Central Administrative Tribunal - Delhi
Sh. V.C. Saxena vs Union Of India Through on 22 April, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1279/2012
Reserved on : 21.03.2014.
Pronounced on :22.04.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. V.C. Saxena,
S/o late Sh. K.N. Saxena,
Working as Head Parcel Clerk,
Northern Railway Station, Delhi
R/o A-29, IInd Floor,
New Panchwati,
Ghaziabad(UP). . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Chief Commercial Manager,
Northern Railway, Baroda House,
New Delhi.
3. The Sr. Divl. Commercial Manager,
Northern Railway, Muradabad(UP).
4. Divl. Commercial Manager,
Northern Railway,
Muradabad(UP). .. Respondents
(through Sh. Rajinder Khatter, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) Facts of the case are that the applicant joined Railways on 26.08.1978. On 10.05.2000 while he was working as Head Clerk in Muradabad Division he was served with a major penalty charge sheet. The enquiry was conducted and the Enquiry Officer (EO) submitted his report on 02.01.2001. By his order dated 08.02.2001 the Disciplinary Authority (DA) imposed a penalty of reduction to a lower grade at lowest pay of the grade for three years without cumulative effect. The applicant preferred an appeal against the same. However, the Appellate Authority (AA) not only rejected the appeal but also enhanced the penalty from three to five years by his order dated 19.03.2001. The applicant submitted a Revision Petition against the same but the Revisional Authority further enhanced the penalty to the lowest pay in lowest grade of Rs.3200-4900 for a period of five years with cumulative effect. The applicant filed OA-1515/2001 before the Allahabad Bench of this Tribunal. This was decided on 15.04.2008 with liberty given to the applicant to submit his appeal to the AA against the order dated 04.07.2001. Accordingly, the applicant submitted his appeal to CCM who vide his order dated 29.08.2008 remitted the case back to the AA. On 10.06.2009 the AA further remitted back to Sr. DCM to issue show cause notice to the applicant before enhancement of the punishment. On 23.09.2009 the AA again imposed a penalty of reduction to the lowest grade for five years. The applicant submitted again an appeal against this order which was rejected on 14.07.2010. On 22.09.2011 the applicant filed OA-3338/2010 before this Tribunal. This was disposed of on 23.09.2011 with liberty given to the applicant to file a Revision Petition. Accordingly, the Revision Petition was filed by the applicant but the same was rejected on 16.12.2011. Hence, the applicant has now filed this O.A. before us seeking the following relief:-
(i) That the Honble may graciously be pleased to pass an order of quashing the impugned order dated 8.2.2001 (Annex.A/1), Appellate order dated 26.11.09, order dated 14.7.2010, show cause notice dated 23.9.2009, revisional authority order dated 16.12.11 and E.O. report and the charge sheet dt. 10.5.2000, declaring to the effect that the same are illegal, arbitrary and against the principle of natural justice and consequently the applicant is entitled for all the consequential benefits including the arrears of difference of pay and allowances.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant with the costs of litigation.
2. The applicant has challenged the punishment imposed on him on the following grounds:-
(i) The charge against the applicant is vague and no misconduct is made out. Hence, the charge sheet itself is not maintainable in the eyes of law as laid down by the Honble Supreme Court in the case of Transport Commissioner Madras Vs. Thiru Radhi Krishana Moorty, JT 1994(7) SC 744.
(ii) Copies of relied upon documents and statements of the listed witnesses were not supplied to him along with the charge sheet. Thus, the enquiry stands vitiated as laid own in the following cases:-
Kashinath Dixit Vs. UOI, ATR 1986(2) SC 186.
Committee of Management, Kishan Degree College Vs. SS Pandey, JT 1995(1) SC 759.
Triloki Nath Vs. UOI, 1967 SLR 759.
State of UP Vs. Shaturganh Lal, JT 1986 SC 55.
State of Punjab Vs. Bhagat Ram, 1975(2) SCR 370.
