Allahabad High Court
Tapan Kumar Chakravarti vs Union Of India Through General Manager ... on 19 January, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 RESERVED A.F.R. Case :- SERVICE BENCH No. - 972 of 2015 Petitioner :- Tapan Kumar Chakravarti Respondent :- Union Of India Through General Manager N.E.Railway Gorakhpur Counsel for Petitioner :- Mohd. Azhar Siddiqui,Mohd. Azhar Siddiqi,Saira Khatoon Counsel for Respondent :- Jyotsna Pal,B.K.Shukla,Narendra Nath Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
1. Heard Shri Mohd. Azhar Siddiqui, learned counsel for the petitioner and Shri Brijesh Kumar Shukla, learned counsel for the respondents.
2. This writ petition has been instituted on behalf of petitioner assailing the impugned judgment and order dated 31.03.2015 passed by learned Central Administrative Tribunal, Lucknow (hereinafter referred to as, 'Tribunal'). The learned Tribunal has dismissed the Original Application No. 347 of 2008 (Tapan Kumar Chakravarty Vs. Union of India and others) instituted on behalf of petitioner for setting aside the punishment order passed against him by the disciplinary authority.
3. It is pleaded in the writ petition that on 21.08.2006 petitioner was posted at the Booking Office, Lucknow Junction when preventive check was conducted by vigilance team. No serious irregularity was found during this check, on the basis of which petitioner was subjected to disciplinary proceedings. Some minor omissions were noticed by the vigilance team. The Inquiry Officer has submitted its report on the basis of preponderance of probabilities and no evidence was available against the petitioner regarding charge sheet issued against him. The petitioner has been punished with reduction of pay as well as withholding of increment for three years by the disciplinary authority. The petitioner preferred appeal before the appellate authority, which was rejected in casual way vide order dated 14.01.2008. Similarly, revision petition was also rejected by the revisional authority vide order dated 07.05.2008.
4. It is also mentioned in the grounds of writ petition that charge sheet was issued against the petitioner on the basis of proceedings conducted by the vigilance team. The charge sheet was issued against the petitioner, which is as follows :
"Article-1- That he produced Rs. 185/- excess in his private cash without any valid reason."
Article-2- That he is found responsible for keeping 6 II ME Tickets neither cancelled nor crossed/ defaced with an intention to resale and pocket the cancellation charges for his personal gain.
Article-3- That he is also responsible for producing Rs.57/- excess in his government cash with an unconveying reason.
By his above act Sri Tapan Kumar Chakravarty CC/LJN failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a railway servant thereby contravened Rule 3(1)(i), (ii) and (iii) of Railway Service Conduct Rules, 1966.
5. The inquiry report was submitted by the inquiry officer and it was found that article-1 and 3 were proved and article-2 of charge was partly proved.
6. It is contended that petitioner put forth this fact before the inquiry officer that on the date of preventive check by the vigilance, no superfast train was available for Mumbai and Kalyan after departure of Pushpak Express on that date, therefore, cancelled tickets in question could not be resold. The finding recorded by the inquiry officer regarding these cancelled tickets does not indicate intention of resale, which could reflect on the integrity of the petitioner. Learned Tribunal has not considered this fact. The respondents failed to produce any evidence regarding integrity of the petitioner. Likewise, no definite evidence was adduced regarding charge that illegal money was recovered from the possession of petitioner in excess of private cash disclosed by him.
7. It is also contended that recovery of amount of Rs. 57/- in excess of government money could be possible due to money transaction in excess or shortage, this mistake was liable to be adjusted according to Rule 71 of Commercial Rules. It is mentioned that in daily trains cash book-cum-summary and balance sheet there are columns for excess money or deficiency. The respondents did not produce any evidence as if the money was realized by the petitioner from any source or passenger. Thus, it is a valid reason for error in transaction.
8. It is further pleaded that after imposition of penalty, petitioner was allowed to appear in the selection for promotion for the post of Guard, for which, he was qualified and empaneled and he was sent for guards training, to which he qualified too. Thereafter he was sent for medical test and was declared fit for promotion on the post of Guard. He joined on 01.08.2008 on the post of Guard. After joining on the post of Guard, the respondents have cancelled the promotion order in a most arbitrary and illegal manner. Therefore, petitioner instituted Original Application No. 290 of 2008 (T. K. Chakravarty Vs. Union of India and others) before the Tribunal, Lucknow. The Tribunal allowed the said original application vide order dated 15.01.2015.
