Central Administrative Tribunal - Jabalpur
Dwarka Gopi Patel S/O Shri Gopi Lal Patel vs Union Of India Ministry Of Railway on 21 December, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.347 of 2010
Jabalpur, this Monday, the 21st day of December, 2015
Mr. G.P.Singhal, Administrative Member
Mr. M. Nagarajan, Judicial Member
Dwarka Gopi Patel S/o Shri Gopi Lal Patel,
Aged 51 years, 1.07.1961, R/o H.No.171, Gupta Nagar Colony,
Bhanupur, Bhopal (M.P.)-462001 - Applicant
(By Advocate Shri S.K.Nandi)
V e r s u s
1. Union of India Ministry of Railway, Through its
General Manager, West Central Railway,
Indra Market Jabalpur-482001
2. Assistant Divisional Engineer (Administration)
West Central Railway, Bhopal Division,
Bhopal (MP)-462001.
3. Senior Divisional Engineer, West Central Railway,
Bhopal Division, Bhopal (MP)-462001.
4. Assistant Divisional Railway Manager,
West Central Railway, Bhopal Division,
Bhopal (MP)-462001. -Respondents
(By Advocate Shri Praveen Namdeo)
(Date of reserving the order: 10.12..2015)
ORDER
By G.P.Singhal, AM.-
The applicant was issued a charge sheet dated 1.11.2006 in which solitary charge levelled against the applicant was as given below:
Dwarka Gopi Patel H/Kh under SE(W) HBJ the then working peon under RRB/BPL during the year 2006 has committed grave misconduct in as much as Shri Dwarka Gopi patel demanded Rs.175000/- as bribe from the decoy person Shri R.K.Sharma, IPF Kota to arrange selection for the post of Traffic Apprentice through RRB/BPL, and for this purpose he accepted illegal gratification Rs.75,000/- on 31.3.06 at Kota Rly station.
By this above acts Shri Dwarka Gopi Patel, has failed to maintain absolute integrity and has acted in a manner unbecoming of a Rly servant and violated sub rule (i) and (iii) of Rule 3(1) of the Rly Service (Conduct) rules,1966.
2. The statement of imputation of misconduct mentions that on an information that the applicant, who was working as Peon at RRB, Bhopal was visiting Kota and was demanding total Rs.1,75,000/- per candidate from the potential candidates to arrange for their selection for the post of Traffic Apprentice/CMI, a trap was arranged. The applicant was demanding Rs.75,000/- as advance and balance amount later on. Therefore, Shri R.K.Sharma, IPF, Crime Branch Kota, with a Digital Voice Recorder was sent to the applicant as decoy. Shri R.K.Sharma approached the applicant and talked about the appointment. His conversation was recorded in the Digital Voice Recorder, which was heard by all the signatories of the Joint Note Panchnama-II, which was prepared at about 10.45 Hrs on 31.3.2006 at the Vigilance Office, Kota. On the basis of this conversation a decoy check was organized and Shri R.K.Sharma acting as a decoy person went with Rs.75,000/- notes to the applicant. The applicant, when contacted by the decoy person, accepted Rs.75,000/- in presence of the witnesses. The applicant thereafter confessed that he demanded and accepted an amount of Rs.75,000/- from Shri R.K.Sharma to arrange selection of a candidate, approached by decoy, for the examination held on 18.12.2005, for which cheque No.839321 was given by the applicant to Shri R.K.Sharma, as assurance to return the money in case he was not able to arrange selection. He also accepted that he had demanded an amount of Rs.1 lakh more from Shri R.K.Sharma. Thus, on the basis of trap arranged by vigilance, the charge sheet dated 1.11.2006 was issued against the applicant.
3. The learned counsel for the applicant submitted that in this case enquiry officer belonged to vigilance department and, therefore, he was biased against him. The applicant had raised objection vide representation dated 15.1.2007 in this regard, however, his request was not accepted and, therefore, Shri K.K.Shrivastava, who was Chief Enquiry Officer, at Jabalpur Head Quarters continued to act as the enquiry officer. Even though it was a complicated case of trap, no presenting officer was appointed by the respondents and it was the enquiry officer, who performed the role of presenting officer also. The process as prescribed in Rule 9(21) of the Railway Servants (Discipline & Appeal) Rules,1968 was not followed in this case as the applicant was never explained about the evidence going against him and given opportunity to explain his stand in this regard.
4. The learned counsel for the applicant further submitted that penalty imposed is disproportionate to the misconduct and in this regard he placed reliance on the judgment of Kailash Nath Gupta Vs. Enquiry Officer, Allahabad Bank and others (2003) 9 SCC 480. The learned counsel for the applicant submitted that the Courts have power to interfere with the quantum of punishment if it is disproportionate to the charge levelled against an employee. The applicant in this case has been imposed punishment of removal from service, which is one of the severest punishments, and therefore, deserves to be interfered by this Tribunal.
5. The learned counsel for the applicant also pointed out that the respondents have not passed any order in regard to grant of compassionate allowance to the applicant even though the applicant had very long period of service in that department and, therefore, he was entitled to be considered for compassionate allowance.
6. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
7. As regards to the applicants contention that enquiry officer belonged to vigilance organization, which conducted the trap, and thus he was expected to be biased against the applicant, we find that after submitting his representation dated 15.1.2007, the applicant sat quiet and continued to participate in the enquiry. His representation in this regard was rejected vide order dated 19.1.2007 (Annexure R-1) and this order was not challenged by him before any other authority. Therefore, he can not raise this issue at this stage.
