Central Administrative Tribunal - Delhi
Shri Jugal Kishore vs Union Of India Through on 17 March, 2012
Central Administrative Tribunal Principal Bench O.A.No.1146/2010 New Delhi, this the 17th day of March, 2012 Honble Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Shri Jugal Kishore s/o Shri Nirjan Lal Parcel Supervisor Working under Divisional Railway Manager Northern Railway State Entry Road New Delhi r/o H.No.1/7771 East Garbh Park Gali No.1 Shahdra Delhi. Applicant (By Advocate: Ms. Meenu Mainee) Versus Union of India through General Manager Northern Railway Headquarters Office Baroda House New Delhi. Divisional Railway Manager Northern Railway DRM Office State Entry Road New Delhi. Sr. Divl. Commercial Manager Northern Railway DRM Office State Entry Road New Delhi. Respondents (By Advocate: Ms. Jasmine Ahmed) [Order reserved on 10.02.2012] O R D E R By Shailendra Pandey, Member (A):
In this OA, the applicant, who is working as a Head Parcel Clerk in the Railways, has challenged the order of the disciplinary authority dated 15.12.2009 (Annexure A1), imposing a penalty of reduction of pay from Rs.17100/- to Rs.9300/- for a period of ten years with postponing of his future increments, and the order of the appellate authority dated 29.03.2010 (Annexure A2), in terms of which his appeal against this order has been rejected. He has sought the following reliefs:
i) as an ad interim measure a direction to restrain the respondents from sparing the applicant on transfer to Lucknow Division till the final disposal of this application.
ii) to allow this application and quash the impugned orders.
iii) to award any other or further relief which this Tribunal may deem fit and proper under the facts and circumstances of the case.
iv) the cost of these proceedings may be granted in favour of applicant and against the respondents.
During arguments, the learned counsel for the applicant withdrew the relief (i) (referred to above) sought for restraining the respondents from transferring of the applicant to Lucknow Division as this was a separate issue and as the orders of the transfer to the Lucknow Division have since been superseded by a fresh order dated 05.05.2010 (Annexure R7).
2. The brief facts of the case, as set out in the OA, are that the applicant had been issued a Memorandum of Chargesheet dated 30.01.2009 for initiation of major penalty proceedings on the allegation that he had accepted Rs.200/- from a decoy passenger for dispatching of motor cycle on the same day and on the same train. The second charge was that he had in his possession of Rs.2150/- in excess in his private cash, which had not been declared.
2.1. On the applicant denying the charges, an Inquiry Officer was appointed in the case, vide order dated 12.02.2009, and after completion of the inquiry, he forwarded his report dated 31.01.2009 to the disciplinary authority. The disciplinary authority forwarded a copy of the inquiry report dated 31.01.2009 to the applicant on 16.10.2009 against which, the applicant submitted his representation dated 4.11.2009. After consideration of the same, the disciplinary authority passed order dated 15.12.2009 imposing the aforementioned punishment. The appeal dated 26.02.2010 submitted by the applicant against the disciplinary authoritys order was rejected by the appellate authority vide order dated 29.03.2010.
3. The main grounds of challenge to the aforesaid orders of the disciplinary and the appellate authority are as under:
that the charges against the applicant are false and baseless and are merely an attempt on the part of the vigilance staff to implicate him, and there is no legal evidence in support of the charges against the applicant.
that there had been a large number of procedural irregularities in conduct of the inquiry as a result of which the entire departmental proceedings stand vitiated. In this connection, it is submitted that the procedure laid down by the Railway Board in the Vigilance Manual and other Instructions have not been followed strictly and faithfully. And that the inquiry officer and the disciplinary authority have failed to appreciate that the vigilance raid itself was in violation of Rules 704 and 705 of the Vigilance Manual. It is also stated that that the procedure prescribed in Rule 9.21 of the Railway Servants (Discipline & Appeal) Rules, 1961 has been violated (relevant portions are referred in Paras 4.20 and 4.21 of the OA) and this vitiates the inquiry as per the law lay down by the Honble Apex Court in the case of Moni Shankar v. Union of India & Anr., (2008) 3 SCC 484.
that the decoy passenger was not a Railway employee or any other civil Government employee but an outsider and was a stock witness who had worked admittedly as a decoy in other cases also. This was in violation of Railway Boards Circular dated 24.12.1991 of the Railway Vigilance Manual.
