Central Administrative Tribunal - Jabalpur
Survesh Choubey vs M/O Railways on 2 May, 2024
O.A.No. 200/1094/2012
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/01094/2012
Jabalpur, this Thursday, the 2nd day of May, 2024
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Survesh Choubey, S/o Shri M P Choubey, aged about 33 years, R/o 15/1,
New Ram Nagar Adhartal Jabalpur (M.P.) 482001
-Applicant
(By Advocate - Shri Sapan Usrethe)
Versus
1. The Union of India, through General Manager, West Central Railway,
Indira Market, Jabalpur 482001
2. Divisional Commercial Manager, DRM Office, Jabalpur, West Central
Railway, Jabalpur 482001
3. Sr. Divisional Commercial Manager, DRM Office, Jabalpur, West
Central Railway, Jabalpur 482001
4. Additional Divisional Railway Manager, DRM Office, Jabalpur, West
Central Railway, Jabalpur 482001
- Respondents
(By Advocate- Smt. Ratna Pandey, proxy counsel for Shri N K
Mishra)
(Date of reserving order: 21.02.2024)
ORDER
By Kumar Rajesh Chandra, AM The Original application has been filed by the applicant being aggrieved by the order of punishment dated 02.08.2010 (Annexure A-3), whereby the punishment of reduction of pay of the applicant by one stage Page 1 of 11 O.A.No. 200/1094/2012 for a period of three years with cumulative effect was inflicted upon him. The applicant is also challenging the order of appellate authority dated 07.04.2011 (Annexure A-5) and the order of revisionary authority dated 26.09.2011 (Annexure A-7) affirming the order of the disciplinary authority.
2. Briefly, the case of the applicant as projected in the Original Application is that the applicant at the relevant point of time was working on the post of Head Train Ticket Examiner and was posted at Jabalpur. He was served with a charge sheet dated 13.02.2009 (Annexure A/1) under Rule 9 of Railway Servants (Discipline & Appeal) Rules 1968 levelling two charges against him. Thereafter, a departmental enquiry was initiated against the applicant. In rebuttal of the charges, the applicant submitted his defence statement before enquiry officer and thereafter evidences were adduced by the prosecution and the applicant to corroborate their assertions. After recording of the prosecution witnesses and the defence witnesses, a final enquiry report dated 7-2-2010 was submitted by the enquiry officer to the respondent No. 2, disciplinary authority for necessary action. After the submission of the enquiry report by the enquiry officer, the Disciplinary Authority vide the impugned order dated 02-08-2010 (Annexure A/3) imposed a punishment of reduction in the pay of the applicant by one stage for a period of three years with cumulative effect. Being aggrieved by the same the applicant preferred an appeal Page 2 of 11 O.A.No. 200/1094/2012 (Annexure A-4) before the respondent No.3. The appellate authority without going into the legality of the punishment order, dismissed the appeal of the applicant vide order dated 07.04.2011 (Annexure A/5). The applicant also filed revision before the respondent no. 4, but the same was also dismissed vide order dated 26.09.2011 (Annexure A/6).
3. The respondents have filed their reply, wherein it has been submitted by the respondents that at that time i.e. on 14/15-10-2008, the applicant was posted as Head TTE at Satna. While working as Hd. TTE on train No. 2186 from Rewa to Habibganj on 14/15-10.2008, the applicant was manning as conductor of sleeper Coach No S/5 & S/6 from Rewa to Habibganj. A preventive check was conducted by the vigilance team of West Central Railway on Train No. 2186 between Khurai station and Habibganj on 15. 10.2008. When the train reached Khurai Station, the vigilance team entered in the coach of the applicant asked the applicant if he had already checked his coaches properly and no transaction of cash is pending with the passengers. The vigilance team first checked the private cash and Govt. cash of the applicant and blocked the last page of excess fare ticket book. Thereafter the vigilance team checked both the sleeper coaches S/5 & S/6 manned by the applicant. During the preventive check following irregularities/ illegalities were found in the working of the applicant:-
Page 3 of 11
O.A.No. 200/1094/2012 (I) The applicant has declared his private cash Rs. 1400/- only but he produced Rs. 2951/- as his private cash .The applicant stated that out of Rs. 1400/- he had spent Rs. 19/- only in purchasing some biscuits and water bottle. Thus applicant had produced Rs. 1570/- excess in his private cash which was an unaccounted amount. Copy of the cash check memo dated 15.10.2008 is marked as ANNEXURE R-1 duly signed by the applicant.
