Central Administrative Tribunal - Mumbai
S.K.Shrivastava vs Union Of India on 18 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI Dated this Thursday the 18th day of November, 2010 Coram:Hon'ble Shri Justice P.R.Raman Member (J) Hon'ble Shri R.C.Joshi - Member (A) O.A.170 of 2006 S.K.Shrivastava, Ex-Head Booking Clerk, Dadar Central Railway, R/o Flat No.206, 2nd Floor, Shanti Sagar Apartments, Ulhasnagar,District Thane. (By Advocate Shri G.S.Walia) - Applicant Versus Union of India through the General Manager, Central Railways, Headquarters Office, Mumbai CST, Mumbai. Divisional Railway Manager, Mumbai Division, Central Railways,DRM's Office, Mumbai CST,Mumbai. Sr.Divisional Commercial Manager, Mumbai Division, Central Railway, DRM's Office,Mumbai CST,Mumbai. (By Advocate Shri S.C.Dhawan) - Respondents O R D E R (Oral) Per: Justice P.R.Raman, Member (J)
The applicant at the relevant time is a Head Booking Clerk at Dadar Station of the Central Railways in the pay scale of Rs.5000-8000/-. While working so he was charge sheeted on 22.8.2003 and pursuant to an enquiry, he was imposed the punishment of compulsory retirement w.e.f. 19.3.2004 (Annexure-A-1). Appeal preferred against the said order of the Appellate Authority i.e. Senior Divisional Commercial Manager, CST, Mumbai however, was rejected vide order dated 16.6.2004. Thereafter the applicant filed a Revision Petition before the Revisional Authority which was also rejected vide order dated 31.3.2006 (Annexure=A-3). Having exhausted of all the remedies available to him in law, the applicant has filed the present OA on 10.3.2006 seeking among other things, the following reliefs -
(a) To call for the records of this cases relating to orders dated 19.3.2004, 15.6.2004 and 31.3.2005 which are respectively the orders passed by the disciplinary authority imposing the punishment of compulsory retirement, the order of the appellate authority rejecting the appeal and the order of the revisional authority rejecting the revision and to quash the same with all consequential benefits including continuity in service, back wages, promotion etc.
2. Annexure-A-4 dated 22.8.2005 is the copy of the charge sheet issued to the applicant wherein two Articles of Charge were levelled against him. The statement of imputation of misconduct in Annexure- II reads as under -
Article I To ascertain the veracity of the source information that the booking clerks working at Dadar booking office are indulging in malpractices of taking extra money over and above railway dues illegally from the passengers while issuing tickets, a decoy check was conducted by the vigilance team on 13.05.03 and the services of Shri N.B. Ingle, Sr. Clerk, CE's office CSTM and Shri Arun Bhor RPF Constable No. 6453, Reserve Lines Mulund were utilized as decoy passenger and independent witness respectively. Accordingly TCM-I dated 13.05.03 was prepared and the decoy passenger was handed over Rs. 809/- (Rs. 500x1, Rs. 100x3, Coins Rs. 5x1, Rs. 1x4) and the decoy passenger was instructed to purchase three II M/E tickets ex Dadar to Jaunpur and the independent witness was instructed to witness the transaction taking place between the decoy passenger and the booking clerk and also to listen to the conversation taking place between them, if any. The decoy passenger along with the independent witness approached the booking counter No. C5 at Dadar Terminus and demanded three II M/E tickets Ex. Dadar to Jaunpur by tendering the pre-recorded G.C. notes of Rs. 800/- (Rs. 500x1, Rs. 100x) to the on duty booking clerk. The on duty booking accepted the same and demanded a change of Rs. 4/- from the decoy passenger. The decoy passenger tendered the change of Rs. 4/- (Rs. 1x4) to the onduty booking clerk who issued II M/E ticket No. 36906653, 36906654 & No. 36906655 ex. Dadar to Jaunpur printed fare Rs. 238/- each and returned one G.C. note of Rs. 50/- and one G.C. note of Rs. 10/- only. After accepting the amount of Rs. 60/-returned by the on duty booking clerk, the decoy passenger asked the booking clerk whether the transaction was complete to which the said booking clerk replied in affirmative. Hence in the aforesaid transaction the on duty booking clerk had collected Rs. 804/- from the decoy passenger on the issue of the above mentioned tickets worth 714/- and returned back Rs. 60/- only instead of Rs. 90/- thereby overcharging the decoy passenger by Rs. 30/- (thirty). The entire transaction was witnessed by the independent witness who along with the decoy passenger reported the matter to the vigilance team who were standing about 100 meters away from the booking office. Considering the fact that the decoy passenger was overcharged by the said booking clerk by Rs. 30/-, the vigilance team prepared TCM-2 dated 13.05.03 and proceeded to the booking office to further investigation. The railway cash of the said booking was checked and the G.C. notes of Rs. 100/- and Rs. 500/- mentioned in TCM-1 were recovered and the confronted statement of the decoy passenger and independent witness with the said booking clerk was recorded by the vigilance team. Article II As mentioned in Article I herein above, since the said booking clerk had overcharged the decoy passenger by Rs. 30/- the vigilance team had proceeded to the booking office to check the booking counter/ for further vigilance investigation. Three uncancelled tickets i.e. II/M/E/one adult DR-MAU Jn. Ticket No. 36906595 printed fare Rs. 253/-. II M/E/one adult DR-MAU Jn. Ticket No. 36906596 printed fare Rs. 253/- and II M/E/one adult DR-ARA ticket No. 36906612 printed fare Rs. 258/- were detected lying on the counter of the said booking clerk. A joint note to this effect, was drawn by the vigilance team. Considering the detection of un-cancelled tickets found in his possession the possibility of reselling the tickets at the printed fare and pocketing of clerkage charge by the said booking clerk cannot be ruled out. During the physical check of the railway and the private cash in the possession of the said booking clerk it was detected by the vigilance team that Rs. 103/- (Rupees One Hundred Three) were detected short in his railway cash and the same were made good vide money receipt No. G 521115 dated 13.05.03. Considering the shortage of Rs. 103/- in railway cash, the possibility of creating artificial shortage in Railway cash cannot be ruled out.
