1. Applicant, a Booking Clerk in Railways, has assailed an order passed by the disciplinary authority (DA) on 22.4.2003, imposing upon him, after disciplinary proceedings, a major penalty of reduction to lower scale in the time scale for a period of 10 years with cumulative effect. Also assailed is an order passed in appeal on 3.12.2003, whereby punishment has been reduced to the bottom of the lowest stage in the same grade for a period of 8 years with cumulative effect.
Lastly, the order passed by the revisional authority on 30.8.2005, upholding the modified punishment, is also assailed.
2. While posted as Booking Clerk under CES/MKDE on 18.7.1998 on a vigilance raid applicant has been proceeded against for a major penalty under SF-5 under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, for allegedly charging excess amount of Rs. 50/- from decoy passenger, mixing up his private cash with the Government cash, acting with malafide intention to earn illegal money, showing artificial shortage and for shortage of Rs. 72/- in Government cash.
During the course of enquiry, on examination of the witnesses and submission of the defence, the enquiry officer (EO) has held applicant guilty of the charge Nos. 1 and 3 but disproved charge Nos. 3 and 4 and proved charge No. 5 without malafide intention. Applicant when represented to against the finding of the EO, culminated into a penalty by the DA, which on modification in appeal was affirmed in revision, gives rise to the present OA.3. Shri B.S. Mainee, learned Counsel appearing for applicant has taken a plethora of submissions to assail the impugned orders, but at the outset, stated that the raid conducted by the vigilance is illegal, as apart from the DW, the shadow witness had not appeared in enquiry and in violation of paragraph 705 of Indian Railway Vigilance Manual (IRVM), which is mandatory, gazetted officers having not been included in the list as independent witnesses, has vitiated the enquiry.
Reliance has been placed on a decision of this Tribunal in OA No.508/2005 in Jasbir Singh v. Union of India through the General Manager and Ors. decided on 12.02.2007.
4. Learned Counsel would further contend that DW was a hardened decoy, who had appeared in several enquiries. As the EO during the course of enquiry had disallowed questions pertaining to the past depositions of the decoy had acted as a prosecutor, which is contrary to the Rule of the enquiry defined in RBE No. 89/2001.
5. Learned Counsel would further contend that as per the instructions of Railway Board dated 5.12.1985 it is mandatory not only upon the DA but also appellate authority as well as the revisional authority to apply their mind to the contentions raised and to pass speaking orders.
As speaking orders have not been passed, is an infraction to the rules, vitiating the orders.
6. Shri B.S. Mainee has also stated that the defence not to include independent witnesses on the ground that there was paucity of time to the vigilance and he has stated by referring to the statement of imputations that on the information of alleged indulgence in malpractices by the Booking Clerk, on a source information, a raid was conducted, which shows that there was enough time but by non-participation of the independent witnesses the entire enquiry is vitiated.
7. Learned Counsel would contend that excess amount of Rs. 50/-, has not been proved as the same amount, which has been accepted as an excess amount. Without independent witnesses being examined and as it is the tendency of the vigilance to falsely implicate the persons, non-following of the mandatory procedure and implications thereof having not been considered by any of the authorities vitiates the enquiry.
8. Shri Mainee stated that the EO had admitted the aforesaid lapses, which has prejudiced applicant insofar as the raid was not conducted independently and there is an iota of false implication of applicant, which has not been ruled out.
9. On the other hand, learned Counsel of respondents Shri R.L. Dhawan objected to referral to RBE 89/2001 on the ground that no fresh document can be introduced without opportunity to respondents to rebut.
Learned Counsel has relied upon a decision of the Apex Court in Apparel Export Promotion Council v. A.K. Chopra to contend that the Tribunal is precluded from re-appreciating the evidence.Karan Singh v. Union of India through the General Manager and others, decided on 4.8.2006, it is contended that on the basis of the decision of the Bombay High Court where the decision of the Andhra Pradesh High Court has been held to be per incuriam and the provisions of paragraph 705 of IRVM have been found to be mandatory. Accordingly, in Jasbir Singh (supra) when the decision in Karan Singh (supra) has not been considered, makes it per incuriam.
