Central Administrative Tribunal - Delhi
Shri Nand Kishore vs Government Of India And Others : Through on 28 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 3179/2013 Reserved On:22.07.2015 Pronounced on:28.07.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Nand Kishore Ex-Ticket Checker, Northern Railway, Bareliy, R/o 156, Naag Mandir Lane, Shastri Nagar, New Delhi. ..Applicant By Advocate: Mrs. Meenu Mainee. Versus Government of India and Others : Through 1. General Manager, North Railway, Baroda House, New Delhi. 2. Additional Railway Manager, Northern Railway, Muradabad. 3. Shri Yogesh Sharma CEI/HQ, Vigilance Branch, Northern Railway, Baroda House, New Delhi. Respondents By Advocate: Shri A.K. Srivastava ORDER
G. George Paracken, Member(J) The Applicant in this Original Application is aggrieved by the disciplinary proceedings initiated against him which ultimately resulted in the penalty of compulsory retirement from service imposed upon him with effect from 07.05.2012.
2. The brief facts of the case are that the Applicant was proceeded under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. The Articles of Charge framed against him were as under-
During the preventive check, he was found responsible:
1. For carrying 36 irregular passengers in his manned sleeper coaches No.S-2 and S-3 for his malafide intention which were charged/regularized for Rs. 1845/- vide EFT Nos. 963428 to 963449 dated 23.04.2011.
2. For non-cooperation with vigilance team.
By the above act of omission & commission the Shri Nand Kishore, TE/BE failed to maintain absolute integrity, exhibited lack of 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 conducted Rules, 1966.
The statement of imputation of misconduct or misbehavior in support of the aforesaid Articles of Charge was also reproduced as under:-
A preventive check was conducted by vigilance N. Railway in Train No. 54078 (DLI-SPN Passenger Train) between HPU & MB on 23.04.2011 in sleeper coaches no.S-2 & S-3, being manned by Shri Nand Kishor, TE/BE.
During the check, Vigilance team entered in Coach No. S-2 of Train No. 54078 from HPU on 23.04.2011. Vigilance team had disclosed their identity. Then, he was asked to produce his EFT book for Vigilance check, the same was produced and EFT foil No. 630346 was closed at 02:30 hrs. for Vigilance check.
After closing his EFT book, he was asked to check his manned sleeper coaches no. S-2 & S-3, but he refused to do so. Vigilance team asked him again and again to cooperate but he did not care and went away after leaving his charts.
Then his manned coaches no.S-2 & S-3 were got checked. While checking the coaches, 36 irregular passengers (01 WT & 35 irregular) were found sleeping in both the coaches. They were charged/regularized for Rs.1845/- vide EFT Nos. 963428 top 963449 dated 23.04.2011. During the check, some passengers stated that they board in the train after asking the TTE of the train but the said TTE did not turn up till then.
Statement of Shri Nand Kishore, TE/BE was recorded in Vigilance Branch Baroda House/New Delhi on 25.4.2011. On being asked why he ignored the request of vigilance to get his manned coaches checked, he stated that he committed mistake and will not repeat in future. Regarding 36 irregular passengers, he stated that he could not check the manned coaches due to the sickness. He further stated that he joined the duty after fit certificate of doctor and could not inform about his sickness to CIT/Commercial Control or any other higher officer.
By the above act of omission and commission the Shri Nand Kishore, TE/BE 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.
The aforesaid Articles of Charges were proposed to be sustained by the following list of documents and list of witnesses:-
List of Documents:
(1) Photocopy of EFT files No.693428 and 693449 issued for 36 irregular passengers.
(2) Photocopy of statement of Shri Nand Kishore, TE/BE.
(3) Photocopy of closed EFT No.630346.
(4) Photocopy of Joint Check Report.
List of Witnesses:
(1) Shri Suresh Kumar Lathar, CVI, HQ.
(2) Shri Trilochan Singh, STE/HQ.
3. Applicant denied the aforesaid charges levelled against him vide his representation dated 09.08.2011. However, the Disciplinary Authority decided to hold an enquiry in the matter and accordingly he appointed Shri Yogesh Sharma, Chief Enquiry Inspector from the Vigilance Department of the Respondents as the Enquiry Officer and he, vide his report dated 28.12.2011, held that the Charge No.I was partially proved and Charge No.2 was proved. His discussions on the charges are as under:-
First Charge 7.1 It is evident from the Ex P-3, the copy of closed EFT that vig. Check was conducted and train No. 5407B in between HPU and MB after passing HPU of 2-30 hours on 23.1.2011. It is also evident from Ex P-1 that 36 passengers were charged/regularized vide Ex. P-1 by Sh. Trilochan Singh, STE/HQ. The fact is corroborated by the statement of CO Ex. P-2 and Joint check report Ex.P-4.
