Central Administrative Tribunal - Ernakulam
N.Somasekharan Pillai vs Union Of India Rep. By The Secretary on 26 July, 2016
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA 685/2013
Tuesday, this the 26th July, 2016
CORAM
HON'BLE MR.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P.GOPINATH, ADMINISTRATIVE MEMBER
N.Somasekharan Pillai, aged 58 years,
S/o. P.Narayana Plllal.
Sreerangam, Vallamkulam West P.O.,
Pathanamthltta - 689541. . . . Applicant
(By Advocate: Mr.M.P.Krishnan Nair)
Versus
1. Union of India rep. by the Secretary,
Ministry of Railways, Secretariat,
New Delhi -110 001.
2. The General Manager
Southern Railway,
Chennai - 600003.
3. The Chief Commercial Manager/
Catering & Passenger
Service & Revisionary Authority,
Southern Railway, Headquarters Office,
Personnel Branch, Chennai - 600 003.
4. The Additional Divisional Railway Manager &
Appellate Authority, Southern Railway,
Palghat - 678 001.
5. Senior Divisional Commercial Manager,
Southern Railway, Palghat- 678001.
6. The Assistant Commercial Manager,
Southern Railway, Palakkad. - 678 001.
7. The Inquiry Officer,
Office of the Senior Inquiry Officer,
Headquarters Office, Southern Railway,
Chennai 600 003.
8. Sri. V.D. Sunny,
Inquiry Officer, Southern Railway,
Chennai. - 600 003. . . . Respondents
(By Advocate: Mrs.K.Girija for R1-7)
The Original Application having been heard on 30 th June, 2016, the
Tribunal delivered the following order on 26/07/02016:-
ORDER
By N.K.Balakrishnan, Judicial Member At the relevant time the applicant was working as Senior Commercial Clerk at Thiruvalla. The charge framed against him is as follows:-
Sri Somesakaran Pillai, Sr.CC/MHE, while working as Sr.CC/TRVL at BO/TRVL on 10.01.2008, has committed serious irregularities and failed to maintain absolute integrity, show devotion to duty and acted in a manner unbecoming of a Railway servant, in that -
(i) He had not cancelled the tickets tendered by Sri M.Karthikeyan, CON 799/BBQ either manually or in the system, but re-issued the same and retained the clerkage charge of Rs.30/- for his personal gains.
(ii) He had an excess of Rs.34/- in his railway cash.
(iii) He subsequently produced Rs.300/- from his bag which was concealed at the time of giving first cash statement.
(iv) He refused to remit the excess cash of Rs.300/- produced at the time of check to railways.
Thus, Sri Somesakaran Pillai, Sr.CC/MHE, while working as Sr.CC/TRVL on 10.01.2008 had contravened the provisions of Rule 3.1. (i), (ii) & (iii) of the Railway Services (Conduct) Rules, 1966.
2. It is alleged that a departmental check was conducted at BO/TRVL at Thiruvalla on 10/1/2008 based on source information that some of the booking clerks at Thiruvalla were selling the tickets tendered for cancellation by passengers without accounting the clerkage charges for their personal gains. Two constables namely, M.Karthikeyan and N.Rajendran were nominated to act as passengers and as independent witnesses. Constable M. Karthikeyan was handed over a sum of Rs.130/- and he was instructed to buy 3 adult tickets. The other constable Sri N. Rajendran was to go along with Sri Karthikeyan to witness the transaction and over-hear the conversation between the booking clerk and Karthikeyan and to inform the matter to the Vigilance. It was stated that Karthikeyan had purchased two tickets (the numbers of which were shown in the charge) for 2 adults for travel from Thhiruvalla to Thiruvananthpuram and one adult ticket for travel from Thiruvalla to Thiruvananthapuram. It was found that those tickets were generated at 5.50 pm and 5.53 pm respectively. Sri Karthikeyan was then instructed to approach the booking office at Thiruvalla and tender the above tickets for cancellation and obtain the refund and to accept the version of the booking clerk for the refund effected. Sri Rajendran was also instructed to go along with Sri Karthikeyan to observe whether the booking clerk defaces/cancels the above tickets tendered for cancellation and to inform the vigilance waiting in the vicinity of the booking office at Thiruvalla.
