Central Administrative Tribunal - Delhi
Inder Kumar Sharma vs Union Of India on 8 December, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3967/2011
Reserved on : 03.12.2014.
Pronounced on :08.12.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Inder Kumar Sharma,
S/o Sh. Chetan Lal Sharma,
E&RC, Northern Railway,
Reservation Office,
Railway Station,
Gurgaon.
Residential Address:
Inder Kumar Sharma,
C-72/B, Mohan Garden,
Uttam Nagar,
New Delhi-59. .. Applicant
(through Sh. G.D. Bhandari, Advocate)
Versus
Union of India, through
1. The General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Divl. Railway Manager,
Northern Railway,
State Entry Road,
New Delhi. . Respondents
(through Sh. Sat Pal Singh, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was appointed as Enquiry-cum-Reservation Clerk on 10.09.1999. Gradually, he got promoted to the post of Head ERC. On 19.03.2009, when he was on duty at Gurgaon in the morning shift, a vigilance raid was conducted on his counter in which some excess cash was allegedly recovered from him. Based on this raid a major penalty charge sheet was issued to him on 22.05.2009 containing the following charge as well as Statement of Imputation:-
Articles of charges Articles of charges framed against Sh. Inder Kr. Sharma IIE&RC/GGN who has been detected to have committed serious irregularities in as much as:
He is held responsible for an excess amount of Rs.8923/- in his Govt. cash.
By the above act of omission & commission the Sh. Inder Kumar Sharma HE&RC/GGN failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a railway servant, there by contravened the provision of rule 3.1(i),(ii),(iii) of Railway Service Conducted Rules-1966. Statement of Imputation Statement of imputation of misconduct/misbehaviour on the basis of which action under D&AR is to be taken Sh. Inder Kumar Sharma HE&RC/GGN.
Source information was received that the E&RC staff of PRS/GGN are indulging in malpractices and earning illegal money by way to facilitate touts and doing touts reservations on priority. Acting upon a source information a preventive check was conducted on 16.03.2000 at the PRS/GGN Sh. Inder Kumar Sharam HE&R/GGN, who was on duty and counter No. 2012 in the shift from 08:00 to 14:00 hours subjected to check. During the course of preventive check the Government as well as Pvt. Cash on Sh. Inder Kr. Sharma HE&RC/GGN was checked in the presence of CRS/GGN. On asking he produced Rs. 67855/- as Govt. cash against the actual amount of Rs.58932/- as per his ITC/DTC placed at 01. Thus an excess amount of Rs.8923/- was detected in his Govt. cash. However his pvt. cash was found in order as he declared Rs.360/-. On asking about the said excess amount in the Govt. cash he did not give any satisfactory reply. The said excess amount of Rs.8923/- was deposited in the treasury of the station GGN vide MR No. 99424204 on 16.03.2009.
By the above act of omission and commission Sh. Inder Kr. Sharma HE&RC/GGN failed to maintain absolute integrity, exhibited lack od devotion to duty and acted in a manner unbecoming of a Railway servant, thereby contravened the provision of rule 3.1(i), (ii), (iii) of Railway service conduct rules-1966. When the applicant denied the charge an Enquiry Officer (EO) was nominated to conduct the enquiry. He submitted his report on 18.11.2009. The applicant represented against this report on 01.12.2009. However, the Disciplinary Authority (DA) awarded penalty of reduction in pay to the applicant by one step in time scale for two years with cumulative effect on 28.01.2010. The applicant appealed against the same on 12.03.2010. However, the Appellate Authority (AA) on 17.05.2010 issued a show cause notice to the applicant for enhancement of penalty. The applicant submitted his objections to the same on 01.07.2010. The AA enhanced the penalty to reduction in pay by three steps for five years with cumulative effect by his order dated 07.07.2010. The applicant filed an appeal against the same. This was decided on 21/24.09.2010 and the period of penalty was reduced from five to four years. Aggrieved by these orders, the applicant has filed this O.A. seeking the following relief:-
(i) Set-aside and quash the Penalty Order dt. 28.1.2010, A-1, Show Cause Notice 17.5.2010 A-2a, enhanced Penalty Order dt. 7.7.2010, A-2(b) and rejection of Appeal Order dt. 21/24.9.10, A-3, with all consequential benefits so accruing.
(ii) direct/order the Respondents to refund the total amount so deducted in pursuance of the impugned orders with 24% interest within a stipulated period.
(iii) another relief deemed fit and proper in the facts and circumstances of the case, may also be granted in favour of the applicant alongwith, heavy cost against the respondents, in the interest of justice.
