Central Administrative Tribunal - Allahabad
U N Tiwari vs Union Of India on 10 September, 2025
O.A./250/2011
(Reserved on 02.09.2025)
Central Administrative Tribunal, Allahabad
Original Application No.250 of 2011
th
Pronounced on this the 10 Day of September, 2025.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Upendra Tiwari Son of Sri Bhirugnath Tiwari aged about 61 years R/o 55
Anand Bhavan Krishna Nagar Izzatnagar Bareilly
...........Applicant
By Advocate: Shri Vinod Kumar
Versus
1. Union of India through General Manager, North Eastern Railway,
Gorakhpur.
2. Chief Commercial Manager North Eastern Railway Gorakhpur
3. Senior Divisional Commercial Manager, North Eastern Railway,
Izzatnagar, District- Bareilly
4. Additional Divisional Railway Manager, North Eastern Railway,
Izzatnagar, District- Bareilly
5. Shri Narayan Prasad Srivastava (Inquiry Inspector), North Eastern
Railway, Gorakhpur.
6. V.P. Upadhyaya, Chief Vigilance Inspector in the Office of G.M.
(Vigilance) North Eastern Railway, Gorakhpur.
7. Shri M.K. Pandey, Chief Vigilance Inspector Chief Vigilance
Inspector in the Office of G.M. (Vigilance) North Eastern
Railway, Gorakhpur.
...Respondents
By Advocate: Shri Bashist Tiwari
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
MADHU KUMARI Page 1 of 24 O.A./250/2011 "(a) To issue an order or direction in the suitable nature Impugned Orders dated :-19.03.2007, 20.09.2007, 16/22.10.2007, 04.02.2010 & 08.11.2010 are enclosed herewith and marked as Annexure No. A-1, A-2, A-3, A-4 & A-5 respectively to this Original Application.
(b) To issue an order or direction in the suitable nature of mandamus commanding the respondents to pay the applicant all consequential benefits along with arrears of salary treating all the impugned orders including entire departmental proceedings null and void ab-initio with all consequential benefits along with market rate of interest.
(c) To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(d) To award the cost of the Application to the applicant."
2. Brief facts of the case are that the applicant joined as junior clerk in the office of Sr. Divisional Personnel Officer North Eastern Railway, Izzatnagar on 19.10.1970. His category was changed in the year 1978 and he was included in the Ticket Checking Branch under the same Railway Administration. When the applicant was posted at Kathgodam Railway Station as Conductor of Air Conditioned coaches, he was issued a major penalty memorandum dated 20.01.2006 in relation to an incident dated 04.09.2005. The charges leveled against the applicant were that he allegedly demanded and took Rs.50/- from decoy passenger for allowing him to travel without ticket between Rampur to Moradabad in AC II Coach of train No.5011 which was recovered from the cash available with the applicant and that the applicant did not co-operate in the inquiry process on the pretext of illness. The applicant submitted his reply to the aforesaid memorandum by means of representation dated 06.02.2006. Then respondent no.3 proceeded to appoint an inquiry officer which submitted its report on 09.01.2007 which was supplied to the applicant along MADHU KUMARI Page 2 of 24 O.A./250/2011 with a letter dated 16.01.2007. The applicant was held guilty of the charges in the report of the inquiry officer. The applicant submitted his reply to the same. Thereafter, respondent no.3 issued an order dated 19.03.2007 imposing the punishment of compulsory retirement upon the applicant.The applicant moved an appeal dated 08.05.2007 against the punishment order which was decided by respondent no.4 vide his order dated 20.09.2007 rejecting the same. The applicant filed a revision dated 01.11.2007 but the revisionary authority had exercised his suo moto authority and passed an order dated 16/22.10.2007 whereby it maintained the punishment of compulsory retirement against the applicant. After the applicant approached this Tribunal vide O.A./1137/2009, which was decided on 08.10.2009 with the direction to the respondents to decide the revision petition of the applicant, the respondent passed an order dated 04.02.2010. The applicant again approached this Tribunal through O.A.342/2010 in which vide order dated 15.03.2010, the order dated 04.02.2010 was quashed and the respondents were directed to decide the revision afresh. Then the respondent no.2 passed an order dated 08.11.2010 upholding the earlier orders passed by the same authority.
