Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through It S General ... on 22 November, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 22 day of November, 2010
Original Application No. 540 of 2009
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. S.N. Shukla, Member (A)
Ajay Kumar Aged about 48 years, S/o late Rajdeo Rai, R/o H.No.163 AY Section-2 Trivenipuram, A.D.A. Jhoonsi, District Allahabad.
.. Applicant
By Adv.:: Shri A. Srivastava
Shri Prateek Sinha
V E R S U S
1. Union of India through its General Manager North Eastern Railway, Gorakhpur.
2. The Chief Commercial Manager, North Eastern Railway, Gorakhpur.
3. Addl. Divisional Railway Manager, Varanasi.
4. Senior Divisional Commercial Manager, North Eastern Railway, Varanasi.
................... Respondents
By Adv.: Shri Anil Kumar
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-J) When pre-planned vigilance check is conducted, the procedure laid down in the Rules is to be strictly followed. The Manual itself administers a word of caution vide Para 307, wherein it has been clearly spelt out It is essential to follow the due procedure in cases of decoy checks. Procedural lapses enable the accused to get the benefit of doubt in the inquiry proceedings. Several cases of decoy checks have finally not resulted in the desired punishment on the employee because of these lapses. The instant case, which falls under vigilance check, has to be tested on the touchstone of the laid down procedure.
2. The brief facts of the case: The applicant, a commercial superintendent, who was, with a view to cope up with a large number of passengers waiting for buying train tickets, opened an additional counter at Siwan Railway Station, and performing the duties of the Booking Clerk at the material point of time (fourth quarter of 16.12.2006), was subjected to a vigilance check. One person from the Vigilance team purchased 5 tickets from Siwan to Jalandhar City and paid some money. In quick succession, another member of the team caught the hand of the applicant and stopped him from performing further function. A common note of the members of the vigilance team was prepared holding the applicant guilty of receiving some excess money from the decoy passenger (a member of the vigilance team) and the applicant denied the charge. The applicant was transferred as Commercial Superintendent on 20-12-2006 to Allahabad City Railway Station.
3. A charge sheet (Annexure A-4) was slapped upon the applicant on 26-02-2007 by respondent No. 4 and the same reads as under:-
Charge No.1. That the applicant has told the Fare from Siwan Jalandhar as a sum of Rs.214/- in place of Rs.204- to the decoy and demanded Rs.1070/- in place of Rs.1020/- for 5 Tickets and after receiving money issued 5 UTS Tickets bearing Sl. No.B25810800 to B25810804 and as such he has illegally charged extra Rs.50/- for a sum of Rs.10/- to the each ticket.
Charge No.2. That the applicant has been charged for having six un-cancelled ticket, 3 each for Siwan to Jaipur and Siwan to New Delhi for re-sale of the same.
Charge No.3. That the applicant has declared his personalmoney a sum of Rs.126/- however a sum of Rs.320/- has been recovered from the applicant, meaning thereby a sum of Rs.194/- illegal excess money recovered from the applicant which was deposited in MR. No.189619 in the account Railway Revenue.
Charge No.4. That the applicant has been charged that a total sum of Rs.50,287/- Govt. money has been recovered from the applicant, however according to the ITC No.B2810805 a sum of Rs.50,748/- should have been within the possession of the applicant and as such a deficiency of government money a sum of Rs.191/- has been found.
4. The charges were all denied by the applicant, vide Annexure A-5. While so denying, the applicant had also pointed out the legal lacuna in conducting the trap case vide rule 704 and 705 of the Vigilance manual 1980. Inquiry followed, and the applicant was given due opportunity for cross examination of all the witnesses (Para 4.15 of the O.A). The inquiry officer had held that the charges were not proved, vide Annexure A-9. However, disagreeing with the finding of the inquiry officer, the disciplinary authority had held that the charges remain proved, vide Annexure A-10 and the applicant was given 15 days time to make due representation with regard to the finding arrived at by the disciplinary authority. The applicant furnished his representation vide Annexure A-11. However, the disciplinary authority had passed the order of punishment imposing penalty of compulsory retirement, vide Annexure A-1 order dated 21-04-2008. The applicant filed an appeal against the same, vide Annexure A-12 dated 09-05-2008. The appeal was however rejected by the appellate authority, vide Annexure A-2 order dated 10-12-2008. The applicant filed a revision which too had been dismissed vide Annexure |A-3.order dated 23-03-2009. Thus, the applicant has challenged the three orders (Annexure A-1 to A-3) on various grounds as contained in para 5 of the O.A. which in nutshell are as under:-
(a) Failure on the part of the Reivisional authority and the appellate authority in properly considering the revision and appeal respectively.
