Central Administrative Tribunal - Jodhpur
Mukesh Deora vs M/O Railways on 21 October, 2024
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290/00277/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00277/2013
Reserved on : 03.09.2024
Date of Pronouncement: 21.10.2024
CORAM
HON'BLE Mr JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE Dr AMIT SAHAI, MEMBER (A)
Mukesh Deora S/o Shri Chiman Singh Deora, aged about 35
years, R/o Jaloriyan Ka Bass, "Adharsheela", inside Nagauri
Gate, Jodhpur.
(The applicant was working on the post of Booking Clerk,
Jodhpur.)
......Applicant
By Advocate : Mr Dilip Vyas.
Versus
1. The Union of India, through the General Manager, North-
West Railway, Jaipur-17 (Raj).
2. Assistant Divisional Railway Manager, North-Western
Railway, Jodhpur Division, Jodhpur.
3. Senior Divisional Commercial Manager, North-Western
Railway, Jodhpur Division, Jodhpur.
......Respondents
By Advocate : Mr K.S. Yadav.
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290/00277/2013
ORDER
Per : Hon'ble Mr Justice Rameshwar Vyas Being aggrieved by the order dated 12.12.2011 (Annex. A/2), whereby, the disciplinary authority imposed upon the applicant the penalty of compulsory retirement from service with immediate effect under Railway Servants (Discipline & Appeal) Rules, 1968, and also aggrieved with the order dated 21.01.2013 (Annex. A/10) whereby, the appeal submitted by the applicant against the penalty order was dismissed by the appellate authority, the applicant has preferred this OA with a prayer to quash and set aside above orders, as also praying for his reinstatement with consequential benefits.
2. The facts necessary to adjudicate this OA are as under:-
"2.1 Vide memorandum dated 10.04.2008 [Standard Form No. 5] (Annex. A/11), the applicant was served upon the charge sheet for committing gross irregularities and misconduct while functioning as Booking Clerk at Jodhpur Station on various dates namely 14.03.2005, 16.03.2005, 12.04.2005,03.05.2005 & 27.02.2005. As per the Article of Charges, on the mentioned dates, he fraudulently prepared ARTS generated ticket for higher value then prepared Non Issue (NI) Ticket and again gave command on the very next ticket for low value ticket but this time he brought ticket blank, deliberately obliterated the last digits and attached the NI ticket with a motive to pocket the difference of low value ticket to high value ticket and caused loss to the Railway.3
290/00277/2013 Five charges were framed against the applicant in pocketing the difference amount of high value ticket and low value ticket on various dates while functioning as Booking Clerk, Jodhpur Station in various shifts by adopting the same modus- operandi.
2.2 The Presenting Officer (PO) and the Defence nominee were appointed. The applicant denied the charges. The inquiry was conducted by the inquiring authority. After concluding the inquiry, the PO submitted its brief on 11.02.2011 (Annex A/12). As per inquiry report, charges were found proved against the applicant.
2.3 After receiving the copy of the inquiry report, the applicant filed representation on Oct-2011 (Annex. A/13) against it. After going through the representation against the inquiry report, and also record of the inquiry file, the disciplinary authority vide order dated 12.12.2011 (Annex. A/2) passed the penalty of compulsory retirement from service. Aggrieved with the above order, the applicant filed an appeal (Annex. A/14), which was rejected vide order dated 21.01.2013 (Annex. A/1) 2.4 Being aggrieved with the above orders, the applicant has filed this OA with a prayer to quash and set aside above orders.