3. We have heard learned counsel for the parties.
4. Submission of learned counsel for the applicant is that on 04.09.2005, while working as conductor in II AC Coach in train No. 5014 Dn Ranikhet Express, in the Coach of the applicant, a few persons tried to enter without proper identification with an intention to travel and also introduced themselves as vigilance officers and started to exert undue pressure upon the applicant to allot at least 4 Berths in their favour and that too without endorsing their passes. The applicant refused to do so and he was threatened. Furthermore, they occupied a berth without permission of the applicant which was already allotted in favour of other passengers. They also demanded the applicant to show his private cash and the applicant produced the entire cash even though they did not disclose their proper identification. It is mentioned that MADHU KUMARI Page 3 of 24 O.A./250/2011 traveling staff have no separate arrangement for keeping Railway cash totally at a separate place from his private cash. No sooner had the applicant produced the cash in his possession than one passenger who had boarded the train from Rampur itself approached the applicant and requested him to get him accommodated on the berth booked in his favour. The applicant was under duty to guide a bonafide passenger to the berth which was allotted to him and till then the same was illegally and unauthorizedly occupied by a member of aforesaid Vigilance team. As soon as the attention of the applicant was diverted towards the aforesaid passenger, the Vigilance team managed to add Rs.50/- note in the cash of the applicant. The applicant objected but they didn't pay any attention. Learned counsel for the applicant submitted that the applicant reported the incident to the controlling officer by means of his representation dated 06.09.2005 leveling specific allegations against members of Vigilance team who were at that point of time identified as (1) Shri V.P. Upadhyaya , (2) Shri M.K. Pandey & (3) Shri Chaulai but when no action was taken, the applicant lodged a complaint case No.278/05 in the Court of A.C.J.M. II Bareilly.
5. Learned counsel for the applicant further argued that the baseless allegations were levelled against the applicant as the applicant never permitted any decoy passenger from Rampur to Moradabad nor he took any money as alleged rather the vigilance team on their own put Rs.50/- note along with the applicant's cash. He has further argued that there was no independent witness mentioned in Annexure iv of the memorandum dated 20.01.2006 and all persons mentioned in the memorandum were either members of the vigilance team or Railway Staff which was pointed out by the applicant during the inquiry with the request to produce independent witness but the request of the applicant was turned down. During the course of inquiry, the inquiry officer examined certain prosecution witnesses. The inquiry officer examined one Shri T.A. Khan, CTTI who was working as conductor IIIrd AC in the same train, who specifically admitted in his testimony that he MADHU KUMARI Page 4 of 24 O.A./250/2011 did not witness any incident as he reached on the spot very late. However Shri T.A. Khan admitted that the joint note was prepared at Moradabad Railway Station. In this regard a reference should be made to the statement given by Shri T.A. Khan dated 17.11.2005 which was wholly contradictory and did not match the story fabricated by the Vigilance Team. He further states that during the vigilance check, the vigilance team recorded the statement of one passenger namely Shri Manoj Kathuria but his statement was not recorded by the inquiry officer intentionally as the aforesaid passenger had submitted an affidavit before inquiry officer clearly stating that on the fateful day at around 12.00 hrs night while he was sleeping on his berth, the vigilance team got a statement signed without explaining the same. It is stated that the inquiry officer also did not appreciate any of the testimony made by the prosecution witness or defence witnesses. Learned counsel for the applicant further argued that the inquiry report dated 09.01.2007 is based on no evidence on record to prove that the joint note was prepared at Moradabad Railway Station instead of on the spot i.e. in the Train itself and applicant was never made a party to it and it was falsely alleged that the applicant refused to sign the same, as such, the joint note was prepared in violation of principles of natural justice. Learned counsel for the applicant states that the inquiry report dated 09.01.2007 also misread the evidence in as much as Sri Jaidev Gautam in his testimony admitted that he was manning the Coach No. S-5 of the same Train and the position of his Coach was tenth from engine but the inquiry officer disbelieved his statement on the ground that the position of S-5 was tenth from the applicant's coach and as such, it was not possible for him to reach applicant's coach. He states that the applicant also produced the coach wise position from Kathgodam Railway Station which demonstrates beyond any doubt that S-5 Coach was placed 2nd from the AC coach.