Thus by the above articles of charges jointly as well severally his action of omission and commission tantamounts to contravening the provisions of Rule 3.1(i) & 3.1 (iii) of Railway service (conduct) rules 1966. The applicant denied the charges in his written explanation which however is not annexed to this OA. Thereafter, the disciplinary authority appointed an Enquiry Officer who conducted the departmental enquiry. Eventually, the Enquiry Officer submitted his report on 23.12.2003 (Annexure-A-5). The Enquiry Officer has relied on Exhibit P/1 on the basis of the information decoy was planned by PW 1, 2 and 3 and services of PW .4 and PW.5 were utilised as Decoy Passenger and independent witness respectively. Instructions were given to PW 4 & 5 to play their role and pre-recorded Government Currency of Rs.809/-. Exhibit P/2 is a statement of PW.4 approached the charged employee on window no.5 and demanded three adult tickets Ex-Dadar to Jounpur tendering the recorded Government Currency Notes of Rs.800/-. The charged employee accepted Rs.800/- and took charge of Rs.4/- from PW.4 and issued Exhibit P.3 and returned Rs.6/- (Rs.50+10). Printed fare of each ticket of Rs.238/- each. Fare of Exhibit P.3 was Rs.714/-. Thus the charged employee overcharged PW.4 by Rs.30/- PW.5 has witnessed transaction and both have reported the transaction to PW 1, 2 and 3 which is recorded in Exhibit P/2. Exhibit P.3 are the tickets issued by the charged employee to PW.4. Exhibit P.5 is the statement of charged employee wherein he has stated that remaining balance is correctly returned by him to PW.4. Exhibit P-5 is the enquiry report wherein he has referred earlier evidence of PW 1 & 2 and other exhibits produced in the case. The defence points were specific that Article I is not proved because overcharge ought to have been excess in the Railway Cash whereas in Exhibit P,11 prepared by the charged employee there was a shortage of Rs103/- in the railway cash and at the time of check uncancelled tickets were found and therefore it is prayed that the charged employee has overcharged the decoy. In Article II, the applicant was detected having possession of three uncancelled tickets and Rs.103/- were detected short in his railway cash. According to the delinquent officer Exhibit P.1 was prepared at 4.00 hours whereas PW.4 statd that it was prepared by 21.30 hours on 12.5.2003 at the same time Exhibit P.1 Vigilance conducted the checks. Though the imputation of PW.4 is that he has paid Rs.804/- for three tickets and the delinquent has returned Rs.60/-, PW.4 categorically stated before the Enquiry Officer that he had tendered Rs.800/- and on demand of the charged employee Rs.14/- and the charged employee had returned Rs.70/-. Thus, the clarification based is only an after thought and cannot be relied upon. He has also stated that PW.4 standing besides PW.5. There is no specific complaint against him. There was no independent witness examined in the case as enjoined in Paras 704 and 705 of the Indian Railway Vigilance Manual. The evidence tendered by PW 1 & 2 is only based on information given by PW 4 & 5. The Enquiry Officer found that PW 1, 2 & 3 were not eye witness to the transaction but documents confirm PW.5 has witnessed the transaction and both have reported the transaction to PW 1, 2 & 3 which is recorded in Exhibit P.2 and their evidence is relied upon. He concluded by saying that from the discussion above, it is established that the charged employee has overcharged PW.4 when the charged employee's cash was subjected to check it was found short by Rs.103/- instead of excess due to overcharging. Hence, the possibility of overcharging cannot be ruled out. He found that both the Articles 1 & 2 are proved. The disciplinary authority agreeing with the finding of the Enquiry Officer imposed the punishment of of compulsory retirement vide order dated 19.3.2004. The appellate authority vide Annexure-A-2 dated 15.6.2004 merely stated that he went through the appeal carefully, gone through the entire DAR case file and after considering all the facts that he decided to confirm the penalty with compulsory retirement from service with consequent benefits. It is brought to our notice that a speaking order has been passed which is filed at page 14 of the OA. The said order is only a repetition. The same is reproduced as under -
I have carefully gone through the entire DAR proceedings, the enquiry report and the appeal submitted by CE. A personal hearing was also granted to the CE.
