Central Administrative Tribunal - Hyderabad
N D Dharam Sagar vs M/O Railways on 21 September, 2021
OA No.527/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH : AT HYDERABAD
OA/021/00527/2015
Date of CAV: 06.09.2021
Date of Pronouncement: 21.09.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr.B.V.Sudhakar, Admn. Member
N.D.Dharam Sagar S/o N.Devaraj,
Retd. SSE(D)/SCR/Nanded,
H.No.10-3-111, Teachers Colony,
East Maredpally, Secunderabad 500 071. ...Applicant
(By Advocate : Mr.K.Siva Reddy)
Vs.
1.Union of India, Represented by
Executive Director (IR),
Government of India, Ministry of Railways,
Railway Board, New Delhi.
2.Under Secretary,
Union Public Service Commission,
Dholpur House Shahjahan Road,
New Delhi 110069.
3.General Manager, South Central Railway,
Rail Nilayam, IIIrd Floor, Secunderabad.
4.Dy.Chief Engineer (Bridges),
South Central Railway, Sec'bad.
5.Sr.Divisional Engineer (Co.Ord.),
South Central Railway, Nanded Division,
Nanded.
6.J.C.Nagaraja Rao, Asst. Enquiry Officer,
South Central Railway, Hqrs, Offices,
IIIrd Floor, Rail Nilayam, Secunderabad.
7.V.A.Venkateswarlu, Asst. Enquiry Officer,
South Central Railway, Headquarters Offices,
IIIrd Floor, Rail Nilayam, Secunderabad.
8.FA & CAO, South Central Railway,
Rail Nilayam Extn, Secunderabad. ....Respondents
(By Advocate: Mr.N.Srinivasa Rao, SC for Rlys)
Page 1 of 20
OA No.527/2015
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed challenging the penalty of reduction in pension vide impugned order dated 28.4.2014 of the 1st respondent.
3. Brief facts of the case are that the applicant, while working in the respondents organization, was issued a charge memo dated 6.10.2009 under Rule 9 of RS (D&A) 1968 Rules, (for short "Disciplinary Rules") consequent to a decoy vigilance check conducted on 6.7.2009. Disciplinary inquiry was conducted by appointing an Inquiry Officer (for short "IO") on 10.12.2009 and later another I.O was appointed on 31.12.2010/3.1.2011, after rejecting the bias petition moved by the applicant against the earlier I.O on 6.9.2010. Inquiry was completed on 6.6.2011 and the applicant submitted his defense on 27.6.2011. Representation for expeditious finalization of the disciplinary case was submitted on 6.3.2014 and in response, on 28.4.2014 the penalty of reduction in pension was imposed.
Aggrieved, the OA is filed.
3. The contentions of the applicant are that the IO was appointed before the defense against the articles of charge was submitted. Appointment of I.O before submitting written reply to the charge memo is violative of clause (a) (i) of sub rule (9) & sub rule 23 of Rule 9 of the Disciplinary Rules. Rule 9 (b) of Disciplinary Rules can be invoked if written reply is not submitted. Sub-Rules (7), (8), have also been violated. Presenting officer was not appointed as per sub-rule 17 of Rule 9 of the of Disciplinary Rules. I.O has asked leading questions and gave suggestive answers to Page 2 of 20 OA No.527/2015 further the case of the disciplinary authority. Vigilance Wing has written to the Disciplinary Authority for appointing I.O and imposition of penalty. In a vigilance case, appointing I.O from the Vigilance Wing is incorrect. Applicant was not examined with reference to RUD-3, which is the statement given by the applicant during the vigilance check, whereas the Inspector who conducted the decoy check was examined with reference to the same document. Hence, RUD-3 cannot be relied upon. I.O report is not based on evidence and it is biased. There is delay of 2 ½ years in finalizing the disciplinary case though as per Railway Board Orders it is 20 days for Disciplinary authority and a little more time, in respect of the President. R- 2 has mistakenly considered the drawing of Trolley Refuge and Man Refuge with reference to Krishna Bridge No.398 as a secret document under Section 5 of the Officials Secrets Act and tendered the advice and also made the mistake to state that the charge memo was issued under Rule 9 of Railway Services (Pension) Rules 1993 instead of Rule 9 of RS (DA) Rules which indicates lack of application of mind. R-2 has not properly considered the documentary evidence before tendering the advice and hence, it is one sided. The penalty imposed is disproportionate. R-1, by advancing the reasons stated by the I.O, has imposed the penalty without considering the defense which was in favour of the applicant. RUD-3 was marked as document in Annexure III of the charge memo and thus, made the applicant a witness in a case against him, which is prohibited under law. The complaint was not discreetly verified before conducting the vigilance check as confirmed by PW-6 during the inquiry. The applicant has rendered Page 3 of 20 OA No.527/2015 30 years of service without any blemish and the incident that occurred on 6.7.2009 was an isolated one.
