Clarification requested

Clarification requested

Joined: October 23rd, 2011, 12:26 pm

April 14th, 2012, 2:29 pm #1

One employee while working as a Dy CTI (Pay scale Rs. 13450/-) was imposed with the penalty of 'Compulsory retirement' from Railway service. At the time of imposition of the penalty, his grade pay was Rs. 4200/-. He filed Appeal and Revision Petitions before the competent authorities, which were rejected. Thereafter, he moved the judicial fora, which directed the Railway Admn to review the quantum of the penalty, as according to the judicial fora, the penalty imposed was excessive and harsh. On this basis, the Disciplinary Authority denovo examined the quantum of penalty and modified the penalty as 'Reduction to the post of Ticket Examiner (pay fixed at Rs. 5830/-) in Grade Pay Rs. 1800/- for a period of three years, with cumulative effect and loss of seniority'.

The modified penalty contains the following limbs:

a) Reduction to a lower post post (viz. from Dy CTI post to Ticket Examiner post).
b) Basic pay reduced from Rs. 13450/- to Rs. 5830/-
c) Reduction from GP of Rs. 4200/- to Rs. 1800/-
d) Penalty period is Three years.
e) Penalty will have cumulative effect.
f) The employee will lose his seniority.

My views:

a) When the penalty period of three years expires, the above employee will be restored to his original position of Dy CTI.
b) When restored, his Basic pay will be only Rs. 13450/- as the penalty is cumulative.
c) He will take his position in the seniority list of Dy CTI from the date the penalty period (3 years) expired as in the penalty advice it has been clearly mentioned that he would lose seniority.

Personnel Department views:

a) When the penalty period of three years expired, the above employee will NOT be restored to his original position of Dy CTI. In other words, after the expiry of the penalty period, he will be placed as Sr Ticket Examiner only.

Request to the esteemed participants:

I request the participants to express their views as to whether my views are correct or the views of the Personnel Department are correct.

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Joined: January 1st, 1970, 12:00 am

April 14th, 2012, 3:05 pm #2

Please go through following provisions of IREM Vol I and RBE No. 217/2002. It would help you in arriving at a conclusion.


322. EFFECT OF REDUCTION IN PAY OR GRADE: -

(i) Reduction to a lower stage in the time-scale. Reduction in pay, as distinct from reductions from a higher grade or class to a lower grade or class, does not affect a railway servant's position on the seniority list. The authority ordering reduction should invariably state the period for which it shall be effective and whether, on restoration, the period of reduction shall operate to postpone his future increments and, if so, to what extent.

(ii) Reduction to a lower service, grade or post, or to a lower time-scale.

(a) Where the order imposing penalty for reduction does not specify the period of reduction and there is coupled with it an order declaring the railway servant permanently unfit for promotion, the question of repromotion or determination of seniority will obviously not arise.

(b) Where the period of reduction is not specified in the order imposing the penalty of reduction, the railway servant should be deemed to be reduced for an indefinite period, i.e. till such date as, on the basis of his performance subsequent to the order of reduction, he may be considered fit for promotion. On repromotion, the seniority of such a railway servant should be determined by the date of repromotion. In all such cases, the person loses his original seniority in the higher service, grade or post in entirety. On repromotion, the seniority of such a railway servant should be determined by the date of repromotion without regard to the service rendered by him in such service, grade or post prior to his reduction.

(c) In cases where the penalty of reduction to a lower service, grade or post or lower time-scale is for a specified period, the employee concerned should be repromoted automatically to the post from which he was reduced. The seniority in the original service, grade or post or time scale should be fixed in such cases in accordance with the provisions contained in Rule 6 (vi) of the Railway Servants (Discipline and Appeal) Rules, 1968 as clarified vide Railway Board's letters No, E(D&A) 73 RG6-5 dated 22.2.1974 and No. E(D&A) 2001 RG6-58 dated 28.11.2002."

(Authority: Railway Board's letter No.E (D&A) 2007 RG6-24 dated 10.08.2007)

(d) When a railway servant is reduced from a higher grade, or class to a lower grade, whether for a specified period or indefinitely, his seniority in the lower grade shall be fixed with reference to his position which he would have been entitled to but for his promotion to the higher grade or class from which he is reduced.

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GOVERNMENT OF INDIA (BHARAT SARKAR)
MINISTRY OF RAILWAYS/RAIL MANTRALAYA
(RAILWAY BOARD)
RBE No. 217/2002,
No. E(D&A)2001 RG 6-58 dated 28/11/2002

Subject :- Imposition of penalty of reduction to a lower time scale of pay, grade, post or service for a specified period - Effect of penalty in the the higher grade or post etc. on restoration of the railway servant to that higher grade or post on expiry of the penalty.