3. On getting information from Sri Rajendran, the booking clerk at Thiruvalla at counter No.1 did not cancel the ticket either in the system or manually. The vigilance waited outside the hall at platform No.1. On checking the passengers who came out from the booking office, it was found that a group of six passengers were together and when questioned, they produced 4 tickets (the numbers are mentioned in the chart). On comparison with the second proceeding, it was found that the tickets purchased and tendered for cancellation by Sri Karthikeyan were available in the above bunch of tickets produced by the passengers. The passenger identified himself as Vinod Kumar of Vellanad who stated that he had purchased the tickets at booking office at Thiruvalla. He gave a statement in one page duly mentioning the individual ticket numbers in the presence of Sri G.Rajeev. The vigilance seized all the above 4 tickets issuing a free EFTT to the passengers. Later the applicant was questioned and the statement of the amount collected and available were verified. His declared personal cash was also verified. Since it was found that the applicant had committed the illegality which amounts to grave misconduct, the charge was laid against the applicant as mentioned earlier, to which the applicant submitted his written statement of defence. One Sri V.D.Sunny was appointed as inquiry officer; Sri C. Bhaskaran was nominated as presenting officer. The applicant was given the assistance of a defence helper. Part of the inquiry was conducted at Calicut and thereafter at Mangalore and then at Palakkad. Annexure A13 is the report of the Inquiry Officer. There is a detailed narration of the entire facts of the case. How the inquiry was conducted was also delineated in Annexure A13. The documents marked on the side of the prosecution and the statements of the witnesses are also seen incorporated in Annexure A13.
4. Sri Karthikeyan and Sri Rajendran mentioned above were examined as SW1 and SW2 respectively. One Sri K.G.Sukumaran was examined as SW3 and another person by name Sri B.Lional was examined as SW4. When Inquiry Officer put the mandatory questions to the applicant (the charged officer) he denied the charges. But he stated that he did not want to have any defence witnesses/documents at the time of conducting the inquiry. Similarly when he was asked whether he wanted himself to be examined, then also he stated that he did not want himself to be examined. He sought permission to submit his written defence brief. That was permitted. Written brief was submitted by him. It is stated that the presenting officer submitted his written brief on 9.12.2010 whereas the applicant submitted his written defence on 29.12.2010.
5. The main thrust of the argument advanced by the learned counsel for the applicant is that the two constables Sri Karthikeyan and Sri Rajendran are Tamil speaking persons. They gave their statements in Tamil. The applicant does not know Tamil. The inquiry officer and other persons also do not know Tamil and so the entire proceeding is vitiated. That argument is strongly resisted by the learned counsel appearing for the respondents. It is seen that the statements of Sri Rajendran and Sri Karthikeyan are seen recorded in Tamil. Applicant did not request that a translator should be provided when Sri Karthikeyan and Sri Rajendran were examined. Nor did he state that he could not understand what were the statements given by Sri Karthikeyan and Sri Rajendran mentioned above.
6. Annexure A10 is the statement given by SW4 -B.Lional who detected this case with the help of Karthikeyan and Rajendran, the constables mentioned above. A detailed narration has been given with respect to different acts done by him pertaining to the trap arranged by him at the booking office, Thiruvalla. All the documents were marked through this witness. The statement/deposition given by B. Lional (SW4) was signed not only by the witness but also by the inquiry officer, the defence helper and also by the applicant. The presenting officer also signed the said proceeding. Their signatures appear at the bottom portion of all the pages of the deposition of the witness. There was no complaint whatsoever for the applicant or the defence assistant as to the manner in which the deposition/statement of these witnesses was recorded. The deposition was recorded in English. Nowhere it was mentioned by the applicant or the defence assistant that there was any difficulty in conducting the examination (questions in cross examinations) of this witness. All the answers are seen recorded in English. There was a lengthy cross examination of this witness SW4. There is no case for the applicant that SW4 had any axe to grind or that he was on inimical terms with the applicant. The contemporaneous records prepared by SW4 were proved through him. Entries in those contemporaneous records do corroborate the statement given by SW4 as to each and every act or procedure done by him at the time of detection of the offence. After the cross examination, the mandatory question was put by the IO to the charged officer as to whether he has any defence witnesses/defence documents to be examined/produced on his behalf. A further question was asked whether he (the applicant) wanted himself to be examined as a witness on his side. It was stated by the applicant that he does not have any witness to be examined on his behalf but he sought permission to produce defence documents, if any, along with his written defence brief. Further it was stated that he does not want himself to be examined as a witness in his own case.