CO in his defence brief stated that both the aspects that PW-1 who is the IO of the case has clearly stated in reply to Q-5 that there is no documentary evidence to support the mala fide intention of CO except that CO had sufficient time of two hours to check his manned coaches which he could not check nor he could inform his supervisor regarding his illness. PW-1 also confirmed in reply to Q-2 and Q-4 that no passenger made any complaint against the CO for accepting money without issue of EFT and no statement of passenger was recorded to the effect that they were allowed by CO. PW-2 also confirmed the version of PW-1 vide reply to O-1 & 2. Now the question arises under what circumstances CO could not check the manned coaches. CO during the check as well as in his general examination by IO, has clarified that due to accidental injury (fracture) in his left arm and shoulder, he was sick under Sr. DMO/BE from 9.1.2011 to 15.4.2011 vide sick/fit certificate No. 345699. He was declared fit by railway doctor on 15.4.2011 although he was feeling pain in his arm but doctor advised him to take medicine on duty. Thus, he resmued duty on 16.4.2011. Just after two days i.e. on 19.4.2011 who advised him complete rest for one week (certificate issued by the pvt. Doctor as well as by the railway doctor submitted to the IO in the enquiry), but the incharge of the CO booked him on train No. 54078 on 22/23.4.2011 in spite of his illness. On the day of check on 23.4.2011 he was manning two coaches S-2 and S-3 ex. DLI to BE. This passenger train remain over crowded up to HPU due to daily passengers who are unsocial elements and create nuisance as such it is not possible to check the train up to HPU. The vigilance team intercepted the train from HPU. When the Vig. Team came in S-2 coach, CO was sitting and there was crape bandage across his shoulder and neck and this fact was also confirmed by PW-1 in reply to Q-10. As such due to this reason he could not check his allotted coaches up to HPU as 13 passengers entered from DSA and 5 passengers entered from GZB. CO had neither allowed any passenger nor any passenger stated during the check that TTE had already checked these coaches. As such the charge that CO was carrying 36 irregular passengers is quite vague. All the passengers had proper tickets and were regularized by vig. team by charging Rs.40/- per head. So far as the observations of PW-1 that CO should have informed his colleague/supervisor about his illness is concerned, it is clarified that the train is manned by two TTEs i.e. one from BE and the other from SPN who look after their allotted coaches and no conductor work on this train. As such no information could be given to any supervisor. Thus, there is no evidence that CO was carrying these irregular passengers with malafide intention but the fact remains that he could not check the allotment coaches up to HPU as the circumstances were beyond his control and due to pain he was resting/sitting as confirmed by PW-1 in reply to Q-1. The fact that CO was really sick has also been confirmed by PW-1 in his reply to Q-10.
Plea taken by the CO as above cannot be ruled out completely as it is very much clear from Ex-P-1, the EFTs of the regularized passengers that 35 passengers had been regularized vide these EFTs. These passengers were not detected by the CO during his journey in his manned coaches from DLI to HPU clearly shows the negligence on the part of CO which could be due to malafide intentions but there is nothing on record to prove the malafide intentions as CO had not at all performed his duties from DLI to HPU till the vigilance check on the plea that he was unwell. His cash details are not on the record of enquiry to check the illegal earnings as CO did not cooperate in the check and left the coach even when VI called him to associate in the check. However, no passenger made complaint against the CO for taking any sort of money from them, which clear of the CO from the charge of malafide intention. Thus, it is clear from above that CO is responsible for carrying 36 passengers without regularizing in his manned coach on train No. 54078 on dt. 23.4.2011. Hence from above discussion and evidence the charge is proved only up to the extent that CO is responsible for carrying 36 irregular passengers in his manned sleeper coaches no. S-2 and S-3, which were charged regularized for Rs. 1845/- Vide EFT Nos. 963428 to 963449 dated 23.3.2011.
Second charge 7.2 It is evident from the Ex-P-4 joint Check report that CO did not cooperate with vig. Team in regularizing the irregular passenger detected in his manned coaches.