The points raised by CE in his appeal have been given due consideration by the EO and DA. During the enquiry the charges have been proved on the basis of documents and oral evidence recorded before the enquiry officer. I accept the findings of the enquiry officer and decide to confirm the penalty of compulsory retirement from service with consequent benefits.
Thus, there not much of a difference between Annexure-A-2 and the speaking order said to have been enclosed thereof. The Revisional Authority in Annexure-A-3 grossly confirmed the order of the appellate authority.
2. The contentions raised by the applicant are that the order of compulsory retirement has not been passed by the competent authority. According to him he was Head Booking Clerk appointed by an officer of the rank of Junior Administrative Grade but the order of compulsory retirement was passed by Divisional Commercial Manager who is lower in rank. He placed reliance on Annxure-A-1 order which is signed by Shri John Varkey and whose designation is Divisional Commercial Manager (COG),CST, Mumbai. It is pointed out that respondent no.4 Assistant Commercial Manager who was not holding independent charge of Mumbai Division and is not competent to impose major penalty. According to the applicant he was promoted by an order of Senior Divisional Personnel Officer (DPO) who is of the rank of Junior Administrative Grade officer. He placed reliance on office order dated 29.6.1993 (Annexure-A-7) which is said to be an order of promotion to the pay scale of Rs.5000-8000/- Therefore, according to the applicant the appointing authority is of the rank of Junior Administrative Grade. The heirarchy of the officers, according to the applicant is shown to be ADRM, Sr.DPO/Sr.DCM (JAG), DCM (Senior Scale Officer) ACM Group 'B' officer. It is submitted that the impugned order of compulsory retirement has not been passed by the competent authority. It is passed by an authority subordinate in rank to the authority appointing the applicant. The Divisional Commercial Manager issued the order of compulsory retirement, whereas the appointment and promotion of the applicant has been made by an officer of the rank of Junior Administrative Grade. It is contended that the impugned order of compulsory retirement being passed by an officer without authority of law, is a void order and liable to be set aside.
3. The learned counsel for the applicant has placed reliance on the decision in the case of Krishna Kumar Vs. Divisional Assistant Electrical Engineer and others, 1980 SCC (L&S) 1 wherein it is contended that -
Appellant removed from service by authority subordinate in rank to appointing authority Action, held, violative of Article 311 (1) Subsequent delegation of power to subordinate authority to make appointment to post in question, held, would not confer power to remove person appointed before such delegation. In other words, the competency of the officer has to be determined with reference to the state of affairs existing on the date of appointment for it is then that the constitutional guarantee under Article 311 (1) becomes available to the appointee. It was then contended that even as per Article I of charge it is seen that a decoy check was conducted on 13.5.2003 and the services of one Shri N.B.Ingle, Sr.Clerk , CE's office,CSTM and Shri Arun Bhor RPF Constable were utilised as decoy passenger and independent witness. The trap witnesses were one RPF Constable and a Junior Clerk. The Constable was already a witness in one of the earlier cases as deposed by him in the enquiry. These were not independent witness to witness the trap. By the doctrine of preponderance of probability, it has to be held that the absence of independent witness, the whole exercise of a trap is in accordance with law. It is contended the trap conducted is in accordance with the dictum laid down in the case of Moni Shanker Vs. Union of India & another, (2008) 1 SCC (L&S) 819. more particularly, Paras 704 and 705 of the Railway Vigilance Manual. It is also contended that the Enquiry Officer did not question the delinquent officer on the adverse circumstances existing against him in the enquiry as enjoined by Rule 9 (21) of the Railway Servants (Discipline & Appeal) Rules, 1968.
4. It was also contended that the Enquiry Officer has to put leading questions and reference is made to the decision in the case of Moni Shanker (supra) to show that such procedure adopted by the Enquiry Officer is contrary to the principles of natural justice and coupled with other factors, the whole enquiry is vitiated. It is contended that though standard of proof required the preponderance of probability, the matter of charge of corruption, the same has to be prove the guilt and cannot be based merely on possibility or decided on mere probability. Reliance is placed on the decision of the Apex Court in the case of Union of India & others Vs.Gyan Chand Chattar, (2010) 1 SCC (L&S) 129. It is pointed out that the enquiry report is strange enough that the Enquiry Officer found that the charge levelled against the Enquiry Officer levelled against the applicant is that it was a case where the allegation of charge being that full refund was not made but on checking the charged officer, cash was found short of by Rs.103/-. Despite such finding the Enquiry officer has found that the charges have been proved. He has only expressed doubt as per charge no.2 and not specific finding has been arrived at based on the evidence, if any. In case the Enquiry Officer is only admitted that the charge no.2 is proved. As such there is no specific finding with reference to the findings in the case which shows that there is no direct or indirect evidence to establish the charge. It is contended that mere suspicion is not evidence in the eye of law.
5. The respondents in their reply point out that paras 4.8 of the OA has been specifically denied in para 10 of the reply. It is pointed out that Annexure-A-7 is not the promotion order of the applicant. Further, they also deny that the order of compulsory retirement was passed by a subordinate authority than the appointing authority as alleged or otherwise. It is further pointed out that as per Schedule of Powers, under Establishment Matters (SOPEST), Senior Scale Officer is empowered to make appointment in the grade of Rs.5000-8000/-, therefore, the DCM who is Senior Scale Officer is equivalent to Appointing Authority and that he is competent to impose major penalties envisaged in clauses (vii), (viii) and (ix) of Rule 6 of Railway Servants (Discipline & Appeal) Rules, 1968. The respondents have also denied that the order passed by the disciplinary authority is in violation of Article 311 of the Constitution. It is contended that the Senior Scale Officer has full powers to make appointments both substantive and officiating upto the level in the grade of Rs.5000-8000/- both in the Headquarters as well as in the Divisions so the person appointed has the power to impose the punishment and hence it is well within his power. It is contended that as per Schedule II of the Railway Servants (Discipline & Appeal) Rules, 1968 read with Rule 4 and sub-rule (2) of Rule 7 the Senior Scale Officers and Assistant Officers (Junior Scale and Group 'B') holding independent charge is empowered to impose the punishment upon Group 'D' and Group 'C' staff in pay scales of upto and including Rs.5500-9000/-. In answer to the contention that Paras 704 and 705 of the Indian Railway Vigilance Manual are violated, it is contended that the rule is only procedural in nature which has no statutory force and, therefore, not mandatory in character. Any violation of the said rule does not give enforceable right to the applicant unless prejudice is shown. He placed reliance on the Apex Court decision reported on 2007 (2) SCC (L&S) 851 wherein it is held that in a case of procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. The order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. The Courts or the Tribunal should inquire whether the provision violated is of a substantive nature or whether is is procedural in character.
6. It is contended that the Enquiry Officer has generally questioned the delinquent officer and the delinquent officer have not said that he will be submitting a defence statement. Thus, reserving his right of all points appears to be adverse against him. There is substantial compliance of Rule 9 (21) and even assuming for arguments sake that there is non-compliance the same being only procedural in nature need not vitiate the enquiry. He places reliance on the decision in the case of Sunil Kumar Banerjee Vs. State of West Bengal & others, AIR 1980 SC 1170 wherein reference has been made to similar rule of All India Services (Discipline & Appeal )Rules. Placing reliance on the affidavit filed and the letter dated 12.1.1999 (Annexure-R-1) produced along with it, during the course of arguments, it is contended that the order of promotion was issued only by said order which is being signed by Shri D.K.Waghmare though his designation is shown as Sr.DPO, CSTM , in the affidavit it is said that he was APO.
7. We have heard Shri G.S.Walia, learned counsel for the applicant and Shri S.C.Dhawan, learned counsel for the respondents. We have perused the pleadings, Annexures and also considered the case law cited.
