Orissa High Court
General Manager vs Hemanta Kumar Tripathy .... Opposite ... on 9 March, 2023
Author: M.S. Sahoo
Bench: B.R.Sarangi, M.S. Sahoo
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 18043 of 2018
General Manager, East Coast
Railway, Bhubaneswar
and others .... Petitioners
-versus-
Hemanta Kumar Tripathy .... Opposite Party
For Petitioners : Mr. D.R.Mohapatra,
Central Government Counsel
For Opp. Party : Mr. N.R. Routray,
Advocate
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P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
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Date of hearing: 21.02.2023 Date of judgment : 09.03.2023
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M.S.Sahoo, J. The petitioners are functionaries of East Coast
Railway; who were respondents before the learned
Central Administrative Tribunal, have filed the writ
application seeking to quash the judgment and order
dated 15.03.2018 passed in O.A. No.260/00816 of 2011.
The opposite party-employee, who was working as a
Head Clerk (working in the Accounts & Stores
Establishment, East Coast Railway, Talcher
// 2 //
(Constructions), had filed the Original Application
challenging the order dated 28.11.2009 under
Annexure-6 passed by the Disciplinary Authority-Deputy
Chief Manager (Construction)-I/SBP (Petitioner No.4)
imposing major penalty of removal from service
confirmed by the Appellate Authority-the Chief Manager
(Construction)-III, East Coast Railway, (Petitioner No.2)
vide order dated 19.07.2010 in Annexure-7 and also
affirmed in Annexure-8 by the Revisional Authority-Chief
Administrative Officer (Construction), East Coast
Railway, Bhubaneswar, Petitioner No.3 vide order dated
03.08.2010.
Factual background
2. The facts that emerge from the pleadings are that
the opposite party-employee was initially appointed as a
casual gangman and was engaged under the
administrative control of the D.R.M., the, then S.E.
Railway, Chakradharpur and after working some years,
he was posted as Junior Clerk vide order dated
09.11.1989 and was deputed to construction Division,
Talcher. Thereafter the opposite party-employee appeared
in the suitability test and promoted to the post of Senior
Clerk/Head Clerk.
While working as such as a Deputationist at
Talcher under the administrative control of the petitioner
no.4, on 02.07.1994 a trap was laid by the Central
Bureau of Investigation (C.B.I. for short) against the
opposite party-employee on the allegation of demanding
illegal gratification from another Railway employee. The
Page 2 of 32
// 3 //
CBI did not proceed further after the said trap but a
disciplinary proceeding/departmental proceeding was
initiated against the opposite party-employee on the
basis of report of CBI and memorandum of
Articles/charge-sheet was served upon the opposite
party-employee on 31.03.1995.
2.1 The article of charges framed against Sri
H.K.Tripathy (opposite party) issued as per the Railway
Servants Discipline & Appeal Rules, 1968 contain the
following imputations :
"That Sri H.K.Tripathy during his incumbency
as in-charge DSK(C)/SERly, Talcher acted in a
manner unbecoming of a Railway Servant in as
much as he demanded and accepted illegal
gratification of Rs.100/- from the complainant
Sri S.K.Mohanty, Senior Clerk for his timely
relieve to S.E.Rly., Angul transferred vide office
order no.59/94 dt.23.06.94 and thereby
committed misconduct in contravention of
Rule 3 Clauses (i) & (iii) Railway Service
Conduct Rule-1966 as detailed in the
statement of imputation of misconduct."
2.2 Pursuant to the above charge, an ex-parte
enquiry was conducted, and report was submitted
accordingly. Basing upon the said enquiry report, the
disciplinary authority vide order dated 25.12.1999
passed an order of removal from service against the
opposite party-employee which was subsequently
upheld by the appellate authority vide order dated
25.02.2000. Against the same, the opposite party-
employee filed O.A. No.131/2000 before the learned
Page 3 of 32
// 4 //
Central Administrative Tribunal which was dismissed
vide order dated 26.02.2001. Against the said order of
dismissal of O.A., the opposite party-employee filed
OJC No.2948/2001 before this Court, which was
allowed by judgment dated 11.10.2007, wherein the
ordering portion reads as follows :
"In the result, the writ petition is allowed in
part. The impugned order passed by the
Tribunal, the departmental proceeding
conducted from 29.12.1997 and the order of
removal as well as the appellate order are
quashed. It will be open to the opposite parties
to conduct de novo enquiry as directed above
after providing opportunity to the petitioner to
defend himself in accordance with the rules.
However, if the proceeding is not started within
a period of three months from the date of
production of a copy of this order, the petitioner
shall be entitled to reinstatement with all
consequential service benefits."
2.4 After about a month of receiving the above order
passed by this Court, the petitioner no.4 issued a
letter to the opposite party-employee intimating him
regarding appointment of new Enquiry Officer and
presenting officer to conduct the de-novo enquiry
pursuant to the direction of this Court dated
11.10.2007.
2.5 The opposite party-employee again approached
the learned Central Administrative Tribunal by filing
O.A. No.72/2008 praying therein to direct the
respondents to reinstate him in his earlier post as well
as to complete the de-novo enquiry within a specific
Page 4 of 32
// 5 //
period, but the O.A. was dismissed by the learned
Tribunal vide order dated 25.06.2008 and the said
order was challenged before this Court in W.P.(C)
No.10638/2008, which was disposed of vide order
dated 25.09.2008, observing as follows :
"The order of removal from service having been
set aside by this Court in the aforesaid writ
application, the petitioner should have been
relegated to the post which he was holding on
the date of removal from service. If on the date
of removal from service he was continuing, he
should be allowed to continue and if on the
said date he was under suspension, he should
be paid subsistence allowance. The learned
counsel for the opposite parties inform us that
pursuant to the direction of this Court, a de
novo inquiry has already commenced. It is,
therefore, further observed that it is open for
the opposite parties to pass orders for placing
the petitioner under suspension pending
disposal of the departmental proceeding.
