Central Administrative Tribunal - Lucknow
Lalit Kumar Tripathi vs Union Of India on 14 March, 2023
CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No.94 of 2016
Order reserved on :14.02.2023
Order pronounced on :14.03.2023
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J)
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
Lalit Kumar Tripathi, aged about 50 years S/o Shri S. C.
Tripathi, resident of E-130, South City, Raebreilly Road,
Lucknow.
...Applicant
By Advocate: Shri Praveen Kumar
Versus
1. Union of India through the General Manager, North
Eastern Railway, Gorakhpur.
2. The Chief Operating Manager, North Eastern Railway,
Gorakpur.
3. The Additional Divisional Railway Manager, North Eastern
Railway, Izzatnagar.
4. The Senior Divisional Operating Manager, North Eastern
Railway, Izzatnagar.
....Respondents
By Advocate:Shri S. L. Mishra
1. Whether reporter of journals and of local papers may be
allowed to see the judgment: Yes
2. To be referred to the reporter or not: Yes
3. Whether to be circulated to other benches: Yes
Page 1 of 32
CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
ORDER
Per Hon'ble Shri Devendra Chaudhry - Member (A) The present O.A has assailed (i) the punishment order dated 08.10.2013 passed by Senior Divisional Operating Manager, Izzatanagar, North Eastern Railway, (ii) order dated 18.12.2013 by the Additional Divisional Railway Manager, Izzatnagar, North Eastern Railway rejecting the appeal of the applicant and(iii) order dated 25.02.2015 passed by Chief Operating Manager, North Eastern Railway, Gorakhpur concerning the Revision Petition filed by the applicant.
2. Per applicant, while working as Guard under the respondents, he was issued a Charge Sheet dated 13/03/2013 concerning alleged taking of bribe of Rs. 40/- from a decoy in a trap conducted by the Vigilance Department. The alleged bribe was for permitting the decoy to travel between Rawatpur station to Fatehgarh station. 2.1 It is the contention of the applicant that the entire trap process has been conducted de hors of the provisions of Indian Railway Vigilance Manual ['IRVM' in short hereinafter] and Indian Railway Commercial Manual ['IRCM' in short hereinafter]because: (i) none of the authorities have disclosed source information with regards Page 2 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. to the trap which was laid in a very planned and biased manner, (ii) the decoy Shri Radhey Shyam, Carpenter posted under IOW/Lko and the witness Shri Sheelvan, Hammal, of Parcel Office Lucknow are not independent persona even though MST passengers could have been taken as independent witnesses and so the choice of decoy and the witnesses is in violation of the IRVM, (iii) that even though Vigilance officials were involved in the trap the Inquiry officer is also from the Vigilance Department and so had a preconceived bias, (iv) that two CVI/Traffic namely Shri Ehtesham Khan and Shri Ranjay Kumar Sinha were members of the raiding team and that Shri Mukesh Kumar posing as shadow witness was also from the Vigilance Department and that all this is in violation of provisions contained in para 307 (4) of IRVM, (v) that the raiding team did not include any Gazetted Officer/Non-Gazetted Officer/ combination of Gazetted and Non Gazetted Officer as part of the trap team, (vi) that the trap was laid in a huge crowded train and so IRVM provisions concerning hearing of conversation which should establish that the money was being taken as illegal gratification was precluded in the attendant circumstances, (vii) that there is contradiction in the witness examination statements of the decoy, the independent witness and other statements of the trap Page 3 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. team. Consequently, the entire trap process is vitiated by violation of procedure laid down in the IRVM. That a composite reading of paras 326, 327, 328, 329, 330 & 331 of IRCM would indicate, that the allegation, that he did not issue a Guard Certificate to the decoy in an attempt to pocket the bribe is also baseless because as per the IRCM provisions, when a passenger owing to want of time, is unable to purchase a ticket, a Charge can be collected by the Guard for permitting him /her to board the train subject to issue of a Guard Certificate in lieu of the Charge for travel. That accordingly, he honestly collected the charge which amount of Rs. 40/- was shown as alleged bribe recovery and so the same is misleading inasmuch that though he collected the Charge / the decoy passenger forcibly thrust the money in his pocket, he could not issue the Guard Certificate because the train was about to leave the station within seconds of the decoy seeking assistance to board the train for allegedly going to Fatehgarh. Moreso the problem was compounded by the late delivery of the Guard Box by the concerned porter. So, in effect, there was no time left to issue the Guard certificate though he allowed the decoy passenger to board the train in the coach adjacent to the Guard Van, on humanitarian grounds as the decoy misleadingly posed as a disabled person. Hence, Page 4 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. he had all the intention to issue the Guard certificate but due to paucity of time and the attendant circumstances, the same could not be issued which was moreso also because the Guard certificate requires a counter sign by the TTE and before he could take all these steps, the Vigilance team accosted him with a view to trapping him and falsely recovered the Rs40/- alleging it to be bribe taken from the decoy passenger for permitting him to travel ticketless from Rawatpur to Fatehgarh. Hence, the alleged trap is violative of the provisions of IRVM/IRCM, and so he has been falsely implicated in the entire episode. 2.2 That hence the entire trap process has been conducted in an illegal and irregular manner and so the Charge Sheet, the punishment order and the subsequent orders passed in appeal and revision are liable to be quashed with full consequential benefits.
3. Per contra, the respondents have justified the impugned orders and submitted that the applicant has been working as Guard at Anwarganj station, Kanpur. That on 30.08.2012, the Vigilance Team, trapped the applicant in train No. 52825 while he was on duty as Guard in the aforesaid train which was going from Rawatpur to Fatehgarh. That the trap was laid as per paras of the IRVM Page 5 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. by deploying a decoy who was permitted by the applicant as Guard to travel in the coach adjacent to Guard Break Van by charging Rs. 40/-. That the said amount was demanded and taken, and on the basis thereof, the applicant was found prima-facie guilty of indulging in the misconduct of taking bribe whereupon disciplinary proceedings were initiated by issue of a charge sheet dated 13.03.2013.
