Patna High Court
Arun Kumar vs The Union Of India & Ors on 5 February, 2018
Author: Nilu Agrawal
Bench: Ajay Kumar Tripathi, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14316 of 2017
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Arun Kumar Son of Late Bindeshwar Mahto, Head Travelling Ticket Examiner,
Now Ticket Examiner, East Central Railway, Muzaffarpur, District - Muzaffarpur
(Bihar).
.... .... Petitioner/s
Versus
1. The Union of India through the General Manager, East Central Railway,
Hajipur, District - Vaishali (Bihar).
2. The Chief Commercial Manager, East Central Railway, Hajipur, District -
Vaishali (Bihar).
3. The Divisional Railway Manager, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna (Bihar).
4. The Additional Divisional Railway Manager, East Central Railway, Danapur,
P.O. - Khagaul, District - Patna (Bihar).
5. The Senior Divisional Commercial Manager, East Central Railway, Danapur,
P.O. - Khagaul, District - Patna (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna (Bihar).
7. The Divisional Commercial Manager, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna (Bihar).
8. The Assistant Commercial Manager, East Central Railway, Danapur, P.O. -
Khagaul, District - Patna (Bihar).
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. M.P. Dixit, Advocate
Mr. S.K. Dixit, Advocate
Mr. Sanjay Kumar Chaubey, Advocate
Mrs. Swastika, Advocate
Mr. Shailendra Kumar, Advocate
Mr. Sunil Kumar, Advocate
For the Respondent/s : Mrs. Nivedita Nirvikar, Advocate
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
C.A.V. JUDGMENT
(Per: HONOURABLE JUSTICE SMT. NILU AGRAWAL)
Date: 05 -02-2018
Petitioner, who was the applicant before the Central
Administrative Tribunal, Circuit Bench at Ranchi, has assailed the
Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018
2/9
order dated 11.05.2017, passed in OA 957/2012. The petitioner had
prayed for the following reliefs before the Tribunal :
"8.1 That your Lordships may graciously be
pleased to quash and set aside the impugned
orders dated 17/24.05.2012, 16.01.2012 and
13.08.2010passed by Respondents No. 4, 5 and 7 respectively together with Charge-sheet dated 11.05.2007 issued by Respondent No. 8 as contained in Annexures-A/15, A/13, A/11 and A/1 respectively.
8.2 That the respondents be further directed to restore the pay and status of the applicant henceforth with all consequential benefits including arrears and interest.
8.3 Any other relief or reliefs including the cost of proceeding may be allowed in favour of the applicant."
2. The Tribunal dismissed the OA holding that there was no infirmity or procedural lapse and the disciplinary action taken against the applicant was not in violation of the principles of natural justice. It also held that the order dated 13.08.2010 imposing punishment of reduction to the initial stage of the next two lower grade for five years with cumulative effect, which was upheld in appeal and revision, requires no interference and not disproportionate to the misconduct.
Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 3/9
3. The present dispute was that while the petitioner was working as Head Travelling Ticket Examiner at Rajendra Nagar, Patna a so called vigilance check was done on 6/7.03.2007 in Train No. 2309 UP (Patna-New Delhi Rajdhani Express), which revealed the presence of some unauthorized passengers in AC coach. The report that seven persons were found travelling illegally formed the basis of initiation of a departmental proceeding. However, order of suspension was passed on 07.03.2007 under contemplation of a departmental enquiry and a major penalty (charge-sheet) was given on 11.05.2007. Thereafter the Vigilance Inspector was appointed as an Enquiry Officer who conducted the enquiry. Despite the Enquiry Officer not finding the petitioner guilty, as some of the charges were not proved, the Disciplinary Authority vide order dated 13.08.2010 awarded the punishment of reduction to the initial stage in next two lower grade for five years with cumulative effect, which was upheld by the appellate and the revisional authority vide orders dated 16.01.2012 and 17/24.05.2012.
4. Mr. M.P. Dixit, learned counsel appearing for the petitioner submits that the Tribunal has committed a patent error of fact and law in holding that due procedure was followed and considering the nature and gravity of misconduct, punishment was a natural outcome.
Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 4/9
5. It is further submitted on behalf of the petitioner that the Vigilance Inspector was appointed as the Enquiry Officer and since a vigilance team had conducted raid, outcome of the enquiry would profoundly be biased. In this regard, he refers to the judgment of the Hon'ble Supreme Court in the case of Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and others since reported in (2004) 2 SCC 65, especially paragraph 26 stating therein that since a vigilance team conducted the raid and the Enquiry Officer was a Vigilance Inspector, the decision would naturally be clouded with bias.
6. Counsel for the petitioner further draws attention to the Enquiry Report, the statement of the various prosecution witnesses and some essence of the outcome of the evidence, which is reflected in the statement of the prosecution witnesses and the opinion of the Enquiry Officer which has a lot of significance to the present dispute, which is reproduced hereinbelow :
"dksVZ xokg Jh la t; dqe kj flag us vius eq[ ; c;ku vkj;q ih& 22½ esa dksp esa tk¡p esa lg;ks x djuk Li'V fd;k gSA Jh falag us ftjg ds nkSjku Lo;a dks tk¡p esa vfu;fer ;k=h dk u feyuk Li'V fd;k gSA tgka rd eseks vkjksih dks nsus dk iz"u gS bl la ca/k esa iz"u 5 ds mRrj esa tkudkjh u gksuk Li'V fd;k gSA iz"u 11 esa iqu% vius le{k fdlh vfu;fer ;k=h dk u vkuk Li'V fd;k ogha iz"u 12 esa tYnhckth esa fcuk i<s+ vkj;w Mh 8 ij gLrk{kj djuk Li'V fd;k gSA dksVZ xokg Jh vkj- ds nkl us vius eq[ ; c;ku esa lrdZr k tkap esa lg;ks x fd;k tkuk Li'V fd;k gS rFkk ftjg esa Li'V fd;k fd mls dksb Z vfu;fer ;k=h ugh feykA iz"u 3 ds lUnHkZ esa vkj;qM h 8 ds en la [ ;k 1 Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 5/9 esa dqN iafDr;ka ckn esa tks M+k tkuk Li'V fd;k gS A foospuk %& mijksDr ls Li'V gS fd tgk¡ vfHk;kstu xokg dk ;g dFku gS fd dksp esa vfu;fer ;k=h Fks ogha dksVZ xokgksa esa ftUgksua s vkj;qM h&8 ij gLrk{kj Hkh fd;k gS esa ek= Jh vks>k gh ,s ls xokg gS tks vfu;fer ;k=h dh mifLFkfr jguk dgk gS gkykfda fof"k'V dks p Li'V dj ldus esa foQy jgsa gSaA ijarq tSl k dh vkjksi h dk o;ku gS "ks'k lkr ;k=h dh ckr NksM+ Hkh nh tk, rks ;g Li'V gS fd vkjks ih }kjk Lo;a dk bZ,QVh CykWd gksus ds ckn 6 ;kf=;ksa dks fu;fer fd;k x;k vr% vfu;fer ;k=h dksp esa u jgus ;k Lo;a gh fu;fer djus dh ckr Lohdkj ;ksX; ugh gSA la;qDr tkap fjiksV Z vkj;qM h&8 esa "ks'k ;kf=;ksa }kjk vkjks ih ds lUnHkZ esa fdlh izdkj dh f"kdk;r dh ppkZ ugha gS rFkk ;k=h ds c;ku ls Hkh ,s lk ifjyf{kr ugh gks jgk gS] fd mlus ;k=h dks vuqefr nh Fkh] ijUrq bl rF; dh vuns[ kh ugh dh tk ldrh fd vkjks ih usa la;qDr uksV ij gLrk{kj Hkh fd;k gS tks vfu;fer ;k=h dh