Central Administrative Tribunal - Mumbai
Dated This Wednesday vs Union Of India Through on 29 August, 2012
1 O.A. No. 417/2007 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH ORIGINAL APPLICATION NO.: 417 of 2007 Dated this Wednesday, the 29th day of August, 2012. CORAM : Hon'ble Shri R. Satapathy, Member (A). Hon'ble Smt. Chameli Majumdar, Member (J). S. K. Dutta, R/at : Flat No. 207, Shantivan, 2nd floor, near Holy Cross School, Chikanghar, Kalyan (W), District Thane. ... Applicant. (By Advocate Shri Ramesh Ramamurthy, along with Shri Sai Kumar) VERSUS 1. Union of India through the General Manager, Central Railway, CST, Mumbai 400 001. 2. The Chief Commercial Manager (Catering), Central Railway, CST, Mumbai 400 001. 3. The Additional Divisional Railway Manager (S), O/o. The DRM (C), Central Railway, CST, Mumbai 400 001. 4. The Sr. Divisional Commercial Manager, Central Railway, Mumbai Division, O/o. DRM, CST, Mumbai 400 001. 5. The Divisional Commercial Manager, (COG), Central Railway, Mumbai Division, O/o. DRM (C), CST, Mumbai 400 001. ... Respondents. (By Advocate Shri R. R. Shetty) 2 O.A. No. 417/2007 O R D E R
Per : Smt. Chameli Majumdar, Member (J).
The applicant in this case is a dismissed employee of the Western Railway, who was lastly working as Sr. Booking Clerk at Mulund Railway Station in Central Railway. The applicant came before this Tribunal after he received the order dated 24.06.2002 passed on his mercy appeal, which he received on 17.04.2007. The applicant has challenged the order of punishment dated 26.02.2001, the order of the appellate authority dated 12.04.2001 and the order of the revisional authority dated 31.07.2001. It appears from the roznama order that the M.P. for condonation of delay was allowed by this Tribunal taking into consideration the limitation from the date of the communication of the order on his statutory mercy appeal.
2. Very briefly stated, the facts of the case are that a charge memorandum dated 16.07.1998 was issued to the applicant. In the covering letter to the charge memorandum, one of the endorsement was to the General Manager (Vigilance) with reference to the Vigilance letter dated 15.06.1998.
3. It appears from the charge memorandum that the following two charges were framed against the applicant :
3 O.A. No. 417/2007"Article-I That said Shri S. K. Datta was found with 27 old and used tickets in his possession out of which twelve tkt were purchased by him from Decoy Passenger by paying Rs. 22/-(Twenty Two) for re-sale and for his pecuniary gain to deprive the Rly. its due revenue.
Article-II That the said Shri S. K. Datta was found having short of Rs. 79/-(Seventy Nine) in his Rly. Cash as against the actual DTC cash of Rs. 7999/-(Seven Thousand Nine Hundred Ninety Nine).
Thus by his above acts of omission and commission Shri S. K. Datta failed to maintain absolute integrity, devotion to duty and acted in manner unbecoming of a Rly. Servant and thereby contravened the provision of Rule 3.1(1), 3.1(ii) and 3.1
(iii) of Rly. Services (Conduct) Rules, 1966.
4. The applicant challenged the entire disciplinary proceedings starting from the charge sheet to the order on mercy appeal on the ground that the respondents did not take into consideration the inconsistencies and contradiction in the evidence of the prosecution witness. The findings of the Inquiry Officer is wholly perverse and not based on cogent evidence. The Disciplinary Authority, the Appellate Authority and the Revisional Authority merely agreed to the finding of the Inquiry Officer without assessing independently the evidence adduced by the Prosecution Witnesses and Defence Witnesses. The orders passed by the Disciplinary Authority, Appellate Authority and 4 O.A. No. 417/2007 Revisional Authority are wholly mechanical and reflect total non application of mind. The applicant consistently maintained that the old and used 12 tickets were not found in his counter. The 27 tickets which were reportedly found from his cupboard was not listed as relied upon documents. Those tickets and Rs. 22/-statedly kept within a sealed cover was not produced before the enquiry. There was no independent witness. The decoy passenger and the so called independent witness were RPF Constables. The statement of the decoy passenger was recorded by the Vigilance Inspector after four months from the date of the vigilance check. The applicant's statement was also recorded after seven months from the date of vigilance check. The applicant's contention was that the entire action was taken on the dictate of the vigilance. The endorsement and the covering letters both in the charge sheet and the punishment order show that the entire exercise of holding a disciplinary enquiry against the applicant was initiated at the instance of the Vigilance authority only and it was not a independent decision of the Disciplinary Authority. Even the order which appears in the note and is Annexure-12 to this O.A. shows that in spite of Revisional Authority's modification of the penal 5 O.A. No. 417/2007 order to reduce the penalty from removal to reducing pay by four stages in the same time scale for a period of three years with cumulative effect was not accepted by the vigilance authority and the penal order of removal remained in the order of the revisional authority.
