Central Administrative Tribunal - Delhi
Gyan Dev Prasad vs Union Of India Through on 15 July, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2216/2013 M.A. No.1706/2013 Reserved On:02.07.2014 Pronounced On:15.07.2014 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member(A) Gyan Dev Prasad S/o Shri Ram Sarup Prasad R/o 335, Sector-21B, Faridabad (Haryana). .Applicant By Advocate: Shri Yogesh Sharma. Versus 1. Union of India Through The General Manager, Northern Railway, Baroda House, New Delhi. 2. The Additional Divisional Railway Manager/OP, Northern Railway, Delhi Division, DRMs Office, State Entry Road, New Delhi. 3. The Sr. Divisional Commercial Manager/C, Northern Railway, Delhi Division, DRMs Office, State Entry Road, New Delhi. 4. The Divisional Commercial Manager/SS, Northern Railway, Delhi Division, DRMs Office, State Entry Road, New Delhi. 5. The Divisional Traffic Manager, Northern Railway, Delhi Division, DRMs office, State Entry Road, New Delhi. Respondents By Advocate: Shri P.K. Singh. ORDER
Shri G.George Paracken, M(J) In this Original Application, the Applicant Shri Gyan Dev Prasad has challenged charge sheet dated 13.12.2004, the Inquiry Officers report communicated to him vide letter dated 31.05.2011, the penalty order dated 05.01.2012, the Appellate Authoritys order dated 22.08.2012 and the Revisional Authoritys order dated 20.03.2013 on the ground that they are illegal and contrary to the rules.
2. Brief facts: While the Applicant was posted as Enquiry and Reservation Clerk (E&RC for short) at Faridabad Station under the Northern Railway, he was served with Memorandum dated 16.11.2004/13.12.2004 proposing to hold an enquiry against him under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The statement of articles of charges framed against him and attached with the said Memorandum was as under:-
That Shri Gyan Dev Prasad, E&RC/FDE while working as such on 30.11.2003, 03.12.2003, 04.12.2003 & 05.12.2003 and manning Counter No.433 in reservation office/Faridabad had committed the following acts of omission & commission:-
1) That Shri Shri Gyan Dev Prasad, E&RC/FDE is responsible for generating PNR Tickets for (i) Train No.2626 (HNZM-UJN) IInd AC for Shri Vijay, M-54, (ii) Train No.2626 (BPL-Vijaywada) dated 04.12.2003 IInd AC to Shri Vijay, M-54 and (iii) Train No.2626(BPL-Vijaywada) dated 14.12.2003 IInd AC for Shri Vijay, M-54 against false Circular Tour Ticket N0.575835 bearing stamp of CBS/IRCA/New Delhi without verifying its genuineness although he admitted in his statement that first PNR should be generated from the location from where the Circular Tour Ticket issued. Thereby he misused the official capacity with this dishonest motive and facilitated the passenger in defrauding Railway by violating the Railway Rules.
2) He is responsible for his failure in endorsing the Circular Tour Ticket at the time of generating the PNR as he admitted that all endorsements on Circular Tour Tickets were in handwriting of the passenger himself.
3) He is also responsible for generating PNR tickets for 04.12.2003 in Train No.2626 Ex.BPL to Vijaywada against the same Circular Tour Ticket No.575835 although it is JCO date was 11.12.2003 during his duty at Counter N0.433 on 04.12.2003 by accepting the Acquisition slip at S.No.25.
By the above act of omission and commission Shri Gyan Dev Parsad, Enquiry & Reservation Clerk/N.Railway, Faridabad failed to maintain absolute integrity, exhibited lack of devotion to duty, acted in a manner unbecoming of a Railway Servant and thereby contravened the provision of Rule No.3.1(i), (ii) & (iii) of Railway Service Conduct Rules, 1966.
