Central Administrative Tribunal - Bangalore
Mahendra Singh vs M/O Railways on 30 October, 2019
1 OA.No.170/00481/2018/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH: BANGALORE
ORIGINAL APPLICATION NO.170/00481/2018
DATED THIS THE 30th DAY OF OCTOBER, 2019
HON'BLE DR.K.B.SURESH, JUDICIAL MEMBER
HON'BLE SHRI C.V.SANKAR, ADMINISTRATIVE MEMBER
Mr.Mahendra Singh
Aged about 52 years
S/o Sri Ram Shankar
Working as Senior Material Manager
South Western Railways, Mysuru
Permanent resident of:
A-5, Anand Apartment
Jawahar Chowk
Sabarmati, Ahamedabad-380005. ....Applicant
(By Advocate M/s.Naajre Law Chambers)
Vs.
1. The Union of India
Ministry of Railways
Railway Board
Rail Bhavan, New Delhi-110001.
By its Chairman.
2. General Manager (Vigilance)
Western Railway
Headquarter Office
Church Gate, Mumbai-400020.
3. General Manager
South Western Railways
3rd Floor, East Wing, Gadag Road
Hubli-580020.
4. Mr. R.C.Punetha
ADRM & Enquiry Officer
South Western Railway
Keswapur, Hubli-580020. ...Respondents
(By Advocate Sri N.S.Prasad for R1-4)
ORDER
(PER HON'BLE SHRI C.V.SANKAR, MEMBER (ADMN) The factual matrix of the case is as follows:
2 OA.No.170/00481/2018/CAT/Bangalore Bench While the applicant working as Sr.Material Manager, Diesel Loco Shed, Sabarmati Western Railways, Ahmedabad, Gujarat state, a vigilance team under the supervision of 2nd respondent conducted a departmental trap against him on 16.8.2007 on the information about the indulgence of disapproving activities by him. The respondents conducted a decoy check to verify the activities of the applicant with the help of a firm dealing with Railways one Mr.Anil Rochani, the proprietor of M/s Anil Enterprises, Vadodara who is dealing with the Railways since six years. The said team was formed with nine persons and they conducted the said check by using Rs.500x5 currency notes, a digital voice recorder and two letters dtd.16.8.2007 of M/s Anil Enterprises, Vadodara. Applicant submits that according to the respondents, when Mr.Anil Rochani started negotiation with the applicant that he was the old supplier and dealing with the Railways and asked the applicant to register his firm with the applicant's office by offering Rs.1,500/-, the applicant asked to pay Rs.500/- more and thus he accepted an amount of Rs.2000/- and kept the same in the upper left pocket. Thereafter, the members of the raiding party who were standing in close vicinity entered the chamber of the applicant and informed that they are from vigilance and when they wanted to check the applicant and asked to bring out all his belongings, the applicant took out of the said notes from left pocket of his trouser, closed them in his fist and within a fraction of seconds, put them into his mouth and started chewing them. Finally the applicant managed to gulp/swallow the Govt.
Currency(GC) notes in the presence of all. Then the whole team applied force over the applicant and tried to recover the amount by hook or crook. But they could not recover anything. Thereafter, the applicant was taken to Railway Hospital, Sabarmati where a detailed check up was conducted and sucked out 3 OA.No.170/00481/2018/CAT/Bangalore Bench some fluid from the stomach, endoscopy was done, x-ray and ECG etc. was taken to take out the GC notes but they found nothing. Thereafter, a charge sheet was framed against the applicant on 23.6.2008(Annexure-A1) for the alleged incident on the following charges:
"Shri Mahendra Singh, while working as SMM-D (Diesel shed)-Sabarmati, Western Railway, during the 'Departmental Test Check' conducted on 16.08.2007, has committed gross misconduct, inasmuch that:-
(i) He accepted an illegal gratification of Rs.2000/- (Rupees Two thousand only/-) in fulfilment of his demand, from Shri Anil Rochani, the proprietor of the firm- M/s Anil Enterprises, Baroda, in lieu of getting his firm registered for issue of local purchase enquiry in the Diesel Stores Depot-Sabarmati.
