Central Administrative Tribunal - Allahabad
Dr. R.K. Verma vs Union Of India on 8 October, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 08 DAY OF 10 2010) Honble Dr.K.B.S. Rajan, Member (J) Honble Mr. S.N. Shukla, Member (A) Original Application No.1242 of 2009 (U/S 19, Administrative Tribunal Act, 1985) Dr. R.K. Verma, Son of Sri Prem Kumar Verma, Resident of House No.739 A, Locol Colony, Near Tat Mill Chauraha, Kanpur. Applicant Present for Applicant : Shri S.K. Om, Advocate Versus 1. Union of India, through General Manager, North Central Railway, Allahabad. 2. Chairman, Railway Board, Rail Bhavan New Delhi. 3. Secretary, Railway Board, Rail Bhavan, New Delhi. 4. Chief Medical Superintendent, North Central Railway, Allahabad. 5. Union Public Service Commission through its Secretary, Dhaulpur House, Shahjahan Road, New Delhi. Respondents Present for Respondents : Shri Anil Kumar, Advocate O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) The applicant was serving at the material point of time as Divisional Medical Officer, posted at Heal Unit, Northern Railway, Unnao.
2. A trap was laid by the respondents on 01st December 2001 in the Health Unit of Unnao but the authorities were stated not to have succeeded in their attempt. This was repeated on 07th December, 2001 and as per the respondents, a trap team was constituted, with certain vigilance officials and a decoy check was conducted on that day, when one Shri Amardan Singh posed himself as a patient and when he approached one Shri Om Prakash, the safaiwala of the Health Unit he had, in consultation with the applicant demanded Rs 200 for issue of a sick certificate for 10 days. According to the respondents the said money was paid to Shri Om Prakash, whereafter, the decoy patient was issued with a certificate and was also informed that if some one asked about his health, he must state that he was suffering from dysentery. When the vigilance team entered and checked the chamber of the applicant, the decoy money was found in a diary of the applicant, which was kept underneath the almirah. A statement was recorded on the spot and thereafter disciplinary proceedings were initiated, vide Annexure A-4 Memorandum dated 02-01-2003.
3. The charge memorandum reads as under:-
1. Dr. R.K. Verma demanded and accepted through Shri Om Prakash Safaiwala Rs.200/- from decoy patient Shri Amardan Singh, on 07.12.01 for keeping him on 10 days sick and issued him sick certificate No.375422.
By the aforesaid acts omission and commission, Dr. R.K. Verma, DMO/Lalitpur failed to maintain absolute integrity, devotion to duty and acted in the manner unbecoming of a Railway Servant, thereby contravened the provisions of Rule 3(1)(i) & (iii) of Railway Services (Conduct) Rules, 1966.
4. The applicant applied for extraordinary leave to undergo higher study which was forwarded to the DRM, vide Annexure A-6. The applicant joined the said course subsequently, though no leave appears to have been sanctioned by the authorities.
5. Respondents had appointed one retired Railway Officer to function as the Inquiry Officer in the case of the applicant and according to the applicant; he was not kept informed of the same, though the appointment of Presenting officer was made known to him.
6. It is the case of the applicant that as the applicant was prosecuting his higher studies in the Moti Lal Nehru College, which fact was known to the respondents, he was not attending the office during that period. According to him, he received no notice as to the inquiry either from the respondents or from the inquiry officer, either at his permanent home address or at his college address where he was prosecuting higher studies.
7. The inquiry was conducted ex parte and the inquiry officer rendered his finding as Charges against CO is PROVED. Annexure A-9 Report dated Nil April, 2006 refers. By then, the applicant has been back from his studies and was serving in Kanpur. Representation against the inquiry report was filed by him vide Annexure A-10 dated 29th June, 2006. The applicant has inter alia stated therein that he had no idea about the conducting of the inquiry as he was prosecuting the higher studies. He maintained that he had neither demanded nor received the alleged sum of Rs 200/-. Even as per the prosecution, the entire transaction seems to have taken place with Om Prakash and not with the applicant and in so far as locating the money in a diary of the applicant underneath the almirah is concerned, the applicant stated that a number of persons come and go from the chamber of the applicant and it is too difficult to have an eye upon every one who comes to the chamber of the applicant.
