Ms. Rashmi Malhotra and Kr. Prasoon Ranjan, Advocates. v. SHIV RAJ SINGH MEENA .....

14. The Disciplinary Authority agreed with the findings of the Inquiry Officer and passed an order dated 3rd June, 2008 removing the Respondent from service with immediate effect. The Respondent filed an appeal dated 23rd June, 2008 against the major penalty imposed on him. The Appellate Authority passed the following order on 16th September, 2008: “The case of the above-named employee was put up to the undersigned for considering his appeal against the orders of the Disciplinary Authority and after going through, I have passed the following orders: Under Rule 22(2) of Railway Servant‟s (Discipline and Appeal) Rules1968 I have gone through the appeal submitted by the C.O. against the orders of the Disciplinary Authority imposing the punishment of removal from service. I have also gone through the case-file, the charges, enquiry proceedings, documents/evidences available on record. Report submitted by the Inquiry Officer comments of CO thereon. After going through the entire case, I find that: The prosecution on witness could not produce any evidence as to how the CO allegedly us3ed ingenious method to print the Ticket No.14538373 wrongly by keeping the blank and how he passed on printed material of Ticket No.14538374 on Ticket No.14538373. The PW-5 mentioned that „what ingenious method was adopted by the CO we could not notice.‟ Regarding the excess of Rs.179/- found that the Govt. Cash of CO, he has taken plea that the Vigilance during check did not take the accountal of Rs.200/- i.e. imprest cash but during the enquiry the CO has not given any evidence of it. Hence, above pleas taken by the CO are not acceptable. However, keeping in view the circumstances of CO who is only 29 years old and has a big liability of his family including one small daughter and old parents having only 12 years service. I take a lenient view on humanitarian ground and have provisionally decided to reinstate him in service at the trial of grade Rs.3200-4900 for ten years with cumulative effect as well as cash debarred for ten years also. Kindly convey your office counter early, so that the cash may be processed accordingly.”

15. Strangely, the General Manager/Vigilance of Northern Railway Headquarter did not accept the proposed punishment as suggested by the Appellate Authority and vide his communication dated 27th November, 2008 again sent it back to the Division Railway Manager (Appellate Authority) and advised him to furnish the report at the earliest. The relevant portion of the letter dated 27th November, 2008 is as under: “In the above cited context it is advised that proposal of Appellate Authority is not acceptable by this office because the proposed punishment is not adequate in the light of gravity of offence committed by Sh. Shiv Raj Singh, HBC/NZM while on duty. The competent authority has also ordered „the charges are to grave to consider reduction in punishment imposed by DA.‟ It is therefore advised to kindly have the matter looked once again and furnish the report at the earliest for onward submission to Board‟s office.”

16. The Senior Divisional Railway Manager reconsidered the matter and vide his letter dated 27th June, 2008/ 4th February, 2008 reiterated his earlier proposal. The relevant portion of the said letter is quoted here under: “Keeping in view the recommendation received from your office vide above cited letter, it is stated that the subject case was once again looked into and I still maintain the sale proposal sent earlier i.e. to reinstate the CO at the gross of Rs.3200-4900 for a period of ten years also. This lenient view has since been taken on entirely humanitarian ground to meet with the justice and keeping in view of the family circumstances of CO who is just 29 years old and owns a big liability of family including one small daughters old aged parents. I understand that the punishment imposed by the Disciplinary Authority i.e. removal from service is on higher side would invariably affect the whole family of CO. However, the proposed punishment to reinstate the CO at the initial ground of Rs.3200-4900 from the grade of Rs.5000-8000 for ten years with cumulative effect cash debar for ten years be justified as the CO would be facing the financial crisis during this period too. The punishment would also serve the purpose of deterrent the CO for further falling into the temptation of money making. Therefore, in view of above deliberation, I understand the proposed punishment is adequate for the charges proved against the CO. Kindly convey your office concurrence early, so that the case may be processed accordingly.”

17. Somehow, the General Manager Vigilance was adamant to award major penalty of removal from service to the Respondent and he again returned the file back to the Appellate Authority, i.e. DRM Northern Railway vide his letter dated 7th /10th August, 2009, the relevant portion of which reads thus: “In reference to above-cited letter, it is observed that AA has proposed to award a reduced punishment upon CO purely on humanitarian ground, with no new facts. Moreover, what work can be taken from a Hd. Booking Clerk who is cash debarred for ten years is also not clear. Therefore, AA may be advised to reconsider his proposed punishment. However, if AA does not agree to retain the punishment imposed by DA, case may be put up to next competent authority for revisionary action. Action taken may be intimated to this office so that Board may be apprised accordingly.”

