Central Administrative Tribunal - Jabalpur
A M Khan vs M/O Railways on 19 June, 2024
O.A.No. 200/00219/2011 CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH JABALPUR Original Application No.200/00219/2011 Jabalpur, this Wednesday, the 19th day of June, 2024 HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER A M Khan, S/o Shri Abdul Wahid Khan, aged about 47 years, Rtd. T.T.E., West Central Railway, Bhopal (M.P.) - 462023, R/o 2843, New Adarsh Colony, Near Katra Masjid, Adhartal, Jabalpur - 482002
-Applicant (By Advocate - Shri Manoj Sharma, Sr. Advocate, along with Ms. Anuja Sharma) Versus
1. The Union of India, West Central Railway, Indira Market, Jabalpur (M.P.) - 482001
2. Divisional Commercial Manager, West Central Railway, Bhopal (M.P.) - 462023 (Disciplinary Authority)
3. Senior Divisional Commercial Manager, West Central Railway, Bhopal (M.P.) - 462023 (Disciplinary Authority)
4. General Manager, West Central Railway, G.M. office Indira Market, Jabalpur (M.P.) - 482001 (Revisionary Authority)
- Respondents (By Advocate- Shri D S Baghel) (Date of reserving order: 06.03.2024) Page 1 of 13 O.A.No. 200/00219/2011 Order By Kumar Rajesh Chandra, AM.
This Original Application has been filed by the applicants being aggrieved by the order of punishment dated 15.07.2009 (Annexure A/1) whereby the punishment of compulsory retirement was imposed upon him and further orders passed by the appellate authority (Annexure A/2) and disciplinary authority (Annexure A/3) wherein the appeal and revision petition of the applicant has been dismissed by the respondents.
2. Briefly, the facts of the case of the applicant are that the applicant while working as T.T.E. at Jabalpur, was issued with a Charge Memorandum of major penalty (SF- 5) on 19.06.2008 (Annexure A/4) by Divisional Commercial Manager, Jabalpur. On perusal of the charge-sheet (Annexure-A/4) it shows that three different charges were leveled in the Charge Memorandum. In Article No. 1, it is alleged that the applicant was found responsible for over- charging Rs 248/- from the decoy passenger and one co-passenger for two tickets in Sleeper class from Vindhyachal-Itarsi against due fare of Rs.252/- for two tickets as difference of one second class Mail Express and second class Sleeper, which was duly recovered from the applicant's government cash. The second charge alleges that the applicant is responsible for having an excess of Rs.452/- in his Page 2 of 13 O.A.No. 200/00219/2011 government cash as deducted at the time of vigilance check. Further the Article No.3 deals with the allegations that while returning from MGS to Headquarters, Jabalpur, he has not declared the private cash. Immediately after issuance of aforesaid Charge Memorandum, applicant has been transferred to Bhopal Division in the same Grade and after receiving the Charge Memorandum, he denied the charges leveled against him. The departmental enquiry was initiated wherein Shri K.K. Shrivastava was appointed as Enquiry Officer. Shri Rammurthy, who was Vigilance Inspector earlier and a nominee of the Vigilance Organization, was appointed as Presenting Officer in the case by the Disciplinary Authority under the dictates of Vigilance Organization. The applicant has also nominated Shri G.N. Kumar, retired O.S., Jabalpur as a Defence Assistant. The enquiry was conducted by the respondents in which decoy passenger and the independent witness gave contradictory statement (Annexure A/5) and in fact gave witness in favour of applicant but still without appreciating these aspects, P.O./I.O. bent upon proving the charges proceeded against the applicant. The inquiry took place and finally concluded on 30.04.2009. On conclusion of the enquiry, the Enquiry Officer submitted his report. As per findings of the report of Enquiry Officer, all the three charges as leveled against the applicant in the Charge Memorandum were substantiated and proved. The inquiry Page 3 of 13 O.A.No. 200/00219/2011 