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2013 DIGILAW 410 (GUJ)

V. G. GAVLE v. UNION OF INDIA

2013-07-17

A.G.URAIZEE, V.M.SAHAI

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Judgment A.G. URAIZEE, J. The writ petitioner has preferred the present petition to challenge order dated 25th February, 2004 passed by the Central Administrative Tribunal, Ahmedabad Bench at Ahmedabad (for short, 'the Tribunal') in Original Application No. 115 of 2000 preferred by the petitioner challenging the action of the respondent-authority in imposing the punishment of reduction into initial grade at the minimum of the pay as A.C.C. (Assistant Commercial Clerk) for a period of three years with future effect came to be dismissed. 2 The factual background of the present petition can be summed up as under : 3. The petitioner was appointed as Assistant Commercial Clerk ('A.C.C.', for short) in Baroda Division on 25th January, 1971. He was promoted as Head Booking Clerk and was posted at Anand Railway Station. After completion of his duty hours from 14-30 to 23-00 hours on 22nd March, 1993, he handed over the charge to one Shri S.C. Gurjar. Thereafter, on 23rd March, 1993 Vigilance Check was conducted when the petitioner was not on duty and a charge-sheet was served upon him for the following charges : Shri V.G. Gavle while working as H.B.C. in Booking Office, Anand in March, 1993 committed serious misconduct inasmuch as that he in contravention to Rule No. 2425, 2430 and 2438 of I.C.M. Vol. II has been continuously convincing retaining huge amount daily from Railway Cash/Coaching earning. He had received a slip of Rs.1027/- shortage in the Railway cash from his reliever Shri M.S. Keshwani, Sr. A.C.C. PM 22-3-1993 and passed it to his reliever Shri S.C. Gujar in lieu of the money. He also misappropriated Rs.100/- from the coaching earning as per the slip. During the Vigilance check at 14/15 hours on 23-3-1993 the amount of Rs.1027/- found short on W. No. 4 included Rs.100/- shortage of Shri Gavle as well. Thus, by his above acts Shri V.G. Gavle failed to maintain absolute integrity and devotion to duty, and thereby, violated Rule No. 3.1(i) and (ii) of Railway Service Conduct Rules, 1966. "ANNEXURE-II Statement of Imputation in Support of Article of Charges : (i) That Shri V.G. Gavle was on duty in the shift of 14-30 hrs. to 23-00 hrs. Thus, by his above acts Shri V.G. Gavle failed to maintain absolute integrity and devotion to duty, and thereby, violated Rule No. 3.1(i) and (ii) of Railway Service Conduct Rules, 1966. "ANNEXURE-II Statement of Imputation in Support of Article of Charges : (i) That Shri V.G. Gavle was on duty in the shift of 14-30 hrs. to 23-00 hrs. on 23-3-1994 as a Booking Clerk in W. No.4 at the close of his duty at 23-00 hrs he has not handed over the entire railway cash to his reliever but passed on a slip of shortages in railway cash of Rs.1,027/- which was received by him from Shri Keshwani his reliever. (ii) He further pointed out that the procedure is in force since long back hence the shortage in the Railway cash are not shown in the D.T.C. book but a slip of the shortages kept on the booking counter and the amount of shortages was recouped from cash of current booking. (ii) Said Shri Gavle misappropriated Rs.100/- from the railway cash as per the slip and he had pocketed the said money from his personal use and when needed by him for which he agreed to in his statement whereby he has convented Rule No. 2425, 2439 and 2438 of I.R. OM Vol. II. Thus, Shri Gavle is found responsible for misappropriation of the Government money and kept the railway cash flowing. Thus, said Shri Gavle by way of his above act exhibited lack of the integrity and devotion to duty thereby violated Rule No. 3.1(i), and (ii) of Railway Service Conduct Rules, 1966." 4. The petitioner submitted a detailed statement of defence on 30-9-1996 and denied all the charges levelled against him. After completion of the enquiry, the enquiry officer submitted his report on 2nd May, 1997 and concluded as under : "From the facts, circumstances and evidence discussed in the foregoing Paras, it is established that Shri V.G. Gavle H.B.C./ANAND while working as such in the shift of 14-30 to 23-00 hrs. After completion of the enquiry, the enquiry officer submitted his report on 2nd May, 1997 and concluded as under : "From the facts, circumstances and evidence discussed in the foregoing Paras, it is established that Shri V.G. Gavle H.B.C./ANAND while working as such in the shift of 14-30 to 23-00 hrs. on 22-3-1993 remitted short railway cash to the tune of Rs.100/- out of the total earnings and did not pass remark to this effect in the D.T.C., but passed on shortage slip total amount to Rs.1087/- to his successor, and thereby, failed to maintain absolute integrity and devotion to duty contravening the Rule No. 3.1(i) and (ii) of Railway Service Conduct Rules, 1966." A representation against the findings of the Enquiry Officer were submitted to the disciplinary authority by the petitioner, who accepted the report of the enquiry officer and imposed the punishment of removal from service by order dated 12th December, 1997. The petitioner pursued the matter further and preferred an appeal to the Senior Divisional Manager, Baroda on 26-12-1997 to challenge the order of punishment of removal from service. He submitted an additional representation on 19th January, 1998. The appellate authority reduced the punishment of removal to the reduction into initial grade at the minimum of the pay of A.C.C. for a period of three years with future effect. 