CO in his defence brief stated that Both PW-1 & PW-2 in reply to Q-6 and 3 respectively have confirmed that CO did not refuse to hand over EFT book and reservation charts on demanded by the vig. team. PW-2 also confirmed did reply to Q-4 that CO did not create any hindrance during the check. However, PW-1 in reply to Q-7 stated that CO left prior to start of Vig. Check and refused to prepare EFT as per Ex. P-4/1, contrary to this PW-2 in reply to Q-5 confirmed that CO was with vig. Team at initial stage but later on left coaches prior to preparation of EFT. Thus, the version of PW-1 that CO refused to prepare EFT is totally false. CO has clearly stated in reply to Q-2 of Ex P-2/1 that he had gone to take medicine from his bag which was in S-3 coach and after taking medicine, he rested there. In fact CO was not in a position to prepare EFTs from one hand as it could take some time to prepare one EFT. He had not deserted from the train nor left the train rather he was available in S-3 coach.
From the facts as discussed above, it is clear that CO had handed over his EFT, R/charts and did not create hindrance, in check but he could not fully associate in check due to illness. Thus, CO had full cooperated and the charge of non-cooperation as leveled against him holds no water.
Plea of the CO as above is not acceptable as it is very much clear from all the RUDs on record that CO has not participated in the vigilance check when VI requested him to do so, it is evident from the joint note Ex-P-4 that CO left his manned coach as and when VI closed his EFT and started the check of the irregular passengers. CO has fabricated a story that he has gone to take medicine from the adjacent coach, even it is treated as correct then CO has not explained why he did not return back after taking medicine from that coach. CO himself citied in his defence brief that he was on sick with Railway doctor and who declared him fit on 15.4.2011 which clearly shows that CO was fit enough to carry out his duty in the train. Thus, the plea of the CO that he was unwell and cannot perform his duty on the date of check does not stand and it is treated as cocooned story of CO without material to support it and has no legs to stand. Handing over the chart and getting closing of the EFT book does not imply that CO cooperated with VI during the entire check, his subsequent absenteeism from the site of the check clearly shows his non-cooperation. Hence from above discussions and evidences the change is proved.
4. Applicant made a representation against the aforesaid report dated Nil (Annexure A-8 of the paper book). As regards the first charge is concerned, he stated that it was not actually proved as the Enquiry Officer himself in para 7.1 of his report stated that there was nothing on record to prove his mala fide intention for not performing his duty from Delhi to Hapur till the vigilance check was carried out and no passenger had made any complaint against him for taking money or anything of that sort from them. As regards the second charge is concerned, he stated that due to injury caused by an accident (fracture) on his left arm and shoulder, he remained sick under Sr. DMO/BE from 09.11.2011 to 15.04.2011 vide sick/fit certificate No.345693. Although he was declared fit by the doctor on 15.04.2011, he was still feeling pain in his arm but the doctors advice to him was to take medicine during the duty time. Therefore, he joined duty on 16.04.2011 but just after 2 days, severe pain in his shoulder persisted and he consulted the doctor again on 19.04.2011 and he was advised to take complete rest for one week. Further, he has stated that on the day of check, i.e., 23.04.2011, he was manning two coaches S-2 and S-3 ex-DLI to BE. Due to the heavy rush of daily passengers of Ghaziabad, PKW, the train was overcrowded and the crowd created nuisance in the night. As a result, it was not possible for him to check the train before Hapur. He has also stated that 13 passengers entered the sleeper coaches from DSA and 5 passengers from Ghaziabad. When the daily passengers got down at Hapur and position became easier, he was suddenly intercepted by the vigilance team who took his ETF and chart. Therefore, it was due to the aforesaid unavoidable circumstances that it was not possible fro him to check the coaches prior to vigilance check at Hapur.
5. However, the Disciplinary Authority, vide its order dated 07.05.2012, imposed the penalty of compulsory retirement upon the Applicant stating that after having gone through the statement of Articles of Charges and proceedings before the enquiry and his representation dated 14.02.2012, it was satisfied that he was given adequate opportunity to defend his case so as to meet the ends of natural justice and only thereafter, the Enquiry Officer held that the Charge No.I was partly proved and the Charge No.2 was proved. Further, according to the said order, the points raised by the Applicant in his defence were not satisfactory as he was already declared fit by the Railway Doctor on 15.04.2011 and, therefore, carrying 36 irregular passengers in his two manned coaches was very grave offence and he cannot escape from that responsibility. The Disciplinary Authority has also held that the Applicant was habitual of such offences and the previous punishments imposed were testimony for the same.