2. Applicant has contended that the enquiry has been concluded in grave violation of Railway Rules and the findings are based on conjectures and surmises. Admittedly, there was no linking document or even filled up reservation slip. Neither there was any complaint of over charging from any passenger nor was any tout found around the reservation counter at that time. The DA and AA have passed these orders without considering the defence of the applicant and without proper application of mind. They have thus violated principles of natural justice as also the Articles 14 and 16 of the Constitution of India.
3. In their reply, the respondents have stated that during the vigilance check besides his private cash, the applicant had produced Rs. 67855/- as government cash against the actual amount of Rs.58932/- as per ITC/DTC. Thus, there was an excess of Rs.8923/- in government cash. The applicant was, therefore, served with a major penalty charge sheet. An enquiry was conducted as per Rules and after examining the enquiry report and serving a copy to the applicant, the DA awarded punishment of reduction in pay to the applicant. The AA enhanced this penalty after giving a show cause notice to the applicant. The applicant preferred an appeal against the enhanced punishment. After considering the same, the period of penalty was reduced by the AA. The contention of the respondents is that the charge against the applicant stood proved. The enquiry was conducted as per the prescribed procedure and there is no infirmity in the same. The punishment awarded to the applicant is also commensurate with the charge levelled against him. They have, therefore, urged that this O.A. be dismissed.
4. We have heard both parties and have perused the material on record. The applicant has challenged these proceedings on several grounds each of which together with the stand taken by the respondents is discussed as hereunder:-
4.1 The first ground taken by the applicants counsel is that Annexure-I of the charge sheet itself was wrong as it is stated therein that the applicant is held responsible for an excess amount of Rs.8923/- in his government cash. Learned counsel argued that at the stage of issue of charge sheet this was only an allegation. However, the language of charge reveals that the respondents had already come to the conclusion that the applicant was found to be in possession of excess amount. Thus, the respondents had already held the applicant to be guilty even before commencing the enquiry.
4.2 In our opinion, this ground taken by the applicant is technical. The Annexure-I of the charge sheet cannot be read in isolation of other parts of the charge sheet. In Annexure-II reproduced above Statement of Imputation of misconduct/misbehaviour is given in which details of the raid conducted on the applicants counter have been mentioned. In Annexure-III list of relied upon documents is given and in Annexure-IV list of witnesses is mentioned. These documents have been supplied to the applicant together with the Memorandum dated 22.05.2009, the first para of which reads as follows:-
The President/Railway Board/Undersigned propose(s) to hold an inquiry against Shri Inder Kumar Sharma, E&RC/GGN under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The substance of the Imputation of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed State of articles of charge (Annexure I). A Statement of imputation of misconduct or misbehaviour in support of each article of charge is enclosed (Annexure II). A list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained are also enclosed (Annexure III & IV). If all these documents are read together, it is clear that the intention of the respondents was to hold an enquiry for the alleged misconduct/misbehaviour committed by the applicant. It cannot be said that the respondents had a closed mind and has already assumed the charge against the applicant to have been proved at the stage of the issue of the charge sheet itself. This ground of the applicant is, therefore, not tenable.
4.3 Secondly, he has challenged the enquiry proceedings on the ground that the prescribed procedure was not followed. He has alleged that he was not permitted to produce any defence witnesses nor was mandatory procedure prescribed under Rule-9(21) of the Railway Servants (D&A) Rules, 1968 followed. However, we notice from the enquiry report that this does not appear to be correct. In Para-4.2.0 of the same (page-40 of the paper book) it is mentioned that CO did not introduce any defence witnesses for his defence nor he introduced himself as defence witness. Thus, it is clear that the applicant was never denied opportunity of producing defence witnesses. He himself chose not to do so. Regarding general examination of the applicant as laid down in Rule-9(21) of the said Rules, it is seen from Para-4.2.1 of the enquiry report (page-40 of the paper book) that the general examination of the applicant was indeed conducted. The applicant had also submitted his defence brief but the EO found that there was no new material in the same. Hence, these two grounds taken by the applicant are not tenable.
4.4 Thirdly, the applicant has alleged that Paras-704 and 705 of the Vigilance Manual were not followed inasmuch as no gazetted officer was associated with the raid. In this regard, he has relied on the judgment of Honble Supreme Court in the case of Moni Shankar Vs. UOI, 2008(3) SCC 484 wherein it has been held that paras 704 and 705 of the Vigilance Manual have to be substantially complied with and cannot be totally ignored. Further, he stated that the EO in the instant case was also from the Vigilance Department. Thus, this enquiry cannot be considered to be a fair one as the vigilance officers were determined to prove the charge against the applicant.