9. Therefore, it is contended that two cause of action arose in case of petitioner, one imposition of penalty and the other as a consequence of penalty, cancellation of promotion order after empanelment for promotion on the post of Guard. The learned Tribunal quashed the order, by which promotion order was cancelled by the respondents, hence, punishment in question does not survive. The learned Tribunal has not considered this aspect also and dismissed the Original Application No. 347 of 2008 vide order dated 31.03.2015.
10. It is also mentioned in the grounds of appeal that petitioner has attained the age of of 58 years and is due to retire after two years. On the basis of these grounds it is prayed that impugned judgment and order dated 31.03.2015 passed by learned Tribunal be set aside.
11. The respondents has submitted counter affidavit and it is pleaded that on the basis of preventive check conducted by vigilance, charge sheet was issued of article 1, 2 and 3 against the petitioner and the disciplinary authority passed the reasoned and speaking order after conducting proper inquiry. Likewise, appellate authority and revisional authority has also passed reasoned and speaking orders. Learned Tribunal has also delivered impugned judgment and order by passing reasoned and speaking order, which does not require any interference by this Court.
12. It is further pleaded that the inquiry officer has conducted inquiry in proper manner and, thereafter, submitted inquiry report and found charges-1 and 3 fully proved and charge-2 partially proved.
13. It is further contended in the counter affidavit that during preventive check conducted by vigilance team, petitioner's private and government cash was found in excess and the petitioner was not able to given any convincing/ proper reason in this regard. These charges were found by the inquiry officer totally proved. The petitioner himself has admitted about excess amount found with him. The respondents has relied upon Annexure-C.R.-1 of the counter affidavit in this regard, which was filed along with the counter affidavit before the Tribunal in Original Application No. 342 of 2008.
14. The respondents in counter affidavit has also contended that integrity of petitioner was in question, which does not depend on only one charge. There were two other charges, on the basis of which, integrity of petitioner was held doubtful, as those charges were fully proved. The petitioner has been punished as per the gravity of charges proved against him. Excess money was found with the petitioner in his government cash as well as in his private cash, which indicates his lack of devotion in duty and his integrity became doubtful.
15. It is mentioned by respondents that learned Tribunal has properly considered each and every ground taken by the petitioner, while judgment dated 31.03.2015 was delivered by the Tribunal. It is further contended that petitioner was promoted erroneously, hence after expiry of period of punishment as on 07.10.2010 he was promoted to the post of Goods Guard, as such, therefore, it cannot be said that he was punished twice. Photocopy of promotion order dated 20.08.2015 (Annexure-C.A.1) has been provided by the respondents.
16. It is further mentioned that there were two separate issues, one the present one, i.e., punishment reducing him for three years on lowest pay scale and another issue was related with his promotion to the post of Goods Guard, hence it cannot be said that any adverse or critical position has arisen by the dismissal of this O.A. No. 347 of 2008. It is also contended that the judgment and order passed in O.A. No. 290 of 2008 has got no effect on the present issue of punishment. The original application filed against the order of punishment has been properly adjudicated by a reasoned and speaking order and the same has been dismissed vide impugned order dated 31.03.2015.
17. It is further contended in the counter affidavit by the respondents that petitioner was allowed to continue as Goods Guard due to the interim order dated 01.09.2008 passed by learned Tribunal in O.A. No. 290 of 2008. Learned Tribunal was pleased to direct the respondents-railways to maintain status quo, as such petitioner continued on the post due to strength of interim order passed by the learned Tribunal. The promotion order dated 29.07.2008 was erroneously issued in respect of the petitioner during currency of penalty imposed on him. When the mistake was detected, promotion order dated 29.07.2008 was cancelled vide order dated 01.08.2008. The learned Tribunal vide order dated 15.01.2015 passed in O.A. No. 290 of 2008 has quashed the order dated 01.08.2008 and remanded the matter back to the department for taking a final decision in terms of para-3.6 of the guidelines dated 21.01.1993, as such matter was re-examined by the department and the order dated 20.08.2015 (Annexure-C.A.1) has been passed.
18. The respondents has further contended that during currency of punishment period interim order was granted by learned Tribunal, hence, petitioner cannot claim benefit of interim order on the basis of which he continued on the post in question. Continuation, on the post, on the basis of interim order cannot give any benefit to the petitioner. It is mentioned that petitioner has never challenged the order dated 20.08.2015 passed afresh by the department after reconsideration.
19. The petitioner has filed rejoinder affidavit and supplementary affidavit, reiterating his earlier contentions made in the original application and grounds of writ petition.