18. It can be noticed that the General Manager Vigilance for the second time advised the Appellate Authority to reconsider the proposed punishment and if the Appellate Authority did not agree to retain the punishment imposed by the Disciplinary Authority, he was advised to be put up before the next Competent Authority for revisionary action.

19. The CTM, Delhi considered the case of the Appellant as Revisional Authority and he also vide his order dated 8th June, 2010 decided to reinstate the applicant in service on an initial grade for a period of ten years with cumulative effect along with debarring him from cash handling for a period of five years to meet justice. The relevant portion of the order dated 8th June, 2010 reads as under: “The revision appeal of the above-named ex HBC was put up to CTM, New Delhi for consideration who has passed the following orders: I have gone through the revision petition submitted by Shri Shiv Raj Singh Meena, Ex. Hd. Booking Clerk/HNZM against the orders of removal from service awarded by the Disciplinary Authority as well as the appeal against the orders of the Disciplinary Authority, which has been rejected by the Appellate Authority. I have also gone through the case file, the charges, enquiry proceedings, documents/evidences available on record, report submitted by the Inquiry Officer and your comments thereon. After going through the entire case, I find that: As per evidence on record the very first ticket generated by CO on opening the counter was Ticket No.14538373 for Rs.59/- Ex Ambala to New Delhi. In case of malafide intention of CO he could have generated ticket of more lesser value. The plea taken by the CO that the passenger demanded ticket for Ambala to New Delhi and when he gave command, the machine did not print and the said ticket no.14538373 remained blank. This prove that there was a fault in the machine and what amount was printed on hard copy in UTS was not known. The prosecution could not comment on this point that, if command is given to print a ticket for Rs.59/- Ex. Ambala to New Delhi then how it could come out as blank. It was due to fault on the machine. The Coon blank ticket no.14538373 generated ticket ex Ambala to Bombay Central for four adults valued Rs.1040/and issued said ticket no.14538373 to the passenger and next ticket was printed mismatch when the same passenger demanded another ticket for four adults ex. Ambala to Bombay Central. This ticket no.14538374 has clearly been recorded as mismatch and non issued on ticket no.14538375. In the enquiry the PW-5, who investigate the case deposed and confirmed that neither he examined the shift supervisor nor consulted mismatch register that CO had made entry of the ticket no.14538374 in mismatch register. This vital document of mismatch register duly certified produced by the defence, shows that the version of CO is correct. This document also indicate misprint/mismatch of tickets at several occasions in counters at Ambala including that of CO. The PW-5 mentioned that the check on the counter of CO was conducted in presence of Shri Laxman Swaroop, Hd. Booking clerk/Ambala and only Rs.179/- excess in the government cash was detected and remitted in railway cash on same day. Whereas Rs.981/- were reported excess by the prosecution on the basis of transaction on ticket checked at the counter and the statement of CO was recorded that the said amount of Rs.98/- has been passed on to some known person which will be deposited by him. If it was so, then the said amount was required to be got deposited on the same day, but Rs.980/- only have been deposited as against Rs.981/- on the next day of check i.e. on 26.5.2004 vide money receipt no.433540. This money receipt does not indicate as to whether the same was got deposited as a result of vigilance check and who has deposited this amount to prove the charge. Thus, the averments made by the CO in his revision petition that he pocketed Rs.981/- is not proved and Rs.980/- was deposited by Ex P-5 without his knowledge has documentary force. Moreover, the scrutiny of the documents shows that the CO was not aware that Rs.59/- was accounted in hard copy on generated ticket no.14538373 and it was only brought into his notice after the check, then how he assured that exact Rs.981/was excess in his government cash when he counted his cash before the vigilance check at his counter. Moreover, even the Inquiry Officer did not discuss the charge of Rs.981/- for which the shortage was shown on the basis of tickets seized by the vigilance from the passenger and the CO‟s statement was recorded. The demand of additional document for defence was not acceded in the enquiry. Thus, CO is responsible to the extent that he generated/printed ticket for Ambala to Bombay Central on blank ticket No.14538373 and issued to the passenger. Charge No. 2 for producing Rs.179/- excess in his government cash is proved. The plea taken by the CO that the accountal of Rs.200/- imprest cash was not taken into account, is not convincing. The Ex P-1i.e. cash details clearly indicate that Rs.200/- imprest cash was kept separately. The amount of Rs.179/- detected short was deposited vide money receipt no.433528 by the CO. Thus, this charge is proved against the CO beyond doubt. Charge No. 3 against CO for using his skills with malafide intention to tampering the WIPRO PRINTER carrying high security features, with an intention to pocket railway revenue has been given reliance on the said demonstration by CO at Delhi Junction Booking Office on 27.5.2004 and tickets were generated at counter no. 8. As per prosecution, the ticket no.40539324 for Delhi Shahadra was not printed on CO‟s command and the system took accountal of Rs.07/- in hard copy, but the prosecution failed to produce hard copy of the accountal in support of evidence. Moreover, the print of said blank ticket no.40539324 neither contains any next printer ticket number nor clears particulars and the next two ticket nos. 40539325 and 40539326 contain total mismatch. There is no evidence or statement of CO to prove that demonstration was got conducted from CO as there is no witness appeared to have been recorded. The tickets generated as shown in Ex P-15 do not indicate that still works, as there is no ticket printer impression of matter of ticket no. 40539325 was generated on ticket no. 40539324 and next ticket no. 40539325 is blank. Therefore, the contention of the CO that prosecution witness failed to prove what ingenious method was adopted by him, is fully acceptable. If skills of tampering with the printer carrying security features had worked and prosecution was confident, those matter was required to be reported to the appropriate authority by the prosecution so as to safe guard the interest of the administration, but there is nothing of the sort on record. In view of the above and several procedural lapse on the part of the prosecution, this case does not deserve any stiff major punishment. Keeping in mind his young age, liability of family burden of old parents, I take a lenient view and decide to reinstate him in service at the initial grade for a period of ten years with cumulative effect along with cash debar for five years to meet with the end of justice. Kindly convey your office concurrence early.”

