 12.12.1972 issued by the Government of India, Ministry of Railways (Railway Board), which is to the following effect: “1. Attention is invited to Board’s Letter No.E55RG6-14, dated 29.02.1956 (copy enclosed) on the above subject. It has been stated therein that even in a case where, for example, an employee has already been punished with the stoppage of privilege passes and has already undergone the punishment, the competent authority can still impose on him a higher penalty, which may be a fresh one and not unnecessarily a prolongation of the original penalty. 2. The Board desire that in cases where an employee has already undergone the original penalty in whole or in part, this fact should be taken into account by the reviewing/appellate authority when deciding W.P.(C) No.14259 of 2018 Page 24 of 43 upon the higher penalty so that unintended hardship is not caused to the employee. Alternatively, the feasibility of cancelling the original penalty while imposing the higher penalty may be considered.” 7.12. In the Affidavit dated 21.06.2022, the opposite party No.1 has categorically stated thus: “*** A mere perusal of this above quoted circular envisages the fact that unintentional hardship is not to be caused to the employee whereas the Charged Officer (opposite party No.1) has already served 22 months of his original punishment and 2 months away from its completion (24 months). ***” 7.13. Against this Sri Prasanna Kumar Parhi, learned Deputy Solicitor General of India drew attention of this Court to paragraph 4 of the Affidavit dated 20.12.2022 filed by the Divisional Commercial Manager wherein reference has been made to second proviso to Rule 6. For better appreciation, Rule 6 is reproduced herein below: “PART III Penalties and Disciplinary Authorities 6. Penalties.— The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Railway servant, namely: Minor Penalties— (i) Censure; W.P.(C) No.14259 of 2018 Page 25 of 43 (ii) Withholding of his promotion for a specified period; (iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government or Railway Administration by negligence or breach of orders; (iii-a) Withholding of the Privilege Passes or Privilege Ticket Orders or both; (iii-b) Reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension; (iv) Withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period this will or will not have future increments of his pay; the effect of postponing the Major Penalties— (v) Save as provided for in clause (iii-b) reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (vi) Reduction to a lower time scale of pay, grade, further post, or service, with or without directions regarding conditions of restoration to the grade or post or service from which the Railway servant was reduced and his seniority and pay on such restoration to that grade, post or service; W.P.(C) No.14259 of 2018 Page 26 of 43 (vii) Compulsory retirement; (viii) Removal from service which shall not be a disqualification for future employment under the Government or Railway Administration; (ix) Dismissal from service which shall ordinarily be a disqualification for future employment under Railway Government Administration: the or Provided that in cases of persons found guilty of any act or omission which resulted or would have, ordinarily, resulted in collision of Railway trains, one of the penalties specified in clauses (viii) and (ix) shall, ordinarily, be imposed and in cases of passing Railway signals at danger, one of the penalties specified in clauses (v) to (ix) shall, ordinarily be imposed and where such penalty is not imposed, the reasons therefor shall be recorded in writing: Provided further that in case of persons found guilty of possessing assets disproportionate to known sources of income or found guilty of having accepted or having obtained from any person any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act, one of the penalties specified in clauses (viii) or (ix) shall ordinarily be imposed and where such penalty is not imposed, the reasons therefor shall be recorded in writing. Explanation.— The following shall not amount to a penalty within the meaning of this rule, namely: W.P.(C) No.14259 of 2018 Page 27 of 43 (i) withholding of increments of pay of a Railway servant for failure to pass any departmental examination in accordance with the rules or orders governing the Service to which he belongs or post which he holds or the terms of his appointment; (ii) stoppage of a Railway servant at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar; (iii) non-promotion of a Railway servant, whether in a substantive or officiating capacity, after consideration of his case, to a Service, grade or post for promotion to which he is eligible; (iv) (v) (vi) reversion of a Railway servant officiating in higher Service, grade or post to a lower Service, grade or post, on the ground that he is considered to be unsuitable for such higher Service, grade or post, or on any administrative ground unconnected with his conduct; reversion of a Railway servant, appointed on probation to any other Service, grade or post, to his permanent Service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment the rules and orders governing such or probation; replacement of the services of a Railway servant, whose services had been borrowed from any other Ministry or Department of the Central Government or a State Government or an authority under the control of the Central the Government or State Government, at W.P.