Central Administrative Tribunal - Allahabad
Azam Ali Siddiqui vs General Manager, N E Rly on 5 February, 2026
Reserved on 16.01.2026
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 05th day of February, 2026
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 597 of 2013
Azam Ali Siddiqui S/o Late Jamshed Ali Siddiqui, aged about 54
years, R/o Coaching Superintendent, N.E. Railway, Rawatpur
Railway Station, District Kanpur.
........... APPLICANT
By Advocate: Shri Pradeep Kumar Mishra holding brief of Shri
Sanjay Kumar Om.
Versus
1. Union of India through General Manager, North Eastern Railway,
Gorakhpur.
2. Senior Divisional Commercial Manager, North Eastern Railway,
Lucknow.
3. Additional Divisional Railway Manager, North Eastern Railway,
Lucknow.
4. Chief Commercial Manager, North Eastern Railway, Gorakhpur.
..........RESPONDENTS
By Advocate: Shri Bashist Tiwari
ORDER
(By Hon'ble Mr. Justice Om Prakash VII, Member (Judicial) Shri PK Mishra, holding brief of Shri S K Om, learned counsel for the applicant and Shri Bashist Tiwari, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed by the applicant seeking following relief:
RITU RAJ SINGH
1|Page "(i) issue a writ, order or direction in the nature of CERTIORARI quashing the impugned orders dated 12.07.2011, 20.10.2011 and 22.05.2012 (Annexure -1, A-2 and A-3) with all consequential benefits as if the applicant was never punished in pursuance to charge of memorandum dated 21.03.2007.
(ii) issue any other writ, order or direction which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iii) The cost of the application may also be awarded in favour of the applicant."
3. The instant original application has been filed by the applicant challenging the order dated 12.07.2011 passed by the Disciplinary Authority removing the applicant from service, order dated 20.10.2011 passed by the Appellate Authority reinstating the applicant with punishment of reduction of 5 stages for 5 years with cumulative effect with loss of promotion and increment and treating the intervening period as dies-non and order dated 22.05.2012 passed by the Revisional Authority modifying the order of the Appellate Order to the reduction for 3 stages for 3 years with cumulative effect. The applicant has contended that he has been falsely implicated and punished for the offence he never committed and that simply he has been made a scapegoat by the respondents for someone else's misconduct. Through this OA, the applicant has prayed for the quashing of the aforesaid orders alleging that they have been passed by the respondents without any application of mind and also seeks a direction to the respondents to grant all consequential benefits to the applicant as if the applicant was never punished in pursuance of the charge of memorandum dated 21.03.2007.
4. We have heard learned counsel for the parties and perused the records.
5. Learned counsel for the applicant submitted that orders under challenge passed by the respondents are illegal. Respondents have RITU RAJ SINGH
2|Page not taken into consideration the plea stated by the applicant in the reply to the inquiry report, appeal as well as revision petition. The applicant after loading the pigs (50 pigs) pasted the label card on each of the door closing the same with tethers. It is also argued that mandatory provision provided under Para 704 as well as 705 of the Vigilance Manual have not been followed. Independent witnesses before search have not been ensured. Thus, allegations leveled against the applicant are false and are not supported by independent evidence. It is further argued that relevant material witnesses have not been examined in the matter despite repeated requests made by the applicant. It is also argued that since label cards fixed / pasted on each door have not been supplied to the applicant, nor was any specific statement made during inquiry in this respect, thus, there is every chance that after the sealing and pasting of the label cards on each door, some other persons have loaded the pigs exceeding the number of 50 for which the applicant cannot be punished. Disciplinary Authority has initially passed the order of removal from service against the applicant. The Appellate Authority modified the punishment reinstating the applicant with down grading of 5 years of pay and also with the order that punishment shall effect the future promotions and increment and period from removal to reinstatement shall be treated as dies non. It was further argued that although the applicant was reinstated but he challenged the same in the revision. Inquiry Officer was also belonging to the Vigilance department. Revision petition was dismissed only modifying the punishment imposed by the appellate authority to be effective only for three years. It is further argued that other employees who were also chargesheeted were punished with lesser punishment than the applicant. Thus, on this ground also the impugned orders passed against the applicant are illegal.
