Central Administrative Tribunal - Delhi
Hari Ram vs Union Of India Through on 30 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.1562/2006 New Delhi, this the 30th day of January, 2009 HONBLE SHRI M. VENKATESWARA REDDY, MEMBER (J) HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A) Hari Ram S/o Sh. Prabhati R/o 1/3, Janta Flats, Padam Nagar Old RHS Road New Delhi. . Applicant (By Advocate: Shri Yogesh Sharma) Versus Union of India through The General Manager Northern Railway Baroda House New Delhi. The Chief Commercial Manager Northern Railway Baroda House New Delhi. (By Advocate: Shri Shailendra Tiwari) ORDER By Shri Shailendra Pandey, Member (A):
In this Original Application, the applicant has sought quashing of the order dated 28.1.2003 (Annex.A/1) vide which the punishment (penalty of reduction to two lower stage in same time scale, i.e., from the stage of Rs.4475/- to the stage of Rs.4305/- in the scale of Rs.3200-4900), was imposed on the applicant, the Appellate order dated 31.12.2004 (Annex.A/2) and the Revisional order dated 14.12.2005 (Annex.A/3), the charge sheet dt.25.6.2001 and the Enquiry Officers Report dated 24.9.2002, on the ground that the same are illegal, arbitrary and against the principles of natural justice.
2. The facts of the case in brief are that the applicant, while working as a Commercial Clerk (Booking Clerk) in Northern Railway, Bikaner Division, was issued a major penalty charge sheet on 25.06.2001 for the following:
that he demanded and accepted of Rs.300/- from the decoy passenger against the tariff fare of Rs.294/- for issue of two tickets of 2nd Mail/Express from DEE to ABU Road for his personal gain.
through out the check he adopted a non-cooperative attitude inasmuch as he did not sign.
despite charging Rs.6/- excess from the decoy and recovery of all the decoy money from the Government cash of Shri Hari Ram, he produced Government cash of Rs.6599/- against Rs.6602/- as per DTC Book, i.e, Rs.3/- short, which indicated that he created artificial shortage in cash to hide his misdeed of overcharging.
The inquiry officer submitted his report on 24.09.2002 and held that all the three charges stood proved. Against this, the applicant made a detailed representation on 05.11.2002. The disciplinary authority passed the punishment order dated 28.01.2003 imposing the penalty of reduction to two lower stages in the same time scale without postponing future increments. The applicant preferred an appeal dated 14.3.2003 (Annexure A/4) to the ADRM, Bikaner but the same was rejected vide Sr. Divisional Commercial Managers order dated 3.11.2003 (Annexure A/7). The applicant filed a revision petition dated 4.12.2003 (Annexure A/8) to the C.T.M., Northern Railway, New Delhi but the Sr. DCM, Northern Railway vide letter dated 31.08.2004 (Annexure A-9) informed the applicant that his appeal dated 14.03.2003 was sent to the DRM/Bikaner for disposing the same as the earlier decision taken had not been issued by the competent authority. Vide order dated 31.12.2004 (Annexure A/2), the appellate authority upheld the order of the disciplinary authority. A revision petition filed on 20.02.2005 by the applicant against the said appeal was also rejected vide order dated 14.12.2005 (Annexure A/3). Hence the present OA has been filed.
3. The main grounds on which the impugned orders have been challenged are as follows:
The impugned chargesheet being based on a vigilance trap, the procedure under paras 704 and 705 of the Indian Railway Vigilance Manual is mandatory but was not followed and, therefore, the entire proceedings stand vitiated. It is specifically alleged that two independent witnesses were not arranged nor was any Gazetted officer engaged as a witness.
The applicant had made a detailed representation but the disciplinary authority had failed to consider the same and has passed a non-speaking order without giving personal hearing to the applicant.
The said shortage of Rs.9/- (the total cash was Rs.6599/- whereas the sale proceeds of the tickets as per DTC Books came to Rs.6602/- reflecting shortage of Rs.3/- in the cash, which rose to Rs.9/- after counting of Rs.6 in the DTC book as left by the passenger of ABR uncollected from the counter which did not relate to the sale proceedings of the tickets) was paid by the applicant from his pocket on the spot and a remark to this effect was passed in the DTC Book as required in para 705/710 of the Indian Railway Commercial Manual Vol.I and, therefore, there is no misconduct on the part of the applicant in this regard.