8. The Disciplinary authority on consideration of the inquiry report as well as the representation, and in consultation with the Union Public Service Commission imposed the penalty of Dismissal from service vide Annexure A-1. order dated 21-08-2009. Against the same the applicant had filed an appeal vide petition dated 21-09-2009 at Annexure A-11. No response, however, has been received. Hence this O.A.
9. At the time of admission hearing, interim order was passed and the impugned order at Annexure A-1 stayed, vide Order dated 30-10-2009.
10. Respondents have contested the O.A. They, in their short counter, have contended that the applicant never objected towards the appointment of inquiry officer. The stay order was passed on the ground that the inquiry officer is a retired Railway official which is not permissible under the rules. However, in Ram Bahor Yadav case, on an order of the Tribunal the Railway Administration has preferred a writ petition, which was dismissed. However, SLP filed was entertained and interim order passed against the judgment of the Tribunal/High court vide order dated 01-10-2008 and the case tagged with another SLP Union of India vs Alok Kumar.
11. As regards the merit of the OA, the respondents contended that the applicant was not sanctioned any study leave and all the notices were pasted on the notice Board in the office where the applicant was last serving. The OA is not maintainable as the applicant seeks re-appreciation of the evidence by the Tribunal, which is against the law laid down by the Apex court in a catena of cases including Transport commissioner vs A. Radhakrishnan. The Tribunal cannot function as an appellate authority vide Shri Parma Nanda vs State of Haryana & Ors (S.L.P(Civil) No. 6998 of 1988. This is a case where the applicant had demanded and accepted illegal gratification for performances of his legitimate duties. The fact that he demanded money gets established in the domestic inquiry through the evidences and the fact that the accepted the money also gets established as the illegal gratification was found in the chamber of the Applicant. The applicants attempt is to mislead the Tribunal stating that the watchdog organization i.e. Vigilance which caught the applicant has not done so, keeping in view the desirable guidelines for them contained in the Manual.
12. Rejoinder and supplementary counter affidavit have also been exchanged.
13. Counsel for the applicant made the following submissions:-
(a) This being a trap case, the guidelines vide rule 704and 705 of the Vigilance Manual ought to have been followed, whereas none of the guidelines had been followed. The prime requirement of a Gazetted officer being there as independent witness is not fulfilled. The one who has engaged as an independent witness is an illiterate person having affixed only LTI instead of signing and this person is none other than one serving under Shri Amardan Singh, the decoy patient and his version is nothing but he endorsed the statement of the said Amardan Singh. It is natural that a subordinate, that too an illiterate, would only go along with his superior. Thus, the said witness cannot fill the bill of independent witness The counsel heavily relied upon the decision by the Apex Court in the case of Moni shankar vs Union of India (2008) 3 SCC 484.
(b) The inquiry has been conducted by a Retired Railway Officer, which is not correct.
(c) The respondents filed to serve upon the applicant any notice as to conducting of the proceedings and thus, the entire proceedings having been at the back of the applicant, the proceedings get thoroughly vitiated.
(d) There is marked variation in the initial statement as on 7-12-2001 and subsequent depositions.
(e) This is a case of no evidence.
14. Counsel for the respondents submitted that in so far as Vigilance Manual is concerned, the same is only in the nature of guidelines and the decision by the Apex Court in the case of Chief Commercial Manage, S.C. Railway vs G. Ratnam, (2007) 8 Scc 212.
15. As regards appointment of inquiry officer, the law has undergone a change. As such, there is no illegality in the appointment of a retired official.
16. For the alleged non service of notices in respect of the disciplinary proceedings, the applicant has to blame himself, as he was on unauthorized absence and substituted service had been taken recourse to, which cannot be held irregular.
17. The depositions of witnesses are all cogent, convincing and hence there is no mis-match.
18. Arguments were heard and documents perused. First as to the nature of guidelines contained in the vigilance Manual may be looked into. In the case of G. Ratnam (supra) the Apex Court has held as under:-
14. In order to appreciate the respective contentions of the learned counsel for the parties, we think it appropriate at this stage to refer to the relevant provisions of Paras 704 and 705 of the Indian Railways Vigilance Manual, 1996, which read as under:
704. Traps.(i)-(iv) * * *
(v) When laying a trap, the following important points have to be kept in view:
(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are government employees and of other departments.
