Central Administrative Tribunal - Ahmedabad
A.A. Makwana vs Union Of India (Uoi) And Ors. on 6 March, 2000
JUDGMENT A.S. Sanghavi, Member (J)
1. The applicant who was working as senior TT was on duty on dated 5.4.90 in 6 up express, going from Ahmedabad to Bombay Central. He was on duty in sleeper coach No. S9 and after the train left Nadiad station, vigilance inspector of the railway carried out a surprise check. During the surprise check, it was found that the applicant had allotted B.No. 1 & 2 to one Gulabchand and his son, though RAC listed passengers were not allotted any berth. It was also found by the vigilance inspector that berths to Gulabchand and his son were allotted by accepting bribe of Rs. 20/-. The vigilance inspector had also carried out verification of the cash with the applicant and had found a shortage of Rs. 40/- in the cash. The applicant had given explanation that while collecting the cash from the passengers two notes of Rs. 20/- might have slipped away but the explanation of the applicant was not accepted by the vigilance inspector and he had reported the matter to the superiors. The applicant was ultimately served with the charge sheet for major penalty after holding the inquiry into the charges levelled against the applicant. The inquiry officer had found him guilty of charges levelled against him. Consequently the disciplinary authority had imposed the punishment of removal from the service on the applicant. The applicant had challenged the order of punishment before the appellate authority and the appellate authority had partly allowed the appeal reducing the penalty of removal from service to that of reduction in rank as Sr.T.C. in the grade of 1200-2040 at the minimum of scale for a period of three years with a direction that thereafter he would be reverted back to his original position in grade of Rs. 1600-2660 at the stage from where he was removed from service namely Rs. 1750/-. The applicant has now challenged the orders of appellate authority as well as the disciplinary authority contending that even though the charges levelled against him were not established, he has been wrongly punished by reduction in the rank etc.
2. The respondents in their reply have refuted the allegation of the applicant that the charges levelled against him were not established and that a wrong order of punishment is passed against him. They have contended inter alia that on a surprise check by the vigilance inspector shortage in cash of Rs. 40/- was found from the applicant and therefore, it was the case of temporary misappropriation of the Government money. It was also found by the vigilance inspector that the applicant had given two berths to two passengers excluding the claim of RAC ticket holders and that on inquiry it was learnt that both the berths were given to these persons by accepting bribe from them. The applicant was, therefore, given charge sheet. Ultimately in inquiry, he was found to be guilty of both the charges by the inquiry officer. He was, therefore, imposed with the penalty of removal from service by the disciplinary authority which was subsequently in appeal reduced to reduction in rank for three years by the appellate officer. They have denied that the copies of the documents relied upon in the inquiry were not supplied to the applicant and that the inquiry was conducted against the principle of natural justice. They have supported the punishment imposed on the applicant and have prayed that the application be dismissed with costs.
3. We have heard the learned advocates of the parties at length and have also carefully gone through the documents produced on record. Apart from the question of non supply of documents and vitiation of inquiry report etc. as alleged by the applicant, we find that the order of the appellate officer deciding the appeal of the applicant is sufficient to dispose of this O.A. We re-produce the order of appellate officer which verbatim runs as under:-
"I have gone through the appeal preferred by Shri A.A. Makwana, TTI. I have also gone through the findings and the evidence recorded in the inquiry and the original statement recorded at the time of vigilance check. There are two major charges against the employee viz. (a) Rs. 40/- was found short in Rly./ cash at the time of vigilance check, and (b) He had demanded and accepted Rs. 220/- as illegal money from Shri Gulabchand. The employee has not been able to explain shortage of railway cash within approximately one hour of train departure from ADI. He has explained that two 20-rupee notes might have slipped from his hands or pocket which shows his negligent working.
As regards the 2nd charge, there is no conclusive evidence that he demanded illegal money from Shri Gulabchand. Shri Gulabchand in his original statement, given at the time of vigilance check, has merely staled that Shri Makwana took Rs. 20/- after the train started from ADI and receipt was not yet given by him. In case, Rs. 20/- paid by Shri Gulabchand was illegal money, there was no question of a receipt being given to Shri Gulabchand.
