Central Administrative Tribunal - Mumbai
Raman Shyamji Gohil vs M/O Railways on 1 July, 2024
1 OA No.188/2014
CENTRAL ADMINISTRATIVE TRIBUNAL,
_ MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.188 OF 2014
Dated this Monday, the 01° day of July, 2024
CORAM: HON'BLE MS. HARVINDER KAUR OBEROI, MEMBER (J)
. HON'BLE SHRI RAJINDER KASHYAP, MEMBER (A)
Raman S. Gohil, Son of Shyamji M. Gohil,
Date of Birth:13.07.1990, Age : 44 years,
Working as : Jr. Booking Clerk, Tilak Nagar,
Central Railway, and residing at G/24,
~ Shree Suryakund Mahapurush Co-operative Housing Society,
Gunpowder Road, Mazagaon, Mumbai 400010. -- . - Applicant
(By Advocate Shri R.G.Walia)
VERSUS
4. Union of India, Through General Manager, Central Railway,
Headquarters' Office, CST, Mumbai 400 001.
2. Divisional Railway Manager, DRM's Office, Central Railway,
CST Mumbai 400 001.
3, Officer on Special Duty/(s) (OSD){S), (Revising Authority),
Divisional Office, Commercial Branch, CSTM, Mumbai 400 001.
4. . Sr. Divisional Commercial Manager (Appellate Authority) (Sr, DCM).
: Divisional Office, Commercial Branch, CST, Mumbai 400 001.
5. Divisional Commercial Manager (DCM), Disciplinary Authority,
Divisional Office, Commercial Branch, CST, Mumbai 400 001.
Page 1 of 20
2 OA No.188/2014
6. Shri P.Y.Kadam, Chief Inquiry Inspector (HQ), Respondent No.6
Working in Central Railway, Headquarters Office, CST,
Mumbai 400 001. - Respondents
(By Advocate Shri R.R.Shetty)
Reserved on 10.06.2024
Pronounced on ci.c 4.2024
ORDER
Per : Harvinder Kaur Oberoi, Member (J)
' The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 by seeking the following reliefs: | "8(a). This Hon'ble Tribunal may be pleased to call for the © records and proceedings which led to. the passing of the impugned orders i.e.
(i). Impugned Punishment Order dated 26.09.2012 .- passed by the Disciplinary Authority, Le Respondent No.5. | {ii} | Appellate Authority's order dated 12.2.2013.
(iii) Revisionary Authority's order dated 09.04.2013.
(iv) Inquiry Officer's Report dated 30.03.2012.
| ; passed by the Respondents and after going through its propriety, legality and. constitutional validity be pleased to quash and set aside the same with full consequential benefits. | Page 2 of 20 3 . "QA'No.188/2014
b) This Hon'ble Tribunal will be pleased to Order and direct the Respondents to grant all consequential benefits of back-wages, difference of salary, seniority, promotion by restoring the Applicant to his original position prior to issuance of the impugned punishment orders.
c} Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case. |
d) Cost of this Original Application be provided for."
2. The facts in brief are that the applicant was initially appointed as Booking Clerk serving in the respondents' office since 1991-1992. The next promotion post is that of Senior Booking Clerk. He'along with other candidates was considered for the promotional post and vide order dated 30.07.1996, the applicant came to be promoted. Although the common promotion order was passed, the same was not effected in the applicant's case. The applicant on coming to know that he had been promoted by the common order filed the Original Application No.407/2009 seeking promotion with effect from 30.07.1996. The said OA was allowed by the Tribunal by its order dated 15.11.2011.
However, in the meantime, on 26.08.2011 while working as a Senior Booking Clerk at Tilaknagar Station, the applicant was caught in the pre-
Page 3 of 20 4 , OA No.188/2014olanined trap / decoy check by the Vigilance Department of the Railways. The Vigilance Department conducted a pre-planned vigilance trap/decoy check and the applicant was charged with misconduct as laid out in the charge memorandum dated 43.10.2011 the following charges were alleged :
"ARTICLE-E:
On the basis of source information that booking clerks | working at Tilaknagar station are indulging in malpractices of taking extra money from passengers over and above the Railway dues, a decoy check was conducted to ascertain the veracity of source information. For this purpose the services of Shri Amarpal Mishra and Shri Moghlali H Badson were utilized as decoy passenger and independent witness respectively. Shri Amarpal Mishra was handed over marked . Govt. Currency notes of Rs.1110/- (One thousand one hundred and ten) for doing transaction with the booking clerk and was advised to obtain 03 Adult I] M/E tickets for Gonda and thereafter independent witness was instructed to witness the transaction taking place between decoy passenger and the booking clerk.