3. According to the Applicant, even though there were 9 listed documents along with the aforesaid Memorandum, none of those documents were supplied to him so as to make an effective defence statement. However, the Respondents appointed Shri M.K. Sharma, an officer from the vigilance department as the Inquiry Officer and the date for enquiry was fixed as 09.03.2005. On the said date, the Applicant requested the Inquiry Officer to supply the copies of the relied upon documents and also requested to allow him to inspect those documents. The Inquiry Officer adjourned the hearing from time to time, as the Disciplinary Authority failed to produce the original copies of the relied upon documents and to supply the copies thereof. Later on, the Disciplinary Authority changed the Inquiry Officer Shri M.K. Sharma and appointed Shri Yogesh Sharma, another officer from the vigilance department, in his place. Shri Yogesh Sharma conducted the subsequent proceedings and submitted his report, a copy of which has been communicated to the Applicant vide Respondents letter dated 31.05.2011. According to the said report, all the 3 charges have been proved. The relevant part of the said report is as under:-
7. Discussion of evidence on the charges.
Charge-1: That Sh. Gyan Dev Prasad, E&RC/FDB is responsible for generating PNR tickets for (i) Train No.2416 (HNZM-UJN) IInd AC for Sh. Vijay, M-54 & (iii) Train no.2626 (BPL-Vijaywada) Dt. 14.12.03 IInd AC to Sh. Vijay, M-54 & (iii) Train No.2626 (BPL-Vijaywada) dt. 14.12.03 IInd AC for Shri Vijay, M-54 against False circular tour ticket No.575835 bearing stamp of CBS/IRCA/New Delhi without verifying its genuineness although he admitted in his statement that first PNR should be generated from the location from where the circular tour ticket issued. Thereby he misused the official capacity with his dishonest motive & facilitated the passenger in defrauding Railway by violating the Railway Rules.
7.1 It is evident from the Ex-P-1(ii), the copy of the CTT no.575835 that three reservations were done on this CTT as per the PNRs, mentioned above, CO also admitted the fact vide his statement Ex-P-9, CO has further strengthened the fact in his defence statement and defence brief that these reservations were done by him. In support of the fact he also attached the DTC details with his written statement of defence. CO in his statement vide Ex-P-9 admitted that first PNR should be generated from the location from where the circular tour ticket issue. Thus from the admittance of the CO vide his statement it is clear that CO had generated PNR tickets for (i) Train No.2416 (HNZM-UJN) IInd AC for Sh. Vijay, M-54 (ii) Train No.2626 (BPL-Vijaywada) Dt. 04.12.03 IInd AC to Sh. Vijay, M-54 & (iii) Train No.2626 (BPL- Vijaywada) dt. 14.12.03 IInd AC for Sh. Vijay, M-54 against circular tour ticket No.575835 bearing stamp of CBS/IRCA/New Delhi although he admitted in his statement that first PNR should be generated from the location from where the circular tour ticket issued. It is also evident from the statement of Sh. Abhimanyu Shukla, PW-1 (Ex-P-6) in the case that the CTT Number 575835 produced before him in the name of Sh. Vijay, M-54 is a fake CTT as this number of CTT has been issued to Sh. N.K. Singhal for a different amount and destination as per their office record. PW-1 also confirms his statement during his examination and cross-examination. The fact is also strengthen by the document Ex-P-7, the letter of the Manager/P&5/SSB that the CTT No.575835 in the name of Sh. Vijay is not a genuine, thus it is clear from these documents that CTT No.575835 in the name of Sh. Vijay is not a genuine CTT.
COs plea that the CTT No.575835, Ex-P-1(ii) is not that CTT on which he has made the reservations is not at all acceptable, as the details of the CTTs i.e. name and destination of the original CTT and Ex-P-1(ii) are similar and this cannot be coincidence or some miracle, admittance of CO that he has generated PNRs on the CTT for Sh. Vijay is therefore treated as generation of the PNRs on the CTT No.575835 copy of which is placed as Ex-P-1(ii). Thus there is no any other CTT in question as claimed by the CO in his defence.
Regarding non-supply of the rules violated by the CO, it is pertinent to mention hear that ignorance of rules is no excuse. Co if not knowing about the rules of reservation on the CTT, should have not done any of the reservation in past as well as in future or he should have contacted to his seniors for advice, which he has not attempted in this case. This act of the CO clearly shows that he has something on back of the mind and he misused the official capacity with his dishonest motive & facilitated the passenger in defrauding Railway by violating the Railway Rules.