(II) During the vigilance check as many as 5 irregular passengers were detected travelling without ticket/ with improper ticket in sleeper coaches S/5 and S/6 which were manned by the applicant and he failed to collect railway revenue from those passengers. An amount of Rs. 1820 was collected from those passengers when the vigilance check was conducted and the said amount was got collected in the EFT book of the applicant by the vigilance team.
The vigilance team submitted its report to the respondents with all relevant documents for initiating necessary departmental action against the applicant under the R.S. (D&A) Rules 1968. After receipt of the same, the applicant was served with a major penalty charge sheet dated 13.02.2009(Annexure A-1) by the Disciplinary Authority. Regular departmental enquiry was conducted under Rule 9 of the RS (D&A) Rules 1968. The applicant was given all reasonable opportunities to defend his case. The Inquiry Officer submitted his report along with complete (D&A) proceedings to the Disciplinary Authority. The Disciplinary Authority after going through the entire proceedings and reply to the show cause notice, imposed the penalty of reduction to one stage below in the Page 4 of 11 O.A.No. 200/1094/2012 same time scale for a period of three years with cumulative effect vide order dated 02.08.2010 ( Annexure A-3). The applicant submitted his appeal dated 21.09.2010 (Annexure A-4) to the Appellate Authority which was considered under rule 22 of the R.S. (D&A) Rules 1968 and Appellate Authority rejected the appeal by passing order dated 07.04.2011 (Annexure A-5). Not satisfied with the order of appellate authority, the applicant preferred Revision Petition before the competent Revising Authority on 02.06.2011 (Annexure A-6). The Revising Authority again considered the case of the applicant and passed order after going through the complete case file and the points raised in the Revision Petition. The revision petition was also dismissed being devoid of merits by order dated 26.09.2011 (Annexure A-7). The applicant has challenged impugned orders dated 02.08.2010, 07.04.2011 and 26.09.2011 passed by the Disciplinary, Appellate and Revising Authorities respectively. All the three orders are passed on the basis of evidence on record and passed with application of mind at every stage. A lenient view has been taken by the authorities by giving maximum advantage of benefit of doubt. Punishment of reduction in pay of the applicant by one stage below in the same time scale for a period of three years with cumulative effect has been imposed.
4. This Tribunal has considered the matter. The judgments as well as documents relied upon by the counsel for the parties are also taken into consideration.
Page 5 of 11
O.A.No. 200/1094/2012
5. Learned counsel for the applicant argued that the charge relating to not accounting Rs.1570/- during the vigilance check conducted on 15.10.2008 was clearly answered by the applicant as this amount was given to him by Shri Subodh Pahadiya at Sagour Station to handover to his brother at Habibganj. This fact has also been established during the course of enquiry as Shri Subodh Pahadiya was produced as defence witness. He also averred that the said amount could not be disclosed in the EFT book as the same was collected in Sagour Station and immediately the train departed from Sagour Station, a vigilance check was conducted in Khurai Station. Therefore, the applicant had no time to mention the alleged excess amount in the EFT book. Regarding charge No.2 that the applicant has not regularised the five unauthorised passengers travelling in S-5 & S-6 coach, learned counsel for the applicant submitted that those passengers were standing near toilet and not given any seat. Even in the enquiry itself, it was established that the train was vestibuled and no complaint was obtained from the passengers and no evidence was found for extortion of money by the applicant during the vigilance check. Therefore, he stated that it was a case of no evidence as the charges were proved on the basis of no documentary evidence. 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 Page 6 of 11 O.A.No. 200/1094/2012 Chatrapal vs. The State of Uttar Pradesh & Anr. decided on 15.02.2024 to say that 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 of Rs.1570/- in the EFT book and the same was found excess by the vigilance team; and he has not regularised five passengers travelling in S/5 and S/6 coach from whom the vigilance team has recovered the amount of Rs.1820/-. It is pertinent to mention that in reply to the charges, it was the specific stand of the applicant that the amount of Rs.1570/- was received by him in Saugor Station, which was given by relative of one of his friend to hand it over to his son, who was studying in Bhopal. Since this amount was received in Saugor Station and the vigilance check was conducted at Khurai Station, he had no time to mention this amount in EFT book. We find from perusal of the charge sheet that Shri Subodh Kumar Pahadia, who had given the amount of Rs.1570/- to the applicant was also listed as defence witness during the course of enquiry, who has made the following statement during examination in chief:
"(A) Deposition of Shri Subodh Pahadiya, S/o Santosh Pahadiya, R/o Sagar, DW 1.