I find that cross examination of Shri Gulabchand in the DAR inquiry has not been correctly accepted by the inquiry officer and he has relied on the original statement of Shri Gulabchand dated 5.4.89. This original statement, by itself, was not conclusive proof of the fact that a bribe of Rs. 20/- was demanded and accepted by Shri Makwana, TTI. Shri Gulabchand in his statement before the inquiry officer has explained that Rs. 20/- paid by him to Shri Makwana, was part of the money he was required to pay for sleeper berth. Unfortunately, no clarification was obtained by the VIDRC who recorded the original statement on 5.4.89 as to whether Rs. 20/- paid by him was illegal money or he was expecting a receipt for the same.
2. Keeping all the circumstances in view, I feel removal from service will be a very harsh punishment for Shri Makwana. Ends of justice will be met if he is reduced in rank as Sr. TC in grade Rs. 1200-2040/- RP at the minimum of scale for a period of three years after which he will revert back to his original position in grade Rs. 1600-2660/ RP at the stage from where he was removed from service viz. 1750/-
His intervening period from the date of removal from service to reinstatement as Sr. TC is treated as leave due."
4. It is quite evident from the conclusion drawn by the appellate officer that the second charge i.e. demanding illegal gratification was not proved against the applicant and there was no conclusive evidence in that regard. It is therefore, quite obvious that the appellate officer had not accepted the finding of the inquiry officer and disciplinary authority in regard to the second charge of the acceptance of the illegal gratification. He has in terms stated "there is no conclusive evidence that he demanded illegal money from Shri Gulabchand. Shri Gulabchand in his original statement given at the time of vigilance check has merely stated that Shri Makwana took Rs. 20/-after the train started from Ahmedabad and receipt was not yet given by him. In case Rs. 20/- paid by Shri Gulabchand was illegal money, there was no question of receipt being given to Shri Gulabchand. I find that cross examination of Shri Gulabchand in the DAR inquiry has not been correctly accepted by the inquiry officer and he has relied on the original statement of Shri Gulabchand dated 5.4.89. This original statement, by itself, does not give conclusive proof of the fact that a bribe of Rs. 20/- was demanded and accepted by Shri Makwana, TTI."
5. It is apparent from the above discussion on the second charge by the appellate officer that the second charge did not stand proved and hence, the applicant could not have been held guilty of having accepted illegal gratification. That would only leave first charge namely as regards the shortage of cash of Rs. 40/-. Unfortunately the appellate officer has not discussed this point and has merely stated that the employee has not been able to explain the shortage of railway cash after the train's departure from ADI. He has however, noted the explanation that two 20-rupee notes might have slipped from his pocket which shows his negligent working. He has however thereafter not given any finding on the explanation given by the applicant and has left the matter at that. It is not considered by the appellate officer as to when the shortage of cash can be considered to be a misconduct. It is quite obvious from the facts of the case that when the surprise check was carried out within one hour from the start of the train, there was every possibility that while refunding the amounts to passengers or while going from one compartment to another, the TT might have iost Rs. 40/- in the way. This probability cannot be ruled out and no attempt is also made by disciplinary authority or appellate authority to rule out this probability. Further loss of Rs. 40/- cannot be considered to be a shortage of cash as the conductor is required to make good that loss when he deposits that amount at the end of the journey. If he fails to deposit the total amount at the end of the journey then he could be hauled up for misconduct as he had misappropriated the Government money. Merely because Rs. 40/- were found short at the time of surprise checking, it cannot be held that he had misappropriated the amount. Unfortunately the appellate officer has not considered this aspect and has held him guilty for the charge one. In fact the charge one also cannot be said to have been established against the applicant and therefore there was absolutely no reason for imposing any penalty on the applicant. The slip slod manner in which inquiry were conducted and appeal was heard and decided has clearly resulted in to miscarriage of justice. The appellate authority has also not applied his mind to the facts of the case and has not considered in its true perspective the aspect of the misconduct for shortage of Rs. 40/-. The order of punishment passed by the appellate authority on the applicant is also clearly a perverse order and requires to be interfered with by this Tribunal. We find that the charges levelled against the applicant were not established during the inquiry as there was no evidence against the applicant in this regard. This was clearly a case of no evidence and hence punishment imposed on the applicant cannot be allowed to stand. The punishment order is therefore clearly illegal and arbitrary and requires to be set aside. The O.A. deserves to be allowed.
6. We therefore allow the O.A. and set aside the order of punishment imposed by the appellate authority dated 16.12.90 as at Annexure A/2 as well as order of disciplinary authority and direct the respondents not to treat the applicant as reverted and to allow all consequential benefits as available to him as per rules from the date of the appellate authority's order dated 16.12.90. No order is passed as to costs.