6. Learned counsel for the applicant has contended that the punishment order dated 19.03.2007 has been passed without considering the contentions of the applicant and his appeal and MADHU KUMARI Page 5 of 24 O.A./250/2011 revision have also been dismissed arbitrarily. It is further stated that the impugned revision order dated 08.11.2010 has been passed by respondent no.2 which is not a competent authority as would be clear from the fact that the Tribunal itself quashed its previous order dated 04.02.2010 observing that the revision petition has not been considered by a competent authority. It is also submitted that the entire disciplinary proceeding starting from issuance of major penalty memorandum dated 20.01.2006 have been conducted during pendency of Criminal proceedings against Respondent nos. 6 and 7 who are prosecution witness against the applicant in the departmental inquiry with a purpose to exert pressure and frame evidence in favour of respondent nos. 6 and 7. He argues that respondent no.2 has taken false plea in the order dated 08.11.2010 regarding non production of Shri Manoj Kathuria, the so called independent witness during the departmental inquiry and has also not given any justifiable reason because of which the inquiry officer was justified in not summoning the aforesaid witness in spite of repeated request by the applicant. It is next argued that even the inquiry officer was an inspector of the same vigilance office and had close links with respondent nos. 6 and 7. He has further contended that the statutory provision of manual rule was not followed by the vigilance team as 2 gazetted officers have not been included in the vigilance team which is mandatory as per para 405 and 407 of vigilance manual.
7. Submission of learned counsel for the respondents is that the order dated 19.03.2007 is perfectly valid and the same has been correctly approved by the Appellate Authority and Revisional Authority. He states that on 04.09.2005, while working as conductor in AC-2 coach in Train No.5014 Dn. Ranikhet Exp., a decoy check was conducted by the vigilance team and the applicant had demanded and taken Rs.50/- from decoy passenger for unauthorised journey from Rampur to Moradabad and the amount was found with the applicant. During the vigilance check, the applicant did not cooperate with the vigilance team. For this MADHU KUMARI Page 6 of 24 O.A./250/2011 the applicant was served with a major penalty memorandum on 20.01.2006. Under rules a conductor is bound to declare his private cash when he enters the coach and private cash should be kept separately from public money which is received during the course of his duty.
8. Learned counsel for the respondents states that the answer of Shri M.K Pandey during cross examination on 28.11.2006 clears that nobody had approached the applicant for booking any berth. Moreover, the cross examination sheet has been signed by the applicant without any objection alongwith Defence Counselor, Prosecution Witness and Inquiry officer. Hence, adding of Rs.50/- note in the cash of the applicant by the vigilance team is not accepted. Defence witness Shri Jai Dev Gautam in his statement dated 18.12.2006 has also mentioned nothing about mixing of Rs.50/-. It is argued that during decoy check when the applicant was caught, he knew that action will be taken by the administration, so he tried to defend himself by sending the representation dated 06.09.2005 with allegations on the vigilance team. Even before the representation was received in the office, the applicant was suspended on 13.09.2005, hence, no cognizance was taken on the representation of the applicant as it was a concocted story by the applicant. The court case filed by the applicant against the vigilance team is not related to this particular Discipline & Appeal Rule case.
9. It is further argued by learned counsel for the respondents that the charges leveled against the applicant have been proved by the inquiry officer after taking statements of witnesses, cross examination of witnesses and keeping in view all facts in mind. In Annexure IV of the memorandum only the names of the vigilance team as witnesses were mentioned. One independent witness named Shri Manoj Kathuria was also involved during the check and at the time of making the joint note. This joint note has been signed by all the members including independent witnesses except the applicant. Mostly the independent witnesses (other than MADHU KUMARI Page 7 of 24 O.A./250/2011 railway) avoid attending the inquiry and they cannot be forced to attend it. Moreover, on the request of the applicant, one defence witness named Shri Jai Dev Gautam, TTE/BC was allowed to attend the inquiry. Hence, it is incorrect to say that the request of the applicant was rejected by the inquiry officer. The affidavit submitted by Shri Manoj Kathuria is dated 20.01.2007 while the inquiry report was submitted on 09.01.2007. It is clear from the date of affidavit that this has been made after the inquiry proceedings with mutual understanding. Moreover, this affidavit has neither been enclosed along with the defence brief nor with the defence put up before the Disciplinary Authority. Joint note was not prepared at Moradabad but signatures of concerning inspectors/ staff were taken on prepared joint note en-route (between Rampur and Moradabad) except the applicant as the applicant refused to sign on the pretext of sickness. It is further stated that the Railway Vigilance Manual is not statutory in its character, as such, even if there is violation of this provision, punishment order cannot be set aside on this ground alone. It is pointed out that the conduct of the applicant is very serious for which the applicant is liable to be removed from service but he has been given punishment of compulsory retirement from service, as such, no interference is required in the facts and circumstances of this case.
