Central Administrative Tribunal - Delhi
Shri Yashin Khan vs Union Of India & Others : Through on 7 August, 2008
Central Administrative Tribunal Principal Bench OA No. 406/2008 New Delhi this the 7th day of August, 2008 Honble Shri L.K. Joshi, Vice Chairman (A) Honble Shri Shanker Raju, Member (J) Shri Yashin Khan, S/o Shri Jumma Khan, Working as Parcel Porter, Under Northern Railway, New Delhi, R/o 395, Gali No.1, Kailash Nagar, GZB. -Applicant. (By Advocate: Shri Manjeet Singh Reen) -V E R S U S- Union of India & Others : Through 1. The General Manager, Northern Railway, Headquarters Office, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, State Entry Road, New Delhi. -Respondents. (By Advocate: Shri A.K. Srivastava) O R D E R Shri Shanker Raju, Member (J):
Applicant, a Parcel Porter, impugns respondents order dated 24.8.2007 wherein on a disciplinary proceeding, a major penalty of reduction of pay in the grade for a period of three years with cumulative effect has been imposed upon him. Also assailed is an order passed in appeal on 6.12.2007 upholding the punishment.
2. Applicant while working as Parcel Porter has been alleged to have demanded and accepted Rs.120/-, as illegal gratification on 22.10.2005 through Shri Suresh Kumar, an outsider for loading consignment in Kerala Express. The aforesaid allegations have been reported in the vigilance raid. A disciplinary proceeding was conducted by the Inquiry Officer wherein the charge of demand of Rs.120/- has not been established but the acceptance part was proved. Representation was made against the penalty, which culminates into a major penalty inflicted by the disciplinary authority against which an appeal when rejected gives rise to the present OA.
3. Learned counsel for the applicant, at the outset, states that the claim of the applicant in all four is covered by the decision of the Tribunal in Sanjay Sharma Vs Union of India & Ors.(OA-2090/2007) decided on 5.7.2008 wherein in a similar raid on Parcel Clerk on non-establishing on demand of illegal gratification and on violation of Paras 704 and 705 of the Vigilance Manual, the impugned orders have been set aside.
4. Leaned counsel would also contend that during the course of the disciplinary proceedings, no evidence has come forth to establish acceptance of Rs.120/- from the applicant insofar as the outsider has denied to have received Rs.120/- from him and even one of the raiding party members Shri Suresh Kumar had denied allegation. It has also stated that the evidence of Suresh Kumar S/o Shri Dharsan Singh Lal clearly stated that he did not contact the CO who has not demanded and accepted any amount from him.
5. Learned counsel would further contend that the disciplinary authority in its order merely on suspicion and surmises and even without establishing that the money recovered from outsider Suresh Kumar was the decoy money, on his ipsi dixit punished the applicant, which is a perverse finding.
6. It is stated that the appellate authority had not considered the contention put forth by the applicant in appeal and passed a non-speaking order, which according to the applicant is in violation of Rule 27 (2) of the Railway Servant (Disciple and Appeal) Rules, 1968.
7. On the other hand, the respondents counsels Shri A.K. Srivastava vehemently opposed the contentions and stated that documents whereby money has been recovered had been assigned by Suresh Kumar, which is a valid proof and in the inquiry, sufficient evidence has come forth to establish the guilt of the applicant. It is also stated that the penalty imposed is commensurate with the misconduct.
8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. As ruled by the Apex Court in Kuldeep Singh Vs. Commissioner of Police, JT 1998(6) SCC 603 that in the disciplinary proceedings taking the test of common reasonable prudent man, if the findings arrived at by the departmental authorities are founded on suspicion and surmises and on no evidence without disclosing any misconduct, the same are liable to be interfered and set aside.
10. In the vigilance raid, we do not find any association of Gazetted Officers, which has vitiated the raid and consequent orders passed in the disciplinary authority. The aforesaid view has been taken by the Apex Court in Sanjay Sharmas case with the following observations:-
23. Insofar as violation of Paras 704 and 705 of the Vigilance Manual is concerned, the decision of the Apex Court in Ratnams case as to the effect of provisions being directory, the following observations have been made by the Apex Court in Moni Shankers case:
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. 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 Court 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 : (2006) ) 3 SCC 276 and Coimbatore District Central Cooperative Bank vs. Coimbatore Distarict Central Cooperative Bank Employees Association and another : (2007) 4 SCC 669 2007.
16. We must also place on record that on certain, aspects even judicial review of fact is permissible. E v Secretary of State for the Home Department : [2004] 2 W.L.R. 1351.
17. We have been taken through the evidence of Shri S.B. Singh by Dr. Padia. Significantly the examination-in-chief was conducted by the Enquiry Officer himself. As the proceeding was for imposition of a major penalty, why the Presenting Officer, who must have been engaged by the department, did not examine the witness is beyond any comprehension. Even the minimum safeguard in regard to the manner in which examination-in-chief was conducted has not been preserved. The questions posed to him were leading questions. It is interesting to note that in answer to a question as to whether he had asked the appellant to return Rs.5/-, he not only answered in the negative but according to him the said statement was made by him as instructed by the Vigilance Inspector. He although proved Exhibits P/1 and P/2 which were written in English language but also stated that he did not know what had been written therein Strangely enough, the Enquiry Officer started reexamining him. Even in the re-examination he accepted that he could not read and write English.