(b) Violation of principles of natural justice, inasmuch as, the vigilance did not give any time even to count the cash tendered by the decoy passenger (one of the members of the vigilance team).
(c) Non following of the procedure meant for trap cases/vigilance check as per the Vigilance manual.
(d) Non following of the mandatory provisions of the inquiry proceedings.
(e) Manifest arbitrary action by the respondents at each stage.
(f) The findings were based on surmises and conjecture and not on actual evidence.
5. Respondents have contested the O.A. They have contended that the applicant had without any objection, signed the common note prepared by the vigilance team. It was further contended that the applicant had demanded Rs 214 per ticket from the decoy passenger instead of Rs 204 and also received the same amount of Rs 214 per ticket. As regards refunded tickets procedure is clear that the same should, on receipt for refund, have been cancelled by pen, which the applicant did not do. As regards non following of the vigilance manual, it has been contended that the Apex Court in the case of Commercial Manager, South Central Railway and others vs G. Ratnam (2007) 8 SCC 212 has held that the provisions are only guidelines and failure to follow the same strictly would not be fatal to such cases. The impugned orders are fully legal and valid.
6. The applicant has filed his rejoinder to the counter, reiterating his contentions as in the O.A. He had refuted the contentions of the respondents which are not in tandem with his contentions.
7. Counsel for the applicant argued that the entire actions of the respondents in conducting the vigilance check, conducting of inquiry etc., have all been vitiated due to non following of the procedure laid down in the Vigilance Manual and the Railway Servants (Disc & Appeal) Rules. He has further argued that this is a case of no evidence. The witnesses are interested witnesses and not independent witnesses. The Apex court has in the case of Moni Shankar vs Union of India2008 (3) SCC 484 clearly laid down the law relating to conducting of trap cases. None of the essential ingredients of the said procedure had been followed by the Respondents. Counsel also invited the attention of the Tribunal to the decision of the Ernakulam Bench {wherein one of us (the judicial member) has been a party to the order} in the case of K.J. Gandhi vs Union of India and others (2010 (1) CAT 319).
8. Counsel for the respondents invited our attention to Para 32 of the counter and argued that the vigilance check has been conducted strictly in accordance with the procedure laid down and even if there be any minor omission, G. Ratnam case comes to the rescue of the respondents.
9. Arguments were heard and documents perused. The primary aspect is whether the procedure as for trap case should be followed strictly and if not to what extent the procedure could be diluted. Counsel for the respondents has stated that the case of G. Ratnam (supra) is the decision by the Apex Court, as per which the procedure specified in trap case is only the guidelines. As to how far the same should be followed has been clearly explained by the Apex Court in the case of Moni Shankar (supra). The same is as under:-
10. We may at the outset notice that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in the Railway Manual. Paras 704 and 705 thereof read thus:
704. Traps.(i)-(iv) * * *
(v) When laying a trap, the following important points have to be kept in view:
(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the Department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are government employees and of other departments.
(e) After satisfying the above conditions, the investigating officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the SP, SPE, is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the SPE or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
(vi)-(vii) * * *
705. Departmental traps.For departmental traps, the following instructions in addition to those contained under Para 704 are to be followed:
(a) The investigating officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilised.
All employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or branch. The Head of Branch should detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action.
(b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the investigating officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the GC notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the GD notes to the decoy will be prepared for making over the GC notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and investigating officer/Inspector. The independent witnesses will take up position at such a place wherefrom they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the investigating officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
(c)-(d) * * *
11. The trap was laid by the members of the Railway Protection Force (RPF). It was a pre-arranged trap. It was, therefore, not a case which can be said to be an exceptional one where two gazetted officers as independent witnesses were not available.
12. Indisputably the decoy passenger was a constable of RPF. Only one Head Constable from the said organisation was deputed to witness the operation. The number of witnesses was, thus, not only one, in place of two but also was a non-gazetted officer. It was a pre-planned trap and thus even independent witnesses could have also been made available.