4. Respondents in their reply statement state that decoy check with independent witnesses was conducted on 6.7.2009, in regard to the allegation that the applicant was demanding and collecting bribe for issue of relevant drawings to the contractors/staff in respect of bridges. When the decoy check was organized by the vigilance, the applicant collected pre- recorded currency notes of Rs.1000 from the decoy and gave the drawing No.CAO/C/ST/141-97 of Krishna Bridge. On being informed of the transaction by the decoy and the independent witnesses, vigilance team checked the applicant and finding the pre-recorded currency notes with the applicant, recorded his statement. The applicant admitted to have accepted the amount in the confronting inquiry made and hence charge memo dated 6.10.2009 was issued. As written reply was not submitted, R-6 was appointed as IO on 10.12.2009 and on his promotion, another I.O i.e. R-7 was appointed, who conducted the inquiry and submitted the report on 29.7.2011 holding the Article of charge as proved. Applicant submitted his defense against the Inquiry report on 27.9.2011 and since he retired on 31.10.2010, Hon'ble President of India has considered the case on 28.4.2014 and imposed the penalty of reduction of pension to the minimum on permanent basis. As the applicant was caught red handed accepting the bribe, appropriate penalty was imposed invoking Rule 6 of Disciplinary Rules. I.O was appointed as per Rule 9 (2) of Disciplinary Rules and Railway Board order dated 29.3.1985. P.O is to be appointed only in complicated cases as per Railway Board order dated 20/22.1.1979. Bias Page 4 of 20 OA No.527/2015 against R-6 was rejected by the competent authority. I.O has not put any leading questions and that the inquiry was conducted in a fair manner after granting reasonable opportunities. Strict rules of evidence do not apply to disciplinary inquiry. I.O is expected to examine the defense witness in the absence of P.O. Appointment of I.O is the discretion of the disciplinary authority. Applicant has admitted that RUD-3 was given by him voluntarily without any force or pressure from anybody and duly signed by 3 independent witnesses. Having declared so, he cannot protest that he has not been examined. Besides, applicant did not want to be a witness in his own case. Marking RUD-3, as Exhibit P-12, as one of the documents along with the charge sheet is in order. Based on source information, vigilance can make test check as per Para 307 of Indian Railways Vigilance Manual 2006. As the applicant has retired, the case had to be submitted to the President, which in turn was forwarded to UPSC where due to pressure of work, advice was tendered on 7.2.2014 after taking into consideration the acceptance of bribe along with other aspects and thereafter, penalty was imposed on 28.4.2014 by the competent authority. The delay benefitted the applicant during the intervening period since he got full provisional pension. The drawing was prepared by the applicant. Typographical error crept in quoting the Rule and that the President has taken a lenient view in imposing the penalty.
Applicant filed a rejoinder pointing out that there is no official authorization given to R-5 by the others to file the reply, as per Rule 12 of CAT (Procedure) Rules, 1987. Reply has been filed after 10 months though only one month is given as per sub-rule (1) of Rule 12 of the said Rules. Page 5 of 20 OA No.527/2015 Final penalty order dated is 28.4.2014 and not 28.4.2015. Rule 6 of the Disciplinary Rules is not relevant since he had retired to consider imposing penalties under Clause VIII and IX. Applicant reiterated that inquiry was not conducted properly by I.O as seen from the annexures 2, 10 & 21 and that he was implicated in a false case. Railway Board orders have to be in consonance with statutory rules. Even as per Railway Board letter dated 29.3.1985, exparte inquiry has to be conducted if reply is not given to the charge memo, which was not done. If admission in the preliminary inquiry is taken as final admission of offense, then there is no need to conduct inquiry under Rule 9. The bias petition moved against earlier I.O was rejected without issue of a speaking order. By the time I.O was changed, much damage was caused to the cause of the applicant. Principles of Natural justice were not followed while conducting the inquiry. It is not correct to state that the vigilance wing does not work under Sr. DGM and that the I.O appointed from this Wing would be biased. RUD-3 was not given under free will. In RUD-12 a similar statement was made stating that it was given under free will. Applicant sought re-appreciation of evidence by stating evidence of certain witnesses. Provision 307 of vigilance manual quoted by respondents in respect of verification of a complaint has no force of law. I.O can examine defense witness, but in an impartial manner. Respondents' claim that the applicant has gained by getting provisional pension is ridiculous. The drawing referred to was not prepared by the applicant. Most of the averments made in the OA were not properly or fully answered. We have gone through the other contentions and found them to be more or less same, as in the OA.