However, this observation may not be
considered as a direction.
With the above direction, the writ application is
disposed of."
2.6 The de-novo enquiry was completed and the
enquiry report was submitted by the enquiry officer on
01.11.2008 in which the charges leveled against the
opposite party-employee were held to be established.
After receiving a copy of the inquiry report, the opposite
party-employee submitted his defence to the inquiry
report on 19.11.2008. During enquiry the petitioner
no.4 vide order dated 01.12.2008 placed the opp. party
under suspension. The opposite party-employee again
Page 5 of 32
// 6 //
approached the learned Central Administrative
Tribunal by filing O.A. No.110/2009 praying therein to
quash the order of suspension as well as the charges
leveled against him. The said O.A. was dismissed by
the learned Tribunal vide order dated 20.04.2009 and
challenging the order, the opposite party-employee
approached this Court in W.P.(C) No.7834/2009 which
was disposed of vide order dated 30.06.2009 with a
direction to the Authority to complete the Departmental
proceeding as early as possible. Thereafter, petitioner
no.4 being disciplinary authority passed order of
removal from service dated 28.11.2009 which states as
follows :
The following findings were given by the
Disciplinary Authority :
"(i) In all the hearings, CO attended the
inquiry. All the reasonable opportunities
including adequate time for submission of
defence brief, representation on Inquiry
Report etc. were given to CO duly
observing the principles of Natural Justice.
(ii) The undersigned have carefully gone
through the Major Penalty Charge Sheet
No.SPMANGL/Steno/Conf/D&A/HKT/24,
Dated 31.03.1995 made against the
charged official, Sri H.K.Tripathy, Head
Clerk, Stores & Accounts/Con/Talcher,
articles of charges, Statement of
imputations therein, defence brief of the
charge official, Statement of witnesses
made during de-novo inquiry, evidence
produced, reports and findings of the
Inquiry Officer, P.O.'s brief and
Page 6 of 32
// 7 //
representation of the party on the inquiry
report.
(iii) On careful consideration of all the above,
the undersigned accept the P.O's brief and
findings of the Inquiry Officer and holds
the charges mentioned in the above
Charge Sheet No. SPM/ANGL/Steno/
Conf/D&A/HKT/24, Dated 31.03.1995
been established & proved and the
undersigned is satisfied that Sri
H.K.Tripathy is guilty of the charges
leveled against him.
(i) As per Clause specified in the Railway
Servant (D&A) Rules, 1968, one of the
following penalties should normally be
imposed, in trap case.
a. Dismissal.
b. Removal from service.
c. Compulsory retirement (When
superannuation is at least five years
away)
In view of the above, the undersigned, being
DA has decided that Sri H.K.Tripathy is not a fit
person to be retained in Railway Service and
now, therefore, in exercise of powers conferred
by Rules of Disciplinary Powers of RS (D&A)
Rules 1968 decided for punishment of "Removal
from Service".
2.7 The opposite party-employee preferred an appeal
before the appellate authority/petitioner no.2 which
was dismissed vide order dated 19.07.2010. Against
the order passed by the appellate authority the
opposite party-employee preferred a revision on
03.08.2010 before the Revisional Authority/ petitioner
no.3 who in turn confirmed the order of disciplinary
authority as well as the Appellate Authority against
which the Original Application No. 260/00816 of 2011,
Page 7 of 32
// 8 //
was filed before the learned Central Administrative
Tribunal with the following prayers :
"(a) To issue notice to the respondents.
(b) To quash/set aside the order of removal dated
27/28.11.2009 passed by the respondent no.4
(Annexure-6)
(c) To quash the order dated 15.02.2011 passed by
the respondent no.3 in the revision (Annexure-9)
(d) To direct the respondents to pay the applicant all
consequential service benefits treating him in service.
(e) To pass any other order(s), direction(s), as this
Hon'ble Tribunal may deem fit and proper to meet
the ends of justice and equity."
3.1 Counter was filed by the authorities/present
petitioners before the learned Tribunal, after giving due
opportunity, the learned Tribunal allowed the Original
Application by judgment dated 15.03.2018 stating as
follows :
"5. Before delving into the merit of this case, it may be
stated at the outset that this is peculiar case where in
spite of a CBI trap laid by the CBI staff, there was no
criminal case under Prevention of Corruption Act and
rather the department swung into action in view of a CBI
trap. Had the CBI case proceeded against the delinquent
employee (present applicant) certainly the department
could have initiated a simultaneous departmental
proceeding against the applicant but such a liberty is not
available to the department when CBI itself has not
proceeded with the CBI case. Had there been separate
report to the authority (department) regarding demand of
bribe, certainly the department could have initiated an
action. Admittedly, the decoy/informant has not made any
complaint either before the higher authority of the present
applicant or before any authority of the department to
strengthen the case of harassment by a colleague. The FIR
was lodged before the CBI authority and not before the
department and initiation of a departmental proceeding
when CBI did not initiate a criminal case speaks of
malafide and vindictive attitude of the department. When
no CBI case pending, initiating a departmental proceeding
on the same issue is a futile departmental exercise.