3.1 That all procedures laid down in the IRVM and IRCM have been complied with. Thus, as regards choice of decoy, Government officials are not debarred from being chosen as decoy. Similarly, for the role of independent witness. That the Vigilance team officials are part of the entire team to conduct the process and it cannot be said that their presence violated the provisions prescribed. That, there is no contradiction either in any of the statements from the prosecution side in the Enquiry report. It is also erroneous to submit the no 'jama talashi' was taken because the Vigilance team recovered the amount of Rs. 40/- so given by the decoy from the upper pocket of shirt of the applicant during the course of 'jama talashi' (R.U.D-1/2/6/7:
Enclosures to Annexure CR-4 refer) as per procedure laid down in the IRVM paras. As regards the applicant's defence that he had requested to summon some MST passengers, Page 6 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
but the Inquiry officer did not permit the same, it is submitted that while on one hand, the applicant has not stated any such demand in the defense representation dated 31/7/2013 [Annexure no. CR-1] on the other, hehas, in his own statement, simply stated that "Mujhhe Gawah Bachau Prastut nahi karma hai." Therefore, any such demand now in the O.A is an afterthought. As regards the appointment of Shri Y. K. Mishra as Inquiry Officer, it is submitted that the Vigilance Organization has an independent unit of Enquiry section and there is no concern between the Inquiry Section and the rest of the Vigilance organization. It is further submitted that the Disciplinary authority issued order for appointment of Inquiry officer and so the appointment of the Enquiry officer is as per The Railway Servants (Discipline & Appeal) Rules, 1968 ['RDSA rules' in short hereinafter].
3.2 As regards the order by the appellate and the revisionary authorities being reasoned, it is submitted that the appellate authority has, after taking into account the charges leveled against the applicant in the charge sheet, the reply submitted by the applicant, documents available such as the missal register wherein it is established that the applicant was found guilty of taking Rs. 40/ from one decoy for unauthorized traveling from Rawatpur to Page 7 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
Fatehgarh in the coach adjacent to Guard Break Van and only after taking into account all the pleas raised by the applicant in his appeal, the appellate authority has passed a reasoned and speaking order dated 18.12.2013 whereby he has affirmed the order passed by the disciplinary authority. As regards the order by the revisionary authority, the same have reduced the punishment to financial punishment only instead of compulsory retirement.
3.3 Thus, there has been no procedural irregularity in the conduct of the entire trap process and that all the steps prescribed in the IRVM / IRCM have been complied with including selection of independent witnesses and choice of decoy etc as also the composition of the trap team and the process by which the team conducted the entire trap process. The assertion by the applicant that the trap was laid in a very planned manner begs his contra allegation that the trap was not executed as per the prescribed rules and Regulations. That, accordingly the assertions by the applicant are denied in toto and the O.A has no merit and is therefore, liable to be dismissed.
Page 8 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
4. Heard the ld counsels for the parties at length and perused the documents, pleadings including the rejoinder by the applicant, etc with care.
5. The key issue before us is the compliance during the trap process of the IRVM/IRCM provisions as also adherence to the provisions contained in the Railway Servants (Discipline & Appeal) Rules, 1968 ['RSDA Rules' in short hereinafter] apart from assertion of bias, opportunity of hearing and passing of reasoned orders by the appellate and revisionary authorities.
6. As regards the issue of compliance of provisions of IRVM, it needs to be pointed out at the outset that while in the O.A reference is made to para 307(4) of the IRVM no copy of the same is filed in the O.A itself. The ld counsels for both the parties have failed to assist the Court in providing a copy of the para 307 (4) of the IRVM. 6.1 Notwithstanding, the concerned paras in this regard have been sourced from public domain of the internet and the same is IRVM 2018 EDITION. Relevant portions read as under:
"Government of India Ministry of Railways (Railway Board) Indian Railways Vigilance Manual 2018 (Upto & including Amendment no.3) All modifications, circulars can be found on the webpage of Vigilance Directorate, Railway Board here Page 9 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
http://www.indianrailways.gov.in/railwayboard/view_section.jsp?lang=0&id=0,1 ,304,366,546,843 All CVC Circulars on Inquiry/disciplinary matters http://www.cvc.nic.in/notification/Inquiry-disciplinary-matter"
.................
"307 TRAP CASES 307.1 Whenever CBI desires to lay a trap for a public servant who is expected to accept a bribe, it will give prior information to the concerned Head of the Department/Office. In case circumstances do not permit, CBI will furnish details of the case to the Head of the Department/Office immediately after the trap.
(i) During the trap, it is essential that responsible and impartial person(s) witness the transaction and/or overhear the conversation of the suspect public servant. All public servants, particularly gazetted officers, should assist and witness a trap, whenever they are approached by the CBI to do so. [EMPHASIS SUPPLIED] Refusal to assist or witness a trap will be regarded as breach of duty, making the officer liable to disciplinary action. On the request of CBI, the Head of the Department/office will depute a suitable person(s) to be present at the scene of the trap.
(ii) The Government servants who are caught accepting a bribe in a trap case by the CBI/Police should invariably be placed under suspension. The total period of suspension will not exceed 6 months in normal circumstances."
"518 DEPARTMENTAL TRAP CASES - PROCEDURE & GUIDELINES 518.1 Apart from the CBI, the Railway Vigilance department also carries out decoy checks. These checks require careful planning, selection, execution and documentation for success. The need for a very good information network and regular flow of information from the field cannot be over emphasized, for it is only this that leads Vigilance to the right person at the right time.
