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2013 DIGILAW 703 (GUJ)

Pravinchandra R. Panchal v. Union of India

2013-12-05

R.D.KOTHARI, RAVI R.TRIPATHI

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Judgment Ravi R. Tripathi, J.—The petitioner – A Railway Employee, is before this Court being aggrieved by judgment and order passed by the Central Administrative Tribunal, Ahmedabad in Original Application (OA) No. 318 of 2003 with MA No. 430 of 2003 and MA No. 541 of 2004 decided on 19th October, 2004; whereby, the Tribunal was pleased to hold as under: “12. No procedural lapse has been shown. However, the learned counsel submitted that the Disciplinary Authority has not considered the evidence given by the three defence witness. It is, however, notice of the three defence witnesses. One was the person who took the delivery. The other witness, Makhan Singh as recorded by the inquiry officer himself, had informed that the remarks of RF 212 Kg. Were recorded. The third defence witness, Jail I. Is only a Parcel Porter, who unloaded the parcel from Train No. 6046. Thus, the statement of witnesses if not specifically discussed by the Disciplinary Authority would not affect the result of the case nor has any way caused any prejudice to the applicant. The order passed by the Disciplinary Authority is a speaking order with regard to the points required for decision of the matter. 13. In view of the discussion made above, we do not find any ground to interfere with the order passed by the Disciplinary Authority or Appellate Authority. The OA, therefore, has no merit and the same is dismissed. Cost easy”. 2. The fact in brief is that, the applicant, while working as Head Booking Clerk, Ahmedabad (in short H.B.C.) was Shed Incharge on 19.2.1996 in Parcel Inward Office. On 18.2.96, one bundle ex-MAS-ADI arrived at Ahmedabad by 6046 down. While unloading of the said bundle its weight was judged higher, hence D.P. Joshi, who was ALC on duty at Ahmedabad reweighed the same and recorded the weight of the consignment RF 212 Kg. in unloading tally. It was counter-signed by Shed Incharge, Giriraj Tiwari. The same consignment RF 212 Kg. was also recorded on Guard’s foil. The same entry made in the Shed Book received by Shed Incharge. P.R. Panchal, the applicant of the present O.A. On 19.2.1996, when R.R. Was surrendered by the party for delivery of the consignment, the applicant inspite off entry in the Shed book accepted Rs. 102/- against Rs. 490/-. was also recorded on Guard’s foil. The same entry made in the Shed Book received by Shed Incharge. P.R. Panchal, the applicant of the present O.A. On 19.2.1996, when R.R. Was surrendered by the party for delivery of the consignment, the applicant inspite off entry in the Shed book accepted Rs. 102/- against Rs. 490/-. The applicant alleged to have deliberately made alternations with some ulterior motive and gave benefit to the consignee by putting Railways into loss of Rs. 388/-. 3. Thereafter, the applicant was served with the charge memo, inquiry was held but the Inquiry Officer found that charge not proved. The disciplinary authority did not agree with the findings of the Inquiry Officer and recorded disagreement on two points. 4. The petitioner, original applicant was served with show cause notice to which the petitioner replied to Disciplinary Authority. After considering the reply to the show cause notice, passed an order on 20.4.1999 imposing punishment for reduction to the lowest stage in the same time scale of Sr. ACC, fixing his pay at Rs. 4000/- for a period of four years with future effect ......” 5. The petitioner filed appeal on 10.5.1999 which was dismissed by the appellate authority by order dated 11.2.2000. Being aggrieved by that, the petitioner approached Tribunal by filing O.A. The Tribunal considering the facts and considering the decision of the Hon’ble the Apex Court in the matter of B.C. Chaturvedi vs. Union of India reported in 1996 SCC (L & S) 80, dismissed the original application and therefore, the petitioner is before this Court. 6. The learned advocate for the petitioner, Mr. Jadav, invited the attention of the Court to the defence produced by the petitioner before the Authority and submitted that authorities has failed to consider the same in its true perspective. In this regard, he invited the attention of the Court to the following: “5. Deposition by Shri D.M. Joshi, ALC first prosecution witness – Shri D.M. Joshi whose name wrongly written in memorandum as D. Joshi, ALC/ADI and CVI : KTT in reply to Q. No. 20 stated name as P.D. Joshi. In this regard, he invited the attention of the Court to the following: “5. Deposition by Shri D.M. Joshi, ALC first prosecution witness – Shri D.M. Joshi whose name wrongly written in memorandum as D. Joshi, ALC/ADI and CVI : KTT in reply to Q. No. 20 stated name as P.D. Joshi. Shri D.M. Joshi, ALC:ADI who was in night shift 20/30 hrs to 5 hrs on 18.2.1996 and 19.2.1996 has clearly deposited that he had entered the particulars of Pkgs unloaded by 6046 Dn on 18.2.1996 on PF 