2.5 It is the case of the applicant that he was compelled to accept some points and deposit the amount. The Vigilance failed to collect a high value ticket at the destination. He has 4 290/00277/2013 categorically raised some points in his reply against the inquiry report. The disciplinary authority committed an error in rejecting his defence, averred the applicant. The charges framed against the applicant are based on suspicion. The witnesses were dictated by the vigilance officer. The IO wrongfully considered the evidence of some witnesses and has also dropped many witnesses. The statement recorded by the IO was made under pressure. The four prosecution witnesses were dropped whereby the applicant was deprived from his legitimate right of defence. It is also the case of the applicant that torn tickets were the result of defective printer. The shift Supervisor had passed some remarks in the supervisory diary but those remarks have not been given place in the inquiry report. The allegations of non-issuance of tickets at destinations are based on presumption, which cannot be relied upon. It is also the case of the applicant that he was tried twice for the same matter as the second charge sheet was issued on similar type of irregularity arising out of one investigation. The earlier charge sheet was based upon the ticket numbers said to have been issued on a later date than to those shown in the second charge sheet. It was not disclosed why the tickets of earlier date were not included in the first charge sheet. This was clearly a splitting up of charges which is prohibited under the law. It is also an alternate plea of the applicant that the penalty imposed upon him is harsh and disproportionate to the nature of allegations levelled against him.5
290/00277/2013 2.6 In view of the above, the applicant prayed to allow this OA.
2.7 As per reply filed by the respondents, charge sheet dated 13.06.2005 (Annex. A/5) deals with the misconduct dated 19.04.2005 and 27.04.2005. The plea of the CO that the statements were recorded by the IO under pressure does not hold ground. Torn tickets were produced in the inquiry and were admitted by the CO to be prepared by him. Shift Supervisor's remarks in the diary were not passed particularly for the ticket fraudulently prepared by the CO. Shift Supervisor failed to check some tickets carefully while sending them to the Accounts Office. The misconduct carried out by the CO has been proved from his statement, and also the examination of the documents and witnesses. Dropping of some of the witnesses in the inquiry by the IO was with the consent of the defence nominee. Contradicting the claim of the applicant, the respondents prayed to dismiss the OA."
3. Heard learned counsel for the parties and perused the material available on record.
4. Learned counsel for the applicant contended that in the year 2005, a memorandum of charges was issued to him on 13.06.2005 with regard to committing the same offence on 19.04.2005, 27.04.2005 and 03.05.2005. In that inquiry, the applicant was found guilty and was imposed a penalty of reduction to a lower stage in the time scale of pay from 3540/- to Rs 3200/- (the initial pay of grade 3200-4900/- RSRP) for a period of ten years with cumulative effect. In 6 290/00277/2013 view of this, the applicant cannot be charge sheeted for committing the same misconduct previous to the dates in the previous inquiry. The second inquiry initiated against the applicant is hit by the doctrine of double jeopardy.
It is further submitted that, misconduct alleged to be committed on 03.05.2005 by the applicant was already inquired in the previous inquiry, therefore, incident on 03.05.2005 cannot be re-inquired in the instant inquiry. The respondents committed grave error in initiating two different inquiries for the alleged misconduct during the period from 27.02.2005 to 03.05.2005. it is further contended that the allegations of misconduct committed by the applicant during the above period cannot be split up. When in the previous inquiry, the respondents decided to inquire the incident of 19.04.2005, 27.04.2005 and 03.05.2005, then the respondents cannot be permitted to initiate another inquiry for the period prior in time to 19.04.2005 and 27.04.2005. It is contended by learned counsel for the applicant that SPT Machine was introduced in the year 2002 but when torn tickets were issued by the SPTM on account of technical problems, manual issuing of the tickets was also made permissible.
It is further submitted that the tickets of long distance high value were not produced during the inquiry. Statements of the witnesses were recorded under pressure. The Supervisor also did not point out any misconduct on the part of the applicant. Some witnesses were dropped causing 7 290/00277/2013 prejudice to the defence of the applicant. The applicant did not get any opportunity to cross-examine the evidence of Vijay Singh.
It is further contended that both charge sheets were the result of the influence of vigilance. It is also the contention of the applicant that punishment imposed upon him is disproportionate to the conduct of the applicant. The charges are not specific and are vague in nature. In view of this, he prayed to allow this OA.