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Respondents filed an additional reply wherein it was clarified that as per Railway Board letter dated 4.6.1992, the Sr. Divisional Engineer is authorized to act on behalf of GOI in respect of judicial proceedings. When no reply was received within the stipulated 10 days' time, I.O was appointed. The date of final order shown as 28.4.2015 instead as 28.4.2014 in the reply statement, is a typographical error. The allegation that the I.O was biased was not raised during the course of the inquiry. Tribunal cannot re-appreciate the evidence. While signing the joint proceedings, applicant did not protest. The rejection of bias against R-6 was not challenged by the applicant. IO is independent of the vigilance organization. Applicant has not objected to marking RUD -3 as an exhibit P-12 during the inquiry. The delay in disposal of the disciplinary does not absolve the applicant of the charge and it did not in any way cause any damage to his cause.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is about respondents imposing the penalty of reduction of monthly pension to the minimum on 28.4.2014 after issue of charge memo dated 6.10.2009. The articles of charge is reproduced hereunder:
"Article I That the said Sri N.D. Dharam Sagar, SSE/Drg. PCE/OL/O/SC, while working as such had committed a serious misconduct on 06.07.2009 in that he had asked and collected Rs.1000/- bribe amount from Sri S. Vijaya Raghavan, Sr. Tech, DLS/GTL, who had acted as a Decoy and approached him posing as an agent of a Contractor, for supplying of a Standard Bridge drawing for Trolley refuge as detailed in the statement of imputations.
Thus, Sri N.D. Dharam Sagar, SSE/Drg, PCE/OL/O/SC had failed to maintain absolute integrity and acted in a manner unbecoming of a Railway Servant violating Rule No.3(1)(i) & (iii) and Rule No. 26 of Railway Services (Conduct) Rules, 1966."Page 7 of 20 OA No.527/2015
From the facts of the case, it is seen that the vigilance wing has conducted a decoy check on 6.7.2009 with independent witnesses wherein the applicant was found accepting pre-recorded notes of value of Rs.1000, as bribe for handing over the drawing of the Trolley refuge of Krishna Bridge to the decoy. Applicant avers that the document is not a secret document under Section 5 of the Official Secrets Act, as is made out in the advic tendered by UPSC. In this regard, we are of the view that the question of relevance is as to why the applicant accepted Rs.1000 from the decoy to pass on the document and not whether it is a secret document or otherwise. It is well settled that a Govt. Servant accepting illegal gratification is construed as grave misconduct.
II. Respondents have issued the charge memo and when the applicant did not submit the written defense, I.O was appointed, which the applicant claims is against Disciplinary Rules. The contention of the applicant is not maintainable since Rule 9 (7) and Rule 9 (9)(b) of the Disciplinary Rules, extracted hereunder, provided for appointment of I.O, if written defense is not received within the time of 10 days or further such time granted by the disciplinary authority.
9(7) The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
9(9)(b) If no written statement of defence is submitted by the Railway servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose and also inform the Railway servant of such appointment.
Page 8 of 20 OA No.527/2015 After receipt of charge sheet dated 6.10.2009, the applicant did not submit his written reply and therefore, I.O was appointed on 10.12.2009, which is more than the time period prescribed in the rule cited supra. If the applicant desired more time to submit the written reply, it was up to him to seek additional time from the disciplinary authority beyond the time stipulated under the Rules. Respondents cannot wait endlessly with no communication coming forward from the applicant. There is no document to establish that the applicant sought more time and therefore, the contention of the applicant that appointment of I.O without submission of written reply is not maintainable.