(e) After satisfying the above conditions, the investigating officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the SP, SPE, is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the SPE or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
(vi)-(vii) * * *
705. Departmental traps.For departmental traps, the following instructions in addition to those contained under Para 704 are to be followed:
(a) The investigating officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilised.
All railway employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or Vigilance Branch. The Head of Vigilance 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 wherefrom 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 bribea fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the investigating officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, railway and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
(c)-(e) * * *
15. The Administrative Tribunal as well as the High Court, as noticed hereinabove, both, have held that the instructions contained in Paras 704 and 705 of the Manual are mandatory in nature and their violation by the investigating agency in the process of laying traps against the respondents, have caused prejudice to the respondents to defend their cause in the departmental proceedings which were initiated against the respondents by the authority on the basis of the defective and unfounded investigation reports prepared by the investigation officers.
16. We may, at this stage, point out that the Vigilance Manual which was first published in 1970 was revised in 1996 under which the departmental traps were laid against the respondents. The revised Vigilance Manual of 1996 has now been re-revised by the Indian Railways in the year 2006. Para 306 in Chapter III of the Indian Railways Vigilance Manual, 2006 deals with trap cases by CBI. Departmental trap cases, procedure and guidelines are prescribed in Para 307 (corresponding to Para 705 of the 1996 Manual). However, the present cases are covered and dealt with by the procedure and guidelines as contained in Paras 704 and 705 of the 1996 Manual.
17. We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF Constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF Constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF Constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF Constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
18. We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained.
19. We have carefully gone through the contents of various chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance Organisation and its role, Central Vigilance Commission, Central Bureau of Investigation, investigation of complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work, etc. Paras 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
19. The above decision was referred to in Moni Shankar case and the Apex Court ultimately clarified as to the character of the guidelines (mandatory or directory) as under:-
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 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, preponderance 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.
..
23. Dr. Padia would submit that the jurisdiction of the Tribunal was limited and as some evidence was adduced, the Tribunal should not have interfered with the order of punishment imposed upon the appellant. 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 the 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 of 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 normal rules of natural justice had been complied with or not.
Thus, in so far as following of Para 704 and 705 of the Vigilance manual, it has to be ascertained whether the substantial part of it has been complied with.
20. In so far as the competence of Retired Railway Officer being the inquiry officer, the said legal question is no longer res-integra. In the case of Union of India v. Alok Kumar,(2010) 5 SCC 349, the Apex Court has considered the very same issue and held as under:-
47. Thus, a person who is engaged by a competent authority to work on a fee or a fixed remuneration can be a public servant. We fail to understand then how a person engaged for the purposes of performing a delegated function in accordance with law would not be other authority within the meaning of Rule 9(2). The Rule has not specified any qualifications or prerequisites which need to be satisfied before a person can be appointed as an enquiry officer. It has been left to the discretion of the disciplinary authority. Unless such exclusion of a former employee of the Government was spelt out specifically in the Rule, it will be difficult for the Court to introduce that element and the principle of implication simpliciter.
21. Thus, there is no legal lacuna in so far as a retired Railway officer being the inquiry officer.
22. Now the question whether there has been a substantial part of compliance with the provisions of para 704-705 of vigilance manual. The requirement is that :-
(a) two gazetted officers from Railways are to act as independent witnesses as far as possible
(b) The independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence.
(c) The transaction should be within the sight and hearing of two independent witnesses.
(d) 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.
(e) 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.
23. In addition, the said guidelines also state the independent witnesses will take such a position that they could 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.