7. When the applicant was told that the presenting side (prosecution side) completed the production of documents and examination of witnesses in terms of Rule 9 (21) of Railway Servants (D&A) Rules, 1968 and so whether the applicant wishes to explain the circumstances appearing against him, which was adduced in support of the charges levelled against the applicant, the applicant denied the charges and then he sought permission to explain the circumstances by way of his written defence brief and so he sought permission to file his written defence brief on receipt of the presenting officer's written brief. In view of the answers given by the charged officer (the applicant) to the mandatory questions put to him, the inquiry officer recorded that the charged officer does not want to be examined as witness and opted to submit his written brief which was agreed to. The presenting officer was advised to submit his written brief on or before 25.11.2010 with a copy to the charged officer under clear acknowledgment. The charged officer was advised to submit his written defence brief in quadruplicate duly signed in all pages on or before 2.12.2010. The copies of the day's proceedings were supplied to the charged officer and the presenting officer and thereafter it was noted that the inquiry was completed in all respects.
8. As noted earlier, the main grievance was with respect to the examination of the two witnesses - Karthikeyan and Rajendran. Annexure A8 is the proceedings of the inquiry starting from 11.6.2010. The applicant was asked as to whether he received the charged memo. It is seen that all mandatory questions were put to the applicant. He only stated that he should be permitted to introduce additional defence document/defence witnesses at the appropriate stage, if found necessary. A complaint was raised by the applicant now in this original application that some of the original documents were not supplied to him. Question No.3 was whether applicant had perused the original documents cited in Annexure A3 of the charge memorandum and if so whether he had been supplied with the copies of the same. The answer given by the applicant is 'today I have perused the original documents and already received the copies of the same'. Question No.5 put to him was 'Do you have any additional defence documents/defence witnesses to be produced or examined on your behalf ', to which the answer given by him was 'I may kindly be permitted to introduce additional defence documents/defence witnesses at the appropriate stage, if found necessary'. All those papers are seen signed by the applicant and the defence helper. The order sheet explaining the procedure followed on each of those days was also prepared and it was signed by the charged officer and the defence assistant and also by the inquiry officer.
9. Annexure A9 (3) is the deposition given by M.Karthikeyan, the constable mentioned earlier, who was examined as SWI. All the questions were put to him in English and his answers were also recorded in English. The Defence Assistant had no grievance that they were not familiar with the language in which the statements of M.Karthikeyan and Rajendran were recorded. In all the pages of the deposition, the applicant and his defence assistant had signed. No complaint whatsoever was raised by him at any stage. Questions in cross examination were put to the witnesses by the defence assistant. Questions were put to Karthikeyan and Rajendran as to the procedure followed in laying the trap and the manner in which the officer (SW4) acted in seizing the documents and obtaining the statements etc. It could be seen, on going through the statements of Karthikeyan and Rajendran, that all necessary and relevant questions were put to those witnesses by the defence assistant and the answers were properly recorded in English by the inquiry officer. Since all the pages are seen signed by the charged officer and the defence assistant,the contention that the facts stated therein may not be correct, is palpably unsound.
10. Annexure A9 is the proceedings of the regular hearing in the disciplinary inquiry conducted against the applicant. The applicant and the defence assistant along with the inquiry officer and the presenting officer had signed the proceedings on each date. Annexures S1 to S17 were proved through the witnesses examined on the side of the presenting officer. Annexure S14 the statement given by N.Rajendran was marked through him. Annexure S15 is a similar statement given by M.Karethikeyan referred to above. Annexure S16 is the statement given by K.G.Sukumaran. All these statements were marked through the respective persons. Again, those statements were proved through SW4, the officer who detected this case. Question Nos 12 to 37 are the questions put to the witnesses by the defence assistant. The applicant and his defence assistant had no complaint regarding the answers given by this witness. In re-examination, two questions were put to SW1. It was asserted by that witness and Karthikeyan that S13 the final proceedings drawn at 9 pm on 10/1/2008 ( 4 sheets prepared by SW4) was prepared in the presence of this witness i.e. M.Karthikeyan. Question No.27 put by the defence assistant in cross examination is 'You have said in Ext.S.15 that within a short time the co-passenger who came after you, had asked for six tickets to TVC and the Booking Clerk had given six tickets including the three surrender for cancellation by you. Please say where were you at the time and where was Sri Rajendran?' The answer given to the same was ' We were very much available near the Counter.' Question No.28 was 'You have said in Ext.S.15 that the CVI/MAS was also watching the above transaction. Please say who was the CVI watching the above transaction?' The answer given to the same was 'Sri Lional.' Similarly, question No.32 was 'You have said in Ext.S.15, page 3 that the CVI had obtained a statement from the particular passenger and had taken over the above tickets from him duly giving him a free EFT. Please say where the particular EFT was given in exchange for the tickets?' The answer given to the same was 'There was a room near the entrance; there it was issued'. Question No.34 was 'Please peruse Ext.S.15 and reconcile that there is just a mention about CVI in all the three pages while describing different locations like the meeting at the CVI office on 02.01.2008 on your meeting at Virudhunagar on 09.01.2008, on your journey to Thenkasi, to Punalur, to TVRL Bus Stand, while writing Ext.S1, while handing over the money to purchase ticket and in all the activities narrated in Ext/S15. Kindly say who was tat particular CVI?' The answer given to the same was 'Sri Lional'.