Because, the decoy, Sh./B.R.Gupta gave three GC notes of Rs.100/- i.e. Rs.300/- on his own accord, to the applicant, demanding two II M/E tickets DEE to ABR, which cost Rs.294/- @ Rs.147/- each and as soon as the applicant placed the said tickets at the counter, after dating them in the machine, the said decoy picked up those tickets on his own and quickly left the counter without taking the balance of Rs.6/- from the applicant, and he did not come back to take back his balance ignoring the repeated shouts of the applicant and, therefore, there is no misconduct committed by the applicant and the charges are totally baseless and false.
Because, the EO conducted the inquiry in a biased manner without considering the statement of the witnesses who deposed in favour of the applicant and also did not consider the statement of the defence witnesses, which is illegal in the eyes of law.
Various other grounds such as copies of relied documents/statements of witnesses not being supplied, request for change of enquiry officer, refusal by the disciplinary authority for personal hearing etc. are mentioned in the OA - however, during the arguments, the applicants counsel stated that these were not being pressed.
4. The respondents, in their reply, have contested all these grounds and have stated that the disciplinary proceedings against the applicant were conducted in accordance with the rules and after following the procedure prescribed and the punishment was imposed based on documents available, statements of witnesses and after considering the applicants representation dated 5.11.2002 and that there is no legal infirmity in any of the orders that have been challenged.
5. It is further stated that para 704 of Indian Railway Vigilance Manual (IRVM) pertains to S.P./S.P.E. or local police trap cases whereas the subject case is a departmental trap case and, therefore, the aforesaid para of IRVM. is not applicable in departmental checks. It is further submitted that it has been clarified in the vigilance manual, 2006 para 307.4 that any gazetted/non-gazetted officials can be arranged as independent witness as per convenience.
6. The allegation of bias on the part of the inquiry officer is also denied. It is further stated that all the authorities concerned viz.; Disciplinary Authority/Appellate Authority and Revisional Authority have passed reasoned and speaking orders after consideration of all relevant aspects and documents.
7. In his rejoinder, the applicants counsel has reiterated the pleas taken in the OA.
8. We have heard the learned counsel for both the parties and have been through the pleadings on record.
9. At the very outset, we observe that grounds (c) and (d) tantamount to asking for re-appreciation of evidence and it is now well settled that a Tribunal/Court should not re-appreciate the evidence in disciplinary proceedings and as such no interference is warranted on this count. In support of this, we refer the case of the Apex Court in R.S.Saini v. State of Punjab & Ors., (1999) 8 SCC 90], wherein it was held as under:
16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the enquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The enquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.
In our view, the present case cannot be considered to be a case of `no evidence whatsoever which would warrant interference. As many as 8 witnesses including one who acted as an independent were examined by the inquiry officer before submission of his findings to the disciplinary authority.
10. As far as ground (e) is concerned, the applicant has not been able to satisfy us that the inquiry officer had acted with any bias in this case and as such no further discussion is necessary on this count.
11. A perusal of the impugned orders would also show that these are not non-speaking orders and have been issued after examination by the concerned authorities who have practical knowledge of the working of reservation and booking counters of Railway and that reasons have been given for their arriving at their respective conclusions.
12. We have thus to deal with the main ground urged by the applicants counsel viz.; that the procedure prescribed under Paras 704 and 705 of the Indian Railway Vigilance Manual is mandatory and that the impugned charge sheet has been issued without following the prescribed procedure and thus the entire proceedings in this case stand vitiated.
13. In order to appreciate the respective contentions of the learned counsel for the parties, we think it appropriate to refer to the relevant provisions of paragraphs 704 and 705 of the Indian Railways Vigilance Manual, which read as under:
"704. Traps.-
.
.
.
.
(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 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 where from 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) .
14. In support of his contention that following of the procedure prescribed in paras 704 and 705 is mandatory, the applicants counsel has relied on this Tribunal Judgement in OA 1997/2004 (K.K.Jatariya v. Union of India and Ors., decided on 21.09.2005), the Judgement of the Hyderabad Bench of this Tribunal in OA No.301/2001 (Abdul Salam vs. The Divisional Railway Manager, S.C.Railway, Guntakal & Ors., decided on 25.03.2003) and the judgement of a co-ordinate bench of this Tribunal in OA No.1350/2007 (Bhogi Ram v. Union of India & Others, decided on 14.05.2008). The Hyderabad Bench of this Tribunal in Sh. Abdul Salams case referred to the decision of a Division Bench Judgement of the High Court of Andhra Pradesh in W.P.Nos.1489/2002, 26165 and 25111/2001, dated 4.9.2002 which had held as under:
the provisions of paragraphs 704 and 705 of the Indian Railway Vigilance Manual are mandatory in nature and non-observance with the said mandatory guidelines vitiates the trap conducted and the penalty imposed by the disciplinary authority is liable to be set aside. Per contra, the learned counsel for the respondents has placed reliance on an Apex Court decision in the case of The Chief Commercial Manager, South Central Raiwlay, Secunderabad & Ors. vs. G. Ratnam & Ors., 2007 (8) SCC 212 (hereinafter referred as `Ratnams case), wherein after considering the facts and legal position their Lordships held with regard to legal aspects of paras 704 and 705 as follows:
24. On consideration of the foregoing facts and in the teeth of the legal aspect of the matter, we are of the view that the instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental proceedings initiated against the respondents on the basis of the complaints submitted by the investigating officers to the railway authorities. The instructions as contemplated under paragraphs 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers.