officer did not consider the substantial evidence and the evidences adduced during the course of the enquiry specially the decoy passenger. In the deposition, during the course of inquiry, the decoy passenger (SW-4) deposed that "C.E. demanded an amount of 500/- from me, I gave him currency note of Rs. 500/-, the C.E. issued receipt and the Charged Employee took the balance amount on his hand to return me." During that moment, SW-4 has given signal to the Vigilance Team along with 5/6 RPF personnel have snatched an amount of Rs. 248/- and the applicant was humiliated at that time as a culprit. Further, no concrete evidence with the conversation of charging an excess amount of Rs.248/- was adduced during the departmental enquiry but still the Enquiry Officer held the applicant guilty for all the three charges. During these proceedings, applicant also produced defence document nos. 1, 2 & 3, which were not taken into consideration by the Enquiry Officer. The defence document No.1 is a photocopy of register kept in CTI Office, Jabalpur whereby the applicant signed and declared his private cash Rs. 500/- as per the procedure. Further in defence document No.3, applicant has produced a photocopy of EFT No.H4884198 on the back of it, the applicant declared the private cash of Rs. 4152/- on 20.03.2008 before commencing his return duty by Train no. 9048 Ex Mugalsaray in Jabalpur. The Vigilance as well as concerned authorities, during the Page 4 of 13 O.A.No. 200/00219/2011 departmental enquiry, did not take care of these entries as has been made by the applicant and has been produced during departmental enquiry as defence documents. Further, all the charges are in a sequence wherein a controversy of excess amount of Rs 452/- and the declaration of private cash is involved. If all these documents were taken into consideration by the authorities then the result of the enquiry will definitely be affected. In the present case, the defence statement has been rejected outrightly. Under these circumstances, the departmental enquiry was concluded against the applicant and the Disciplinary Authority forwarded the copy of the Enquiry Report to the applicant vide his covering letter dated 12.06.2009 (Annexure А/7). After receiving the enquiry report, applicant gave a detailed objection to the enquiry report vide communication dated 29.06.2009. Still a harsh order of compulsory retirement has been passed by the Disciplinary Authority vide order dt 15.07.2009 (Annexure A/1). The applicant also preferred an Appeal to the respondent no. 3 but the same has also been dismissed vide Annexure-A/2. Being aggrieved by the aforesaid, applicant filed a detailed review to the Revisionary Authority, which was received in the office of Revisionary Authority on 30.12.2009 (Annexure- A/9). Review was also dismissed by the Revisionary Authority on 15.09.2010 (Annexure A/3). The various grounds highlighted in the Appeal/Revision have not been taken into Page 5 of 13 O.A.No. 200/00219/2011 consideration by the Appellate/ Revisionary Authority. Further, the Charge Memorandum was issued to the applicant at the behest of Vigilance Organization. The entire proceedings of the case were carried-out by the nominated officers on the specific and direct supervision of Vigilance Organization. The aforesaid factum that has came to the knowledge of the applicant under Right to Information Act, 2005 clearly reveals that one Shri Kartik Chouhan, the then Deputy Chief Vigilance Officer wrote a letter to the Senior Divisional Commercial Manager, Jabalpur vide his letter dt. 08.05.2005 directing the Senior Divisional Commercial Manager to issue a Charge memorandum for major penalty. The draft Charge Memorandum was also prepared by the Vigilance Officer and sent to the Deputy Chief Manager along with the letter dt.08.06.2008. Thus, as per the letter and the contention, a major penalty of compulsory retirement has been passed against the applicant.
