Patna High Court
B. S. Chaturvedi vs The Union Of India & Ors on 25 April, 2017
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12812 of 2016
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B. S. Chaturvedi, S/o Late R.B. Chaubey Ex-Senior Ticket Examiner, East Central
Railway, Patna (Bihar) R/o at and P.O. - Khirauli, Dist. - Buxar (Bihar).
.... .... Petitioner
Versus
1. Union of India, through the General Manager, East Central Railway, Hajipur,
Distt. - Vaishali.
2. The Chief Commercial Manager, East Central Railway, Hajipur, Distt. -
Vaishali.
3. The Divisional Railway Manager, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna.
4. The Additional Divisional Railway Manager, East Central Railway, Danapur,
P.O. - Khagaul, District - Patna.
5. The Senior Divisional Commercial Manager, East Central Railway, Danapur,
P.O. Khagaul, District - Patna.
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna.
7. The Divisional Financial Manager, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Awadh Bihari Ojha, Sr. Advocate
Mr. Nitesh Kumar, Advocate
Mr. Anand Vardhan, Advocate
For the Respondent/s : Mr. Shatrughna Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI)
Date: 25-04-2017
Petitioner was also the applicant before the Central
Administrative Tribunal, Panta Bench, Patna in O.A. No. 863/2013.
The Prayer made by the petitioner before the Tribunal is as under :
"[8.1] That Your Lordships may graciously be
pleased to quash and set aside the impugned part of
the order dated 16/29.03.2012 as contained in
Patna High Court CWJC No.12812 of 2016 dt.25-04-2017
2/10
AnnexureA/1 whereby the applicant has been
awarded punishment of reduction to lower post of
Senior Ticket Examination in Grade Pay of Rs. 2400
instead of retaining his status and Grade Pay of Rs.
4200.
[8.2] That Your Lordshps may further be pleased to
declare the Inquiry Report as contained in Annexure
A/6 as null, void and perverse and any order issued
on the basis of said inquiry report be quashed.
[8.3] That the respondents further be directed to
restore the status of the applicant as Deputy Chief
Inspector of ticket in the Grade Pay of Rs. 4200 with
effect from the date of imposing punishment of
compulsory retirement and difference of pay from
29.10.2010up to the date of superannuation be directed to release with arrears and interest thereupon.
[8.4] That the respondents be directed to grant all consequential benefits including revision of his entire pensionary benefits in the Grade Pay of Rs. 4200 instead of Rs. 2400 along with arrears and interest thereon.
[8.5] Any other relief or reliefs including the cost of the proceeding maybe allowed in favour of the applicant."
The Tribunal dismissed the OA holding that there was no infirmity and procedural lapse or violation of principles of natural justice in the disciplinary action taken against the applicant. Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 3/10 It also held that there are no grounds to interfere with the impugned order dated 16/29.03.2012 by which the order of punishment in revision was reduced from compulsory retirement to reduction to a lower post of Senior Ticket Examiner in grade pay of Rs. 2400/- instead of Rs. 4200/-
The origin to the present dispute arose on a so called vigilance check done on 6/7th March, 2007 in Train No. 2309 (Patna Rajdhani Express) which revealed so called presence of unauthorized passengers in AC coach, of which the petitioner was Travelling Ticket Examiner. The report of the vigilance that four persons were found travelling illegally formed the basis for initiation of a departmental proceeding. Despite the Enquiry Officer not finding the petitioner guilty in so many words, the disciplinary authority decided to impose punishment of compulsory retirement, which, later on in revision, was modified or replaced by the order of punishment of reduction to lower post of Senior Ticket Examiner. The effort of the petitioner to beget relief against the two punishments failed because the Tribunal felt that no violation of principles of natural justice or procedure has been committed by the authorities in award of punishment.
Learned Senior Counsel representing the petitioner submits that the Tribunal has committed a patent error of fact Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 4/10 and law, in holding that due procedure was followed, and, therefore, the order of punishment was a natural corollary, is a misnomer.