(iii) EO himself cross examined the respondents at length thereby acting as a Judge as well as Prosecutor. EO was biased and did not consider the points raised by the applicant in his defence.
(iv) EO did not record the statement of witnesses and relied only on the statements which were recorded by the vigilance team at the time of the trap.
(v) The DA failed to consider the detailed representation made by the applicant against the enquiry report.
(vi) The applicant was not granted personal hearing at any stage.
(vii) There has been gross violation of paras 704 and 705 of the Indian Railway Vigilance Manual (IRVM) inasmuch as two gazetted officers were not present as witnesses during the trap. In fact, no two independent witnesses were present to witness the trap. All the four prosecution witnesses were persons involved in laying the trap itself.
(viii) Railway Board has issued a Circular that excess or shortage of amoung upto Rs. 100/- should not be a subject matter of disciplinary proceedings. In the instant case, only Rs.18/- were found to be in excess. Hence, the charge itself is against the Railway Board Circular.
(ix) The EO appointed was from Vigilance Department which is not permitted in the eyes of law.
(x) All the orders are non-speaking and unreasonable.
3. In their reply the respondents have disputed the averments of the applicants. Seven documents were relied upon in the enquiry and not nine as alleged by the applicant. All these documents were supplied to the applicant on 12.05.2000. The charges have been found to be proved on the basis of documents available on record and after considering the statements of prosecution witnesses during the enquiry and cross examination. The respondents have further submitted that although the EO might have worked with the Vigilance Department, but at the time of enquiry proceedings he was not working there. As regards violation of Paras 704 and 705 of the IRVM, the respondents have stated that it is not mandatory to follow these instructions. The respondents have then gone on to state that the scope of judicial review is limited and that the Courts cannot act as an AA. The Courts also cannot go into the quantum of punishment or reappraise the evidence. In this regard, they have relied on various judicial pronouncements such as UOI & Ors. Vs. Upender Singh, 1994(2) SCC 77, H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal & Ors. Vs. M/s Gopi Nath and Ors., 1992 Supp(2) SCC 312, UOI & Ors. Vs. S.L. Abbas, AIR 1993 SC 444, Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519, UOI Vs. Naga Maleswara Rao, AIR 1998 SC 111, Calcutta Port Shramik Union of India Vs. Calcutta River Transport Association and Ors., 1988 (Supp.) SC 768, Indian Overseas Bank Vs. IOBM Canteen Workers Union and Anr., AIR 2000 SC 1580, Sh. Parma Nand Vs. State of Haryana & Ors., 1989(2) SCC 177 and Union Territory of Dadra and Nagar Haveli Vs. Ghlabhia M. Lad, 2010 (3) AISLJ SC 28.
3.1 Regarding paras 7.4 and 7.5 of the IRVM, the respondents have stated that in the case of Chief Commercial Manager, South Central Railway, Secunderabad & Ors. Vs. G. Ratnam & Ors., 2007)(8) SCC 212 and Moni Shanker Vs. UOI & Anr., (2008) 1 AJW 479 it has been held that these provisions are not mandatory. Further, relying the judgment in the case of State Bank of Bikaner & Jaipur Vs. Prabhu Dayal Grover, (1996) 1 SLJ SC 145 they have stated that it has been held that the AA was not required to give detailed reasons when he was agreeing with the findings of the EO as accepted by the DA.
4. We have heard learned counsel of both sides and have perused the material on record.
4.1 We find that the charge sheet issued to the applicant consisted of the following charges:-
Shri V.C. Saxena, HBC/SPN while working as booking office/SPN, has committed grave misconduct in as much as that:
1. He demanded and accepted Rs.725/- against Rs.625/- for issuing of two adults and one chilled II M/Exp tickets from SPN to BCT. Thus he charged Rs.100/- excess from the decoy passenger for his personal gain with ulterior motives.
2. Shri V.C. Saxena produced his Govt. cash Rs.58040/- against Rs.58022/- as per accountal of DTCB summery i.e. Rs.18/- were detected excess in his Govt. cash. It indicates that he was money by way of excess charging from passengers.
