Central Administrative Tribunal - Delhi
Shri Shiv Narayan Sharma vs Union Of India Through on 6 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3187/2013 Reserved On:29.06.2015 Pronounced on:06.07.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Shiv Narayan Sharma Aged 52 years S/o Late Dila Ram Sharma R/o G-18/10, Sector-15, Rohini, New Delhi-110089. Applicant By Advocate: Shri S.K. Gupta. Versus Union of India through 1. General Manager, Northern Railway, Baroda House, New Delhi. 2. Divisional Railway Manager, Northern Railway, State Entry Road, New Delhi. 3. Additional Divisional Railway Manager (Op), Northern Railway,DRM Office, State Entry Road, New Delhi. 4. Sr. Divisional Commercial Manager, Northern Railway, DRM Office, State Entry Road, New Delhi. 5. Divisional Commercial Manager/S, DRM Office, State Entry Road, New Delhi. 6. Shri Ahswani Kumar Sharma Inquiry Officer, C/o Divisional Commercial Manager/S, DRM Office, State Entry Road, New Delhi. .Respondents By Advocate: Shri A.K. Srivastava. ORDER
G. George Paracken, Member(J) Applicant in this Original Application is aggrieved by the disciplinary proceedings initiated against him culminated in the order of the Disciplinary Authority imposing upon him the punishment of reduction to a lower stage at the initial i.e. Rs.5200/- in grade Rs.5200-20200 with Grade Pay Rs.1900/- till retirement, i.e. 31.05.2021.
2. The brief facts of the case are that the Applicant was served with the Memorandum dated 29.05.2008 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. The substance of imputation of misconduct of misbehavior in respect of which enquiry was proposed to be held as set out in the enclosed statement of Articles of Charges were as under:-
Article of charges framed against Shri Shiv Narayan Sharma, TTE/NDLS while working in Train No.2450 on 26.01.2008 between MTJ-KTT and had committed serious irregularities in as much as:
Article-I That he collected Rs.1500/- from a group of passengers holding SL Class JCRT No.244-5797951 for allowing them to travel in AC-III coach without issuing any receipt against due fare of Rs.2850/- without any valid reason.
Article-II He is responsible for carrying two without ticket and four irregular passengers obviously on monetary consideration for his personal gain.
By the above act of omission and commission Shri Shiv Narayan Sharma, TTE/NDLS unbecoming of a Railway servant contravening provisions of rule No.3.1(I, (ii) and (iii) of Railway Service (Conduct) Rules, 1966.
3. The aforesaid Article of Charges were proposed to be sustained by the following lists of documents and witnesses:
List of Documents 1. Cash check Memo No.5/48 (Original)
2. EFT Foil No.121743 blocked for vigilance check (Original).
3. Statement of Shri Shiv Narayan Sharma, TTE/NDLS (Original) pages 2 recorded on 26.01.2008.
4. Working charts of A/1 & B/1 Page 1 to 5 (Original).
5. Written state of the Passenger named Shri Mandeep Singh (Original).
List of Witnesses Shri Vivekanand Sharma-II/Vig./RB.
4. Applicant denied the aforesaid charges and submitted his defence on 06.10.2008. However, the Disciplinary Authority decided to go ahead with the enquiry proceedings and the Enquiry Officer submitted his report on 29.05.2008 holding that both the charges stood proved. The relevant part of the said report reads as under:-
5. Discussion of Evidence on the charges.
5.1 Charge No. 1: -
That he collected Rs. 1500/- from a group of passengers holding S/L class JCRT No. 244-5797951 for allowing them to travel in AC-III coach without issuing any receipt against due fare of Rs. 2850/- without any valid reason. The plea of defence is not acceptable, because CO has admitted in Ex. P-2 (i &ii) that he had accepted a part payment (1500/-) of Rs. 2850/- from a passenger holding JCRT no. 244-5797951 and not issued him any receipt (EFT), who was regularized during vigilance check by CO in his manned coach 3 AC while the passenger confirmed in his statement vide Ex. P-4 that he was willing to pay, but CO did not collect the whole amount and allotted him the berths in #AC coach and accommodated them with a promise to collect rest amount at the destination station Kota. The defence took the plea of not recording Ex. P-4 in COs presence, is also not acceptable because in Ex. P-2 in answers to Q-3, Q-4 & Q-5, it was asked that the passengers in question gave their statements, but CO had not objected anywhere in these documents, the plea of CO is after thought. Moreover, as per Ex. P-2 (ii) in answer to Q-7, CO had confirmed that he was found standing before the gate of 3AC coach when train reached at MTJ, which clearly shows that up to MTJ station, CO was available in 3AC coach and unauthorized passengers were also in the same coach. If CO was willing to issue the EFT to those passengers, could issue well in time.