5. The applicant thereafter preferred a mercy petition under Rule 402 of Indian Railway Establishment Code (Volume-I) wherein the applicant prayed before the authority to consider the records and the various appeals and petitions. The applicant specifically mentioned that he signed one document called joint memo at Exhibit P-5 under torture and threat by the vigilance party and at the dictate of the Chief Vigilance Inspector (C.V.I.), Shri S.N. Tiwari, who himself was most corrupt officer and was facing CBI prosecution and was under
suspension. The joint memo was prepared by Vigilance Team. He was neither allowed to read nor he read the memo. He further contended that from perusal of the joint memos (exhibit-5) it revealed that initially it was mentioned that the following tickets were found in booking office. However, at the end of para 1, one sentence had been added later after obtaining signatures that these tickets were kept by him on window.. Thus, it could be seen 6 O.A. No. 417/2007 that his statement was contrary in nature and the manipulation was done by Shri S. N. Tiwari. However, the mercy appeal was rejected.
6. The applicant next contends that after conclusion of the oral evidence, the applicant was denied the opportunity to explain the circumstances appearing against him in the evidence, as contemplated in sub-rule 21 of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968,
7. The respondents, apart from taking the point of limitation, denied that the disciplinary authority was swayed or was pressurized by the Vigilance Department to issue the charge sheet to the applicant. With regard to denial of opportunity, as envisaged under Rule 9(21), respondents have stated that even a statutory requirement, if not met, does not ipso facto lead to vitiation of disciplinary proceedings unless the test of prejudice is satisfied. The Joint Test Memo was signed by the applicant as well as the defence witness which categorically proves that the old and used tickets were purchased by the delinquent employee from the decoy passenger. The disciplinary authority, while accepting the enquiry report, held the charges against the applicant as proved on the basis of preponderance of probability. The Hon'ble 7 O.A. No. 417/2007 Apex Court in a catena of judgment clearly and categorically laid down that when the disciplinary authority or appellate authority is accepting the inquiry report or the order of the disciplinary authority, no further speaking order need be passed.
8. Learned counsel for the respondents relied on the following judgments.
1. Sunil Kumar Banerjee Vs. State of West Bengal [1980 (3) SCC 304[.
2. Managing Director, ECIL, Hyderabad Vs. B. Karunakar [1993 (1) SC SLJ 444].
3. Orissa Mining Corporation & Anr. Vs. Ananda Chandra Prusty [1996 (11) SCC 600].
4. O.A. No. 671/2002 decided on 24.10.2003 by Bombay Bench of this Tribunal.
5. O.A. No. 216/2004 decided on 10.03.2006 by Bombay Bench of this Tribunal.
6. U.P. SRTC Vs. Mahendra Nath Tiwari & Another [2006 SCC (L&S) 61]
9. We have heard Shri Ramesh Ramamurthy, Learned Counsel for the applicant and Shri R. R. Shetty, Learned Counsel for the respondents and also perused the pleadings and documents.
10. It appears from the report of the Inquiry Officer that Inquiry Officer, Shri K. N. Kutty, is an Assistant Engineer (TM)(Part-time Vigilance). The disciplinary action was initiated against the applicant on the basis of vigilance enquiry. The 8 O.A. No. 417/2007 disciplinary authority should not have appointed a vigilance person as an Inquiry Officer. R.Bs. No. PC-60/CCA dated 15.03.1961'se/107/71 says that in the interest of justice and fair play, it is imperative that only a disinterested official should be appointed as an Inquiry Officer.
11. From the Memorandum of Charge it appears that there were five listed witnesses, namely 1. Shri M. K. Arora, CVI (T), CSTM.
2. Shri S. N. Tiwari, CVI (TA), CSTM.
3. Shri Dilip Kumar Gautam, RPF CT No. 1257 DSC (R), CSTM.
4. Shri S. K. Mishra, RPF CT No. 2093 DSC (R) CSTM.
5. Shri P.S. Tiwari, RPF HCT No. NIL DSC (R) CSTM.
Out of these listed witnesses, 2, 3 and 4 deposed in the enquiry. Shri Dilip K. Gautam is the decoy passenger. Shri S. N. Tiwari is the Vigilance Inspector. Shri S. K. Mishra, RPT Constable, is the only one independent witness. From the charge memorandum it will appear that only Shri S. K. Mishra, RPF Constable, was mentioned as an independent witness. But Shri S. K. Mishra, R.P.F. Constable, was a part of Vigilance Team. PW.1 and PW.5 never appeared to depose. Ultimately they were dropped.