Page 8 of 32
// 9 //
6. Coming to the legal lacuna, it is noticed that except
the solitary statement of demand of bribe by the decoy
informant, there is no corroborative evidence either of
demand of bribe or acceptance of bribe. Except the
informant, not a single departmental or independent
witness came forward to say that he has heard demand of
bribe or about acceptance of bribe or even harassment by
the applicant at any point of time. Knowing fully well that
no corroborative evidence could be established the CBI
has not charge sheeted the accused. There are judicial
pronouncements to that effect which the CBI sleuths knew
very well for which they did not venture to file a charge-
sheet against the applicant in the CBI court. In the case of
Panalal Damodar Rathi v. State of Maharashtra
reported in 1979 (4) SCC 526, a Three judge Bench of
the Hon'ble Apex Court have authoritatively held that
when there was no corroboration of testimony of complaint
regarding demand or acceptance of bribe, it is to be
accepted that the version of the complainant is not
corroborated and version of the complainant cannot be
relied upon. The Disciplinary Authority, the Appellate
Authority and the Revisional Authority have nowhere
whispered, who is the second departmental witness who
vouchsafe regarding authenticity of the statement of the
informant, Mr. S.K. Mohanty. Furthermore, in view of the
decisions rendered in the case of Suraj Mal v. State
(Delhi Administration) reported in 1979 (4) SCC 725.
Their Lordships have categorically held that "mere
recovery of tainted money, divorced from the
circumstances under which it is paid, is not sufficient to
convict the accused when the substantive evidence in the
case is not reliable. The mere recovery by itself cannot
prove the charge of the prosecution against the accused. In
the absence of any evidence to prove payment of bribe or
to show that the accused voluntarily accepted the money
knowing it to be bribe conviction cannot be sustained." We
have every reason to hold that the evidence of Mr. S.K.
Mohanty is not reliable because of the prevailing and
surrounding circumstances. Once, there is a transfer
order, the person, who is authorized for relieving that
person for retaining that person or delaying the relieve
date, can demand bribe and that is understood but for
immediate giving effect to the transfer order the demand of
bribe becomes remote because if the concerned officer does
not relieve the employee in time, he has ample scope to
approach his higher authority for not obeying the transfer
order. So, in the present case demand of bribe for an early
relieve becomes unacceptable on the backdrop when the
informant candidly admitted that, only once he had
Page 9 of 32
// 10 //
approached the applicant on 30.06.1994. In view of such
statement, the question of harassment also does not arise.
[Emphasis Supplied]
7. To sum up, had the CBI charge-sheeted the accused
certainly the department would have been right in
initiating a proceeding and to deal with the case by way of
independent evidence but such liberty is not available
when the CBI itself failed to substantiate its case for which
the accused did not face trial before the CBI court and
initiating a departmental proceeding on an unfounded
criminal case amounts to misuse of official dissertation. In
a departmental proceeding generally we do not go into the
details of the evidence but in this case we have scanned
the entire proceeding to examine if there is any legal
evidence on record to hold the delinquent employee guilty
of misconduct. In the case of State of Tamilandu v. S.
Subramaniam reported in 1996 SCC (L&S) 627. Their
lordships observed that the only consideration of the
Tribunal in its judicial review is whether the acquisition is
based on evidence on record to support the finding and
whether its conclusion is based on no evidence. Here,
there is absolutely no legal evidence to come to a finding of
demand and acceptance of bribe and it is unsafe to rely
on the uncorroborated testimony of the complaint in view
of the Trade Union rivalry. Since, legally the charge could
not be proved for want of reliable evidence, the findings
recorded by the Disciplinary Authority, Appellate Authority
and the Revisional Authority becomes vulnerable and is
liable to be set aside in her larger interest of justice, equity
and good conscience. Hence ordered."
[Emphasis Supplied]
4. Being aggrieved by the judgment of the Central
Administrative Tribunal dated 15.03.2018 the petitioners
have filed this application. This Court heard Shri Deb
Ranjan Mohapatra, learned Central Government Counsel
for the petitioners and Mr. N.R. Routray, learned counsel
for opposite party-employee and perused the records
available in the present proceeding as well as pleadings
before the learned Tribunal in O.A. No.260/00816 of 2011
disposed of on 15.03.2018. With the consent of the
Page 10 of 32
// 11 //
parties, the matter is disposed of at the stage of
admission.
Contentions of the petitioners and judgments
relied on.
Learned Central Government Counsel has relied on
the decisions dated 20.05.2022 & dated 02.09.2022
rendered by the Hon'ble Supreme Court in Civil Appeal
No. 3490 of 2022 (State Bank of India and another v.
K.S.Vishwanath) and in Civil Appeal No. 5930 of 2022
(arising out of SLP(C) No.11195 of 2021 (The State of
Rajasthan and others v. Phool Singh) respectively. He
has further relied on the decision rendered by the Hon'ble
Supreme Court on 29.10.2020 in the State of Rajasthan
and others v. Heem Singh : Civil Appeal No.3340 of
2020.
The petitioners' case rests on the contention that
the learned Tribunal failed to appreciate that the
procedure in a criminal case as compared to a
departmental enquiry is separate and distinct. Relying on
Phool Singh (supra) and Heem Singh (supra), it is
contended in a criminal case, the guilt is to be proved
beyond all reasonable doubt and in case of departmental
proceeding, the delinquency has to be proved on the basis
of preponderance of probabilities. Relying on
K.S.Vishwanath (supra) & Heem Singh (supra), it is
submitted that the learned Tribunal could not have re-
assessed the evidence presented before the disciplinary
authority, who came to the conclusion of holding the
employee guilty and as such the order of the disciplinary
Page 11 of 32
// 12 //
authority having been passed following due procedure, is
to be upheld by interfering with the order passed by the
learned Tribunal.