Page 7 of 11
O.A.No. 200/1094/2012
1. mldk NksVk HkkbZ Hkksiky esa i<+rk gS ftldk uke foDdh igkfM+;k gS A mlds }kjk jkf= esa yxHkx 12%30 ij Qksu vk;k fd mls :-2000@& dh vko';drk gS A ml le; esjs ikl :-1570@& Fks ftls eSaus losZ'k pkScs dks Hkksiky Hkstokus dks fn;s A losZ'k pkScs us ;s :I;s viuh tsc esa j[k fy;k A mDr jkf'k mlus mlds fe= dqynhi ds lkeus nh Fkh A xkM+h vkus ls iwoZ mldh eqykdkr jkds'k xqIrk ls gqbZ ijarq og Hkksiky LVs'ku rd gh tk jgk Fkk A pwafd mls mDr jde gchcxat Hkstokuh Fkh vr% mlus vkjksfir deZpkjh tks fd dksp ds njokts ij [kM+s Fks] dks ns nh A ijarq] ;g jkf'k mlds HkkbZ dks izkIr u gksdj jsyos ,dkmaV esa tek gks xbZ gS A bl gsrq mlus jsyos esa vkosnu Hkh fd;k A"
7. The statement of DW-1 clearly confirms the version of the applicant and an affidavit was also filed by DW-1 in this regard that he had given the amount of Rs.1570/- to the applicant in Saugor Station. Thus, it can safely be assumed that there was bonafide reason not to disclose the said amount in the EFT book as the same was received between a mid station, i.e. Saugor Station and immediately after receiving the amount, a vigilance check was conducted. It is also not the case of the vigilance that this amount was extorted by the applicant from any of the passengers as both the prosecution witnesses Shri R.K. Barely, Chief Vigilance Inspector and Shri Gresicious Nazrath, Ex Chief Vigilance Inspector have deposed that no evidence was found for extortion of money by any of the passenger. The fact that those five passengers were not given any berth/seat was also substantiated during the course of enquiry and, thus, the second charge that the applicant has failed to collect Rs.1820/- from five irregular passengers also ought not to have been substantively proved.
8. We are conscious of the fact that this Court cannot sit as an Appellate Authority over and above the decision of the Disciplinary Page 8 of 11 O.A.No. 200/1094/2012 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 9 of 11 O.A.No. 200/1094/2012
(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)
9. 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 any of the passenger and there was every reason to believe with the explanation given by the applicant, which has also been supported by the defence witness (DW-1). Thus, the Inquiry Officer has erred in finding both the charges proved against the applicant. Similarly, the Disciplinary Authority, without appreciating the materials produced before it, had concluded the applicant guilty and imposed the major penalty. 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. Similar is the position in the order passed by the Revisionary Authority, which has rejected the Page 10 of 11 O.A.No. 200/1094/2012 revision petition of the applicant, without assigning any reason. 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.
10. 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/-
Page 11 of 11