Confidential No. Vig-137 Coml-II dated 29.05.2008.
D&AR Enquiry Report of Sh. Shiv Narian Sharma, TTE/ NDLS.
Whereas the train started from NZM at 07-30 hours and the vig. Check was conducted at 10-15 hours. The plea of CO that the passengers contacted him while he was checking S-1 coach, is also not acceptable because a passenger who want to travel in higher class and agreed to pay the difference of fare for his whole journey then he will not approach the TTE after a half leg of his journey is passed. There is no question of contacting by those passengers to CO in S-1 coach while they had already confirmed berths in S-2 coach. Therefore, the possibility of contacting the CO is either at NZM or in 3rd AC coach. As such in view of the above, this charge is proved against the CO.
5.2 Charge No. 2:-
He is responsible for carrying two without ticket and four irregular passengers obviously on monetary consideration for his personal gain. The plea of CO that the passengers were not having full amount of Rs. 2850/- so the EFT could not be issued. While during the check the passengers were found having sufficient amount with them to pay and paid the balance amount, those 5 passengers were regularized by CO without penalty clearly shows they had allowed by him. Moreover, if there was no dealing with them of CO, therefore, he had to charge those passengers with penalty. One passenger, who was allotted berth No. 47 in A-1 coach, was also found in COs manned coach, who was charged by him with penalty due to having no any ticket but the possibility of all those passengers allowing and carrying by CO cannot be ruled out. Moreover, a part collection of fare is more than sufficient to speak the intention of CO; he had to collect the full amount from the passengers in question who paid the balance amount during check. As such in view of the above this charge is also proved against the CO.
6. Conclusion and Findings.
In view of oral, documentary evidence available on record and considering the defence submitted by CO the findings is as under:-
Article of Charge -1 stands proved.
Article of Charge-2 also stands proved.
5. Applicant made a representation dated 15.12.2008 against the aforesaid report. However, the Disciplinary Authority, vide its order dated 23.06.2010, imposed the aforesaid punishment of reduction to lower stage. The relevant part of the said order reads as under:-
Charge No. 1 you have pleaded in your comments that your manning four coaches against the yard stick limit of three coaches. The check was conducted at MTJ and all the coaches were hardly possible. During the Check no variation was found in the case produced by him. Although in the check the vigilance inspectors got a complaint from the passenger that he had a PNR of four passengers, who had confirmed reservation in S-2 coach, & the party wanted one more ticket, as such he requested to you for accommodate them in AC-3 tier coach & they ready to pay Rs. 2,850/- due fare. On the request of the party, you allowed them and party gave Rs. 1500/- and told that the balance will be paid after issue of EFT. This complaint is neither authenticated by the II nor it was got signed from you. The passenger has also not been cited as prosecution witness, hence un-corroborated statement carry no evidentiary value as per Railway Board circular No. 84-vig-1-DAR-1-4 dated 15.11.1984. You further pleaded that you were not given the opportunity to cross examine the complaint. Your these pleas are not accepted and totally unjustified as there was no complaint received by the II/ Vigilance, railway board prior to vigilance check, it was simple written verification from the passengers who was detected during the vigilance check as irregular passenger. Latter on the above irregular passenger was got regularized during the vigilance check. Moreover, there is no provision to collect part amount of fare from the passenger and you also allowed the passenger in 3AC coach without regularizing their tickets. It is evident from Ex. P-4 that you did not mention the name of the passengers and berth number also in the chart. You were given full opportunity to explain your position during the check. When you was asked to produce your government and private cash, you deliberately did not produce the amount of Rs. 1,500 /- neither as private cash nor government cash, which was collected from the party of irregular passenger, later on you admitted the fact regarding the accepting the amount of Rs. 1500/- form the passenger after disclosing by the passenger in presence of vigilance inspector that he had given Rs. 1500/- to you. Thus this charge is proved against you during the enquiry and I agree with findings of the enquiry officer.
As far as charge No 2 you pleaded that the passenger paid fare & penalty without any objection and if you would has allowed him to travel in A-1 coach, he would have not paid the penalty charges. This plea of your is not tenable because you are fully responsible for your manning coaches. It is hard to believe that a without ticket passenger enable to travel in upper class coach without connivance of the coach TTE. During the check and he was got charged with fare and penalty, there was no option with you except to charge the passenger only. Had there been no vigilance check railway would have suffer revenue loss.