III. Further, applicant claims that he has rendered 30 years and the present one is an isolated incident. Though isolated, yet the incident is of grave misconduct and hence, cannot be glossed over. The Ld. Counsel for the respondents has submitted that the present instance has to come to light due to decoy check and it is not known as to how many times applicant would have taken bribes for passing the drawings. Based on reliable source information the trap was laid and the applicant was caught red handed.
In regard to the appointment of P.O, Rule 9 (9)(c) of the RS (DA) rules stimulates as under:
Where the disciplinary authority itself inquires into an article of charge or appoints a Board of Inquiry or any other inquiring authority for holding an inquiry into such charge, it may, by an order in writing, appoint a railway or any other Government servant to be known as 'Presenting Officer' to present on its behalf the case in support of the articles of charge.
As per the above rule, the disciplinary authority may appoint the P.O as per his discretion. Hence, it is not mandatory to appoint the PO as per the rule Page 9 of 20 OA No.527/2015 cited. Further, Hon'ble Apex Court in Union Of India vs Ram Lakhan Sharma on 2 July, 2018 in civil appeal no. 2608 of 2012 has held that there is no legal compulsion to appoint a Presenting Officer and that just because a Presenting officer has not been appointed, inquiry cannot be set aside, as under:
28. Justice M. Rama Jois of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka
366. In the above case, the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were that inquiry is vitiated since Presenting Officer was not appointed and further Inquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Inquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. Following was held in paragraphs 8 and 9:
"8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable. There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry See: Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar 575). In the absence of the PO, the Inquiry officer has to examine both the prosecution and the defense witnesses to arrive at the truth. The applicant taking objection that the second IO i.e.R-7 has examined the defense witnesses rigorously and put leading questions to the Prosecution witnesses with suggestive answers does not stand to reason, since the applicant has not narrated the leading questions which the I.O has asked and why they were leading. Further, it is not explained by the applicant as to why he has not moved a bias petition against R-7 as was done in the case of R-6, the first I.O, if he found R-7 was not conducting the inquiry in a fair manner by asking leading questions as alleged. Raising the said objection at the time of filing the OA is too late in the day. Therefore, it invariably gives room, that such a contention is an afterthought.
Page 10 of 20 OA No.527/2015 IV. Going a little further, the applicant has objected that RUD-3, the statement given by him at the time of the vigilance check, should not be marked as an exhibit. This again is incorrect, since Rule 9(6) of the RS (DA) rules, stipulates inclusion, as under:
(6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up -
(i) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain -
(a) a statement of all relevant facts including any admission or confession made by the Railway servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
The provision under sub-rule 6 (ii) (a) of the Rule 9 ordains citing of the admission/confession statement and hence including RUD-3 as exhibit P-12 is well within norms. It is also not out of place that the applicant has not objected to marking RUD-3 as exhibit at the time when inquiry was conducted.
V. In addition, the contention of the applicant that the I.O appointed is under the administrative control of the Sr. DGM vigilance and therefore, implicitly, he is under obligation to be inclined favorably towards the respondents. Respondents have explained that some of the Railway personnel are trained in conducting the inquiry and a list of such officers is sent to the disciplinary authority for selecting one among the list of I.Os available. Hence, it is ultimately the discretion of the Disciplinary Authority to appoint the I.O and not that of the Sr. DGM. We agree with the submission of the respondents, since it is ultimately the disciplinary authority, who makes the choice among the many names forwarded. The Page 11 of 20 OA No.527/2015 applicant has participated in the inquiry and after it is over, agitating on this issue is not a fair proposition.
VI. Under the disciplinary inquiry procedure, applicant can get himself examined as a witness and clarify issues which, he is of the view, would help his cause. The respondents contended that the applicant did not get himself examined as a witness. Explicit reasons are not forthcoming from the applicant refuting the respondents' contention, for not getting himself examined when the opportunity came his way during the inquiry. Applicant not availing the opportunities to defend himself is his mistake and not that of the respondents. Applicant cannot rub off his own mistake to the respondents as observed by Hon'ble Apex Court in A.K. Lakshmipathy v. Rai Saheb Pannalal H. Lahoti Charitable Trust,(2010) 1 SCC 287 as under:
"they cannot be allowed to take advantage of their own mistake and conveniently pass on the blame to the respondents."