That the so called independent witness was also not an independent witness but an interested witness, and had been picked up by the vigilance staff from Ambala, and was actually acting as one of the staff of the Vigilance team and, therefore, when decoy passenger was directed by the Counter Clerk to have a tin-plate made out which is essential to be attached with the motor cycle to safeguard against its loss, the so called independent witness gave Rs.11 to the decoy from his own pocket for getting the tin-plate prepared for dispatch of the Motor Cycle.
that the vigilance inspectors have also admitted that there was no other Motor Cycle which was waiting to be dispatched to Patna and, therefore, the dispatch of the Motor Cycle in this case in the concerned train was not a favour.
that in so far as the excess amount is concerned, the vigilance staff while conducting the Jama Talashi, thrust Rs.200/- into his pocket forcibly to make the raid a success and earn undeserved laurels.
That it was not the duty of the applicant to book the Motor Cycle nor was it his duty to dispatch it, and that it had been admitted during the inquiry that the Motor Cycle was booked after collecting the due charges by the Counter-Clerk and the motor cycle was to be dispatched by the Parcel Clerk who was on duty and the applicant was nowhere in the picture.
that the orders of the disciplinary authority have been passed imposing heavy penalty without application of mind and that the punishment awarded is disproportionate to the charge leveled against the applicant.
4. The respondents have opposed the OA and have stated that the applicant has failed to mention that as he received the appellate orders on 29.03.2010, under the provisions of D&AR Rules, he could have filed a revision petition within 45 days to the ADRM/T/Ambala but has not exhausted the available departmental remedies before filing the OA and thus, the OA is not maintainable.
4.1. On merits, they have stated that the disciplinary authority and the appellate authority have passed their orders after following due procedure and keeping in view the gravity of the charges. They have also stated that the applicant was caught red handed with excess money being recovered and this is sufficient to establish his guilt and no interference of this Tribunal is warranted. It is also denied (in reply to para 4.16) that the independent witness Sh. G.S.Suri was working under Vigilance Branch while conducting D&A inquiry against the applicant.
4.2. As regards the contention that the action of the respondents to associate Shri Vikash Verma, who was not a Railway employee, but a private person and a stock witness was not in order, it is stated that Shri Vikas Verma was also cited as a decoy passenger during the vigilance check in accordance with the instructions and guidelines, and that the decoy selected must be conversant with the procedure to be followed and that not anyone can be picked up as a decoy passenger.
5. We have considered the rival contentions of both the parties and have been through the pleadings/documents on record.
6. At the very outset, it would be necessary to refer to the legal position relating to judicial interference in departmental proceedings, particularly with regard to the admissibility of evidence and the findings of the administrative authorities in disciplinary matters. The law in this regard has evolved through a series of pronouncements on this issue and may be summarized as follows:
(i) a departmental inquiry/proceeding is distinct from a criminal trial where the Evidence Act or Criminal Procedure Code is strictly applicable. The technical rules of evidence are not applicable in a departmental inquiry and the standard of proof required in a departmental proceeding is preponderance of probability as opposed to proof beyond doubt in a criminal proceeding [See: N. Rajarathinam v. State of Tamil Nadu, (1997) 1 Lab LJ 224 (SC) and State bank of Bikaner and Jaipur v. Srinath Gupta, (1997) 1 Lab LJ 677; and High Court of Judicature, Bombay v. Udaysingh (1997) 5 SCC 129; Noida Entrepreneurs Association v. Noida & Ors., (2007) 10 SCC 385]. In most departmental proceedings the act on the part of the Government servant concerned relates to dereliction of duty and the punishment imposed is with a view to maintaining discipline and efficiency of performance of a public service, as opposed to an act in a criminal trial which is one of violation of law.