12. From the perusal of the evidence vis-a-vis 9 O.A. No. 417/2007 the enquiry report, it appears that the finding of the Inquiry Officer even in respect of the part of Charge-I is not based on evidence. The Inquiry Officer held that by considering the facts of the written statement of the decoy passenger as well as independent witness and also shortage of railway cash, it was concluded that Shri S. K. Datta had accepted the 12 tickets in exchange of Rs. 22/-. Therefore, admitted position is that the Inquiry Officer did not consider the oral evidence. It appears from the evidence of P.W.I being the decoy passenger and the independent witness, Shri S.K. Mishra, that the star prosecution witness, Shri Dilip Kumar Gautam, being the decoy passenger, did not identify the delinquent official to whom he was alleged to have sold tickets. From the evidence of P.W.3 and P.W.4 it is established that at the time of vigilance check, Shri Dilip Kumar Gautam was not present although PW-2 stated in his evidence that Shri Dilip Kumar Gautam was present at the time of vigilance check and identified the applicant.
13. The relevant question being Question No. 6and answer from the cross examination to Shri Dilip Kumar Gautam, P.W.3, is set out herein below :
Q.6 Is it true that you were not present at the time of checking of thecounter and it was the job of vigilance.10 O.A. No. 417/2007
Ans. I was not present in side the booking office (Counter) during the checking being done by Vigilance. In this regard, it is also relevant to set out the part of the depositions of Shri S. K. Mishra, PW-4, which is set out below :
Q.No. 15. Please state who were present when the check was conducted andwhen the cupboard was opened.
Ans. Except Mr. Gautam other personsof the Vigilance team was their.
Q.No. 17 Please state was there anyindependent witness other than the vigilance team during the check and opening of the cupboard?
Ans. There was one booking clerk working in another counter.
Q.No. 22. I, put it to you that the tickets were planted by the VigilanceInspectors to entangle Shri S. K. Datta. Do you have any independent witness other than the Vigilance team to denythe allegation?
Ans. Other than the Investigating team there was no other independentwitnesses.
Cross examination of Shri S. K. Mishra by ARE is over to reexamination by E.O. Hence evidence of Shri S. K. Mishra is concluded.
The Inquiry Officer failed to appreciate the inconsistence and contradiction in the evidence of PW.2, the Chief Vigilance Inspector and PW.3, the decoy passenger as well as PW.4. In this regard Part of the statement of Imputation is set out :11 O.A. No. 417/2007
"Shri Dilip Gautam was confronted with Shri S. K. Datta, Sr. BC in presence of Vigilance team and CBS Shri S. P. Joshi, Shri Dilip Gautam Decoy Passenger, recognized and identified the B.C. Shri S.K. Datta, Sr. B.C. Who returned Rs. 22/-by accepting 12 printed card ticket and the same was confirmed by the independent witness. During vigilance check 15 (Fifteen) old and used II/O/R Card ticket also found in the steel cupboard lying behind the window No. 4 CT. A joint memo dtd. 8.9.97 was drawn on the above aspect giving detail of 15 old and used ticket found in the steel cupboard in presence of Shri Datta, Sr. BC and Shri Joshi, CBS, CMBR. Thus, the source information was found to be true."
The Inquiry Officer should have held that prosecution failed to prove that Dilip Gautam either confronted S. K. Datta, C.E. or recognized or identified him since he was not present.
14. The Inquiry Officer himself has come to the finding that the Part II of the Charge No. 1 that 15 used tickets were found in the cupboard lying near Window No. 4 wherefrom the applicant was selling the tickets could not be proved. Therefore, the Article No. I that the applicant "was found with 27 old and used tickets in his possession and out of which 12 tickets were purchased by him from a decoy passenger by paying Rs. 22/-for resale and for his pecuniary gain" did not have any leg to stand in view of the finding of the Inquiry officer, that the possession of 15 used tickets could not be proved inasmuch as according to the charge memo the 12 tickets were only out of those 27 old and used tickets.
12 O.A. No. 417/200715. The applicant, in his written defence as well as his representations to the authorities mentioned that the charge of resale and his pecuniary gain were not proved at all since his private cash was same as it was when he entered for work.
16. With regard to Article-II, i.e. Shortage of Rs. 79/-which has been held to be proved by the Inquiry Officer is also not supported by the evidence of the defence witnesses, being the Chief Booking Supervisor. Since the possession of 15 used tickets was not proved and the alleged exchange value of 12 tickets was only Rs. 22/-therefore the finding with regard to shortage of Rs. 79/-is also based on no evidence.