20. As mentioned earlier, the General Manager of Vigilance Department was adamant and even this decision of CTM, New Delhi in the revisionary appeal was not acceptable to the Vigilance Department and it decided to impose a stringent penalty on the applicant. So, finally the Revisionary Authority had reduced the punishment awarded to Respondent to that of compulsory retirement.

21. The Respondent, against the aforesaid order in the revision, submitted his representation dated 13th September, 2011 to the Chief Commercial Manager praying for his reinstatement on humanitarian and sympathetic grounds, however, the DRM office vide order dated 22nd November, 2011, without forwarding the said petition to the Chief Commercial Manager, rejected it on the ground that only one appeal and one revision were allowed and the Respondent has already availed the same.

22. The CAT found that the very first instance of the prejudice being caused to the Respondent was when he, on receipt of Memo of Charges dated 1st October, 2004, submitted a representation on 4th October, 2004 requesting for readable photocopies of the relied upon documents but the Disciplinary Authority without supplying the said documents, proceeded further with the enquiry and appointed the IO and the presenting officer and it was nearly after two years on 27th September, 2006 that the present Respondent was allowed to inspect the relied upon documents.

23. The view of the CAT was that it goes without saying that Disciplinary Authority should have made available the readable copies of the documents asked for by the present Respondent and contention of the present Petitioners that an opportunity was granted to the Respondent to inspect the relied upon documents on 27th September, 2006, i.e. during the enquiry proceedings will not meet the requirements of Rule 9 (7) of Railway Servants (Discipline and Appeal) Rules, 1968 which provided for supply of documents to the Railway Servants. Rule 9 (7) reads as under: “The Disciplinary Authority shall deliver or cause to be delivered to the Railway Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow. Note:- If copies of documents have not been delivered to the Railway servant along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within 10 days from the date of receipt of the articles of charge by him and complete inspection within ten days thereafter and shall state whether he desires to be heard in person.”

24. It has been rightly held by the CAT that non-supply of readable copies of documents amounts to non-supply of copies of documents and this itself amounts to denial of reasonable opportunity to the Respondent to defend himself.