3. In their reply, the respondents have submitted that on the basis of source information, a decoy check was planned by the vigilance wing of NCR between Vindhyanchal and Satna Stations. The applicant was manning the sleeper coach. The decoy passenger Shri Jodhpal Singh along with an independent witness Shri Laxman Singh approached the applicant with a request to allot two berths in sleeper coach upto Itarsi on the basis of II Mail/Express tickets. The Page 6 of 13 O.A.No. 200/00219/2011 applicant demanded Rs. 500/- and allotted the berth Nos. 9 & 10 in the sleeper coach. The applicant prepared an Excess Fare Ticket No. H.488420 for Rs. 252/-, but did not return balance amount of Rs. 248/- to the decoy passengers. The vigilance team present in the coach nabbed the applicant on the spot and recovered Rs. 452 excess from his possession. The applicant had also not declared his private cash while on duty. Vigilance team submitted its detailed report to the respondents for taking necessary action against the applicant. The disciplinary authority served the applicant a charge memorandum of major penalty dated 19.06.2023 (Annexure A/4). A regular departmental enquiry was conducted strictly under RS (D&A) rules 1968. All the three charges were proved. All the facilities under the rules were extended to the applicant. Disciplinary authority considered the entire enquiry report and defense taken by the applicant. With due application of mind punishment for compulsory retirement from service was imposed vide order dated 15.07.2009 (Annexure A/1). Appeal and Revision petition of the applicant were considered by the authorities and order of disciplinary authority was upheld by them as per Annexure A/2 & Annexure A/3.
4. This Tribunal has considered the matter and perused the documents annexed herewith the Original Application. The judgments Page 7 of 13 O.A.No. 200/00219/2011 relied upon by the counsel for the parties are also taken into consideration.
5. Learned counsel for the applicant argued that the applicant declared his private cash as Rs.500/- at the time of commencement of his duties on 20.03.2008 at CTI Office, Jabalpur as recorded in the register. Further, the applicant has also recorded his private cash of Rs.500/- on the back side of EFT H48847 before commencement of his duties on 20.03.2008 from Jabalpur to Mugalsaray in Train No.2045. Thereafter, again the private cash of Rs.452/- has been declared in the back side of EFT No.1488419 before commencement of his return duty from Mugalsaray to Jabalpur in Train No.9048 on 20.03.2008. That all these documents were produced as document nos 1, 2 & 3 as defence documents but during the enquiry, these important documents were ignored by the Enquiry Officer. If at all the enquiry has been conducted by taking into consideration these documents, then the result of the enquiry would be certainly affected. Further, if these documents were taken into consideration then there will be no substance in all the three charges as leveled against the applicant. In this regard, learned counsel for the applicant placed reliance on a judgment of Hon'ble Supreme Court in Civil Appeal No.8258 of 2009 decided on 31.01.2022. He has also relied upon the recent judgment of Hon'ble Supreme Court in Chatrapal vs. The State of Uttar Pradesh & Anr. decided on 15.02.2024 to say that Page 8 of 13 O.A.No. 200/00219/2011 the finding recorded by the Inquiry Officer is based on perverse finding and the same can always be interfered with by the Court of Law.
6. The charges against the applicant are that the applicant has not declared the private cash in the EFT book and the same was found excess by the vigilance team; and he was found responsible for overcharging Rs. 248/- from the decoy passengers, which was duly recovered from the government cash and also accepted by him in his written statement and also responsible for having excess of Rs. 452/- in his Govt. Cash as detected at the time of vigilance check. It is pertinent to mention that in reply to the charges, it was the specific stand of the applicant that he was returning the amount of Rs. 248/- to the decoy passenger, the vigilance team straightway came and forcefully caught hold of the applicant and the balance amount was snatched by the Vigilance Team with the help of 5-6 RPF Constables. In such circumstances, the applicant could not refund the aforesaid amount of Rs. 248/- to the decoy passenger.