(C) No.14259 of 2018 Page 28 of 43 disposal of the Government or the authority from which the services of such Railway servant had been borrowed; (vii) compulsory retirement of a Railway servant in accordance with the provisions relating to his superannuation or retirement; (viii) termination of the services— (a) (b) (c) of a Railway servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and such probation, or governing orders temporary Railway servant of a in accordance with rule 301 contained in Volume Indian Railway the Establishment Code (Fifth Edition -1985), or of I of a Railway servant employed under an agreement, in accordance with the terms of such agreement; (ix) discharge of Railway servants— (a) (b) for inefficiency due to failure to conform to the requisite standard of physical fitness; on reduction of establishment.” 7.14. Amplifying his argument, Sri Parhi submitted that since this case revolves round “gratification”, the Disciplinary Authority could not have ignored punishment envisaged W.P.(C) No.14259 of 2018 Page 29 of 43 in second proviso to Rule 6 of the RSDA Rules and award punishment contrary to such provision. Emphasising that when the opposite party No.1 was found guilty of having accepted gratification, there was no scope for the Disciplinary Authority, but to impose mandatory penalty as envisaged in clause (viii) or clause (ix) of Rule 6 in view of use of the express expression “shall ordinarily be imposed” in second proviso ibid. The General Manager in exercise of power under Rule 25(5) has acted in conformity with the statutory requirement. Hence, the Order dated 24.05.2018 of the Central Administrative Tribunal cannot be upheld. 7.15. Before delving into consider the contention of the learned Deputy Solicitor General of India that Rule 6 mandatorily requires punishment of “dismissal from service” or “removal from service”, in the event a person- employee is found to have accepted or having obtained any gratification, it is significant to understand the meaning of “ordinarily” appearing in the expression “one of the penalties specified in clauses (viii) or (ix) shall ordinarily be imposed” employed in second proviso to Rule 6 of RSDA Rules. 7.16. This Court takes a look at construction of words used in the statute. 7.17. No words should be considered redundant or surplusage in interpreting provisions of a statute or a rule. [Vide, W.P.(C) No.14259 of 2018 Page 30 of 43 Dinesh Chandra Sangma Vrs. State of Assam, AIR 1978 SC 17; P.N. Gadgil Vrs. Commissioner of Sales Tax, (2010) 36 VST 146 (Bom)]. Addition to, or modification of, words used in statutory provisions is generally not permissible; but Courts may depart from this rule to avoid a patent absurdity. [Refer, Narayanaswami Vrs. Panneerselvam, (1973) 1 SCR 172; Polestar Electronic Pvt. Ltd. Vrs. Additional Commissioner of Sales Tax, (1978) 41 STC 409 (SC)]. 7.18. It is not immutable rule of construction that the Court is not justified in any circumstances to add to the words in construing a statute. If the Court is satisfied and feels certain that the language employed by the Legislature does not represent its avowed intention, if interpreted literally and grammatically, it can legitimately add to the language of the statute in interpreting it. It is a well- known rule of construction that the Court must construe a section as it stands and must not add any words to it in absence of a clear necessity. Unless, therefore, the section is read by adding the words, if any, the result would be that not only the constitutional validity of the provision may possibly be in jeopardy but would defeat the avowed intention of the Legislature. [See, Shyam Kishori Devi Vrs. Patna Municipal Corporation, AIR 1966 SC 1678; Kirtikumar Dhanjibhai Mohaya Vrs. Sales Tax Officer, (1985) 58 STC 125 (Guj)]. W.P.(C) No.14259 of 2018 Page 31 of 43 7.19. Cases where it has properly been held that a word can be struck out of a deed or statute and another substituted can be grouped under three heads: where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with the plain intention shown by the rest of the deed or statute. Reference can be had to Federal Steam Navigation Co. Ltd. Vrs. Department of Trade & Industry, (1974) 2 AllER 97. 7.20. It is a well-known rule of construction that a court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. It has been quoted in Shyam Kishori Devi Vrs. Patna Municipal Corpn, AIR 1966 SC 1678 that in the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity. 7.21. In J.P. Bansal Vrs. State of Rajasthan, (2003) 2 SCR 933 it has been laid down as follows: “Where, therefore, the ‘language’ is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule W.P.