11. There was no complaint whatsoever at any point of time during the inquiry that it was not possible to understand the statements given by M.Karthikeyan and Rajendran. In fact, questions were put to these witnesses by the defence Assistant relying upon the contents of the documents marked on the side of the prosecution. Similar questions were put to the witness Sri N. Rajendran. Question No.51 was 'You have said in Ext.S.14, page 2 that Sri Karthikeyan gave three tickets purchased by him to the CVI/MAS. Please say who was that CVI and also say whether he was the person who prepared another mahazor?' The answer given to the same was 'I do not remember the name of the CVI to whom the ticket was handed over and also do not remember which CVI has prepared the mahazor because more CVIs were available.' Question No.52 was 'You have said that after about half an hour of the purchasing of the tickets Sri Karthikeyan had surrendered the tickets for cancellation, please say was there any queue at that time and also say how long did you have to wait to reach the counter?' The answer was ' There were four people in the queue before Sri Karthikeyan. It took four minutes approximately to reach the counter.' Question No.55 was 'You have said in Ext.S.14 page 3 that 'within a little time a co passenger who was behind Sri Karthikeyan asked for six tickets from TRVL to TVC', please say whether the particular passenger happened to be there by accident or by virtue of your acquaintance?' The answer was: 'I don't know who was the said passenger.' Therefore, it is a case where the applicant or his defence assistant was in a position to understand the contents of the documents or the statements given by those witnesses.
12. The closure statement (the order sheet prepared by the inquiry officer) which was signed by the applicant and the defence assistant and other officers also make it manifest that no complaint whatsoever was raised by the applicant regarding the language barrier.
13. Annexure A10 is the statement given by Lional, the officer who detected this case. There is a detailed narration of the entire events that transpired there. The role of the witnesses including Sukumaran was well explained by this witness. The contention that SW3 Sukumaran was not there and that he reached there only to witness the preparation of the documents and that he had no occasion to witness the actual incident is found to be unsustainable. The fact that he was present at the time when the documents were prepared does not mean that he was not present when the actual incident took place. The documents would clearly show as to what actually transpired there. The evidence regarding the same was given by SW4 Lional. That gets corroboration from the statements of SW1 Karthikeyan and SW2 Rajendran as well.
14. Learned counsel for the applicant has relied upon Rule 185 of the Railway Protection Force Rules. Sub Section 5 therein says that if the witness gives evidence in a language other than Hindi or English, it may be, if practicable, taken down in that language. If it is not practicable to do so, a true translation in Hindi or English of the evidence shall be prepared and kept on record. The Railway Protection Force Rules, 1987 is not the rule relied upon in this connection. The statement of a witness when taken down shall be read over and if necessary be corrected and when a witness denies the correctness of the same, the presiding officer instead of correcting the evidence, may make a memorandum of objections made by such witness and shall record such remarks as he thinks necessary. That is applicable to a witness. Rule 186 therein says that when any evidence is given in a language which the presiding officer or the accused does not understand, the evidence shall be translated for the presiding officer or the accused in a language which the presiding officer or the accused understands. Sub Rule 2 of Rule 186 says that the presiding officer shall, for this purpose, either appoint an interpretor or shall himself act as an interpreter after taking oath on affirmation specified in Rule 180 (1). Sub Rule 3 of Rule 186 says that when documents are produced for the purpose of formal proof, it shall be in the discretion of the presiding officer to cause as much to be interpreted as appears necessary to him. The rule as aforesaid relates to the trial of offences under the Railway Protection Force. It is dealing with the procedure to be followed; how the evidence has to be recorded in a criminal trial and how the trial is to commence etc. Whatever that be, here no infraction of rule could be established by the applicant. We are not sitting here as an appellate court to reassess the evidence to find whether the authorities had come to the right conclusion based on the evidence adduced in this case. In the light of the evidence adduced, the inquiry officer enters the finding of guilt, which was accepted by the disciplinary authority and the appellate authority. We find no illegality in it.
