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Judgment
O R D E R
Per: Justice Sunil Thomas, Judicial Member – The applicant, who was a Loco Pilot/Goods of the Southern Railway, aggrieved by the rejection of his request to withdraw the appeal filed by him challenging the penalty order, has approached this Tribunal.
The facts leading to the present OA can be summarized as follows: While working as Assistant Loco Pilot he was proceeded against, in disciplinary proceedings, after serving a memo of charges. By Annexure A3 order dated 11.2.2025, penalty of compulsory retirement with full pensionary benefits was imposed on him. He filed Annexure A4 appeal dated 14.2.2025 before the appellate authority. According to the applicant, thereafter he discussed the issue with the family members and decided to withdraw the appeal. Accordingly, he submitted Annexure A5 application dated 7.7.2025 withdrawing the appeal. According to him, it was served on the appellate authority personally and was also sent by post. By Annexure A1 order dated 15.07.2025, Annexure A5 application was rejected on the premise that it cannot be considered, since the appeal has been finally decided positively. It was also stated that Rules do not permit cancellation or alteration of a speaking order, once it has been officially recorded. This was followed by Annexure A2 order dated 16.7.2025, disposing of the appeal. The penalty of compulsory retirement imposed by Annexure A3 was modified as one of reduction to a lower post as Assistant Loco Pilot in pay level-2, till he was found fit for promotion to the next higher post and with a reduced pay of Rs. 40,600/-. It was further stated that the period from compulsory retirement to rejoining duty will be treated as dies non.
The applicant has approached this Tribunal challenging Annexures A1 and A2 and the relief sought is as follows:
“(i)Call for the records leading to the issue of Annexures A1 and A2 and quash the same duly directing the respondents to grant the applicant all the consequential benefits of Annexure A3 forthwith, and at any case with in a time frame as may be found just and proper by this Hon’ble Tribunal.”
A reply statement was filed by the respondents wherein the claim set up in the Original Application was refuted. It was stated that Annexure A5 letter was received by the respondents. However, prior to the date of receipt of Annexure A5 request of the applicant, the order considering his appeal had already been issued by the 3rd respondent. The only technical impediment was in dispatching it. However, the applicant still had time and the departmental proceedings are ongoing, the applicant can submit a request to the revisional authority. It was stated that proper procedure under the disciplinary Rules were followed. The disciplinary proceedings were initiated since he stopped the Material/Special (Goods) train at Perinad station even though the signal was showing run through. He also refused to continue working, despite being instructed to work for an additional two hours. It was stated that no assurance of any kind had been given to the applicant regarding his reinstatement or regarding the appeal. He submitted his withdrawal request to the office and the application was kindly considered. The appellate authority considered the advice of compulsory retirement given by the disciplinary authority and considering his family obligations reinstated him as Assistant Loco Pilot. According to the respondents applicant has not exhausted the administrative remedies available to him under the Railway Services (Discipline and Appeal) Rules, 1968 in the form of revision petition. Applicant was informed from the office of the respondents that withdrawal of the appeal cannot be considered at that stage since Annexure A5 was submitted under the provisions of the relevant Rules as an order in the appeal has already been finalized positively. Accordingly, once a speaking order in connection to the disciplinary proceedings is recorded on file, the same cannot be changed by the appellate authority or the disciplinary authority.
Heard both sides and examined the records.
In the light of the reply statement, to verify whether appeal was disposed of before the receipt of Annexure A5 as stated in Annexure A1, the original files of appeal were called for. They were produced in a sealed cover and we have examined the files. It was stated that on receipt of the appeal it was put up to the appellate authority and the remarks of the disciplinary authority was called for on file. The remarks dated 28.2.2025 was given by the disciplinary authority. The original speaking order thereupon was approved and signed by the appellate authority on 25.6.2025. This was endorsed on file. However, Annexure A5 application for withdrawal is dated 7.7.2025, much after the speaking order was signed and approved on file by the appellate authority dated 25.6.2025. It is clear that the stand taken by the respondents in Annexure A1 as well as in the reply statement that Annexure A5 application was received after the appeal was decided positively is found to be true.
There is no serious challenge on the merits of the case. The only contention advanced by the learned counsel for the applicant was that Annexure A1 was not sustainable on the premise that the authority proceeded on an assumption that Rules do not permit cancellation or alteration of a speaking order once it has been officially recorded. It was contended that the appellate authority proceeded on a wrong premise that once an order is passed, the appellate authority becomes functus officio. This, according to the learned counsel, is factually and legally incorrect and hence Annexure A1 is liable to be interfered. Consequently, Annexure A2 is also not legally sustainable, it was contended.
In Annexure A1, two reasons were stated. Firstly, it was stated that Annexure A5 cannot be considered since appeal has been finalized positively. Secondly, it was stated that Rules do not permit cancellation or alteration of a speaking order once it has been officially recorded.