(ii) He chewed up, swallowed and destroyed the Government Currency Notes amounting to Rs.2000/- (four G.C.Notes of Rs.500/-) accepted by him from Shri Anil Rochani as illegal gratification. He destroyed the G.C.Notes so as to prevent its production as evidence against him.
(iii) He assaulted the Vigilance officials performing their legitimate Government duty, during the Vigilance Check on 16.08.07, by his violent and aggressive behaviour. He thus failed to co-operate in the vigilance check in violation to Railway Board's guidelines No.2007/V-1/PC/1/1 dtd.25.04.2007.
By the above act of misconduct, Shri Mahendra Singh, failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner of unbecoming of a Railway Servant and thereby contravened Rule 3.1 (i),
(ii) & (iii) of Railway Service (Conduct) Rules, 1966".
2. An Inquiry Officer(IO), Presenting Officer(PO) and defence assistant were also appointed in this regard. The matter was referred to the 2 nd respondent by letter dtd.23.6.2009. Considering the advice given by the IO vide his letter dtd.10.7.2009, a corrigendum was issued on 29.1.2010(Annexure-A2) by the 3 rd respondent wherein it was published that Exhibit P2(a) to P2(d) is deleted from the list of the relied upon documents and incorporated the remark that 'it is chewed and destroyed'. The applicant was kept on suspension from 17.8.2007 to 8.5.2008 and later he was transferred to Hubli Hqs., SW Railways at Karnataka and subsequently to Bengaluru on 4.6.2011 and again to Mysuru on 11.2.2016 and as on today, he is working as Sr.Material Manager at Mysuru under the 4 OA.No.170/00481/2018/CAT/Bangalore Bench control of 3rd respondent. The applicant filed an OA.No.341/2013 before this Tribunal for early completion of departmental enquiry and the said OA was disposed of on 17.7.2013(Annexure-A3 series) granting 6 months' time to the respondents to complete the departmental enquiry. Thereafter, the respondents filed MAs.No.170/2014 & 361/2014 for extension of time to conclude the enquiry and the same were disposed of vide orders dtd.25.3.2014 & 6.8.2014(Annexure- A4 & 5) by extending four months' time in MA.170/2014. On 12.11.2014, the applicant had sent a communication seeking regularising his suspension period from 17.8.2007 to 8.5.2008 as on duty, payment of arrears for the said period, payment of one increment from July, 2008 and promotion from Gr.B to Gr.A w.e.f. 12.3.2014. Since there was no action on the same, he filed another OA.No.298/2015. In the meanwhile, the respondent No.1 by order dtd.14.1.2016 directed to proceed with inquiry against the applicant and accordingly 3 rd respondent has issued a communication dtd.5.2.2016 to the applicant to attend inquiry. In view of the order dtd.14.1.2016, the said OA was dismissed as infructuous vide order dtd.12.4.2017(Annexure-A6) directing the respondents to pass final order in the matter within a period of two months. Upon correspondence of respondents, the UPSC has given advice vide letter dtd.22.9.2017(Annexure-A7) regarding quantum of punishment. Finally, the 1 st respondent passed the impugned order dtd.2.11.2017(Annexure-A8) by concluding the departmental inquiry and imposing a penalty of 'reduction to a lower stage in the time scale of pay by two stages for a period of two years with further direction that on the expiry of such period the reduction will have the effect of postponing future increments of pay' against the applicant. Accordingly, the respondents have issued Pay Fixation Certification on 29.11.2017(Annexure- 5 OA.No.170/00481/2018/CAT/Bangalore Bench A9) and a memorandum was issued on 30.11.2017(Annexure-A10). The impugned order dtd.2.11.2017 was delivered to the applicant vide acknowledgment dtd.18.1.2018(Annexure-A11). Aggrieved by the impugned order dtd.2.11.2017, the applicant files the present OA seeking the following relief:
a. Call for the records.
b. Quash/set aside the entire proceedings vide impugned order bearing No.E(O)I-2014/PU-2/SWR/54 dated 02.11.2017 vide Annexure-A8 passed by the respondents.
c. Direct all the respondents to transfer the applicant from South Western Railway Mysuru to his parental Railway at Western Railway, Sabarmati, Ahmedabad, Gujarat State with immediate effect along with all consequential reliefs thereon.