11. As regards speaking orders, learned Counsel would contend that when DA agrees and in turn the appellate authority and revisional authority record the finding, simple agreement is the compliance and there is no need to record reasons and the decision of the Apex Court in State Bank of Bikaner v. Prabhu Dayal SLJ 1996 (1) SC 55 has been relied upon. A similar reliance has been placed on a decision of the Apex Court in State of U.P. v. Harvinder Kumar 2004 (13) SCC 117.
12. Learned Counsel would contend that orders otherwise passed by the departmental authorities are reasoned and while referring to the pleadings in the counter it is contended that applicant has admitted the recovery while signing on the seizure memo and Government cash cannot be mixed up with private cash.
13. Learned Counsel would contend that, as the raid was not a pre-planned raid but a test check on source information, there was no need of joining two independent witnesses.
14. Learned Counsel relying upon the decision of the Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma contended that as no prejudice has been caused, the violation is of no avail.
15. Lastly, it is contended that in the test check memo, which was prepared before the vigilance check, the cash of applicant and Government is mentioned and as shortage of Rs. 72/- was found, it is clear indication that applicant has accepted the excess money from the decoy passenger. It is also stated that the post check proceedings were conducted by Shri Inderjit Mehto, who established the charge against applicant, as money was recovered from him in the presence of Government officials and tallied with the number shown in the test check memo.
17. We have carefully considered the rival contentions of the parties and perused the material on record.
18. There are conflicting opinions on the issue whether paragraphs 704 and 705 of IRVM are mandatory guidelines, non-observance of which vitiates the punishment imposed in the cases where decoy passengers are conducting vigilance raids. The genesis of the mandatory character of the IRVM has been dealt with in Abdul Salam v. Union of India ATJ 2003 (2) 118, whereby the High Court of Andhra Pradesh ruled paragraphs 704 and 705 of the IRVM being mandatory and non-compliance thereof a serious lacuna, causing prejudice to the delinquent official. However, the High Court of Mumbai in WP No. 3748/2002 in Union of India v. Moni Shankar has not approved the view taken by the Tribunal and ruled paragraphs 704 and 705 of IRVM as administrative instructions but not mandatory rules or regulations. The decision of the High Court of Andhra Pradesh in Union of India v. M. Anjaneyulu and Anr. WP No.1489/2002, wherein the provisions of IRVM which have been found to be mandatory by the Mumbai Bench, have been commented upon to be decided on the peculiar facts.
19. In Karan Singh (supra) with regard to provisions of IRVM whether mandatory or otherwise, the following observations have been made: 12. As far as contention raised regarding violation of mandate of paras 704 and 705 of Indian Railway Vigilance Manual is concerned, our attention was drawn by learned Counsel for Respondents to Bombay High Court's judgment in Writ Petition No. 3748 of 2003 Union of India and Anr. v. Shri Moni Shankar whereby the view taken by this Tribunal was not approved. Vide para 13 of said judgment, it was observed that the Tribunal appears to have relied upon instructions set out under paragraphs 704 and 705 of the Vigilance Manual and observed that the safeguards provided therein were to ensure that false implication of a Railway employee can be avoided. Hon'ble High Court observed that : "These are only administrative instructions for use of the Vigilance Department. They cannot be regarded as mandatory rules or regulations as such". We may note that the aforesaid Division Bench also noticed the view taken by Hon'ble Andhra Pradesh High Court in Union of India and Ors. v. M. Anjaneyulu and Anr. (Writ Petition Nos. 1489 of 2002, 26165 and 25111 of 2001) wherein it was held that the instructions contained in paragraphs 704(a) and 705(b) ought to be observed by the investigating agency and the procedural infraction could be fatal to the decoy proceedings. The Hon'ble Bombay High Court observed that the observations made by Andhra Pradesh High Court, with due respect, were in relation to peculiar facts of that case. In our considered view, the said findings and law is applicable and binding on this Tribunal.