To get to the root of the matter, the counsel took the Court through the enquiry report, the statements of the various prosecution witnesses and sum essence of the outcome of the evidence, which is reflected in the concluding part of the report of the Enquiry Officer since it has a lot of significance to the present dispute. The Court would like to reproduce or extract part of the conclusions, which has been reached by the Enquiry Officer, which is as under :
"mijksDr ifjppkZvksa esa Li'V gS] fd la;qDr tk¡p jiV ¼vkj;wMh&4½ ds vkyksd esa dkspksa esa vfu;fer ;kf=;ksa ds mifLFkfr dks ysdj vfHk;kstu xokg rFkk dksVZ xokg ds }kjk Li'V fd, x, fLFkfr esa fojks/kkHkk'k gSA vfHk;kstu xokg tgk¡ ,d vksj cFkZ la[;k 43 ls 46 ij voS/k ;k=h gksus dh ckr dg jgs gS ogh dqN dksVZ xokgksa us ns[kk ugh] Jh vks>k us ns[kk rks fdl dksp esa ;g crk ldus esa vleFkZ jgsA pwafd vkj;wMh&4 esa ;g mYys[k fd;k x;k gS] fd voS/k ;k=h u fdjk;k nsus esa vleFkZrk izdV dh bl dkj.k eseks fn;k x;k] tcfd ;kf=;ksa dk u rks dksbZ c;ku vfHkys[k ij gS uk gh ,slk dksbZ ifjokn fd mUgksus vkjksih dks fdjk;k ns fn;k gS] blh dkj.k dksVZ xokg] dks cqykuk vko";d ns[krs gq, rFkk vkjksih ds ekax ij bls Lohdkj fd;k x;kA ftUgksusa voS/k ;k=h ds mifLFkfr ij gh iz"u fpUg [kM+k dj fn;k gSA ;gk¡ vkj;wMh&4 ds lanHkZ esa ;g iz"u vo"; mBrk gS] fd lrdZrk ny ftlesa dbZ Vh0Vh0bZ0 x.k Hkh Fks bu ;kf=;ksa dks D;ksa ugh pktZ djk;k x;k Fkk Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 5/10 fu;ekuqlkj dk;Zokgh dh xbZ ;g ,d xaHkhj iz"u gS rFkk tk¡p ij iz"u fpUg [kM+k djrk gSA ;gk¡ ;g Hkh KkrO; gS] fd cFkZ la[;k 44 ij ftls VuZ vij fn[kk;k x;k gS] dk ih0,u0vkj0 la[;k ogh gS] tks cFkZ la[;k 20 ,oa 21 ij ds ;k=h dk gS] tks VuZ vi gS rFkk cFkZ la[;k 46 vkj{k.k pkVZ ds vuqlkj gS gh ughA vr% lEHkkouk gS fd cFkZ la[;k 44 ,oa 46 ij dksbZ vfu;fer ;k=h u jgk gksA (emphasis supplied) ijUrq mijksDr lkjs rF;ksa ds ckotwn bl rF; dks utjvankt ugha fd;k tk ldrk fd dksp esa tk¡p ds le; vkjksih Hkh mifLFkr jgk gS vkSj mlus fcuk fdlh vkifÙk ds la;qDr tk¡p jiV ¼vkj;wMh & 4½ ij gLrk{kj fd;k x;k gS rFkk ;k=h dks fu;fer djus gsrq tkjh eseksa izkIr fd;kA vr% vkj0;w0Mh0&4 ds vkyksd esa ek= cFkZ la[;k 43 ,oa 45 ij voS/k ;k=h dh mifLFkfr dk vkjksi i`'V gksrk gSA tgk¡ rd cFkZ la[;k 44 ij lafnX/k izfof'V dk vkjksi gS] pwfa d cFkZ la[;k 44 ij ;k=k dj jgk ;k=h cFkZ la[;k 20 ,oa 22 ij ;k=k dj jgs ;k=h dk lgHkkxh gS rFkk og ,d gh ih0,u0vkj0 gS ,oa ;k=h mifLFkr gS fQj bldh lEHkkouk ugha fn[krh fd 44 ij og O;fDr ;k=k ugha dj jgk Fkk ;k izfof'V lafnX/k Fkh iwjs ekeys esa ;g dgk tk ldrk gS fd lrdZrk fujh{kd }kjk loZizFke la;qDr :Ik ls dksp esa dqy mifLFkr ;kf=;ksa dh fxurh dj mldk vkj{k.k pkVZ ls rqyuk fd;k tkrk rks bl izdkj ds fookn ls cpk tk ldrk FkkA (emphasis supplied) vRk% vkjksi dk vkaf"kd :Ik ls iqf'V gksrk gSA 7-00 & fu'd'kZ %& vfHk;kstu }kjk izLrqr lk{; ,oa lkf{k;ksa rFkk vkjksih }kjk izLrqr cpko ij dh xbZ mijksDr ppkZvksa ij fcuk fdlh iwokZxzg ds fopkj djus ij ;g fu'd'kZ fudyrk gS] fd vkjksih ds fo:} yxk;k x;k vkjksi vkaf"kd :Ik ls fl} gksrk gSA"
The evidence, in other words, do not support the allegation against the petitioner that there were unauthorized Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 6/10 passengers travelling in the train on the date of the vigilance raid. From enquiry it emerges that at the four berths on which the so called illegal passengers were travelling i.e. Berth No. 43 to Berth No. 46, it was found that there was no Berth No. 46 in the boggy, therefore, the number of unauthorized passengers get reduced to three in number. The further finding, which has emerged during course of enquiry, is that no unauthorized person was found actually travelling as no charges had been recovered from the unauthorized passengers, which was mandated to be done, if they were unauthorized. And to make it worse, it seems that with a common PNR there were three passengers, but they were found to be travelling on yet another berths 20 & 21. Therefore, the allegation of unauthorized passengers being allowed to travel vanishes and gets demolished in the detailed enquiry which was held against the petitioner. It was for this reason that the Enquiry Officer opines that it was much a do about nothing. If the list of passengers were tallied with the actual passengers, the whole controversy could have been easily avoided and there would have been no occasion to make a small issue into a big issue.