5. The petitioner being aggrieved by and dissatisfied with the order of the appellate authority, filed Original Application No. 115 of 2000 in the Tribunal which, by the impugned order, dismissed the same and has observed as under : "16. It appears from the defence brief submitted by the applicant that Shri S.C. Gurjar and C.B. Solanki and the applicant have been charged in respect of test check conducted at Anand booking office by the Chief Vigilance Inspector. It further appears that the said slip has already been produced in the cases against the remaining two persons. Y.T. Modi retired C.C.S. K.K.P. is the defence assistant in all three cases. Rule 13 of the Railway Servants (D. & A.) Rules provides for conduct a common enquiry in certain situation. A common enquiry has not been held in these cases. What was of importance is as to whether the said slip was accepted as reliable in the remaining two enquiries. Neither the applicant nor the respondents Railway Administration has thrown any light on this aspect. 17. A common enquiry has not been held in these cases. What was of importance is as to whether the said slip was accepted as reliable in the remaining two enquiries. Neither the applicant nor the respondents Railway Administration has thrown any light on this aspect. 17. We note in this connection that the modified charge is of difference of Rs.100/- between tickets sold and cash received and passed over to successor. 18. It is true that the best evidence for proving such shortage was the D.T.C. book and the cash handed over/deposited which will clearly explain the distinction between the two figures. As we have indicated in Para 10 above these documents have not been exhibited. 19. Be it as it may, the enquiry officer held the modified charges as proved with which the disciplinary authority agreed. The appellate authority has also passed a detailed order rejecting the appeal of the applicant. These finding of fact of the appellate authority had not been challenged in the revision petition but the applicant has rather accepted the modified charge of shortage of cash. It is worth noting that the applicant has tried to change the stand at different points of time as has been brought out in Para 6 above. We have entered into examination of evidence only with a view to ascertain that this is not a case of no evidence. 20. It is a settled principle of law that the Tribunal does not interfere with the findings of fact of enquiry officer unless it is a case of perverse evidence or no evidence. It is further held that in case two opinions are possible from the same set of facts the Tribunal will not substitute one opinion for the other provided there is some evidence in support of the findings held by the enquiry officer. In view of what has been discussed above, we are of the view that there is some evidence on record to sustain the findings of enquiry officer. 21. Nothing has been brought on record to indicate the penalty imposed on S.C. Gujar against whose name a sum of Rs.643/- was shown. Nothing has also been brought on record to indicate as to whether any disciplinary proceedings had been initiated against Shri M.A. Shaikh and penalty if any imposed on him against whom an entry of Rs.202/- is shown in this slip. Nothing has also been brought on record to indicate as to whether any disciplinary proceedings had been initiated against Shri M.A. Shaikh and penalty if any imposed on him against whom an entry of Rs.202/- is shown in this slip. Thus, nothing is brought on record to indicate that the penalty is harsh or excessive. Thus, the applicant has not made out any case for interference with the order of penalty." 6. In a recent judgment, the Hon'ble Supreme Court in the case of R. Mahalingam v. Chairman, T.N.P.S.C., AIR 2013 SC 2225 has considered the scope of review in matters involving challenge to the disciplinary action taken by the employer, in the following words : "12. We have heard learned Counsel for the parties. The scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily concerned with the question whether the enquiry has been held by the competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the Court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the Court." 7. Keeping the above settled proposition of law regarding the scope of the present petition, we have to examine whether the petitioner has made out any case for interference in the action taken by the disciplinary authority as confirmed by the Tribunal in O.A. No. 115 of 2000. 8. It is explicitly clear that on the day of the incident i.e. on 22nd March, 1993 the petitioner was working as Booking Clerk at Anand Station and he received a slip of Rs.1027/- shortage in railway cash from his reliever Shri Keshwani and passed it on to his reliever, Shri Gurjar in lieu of money. 8. It is explicitly clear that on the day of the incident i.e. on 22nd March, 1993 the petitioner was working as Booking Clerk at Anand Station and he received a slip of Rs.1027/- shortage in railway cash from his reliever Shri Keshwani and passed it on to his reliever, Shri Gurjar in lieu of money. Thus, it is cleat that instead of cash, he had received a shortage slip of Rs.1,027/- from his predecessor, which he had passed on to his successor. After conclusion of the enquiry, on the basis of the report of the enquiry officer the punishment of removal from service was imposed on the petitioner, but in departmental appeal the punishment came to be reduced to initial grade at the minimum scale of A.C.C. for a period of 3 years with future effect. Now, we have to see if the punishment imposed by the appellate authority on the petitioner is wholly disproportionate to the misconduct found proved or shocks conscience of the Court. 9. The undisputed fact is that the petitioner took over the charge from his predecessor with a shortage slip of Rs.1,027/- without counting the actual cash, and thereafter, he passed over the slip to his successor without physically verifying the cash. Therefore, it cannot be said that the petitioner has not committed any misconduct whatsoever. The petitioner has not disputed this fact. According to memo of the imputation the petitioner has received a slip of Rs.1,027/- shortage in the railway cash from his reliever, Shri Goswami and passed it over to his reliever to Shir S.C. Gurjar in lieu of money. The petitioner has also misappropriated of Rs.100/- from coaching earning as per the slip. During the vigilance check, the amount of Rs.1,027/- was found short on W. No.4 which included Rs.100/- shortage as a whole. Here, we may also take note of the fact that the charge in the charge-sheet served to the petitioner was also modified to the effect of difference of Rs.100/- between the tickets sold and cash received and passed over to the successor. Hence, it can be seen that shortage in cash of Rs.100/- only out of Rs.1,027/- is attributable to the petitioner. The petitioner cannot get out of this factual position because he himself has admitted in his representation before the appellate authority. Hence, it can be seen that shortage in cash of Rs.100/- only out of Rs.1,027/- is attributable to the petitioner. The petitioner cannot get out of this factual position because he himself has admitted in his representation before the appellate authority. In fact, the appellate authority has recorded its finding as under in Paragraph 3 : "3. Enquiry officer has correctly concluded that shortage of cash is proved beyond doubt and the employee cannot absolve himself from this responsibility even if slip was issued by his predecessor to him. As per rules, employee is supposed to take over the cash from predecessor while signing on duty and he should hand over the cash collected during his duty hours against transactions made by him. In case there is any shortage during his period, he is responsible beyond doubt for which he is held responsible. Since, misappropriation has not been proved by the enquiry officers therefore such a harsh punishment of removal from service is not reasonable." 10. Therefore, the conjoint reading of the enquiry officers report and order of the appellate authority makes it abundantly clear that there is no evidence of misappropriation on the part of the petitioner. The only lapse that was committed by the petitioner was of not counting the cash physically before taking the slip in lieu of cash from his predecessor and passing it over to his successor. Therefore, the punishment of reduction into initial grade at the minimum of the pay as Assistant Commercial Clerk for a period of three years with future effect is too harsh and wholly disproportionate to the misconduct found proved against the petitioner. If we allow this punishment to stand, the future career of the petitioner would be ruined in as much as this would affect his future promotional avenues. The petitioner cannot be made to suffer permanent loss in his career for a lapse for which he alone was not responsible, but at the most, it can be said that he was a passive party to the act. Be it as it may, the admitted fact remains that the petitioner had accepted the shortage slip from his reliever and passed it over to his own reliever without physically checking the cash. On account of this lapse, the enquiry officer concluded that the petitioner failed to maintain absolute integrity and devotion to the duty. Be it as it may, the admitted fact remains that the petitioner had accepted the shortage slip from his reliever and passed it over to his own reliever without physically checking the cash. On account of this lapse, the enquiry officer concluded that the petitioner failed to maintain absolute integrity and devotion to the duty. The employees handling the cash are expected to work with circumspection and they cannot taken shield behind a specious plea of heavy burden of work. Therefore, we are of the opinion that the petitioner cannot be given complete clean chit as he had, in fact, indulged into a procedural irregularity. As a result of the same, the petitioner cannot be exonerated altogether. The sum and substance of the above discussion is that the petitioner showed indolent attitude in discharge of his duty, but at the same time, the punishment inflicted on him by the appellate authority of reduction into initial grade at the minimum pay of A.C.C. for a period of three years with future effect in place of removal from service, in our opinion, is wholly disproportionate to the charge proved against him. 11. In the premises aforesaid, therefore, we partly allow the present petition. The punishment of reduction into initial grade at the minimum of the pay as Assistant Commercial Clerk for a period of three years with future effect imposed on the petitioner by the appellate authority vide order dated 28th April, 1998 is hereby quashed and set aside and it is reduced to stoppage of two increments without future effect. The impugned order of the Tribunal passed in Original Application No. 115 of 2000 and the order dated 26-12-1997 of the appellate authority stand modified accordingly. The parties to bear their own costs. Rule is made absolute to the aforesaid extent. (HSS) Petition partly allowed.