Regarding correction/overwriting etc. on the CTT it is the duty of the concerned ERC i.e. CO in this case to point out the observations and not to do any reservation on this invalid CTT.
Hence from above discussions and evidences the charge is proved.
Charge-2: He is responsible for his failure in endorsing the circular tour ticket at the time of generating the PNR as he admitted that all endorsements on Circular tour tickets were in handwriting of the passenger himself.
7.2 It is evident from the Ex-P-9, the statement of the CO that he admitted on being asked by the II/RB that he had asked the passengers to make the endorsement on the CTT at his own. CO also mentioned the fact in his defence statement that none of the endorsements on the CTT was in his handwriting, which also supports the fact that CO has not made any endorsement on the CTT No.575835, Ex-P-1(ii).
CO in his defence pleaded that the statement Ex-P-9 of the Co has been taken under duress is not acceptable as this statement was recorded in the presence of his CRS/FDB and who countersigned on all the pages of the statement. CRS/FDB has not mentioned any kind of duress in this document. COs allegation of the duress is an afterthought story which has no legs to stand.
Plea taken by the PO in his brief is also acceptable and it also supports the charge and facts.
Hence from above discussion and evidences the charge is proved.
Charge-3: He is also responsible for generating PNR tickets for 04.12.03 in train NO.2626 Ex-BPL to Vijaywada against the same Circular Tour Ticekt No.575835 although its JCO date was 11.12.03 during his duty at counter No.433 on 04.12.003 by accepting the requisition slip at S.No.25.
7.3 It is evident from the Ex-P-9, the statement of the CO that he has generating PNR tickets for 04.12.03 in train No.2626 Ex-BPL to Vijaywada against the same Circular Tour Ticket No.575835 although its JCO date was 11.12.03 during his duty at counter No.433 on 04.12.003 by accepting the requisition slip at S.No.25. CO further admitted the fact in his defence that he has wrongly generated the said ticket and then cancelled the same. This act clearly shows that this was the same CTT on which CO has made reservations and it has been cited as Ex-P-1 (ii). PO also supported the charge in his brief, which are accepted as CO has also admitted the fact in his defence brief. Hence, from above discussions and evidences the charge is proved.
8. Conclusion & Findings.
From the discussion of available record of the enquiry, documentary, oral as well as defence adduced during the enquiry proceedings, the findings are as under:-
Charge No.1 is proved as discussed in Para-7.1 above.
Charge No.2 is proved as discussed in Para-7.2 above.
Charge No.3 is proved as discussed in Para-7.3 above.
4. Against the said report, Applicant made his representation dated 15.06.2011 but the Disciplinary Authority passed its order dated 05.01.2012 imposing a penalty of reduction in pay at initial stage in same grade, i.e., 5200-20200+2800 GP for a period of 5 years with cumulative effect. The relevant part of the said order reads as under:-
After applying my mind I find as under :-
Charge No.1 In your defence you have pleaded that you did not generate ticket on CTT no.575835. Your statement was recorded by the investigating inspector/vigilance under duress threat. You further pleaded that copy of the rule which was violated by you was not provided to you during the inquiry. Both your pleas are not accepted because the statement recorded by I.I./vigilance does not bear any sign which shows that it was recorded under duress threat. The statement was recorded in presence of CRS/FDB, if it so then you should report the matter to your senior subordinate and your controlling officer. During the enquiry while reply to Q No.8 you deposed that you reported the matter to CRS only but you do remember whether it was orally or in writing which clearly shows that it was a afterthought story. It also evident from reservation requisition forms vide ex II 8/1,/2, 8/3 that you made reservation on the authority of CTT no.575835 which was found to be not genuine vide Ex-P-7 letter issued by the manager/Prg. & Sty. NRly., SSB. Thus it is clear that you generated the ticket No.575835 without verifying its genuineness. During the check you have admitted that first PNR should be generated from the location from where the circular tour ticket was issued which clearly shows that you have knowledge that there is a rule for generating the PNR on CTT. Hence I agree with the enquiry officers findings thus the charge is proved against you.