Contentions raised by the learned counsel for
opposite party and judgments relied on
5. Per contra, Mr. Routrary, learned counsel for the
opposite party supports the conclusion arrived at by the
learned Tribunal and the reasoning given by the learned
Tribunal are also reiterated. The learned counsel for the
opposite party-employee brings to the notice the Railway
Board Guideline vide RBE No.54/1995 :
"3. However, if the facts, circumstances and the
charges in the Departmental Proceedings are
exactly identical to those in the criminal case and
the employee is exonerated/acquitted in the
criminal case on merit (without benefit of doubt or
on technical ground) then the departmental case
may be reviewed if the employee concerned makes
a representation in this regard."
5.1 It is contended that the enlisted witnesses
presented before the Inquiry Officer, I.O. did not support
the case of the departmental authority in presenting the
allegations. Referring to the statement of Sri N.L.S.V.B.
Kameswar Rao and Sri S.B. Mohapatra, it is contended
that the witnesses did not support, which is also
indicated in the enquiry report dated 14.08.2008 as
rendered by the Inquiry Officer:
"Of course, from the deposition of the so called
independent witnesses Sri J.K. Padhy (P.W.1) & Sri
Radhakrishna (P.W.II), it is felt that the prosecution
could not produce concrete evidence to establish
the demand of the illegal gratification by the CO.
Page 12 of 32
// 13 //
5.2 It is further contended by the learned counsel for
opposite party that the decision relied upon by the
petitioners-Union of India particularly K.S.Vishwanath
(supra) is in respect of completely different set of facts
and therefore, the ratio is not applicable to the present
case.
Learned counsel for the opposite party relies on the
decision of the Hon'ble Supreme Court reported in G.M.
Tank v. State of Gujarat and others: (2006) 5 SCC
446, particularly paragraph-30 (of SCC) :
"30. The judgments relied on by the learned
counsel appearing for the respondents are
distinguishable on facts and on law. In this case,
the departmental proceedings and the criminal
case are based on identical and similar set of facts
and the charge in a departmental case against the
appellant and the charge before the criminal court
are one and the same. It is true that the nature of
charge in the departmental proceedings and in the
criminal case is grave. The nature of the case
launched against the appellant on the basis of
evidence and material collected against him during
enquiry and investigation and as reflected in the
charge-sheet, factors mentioned are one and the
same. In other words, charges, evidence, witnesses
and circumstances are one and the same. In the
present case, criminal and departmental
proceedings have already noticed or granted on the
same set of facts, namely, raid conducted at the
appellant's residence, recovery of articles
therefrom. The Investigating Officer Mr V.B. Raval
and other departmental witnesses were the only
witnesses examined by the enquiry officer who by
relying upon their statement came to the conclusion
that the charges were established against the
appellant. The same witnesses were examined in
the criminal case and the criminal court on the
examination came to the conclusion that the
Page 13 of 32
// 14 //
prosecution has not proved the guilt alleged against
the appellant beyond any reasonable doubt and
acquitted the appellant by its judicial
pronouncement with the finding that the charge
has not been proved. It is also to be noticed that the
judicial pronouncement was made after a regular
trial and on hot contest. Under these
circumstances, it would be unjust and unfair and
rather oppressive to allow the findings recorded in
the departmental proceedings to stand."
5.3 Learned counsel for the opposite party further relies
on the judgment rendered by a Single Bench of this
Court dated 10.08.2021 in WPC(OAC) No.1052 of 2013 in
the case of Samir Ranjan Sahoo v. State of Orissa &
others : 2021 (II) ILR-CUT-787 regarding inapplicability
of K.S.Vishwanath (supra).
Learned counsel relies on the decision rendered by
the Hon'ble Supreme Court in The State Financial
Corporation and another v. M/s. Jagadamba Oil Mills
and Another : AIR 2002 SC 834, particularly the
principle laid down in paragraph-21 of the said decision
which is quoted herein :
"21.Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusion in two cases. Disposal of cases
by blindly placing reliance on a decision is not
proper."
Analysis
6. Apparently the Disciplinary Proceeding was
initiated on the basis of the complaint lodged before the
Central Bureau of Investigation and the subsequent
action of the CBI in laying a trap as indicated in the
Page 14 of 32
// 15 //
report of the Disciplinary Authority (at internal page-3 :
Annexure-2, paragraph-2). The list of documents and
witnesses examined by the Disciplinary Authority are
indicated by him in paragraph-2 as follows :
(A) List of documents examined:
(i) Complaint dt.30.06.1994 (RUD-1)
(ii) Pre Trap memorandum (RUD-2)
(iii) Post Trap Memorandum (RUD-3)
(iv) G.C. Notes bearing No. 4NE 680438-
Rs.50/, 94E 072304-Rs.20/-, 66N-
402983-Rs.10/-, 08T 784576-Rs.10/- and
99A 965617-Rs.10/-. (RUD-4).
(v) CFSL repot vide No.CFSL/E/94 (G/1)-
392/4058 dt.12.08.94 (RUD-5)
(vi) Spot map (RUD-6)
All these above documents by which the
Article of charge framed against the CO
proposed to be sustained were taken on
record and marked as exhibits RUD-1 to 6.
In addition to this, the following
documents produced by the CO were also
taken on to records and marked as
exhibits D1.