mifLFkfr rFkk mlds fu;fer djus ds laca/ k esa gh gSA gkykafd lrdZr k ny ftuds lkFk dbZ VhVhbZ 0 Hkh Fks D;ksa ugh ;kf=;ksa dks fu;fer djk;k Fkk og dkSu ls dkj.k gS ftlds rgr ;kf=;ksa us fdjk;k nsu s esa vleFkZrk O;Dr dh ;g ,d ;{k iz"u gS fQj Hkh blls lEiw.kZ :Ik ls ;g ugh dgk tk ldrk fd vfu;ferrk ;k=h ugh FksA Tkgka rd vkj{k.k pkVZ ij bUVªh dk iz"u gS vkjksi h us Li'V fd;k gS fd og tk¡p ds ,ct esa fVd rFkk vuqi fLFkr ds ekeys esa ,uVh- nksuksa ntZ djrk gSA vkSj bls vekU; djus dk dksbZ dkj.k Hkh ugha gS vr% vkjksi h dk rdZ Lohdkj ;ksX; gS D;ksa fd vkjksi h us cpko lkjka"k esa Lo;a }kjk iwoZ esa iz ;qDr vkj{k.k pkVZ dh Nk;k iz fr Hkh layXu fd;k gS tks vkjksi h ds dFku dh i`f'V djrk gS vr% Hkzked bUVª h djus dk eqnnk iq'V ugh gksrk ijUrq vfu;fer ;k=h dk eqnnk fl} gksrk gSA foospuk %& mijksDr ifjppkZ ls Li'V gS fd vkj;wMh&7 esa rFkkdfFkr eseks Jh lqeu dqekj eqlrkuh@;krk }kjk rS;kj fd;k x;k gS rFkk Lo;a gh fcuk fdlh ds xokgh esa ;g vfHk;q fDr ntZ dh gS fd mijksDr eseks Jh ch-,l- prqZcnsZ h@Vh,l- ,oa Jh v:.k dqekj gsM VhVhbZ- @nkukiqj ugha fy;s o u gh dqN dkj.k crk;s A la;qDr tkap jiV esa O;oLFkk dh x;h fd mijkar dh iafDr dqN bl izd kj ntZ gS] tks bls la fnX/k cukrk gS rFkk bldh iq f'V dksVZ xokgksa }kjk Hkh ugh dh tk ldh gS A mYys[kuh; gS fd eseks ,oa bl izdkj dh iz fof'V ij fuf"pr:i ls i`'Bkad.k fdlh vU; xokg ls djk;k tkuk pkfg, FkkA gkyka fd vfHk;kstu xokgksa us bl eq}s dh iqf'V vius & vius c;ku esa dh gS ijUrq ;g fopkj.kh; gS fd mDr eseks fdls lacks f/kr gS rFkk mlesa fdldks D;k funs"Z k fn;k x;k gSA vkj;w Mh&7 Vh,l-@ 2309 vi dks lacks f/kr gS rFkk mUgsa ;g lwfpr fd;k x;k gS fd vkjksi h ds dksp esa dqN vfu;fer ;k=h gSA ftlesa vkjksi h us N% ;k=h dks fu;fer fd;k gS Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 6/9 tcfd vU; lkr ;k=h izH kkj nsus esa gS A vr% vkidksa ¼Vh0,l0 dks½ funs"Z k fn;k tkrk gS fd mUgsa pktZ djsa vkSj viuk Li'Vhdj.k mu vfu;fer ;kf=;ksa ds laUnHkZ esa nsAa vkj;wM h &07 Lo;a gh ;g n"kkZrk gS fd ;g vkjksi h ls laca f/kr ugh gS rFkk bls vkjksi h ds fy, cuk;k gh ugh x;k gS] vr% bls vkjksih }kjk u ysus dh ckr Lohdkj ;ksX; ugh gS [kkldj vkj;qM h &8 esa izfof'V ,oa dksVZ xokgksa ds Li'Vhdj.k ds vkyksd esa A ;fn tSl k fd vkj;qM h & 8 esa Jh prqonsZ h }okjk u ysus dh ckr Hkh dgh xbZ gS A blds fy, os ftEesokj gks ldrsa Fks]a u dh vkjksihA"
The evidence does not support the allegation against the petitioner that there were unauthorized passengers. Rather from the enquiry report, it is evident that six passengers were regularized by the petitioner and RUD-7 was not concerned with the petitioner. It is for this reason that some of the allegations were not found proved by the Enquiry Officer.