20. We have perused the impugned judgment and order dated 31.03.2015 passed in O.A. No. 347 of 2008 and the order dated 15.01.2015 passed in O.A. No. 290 of 2008. The petitioner had assailed in O.A. No. 290 of 2008 the order dated 01.08.2008 passed by the railway department, by which, promotion order dated 29.07.2008 of the petitioner was cancelled. The learned Tribunal has partly allowed O.A. No. 290 of 2008 instituted by the petitioner and quashed the order dated 01.08.2008 passed by Railway Department. The matter has been remanded back to the respondents for taking a final decision in terms of para-3.6 of the guidelines dated 21.01.1993 within three months from the date of receipt of copy of this order.
21. Learned Tribunal has quoted the provisions of guidelines of para-3.6 which is as follows :
"3.6- If such a person as aforesaid is held guilty and awarded one of the major penalties of reduction of lower time scale of pay/ grade etc. or reduction to lower stage in the time scale of pay, his case should be referred to the authority which approved the original selection panel/suitability list for consideration whether he is suitable for promotion inspite of the penalty imposed on him. It he is considered suitable for promotion, his case for promotion and fixation of pay etc. should be dealt with in the same manner as that of a person who is awarded a minor penalty as indicated above."
22. The respondents has provided the order dated 20.08.2015 passed by D.R.M. (Karmik), Lucknow, by which, in compliance of judgment and order dated 15.01.2015 passed in O.A. No. 290 of 2008 it was found that petitioner was subjected to punishment during the period dated 08.10.2007 up to 07.10.2010. It is mentioned in the order dated 20.08.2015 (Annexure-C.A.-1) that petitioner was erroneously promoted vide order dated 29.07.2008, which was cancelled on 01.08.2008, which has been quashed vide judgment and order dated 15.01.2015 passed by the Tribunal and the matter was remanded by the Tribunal for reconsideration. Therefore, matter of promotion was reconsidered according to the directions given by the Tribunal and he was promoted from the date 08.10.2010 in pay scale of Rs. 5200-20200/-, Grade Pay of Rs. 2800/- after expiry of period of punishment on 07.10.2010.
23. In the counter affidavit it is specifically contended by the respondents that petitioner has not assailed the order dated 20.08.2015 passed by D.R.M. (Karmik), Lucknow. The learned counsel for the respondents has further argued that in compliance of judgment 15.01.2015 passed in O.A. No. 290 of 2008, on 18.06.2015 reasoned order has been passed by the competent authority of the department regarding promotion of petitioner, which was effective after expiry of punishment period, i.e., 07.10.2010. Learned counsel for petitioner has not put forth any argument in this behalf. Moreover, he has given statement before the Court that he does not want to make any submission and the Court may examine and decide the writ petition on the basis of record. Therefore, there is no substance in the contention of the petitioner that his punishment in question does not survive and dismissal of O.A. No. 347 of 2008 created any critical position for him.
24. The petitioner had assailed the action of respondents for cancelling his promotion order dated 29.07.2008 vide order dated 01.08.2008. The respondents have provided order dated 01.08.2008 (Annexure C.A.-2). We have perused it. It is mentioned in this order of cancellation dated 01.08.2008 that petitioner was subjected to punishment for reducing his two increments for three years which was effective from 08.10.2010 with cumulative effect, therefore, promotion order dated 29.07.2008 was cancelled. In the present O.A. No. 347 of 2008 the petitioner has assailed this punishment order dated 08.10.2007 passed by disciplinary authority, order dated 14.01.2008 passed by appellate authority and the order dated 07.05.2008 passed by revisional authority. Therefore, the relief claimed in O.A. No. 290 of 2008 and in the present O.A. No. 347 of 2008 should have been claimed according to the provisions of Order II Rule 2 of C.P.C. in the earlier O. A. No. 290 of 2008 instituted by him before the Central Administrative Tribunal.
25. Moreover, the learned counsel for petitioner has relied upon the Railway Board's letter dated 21.01.1993 which relates to promotion of railway servants who are under suspension or against whom departmental proceedings/ prosecution have been initiated. These guidelines have been issued for adopting procedure provided in guideline-3.6 in case of promotion of Group-D and Group-C railway servants, which was considered by the learned Tribunal while it decided O.A. No. 290 of 2008. Therefore, punishment order dated 08.10.2007 and orders passed by appellate authority and revisional authority might have been assailed by the petitioner in his earlier original application. Although the respondents had not raised objections on the basis of provisions of Order II Rule 2 of C.P.C. before Tribunal, but O.A. No. 347 of 2008 instituted by petitioner was also liable to be dismissed on this score also.