17. The applicant consistently in his written brief, his representation against the report of the Inquiry Officer, in appeal as well as in revision and mercy petition stated the following facts :
(A) No tickets were found in my counter and I have stated this fact in my statement recorded by the Vigilance Inspector. In spite of specific question put to the Prosecution Witnesses, no one deposed that he found the ticket in my counter. (B) Neither the ticket nor the money, which according to the prosecution cases were kept in sealed cover, were not listed 13 O.A. No. 417/2007 documents and were not produced in the enquiry.
(C) The Inquiry Officer considered the written statement of the decoy passenger and so called independent witness but did not consider the oral evidence which failed to prove the prosecution case in view of gross inconsistency and contradiction in their evidence. It is established from their evidence that neither any independent witness nor decoy passenger was there at the time of vigilance check. P.W.1 and P.W.5 did not appear and they were dropped from the list of witnesses during the pendency of the enquiry.
(D) There was no excess amount either in my private cash or railway cash. (E) PW.2, the Chief Vigilance Inspector, at whose instance the entire episode took place, was still under suspension and being prosecuted by the CBI. Hence, finding of the Inquiry Officer on the basis of his evidence cannot be relied upon. That apart, PW.2 admitted that he was not an eye witness for the alleged purchase of ticket from decoy passenger, PW.3, for Rs. 22/-. (F) The shortage of Rs. 79/-was made good by way of private cash. It is permissible under the Railway Manual.
Defence Witness explained the cause of shortage.
(G) Exhibit P-5, Joint Note at para I says that following tickets found in the booking office during vigilance check in presence of following signatories That 14 O.A. No. 417/2007 tickets were kept by him on window was incorporated later on after the document was signed by the signatories. The wording of the sentence was incomplete. This is also evidence from spacing of lines and it also does not say who found the tickets. Then the Inquiry Officer himself observed that other than Vigilance Team no other independent witness was present at the time of vigilance check. Exhibit P-5 was retained by PW.2 and forced the applicant to sign. CVI PW.2 planted the tickets to entangle me.
(H) For the reasons best known to the Chief Vigilance Inspector, the statement being exhibit-7 and exhibit-8 were recorded on 07.01.1998 after four months of the said check. My statement was recorded on 01.04.1998, after seven months.
18. The applicant in this O.A. annexed a letter dated 13.07.2001 of Vigilance Board, which shows that the proposed penalty of the Revisioning Authority being reducing his pay by four stages in the same time scale for a period of four months with cumulative effect was not accepted by the Vigilance and the penalty of removal from service was imposed.
19. In the mercy petition under Rule 402 of Indian Railway Establishment Code against the penalty order of removal from service, the applicant has stated as follows :
15 O.A. No. 417/2007Sir, I have been removed from service without any speaking orders to the fact by the disciplinary authority DCM (Cog) Mumbai. Both the Sr. DCM the appealing authority and ADRM (S) have ignored this vital fact. I enclose copy of the said speaking order for your honours perusal you may kindly consider how far this is fair and judicious.
Sir, I will not add anything more about the merits of the case as your honour may see from the records of the various appeals and petitions. I have cut my hands and blocked all evidences by a mere signature on one document called joint memo at Exh. P/5 under torture and threat by the vigilance party the main reporting party i.e. C.V.I. Shri S. N. Tiwari, who was the most notorious and corrupt official. You may verify the fact that Shri Tiwari was trapped by CBI and facing prosecution. The joint memo was prepared by vigilance team who neither allowed me to read nor or I was read the memo. I was misinformed that everything would be OK and I just had to sign.
Sir, a perusal of this joint memo will reveal that initially it is mentioned that the following tickets were found in the booking office however at the end of para I, one sentence has been added later on after obtaining the signatures that these tickets were kept by him on window thus it can be seen that this statement is contradictory in nature and original records will clearly reveal the manipulation done by Shri S. N. Tiwari.
Sir, the main allegation against me was that I had purchased 12 tickets for Rs. 22/-and as per proceedings this Rs. 22/was kept in a sealed cover, thus the tickets and this money becomes material piece of evidence to sustain the charge, however neither this evidence has been cited as a Relied upon document in Annexure-III nor were they produced or called for by the enquiry Officer. Sir, you will agree with me that under the circumstances the charge cannot be sustained. I request your goodself to give me a personal hearing so that I can explain more vividly.16 O.A. No. 417/2007
Sir, I had put up sixteen years of service in the railways without complaint. I have two little kids and wife to support. At this age I am not even fit for any job except present one. Now I am out of job for the last one year and have come at the verge of starvation. I had to pull out my kids from school and not even able to give them milk and food. I am completely devastated and broken man.
Sir, with this mercy petition, I humbly beg your honour with folded hands to be benevolent and give me job in any capacity so that I can take care of my family and kids who are suffering misery on account of my condition. Me and my family will ever remain grateful to your honour.
20. Para 704 of the Vigilance Manual states that when laying a trap there will be two or more independent witnesses who must hear the conversation. Secondly, the witnesses selected should be responsible witnesses who have not appeared as witness in the earlier case of the department or the police and they will be man of status considering the status of the accused. Para 705 says that the Investigating Officers/Inspectors should arrange two gazetted officers from Railways to act as independent witness as far as possible.
However, in certain exceptional cases where two gazetted officers are not available immediately, the service of non gazetted staff could be utilized.
The Hon'ble Supreme Court in the case of Moni Shankar Vs. Union of India & Another [2008 (1) SCC (L&S) 819] has held that appropriate safeguards have been provided in 17 O.A. No. 417/2007 the Railway Manual which includes paragraphs 704 and 705 to protect the innocent employees from such traps. Paras 704 and 705 are set out herein below :
"704. Traps
(i) ...
(ii) ...
(iii) ...
(iv) ...
(v) When laying a trap, the following important points have to be kept in view:
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 S.P., S.P.E., 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 S.P.E. or local police official have been entrusted with the work, all arrangements for laying the trap and execution 18 O.A. No. 417/2007 of the same should be done by them. All necessary help required by them should be rendered.
(vi) ...
(vii) ...
Departmental Traps For Departmental traps, the following instructions in addition to those contained under paras 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 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 G.C. 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 G.D. notes to the decoy will be prepared for making over the G.C. 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 19 O.A. No. 417/2007 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 s a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
(c) ***
(d) ***
21. From the record it appears that the decoy passenger was a constable of the Railway Protection Force on the basis of whose deposition or evidence the Inquiry Officer came to the finding that part of the Charge No. I was proved. The independent witness, as mentioned in the charge memorandum, is also a constable of Railway Protection Force. Therefore, it appears that while conducting the disciplinary enquiry, the authorities deviated from the Railway Vigilance Manual. In the above mentioned case the Hon'ble Supreme Court clearly held that though assumption could be drawn that paras 704 and 705 of the Railway Vigilance Manual, being executive instructions, do not create any legal right, yet it should be emphasized that total violation of the guidelines together with other facts could be taken into consideration for the purpose of arriving at a conclusion as to whether 20 O.A. No. 417/2007 the department has been able to prove the charges against the delinquent official.
22. There are certain admitted facts (
i) The trap was laid by the members of the Railway Protection Force. It was an prearranged trap. It was, therefore, not a case which could be said to be an exceptional one where two gazetted officers as independent witnesses were not available.
(ii) Undisputedly, the decoy passenger was a constable of RPF. Only one constable of RPF from the said organization was deputed to witness the operation. The number of witnesses was thus not only one in place of two but also a non gazetted officer. It was a pre-planned trap and thus even independent witnesses could have also been made available. The safeguards provided in the manual is to avoid false implication of a railway employee, therefore, the procedures laid down therein could not be given complete go by. In Moni Shankar's case (supra) the Hon'ble Supreme Court has held that the onus was not upon the applicant to prove any bias against RPF but it was for the department to establish the charges levelled against the appellant.
23. In the instant case, the Inquiry Officer acted 21 O.A. No. 417/2007 in violation of the relevant provisions of Railway Servants (D & A) Rules, 1969. In Moni Shankar's case it has been held by the Hon'ble Supreme Court that sub-rule 21 of Rule 9 is imperative. The Railway servant must get an opportunity to explain the circumstances appearing against him. In this Railway servant closes his case, and shall, case this opportunity has been denied to the applicant. Sub-Rule 21 of Rule 9 is set out herein below :
"The inquiring authority may, after the if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances as appearing in the evidence against him."
24. The Inquiry Officer failed to take into consideration the inconsistence in the evidence of PW-2 and PW-4 with regard to the presence of the witnesses, i.e. PW.3, being the decoy passenger at the time of vigilance check as well as identification of the Charged employee by the said PW.3, who himself deposed that he was not present at the time of vigilance check. The finding of the Inquiry Officer is totally contrary to the evidence of PW.3, the decoy passenger, in his cross examination as mentioned in paragraph 13 above.
25. There is another infirmity in the finding of the Inquiry Officer. It is not permissible to come 22 O.A. No. 417/2007 to the finding by the Inquiry Officer by splitting up Charge No. I and holding one part proved and other part not proved. The charge No. 1 is a composite one and framed by the Disciplinary Authority. Therefore, Inquiry Officer had no authority to split the charge and come to any finding. That apart, factually the alleged two parts of Article No. I are interlinked and cannot be divided by the Inquiry Officer to prove the C.E. Guilty of one part and not guilty of other part.