518.2 The spot for the trap should be selected very carefully after thorough ground work. If one has studied the field conditions well, then one would know which are the vulnerable locations and who are the regular extorters. For example, checks on booking windows are most rewarding when there is a huge rush at the windows and the booking clerks help themselves to extra cash by way of keeping the change, dropping of cash etc. Similar would be the case in an overflowing train during the vacation period.
518.3 The selection of the decoy has also to be done very carefully. If he is a Government Servant, he should have a clear past and should not have any enmity against the person who is to be trapped. If the decoy is a non Government person, then he should be adequately informed of the purpose of this trap. The decoy should be one who would always stand with the Vigilance agency under all circumstances and not be bought over or pressurized by the trapped person. He would have to be told before-hand that his commitment in the case would last along while, he would Page 10 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
face cross examination in the subsequent inquiry process and, hence, should be willing to cooperate with the Vigilance till the very end. Decoy selected for departmental trap cases should not be an official of the Vigilance Department.
518.4 In addition, the Investigating Officer/Inspector should immediately arrange one or more officials (gazetted or non-gazetted or a combination of gazetted & non- gazetted) to act as independent witness/witnesses. It is imperative that all Railway employees should assist and witness a trap, whenever they are approached by the Vigilance branch. Refusal to assist or witness a trap without sufficient reason can be construed as breach of duty, making the person liable to disciplinary action.
518.7 At the time of the check, the independent witness/witnesses should take up position in such a place where they can see the transaction and also hear the conversation between the decoy and the delinquent employee, so as to satisfy themselves that money was demanded, given and accepted as bribe.
518.8 After money has been passed by the decoy to the delinquent employee as bribe, the investigating officer/inspector should disclose his identity and demand, in the presence of the witnesses, to produce all money including private, Railway and bribe money. Then, the total money produced should be verified from relevant records and a memo be prepared for seizure of money. The recovered notes should be kept in an envelope, sealed in the presence of the witness, decoy, the accused and to the extent possible, his immediate superior, who should be called as witness, in case the accused refuses to sign the recovery memo and sealing of notes in the envelope. It is crucial to seize supporting relevant documents immediately after the trap. A post trap memorandum should be prepared indicating the details of the events which had occurred and signed by all present.
518.11 It is essential that a successful decoy check should be followed to its logical conclusion, namely - the issue of a major penalty charge sheet which should eventually entail imposition of penalties of compulsory retirement, removal or dismissal from service. Rule 6 of the RS(D&A) Rules specifies dismissal/removal for proven cases of bribery & corruption. The Executive and Vigilance wings need to cooperate in making the tool of decoy checks a very effective deterrent to the wrongdoer, and not take up a confrontationist approach which would ultimately benefit him.
518.12 As per Railway Board's Circular No. RBE 251/1998, the employees caught on successful trap check are to be suspended and transferred out of Division as a matter of policy. .."
6.2. As is evident, first of all, there is no para 307 (4) - at least - in the 2018 edition of the IRVM extracted above from public domain. Now, even if we give the benefit of doubt to the applicant of citing some old or other version of the Page 11 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. IRVM we cannot uphold even that because, the para 307 concerns Trap cases involving CBI and not departmental type. Actually, the departmental Trap conditions are specified in para 518 of the IRVM [2018 edition] which is extracted above.
6.3. Now, with regards to compliance of provisions of IRVM,the first point is regarding lack of independent witnesses. This assertion is not worthy of upholding because as per IRVM provisions above a Government witness is not excluded because para 518.4 specifies that one or more gazetted or non-gazetted officials should be taken as independent witnesses which point is also asserted by the applicant in para-9 of his O.A. Therefore, for him now to turn around and argue that selection of Shri Sheelwan - a Government employee as independent witness is in violation of provisions of IRVM is contradicting his own assertion. We also see that Shri Sheelwan, Hammal was working in Lucknow Parcel office which has nothing to do with the Guard office or Rawatpur station staff and so his selection as independent witness is fully as per the stated IRVM provisions regarding a non-gazetted Government official being an independent witness which he is in the trap process conducted against the applicant. The applicant has also nowhere stated in his O.A that he knew Page 12 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. Shri Sheelwan or that Shri Sheelwan was in any way biased by any previous pre-meditated motive. As regards the applicant's assertion that no independent witnesses such as MST passengers were summoned for witness examination during the course of disciplinary enquiry, the same is not worthy of consideration because firstly, the applicant has not stated any such demand in the defense representation dated 31/7/2013 [Annexure no. CR-1] and has simply stated in the end of the representation that "Mujhhe Gawah Bachau Prastut nahi karna hai", therefore, any such demand now in the O.A is an afterthought. Secondly, just any one including a MST passenger cannot be summoned at random to be part of a Vigilance trap matter as witness because conditions per 518.3 of the IRVM are quite onerous in nature and specify that the independent witness should be so selected that he/she does not become amenable to any extraneous pressures or becomes hostile easily given the fact that per 518.4, a Government non-gazetted or gazetted servant can be an independent witness. So the respondents have not faulted per the provisions of IRVM in selecting Shri Sheelwan - a non-gazetted official of an unconnected office in Lucknow as independent witness. So, the point of independent Page 13 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. witness not being chosen correctly per the IRVM provisions is held against the applicant.