10. In his rejoinder, learned counsel for the applicant has reiterated his arguments and submitted that the question of private cash is never involved in the present controversy and the cash of the applicant was never found in excess. The only question involved in the present case is whether the applicant has accepted or not the Rs.50/- note from a member of the vigilance team. He has further refuted the contentions of respondents and argued that they are merely misguiding the Tribunal. He argues that it is wrong to say that the joint note was not prepared in the parcel office at Moradabad station and that the prosecution witness Mr. T.A. Khan in his statement recording during the inquiry has himself admitted that the joint note was prepared in the parcel office at Moradabad MADHU KUMARI Page 8 of 24 O.A./250/2011 station. Further, it is argued that the affidavit submitted by Shri Manoj Kathuria (Annexure A-10) demonstrates that the date of swearing is 26.06.2006 and not 09.01.2007. He further argues that the respondents have wrongly claimed that the applicant should have been given a harsher punishment as in a good number of cases of proved illegal gratification such punishment as stoppage of increment for a few years is awarded. It is submitted that from bare perusal of the memo prepared by the vigilance team it shall be clearly revealed that there is the name of the independent witness namely Manoj Kathuriya, but during inquiry he was never called for examination, even on request made by the applicant. So far as the witness Nemchand Rajpoot as well as Tausif Ali Khan are concerned, they have not supported the alleged charges which have been leveled against the applicant. Since witness Shri Tausif Ali Khan gave his different statement before the vigilance team as well as before the enquiry officer, in regard to preparation of joint report by the vigilance team that has alleged to have prepared the joint report in running train itself, but the witness Shri Tausif Ali Khan during enquiry on 15.11.2006 categorically stated that it was prepared in the parcel office at Moradabad Station, whereas prior to that he alleged that the said report was prepared in the running train. He argues that the punishment as well as inquiry are based upon the independent witness Manoj Kathuriya, but he was never examined either by the enquiry officer or by the vigilance team itself, and the request of the applicant in this regard has already been declined by the inquiry officer on 28.11.2006, even though at every stage the name of Manoj Kathuriya has been used by the respondents department, while issuing the impugned punishment order against the applicant. It is further pointed out that the respondents department disbelieved the statement of defence witness namely Jaydev Gautam, who was produced on behalf of the applicant, and the inquiry officer did not give weightage upon his statement and arbitrarily proved the charges against the applicant, resulting in a harsh punishment passed by the disciplinary authority. He has argued that the punishment imposed MADHU KUMARI Page 9 of 24 O.A./250/2011 is disproportionate to the allegation of finding excess Rs.50/- note from the accused.
11. Learned counsel for the applicant has further placed reliance on the judgement of the Hon'ble Apex Court in the case of State of UP & Ors vs. Saroj Kumar Sinha Civil Appeal No.254 of 2008 decided on 02.02.2010 in support of his arguments. He has further referred to the case of Moni Shankar vs. Union of India and another (Civil Appeal No.1729 of 2008) [(2008) 3 Supreme Court Cases 484] decided by the Hon'ble Apex Court on 04.03.2008 and the case of Prakash Kumar Tandon vs. Union of India and ors Civil Appeal No. 7349 of 2008 [2009 (2) SCC 541] decided by the Hon'ble Apex court on 17.12.2008. He also placed reliance on the judgement of the Ernakulam Bench of this Tribunal in OA/850/2002 (K Satheesh Kumar Vs. Union of India & Ors) decided on 17.09.2009.