3. The applicant submits that the trap conducted by the respondent No.2 is an illegitimate trap as there was no complaint from any side against him for any sort of demand. As per the charge sheet at para No.1.2, the raid conducted by the vigilance team is only a departmental test check/decoy check. Normally the test check will be conducted only for the purpose of confirmation to know that the allegations levelled against the employee are right or wrong and not for legal action and the respondents cannot file the charge sheet basing upon the test check. The vigilance team conducted the trap in shelter of test check and thereafter filed the charge sheet against the applicant. As per the decision of the Hon'ble Supreme Court in the case of Ramjanam Singh vs. State of Bihar, AIR 195 SC 643, 'whatever the criminal tendencies of a man may be, he has a right to expect that he will not be deliberately tempted beyond the power of his frail endurance and provoked into breaking the law...'. Applicant submits that his is a clear case of temptation under criminal conspiracy against him by Dy.CVO(S) CCG WR as stated by the vigilance inspector PW-3 that the trap was conducted by her as per the instructions of the then Dy.CVO(Stores) CCG. There was no
6 OA.No.170/00481/2018/CAT/Bangalore Bench complaint from any one. Hence, the charge sheet is illegal and liable to be quashed on this ground itself.
4. The applicant further submits that as per CVC Manual chapter IV para 4.1.1(i), the case of illegal gratification and corruption have to be investigated by CBI or Special Police Establishment and no power has been given by any authority to Indian Railway for conducting the departmental trap. No parallel rule, law or act can be prepared by any organisation when one Act is already exist which is Prevention of Corruption Act. The CVC has not given any authority to Railway to put special provision for departmental trap in their vigilance manual as Para-307. So the decoy check conducted under the railway vigilance manual is illegal. The applicant submits that as per master circular 67 dtd.20.12.2002 para 3(b), 'the articles of charges and the statement of imputation in support of the articles of charges should not be identically worded'. But in the charge sheet, the 3 rd respondent has not specified that the imputation of charges pertains to specific charge. He has not specified any rule violated by the applicant against each article of charges. Due to which, the applicant cannot defend himself which deprives him from natural justice and thereby violates Article 311(2) of Constitution. Further the decoy test was conducted at Sabarmati which comes under the 2nd respondent but the charge sheet was framed by the 3 rd respondent at Hubli without verification of the case records and without looking into the relied upon documents as mentioned in the Annexure-III of the charge sheet. The Chief Personnel Officer has clearly mentioned in his communication dtd.3.3.2010 to the presenting officer(4th respondent) that the applicant has not submitted the defence statement so far. As per the Railway Servants (D&A) Rules, in part-4 Para No.((7), the DA shall deliver the Railway servant the articles of charge, the 7 OA.No.170/00481/2018/CAT/Bangalore Bench statement of imputations of mis-conduct and list of documents and witnesses by which each article of charge is proposed to be sustained shall require the Railway servant to submit a written statement of his defence within 10 days. In the present case, the 3rd respondent has not done so. Therefore, the applicant has not submitted his written statement for want of some relied upon documents even though he requested the 3rd & 4th respondents for supplying of the same.
