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2016 DIGILAW 722 (KER)

N. Chandrakumar v. Union of India

2016-08-25

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

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JUDGMENT : Ramachandra Menon, J. The challenge in this original petition is against the interference declined by the Central Administrative Tribunal, Ernakulam Bench, to set aside the orders passed by the authorities at different levels, whereby punishment of compulsory retirement from service was imposed upon the petitioner because of the proven misconduct of demand and acceptance of illegal gratification while serving as Traveling Ticket Examiner ('TTE' in short), thus acting in contravention of Rule 2430 (a) of Indian Railway Commercial Manuel ('IRCM' in short) and Rule 3.1 (i, ii and iii) of Railway Services (Conduct) Rules, 1966. 2. The present attempt is obviously after losing the battle at five different levels involving concurrent findings. Ext. P1 order passed by the Tribunal itself was way back in November, 2015 and no explanation was offered for the delay. Still, considering the persuasive submissions made by the learned counsel for the petitioner, we found it appropriate to hear the learned counsel on merits as well. 3. The petitioner was working as a TTE in the Palakkad Division of Southern Railway. On coming across the serious misconduct committed by him, he was placed under suspension and subsequently transferred to the Thiruvananthapuram Division, where he joined duty. In the course of further proceedings, Annexure A5 charge sheet was issued to him, the contents of which read as follows :- "STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST SRI. N. CHANDRAKUMAR, TTE/SL/ERS (THEN TTE/S/CBE) Sri. N. Chandrakumar, TTE/SL/ERS while working as TTE/S/CBE on 27.10.2004 by Train No. 5011 between CBE and MAS had failed to maintain absolute integrity, show devotion to duty and acted in a manner unbecoming of a Railway servant in that 1. He had demanded and accepted Rs.320/- from Sri. P. Jayaseelan Con/636/TNPM/MAS for allotting S8/65 & 66 of 5011 Exp and issued EFT for Rs.240/- 2. He produced an excess of Rs.563.50 which he had concealed while giving initial cash statement. Thus, he contravened Rule 2430(a) of IRCM and 3.1 (i) (ii) and (iii) of Railway Services (Conduct) Rules 1966. 4. The petitioner filed an explanation pleading innocence. A domestic enquiry was conducted, in terms of the relevant Rules, wherein the petitioner was found guilty. After considering all the relevant facts and circumstances, the Disciplinary Authority passed Annexure A1 order, whereby punishment of 'Compulsory Retirement' was ordered w.e.f. 30.09.2008. 5. 4. The petitioner filed an explanation pleading innocence. A domestic enquiry was conducted, in terms of the relevant Rules, wherein the petitioner was found guilty. After considering all the relevant facts and circumstances, the Disciplinary Authority passed Annexure A1 order, whereby punishment of 'Compulsory Retirement' was ordered w.e.f. 30.09.2008. 5. Challenging Annexure A1 order, the petitioner preferred an appeal before the Appellate Authority in terms of Rule 22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968. After considering the merit of the appeal, it was rejected and the punishment was confirmed, as per Annexure A2 order dated 05.05.2009. This was sought to be challenged by filing revision petition before the competent authority in terms of Rule 25 of the Railway Servants (Discipline & Appeal) Rules 1968, which however did not turn to be fruitful and the revision petition was dismissed as per Annexure A3 order dated 10.01.2010. Met with the situation, the petitioner filed a petition before His Excellency the President of India under Rule 31 of the Railway Servants (Discipline & Appeal) Rules, 1968. The President observed that leniency had already been shown in having imposed only the penalty of 'Compulsory Retirement' and accordingly, the said petition was rejected, which in turn was communicated by the Railway Board to the petitioner as per Annexure A4 dated 16.05.2013. This was subjected to challenge by filing Ext. P2 Original Application (O.A. No. 936 of 2013) seeking to set aside the impugned orders and to reinstate the petitioner in service with all consequential benefits. 6. Detailed written statement was filed by the respondents, vide Ext. P3. The petitioner sought to contend before the Tribunal that the proceedings were resulted pursuant to a vigilance trap, which was not set in accordance with the relevant provisions of the Vigilance Manuel. It was also pointed out that there was no independent witness to the trap, but for a Railway Protection Force (RPF) Constable, in addition to the RPF Constable who was instructed to act as a decoy. Further, no Gazetted Officer was cited as a witness. Violation of the provisions of the Vigilance Manuel was stated as a sufficient ground to vitiate the proceedings in terms of the verdict passed by the Apex Court in Moni Shankar Vs. Union of India and another [ (2008) 3 SCC 484 ]. Further, no Gazetted Officer was cited as a witness. Violation of the provisions of the Vigilance Manuel was stated as a sufficient ground to vitiate the proceedings in terms of the verdict passed by the Apex Court in Moni Shankar Vs. Union of India and another [ (2008) 3 SCC 484 ]. The Tribunal, after considering the rival contentions, chose to place reliance on the verdict passed by the Apex Court in Chief Commercial Manager, South Central Railway, Secunderabad and Others Vs. G. Ratnam and Others [ (2007) 8 SCC 212 ], to hold that the requirements under the Manuel to the possible extent were satisfied and further that mere violation of the guidelines will not vitiate the enquiry proceedings. Based on the actual facts and figures and the proven misconduct, interference was declined and the O.A. was dismissed, which in turn is under challenge in this original petition. 