6. Learned counsel for the applicant referring to the document annexed with the OA as well as statements of the witnesses recorded during inquiry and further argued that inquiry officer has relied upon RITU RAJ SINGH
3|Page the statement recorded during preliminary inquiry but said witnesses have not been examined. Thus, findings arrived at by the inquiry officer affirmed by the disciplinary authority, appellate authority as well as revisional authority on this ground are illegal and perverse.
7. Learned counsel for the respondents vehemently opposed the prayer of the applicant and argued that procedure prescribed for conducting the search have been followed. Although search team has taken independent witnesses for witnessing the search, if it is taken that the same is not followed literally, provision provided under Para 704 and 705 of the aforesaid Manual are procedural provision and on this ground itself, search made by the search team cannot be disbelieved. It is also argued that loading work was completed at the Gonda Station and search is made at Gorakhpur Station. Entire formality for sealing and labeling of card has been made under the supervision of the applicant and he has not adduced any evidence to this effect that extra pigs were loaded on the said wagon after breaking the seal and label card. Thus, opinion formed by the inquiry officer is based on evidence. It was also argued that statement recorded during preliminary inquiry has been proved in the regular inquiry and thus reliance placed by the inquiry officer on this statements cannot be treated to be illegal. It is also argued that punishment of removal was modified by the appellate authority converting it into the reduction of rank and reinstating the applicant. The applicant has joined in compliance of the order passed by the appellate authority and thus he is estopped to challenge the order passed by the disciplinary authority, appellate authority as well as revisional authority. It is further argued that it is within the domain of the prosecution / inquiry officer as to whom he needs to examine or not. If certain witnesses said to be relevant witnesses by the respondents have not been examined, the prosecution evidence adduced in this matter cannot be disbelieved or ignored. It is also argued that the applicant had applied for examination of some witnesses on behalf himself at the stage of prosecution evidence and RITU RAJ SINGH
4|Page thus Inquiry Officer has rightly rejected the same. If defence witnesses were material, the applicant ought to have examined them at proper stage and thus submission raised on his behalf is not acceptable. It is also argued that defence witness namely Yamuna Prasad has been examined in this matter but solely on the basis of statement of that witness, the prosecution's case cannot be disbelieved. Findings are recorded in the disciplinary proceedings on the basis of preponderance of probability. Strict rule as applicable in the criminal trial is not applicable in the disciplinary proceedings. Since pigs were loaded in the VPH concerned under the supervision of the applicant, he has himself stated that he had sealed the doors of the wagon and pasted labels on the doors, thus responsibility of the applicant was greater than the other persons who were also witnessing the loading process. If other employees who were present at the time of loading have been punished with lesser punishment, same cannot be a ground to impose the applicant with the same punishment. In support of his contentions, learned counsel for the respondents has placed reliance upon the following case laws:
i. Judgment dated 09.08.2000 passed by the Hon'ble Supreme Court of India in Civil Appeal No 785 of 1998 titled Sanat Kumar Dwivedi Vs Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit and Others.
ii. Judgment dated 14.03.1997 passed by the Hon'ble Supreme Court of India in Civil Appeal No 2222 of 1997 titled State of Punjab and Others Vs Krishan Niwas.
iii. Judgment dated 12.03.2013 passed by the Allahabad Bench of Central Administrative Tribunal in Original Application No 1091 of 2010 titled U S Awasthi (Represented through legal heirs) Vs Union of India and others.
iv. Judgment dated 04.11.2011 passed by the Allahabad Bench of Central Administrative Tribunal in Original Application No 1240 of 2005 titled Ashraf Khan Vs Union of India and others.
8. Rejoinder has been filed by the applicant reiterating the facts as have been narrated in the OA. To substantiate his claim further, RITU RAJ SINGH
5|Page learned counsel for the applicant has also placed reliance upon the following case laws:
i. Judgment dated 18.11.2016 passed by the Hon'ble Supreme Court of India in Civil Appeal No 10913 of 2016 titled H.P. State Electricity Board Ltd. Vs Mahesh Dahiya.
ii. Judgment dated 16.06.2022 passed by the Hon'ble Supreme Court of India in Civil Appeal Nos. 4578 - 4580 of 2022 titled Krishna Rai (Dead) Through LRs and Ors Vs Banaras Hindu University Through Registrar & Ors.
