Central Administrative Tribunal - Allahabad
Md. Mustafe Ansari vs Union Of India Through General Manager on 16 May, 2013
(Reserved on 05.03.2013) CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 16th day of May , 2013 ORIGINAL APPLICATION NO. 776 of 2010 HONBLE MR. JUSTICE S. S. TIWARI, MEMBER- J HONBLE MR. SHASHI PRAKASH, MEMBER-A Md. Mustafe Ansari, aged about 47 years, S/o Late M.D. Sirajuddin, presently posted as Assistant Station Master, N.E.R., Mathura. Applicant. V E R S U S 1. Union of India through General Manager, North Eastern Railway, Gorakhpur. 2. Chief Operating Manager /G.M (O), North Eastern Railway, Gorakhpur. 3. Divisional Railway Manager, North Eastern Railway, Varanasi. 4. Additional Divisional Railway Manager, North Eastern Railway, Varanasi. 5. Senior Divisional Operating Manager, North Eastern Railway, Varanasi. 6. Senior Divisional Personnel Officer, North Eastern Railway, Varanasi. . . . . . . . . . . . . Respondents Present for the Applicant: Sri K.K. Mishra Present for the Respondents: Sri P.N. Rai O R D E R
By Honble Mr. Shashi Prakash, AM By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the impugned orders dated 23.01.2006, 04.08.2006 and 28.12.2006 with further direction to the respondents to restore his original pay scale with all consequential benefits.
2. The facts of the case are that on 02.06.2004 the applicant was discharging the duty of Booking Clerk with Shri Manoj Kumar, Assistant Station Master when checking took place by the vigilance team. The applicant was charge sheeted on 29.02.2005 alleging therein that he charged Rs. 158/- for each ticket instead of Rs. 150/- from Madhaura to Bandil from Decoy and charged Rs. 790/- for five tickets instead of Rs. 750/- and thereby illegally charged Rs. 40/- for his personal gain. It is also alleged in the Charge Sheet that Rs. 31/- was also found less in the Govt. money (Annexure A-4). The applicant submitted his explanation on 02.04.2005 and denied the allegations. Thereafter an Inquiry Officer was appointed. It is alleged that the Inquiry Officer was a retired railway officer of Vigilance Department. The applicant submitted his defence brief on 18.07.2005 (Annexure A-6). In the defence brief the applicant has alleged that during the trap proceeding no independent witness was present. The Inquiry Officer submitted the inquiry report on 12.09.2005 (Annexure A-8). The applicant filed his reply to the inquiry report on 14.11.2005 (Annexure A-9). Thereafter based upon the inquiry report the Disciplinary Authority passed order dated 23.01.2006 (Annexure A-1). The order of Disciplinary Authority was upheld by the Appellate Authority vide order dated 04.08.2006 (Annexure A-2) and subsequently by the Reviewing Authority vide order dated 28.12.2006 (Annexure A-3).
3. In the present original application it has been averred on behalf of the applicant that the respondents had not applied their mind while passing the impugned order. It has been stated that before laying the vigilance trap organized by Vigilance Cell, a joint note was prepared by the members consisting of Chief Vigilance Inspector and Vigilance Peion which is totally violative of para 704 and 705 of Vigilance Manual. According to it, it was for the vigilance team to have included at least two gazzeted officers as independent witnesses. It has been stressed that the inquiry report dated 12.09.2005 is wholly arbitrary and perverse as all the prosecution witnesses belong to Vigilance department. All these facts have been explained by the applicant in his reply dated 14.11.2005 but the Respondent No. 5 without considering the points raised by the applicant in his reply had passed order dated 23.01.2006 (Annexure -1). It has been claimed on behalf of the applicant that for the same set of allegations Shri Manoj Kumar has been awarded lesser punishment of reduction in one stage for 12 months in same time scale of pay whereas, the applicant has been awarded sever punishment hence the action of the respondents is discriminatory, illegal, violative of rules provided in Vigilance Manual and without application of mind.