To supplement the above contentions, the learned counsel for the applicant placed reliance on the decision in Bijayananda Patnaik v. Satrughna Sabu & Ors. (AIR 1963 SC 1566) and State Bank of India & Ors. v. S.N. Goyal (AIR 2008 SC 2594).
In Bijayananda Patnaik’s case (supra) the election of a candidate from a legislative assembly was under challenge at the instance of the defeated candidate. In the election petition a contention was taken up that the application was not in accordance with Section 82 of the Representation of People Act and the defect was fatal to the petition. The objection was heard as a preliminary objection and the Tribunal upheld that the defect was fatal. An appeal was preferred before the Hon’ble High Court. When the appeal came up for hearing, an application was filed by the applicant for withdrawal of the appeal since he did not want to proceed and prosecute the appeal. The High Court set aside the order of the Tribunal and remanded the matter to the Tribunal for considering whether the application for withdrawal should be considered. This was challenged before the Hon’ble Supreme Court. The Supreme Court held that the appellant has a right to withdraw his appeal unconditionally and if he makes such an application to the court it has to grant it. High Court was in error in holding that the appellant cannot withdraw the appeal.
We have no doubt in our mind that this principle laid down has no application to the facts of the present case. That was a case wherein the Hon’ble Supreme Court considered the question whether pending an appeal it could be withdrawn. In this case even the application for withdrawal of the appeal was filed after a decision has been taken in the appeal. Though we have no doubt in our mind that the applicant is entitled to withdraw his appeal before a decision is taken, the said decision relied on by the applicant cannot be pressed into service to contend that even after passing a decision on merits, appeal can be withdrawn.
The decision in S.N. Goyal’s case (supra) was pressed into service to contend that a quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated to the party concerned. The specific question that was considered by the Supreme Court was whether an order recorded by the appointing authority on an office note to impose a penalty of reduction in pay which was neither pronounced, published or communicated is a final decision which could be reconsidered or altered. Answering this question, the Supreme Court held as follows:
“18.It is true that once an Authority exercising quasi judicial power, takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage, an Authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advance Law Lexicon (3rd Edition, Vol.2 Pages 1946-47) gives the following illustrative definition of the term 'functus officio' : "Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision." Black's Law Dictionary (Sixth Edition Page 673) gives its meaning as follows : "Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority".” Thereafter, the Supreme Court proceeded to hold as follows:
“19.We may first refer to the position with reference to civil courts. Order XX of Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer (if the Judge is specially empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by section 152 or on review. Thus where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to section 152 and power of review). The position is different with reference to quasi judicial authorities. While some quasi judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the Authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the Authority will become functus officio. The order dated 18.1.1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the Appointing Authority became functus officio when he signed the note on dated 18.1.1995.”
On facts the Supreme Court found that the order passed dated 18.1.1995 was not a final decision. It was in that background it was held that the authority has not become functus officio. The order was neither pronounced nor communicated or published/notified. In the case at hand the decision was taken. It was recorded on file and was put up for communication. It was in the interregnum that the appeal was filed. Evidently, the above decision cannot be pressed into service in the facts of this case. It is also pertinent to note that the relief sought in Annexure A5 was not to review the order passed in Annexure A1. Had that been the situation, definitely the principle for consideration would have been different. Further, the power to review an order has to be specifically provided. There is no provision for review of an order once it has been passed. Only opotion was to file a revision against the order in appeal which he did not avail. Even now there is no prayer for a direction to the authority to reconsider it. Hence, the appellate authority could not have even considered Annexure A5 in the absence of any specific prayer to review the order, if passed. Hence, the appellate authority was perfectly justified in passing Annexure A1.
Having considered this, we are inclined to hold that there is no merit in the OA. The Original Application fails and is accordingly dismissed. No order as to costs.
Original Application No. 180/00372/2025
APPLICANT’S ANNEXURES
Annexure A1 – True copy of letter No. V/P.227/A/2025/191/Elec.OP dated 15th July, 2025 issued by the third respondent received on 23.7.2025.
Annexure A2 – True copy of order of the penalty of reduction in rank and pay issued by the third respondent under No. V/P 227/A/2025/92/Elec.OP dated 167.2025, received on 2.8.2025.
Annexure A3 – True copy of the order No. V/EOP/228/DS dated 11.2.2025 issued by the second respondent.
Annexure A4 – True copy of the appeal submitted by the applicant dated 14.2.2025 addressed to the third respondent-appellate authority.
Annexure A5 – True copy of the letter dated 7.7.2025 submitted by the applicant in the office as also in person, to the third respondent.
Annexure A6 – True copy of tracking data with reference No. EL 6514266411N downloaded from the website of the Postal Department.
RESPONDENTS’ ANNEXURES
Nil