6. The Applicant made appeal against the aforesaid order on 18.05.2012 but the same was dismissed vide their order dated 12.09.2012 wherein also it was stated that in the year 2006-07 also he was held responsible for the same kind of offence. The Revision Petition filed against the aforesaid order on 12.09.2012 was also dismissed vide order dated 30.05.2013/04.06.2013 by the Revisional Authority again holding that he was a habitual offender who had undergone punishment on earlier occasions.
7. The Applicant has challenged the aforesaid Charge Memorandum dated 24.06.2011, Enquiry Officers report dated 28.11.2011, Disciplinary Authoritys order dated 07.05.2012, Appellate Authoritys order dated 12.09.2012 and the Revisional Authoritys order dated 18.06.2013 on various grounds. First of all, he has stated that even though the Enquiry Officer has held that the first charge was partly proved and the second charge was proved, those findings were not based on any legally admissible evidence against him as the first prosecution witness Shri Suresh Kumar Lathar was a not impartial as he himself was a Vigilance Officer and consequently his evidence was not reliable. The other prosecution witness Shri Trilochan Singh, STE/HQ has not tendered any evidence against him. Further, the enquiry was totally vitiated because the charge was based on the Joint Check Report of the vigilance team and the said charge was got enquired into by another Vigilance Officer whose report was biased as he was duty bound to support the case of the Vigilance Department only and not that of the Applicant. In this regard, he has relied upon the judgment of the Apex Court in the case of Union of India Vs. Prakash Kumar Tandon 2009 (2) SCC 541 held as under:-
12. 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.
He has also relied upon a judgment of the Apex Court in the case of Moni Shankar Vs. Union of India and Another 2008(3) SCC 484. The relevant part of the said order reads as under:-
10. We may at the outset notice that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in the Railway Manual. Paras 704 and 705 thereof read thus:
"704. Traps (i)-(iv) * * *
(v) 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.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the Department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are government employees and of other departments.
(e) After satisfying the above conditions, the investigating officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the SP, SPE, is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the SPE or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
(vi)-(vii) * * *
705. 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 Railways 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.
All employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or branch. The Head of Branch should detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action.
(b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the investigating officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the GC notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the GD notes to the decoy will be prepared for making over the GC notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and investigating officer/Inspector. The independent witnesses will take up position at such a place where from they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the investigating officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
(c)-(d) * * *"
11. The trap was laid by the members of the Railway Protection Force (RPF). It was a pre-arranged trap. It was, therefore, not a case which can be said to be an exceptional one where two gazetted officers as independent witnesses were not available.
12. Indisputably the decoy passenger was a constable of RPF. Only one Head Constable from the said organisation was deputed to witness the operation. The number of witnesses was, thus, not only one, in place of two but also was a non-gazetted officer. It was a pre-planned trap and thus even independent witnesses could have also been made available.
8. He has further relied upon an order of this Tribunal dated 25.01.2012 in OA No.725/2011 A.K. Tiwari Vs. U.O.I. through Secretary, Railway Board and Others. In the said case also, the Applicant therein was imposed with the penalty of removal from service based on the enquiry report conducted by the vigilance staff. The relevant part of the said order reads as under:-
4. Learned counsel for the applicant placed reliance on the following:-
(a) Rule 710 of the Commercial Manual and the order dated 12.02.2007 of this Tribunal passed in OA-508/2005 which enjoins that any excess amount recovered should not be utilized to cover any short collection elsewhere. If the amount involved is heavy, the matter should be investigated. The Tribunal while dealing with the subject observes that in the absence of allegations of illegal gratification or malafide gain made by an employee, excess amount recovered need not be held out against an employee.
(b) Order dated 08.04.2011 of the Principal Bench of CAT in OA-740/2010 to contend that an officer of the Vigilance Department could not have been appointed as an IO.
(c) Judgment/order of the Honble Supreme Court in the case of Moni Shankar Vs. U.O.I. & Anr., 2008(1)AJW 479 to contend that instructions of Paragraphs 704 and 705 of the Vigilance Manual when viewed in the context of other violations of Instructions would vitiate an inquiry.
(d) R.B.E. 89/2001 to contend that an IO should be impartial in his approach as he performs a quasi-judicial function. In support this contentions the learned counsel cites the case of the Honble Supreme Court in the case of U.O.I. & Ors. Vs. Prakash Kumar Tandon, (2009)1 SCC (L&S) 394.