8. Admittedly, the delinquent was at the relevant time working as Head Booking Clerk when he was charge sheeted. His scale of pay at the relevant time was Rs.5000-8000/-. According to the applicant this was a promotion post and he was promoted vide office order dated 29.6.1993 (Annexure-A7) by Senior Divisional Personnel Officer, CST. This order has the approval of the competent authority. The respondents on the other hand contend that the said order is not the order of promotion of the applicant. Though they did not produce the order of promotion in the case of the applicant along with their reply or any time subsequently even though this OA was filed as early as on 10.3.2006. On the last date of hearing, the learned counsel for the respondents took time and on the day the matter was being finally heard, the learned counsel produced order dated 12.1.1999 (Annexure-R-1) along with an affidavit. According to the respondents, the order dated 12.1.1999 is the order of promotion of the applicant to the grade of Senior Booking Clerk, passed by Senior Divisional Personnel Officer in the grade of Rs.5000-8000/- and the applicant has been placed at serial no.8. The order reads that Commercial Clerks in the Grade of Rs.4000-6000/- on acceptance of refusal of registration for Guard's category are hereby promoted as HBC/HPC/HGC/CI in the Grade of Rs.5000-8000/- on par with their juniors already promoted. In the affidavit it is stated that the order of promotion dated 12.1.1999 (Annexure-R-1) is signed by one Shri D.K.Waghmare. This portion of the order is type-written but after Shri D.K.Waghmare , APO has been written in pen. In other words, according to the respondents the order dated 12.1.1999 is signed by Shri D.K.Waghmare, who is Assistant Personnel Officer and according to them the order of punishment being passed by a higher authority who is Senior Scale Officer is well within its competence as per Schedule II of the Railway Servants (Discipline & Appeal) Rules. The learned counsel for the applicant, however, pointed out that as per Schedule of Establishment Matters Code )SOPEST, a copy of which is made available to us by learned counsel appearing on behalf of the respondents, only Senior Scale Officer is competent to make substantive officiating appointments of Non-Gazetted posts carrying scale of Rs.455-700/- (Revised to Rs.5000-8000). As such the contention that officer order dated 12.1.1999 (Annexure-R-1) issued by Assistant Personnel Officer cannot be accepted to be correct and at any rate, the APO has no power to issue any such letter of appointment. On the other hand the learned counsel for the applicant submitted that the applicant was appointed vide order dated 29.6.1993 (Annexure-A-7)and at best he can only be recruited giving pay posting vide Annexure-R-1. Annexure-A-7 is an office order and the opening words mention To fill up the vacancies of HBC/HPC/HGC Grade Rs.5000-8000 (RP_ the following transfer/promotion/posting order is issued with immediate effect.(emphasis given by us). The said order dated 29.6.1993 (Annexure-A-7) has three different sections (A) The said section mentions -The following Commercial Clerks Grade Rs.5000-8000 (RP) are transferred and posted in the same grade & pay at their own request, of which we are not concerned.
(B) The following Commercial Clerks Grade Rs.5000-8000/- (RPS) are transferred and posted in the same grade and pay in the interest of administration, with which also we are not concerned.
(C.) The following Commercial Clerks Grade Rs.4000-6000(RP) are promoted and posted as HBC/HPC in Grade Rs.5000-8000/- (RP) due to reassignment of seniority of category 25;
(D) The following Commercial Clerks Grade Rs.4000-6000 (RP) is promoted and posted as HBC/HPC/HGC in the grade of Rs.5000-8000/- after completion of penalty. Similarly, Section (E) to (G) are also of no relevance.
As far as we are concerned, what is relevant for our purpose is Section (H) under the heading The following Commercial Clerks Grade Rs.4000-6000 (RPS) are promoted and posted as HBC/HPC/HGC in the grade of Rs.5000-8000 in order of seniority and the name of the applicant appears at serial no.20. Going by the entries as referred to above, it can be seen that persons named thereunder are promoted and posted against certain other persons. As against the name of the applicant, however, in the remarks column, it has been mentioned Reg.for Guard. It is contended by the respondents that the applicant had applied for registration as Guard and, therefore, he was not promoted vide order dated 29.6.1993 (Annexure-A-7) but was subsequently promoted vide order dated 12.1.1999 (Annexure-R-1). We are unable to accept this contention. However, if the promotion was not affected in the case of the applicant there was no need to array the name of the applicant along with those who were actually promoted and posted under Section (H) as mentioned above. Further, in the very same order it has been mentioned that the persons enumerated thereunder are promoted in order of seniority and the order is issued with immediate effect. May be that the applicant was not given the posting but it cannot be said that he was not given promotion. At any rate Annexure-R-1 itself shows that the applicant has been promoted from the same date as his junior was promoted. Be that as it may, this aspect has been clarified by the Presiding Officer's document filed along with the affidavit and we are totally unsatisfied by the stand taken, though the document had been produced at the fag end, during the course of final arguments. Even assuming that Annexure-R-1 is the order promoting the applicant it is seen that it is signed by Shri D.K.Waghmare who is an Sr. Divisional Personnel Officer. It further mention that it has the approval of the competent authority. That means that the competent authority is a higher authority than the person who signed the same. Therefore, it cannot be accepted that the officer who signed the same was also of the rank of Assistant Personnel Officer in the absence of better materials produced in the case. At any rate it can be clearly seen that the same was issued on the approval of the competent authority and necessarily it means that the competent authority above the rank of the person who has signed thereunder. If so, there is no merit in the argument now raised that the Senior Scale Officer is competent to issue the order imposing the punishment. In this connection we may also point out that as per Rule 2 (1) (a) of the Railway Servants (Discipline & Appeal) Rules, the Appointing authority has been defined as under -
(a)'Appointing authority in relation to Railway servant means -
(i)) the authority empowered to make appointments to the Service of which the Railway servant is, for the time being, a member or to the grade of the Service in which the Railway servant is, for the time being, included, or