(C) No.14259 of 2018 Page 32 of 43 of exception, including that of necessity, which is not the case here. (See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd Vrs. Custodian of Vested Forests, AIR 1990 SC 1747 at p. 1752; Shyam Kishori Devi Vrs. Patna Municipal Corporation, AIR 1966 SC 1678 at p. 1682; A.R. Antulay Vrs. Ramdas Sriniwas Nayak, (1984) 2 SCC 500, at pp. 518, 519. Indeed, the Court cannot reframe the legislation as it has no power to legislate. [See State of Kerara Vrs. Mathai Verghese, (1986) 4 SCC 746, at p. 749 and Union of India Vrs. Deoki Nandan Aggarwal, AIR 1992 SC 96 at p.101.” 7.22. It is stated in Dental Council of India Vrs. Hari Prakash, (2001) Supp.2 SCR 310 = (2001) 8 SCC 61 it is stated as: “7. The intention of the legislature is primarily to be gathered from the language used in the statute, thus paying attention to what has been said as B also to what has not been said. When the words used are not ambiguous, literal meaning has to be applied, which is the golden rule of interpretation.” 7.23. In P.K. Unni Vrs. Nirmala Industries, (1990) 2 SCC 378 it has been laid down as follows: “15. The court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said : See Nalinakhya Bysack Vrs. Shyam Sunder Haldar, 1953 SCR 533, 545 = AIR 1953 SC 148. Assuming there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an W.P.(C) No.14259 of 2018 Page 33 of 43 intelligible result. No case can be found to authorise any court to alter a word so as to produce a casus omissus: Per Lord Halsbury, Mersey Docks and Harbour Board Vrs. Henderson Brothers, (1888) 13 AC 595, 602 = 4 TLR 703. “We cannot aid the legislature’s defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies there” : Crawford Vrs. Spooner, (1846) 6 Moore PC 1, 8, 9 = 4 MIA 179.” which are left 7.24. It may be relevant to quote the following from State of Jharkhand Vrs. Govind Singh, (2005) 10 SCC 437: “20. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See CST Vrs. Popular Trading Co., (2000) 5 SCC 511 = AIR 2000 SC 1578. The legislative casus omissus cannot be supplied by judicial interpretative process. 21. Two principles of construction— one relating to casus omissus and the other in regard to reading the statute as a whole— appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the W.P.(C) No.14259 of 2018 Page 34 of 43 construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. “An intention to produce an unreasonable result”, said Danckwerts, L.J. in Artemiou Vrs. Procopiou, (1966) 1 QB 878 = (1965) 3 All ER 539 = (1965) 3 WLR 1011 (CA) = (All ER p. 544 I), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result”, we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. Per Lord Reid in Luke Vrs. IRC, 1963 AC 557 = (1963) 1 All ER 655 = (1963) 2 WLR 559 (HL) where at AC p. 577 (All ER p. 664 I) he also observed: “This is not a new problem, though our standard of drafting is such that it rarely emerges.” 22. It is then true that, “when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt”. “But”, on the other hand, “it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom”. (See Fenton Vrs. Hampton, (1858) 11 Moo PC 347 = 6 WR 341.) A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does W.P.(C) No.14259 of 2018 Page 35 of 43 really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit praetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute— casus omissus et oblivioni datus dispositioni communis juris relinquitur; “a casus omissus”, observed Buller, J. in Jones Vrs. Smart, ITR 44 = 99 ER 963 = TR at p. 52 = ER at p. 967, “can in no case be supplied by a court of law, for that would be to make laws”.” 7.25. As is observed in Gurudevdatta VKSS Maryadit Vrs. State of Maharashtra, (2001) 4 SCC 534, it is cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural and ordinary sense and construed according to their grammatical meaning. It is observed in Bhaiji Vrs. Sub-Divisional Officer, (2003) 1 SCC 692 that the Legislature may be safely presumed to have intended what the words plainly say. 7.26. The primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. [See, Unique Butyle Tube Industries Pvt. Ltd. Vrs. Uttar Pradesh Financial Corporation, (2003) 113 Comp. Cas. 374 (SC) = (2003) 2 SCC 455]. There is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. Courts expound the law, they do not legislate. Reference W.P.(C) No.14259 of 2018 Page 36 of 43 be had to State of Kerala Vrs. Mathai Verghese, AIR 1987 SC 33; Union of India Vrs. Deoki Nandan Aggarwal, AIR 1992 SC 96. A judge is not entitled to add something more than what is there in the statute by way of a supposed intention of the Legislature. [Vide, Union of India Vrs. Elphinstone Spg & Wvg Co. Ltd., (2001) 4 SCC 139]. The legislative casus omissus cannot be supplied by a judicial interpretative process. [See, Maruti Wire Industries Pvt. Ltd. Vrs. STO, (2001) 122 STC 410 (SC) = (2001) 3 SCC 735; Raj Kumar Engineering Pvt. Ltd. Vrs. State of Andhra Pradesh, (2015) 77 VST 340 (T&AP)]. 7.27. Taking into account the principles of construction of meaning of word in the provision of a statute, the meaning of the word “ordinarily” can be couched as interpreted by the Hon’ble Supreme Court. In Kailash Chandra Vrs. Union of India. (1962) 1 SCR 374 = AIR 1961 SC 1346; Eicher Tractors Ltd. Vrs. Commissioner of