(e) Judgment/order of the Honble High Court in WP(C) No. 1760/2008 in support of the contention that the charged official should be properly examined as provided under Rule 14(18) of CCS(CCA) Rules, 1965, or in the present case, under Rule 9(21) which is the corresponding provision in Railway Rules.
(f) Letter dated 13.07.1991 of the Railway board enjoining upon Disciplinary and Appellate Authorities to pass speaking orders.
XXX XXX XXX 10.1 The observations of the Apex Court in the case of Moni Shankar (supra) read as under:-
15. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do no create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. The infraction of executive instructions of the Vigilance Manual by itself, may not vitiate a disciplinary proceeding, but its effect in combination with other factors have to be taken into account. The decoy passenger admittedly was a group D employee; he was a Porter and had worked as a decoy passenger earlier. He admits that he rushed out even if the other passengers in the queue told him that the applicant was calling him back. The so called independent witness had also participated earlier in raid cases. Admittedly, the raid did not follow instructions of Vigilance Manual. These together with the non-consideration of defence plea made out on the basis of evidence of prosecution witnesses make the finding of the IO and the penalty orders based thereon unsustainable.
11. For the aforesaid reason, the impugned orders are unsustainable and accordingly set aside. The applicant shall be reinstated in service with consequential benefits. The O.A. is accordingly allowed. No costs.
9. The Applicant has also stated that the aforesaid order of this Tribunal was upheld by the Honble High Court vide its order dated 09.05.2013 in W.P. ( C) No.5392/2012 Divisional Railway Manager Vs. A.K. Tiwari and Others. The operative part of the said order reads as under:-
5. In the decision of the Supreme Court reported as 2008 (1) AJW 479 Moni Shankar vs. U.O.I & Anr. the Supreme Court held that infraction of the instructions contained in the Vigilance Manual by themselves may not be enough to vitiate the disciplinary proceedings but its effect in combination with other deficiencies has to be taken into account.1
6. Concededly, in paragraph 10.1 of the impugned decision the Tribunal has correctly noted the law declared by the Supreme Court in Moni Shankars case (supra).
7. In addition to the infraction of the instructions contained in Vigilance Manual, the Tribunal has further noted that the so called decoy passenger was a Group-D employee of the Indian Railways. He was a Porter. The Tribunal noted that the decoy had admitted that even on earlier occasions he had acted as a decoy passenger. We note that during cross-examination, the decoy passenger admitted that : ticket babu was calling him and even then he did not come back to the ticket babu because he had to hand over the ticket to the vigilance team.2
8. What is of greater importance is to note that the decoy passenger admitted that after he received the ticket which was preceded by he paying money to the respondent and as he has retraced his steps other passenger standing in the queue told him that the respondent was calling him back. Obviously the probable reason for the respondent calling back the decoy passenger was to return the excess fare which had been left behind. It is in this context that the act of a decoy passenger assumes importance.3
9. For, if the decoy is a lowly paid employee of the Indian Railways, the raiding party can always tell him to pay a larger sum and on receipt of ticket not take back the balance and return. For example, a raiding party may know that the fare to a particular destination is `450/-. The decoy may be told to hand over a note in the denomination of `500/- and after receiving the ticket retraced the steps. The person issuing the ticket would be left with an excess of `50/. The trap would succeed.1
10. This is why law has always placed emphasis on the fact that the trap witnesses should not be lowly paid street hawkers, vendors and porters etc. who are susceptible to pressure from the higher authorities.
11. As a Writ Court our concern would be whether the Tribunal has properly evaluated the issue of law and fact and not to re-appreciate the evidence.2
12. Finding that the approach of the Tribunal is in conformity with the law declared by the Supreme Court in Moni Shankars case (supra), we dismiss the writ petition but without any order as to costs.
10. Again he has relied upon an order of the Honble High Court of Delhi in W.P. ( C) No.18605-08/2004 U.O.I. and Others Vs. M.K. Meena wherein it has been held as under:-
We are conscious of the scope of judicial review in departmental proceedings under Article 226 of the Constitution of India is limited and we have examined the matter keeping in mind the legal position that this court cannot re-appreciate the evidence like the Appellate Court. The jurisdiction of this court would be to find out whether there is no evidence on record or whether on the evidence on record no person would come to the conclusion arrived at by the Inquiry Officer.