(1) Copy of SPE department of Personnel
Cabinet Secretariat INVOICE No.224
dt.22.09.98 together with copy of CBI
letter addressed to the Co; Return of
documents seized in RC 48/94 dt.
11.04.2000 along with a copy of the
typed unsigned letter of Sri Kameswara
Rao as an enclosure.
(B) List of witness examined :
(i) Sri J.K. Padhy, the then A.S.O.,
Mahanadi Coal field Ltd., Dera/Talcher (now Sr.
Survey Officer, MCL/Talcher).
(ii) Sri M. Radhakrishna, the then AVO,
Fertilizer Corporation of India, Talcher (now
Retd Sr. Vigilance Officer/FCIL/Ramagundam
Unit).
Page 15 of 32
// 16 //
(iii) Sri S.K. Dash, the then Inspector,
CBI/Bhubaneswar (now officer, B.O.I., Keonjhar
Branch).
(iv) Sri K.K. Dash, the then
HC/CBI/Bhubaneswar (now ASI/Vigilance
Directorate/Cuttack.)'
(v) Sri K.Rath, the then RSO,
CBI/Cuttack (now Sr. TI/Optg.BBS)
(vi) Sri S.K. Mohanty, the then Sr. Clerk
O/o DSK (C)/SERly/Talcher (now Sr.
Clerk O/o Sr. DOM/KUR).
(vii) Sri D.P. Majumdar, the then
Inspector/CBI/Bhubaneswar (now Addl.
DCP/Cuttack).
(viii) Sri N.L.S.V.B.Kameswara Rao, CA to Dy.
COM(P&P) (ex.Sr. Steno, CAO/BBS)
(ix) Sri S.B. Mohapatra, Sr. Steno to
Dy.CE/Con/P&P/BBS (ex.Jr. Steno,
SPM/ANGL).
During the course of regular hearing, all the
prosecution witness at Sl.No.(i) to (vii) were
examined on behalf of the prosecution and
cross examined by the CO/DC. Further, the two
defence witnesses at Sl.No.(Viii) & (ix), cited by
the Co, were also examined by CO/DC and
cross examined by PO on behalf of prosecution."
6.1 It is further evident from the summary of evidence
adduced that the Disciplinary Authority examined the
complainant before the CBI and the persons who
participated in the operation of the CBI in laying the trap.
It is apparent that the CBI thought it prudent not to
proceed further after conducting the trap in accordance
with law, by not filing any police report before the
competent court, rather it chose to send a 'closure report'
after completion of the investigation. The Inspector, CBI,
Bhubaneswar was also examined as a witness by the
Disciplinary Authority.
Page 16 of 32
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6.2 The peculiar facts those have emerged are that
there was no complaint by the complainant before the
Departmental Authority. The CBI in response to the
complaint of the complainant acted by laying a trap but
ultimately did not proceed further as per the procedure
established by law that is the Prevention of Corruption Act
and Code of Criminal Procedure. But the Disciplinary
Authority proceeded to analyse the various acts of CBI
and the statements of witnesses those were said to have
been part of the CBI operation laying trap, to arrive at a
conclusion holding the employee guilty.
6.3 As indicated above, article of charges indicate that
the enquiry was wholly based on the exercises
undertaken by the CBI under the provisions of the
Prevention of Corruption Act by laying a trap arranging
different witnesses. For the reasons best known to the
Investigating Agency, the matter was not proceeded and
in fact the records and papers were returned to the
Department.
6.4 On perusal of the available materials on record and
the pleadings, it is indicated that the findings of the
learned Tribunal regarding no departmental proceeding
having been initiated as per the complaint of the
complainant-Mr. S.K.Mohanty before the departmental
authority, remains uncontroverted. Learned counsel for
the petitioners was specifically asked to point out the
material filed by the petitioners herein/respondents
before the learned Tribunal to indicate if any material was
Page 17 of 32
// 18 //
presented before the learned Tribunal to show that a
complaint was made by the employee, Sri S.K.Mohanty
before the authority against the respondent. Learned
counsel fairly submitted that he cannot go beyond the
pleadings before the Tribunal and there is no other
materials that was placed before the learned Tribunal to
show that a departmental proceeding was ever initiated
on the basis of a complaint made by the employee.
Learned counsel though argued with lot of vehemence
and emphasis but had to accept the fact as it remains
that in the Disciplinary Proceeding the trap witnesses
those were drafted in by the CBI, were examined along
with the documents those were examined by the CBI in a
proposed case to be initiated under the Prevention of
Corruption Act.
The Special Police Establishment, CBI in their letter
dated 30.07.1994 annexed to the writ petition marked as
Annexure-1 at paragraph-10 (vi) have indicated the
following :
"vi) Conclusion whether the allegation is:
a) Proved against each of the suspect/accused:
The allegation against the suspect is proved.
b) Doubtful or not fully proved : NIL.
c) Not substantiated or proved to be false : NIL."
The said communication at paragraph-11 states the
following :
"Final Recommendations.
(i) Prosecution: Nil
(ii) R.D.A.
Page 18 of 32
// 19 //
Considering the facts and circumstances of the case,
R.D.A. Major Penalty is recommended against Sri
H.K.Tripathy.
(iii) To be referred to the Ministry/Deptt. for such
action as may be considered appropriate.
NIL.
(b) To be closed and dropped for lack of proof.
NIL
(c) Taking action against the complainant for making
false and malicious allegations.