7. The learned counsel for the petitioner submits that the law laid down by the Apex Court in Moni Shankar's case [ (2008) 3 SCC 484 ] has not been properly considered and appreciated by the Tribunal while passing Ext. P1 order. It was after considering the verdict passed by the Apex Court in the earlier case G. Ratnam's case [ (2007) 8 SCC 212 ] that the legal position was made clear in the subsequent judgment in Moni Shankar's case [cited supra] and as such, there was no rhyme or reason for the Tribunal to have deviated from the track, which ought to have been followed in conformity with the verdict passed in Moni Shankar's case [cited supra]. 8. Smt. Asha Cherian, the learned Standing counsel for the respondent Railway submits that the idea and understanding of the petitioner as to the scope of the verdict passed by the Supreme Court in Moni Shankar's case [cited supra] is thoroughly wrong and misconceived. As per the said verdict, the Apex Court has not laid down anything contrary to the law already declared by a Co-ordinate Bench in the former case [G. Ratnam's case (cited supra)]. As per the said verdict, the Apex Court has not laid down anything contrary to the law already declared by a Co-ordinate Bench in the former case [G. Ratnam's case (cited supra)]. On the other hand, the law has been asserted to the effect that, mere violation of the provisions of the Vigilance Manuel cannot and will not vitiate the disciplinary proceedings and that the interference was made by the Apex Court in Moni Shankar's case [cited supra] for a different reason; particularly in view of the particular facts and circumstances borne by the materials on record. The learned standing counsel also submits that scope of the judicial scrutiny is very limited in view of the settled position of law and that the enquiry in the instant case having completed, adhering to the relevant provisions of law. Having proved the instance of misconduct by clear evidence, Ext. P1 order passed by the Tribunal is not liable to be interfered with under any circumstance, submits the learned counsel. 9. There is no dispute as to the sequence of events in relation to the laying of trap and the proceedings culminated by way of enquiry, finding the petitioner guilty, followed by the punishment ordered, which stands affirmed at all the subsequent levels. The only question to be considered is, whether the respondents have proved the misconduct levelled against the petitioner, and if there is any violation or non compliance of the provisions in the Vigilance Manuel, would it enable the petitioner to have the relief of reinstatement with consequential benefits by applying the ruling rendered by the supreme Court in Moni Shankar Vs. Union of India and another [ (2008) 3 SCC 484 ]. 10. The question whether lack of strict compliance with the provisions of the Vigilance Manuel would result in the enquiry proceedings to be vitiated, had come up for consideration before the Apex Court in G. Ratnam's case [cited supra]. It was a case where a vigilance trap was arranged; wherein two officers working as Head TTE and another person working as TTE came to be booked for accepting higher amounts from the passengers as involved in the present case, with similar instance of misconduct. The decoy deployed by the Vigilance and the witness deputed to overhear the transactions were belonging to the RPF. The decoy deployed by the Vigilance and the witness deputed to overhear the transactions were belonging to the RPF. Enquiry was conducted and on arriving at a finding the delinquent official guilty, punishment of removal from service was ordered. Though appeals and revision petitions were preferred against the orders concerned, it did not turn to be fruitful, which came to be agitated before the Tribunal. After hearing both the sides, the Tribunal held that all the stipulations contained in the Vigilance Manual were not followed and as such, the trap was not arranged in a proper manner; thus, vitiating the enquiry proceedings. It was accordingly, that the impugned orders were set aside and the applicants were ordered to be reinstated in service with the benefits as mentioned therein. The Department challenged the matter before the High Court, but interference was declined and the proceedings came to be dismissed, which led the case to be taken up before the Apex Court at the instance of the Railways. After referring to the facts, figures, relevant provisions of law and also the judgments rendered by the Apex court at different points of time, it was held that the instructions contained in the Railway Vigilance Manuel were 'procedural' in character and not of substantive nature. It was held that, violation thereof, if any, by the Investigating Officer in conducting the 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 said instructions of the Manuel have been held as issued not for the information of the accused in the criminal proceedings or the delinquent employees in departmental proceedings, but for the information/guidance of the investigating officers. It was accordingly held that the orders passed by the Tribunal and the verdict passed by High Court upholding the same were not legal and justified, which were set aside. 