Further as noted above the two Gazetted officers were not associated as per requirement of paragraphs 704 & 705 of IRVM. No explanation has come on record in this regard despite the fact that it was a pre planned trap. It is not the case that it was an exceptional case where two Gazetted officers were not available. The provision of presence of two Gazetted officers at the time of trap has been laid down to obviate false cases. Even two independent witnesses were not associated at the time of trap.
In view of above discussion, no case is made out for interference of this court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed.
11. Further, he has stated that this Tribunal has again considered the same issue in OA No.1534/2012 Y.P. Singh Vs. UOI and Others decided on 17.01.2014. The relevant part of the said order reads as under:-
23. Further, it is seen that the Enquiry Officer Shri Aswani Kumar Sharma himself was working in the Vigilance Branch immediately before his nomination by the Disciplinary Authority. When the departmental enquiry was initiated at the instance of the Vigilance Department, the fairness and transparency in enquiry demands that the Enquiry Officer should be an independent officer. This is particularly so when the Respondent-Railway has no dearth of officers who were/are not part of the Vigilance Branch. The Railway Board itself vide its Circular No.RBE 89/2001 emphasized the need of the personality of the official conducting departmental enquiry to have impartial approach. The said Circular reads as under:-RBE No. 89/2001
Sub: Procedure to be followed in conducting departmental Inquiries and the role of the Inquiry Officer regarding.
[No.E(D&A)/2000 RG6- 60 dated 9-5-2001)] A case has come to the notice of this Ministry where, while conducting the inquiry in a disciplinary case, the Inquiry Officer examined the charged official in regard to the charges during the preliminary hearing(s) itself before examination of the Prosecution Witnesses. Also, though no Presenting Officer had been appointed, the Inquiry Officer prepared a written brief himself, purported to have been prepared by the Presenting Officer, and sent a copy of the brief to the charged official under his own signature. In the inquiry report also, under the heading oral arguments given from the Prosecution Side , the Inquiry Officer actually gave details of the questions put by him. The general conduct of the Inquiry Officer was also not befitting his role as an impartial authority, as he subjected the charged official to a searching cross-examination. In the said case, the appeal had to be disposed of in favour of the charged official solely on account of the improper manner in which the inquiry was conducted in gross deviation of the prescribed procedure, which had vitiated the proceedings.
4. The most crucial facet of the personality of the official conducting the departmental inquiry is his impartial approach, as he is performing a quasi-judicial function. His conduct must be above board so much so that he should not merely be impartial but also seem to be so, to ensure that the inquiry commands the confidence it deserves. This aspect assumes greater significance when there is no Presenting Officer. As it is not feasible to appoint Presenting Officers in majority of the inquiries, the Inquiry Officer has to examine/cross examine the witnesses including the defence witness to find out the truth in the charges.
4.1 It is desired that the position brought out in paras 2 and 3 above is brought to the notice of all concerned for their guidance and strict compliance so that the types of situation brought out inn para 1 above is avoided in future.
24. The Apex Court in its judgment in Prakash Tandon(supra),Lucknow Bench of this Tribunal in the case of Raja Ram Verma (supra) and the Principal Bench in the case of S. K. Saxena (supra) emphasized the need to hold disciplinary proceedings fairly and in accordance with the principles of natural justice. It has been held in those judgment/orders that the officers of the vigilance dispensation cannot be appointed as Enquiry Officer, particularly in those cases the disciplinary proceedings have been initiated at the instance of the Vigilance Department.
25. It is the settled position that in department proceedings, the Disciplinary Authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities (Apparel Export Promotion Council Vs. A.K. Chopra 1999 (1) SCC 759). Therefore, both the authorities have to apply their mind while passing orders. But in the present case, both the Disciplinary Authority and the Appellate Authority have been totally casual in their approach and upheld the order of punishment of removal from service passed against the appointment by an incompetent authority. In Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Others 2006 (4) SCC 713, the Apex Court has held as under:-
31. We may for the aforementioned purpose take note of the extant rules operating in the field. Requirements of consideration in an appeal from an order of the disciplinary authority by the appellate authority is contained in Rule 37 whereas the provisions as regards filing of a memorial are contained in Rule 40 thereof, which read as under:
"37. Consideration of Appeals- (1) In case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 20 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the other accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 23, the appellate authority shall consider:
(a) Whether the procedure prescribed in these Rules has been complied with and if not,whether such non-compliance has resulted in failure of justice;
(b) Whether the findings are justified; and
(c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders:
I. setting aside, reducing, confirming orenhancing the penalty; or II. remitting the case to the authority which imposed the penalty or to any otherauthority with such direction as it maydeem fit in the circumstances of the case.