18. The Enquiry Officer had put the following questions to the appellant:-
"Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the Enquiry?"
19. Such a question does not comply with Rule 9(21) of the Rules. What were the circumstances appearing against the appellant had not been disclosed.
20. The High Court, on the other hand, as indicated hereinbefore, proceeded to opine that the Tribunal committed a serious illegality in entering into the realm of evidence. It is permissible in law to look to the evidence for the purpose of ascertaining as to whether the statutory requirement had been complied with or not.
21. 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 re-appreciation 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 paragraphs 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 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 alongwith 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.
21. The High Court unfortunately even without any material on record held that some excess amount was found from the appellant which itself was sufficient to raise a presumption that it had been recovered from the decoy passenger. No such presumption could be raised. In any event there was no material brought on records by the department for drawing the said inference. The High Court itself was exercising the power of judicial review. It could not have drawn any presumption without there being any factual foundation therefor. It could not have taken judicial notice of a fact which did not come within the purview of Section 57 of the Indian Evidence Act.
22. We must also place on record that even Dr. Padia has taken us through the evidence of one of the witnesses.
23. The High Court has only noticed paragraph 704 of the Manual and not the paragraph 705 thereof. Paragraph 705 was very relevant and in any event both the provisions were required to be read together.
The High Court, thus, committed a serious error in not taking into consideration paragraph 705 of the Manual.
The approach of the High Court, in our opinion, was not entirely correct. If the safeguards are provided to avoid false implication of a railway employee, the procedures laid down therein could not have been given a complete go bye.
24. It is the High Court who posed unto itself a wrong question. The onus was not upon the appellant to prove any bias against the RPF, but it was for the department to establish that the charges levelled against the appellant.
25. The High Court also committed a serious error in opining that sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose for which the sub-rule has been framed is clear and unambiguous. The railway servant must get an opportunity to explain the circumstances appearing against him.
In this case he has been denied from the said opportunity.
26. The cumulative effect of the illegalities/irregularities were required to be taken into consideration to judge as to whether the departmental proceeding stood vitiated or not.
24. In our considered view, these instructions are to be substantively complied with even if not imperative. As no independent Gazetted officers have been associated as witnesses in the raid and coupled with the fact that there is absolutely no evidence to indicate demand of money by the applicant, it was more onerous for respondents to have associated independent witnesses and complied with the provisions of Paras 704 and 705. Dicta in Moni Shankers case (supra) applies in all fours to the present situation where irregularities vitiate the disciplinary proceeding.
11. Moreover, Apex Court in Narmada Prasad Yadav Vs. State of M.P., 2007(1) SCC (L&S) 592 in case of disciplinary proceeding where allegations are of demanding illegal gratification ruled that the allegations when not corroborated by adducing satisfactory evidence, the punishment is not sustainable.
12. From the perusal of the disciplinary proceedings, Shri Suresh Kumar, who is alleged to have received by passing the money from applicant has denied the allegations and another Suresh Kumar, who is one of the members of the raiding party has denied the statement recorded by the vigilance and has not supported the allegations.
13. Another witness Shri Mani Ram Singh did not depose anything against the applicant insofar as PW-4 is concerned, and stated that CO has not accepted any money and other witnesses have also denied the allegations. Inquiry officer on the basis of it by a categorical finding ruled that the demand of Rs.120/- from decoy by the applicant has not been established. Insofar as acceptance of money is concerned, only on the basis that the witnesses have been won over and gave contradictory statements and CO has not objected to the vigilance at the time of raid finding the defense of the applicant unreasonable, the charge has been established.
14. From the evidence brought on record and that too the evidence of Suresh Kumar, who has not only denied any demand or acceptance of money by the applicant has also ruled out the money recovered from him being decoy money. However, instead of proving the charge against the applicant, the disciplinary authority in its order concluded that the decoy money was recovered from Suresh Kumar but has not felt any need to establish that the recovered money was decoy money. In such view of the matter, in a case where the acceptance of the demand money has not been proved and the money recovered has not been proved to be the decoy money, even applying the test of common reasonable prudent man and also by applying the rule of preponderance of probability, the charge against the applicant has not been established by bringing satisfactory evidence on record. We have no hesitation to rule that the findings recorded at the departmental level are pervert based on suspicion and surmises and on no evidence. As this is a case of no misconduct against the applicant, the punishment imposed and affirmed cannot be sustained.
15. Insofar as appellate order is concerned, the appellate authority is mandated under Rule 27 of the Rules ibid to pass a reasoned order. The contentions put forth by the applicant in his appeal against the punishment have not at all been mentioned, discussed and also not controverted, which appellate authority is bound, as per the decision of the Apex Court in DFO Kothagudem Vs. Madhusudan, 2008(2) SCALE 322.
16. Resultantly, OA is allowed. Impugned orders are set aside. Consequences in law to ensue. No costs.
(Shanker Raju) (L.K. Joshi) Member (J) Vice Chairman (A) /lg/