6.4. As regards the next point regarding selection of independent decoy, para 518.3 does not debar choice of a Government servant as a decoy. That, Shri Radhey Shyam, carpenter in Lucknow IOW office was chosen as decoy is also therefore, within the provisions of para 518.3 of the IRVM above. All that is required is that if a Government servant is chosen as decoy he/she should not have any enmity with the to be trapped official. So once again Shri Radhey Shyam who was posted as carpenter in the IOW office in Lucknow which is in no way related to Rawatpur station or Guard office and that the applicant had never met Shri Radhey Shyam admittedly, and so he - Shri Radhey Shyam - was indeed eminently suited to be the decoy as per provisions of para 518.3 of the IRVM. The applicant has also nowhere stated in his O.A that he knew Shri Radhey Shyam or that Shri Radhey Shyam was in any way biased by any previous pre-meditated motive. So the point of the applicant about not having an independent decoy is also not justifiable.
6.5. As regards other members of the trap team being Vigilance Department officials and hence being liable to bias, this point of the applicant is again not sustained as Page 14 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. the para 307 of the IRVM does not specify anything on this point and as regards paras 518 onwards, the same is not barred. In fact,per para 518.8 of the IRVM extracted above,since the trap was laid by the department through the Vigilance officials the Vigilance officials have to be present during the conduct of the trap and disclose their identity to the suspect when the trap is fructified. Therefore, presence of other Vigilance officials is very much a part of the entire event for confronting the applicant suspect employee when the trap fructifies and then to conduct the subsequent proceedings.
6.6. As regards the location of the trap being in a crowded place or train the para 518.2 itself provides that traps should be laid in places most vulnerable for occurrences of such graft incidences. So perhaps the applicant has not read the IRVM properly and is reciting out of some perception rather than facts.
6.7. As regards the assertion of the applicant that he was denied personal hearing by the appellate officer, the same is misleading because he did not ask for the same. It is also to be noted that there is no documentary proof filed by the applicant with regards to the same. Therefore the applicant's assertion is plainly baseless. Page 15 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. 6.8. As regards the other steps concerning:(i) contradiction in witness statements with regards to decoy giving of 'sanket', (ii) contradiction in statement of independent witness, decoy and vigilance officials on the point of whether location of independent witness was such as to be able to hear the conversation between the suspect employee / applicant and the decoy due to inappropriate distance, etc - the same are not worthy of consideration if one examines the statement of witnesses with care. Thus, in the case of decoy Shri Radhey Shyam, the statement records that indication ['sanket'] was given by him. (RUD-3) which is extracted hereunder for reference:
RUD-3 िड ाय या ी का िदनाके 30-8-12 को के गाड़ी सं 51825 के गाड म िदया गया बयान:
पूव की योजना के अनुसार म रावतं पुर े शन पर गई साहब के पास प ँ चकर बोला िक मुझे फोगढ़ बक जाना गोड साकृ ने कहाँ ५०% दो मने अपने पास रखे ए नोरों म से पय चालीस गाड साख 22 िदया, को गाड सहव ने कहा बंगळ िड े म बैठ जाओ। मने वगक बदे वी आई को संकेत कर िदया।
और बगळ िड े म बै गया। यह मेरा ानं है ।
राधे ा कारपे र
iz"u ¼1½ d`I;k mijksDr c;ku i<+s ,oa Li'V djs fd vkius buls :0 40@&
fdl fy, fy;kA
mRrj% bUgkssaus eq>;s dgl fd eS fodykax vkneh gWwa pyus&fQjus esa fnDdr gS eSus dgk vxys LVs"ku ij vkdj rqEgkjh fVdV exka nw vkdj ys ysukA iz"u ¼2½ Jh jk/ks";ke d`I;k Li'V dja fd D;k vkius vius ls fodykax crk;k Fkk vkSj xkMZ lkgc us vxys LVs"u ij fVdV eaxkus dks dgk FkkA Page 16 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
mRrj% ,slk ugh gSA eSus dsoy Qrsx<+ rd tkus dh ckr dh Fkh mUgksaus dgk 40 :I;s ns nks cSB tkvksA iz"u ¼3½ Shri Tripathi ji' - Jh jk/ks";ke us fy[k gS fd muds }kjk dsoy Qrsx<+ rd pyus dh ckr dh xbZ Fkh fQj vki D;ksa dg jgs gS fd mUgksaus vius ls fodykax crk;k d`I;k lPpkbZ Li'V djsaA mRrj% bUgksaus ;s gh dgk FkkA irk ugh D;k dg jgs gSA Inany case with regards to evidence appreciation the scope by the courts in disciplinary proceedings is extremely limited as per law laid down by the Hon Apex Court.
Further the quality of evidence itself in disciplinary proceedings is differently weighed and assessed as compared to a criminal proceeding. Thus, inB.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot reappreciate the evidence and substitute its own finding. Similarly, as observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows:
"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the Page 17 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.."
7. The vain efforts of the applicant in his assertion on evidence statements is also like splitting hairs and not worthy of consideration inasmuch that in a disciplinary proceedings it is the preponderance of evidence which is the key and the evidence does not have to be absolutely 100% fool proof and beyond any shadow of doubt as in a criminal case. This is logical because in a criminal case we are dealing with life and liberty of a person as a citizen of India under the umbrella of the Fundamental Rights guarantee in the Constitution, whereas in a disciplinary proceedings it is only the Government service issues which are being considered which obviously fall at a lesser level than when the life and liberty of a citizen of India / Government employee is at stake. In any case the law laid down by the Hon Apex court in the matter of appreciation of evidence in disciplinary proceedings vs criminal proceedings is quite well settled. Thus, In Bank of India Vs. Degala Suryanarayana (1999) 5 SCC 762, it is held by the Apex Court as under:
"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a Page 18 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held:
The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."
Similarly In Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583, Supreme Court has held as under:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena.) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.."