15. The degree of proof required in a departmental inquiry is not so onerous as the one required to sustain a charge in a criminal trial. The charge in a disciplinary inquiry can be proved by pre-preponderance of probabilities. In Annexure A13, the inquiry officer has narrated the entire aspects, the evidence tendered by SW1 to SW4 and the documents relied upon by the prosecution. There has been a critical analysis of the evidence adduced in support of the charge.
16. The main contention urged by the applicant that since the statements of M.Karthikeyan and N.Rajendran were given in Tamil, the applicant had no occasion to understand the same since no translation was given is found to be devoid of any merit. At no point of time was any challenge made against the same by the applicant.
17. It was vehemently argued by the counsel for the applicant that witness Vinod Kumar was not examined in this case and that Ext.S11 statement would show that the charged official had made endorsement as seen at the time of the check and affixed his signature on the document. It is argued by the learned counsel for the applicant that since Vinod Kumar came only late, there was no occasion for him to witness the incident. We are not here to put questions to the witnesses as to the time when he actually reached there or from where he did actually witness the incident. Referring to Ext S11 it was stated that the applicant had made an endorsement as 'seen at the time of check' and thereafter affixed his signature on the document. So much so the contention that Vinod Kumar had no occasion to see the incident is found to be a travesty of truth. The evidence given by other witnesses and the documents produced in support of the charge were meticulously examined by the inquiry officer.
18. It is also pointed out by the learned counsel for the respondents that Annexure A8 proceedings and the order sheet No.1 and 2 would prove that the applicant along with his defence helper had answered 6 questions of the inquiry officer, which were put in English. That was on 11/6/2010. It is also seen that those answers were given after perusing the original documents on that day itself. They also requested the inquiry officer to permit them to submit additional defence documents or additional witnesses at the appropriate stage of inquiry. Therefore, it is crystal clear that it was with the assistance of the defence assistant/defence helper that the applicant cross- examined those witnesses in English. 26 questions were put to SW1. 13 questions were put to SW2 and some questions were put to SW3 &SW4 also in English. It is also seen that the applicant had made submissions to the Inquiry Officer in English. The entire proceedings were written by the applicant himself in English in his own hand writing. Therefore, the contention that he could not understand the statement made by the two witnesses - Karthikeyan & Rajendran in Tamil will not in any way help him to contend that the inquiry was not conducted properly and regularly or that any sort of prejudice was caused to the applicant. The charge memo was issued in English and the reply to the same was also furnished in English. Not only that, assistance of a defence helper was provided, who conducted the examination of witnesses in English. No plea was raised by the defence helper as well that he wanted the assistance of somebody else to understand the statements given by the witnesses. While answering Question No.89, the applicant stated that he had no defence witness to be examined. His request was only to provide defence documents, if any, along with a written brief. That was permitted also. These aspects, including the adduction of evidence during the inquiry, have been highlighted by us only to say that the inquiry was conducted fairly and properly in accordance with the procedure laid down for that purpose.
19. It is also borne out from records that the copies of the day's proceedings were given to the charged official as well and he signed it for having received the same. If, as a matter of fact, the proceedings were not done/written regularly on the same day, the applicant or his assistant, while signing it, could have put the date, if as a matter of fact, it was given on some other date. There was no such case for the applicant or the defence assistant. The contention that the proceedings were not typed and issued to them on the same day is thus found to be untrue.
20. It is also worthwhile to note that the applicant was expected to submit his written brief on 9/12/2010. He submitted it only on 29.12.2010 which would also show that the inquiry officer had shown much indulgence in granting time to the applicant for filing the written submission. Since all the questions were put to the witnesses in English and answers were recorded in English, the contention that the inquiry was vitiated because of the language barrier is found to be bereft of any merit.