It has been brought to the notice of the Board by the NFIR that while imposing the penalty of 'reduction to a lower grade, post etc.,' for a specified period, the authorities use the terms 'cumulative or recurring effect', to convey the effect of the penalty in the higher grade or post, on restoration of the railway servant to that higher grade or post, on expiry of the Penalty.

2. It has been alleged that in such cases the railway administration(s) also denies seniority in the higher grade or post in addition to the effect of the penalty on the future increments of the railway servant though the authority imposing the penalty has not given any specific direction that seniority shall also be, affected on restoration of the railway servant to that higher grade or post after expiry of the penalty. Attention in this connection has been drawn to the instructions contained in Board's letter No. E(D&A)73 RG 6-5 dated 22.2.1974. These instructions which were issued in pursuance to discussions in the forum of JCM/DC lay down that in cases where the penalty of reduction to a Lower grade or post etc. is imposed for a specified period and the order does not specify whether it has effect on seniority and increments in the higher grade or post on restoration of the railway servant to that higher grade or post, it should be assumed that the order will not have the effect on seniority or increments.

3. As the Railways are aware, in terms of Rule 6(vi) of RS (D&A) Rules, while imposing penalty of reduction to a lower grade or post etc., on a railway servant for a specified period, the authority imposing the penalty has also to pass directions regarding the effect of the penalty on the seniority and pay in the higher grade or post, on restoration of the railway, servant to that higher grade or post after expiry of the penalty. The directions on seniority and pay are two separate ones and have to be, passed independent of each other. For example, the authority imposing the, penalty may order that the penalty will have the effect of postponing the future increments of pay, of the railway servant in the higher grade or post on his restoration to that higher grade or post but will not affect his seniority in the higher grade or post and vice versa. Likewise, the authority imposing the penalty may order that the penalty will have effect on both the seniority and pay of the railway servant or that the penalty will have no effect either on seniority or pay of the railway servant in the higher grade or post on his restoration to the higher grade or post. However, in each case these two directions should be distinct and unambiguous. Where the authority imposing the penalty has not passed any specific directions regarding, seniority or pay or both, of the railway servant in the higher grade or post, it will be held that the penalty will have no effect on seniority or increments or both, as the case may be, in the higher grade or post on restoration of the railway servant to that higher grade or post as laid down in Board's letter of 22.2.1974, referred to above. In view of the above, the railway administrations should also discontinue, the practice, if any, on their system of using the terms 'cumulative or recurring' effect in the orders imposing the penalty of reduction to lower grade or post for a specified period as these terms are liable to mis-interpretation by the authorities responsible for implementing these penalties. The above position may please be brought to the notice of an concerned on your railway for information and compliance. Still in, spite of the position stated above, if any authority uses the term 'cumulative or recurring effect' while passing orders, the case may be resubmitted to the said authority advising him to pass fresh orders strictly in accordance with the provisions of Rule 6(vi) brought out above.
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Joined: October 23rd, 2011, 12:26 pm

April 15th, 2012, 3:36 am #3


Thank you Railwayman, for your reply, duly quoting the provisions of IREC and Railway Board's circular. May I request Mr Ramaswami to post his response?
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Joined: December 10th, 2010, 3:05 pm

April 16th, 2012, 12:06 pm #4

One employee while working as a Dy CTI (Pay scale Rs. 13450/-) was imposed with the penalty of 'Compulsory retirement' from Railway service. At the time of imposition of the penalty, his grade pay was Rs. 4200/-. He filed Appeal and Revision Petitions before the competent authorities, which were rejected. Thereafter, he moved the judicial fora, which directed the Railway Admn to review the quantum of the penalty, as according to the judicial fora, the penalty imposed was excessive and harsh. On this basis, the Disciplinary Authority denovo examined the quantum of penalty and modified the penalty as 'Reduction to the post of Ticket Examiner (pay fixed at Rs. 5830/-) in Grade Pay Rs. 1800/- for a period of three years, with cumulative effect and loss of seniority'.

The modified penalty contains the following limbs:

a) Reduction to a lower post post (viz. from Dy CTI post to Ticket Examiner post).
b) Basic pay reduced from Rs. 13450/- to Rs. 5830/-
c) Reduction from GP of Rs. 4200/- to Rs. 1800/-
d) Penalty period is Three years.
e) Penalty will have cumulative effect.
f) The employee will lose his seniority.

My views:

a) When the penalty period of three years expires, the above employee will be restored to his original position of Dy CTI.
b) When restored, his Basic pay will be only Rs. 13450/- as the penalty is cumulative.
c) He will take his position in the seniority list of Dy CTI from the date the penalty period (3 years) expired as in the penalty advice it has been clearly mentioned that he would lose seniority.