Charge No.2 You have pleaded in your defence that at the time of issuing of ticket on CTT there was no over writing and neither there was signature of passenger nor it was checked by checking staff and your statement was recorded by the Investigating Inspector/Vigilance under duress/threat. You further pleaded that you requested to EO during the enquiry that CRS/FDB be called a court witness through your demand of additional defence documents. Vide Ex.P-9 which was recorded during the check that you admitted that you generated ticket on CTT No.575835 and you were tallying with the particulars mentioned on CTT from passenger. Thus your plea is an afterthought because you admitted during the check that you did not endorsed the CTT due to heavy rush. Therefore, it established against you that you fail to endorse the CTT at the time of generating the PNR.
Charge No.3 You have pleaded in your defence that the ticket was wrongly generated on 03/12/2003 and this was cancelled on 04/12/2003 then why this charge made against you as the ticket was not exist. You further pleaded that neither any passenger was traveled on this ticket nor there was any loss to railway administration and after cancellation the ticket there was no survive of this ticket. Yours these pleas are not tenable because it is evident from Ex.N.P-9 recorded during the check that you generated the PNR ticket for 04/12/2003 in train No.2626 ex BPL to Vijaywada against the same CTT No.575835 although its JCO date was 11/12/2003 during your duty on counter No.433 on 4/12/2003 and accepted the requisition form/slip at S.No.25. This fact is further accepted by you that you wrongly generated the said ticket and then cancelled the same. This is clearly shows that this was the same CTT on which you have made reservation and it has been cited as Ex.P-1(ii). Thus it is clear from the above fact that you are responsible for the charge.
In view of the above discussion, I hold you responsible for the charges leveled upon you vide SF-5 dt. 16/11/04 and therefore, I imposed the penalty of reduction in pay at initial stage in same grade i.e. 5200/- in grade 5200-20200+2800 GP for a period of five years with cumulative effect.
Accordingly your pay is reduced with immediate effect from 14480/- to 5200 in Grade Rs.5200-20200-(+2800) for a period of five years with immediate effect.
5. Against the aforesaid order, the Applicant made his appeal dated 21.02.2012 requesting to quash and set aside the aforesaid order of the Disciplinary Authority but the Appellate Authority, vide its order dated 22.08.2012, only reduced the penalty of reduction of pay from 5 years to 3 years with cumulative effect, considering his plea for mercy. The said order reads as under:-
Sub: Appeal against the order of punishment or reduction in pay at initial stage in same grade for a period of five years with cumulative effect awarded by DA.
Under Rule 22(2) of Railway Servant (Discipline & Appeal) Rules, 1968. I have gone through the charges, evidences on record, your defence and your appeal dated 21.02.2012 against the orders of punishment of reduction in pay at initial stage in same grade for a period of five years with cumulative effect awarded by DA.
In view of your mercy plea, I hereby decide to reduce your punishment for reduction for five years to reduction for three years with cumulative effect.
Please acknowledge the receipt.
Sd/-
(Samir Kumar) Sr. Div. Comml. Manager/C New Delhi.
6. Against the aforesaid orders of the Disciplinary Authority as well as the Appellate Authority, the Applicant submitted his Revision Petition dated 05.10.2012 seeking an order to quash and set aside them. However, the Revisional Authority again only further reduced the penalty vide order dated 20.03.2013. The said order reads as under:-
No new evidence has been brought out by you. I found you futility in this case of gross procedural lapses & careless working provided to you. However, mala fide is not established. Neither the charges put allege connivance nor is it established in proceedings.
I, therefore, take a lenient view in the matter. The punishment is revised to reduction in pay initial stage in same time scale for a period of one year with cumulative effect.