5. It is further submitted that during the course of investigation, doctor has taken out fluid from stomach to find out GC Notes. But raiding team destroyed the same without any report. They also taken some sticky gray material from the tongue of applicant but they have not conducted any test over that to confirm the remaining of currency notes. Thereafter, they conducted the endoscopy in a private hospital and found nothing. The amount for endoscopy was paid by vigilance department but got the receipt in favour of the applicant. So what was the intention behind it and from where this amount came is under question. The Investigation team created drama to establish the charges against the applicant. It is clear that no amount was paid to applicant, it was with decoy only. The investigation team has also destroyed the original voice recording from the electronic voice recorder at the time of taking voice sample of applicant. The respondent has prepared the charges on the basis of CD which is being said copy of original recording. The respondents have not made relied upon document from CD which was opened in the presence of independent witnesses and transcript was prepared. Opened CD was signed by all independent witnesses but the respondents have made RUD that CD has never been opened in front of independent witnesses. Further Director of Forensic Science has not provided the transcription of the document CD P8(a). Neither original recording nor CD recording which used for inquiry by 8 OA.No.170/00481/2018/CAT/Bangalore Bench IO, heard by the team at the time of preparation of joint transcription note produced as original records at the time of inquiry. The secondary evidence can be used only when proper certificate is issued by the competent authority under sub section (4) of Section 65(B) of Evidence Act, 1972 otherwise original record and recordings have to be produced. So consideration of exhibit-P8(a) document for inquiry is not authentic and fair. As per the FSL report, the voice of the applicant in the CD is probable but not surely identified in the present case. Hence, the question of involvement of the applicant in the present case is ruled out. Further, the certification of Director of Forensic Science, Gandhi Nagar is very limited for document P/8(a) i.e. CD and the Asst.Director & Technical Manager Sri S.G.Khandelwal, Physics Dvn., Gujarat who prepared the CD was not produced as prosecution witness. So applicant was deprived to cross- examine him and as such the IO violated Section 311(2) of Constitution and conducted inquiry with malafide intention. Hence, on this ground alone, the impugned proceedings are liable to be quashed.
6. The applicant has further submitted that when the IO nominated by the 3 rd respondent refused to conduct the inquiry, the 3 rd respondent nominated another IO Mr.Khushal Chand Shukla on 20.4.2009 who as per his letter dtd.10.7.2009 requested the 2nd respondent that if required fresh charge sheet may be issued incorporating necessary corrections after cancelling the old one on the ground that the currency notes which had been allegedly chewed and destroyed by the applicant but the same were shown as relied upon documents as per Exhibit P- 2(a) to P-2(d) in Annexure-III. Considering the same, the corrigendum dtd.9.1.2010 is issued by the 3 rd respondent after a lapse of 3 years from the date of initiation of the trap, incorporating the remark that the Exhibit P 2(a) to P 2(d) 9 OA.No.170/00481/2018/CAT/Bangalore Bench are chewed and destroyed. Applicant submits that as per the Railway Servants(Discipline & Appeal) Rules, 1968, the IO has to work impartially without anybody's advise or supervision and must not import personal knowledge of the facts of the case while inquiring in to the charges. But in the present case, the IO was behaving like disciplinary authority by giving his personal advice. And there is no provision in D&A Rules-1968 for revising or correcting the charges or list of RUDs. The articles of charges are based on imputation of charges and imputation of charges is based on relied upon documents and statement of witnesses. If relied upon documents are being deleted from the list of relied upon documents then articles of charges become baseless and vague. It is relevant to note that as per Medical Experts Opinion, it is not possible for the human being to digest the Currency Notes as it is made of cellulose & paper and contains a silver line with in it. Being a metal, it should surely come in x-ray film and its report. But the doctors could not find any kind of foreign body inside the stomach of the applicant as per private doctor report. Hence, the question remains that if the applicant has chewed 4 currency notes, where it has gone. Either it should be seized by the vigilance or it shall be recovered from the body of the applicant by the doctors. But in this case both things have not happened. Hence, it is clear that no such currency notes were received by the applicant. As per the Master Circular-67, one important point to be kept in view while imposing penalty, considering Appeal, Revision and Review Petitions in disciplinary cases issued by the respondent No.1 dtd.20.10.2001 and as per the circular issued by the Central Vigilance Commission dtd.3.3.1999 & 23.5.2000, the outer time limit of 6 months for completing the departmental inquiries should be adhered. But in this case, respondents have taken 10 years to conclude the inquiry that too after 10 OA.No.170/00481/2018/CAT/Bangalore Bench interference of this Tribunal. Hence, it is clear that all the respondents have targeted the applicant to remove him from service as he is from Scheduled Caste class. As per rules, delay in finalization of DAR cases leads to corresponding delay in promotion of the staff against whom the proceedings are pending. All juniors of the applicant have been promoted years back but the applicant has to wait for further 2 years which is total injustice to him. He submits that the IO and 3rd respondent are prejudiced and biased. The IO had delayed the inquiry intentionally. The 3rd respondent had delayed the inquiry on the ground of non supply of the RUDs and additional documents from 23.6.2008 to 4.3.2011. He also changed 3 IOs during the period now and then. The 4 th IO who was nominated on 4.3.2011 has also neither supplied the RUDs/additional RUDs nor fixed the hearing up to 6.12.2013. He completed preliminary hearing on 12.12.2013. After order of this Tribunal, IO completed the oral inquiry within a period of a week i.e. 20.9.16 to 26.9.16. The process of oral inquiry could have been completed in the year 2011 itself after nomination. During the course of hearing, the IO has deleted the documents i.e. exhibit No.P2(a) to P2(e), P9(b), P9(g), P15 & 25 which are important documents on which whole imputation of charges was based. During the inquiry, the IO did not allow the defence documents on the ground that those are not authentic because those are downloaded from website but at the same time he allowed exhibit P23 which was an un-signed document and downloaded from website. This proves that IO was totally partial and was favouring the administration. After the case on behalf of the DA is closed, the charged official should be given opportunity to submit his defence, but during the statement of prosecution witnesses, the IO has taken statements every time at the end of examination and cross examination of 11 OA.No.170/00481/2018/CAT/Bangalore Bench witnesses which is against the D&A rules. So it is violation of natural justice and D&A Rules 1968. The main ingredients of a trap(decoy) case, the demand, acceptance and recovery have not been proved in this case whereas the IO has tried to prove the charge without any evidential value. The IO has not furnished proper and adequate reasons for findings on Article-I as proved. He has straight away proved the charge on the basis of principle of preponderance of probability. It is agreed that Article-II is not proved. But there is no ground or evidence as discussed by IO which made him to conclude that the 'CO is definitely responsible for disappearance of alleged evidence, disappearance of alleged evidence is not a charge even. Thus IO has acted beyond his authority and has not given the chance to CO to defend this new charge. The inquiry report is a defective one as it is not as per Sub-rule 25 of Rule 9 of Railway Servants D&A Rules 1968. As per Rule 17 of D&A Rules 1968, no appeal lies against decision of President of India. So, no chance for appeal is given to the applicant. As per the opinion of the UPSC, the Article-I of the charge is held as proved, Article-II as not proved and Article-III is held as partially proved. Hence, in the absence of not proved the Article-II and III, the opinion given by UPSC as well as the impugned order passed by the respondents is illegal and not maintainable in the eyes of law and therefore is liable to be quashed.
7. The respondents, on the other hand, have submitted in their reply statement that the applicant has sought multiple reliefs which is against Section 10 of CAT(Procedure) Rules 1987. Hence, the OA is liable to be dismissed in limine. The submission made by the applicant in the present OA is a repetition of OA.298/2015 & OA341/2013 which have been disposed of by this Tribunal. 12 OA.No.170/00481/2018/CAT/Bangalore Bench
8. The respondents submit that the applicant while working as SMM-D(Diesel Shed)-Sabarmati, Western Railway, based on information received that the applicant was taking illegal gratification for getting various works done in his official capacity, a decoy check was conducted on 16.8.2007 by the Vigilance team to verify the activities of the applicant. As per the information available in the Dept's records, Sri Anil Rochani who had been dealing with the Railways for the preceding six years, was asked to play the role of a decoy as an independent and unprejudiced agent with no ill-feeling or animosity against the applicant in his official capacity. A trap team of about nine persons was formed and they were assembled near applicant's office to conduct the said check on 16.8.2007. When the applicant accepted an illegal gratification of Rs.2000/- from Sri Anil Rochani in lieu of getting his firm registered for issue of local purchase enquiry in the Diesel Stores Depot-Sabarmati, the trap team had entered the chamber of the applicant and informed that they were from vigilance. When they asked the applicant to bring out all his belongings, he chewed up, swallowed and destroyed the Govt.Currency(GC)Notes amounting to Rs.2000/- so as to prevent its production as evidence against him. Applicant assaulted the vigilance officials performing their legitimate Govt. duty, during the vigilance check on 16.8.2007, by his violent and aggressive behaviour. Thus he failed to co-operate in the vigilance check in violation to Railway Board's guidelines dtd.25.4.2007. He also failed to maintain absolute integrity, exhibited lack devotion to duty and acted in a manner of unbecoming of a Railway Servant and thereby contravened Rule 3.1
(i), (ii) & (iii) of Railway Service (Conduct) Rules 1966 and charge memorandum dtd.23.6.2008 was issued to the applicant.
