Central Administrative Tribunal - Delhi
Sh. Pargat Singh vs Union Of India & Ors. Through on 26 May, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-415/2013
Reserved on : 15.05.2015.
Pronounced on : 26.05.2015.
Honble Mr. G. George Parakcen, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Pargat Singh,
S/o Sh. Mangha Singh,
Age about 57 year,
Working as TTE
Under C.I.T. Line,
Amritsar (Punjab). .. Applicant
(through Sh. M.S. Reen, Advocate)
Versus
Union of India & Ors. through
1. The General Manager,
Northern Railway,
Head Quarters Office,
Baroda House, New Delhi.
2. The Divisional Railway Manager,
Northern Railway,
Firozpur Division,
Firozpur (Punjab).
3. The Chief Commercial Manager,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi. .. Respondents
(through Sh. Shailendra Tiwary, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was working as Head TTE on 19.08.2010 when preventive check was conducted by a vigilance team in Train No. 2013. On the basis of this check, the applicant was served with a major penalty charge sheet on 18.02.2011 containing the following charges:-
Article No.1:- Shri Pargat Singh Hd TTE/ASR/FZR Divn/NR found to carry 1 without ticket passenger in AC chair car in coach no. C-8 at seat no. 54 of NDLS-ASR Shatabdi Express (T.N.2013) During vigilance check.
Article No.2:- He also did not show not turn up on passenger reservation chart on seat no. 54 of coach no. C-8 even after approximately 3 and = hrs. of departure of the train. Without ticket passenger was found to be carried by him on this seat.
Article No.3:- He also failed to get signature of the passenger on EFT no. 5-69968, which was prepared by him for charging of a carrying passenger as without ticket at SIR after vigilance teach enter in the train.
2. The applicant denied these charges and an enquiry was held. The Enquiry Officer (EO) submitted his report on 30.09.2011 in which he found all the charges to have been proved. A copy of the enquiry report was made available to the applicant and he was given an opportunity to represent against the same. Thereafter, the Disciplinary Authority (DA) vide his order dated 23.11.2011 imposed a punishment of reduction in rank/grade to the next lower pay band for a period of two years with cumulative effect on the applicant. An appeal filed by him was rejected by the Appellate Authority (AA) on 11.01.2012. A revisional petition filed against the order of the AA was rejected by the competent authority on 27.09.2012. The applicant has now approached this Tribunal seeking the following relief:-
(i) That this Honble Tribunal may graciously be pleased to allow this original application and set-aside the impugned orders dated 23.11.2011 (pass by Disciplinary Authority, order dated 11.1.2012 (passed by Appellate Authority) & order dated 27.9.2012 (passed by Revisionary Authority) with all consequential benefits.
(ii) That this Honble Tribunal may graciously be pleased to allow this application and direct the respondents to restore the pay of the applicant in its original grade and pay the arrears with all consequential benefits.
(iii) That any other or further relief which this Honble Tribunal may be deem fit and proper under the circumstances of the case may also be granted in favour of the applicant.
(iv) That the cost of the proceedings may also be awarded in favour of the applicant.
3. In their reply, the respondents have stated that the applicant was found to carry one passenger without ticket in AC Chair Car in Coach No. C-8 at Seat No. 54 of New Delhi Amritsar Shatabdi Express (Train No. 2013) during vigilance check. The applicant did not show that the passenger, whose name appeared in the reservation chart, did not turn up despite holding reservation on the seat even approximately 3 = hrs. after departure of the train. A without ticket passenger was found to be traveling on that seat. The applicant had also failed to get signature of the passenger on EFT No. 569968, which was prepared by him for charging the passenger without ticket.
3.1 The respondents have submitted that the enquiry against the applicant has been conducted strictly according to the rules and he has been afforded reasonable opportunity to defend himself. Hence, there is no reason to entertain this O.A., which is liable to be dismissed.
3.2 Relying on the judgment of Honble Supreme Court in the case of Sh. Bhagat Ram Vs. State of Himachal Pradesh & Ors., AIR 1983 SC 454, the respondents have submitted that this Court cannot function as a Court of appeal over the findings of the DA. Further, relying on the judgment of Honble Supreme Court in the case of UOI & Ors. Vs. Dwarika Pd. Tiwary, 2006(10) SCALE 233 the respondents have stated that the Courts cannot interfere in the quantum of punishment until and unless the same is found to be shocking to the conscience of the Court.
4. We have heard both sides and have perused the material placed on record. The applicants counsel has submitted his written arguments, which have been taken on record. The grounds mentioned in the same alone were pressed before us during arguments. We deal with each of these grounds as hereunder:-
4.1 The first round taken by the applicant is that the DA, AA and Revisional Authority (RA) have passed non-speaking orders. Therefore, these orders are bad in law. He argued that it was not sufficient for the DA to not pass speaking order simply on the ground that he was agreeing with the EO. In this regard, he relied on the judgment of Honble Supreme Court in the case of Vivek Vikas & Ors. Vs. Bihar State Electricity Board & Ors., 2014(1)ALSLJ 475 in which the Writ Petition was allowed on the ground that the DA had not dealt with the objections raised by the petitioner and did not arrive at any independent finding.
