Central Administrative Tribunal - Delhi
Shri Kali Dass vs Union Of India : Through on 14 February, 2011
Central Administrative Tribunal Principal Bench O.A.No.2768/2009 New Delhi, this the 14th day of February, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Shri Kali Dass CTI/TTE North Central Railway Agra Cantt. Applicant (By Advocate: Shri B.S.Mainee with Ms. Meenu Mainee) Versus Union of India : Through General Manager North Central Railway Allahabad. Divisional Railway Manager North Central Railway Agra Cantt. Respondents (By Advocate: Shri P.K.Yadav) O R D E R By Shailendra Pandey, Member (A):
This is the second round of litigation. Earlier the applicant had challenged the order of the disciplinary authority and the appellate authority in OA No.1511/2008, and this Tribunal, after observing that the order passed by the appellate authority was not a speaking order, partly allowed the OA (vide order dated 28.04.2009) and set aside the order of the appellate authority and remitted back the case to the appellate authority to meticulously deal with the contentions of the applicant taken in appeal and pass a speaking order. In compliance thereof, the appellate authority has passed a speaking order dated 12.06.2009. Aggrieved by this order, the present OA has been filed challenging the Orders dated 22.08.2007 whereby the disciplinary authority had imposed on the applicant the penalty of reversion to a lower grade of Rs.4000-6000 from the grade of Rs.6500-10500/- for a period of three years with cumulative effect from 22.08.2007; and the Order dated 12.06.2009 whereby the appellate authority had confirmed the penalty imposed by the disciplinary authority. The relief sought is to quash these orders and direct the respondents to restore the applicant to his original position with all consequential benefits.
2. It is seen that the applicant has also impugned the Order of the appellate authority dated 20.12.2007 which had been challenged by the applicant in OA No.1511/2008. As this Tribunal had quashed the same, it is not necessary to adjudicate the matter in this regard since a fresh speaking order dated 12.06.2009 has already been issued by the appellate authority.
3. The brief facts of the case, as set out in the OA, are that the applicant (Shri Kali Dass), while working as Chief Ticket Inspector in the AC Coach of Train No.1450 UP on 10.02.2005, was alleged to have been found guilty (by the checking staff) of allowing two passengers in the upper class without tickets by receiving money in an illegal manner. Thereafter, it is alleged that he left the train at Raja Ki Mandi (RKM) station though his duty was till Agra Cantt (AGC) and also did not give any statement on the pretext of illness.
4. A regular departmental inquiry was initiated against the applicant on three Articles of Charge. The applicant denied these charges but as his reply was not found satisfactory, the disciplinary authority ordered conduct of a detailed enquiry. The applicant had requested for supply of two documents vide his letter dated 26.08.2006 but according to the applicant, the same was turned down vide letter dated 21.10.2006 as they were not considered relevant. The inquiry officers report dated 23.07.2007 held that the charge against the applicant stood proved. The disciplinary authority, after considering the applicants reply to the Inquiry Officers findings, imposed on him the said punishment vide Order dated 22.08.2007. The appeal filed by the applicant against this order was also rejected by vide his order dated 20.12.2007. When the applicant challenged in this Tribunal in OA No.1511/2008, the same was disposed of at the admission stage itself (vide order dated 28.04.2009) by quashing the order of the appellate authority (as it was not a speaking order) and remitting the case back to the appellate authority to pass a fresh speaking order. Hence, the present OA has been filed seeking the relief already mentioned on the following grounds:
that the charge leveled against the applicant was false and baseless, and based upon a false complaint made by two TTEs, whom the applicant had warned to appear in proper uniform as per rules and the applicant had also raised the issue of false TA bills (later they were punished for this), therefore, their testimony should not be given any credence.
That the documents by which the applicant wanted to prove that the depositions of the complainants were not trustworthy, as they themselves had been exploiting the respondents by various means even by claiming false traveling allowances, were denied to him.
That as a result the inquiry stands vitiated and reasonable opportunity for defence was denied. It was also submitted by the applicant that the Inquiry Officer acted as a prosecutor, which further vitiates the Inquiry.
That a heavy punishment has been imposed based on a defective and unfair inquiry and also that the findings of the inquiry officer are based on no evidence.
That it has been alleged that the applicant received illegal gratification but neither have the concerned passengers have been listed as witnesses nor have been produced nor even their statements been produced to show that they paid any amount.
That the revised order of the appellate authority dated 12.06.2009 is without application of mind, as the appellate authority has wrongly observed that detection of two passengers without proper ticket is sufficient proof that they had paid illegal amounts to the applicant and traveled without ticket.