21. The other contention advanced by the learned counsel for the applicant is that no opportunity was given to the applicant regarding the punishment proposed to be imposed on him. There is no dispute regarding the fact that the inquiry report was furnished to the applicant. He had also submitted his written brief regarding the same. It is true that no notice was issued to the applicant inviting his objections to the penalty proposed to be imposed. But there is no such mandatory rule which requires the delinquent officer to be given opportunity to submit his defence against the proposed punishment. The proviso to Article 311 (2) of the Constitution of India was incorporated by the 42nd Amendment Act, 1976, which was brought into force with effect from 3/1/1977. The proviso reads:-
'Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.' Since Article 311 itself has been amended incorporating the proviso as mentioned above, the contention that the delinquent officer should have been given an opportunity to make his representation on the proposed penalty is found to be unsustainable.
22. After the Constitution Bench decision in B.Karunakar, 1993 (4) SCC 727, the law is well settled that it is for the charged officer to prove prejudice by the non-supply of the inquiry report or any other report, it is argued on behalf of the respondents. Unless prejudice is shown, the disciplinary proceedings cannot be simply interfered with.
When the inquiry officer is not the disciplinary authority, the delinquent employee has a right to receive the copy of the inquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. But here there was no denial of the inquiry officer's report before the disciplinary authority took its decision on the charges. There was no denial of reasonable opportunity to the employee to prove his innocence and there was no breach of the principles of natural justice as well.
23. It is with a view to ensure that the delinquent employee is not treated unfairly that the requirement of the report to the delinquent employee is made a sine qua non for a valid, fair, just and proper procedure So far as the case on hand is concerned, that procedure was duly complied with. But issuance of a notice prior to the punishment proposed to be imposed is not warranted in view of the proviso to Section 311 (2 ) of the Constitution of India.
24. It is trite law that unnatural expansion of natural justice and stretching concept of justice to illogical and exasperating limits is antithetical to justice. It is also axiomatic that mere procedure irregularity or slight variation of natural justice, even if there is any, cannot vitiate the decision rendered by the disciplinary authority. The technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice, vide decisions of the Supreme Court in S.L.Kapoor Vs. Jagmohan & Ors. [AIR 1981 SCC 136]; S.K.Singh Vs. Central Bank of India & Ors [1996 6 SCC 415]; Aligarh Muslim University & Ors Vs. Mansoor Ali Khan [2000 (7) SCC 529]; State of U.P. Vs. Harendra Arora & Ors {AIR 2000 1 SCC 2319] and Union of India Vs. B.D. Dogra [2010 (1) SLJ 100].
25. We are also reminded of the fact that judicial review by the Tribunal is not akin to adjudication on merit by re-appreciating the evidence as an appellate authority. Court/Tribunal is denuded of the power to re appreciate the evidence and to come to its own conclusion on the proof of a particular charge. The law on the point adumbrated by the Hon'ble Supreme Court is that judicial review is limited only to the process of making the decision and not against the decision itself and in such a situation, the court cannot arrive on its own independent finding. (See the decisions of the Hon'ble Supreme Court in High Court of Judicature at Bombay through its Registrar Vs. Udaysingh & Ors. [AIR 1997 SC 2286], Govt of A.P. & Ors Vs. Mohd.Nazarullah Khan [AIR 2006 SC 1214]), Union of India & Ors. Vs. Manab Kumar Guha [2011 SCC 535]; Union Of India & Another vs G. Ganayutham [1997 7 SCC 463] and P.C.Kakkar's case [2003 4 SCC 64]).
26. Yet another argument advanced by the applicant's counsel is that Sri Vinod Kumar was not examined in this case and so there is no acceptable material to find the applicant guilty. Evidence adduced even in a criminal case has to be assessed on the basis of the evidence that has been already adduced by the prosecution and not based on the non-examination of a particular witness. If the evidence already on record is sufficient to prove the guilt, then the non-examination of any other witness cannot tilt the balance in favour of the defence. Whatever things transpired on that day at the relevant time, when the trap was arranged and whatever documents prepared and seized at that time are seen well narrated by the witness SW4 Lional. All the documents produced at the relevant time which are contemporaneous in nature, do support the evidence given by SW4 regarding the complicity of the applicant and prove the charge levelled against him.