2 from front SLR-front protion 34 pkgs and rear 6 pkgs and allowed to fetch from PF 2 to PF1 in perishable scale and entered in P2 and P3 register as per procedure but he did not pass any remarks of R.F. Either in P2 or P3 and also in reply to Q. No. 7 by Chief Shri Joshi had denied that neither he had RF nor witness the R.F. Thus in the charge sheet Annexure-II “on arrival/ unloading its weight was looking very much, hence on duty Shri D.P. Joshi, ALC : ADI reweighed” is completely false and far from truth and disproved. During Cross Examination Shri D.M. Joshi in reply to Q. No. 11 clearly stated that Guard foil after making entries and did not know its disposal. Thus as per charge sheet RF 212 Kgs. was recorded in Guard foil by DM Joshi is quite incorrect and sisproved by prosecution further the said entry in Station to shed register as RF 212 Kgs is not made by Shri D.M. Joshi. Contd....Some one has entered afterwards and with false signature of Shri D.M. Joshi as D.P. Joshi E.O. is requested to get it confirm from hand writing expert before deciding the case. Shri D.M. Joshi who was prosecution witness has completely denied. The charges against me during examination by Chief and cross examination by me. Thus prosecution has failed to prove charges against me as per witness of D.M. Joshi as first prosecution witness. 6. Deposition by Shri Giriraj Tiwari, Sr. ALC : ADI/ Night incharge perishable scale, second prosecution witness:- Shri Giriraj Tiwari Sr. ALC/Night Incharge on perishable scale has deposited. doubtful and full of suspense, misguiding, mis-leading, concocted story and has complicated enquiry. Thus prosecution has failed to prove charges against me as per witness of D.M. Joshi as first prosecution witness. 6. Deposition by Shri Giriraj Tiwari, Sr. ALC : ADI/ Night incharge perishable scale, second prosecution witness:- Shri Giriraj Tiwari Sr. ALC/Night Incharge on perishable scale has deposited. doubtful and full of suspense, misguiding, mis-leading, concocted story and has complicated enquiry. Shri Giriraj Tiwari admitted that he entered RF 212 Kgs in unloading tally book and signed in one corner, but denied that RF 212 Kgs. D.P. Joshi was entered by him in P3 Station to shed register and also in reply to Q. No. 9 enter in R F register P5 which is false as no entry of RF 212 Kgs. in R Register P5. Shri Makkhan Singh has cleared that R F 212 Kgs. D.P. Joshi is handwriting of Shri Giriraj Tiwari who made entry after delivery on 19.2.1996 and before CVI-KTT check on 21.2.1996 with ulterior motive to entangle me in vigilance case. The handwriting of RF 212 Kgs- D.P. Joshi in P3 is required to be confirm by handwriting expert before deciding the case and in the interest of justice. Shri Giriraj Tiwari has thrown/torn the guard foil as he was the last person having seen that Guard foil as he replied to Q. No. 21. Handed over to D.M. Joshi, who was clearly denied in reply to Q. No. 11. Shri Giriraj Tiwari in reply to Q. No. 19- denied that he was not aware of duty of Shri D.M. Joshi and reply to Q. No. 21 he stated that Guard foil was handed over to Shri D.M. Joshi which is quite false and misguiding. The Guard foil is required to be sent to I/W shed but it was misplaced by Shri Giriraj Tiwari who wanted to implicate me in Vig. Enquiry cnnieve with CVI.KTT. Shri Giriraj Tiwari in reply to Q. No. 1 by exam chief has denied his association in CVI-KTT enquiry on 21.2.1996 but CVI-KTT in reply to Q. No. 17 confirmed that he already enquired from Giriraj Tiwari Reg. RF 212 Kgs. but in reply to Q. No. 1 Shri Giriraj Tiwari has shown his innocence of CVI-KTT check which was already known to him. 6. contd... RF 212 Kgs. but in reply to Q. No. 1 Shri Giriraj Tiwari has shown his innocence of CVI-KTT check which was already known to him. 6. contd... Finally in reply to Q. No. 8 he confirmed that he has not RF any pkg in while month but on that particular day, this particular pkgs was R.F. Only by him, he did not remember name of Parcel porter, he is not aware of booking of heavy consignment weighing more than 150 kgs. Q. No. 16 he is not knowing in reply to Q. No. 17. Whether Pkgs was overweight / oversize. In fact, as concluded from prosecution witness, Shri Giriraj Tiwari, has made entries in unloading tally book, station to shed register after delivery effected on 19.2.1996 by reweighment as 112 Kgs by me, knowing that pkdg was some what heavy, be mannulated and recored RF 212 kgs in his own hand writing in P2 and P3 and P3 false sign of D.P.Joshi to establish his case and was fully knowing that CIV-KTT Shri Ashok Sharma his friend was to come to ADI on 20.2 to 21.2. Before coming to I/ward shed Shri Ashok Sharma met Shri Giriraj Tiwari and confirmed, false entry in P2 & P3 and then attended I/ward shed calling C.L.S. BG Shri Makkhan Singh to witness an sign to joint note which is defective and prepared in haazard way without ascertaining the fact. When I objected and wanted fact finding enqiry. I was allowed to pass remarks only and my statement was not recorded either by