26. The Inquiry Officer, in his finding, bifurcated the Charge No. I into two parts and came to a finding that Part I(a) was proved and Part-I(b) was not proved. The finding of the Inquiry Officer is as follows :
FINDINGS Case of Shri S. K. Datta Article I (a) -Proved Article I(b) -Not proved.
Article II -Proved sd/( K. N. Kutty) ASST. ENGINEER (TM) ENQUIRY OFFICER (PART TIME VIGILANCE) C. RLY., MUMBAI CST.
27. It is the settled law that the Inquiry Officer cannot split one charge framed by the 23 O.A. No. 417/2007 Disciplinary Authority and come to his own finding in respect of one part of the charge. The Hon'ble High Court at Calcutta in the case of Bank of India Vs. Tapan Kumar Sheel [2007 (3) LLJ 934] held as follows :
"Undisputedly, charges can be framed by the disciplinary authority and not the Inquiry Authority. The Inquiry Authority is required to enquire into the charges already levelled against the concerned employee by the disciplinary authority and specifically mentioned in the chargesheet. Therefore, the charges mentioned in the charge-sheet cannot be split into different ingredients by the Enquiry Authority as has been erroneously done in this case."
28. The finding of the Inquiry Officer based on such inconsistent of P.W.2, which is totally contrary to the evidence of other P.Ws., liable to be set aside.
29. Sub-rule 5 of Rule 10 of the Railway Servants (Discipline & Appeal) Rules, 1968, says (5) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 6 should be imposed on the Railway servant, it shall make an order imposing such penalty and it shall not be necessary to give the Railway servant any opportunity of making representation on the penalty proposed to be imposed :
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Railway servant. 24 O.A. No. 417/2007
30. Therefore it is evident that Disciplinary Authority has come to its finding on each charge after assessing the evidence adduced by Pws and Dws during the enquiry. Following is the relevant extract of the order of Disciplinary Authority. The speaking order also speaks a volume of the total non application of mind of the disciplinary authority.
The final order of the Disciplinary Authority is set out herein below :
I have carefully gone through Enquiry Report, the findings of the Enquiry Officer and your representation in reply to the Enquiry Report supplied to you vide this office letter of even No. dt. 20.10.2000. The Enquiry Officer has held you guilty for the charges levelled against you and I have accepted the findings of the Enquiry Officer and decided to impose upon you the penalty of Removal from service..
You are, therefore, removed from the service with effect from 15.03.2001 or from the date of receipt of this letter, whichever is earlier.
A copy of the speaking order is enclosed with the letter. SPEAKING ORDER I have gone through the charges framed against Shri S. K. Dutta, Enquiry report, findings of the Enquiry Officer and explanation submitted by Shri Dutta dt. .
12.2000 Two charges have been framed against Shri Dutta, out of which the 1st part of Article of Charge 1 has been proved by the Enquiry Officer but the second charge has not been proved. The charge under Article 2 has been proved by Enquiry Officer. 25 O.A. No. 417/2007
31. According to Rule 22 (2) of the Railway Servants (Discipline & Appeal) Rules, 1968, it is incumbent upon the appellate authority to consider the appeal in the following manner :
22. Consideration of appeal.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider :
(a) Whether the procedure laid down inthese rules has been complied with, and ifnot, whether such non-compliance has resulted in the violation of any provisionsof the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by theevidence on the record; and
(c) whether the penalty or the enhancedpenalty imposed is adequate, inadequate orsevere; and pass orders (
i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhancedthe penalty or to any other authority with such directions as itmay deem fit in the circumstances ofthe case.
32. Neither the Disciplinary Authority nor the Appellate Authority applied their mind at all while confirming the finding of the Inquiry Officer. The Railway Servants (Discipline & Appeal) Rules, 1968, envisage that the Disciplinary Authority has to come to its independent finding on all the charges after 26 O.A. No. 417/2007 assessing the evidence and considering the representation of the delinquent employee against the report of the Inquiry officer. The Disciplinary Authority has an adjudicatory responsibility to go into the pros and cons of the entire matter before inflicting the major punishment of dismissal or removal.
33. The Hon'ble Supreme Court in catena of decisions have held that disciplinary authority exercises quasi-judicial power to appreciate the evidence of finding on each of the charges and disciplinary authority has to arrive at its independent conclusion after proper analysis of evidence of the prosecution and defence witnesses as well as the documents. The decision of the Disciplinary Authority must be supported by evidence. The Hon'ble Supreme Court in the case of Managing Director, ECIL Vs. B. Karunakaran (give citation), which has also been relied upon by the respondents stated that Inquiry Officer goes further and records his finding, as stated above, it may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its 27 O.A. No. 417/2007 conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the inquiry officer and the representation of the employee against it. Therefore, in the order of the Disciplinary Authority there should be reflection of the proper application of mind, discussion of the evidence and other materials like Inquiry Officer's report and representation of the charged employee in the final order which imposes a major penalty on the charged employee.