NIL"
7. The decisions relied upon by the learned Central
Government Counsel are dealing with the issue where
the delinquent employee is proceeded against
departmentally by initiating departmental proceeding
whereas he has been acquitted in the criminal case
arising out of the same set of facts. The facts of the
present case are different as the investigating/
prosecuting agency after planning and proceeding to lay
the trap did not proceed for trial in accordance with law
and gave a report to the department for proceeding
departmentally, observing that "the allegation against the
suspect is proved".
8. The Hon'ble Supreme Court dealt with somewhat
similar facts and circumstances as those have emerged
in the case at hand in the decision rendered in Moni
Shankar v. Union of India and another : (2008) 3
SCC 484. The relevant paragraphs of the said decision
are quoted herein :
Page 19 of 32
// 20 //
"8. Mr A.K. Sanghi, learned counsel appearing on
behalf of the appellant would submit that:
1. The High Court committed a serious error
insofar as it failed to take into consideration that
the Railway Authorities were required to follow
Paras 704 and 705 of the Manual scrupulously.
2. The appellant having not examined any defence
witness, he should have been examined in terms
of Rule 9(21) of the Rules, which being mandatory
in nature, non-compliance therewith would vitiate
the entire proceeding.
3. The shortage in cash having repaid by the
appellant, no charge could have been framed in
that behalf.
4. The findings of the High Court that the
appellant was found to have been in possession of
an excess sum of Rs 5 was beyond record.
9. Dr. R.G. Padia, learned Senior Counsel,
appearing on behalf of the respondents, on the
other hand, would contend:
1. That finding of fact having been arrived at by
the disciplinary authority, the same should not
have been interfered with by the Tribunal
particularly when some evidences have been led
on behalf of the Department.
2. The High Court has rightly opined that Paras
704 and 705 of the Manual pertaining to the
manner in which the trap could be laid, contain
only administrative instructions and are, thus, not
enforceable in a court of law.
3. Since there was sufficient compliance with Rule
9(21), the impugned judgment should not be
interfered with.
10. We may at the outset notice that with a view
to protect innocent employees from such traps,
appropriate safeguards have been provided in the
Railway Manual. Paras 704 and 705 thereof read
thus:
"704. Traps.--(i)-(iv)***
Page 20 of 32
// 21 //
(v) When laying a trap, the following important
points have to be kept in view:
(a) Two or more independent witnesses must hear
the conversation, which should establish that the
money was being passed as illegal gratification to
meet the defence that the money was actually
received as a loan or something else, if put up by
the accused.
(b) The transaction should be within the sight and
hearing of two independent witnesses.
(c) There should be an opportunity to catch the
culprit red-handed immediately after passing of
the illegal gratification so that the accused may
not be able to dispose it of.
(d) The witnesses selected should be responsible
witnesses who have not appeared as witnesses in
earlier cases of the Department or the police and
are men of status, considering the status of the
accused. It is safer to take witnesses who are
government employees and of other departments.
(e) After satisfying the above conditions, the
investigating officer should take the decoy to the
SP/SPE and pass on the information to him for
necessary action. If the office of the SP, SPE, is not
nearby and immediate action is required for laying
the trap, the help of the local police may be
obtained. It may be noted that the trap can be laid
only by an officer not below the rank of Deputy
Superintendent of Local Police. After the SPE or
local police official have been entrusted with the
work, all arrangements for laying the trap and
execution of the same should be done by them. All
necessary help required by them should be
rendered.
(vi)-(vii)***
705. Departmental traps.--For departmental
traps, the following instructions in addition to
those contained under Para 704 are to be
followed:
(a) The investigating officer/Inspector should
arrange two gazetted officers from Railways to act
Page 21 of 32
// 22 //
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 can be utilised.
All employees, particularly, gazetted officers,
should assist and witness a trap whenever they
are approached by any officer or branch. The
Head of Branch should detail a suitable person or
persons to be present at the scene of trap. Refusal
to assist or witness a trap without a just
cause/without sufficient reason may be regarded
as a breach of duty, making him liable to
disciplinary action.
(b) The decoy will present the money which he will
give to the defaulting officers/employees as bribe
money on demand. A memo should be prepared
by the investigating officer/Inspector in the
presence of the independent witnesses and the
decoy indicating the numbers of the GC notes for
legal and illegal transactions. The memo, thus
prepared should bear the signature of decoy,
independent witnesses and the investigating
officer/Inspector. Another memo, for returning the
GD notes to the decoy will be prepared for making
over the GC notes to the delinquent employee on
demand. This memo should also contain
signatures of decoy, witnesses and investigating
officer/Inspector. The independent witnesses will
take up position at such a place wherefrom they
can see the transaction and also hear the
conversation between the decoy and delinquent,
with a view to satisfy themselves that the money
was demanded, given and accepted as bribe a
fact to which they will be deposing in the
departmental proceeding at a later date.
xxx xxx xxx
[Emphasis Supplied )
xxx xxx xxx
14. While we say so we must place on record that
this Court in Chief Commercial Manager, South
Central Railway v. G. Ratnam [(2007) 8 SCC 212 :
(2007) 2 SCC (L&S) 851] opined that non-
Page 22 of 32
// 23 //
adherence to the instructions laid down in Paras
704 and 705 of the Vigilance Manual would not
invalidate a departmental proceeding, stating :
(SCC pp. 220-21, paras 17-18)
"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. ... ....
.... 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
Page 23 of 32
// 24 //
has caused prejudice to the rights of the
respondents in their defence before the enquiry
officers.
(Emphasis Supplied)
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."