27. It is pertinent to note that though the applicant was questioned several times by the inquiry officer, it was repeated by him that he has no defence witness to be examined or defence documents to be produced. Therefore the contention vehemently advanced by the learned counsel for the applicant that proper opportunity was not given to the applicant must fall to the ground. The contention that the inquiry officer has blindly accepted the written brief of the presenting officer and he simply prepared Annexure A13 without proper application of mind is also found to be devoid of any merit. There is a detailed discussion of the evidence adduced on the side of the prosecution and the contention raised by the defence. When the authority concerned (here the inquiry officer) after careful analysis of the evidence finds that the version put forward by the prosecution is more probable, reasonable and acceptable, it cannot be said that a different conclusion should have been arrived at by the inquiry officer. When the disciplinary authority assigned with the jurisdiction to assess the evidence comes to a conclusion and enters a finding regarding the same, the Court/Tribunal cannot substitute its view as if it is a criminal appellate court.
28. Though the applicant contends that the inquiry officer did not arrive at the conclusion independently based on the evidence adduced by the prosecution and the case suggested by the defence, no specific instance was pointed out as to what was the material point that was omitted to be considered or to show that the conclusion arrived at on any specific point was wrong, based on the evidence available on record. Making an omnibus statement that the inquiry officer did not apply his mind or that there was no proper analysis of the evidence cannot alter the position. Rule 10 of the Railway Servants (Discipline & Appeal) Rules 1968 makes it clear that the disciplinary authority will consider the inquiry report and if necessary, recall and examine the witnesses and if considered necessary, can remit the case for further inquiry. But if the inquiry report is accepted, the disciplinary authority will forward the same to the charged employee calling for his representation. The applicant was given opportunity to submit his written brief. It was after considering the representation made by the applicant the disciplinary authority found the applicant guilty of the charges framed against him. The contention that before imposing the penalty the applicant should have been again given notice is not the requirement of law as has been stated by us in the earlier paragraph.
29. In the OA, it was also pointed out by the applicant that the Station Manager Sri Salim had enmity towards him and so it was at his instance the trap was arranged. Except the bald and unfounded allegation made in the OA, no tangible material was produced by the applicant during the inquiry in substantiation of such a plea. No such case was actually pleaded, suggested or raised during the inquiry. In fact, it is found to be only a ground invented by the applicant to create a smokescreen, the respondents contend. There is nothing on record to show that M.T.Salim mentioned above had animosity towards the applicant or that the trap was arranged in order to wreck vengeance on the applicant. It is a case where the applicant was caught red- handed for not cancelling the tickets mentioned in the report prepared by the detecting officer. The seizure report and other documents prepared then and there would speak volumes as to the correctness of the procedure followed in the matter. The evidence given by the witnesses - SW1 to SW4 - did support the prosecution version. No other circumstance could be brought out by the defence to suggest that the oral and documentary evidence adduced in support of the charge is tainted with illegalities or is unacceptable in law.
30. The only other point that survives for consideration is whether the penalty imposed on the applicant is shockingly disproportionate. Normally the court cannot substitute its own conclusion of penalty in the exercise of the power of judicial review. If only the penalty imposed by the disciplinary authority, confirmed by the appellate authority, shocks the conscience of the Court, it would in appropriate case, mould the relief either by directing the authority to reconsider the penalty imposed. In exceptional and rare cases, in order to shorten the litigation, the court itself may impose appropriate punishment with cogent reasons in support thereof. (See the decisions of the Supreme court in B.C.Chaturvedi Vs. Union of India & Ors [AIR 1996 SC 484] and S.R.Tiwari Vs. Union India and others [2013 (6) SCC 602]). In short, judicial intervention is permissible only if it is found that the penalty imposed does not commensurate with the charges. Only if the court comes to the conclusion that the penalty imposed is shocking the conscience of the court, the question of judicial review as to the quantum of punishment would arise for consideration.
31. In this case though the disciplinary authority imposed the penalty of removal from service, the appellate authority showed leniency by modifying the penalty to that of compulsory retirement from service with 80% pension and 80% gratuity in terms of Rule 64 of Railway Servants (Pension) Rules, 1993. As per Annexure A20, the revision petition was dismissed confirming the penalty imposed on the applicant. Since the appellate authority has already shown leniency in the matter of penalty, which was confirmed by the revisionary authority, we find no reason to hold that the penalty imposed on the applicant is outrageously disproportionate so as to warrant interference with the same. In view of what is stated above, this OA is dismissed. No order as to costs.
(P. Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.