13. When the decoy passenger purchased the ticket, the Head Constable was at a distance of 30 metres. The booking counter was a busy one. It normally remains crowded. Before the enquiry officer, the said decoy passenger accepted that he had not counted the balance amount received from the appellant after buying the ticket. It was only half an hour later that the vigilance team arrived and searched the appellant.
14. While we say so we must place on record that this Court in Chief Commercial Manager, South Central Railway v. G. Ratnam1 opined that non-adherence to the instructions laid down in Paras 704 and 705 of the Vigilance Manual would not invalidate a departmental proceeding, stating:
17. We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
18. We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained.
15. It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the Department has been able to prove the charges against the delinquent official.
17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See State of U.P. v. Sheo Shanker Lal Srivastava and Coimbatore District Central Coop. Bank v. Employees Assn.) (emphasis supplied)
10. Vide Rule 307, the procedure for the departmental Trap case has been clearly explained as under:
307. Departmental Trap cases - Procedure & Guidelines:
307.1 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.
307.2 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.
307.3 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 a long while, he would face cross examination in the subsequent inquiry process and, he nce, should be willing to cooperate with the Vigilance till the very end.
307.4 In addition, the Investigating Officer/Inspector should immediately arrange one or more officials (gazetted or non-gezetted or a combination of gezetted & 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 witne ss a trap without sufficient reason can be construed as breach of duty, making the person liable to disciplinary action.
307.5 Proper execution of the trap is very important. The following important points should be kept in view:
(i) One or more responsible and impartial witness/witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification. This would squarely meet the likely defence of the accused that the money was actually received as a loan or something else.
(ii) The transaction should be within the sight and hearing of the independent witness/witnesses.
(iii) There should be an opportunity to catch the culprit red-handed immediately after the bribe money has changed hands so that the accused may not be able to get rid of it.
(iv) The witnesses selected should not have appeared as witnesses in earlier cases of the department. It is safer to take as witness a Government employee who belongs to some other department.
(v) It is preferable to take a written complaint from the decoy. The complainant must specifically give the name of the person receiving the money, motive for receipt, the actual amount, date, time and place of the transaction.
307.6 Prior to the trap, the decoy should present the money, which he will give to the target officer/employee as bribe money on demand. A memo should be prepared by the investigating officer/inspector in the presence of the independent witnesses and the decoy indicating the numbers of the Government Currency (GC) Notes for legal and illegal transactions. This memo should be signed by the decoy, independent witness/witnesses and the investigating officer/inspector. Another memo, for returning the GC notes to the decoy, should be prepared for paying the bribe to the delinquent employee on demand. This memo should also be signed by the decoy, witnesses and the investigating officer/inspector.
307.7 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.
307.8 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 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 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.
307.9 A site plan should also be prepared indicating the important features of the trap, namely, where the trap was laid, the position of witnesses, the delinquent official, the position of decoy and the relative distance from each other.
307.10 It is essential to follow the due procedure in cases of decoy checks. Procedural lapses enable the accused to get the benefit of doubt in the inquiry proceedings. Several cases of decoy checks have finally not resulted in the desired punishment on the employee because of these lapses.
307.11 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 disciplinary authority should not take up a position of misplaced sympathy for people who dont deserve it. If not, then the message that is conveyed to delinquent employees - present and potential - is that anything goes (sab chalta hai) and they can get away with just about anything. 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.
11. Be it Rule 307 or 704/705, the procedure specifies that there shall be disinterested independent witness, the conversation should have been clearly audible and heard by such independent witnesses, there must be a specific demand for money which should be heard by the independent witness and that such independent witness should be of gazetted or non gazetted status. The spirit behind the above is that the vigilance check should be a fool proof system so that the dishonest is caught red handed and after following the prescribed procedure duly punished. In order to avoid any personal feuds fouling the air, the witnesses should be independent and preferably from outside the same department. All such precautions have been taken so that there would be an impartial, unbiased trap. Further, the Apex court has also held that the Tribunal could well go into the evidence part to ascertain whether the evidence on its face value would prove the case with the standard of preponderance of probability. It is this aspect that has to be gone into in this case.