13 OA.No.170/00481/2018/CAT/Bangalore Bench
9. The respondents further submit that the averments of the applicant are far from truth and he levelled wild allegations against the respondents. The respondents being Dept. of Railways have taken action and have acted upon the Railway Board Circulars. When the applicant submitted defence statement dtd.11.7.2008 denying the charges levelled against him, the General Manager, SW Rly., decided to remit the case to inquiry appointing Sri S.S.Patwardhan, retired ADRM/Central Railway, as the IO to inquire into the charges. Subsequent to this, Sri Khushal Chand Shukla, retired Dy.CCM and A.Ramanujam, retired Addl.Registrar, RCT were also appointed as the IOs. However, all the three IOs showed their inability to conduct the inquiry for one reason or other. Thereafter, Sri R.C.Punetha, the then Dy.CMM/MGSD/AP/MYS was appointed as IO, but the inquiry proceedings were stayed due to the allegation of bias levelled against the IO by the applicant. However, considering the representation of the applicant dtd.20.12.2013, it was held by the President that the allegation of bias levelled against the IO is not substantiated and therefore, it was decided to conduct the inquiry further, as per the extant procedure and IO submitted his report dtd.18.1.2017. Every case has thoroughly examined by the Commission with the prima facie on upholding the principles of natural justice and an independent opinion, without any bias, is tendered on the basis of conclusions arrived at after thorough, judicious and independent consideration of all the relevant facts, charges framed and representations of the charged officer and other circumstances supported by the evidence on record and the documents made available by the Ministry in each individual case. While tendering the advice, the Commission recommended penalty commensurate with the misconduct proved against the applicant. The DA arrives at his own conclusions after taking into 14 OA.No.170/00481/2018/CAT/Bangalore Bench consideration the advice of commission among other things. As per Rule 9(2) of D&A Rules, 'whenever the DA is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Railway servant, it may itself inquire into or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850 as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof'. There is no requirement under the rules that separate statement in support of each article of charge have to be supplied to the charged official. If the charges are inter- related, then a common statement of imputation is not prohibited. The imputations contain details, references etc. relating to all the charges and gives a clear idea about the facts and circumstances relating to the alleged actions, in support of articles of charge. As per Rule 9(6)(ii) of D&A Rules, 1968, 'a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain (a) a statement of all relevant facts including any admission or confession made by the Railway servant, (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained'. Therefore, the wordings of the articles of charge and statement of imputation are in order. There is no bar in issuing a corrigendum to a charge sheet. This corrigendum has added only a column indicating therein the remarks 'chewed and destroyed'. Nothing prevents an IO to advice the DA to make minor changes in the charge sheet or Annexures. The inquiry was conducted in a fair and transparent manner. None of the documents have been deleted from the list of RUDs. The RUDs cannot be interpreted independently from the contents of the rest of the charge sheet. As per Rule9(7) of D&A Rules, 1968, 'if copies of documents have not been delivered to the Railway servant 15 OA.No.170/00481/2018/CAT/Bangalore Bench along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within 10 days from the date of receipt of the articles of charge by him and complete inspection within ten days thereafter and shall state whether he desires to be heard in person'. Accordingly, the applicant and his defence helper had perused the original documents on 20.4.2010. If the applicant had any evidence to prove his innocence, he had opportunity to do the same during inquiry stage. As per Rule 9(23) of D&A Rules, 'if the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte'.
