Central Administrative Tribunal - Allahabad
Udai Shankar Singh vs Union Of India Through General Manager on 20 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 20th day of March , 2013 ORIGINAL APPLICATION NO. 1414 of 2010 HONBLE MR. SANJEEV KAUSIK, MEMBER- J HONBLE MR. SHASHI PRAKASH, MEMBER-A Udai Shankar Singh, S/o Late Ram Awadh Singh, R/o Vill. & Post Gahani, District- Mau. Applicant. V E R S U S 1. Union of India through General Manager, North Eastern Railway, Gorakhpur. 2. Additional Divisional Railway Manager, North Eastern Railway, Varanasi. 3. Senior Divisional Operating Manager, North Eastern Railway, Varanasi. 4. Divisional Operating Manager, North Eastern Railway, Varanasi. . . . . . . . . . . . . Respondents Present for the Applicant: Sri S.K. Om Present for the Respondents: Sri Avanish Tripathi O R D E R
By Honble Mr. Shashi Prakash, AM By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the impugned orders dated 20.09.2005, 25.05.2006 and 22.03.2007 with further direction to the respondents to pay entire arrears of salary and benefit of seniority with other consequential benefits to him.
2. The facts of the case are that on 12.02.2003 the applicant while working as Guard on Train No. 574 Dn when checking took place by the vigilance team. It is alleged that the team recovered Rs. 95/- from him out of which Rs. 30/- was found to be given during the decoy with identification. The applicant was charge sheeted on 16.03.2003 and on the basis of inquiry report submitted by the Inquiry Officer on 10.06.2004 (Annexure A-9), penalty of compulsory retirement from service was imposed by the Disciplinary Authority vide order dated 20.09.2005 (Annexure A-1). The order of Disciplinary Authority was upheld by the Appellate Authority vide order dated 18.05.2006 (Annexure A-2) and subsequently by the Reviewing Authority vide order dated 22.03.2007 (Annexure A-3).
3. In the present original application it has been averred on behalf of the applicant that the respondents had not applied their mind while passing the impugned order. It has been stated that before laying the vigilance trap organized by Vigilance Cell, a joint note was prepared by the members consisting of Chief Vigilance Inspector , Vigilance Khalasi and Vigilance Helper which is totally violative of para 704 and 705 of Vigilance Manual. According to it, it was for the vigilance team to have included at least two gazzeted officers as independent witness. It is also stated that in the departmental inquiry conducted against the applicant none of the statement of witnesses corroborated the charges nor the statement of all the prosecution witnesses were tallied with each other. It is also stated that the RUDs, joint notes and the personal cash declared by the applicant were sealed in the office of Station Master, Fefna in the absence of the applicant and this fact had been admitted by the Chief Vigilance Inspector during the inquiry proceeding. It has been stressed that the inquiry report dated 10.06.2004 is wholly arbitrary and perverse as the contradictory statement made by the prosecution witnesses have not been taken into account. All these facts have been explained by the applicant in his reply dated 12.07.2004 but the Respondent No. 4 without considering the points raised by the applicant in his reply had passed order dated 20.09.2005 (Annexure -1) imposing the penalty of compulsory retirement from service. It has been claimed on behalf of the applicant that the impugned orders have been passed by the respondents are illegal, violative of rules provided in Vigilance Manual and without application of mind therefore his services could not have been dispensed with through process of compulsory retirement.
4. In the Counter Reply on behalf of the respondents it has been stated that the trap case and decoy case made by the Vigilance Department are two different mode of inquiries. The trap case is organized by the vigilance team against a particular person, whereas the inquiry and decoy case is always organized for checking of irregularities or misconduct after receiving complaint against employees. It is also stated by the respondents in para 6 of the Counter Reply that the inquiry, which was conducted against the applicant by the vigilance team, was actually a decoy check as it was not against any particular person but was organized on the basis of complaint regarding irregularities and illegal gratification by the Guard. It is further stated that during the inquiry proceedings, the applicant was given full opportunity to be heard and to defend himself and ultimately the charges against the applicant were found fully proved as per the report of Inquiry Officer. Further, it has been stated that the penalty of compulsory retirement was imposed keeping in view the gravity of charges against the applicant. The Disciplinary Authority as well as the Appellate Authority and the Reviewing Authority had passed the impugned orders after careful thought and consideration of the material on record and hence there is no case for interference with these orders.
5. Heard rival submissions and perused the pleadings on record.
6. The focus of argument of the learned counsel for the applicant is that the trap conducted against the applicant was not in accordance with the provisions laid down in the Vigilance Manual specially para 704 and 705 (hereinafter referred to Manual) . Learned counsel argued that para 704 and 705 of the Manual clearly provides to include at least two gazetted officers as independent witnesses and in the absence of such witnesses the decoy is liable to be vitiated. In support of his contention learned counsel for the applicant has placed reliance on the case of Moni Shankar Vs. Union of India and another Vs. Union of India and another 2008 (3) SCC 484 and order of this Tribunal dated 08.10.2010 passed in O.A No. 1242/2009 Dr. R.K. Verma Vs. U.O.I & Ors. Learned counsel further argued that the Manual also provides that the witnesses selected should not have appeared as witness in earlier cases of department and it would be safer to take as witness a Government employee who belongs to some other department. It is also contended that during the course of the inquiry proceeding neither the applicant has been provided adequate opportunity of being heard nor the statement of prosecution witnesses showed discrepancies and inconstancies. .