As instructed the decoy passenger and the independent witness approached Tilaknagar booking office at window no.01 and the decoy passenger asked for 03 Adult tickets for Gonda, the booking clerk whose name later found as Shri RS Gohil told the decoy passenger to give Rs.768/-. The decoy passenger handed over Rs.1000/- marked GC note to the booking clerk. The booking clerk gave three tickets for Gonda bearing nos.L980/76849, L938076850 & 198076851 costing Rs.236/- each total amounting to Rs.708/- and returned ~ Page 4of 20 -
pointing, : so 7S? ;Sad . S OA No.188/2014
change Rs.232/- against the required Rs.292/-. Thus overcharged Rs.60/- to the decoy passenger and booking clerk started dealing the next passenger. Decoy passenger asked the booking clerk after accepting the ticket. and balance amount i.e. "ho Gaya" to which booking clerk Shri Gohil nodded in affirmation. The whole transaction was witnessed - by Independent witness who was standing behind the decoy passenger. ---- | The matter of issue of such tickets and overcharging was reported to vigilance team by decoy passenger and independent witness and after ascertaining the overcharging the check on cash on hand was carried out. The statement of decoy passenger, independent ~ witness, confronted statement, joint note and seizure memo was prepared and all facts were recorded. © .
ARTICLE-II:
" After transaction with decoy passenger, the vigilance team entered the booking office and found that Shri Raman $ Gohil, Sr BC was manning counter no.01. The booking clerk was -- asked to close the counter and prepare Cash memo. After - tallying the cash memo with the ITC it was found that an - amount of Rs.98/- is excess in his Railway cash. He was having Railway cash of Rs.33411/-as againt the ITC amount of _ Rs.33313/-. Excess in Railway cash was then remitted in sundry vide MR no.L9807698 dated 26.08.11 Such an excess cannot be without overcharging the passengers above the prescribed fare. 7 .
Thus by the above act, of ommission and commission the said Shri Raman S Gohil Sr BC TKNG has failed to maintain absolute integrity, devotion to duty and has acted in a manner unbecoming of a Railway servant and has thereby Page 5 of 20 6 OA No.188/2014 contravened the provision of para 3.1{i), 3. 1(ii) & 3.1 (iii) of Railway Service Conduct Rules, 1966." | 2{a). The applicant participated in the Departmental inquiry... The Disciplinary Authority vide its order dated 26.09.2012, 'imposed punishment of compulsory retirement. The applicant preferred an appeal against the punishment order dated 26.09.2012. On 12.02.2013, the Appellate Authority feduced the' punishment of compulsory retirement to that of reversion to the initial stage of Junior Booking . Clerk in the pay band of Rs.5,200-20,200/- and Grade Pay of Rs.2,000/- for 15 years with postponement of future increments and with loss of seniority. The applicant, preferred a Revision Petition against the Appellate Authority's order. The Revisionary Authority by its order dated 09.04.2013 was pleased to uphold the order passed by the Appellate Authority. He has thus filed this Original Application. 2(b). Counsel for the applicant during arguments submitted that the entire action of the respondents is bad in law. He relied upon the Vigilance Manual which prescribes the procedure and the guidelines for conducting the departmental trap, especially para 307.1 to 307.10. It Page 6 of 20 7 OA No.188/2014 was stated that the Railway Vigilance Department is required to carry out the decoy checks after careful planning, selection, execution, and documentation. The said procedure as provided in the manual was not | followed by the Vigilance Department. As such, the entire disciplinary | action which is based on the vigilance check is bad in law. He stated ~ that during the course of the departmental enquiry, various discrepancies in the procedure. adopted byt the Vigilance were pointed out to the respondents. He stated that the Investigating Officer of the Vigilance Department is required to arrange for a combination of Gazetted or Non-Gazetted Officers to act as independent witnesses. in the present case, no such steps were taken. The time stamp on the documents and the purchase of the tickets go to show that the Vigilance
- Department had failed to select the spot for completing the pre-
planning trap formalities carefully. He submitted that the proper execution of the trap requires an impartial witness to. hear the. conservation at the ticket window which would establish that the | money has been passed as illegal gratification, the transaction should be within the sight and hearing of the independent witness. In the present | Page 7 of 20 8 OA No.188/2014 case, no such steps were taken as the independent witness has deposed that he could not hear the conversation between the applicant, who was manning the ticket window, and the decoy passenger. Further, the Vigilance Manual requires the department prepare a site plan indicating the position of the witness, the delinquent official and the position of the decoy passenger as well as the spot where the preparation for the . trap was done and the relative distance from each other. No such sight plan was submitted. He, therefore, submitted that the Vigilance Department having failed to follow the Rules, had violated the procedure and guidelines, causing prejudice to the applicant. 