7. The Applicant has challenged the aforesaid charge sheet dated 13.12.2004, Inquiry Officers report communicated to him vide letter dated 31.05.2011, penalty order dated 05.01.2012, the Appellate Authoritys order dated 22.08.2012 and the Revisional Authoritys order dated 20.03.2013 on various grounds. His first contention is that the charges leveled against him were absolutely vague. Even though there was a specific charge against him that he misused the official capacity with his dishonest motive and facilitated the passenger in defrauding Railway by violating the Railway Rules, neither the Inquiry Officer nor the Disciplinary Authority has mentioned any rules which have been violated by the Applicant. The Inquiry Officer also failed to prove that the Applicant has misused the official capacity with his dishonest motive. He has also submitted that the aforesaid position has been clearly brought out by the Revisional Authority in his order wherein it has been stated that there was only procedural lapses and careless working on the part of the Applicant. The Revisional Authority has specifically held in its order that neither any mala fide nor the charge alleged of connivance or anything of the type has been established in the proceeding. In this regard, he has referred to the daily order sheet of the enquiry dated 21.01.2010 annexed with this Original Application. According to the said order sheet, the Applicant has demanded the following documents but they were not supplied to him as there was no rules governing the allegations made against him:-
S.No. Document demanded Reason for not permitting being not relevant to charges as:
1. Photocopies of complete rules specifying under which conditions free EFT is issued. No specific rule number indicated in the list.
2. Photocopies of relevant rules/Circular issued if any restraining the ERC. No specific rule number indicated in the list.
3. Photocopies of the direction/rules for making the endorsement on the CTT. No specific rule number indicated in the list.
4. Photocopy of the direction/rules got noted by the CO. No specific rule number indicated in the list.
5. Photocopy of rules taught to the reservation clerk. No specific rule number indicated in the list.
6. Photocopy of rules taught to the TTE for checking of genuineness of fake ticket. No specific rule number indicated in the list.
7. Photocopy of rules, which provides the methods/system to verify the genuineness of CTT. No specific rule number indicated in the list.
8. Photocopies of the rules/instructions of type of frauds running. No specific rule number indicated in the list.
9. Photocopies of MR i.e. Rs.8900/- fare of fake CTTs No.575835 and 575922 for the loss. No specific MR number indicated in the list.
The Disciplinary Authority has also not supplied him those documents to him on the same ground that no such rules governing them were in existence. He has also submitted that the Inquiry Officer has not taken into consideration of his defence brief to hold him not guilty even though his submissions were simply included in the report which reads as under:-
a. Rule Violated: CO is not obliged issuing a ticket to a passenger unless there are any guidelines, circular/orders issued by the competent authority for the staff. There is no rule available in this office at present as mentioned by CO in his request for addl. documents. Moreover, the alleged violated rules were not adduced during the course of entire proceedings by any of the officers, i.e., the DA, PO and PW-2. It may be appreciated under the above circumstances how the case could be contested by the poor employee to save his skin from being blamed, hence the charge is not made out at all.
8. Further according to the Applicant, both Shri M.K. Sharma and Shri Yogesh Sharma who have conducted enquiry as Inquiry Officers, belong to the vigilance department of the Respondent-Railways. Therefore, the enquiry conducted by them was not fair and their endeavour was to somehow prove the charge leveled against him by the vigilance officers.
9. The Respondents have filed their reply stating that as per source information, two passengers were going to travel in Train No.2416 Ex.HZNM to UJN in Coach No.A-1 and Berth No.21 & 23 on 11.12.2013 against false Circular Tour Ticket No.575835 & 575922, the vigilance team investigated the matter on 30.11.2003, 03.12.2003, 04.12.2003 and 05.12.2003 in the Reservation Office Faridabad wherein the Applicant was manning counter No.433. The vigilance team found that the Applicant was generating PNR Tickets against false Circular Tour Ticket No.575835 for which he was served with the aforesaid memorandum of major penalty charge sheet. Accordingly, a check was conducted in the aforesaid train between Mathura and Sawai Madhopur on 12.12.2003. During the said check, it was detected that one Shri Anil Kumar Dutta was found traveling on berth No.23 in Coach No.A-1 against PNR ticket reserved against Circular Tour Ticket No.575922 and one Shri Vijay Kumar was found traveling on berth No.21 in Coach A-1 against PNR ticket reserved against Circular Tour Ticket No.575835. They have further stated that the Applicant has denied the aforesaid allegations vide his representation dated 17.12.2004. Therefore, an enquiry was held in the matter and Shri M.K. Sharma was nominated as Inquiry Officer. Later on, when he was relieved from his office on 31.05.2007, Shri Yogesh Sharma was nominated in his place vide order dated 13.06.2007.