7. Another contention on behalf of the petitioner is that initial punishment order was passed by the Disciplinary Authority, who was lower in rank than the petitioner and not competent to pass the punishment order dated 31.03.2010, which was withdrawn and later same punishment order was passed by respondent no. 7, the Divisional Commercial Manager vide order dated 13.08.2010 imposing the same punishment without any application of mind, which has been affirmed by the appellate and the revisional authorities without any speaking order not based on relevant facts.
8. Learned counsel for the petitioner further brings to the Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 7/9 notice the order dated 25.04.2017, passed in C.W.J.C. No. 12812 of 2016 in the case of one B.S. Chaturvedi, Travelling Ticket Examiner, who was present with the present petitioner on the said vigilance inspection date in the said coach, against whom departmental proceeding was conducted for the same cause and punishment imposed, wherein this Court has set aside the punishment order passed by the disciplinary, appellate and the revisional authority holding that there was violation of principles of natural justice and that serious prejudice has been caused to the petitioner as the Enquiry Officer did not find most of the charges proved and there was no basis for the disciplinary authority to impose order of punishment as what had emerged during course of enquiry was that there was no unauthorized person found actually travelling and no charges had been recovered from the unauthorized passengers, which was mandated to be done if they were unauthorized.
9. Mrs. Nivedita Nirvikar, learned counsel representing the Railways submits that the petitioner was the Head Travelling Ticket Examiner and in spite of issuance of memo by the vigilance team the petitioner refused to accept the memo. She submits that unauthorized passengers were found travelling by the vigilance team and the enquiry was conducted against the petitioner for such misconduct after following due procedure and principles of natural Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 8/9 justice. It is also submitted that the case of B.S. Chaturvedi, Travelling Ticket Examiner is different from the present case as the petitioner was the Head T.T.E. and charges against B.S. Chaturvedi, T.T.E. was partly proved.
10. In the opinion of this Court, charges were framed against the petitioner, Head T.T.E. and B.S. Chaturvedi, T.T.E., who were accused for the same case arising out of same transaction and in both the cases some of the charges were not proved by the Enquiry Officer appointed against both the delinquents. If unauthorized passengers were not found proved, rather there were no unauthorized passengers, as opined by the Enquiry Officer in its enquiry report in the case of B.S. Chaturvedi, T.T.E., how can it be proved in the case of the petitioner during enquiry by the Enquiry Officer, as those unauthorized passengers would not appear in the case of the petitioner and disappear in the case of another delinquent. Even the witnesses have not supported the presence of unauthorized passengers, which reveals from the extract hereinabove of the enquiry report.
11. So far as non-receiving of memo issued by the vigilance team by the petitioner is concerned, it would not be a ground enough to prove the guilt of the petitioner, more so, when the railway authorities had undergone the rigors of holding a detailed enquiry with dozens of witnesses to prove the case, which they miserably Patna High Court CWJC No.14316 of 2017 dt. 05 -02-2018 9/9 failed to do.
12. We would not like to go into the other issues as the crux of the allegation was of unauthorized passengers travelling in the said coach, which was not proved during course of enquiry. Thus, the entire disciplinary proceeding crumbles.
13. This Court comes to the conclusion that the order of the Tribunal that due procedure was followed, principles of natural justice was followed and no irregularity noticed in the order of the disciplinary, appellate and the revisional authority is a serious error committed on their part. Thus, the order of the Tribunal dated 11.05.2017, passed in OA 957/12 is set aside. In consequence thereof, punishment order dated 13.08.2010 (Annexure-19), appellate order dated 16.01.2012 (Annexure-22) and revisional order dated 17/24.05.2012 (Annexure-24) are also quashed.
14. Writ application is, accordingly, allowed.
(Nilu Agrawal, J) A Agree Ajay Kumar Tripathi, J (Ajay Kumar Tripathi, J) Rajesh/-
AFR/NAFR NAFR CAV DATE 08.01.2018 Uploading Date 05.02.2018 Transmission NA Date