In support of his arguments, learned counsel for the applicant relied upon the following judgments:
(i) Roop Singh Negi v. Punjab National Bank & Ors, 2009 (2) SCC 570;
(ii) Union of India & Ors v. Gyan Chand Chattar, (2009) 12 SCC 78;
(iii) Union of India through G.M., N.E. Railway, Gorakhpur & Ors v.
Rayees-Ul-haque & Anr, Writ-A No. 57572 of 2012 before Hon'ble Allahabad High Court decided on 16.11.2018.
5. On the contrary, learned counsel for the respondents submitted that, in the first inquiry initiated against the applicant, the incident of 03.05.2005 could not be inquired on account of non-availability of the records. After inquiry by the Vigilance, it was revealed that the applicant committed misconduct by adopting the same modus-operandi on some other dates also, therefore, the applicant has been issued a second charge sheet for committing misconduct on the dates different to dates in the previous charge sheet. It is further submitted that the inquiry was conducted in the presence of the applicant and his defence nominee. No allegation of 8 290/00277/2013 pressurizing the witnesses was made by any witness during the course of the inquiry. The allegations levelled by the applicant are totally false and after-thought.
It is further submitted that the applicant himself admitted his guilt. The inquiring authority found the charges proved against the applicant after elaborate discussion of the evidence. This Tribunal cannot re-appreciate the evidence as an appellate authority. The appeal filed by the applicant against the order of the disciplinary authority has already been decided. The applicant failed to indicate any lacunae in the procedure followed during the inquiry by concerned authority. The disciplinary authority had already taken a lenient view in imposing the penalty of compulsory retirement. On the previous occasions also, the applicant was found guilty and punished with the penalty of reduction into a lower stage in the time scale of pay. The applicant by pocketing difference of amount of low value to high value tickets caused loss to the Railways. In view of this, learned counsel for the respondents prayed to dismiss the OA.
6. Before dealing with the case of the applicant, it would be appropriate to consider the law laid down by Hon'ble Courts in the judgments relied upon by counsel for the applicant. In the matter of Gyan Chand Chattar (supra), Hon'ble Supreme Court in para 29 of the judgment observed as under:
"29. In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the 9 290/00277/2013 same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
In the matter of Rayees-Ul-Haque (supra), the Hon'ble Allahabad High Court after referring various judgments on the issue of double jeopardy, observed as under :
"The principles deducible upon a conspectus of the authorities noticed herein above as also cited by the learned counsel for the petitioner are: (a) that on the same charge, in absence of rule to the contrary, only one disciplinary inquiry is permissible unless for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law; and (b) that on the same charge an employee cannot be punished twice. However, in a given situation, it may be permissible to impose punishment as well as effect recovery of the losses caused to the establishment/ employer as a consequence of the misconduct on which punishment has been imposed. Such a recovery would not be hit by doctrine of double jeopardy as has been held by the Apex Court in Commr. Of Rural Development v. A.S. Jagannatham, (1999) 2 SCC 313."
In the matter of Roop Singh Negi (supra), the Hon'ble Supreme Court referred to the observations made in the matter of Moni Shankar v. Union of India and Anr. ,(2008) 3 SCC 484 that ".....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."
7. Keeping in view the law laid down in the above judgments, considering the facts of the present case, it emerges that on previous occasion, the applicant was issued charge memorandum on 13.06.2005 (Annex. A/5), which relates to the incidents of 19.04.2005, 27.04.2005 & 10 290/00277/2013 03.05.2005. Except the incident of 03.05.2005, the inquiry in the instant matter relates to the different dates namely 14.03.2005, 16.03.2005, 12.04.2005 & 27.02.2005 to the dates of incidents in the previous inquiry. Therefore, the doctrine of double jeopardy is not applicable in the present case. The respondents were within their power to conduct the different inquiry for misconduct of the applicant committed on different dates. It makes no difference that all incidents of misconduct are similar in nature with the same modus operandi adopted by the applicant. We are not in agreement with the contention of learned counsel for the applicant that issuing two charge sheets will amount to splitting the charges. In our opinion, the alleged misconduct committed on each single day is complete in itself for which a separate charge sheet may be issued against him. We are also of the view that in misconduct of serious nature, the respondents may not be restrained to initiate disciplinary proceedings on account of delay only. Some acts of the employee may not come into the knowledge of disciplinary authority on account of various reasons. We are of the view that incidents in the present matter were either not noticed by the immediate Supervisor or were not taken note of for reasons best known to them. Complete incidents came in open only when the Traffic Accounts department minutely checked the record.