8. As far as the enquiry officer playing role of presenting officer also is concerned, there is no bar in this regard under the rules. It is not necessary for the railways to appoint presenting officer in each and every case. The enquiry officer is appointed to assist the disciplinary authority in taking correct and impartial decision on the basis of evidence on record. For this purpose, the enquiry officer may ask questions from any witness with a view to elucidate answer in a proper understanding of the facts before him. The applicant has not produced anything to prove as to how he was prejudiced by non-appointment of separate presenting officer in his case.
9. On perusal of enquiry officers report, we find that the enquiry officer has mentioned at page 12 of the report that the delinquent employee did not produce any evidence or document in his favour. During general examination he informed the enquiry officer on 25.10.2007 that whatever he has to say in defence he will send it in writing within 15 days. Thereafter, vide letter written on 14.11.2007 the applicant informed the enquiry officer that he agrees with the enquiry done by the enquiry officer and his only defence is the decision of enquiry officer in this matter. The enquiry officer in his findings has mentioned that it is proved that the delinquent employee had demanded Rs.1,75,000/- for getting a person selected on the post of Traffic Apprentice from decoy person Shri R.K.Sharma. The fact of acceptance of Rs.75,000/- from Shri R.K.Sharma is also proved. During preliminary hearing on 31.1.2007 and in the letter dated 8.2.2007 written to the enquiry officer and letter dated 20.3.2007 to Chief IOW, Hababiganj i.e. the disciplinary authority, the applicant has accepted receipt of Rs.75,000/- from Shri R.K.Sharma. The applicant had given a post-dated cheque of Rs.75,000/- to Shri R.K.Sharma immediately on receipt of Rs.75000/-. On evaluation of all the evidence the enquiry officer found that this transaction of Rs.75000/- was not a final transaction between the delinquent employee and Shri R.K.Sharma, but it was the amount given for selection to a post by RRB Bhopal.
10. The applicants contention that Rs.75,000/- was a part of an internal transaction between him and Shri R.K.Sharma, is apparently an attempt to misguide the enquiry officer. It is not the case that the applicant is related to Shri R.K.Sharma and they were running together a business. Further the cheque was given immediately on receipt of cash. All this makes the story of the applicant regarding payment being part of internal transaction unbelievable.
11. The respondents have conducted the enquiry proceedings as per the prescribed procedure. There are no allegations of malafide or bias against the disciplinary, appellate and revisionary authorities.
12. With regard to the contention of Shri S.K. Nandy, learned counsel for the applicant that in spite of representation of the applicant dated 15.1.2007 by which he protested to the appointment of Shri K.K. Shrivastava as an enquiry officer, his request was not accepted and Shri K.K. Shrivastava continued and concluded the enquiry, we may observe that a delinquent official has no right to insist upon the disciplinary authority that he shall have an enquiry officer of his choice. It is an admitted fact that his request was rejected and the said Shri K.K. Shrivastava continued to be enquiry officer and concluded the enquiry. If at all, the applicant had any grievance, there was no impediment, whatsoever, for him to challenge the rejection of his request relating to the appointment of Shri K.K. Shrivastava as an enquiry officer at the appropriate time. But the applicant has not chosen to do so. On the other hand, he actively participated in the enquiry. Hence, he shall not be permitted to turn down and contend otherwise. Even otherwise we do no find that the applicant has alleged any malafide or bias against the said Shri K.K. Shrivastava. No material, whatsoever, has been placed before the Tribunal to show that Shri K.K. Shrivastava was biased against him and he has also not been arrayed as respondent in this Original Application to enable him to controvert the allegation levelled against him. It is the settled law that no amount of bias alleged by an applicant can be gone into by the Courts and Tribunals in the absence of such a person against whom bias is alleged. Therefore, we are not prepared to accept the arguments of Shri S.K. Nandy, that the enquiry is liable to be interfered with on the ground that the same was conducted by Shri K.K. Shrivastava, whose appointment as an enquiry officer was protested by the applicant.
13. As regards grant of compassionate allowance to the applicant, the respondents should consider the case of the applicant for grant of compassionate allowance as per rules and if he is found suitable to be paid compassionate allowance it should be sanctioned to him expeditiously. The respondents should pass speaking and reasoned order on this issue within a period of three months from the date of communication of this order.
14. As regards the quantum of punishment, the scope of judicial review has been amply clarified and settled by the Honble Supreme Court time & again. What punishment should be imposed is within the exclusive domain of the disciplinary authority as held by the Apex Court in Union of India vs. Parma Nanda 1989 SCC (L&S) 303, whereby in Para 27 it has been held that:
We must unequivocally state 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. It is appropriate to remember that 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 principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. (Emphasis supplied).
15. Similarly, in B.C.Chaturvedi vs. Union of India & others, 1996 SCC (L&S) 80, it has been held that:
Power of judicial review is meant to ensure that the individual 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.
16. In the instant case, since the applicant was involved in a trap case and the charge against him is that he was demanding and accepting the money for getting certain persons appointed to the post advertised by the Railway Recruitment Board, Bhopal, we are of the considered opinon that the applicant does not deserve any sympathy and, therefore, we find that the punishment awarded to him is just and proportionate to the misconduct proved against him.
17. In the result, the Original Application is dismissed, with the observations as contained in paragraph 13 (thirteen) above. In the facts and circumstances of the case, the parties are left to bear their own costs.
(M. Nagarajan) (G.P.Singhal)
Judicial Member Administrative Member
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Sub: departmental enquiry- trap case OA No.347/2010
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