7.1. Furthermore, typically if the applicant was not expecting a Vigilance trap, he would not be on the look-out Page 19 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. for persons other than who had approached him in the matter at hand - viz the decoy ShriRadheyShyam, Carpenter or the witness Shri Sheelwan -none of whom the applicant would ever know from any earlier acquaintance as they were working under IOW/Parcel office Lucknow. What cannot be brushed under the carpet is that our analysis reveals that the Vigilance Department with requisite men and material, took pains to set up the trap and it cannot be said that all are out for vengeance against the applicant and were therefore, lying and biased and only the applicant is truthful. For example there is supportive evidence of the same numbered currency notes being recovered from the possession of the applicant which were given to the decoy in the first place before laying of the trap and all this was done through Memos required to be prepared per the IRVM. Therefore, the applicant's assertion that there was violation of various provisions of IRVM in respect of biased choice of witnesses or Government witnesses or decoy etc or procedure etc is not worthy of being upheld in law and fact.
8. We next advert to the issue of non-compliance of Indian Railways Commercial Manual [IRCM] stated by the applicant in para-4.13 onwards of the O.A. which may be noted is distinct from the IRVM discussed earlier. Here Page 20 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. again no excerpts were submitted by the applicant in the O.A itself originally in support of his averments in para-4.13 of the O.A, nor did the CA rebut any of the paras specifically despite their mention in the O.A., and it is simply mentioned that the contents of para-4.13 are denied. Later the same were filed by the ld. applicant counsel being appended to the citation of the Hon' High Court. To refer to the concerned paras, the same are extracted hereunder:
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (Railway Board) INDIAN RAILWAY COMMERCIAL MANUAL VOLUME I 1992 Third Edition, 1992 Government of India Press, Coimbatore First Limited Edition 1967 Second Edition 1972 (Revised) Third Edition 1992 (Revised) "326. Guard's certificate of permission to travel. The 'Certificate of permission to travel' is issued in the following cases by Guards/Conductors and other categories of staff on duty as notified by the railways, to passengers who apply for such permission before incurring the charge, on the condition that the passenger will subsequently pay the fare and any excess charge due:
(i) when a passenger owing to want of time is unable to purchase a ticket;
Guard's Certificates will be issued in such cases at stations where platform tickets are issued, only on production of valid platform tickets;
(ii) when a passenger wishes to continue his journey beyond his booked destination;
(iii) when a ticket holder wishes to travel in a higher class of carriage; (iv) when a ticket holder wishes to travel from an ordinary to a mail or express train or a restricted train either at the starting station or en route;
(iv) When a passenger is compelled to change in a lower class of carriage or in a train other than mail or express, for want of room in the class or in the mail or express train, for which he holds a ticket;
(v) when military personnel are unable to get their warrants exchanged for tickets at the starting station and inform the Guard/Conductor before undertaking the journey; (vii) when military personnel holding military concession certificates I.A.F.T. 1720-A, 1728 and 1736, are unable to get their Page 21 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
certificates exchanged for tickets at the booking office for want of time and inform the Guard/Conductor before undertaking the journey. Note.(1) Guard's certificates must not be issued to passengers travelling on un exchanged military concession certificates except those referred to above, concession orders, privilege ticket orders, etc. (2) Travelling Ticket Examiners are not authorised to issue these certificates.
327. Procedure to be followed in issuing certificates. A specimen of the form of 'Certificate of permission to travel' appears in the I.R.C.A. Coaching Tariff. These certificates are serially numbered and printed in three foils, viz. 'Passenger'. 'Accounts' and 'Record'. These are prepared by carbon process and should normally be issued upto the destination stations of the passengers. However, in cases where passengers are compelled to travel in a lower class and hold tickets for destinations which involve change at a junction station, the certificates should be issued upto the first train changing junction, or if desired by the passengers, upto an intermediate station prior to such junction where accommodation in the class for which tickets are held is expected to become available. In such cases the Guard/Conductor issuing the certificate will endorse on the ticket in ink as under.." The applicant's assertion in para 4.13 onwards that the paras of IRCM are not complied with, is also negatived because (i)per para-326 of IRCM, the applicant as Guard should have issued the Guard's certificate, (ii) there is no mention of counter signature by TTE for issue of Guard certificate as averred by the applicant in para-4.12 of his O.A and in contra, the role of the TTE is clearly specified in para-329 of IRCM and it nowhere states that the Guard's certificate is to be countersigned by the TTE. Moreso, in Note-2 to the para 326 it is stated that Travelling Ticket Examiners are not authorised to issue these certificates. So the plea of the counter signature of the TTE falls flat on the ground.
Page 22 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. 8.1. Even otherwise, para 326 (i) of the IRCM requires the Guard to issue Guard certificate to a person on when the passenger concerned has a valid Platform ticket in stations where such tickets are issued. The concerned para reads as under:
(i) when a passenger owing to want of time is unable to purchase a ticket;
Guard's Certificates will be issued in such cases at stations where platform tickets are issued, only on production of valid platform tickets; There is no submission in the applicant's O.A that he complied with this para of IRCM with respect to Platform ticket point. Para-327 is only an adjunct of para-326 and prescribes a form for issue of certificate by the Guard. Therefore, as per above analysis, any violation of the IRCM paras by the respondents trap party is ruled out and the assertions of the applicant are consigned to the dustbin of irrelevance.
8.2. Other similar off-the-cuff assertions regarding non- compliance of the other IRCM paras 328-331 deserve similar trashing as, on one hand, the applicant has not taken pains to substantiate as to how exactly the concerned paras are violated, on the other, our painstaking analysis of each of the paras as extracted above reveals that none are violated per the evidence of documents available in the list. Thus, para 328 is about excess fare, para-330 is about submission of certificate to the Traffic Page 23 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. accounts office and para-331 is about certificates to be issued from printed books. Thus, there is nothing in the action of the respondents - the Vigilance team and the assisting officials which as per analysis above can be said to be in violation of the said paras. This is the height of frivolous statements by the applicant and worthy of being trashed.