9. We have considered the rival contentions and carefully perused the records and gone through the judgments.
10. Before proceeding to deal with the submissions raised across the bar, it will be useful to quote the relied upon portion of the judgment passed by the Apex Court in the case of Mahesh Dahiya (supra) which has been relied upon by the applicant's counsel:
"26. Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole an opinion on Time Members have already formed 25.02.2008 to punish the writ petitioner with major penalty which is a clear violation of principle of natural justice. We are of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. The opinion formed by the Disciplinary Authority- cum-Whole Time Members on 25.02.2008 was formed without there being benefit of comments of the writ petitioner on the inquiry report. The writ petitioner in his representation to the inquiry report is entitled to point out any defect in the a defect of substantial nature in procedure, appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the Disciplinary Authority before it embarks with further proceedings as per statutory rules. We are, thus, of the view that there was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ petitioner with dismissal without forwarding RITU RAJ SINGH
6|Page the inquiry report to the delinquent and before obtaining his comments on the inquiry report. We are, thus, of the view that the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained."
Similarly, the relied upon portion of the judgment passed by the Apex Court in the case of Krishna Rai (supra) which has been referred by the applicant is quoted herein below:
"23. The case laws relied upon by the Division Bench would have no application in the facts of the present case as none of the judgments relied upon by the Division Bench laid down that principle of estoppel would be above law. It is settled principle that principle of estoppel cannot override the law. The manual duly approved by the Executive Council will prevail over any such principle of estoppel acquiescence.
---
31. Further in the case of Tata Chemicals Ltd. Vs. Commissioner of Customs (preventive), Jamnagar, it has been laid down that there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law. Paragraph 18 of the said judgment is reproduced below:
"18. The Tribunal's judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The RITU RAJ SINGH
7|Page Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person."
Also, the relied upon portion of the judgment passed in the case of Sanat Kumar Dwivedi (supra) which has been relied upon by the learned counsel for the respondents is as follows:
"2. The admitted facts are that the appellant was reinstated in service by order dated 12-5-1978 with a condition that he will not get any back wages. Obviously, earlier on 8-3-1976 his services were terminated but by the aforesaid order, he was reinstated without back wages. He accepted such reinstatement without back wages by his joining report, Annexure R-4 at p. 106 of the paper-book that he has joined his duty on 13-5-1978. By his own conduct, the appellant has accepted the correctness of the order of reinstatement without back wages. Under these circumstances, subsequent dispute raised by him regarding back wages was clearly not maintainable as held by this Court in State of Punjab v. Krishan Niwas¹. In view of the settled legal position, no interference is called for. The appeal is therefore, dismissed.
3. It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of back wages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even Conditions 1 and 2 of the border of reinstatement clearly indicate that he is reinstated in service with continuity as pay scales and other benefits were also directed to be given."
Similarly, the Apex Court in the case of Krishan Niwas (supra) which has been relied upon by the respondents' counsel, has held as under:
"3. The admitted facts are that the respondent was charged for an offence under Section 302 IPC. He was convicted and sentenced to undergo imprisonment for life. Thereafter, proceedings were initiated against him under Article 311(2) of the Constitution and he was removed from service. Appeal against his conviction under Section 302 IPC was allowed by the High Court. Punishment of conviction under Section 302 RITU RAJ SINGH
8|Page IPC was modified to one under Section 325 IPC and he was directed to undergo rigorous imprisonment for 1-1/2 years. After undergoing imprisonment, the respondent filed an appeal before the appellate authority. The appellate authority by order dated 1-3-1989 reduced the punishment of removal from service to lower scale of pay drawn by him and directed that he was not entitled to back wages. The respondent accepted it and joined duty on 5-6- 1989. Subsequently, he filed a civil suit for declaration that his dismissal from the service and reduction of rank and also the direction that he is not entitled to pay the arrears of wages, were illegal. The trial court dismissed the suit. On appeal, the Additional District Judge reversed the judgment of the trial court and decreed the suit. In the second appeal, the High Court has confirmed the same. Thus this appeal, by special leave.
4. The learned counsel for the respondent contends that the offence with which he was sentenced under Section 325 IPC does not involve his moral turpitude and, therefore, the imposition of punishment of reduction of his scale of pay and also denial of back wages, is clearly illegal and that the appellants are not entitled to challenge the order. We find no force in the contention. The respondent having accepted the order of the appellate authority and joined the post on 5-6-1989, it was not open to him to challenge the order subsequently. By his conduct he has accepted the correctness of the order and then acted upon it. Under these circumstances, the civil court would not have gone into the merits and decided the matter against the appellants.