(ii) the scope of judicial review in departmental proceedings is limited and a Tribunal/Court should ordinarily not interfere in them by re-appreciating the evidence adduced by the inquiry officer and substituting their own findings/conclusion for that of the administrative authorities, unless the findings/conclusion arrived at are based on absolutely no evidence or are totally perverse in the sense that no man of ordinary prudence could possibly arrive at such findings/conclusion in the facts and circumstances of the case. This is so because the power of imposing an appropriate punishment on a Government employee is within the discretion of the administrative authorities. The only exception to this general principle is if it is found that the inquiry proceedings have not been conducted fairly and are vitiated because of non-observance of the relevant rules and regulations or principles of natural justice (such as affording of reasonable opportunity to defend, etc.) or if the punishment is shockingly disproportionate to the proved misconduct of the Government servant concenred [See: State of T.N. v. S.Subramaniam, (1996) 7 SCC 509; State of Tamil Nadu v. T.V.Venugopalan, (1994) 6 SCC 302; U.P.S.R.T.C. v. Ram Chandra Yadav, JT 2000 (8) SC 198; M.P.State Agro Industries Development Corporation Ltd. V. Jahan Khan, (2007) 10 SCC 88].
In this connection, the following relevant extracts from two Apex Court Judgments may also usefully be referred to:
(i) In B.C. Chaturvedi Vs. Union of India & Ors. reported in AIR 1996 SC 484, it was held as under:-
When an inquiry is conducted on charges of a 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 be 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of 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 that case.
(ii) In Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar reported in 2003 (4) SCC 364, Honble Supreme Court has held as follows:-
11. It is settled that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision - making process and not the decision.
Thus, interference on the part of the Tribunal is warranted in cases in which findings of the departmental authorities and the conclusions arrived at are patently illogical or perverse and based on no evidence at all.
7. When we examine the present OA in the above backdrop, we have no hesitation in holding that the present case is not one that merits any interference on our part as it cannot be considered as being a case of `no evidence nor are the orders passed by the executive authorities such that no person of ordinary prudence would have passed them nor are the punishments imposed shockingly disproportionate to the proved misconduct, as discussed below.
8. The preliminary objection raised by the respondents is, that after receiving of the order of the appellate authority, the applicant was supposed to exhaust the available departmental remedy by way of filing a Revision Appeal before ADRM/T/Ambala (Revisional Authority) within 45 days from the date of receipt of the order of the appellate authority [which was received by the applicant on 29.03.2010] but he has not exhausted the same thus the OA is not maintainable. In the rejoinder, the applicant has stated that the appellate authority while rejecting the appeal, did not grant opportunity to the applicant to file a revision application and that this is normally done by mentioning this at the end of the appellate order, and even otherwise filing of a revision petition is not mandatory when the appeal has already been rejected. We find that, as stated by the applicant, the appellate authority has not brought to the notice of the applicant that he should avail the remedy of revision petition within 45 days, as stated above, in his appeal. Therefore, the objection taken by the respondents is untenable and, therefore, we proceed to decide the matter on merits.
9. In the present case, the following two charges have been framed against the applicant:
Charge No.1.: You were held responsible for demanding and accepting of Rs.200/- from the decoy passenger for dispatching of motor cycle on the day, by the same train.
Charge No.2: You were guilty of having in your possession Rs.2150/- excess in your private cash which had not been declared before commencement of duty.
10. As regards Charge No.1, the disciplinary authority in its order dated 15.12.2009, clearly mentioned that:
. The Inquiry Officer in his report concluded that the charge is partially proved to the extent that you demanded & accepted Rs.200/-, but the purpose for despatching the motor-cycle on same day by same train, is not proved. It has been established in the enquiry that you were working as Luggage Inspector on weighment seat. There were separate Parcel Clerks to issue the receipt & load in the train. During the vigilance check the decoy money was recovered from your person & the decoy as well as eye-witness confirmed that the demand & acceptance of Rs.200/- by you. Therefore, I agree with the Inquiry Officer on this charge that this charge is proved to the extent that you demanded & accepted rs.200/- as illegal money from the decoy. Further, it is noticed that the appellate authority in its order dated 29.03.2010 also clearly observed as under:
As regarding Charge No.1, I find that as per the statement of decoy that in the first instance you had asked the decoy to have reservation ticket and book the M/Cycle. The I/W during the enquiry re-affirmed his statement which was given earlier and is at Ex. P-6 that you accepted Rs.200/- from the decoy passenger for dispatch of M/Cycle. During the Jama Talashi Rs.200/- (Decoy money, 2 GC notes of Rs.100/- having numbers 4WR959103 and 4WR959104) were recovered from your pocket. On the day of check, you were working as LI, though you were not primarily responsible for dispatch of M/Cycle, but responsible for supervision of acceptance and dispatch for luggage as per priority.
I have gone through the statements of decoy and I/W thoroughly and in view of specific statements of decoy and the I/W, your plea that the bribe money of Rs.200/- was put in your coat pocket by RPF Sainik on duty, could not be believed as both decoy and independent witness had corroborated that Rs.200/- was accepted by you yourself, thus your plea is an after through (sic. thought) to save yourself. Further, your plea that the RPF was not entitled to take Jamatalashi and that the inventory of the articles found during the Jamatalashi was not made, does not dilute the gravity of the charge as the decoy money of Rs.200/- was recovered from your pocket. Hence, I hold the charge as proved.
Thus, as regards Charge No.1, both the authorities have held that it is proved to the extent of Rs.200/- having been demanded and accepted from the decoy passenger.
11. As regards Charge No.2, referred to above, it was clearly mentioned by the disciplinary authority that it is partially proved by the Inquiry Officer to the extent that an amount of Rs.1950/- (not Rs.2150/- as alleged in the chargesheet) was found excess in the applicants private cash during vigilance check, which was not declared by the applicant before resuming duty, and the applicant has not clarified possession of this excess amount in the inquiry. Therefore, the inquiry officer held him guilty of the charge to the extent mentioned above. Taking these facts into account, a lenient view was taken, and the disciplinary authority imposed the punishment of reduction in pay only for a period of 10 years with cumulative effect. Further, the appellate authority has also in his order observed that during the Jamatalashi, an amount of Rs.2425/- was recovered from you. You had declared Rs.275/- as your private cash from the amount of Rs.2450/- of which Rs.200/- were the decoy money seized by the vigilance and the remaining Rs.1950/- were deposited in the Government cash. The charge of having in possession of Rs.2150/- excess in your private cash, which had not been declared before the commencement of the duty is proved only to the extent of Rs.1950/-. Further, you had not given any clarification for an excess amount of Rs.1950/- in your private cash, which is sufficient to establish that you had nothing to clarify for the excess amount of Rs.1950/-. Hence, I hold this charge also proved to the extent of Rs.1950/-. It is noticed that in so far as charge No.2 is concerned, both authorities have held the charge to be proved to the extent that he had an excess money of Rs.1950/- as private cash which was not declared before the commencement of the duty nor explained.
12. The admitted facts in this case are that based on source information, that staff working in the parcel office at Delhi Railway Station were indulging in malpractice and earning illegal money by way of excess charging and demanding and accepting money from the passenger, a decoy check was conducted by a vigilance team of Northern Railway on 30.09.2008. During the check, the applicant was apprehended by the Vigilance Team while taking Rs.200 from the decoy passenger for despatching of a motor cycle on the same day, by the same train. Besides recovery of the decoy money, unaccounted money of Rs.2150/-, which the applicant had not declared as private cash, was also recovered. A D&AR Inquiry was conducted on charges 1 and 2 referred in Para 9 and the Inquiry Officer held both the charges as partly proved. Thereafter, after considering the replies of the applicant, the orders were passed by the disciplinary/appellate authority.
13. The fact that the applicant had been caught red-handed by the vigilance team and the money given to him by the decoy passenger had been recovered from him, to our minds, constitutes adequate evidence in the case based on the principle of preponderance of probability. The disciplinary authority after going through the documents/evidence available on record, imposed the aforesaid punishment of reduction in pay to the initial stage of Rs.9300/- in the same time scale of Rs.9300-34800 Grade Pay of Rs.4200/- for a period of 10 years with cumulative effect vide order dated 15.12.2009 and on appeal the appellate authority rejected the same vide order dated 29.03.2010.