VII. The applicant also contends that Inquiry report was not based on evidence. Applicant has raised some issues which relate to re-assessment of the evidence. Considering evidence on record is the prerogative of the disciplinary authority. Technical rules of evidence do not apply to disciplinary proceedings. Tribunal is not empowered to re-appreciate evidence. Flaws in decision making process can be looked into in judicial review and examine whether the decision was based on some evidence or no evidence, but not sit on appeal over the administrative decision per se. We state what we did by relying on the judgment of the Hon'ble Madras Page 12 of 20 OA No.527/2015 High Court in S. Seetharaman v/s The Government of Tamil Nadu, in W.P.No. 16191 of 2019, decided On, 03 January 2020, relying on the verdict of the Hon'ble Apex Court, as under:
a. In this regard, it is worthwhile to refer the following decision of the Supreme Court reported in AIR 1997 SC 2286 (High Court of Judicature at Bombay through its Registrar Vs. Udaysingh and others) regarding the scope of the Judicial Review:
"10. .. .. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal when the conclusion reached by the authority is based on evidence .. .... The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. ..."
In the instant case, the I.O held the inquiry by giving reasonable opportunities to the applicant to defend himself and thereafter, concluded that the charge was proved. We find no flaw in the decision making process. Hence, in view of the legal principle cited supra, the Tribunal cannot enter into the arena of re-appreciation of evidence, as sought by the applicant.
VIII. Coming to the aspect of delay in finalizing the disciplinary case, the respondents have initiated the disciplinary inquiry after the decoy check, by issuing the charge memo and appointing the first I.O ie R-6 on 10.12.2009 and thereafter on his promotion the second I.O ie R-7 was appointed on 31.12.2010/3.1.2011. The bias petition moved by the applicant against the R-6 was rejected and the applicant's contention that the rejection order was not a speaking order holds no ground at this stage. If Page 13 of 20 OA No.527/2015 the applicant was aggrieved, he could have preferred an appeal against the rejection by challenging at that interval of time. Thereafter, applicant participated in the inquiry held by R-7 and the Inquiry report was submitted on 29.7.2011. As the applicant retired on 31.10.2010, it was necessary to forward the case to the President and the advice of UPSC was sought, which took some time and the penalty was imposed on 28.4.2014 by the President. In the meanwhile, applicant was paid provisional pension and therefore, there was no prejudice caused to the applicant. In fact, the delay has worked out adversely against the respondents because they had to pay full provisional pension, which would have not been paid had the decision been expedited. Moreover, the delay in disposal of the disciplinary case in the instant OA can be no ground to obliterate the charge of grave misconduct against the applicant.
IX. One another contention of the applicant is that, the respondents have conducted the decoy check without discreetly verifying the complaint made. We do not agree with this contention since it is the duty of the vigilance wing to conduct preventive vigilance checks even if there are no complaints so that the system functions properly. This will drive fear into those who have a tendency to contravene rules for personal gain. In the instant case, respondents had source information that the applicant was collecting bribes for parting with relevant drawings and it turned out to be true with the applicant caught red-handed with the pre-recorded currency notes of Rs.1000. The inquiry officer has held the charge as proved based on evidence. Para 307 of the Indian Railway Vigilance Manual is Page 14 of 20 OA No.527/2015 supportive of the action of the respondents in conducting the decoy check. Therefore, the contention that preliminary verification of the complaint has to be done before decoy check, does not hold ground.
X. Besides in corruption cases the technique of the white collar offender is so unique that it will be difficult to prove the charge of corruption unless traps are laid down and statutory presumptions are considered. The corrupt officials while taking money are like fish moving under water which cannot be detected whether it is drinking water or not. We rely on the observations of the Hon'ble Supreme Court in Som Prakash Vs State of Delhi, 1974 AIR 989 :: (1974(4) SCC 84), as under, in support of aforesaid remarks:
"Of course, our social milleu is so vitiated by a superstitious belief that any official can be activised by illegal gratification, so confidential is the technique of give and take in which the white collar offender is adept and so tough is the forensic problems of proof beyond reasonable doubt by good testimony in this area, that the only hope of tracking down the tricky officers is by laying traps and creating statutory presumptions. Even Kautilya has stated, "just as fish moving under water cannot be possibly found out either as drinking or not drinking water, so government servants cannot be found out while taking money."
In view of the aforesaid principle, laying of trap by the respondents is a legally necessary step and hence, the contention of the applicant that respondents need to have verified the details before conducting the vigilance check is not sustainable.