24. The two independent witnesses in this case are (a) one Shri Mani Ram and (b) one Shri Arvind Kumar. None of them is a Gazetted officer. In fact, Shri Mani Ram has appended only his Left Hand Thumb Impression instead of signing the Test Check Memo. Of these the main witness is Mani Ram and the other one is a shadow witness. It is worth to extract the depositions of these two witnesses as contained in the inquiry report:-
7.5.2 Sh. Mani Ram Carriage cleaner under CDO/Delhi- PW-2 (reference evidence dated 31.05.2005) He acted as independent witness. He also owned his thumb impression on test check memo, (Ex. P-1) and on his statement (Ex P 11) and its confirmed the contents. He supported the version of Sh. Amardan Singh, High skilled fitter under CDO/Delhi. 7.5.6 Shri Arvind Kumar, Sr. VI/BH Now SSE/Electrical/BH (reference evidence dated 06.02.2006) He owned his signature on the check proceedings (P-1, recovery/seizure memoP-2 and P-3 seizure memo). He also confirmed that he entered the DMOs Chamber along with other team member and Rs. 200/- decoy money was recovered from the DMOs chamber along with Rs.600/-. He also stated that Sh. Omprakash Safaiwala informed that he had collectedRs.200/- from the decoy patient as per direction of the DMO and handed over the same to Dr. R.K. Verma and themoney was kept in the note book with a clip which was recovered from under the almirah. He also confirmed that no pressure was exerted on Sh. Omprakash Safaiwala andhe voluntarily disclosed his rolein the transaction and Sh. Omprakash cooperated with the team in locating the decoy money. He also confirmed that Dr. Verma denied taking the money. He did not deny the handwriting in the diary.
25. From the deposition, it is seen that Mani Ram has simply supported the version of Shri Amardan Singh. Shri Amardan singh has stated that Om Prakash got the money from him, went to the applicants chamber, handed overf this money to the applicant, who in turn issued the sick certificate and afterwards called him inside and advised him to tell in case asked by any one, that he was suffering from Dysentry. He had seen that the applicant kept this money in a diary lying near him. Even if the deposition of Mani Ram is accepted, there is no mention about money having been demanded. Again, the money was not paid to the applicant but to one Shri Om Prakash, Safaiwala. Shri Arvind Kumar had not stated that he had seen Om Prakash handing over the money to the applicant. Nor did the main witness say anything in this regard. Thus, the spinal requirement of two gazetted officers and their actual hearing of demanding and accepting the money by the applicant is conspicuously missing in this case.
26. The admitted fact is it was Om Prakash to whom the money was paid and it was Om Prakash who had located the diary from underneath the Almirah. Amardan Singh stated that he saw the applicant placing the amount in the diary near him but the diary was located by Om Prakash from underneath the Almirah. It was not the case of the respondents that the independent witnesses have seen the applicant placing the diary underneath the almirah. Nor is it the case of the respondents that they had made a thorough search of the chamber of the applicant and could locate a diary underneath the almirah wherein the money was found. The narration of every witness shows as if it was in quick succession that the vigilance team entered, Om Prakash took the diary from underneath the almirah and the money was found in the diary. One of the guidelines is 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 This is not the case here.
27. It is pertinent to mention here that the instant trap case is second of its nature. The first one conducted on 01-12-2001 was unsuccessful. In other words, the trap case conducted on the second time in quick succession within seven days could have been conducted with greater precaution. For example, had the notes been soaked in chemicals, in the event of the applicant handling the same, his hand would have turned pink on dipping in water. That has not been done. Nor was the money recovered from the person of the applicant. Corroboration by many that the marked money was found in the diary underneath the almirah and the almirah belonged to the applicant does not meet the requirement of sufficient evidence is available against the applicant. Thus, viewed from any angle, it is highly doubtful that there is some evidence to prove even by the standard of pre- ponderance of probability. We cannot thus, dismiss the argument of the applicants counsel when he argued that the first trap having not been fruitful the respondents some how trap the applicant and in that process never cared for following even the spinal guidelines prescribed under the Manual.
28. In the result, the OA succeeds. The impugned order dated 25-08-2009 is hereby quashed and set aside. The applicant shall be reinstated in service and his seniority as earned by him prior to the passing of the impugned order shall be kept in tact. He is entitled to earn notional increment for the periods he has been out of service. However, he is not entitled to any arrears of salary. Respondents are directed to pass suitable orders for reinstatement and for fixation of his salary from the date he is reinstated within a period of three months from the date of receipt of the certified copy of this order.
29. Under the circumstances, there shall be no orders as to cost.
Member-A Member-J Sushil