26. We have perused the Annexure-C.R.1 submitted by the respondents during the proceedings of O.A. No. 347 of 2008. The petitioner submitted his reply on 26.12.2006, in which, he has mentioned that on 21.06.2006 he was working on Counter No.4 in shift of 16:00 to 24:00 hours. He had accepted that he declared his personal cash as Rs.115/- and he spent Rs.15/- on refreshment. He could not proved during the course of inquiry that amount of Rs. 200/- was given by his wife for payment of dues of shop keeper and this amount was shown by the Vigilance Inspector as excess amount of private cash on the other hand, according to entry of cash proceeding statement petitioner disclosed it by stating that this money was not within his knowledge that it was kept in his pocket.
27. He had also accepted that six tickets of Mail Express Train of second class of Mumbai and Kalyan were recovered from his possession. The amount of these tickets were refunded by him after deducting amount of Rs.10/- as cancellation charges, but he could not crossed these tickets due to rush of work. Regarding charge-3, he has also accepted that difference of government cash could occur during the course of transaction. The defence taken by petitioner in his reply dated 26.12.2006 was contradictory and not proved by him during the course of inquiry.
28. We have perused the impugned judgment and order dated 31.03.2015. The learned Tribunal has considered the facts and circumstances, in which preventive check was conducted on 21.08.2006 by the vigilance in booking office at Lucknow Junction. The learned Tribunal has mentioned these facts in the impugned judgment and order as follows:
"It is to be pointed out that on 21.08.2006, a preventive chck was conducted by vigilance in Booking Office Lucknow Junction and during the course of the vigilance check, the applicant was found manning counter No.4. He was subjected to check. After his declaration that there is no transaction due. His private cash was checked. The applicant produced Rs. 300 as his private cash against the declared private cash of Rs. 115/-. As such, he produced Rs. 185/- excess in his private cash and explaining the reason for this excess money, he stated that Rs. 185/- were in his pocket and was not in his knowledge. As such, the applicant could not declare this amount in his private cash. The said statement of the applicant was not found convincing because he produced Rs. 300/- as his private cash. Not only this, the applicant has also produced Rs. 46748/- as his Government cash whereas as per the ITC summery, the Government cash should have been Rs. 48300/- and the applicant has also produced Rs. 1552 short in his Government cash. Further six IInd mail / express tickets which were neither crossed nor defaced are recovered from his counter. Not only this, he was also asked to clarify the reasons for this heavy shortage of Rs. 1552/- in the Government cash and also he was asked that under what circumstances he kept those IInd Mail/ Express tickets with him which were neither crossed nor defaced."
29. Disciplinary Authority has recorded specific finding that witnesses produced by the department had proved during course of inquiry that the petitioner produced private cash of Rs.300/- from his same pocket and these currency notes were of same serial. Likewise the petitioner had sufficient time one and half hours, after departure of train, to cancel these six tickets, which were not crossed nor defaced by him. The witness had also proved this fact that at the point of time of vigilance check no passenger was available, therefore, statements of passengers could not be recorded by him. The revisional authority has also considered defence of the petitioner and recorded specific finding that ticket could have been cancelled by him within 20-25 minutes by UTS system. According to disciplinary authority he could cancell these tickets manually within 10 seconds or he should have immediately cancelled these tickets by system after refund by passengers. The disciplinary authority has also recorded finding that amount of Rs.1552/- was found less in Government cash and after cancellation of tickets, it was found in excess, i.e., Rs.57/-. These facts indicate for doubtful integrity and negligence of the petitioner, which comes within purview of misconduct of the petitioner.
30. Learned Tribunal has recorded the finding that charge sheet was served upon the petitioner and he submitted his reply on 26.12.2006. The inquiry officer was appointed and inquiry officer conducted the detailed inquiry. It was indicated by the inquiry officer that vigilance check was conducted around 21:20 hours, whereas Pushpak Express left the station at 19:45 hours. The inquiry officer found that charges-1 and 3 framed against the petitioner were proved and charge-2 was partially proved. The disciplinary authority, being not satisfied with the finding of the inquiry officer regarding charge-2, served disagreement memo on 12.09.2007 and has indicated that the petitioner has deliberately not cancelled six tickets of Mail Express and he deliberately kept those tickets with him for ulterior motive. The petitioner also submitted reply to the inquiry officer's report. The disciplinary authority passed detailed order indicating the reasons and finally passed the punishment of reduction to the lower stage, from Rs.4133/- to 3965 in the pay scale of Rs.3200-4900/- for a period of three years with postponing future increment vide order dated 08.10.2007.