(ii) the authority empowered to make appointments to the post which the Railway servant, for the time being holds, or
(iii) the authority which appointed the Railway servant to such Service, grade or post as the case may be or
(iv) where the Railway servant having been a permanent member of any other Service or having subsequently held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority. Interpreting the above provisions, the Apex Court in the case of Scientific Advisor to the Ministry of Defence and others Vs. S.Daniel and others, (1991) 15 ATC 799 held as under -
15. Still the basic question that remains is, whether, in the context of Rule 2(a) read with Rule 9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to Rule 9 or to both the authorities falling under the main part of Rule 9(1) as well as the proviso. The sheet anchor of the respondent's case is that the expression 'appointing authority' is used in very few of the rules. One of them is Rule 12 and there can, therefore, be no valid reason to refuse to apply the definition clause in the context of those rules. It is urged that, by holding the person specified in the schedule also to be the 'appointing authority' as defined in Rule 2(a), none of the other rules relating to appeal, revision, etc. become redundant as urged on behalf of the appellants. We agree with the respondents that the expression 'appointing authority' in Rule 12 should have the meaning attributed to it in Rule 2(a). But what is the real and true interpretation of Rule 2(a)? What does that sub-rule talk when it refers to a 'person empowered to make the appointment' in question? These words clearly constitute a reference to Rule 9. Does Rule 2(a) refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of Rule 2(a) and Rule 9, that sub-rule (a) of Rule 2 only envisages the authority to whom the power of appointment has been delegated under Rule 9 and not both the delegator and the delegate. We have come to this conclusion for a number of reasons. In the first place, it is clear, on the plain language of Rule 2(a), that it directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the 'appointing authority'. It envisages only one authority as falling under each of these clauses and not more. The respondent's contention which involves interpretation of clause (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule. Secondly, the strictly literal meaning of Rule 2(a) insisted upon by the respondents would render the rules unworkable. For instance, under clause (i), one of the authorities to be considered is the 'authority empowered to make appointments to the service of which the government servant is for the time being a member'. The respondents belong to one of the Central Civil Services. Though they belong to Class III or Class IV, there are Class I and Class II officers as well therein. Rule 8 declares that only the President can make appointments to Class I in the service. If each of the clauses is read as envisaging a plurality of authorities as contended for and if clause (i) is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the concerned employee is a member. This will render the entire gamut of the rules unworkable. On this interpretation, the president will be the only appointing authority under Rule 2(a) in all cases, being the highest of the authorities envisaged therein. This cannot clearly be correct. Rule 2(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employee holds. In that sense the two parts of clause (i) and clause (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them. One has to restrict oneself to the post or grade of the government servant concerned and invoke clause (i) or (ii) as the case may be. Thirdly, the whole purpose and intent of Rule 2(a) is to provide that appointing authority means either the de facto or the de jure appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment. Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition to safeguard against an infringement of Article 311(1) and ensure that a person can be dealt with only by either a person competent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank. That rule is not infringed by the interpretation placed by the appellants. The provisions of Schedule II in the case of the railways which specify the appointing authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation. Fourthly, the interpretation sought to be placed by the respondents on Rule 2(a) is artificial and strained. It amounts to saying that a person who is empowered to appoint a government servant (as the Director, DERL, for example, undoubtedly is) and who has also appointed him will not be the appointing authority, because, theoretically, even a more superior authority could have appointed him despite having delegated his authority in this regard to a subordinate. On the contrary, the interpretation urged by the Union will not adversely affect the few employees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority. For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the 'appointing authority' by virtue of Rule 2(a). Lastly, the interpretation sought for by the Union is consistent with practical consideration. The appointing authority under the Schedule is a high-ranking authority and, in an organization like the railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organization. It is indeed this realization that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers. (Emphasis supplied).
As per Schedule II of the Railway Servants (Diiscipline & Appeal) Rules, 1968, which is a schedule of disciplinary powers and powers of suspension of different grades of Railway Officers and Senior Supervisors in respect of non-Gazetted staff of Zonal Railways, Chittaranjan Locomotive Works Diesel Locomotive Works , Integral Coach Factory, Wheel &Axle Plant Metro Railways (Calcutta Diesel Components Work (Patiala) Rail Coach Factory(Kapurthala), Railway Electrification Project and Metropolitan Transport Projects (Railways), the various authorities competent to impose punishment have been enumerated. As far as punishments like compulsory retirement, dismissal from service, and removal from service mentioned at serial nos.9,10 & 11 are concerned, the said punishments can be imposed by the appointing authority or an authority of equivalent rank or any higher authority. Therefore, it ensures that the authority competent to impose punishment must be the appointing authority as defined in Clause 2 (1) (a) of Railway Servants (Discipline & Appeal) Rules or any authority of equivalent rank or any higher authority who has to be treated as an appointing authority for the purpose of this rule. This position has been made amply clear by the aforesaid decision of the Hon'ble Apex Court in the case of S.Daniel (supra).