Mere non-inclusion of 2 Gazetted Officers in the raid would not, in our considered view, render such proceedings invalid or void particularly when applicant as well as Shri Naval Singh, who had been his main plank of defence did not dispute that contents of statement recorded by Vigilance. Rather he unequivocally stated that : "its contents as correct." It is not the case of applicant that the said Vigilance Manual is a part of statutory Rules framed under Article 309 of the Constitution of India. Thus reliance placed on the judgments in the facts of present case is misplaced.
20. However, in a subsequent decision where one of us (Shri Shanker Raju) is a party, in Jasbir Singh (supra) recorded the following observations, including the left out lis as to whether IRVM is part of statutory rules framed under Article 309 of the Constitution of India, which has not been adjudicated in Karan Singh (supra): 24. Another aspect of the matter, which is raised, is non-compliance of paragraphs 704 and 705 of the Indian Railways Vigilance Manual.
Though in one of the decisions of the Andhra Pradesh High Court, which has been relied upon by the Tribunal in Sk. Abdul Salam v. The Divisional Railway Manager S.C. Railway and Ors. ATJ 2003 (2) CAT 118, it is ruled that paragraphs 704 and 705 are mandatory and non-compliance thereof is a serious lacuna, causing prejudice to the delinquent official, has been disagreed to by the High Court of Mumbai in Moni Shankar's case (supra) by ruling that the provisions are directory and case is distinguishable, in the matter of precedent, as the High Court under whose jurisdiction the Bench of the Tribunal is functioning the decisions are binding but the decision from the other High Court of equal coram and its precedent value as well as the manner in which it is to be followed is left to the discretion of the Tribunal. As we find that the decision of the Mumbai Bench of the Tribunal as well as the decision of the Mumbai High Court has not taken into consideration the decision of the Apex Court in P.R. Subramaniyam's case (supra), the decisions are per incuriam. Moreover, the decision of the A.P. High Court clearly after citing relevant paragraphs of Vigilance Manual ruled that the procedure prescribed is mandatory. We respectfully follow the decision of the A.P. High Court in the wake of doctrine of precedent.
25. However, what we find from the decision in Subramaniyam's case (supra) that in Railways IREC-I are the rules framed by the President of India under Article 309 of the Constitution of India ruled that Rule 157 of the Code permits Railway Board full powers to make rule of general application to non-gazetted Railway servants under their control. These rules framed are in this exercise. As the Railway Board prescribes no procedure or method for making such rules, these Manuals and Codes are treated as Rules having the force of rules framed under Article 309 of the Constitution of India on the delegated power of the Railway Board. Accordingly, Vigilance Manual is also a compilation of the instructions issued by the Railway Board and has to be treated as statutory in nature and is comparable with the rules framed under Article 309 of the Constitution of India by virtue of paragraph 157 of the Code ibid.
In such view of the matter, the Vigilance Manual directs that in a vigilance raid at least two gazetted officers are to be associated, is a mandatory provision, as rightly ruled by the A.P. High Court.
As this has not been done, the entire raid and pursuant action are vitiated on that count alone.
21. Having regard to the conflicting decisions of the Tribunal, it would be in the interest of justice to settle this issue once for all by placing the matter before the Hon'ble Chairman on administrative side for appropriate action with the following reference: i) Whether paragraphs 704 and 705 of the IRVM issued by the Railway Board are statutory rules within the purview of Rule 157 of the Indian Railway Establishment Code, Volume-I and to be deemed as the Rules framed by the President of India under proviso to Article 309 of the Constitution of India; and whether the aforesaid provisions of the IRVM are mandatory and obligated to be followed, non-compliance of which vitiates a disciplinary action?