As far as the incident of 03.05.2005 is concerned, in the previous charge sheet, this charge could not be examined as RUDs were seized by the vigilance department. In view of this, we are of the opinion that the respondents did not 11 290/00277/2013 commit any error in framing one of the charges relating to the incident dated 03.05.2005. The judgments relied upon by learned counsel for the applicant on this point is not applicable in the present case.
So far as the contention of learned counsel for the applicant that some of the witnesses were dropped by the PO, we are of the view that the department is the best judge with regard to production of evidence on their behalf. In case, the CO would have wanted to produce any witness left by the prosecution, he was at liberty to make a request for summoning the witness but in the present case, the applicant did not pray for summoning any person as witness in support of his case. In view of this, the applicant cannot take any advantage of the fact that the respondents dropped some of the enlisted witnesses.
It is the contention of learned counsel for the applicant that higher value tickets were not produced during the inquiry. In this regard, we would like to say that collection of the ticket at the conclusion of the journey by the passenger used to be performed in a very casual manner for which we can also take judicial notice. Therefore, non-producing high value tickets cannot be made a ground to reject the case of the Department.
At this juncture, it would be appropriate to remind that principle of proving the case beyond reasonable doubt is not applicable in the quasi-judicial departmental proceedings. The decision in the department proceedings are based upon the preponderance of probabilities. In the present case, the 12 290/00277/2013 disciplinary authority rightly raised the question how the applicant handled the passenger demanding a ticket of long distance involving high value when he non-issued the ticket. In our considered view, in any such type of cases, circumstantial evidence plays a vital role, therefore, the respondents committed no error in holding the applicant guilty based upon the circumstances appearing against him. Apart from it, the applicant never raised the issue of getting torn ticket to any of the authorities in the Railway.
After going through the inquiry report, we note that the IO prepared the inquiry report elaborately after analysing the evidence and dealing with all relevant questions raised against the guilt of the CO. It is to be noted that the applicant has neither produced the inquiry report nor assailed the same in this OA. Inquiry report was produced by learned counsel for the respondents during the course of the arguments. We see no reason to reject the detailed inquiry report dated 05.09.2011, agreeing to which the disciplinary authority passed the order against the applicant.
It is a well settled principle of service jurisprudence that this Tribunal cannot sit over as an appellate authority over the order of the disciplinary authority and appellate authority. In view of this, we see no reason to interfere with the findings of the disciplinary authority to the effect that CO committed serious fraud deliberately and wilfully for pocketing the difference amount of low value to high value and rendered loss to the Railway. The disciplinary authority in support of his conclusion gave very strong seven reasons to hold the 13 290/00277/2013 applicant guilty. We find no irregularity or lacunae in the decision process adopted by the disciplinary authority. The appellate authority also found that there is no procedural irregularity or lacunae while conducting the disciplinary proceedings against the applicant. The contentions raised by the applicant are meritless.
So far as contention of learned counsel for the applicant that the penalty imposed upon the applicant is not proportionate to his conduct, we note that on previous occasion also, the applicant was found guilty of such mal- practices. The allegations against the applicant are of very serious nature. The modus operandi adopted by the applicant shows his mentality. We feel that by imposing a penalty of compulsory retirement, the respondents have already taken a sympathetic view.
In view of this, we find no merit in the instant OA. The same is liable to be dismissed.
8. Resultantly, this OA is dismissed with no orders as to costs.
(Amit Sahai) (Rameshwar Vyas)
MEMBER (A) MEMBER (J)
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