4.1.1 In this regard, we have perused the orders passed by the DA, AA and RA. First of all, we do not find the order of DA to be non-speaking and cryptic despite the fact that he was agreeing with the enquiry officers report. Secondly, we also find that unlike the case of Vivek Vikas (supra) relied upon by the applicant, in this case the DA has dealt with the objections raised by the applicant against the enquiry report. This is evident from the following paras of the order of the DA:-
As per Enquiry Officers report, all the three charges as framed against the CO have been proved as discussed in the enquiry report. The copy of Enquiry Report was given to CO for submission of his defence reply to which he has submitted his reply dated 11.11.2011.
Instead of giving reply on the charges, the CO has blamed that EO has not conducted the enquiry as per rules. However, no reply of the rules has been produced by the CO to prove that EO has violated the rules. Moreover no such mention has been made in the Defence Note also.
Since, the CO has not brought out any convincing facts to refute the charges as such E.Os report is accepted. Carrying of without ticket passengers in prestigious train like Shatabdi is a serious offence. Besides this other two charges have also been proved. Therefore, keeping in view the gravity of offence committed by the CO a punishment of reduction in rank/grade to next lower pay-band for a period of two years with cumulative effect is imposed upon the CO.
Thus, the case of Vivek Vikas (supra) relied upon by the applicant does not have any relevancy in the instant case. Further, in the case of State Bank of Bikaner & Jaipur Vs. Prabhu Dayal Grover, (1996)1 SLJ SC 145 it has been held that when AA is agreeing with the findings of the EO as accepted by the DA then the detailed reasoning need not be given. This would certainly have been necessary had the AA arrived at a finding different from that of EO and DA. For the same reason, RA was also not required to pass a detailed order. Thus, we do not find merit in this ground taken by the applicant.
4.2 The second ground taken by the applicant is that the EO was from the Vigilance Department and this itself is sufficient to vitiate the proceedings. In this regard, he has relied upon the judgment of Honble Supreme Court in the case of UOI Vs. Prakash Kumar Tandon, 2009(1)SCALE 175. He has also relied on the judgment of Honble High Court of Delhi in the case of UOI Vs. Sri Manjuddin Khan, [Writ Petition (Civil) No. 13638/2009) decided on 20.05.2010. The respondents have not disputed that the EO was from the Vigilance Department.
4.2.1 We have perused the judgment of Honble Supreme Court in the case of Prakash Kumar Tandon (supra). We find that the appeal of UOI was dismissed by the Honble Supreme Court. In Para-14 of the judgment, they had observed as follows:-
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. However, we notice from the same that this factor alone did not prove fatal. There were many other reasons for dismissing the appeal as is evident from the subsequent paras of this judgment, which are reproduced below:-
15. From the evidence of another Assistant Engineer who had taken part in the raid, it is evident that the alleged loss caused to the railways was negligible and mere marginal allowances are permitted for measurement of `scantlings and planks'.
16. In the aforementioned situation, we are of the opinion that the Tribunal as also the High Court cannot be said to have erred in holding that the said Mr. Walia should have been examined as a witness.
17. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice.
18. In M.V. Bijlani v. Union of India & Ors. [(2006) 5 SCC 88], this Court has held :
"Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
19. If the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby.
20. In S.L. Kapoor v. Jagmohan & Ors. (1980) 4 SCC 379, this Court has held that non-compliance of the principles of natural justice itself causes prejudice. We are not oblivious of the fact that the said principle has since been watered down but in a situation of this nature, we are of the opinion that the concurrent findings of the Tribunal, as also the High Court cannot be said to be unreasonable or suffering from any legal infirmity warranting interference.
21. The appeal, therefore, is dismissed with costs. Counsel's fee assessed at Rs.10,000/-.10 Thus, the appeal was dismissed by the Apex Court on several grounds. No where it has been held that proceedings got vitiated because the EO was from Vigilance department and that this factor alone was sufficient for quashing the proceedings.
4.2.2 Next we have examined the judgment of Honble High Court of Delhi in the case of Sri Manjuddin Khan (supra) relied upon by the applicant. In this case the Honble High Court has observed that in an enquiry conducted by the Vigilance Department there was a large probability on the part of the EO to uphold the charge levelled against the charged officer to justify their vigilance report. Thus, there will always be an element of bias in such reports. However, in this case as well there were other factors also which were taken into account by the Honble High Court while disposing of the Writ Petition of UOI.
4.2.3 Thus, the position that emerges from the above quoted two judgments is that when an enquiry is conducted by an officer of the Vigilance Department, there is a large probability of the enquiry report not being totally fair and unbiased and this factor must be kept in mind by the Courts. However, the proceedings cannot be quashed merely on this ground alone. Other facts and circumstances of the case have to be gone into.