12. The Inquiry officer has held that none of the charges has been proved by the prosecution. This goes in favour of the applicant; however, the Disciplinary authority has come to a different conclusion, holding the applicant guilty of all charges. In such cases, the extent of judicial review that could be conducted is succinctly explained in the decision by the Apex Court in the case of State of Rajasthan v. M.C. Saxena, (1998) 3 SCC 385, the Apex Court has held as under:-
It is well settled that the Disciplinary Authority can disagree with the findings arrived at by the enquiring officer and act upon his own conclusion, but the only requirement is that the said Disciplinary Authority must record reasons for his disagreement with the findings of the Enquiry Officer. If the Disciplinary Authority gives reasons for disagreeing with the findings of the enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding.
13. Later in the case of Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739, the observation of the Apex Court 50. Having regard to the circumstances of this case, we are of the view that the Disciplinary Committee was wholly in error in disagreeing with the findings recorded by the enquiry officer and the charges levied against the appellant were not establishe would go to show that judicial review is permissible when ascertain whether the disciplinary authority is right in disagreeing with the findings recorded by the Inquiry Officer.
14. That there could be a judicial review in regard to the disagreeing note of the disciplinary authority to ascertain whether the minimum of the standard of proof is available in the evidence, is crystallized in a comparatively recent case of Moni Shankar v. Union of India,(2008) 3 SCC 484, wherein the Apex Court has held as under:-
23. Dr. Padia would submit that the jurisdiction of the Tribunal was limited and as some evidence was adduced, the Tribunal should not have interfered with the order of punishment imposed upon the appellant. The Tribunal was entitled to consider the question as to whether the evidence led by the Department was sufficient to arrive at a conclusion of guilt or otherwise of the delinquent officer. While reappreciation of evidence is not within the domain of the Tribunal, an absurd situation emanating from the statement of a witness can certainly be taken note of. The manner in which the trap was laid, witnessed by the Head Constable and the legality of enquiry proceeding were part of decision-making process and, thus, the Tribunal was entitled to consider the same. It was only for the aforementioned purpose that Paras 704 and 705 of the Manual have been invoked. It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not.
15. Referring to the above case of Moni Shankar, the Apex Court has in Roop Singh Negi v. Punjab National Bank,(2009) 2 SCC 570 also held as under:
A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
16. Thus, be it the finding of the Inquiry Officer or of the Disciplinary, the same has to be scanned through to ascertain that the findings are not perverse and are sufficient to arrive at a conclusion based, not on surmises or conjectures, but on at least pre-ponderance of probability. It is with the above decision in head and the rules in heart that the reasons afforded by the disciplinary authority in disagreeing with the findings of the Inquiry Authority has to be analyzed. It is made clear here that when we analyze the case, we do not go to the deposition or the evidences part of the proceedings to arrive at our own conclusion, but confine ourselves only as to the findings arrived at by the Inquiry Authority and the Disciplinary authority to ascertain which of them would satisfy the minimum requirement of preponderance of probability. Nothing less; nothing else!
17. The Inquiry officer has rendered his finding as not proved with reference to all the charges and reasons have also been given with reference to deposition of the witnesses and documentary evidences. These have been negatived by the Disciplinary authority in his disagreement note. While the inquiry authority has taken into consideration the evidence of the two independent witnesses, both of whom had admitted there was a large crowd (and consequently corresponding extent of noise) while the second independent witness stated that he could not hear the conversation between the applicant and the decoy passenger, the other had stated that he did not have any conversation with the applicant but could hear the conversation between the decoy passenger and the applicant. It is in regard to this witness that the inquiry officer had stated that since the counter is insulated with glass partition with only one small hole for a passenger to converse with the person inside the counter, the possibility of the witness who was only behind the decoy passenger to hear the full conversation amidst the noise is remote, and to gather strength in coming to this conclusion, the inquiry officer has taken into account the deposition of the second witness who had stated that he could not hear clearly the conversation between the decoy passenger and the applicant. Hence, the finding recorded was that the words of the first witness that he heard the conversation between the applicant and the decoy passenger cannot be true. While negativng the finding of the inquiry authority, the Disciplinary authority goes to hold that the witness Rajmani Tripathi was exactly behind the decoy passenger fMDok; ;k=h ds Bhd ihNs bl izdkj [kMs+ Fks fd og fMDok; ,oa cwfdax ckcw ds chp gks jgh ckrphr ,oa ysu&nsu dks Bhd izdkj ls ns[k ,oa lqu lds rFkk Lo;a Jh =hikBh us Hkh Mh0,0vkj0 tkWp dk;Zokgh esa ftjg ds nkSjku ;g crk;k gs fd fMDok; cqfdax ckcw ds chp gks jgh ckr phr dks lquk and hence had heard the conversation. The actual words of the said witness as could be seen from Annexure A-7 is, HkhM+ ds dkj.k] iwjk LiV ugha lquk FkkA. The Disciplinary authority thus has added the qualifying word, Bhd^^ to the word ihNs of his own. The disciplinary authority had not talked about as to how the second witness could not hear the conversation. Further, the Disciplinary authority had remarked, TkkWp vf/kdkjh igys ls gh ekufld :I ls vkjksih dks bldk ykHk nsus dks rS;kj Fks]. These would go to show that the Disciplinary authority has some predetermined decision which he translated in the form of disagreement to hold that the first charge is proved. This is certainly against the decisions of the Apex court in the case Moni Shankar and precedents thereto.