7. On the other hand Shri A. Tripathi, learned counsel for the respondents drew our attention to para 307 of the Manual which, according to them, lays down the procedure required to be followed in decoy check which was followed in the instant case by the Vigilance Team. Learned counsel for the respondents further submitted that para 704 and 705 of the Manual pertain to the trap cases and is not applicable in the instant case. He contended that the trap case is to be conducted by the Vigilance Department against a particular person whereas, in the decoy check no employee is targeted but is undertaken for checking of irregularity and misconduct on receipt of complaints. As the inquiry against the applicant by the Vigilance Team was only a decoy check, therefore, the provisions of para 704 and 705 do not apply in the present case. On the point that no proper opportunity was given to the applicant during the course of inquiry, learned counsel for the respondents argued that a perusal of inquiry report would indicate that the inquiry has been conducted as per the procedure and the inference of the facts of taking bribe was arrived at by the Inquiry Officer based upon the documents and the facts as emerging during the inquiry.
8. We have considered the rival submissions and we feel that a proper appreciation of the relevant provision of Railway Vigilance Manual specially para 307, which has been referred by the respondents themselves, is necessary. Para 307 carries the heading Departmental Trap Cases Procedure & Guidelines. Accordingly, any action taken invoking provisions of this para, has necessarily to follow the guidelines and procedure laid therein. The provisions relevant in the instant case are reproduced belowe : -
307. Departmental Trap Cases Procedure & Guidelines:
307.1 The Railway Vigilance department also carries out decoy checks. These checks require careful planning, selection, execution and documentation for success. The need for a very good information network and regular flow of information from the field cannot be over emphasized, for it is only this that leads Vigilance to the right person at the right time.
307.2 ............
307.3 ............
307.4. In addition, one or more responsible gazetted officer/ officers should be associated with the check to act as independent witness/ witnesses as far as possible. However, in certain exceptional cases, where gazetted officers are not available immediately, services of non-gazetted staff can be utilized. It is imperative that all Railway employees should assist and witness a trap whenever they are approached by the Vigilance branch. Refusal to assist or witness a trap without sufficient reason can be construed as breach of duty, making the person liable to disciplinary action.
307.5. Proper execution of the trap is very important. The following important points should be kept in view : -
(i). One or more responsible and impartial witness/witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification. This would squarely meet the likely defence of the accused as the money was actually received as a loan or something else.
(ii). The transaction should be within the sight and hearing of the independent witness/witnesses.
(iii). There should be an opportunity to catch the culprit red-handed immediately after the bribe money has changed hands so that the accused may not be able to get rid of it.
(iv). The witnesses selected should not have appeared as witnesses in earlier cases of the department. It is safer to take as witness a Government employee who belongs to some other department.
(v). It is preferable to take a written complaint from the decoy. The complainant must specifically give the name of the person receiving the money, motive for receipt, the actual amount, date, time and place of the transaction .
9. It would be seen from the above provision that an important component of a decoy check involves deputation of responsible and impartial witnesses to act as an over-hearer and establish the fact that illegal gratification has taken place. It is also emphasized that the witnesses should be those who have not appeared in earlier case of the department and should preferably belongs to some other department. Furthermore, the very heading of para 307 as Departmental Trap Cases Procedure & Guidelines makes it clear that decoy check is a constituent of a departmental trap and the procedure laid therein has to be followed. In some instances a plea was taken that the provisions of Vigilance Manual being merely administrative instructions/executive orders and therefore non-adherence to its provision would not necessarily invalidate the departmental proceeding. In this regard we feel that while the instructions may not be imperative but the very fact that they have been laid down with a view to obviate possible harassment of the employees, a substantial compliance of the same is considered to be necessary. This position has been clarified in the case of Moni Shanker (Supra) in para 23 wherein it has specifically observed that such departmental notifications cannot be totally agreed. In the present case, it is seen that there were no independent witnesses associated with the exercise of decoy check as required under para 307.5.1. It is observed that the team comprised two Chief Vigilance Inspector, one Vigilance Khalasi, who was used a decoy and one Vigilance Helper. Thus entire team consisted of employees from the Vigilance Department. The requirement of having independent witness of some other department was not met. The way the exercise was undertaken gives an impression that since only the employees of vigilance department were associated it was more in nature of a frame-up than a decoy check as per the extant provisions. In this regard it may be relevant to refer to the judgment of Apex Court in the case of Union of India Vs. Gyan Chand Chattar 2009 (12) SCC 78 wherein it has been held that an enquiry is to be conducted against any person in strict adherence of the statutory provisions and principle of natural justice. Given the facts and circumstances of the case the entire exercise of decoy check, based upon which the disciplinary proceedings has been initiated against the applicant, thus gets vitiated and liable to be set aside.
10. Accordingly, the Original Application is allowed. Since the exercise of decoy check has been held vitiated, the impugned order dated 20.09.2005 and subsequent orders dated 25.05.2006 and 22.03.2007 are quashed and set aside. The applicant is held entitled for all consequential benefits except arrears of pay and allowances. No costs.
(Shashi Prakash) (Sanjeev Kaushik)
Member-A Member-J
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O.A No. 1414/10