3. Shri V.C. Saxena charged Rs.100/- excess from the decoy passenger which should have been excess but Rs.18/- were found excess in his Govt. cash. It indicates that he has misplaced the Govt. cash some where with his malafide intention to cover-up excess charging.
By the above acts of omission and commission Shri V.C. Saxena, HBC/SPN failed to maintain absolute integrity. Railway Servant and thereby contravened the provision of Rule No. 3-1(i), (ii) and (iii) of Railway Services Conduct Rules, 1996. According to the statement of imputation of misconduct source information was received that Booking Clerks of SPN Station indulged in malpractices and were over charging the passengers. To verify the veracity of the information a decoy check was conducted in the booking office/SPN on 08.12.1999. This was done by a team consisting of S/Sh. A.K. Saxena, SVI, Y.K. Tyagi, CVI and Sh. V.P. Pandey Tech I DBSI. It was found that the applicant who was on duty at that time demanded and accepted Rs.725/- against actual fare of Rs.625/-. Thus, he charged Rs.100/- extra from the decoy passenger. Further, total cash was found from Sh. Saxena was Rs.58040/- against Rs. 58022/- as per DTCB. Thus, Rs.18/- were found to be excess in his cash. On the basis of this trap, the disciplinary proceedings were initiated against the applicant.
4.2 During arguments, learned counsel for the applicant laid emphasis on the following grounds, each of which have been discussed, as hereunder:-
(i) Learned counsel for the applicant stated that there is Railway Board Circular which lays down that disciplinary proceedings are not to be initiated if the cash found on the railway employee was short or in excess of an amount below Rs.100/-. In this regard, he has produced a copy of the Northern Railway Circular No. 19 MC/O/Policy/Pt.III dated 30.03.2006.
We have seen this circular and we find that by this circular the limit in excess of which proceedings against staff could be initiated if the cash found on them is in excess/short was enhanced to Rs.100/-. The Circular also says that until and unless there are compelling reasons to believe that there is an irregularity committed by working staff, shortage/excess of amount smaller than this should not be taken cognizance of. In the instant case, we find that the charge No.2 against the applicant is that Rs.18/- were found to be in excess with him. This small excess was detected in total amount of Rs.58040/- found to be in possession of the applicant. In our opinion, this excess amount was ignorable considering the Circular quoted above and the fact that no other compelling circumstances have been show to exist by the respondents. Hence, we find merit in the arguments of the applicants counsel.
4.3 Learned counsel for the applicant further argued that the respondents have not followed the procedure laid down in Paras-704 and 705 of the IRVM inasmuch as two independent witnesses were not present at the time of laying the trap. He stated that Para-705 required the respondents to take along two gazetted officers for laying the trap. However, in the instant case, leave aside extra officers even two other independent witnesses were not present. Also no reason has been given for not doing so. On the other hand, the respondents stated that it was not mandatory to follow these instructions. In this regard, learned counsel for the applicant relied on the judgment of Honble Supreme Court in the case of Mathura Prasad Vs. UOI & Ors., AIR 2007 SC 381 to say that when an employee by reason of alleged misconduct is sought to be deprived of his livelihood the procedures laid down under the Rules were required to be strictly followed. Further, he relied on the judgment of this Tribunal in OA-155/2003 (K.L. Gandhi Vs. UOI & Ors.) dated 23.07.2009 in which the O.A. was allowed for not complying with the provisions of the Vigilance Manual.
We have seen the aforesaid judgment and we find that this judgment has been delivered after taking note of the observations of Apex Court in the case of Moni Shanker (supra) in which the Apex Court has observed that while IRVM is a set of executive instructions and not binding, yet its violation could be taken into consideration along with other factors to determine objectively whether the charges were proved or not. The Apex Court has also observed that Para-704 and 705 have been provided as safeguards to protect innocent employees from being framed in traps. The relevant part of Para-704 is as follows:-
xxxxx 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.