12. Learned counsel for the respondents has placed reliance on the judgement of this Tribunal in the O.A./1091/2010 (U.S. Awasthi vs. UOI & ors) decided on 12.03.2013.
13. We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record including the written submission of learned counsel for the applicant.
14. In the previous rounds of litigation, the applicant approached this Tribunal through O.A./1137/2009 and O.A./342/2010. In O.A./1137/2009, the relief sought by the applicant was to quash the impugned revision order dated 16/22.10.2007 and the impugned notification dated 30.11.2007 wherein the applicant was informed about the decision of the respondent to not entertain 'Review Petition' on merit and the another impugned consequential order dated 26.09.2008. The Tribunal vide its order dated 08.10.2009 passed in O.A./1137/2009, quashed the aforesaid impugned orders and direction was given to the Revisional Authority to decide the 'Revision Petition' on merit in accordance with law. Thereafter, in O.A./342/2010, the applicant has prayed MADHU KUMARI Page 10 of 24 O.A./250/2011 to quash the order dated 30.11.2007 passed by the Revisional Authority with respect to the Revision Preferred by the applicant on 01.11.2007. The Tribunal vide its order dated 15.03.2010 in O.A./342/2010, without entering into the merits of the case, had quashed the order dated 30.11.2007 and remitted the matter back to the respondents to decide the revision of the applicant afresh by a reasoned and speaking order meeting all the contentions raised by the applicant in his Revision Petition dated 01.11.2007. It has to be noted that nowhere, the Tribunal has made any comment on the competence of the Revisional Authority as has been argued by the applicant. Thereafter, on 08.11.2010, the revisional authority passed a speaking order dealing with all the points raised by the applicant.
15. The applicant has placed reliance on several case laws in favour of his arguments. In the case of State of UP & Ors vs. Saroj Kumar Sinha (supra), the Hon'ble Apex Court had come to the following conclusion:-
"38. In our opinion, the appellants have miserably failed to give any reasonable explanation as to why the documents have not been supplied to the respondent. The Division Bench of the High Court, therefore, very appropriately set aside the order of removal.
39. Taking into consideration the facts and circumstances of this case we have no hesitation in coming to the conclusion that the respondent had been denied a reasonable opportunity to defend himself the inquiry. We, therefore, have no reason to interfere with the judgment of the High Court."
In the present case, no issue of not having provided the required documents to the charged employee has been raised and proved substantially. Thus, the aforesaid case law has no application here.
16. In the case of Moni Shankar vs. Union of India and another (supra) relied upon by the applicant, the Hon'ble Apex Court has held as under:-
"...It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be MADHU KUMARI Page 11 of 24 O.A./250/2011 followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
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.
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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.
MADHU KUMARI Page 12 of 24 O.A./250/2011
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."
In the aforesaid case, while the point of executive instructions and guidelines not being legally binding has been agreed with, yet it has been held that violation of the same along with other irregularities need to be taken into consideration while deciding if the departmental proceedings have been vitiated or not. Thus, if no other violation of rules and procedures has been committed, a mere violation of executive instructions and guidelines which is not legally binding cannot be the ground for holding an inquiry to be vitiated. In OA/850/2002 which is also relied upon by the applicant, the Ernakulam Bench of this Tribunal has decided the matter based on the applicability of the law laid down in the Moni Shankar (supra) case.
17. In the case of Prakash Kumar Tandon vs. Union of India and ors (supra), on which the applicant has placed reliance, the Hon'ble Apex Court has opined as under:-
"14. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.
15. From the evidence of another Assistant Engineer who had taken part in the raid, it is evident that the alleged loss caused to the railways was negligible and mere marginal allowances are permitted for measurement of `scantlings and planks'.
16. In the aforementioned situation, we are of the opinion that the Tribunal as also the High Court cannot be said to have erred in holding that the said Mr. Walia should have been examined as a witness.
MADHU KUMARI Page 13 of 24 O.A./250/2011
17. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice.
18. In M.V. Bijlani v. Union of India & Ors. [(2006) 5 SCC 88], this Court has held :
"Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
19. If the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby.
20. In S.L. Kapoor v. Jagmohan & Ors. (1980) 4 SCC 379, this Court has held that non-compliance of the principles of natural justice itself causes prejudice. We are not oblivious of the fact that the said principle has since been watered down but in a situation of this nature, we are of the opinion that the concurrent findings of the Tribunal, as also the High Court cannot be said to be unreasonable or suffering from any legal infirmity warranting interference.