34. The Hon'ble Supreme Court in no uncertain terms in a catena of decision has held that the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules have graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is, necessarily the maximum or the minimum. Based 28 O.A. No. 417/2007 on the facts, circumstances, nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogized but could be visualized. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the Tribunal to consider on merits, not as court of appeal but within the parameters of supervisory jurisdiction and to give appropriate relief.
35. It is the settled position that appellate authority in a disciplinary proceedings acts in a quasi judicial capacity and the order passed by it has to be a reasoned one showing application of mind to the question raised by the appellant and if that is not done, the appellate order is vitiated.
36. In a case reported in 2008 (3) SCC 469 29 O.A. No. 417/2007 [Divisional Forest Officer Vs. Madhusudanrao) non application of mind is manifest where an appeal against order of dismissal passed by Disciplinary Authority, the Appellate Authority by simply adopting the language employed by the Disciplinary Authority refuses to interfere with the dismissal order.
37. In the case of Director Marketing Indian Oil Corporation Vs. Santosh Kumar [2006 (11) SCC 147] it has been held by the Hon'ble Supreme Court held that if the order of Appellate Authority is bereft of reasons, it would amount to violation of rules and natural justice.
38. In 2006 (4) SLR 566 [Hansraj Vs. Union of India (Delhi Division Bench) the Hon'ble Supreme Court held that the appellate authority while deciding a statutory appeal is not only required to give a hearing to the government servant but pass a reasoned order dealing with the contentions raised in the appeal.
39. From the appellate order it is evident that in the instant case the Appellate Authority while passing its order did not apply its mind or arrived at an independent finding on the basis of the materials like the depositions, the Inquiry Officer's report and the Disciplinary Authority's 30 O.A. No. 417/2007 order and the points raised in the appeal by the applicant.
40. It has been held by the Hon'ble Supreme Court in the case of Southern Railway Officers' Association Vs. Union of India [2009 (9) SCC 24 = AIR 2010 SC 1241] that in the context of Rule 18 and 19 of the Railway Servants (D & A) Rules, 1968 in a post decisional hearing by an Appellate Authority, such authority would also take into consideration material other than that which is available to a Disciplinary Authority The Hon'ble Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney [2009 (4) SCC 240] has held that it is the Appellate Authority's duty to give reasons while affirming the order of the Disciplinary Authority The Supreme Court has further proceeded to hold in the case of Forest Officer Vs. Madusudan Rao [2008 (3) SCC 469] that if the Disciplinary Authority has given an order with detailed reasons, it is also the duty of the Appellate Authority and Revisional Authority to give a reasoned order as the C.E. is entitled to know the mind of Appellate and Revisional authority in arriving at a reasonable decision. Detailed reasons need not be given but brief reasons should be given even if the order given by the authority below is affirmed, 31 O.A. No. 417/2007
41. In the instant case, neither the Appellate Authority nor the Revisional Authority have at all applied their mind although the severe punishment of removal has been imposed on the charged employee. Rule 25 (3) envisages that an application for revision shall be dealt with in a same manner as if it was an appeal under these rules. The Articles of charge levelled against the applicant is quasi- criminal in nature. The Hon'ble Supreme Court in the case of Commissioner of Police, Delhi & Others Jai Bhagwan [2011 (6) SCC 376] has held that suspicion cannot take place of proof. It is settled law that even in departmental proceedings, when charges of quasi-criminal nature are to be brought home to the delinquent, there must be substantive evidence to connect the delinquent to the alleged charge.
42. We are conscious about the scope of power of Judicial Review. The Hon'ble Supreme Court in a number of judgments have almost circumscribed the power of Judicial Review in disciplinary matters. It is not for the Court or Tribunal to judge the adequacy or reliability of the evidence. The Hon'ble Supreme Court in Moni Shankar's case (supra) held "the Tribunal is entitled to arrive at its own conclusion on the premise that the evidence adduced 32 O.A. No. 417/2007 by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirement o burden of proof, namely, preponderance of probability. If on such evidence, the test of doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere.
Doctrine of unreasonableness is giving way to the doctrine of proportionality. On certain aspects, even judicial review of facts is also permissible."