(emphasis supplied)
15. In a later case, in Moni Shanker vs. Union of India and Another, (2008 (1) AJW 479), the Apex Court had an occasion to consider again the legal status of Paras 704 and 705 wherein an extensive reference was made to the Judgement in G. Ratnams case (supra) also. After elaborate discussion the Apex Court held as under:
15. 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. .. .. ..
..It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance thereof 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 records for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not. In view of what has been held by the Apex Court in the above mentioned two decisions, we need not spend time in delving into the two coordinate bench decisions of this Tribunal as the Apex Court decision holds the field as the law of the land.
16. In the instant case, which is a departmental trap case, there were 8 witnesses from the Railway Protection Force and the Vigilance Branch. PW-I Shri Narpal Singh, ASI/RPF/DKZ acted as the independent witness. While the applicants counsel would contend that the witnesses being from the Railway Protection Force, their independence could be compromised, we are not inclined to agree in a case of this nature, i.e., in a departmental trap case, where there is advance planning based on complaints/information available, after which a decoy is arranged to check whether the charged official is actually over charging in respect of the Railway tickets sold by him. It is often difficult to arrange Gazetted Officers as independent witnesses for such purposes in view of the time involved in the actual execution of the `trap and the limited number of gazetted officers available at various stations and the availability of these officers at the relevant point of time. Keeping this in mind, there exists provision in para 705 (a) that in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilized. Further, this has also perhaps been the reason behind insertion of para 307.4 in the latest Vigilance Manual of 2006, which reads as under:
In addition, the Investigating Officer/Inspector should immediately arrange one or more officials (gazetted or non-gazetted or a combination of gazetted & non-gazetted) to act as independent witness/witnesses. Although, the instant case relates to a period before 2006, to which the provisions of Paras 704 and 705 of the earlier Vigilance Manual of 1996 would apply (as pointed out by the applicants counsel), the change in the Vigilance Manual of 2006 would suggest that it is not always possible to arrange a Gazetted Officer or an independent officer from outside and thus provision has been made for associating non-gazetted officers also. It is important to note, at this juncture, that the purpose of departmental decoy checks is to protect the public, namely, the passengers, from excess charging by the Railway staff and other such malpractices. What is of importance in such cases is to see whether the officials engaged as witnesses would have any reason to falsely implicate the official for reasons such as conflict of interest or personal enmity etc. In a departmental trap case of the type which is the subject matter of the OA, there is a little possibility of this happening and, if so, the charged officer is always at liberty to point out this. No averment to this effect has been made by the applicant in his OA. We are, therefore, of the view that non-compliance with the provisions of Paras 704 and 705 of the Vigilance Manual, in the instant case, would not by itself render the disciplinary proceedings in this case illegal.
17. The other main contention of the applicant in this case is that there is a shortage of only Rs.6/- and that the respondents should have overlooked this in terms of their own Circular No.19 MC/O/Policy/Pt.III dated 30.03.2006. The relevant portion of the said circular reads as under:
In continuation to this office letter No.177/MC/PNM/CPO/URMU/98, wherein it was decided to permit a small limit of Rs.30/- in shortage/excess of cash on hand for the staff working in computerized reservation office, it has now been decided to enhance this limit to Rs.100/-. This shall apply to all BPCs, BCs and PCs who are handing cash. The staff found in excess/shortage of cash on hand shall normally not be taken up until and unless there are other compelling reasons to believe irregular working of staff. This should however not become a regular feature in the working of the staff. (Emphasis supplied) It is seen that this circular clearly provides an exception in cases of irregular working of staff. The present case being a case of excess charging on account of issue of tickets would fall under the exception, and in view of this the applicant counsels contention that the shortage of Rs.6/- should have been overlooked in terms of this circular is not tenable.
18. In view of the above discussion, we are not inclined to interfere in this case and the OA is accordingly dismissed. No costs.
(Shailendra Pandey) (M.Venkateswara Reddy)
Member (A) Member (J)
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