10. The respondents further submit that the time limit mentioned in the circulars are only for guidance and are not mandatory. It is subject to unavoidable delays due to administrative reasons. The inquiry report has been accepted by the DA and orders have been passed based on the findings, for which detailed reasoning is also given. As per Rule 31 of D&A Rules, 1968, 'nothing in these rules shall operate to deprive a Railway servant from exercising his right of submitting a petition to the President in accordance with the instructions contained in Appendix-II to the IREC, Vol-I'. But the applicant has not submitted any petition to the President. When the order dtd.2.11.2017 was forwarded to the controlling authority for serving on the applicant, it was informed that the applicant was under sick list and the order will be served after his reporting back to duty. The order was acknowledged by the applicant on 18.8.2018 duly signed by him stating 'on resuming from sick list'. Regarding implementation of penalty, it is 16 OA.No.170/00481/2018/CAT/Bangalore Bench mandatory to implement the penalty from the date of issue of the order. Accordingly, the averments made by the applicant are denied as false and baseless. The OA is therefore liable to be dismissed.
11. We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. In this issue, three charges were framed against the applicant alleging that he had committed gross misconduct by accepting an illegal gratification of Rs.2000 for getting a firm registered for issue of local purchase enquiry, that he chewed up and destroyed the Govt. Currency notes amounting to Rs.2000 and that he had assaulted the vigilance officials while performing their legitimate Government duty during the Vigilance Check on 16.8.2007. The disciplinary authority based on the records available and the examination of the statement of the witnesses and the circumstances of the case, had decided that the charge no.1 was proved and charge No.3 as partially proved and ordered a punishment of reduction to a lower stage in the time scale of pay by two stages for a period of two years. The main plea of the applicant is that the so called currency that was stated to have been chewed by him was not brought out in the medical examination and there was an illegality in the organisation of the trap through a decoy by the vigilance team. The respondents have countered that adequate opportunity has been given to the applicant to present his side of the happenings and apart from relying on the fact that the currency notes could not be recovered, no other defence could be brought in by the applicant. It is clear from the records that the applicant had not disputed the incident in terms of the trap laid by the vigilance and had in fact commented on the illegality of the trap being organised with decoy etc. Independent witnesses had been brought in to corroborate the incident and a CD had been made 17 OA.No.170/00481/2018/CAT/Bangalore Bench relating to the recording of the proceedings. The initial conversation of the applicant and the prosecution witness No.1 was also confirmed through further verification of the forensic science laboratory. The applicant would only say that the voice matching that of the applicant was mentioned as probable in the report of the forensic science laboratory. As has been seen from a catena of decisions by various Courts including the Hon'ble Apex Court, in a disciplinary proceeding, the circumstances and the preponderance of probability cannot be brushed aside likely. Even though in this particular case, the chewed up currency notes were never recovered, but the circumstances leading to the particular incident clearly show that the applicant was in the habit of such demands and there are additional evidences brought in by way of the voice records, statement of the independent witnesses etc., which could not be disputed by the applicant. The punishment meted out also cannot be termed as excessive based on the records in the case.
12. We therefore find no merit in the OA. Hence, the OA is dismissed. No costs.
(C.V.SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ps/
Annexures referred to by the applicant in OA.No.170/00481/2018 Annexure-A1: Certified copy of the Charge Sheet dtd.23.6.2008 Annexure-A2: Corrigendum dtd.29.1.2010 along with typed copy Annexure-A3: Order dtd.17.7.2013 passed in OA.341/2013 Annexure-A4: Order dtd.25.3.2014 passed in OA.341/2013 Annexure-A5: Order dtd.6.8.2014 passed in OA.341/2013 Annexure-A6: Order dtd.12.4.2017 passed in OA.298/2015 18 OA.No.170/00481/2018/CAT/Bangalore Bench Annexure-A7: Letter dtd.22.9.2017 Annexure-A8: Copy of order dtd.2.11.2017 Annexure-A9: Copy of Fixation Certification dtd.29.11.2017 Annexure-A10: Copy of Memorandum dtd.30.11.2017 Annexure-A11: Copy of Acknowledgement Annexures with reply statement:
-NIL-
*****