18. Coming to the second charge, here again, the report of the inquiry authority is sequential and cogent that when there was no train through the route of LBN/CNB/LKO on that day after 15.30 hours which was prior to the refund of the tickets, there is no question of issue of the self same tickets to any other passengers as there were no trains for that day for which these tickets could be re-issued. The cogent reasons given by the applicant that due to heavy rush, leading to the opening of new counter, the applicant had kept the six refunded tickets at a corner along with cancellation forms and the intention in retention of the tickets cannot be for the purpose of re-sale had been accepted by the Inquiry Officer. The disciplinary authority, on the other hand, disagreed with the findings of the Inquiry Officer to hold that it was the primary duty of the counter clerk to cancel in pencil the tickets so that the same could not be resold. As such, it could be safely presumed that the applicant had with the ill motive did not cancel the ticket. In this connection it is to be borne in mind that the preponderance of probability could be stretched to this extent that presumption could possibly be made that retention of such refunded tickets without cancellation is for resale which could be utilized by a passenger for travel. Such a presumption would be thrown out as absurd when there is no train in that route for that day after the tickets were refunded. Thus, no man of common prudence would come to a conclusion that in the retention of the refunded tickets, there was an intention of re-sale, when the said ticket cannot be resold on that day as there was no train for that day in which the said tickets could be used. Nor can that ticket would be utilized for the next day, as the ticket issued for one day would lose all its value after the expiry of that day. The disciplinary authority cannot be permitted to presume in the manner he had done.
19. Again, as regards the third charge, a comparison between the finding of the inquiry officer and that of the disciplinary authority would manifestly explain as to how the inquiry authority had analyzed and how the disciplinary has analyzed to disagree with the report of the inquiry officer. The inquiry authority was not wrong when he had opined that the least that the vigilance team could have asked the applicant at the time of trapping, as to how he happened to have extra cash beyond what was declared. The applicant could have given due explanation to the satisfaction of the vigilance team. This not having been done, the said charge cannot be held to be proved.
20. The last one is about the deficiency in the Railway cash available there was a short fall of Rs.191. If there is a shortage, under ordinary procedure, the railway servant in the counter is to account for the same and make good the difference for which provisions exist vide Rule710 of the commercial manual. This is the analysis of the inquiry officer, while the disciplinary authority overruled the same.
21. When the note of disagreement was struck and the applicant informed of the same, and when the applicant gave a representation within the stipulated time, it is the bounden duty of the disciplinary authority to take into account the same and arrive at a just conclusion. The phraseology used vide Rule 10(2) of the Railway Servants (D & A) rules, 1968 is shall consider the representation, if any submitted by the Railway Servant and record its findings before proceeding further in the matter as specified in sub-rules (3), (4) and (5). In the instant case, the penalty order nowhere mentions about consideration of the representation filed by the applicant after the copy of the inquiry report and the copy of the disagreement order of the disciplinary authority had been made available. The word consider has, in the context of disciplinary proceedings, been explained in the case of Divisional Personnel Officer, Southern Rly. v. T.R. Chellappan, (1976) 3 SCC 190, at page 201 :
The word consider merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge.