5. Accordingly, the appeal is allowed. The orders of the High Court and the appellate court stand set aside and that of the trial court stands confirmed. No costs."
Also, in the case of US Awasthi (supra) which has been relied upon by the respondents' counsel, the Allahabad Bench of Central Administrative Tribunal has held as under:
"The Hon'ble Apex Court in the case of State Bank of Patiala and others Vs. S.K. Sharma (1996) 3 Supreme Court Cases page 364, after discussing various cases on the point of disciplinary inquiry and orders of punishment imposed by an employer upon an employee, made the following observations:
"(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation RITU RAJ SINGH
9|Page of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only RITU RAJ SINGH 10 | P a g e another way of Tooking at the same aspect as is dealt with herein and not a different or distinct principle (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (emphasis supplied).
From the observations of the Hon'ble Apex Court in the above case, also it is clear 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 standpoint of substantial compliance. 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 Court or the Tribunal should inquire whether the provision followed is of substantial nature or whether it is procedural in character. In the present case, since four independent witnesses have been procured at the time of alleged trap, who were not inimical to the appellant nor under pressure of the vigilance team, sufficient opportunity has been given to the applicant to defend himself, he has entered in defence and actively participated in the inquiry proceedings and the findings recorded by the Disciplinary Authority have been confirmed by the Appellate Authority and the Revisional Authority, we can observe that substantial compliance has been done in this case."
Similarly, in the case of Ashraf Khan (supra) which has been relied upon by the learned counsel for the respondents, the Allahabad Bench of Central Administrative Tribunal has held as under:
"11. It has been argued by the learned counsel for the respondents that admittedly the disciplinary authority awarded the punishment or removal from service on 24.05.2005. Annexure - 1 is the copy of order of punishment. He further argued that the appeal was preferred by the applicant against the order of punishment before the appellate authority and even the appellate authority dismissed the appeal by reasoned and speaking order Annexure A-2 on 25.6.2004 and the appeal was dismissed. The orders passed by the disciplinary authority as well as by the appellate authority were challenged before the revisional authority and the revisional authority modified the order of punishment with that of order of reversion in D Grade Rs. 2550-3200 (RSRP) fixing his pay at Rs. RITU RAJ SINGH 11 | P a g e 2720/- for a period of 11 years with cumulative effect and that this modified order of punishment was acted upon by the applicant and in pursuance of the modified order, the applicant resumed his duty and that this fact has been admitted by the applicant himself. The learned counsel for the respondents argued that it is the established position of law that case the applicant resumed the duties after modification of the order, then he has accepted the modified order of punishment and he is estopped now to question the validity of the modified order. In support of his argument the learned counsel for the respondents cited (1997) 9 SCC, page 31, State of Punjab and others vs. Krishan Niwas wherein it has been held by the apex court "the respondents accepted the reduced penalty and he joined duty but subsequently filed a suit for declaration that his removal from service, reduction in rank and denial of back wages were illegal." The Hon. Apex court held "the respondent having accepted the order of appellate authority and joined the post, it was not open to him to challenge the order subsequently. By his conduct, he has accepted the correctness of the order and acted upon it. Under these circumstances, the civil court should not have gone into the merits and decided the matter against the appellants." Under these circumstances, in view of the judgment of the Hon. Apex court, if the applicant resumed the duty in pursuance of the modified order of punishment of revisional authority, then now the applicant is barred from challenging the correctness of the order. The same position has also been reiterated by the Hon. Apex court in the subsequent judgment reported in (2001) 9 SCC 402 Sanat Kumar Dwivedi vs. Dhar Jila Sahkari Bhoomi Vikas Bank Maryadit and others. Hence, in view of the above judgments of the Hon. Apex court, the applicant once accepted the modified order of punishment and resumed the duty, he cannot challenge the correctness and legality of the order and the applicant is barred by the subsequent act of the respondents. In this connection the learned counsel for the applicant cited the orders of C.A.T. Allahabad Bench in O.A. 304/2001 dated 5th May, 2005 and Ο.Α. No. 391/05 dated 5th July, 2011. In these judgments reliance has also been placed on the above mentioned judgments of Hon. Supreme Court."