In the same judgment, the Hon'ble Supreme Court has held "The Tribunal was entitled to consider the question as to whether the evidence led by the Department was sufficient to arrive at a conclusion of guilt or otherwise of the delinquent officer. While reappreciation of evidence is not within the domain of the Tribunal, an absurd situation emanating from the statement of a witness can certainly be taken note of. The manner in which the trap was laid, witnessed by the Head Constable and legality of enquiry proceeding were part of decision-making process and, thus, the Tribunal was entitled to consider the same. It was only for the aforementioned purpose that Paras 704 and 705 of the Manual have been invoked. It may be that the said instructions were for compliance with by the Vigilance Department, but substantial compliance therewith was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on record for the purpose of arriving at a decision as to whether the normal rules or natural justice had been complied with or not."
43. The Hon'ble Supreme Court in series of decisions like State of Andhra Pradesh Vs. S. Sree 33 O.A. No. 417/2007 Rama Rao [AIR 1963 SC 1723], B.C. Chaturvedi Vs. Union of India & Others [1996 SCC (L&S) 80], Kuldeep Singh Vs. Commissioner of Police [AIR 1999 SC 677], etc., has restated the grounds of judicial review which, inter alia, are violation of principles of natural justice, violation of statutory regulations prescribing the mode of such enquiry, conclusion made by the authority is capricious that no reasonable person can arrive at such conclusion other than very similar to the ground as stated above. There is no absolute immunity where findings are found unsustainable.
44. It is worthwhile to reproduce two paragraphs of Moni Shankar Vs. Union of India & Anr. [2008 (1) SCC (L&S) 819] :
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not 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.
17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and 34 O.A. No. 417/2007 irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderence of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See State of U.P. v.
Sheo Shanker Lal Srivastava and Coimbatore District Central Coop. Bank v.Employees Assn.)
45. The learned counsel for respondents relied on O.A. No. 216/2004 [Shri Somesh M. Changrani Vs. Union of India & Others]. The distinguishing feature here is that the statements of the charged employee was recorded on the date of the incident and the vigilance check, i.e., 13.03.1999, and the Charged Employee could not give any explanation regarding possession of the tickets. Therefore, according to the Tribunal, in the said circumstances inference was to be drawn that those tickets were kept for resale only. The burden shifted to the applicant to show that he did not keep those tickets for resale and he did not give any sort of explanation regarding the possession of already sold and accounted ticket in question. In the instant 35 O.A. No. 417/2007 case, the applicant maintained that the sold tickets were not found in his counter and the tickets were planted by PW.3.
46. The veracity of the Joint Memo was also questioned by the applicant regarding interpolation in the joint memo after taking the signatures and that he was compelled to sign the memo under the threat and coercion by the Chief Vigilance Officer.
47. In O.A. No. 1997/2004 [K. K. Jatariya Vs. Union of India & Others], relied by the respondents, decided by the Principal Bench of this Tribunal at New Delhi, the charge was overcharging the decoy passenger and the disciplinary authority drew inference from the statement of PW.3 who reproduced the words of the Charged Employee while demanding excess money for berth. The Charged Employee was unable to account for excess money, so Tribunal on the preponderance of probability held that the Charged Employee was guilty. Referring to Moni Shankar's case (supra) the Principal Bench held that total violation together with other factors would be the test to exercise the power of judicial review.
48. In the case of U.P. SRTC Vs. Mahendra Nath Tiwari & Another [2006 SCC (L&S) 61] the charged employee was driving the bus unauthorizedly and gave no explanation with regard to possession of 12 used 36 O.A. No. 417/2007 tickets found in his possession. In the said case also, the finding of the Hon'ble Supreme Court is that the Conductor did not even try to explain the circumstances with regard to possession of used tickets.
49. In the case of of Mathura Prasad Vs. Union of India & Others [AIR 2007 SC 381] it has been held by the Hon'ble Supreme Court that "19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under sub-Rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review."
50. Therefore, in our view, all the Authorities failed to discharge this obligations before arriving at conlusion and imposing a major penalty of removal from service. The authorities ought to have appreciated the irregularities in the enquiry proceedings, perversity in the finding of the Enquiry Officer after analysing the evidence and non-compliance of the principles of natural justice. The Disciplinary Authority, the Appellate Authority and the Revisional Authority, all being quasi- judicial authorities, ought to have analyzed the 37 O.A. No. 417/2007 evidence, considered the inquiry report vis-a-vis the representation , appeal and revision petition of the applicant and then come to conclusion. The orders passed by these authorities are totally mechanical and reflects total non application of mind.
51. We, therefore, set aside the order of Disciplinary Authority, Appellate Authority, Revisional Authority as well as order passed in mercy appeal. We direct the Disciplinary Authority to consider the matter afresh with proper application of mind and pass final order within three months from the date of communication of the order.
52. The O.A. stands disposed of in terms of above directions. No order as to costs.
(Smt. CHAMELI MAJUMDAR) (R. SATAPATHY) MEMBER (J) MEMBER (A) os*