Central Administrative Tribunal - Jabalpur
N A Alexander vs M/O Railways on 7 March, 2019
Subject: disciplinary enquiry 1 OA No.1/2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
ORGINAL APPLICATION NO.1 OF 2011
Jabalpur, this Thursday, the 7th day of March, 2019
HON'BLE MR.NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR.RAMESH SINGH THAKUR, JUDICIAL MEMBER
N.A.Alexender S/o late Abraham Mathai, Aged about 60 years,
C/o G-5, "B" Block, Datt Arcade, South Civil Lines,
Jabalpur-482001 - APPLICANT
(By Advocate - S.K.Nandy)
Versus
1. Union of India through its Secretary,
Ministry of Railway, Rail Bhawan, New Delhi-110 001
2. General Manager, West Central Railway, Indira Market,
Jabalpur-482001.
3. Chief Commercial Manager (Revising Authority),
West Central Railway, Jabalpur - 482001.
4. Sr. Divisional Commercial Manager (Appellate Authority),
West Central Railway, Jabalpur - 482001.
5. Divisional Commercial Manager (Disciplinary Authority),
West Central Railway, Jabalpur - 482001. - RESPONDENTS
(By Advocate - Shri Arun Soni)
(Date of reserving the order:27.08.2018)
ORDER
By Navin Tandon, AM.-
The applicant, who was working as Head Train Ticket Examiner (for brevity 'Hd.TTE') in West Central Railway, Jabalpur, is aggrieved Page 1 of 22 Subject: disciplinary enquiry 2 OA No.1/2011 by imposition of penalty of removal from service in a departmental enquiry conducted against him for overcharging the decoy passenger in lieu of allotment of two berths ex MKP (Manikpur) to MGS.
2. The brief facts of the case as stated by the applicant are as under:-
2.1 While he was working as Hd.TTE, Jabalpur he was served with a major penalty charge memorandum dated 19.06.2008 by the Divisional Commercial Manger, Jabalpur on the charge of overcharging Rs.160/-
from a decoy passenger and found responsible for having excess Rs.156/- in his private cash.
2.2 After conducting a full-fledged departmental enquiry the disciplinary authority imposed upon him a penalty of removal from service vide order dated 29.01.2010 (Annexure A-1). 2.3 His appeal and revision were also rejected vide orders dated 29.04.2010 (Annexure A-2) and 31.08.2010 (Annexure A-3) respectively.
3. In this Original Application the applicant has prayed for the following reliefs:
"(8). Relief Sought:
It is, therefore, prayed that this Hon'ble Court may kindly be pleased to:-
(i) Summon the entire relevant record from the respondents for its kind perusal.
(ii) Quash and set aside the entire disciplinary proceedings including the punishment order dated 29.1.2010 Annexure A/1, the appellate order dated 3.5.2010 Annexure A/2 and also the revisional order dated 31.8.2010 Annexure A/3.Page 2 of 22
Subject: disciplinary enquiry 3 OA No.1/2011
(iii) Consequently, command the respondents to provide all
consequential benefits to the applicant as if the aforesaid disciplinary proceeding is never instituted against the applicant.
(iv) Respondents be further directed to consider the case of the applicant for grant of compassionate allowance in consonance with Rule 65 of the Railway Servant (Pension) Rules, 1993 and Railway Board Circular RBE No.89/08 dated 31.7.2008;
(v) Any other order/orders, which this Hon'ble Court deems, fit proper.
(vi) Award cost of the litigation in favour of the applicant".
4. The applicant has contended that before initiation of present disciplinary proceedings, the applicant's service record was otherwise clean and unblemished. No adverse CR was ever communicated to the applicant. The charge sheet was served as per the whims and fancies of the vigilance organisation. The vigilance organisation also directed the disciplinary authority to inflict a stiff major penalty on the applicant by communication dated 15.05.2008 (Annexure A-10). The vigilance organisation further directed the disciplinary authority to appoint Shri J.R.Kothari, EO (Senior Scale) (Vigilance) an officer of vigilance organisation as inquiry officer to inquire into the case vide aforementioned letter dated 15.05.2018.