Personnel Department views:

a) When the penalty period of three years expired, the above employee will NOT be restored to his original position of Dy CTI. In other words, after the expiry of the penalty period, he will be placed as Sr Ticket Examiner only.

Request to the esteemed participants:

I request the participants to express their views as to whether my views are correct or the views of the Personnel Department are correct.
let us not bother about the irem since it is a manual for guidance. the letter of 2002 confirms my earlier view which is now encoded both in d and a rules and irem. the persons loses his post for three years with cumulative effect meaning that he will be reduced to the lower post for three years and afterwards restored to his original post with the last pay which he was drawing in that post and not what he would have got had he continued in that post and placed at the appropriate place in the seniority list on that date on which he is restored. in any case since mr.venkatraman is at hubli, he can contact mr. chellappa who was spo there. mr. venkatraman can produce these two things to the p.br. and quote the same to say that the correct position is as per these rules and boards letter and that they should follow them and not their own interpretation since the d a has give orders regarding reduction,period,seniority the three components of the punishment which to me appears clear. in any case whey did not the p.branch go in appeal to higher court since perhaps there are orders that the courts have no jurisdiction to question the quantum of punishment.
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Joined: December 10th, 2010, 3:05 pm

April 16th, 2012, 2:11 pm #5

also please read 322 ii c of irem carefully wherein it is cleared about the reduction to a lower grade and whether the person should be restored or not and if so to what post. since this post belongs to division and you have the headquarters with an expert cpo why not consult him.
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Joined: December 10th, 2010, 3:05 pm

April 16th, 2012, 2:12 pm #6

let us not bother about the irem since it is a manual for guidance. the letter of 2002 confirms my earlier view which is now encoded both in d and a rules and irem. the persons loses his post for three years with cumulative effect meaning that he will be reduced to the lower post for three years and afterwards restored to his original post with the last pay which he was drawing in that post and not what he would have got had he continued in that post and placed at the appropriate place in the seniority list on that date on which he is restored. in any case since mr.venkatraman is at hubli, he can contact mr. chellappa who was spo there. mr. venkatraman can produce these two things to the p.br. and quote the same to say that the correct position is as per these rules and boards letter and that they should follow them and not their own interpretation since the d a has give orders regarding reduction,period,seniority the three components of the punishment which to me appears clear. in any case whey did not the p.branch go in appeal to higher court since perhaps there are orders that the courts have no jurisdiction to question the quantum of punishment.
also please read 322 ii c of irem carefully wherein it is cleared about the reduction to a lower grade and whether the person should be restored or not and if so to what post. since this post belongs to division and you have the headquarters with an expert cpo why not consult him.
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Joined: September 1st, 2011, 5:11 am

April 23rd, 2012, 7:15 am #7

There is a legal issue in this matter. DAR is a quasi judicial process. The court of law can interfere only if there is a procedural flaw and if the tenets of natural justice are not met. The court does not have competency to interfere in the penalty awarded. This is a clear case which merits appeal in a higher legal forum.
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Joined: October 23rd, 2011, 12:26 pm

April 23rd, 2012, 1:58 pm #8


Dear Sir,

Your statement that the Courts/Tribunals should not interfere in the penalty is correct to a limited extent only. To put it preciously, if the penalty is shockingly disproportionate to the gravity of the misconduct, in appropriate cases the court can modify the penalty, in the interests of justice and fair play in action. However, in the instant case, the Department itself has given an undertaking in writing to the Court stating that they are willing to re-consider the quantum of the penalty imposed on the Charged Official.
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Joined: December 10th, 2010, 3:05 pm

April 23rd, 2012, 3:22 pm #9

as mr. rajeevan has correctly pointed out, i had already stated in the last sentence of my earlier clarification that the p.branch should have gone in appeal stating that the courts have no jurisdiction whatsoever with regard to quantum of punishment. if there was a procedural flaw or the principles of natual justice was violated the court could ask for reconsideration. apart from all these the court can interfere only when all the channels of appeals have been over i.e. there was an appellate authority, then a review and then the appeal to President and also the employee asking for a reference to r.r.t etc. in the instant case none of these seem to have been followed and in any case there has been a mess up, the case should be reviewed suo moto by the reviewing authority, not lower than a j.a grade officer or the general manager without time limit, in case there is any doubt. if the employee insists on a particular way in which the case should be deal with, the railways should go in for appeal stating that te lower court has overstepped their jurisdiction in their judgement with regard to the quantum of punishment.
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