21. The appeal, therefore, is dismissed with costs. Counsel's fee assessed at Rs.10,000/-"
The applicant in the present case has also alleged that the inquiry officer was a member of the vigilance team but it should also be noted that the applicant has not agitated this fact during the inquiry proceedings itself demanding a change in the inquiry MADHU KUMARI Page 14 of 24 O.A./250/2011 officer. The fact of the inquiry officer belonging to the vigilance team has been brought up in this O.A. without much evidential backing about the alleged fact being prejudicial to his case. So far as calling the independent witness i.e. Shri Manoj Kathuria is concerned, the revisional order dated 08.11.2010 avers that the request of the applicant for calling Shri Manoj Kathuria, who was a passenger in Coach A-1 on berth no.1, as witness in the court during the inquiry proceedings, is up to the inquiry officer to accept or refuse. Even if the inquiry officer did not accept the request of the applicant for calling Shri Kathuria during the inquiry proceedings as a witness was turned down by the inquiry officer, the applicant was always at liberty for calling him as his defence witness.
18. Learned counsel for the respondents, on the other hand, has placed reliance on the judgement of this Tribunal in O.A./1091/2010 wherein it has been observed that in a case of procedural provisions, which is not of a mandatory character, the complaint of violation of the rules has to be examined from the standpoint of substantial compliance and the order passed in violation of such a provision can be set aside only where such violation has occasioned and prejudiced to the delinquent employee. The Tribunal has further made note of the observation made by the Hon'ble Apex Court in the case of 'Union of India vs. Parma Nanda in Civil Appeal No.1709 of 1988 and Special Leave Petition (Civil) No.6998 of 1988 Parma Nanda vs State of Haryana and others' which is that "The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with the principles of natural justice what MADHU KUMARI Page 15 of 24 O.A./250/2011 punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or of the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
19. As per the second provision in rule 6 of the Railway Servants (Disciplinary and Appeal), Rules, 1968 it is provided that in case of persons found guilty of **{possessing assets disproportionate to known sources of income or found guilty of} having accepted or having obtained from any person any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act, one of the penalties specified in clauses
(viii) (i.e. Removal from service which shall not be a disqualification for future employment under the Government or Railway Administration) or (ix) (i.e. Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or Railway Administration.) shall ordinarily be imposed and where such penalty is not imposed, the reasons therefor shall be recorded in writing. Thus, the argument of the applicant that the punishment of compulsory retirement from service for the charges proved against him is disproportionate is not convincing in the face of the rule provision in this regard.
20. Hon'ble Apex Court in the case of State of Karnataka and another Vs. N. Gangaraj decided on 14.2.2020 specifically held in para 15 that:-
"The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by MADHU KUMARI Page 16 of 24 O.A./250/2011 re-appreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in S. Sree Rama Rao and B.C. Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law. Accordingly, appeal is allowed and orders passed by the Tribunal and the High Court are set aside and the order of punishment imposed is restored."
21. The Hon'ble Apex Court in the case of Anil Kumar Upadhyay Vs. The Director General, SSB and others decided on 20.4.2022 has held in paragraph 8 as under:-
8. On the judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of this Court are required to be referred to:
i) In the case of Om Kumar (supra), this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as 'Wednesbury principles'.
In the Wednesbury case, (1948) 1 KB 223, it was observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.
ii) In the case of B.C. Chaturvedi (supra), in paragraph 18, this Court observed and held as under:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being factfinding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
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iii) In the case of Lucknow Kshetriya Gramin Bank (supra), in paragraph 19, it is observed and held as under:
"19. The principles discussed above can be summed up and summarized as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.
19.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.
19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court.
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."
22. In a catena of judgments by the Apex Court, it has been held that the judicial review in the disciplinary matters should not be in the form of re-appreciation of evidence. The Courts should only look at the correctness of process and not get into re-evaluation of evidence before the Inquiry Officer. The findings recorded by the Disciplinary Authority which are affirmed or diluted by the Appellate Authority/Revisional Authority should not be interfered with unless the applicant shows that the order is without jurisdiction; or that there is procedural irregularity in conducting MADHU KUMARI Page 18 of 24 O.A./250/2011 the enquiry. The Apex Court in the case of S.R.Tewari vs. Union of India 2013(7) Scale 417 has held as under:-
"The role of the court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice".