4. In the Counter Reply on behalf of the respondents it has been stated that on 02.06.2004, a decoy was sent by the Vigilance Team at the booking window and behind the decoy, an eye witness was also sent as hearer. In para 7 of the Counter Reply, it has been stated that the Vigilance Team in a planned manner, on receiving signal from the decoy made immediate enquiry of the cash and also prepared details of cash and sold tickets with the DTC Book. The statement of the applicant was also recorded wherein he admitted about receiving of Rs. 790/- towards 5 tickets. It is further stated that during the inquiry proceedings, the applicant was given full opportunity to be heard and to defend himself and ultimately the charges against the applicant were found fully proved as per the report of Inquiry Officer. Further, it has been stated that the penalty was imposed keeping in view the gravity of charges against the applicant. The Disciplinary Authority as well as the Appellate Authority and the Reviewing Authority had passed the impugned orders after careful thought and consideration of the material on record and hence there is no case for interference with these orders.
5. Heard learned counsel for both sides and perused the pleadings on record.
6. In his argument, learned counsel for the applicant primarily relied upon provisions of para 704 and 705 of the Railway Vigilance Manual (1996). These provisions relate to conduct of trap by the Vigilance Department. He contended that as per the provisions of these paragraphs two independent witnesses or two gazetted officers should remain present to witness the trap. In the present case, when the trap was made out, only officers of vigilance department were involved, which was not as per the provisions prescribed in the Manual, therefore, the exercise of trap carried out in this case is unsustainable in the eyes of law. In this regard, learned counsel for the applicant while referring to para 704 and 705 of the Vigilance Manual placed reliance upon a decision of Honble Apex Court in the case of Moni Shankar Vs. U.O.I & Ors 2008 (3) SCC 484. He also submitted that both the Appellate Order and Revisional Order are non-speaking and without application of mind. For this purpose he cited the cases of Ram Chander Vs. U.O.I & Ors 1986 ATC Vol. I page 47 and N.M. Arya Vs. United India Insurance Co. Ltd. and Ors. 2006 (4) SCC 713. For the foregoing reasons he urged that the impugned orders dated 23.01.2006 and subsequent Appellate and Revisional Orders dated 04.08.2006 and 28.12.2006 stood vitiated and are liable to be set aside.
7. On the other hand Shri P.N. Rai, learned counsel for the respondents argued that a perusal of inquiry report would indicate that the inquiry has been conducted as per the procedure and the inference of the facts of taking bribe was arrived at by the Inquiry Officer based upon the documents and the facts as emerging during the inquiry. He also went to submit that considering the gravity of charges the punishment of reduction from Rs. 6900/-to 6050/- placing him in the lower time scale i.e. from 5500-9000 to Rs. 5000-8000 for a period of three years was passed by the disciplinary authority. He also supported the orders passed by the Appellate Authority as well as Reviewing Authority stating that they were passed in accordance with statutory provisions.
8. We have considered the rival submissions.
9. The first point that needs to be considered in this case is whether following of the relevant instructions as contained in the Vigilance Manual are mandatory while carrying out the departmental trap (decoy check) and if they are, whether any deviation from the guidelines laid therein would vitiate the proceedings/inquiry conducted on the basis of finding of such decoy check. This question was initially examined by the Apex Court in the case of Chief Commercial Manager, South Central Railway Vs. G. Ratnam 2007 (8) SCC 212. The relevant para 18 of the said judgment is reproduced herein under : -
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.
10. This matter again came to be examined by the Honble Apex Court in the case of Moni Shankar Vs. U.O.I & Ors 2008 (3) SCC 484, where the order passed in the case of Chief Commercial Manager (Supra) was also considered and the court arrived at the view that that the instructions contained in para 704 and 705 of the Vigilance Manual require substantial compliance and cannot be ignored. Taking into account the ratio laid down in the case of Moni Shankar (Supra) it can be inferred that the departmental instruction cannot be by passed and there is a requirement of substantial compliance of these instructions. It needs also to be recognized that the objective behind issue of such instruction is to lend a certain measure of credence and fairness to the process of the departmental traps. It is also intended to safeguard the employees from element of arbitrariness in the process. In the circumstances we feel that in the face of existence of these instructions, the department cannot disregard adherence of the same.