In view of the above discussion, I hold you responsible for the charges levelled vide SF-5 dated 29.05.2008. Therefore, I have decided to impose upon you the punishment of reduction to lower stage at the initial i.e. Rs. 5200/- in grade Rs. 5200 -20,200 with grade pay Rs. 1,900/- till retirement i.e. 31.05.2021 with cumulative effect.
Accordingly, your pay is reduced with immediate effect from Rs. 13,200/- to Rs. 5200/- in grade Rs. 5200 -20,200 +1900/- GP till retirement i.e. 31.05.2021 with cumulative effect.
6. The Applicant filed an appeal against the aforesaid order on 20.07.2010 but the same was dismissed vide order dated 29.10.2010. Applicant has also made a Revision Petition dated 30.11.2010 in the matter but the same was also dismissed vide order dated 06.01.2012.
7. The Applicant has challenged the aforesaid orders in this Original Application on the ground that Disciplinary Authority has not considered the detailed defence statement and decided to hold the enquiry without any application of mind. He has also stated that one of the listed documents by which the Articles of Charges were proposed to be sustained was the written statement of the passenger, namely, Shri Mandeep Singh but he has never been made a witness in the case. Therefore, the aforesaid document could not have been taken into consideration at all. He has also stated that the Enquiry Officer held that the charges have been proved against him was relying upon the statement given by himself in the presence of Vigilance Team under duress. In this regard he has relied upon a judgment of the Apex Court in the case of Moni Shankar Vs. Union of India and Another 2008(3) SCC 484. The relevant part of the said order reads as under:-
10. We may at the outset notice that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in the Railway Manual. Paras 704 and 705 thereof read thus:
"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 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 transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the GD notes to the decoy will be prepared for making over the GC 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 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 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, 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)-(d) * * *"
11. The trap was laid by the members of the Railway Protection Force (RPF). It was a pre-arranged trap. It was, therefore, not a case which can be said to be an exceptional one where two gazetted officers as independent witnesses were not available.
12. Indisputably the decoy passenger was a constable of RPF. Only one Head Constable from the said organisation was deputed to witness the operation. 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.
8. He has further relief upon an order of this Tribunal dated 25.01.2012 in OA No.725/2011 A.K. Tiwari Vs. U.O.I. through Secretary, Railway Board and Others. In the said case the Applicant was imposed with the penalty of removal from service based on the enquiry report conducted by the vigilance staff. The relevant part of the said order reads as under:-
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.
XXX XXX XXX 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.
9. The Applicant has also stated that the aforesaid order of this Tribunal was upheld by the Honble High Court vide its order dated 09.05.2013 in W.P. ( C) No.5392/2012 Divisional Railway Manager Vs. A.K. Tiwari and Others. The operative part of the said order reads as under:-
5. In the decision of the Supreme Court reported as 2008 (1) AJW 479 Moni Shankar vs. U.O.I & Anr. the Supreme Court held that infraction of the instructions contained in the Vigilance Manual by themselves may not be enough to vitiate the disciplinary proceedings but its effect in combination with other deficiencies has to be taken into account.1
6. Concededly, in paragraph 10.1 of the impugned decision the Tribunal has correctly noted the law declared by the Supreme Court in Moni Shankars case (supra).
7. In addition to the infraction of the instructions contained in Vigilance Manual, the Tribunal has further noted that the so called decoy passenger was a Group-D employee of the Indian Railways. He was a Porter. The Tribunal noted that the decoy had admitted that even on earlier occasions he had acted as a decoy passenger. We note that during cross-examination, the decoy passenger admitted that : ticket babu was calling him and even then he did not come back to the ticket babu because he had to hand over the ticket to the vigilance team.2
8. What is of greater importance is to note that the decoy passenger admitted that after he received the ticket which was preceded by he paying money to the respondent and as he has retraced his steps other passenger standing in the queue told him that the respondent was calling him back. Obviously the probable reason for the respondent calling back the decoy passenger was to return the excess fare which had been left behind. It is in this context that the act of a decoy passenger assumes importance.3
9. For, if the decoy is a lowly paid employee of the Indian Railways, the raiding party can always tell him to pay a larger sum and on receipt of ticket not take back the balance and return. For example, a raiding party may know that the fare to a particular destination is `450/-. The decoy may be told to hand over a note in the denomination of `500/- and after receiving the ticket retraced the steps. The person issuing the ticket would be left with an excess of `50/. The trap would succeed.1
10. This is why law has always placed emphasis on the fact that the trap witnesses should not be lowly paid street hawkers, vendors and porters etc. who are susceptible to pressure from the higher authorities.