4.1 The applicant has further contended that in the present case, the entire disciplinary proceeding was initiated pursuant to the decision taken by the vigilance organisation and the whole enquiry including the imposition of punishment was as per the dictate of vigilance organisation. Page 3 of 22
Subject: disciplinary enquiry 4 OA No.1/2011 The disciplinary authority, appellate authority and revisional authority have acted as per the dictate and pressure of the vigilance organisation. There was no free, independent and objective application of mind by the statutory authorities i.e. disciplinary, appellate and revisional authorities. The enquiry having been conducted under extraneous pressure of vigilance organisation runs contrary to principles of natural justice, equity and fair play. Thus, the enquiry stands vitiated on this score alone. 4.2 The applicant has placed reliance on the decision of the Hon'ble Supreme Court in the matters of Satyendra Chandra Jain Vs. Punjab National Bank & others, (1997) 11 SCC 444 and 2005(4) MPLJ 524 wherein it has been held that any outside pressure will vitiate the disciplinary proceedings.
4.3 The applicant has further submitted that the main person involved in the whole incident was one Shri Vinay Kumar Nema, the then Conductor of the train under whom the applicant was working at the relevant time. Said Shri Vinay Kumar Nema has allegedly accepted Rs.400/- from decoy passenger and directed the applicant to prepare the ticket. The applicant only prepared the ticket as per the directions of Shri Vinay Kumar Nema and handed over the same to said Shri Nema, the Conductor. The applicant was not in any way involved himself with the decoy passenger or other members of the vigilance team. Page 4 of 22
Subject: disciplinary enquiry 5 OA No.1/2011 4.4 The applicant has strongly contended that as per the provisions of
Vigilance Manual, gazetted officer or responsible senior group employees were required to be used as decoy passenger and an independent witness is also required, whereas in applicant's case an illiterate Group 'D' employee was engaged as decoy passenger and independent witness to support the story of the prosecution prepared by the vigilance organisation. This decoy check in question runs contrary to the judgment passed by the Hon'ble Supreme Court in the matters of Moni Shanker Vs. Union of India and another, (2008)3 SCC 484.
4.5 The applicant has further contended that the respondents have not applied their mind on Rule 65 of the Railway Servants (Pension) Rules, 1993 and Railway Board Circular RBE No.89/2008 dated 31.07.2008 (Annexure A-15). It is mandatory on the part of the respondents as per Rule 65 ibid to suo moto consider and decide the question of grant of compassionate allowance.
4.6 The applicant has also contended that there should have been a joint enquiry and in the absence of common proceedings as per Rule 13 of the RS (D&A) Rules, the enquiry stands vitiated.
4.7 The applicant has lastly contended that he was subjected to a very harsh, disproportionate punishment whereas the main accused is permitted to let off from the charges.
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Subject: disciplinary enquiry 6 OA No.1/2011
5. On the other hand the respondents have contended that it is incorrect on the part of the applicant to say that statutory authorities have not applied their mind while passing their respective orders. The Vigilance Department sent a panel of enquiry officers to the disciplinary authority and after considering all the facts and circumstances and by own discretion of the disciplinary authority, Shri J.R.Kothari was appointed as enquiry officer. It is explicitly denied that Shri J.R.Kothari is a Vigilance Officer.
5.1 The case of the applicant was detected by the Vigilance Team of North Central Railway, Allahabad. Hence, the case was forwarded to the Vigilance Department, West Central Railway Jabalpur and same was forwarded to Senior Divisional Commercial Manager, Jabalpur for taking action. Thus, it is denied that proceedings were initiated on the dictate of Vigilance Organisation.
5.2 Looking to the gravity of the charge and on the basis of findings of the enquiry officer, the disciplinary authority has inflicted the appropriate punishment. The disciplinary authority has not taken any action on the pressure of Vigilance Department. Since the case was detected by the Vigilance Team, therefore, same was forwarded to the Senior Divisional Commercial Manager's office, Jabalpur.
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Subject: disciplinary enquiry 7 OA No.1/2011 5.3 The respondents have further stated that the decoy money was
recovered from the possession of the applicant. The applicant was fully aware of the difference fare for one passenger from Manikpur to Koderma was Rs.120/- and for two passengers Rs.240/-. The applicant had issued receipt No.H33324 for Rs.240/- but charged Rs.400/- i.e. Rs.160/- excess from the decoy passenger. If applicant was correct, why he had accepted 3 notes of Rs.100/-, 1 note of Rs.50/-, 1 note of Rs.20/- and 3 notes of Rs.10/- i.e. total Rs.400/-, whereas the total charges (difference of fare) of two passenger were Rs.240/-. Thus, the applicant should have returned remaining amount, but he did not return it and at the time of search Rs.400/- were found in possession of the applicant. 5.4 The respondents have also stated that Shri V.K.Nema was also taken up under D&AR and also was transferred from Jabalpur to Bhopal division. It is the discretion of the disciplinary authority for making order of common enquiry, but it is not mandatory. Further, after decoy check, Shri Vijay Kumar Nema was transferred to Bhopal Division and disciplinary authority of Shri Vijay Kumar Nema belongs to Bhopal Division, whereas disciplinary authority of applicant belonged to Jabalpur division.
6. We have heard learned counsel of both sides and perused the pleadings of the respective parties and the documents annexed therewith. Page 7 of 22
Subject: disciplinary enquiry 8 OA No.1/2011 We have also perused the departmental records produced by the respondents pertaining to conduct of enquiry against the applicant as well as against Shri V.K.Nema.
7. The question which arises for consideration in the present case is whether this is a case of no evidence or perverse conclusion drawn by the inquiry officer and the penalty imposed by the disciplinary authority, as upheld by the appellate & revisionary authorities requires any judicial interference in the given facts and circumstances of the case.
8. So far as the main objection of the applicant that the vigilance check was not conducted, in terms of the provisions of the Vigilance Manual, particularly Para 705 is concerned, Para 705 of the Vigilance Manual envisages that in departmental traps the investigating officer/inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff could be utilized. In the instant case admittedly one Group-D employee was engaged, as decoy passenger and one independent witness, who were not gazetted officers. However, in our considered opinion the entire vigilance action cannot be termed to be illegal solely on the ground that non-gazetted employees from the Railways were utilized for the purposes of vigilance trap in the present case. The learned counsel for the applicant could not demonstrate Page 8 of 22 Subject: disciplinary enquiry 9 OA No.1/2011 as to what prejudice has been caused to the applicant due to utilization of services of non-gazetted railway employees in this case. 8.1 In the matters of South Central Railway Vs. G. Ratnam, (2007) 8 SCC 212, the Hon'ble Supreme Court has held as under:
"(17). We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to Page 9 of 22 Subject: disciplinary enquiry 10 OA No.1/2011 the rights of the respondents in their defence before the enquiry officers.
(18). We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained.
(19). We have carefully gone through the contents of various chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance Organisation and its role, Central Vigilance Commission, Central Bureau of Investigation, investigation of complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work, etc. Paras 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari".
8.2 We find that in the aforesaid judgment their lordships have held that the instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental Page 10 of 22 Subject: disciplinary enquiry 11 OA No.1/2011 proceedings initiated against the delinquent employee on the basis of the complaints submitted by the investigating officers to the Railway Authorities. The instructions as contemplated under Paragraphs 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers.
8.3 Subsequently the said provisions of Paragraphs 704 and 705 of the Vigilance Manual were examined by the Hon'ble Supreme Court in the matters of Moni Shankar (supra). The facts of the case of Moni Shankar, as narrated in para 6 of the order of the Hon'ble Supreme Court, were as under:
"He filed an OA before the Central Administrative Tribunal, Mumbai Bench. It was registered as OA No. 283 of 2002. By reason of a judgment and order dated 6-1-2003, the same was allowed opining that in terms of Paras 704 and 705 of the Manual, the trap ought to have been laid in presence of the independent witness or gazetted officer and as only one Head Constable of RPF and not two gazetted officers had been assigned to witness the trap and furthermore the Head Constable was at a distance of more than 30 metres, he could not have heard the conversation by and between the appellant and the decoy passenger and thus the charges could not be said to have been proved. It was moreover found that the decoy passenger neither counted the money at the window nor protested that the balance amount was less by Rs 5, and in fact admitted to have left the window and came back half an hour later with the Vigilance Inspector which pointed out loopholes in the trap. It was pointed out that the appellant was not examined by the enquiry officer in terms of the provisions of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules (the Rules), which is mandatory in nature. It was also held that Page 11 of 22 Subject: disciplinary enquiry 12 OA No.1/2011 there was no evidence as regards the charge of returning Rs 5 less to the complainant".
8.4 Hon'ble Supreme Court, after taking into account the earlier judgment in the matters of G. Ratnam (supra) has observed in the case of Moni Shankar (supra) thus:
"(15). It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
(16). We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the Department has been able to prove the charges against the delinquent official".
8.5 Thus, in the matters of Moni Shankar (supra) their lordships have specifically held that para 704 and 705 are executive instructions and do not create any legal right upon the delinquent employee, and further that if the safeguards are provided to avoid false implication of a railway employee, the procedures laid down therein could not have been given a complete go-by. On considering the facts of the said case it was observed by their lordships that the manner in which the enquiry proceedings were conducted, the enquiry officer acted as a prosecutor and not as an Page 12 of 22 Subject: disciplinary enquiry 13 OA No.1/2011 independent quasi judicial authority and he did not comply with Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules,1968 and thus it was not a case where the order of the Tribunal warranted interference at the hands of the High Court.
8.6 In our considered opinion, after taking into account the facts of the present case in totality as well as the procedure followed by the respondents in conducting the enquiry against the applicant, we are of the considered opinion that Moni Shanker's case (supra), relied upon by the applicant, would not be applicable to his case, as the same was rendered on different sets of circumstances and, therefore, same being distinguishable on facts and is rendered inapplicable to the facts at hand.
9. The next objection of the applicant is that the main person involved in the whole incident was one Shri Vinay Kumar Nema, the then Conductor of the train under whom the applicant was working at the relevant time. Said Shri Vinay Kumar Nema has allegedly accepted Rs.400/- from decoy passenger and directed the applicant to prepare the ticket. The applicant only prepared the ticket as per the directions of Shri Vinay Kumar Nema and handed over the same to said Shri Nema, the Conductor. The applicant was not in any way involved himself with the decoy passenger or other members of the vigilance team. Page 13 of 22
Subject: disciplinary enquiry 14 OA No.1/2011 9.1 In this regard we find that the respondents have specifically
submitted that said Shri V.K.Nema was also taken up under D&AR and also was transferred from Jabalpur to Bhopal division. The disciplinary authority of Shri Vijay Kumar Nema belongs to Bhopal Division, whereas disciplinary authority of applicant belonged to Jabalpur division. We find that the role played by Shri Vijay Kumar Nema in the episode of receiving the amount of Rs.400/-from the decoy passenger and handing over the same to the applicant. Thereafter the applicant prepared the EFT of Rs.240/- and did not return the balance amount of Rs.160/- along with the cash receipt while handing over it to the decoy passenger. During the course of enquiry the applicant had admitted that the decoy money of Rs.400/- was recovered from his possession and he overcharged Rs.160/- from the decoy passenger. If the intention of the applicant was not to overcharge from decoy passenger then why he had accepted the amount of Rs.400/- and soon after issuance of cash receipt why he did not return the balance amount of Rs.160/- to the decoy passenger. The revisionary authority in his order has specifically held that it is clearly proved that the applicant had accepted Rs.400/- from decoy passenger through coach conductor Shri V.K.Nema and overcharged Rs.160/-. Therefore the objection raised by the applicant in respect of Shri Vinay Kumar Nema, Coach Conductor is not sustainable and is rejected. Page 14 of 22
Subject: disciplinary enquiry 15 OA No.1/2011
10. The claim of the applicant that the Enquiry Officer Shri J.R.Kothari is a Vigilance Officer has been denied by the respondents in their reply. Further, perusal of the orders dated 01.08.2008 (Annexure A-5), by which Shri Kothari was nominated as Enquiry Officer does not indicate he is a Vigilance Officer. Hence, this accusation is brushed aside.
11. It has also been claimed that the entire disciplinary proceedings have been conducted at the dictate of Vigilance Organisation and even penalty was decided before hand. Letter dated 15.05.2008 (Annexure A-10) has been cited in support of this claim. 11.1 Perusal of Annexure A-10 indicates that Vigilance Branch has suggested "Stiff Major Penalty". However, reading further it states:
"(5). If the Disciplinary Authority comes to a conclusion after consideration of defence statement/inquiry report which is at variance with the Vigilance advice of still major penalty/major penalty vide Para-1 above, he should only record his provisional orders and remit the case to the Vigilance branch.
However, if after such conclusion, the DA is not in agreement with the views of vigilance, then he is free to proceed and pass the speaking orders and communicate his decision to the CO in other than CVC cases.
(6). Likewise where a major penalty has been imposed by the disciplinary authority in agreement with the recommendations of the Vigilance but the appellate/revisionary authority proposes to exonerate or impose a minor penalty, the appellate/revisionary authority may first record provisional decision and consult the Vigilance Organisation once. After such consultation, the appellate/ revisionary authority is free Page 15 of 22 Subject: disciplinary enquiry 16 OA No.1/2011 to take a final decision in the matter and record his/her view about penalty through speaking order other than CVC case. 11.2 From the above it is clear that the system envisages consultation with Vigilance Department once. However, after that the disciplinary, appellate, and revisionary authorities are free to proceed and pass speaking orders.
11.3 It is also seen that the Vigilance Department had suggested "Stiff Major Penalty" in case of Shri V.K.Nema. However, as per applicant, he was let off lightly. This also goes to prove that the disciplinary authorities in West Central Railway are not just implementing the suggestion of vigilance, but are applying their own mind.
11.4 Parliament of India has enacted the Central Vigilance Act, 2003 which provides for constitution of Central Vigilance Commission (CVC). Further, the functions and powers of CVC includes exercising superintendence over the vigilance administration of the various ministries of the Central Government. Therefore, it is to be clearly understood that Vigilance Department is not a shadowy clandestine organisation working against the interest of individuals. It draws its strength from the Parliament of India and its main role is against spread of corruption. To achieve its goal, preventive checks and trap cases are carried as is required of them.
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Subject: disciplinary enquiry 17 OA No.1/2011 11.5 The applicant has placed reliance, in this regard, on the decision in the matters of Satyendra Chandra Jain (supra). This judgement refers to an earlier decision of the Hon'ble Supreme Court in Nagaraj Shivarao Karjagi Vs. Syndicate Bank, Head Office (1991) 3 SCC 219, wherein a reference has been made to the directive dated 21-7-1984, from the Joint Secretary, Ministry of Finance, Department of Economic Affairs (Banking Division) to all banking institutions whereby it was stated that "under no circumstances the advice of the Central Vigilance Commission should be modified except with the prior concurrence of the Commission and this Ministry", and the Hon'ble Supreme Court has held that the said directive of the Ministry of Finance was wholly without jurisdiction and plainly contrary to the statutory regulations governing the disciplinary matters. Considering this finding, the Hon'ble Supreme Court in the matters of Satyendra Chandra Jain (supra) directed the disciplinary authority to take decision on the penalty to be imposed on the appellant, on the basis that the recommendation made by the CVC is not binding.
11.6 Whereas in the present case we find that there is no such instructions from the Ministry of Railways/CVC wherein the advice of the Vigilance Department is to be necessarily followed. As discussed hereinabove the Vigilance Department itself has very categorically stated that in case the competent authority is not in agreement with the advice, Page 17 of 22 Subject: disciplinary enquiry 18 OA No.1/2011 they should consult the Vigilance Branch once. However, subsequently they are free to pass a speaking order. Therefore, we do not find any similarity between the instant case and the case of Satyendra Chandra Jain (supra). Therefore, the reliance placed the applicant in this regard is misplaced, as the same is distinguishable on facts.