22. In a comparatively recent decision in the case of Bhikhubhai Vithlabhai Patel v. State of Gujarat,(2008) 4 SCC 144, the Apex court has held:
The term consider means to think over; it connotes that there should be active application of the mind. In other words the term consider postulates consideration of all the relevant aspects of the matter.
Vide Oriental Bank of Commerce v. Sunder Lal Jain,(2008) 2 SCC 280 Consider means to look at closely and carefully; to think or deliberate on; to take into account.
23. The term consider having been so explained, the least the disciplinary authority was to do was to closely and carefully look into the representation of the applicant and to think and deliberate on. And also to take into account the materials found in the representation to determine his final opinion. Unless such a drill is performed before arriving at the final finding, the purpose of making available the copy of the inquiry report and the points of disagreement is not served when the representation has not been considered. The exercise of supply of inquiry report cannot be reduced to a paper formality.
24. Again, the provisions of Rule 704/705 or for that matter 307 etc., are to be substantially followed, vide Moni Shankars case (supra) The procedure has been complied more in breach than in actuality.
25. The disciplinary authority has further stated in his point of disagreement as under:-
tkWp vf/kdkjh us tkWp fjiksVZ ds iSjk 6-07 es vkjksih ds ml cpko c;ku dk laKku fy;k gS ftlesa vkjksih us ;g dgk gS fd mlus lUnfHkZr frfFk dks yEch nwjh ds 132 fVdV csps Fks ftuesa 127 fVdVksa esa fu/kkZfjr fdjk;s ls vf/kd ysus dh fkdk;r fdlh vU; ;k=h us ugha fd;kA bl lEcU/k esa ;g mYYks[kuh; gS fd vkjksih ds fo:) blds iwoZ Hkh vf/kd /ku ysus dh fkdk;r lhoku LVsku ds tu ifjokn iqfLrdk ds iqB la[;k 10 fnukad 05-06-05 dks ntZ gS] rFkk bl lEcU/k esa LVsku v/kh{kd lhoku }kjk ;g mYYsk[k fd;k x;k gS fd Jh vt; dqekj] okf.kT; v/kh{kd&AA dk dk;Z iz.kkyh lUrksktud ugha gS budks iwoZ esa Hkh psrkouh nh tk pqdh gS ysfdu buds vUnj ifjoZru ugha gqvk gS ;g LVsku ,oa jsyos dh Nfo dks /kwfey dj jgsa gS tks bl ckr dk Lor% izek.k gS fd vkjksih ;kf=;ksa ls vf/kd /ku ysus ds vknrh gSA
26. The above fact which has contributed to the disagreement of the disciplinary authority is totally illegal as the same is not a part of the charge and this extraneous aspect cannot be permitted to arrive at a decision as to whether the applicant is guilty of the misconduct alleged in the charge sheet. Perhaps, such a past conduct could weigh at the time while deciding the extent of penalty to be awarded after a clear finding about the misconduct alleged but the same cannot form the base or a part of the base to arrive at a finding whether an employee is guilty of misconduct alleged.
27. To summarise, the serious legal lacunae in conducting the proceedings against the applicant in this case are
(a) Non following of the substantial extent of the procedure contained in the Vigilance manual;
(b) Disagreement of the disciplinary authority are based more on conjectures and surmised and ignoring the findings of the inquiry authority is on a pre-conceived notion that the inquiry authority has right from the beginning been intending to favour the applicant.
(C) The disciplinary authority has brought in extraneous matter in arriving at the very finding.
(d) The disciplinary authority has clean forgot to consider the representation of the applicant before arriving at the final findings.
28. In view of the above, in so far as the action on the part of the Disciplinary authority is concerned, the same is nowhere near the procedure prescribed. The penalty order of compulsory retirement is therefore, liable to be set aside. We do order so. Once the fundamental order becomes non est, other orders passed as consequence thereof, such as appellate or revision order also crumble down.
29. The O.A. thus succeeds. The applicant is deemed to be in service from the date of compulsory retirement till the date of reinstatement and thereafter. He is entitled to full pay and allowances and increment for the period he was off the service. The period of service shall also qualify for all other purposes. Order of reinstatement shall be passed within three months from the date of communication of this order while payment of arrears of pay and allowances shall be within three months thereafter.
(S.N. Shukla) (Dr. K.B.S. Rajan)
Member-A Member-J
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