9. Placing reliance on the decision in the case of Smt.Kamta Devi Vs.Union of India & another, (2003 (2) AISLJ 213), it is contended that even though an employee had been promoted by a subordinate officer with prior approval of a superior officer, the order of punishment could be passed by a subordinate authority and there is no illegality in the order being passed merely because approval of the competent authority is required for the purpose of appointment or promotion. The position of the appointing authority as per the rule is not changed. It is to be noticed that the decision rendered by the Hon'ble Apex Court in the case of Kamta Devi (supra) was in the context of Rule 7 and 27 of the Central Reserve Police Force Rules, 1955 and in the case in hand the very order issued shows that approval was taken from the competent authority. Therefore, the person who has issued the order is not the competent authority and the competent authority to promote is the higher authority than the signatory to the order issued. The same view was taken by this Bench of the Tribunal in OA 549 of 2006 (H.K.Tiwari Vs. The General Manager, Central Railways & others) decided on 7.9.2007. That was also the case where the order under challenge was a punishment of reversion to lower grade and one of the contentions raised was that the respondents were not competent to impose major penalty. The respondents heavily relied on the decision of the Hon'ble Supreme Court in the case of Kamta Devi (supra). However, after extracting the relevant portion of the said decision and after referring to Schedule of Powers annexed in the case, The Tribunal held that the punishment of reduction to a lower stage in the time scale of pay for a period exceeding three years with cumulative effect or adversely affecting pension in case of Group 'D' and Group 'C' staff in pay scales of upto and including Rs.5000-8000/- and in Column (2) of 8 it is mentioned that Group 'D' and Group 'C' staff in the pay scale of upto and including Rs.4000-6000/- could not have been imposed by an authority who was not the appointing authority.
19. On the basis of the discussion above, it has to be held that the order of punishment imposed upon the applicant was not authority competent to issue the same. Thus, the penalty being imposed by an incompetent officer is illegal and without any jurisdiction.
20. Turning to the next point as to whether the trap conducted in this case is in violation of Paras 704 and 705 of the Railway Vigilance Manual and if there is any violation, it vitiates the whole proceeding.
21. In this case admittedly the decoy witnesses were non-gazetted Railway employees and one of whom was a witness in the earlier case as admitted by him before the Enquiry Officer while examining as PW 4. Paras 704 and 705 of the Railway Vigilance Manual provides as follows -
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 utilized.
All employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or branch. The Head of Branch should 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 GC notes for legal and illegal transaction. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the CD notes to the decoy will be prepared for making over the GC notes to the delinquent employee on demand. This memo also contains signatures of decoy, witnesses and Investigating Officers/Inspectors. The independent witnesses will take up position at such a place where from 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 bribe a fact to which they will be deposing in their 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 witnesses to produced all money including private, and bribe money. The total money produced will be verified for relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an enveloped sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness the accused refuses to sign the recovery memo, and sealing of the notes in the envelope. There cannot be doubt therefore that in this case the witnesses were selected or not as enjoined by the Manual. In the case of Moni Shankar Vs. Union of India & others, (2008) 1 SCC (L&S) 819 referring to the above Paras of Railway Vigilance Manual, the Hon'ble Apex Court is of the view that with a view to protect innocent employees from traps, appropriate safeguards have been provided in the Railway Manual. The case of Moni Shankar (supra), also is a pre-arranged trap and, therefore, not an exceptional case where to gazetted officers as independent witnesses were not available. Only one Head Constable was deputed to witness the operation. Thus, the number of witnesses was, thus not only one, in place of two but also was a non-gazetted officer. It was a pre-planned trap and thus even independent witnesses could have also been made available. It is noted that the Booking Counter was busy and normally remained crowded. Before the Enquiry Officer, the said decoy passenger accepted that he had not counted the balance amount received from the appellant after buying the ticket. It was only half and hour later that the vigilance team arrived and searched the appellant. It is contended by the applicant herein that here also the raid was conducted at a time when he was busy at his work and as a matter of fact even though the allegation is that he did not return correct balance amount on physical check admittedly, he was found short of Rs.103/-. According to the applicant he denied of having not returned the correct amount. At any rate we need not go into the merits of the evidence adduced in the case but we are only examining the question from the point of view of the legality of the trap conducted in the matter. Going by the decision of the Apex Court in the case of Moni Shankar (supra), wherein similar circumstances existed, it was held along with other factors that total violation of the guidelines together with other facts for consideration as to whether department has been able to prove the charge of the delinquent officer and it has been held that 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. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