2(c). Further, the counsel for. the applicant stated that the list of the prosecution witnesses consisting of six persons, three of them being _ officers from the Department being the official witnesses and witness PW4 being the decoy passenger, PW5 being the independent witness and PW6 being the BS LTT / the officer-in-charge at the station where the applicant was posted. That PW-4 to PW-6 have not stated anything incriminating the applicant. Therefore this is also a case of no evidence.Page 8 of 20 9 OA No.188/2014
a(d}. The counsel stated that even the Enquiry Officer had acted as Prosecuting Officer as no separate Prosecuting Officer was appointed. He stated that the PW 4 i.e. the decoy passenger had clearly stated in his evidence that he does not understand English. The relied upon documents concerning the trap were prepared in English. Although PW- 4's signatures were appended but he could not confirm the contents of the English RUD's. He stated that the preparation of the trap was done at Vidya Vihar Station and trap was conducted at Tilaknagar Station. He stated that the vigilance team had handed over Rs.1,110/- to PW-4 and directed him to purchase three tickets for Gonda. He stated that he had handed over Rs.1,000/- note to the Booking Clerk who returned Rs.232/- and the tickets. Thereafter, PW-4 handed over the tickets and the
- balance amount to the Vigilance Team who then prepared the TCM too. The Vigilance Team entered the Booking Counter and check the same, | after sometime the vigilance called him and being the independent witness after checking the counter, they prepared the documents and obtained the statement. {n cross examination by the applicant, he stated that the time required to travel from Vidyavihar Station to Page 9 of 20 10 OA No.188/2014 Tilaknagar Station is about 30-35 minutes. He also admitted during the process there was rush and noise at the counter while purchasing the ticket. He also stated that he did not remember as to whether he was | required to pay Rs.708/- or Rs.768/-, as he could not hear the Booking Clerk. Whatever amount was returned by the Booking Clerk, he gave the same to the Vigilance Team.
According to the applicant, the examination of the pwa would clearly show that due to the noise and rush at the booking counter, PW- 4 (decoy Passenger) could not be hear the amount asked for by the applicant(booking clerk). Since the decoy passenger admitted that he | could not hear therefore the applicant could not have been held guilty for seeking illegal gratification. .
PWS i.e. the independent witness during his cross examination had stated that his signature is not there on RUD -- 30 Le. relied upon docu ments -- 30. Fu rther, the independent witness also failed to identify the applicant as the very person sitting behind the counter. in fact, he confirmed that the applicant had not-dealt with the ticket booking.
'Page 10 of 20 11 OA No.188/2014PW6 (officer in -charge at the station) in his examination in chief had stated that he had signed the documents to avoid allegations of non-cooperation. Further, he stated trap process by the vigilance team was not done in his presence and hence, he did not agree with the RUDs. He stated that the TCM-1 was prepared between 21:40 hours to 21:50 hours whereas the tickets were purchased at 21:57, 21: 58 and 21:58 hours on 26.08.2011 showing thereby that there, was nine
- minutes difference between the preparation of TCM-1 and the purchase of the tickets. TCM 1 being the stage when the preparatory action is _done by the Vigilance Team before the conduction of the surprise check. | Since the travel time be 2(e). The counsel thus stated that the discrepancies would have merged during the examination and the cross examination of the three _ witnesses who are not the party of the Vigilance Department, therefore, the applicant does not deserve the punishment and has been wrongly charged. The applicant had submitted his representation against the
- Enquiry Officer's report on 13.07.2012. In the said representation, it was contended that the Vigilance investigation Report had not been Page 11. of 20 12 OA No.188/2014 annexed and listed as a 'Relied Upon Documents with the Charge : | Memorandum and the same was not provided to him although the said document has been submitted to the higher authorities. The Appellate Authority while passing its order in deciding the appeal has relied upon . the Vigilance Investigation Report, thus, causing prejudice to the applicant. He has pointed out the following discrepancies which is as under :
"2) PW-1 S.K. Bajpayee in his answer to Q.No. 9 stated that TCM-1 was prepared in a Hotel outside railway premises whereas in answer to Q.No.11 he changed to aforesaid statement and stated that it was prepared at Vidyavihar station between 21.40 to 21.50 hours as per Exb.P/1.