9. The assertion of the applicant that he was moved on humanitarian grounds to help the decoy as the decoy posed himself to be a disabled person is without any proof as the same is denied by the decoy in his statement during the course of Inquiry proceedings. Compassion cannot take precedence where integrity is involved. And even so where justice is concerned Compassion cannot be the guiding hand of justice. While compassion is good, justice is better [Seneca]. Therefore, the plea of being moved by compassion to help a disabled person when the integrity of self is suspect is just not kosher. Therefore, this point is also held against the applicant.
10. The next assertion of the applicant is that the orders of appellate and revisionary authority are not reasoned. This is not substantiated by the body of the impugned orders as may be seen from the abstracts below: Page 24 of 32
CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
Appellate order dated 18.12.2013: Annexure -A-2 "पूव र रे लवे सं० टी / एस. एस. / इ त / िवज / 05-12 कायालय, अपर मंडल रे ल ल ब क, इ तनगर, िदनां क 17/18.12.20130 of 18 ी लिलत कुमार ि पाठी, गाड / कानपुर अनवरगंज / फतेहगढ़ | 08.10.2013 के िव की गयी यािन ारा िवषयः -द ारोपण सूचना सं० टी / एस. एस. / इ त / िवज / 05-12, िदनां क 08.10.2013 के िव की गयी आपकी अपील िदनां क 28.10.2013.
ी लिलत कुमार ि पाठी, गाड / कानपुर अनवरगंज की िवषयां िकत अपील िदनां क 28.10.2013 पर अपीलीय ािधकारी (अधोह ा री) ने िन िल खत आदे श पा रत िकया है ी लिलत कुमार ि पाठी, गाड / कानपुर अनवरगंज की अपील तथा केस िमिसल म अिभलेखों ानपू वक दे खा| ी ि पाठी के ऊपर आरोप है िक इ ोंने िदनां क 30.8.12 को गाड़ी सं0 51825 म गाड की ूटी करते ए िड ाय या ी ी राधे ाम से रावतपुर से फतेहगढ़ तक की या ा कराने के एवज म 40 ० िलया । त ात् उसे गाड़ी म ेकवान के बगल के कोच म बैठकर या ा करने हे तु अनुमित दान की। ी ि पाठी ारा अपील म उठायी यह आपि िक िड ाय मनी की किथत बरामदगी के प ात िड ाय मनी को सील कर उस िलफाफे को आर.यू.डी. की सूची म नही ं रखा गया, सील िलफाफे को आर.यू.डी. म रखने का कोई औिच तीत नही ं होता ोंिक ी ि पाठी ने संयु नोट म अंिकत न रों के नोटों म से िड ाय ारा िदये गये 040 अलगकर उसका िववरण बनाया था जो उनकी यं की राईिटं ग म इनके ारा ह ा रत है ।
ी ि पाठी के अनुसार िड ाय या ी िवकलां ग बनकर आया था इसीिलए उसकी मजबूरी कवान के बगल के कोच म बैठने के िलए कहा था, इस बात का उ ेख ी ि पाठी ारा ितिथ िदनां क 30.8.12 को अपने ों र म भी िकया है , जबिक जां च रपोट के अनुसार िड ाय या ी िवकलां ग नही ं था। ी ि पाठी ारा िड ाय या ी ी राधे ाम से रावतपुर से फतेहगढ़ तक या ा कराने के एवज म ली गयी रािश 040/ इनकी जेब से बरामद यी, िजसे इ ोंने यं ीकार िकया है तथा जां च म भी इसकी पुि यी है । ी ि पाठी का यह कहना गलत है िक जाँ च के दौरान अपने बचाव िदनां क 31.7.2013 धारकों को ुत करने का िनवेदन िकया था िक ु जां च अिधकारी ने सं ान म नही ं िलया । इनका बचाव प िदनां क 31.7.2013 टाईप िकया आ है तथा इस आवेदन के अ म इ ोंने अपनी ह िलिप म मुझे गवाह-बचाव ुत नही ं करना है । * आरोप की अतः आरोप प , जां च रपाट िमिसल म उपल सभी प ों एवं इनके ारा ुत अपील पर ग ीतापू वक िवचार करने पर म इस िन ष पर प ◌ॅ चा ँ िक ी लिलत Page 25 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. कुमार ि पाठी, िड ाय या ी ी राधे ाम से रावतपुर से फतेहगढ़ तक की या ा कराने के एवज म अनिधकृत प से 0 40/- लेने का दोषी है । ग ीरता को दे खते ए अनुशासिनक ािधकारी ारा इनको िदया गया अिनवाय सेवा िनवृि का द पया है । अतः अनुशासिनक ािधकारी ारा अिधरोिपत 'अिनवाय सेवा िनवृि के द को यथावत रखा जाता है ।"
इस आदे श के िव मु प रचालन ब क, पूव र रे लवे , गोरखपुर को 45 िदन के अ र रवीजन िपटीशन ुत की जा सकती है ।
(सोमेश कुमार )
अपीलीय ािधकारी एवं
अपर म ल रे ल ब क / इ तनगर
------------------------------
Revisionary order dated 25.02.2015: Annexure -A-3 कायालय मु प रचालन ब क पूव र रे लवे गोरखपुर Office of the Chief Operations Manager North Eastern Railway Gorakhpur प सं० प / एस.एस. / इ त / िवज /05-12 ी लिलत कुमार ि पाठी, गाड पूव र रे लवे , इ तनगर म ल | िदनां क25.02.2015 िवषय:- पुनरी ण यािचका स भ:- कमचारी का आवेदन िदनां क 10.02.2014 · ी लिलत कुमार ि पाठी, गाड इ तनगर म ल (आरोिपत कमचारी) को िदनां क 13.03.2013 को जारी दीघ द आरोप प के अनुसार िदनां क 30.08.2012 को ी लिलत कुमार ि पाठी, गाड ारा गाड़ी सं0-51825 म रावतपुर से फतेहगढ़ तक की या ा कराने के एवज म छ या ी ी राधे ाम से पया 40/-मां गा एवं िलया गया है । त ात् उसी गाड़ी म गाड ेकवान के बगल के कोच म बैठकर या ा करने हे तु अनुमित दान िकया गया । उ छदम या ी सतकता िवभाग की योजना के अनुसार लगाया गया था तथा सतकता िवभाग की जां च म ी ि पाठी की जेब से उ 40 पया बरामद िकया गया।
उपरो सतकता मामले म जां च, सतकता कायालय म कायरत ी वाई0के0 िम , जां च िनरी क ारा की गयी। जां च अिधकारी ारा ी लिलत कुमार ि पाठी, पर लगाये गये आरोपों की पुि की गयी। जां च रपोट पर आरोिपत कमचारी के ावेदन पर िवचार करते ए अनुशासिनक अिधकारी (व र० म ल प रचालन ब क / इ तनगर ) ारा अिनवाय सेवािनवृ का द पा रत िकया गया। उ द के िव की गयी अपील पर अपीलीय Page 26 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