11. Submissions raised on behalf of the applicant regarding the appointment of the inquiry officer belonging to vigilance department is concerned, in this matter, the inquiry officer is a retired employee. Although he was posted earlier in the Vigilance Department but the RITU RAJ SINGH 12 | P a g e same cannot be a ground to assume that inquiry officer will be biased. It is pertinent to mention here that after appointment of the inquiry officer, the applicant has challenged the same before this Tribunal in Original Application No. 482 of 2008 but no favourable relief was accorded in favour of the applicant in that case. Thus, submission raised on behalf of the applicant in this respect is not acceptable and entire inquiry proceeding cannot be turned down also in view of the law laid down by the Apex Court in the case of Union of India and others Vs Prakash Kumar Tandon reported in (2009) 1 Supreme Court Case (L&S) 394 wherein it was held that:
"12. 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."
12. Before further discussions, it is pertinent to quote Para 704 and 705 of the Vigilance Manual which is as follows:
"704. Traps
(i) ......
(ii) ......
(iii) .....
(iv) ......
(v) When laying a trap, the following important points have to be kept in view:
(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-
handed immediately after passing of the illegal gratification so that the accused may not be able to disposed it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are Government employee and of other departments.
RITU RAJ SINGH 13 | P a g e
(e) After satisfying the above conditions, the Investigating Officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the S.P., S.P.E. is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the S.P.E. or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
(vi) .....
(vii) ....
705. Departmental Traps For Departmental traps, the following instructions in addition to those contained under Para 704 are to be followed:
(a) The Investigating Officer/Inspector should arrange two Gazetted Officers from Railways to act as independent witnesses as far as possible.
However, in certain exceptional cases where two Gazetted Officers are not available immediately, the services of non-gazetted staff can be utilized.
All employees, particularly, Gazetted Officers, should assist and Witness a trap whenever they are approached by any officer or branch. The Head of Branch.detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action.
(b) The decoy will present the money which hè will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the Investigating Officer/ Inspector in the presence of the independent witnesses and the Decoy indicating the numbers of the G.C. notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the Investigating Officer/Inspector. Another memo, for returning the G.D. noţes to the decoy will be prepared for making over the G.C. notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and Investigating Officer/ Inspector. The independent witnesses will take up position at such a place where from they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the Investigating Officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, RITU RAJ SINGH 14 | P a g e decoy and the accused as also his immediate superior who should be called as witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope."
13. We have also analysed the submissions raised on behalf of the parties on the point of strict compliance of the provision of Rule 704 and 705 of the Vigilance Manual. It is clarified at this stage itself that the present matter is not related to trap case rather it is a search / inspection. Admittedly, VPH was loaded at Gonda Railway station and search was made at Gorakhpur Railway Station. Nothing is brought on record on behalf of the applicant that during the journey between Gonda Station and Gorakhpur Station, the train concerned also remained stationed at any other station or place. From the entire facts adduced by the parties, the only finding can be recorded that after departure from the Gonda Station, the train concerned stopped at Gorakhpur only and the wagon concerned was detached from the train for the purpose of inspection. So far as the strict compliance of the provision of Rule 704 and 705 is concerned, it has been held in U.S. Awasthi (supra) case that these provisions are procedural in nature and if a strict compliance is not made, no presumption can be drawn that any sort of prejudice has occasioned to the applicant. Tribunal in the case of U.S. Awasthi (supra) in reaching the aforesaid conclusion has relied upon the law laid down by Hon'ble Supreme Court in the case of State Bank of Patiala and others Vs S K Sharma reported in (1196) 3 Supreme Court Cases Page 364. In this matter one of the witnesses of the inspection party was belonging to different department not related to Vigilance. Even if this fact is not taken into consideration, then also, in making the search, procedure adopted by the vigilance team cannot be invalidated on the ground that strict compliance of the provision of Rule 704 and 705 have not been followed. Thus, submission raised on behalf of the applicant in this respect is not acceptable.
14. Before discussing the other issues raised on behalf of the parties, we find it expedient to discuss at this stage itself that whether the applicant is estopped from challenging the orders challenged in RITU RAJ SINGH 15 | P a g e this OA as he has accepted the modified punishment and joined the duty.