11. The later decision rendered by the Supreme Court in Moni Shankar's case [cited supra], which is sought to be relied on by the petitioner, was also a 'trap case'. But the factual situation is somewhat different, in so far as the case was that the delinquent employee, who was working as a Booking Supervisor, had overcharged a sum of Rs.5 on the ticket issued to the decoy passenger. But the factual situation is somewhat different, in so far as the case was that the delinquent employee, who was working as a Booking Supervisor, had overcharged a sum of Rs.5 on the ticket issued to the decoy passenger. It was alleged that, after purchasing the ticket, the balance paid by the Booking Supervisor was less by 5 Rupees and admittedly, the decoy passenger who collected the balance did not count it, nor made any complaint that it was less than the actual amount to be returned. He turned up only much later, along with the Vigilance Officer, leading to further proceedings against the Booking Supervisor. After completing the enquiry, based on the finding in the enquiry report that the delinquent employee was guilty, he was mulcted with the punishment of reduction to the lowest scale. This was challenged by filing O.A. before the Tribunal, where interference was made and the impugned orders were set aside. On challenging the matter before the High Court, the verdict passed by the Tribunal was set aside, holding that the guidelines/instructions in the Manuel would not confer any legally enforceable rights on any person and that the same cannot have any legal force. On challenging the said verdict before the Apex Court, reference was also made to the law already declared by the Supreme Court G. Ratnam's case [cited supra] that non-adherence of the instructions in the Vigilance Manuel would not invalidate the departmental proceedings as detailed in paragraphs 17 and 18 of the aforesaid verdict. The said paragraphs were extracted and no deviation in any manner was made in respect of such declaration of law. The law declared in G. Ratnam's case [cited supra] was never disagreed or doubted in Moni Shankar's case [cited supra] and on the other hand, the same was affirmed, however, adding that the position may be different, if such violation is coupled with other relevant factors. It was made clear that the burden to prove the misconduct was always vested with the Management, and that there could not be any violation of the principles of natural justice. Considering the question whether, the Management/Railways had proved the misconduct, the Bench observed that the witness who was deputed to overhear the transaction between the decoy passenger and the delinquent Booking Supervisor was virtually standing 30 mts. Considering the question whether, the Management/Railways had proved the misconduct, the Bench observed that the witness who was deputed to overhear the transaction between the decoy passenger and the delinquent Booking Supervisor was virtually standing 30 mts. away, who hence could not be expected to have overheard the words exchanged between the decoy passenger and the Booking Supervisor. It was revealed from the evidence tendered that the alleged shortage, while returning the balance after issuing the ticket, was only 'Rs.5' and that the decoy passenger admittedly had not counted the balance then and there; nor had he raised any protest in this regard. It was nearly half an hour later, that the decoy passenger came back with the officer of the Vigilance Wing, leading to further proceedings. It was also observed with reference to the proceedings that the Enquiry Officer, on culmination of the enquiry, had asked the delinquent employee as to whether he pleaded guilty or whether he had to offer anything further, which hence was held as not proper compliance of the Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules 1968. The Bench made clear that, as per the said Rule, the incriminating evidence brought on record had to be put to the delinquent employee, asking for his explanation, which however did not take place in the said case. It was in the said circumstances, that interference was made setting aside the verdict passed by the High Court and restoring the order passed by the Tribunal, resulting in reinstatement of the delinquent employee. In other words, interference made by the Apex Court was because of the infringement of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules 1968 and also in view of the failure on the part of the department in proving the delinquency and not for mere violation of the instructions in the Vigilance Manuel. As it stands so, this Court is of the firm view that the reliance sought to be placed on the verdict passed by the Apex Count in Moni Shankar's case [cited supra] cannot support the case of the petitioner in any manner. 12. It is true that, as per the instructions in the Vigilance Manual, gazetted officers might be cited as witnesses as far as possible and that independent witnesses have to be there to establish the facts in a 'trap case'. 12. It is true that, as per the instructions in the Vigilance Manual, gazetted officers might be cited as witnesses as far as possible and that independent witnesses have to be there to establish the facts in a 'trap case'. As held by the Supreme Court both in G. Ratnam's case [cited supra] and Moni Shankar's case [cited supra], the said instructions cannot have any legal force as such and are to act as procedural instructions for the investigating officer to ensure clarity and transparency. The position may vary, depending upon the facts and circumstances of each case. It may be possible to arrange a gazetted officer, if the trap is arranged in respect of an errant official working in a particular office at given place, which may not be practical, when it comes to a moving train as involved in the present case. The personnel belonging to the RPF, who were instructed to act as decoy passenger and as the independent witnesses to watch the proceedings and overhear the transactions cannot be said as interested witnesses in any manner. The trap was laid down by the 'Vigilance Department', whereas the delinquent employee was belonging to 'Traffic wing' and it is for the latter wing of the Railways to have pursued the disciplinary proceedings, based on the data collected from the trap. This being the position, this Court does not find anything wrong on the part of the Railways in having deployed the RPF personnel to set the trap and to book the delinquent official. The facts and evidence have been discussed in detail at different levels. The merit of the case was examined by the Disciplinary authority, Appellate authority, Revisional authority and also by His Excellency - the President of India. This was subjected to scrutiny again by the Central Administrative Tribunal. Concurrent finding was rendered by all the above authorities and the Tribunal; to the effect that the proceedings were pursued and finalized in accordance with law and that same did not suffer from any illegality or irregularity. We uphold the same. 13. Adequacy of evidence can never be subject matter of consideration of this Court. The evidence already brought on record clearly establishes the guilt of the petitioner and the same cannot be expected to be of the level as required in a criminal proceedings. We uphold the same. 13. Adequacy of evidence can never be subject matter of consideration of this Court. The evidence already brought on record clearly establishes the guilt of the petitioner and the same cannot be expected to be of the level as required in a criminal proceedings. It is settled law that preponderance of probability is sufficient in a disciplinary proceedings and that there is no allergy even to 'hear-say evidence', if it is having some nexus with the issue, as held by the Apex Court in State of Haryana Vs. Rattan Singh [ 1982 (1) LLJ 46 ]. 14. The learned counsel for the petitioner submits that the punishment imposed is highly disproportionate with the gravity of the proven misconduct. This Court finds it difficult to agree. It may be true that the amount collected in excess than the requisite extent of ticket charges for providing berth to the passengers may be of smaller extent. Marked currencies to the tune of Rs.130/- [a currency note of Rs.50/-, 3 currency notes of Rs. 20/- and 2 currency notes of Rs.10/-] were recovered from the delinquent employee and he did not reveal the excess amount he was possessing at the time of declaration of cash initially. The misconduct is not in relation to any loss sustained to the Department which may be having some relevance in fixing the quantum of punishment, but it is in relation to 'lack of integrity and honesty', quite unbecoming of a Railway servant, causing dis-reputation to the Railways at large; involving violation of Rule 2430 (a) of IRCM and Rule 3.1 (i, ii and iii) of Railway Services (Conduct) Rules, 1966. Viewed in the said perspective, the question whether the petitioner was benefited substantially or not is not a matter of consideration and what is established is that he is unfit to continue in office. It was accordingly, that the petitioner was imposed the punishment of 'compulsory retirement' from service. This Court does not find any reason to interfere with the orders passed by the Departmental Authorities by way of Annexures A1 to A3 or the President of India, as communicated in Annexure A4. Same is the position with regard to Ext. P1 order passed by the Central Administrative Tribunal upholding the aforesaid orders and dismissing the O.A. as devoid of merit. No tenable ground has been brought out to entertain the Original Petition. Same is the position with regard to Ext. P1 order passed by the Central Administrative Tribunal upholding the aforesaid orders and dismissing the O.A. as devoid of merit. No tenable ground has been brought out to entertain the Original Petition. It is dismissed accordingly.