23. In a large number of cases including the case of Bank of India v.
Apurba Kumar Saha; (1994) 2 SCC 615, State Bank of India and Others v. Ramesh Dinkar Punde (2006) 7 SCC 212, State of Andhra Pradesh v. Sree Rama Rao; AIR 1963 SC 1723, Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup; AIR 1957 SC 82, State Bank of Bikaner and Jaipur v. Prabhu Dayal Graver, 1995(6) SCC (L&S) 279-1996(1) SLJ 145 (SC), Deokinandan Sharma v. UOI and Ors., 2000 SCC (L&S) 1079, State Bank of India vs. Ram Lal Bhaskar & Another (2011 STPL (web) 904) and Union of India & Ors. Vs. Raghubir Singh and another, CWP No. 1154/2014 decided on 06.05.2014 by Punjab and Haryana High Court, the underline theme is that the High Court/tribunal does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. They have to see whether there is violation of natural justice and fair play or any procedural irregularity committed by the inquiry officer, Disciplinary authority and due procedure was adopted strictly in accordance with the service rule.
24. The Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. 610 in paras 12, 13 & 20 has held as follows:-
MADHU KUMARI Page 19 of 24 O.A./250/2011 "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, re-
appreciating even the evidence before the enquiry officer. The finding on Charge no. 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 Article 226/227 of the Constitution of India, shall not venture into re- appreciation 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 or extraneous considerations;
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.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
MADHU KUMARI Page 20 of 24 O.A./250/2011 XX XX XX
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, blamelessness, sincerity, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
25. The Apex Court in the case of B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court/Tribunal are not competent and cannot appreciate the evidence. In this regard, the Apex Court has been pleased to observe as under:-
"The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986. The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.
Per Ramaswamy and Jeevan Reddy, JJ "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual MADHU KUMARI Page 21 of 24 O.A./250/2011 receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
26. In another case the Apex Court in the case of Union of India v.
Upendra Singh reported in 1994(3)SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."
27. The Apex Court has also observed in regard to scope of judicial review as well as in regard to the quantum of punishment in the MADHU KUMARI Page 22 of 24 O.A./250/2011 case of State of Rajasthan Vs. Md. Ayub Naaz reported in 2006 (1) SCC 589 as under:-
"10. This Court in Om Kumar and Others vs. Union of India, (2001) 2 SCC 386 while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights.
In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant materials and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."
28. In the case of Union of India Vs. S.S. Ahluwalia reported in 2007 Law Suit (SC) 950, the Hon'ble Apex Court has been pleased to observe as under:-
"The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the court can itself impose lesser penalty."
29. In the case of State of Meghalaya Vs. Mecken Singh N Marak reported in 2009 Law Suit (SC) 1935, the Hon'ble Apex Court has also held as under:-
"A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefore. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review."
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30. Further in the case of Director General, RPF Vs. Sai Babu reported in 2003 Law Suit (SC) 117, the Hon'ble Apex Court has been pleased to hold as under:-
"4. Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the appellants urged that the learned Single Judge was not right and justified in modifying the order of punishment, having observed that the respondent was a habitual offender and due to dereliction of duties, the punishment of stoppage of increments for three years was already ordered in 1984 and that there was no improvement in the conduct of the respondent. He alternatively submitted even if the learned Single Judge was of the view that the punishment imposed was grossly or shockingly disproportionate, punishment could not have been modified but the matter could be remitted to the disciplinary authority to re-examine the issue in regard to the imposition of penalty on the respondent. He further submitted that the Division Bench of the High Court did not go into the merits of the contentions and simply endorsed the view taken by the learned Single Judge."
31. In light of the aforesaid facts, case laws, discussions and deliberations, we do not find any irregularity in the present matter which would warrant any interference on behalf of this Tribunal. Accordingly, the O.A. is liable to be dismissed for want of merit and the same is dismissed.
32. All associated M.A.s also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
MADHU
KUMARI
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