11. The decoy check in this case was carried out on receipt of a complaint relating to issue of tickets by the Booking Clerks. Check was carried out in which one Shri Cholai, Vigilance Peon acted as a decoy and Shri Mahendra Kumar Pandey, Chief Vigilance Inspector (Traffic) was appointed as eye witness. The respondents have stated that on receipt of signal from the decoy the Vigilance Team entered the booking room, made an immediate inquiry and prepared details of cash as well as sold tickets. Though it has been stated by the respondents that the vigilance team entered the booking room on receipt of signal from the decoy , from the facts of the case, as stated in the charge sheet, it emerges that only two persons belonging to vigilance department were present at the site and carried out the inquiry. These two persons were Shri Cholai , who acted as an decoy and Shri Mahendra Kumar Pandey, Chief Vigilance Inspector (Traffic). Apart from these two persons, no other person have been named as being present at the time when the decoy check was made by the above named persons. It is also observed that in the charge sheet, out of five witnesses who have been mentioned, 4 of them belonged to Vigilance Department and the fifth one was Shri P.K. Gupta, who was the Station Superintendent, Madhaura Railway Station. It is also observed on the examination of the finding of the Inquiry Officer that the reliance has fundamentally been placed on deposition of witness No. 2 (Shri Cholai, Vigilance Peon) and 3 (Sri M. K. Pandey, Chief Vigilance Inspector (T)) as is evident from the Inquiry Report. Witness No. 4 and 5 appear to have been mainly corroborated the statement which had been given by the witness no. 2 and 3. So far as the deposition of Shri P.K. Gupta, Station Superintendent (Witness No. 1) is concerned, his statement is mainly in nature of reply to a cross question regarding occurrence of the shortages at the booking counter during transaction and does not indicate his presence at the time of decoy check.
12. From the facts narrated above it is evident that the above exercise was in nature of decoy check carried out by the vigilance and, therefore, falls within the category of departmental trap. The way such departmental trap are to be conducted are governed by the provision contained in para 705 of the Railway Vigilance Manual 1996, as applicable on the date of the check. The relevant provisions of para 705 of the Railway Vigilance Manual 1996 are reproduced below: -
705. Departmental traps. For departmental traps, the following instructions in addition to those contained in 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 utilize.
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(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 number 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. . . 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.
13. It is clear from the above provision that one of the important ingredient for conducting the decoy check is the presence of an independent witness at the time when such a check is conducted. It is also important to note that the memo indicating the number of GC notes for legal and illegal transaction requires to be signed by the independent witnesses alongwith investigating officer / Inspector. Further it is clearly indicated that the independent witnesses should act as an over hearer and should take up position at such a place wherefrom he can hear the conversation between the decoy and the delinquent. It is therefore, plain that to ensure that the decoy check is carried in an impartial manner, an important role has been assigned to an independent witness. In the circumstances, if such an independent witness is absent the impartiality and fairness of decoy check stands subject to question and impairs the creditability of the exercise.
15. From the record it clearly emerges that the decoy check was essentially conducted by the two persons i.e. Shri Shri Cholai, Vigilance Peon and Shri Mahendra Kumar Pandey, Chief Vigilance Inspector (Traffic), who were from the Vigilance Department. While in the Counter Reply, the respondents have mentioned that on receiving signal the vigilance team entered the booking room, there is no specific mention regarding the designation and the number of persons from vigilance team who are supposed to have entered in the booking room. In the absence of these details it may not be incorrect to presume that apart from the decoy and Chief Vigilance Inspector, no other person was involved in conducting that exercise. Even from the inquiry report, it appears that the Inquiry Officer mainly had relied upon the statement of two persons, who were associated with the check and the deposition of other two persons is mainly in the nature of corroboration of the statement of aforesaid persons. There is no mention about the presence of any independent witnesses as envisaged in para 704 and 705 of the Vigilance Manual. Based upon these facts it can be said that the manner in which the decoy check was conducted was at variance with the prescribed procedure and, therefore, stood vitiated.
16. In view of the above observations, non-presence of an independent witness, which is an important component of the provisions for conducting of a decoy check, the entire exercise is rendered void and any subsequent action against the applicant based upon the finding of the decoy check is liable to be set aside. Accordingly, the O.A is allowed. Since the exercise of decoy check has been held as invalid the impugned orders dated 23.01.2006, 04.08.2006 and 28.12.2006 are also quashed and set aside. The applicant would be entitled to the consequential benefits. No costs.
(Shashi Prakash) (Justice S.S. Tiwari)
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O.A No. 776/10