ािधकारी (अपर म ल रे ल ब क / इ तनगर ) ारा अनुशासिनक अिधकारी ारा अिधरोिपत द को यथावत रखा गया ।
उपयु सभी त ों तथा अधोह ा री को ुत पुनरी ण यािचका िदनां क 10.02.2014 म आरोिपत कमचारी ारा उ खत त ों का गहन अ यन िकया गया, त ात पुनरी ण यािचका पर कथन आदे श िन वत् पा रत िकया जाता है :
ी लिलत कुमार ि पाठी, गाड, कानपुर अनवरगंज ारा उनपर अिधरोिपत आरोप से बार ार इ ार िकया गया है तथा यह कहा गया है िक गत छ या ी, गाड़ी के तर से खुलते समय लंगडाते ए उनके पास आया था और अपनी िवकलां गता का हवाला नेकर फतेहगढ या ा की आव कता बताते ए िटकट मंगवाने का आ ह िकया था। गाड़ी अिधक रोका जाना स व न होने के कारण उसे बगल के कोच म बैठने तथा अगले े शन पर िटकट लेने को कहा।
ी लिलत कुमार ि पाठी ने आगे कहा है िक "इसी बीच उ या ी अपने हाथ म कुछ 10 पए के नोट मेरे पाकेट म जबरद ी डालकर यह कहते ये गाड़ी म बैठ गया िक मुझे चलने म िद त है कृपया आप ही मेरा िटकट अगले े शन पर मंगवा दीिजएगा। इसके बाद अगले े शन क ाणपुर म गाड़ी खड़ी होते समय सतकता दल के लोग उ िवकलां ग या ी को लेकर मेरे ेक म चढ़ गए एव अपनी कारवाई ार की।"
जां च अिधकारी ारा इस मामले की जां च म आरोिपत कमचारी के कथन के संबंध म (स वतः गाड ेकवान म अकेला होने के कारण ) कोई दश गवाह ुत नही ं िकया गया। सतकता िवभाग ारा तं गवाह ी शीलवान, ह ाल, पासल कायालय, लखनऊ एव दश गवाह मु सतकता िनरी क ी मुकेश कुमार, ी एहतेशाम खॉ, ी रजय कुमार िस ा, एवं राधे ाम कारपे र, लखनऊ को अिभयोजन प के सा के प म ुत िकया गया। इस कार घटना के समय आरोिपत कमचारी अकेला था तथा अिभयोजन प की ओर से ुत सभी कमचारी सतकता िवभाग के अथवा सतकता िवभाग ारा ायोिजत गवाह थे ।
जां च के दौरान इस पूरे मामले म कहीं भी आरोपी गाड ारा हाथ म पैसा लेने की बात न तो ीकारी गयी है और न ही जां च की पूरी ि या के दौरान यह त मािणत ही आ है । अतः गाड के इस कथन की स ावना से इ ार भी नही ं िकया जा सकता िक छ या ी ारा जबरद ी उनके जेब म पैसा डाला गया ।
घटना थल के संबंध म भी िवरोधाभास है । गाड ने सतकता िवभाग के कमचा रयों ारा उनको क ाणपुर े शन पर घेरे जाने की बात कही है , जबिक अिभयोजन प के गवाह ी एहतेशाम खॉ, मु सतकता िनरी क / यातायात ारा यह कारवाई रावतपुर े शन पर िकए जाने की बात कही गयी है ।
इस पूरे मामले की जां च म गाड के जेब से सतकता िवभाग ारा िदए गए नोट बरामद होना सही भी मान िलया जाय तो इससे यह िविदत होता है िक आरोपी गाड ी लिलत कुमार ि पाठी से वही पैसा बरामद आ, जो िटकट के एवज म सरकारी खजाने म. जाना चािहए। जां च अिधकारी ने अपनी िववेचना म एक जगह उ े ख िकया गया है िक आरोिषत कमचारी की मंशा कहीं न कहीं गलत थी जो इनके स िन ा को गलत एवं कत ों के ित अिनयिमतता दशाता है ।
आरोिपत कमचारी की िपछली सेवाएं संतोष द रही ह तथा इनकी उ ृ सेवा हे तु रे ल स ाह समारोह वष 2009 म महा ब क र पर इ पुर ृ त भी िकया है । चुका Page 27 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
" उपयु सभी त ों को ि गत रखते ए आरोिपत कमचारी के पुनरी ण ितवेदन पर सहानुभूितपूवक िवचार कर अधोह ा री ारा मानवीय ि कोण अपनाते ए आरोिपत कमचारी ी लिलत कुमार ि पाठी, गाड के िव पा रत द "अिनवाय सेवा िनवृि के थान पर रे ल सेवा म बहाल करते ए अिनवाय सेवा िनवृि के समय आरोिपत कमचारी के टाइम े ल म चार े ज नीचे दो वष हे तु संचयी भाव से कम िकए जाने का द पा रत, िकया जाता है ।
अिनवाय सेवा िनवृि की ितिथ से आरोिपत कमचारी के ाईन करने के पूव की को DIES-
NON माना जाय । ितिथ तक की अविध
( ान द पा े य)
पुनरी ा अिधकारी
एवं
मु प रचालन ब क
10.1 Evidently both the appellate and the revisionary orders are well reasoned and elaborate. Nothing more is required to be said on this frivolous issue raised by the applicant. Hence this point of unreasoned orders is also not worthy of consideration. The problem is that the applicant continues to perceive himself as totally innocent and the entire disciplinary proceedings including the trap as a contrived design of the department. In this regard, as we have seen the applicant has not been able to hold his head high in respect of the trap and the subsequent consequential disciplinary proceedings resulting firstly in compulsory retirement and then on mercy reinstatement with some financial punishment. The same IRVM and IRCM which the applicant swears upon states in para 518.11 as under:Page 28 of 32
CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
"518.11 It is essential that a successful decoy check should be followed to its logical conclusion, namely - the issue of a major penalty charge sheet which should eventually entail imposition of penalties of compulsory retirement, removal or dismissal from service. Rule 6 of the RS(D&A) Rules specifies dismissal/removal for proven cases of bribery & corruption. The Executive and Vigilance wings need to cooperate in making the tool of decoy checks a very effective deterrent to the wrongdoer, and not take up a confrontationist approach which would ultimately benefit him."