XI. Of utmost relevance is justice and not just harp on procedures excessively at the cost of miscarriage of justice. We observe that the applicant has mostly relied on technical issues rather on the substantive issue of the charge of accepting the bribe of Rs.1000. The focus has to be on rendering substantive justice and not technical justice as observed by the Page 15 of 20 OA No.527/2015 Hon'ble Supreme Court in State Rep By Inspector of Police, Central Bureau of Investigation vs M.Subrahmanyam on 7 May, 2019 in Criminal Appeal No(s). 853 of 2019 (arising out of SLP (Crl.) No(s). 2133 of 2019), as under :
8. In Bihar State Electricity Board vs. Bhowra Kankanee Collieries Ltd., 1984 Supp SCC 597, the Court opined:
"6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction..... The question is whether the degree of negligence is so high as to bang the door of court to a suitor seeking justice. In other words, should an investigation of facts for rendering justice be peremptorily thwarted by some procedural lacuna?"
9. The failure to bring the authorization on record, as observed, was more a matter of procedure, which is but a handmaid of justice. Substantive justice must always prevail over procedural or technical justice. To hold that failure to explain delay in a procedural matter would operate as res judicata will be a travesty of justice considering that the present is a matter relating to corruption in public life by holder of a public post. The rights of an accused are undoubtedly important, but so is the rule of law and societal interest in ensuring that an alleged offender be subjected to the laws of the land in the larger public interest. To put the rights of an accused at a higher pedestal and to make the rule of law and societal interest in prevention of crime, subservient to the same cannot be considered as dispensation of justice. A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law." The societal interest in preventing the crime of corruption in the instant case cannot be made subservient to the rights of the applicant as it would be detrimental to the dispensation of justice. The procedural lapses pointed out by the applicant cannot be placed at par with the substantive violation of law by indulging in corrupt activity of the nature in question. The degree of procedural lapses are not so high as to change the outcome of the disciplinary case. The substantive charge in the instant case is about the allegation of demanding and accepting bribe by the applicant of a sum of Rs.1000. Inquiry was held and the charge was held proved after giving Page 16 of 20 OA No.527/2015 reasonable opportunities to the applicant as provided under the Rules. Therefore, the technical issues raised by the applicant would not be of any assistance to the applicant to wriggle out of the charge laid against the applicant.
XII. Indeed, the charge is about illegal gratification, which is a grave misconduct. In the instant case, the tainted money of pre-recorded currency notes of value Rs.1000 was recovered from the applicant during the decoy proceedings. Demand and acceptance of bribe has been established with the I.O holding the charge as proved. Minor discrepancies in the procedures in corruption cases, like typographical errors in the documents filed, delay in disposal of disciplinary case for valid reasons, disposal of bias petition etc. as contended by the applicant, would not justify granting relief sought by the applicant. We are supported by the observations of the Hon'ble Supreme Court of India in Vinod Kumar Garg vs State (Govt. of National Capital Territory of Delhi) on 27 November, 2019 in Criminal Appeal No. 1781 of 2009 [AIR 2020 SC 1797] as under, in stating what we did as at above, Public accountability, vigilance and prevention of corruption - Demand and acceptance of bribed money - proved beyond doubt with recovery of tainted bribe money from trouser pocket of appellant accused- depositions regarding, of PWs 2,3,and 5 (complainant, panch witness and investigation officer respectively), identical and not at variance- Money recovered from appellant was currency notes that were treated and noted in pre- raid proceedings - Minor discrepancy and inability of complainant and panch witness to remember exact details - would not justify acquittal of accused - Contradictions in testimonies of complainant and panch witness regarding total amount demanded or whether complainant earlier paid some amount - immaterial and inconsequential, as demand and acceptance of bribe by accused, indisputably established. XIII. The applicants claiming that the penalty is disproportionate does not persuade us since corruption cannot be condoned even where the amount Page 17 of 20 OA No.527/2015 involved is meager as observed by the Hon'ble Supreme Court in Uttarakhand Transport Corporation (Earlier known as UPSRTC) & Ors vs Sukhveer Singh on 10 November, 2017 in CIVIL APPEAL No. 18448 of 2017 (Arising out of Special Leave Petition (Civil ) No.4012 of 2017) as under:
"It is no more res integra that acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre. (See U.P.SRTC v. Suresh Chand Sharma (2010) 6 SCC 555 at Para 21-
23)"