Yet another submission made on behalf of the petitioner is that there is an error committed by the Enquiry Officer when he has recorded his opinion that the charge is partially Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 7/10 proved, which in turn, is a contradiction in terms and more so what was found to be partially proved has been left delightfully vague by the Enquiry Officer. If these are the foundational facts and findings, the submission is that could it form the basis for imposition of punishment of compulsory retirement which has serious consequences for the employee and in turn his family. What was the basis for the disciplinary authority to come to a conclusion that the charges were established when the Enquiry Officer did not say so in so many words, in fact, his finding is otherwise.
It was not even one of those cases where there seems to be a difference of opinion, and, therefore, a notice of difference, with the material and evidence from which difference emerged was adopted before issuing the punishment order of compulsory retirement. If that is so, then it is the stand of the petitioner's counsel that the punishment becomes vulnerable in the eye of law. If the punishment of compulsory retirement itself becomes vulnerable then any order passed in furtherance thereto modifying the order of punishment by the revisional authority also becomes suspect in the eye of law.
Learned counsel representing the Railways with a vehemence submits that it was a case of acceptance of guilt, nothing much was required to be done and this vehemence emerges Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 8/10 from the so called memo of the vigilance team, a copy of which is at page 40 of the writ application and the same document has also been produced today by the counsel for the Railways. His interpretation given to the said document is that since this was received by the delinquent i.e. the petitioner, therefore, it is a kind of confession and acceptance of guilt. The Court, therefore, would like to reproduce the memo and the contents thereof, which is as under :
eseks vkt fnukad 07-03-2007 dks tk¡p ds nkSjku Train No. 2309 A/4 esa 44 , 45 , 46 , 43 ij dqy pkj unauthorized passengers ;k=k djrs gq, ik;s x;sA vr% vki Coach Conductor Shri R.S. Chaturvedi (T.S.) viuk Charging djok;sa ,oa viuk Li'Vhdj.k nsaA With due respect to learned counsel for the Railways, if his line of argument is accepted to be correct, then we shall be turning the law on its head. The memo issued by the vigilance team is only an allegation and the signature or acceptance, which is being harped upon, is nothing more than accepting a copy of the said memo. If that receiving was enough to prove the guilt of the petitioner, why did the Railway authorities go through the rigors of holding a detailed enquiry with dozens of witnesses to prove the case, which they have miserably failed to do ? Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 9/10 In the opinion of this Court, such an argument on behalf of the Railways is a desperate argument, not worthy of consideration because a memo of insinuation not even a charge-
sheet and acceptance thereof by the so called delinquent cannot be treated or labeled as confession or acceptance of guilt. The charges must stand or fail on the evidence which has come during course of enquiry and the Enquiry Officer despite all the hard work, which he had done, which is evident from reading the narration also fails to reach the conclusion of finding the petitioner to be guilty on the allegation in open and shut situation, regarding allowing unauthorized passengers.
If this is what emerges from the procedure which was held against the petitioner then with due respect even to the Central Administrative Tribunal their opinion that due procedure was followed and no natural justice was violated is a serious error committed on their part for the reason that they should have gone through the enquiry report and the findings which was reached by the Enquiry Officer which does not pronounce the petitioner to be guilty which necessitated severe punishment of compulsory retirement.
The Court, therefore, comes to a conclusion that serious prejudice has been caused to the petitioner by dismissal of Patna High Court CWJC No.12812 of 2016 dt.25-04-2017 10/10 his OA by the Tribunal and refusal of the Tribunal to interfere with the order of punishments passed by the disciplinary authority of compulsory retirement and then the punishment of modification by the revisional authority of reduction on post and pay.
Orders dated 29.10.2010 (Annexure-4), 29.04.2011 (Annexure-3) and 16.03.2012 (Annexure-2) are set aside. Order dated 09.05.2016, passed by the Central Administrative Tribunal, Patna Bench Patna too is set aside. Writ application is allowed.
(Ajay Kumar Tripathi, J) (Nilu Agrawal, J) Rajesh/-
AFR/NAFR AFR CAV DATE NA Uploading Date 28.04.2017 Transmission NA Date