10.2 Rule-6 of The Railway Servants (Discipline and Appeal) Rules, 1968 ['RSDA Rules' in short hereinafter] reads as under:
"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, post, or service, with or without further 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; (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 the Government or Railway Administration:
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. ."
Thus, it may be seen that in cases of an employee implicated of bribe taking in a trap case, a minimum punishment of compulsory retirement is required to be Page 29 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. imposed. The Rule-6 of RSDA Rules in its second Proviso specify that nothing short of removal from service is warranted. The applicant is beneficiary of a mercy by the revisionary authority who has in his/her wisdom retracted the punishment of compulsory retirement something which is in letter of law not permissible as compulsory retirement / removal from service is what is prescribed in the minimum. Hence the plea of bias is also held against the applicant.
10.3. As regards the Enquiry officer being an employee of the Vigilance Department, there is nothing in the Railway Servants (Discipline & Appeal) Rules, which debars a Vigilance official from being an Enquiry officer in a disciplinary proceedings and moreso, given the fact that Enquiry section is independent of the rest of theVigilance organization as asserted to by the respondents in para-6 of their CA. The Enquiry officer was also appointed as per RSDA Rule-9 by the Disciplinary authority. There is nothing in the citations filed from the applicant side as to any law laid down on this aspect of Enquiry from an official of the Vigilance organization per se. The averments in this regard in the Rejoinder filed by the applicant also do not help with any substantiated rules/guidelines etc. Therefore, this point is also held against the applicant. Page 30 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors.
11. The point of bias asserted by the applicant is another lame issue because it is no longer res integrathat if bias against a person is alleged then the person concerned has to be arrayed as a respondent/party. In the case at hand the applicant has not arrayed any of the officials or witnesses or the decoy as respondents and so the assertion of bias is not legally sustainable. Even otherwise the entire Department of Vigilance cannot be said to be prima facie biased against the applicant and it that were the case, it is to be appreciated that in any disciplinary proceedings, should there be a complaint of misconduct, there is a preliminary Enquiry which is actually conducted by an officer of the department itself and it is from the same department that the Disciplinary Authority appoints another officer as the Enquiry officer implying thereby that if bias is introduced by the involvement of a department then in a normal disciplinary proceedings, the Enquiry should be from a different department and not from the department to which the applicant may belong. There is no such provision in the Disciplinary rules of the Railways or for that matter any such guideline or circular in this regards shown by the applicant. The RSDA Rule-9 permits the Disciplinary Authority to appoint an appropriate senior Page 31 of 32 CAT, Lucknow O.A. No. 94 of 2016 Lalit Kumar Tripathi Vs. U.O.I. & Ors. officer to be the Enquiry officer and this is what has been done in the case at hand.
12. In light of above analysis, the citation by the ld applicant counsel with regards to judgment of this Tribunal in O.A 460/2007 and the Hon' High Court of Judicature at Allahabad, Lucknow Bench, order dated 13/11/2014 with the citation of the Hon Apex court already contained in the judgment of the Hon' High Court Allahabad, is of not much help as it is based on a finding that the provisions of IRVM were not complied with as against our considered view that such is not the case in the matter at hand and so the matter is distinguishable on grounds of different facts and analysis thereof.
13. Thus, on the basis of the aforesaid discussions and analysis, it is clear that the applicant has no case and his pleas are without any legal or factual rationale.
14. Therefore, the O.A is liable to be dismissed and is dismissed.
15. No costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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