5. In view of the above grounds, the applicant has prayed that the impugned orders be quashed and a direction be issued to the respondents to restore the applicant to his original position with all consequential benefits.
6. The respondents have controverted the pleas taken in the OA and have stated in the reply that the proceedings against the applicant were conducted as per the procedure prescribed and after giving him full opportunity for his defence. He, however, did not submit a defence brief in spite of time given. After considering the Inquiry Report and its findings the disciplinary authority, after serving a copy of the inquiry report on the applicant and considering his reply thereto, imposed the aforesaid punishment vide his letter dated 21.07.2007, which was also upheld by the appellate authority vide its order dated 10.06.2009 which is a speaking order.
7. It is further stated that it is not obligatory nor possible to call passengers as witnesses and that as per the Commercial Circular No.7 dated 02.02.2001 of the Railways, the members of an Anti-fraud squad may be in simple dress during a check/raid. It is also stated that the applicant himself was not present on the train between the stations Raja Ki Mandi and Agra Cantt, and his statements are false. The applicant had also not handed over the charge to the outgoing Conductor/Incharge of the Coach for the further journey of the train and he was seen at Agra Cantt after the departure of the train and when asked by the ACM he did not make any statement and went out from the station. Therefore, all these circumstances prove that the applicant was guilty of the alleged misconduct and, therefore, the Tribunals interference is not warranted in the matter. Therefore, they pray that the OA be dismissed.
8. We have considered the rival submissions of both counsel and have been through the pleadings.
9. The applicant had been proceeded against on the following three Charges:
Article-I Shri Kali Dass, ACTI/AGC was on duty as a Conductor on 10.2.2005 in the AC Coach of 1450 UP from Nizamuddin to AGC. During the inspection by the Vigilance party, Shri Kali Dass was found guilty of allowing two passengers in the upper class without tickets, by receiving money in an illegal manner. The passengers traveling without tickets were accordingly issued EFT No.564975 dated 10.2.2005 for Rs.542/- and EFT No.455780 dated 10.2.2005 for Rs.622/- by the Vigilance party. During inspection went away and reached AGC station by road, whereas Shri Kali Dass was to perform his duty by train upto AGC.
Article II The charge against Shri Kali Dass, ACTi/AGC as Coach Conductor in 1450 UP dated 10.2.2005 is that by leaving the train on reaching Raja Mandi, by Anti Fraud Squad getting hold of passengers traveling without tickets in the AC Coach, by receiving Rs.250/- and recovering the amount of ticket in an illegal manner and after recognition by the passenger, Shri Kali Dass deboarding the train and reaching AGC Station by road; the out-going Conductor from AGC to Banda in the above mentioned train being kept waiting at AGC till the last moment of its departure and the outgoing Conductor leaving after waiting. For this, Shri Kali Dass is found guilty.
Article III Shri Kali Dass ACTI/AGC after coming from Raja Mandi to AGC by road in connection with the serious irregularities did not give necessary statement on the pretext of being ill, therefore, he is found guilty of contravention of Railway Rules.
10. It is noticed that the inquiry officer held the charges as proved after holding an inquiry as per the procedure prescribed and the disciplinary authority imposed the punishment after serving a copy of the reply on the applicant and considering his reply and, on appeal, the same was also confirmed by the appellate authority through a detailed speaking order (revised order) dated 12.06.2009.
11. Over the years the Honble Supreme Court has carefully defined the scope of judicial review in disciplinary matters, holding that, in these matters, the Tribunals jurisdiction is limited to seeing the manner in which the inquiry was conducted and whether the applicant was afforded reasonable opportunity to defend himself. The Tribunal has no jurisdiction to go into the correctness or the truth of the charges. It also cannot take over the functions of the Disciplinary Authority. It cannot sit in appeal over the findings of the Disciplinary Authority and assume the role of the Appellate Authority. It cannot interfere with the findings arrived at in the disciplinary proceedings except in a case of mala fides or perversity, i.e. where there is no evidence whatsoever to support a finding or where a finding is such that no one acting reasonably and with objectivity could have arrived at it, or if the punishment imposed is shocking to the conscience of the Court [See: Union of India & Anr. v. K.G. Soni, 2006 SCCL.COM 571; State Bank of India & Ors. v. Ramesh Dinkar Punde, 2006 SCCL.COM 569; State of U.P. and Ors. v. Raj Kishore Yadav & Anr., 2006 (5) SCC 673; V. Ramana v. A.P. SRTC & Ors., 2005 (7) SCC 338; Damoh Panna Sagar Rural Regional Bank & Anr. v. Munna Lal Jain, 2005 SCC (L&S) 567; Om Kumar & Ors. v. Union of India, 2001 (2) SCC 386.