XIV. Lastly, a public servant in a democracy is a guardian of morals. Improper use of a public position offered through Public employment, for personal advantage has to be considered as a serious breach of trust. In a civilized society, the paramount consideration is the welfare of the society and corruption is the biggest hindrance in that process. If the corrupt public servant is not punished, then it will have a negative impact on the honest public servants, who will be discouraged and demoralized. The applicant indulged in an act of corruption that was established in a due disciplinary inquiry and hence, any intervention by the Tribunal would will be a disincentive to the honest employees. We have made the above remarks by relying on the judgment of the Hon'ble Supreme Court of India in Dr. Ram Lakhan Singh vs State Govt. of UP on 17 November, 2015 in Writ Petition (Civil) No.933 of 2014 as under:
10. A public servant in a democracy should be a guardian of morals. He is entrusted with higher responsibilities of a public office and they contribute their best for the just and humane society. We feel that for effective functioning of a democracy, the role of Executive is very important. Civil servants and public officials are expected to maintain and strengthen the public's trust and confidence by demonstrating the high standards of professional competence, efficiency and effectiveness by upholding the Constitution and rule of law, keeping in mind the advancement of public good at all times. Public employment being a Page 18 of 20 OA No.527/2015 public trust, the improper use of the public position for personal advantage is considered as a serious breach of trust. With the changing times, the role of Executive and expectation of the citizens in governance also underwent tremendous change.
11. Dishonesty and corruption are biggest challenges for any developing country. If the public servant indulges in corruption, the citizens who are vigilant in all aspects take note of this seriously and develop a sense of distress towards the Government and its mechanism, on a whole it sends a very alarming message to the society at large and to the common man in particular. In any civilized society, the paramount consideration is the welfare of the society and corruption is the biggest hindrance in that process. If the corrupt public servant is not punished, then it will have a negative impact on the honest public servants who will be discouraged and demoralized. Some upright officers resist corruption but they cannot alone change the system which victimizes them through frequent punitive transfers, threat to their families and fabricating, foisting false cases. XV. Other contentions raised by the applicant about the authority to file the reply affidavit by R-5, mistake in noting the relevant rule by UPSC in its advise and citing incorrect date of imposing the penalty in reply statement have been properly answered by quoting that the Railway Board order dated 4.6.1992 permits R-5, the Sr. Divisional Engineer, to file replies in judicial proceedings and that there were typographical errors in not recording the RS(DA) Rules by UPSC and the date of penalty in the reply statement as 28.4.2015 instead of 28.4.2014. One cannot seriously find fault with these submissions of the respondents. Particularly, the typographical errors are minor in nature and they would not change the contours of the case in favour of the applicant. The Tribunal in order to ensure that the Principles of Natural Justice are followed, does give time to the respondents to file the reply beyond the prescribed period, under the CAT (Procedure) Rules, since it would not be fair to decide without hearing the other side. In fact, the Tribunal had given permission to the respondents to file an additional reply too. We did go through the other contentions made by both parties and having found them to be irrelevant, no comments are offered. Page 19 of 20 OA No.527/2015 XVI. We have also carefully gone through the Written Submissions filed by the applicant. He has taken the support of the judgments of the Hom'ble Supreme Court in Moni Shankar V. Union of India, 2008 (3) SCC 484 and Union of India v. Prakash Kumar Tandon, (2009) 1 SCC (L&S) 394, to assert that the IO was not fair in conducting the inquiry by examining, cross-examining and re-examining both the parties. When no Presenting Officer is appointed, the IO has to necessarily perform the function of examining the witnesses, which the IO has done in the instant case without bias, which is evident by the non-filing of any bias application against R-7 by the applicant. As discussed above, applicant was given ample opportunities by the IO to defend his case. In fact, the applicant did not submit himself as a witness to be examined for bringing the aspects relevant and supportive of his case. Therefore, the above judgment cited by the applicant is of no assistance to him. He also cited judgments of this Tribunal in OA 938/2009 & 1434/2012. However, on perusal of the same, it is seen that the facts and circumstances in the said cases and the instant case are different. Hence, the said judgments are also of no help to him. XVII. In view of the aforesaid circumstances, the OA being devoid of merit, merits dismissal and hence is dismissed with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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