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.
xxx xxx xxx
17. The departmental proceeding is a quasi-
judicial one. Although the provisions of the
Evidence Act are not applicable in the said
proceeding, principles of natural justice are
required to be complied with. The courts exercising
power of judicial review are entitled to consider as
to whether while inferring commission of
misconduct on the part of a delinquent officer
relevant piece of evidence has been taken into
consideration and irrelevant facts have been
excluded therefrom. Inference on facts must be
based on evidence which meet the requirements of
legal principles. The Tribunal was, thus, entitled to
arrive at its own conclusion on the premise that
the evidence adduced by the Department, even if
Page 24 of 32
// 25 //
it is taken on its face value to be correct in its
entirety, meet the requirements of burden of proof,
namely, preponderance of probability. If on such
evidences, the test of the doctrine of
proportionality has not been satisfied, the Tribunal
was within its domain to interfere. We must place
on record that the doctrine of unreasonableness is
giving way to the doctrine of proportionality.
(See State of U.P. v. Sheo Shanker Lal
Srivastava [(2006) 3 SCC 276 : 2006 SCC
(L&S) 521] and Coimbatore District Central
Coop. Bank v. Employees Assn. [(2007) 4 SCC
669 : (2007) 2 SCC (L&S) 68] )
[Emphasis Supplied)
18. We must also place on record that on certain
aspects even judicial review of fact is permissible.
(E v. Secy. of State for the Home Deptt. [2004
QB 1044 : (2004) 2 WLR 1351 (CA)] )
xxx xxx xxx
22. The High Court, on the other hand, as
indicated hereinbefore, proceeded to opine that the
Tribunal committed a serious illegality in entering
into the realm of evidence. It is permissible in law
to look to the evidence for the purpose of
ascertaining as to whether the statutory
requirement had been complied with or not.
xxx xxx xxx
24. The High Court unfortunately even without
any material on record held that some excess
amount was found from the appellant which itself
was sufficient to raise a presumption that it had
been recovered from the decoy passenger. No such
presumption could be raised. In any event there
was no material brought on record by the
department for drawing the said inference. The
High Court itself was exercising the power of
judicial review. It could not have drawn any
presumption without there being any factual
foundation therefor. It could not have taken
Page 25 of 32
// 26 //
judicial notice of a fact which did not come within
the purview of Section 57 of the Indian Evidence
Act. [Emphasis supplied]
xxx xxx xxx
26. The High Court has only noticed paragraph
704 of the Manual and not the paragraph 705
thereof. Paragraph 705 was very relevant and in
any event both the provisions were required to be
read together. The High Court, thus, committed a
serious error in not taking into consideration
paragraph 705 of the Manual. The approach of the
High Court, in our opinion, was not entirely
correct. 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-bye.
27. It is the High Court who posed unto itself a
wrong question. The onus was not upon the
appellant to prove any bias against the RPF, but it
was for the department to establish that the
charges levelled against the appellant.
28. The High Court also committed a serious error
in opining that sub- rule (21) of Rule 9 of the Rules
was not imperative. The purpose for which the
sub-rule has been framed is clear and
unambiguous. The railway servant must get an
opportunity to explain the circumstances
appearing against him. In this case he has been
denied from the said opportunity.
xxx xxx xxx
30. For the aforementioned purpose, the manner
in which the enquiry proceeding was conducted
was required to be taken into consideration by the
High Court. The trap was not conduced in terms of
the Manual; the Enquiry Officer acted as a
Prosecutor and not as an independent quasi
judicial authority; he did not comply with Rule
9(21) of the Rules, evidently, therefore, it was not
a case where the order of the Tribunal warranted
interference at the hands of the High Court.
[Emphasis supplied]
Page 26 of 32
// 27 //
31. The impugned judgment, therefore, cannot be
sustained. It is set aside accordingly and that of
the Tribunal restored. The appeal is allowed with
costs. Counsel fee assessed at Rs.25,000/-."
9. The facts presented in the case at hand are
somewhat peculiar to the extent that though the trap
was to be laid following paragraph-704 of the Manual by
the investigating agency and it is not a departmental trap
as further envisaged in paragraph-705, however, the
departmental proceeding proceeded on the basis of the
report given by the investigating agency. Somehow,
compliance with the paragraphs-704 and 705 of the
Railway Vigilance Manual is not mentioned in the entire
disciplinary proceeding that was undertaken by the
departmental authority, i.e., petitioner no.4. As indicated
above, the Inquiring Officer has given a finding in
inquiry report dated 14.08.2008 Annexure-2 to the writ
petition at pages-36 and 37 (internal pages-15 & 16 of
the inquiry report), which is quoted herein :
"... ...Of course, from the deposition of the so
called independent witnesses Sri J.K. Padhy
(P.W.1) and Sri Radhakrishna (P.W.II), it is felt
that the prosecution could not produce
concrete evidence to establish the demand of
the illegal gratification by the CO. ... ..."
10. As laid down in [E.v. Secy. of State for the Home
Deptt.: 2004 QB 1044: [2004] 2 WLR 1351 (CA)], relied
on in Moni Shankar (supra), it has to be held that on
certain aspects, judicial review of facts is permissible.