"40 . Memorial - An employee whose appealunder these Rules has been rejected by theChairman/Chairman-cum-Managing Director or in whose case such appellate authority has enhanced the penalty either on appeal under Rule 24 or on review under Rule 39 (2) may address a memorial to the Chairman/Chairman-cum-ManagingDirector in respect of that matter within a period of a 6 months from the date the appellant received a copy of the order of such appellate authority."
32. The appellate authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule 2 of Rule 37 of the Rules. The judgment of the civil court being inter parties was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably came to a different conclusion having regard to the findings of the civil court. But, it did apply its mind. It could have for one reason or the other refused to take the subsequent event into consideration, but as he had a discretion in the matter, he was bound to consider the said question. He was required to show that he applied his mind to the relevant facts He could not have without expressing his mind simply ignored the same.
26. In the above facts and circumstances of the case, the OA is allowed. Consequently, we quash and set aside the impugned order dated 05.02.2010. The Respondents shall reinstate the Applicant in service with all consequential benefits. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.
12. The Applicant has stated further that the Disciplinary Authority was guided by the extraneous consideration while imposing the extreme punishment of compulsory retirement upon him and it has been wrongly upheld both by the Appellate Authority as well as the Revisional Authority. In all those aforesaid orders, the authorities have held that the Applicant was a habitual offender and on previous occasions also he was given punishment for the same offence. However, the learned counsel for the Applicant has submitted that the aforesaid past punishments has never been a part of the charge. She has also stated that such an order passed by the authorities concerned is in violation of principles of natural justice.
13. The Respondents have filed their reply stating that the Applicants statement was recorded in the Vigilance Branch, Baroda House, New Delhi on 25.04.2011. On being asked why he ignored the request of vigilance to get his manned coaches checked, he stated that he committed a mistake and would not repeat the same in future. However, with regard to 36 irregular passengers, he stated that he could not check the manned coaches due to his sickness. He further stated that he joined duty after fit certificate of doctor and could not inform abut his sickness to CIT/Commercial Control or any other higher officer. They have also stated that the vigilance team has requested the Applicant to cooperate with them but he refused to do so. He did not care and went away leaving the charts of his manned coaches. Due to his non-cooperative attitude, those unauthorized passengers were regularized by the vigilance team themselves. They have also stated the passengers told that they occupied the berths after confirming from the coach TTE but TTE did not come to check them.
14. Further, they have stated that the Enquiry Officer submitted his findings that the Charge No.I was partially proved and the second charge was fully proved. The copy of the said report was furnished to the Applicant and he submitted his representation. The Disciplinary Authority after having accepted the findings of the Enquiry Officer and considering the gravity of the charges proved and the fact that the Applicant was habitual of committing such offences, imposed upon him the punishment of removal from service. The appeal and revision preferred by him were also rejected after carefully considering them by the competent authorities. In this regard they have relied upon the judgment of the Apex Court in the case of Union of India and Others Vs. Bishamber Das Dogra 2009 (13) SCC 102 wherein it has been held as under:-
22. In Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8 SCC 656, this Court rejected the contention that unless the past conduct is a part of charge-sheet, it cannot be taken into consideration while imposing the punishment observing that "there can be no hard and fast rule that merely because the earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often necessary only to reinforce the opinion of the said authority. "
23. In fact in this case the argument had been advanced that if the disciplinary authority wanted to consider the past service record of the employee, it should be a part of charge-sheet. Though in K. Manche Gowda (supra), this Court said that it should be so indicated in the second show cause notice only for the purpose of imposing punishment. Thus it is not necessary that it should be, a part of the charge sheet.
15. We have heard the learned counsel for the Applicant Mrs. Meenu Mainee and the learned counsel for the Respondents Shri A.K. Srivastava. In our considered view, the Applicant was not given reasonable opportunity to defend his case as the enquiry was held in a very unfair manner. It is well settled that fairness is synonymous with reasonableness. Bias stands included in the attributes of unfairness and unreasonableness. Admittedly, the charges have been framed against the Applicant based on the report of the Vigilance Team after holding a preventive check but the Respondents have not observed the safeguards provided in paras 704 and 705 of the Railway Manual. In terms of para 705 ibid, there shall be at least two independent witness to support the report of the vigilance team. In terms of para 705 ibid, the investigating officer/Inspector should arrange two gazetted officers from Railways 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 utilized. The only two witnesses were Shri Sudesh Kumar Lathar, Chief Vigilance Inspector and Shri Trilochan Singh, STE,HQ. The first prosecution witness was a Vigilance Officer. Obviously, he had to support the version of the vigilance on the basis of which the charges have been framed against the Applicant. The Apex Court in its judgment in the case of Moni Shanker (supra) emphasized the need for the authorities to follow the prescribed sub-rule (21) of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 as well as paras 704 and 705 of the Vigilance Manual. The Apex Court has also held that though those instructions are to be substantially complied with.