Xxxxx Relevant part of Para-705 is as follows:-
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 Railway to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilised.. In our opinion, in the instant case the proceedings against the applicant originated due to a trap laid by the vigilance team. The team itself consisted almost entirely of the vigilance department of these officials. Even the prosecution witnesses in the enquiry were also the same team members. There is also an allegation (which we discuss in the later part of the judgment) that the EO was also from the Vigilance Department. Under these circumstances, we feel that it was absolutely essential that two independent witnesses, if not, two gazetted officers were taken along for laying the trap as laid down in Para-704 and 705 of IRVM. Since this was not done and instructions of this Para were violated, we feel that the applicant has not got a fair treatment at the hands of the respondents. The enquiry proceeding does get vitiated because of this lapse. We find that Honble Delhi High Court in the case of UOI & Ors. Vs. Sh. M.K. Meena [(WP(C) No. 18605/2004] in their judgment delivered on 03.03.2011 have also taken a similar view.
4.4 Learned counsel for the applicant also stated that the EO appointed by the respondents was himself from the Vigilance Department. Relying on the judgment of this Tribunal in OA-4204/2010 (Kulwinder Singh Vs. UOI & Ors.) dated 11.05.2011, learned counsel argued that proceedings in the instant case also deserve to be quashed on this ground. On the other hand, the respondents had argued the EO may have worked in the Vigilance Department before but was not working in the department at the time of enquiry.
In this regard, we have seen the enquiry report submitted by the EO. In the first few lines of the Preamble it is stated that I undersigned, Sunder Lal, CEI Headquarter NDLS has been appointed as enquiry authority. Learned counsel for the applicant argued that CEI means Chief Enquiry Inspector working at Northern Railway Headquarter, New Delhi and that this post is under the Vigilance Department of Northern Railway Headquarter. He has, therefore, disputed the contention of the respondents that at the time of enquiry proceedings, the EO was not working in the Vigilance Department.
5. On going through the judgment of this Tribunal in OA-4204/2010 relied upon by the applicant, we find from Para-2 of this judgment that in that case the DA had appointed one Sh. G.S. Suri, CEI as the EO and the place of posting of Sh. Suri has been shown as Vigilance Headquarter. Thereafter, relying on the observations of Honble Supreme Court in the case of UOI & Ors. Vs. Prakash Kumar Tandon, (2009) 1 SCC(L&S) 394 this Tribunal had set aside the proceedings. The Honble Supreme Court in the above mentioned case has observed as follows:-
The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all. In the instant case, we find that the facts are similar. The proceedings started as a result of raid conducted by the Vigilance Department. The witnesses were almost all from the Vigilance Department. No two independent gazetted officers were involved in the raid. In fact, no two independent witnesses at all were present. The EO himself was working as CEI in the Vigilance Department just like the EO in OA-4204/2010. Such enquiry proceedings conducted by the respondents, in our opinion, do not inspire competence and appear to be lacking in impartiality. We, therefore, conclude that the proceedings stood vitiated on this ground as well.
6. Lastly, learned counsel for the applicant argued that merely because Rs.18/- was discovered as excess cash from the applicant does not establish that he had taken illegal gratification. In this regard, he has relied on the judgment of Honble Gujarat High Court in the case of UOI & Ors. Vs. A.A. Makwana (Special Civil Application Nos. 8367 of 2000 dated 21.01.2006. We are inclined to agree with the applicants counsel. Para-704(a) provides that two or more independent witnesses must hear the conversation which should establish that the money was being passed as illegal gratification and not for some other purpose. In the instant case, since two independent witnesses were not there at all, the question of their hearing the conversation does not arise. Hence, on this account as well there is a lapse in the conduct of the proceedings.
7. Without going into other grounds, on the basis of above analysis, we allow this O.A. and quash the impugned orders dated 08.02.2001, 26.11.2009, 14.07.2010 and 16.12.2011. The applicant will be entitled to all consequential benefits including the arrears of difference of pay and allowances. These will be paid to him within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/