10. The Respondents have also stated in their reply that reasonable opportunities were provided to the Applicant at every stage of enquiry but he could not prove himself innocent during the enquiry. Thus the charge has been proved against the Applicant. The Applicant was also served with the copy of the enquiry report and he submitted his reply to the same. The Disciplinary Authority has considered the submissions on the report of the Inquiry Officer as well as the representation made against the same by the Applicant and came to the conclusion that the Applicant deserves to be imposed with the penalty of reduction in pay at the initial stage in same time grade, i.e., 5200 in grade 5200-20200 + 2800 GP for a period of 5 years with cumulative effect. The Appellate Authority has considered the Appeal of the Applicant and reduced the punishment of reduction on the basis of the mercy plea of the Applicant from 5 years to 3 years with cumulative effect. The Revisional Authority also further reduced the penalty taking a lenient view in the matter. However, in its order, the Revisional Authority has observed that the Applicant has not brought any new evidence for setting aside the order of the Disciplinary and Appellate Authorities. The Revisional Authority also found him guilty of gross procedural lapses and careless working even though no mala fide was established against him.
11. As regards the appointment of the officers of the vigilance department as Inquiry Officers is concerned, the learned counsel has submitted that in terms of Indian Railway Establishment Manual regarding posting and tenure of officers in the Vigilance Organisations, Inquiry Officers from different departments under the Railways are prepared and in the said panel the vigilance officers are also included. Therefore, he has submitted that contention of the Applicant that the officers working in the vigilance department have been appointed as Inquiry Officers in his case, is not correct. The relevant paragraph 1208.2 is reproduced as under:-
1208.2 The normal establishment rules applicable to regular selection posts need not be applied in the case of selection of Vigilance Inspectors, but the panel so drawn, is to be approved by the Chief Vigilance Officer of the Railway/PU personally. For filling up of a vacancy of a Vigilance Inspector, the normal procedure of considering candidates from the respective departments (e.g. Civil Engineering, Traffic, Stores, Mechanical Engineering, Personnel, Accounts etc.,) should be followed. Along with these candidates, the Vigilance Inspectors of the particular discipline already working in the lower grade in the Vigilance Organisation may also be considered provided they are eligible on the basis of their grade in their own cadre in their department.
12. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri P.K. Yadav. We have also perused the Departmental Enquiry file made available by the Respondents. Admittedly, the Applicant was charge sheeted on the basis of the report of the vigilance team which conducted a check in Train No.2416. During the check, the vigilance team found that two persons were found traveling against a false Circular Tour Ticket No.575835. The said ticket was found to be issued by the Applicant who was manning counter No.433 at Reservation Office, Faridabad. The vigilance team obtained a statement from him that all endorsements on Circular Tour Tickets were in handwriting of the passenger himself, that first PNR should be generated from the location from where the circular tour ticket issue, that he had asked the passengers to make the endorsement on the CTT at his own, etc. On the basis of the said report of the vigilance team, the Disciplinary Authority issued the charge sheet to the Applicant stating that without verifying the genuineness of those two Circular Tour Tickets, the Applicant should have generated the PNR first from the location from where the Circular Tour Ticket was issued. By the said action, the Applicant has misused the official capacity with his dishonest motive and facilitated the passenger in defrauding Railway by violating the Railway Rules. The other charge against him was that he failed in endorsing two tickets by generating the PNR and he admitted that endorsements on Circular Tour Tickets were in handwriting of passenger himself. The Applicants contention before the Inquiry Officer was that those statements were obtained by the vigilance team under duress but it was not accepted by the Enquiry Officer in his report. It is in this context the submission of the Applicant that the enquiry was not held in a fair manner assumes importance. Admittedly, the Applicant was charge sheeted based on the report of a vigilance team. In such a situation, the enquiry should not have been conducted by the vigilance officers themselves. The contention of the Respondents that the Inquiry Officers who are vigilance Officers of the Railways were part of the panel prepared by them and, therefore, their appointment was in order, cannot be accepted. In a departmental proceeding, fairness and adherence to the principle of natural justice are two essential requirements. When the vigilance officers are working as Inquiry Officers, their endeavour is to see that the report of the vigilance team is upheld. This is exactly what has happened in this case also. The Honble Supreme Court in Union of India Vs. Prakash Kumar Tandon 2009 (2) SCC 541 held as under:-
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.
13. Further, the Disciplinary Authority stated in the charge sheet that the Applicant misused the official capacity with this dishonest motive and facilitated the passenger in defrauding Railway by violating the Railway Rules. Since the aforesaid charge did not contain any specific rule alleged to have been violated by the Applicant, he sought for the details of the rules relied upon by the Respondents in the charge sheet. It is seen from the daily order sheets produced by the Applicant along with this OA that the Respondents have clearly admitted that there were no such rules. Thus the charge against the Applicant that he violated the Railway Rules is nothing but a vague statement. Further, as regard the charge that the Applicant misused the official capacity with his dishonest motive and facilitated the passenger in defrauding Railway by violating the Railway Rules, the Revisional Authority has clearly held in its order that no mala fide has been established against the Applicant. Rather there were only procedural lapses and carelessness on the part of the Applicant. The Revisional Authority has also held that the alleged connivance stated in the charge sheet has not been established. It is a settled position of law that even though strict rules of evidence are not applicable in departmental enquiry proceedings, the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer [Bank of India and Another VS. Degala Suryanarayana 1999 (5) SCC 762]. Again, the Apex Court in the case of Union of India Vs. J. Ahmed 1979 (2) SCC 286 held in clear terms that negligence or inefficiency in the performance of duty does not amount to misconduct. It was also held that an act or omission or lack of efficiency or failure to attain highest standard of efficiency in discharge of duty attached to public office would ipso fact not constitute misconduct. The Apex Court again in its judgment in the case of Inspector Prem Chand Vs. Government of NCT of Delhi and Others 2007 (4) SCC 566 held that error of judgment or negligence simpliciter would not be misconduct. The aforesaid position of law was followed by this Tribunal also in OA No.4000/2010 S.A. Khan Vs. U.O.I. The operative part of the said order reads as under:-
.We have come to a firm conclusion that there is distinction between misconduct and not performing the duties as efficiently as another person similarly situate may be able to perform. Misconduct has to have some element of delinquency, may be, even gross negligence. It is only when the allegations subject matter of charge may tantamount to misconduct that a person can be proceeded for inflicting any of the punishments prescribed in the rules. Non-performance of duties, which may have no element of unlawful behaviour, willful in character, improper or wrong behaviour, misdemeanor, misdeed, impropriety or a forbidden act, may some time amount to not carrying out the duties efficiently, but the same cannot be construed to be misconduct. If decisions that may ultimately prove to be less beneficial to an organisation for which a person is working are to be termed as misconduct liable for punishment under rules, no person discharging his duties would be able to take any major decision.
14. In view of the above position, we are of the considered view that the charge sheet dated 13.12.2004 against the Applicant is not only absolutely vague but also factually incorrect. Therefore, the findings of the Inquiry Officer that the charges leveled against the Applicant have been proved is to be treated as perverse. Consequently, we also find that the orders of the Disciplinary Authority, the Appellate Authority and the Revisional Authority based on the aforesaid charge sheet and the Inquiry Officers report dated 31.05.2011 also cannot be sustained. We, therefore, allow this OA and quash and set aside the impugned charge sheet dated 13.12.2004, Inquiry Officers report communicated to him vide letter dated 31.05.2011, penalty order dated 05.01.2012, the Appellate Authoritys order dated 22.08.2012 and the Revisional Authoritys order dated 20.03.2013. We further hold that the Applicant is entitled for all the consequential benefits including restoration of pay with refixation of pay with arrears of difference of pay and allowances. However, in the facts and circumstances of the case, we are not inclined to grant any interest on the arrears as prayed for by the Applicant. The Respondents shall comply with the aforesaid direction within a period of 2 months from the date of receipt of a copy of this order.
15. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh