Dr. A.K. Mishra, Member (A)
1. The applicant has challenged the orders of the respondent authorities passed in connection with the disciplinary proceedings started against him. His prayer is to set aside all the impugned orders and to direct the respondents to restore the applicant to his original post with all consequential benefits.
2. While working as Booking Clerk at Agra, a chargesheet was issued to him on 13.05.2005 alleging that during his duty hours at Booking Window No.1 on 7/8.03.05 at Amernath Booking Office, he over-charged a decoy passenger by Rs. 44/-; moreover, the check revealed a cash shortage of Rs. 20/- with him. A regular inquiry was conducted in which the Inquiry Officer (IO) found that the first charge was partially proved and the second charge fully proved. He made a representation to the Disciplinary Authority (DA) who held that both the charges were proved against him, besides the applicant was also guilty of negligence in not correcting the printed fare applicable to child ticket issued by him. The DA imposed the penalty of reducing the applicants pay to his basic pay of Rs. 3200/- for 10 years with cumulative effect. The Appellate Authority (AA) upheld this penalty. The Revising Authority (RA) after giving show cause notice enhanced the punishment to that of compulsory retirement. On further appeal, the next AA modified the penalty on humane considerations to that of reduction of pay to the basic level of Rs.3200/- till his retirement; hence this O.A.
3. At the time of hearing, learned counsel for the applicant made the following submissions:-
(1)The shortage of Rs.20/- detected at the time of cash verification during vigilance check is nothing unusual. According to Rule-710 of the Railway Commercial Manual, any deficiency in cash should be made good at once and in the present case the applicant deposited the deficit amount of Rs.20/- on that day itself. Moreover, the railway authorities themselves do not consider any shortage below Rs.100/- as coming under the scope of misconduct for disciplinary action. She relied on a judgment of this Tribunal in OA-508/2005 in which detection of excess amount of Rs.168/- was not accepted as misconduct.
(2)As regards the observation of the DA that the applicant was negligent in not correcting the printed fare applicable to child ticket, she submits that this allegation is not part of the charge levelled against the applicant. Therefore, it should not have been considered either by the Inquiry Officer (IO) or the DA in coming to their conclusion about the guilt of misconduct of the applicant.
(3)The Vigilance team did not follow the guidelines prescribed in Paragraphs 704 and 705 of Indian Railway Vigilance Manual (IRVM) while conducting the decoy operation: no independent witness was used, let alone of gazetted rank. Prosecution witness No.1 admits in his deposition that he had earlier participated in a similar exercise conducted by the vigilance authorities. Using the same witness for more than one occasion is in contravention of guidelines of IRVM. Similarly, the shadow witness was a Constable of RPF who had worked with the Vigilance Department and could not be termed as an independent witness. The guidelines of IRVM have been prescribed to ensure transparency about a vigilance trap or decoy operation. The objective is to ensure that the action of the Vigilance Team is above board and not inspired by any other motive. She places reliance on (i) the judgment of the Hon’ble Supreme Court in the case Moni Shankar Vs. Union of India and Another, 2008(1)AJW 479 and (ii) the judgment of the Hon’ble High Court of Delhi in the case U.O.I. and Ors. Vs. M.K. Meena, (WP(C) No. 18605-08/2004) dated 03.03.2011 in support of her contentions.
(4)Learned counsel further contends that the IO did not act impartially while holding the enquiry. His conduct was more in the nature of a prosecutor. He did not examine the applicant strictly in accordance with Rule-9(21) of Indian Railway (Discipline and Conduct) Rules, 1968 which mandates that the IO was to place before the charged official (CO) all the circumstances appearing against him in the evidence adduced so as to enable him to explain those circumstances effectively. She took us through Annexure A-11 in which the IO had brought to the notice of applicant the documents filed by the prosecution and recorded his statement in Question Answer format. According to the learned counsel, the IO should have informed the applicant about the testimonies deposed by the PWs instead of referring to the documents which, in any case, the applicant had received along with the chargesheet.
(5)She submitss that the reduction of pay which has been ordered in the impugned order dated 12.02.2009 does not indicate a specific period for the current year of the penalty and as such this order being vague in nature is not sustainable.
(6)The other ground taken is that the impugned orders were non-speaking in nature and have not dealt with the issues raised by the applicant in his representations.
4. Learned counsel for the respondents submits that there is no infirmity in the orders passed by the respondent authorities against the applicant. The allegations of over charging a decoy passenger by Rs.44/- and shortage of cash with the applicant at the time of checking have been proved through the evidence adduced by independent witnesses. The Chief Commissioner on appeal against the order of compulsory retirement of the Revising Authority has taken a compassionate view and modified that order to reduction of his pay till his retirement. In this order, the AA took note of the fact that irregularities committed by the applicant were serious in nature, yet considering that he had to maintain a family the compulsory retirement order was modified. He submits that the scope of judicial review is very limited in nature. The settled law is that unless it is established that the penalty imposed was patently disproportionate or was such as to shock the judicial conscience, there was no scope for interference. Since the charges have been established against the applicant, this Tribunal should not try to re-appreciate the evidence and act as the Court of the Appeal over the findings of the DA. He has placed reliance on the case of UOI and Ors. Vs. Dwarika Prasad Tiwary, 2006(10) SCALE 233 to contend hat the Tribunal cannot sit as a Court of appeal and interfere with the quantum of punishment. He placed reliance on the views expressed in OA No. 1562/2006, OA No. 149/2006 and RA No. 253/2010 in OA No. 1227/2010 where the judgment of Hon’ble Supreme Court in the case of Moni Shanker (supra) has been discussed. He also placed reliance on the ruling of Hon’ble Supreme Court in the case of Chief Commercial Manager, South Central Railways and Ors. Vs. G. Ratnam and Ors., 2007(8)SCC 211 where it was held that no right would accrue to a charged employee because of infraction of the executive instructions contained in aforesaid paragraphs 704 and 705 of IRVM and a disciplinary proceeding could not be invalidated because of such infraction.
4.1 It has been stated in the counter reply that PW-1 should not be treated as stock witness. He had only once earlier participated in a similar raid and use of such a witness was no serious infringement of the guidelines of IRVM. As regards the shadow witness, it is also stated that he had worked in vigilance office only for 1 = months, and was not working in the Vigilance Branch at the time when the raid was conducted. Therefore, these two material witnesses should be accepted as independent in character and their evidence relied on to establish the 1st charge about over-charging the decoy passenger. The shortage of cash which amounted to lack of devotion to duty of the applicant should be viewed in the over all context of the incident and the specific mention in the Circular dated 29.03.2006 that exemption will not apply to those cases where irregular working of the staff is alleged.
5. Both the issues of shortage of cash within the limits prescribed and infraction of the instructions of IRVM relating to laying of vigilance trap have been dealt with exhaustively in the order dated 30.01.2009 passed in OA-1562/2006 where facts of similar nature were covered. It refers to the ruling of the Apex Court in the G. Ratnam’s case and proceeded to deal with the issues in the following manner:-
“15. After elaborate discussion the Apex Court held as under:
“15. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs 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”
“It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance thereof was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration along with other materials brought on records for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not.”
In view of what has been held by the Apex Court in the above mentioned two decisions, we need not spend time in delving into the two coordinate bench decisions of this Tribunal as the Apex Court decision holds the field as the law of the land.
16. In the instant case, which is a departmental trap case, there were 8 witnesses from the Railway Protection Force and the Vigilance Branch. PW-I Shri Narpal Singh, ASI/RPF/DKZ acted as the independent witness. While the applicant’s counsel would contend that the witnesses being from the Railway Protection Force, their independence could be compromised, we are not inclined to agree in a case of this nature, i.e., in a departmental trap case, where there is advance planning based on complaints/information available, after which a decoy is arranged to check whether the charged official is actually over charging in respect of the Railway tickets sold by him. It is often difficult to arrange Gazetted Officers as independent witnesses for such purposes in view of the time involved in the actual execution of the `trap’ and the limited number of gazetted officers available at various stations and the availability of these officers at the relevant point of time. Keeping this in mind, there exists provision in para 705 (a) that “in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilized”. Further, this has also perhaps been the reason behind insertion of para 307.4 in the latest Vigilance Manual of 2006, which reads as under:
“In addition, the Investigating Officer/Inspector should immediately arrange one or more officials (gazetted or non-gazetted or a combination of gazetted and non-gazetted) to act as independent witness/witnesses.”
Although, the instant case relates to a period before 2006, to which the provisions of Paras 704 and 705 of the earlier Vigilance Manual of 1996 would apply (as pointed out by the applicant’s counsel), the change in the Vigilance Manual of 2006 would suggest that it is not always possible to arrange a Gazetted Officer or an independent officer from outside and thus provision has been made for associating non-gazetted officers also. It is important to note, at this juncture, that the purpose of departmental decoy checks is to protect the public, namely, the passengers, from excess charging by the Railway staff and other such malpractices. What is of importance in such cases is to see whether the officials engaged as witnesses would have any reason to falsely implicate the official for reasons such as conflict of interest or personal enmity etc. In a departmental trap case of the type which is the subject matter of the OA, there is a little possibility of this happening and, if so, the charged officer is always at liberty to point out this. No averment to this effect has been made by the applicant in his OA. We are, therefore, of the view that non-compliance with the provisions of Paras 704 and 705 of the Vigilance Manual, in the instant case, would not by itself render the disciplinary proceedings in this case illegal.
17. The other main contention of the applicant in this case is that there is a shortage of only Rs.6/- and that the respondents should have overlooked this in terms of their own Circular No.19 MC/O/Policy/Pt.III dated 30.03.2006. The relevant portion of the said circular reads as under:
“In continuation to this office letter No.177/MC/PNM/CPO/URMU/98, wherein it was decided to permit a small limit of Rs.30/- in shortage/excess of cash on hand for the staff working in computerized reservation office, it has now been decided to enhance this limit to Rs.100/-. This shall apply to all BPCs, BCs and PCs who are handing cash. The staff found in excess/shortage of cash on hand shall normally not be taken up until and unless there are other compelling reasons to believe irregular working of staff. This should however not become a regular feature in the working of the staff.”
(Emphasis supplied)
It is seen that this circular clearly provides an exception in cases of irregular working of staff. The present case being a case of excess charging on account of issue of tickets would fall under the exception, and in view of this the applicant counsel’s contention that the shortage of Rs.6/- should have been overlooked in terms of this circular is not tenable.”
5.1The OA No. 149/2006 dealt with the case of Moni Shanker (supra) and highlighted that only in those cases where there is total violation of the guidelines along with other infirmities that judicial inference might be justified. Citing the ruling of the Hon’ble Supreme Court in the case of B.C. Chaturvedi Vs. U.O.I. and Anr., 1995(2)SCC 749 which lucidly explained the scope of judicial review in disciplinary matters, and keeping in view the facts of that case the Tribunal held that there was no violation of principles of natural justice.
5.2 OA No. 1227/2010 also dealt with the aforesaid paragraphs of IRVM and referred to the observations of the Hon’ble Supreme Court as contained in Paragraph 24 of its judgment in the case of Chief Commercial Manager, South Central Railway, Secunderabad and Others Vs. G. Ratnam and Others and two other cases, 2007(8)SCC 212 which reads as under:-
“24. On consideration of the foregoing facts and in the teeth of the legal aspect of the matter, we are of the view that the instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental proceedings initiated against the respondents on the basis of the complaints submitted by the investigating officers to the railway authorities. The instructions as contemplated under paragraphs 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers.”
5.3 The facts of the present case are covered by the judgment of this Tribunal in OA No.1562/2006 which was dealing with the same issues of over-charging and shortage of cash. It is not the case of the applicant that PW-1 was a stock witness. He had participated in similar decoy operation only once earlier. PW-2, the shadow witness was not working with the Vigilance Wing at the time of the operation. His association with the vigilance was only for one and half months some time before. Therefore, their evidence cannot be discarded for the reasons elaborated in OA-1562/2006 and extracted in paragraph-5.
5.4 As far as the contention that no time limit was given for the currency of the penalty order, we find that the order states clearly that the penalty will run till the date of retirement of the applicant. As such, this contention is without basis. Similarly the allegation that there was an irregularity in the IO adopting a Question Answer format in recording statements is misconceived. We went through the statements and notice that the questions were meant to elicit the truth or otherwise of the allegations brought against the applicant. They were not in the nature of leading questions or such as to compromise his position as a quasi-judicial authority. However, as regards the other contention that the impugned appellate order is not speaking in nature, we find that the order has not really dealt with the issues raised by the applicant in the appeal petition.
5.5 The final AA in his order dated 12.02.2009 has held that charge No.1 is partially proved. Presumably he has given this finding on the basis of the conclusion reached by the Inquiring Officer which reads as follows:-
“I as E.O. establish the charge I “CE Shri Mahendrs Singh overcharged the decoy passenger by Rs. 44/- partially proved.”
Both of them have not given reasons as to which part of the charge is proved and which part is not proved. Besides, all the issues raised by the applicant in his final appeal to Chief Commercial Manager (CCM) (page-116) have not been discussed in the impugned order dated 12.02.2009. Therefore, the plea raised that the impugned order is not a speaking one has to be sustained.
6. In the circumstances, the order dated 12.02.2009 of CCM is set aside and the matter is remitted to that Authority to pass a speaking and reasoned order on the issues raised by the applicant in his appeal according to law. The O.A. is disposed of accordingly. No costs.