16. We may also have a look at the evidence adduced against the Applicant during the enquiry proceedings and its sufficiency for the Enquiry Officer to arrive at the conclusion of his guilt. As held by the Apex Court in Moni Shankars case (supra), while re-appreciation of evidence is not within the domain of this Tribunal, an absurd situation emanating from the statement of a witness can certainly be taken note of. As far as the first charge is concerned, the Enquiry Officer himself held in its report that as per the PW-1 there was no documentary evidence to support the mala fide intention of the Applicant except that he had sufficient time of two hours to check his manned coaches which he did not check and did not inform his supervisors regarding his illness. Further, Enquiry Officer held that when the Vig. Team came in S-2 coach, CO was sitting and there was crape bandage across his shoulder and neck and this fact was also confirmed by PW-1 in reply to Q-10 and for the said reason he could not check his allotted coaches up to HPU and the 13 passengers have entered those coaches from DSA and 5 passengers from GZB. The Enquiry Officer has also held that the CO had neither allowed any passenger to enter the coaches nor any passenger had stated during the check that TTE had already checked those coaches. Therefore, the charge that CO was carrying 36 irregular passengers is factually incorrect. The Enquiry Officer repeated in his order that no passenger had made any complaint against the Applicant for taking any money from them and accordingly he was free from any charge of mala fide intention. The second prosecution witness has not tendered any other evidence against the Applicant. He has, in fact, agreed with the first prosecution witness and stated that none of the passengers made any complaint against the Applicant that he accepted any money without issuing EFT, he did not refuse to hand over his EFT to the vigilance team and seat reservation chart for check and did not create any sort of hindrance during check of S-2 and S-3 coach. It was also stated that the Applicant was with the vigilance team at the initial stage but it was only later he left the coach. In our considered view, as is evident from the Enquiry Officers report itself, though he was convinced that the Applicant did not commit any misconduct as alleged against him, yet in an arbitrary manner, held that the first charge was partly proved and the second charge has been proved. Being a vigilance official himself, he could not submit an impartial report in respect of the charge levelled against the Applicant by his own vigilance department. The Apex Court in the case of Prakash Kumar Tandon (supra) held that 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. The same issue was considered by the Apex Court in the case of Jagdish Prasad Saxena Vs. State of Madhya Bharan (now Madhya Pradesh) AIR 1961 SC 1070 and it was held as under:-
2. The departmental enquiry is not an empty formality; it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services.
In its judgment in State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) SCC 772 also the Apex Court has held in similar manner. The relevant part of the said judgment reads as under:-
27. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
17. The Appellate Authority and the Revisional Authority have also not ensured that the procedure laid down in the rules which are in consonance with the principles of natural justice are followed by the Enquiry Officer and the Disciplinary Authority. There was no finding neither by the Appellate Authority nor by the Revisional Authority as to whether findings of the Disciplinary Authority and the penalty imposed were warranted by the evidence on record. Instead, the main emphasis of all the authorities including the Disciplinary Authority was on the past record of the Applicant. As held by the Apex Court in the case of Bishamber Das Dogra (supra), before taking the past record of the Applicant, at least for the purpose of imposing the penalty, the Applicant should have been given a show cause notice indicating the earlier misconduct thereby giving an opportunity to him to explain as to why they should not be considered again. But the Disciplinary, Appellate and Revisional Authorities have simply stated in their orders that the Applicant had a past record of misconduct without considering their details.
18. We, in the above facts and circumstances of the case, we allow this OA and quash and set aside the Charge Memorandum dated 24.06.2011, Enquiry Officers report dated 28.11.2011, orders of the Disciplinary Authority dated 07.05.2012, Appellate Authority dated 12.09.2012 and Revisional Authority dated 18.06.2013 with all consequential benefits. The Respondents shall also pass appropriate orders complying with the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh