| SooperKanoon Citation | sooperkanoon.com/55950 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | May-14-2008 |
| Judge | S Raju, C A Veena |
| Appellant | Bhogi Ram S/O Sh. Ram Barosi |
| Respondent | Union of India (Uoi) Through the |
2. Earlier applicant was proceeded against in the proceedings for allegation of demanding and accepting Rs. 100/- allowing a without ticket passenger to go out of the exit gate and keeping the amount inside the register of the office and also not offering any comments during the confrontation in presence of vigilance team. The inquiry officer has partly established the charges on which a penalty imposed when affirmed in appeal, an order passed by the revisional authority on 17.2.2005 recorded as under: I have considered Revision Petition submitted by you in terms of provisions of Rules 25 of R.S. (D&A) rules, 1968 against the order of imposition of penalty by Disciplinary Authority vide letter No. Vig/Comml/96/99 dated 15.5.2002 and order of Appellate Authority dated 7.5.2003 and have gone through the charges, your defence and orders of DCM/FZR ADRM/FZR I find that: During the course of enquiry, Shri S.P. Verma, VI did not turn up.
Enquiry Officer had not discussed in details regarding availability of GC note of Rs. 100/- in TC register and who took out the money from the register is also not clear. There is a difference between the statements of SS/DEC and Shri A.K. Saxena, PW-II, Shri S.P. Verma, VI Hqrs who acted as shadow witness, was ina position to explain how the money was detected from the register, but did not attend the enquiry. Therefore, to meet the ends of natural justice, this aspect had to be clarified.
I hereby order to set aside the penalty of DA & AA and emit back the case to DA to initiate further proceeding from the stage of written statement.
Thereafter the inquiry was proceeded and the applicant was held guilty of the charge with the following discussion of the evidence: 7.1.1. Charge No. 1:-Shri Bhogi Ram STC/DEC demanded and accepted Rs. 100/- as illegal gratification for allowing one passenger without ticket to go out from the exit gate without charging Railway dues from him, thus he earned Rs. 100/- illegal money for his personal gain with his ulterior motive.
As per post check proceedings recorded by SS/DEC Shri Bhogi Ram took Rs. 100/- from a passenger. Post check proceedings was verified by Sh. Bhogi Ram without any objection. Statement of passenger was recorded in the presence of SS/DEC, both the Vis & Shri Joti Swaroop. PW-1 verified that passenger Bhati recorded his statement vide Ex.p-7 in his officer before him. As per the statement of passenger Shri Bhati ticket checker demanded and accepted Rs. 100/- from him, which he borrowed from Shri Joti Swaroop. This same GC note of Rs. 100/- were recovered from the register of TC Office.
During the examination CO stated that he got a solid proof against Shri A.K. Saxena for planting of GC note of Rs. 100/- in the register on 25.12.99 and then he reported the matter to GM through registered post on 27.12.99 but CO could not disclose the solid proof, which he told during his general examination, vide Q. to Ans.
No. 11. This implies that till 25.12.99 he was not having any proof or even after 25.12.99. As far as the complaint of dated 16.10.99 and 08.11.99 of CO to DCM/BKN is concerned there is no receiving acknowledgement by any of the concerned authority except the stamps.
In view of available record and the deposition of available witnesses this charge is proved.
7.1.2 Charge No. 2:-Shri Bhogi Ram tried to misplace the GC note of Rs. 100/- which was taken by him from the passenger as bribe keeping it cleverly inside the register of his office.
CO demanded and accepted a GC note of Rs. 100/- from one passenger.
This GC note of Rs. 100/- was a part of decoy money as it was taken from Shri Joti Swaroop who was supposed to act as decoy for a possible decoy check. As this GC note of Rs. 100/- was a part of decoy and taken by CO. This can be concealed by the CO only. Shri Joti Swaroop produced the decoy money of Rs. 150/- (decoy money of Rs. 250/- minus Rs. 100/-=150) in presence of SS/DEC & CO. This proceeding was verified with statement by CO and did not raise any objection on record, which was prepared during the check. As far as the role of Sh. Jyoti Swaroop is concerned he was simply a witness in this case as passenger Sh. Bhati paid Rs. 100/- after the demand of CO. In view of these available facts this charge is proved.
7.1.3 Charge No. 3:-He did not speak anything or offer his comments during confrontation in presence of SS/DEC regarding demanded and accepting Rs. 100/- from the passenger for allowing to pass from the gate. It clearly shows his intention was malafide.
It is fact that CO did not offer his comments on post check proceedings and verified the same with the remarks. This charge is proved.
8.1. In view of the oral, documentary, circumstantial evidence available on record and considering the defence submitted by the CO, the findings is as under: 3. On representation, a major penalty imposed when challenged in appeal on being upheld, gives rise to the present OA.4. Learned Counsel of the applicant, at the outset, states that when the inquiry was remitted back by the revisional authority, certain aspects have been overlooked by the inquiry officer. Accordingly, the finding cannot be sustained in law.
5. Learned Counsel states that the applicant during the course of the inquiry has demanded certain documents with showing relevance, including investigating report of the vigilance, statement of shadow witness complaint dated 27.12.1999 and the currency note of Rs. 100/- as well as reservation chart of Mandore Express. It is stated that only three documents have been given out of 8 and the rests of the documents have been denied without any credible reasons and also without recording the aspect of relevance. As such the documents, which are required for defence of the applicant once denied, there is an infraction to the principles of natural justice.
6. Learned Counsel would also contend that by appointing a new inquiry officer against which bias has been raised by the applicant, non-consideration of his request and rejection thereof by not changing the inquiry officer, the inquiry is vitiated.
7. Learned Counsel states that in the course of the vigilance raid earlier, no gazetted witnesses have been associated, which has contravened Paras 704 and 705, which is held to be an illegality by the Apex Court in Moni Shanker v. Union of India 8. Learned Counsel further states that non-speaking orders have been passed by the authority without dealing with the contentions of the applicant.
9. On the other hand, Shri Saba Rahman, learned Counsel of the respondents vehemently opposed the contentions and stated that the applicant tried to misplace GC note of Rs. 100 and also not offered comments during the vigilance raid. It is staed that sufficient evidence have been placed on record to hold the applicant guilty of the charge.
10. Learned Counsel would also state that mere possession of a photostat copy of the ticket is not a proof and the passengers to be treated as without ticket and once a note of Rs. 100 was recovered from the register is a clear proof against the applicant.
11. Insofar as legal pleas are concerned, it is stated that additional documents have been given to the applicant and bias against inquiry officer was misconceived.
12. Learned Counsel would also contend that reasoned orders have been passed in the inquiry.
13. We have carefully considered the rival contentions of the parties and perused the material on record.
14. In our considered view Paras 704 and 705 of Vigilance Manual mandates joining of two independent witnesses in the raid. The aforesaid plea has not been controverted by the Railways in their counter reply.
15. In Moni Shanker's case (supra), the Apex Court ruled that though the provisions of Paras 704 and 705 are not mandatory when a procedure has been laid down as per the guidelines, it has to be followed on consideration. As no consideration has taken place and no gazetted witnesses have been associated, which are independent, the inquiry is vitiated.
16. Denial of documents required for defence of a delinquent and in possession of the respondents whose relevance has been quoted by the applicant, if causes prejudice, on non-supply the inquiry is vitiated.
17. As per Rule 15 of the Rules ibid in case additional documents are sought, it has to be denied by the inquiry authority only for the reasons to be recorded in writing. As per Railway Board's letters dated 20.2.1980 and 27.7.1991, a request for additional documents when addressed to the inquiry officer, the inquiry officer is bound to take a decision in relation to the relevance.
18. From the perusal of the application filed by the applicant, on 10.8.2000 documents, including complaint, investigation report and reservation chart of Mandore Express would have clearly held that without ticket, Shri Vikram Singh Bhati of Jodhpur, the original reserved ticket would have shown that he was traveling on a common ticket with his relatives. The inquiry officer on an endorsement did not permit these documents but neither the non-relevance nor any reasons have been recorded thereupon. This has prejudiced the applicant and being violation of the rules is a deprivation of reasonable opportunity to effectively defend, has vitiated the inquiry as well as consequent orders.
19. As regards the revisional authority's order, it was clearly mentioned that as there has been a discrepancy in the statement of Station Supdt. and PW2 Shri S.P. Verma, it has to be ascertained as to how money was detected from the registrar but this question was not posed by the inquiry officer and has not been responded to in his report. Accordingly, simply saying that once the money was found from the register, it was only the applicant, who had placed it without any further evidence to support the conclusion based on surmises. Once the methodology and the manner in which further inquiry has to be proceeded when has not been adopted, there is a deficiency in the order passed by the higher authority, which vitiates the inquiry. On considering the order passed by the disciplinary authority and appellate authority, we do not find any discussion of the contentions raised by the applicant.
Accordingly, being quasi judicial authority, it is incumbent upon them to pass a reasoned order dealing with the contentions of the applicant, as ruled by the Apex court in DFO v. Madhu Sudhan Rao that the duty is cast to record reasons as well as in Narpat Singh v.Rajasthan Financial Corporation 20. We also find that the applicant has moved a petition to change the inquiry officer, who has been changed by the disciplinary authority after remanding back the case, which is not permissible under the rules and as the further inquiry has to be proceeded with by the same inquiry officer and if he is not available then only a new inquiry officer is appointed. However, this request has been treated as apprehension, which is not correct in view of the fact that once such a request is made for change of the inquiry, it is incumbent upon the disciplinary authority in all fairness to have changed the inquiry officer, as ruled by the Apex Court in Indrani Bai v. Union of India 21. Leaving other grounds open, for the reasons, we do not find the orders passed by the authorities in consonance with the rules and law.
Resultantly, OA is allowed. Impugned orders are set aside. Consequences in law to follow. No costs.