15. In the case of Sanath Kumar Dwivedi (supra), service of the employee concerned was terminated but at later stage, punishment of termination was converted and modified into lesser punishment and in lieu thereof, employee concerned joined the duty. One of the conditions of the modified order was that the applicant will not be entitled for back wages. After joining the duty, he challenged the order for back wages and on that ground, Hon'ble Supreme Court observed that since the applicant had accepted the modified punishment and joined the duty thus at subsequent stage, he cannot claim back wages against the modified punishment.
16. In the case of Krishan Niwas (supra), which was relating to a criminal trial, the accused was facing trial for the offence under section 302 IPC. In the trial, conviction was modified into for the offence under section 325 IPC and punishment was imposed in accordance with the changed offence. In disciplinary proceedings, services of the employee concerned were removed but on the basis of order passed regarding modified offence, the authority concerned in departmental proceeding also modified the punishment thereby imposing lesser punishment with a condition that he will not be entitled for any arrear of wages. In that scenario, subsequent prayer to challenge the modified order passed by the disciplinary authority was turned down by the Hon'ble Supreme Court observing that after joining the duty, he cannot challenge the same.
17. In the case of Krishan Rai (supra), the Hon'ble Supreme Court has held that principle of estoppels cannot override the law. If the ratio laid down in the case of Krishan Rai (supra) and the case laws relied upon by the learned counsel for the respondents are taken into consideration, in the present matter, the punishment was modified to the punishment of reduction in rank by the appellate authority. This order was challenged in the OA. There is a specific provision under the service rule to challenge the order passed by the disciplinary authority before the appellate authority and order passed RITU RAJ SINGH 16 | P a g e by the appellate authority, through revision / review or in the OA before the Tribunal or Court. Therefore, in our considered view, in the facts and circumstances of the case, ratio laid down in Krishan Rai (supra) case is applicable. The applicant's challenge of the order passed by the appellate authority as well as the revisional authority cannot be turned down as statutory provision support the plea of the applicant.
18. As regards to the non furnishing of the copy of the label cards pasted on the gates and the other documents are concerned, there is some variation in the statement of witnesses. DW 1 Yamuna Prasad in his examination has clearly accepted that he had pasted Label cards on all the gates and sealed it. This fact is very much clear that the VPH concerned was loaded under the supervision of the applicant, he remained present till the wagon was sealed and card labels were pasted. It is also established from the pleadings and evidence of the parties that the VPH concerned also remained unattended at Gonda Station itself nearly 9 to 10 hours after sealing the door. It was loaded and sealed on 04.02.2006 at 03:25 PM but moved from Gonda station on 05.02.2006 at 01:05 AM . No one has seen the incidence of loading of extra pigs. Entire case is based on circumstantial evidence. RUD 3 relied upon by the prosecution itself reveals that all the four card labels were not kept safely. Had prosecution been able to prove this fact and provided the same to the applicant, in that situation, opinion formed in the orders under challenge were acceptable. It is noteworthy that appellate authority was also of the opinion that intactness of the card labels was not ensured by the inspection team before inspection / search. It is true that when the train started from Gonda station, it was next stopped at Gorakhpur only. But this fact itself is not sufficient to presume that extra pigs were loaded under the supervision of the applicant before sealing and labeling the VPH concerned. It is important to note that duty of the applicant had ended with the sealing and labeling but VPH remained standing for about 10 hours at Gonda station itself. Presumption of loading of 250 pigs can only be drawn against the RITU RAJ SINGH 17 | P a g e applicant if card labels pasted on each doors were intact. In this way, it can safely be held that opinion formed by the inquiry officer, accepted by the Disciplinary Authority, Appellate Authority and Revisional Authority are based on conjectures and surmises. It is purely a case of circumstantial evidence. Chain of circumstances is not fully linked with each other to form an irresistible opinion against the applicant. Thus, possibility shown by the applicant cannot be overruled. Opinion formed in the impugned orders in this regard is not acceptable.
19. Thus, in view of the aforesaid discussions and analysis, the instant original application is allowed. Impugned orders dated 12.07.2011, 20.10.2011 and 22.05.2012 are hereby quashed and set aside. The respondents are hereby directed to grant all the consequential benefits to the applicant as if the aforesaid orders were never issued against the applicant. The said exercise must be completed within three months from the date of receipt of certified copy of the order, without fail.
20. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
RITU RAJ
SINGH
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