Page 27 of 32
// 28 //
The relevant paragraph of the decision rendered by Court
of Appeal in E.v. Secy of State (supra) are produced
herein (Paragraphs-63, 64 & 66 as reported in the WLR)
"63. In our view, the Criminal Injuries
Compensation Board case [1999] 2 AC 330 points
the way to a separate ground of review, based on
the principle of fairness. It is true that Lord Slynn
distinguished between "ignorance of fact" and
"unfairness" as grounds of review. However, we
doubt if there is a real distinction. The decision
turned, not on issues of fault or lack of fault on
either side; it was sufficient that "objectively"
there was unfairness. On analysis, the
"unfairness" arose from the combination of five
factors : (i) an erroneous impression created by a
mistake as to, or ignorance of, a relevant fact (the
availability of reliable evidence to support her
case); (ii) the fact was "established", in the sense
that, if attention had been drawn to the point, the
correct position could have been shown by
objective and uncontentious evidence; (iii) the
claimant could not fairly be held responsible for
the error; (iv) although there was no duty on the
Board itself, or the police, to do the claimant's
work of proving her case, all the participants had
a shared interest in co-operating to achieve the
correct result; (v) the mistaken impression played
a material part in the reasoning.
64. If that is the correct analysis, then it provides
a convincing explanation of the cases where
decisions have been set aside on grounds of
mistake of fact. Although planning inquiries are
also adversarial, the planning authority has a
public interest, shared with the Secretary of State
through his inspector, in ensuring that
development control is carried out on the correct
factual basis. ... ...
xxx xxx xxx
66. In our view, the time has now come to accept
that a mistake of fact giving rise to unfairness is a
separate head of challenge in an appeal on a point
Page 28 of 32
// 29 //
of law, at least in those statutory contexts where
the parties share an interest in co-operating to
achieve the correct result. ... ..."
[Emphasis supplied]
Conclusions
11. Applying the principles laid down in Moni Shankar
(supra) relying on E.v. Secy of State (supra), particularly
at paragraphs-10, 11, 12, 15, 16 and 17 (of SCC), it has
to be held that although the provisions of the Evidence
Act are not strictly applicable in the departmental
proceeding under challenge, principles of natural justice
are required to be complied with. The courts exercising
power of judicial review are entitled to consider as to
whether while inferring commission of misconduct on the
part of a delinquent officer relevant piece of evidence has
been taken into consideration and irrelevant facts have
been excluded therefrom. Inference on facts must be
based on evidence which meet the requirements of legal
principles. The Tribunal was, thus, entitled to arrive at
its own conclusion on the premise that the evidence
adduced by the Department, even if it is taken on its face
value to be correct in its entirety, meet the requirements
of burden of proof, namely, preponderance of probability.
If on such evidences, the test of the doctrine of
proportionality has not been satisfied, the Tribunal was
within its domain to interfere.
12. As noted by the Hon'ble Supreme Court in
paragraphs-6 & 10 of the decision in Moni Shankar
(supra), Rule-9 (21) of the Railway Servants (Discipline
Page 29 of 32
// 30 //
and Appeal) Rules, 1968 and also paragraphs-704 and
705 of the Railway Vigilance Manual, which ensure
compliance with principle of natural justice & fairness in
action of the authority, have to be substantially complied
with which is not the case as presented by the
department.
13. In our considered opinion, on the basis of evidence
presented by the department in the departmental enquiry
the test of doctrine of proportionality has not been
satisfied and the Tribunal was well within its jurisdiction
to interfere with the conclusions. Applying the principles
enunciated in E.v. Secy of State (supra), it has to be
held that in the present case, the learned Tribunal was
entitled to arrive at its own conclusion on the premise
that whether the evidence adduced by the department
even after it is taken at its face value to be correct in its
entirety, meet the requirements of burden of proof, i.e.,
preponderance of probability.
The Enquiring Officer after arriving at a conclusion
in his enquiry report dated 14.08.2008 that "from the
deposition of the independent witnesses Sri J.K. Padhy
(P.W.1) and Sri Radhakrishna (P.W.II), it is felt that the
prosecution could not produce concrete evidence to
establish the demand of the illegal gratification by the
CO..." could not have proceeded further to hold that "it
could be concluded that there was demand of illegal
gratification under 'Preponderance of probability' as there
was no hesitation registered for accepting the illegal
gratification in this case.", whereas the witness who
Page 30 of 32
// 31 //
offered was decoy and was acting as per the planned trap
laid by the investigating agency.
14. The contention raised by the petitioners regarding
limited scope of review by the learned Tribunal of the
evidence presented by the department is rejected in the
facts and circumstances of the present case. The
judgment of the learned Tribunal is upheld being just
and proper there being no error apparent on the face of
the record.
15. During deliberations before this Court, it is noticed
that the period of suspension of the opposite party-
employee has not been dealt with by the authority while
passing the order of dismissal. It is agreed by the
learned counsel for the opposite party that having
received the subsistence allowance, the opposite party-
employee will not lay any further claim qua wages for the
said period. In the interest of justice, it is directed that
the period of suspension of the opposite party-employee
shall be treated to be leave of the kind due, for continuity
in service. The notional benefits like benefits of fixation
of Pay, D.A. and other allowances as due and admissible
to the employee shall be granted to him. As the petitioner
has retired from service on attaining age of
superannuation in the year about 2012-13, his retiral
dues shall be calculated after notionally fixing the last
pay drawn. The arrears of differential salary, retiral
dues, if any, after notional fixation shall be calculated
Page 31 of 32
// 32 //
and paid to the opposite party-employee within three
months from the date of communication of this order. In
case of any delay, that would be caused in payment of
such amount, interest @ 6% per annum shall be payable
to the petitioner from the date of this order.
In the result, the writ petition is dismissed being
devoid of any merit, the order of the learned Tribunal is
upheld with the further directions as indicated above.
There shall be no order as to costs.
.....................
M.S. Sahoo, J.
Dr. B.R.Sarangi, J. I agree.
.......................... Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 9th March, 2023/dutta/Gs Page 32 of 32