4) PW-4 Amarpal Mishra Decoy Passenger deposed during cross examination that it take 30 to 35 minutes to reach from Vidyavihar to Tilak Nagar station who further stated that there was heavy rush and noisiness on the counter therefore _ he could not remember whether CE has asked for Rs.708 or Rs.768/- which was total cost of the ticket. PW-4 further corroborated that he can only understand Hindi and other documents prepared in English he do not understand contents thereof.
5) PW-5 Moglali S. Badson, (IW) deposed during inquiry that he is working as Class-IV employee and studied up to IX, He further stated that there was heavy rush on the counter from where the ticket was purchased by decoy person. While Page 42 of 20 13 . OA No.188/2014 replying answer to Q.No.8 he stated that CE was not that ~ person from whom the ticket was purchased by the decoy .
person. During re-examination by EO he has also reconfirmed this answer to Q.No.9.
6) PW-6 Shri N.H. Lawaniya BS/LTT in his answer to Q.No.4 ~ stated that decoy process by vigilance team was not done in his presence as such it is not possible for him to agree with the RUDs prepared by Vigilance team. However, he had signed: those documents prepared by the vigilance team to avoid the allegation of non-operation. He further stated that behavior of the CE is very soft and normal with seniors and commuters. He has also clarified that as per provision made under IRCM rule 710, shortage or excess amount can be regularized by the counter clerk."
2(f). Lastly, counsel for the applicant relied upon the Rule 710 of the IRCM Vol. | which reads as under :
"710. Deficiency in cash to be made good. -- Deficiency in cash should be made good, at once, by the staff from private cash and a suitable remark, viz., "Rupees. ...... paid from private cash by........ made both in the daily trains cash-cum-_ summary book and cash remittance note. If the amount involved is heavy the matter should be investigated fully. in all _ such cases, a report should be made to the Divisional Office and the Traffic Accounts Office showing the result of investigations. An excess represents the amount erroneously collected from the travelling public and should on no account be utilized to cover any deficiency in collections by some previous train or shift." | Page 13 of 20 14 'OA No.188/2014 The counsel thus stated that this is not a case where the applicant was involved in any illegal gratification or deliberate overcharging rather the case where due to the noise at the Booking Counter, the decoy passenger and the independent witness could not hear the total of the amount charged for the three tickets. Mistake has occurred in the collection and excess amount had been collected. It is relevant to mention that when the recovery memo was prepared Rs.98/- were , found in excess of the Railway cash. The applicant has been charged for charging Rs.60/- extra from the decoy passenger and due to the excess -- _cash of Rs.98/-, the applicant was subjected to the discipliriary proceedings.
| 3. Counter affidavit has been filed by the respondents. The counsel ~ for the respondents during his arguments tried to support the action of the respondents on the basis that the applicant had not denied the recovery of the excess of the Railway Cash which was Rs.98/-. He stated that none of the witnesses have denied the surprise check once it is established that the raid was conducted and the decoy passenger have purchased the tickets. Amount returned by the applicant was less by Page 14 of 20 15 OA No.188/2014 Rs.60/- to the decoy passenger. Therefore, this is a fit case where the applicant has been proceeded against departmentally and punished thereon. On the question of violating the said procedures/guidelines governing the trap and the preparatory actions provided with said trap, the counsel for the respondents stated that in the wake of the applicant - accepting that the incident had occurred, any minor diversions from the settled pre-trap procedure does not vitiated the disciplinary proceedings. | He relied upon the charge alleged against the applicant to submit that the charge is that of possessing excess cash by Rs.98/-. He over charged the decoy passenger by Rs.60/- and that Rs.98/- were -- found excess in railway cash. He submits that both these charges were proved during the enquiry and, therefore, the doubts raised by the applicant are of no consequence. He submitted that none of the witnesses have. denied the recovery of excess cash of Rs.98/-. The price of the ticket for travel from Tilaknagar Station to Gonda Junction is Rs.236/-. Three tickets were purchased was Rs.1,000/- cash was given by the decoy passenger. The applicant should have charged Rs.708/-.
and the returned the balance amount of Rs.292/- instead of which he Page 15 of 20 16 OA No.188/2014 has returned only Rs.60/- which has been proved by the decoy passenger as well as the independent witnesses. 3(a). Counsel for the respondents has also relied upon the following judgments which is as under :
"1. State of Orissa and Another Vs. Murlidhar Jena, 1961
- SCC Online SC 98 : AIR 1963 SC 404 decided on 08. 08. 1961 in Civil Appeal No.129/1961.