4.5 We have considered the above mentioned submissions of the applicant. In the case of Moni Shankar (supra) the Apex Court has observed that while IRVM is a set of Executive Instructions and not binding yet its violation should be taken into consideration along with other factors to determine objectively whether the charges have been proved or not. In the instant case, we find that the respondents have not specifically denied that the EO was from Vigilance Department. However, even if this assertion of the applicant is taken to be true, we notice from the facts of this case that in the list of witnesses provided by the respondents to support the charge the name of one Ms. Shivani Sharma figures. She was the Chief Reservation Supervisor at Gurgaon and deposed in the enquiry as PW-I. She has stated in her deposition that the check was conducted in her presence. Thus, in this case an independent witness not belonging to the Vigilance Department but belonging to the applicants own department was associated with the raid as well as with the enquiry. Further, we find that the applicant himself has no where denied that excess amount of Rs.8923/- was not recovered from him. In his defence, he has only tried to explain that this money was meant for purchasing medicines for his mother and that this money was recovered not from Government cash but was produced by the applicant himself from his person. Since the factum of excess amount being recovered from him has not been denied by the applicant, we do not feel that any prejudice has been caused to the defence of the applicant in these enquiry proceedings. Therefore, we do not see any justification for quashing these proceedings on the ground of violation of Paras-704 & 705 of the Vigilance Manual and getting the enquiry conducted by an officer of the Vigilance Department. In the case of Moni Shankar (supra) relied upon by the applicant also the Apex Court has observed that it is not mandatory to follow these proceedings of the Vigilance Manual and that other facts and circumstances of the case need to be seen to determine whether the charges are proved or not. Considering the facts and circumstances of this case, we are not inclined to quash the proceedings on this ground.
4.6 The applicants counsel also argued that the DA in his order has clearly stated that he was reproducing the orders of his predecessor. This is obvious from the first sentence of the impugned order dated 28.01.2010, which reads as follows:-
The case of the above named employee was put up to the then DCM/NDLS who has passed the following ordes:- Thus, the applicants counsel argued, the DA himself had not applied his mind and had merely reproduced the order of his predecessor. Therefore, the DAs order stood vitiated on this ground. We have seen the order in question. It appears that the DCM earlier working on the post decided to issue this order. However, before he could do so, his successor assumed charge on the post. Even then it cannot be denied that both the earlier DCM as well as DCM who had signed the impugned punishment order were DAs of the applicant and were competent to issue the impugned order. Whether the earlier DA had applied his mind or whether the next incumbent had done so would not make any difference to the outcome of the case. This ground is, therefore, rejected.
4.7 Thirdly, the applicants counsel argued that the DA and AAs failed to take into account the defence of the applicant and passed the impugned orders mechanically. The applicant had clearly stated that the excess amount was not with the government cash but was in the pocket of the applicant. He had also submitted that this money was meant for purchase of medicines for his mother and had even produced cash memos to support the same, yet, his defence was not taken into consideration as there is no mention of cash memos in any of the orders. The AA had rejected the same saying that this amount was not in round figures. Learned counsel, therefore, argued that the proceedings should be set aside on this ground. However, in our opinion, this is not so. We have seen the impugned order passed by DA and in the very first para of the same, the defence taken by the applicant has been discussed and rejected. The DA did not accept the applicants explanation that the excess cash recovered from him was meant for purchase of medicines for his mother. This explanation he has rejected on the ground that the applicant has not declared this amount as his private cash. In the order enhancing the penalty passed by the AA on 07.07.2010 also the explanation offered by the applicant has been discussed and rejected. One of the grounds given for such rejection that this amount was not in round figure and therefore this explanation was not acceptable. The argument taken by the applicant that it was not possible to earn such a huge amount in 1 hour 45 minutes of duty was also rejected as baseless. Thus, it is incorrect to say that the orders passed by DA and AA were without application of mind. Moreover, it is trite law that in judicial review the Courts do not have liberty to re-appraise the evidence. They are only required to see whether due procedure has been followed and whether it was a case of no evidence or whether there was some evidence on the basis of which the charge has been held to be proved. We find that in the instant case the applicant had himself admitted that the excess cash was recovered from him. This is clear from the evidence of the prosecution witnesses including the independent witness Ms. Shivani Sharma. The explanation given by the applicant as to whether this excess money came from has not been accepted by the authorities. We, therefore, do not feel that this is a case of no evidence warranting interference from us. We also do not feel that the findings arrived at by authorities were unreasonable or perverse.
4.8 The applicant had relied on the judgment in the case of N.K. Varadarajan Vs. Spl. Dy. Director, 1991(1) SLR 667 to say that the AA must decide all the issues and points raised by the charged officer. He had also relied on the judgment in the case of P. Muniswamy Vs. UOI, 1998(7)SLR 137 to say that there must be judicial application of mind by the authorities concerned and speaking orders should be passed by them. In our opinion there is no violation of these judgments in the instant case as orders passed by DA and AA are well reasoned and speaking.
4.9 No other ground was pressed before us.
5. On the basis of the above analysis, we find no merit in this O.A. and dismiss the same. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/