31. Learned Tribunal has recorded the finding that appellate and revisional authority has recorded the reasons by passing speaking order, rejecting the appeal and revision respectively. It was also found by the Tribunal that undisputably, the petitioner was having money more than the declared cash and an amount of Rs.185/- was found in excess of declared private cash and there was an excess amount of Rs.57/- in the government cash as well, after adjustment of amount of Rs. 1552/- of six tickets refunded and cancelled afterwards of vigilance check. The petitioner could not give appropriate explanation for the same and as such Tribunal found that punishment so awarded against the petitioner, commensurate with the misconduct as committed by the petitioner.
32. We have also perused the punishment order dated 08.10.2007 passed by disciplinary authority, order dated 14.01.2008 passed by the appellate authority and the order dated 07.05.2008 passed by the revisional authority. These detailed orders have been passed by the authorities recording the reasons. The Tribunal has recorded the finding in correct perspective, which cannot be termed as perverse and against the facts and law. The Tribunal has rightly relied upon the exposition of law propounded by Hon'ble Supreme Court, which has been quoted by the Tribunal in paras 7 to 11 of its judgment, which is as follows:
7. In the case of Regional Manager, UPSRTC Vs. Hoti Lal reported in (2003) 3 SCC 605, the Hon'ble Apex Court clearly observed as under:
"If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable."
8. In the case of State Bank of India Vs. Ram Lal Bhaskar and Another reported in (2011) 10 SCC 249, the Hon'ble Apex Court has observed as under:
"Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct."
9. The Hon'ble Apex Court in the case of B.C. Chaturvedi v. U.O.I & ors. reported in 1995 (6) SCC 749 again has been pleased to observe that "the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence."
10. In another case the Hon'ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994 (3) SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."
11. Not only this the Hon'ble Apex Court has even observed in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan v. Md. Ayub Naaz reported in 2006 (1) SCC 589. The Hon'ble Apex Court has been pleased to observe as under:-
"This Court in Om Kumar and Ors. v. Union of India, [2001] 2 SCC 386 while considering the quantum of punishment/proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to se if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant material and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."
33. A Coordinate Bench of this High Court vide judgment dated 11.01.2018 delivered in Writ-C No. 976 of 2015 (Narendra Kumar Tyagi Vs. State of U.P. through Chief Secretary and others) has observed in para-32 as follows:-
32. We are really surprised that in the mater of public dealing where process of allotment of land needs impartial, objective and transparent procedure, MDA and its officials are indulged in otherwise corrupt activities, and going to the extent of manipulating record in favour of selective individuals, obviously for reasons other than bonafide. It cannot be termed with any other expression except patent and evident illustration of corruption. Off late, corruption has taken several shades. It is not as simple as it was in earlier days when a simple giving and taking or doing something illegal or favourtism, etc. was the only mode. Now corruption takes place in variety of ways. It has discovered myriad of ways. Sometimes apparent corruption may not be visible since it has its consequences in various phases, means and stages. As we have advanced in technology, ways of corruption have also advanced. Many a times one may find a transaction to be simple and ordinary but in effect it is full of corruption. People involved in corruption are now part of everyday life and it has engulfed society in a very big way. Today, finding an honest person is a rarity. Dishonesty and corruption are routine affair. Honesty has become scarcity and virtually an endangered species. We need immediate step to evolve a scheme (as is being practiced in respect of rare animals) to protect honest and impartial men of integrity. True that number of such persons is decreasing, still we believe that society has ample honest people. Need is only to identify and encourage them so that their number may get increased. For this purpose, what is needed more is a simultaneous deterrent action against corrupt and dishonest people by finding them out and punish sternly. Failure of system in meeting menace of corruption and dishonesty is encouraging these corrupt people, multiplying their cadre. It is causing reverse impact on honesty and integrity. We boast lot in favour of removal of corruption but do least. In fact, no serious attempt is vigilant so as to give even a ray of hope to ordinary citizens. The disease is spreading like anything and treatment requires a traumatic attempt.
34. The employees, deployed to deal with public money transactions at financial institutions and departments like railways and banks, should have integrity beyond doubts. Nowadays in public dealing there is corruption on rampant. Therefore, public servants/ employees, who indulge in corrupt practices must be punished in disciplinary proceedings sternly and punishment should commensurate with misconduct committed by the concerned employee. The Tribunal has recorded findings in correct perspective, therefore, no interference is called for by this Writ Court.
35. On the basis of above discussion, the exposition of law above mentioned, this writ petition devoid of merits and is liable to be dismissed.
36. Dismissed accordingly.
Order Date :- 19.1.2018.
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