CVI-KTT or CLS I/C BG. Lastly Shri Giriraj Tiwari has accepted only one entry of RF 212 Kgs in unloading tally book-P2 only & has denied all other entries and remarks. When he was having station to shed register why entry was not made by him and D.P. Joshi has already denied any entry in any register except regular entry of unloading pkgs. in P2 & P3. This Shri Giriraj Tiwari intentionally avoided to enter RF 212 kgs in station to shed register P3 & also to send memo or to enter in delivery register P4 in P.F. Register P5. That means he kept shed staff in quite darkness for RF 212 Kgs he reweighment in other words he has violated all rules and procedure and clearly shows that his intention was to implicate shed staff. That means he kept shed staff in quite darkness for RF 212 Kgs he reweighment in other words he has violated all rules and procedure and clearly shows that his intention was to implicate shed staff. Thus, I have presumed that Shri Giriraj Tiwari is connieved with Shri Ashok Sharma CVI: KTT and this is matter of investigation. Shri Giriraj Tiwari who stated RF 212 Kgs but by whom knowingly and intentionally / avoided to give name of Parcel porter who reweight the pkgs while he agrees that for the particular pkgs if weight 212 kgs. than minimum 3 parcel porter are required the same confirmed by CLS (BG) also in reply to Q. No. 8. Shri Giriraj Tiwari is quite unaware of rates contd... for booking pkg weighing more than 150 kgs. and provision of commercial mannual (Q.No. 16). Shri Giriraj Tiwari not aware of maintenance of perishable scale, while mostly worked ij perishable scale as ALC-I/C in night. In reply to Q. No. 11 & 12, he shown his unawareness regarding the procedure for repair of perishable scale. It clearly shows that if at all he has reweight scale must/ showing wrong weight as such a big deff of 100 kgs between shed scale and perishable scale is not possible. Therefore, prosecution witness Shri Giriraj Tiwari has failed to prove charges against me. By his witness not only this fictitious/ made out story has many variation and differences. Contrary to each other prosecution witnesses, this proves that case has been quite concocted, fabricated and fictitious one”. 7. Learned advocate Mr. Mahesh B. Bariya appearing for the Respondent Nos. 1 to 4 submitted that original application is rightly dismissed by Hon’ble Tribunal and the petition is not required to be allowed for the simple reason that, the Disciplinary Authority rightly recorded disagreement and imposed punishment against which, the appeal is also dismissed by the Appellate Authority and original application is also dismissed by the Hon’ble Tribunal. 8. On consideration of the rival submissions of the parties and on taking into consideration the relevant part of the written defence to which our attention is invited by the petitioner, this Court is of the opinion that Inquiry Officer has rightly recorded the findings of ‘not guilty’ of the petitioner. 8. On consideration of the rival submissions of the parties and on taking into consideration the relevant part of the written defence to which our attention is invited by the petitioner, this Court is of the opinion that Inquiry Officer has rightly recorded the findings of ‘not guilty’ of the petitioner. This Court is also of the opinion that in view of the evidence which was led by the Department in the Departmental Inquiry, the Inquiry Officer has no other alternative then to record ‘not guilty’ in absence of any additional material or any other evidence. The disagreement recorded by the disciplinary authority is found to be not tenable and that vitiates the order of punishment. The Hon’ble Tribunal is of the opinion that in fact appellate authority ought to have considered the matter in broad perspective and ought to have held that there is no sufficient evidence to establish the guilt of the petitioner – original applicant. 9. It is no use commenting upon the method and manner in which the departmental inquiry is conducted. It is also no use commenting on the factum of the witness having not supported the case of the prosecution but then, unless the guilt is proved by cogent and convincing evidence, no penalty can be imposed. Hence, this petition is allowed. Judgment and order of the Hon’ble Tribunal is quashed and set aside. The original application is allowed. Punishment imposed by order dated 20.4.1999 is quashed and set aside. The respondent – Railway Authority are directed to treat the said order to be non-est and the petitioner be given all consequential benefits. 10. At this juncture, learned advocate for the petitioner, Mr. Jadhav, requested that as it is an old matter of the year 1996, the Authorities may be directed to give all benefits flowing from allowing of the petition within a time frame. The request is found reasonable. The authorities are directed to give all consequential benefits as early as possible but the same should not be later than 31.1.2014. 11. Petition is allowed accordingly. Rule is made absolute with no order as to cost.