11. As a Writ Court our concern would be whether the Tribunal has properly evaluated the issue of law and fact and not to re-appreciate the evidence.2
12. Finding that the approach of the Tribunal is in conformity with the law declared by the Supreme Court in Moni Shankars case (supra), we dismiss the writ petition but without any order as to costs.
10. Again he has relied upon an order of the Honble High Court of Delhi in W.P. ( C) No.18605-08/2004 U.O.I. and Others Vs. M.K. Meena wherein it has been held as under:-
We are conscious of the scope of judicial review in departmental proceedings under Article 226 of the Constitution of India is limited and we have examined the matter keeping in mind the legal position that this court cannot re-appreciate the evidence like the Appellate Court. The jurisdiction of this court would be to find out whether there is no evidence on record or whether on the evidence on record no person would come to the conclusion arrived at by the Inquiry Officer.
Further as noted above the two Gazetted officers were not associated as per requirement of paragraphs 704 & 705 of IRVM. No explanation has come on record in this regard despite the fact that it was a pre planned trap. It is not the case that it was an exceptional case where two Gazetted officers were not available. The provision of presence of two Gazetted officers at the time of trap has been laid down to obviate false cases. Even two independent witnesses were not associated at the time of trap.
In view of above discussion, no case is made out for interference of this court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed.
11. Further, he has stated that the Disciplinary Authority failed to consider the representation made against the report of the Enquiry Officer and passed its order without any proper reason.
12. The Respondents have filed their reply stated that the Applicant collected Rs.1500/- from a group of passengers holding SL class JCRT No.244-5797951 for allowing them to travel in AC-III tier coach without issuing any receipt against due fare of Rs.2850/- without any valid reason. He was carrying two without ticket passengers and four irregular passengers obviously on monetary consideration for his personal gain. He has, therefore, been charge sheeted. They have also stated that as the Applicant denied the aforesaid charges vide his representation dated 02.06.2008, an enquiry was conducted and the Enquiry Officer held that the charges have been proved. They have also stated that during the enquiry, all reasonable opportunity was provided to him but he could not prove his innocence. Thus the charges stood proved against him. The copy of the enquiry report was provided to him and after receiving his comments on the said enquiry report, the Disciplinary Authority, agreeing with the Enquiry Officers report, imposed a penalty of reduction to lower stage. The Applicant submitted an appeal against the aforesaid order but the Appellate Authority also upheld the order of the Disciplinary Authority by passing a detailed order. His revision petition as well as the mercy petition was rejected by the competent authority.
13. We have heard the learned counsel for the Applicant Shri S.K. Gupta and the learned counsel for the Respondents Shri A.K. Srivastava. Admittedly, the charges have been framed against the Applicant based on the report of the Vigilance Team after holding a preventive check but the Disciplinary Authority has not observed the safeguards provided in paras 704 and 705 of the Railway Manual. In terms of para 705 ibid, there shall be at least two independent witness to support the report of the vigilance team. In terms of para 705 ibid, 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. The only witness was Shri Vivekanad Sharma who was a Vigilance Officer. Obviously he had to support the version of the vigilance on the basis of whose report, the charges have been framed against the Applicant. The Apex Court in its judgment in the case of Moni Shanker (supra) held that the safeguards prescribed in Para 705 of the Manual are to avoid false implication of a railway employee and, therefore, they could not have been given a complete go-by.
14. Further, it is seen that one of the important documents relied upon by the Enquiry Officer, i.e., the written statement of passenger Shri Mandeep Singh but he was not made a witness in the case. The Respondents have not made any attempt to summon him in the departmental proceedings. The listed documents have also not been proved in the departmental enquiry proceedings. In a departmental enquiry the relied upon prosecution documents have to be proved by the concerned prosecution witness. There is no point in listing a witness who has noting to do with the listed documents. The Enquiry Officer conducted the enquiry in a casual manner and rendered his findings that the charges have been proved without any valid evidence. Therefore, his report is perverse. The Apex Court in State of U.P. Vs. Saroj Kumar Sinha 2010 (2) SCC 772 held as under:-
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
15. We, in the above facts and circumstances of the case, we allow this OA and quash and set aside the enquiry reported dated Nil, orders of the Disciplinary Authority dated 23.06.2010, Appellate Authority dated 29.10.2010 and Revisional Authority dated 06.01.2012 with all consequential benefits. The Respondents shall also pass appropriate orders complying with the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh