Central Administrative Tribunal - Delhi
Sh. A.K. Tiwari vs Union Of India Through on 25 January, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-725/2011
New Delhi this the 25th day of January, 2012.
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. A.K. Tiwari,
S/o Sh. V.N. Tiwari,
RGC
Working under Sr. DCM/JHS
R/o A-238, Street No.3 Pocket-1,
Sonia Vihar, Delhi. . Applicant
(through Ms. Meenu Mainee, Advocate)
Versus
Union of India through
1. Secretary,
Railway Board,
Ministry of Railways,
Rail Bhawan,
New Delhi.
2. General Manager,
North Central Railway,
Allahabad.
3. Divisional Railway Manager,
North Central Railway,
Jhansi.
4. Sr. Divisional Commercial Manager,
North Central Railway,
Jhansi. . Respondents
(through Sh. P.K. Yadav, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) Challenging the order dated 07.09.2009 of the Disciplinary Authority (DA) imposing the penalty of removal from service, the order dated 13.11.2009 of the Appellate Authority (AA) by which the penalty was modified to compulsory retirement from railway service, the order dated 02.03.2010 of the Revising Authority (RA) rejecting his Revision Petition, the applicant has sought the following relief in the present O.A.:-
(i) That this Honble Tribunal may be graciously pleased to allow this application and quash the impugned orders.
(ii) That this Honble Tribunal may be further pleased to reinstate the Applicant with all consequential benefits.
(iii) That the Honble Tribunal may also be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper on the facts and in the circumstances of the case.
(iv) That the cost of these proceedings may kindly be granted in favour of Applicant.
2. The applicant was originally engaged as a daily rated casual labour on 17.06.1976; gained MRCL status and posted as Catering Cleaner then placed on the panel of Commercial Clerk and posted as a Commercial Clerk on 10.01.2002. While working on the ticket counter at Kosi Kalan Station in shift duty hours from 16.00 hrs. to 24.00 hrs. on 20.07.2007, a vigilance raid was conducted and on the allegation that he had demanded and accepted Rs. 11/- extra while selling 11 tickets to a decoy passenger (actual fare was Rs. 198/- @ Rs. 18/- each and he received Rs. 209/-) and further that an excess amount of Rs. 141/- was detected in the government cash in his custody, a Charge Memo was issued to him on 15.01.2008. He denied the charges; an inquiry was conducted and the IO found him guilty of the charge, a copy of the inquiry report was given to him; he made his representations against the findings in the inquiry report but the DA agreed with the findings and decided to impose the penalty of removal from service with full compassionate benefits. The AA agreed with the findings of the DA but considering the penalty as too harsh and taking a lenient view in the matter reduced the penalty to compulsory retirement from railway service. The RA did not interfere with the order of the AA; hence this O.A.
3. At the time of hearing, learned counsel for the applicant highlighted the following grounds:-
(i) The respondent authorities did not consider the explanation of the applicant that on detection of payment of excess ticket amount the applicant tried to call the decoy passenger back but the passenger left the place without heeding to his summons.
(ii) The raid having been conducted by vigilance officers, they were to be guided by instructions contained in Paragraphs 704 & 705 of the Vigilance Manual. Neither was there any gazetted officer who acted as an independent witness, and the witnesses who were pressed into service were stock witnesses having been utilized previously by the vigilance. Rather the decoy witness was a Class-IV employee and the independent witness was admittedly not a gazetted officer, but a stock witness.
(iii) The IO was an employee working in the vigilance branch itself and as such he could not have acted as an independent judge. The IO did not examine the applicant properly as required under Rule-9(21) of the Railways (Discipline & Appeal) Rules, 1958. The infirmities associated with the vigilance raid pointed out by the applicant were ignored by the IO. He did not take into account the explanation of the applicant about the allegation of excess government cash amount and gave his finding about his call to the decoy passenger with a cryptic observation that there was no proper evidence to back up the plea of the applicant.
(iv) The orders of the respondents are non-speaking in nature without proper application of mind to the defence pleas.
4. Learned counsel for the applicant placed reliance on the following:-
(a) Rule 710 of the Commercial Manual and the order dated 12.02.2007 of this Tribunal passed in OA-508/2005 which enjoins that any excess amount recovered should not be utilized to cover any short collection elsewhere. If the amount involved is heavy, the matter should be investigated. The Tribunal while dealing with the subject observes that in the absence of allegations of illegal gratification or malafide gain made by an employee, excess amount recovered need not be held out against an employee.
(b) Order dated 08.04.2011 of the Principal Bench of CAT in OA-740/2010 to contend that an officer of the Vigilance Department could not have been appointed as an IO.
(c) Judgment/order of the Honble Supreme Court in the case of Moni Shankar Vs. U.O.I. & Anr., 2008(1)AJW 479 to contend that instructions of Paragraphs 704 and 705 of the Vigilance Manual when viewed in the context of other violations of Instructions would vitiate an inquiry.
(d) R.B.E. 89/2001 to contend that an IO should be impartial in his approach as he performs a quasi-judicial function. In support this contentions the learned counsel cites the case of the Honble Supreme Court in the case of U.O.I. & Ors. Vs. Prakash Kumar Tandon, (2009)1 SCC (L&S) 394.
(e) Judgment/order of the Honble High Court in WP(C) No. 1760/2008 in support of the contention that the charged official should be properly examined as provided under Rule 14(18) of CCS(CCA) Rules, 1965, or in the present case, under Rule 9(21) which is the corresponding provision in Railway Rules.
(f) Letter dated 13.07.1991 of the Railway board enjoining upon Disciplinary and Appellate Authorities to pass speaking orders.
5. Respondents on the other hand submit that the charge of demand and acceptance of excess fare amount from passenger has been established against the applicant who himself admits to have received the excess amount. Besides, this charge has been fully established by the IO on the basis of discussion of evidence on record.
5.1 There has not been any infirmity in the conduct of the departmental inquiry against the applicant who was afforded full opportunity to cross examine the witnesses and to defend himself. All the relevant documents demanded by him have been supplied; only two documents which were not relevant for the purpose of inquiry were not given to him. The instructions contained in Paragraphs 704 & 705 of the Vigilance Manual are not mandatory in nature. They are only guidelines and a disciplinary proceeding is not vitiated if some of the guidelines are not strictly followed at the time of conducting raids.
5.2 Both the DA as well as AA have passed speaking orders after applying their mind to the facts of the case. It is not necessary that they should reproduce all the reasonings which are given in the inquiry report if they accept the findings without any reservation. It is only in the event of disagreement with the findings of the IO that there is a necessity to give reasons in support of the conclusions of the DA which is at variance with the finding of the IO. As a matter of fact, the AA in consideration to the nature of offence of the applicant, reduced the penalty from removal from service to compulsory retirement giving the applicant the benefit of his service for pension and other retiral dues.
6. Learned counsel for the respondents placed reliance on the following judgments:-
(i) State of Punjab Vs. Harbans Singh & Ors., (2003)11 SCC 203, Ishwari Vs. State, 1980 CRI. L.J. 571 to contend that evidence of witness need not be discarded only on the ground that he might have given evidence earlier in a few cases.
(ii) State Bank of Bikaner & Jaipur & Ors. Vs. Sh. Prabhu Dayal Grover, 1996(1) SC SLJ 145, National Fertilizers Ltd. & Anr. Vs. P.K. Khanna, (2005)7 SCC 597 and G.M. (Personnel Wing), Canara Bank & Anr. Vs. Sri M. Raja Rao, 2003(1) SCC SC 489 in support of the contention that it is not always necessary to give reasons in the orders of the DA/AA if they are concurring with the findings of the IO.
(iii) Chief Commercial Manager, South Central Railway, Secunderabad and Ors. Vs. G. Ratnam and Ors., (2007)8 SCC 212 which lays down the law that instructions contained in Paragraphs 704 and 705 of the Vigilance Manual are not mandatory in nature and an inquiry will not be held as vitiated on the allegation of infraction of the instructions contained in these paragraphs.
(iv) Naresh Govind Vaze Vs. Governmetn of Maharashtra and Ors., (2008) 1 SCC 514 to contend that the IO has discretion to allow witnesses and documents to be produced in an inquiry. No fault can be found with the decision of the IO in disallowing two documents required by the applicant at the time of his inquiry on the ground that they were not relevant.
(v) Nahar Singh Vs. Food Corporation of India & Ors., (2008) 5 SCC 209 to contend that the level of proof required in a departmental proceeding is different and a charge can be proved on broad probabilities.
(vi) State Bank of Patiala & Ors. Vs. S.K. Sharma, (1996) 3 SCC 364 to contend that if there is substantial compliance with the provisions of the rules governing disciplinary inquiry, infractions relating to some procedures would not vitiate an inquiry.
7. The two specific charges levelled against the applicant are: (i) demand and acceptance of excess ticket amount from passenger; (ii) detection of excess government cash in his custody. As regards the first charge, the applicant in his reply to the charge sheet, representation against the findings of the IO, appeal and revision petition has taken the consistent stand that on detection of the excess amount, he had specifically called out the passenger but the passenger had left the place without giving any heed to his calls. The counter was immediately closed on account of the raid. The decoy passenger in his evidence has also stated that he was told by a passenger in the queue that the booking clerk was calling him. However, he had to rush out from the place to report to the vigilance authorities. His statement filed at page-71 reads as under:-
During the examination of PW-I Shri anil Kumar-Porter by EO, Sh. Anil Kumar accepted that when he was intimated by other passenger that Ticket Babu was calling him, even then he did not come back to ticket Babu because he had to hand over these tickets to Vigilance team.
8. As regards the second charge, the applicant has been taking the consistent stand that the closing cash balance arrived at on the basis of DTC figures was incorrect, the prosecution witness No. 3 makes the following statement:-
..His signature was taken on already prepared Recovery Memo/Seizure Memo being In-charge. On Recovery Memo, GC-Note were not counted before him, although the difference of Rs.141/- was shown. This excess amount was not calculated before him, it was already matched by Sh. Azam Khan by DTC. When he checked DTC, he found the difference of 40 nos. tickets that was not accounted by VI team and they took his signature under pressure. When he did sign on Joint Memo and Recovery Memo and all the check proceedings was completed, he saw DTC and knowing the fact about the difference of 40 tickets, he immediately informed this fact to VI team, but they did not give any comment. These 40 tickets were in the custody of Sh. Mohd. Azam-Booking In-charge during the said check. When original DTC dtd. 20.07.07 was showed to him by ARF during cross-examination, Sh. Chaudhary clarified that these 40 tickets were from KSV HNZM of II-M/E for which fare was 34/- per ticket, whose closing No. is 4061 and Issue No. is 4103, so the difference comes 42 nos. tickets. In this way out of 42 tickets, only 2 nos. tickets were accounted and 40 nos. tickets were not accounted. Prosecution witness No.4 has to say the following in his deposition:-
When original DTC dtd. 20.07.07 in the shift 16.00 to 24.00 hrs. was showed to him by ARE during cross-examination, Sh. Azam clarified that according to DTC, the tickets were from KSV - HNZM of H-M/E Adult, whose Commencing No. is 4061 and Closing No. is 4103, so he difference comes 42 nos. tickets. He clarified that is clearly a mistake in the accountal of DTC in his opinion. VI team also checked this accounted in his presence. In other words, the prosecution witnesses support the contention of the applicant that the calculation about excess cash was incorrect. The applicant raised the following specific grievance in his appeal petition before the AA:-
DA also ignored & most probably not examined even the defence version of defence statements. In course of inquiry the DW SK Sharma Sr. TIA/MTJ very clearly provided that Rs.1274/- was short & Rs. 141/- was not excess. He clarified three mistakes of calculation & wrong closing were there. He provided that : (a) Foreign DTC page (3) Rs.1360/- shown less in NZM series. (ii) Local DTC page 2 Rs.36/- shown excess in AGC series. (c) Local DTC (page 3) Rs.115/- shown excess in PF series & in this way Rs. 1360+115=1475 to be added while as Rs.(36-24) was to be deducted. As 36 tickets amounting to 1224 are available with CBS/KSV so only Rs. 50/- was short. Evidence in form of DTC was already available on record. Further I requested regarding this mistake, a detailed further inquiry, prior to final decision of the case. The natural question is why such inquiry was not ordered by DA. Why IO had not considered the statement of DW which was priorily clarified PW also. But myself also & again unfortunate is that DA also ignored all these.
9. His explanation has been brushed aside in the inquiry report with the following cryptic statement:-
The submission of the CO about shortage of Rs.1274/- in Govt. cash against the alleged excess amount of Rs.141/- can not be accepted as the CO has failed to produce audited copy of DTC book or any error sheet raised by the accounts office abut short accountal of tickets. Similarly, the rejection plea of the applicant that he was calling out to the decoy passenger with the intention of return the excess amount received has been rejected by the Io with the following observations:-
The alibi taken by the CO about returning Rs.11/- to the next passenger in queue can not be accepted in absence of any valid corroboration.
10. Suffice it to say that the decoy passenger himself has admitted to have heard from another passenger in the queue that the applicant was calling out to him but he did not go back to the applicant and had to rush out. There could not have been better corroboration of the plea of the applicant than the statement of PW-1, the decoy passenger himself. The Prosecution Witnesses No.3 and 4 have consistently maintained that the cash balance was not correctly arrived at and 40 tickets have not been accounted for.
10.1 The observations of the Apex Court in the case of Moni Shankar (supra) read as under:-
15. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do no create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official The infraction of executive instructions of the Vigilance Manual by itself, may not vitiate a disciplinary proceeding, but its effect in combination with other factors have to be taken into account. The decoy passenger admittedly was a group D employee; he was a Porter and had worked as a decoy passenger earlier. He admits that he rushed out even if the other passengers in the queue told him that the applicant was calling him back. The so called independent witness had also participated earlier in raid cases. Admittedly, the raid did not follow instructions of Vigilance Manual. These together with the non-consideration of defence plea made out on the basis of evidence of prosecution witnesses make the finding of the IO and the penalty orders based thereon unsustainable.
11. For the aforesaid reason, the impugned orders are unsustainable and accordingly set aside. The applicant shall be reinstated in service with consequential benefits. The O.A. is accordingly allowed. No costs.
(Dr. A.K. Mishra) (G. George Paracken)
Member (A) Member (J)
/Vinita/