14. Although the applicant has stated that there were a large number of procedural violations he has not been able to show how these have prejudiced his defence in any significant way so as to make us come to a conclusion that he has not been subjected to a fair inquiry.
15. We may, at this stage, deal specifically with the submission of the learned counsel for the applicant that the inquiry stands vitiated because of non-adherence to the provisions of Paras 704 and 705 of the Indian Railway Vigilance Manual, which cover the procedures and guidelines to be followed by the investigating officers in departmental trap cases. The instructions/guidelines provide for association of Gazetted Officers and independent witnesses in such cases. It is relevant to note in this connection that these are internal instructions of the Department which are required to be followed to the extent administratively possible. It may not always be possible to procure Gazetted Officers in all cases of vigilance traps, keeping the heavy and onerous workload of the Railways in mind. Further, there was no reason for the team to try and frame the applicant for an offence if he had not committed the same. Further, money was recovered during the check. In the facts and circumstances of this case, we do not think that the instructions laid down in Paras 704 and 705 of the Indian Railway Vigilance Manual have been violated in such a way as to invalidate the departmental proceedings altogether. Thus, the case of Moni Shankar (supra) would not help the applicant, as elaborated below:
In the case of Moni Shankar (supra) the Honble Supreme Court, after dealing with the case of Chief Commercial Manager, South Central Railway, Secunderabad and Ors. v. G. Ratnam and Ors., JT 2007 (10) SC 378, observed as under:
15. While we say so we must place on record that this Court in Chief Commercial Manager, South Central Railway v. G. Ratnam ((2007) 8 SCC 212) opined that non-adherence to the instructions laid down in Paras 704 and 705 of the Vigilance Manual would not invalidate a departmental proceeding, stating: (SCC pp. 220-21, paras 17-18):
"17. We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
18. We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained."
16. It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be 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 person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
17. 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 courts 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 : (2006) SCC (L&S) 521) and Coimbatore District Central Coop. Bank v. Employees Assn. ((2007) 4 SCC 669 : (2007) 2 SCC (L&S) 68)) From the above, it is clear that it is only total violation of the guidelines (in the Vigilance Manual) together with other factors which need to be taken into consideration for the purpose of arriving at a conclusion whether the departmental proceedings need to be held to be invalid on account of non-adherence to some instructions.
16. In the instant case, as already noted above, there is evidence based on the principle of pre-ponderance of probability for the departmental authorities to have come to the conclusion of guilt of the applicant. A crucial aspect of this case is that the applicant had been caught red-handed by a vigilance team and the money has also been recovered which, to our minds, constitutes sufficient evidence based on the principle of preponderance of probability. There is also no reason for the vigilance team or the departmental authorities to be against the applicant. In this connection, it is also pertinent to note that the department raiding team consisted of five members two from the Vigilance Branch one ASI/RPF/CIB, one decoy passenger Shri Vikas Verma (a private person) and one Shri Kuldip Singh, TE/UMB as an independent witness. We also cannot accept the submission of the applicant (denied by the respondents categorically in para 4.16 of their reply) that the inquiry officer was posted in the Vigilance Department, particularly in the absence of any documentation to the contrary having been produced.
17. Further, full opportunity has been afforded to the applicant to defend himself and the proceedings have been conducted as per procedure prescribed. The procedural violations alleged by the applicant are not considered to be such as to have prejudiced the applicants defence in any material way, and thus no interference on this account is warranted. Further, the instructions alleged to have been infringed are internal instructions of the vigilance and would not constitute sufficient grounds to vitiate the entire inquiry proceedings in the facts and circumstances of the case.
18. In view of the categorical assertions made by both the disciplinary authority and the appellate authority, we are of the considered view that the findings of these authorities, following the principles of preponderance of probability, were arrived at after application of mind to the facts and circumstances of the case and the Inquiry Officers report and, therefore, we do not consider it necessary to interfere in the matter.
19. In view of the above discussion, no case for interference in the present case is warranted. The OA is accordingly dismissed with no order as to costs.
(Shailendra Pandey) (Meera Chhibber) Member (A) Member (J) /nsnrsp/