2. State of Mysore and Others Vs. Shivabasappa Shivappa Makapur, 1962 SCC Online SC 105 decided on 03.05. 1962 in
- Civil Appeal No. 400/1960.
3. Sunil Kumar Banerjee Vs. State of West Bengal and others, (1980) 3 SCC 304 decided on 26.03.1980 i in Civil Appeal ' No. 1277/1975. "
The judgements are on the scope of the powers of the Disciplinary Authority while exercising quasi-judicial functions. The authorities being not bound to follow the procedure for trial and nor by strict rules of evidence. Further that the decision of the Disciplinary authority if arrived at its own conclusion on the basis of the material available to it then its findings cannot be said to be tainted merely because it had consulted the Vigilance (Sunil Kumar Banerjee Vs. State of West Bengal).
Page 16 of 20See 17 ~ OA No.188/2014
4. We have heard both the learned counsel for the parties and perused the pleadings available on record.
5. Controversy in the present case is around the trap/surprise check or raid conducted 'by the Vigilance Department: on the night of 26.08.2011. Counsel for the applicant has laid stress upon the pre trap procedure and its violation. The evidence of the witness of the decoy passenger and the independent witness as well as officer-in-charge do not entirely support the case of. the prosecution. in fact, the independent witness was declared hostile by the Enquiry Officer in his report. Applicant has objected to this since the independent witness was not declared hostile during proceedings but in the 10's report he has | declared him hostile. The witnesses were subjected to re-examination by the Inquiry Officer acting as Prosecuting Officer (PO) also. |
6. Be that as it may. Having considered the case in its entirety, there is no denial that the raid was conducted. While conducting the raid, the vigilance department did not follow the correct pre-trap procedure, thus tainting the entire trap. However, the fact that the excess cash was recovered cannot be denied. We are also considerate of the fact that Page 17 of 20 18 OA No.188/2014 the ticket counter is the busiest place and is always crowed and noisy. As per statements, conversation between the:decoy passenger and the Booking Clerk could not be heard both by the decoy passenger himself and independent witness. Therefore, it cannot 'be stated that the applicant has overcharged the decoy passenger to earn illegal gratification.
7. All these grounds were raised by the applicant in his representation against the Enquiry Officer's report before the Disciplinary Authority. The Disciplinary Authority has skirted the same and avoided dealing with these issues. The Appellate Authority while deciding the appeal has relied upon the Vigilance investigation Report along with the disciplinary file. The applicant has raised a specific ground in the Original Application, with respect to reliance of the Vigilance Investigation Report by the Appellate Authority. The report was not a part of the disciplinary proceedings. The same was not part of the list of the documents annexed with the charge memorandum. Reliance on the same has caused prejudice to the applicant.
Respondents in their reply to the specific plea have not denied this Page 18 of 20 19 OA No.188/2014 aspect. Rather they have tried to divert, by referring to the Vigilance Investigation Report as the Enquiry Officer's report. |
8. The case of Sunil Kumar Banerjee Vs. State of West Bengal (supra) relied upon by respondents at first look would seem to deal with this | aspect, however on a close reading it would reveal otherwise. Hon'ble Apex Court has held that decision of the DA cannot be held to be tainted if he has merely, consulted the Vigilance,. but arrived at his decision independently, based on available material. Herein the opposite
-- eecurred. The Appellate Authority has relied upon the Vigilance report to arrive at its decision. The vigilance report was not part of record. Looking into the above, we are of the considered opinion that this is a fit case to be remanded to the Appellate Authority. Hence the order nassed by the AA is quashed. The AA is directed to carefully go through the appeal, ignoring the Vigilance investigation Report. The discrepancies highlighted by the applicant with respect to the pre-trap and trap procedures are also relevant and required to be considered by the Appellate Authority. The Appellate Authority shall also note the Rule:
710 of IRCM and the circumstances of the ticket window on the said Page 19 of 20 20 OA No.188/2014 date. The Appellate Authority is therefore directed to consider the appeal of the applicant afresh, in the light of what has been discussed above. The Appellate Authority shall also grant an opportunity of personal hearing to the applicant before passing its order on the appeal, within a period of eight weeks from the date of receipt of a certified copy of this order. Consequential benefits, if any, shall flow to the applicant within one month thereafter.
9. With the above directions, OA stands allowed. No costs. (RAJINDER KASHYAP) (HARVINDER KAUR OBERO!) MEMBER (A) MEMBER (J) kmg* Page 20 of 20