12. Keeping the above in mind, we find no reason to interfere in the findings of the punishment imposed in this case for the reasons discussed below.
13. There is no violation of the principles of natural justice as the inquiry has been conducted as per due procedure and the applicant has been afforded full opportunity to defend himself. The non-supply of the few documents (TA bills of the PWs refer 4(ii) of the OA), according to us, has not prejudiced the defence of the applicant nor has vitiated the inquiry as the Inquiry Officer can refuse to supply documents not considered relevant.
14. It is well settled that in a departmental inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act would not apply and that pre-ponderance of probability may be enough to establish guilt. All materials which are logically probative for a prudent mind are permissible and there is no allergy even to hearsay evidence provided it has reasonable nexus and credibility. The essence of the matter is fair play and objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.
The learned counsel for the applicant has contended that the findings of the inquiry officer are arbitrary and based on no evidence as the evidence of the passengers who were allegedly charged extra were not recorded. However, in this regard, as submitted by the respondents counsel, we support the view that production of the passengers in the domestic inquiry was neither practicable nor necessary. It is not possible for the Railway to force the passengers to come and depose in the inquiry and it is also time consuming. Merely because the statements of the passengers were not recorded, the order based on such statements would not be rendered invalid {See: State of Haryana and Another v. Rattan Singh, (1977) 2 SCC 491; Karnataka State Road Transport Corporation v. B.S.Hullikatti, JT 2001(2) SC 72 and Delhi Transport Corporation v. Shri Shyam Singh & Anr., [WP(C) No.1420/2002, decided on 29.09.2004 of the Delhi High Court]}.
In the context of the facts and circumstances of this case, we are of the view that the evidence of the checking staff who deposed against the applicant before the inquiry officer, constitutes evidence that cannot be disregarded and is sufficient to hold that this is not a case of no evidence.
15. There is also the evidence of Shri G.S.Lawania, PW3 who has categorically stated that the applicant did not give charge of 2AC and 3AC. It is also noticed that during the course of the inquiry on 26.08.2006 (Page 82 of the OA), the applicant had himself admitted that he forgot to give charge to the outgoing AC Coach Conductor. Further the fact that two passengers were found without ticket and had traveled in the AC Coach managed by the applicant (which was not possible without his knowledge) and that the passengers were detected by the Anti-Fraud Squad at Raja Ki Mandi Station without ticket and amounts of Rs.542/- and Rs.622/- were realized from them, also are noteworthy in this case.
16. On the basis of the above, we have no hesitation in holding that the present case can certainly not be held to be a case of `no evidence and the findings of the inquiry officer cannot be considered to be perverse.
17. It is also noticed that the disciplinary authority and the appellate authority have come to their conclusions after going through the findings of the inquiry officer and other relevant documents and on the basis of some evidence on record. We, therefore, do not propose to and are not required to re-appreciate the evidence or sit in judgment on the findings of the inquiry officer and the decision of the disciplinary authority/appellate authority, as the inquiry has been conducted fairly with full opportunity to the applicant to defend himself. During arguments the learned counsel for the applicant had submitted that the punishment given was on the basis of the report of the ACM/AGM which the applicant had asked for but which was denied to him and, therefore, placing reliance on this report would constitute violation of the principles of natural justice, but we find that even without this report there is evidence, as mentioned earlier, to support the conclusions reached by the Inquiry Officer/the Disciplinary Authority/the Appellate Authority.
18. It is seen that after the Tribunals directions, passed in OA No.1511/2008, dated 28.04.2009, the appellate authority re-considered the appeal of the applicant and has passed a detailed speaking order that addresses all the issues raised by the applicant and then justifies the respondents stand in the matter. We reject the submission of the applicant that the appellate order is without application of mind.
19. With reference to imposition of punishment, including the quantum of punishment, we also do not propose to interfere as the administrative authorities must be allowed maximum discretion in this regard if they are to maintain and run public services with efficiency and without any malpractices. In this connection, we may usefully refer to the Honble Apex Court in Administrator, Union Territory of Dadra & Nagar and Haveli v. Gulabhia M. Lab (2010) 5 SCC 775:
13. The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts. .
20. In view of the above discussion, we find no merit in the OA. The same is accordingly dismissed. No costs.
(Shailendra Pandey) (Meera Chhibber) Member (A) Member (J) /nsnrsp/