12. On perusal of record we find that the applicant was trapped by vigilance team and full fledged inquiry was conducted against the applicant, wherein the applicant was granted full opportunity of hearing and as a matter of fact the currency notes which were given by the vigilance team to the decoy person for being handed over as bribe to the applicant, were recovered from his possession and this fact was not disputed by the applicant. Further, it is nowhere in dispute that the incident dated 30.09.2007 had not taken place. From the record and the admission of the applicant during inquiry proceedings it is also an admitted fact that the applicant was in fact caught by the vigilance team and acceptance of the money given by the decoy passenger was admitted by the applicant during inquiry proceedings.
13. Merely because no common enquiry was conducted or no action was taken against Shri Nema, Coach Conductor as alleged by the applicant, could not be a ground and reason to conclude that there was no evidence against the applicant, particularly when there had been numerous other documents as well as witnesses who supported and Page 18 of 22 Subject: disciplinary enquiry 19 OA No.1/2011 established the allegations levelled against him. The perusal of original records reveals that applicant had duly participated in the enquiry and the witnesses confirmed the incident in question. Applicant has also submitted his written statement of defence as well as representation against the findings recorded by the inquiry officer which were duly taken into consideration by the disciplinary authority while imposing the penalty of removal from service, by granting him 2/3 compassionate allowance & gratuity, which penalty has been duly upheld by the appellate authority as well as by the revisionary authority by passing detailed & reasoned orders. Thus, we are of the considered view that the principles of natural justice have been duly complied with; that he had been afforded opportunity of placing his defence effectively; there was no illegality committed by the authorities while conducting the proceedings. The plea of violation of the provisions of IRVM did not vitiate the conclusion of guilt recorded by the competent authority. No prejudice has been shown or established by the applicant, even if for the sake of arguments it is presumed that there had been some procedural lapse while conducting vigilance trap.
14. As regards the contention of the applicant that the respondents have not applied their mind on Rule 65 of the Railway Servants (Pension) Rules, 1993 and Railway Board Circular RBE No.89/2008 dated 31.07.2008 (Annexure A-15), and it is mandatory on the part of the Page 19 of 22 Subject: disciplinary enquiry 20 OA No.1/2011 respondents as per Rule 65 ibid to suo moto consider and decide the question of grant of compassionate allowance, we find that the disciplinary authority had already applied its mind to the above aspect of the matter in his order dated 29.01.2010 (Annexure A-1) and has ordered thus:
"In accordance with Railway Board's letter No.F(E)111/ 2003/PN1/5 dated 31.07.2008, payment of 2/3 compassionate allowance & gratuity is granted to you".
14.1 Thus, the contention of the applicant is this regard is also not sustainable and is rejected.
15. Law relating to scope of judicial review in disciplinary proceedings is well settled by Hon'ble Supreme Court in B.C.Chaturvedi Vs. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80, wherein it has been observed as under :-
"(12). Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power, and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedings. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.Page 20 of 22
Subject: disciplinary enquiry 21 OA No.1/2011 When the authority accepts the evidence and the conclusion receives supports therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-
appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence....." (13). The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re-appreciate the evidence or the nature of punishment. In disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C.Goel (1964) 4 SCR 718: AIR 1964 SC 364, this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
xx xx xx xx xx xx xx xx xx xx (18)...the disciplinary authority and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, can not normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof".
(emphasis supplied)
16. Further, Hon'ble Supreme Court in the matters of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610 has held that the Tribunal/High Page 21 of 22 Subject: disciplinary enquiry 22 OA No.1/2011 Court in exercise of its powers shall not venture into re-appreciation of the evidence.
17. Thus, having considered the settled legal position on the issue and the facts of the present case as discussed hereinabove, we are of the considered opinion that no interference is required in the present case. Accordingly, the Original Application is dismissed, however, without any order as to costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
rkv
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