22. Per contra the learned counsel for the respondents places strong reliance on the decision of the Apex Court in Chief Commercial Managing, South Central Railways Vs. G.Ratnam, 2007 SCC (L&S) 851 canvassing the position that Manual is nothing but procedural in nature, not statutory in character, the violation of which does not vitiate the enquiry. It is to be noted that the said decision has been referred to by the Apex Court in the case of Moni Shankar (supra) and paras 17 & 18 of the G.Ratnam's case has been quoted. In para 16 the Hon'ble Apex Court has observed as under -
We have, as noticed hereinbefore proceeded on the assumption that the said paragraphs (Paras 704 and 705) 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. Thus, together with the violation of the Manual as noticed above, if there are other factors, which have a relevance in deciding the validity of the enquiry, then certainly as held by the Apex Court that the total violation of this 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 to render the enquiry vitiated. The same view has been expressed by a co-ordinate Bench of this Tribunal in OA 837/1999 (Mohan H.Raut Vs. Union of India & another) decided on 22.2.2010 wherein also similar contention based on earlier decision of the Apex Court in the case of Kamta Devi (supra) was raised but this Tribunal after referring to both the decisions of Kamta Devi (supra) as well as that of G.Ratnam's (supra) held in paragraph 8 as follows -
In the case before us, the admitted position is that there was no independent witness, contrary to the requirement of Paragraph 704 of the Railway Vigilance Manual. The decoy was a Head Constable. Contrary to Para 705 of the Railway Vigilance Manual two gazetted officers of the Railways were not present as witness. Then, in paragraph 10 it was held that -
10. The factual matrix of the prsent case is similar to that as obtaining in Moni Shankar's case. Respectuflly following the decision of the Hon'ble Apex Court in that case, we find that due to conduct of the decoy operation in the applicant's case without adherence to the provisions of Paragraphs 704 and 705 of the Railway Vigilance Manual the subsequent disciplinary proceedings based on the decoy operation became vitiated and thus were rendered ab initio void. We are in agreement with the view as expressed above.
23. The next contention is based on alleged violation of Rule 9 (21) of the Railway Servants (Discipline & Appeal) Rules, 1968. We have gone through the enquiry proceedings and the Enquiry Officer has put certain general questions but no specific questions of any adverse nature have been deposed by any of the witnesses is brought to the notice of the deliquent for his answer. According to the respondents' counsel the deliquent officer having submitted that he will submit defence statement after the culmination of the equiry, is sufficient compliance of Rule 9 (21). In this connection we may refer to Rule 9 (21) of the Railway Servants (Discipline & Appeal) Rules which reads as under -
(21) The Inquiring Authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him. Even though, specifically the Enquiry Officer has not put any questions with reference to such adverse circumstances, it cannot be said that he has not made general questions to him regarding the circumstances appearing against him. Therefore, on facts we find that the non-compliance of Rule 9 (21) is not attracted.
24. Even though it is contended by the learned counsel that both the charges are not proved, and the only available evidence being that of trap witnesses, are in the facts and circumstances of the case un-acceptable. There is absolutely no other evidence to substantiate the charges. Even though we may not speak in the realm of re-appreciation of evidence, it is however to he held that except the decoy evidence there is no other evidence of the witness examined to support the charges.
25. We find that there is yet another infirmity in the matter of conducting enquiry. Even though it is contended that the Enquiry Officer has acted as a prosecutor in putting leading questions, we have gone through the evidence. Even though there is no Presenting Officer as such it cannot be said that the questions made by the Enquiry Officer to get answers put leading questions and took the role of a prosecutor. We may however add to say that the Enquiry Officer after the discussion of the evidence established that the CE has overcharged PW-4 when CE's cash was subjected to check, it was found short by Rs.103/- instead of excess due to overcharging. Hence, possibility of overcharging cannot be ruled out. We are unable to find out the reasoning behind the above finding. Having stated that it is a case of overcharging Rs.103/- and having physically charged, the consequence is that overcharging cannot be ruled out as there is no specific finding that there was overcharging. Coupled with the factors as noticed above, namely, the violation of the provisions contained in Paras 704 and 705 of the Vigilance Manual, and interference of the officer to pass order of punishment impugned in this case, we find that the order of punishment cannot be sustained in the eye of law. Accordingly, we quash order dated 19.3.2004 (Annexure-A-1) and direct the respondents to reinstate the applicant within a period of four months from the date of receipt of a copy of this order with all consequential benefits. Whatever amount the applicant has received by way of retiral benefits, it is open to the respondents to pass appropriate orders in accordance with rules regarding the retiral dues already received by him in lump sum, whether the same have to be re-deposited or otherwise. However, the acutal amount of pension he has received will be adjusted against any monetary benefits payable to the applicant while giving effect to the above order.
26. In the result, the OA is allowed. However, in the circumstances of the case, there will be no order as to costs.
(R.C.Joshi) (Justice P.R.Raman) Member (A) Member (J) mf