7. We find from perusal of the inquiry report proceedings that Jodhpal Singh, SW-4, who had given the amount of Rs.500/- to the applicant was also listed as SW-4, during the course of enquiry, who has made the following statement during examination in chief:
"(A) Deposition of Shri Jodhpal Singh, Portar, Aligarh Jn., SW-4-.Page 9 of 13
O.A.No. 200/00219/2011 I was called from the training school Subedargarj. I was directed by my Master with the vigilance officials to accompany them. We reached Allahabad station and then to Mirzapur by train. Then we reached Vindhyanchal by road. At Vindhyanchal station, the vigilance officials gave me money and I purchased ticket for two passengers. We reached in the train 'Bhagalpur-Surat Exp.' And I Traced to the TTE (CE). The CE met us in the adjacent sleeper coach of AC coach. I procured reservation in sleeper class from the CE. CE demanded an amount of Rs. 500/- from me, I gave him a currency note of Rs. 500/-, the CE issued receipt and the charge employee took the balance amount on his hand to return me.
8. The statement of SW-4 clearly confirms the version of the applicant that he was going to give the balance amount on his hand to return and eventually the vigilance team captured him. It is also not the case of the vigilance that this amount was extorted by the applicant from the decoy passenger. The SW-4 has himself deposed that the applicant had already taken money in his hand to return it back. Regarding the charge No.2, it is evident from perusal of Annexure A-6, which is the copy of EFT book that the alleged amount of Rs.452/- has been duly disclosed by the applicant. This document was also produced during the course of enquiry. However, the Inquiry Officer has failed to consider this aspect and held the charge No.2 proved against the applicant. Surprisingly, for the very same charge, one more charge at Article No.3 has been levelled against the applicant just to elaborate the misconduct of the applicant. Thus the very basis of the charges ought not to have been substantively proved.
9. We are conscious of the fact that this Court cannot sit as an Appellate Authority over and above the decision of the Disciplinary Page 10 of 13 O.A.No. 200/00219/2011 Authority and also cannot re-appreciate the evidence adduced during the course of enquiry. But, at the same time, if the finding of guilt recorded by the Inquiry Officer is based on no evidence or the finding is perverse, this Court may exercise its power of judicial review. In the matter of Chatrapal (supra), the Hon'ble Apex Court has held that;
"12. It is trite law that ordinarily the findings recorded by the Inquiry officer should not be interfered by the appellate authority or by the writ court. However when the finding of guilt recorded by the Inquiry Officer is based on perverse finding the same can always be interfered as held in Union of India vs. P. Gunasekaran, State of Haryana vs. Rattan Singh and Chennai Metropolitan Water Supply and Sewerage Board vs. T.T. Murali Babu. In P. Gunasekaran (supra), the following has been held by this Court in para nos. 12 & 16:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant considerations; or extraneous Page 11 of 13 O.A.No. 200/00219/2011
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
(emphasis supplied)
10. In the present case also, it is a case of no evidence as the evidences and the documents produced during the enquiry do not support the charges and the conclusion arrived at by the Inquiry Officer is based on presumption only and not on the basis of any documentary evidence. It was also not the case of the prosecution that the unaccounted amount in the EFT, is an outcome of extortion from the decoy passenger and there was every reason to believe the explanation given by the applicant, which has also been supported by the State witness (SW-4). Thus, the Inquiry Officer has erred in finding the charges proved against the applicant. The submission of the respondents that the applicant has already admitted his guilt is also contended by the applicant that the admission of guilt was done when he was raided and overpowered by the vigilance team at that time. We also find that the applicant has preferred an exhaustive appeal before the Appellate Authority. However, the Appellate Authority has rejected the same mechanically, without adverting to the averments made in the appeal. The Revisionary Authority, which has rejected the revision Page 12 of 13 O.A.No. 200/00219/2011 petition of the applicant, has also not considered the grounds raised by the applicant in his revision petition. In these facts and circumstances of the case, we are of the considered view that it is a fit case to be remanded back to the authorities.
11. In the result, the Original Application is allowed and the impugned orders passed by all the authorities viz; Disciplinary Authority, Appellate Authority and the Revisionary Authority are quashed and set aside. The matter is remitted back to the Disciplinary Authority for fresh consideration in view of the observations made by us in the preceding paragraphs. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
VK/-
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