4.2.4 In the instant case, we find that the charge sheet was served on the applicant on the basis of a raid conducted by a team of Vigilance Department. The EO was also from Vigilance Department and two of the three witnesses produced by the prosecution side were also team members of the vigilance team that had conducted the raid. However, we notice that the respondents have produced a third witness, namely, Sh. Gurcharan Singh, CTI in this case. This witness was not from Vigilance department. He has deposed during enquiry that he was the Train Supdt. of the Train No. 2013 in which the raid was conducted. It is clear that he was associated by the Vigilance team to prepare the necessary documents relied upon by the respondents in the enquiry. Thus, an independent witness who was not from the Vigilance department had been associated with the checlk. Not only that, he was Train Supdt. and was senior to the applicant. His deposition, therefore, lends credence to the entire proceedings. We are, therefore, not inclined to quash the proceedings on the ground of EO being from the Vigilance department.
4.3 Learned counsel for the applicant argued that the main charge against the applicant was that he was carrying one passenger without ticket. The statement of this passenger had not been recorded and, therefore, there is no independent evidence available against the applicant. He cannot be punished merely on the ground of suspicion. In this regard the applicant has relied on the judgment of Honble Supreme Court in the case of UOI & Ors. Vs. Gyay Chand Chattar, 2009(8) SCALE 575 in which it was held that there was distinction between proof and suspicion and an employee cannot be punished merely on the basis of suspicion. He has also relied on the judgment of Honble Supreme Court in the case of Mohan Singh Vs. UOI, SLR 1985(2) of Punjab & Haryana High Court.
4.3.1 We have considered the aforesaid submission regarding not recording the statement of the passenger travelling without ticket. In the enquiry report the EO has dealt with this issue. He has stated that this passenger was obviously in connivance with the applicant as he was allowed to travel without ticket by him. Therefore, evidence of this passenger was not considered necessary. We find merit in this contention. Also, it cannot be held that the applicant is being punished merely on suspicion of wrongdoing.
The EO after discussion of the evidence adduced in the enquiry has given a clear finding that all the charges against the applicant stood proved. The DA in his order has agreed with the EO and has not found the objections raised by the applicant against the enquiry report to be convincing. Hence, this ground taken by the applicant also lacks merit.
4.4 The next ground taken by the applicant was that the RA has considered the past bad record of the applicant as is clear from his order despite the fact that this was not a subject matter of the charge sheet in the present enquiry. In this regard, the applicant has relied upon the instructions of Railway Board dated 21.04.1971 as well as judgment of the Apex Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and Anr., SCT 2010(3) SC 343. He has also relied on the judgment of Yunus Khan Vs. State of U.P., 2011(2) SLJ SC 132.
4.4.1 We have seen the order of the RA, which is available at page-37 of the paper-book. In the second para of the same the RA has no doubt observed as follows:-
Regarding order previous record, it has not been unblemished as there are several penalties awarded to him in the past. However, we notice that the RA has not passed the order merely on this ground as is evident from the order. He has dealt with the arguments advanced by the applicant and observed that they were lame and do not contribute to anything to absolve him from the charge. He has also observed that it has been proved beyond doubt that the applicant was carrying one passenger in the AC Chair Car Coach without ticket. He has, therefore, agreed with the orders passed by the DA and AA.
4.4.2 In our opinion, it is evident from the above that the decision of the RA to reject the Revision Petition was not solely based on the consideration of the past record of the applicant. He has given sufficient reason as to why he has agreed with the report of the EO as well as the orders of DA & AA. Moreover, he has not enhanced the penalty. He has simply agreed with the penalty awarded by the DA and upheld by AA. Under these circumstances, we do not feel that a reference to the past record of the applicant by the RA in his order had any bearing on the outcome of this enquiry.
4.4.3 The applicants counsel argued that the EO failed to consider the defence note of the applicant. However, this ground needs to be dismissed at the outset simply because it is quite clear from the EOs report that he has taken the defence note into account while giving his findings. At several places, he has alluded to the defence note submitted by the applicant and given his conclusions after considering the same. Thus, in Para-7.2 while dealing with Charge No. 2, the EO has observed as follows:-
CO pleaded in his defence note that he had written R on the charts against not turn up passenger and was going to recheck the coaches but he was intercepted by vigilance team and could not mark the passengers not turn up who not reported up to SIR. But in the enquiry during his general examination CO confirmed to IO that there is no such rule for marking R in the charts when any passenger found not turn up on checking by the coach TTE and he writes R for his memory. It is already established in Para 7.1 above that the WT passenger was traveling on seat No.54 to C-8 coach. Thus pleadings of the CO in this regard are not accepted and this charge against the CO, is also established. Again in Para 6.4 he has observed as follows:-
CO has submitted his defence note, which is gone through, CO adduced in this note that no statement of WT passenger was recorded by the PWs to corroborate the charge against CO for carrying him WT by CO. 4.5 No other ground was pressed before us during arguments.
5. On the basis of the above analysis, we are of the opinion that none of the grounds pressed by the applicant is sustainable. This O.A., therefore, lacks merit and is dismissed. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/