25. Strangely, when on 15th May, 2006 the Respondent requested the Disciplinary Authority to supply him copies of five additional documents and after considering the said request of Respondent, even the IO also agreed to the same but the Disciplinary Authority supplied only two documents out of the said five documents requested for by the Respondent. The Respondent again made a representation dated 25th August, 2006 requesting for the remaining copies/documents but the same were never supplied to him. As per the CAT, the Respondent had a right to have copies of those official documents which would help him to disprove the charges but the Appellate Authority did not consider that aspect.

26. The third ground taken by the present Respondent before the Tribunal was that the IO appointed in this case, Shri Anil Bishnoi is an ex-Vigilance Officer and the Respondent had made representation against his biased attitude and request for appointment of another IO but the Disciplinary Authority ignored the said request on the ground that at the time of holding the enquiry, Mr. Bishnoi was not working with the Vigilance Department. The Vigilance Branch had conducted a check on 25th May, 2004. The IO should not be an Officer of the Vigilance Department. The CAT has rightly held that it was immaterial whether the said Officer was not part of the Vigilance Branch at the time of holding the enquiry. The Respondent had made representations for change of the Enquiry Officer time and again but the Disciplinary Authority ignored the said representations for the reasons best known to it. Moreover it is not the case of the Petitioners that no other Officer was available for conducting the enquiry as Railway is a very big organisation and a large pool of Officers is available but the choice made of an Officer as Enquiry Officer, who was earlier part of Vigilance Department till recently is not fair and the fairness is an essential ingredient of natural justice.

27. It is also part of the record that the Revisionary Authority had minutely analysed the charges, the evidence, the witness recorded and the material available on record and the said authority had reached to a considered opinion that there were several procedural lapses on the part of the prosecution. It has also been noticed that demand for additional documents made by the present Respondent was not acceded to in the enquiry.

28. The said authority had also accepted the contention of the Respondent that the prosecution witness failed to prove any ingenious method adopted by him and moreover, there was no evidence to prove that the Respondent had given a demonstration of any such technique used by him for printing the alleged tickets as no witness was examined to the said effect. As per the said Authority, the only charge, which was proved against the Respondent was that there was excess cash of Rs.179/-, which has since been deposited with the Railways, so there was no monetary loss to the Petitioners.

29. The CAT has rightly held that the most blatant violation of principle of natural justice is the open interference of the Vigilance Department in the present case. As noted above, the Officers in the Vigilance Department were sitting with a vindictive mind and it was at their instance that the severe punishment of termination was imposed upon the Respondent by the Competent Authority, which is against all the cannons of natural justice. Even the Appellate Authority had to comply with the directions/advise of the Vigilance Department and instead of reinstating the Respondent as per the opinion of the Appellate Authority, the Competent Authority had to terminate his services, which punishment was later on converted to the punishment of compulsory retirement on exercise of revisional powers by the Revisional Authority.

30. It is quite clear that it was the General Manager Vigilance who had used his clout and authority to direct the Appellate Authority to examine/reexamine the matter time and again but the Appellate Authority had the guts to stick to its views. But the General Manager Vigilance asked the DRM office to put the matter to the next Competent Authority for revisionary action and at that stage the Appellate Authority succumbed to the illegal directions of GM Vigilance and vide impugned order dated 18th November, 2009 agreed with the orders of Disciplinary Authority. The Revisionary Authority vide impugned order dated 6th August, 2011 reduced the said punishment to that of compulsory retirement. The CAT has rightly observed that these two orders are not independent statutory orders of Appellate and Revisionary Authorities, rather these two Authorities were only signatories on the impugned orders as per directions of General Manager Vigilance and hence, the said orders have been termed as illegal.

31. It is also to be noticed that the right of the Respondent of invoking the special provision under Rule 24(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 to represent to the General Manager against major punishment was scuttled and his representation dated 13.09.2011 was arbitrarily rejected by the DRM office on 22nd November, 2011 on the ground that it was not maintainable.

32. This Court concurs with the view taken by the CAT that it is not a fit case to be remitted back to the Disciplinary Authority to start the enquiry afresh as more than 15 years have already passed from the date of the incident till date keeping in view the violation of the principles of natural justice as mentioned above. This Court holds that the CAT is right in passing the impugned order reinstating the present Respondent in service with all consequential benefits after quashing the charge sheet dated 1st October, 2004, Enquiry Officer‟s report dated 27th March, 2007, Disciplinary Authority‟s order dated 3rd June, 2008, Appellate Authority‟s order dated 18th November, 2009, Revisionary Authority‟s order dated 26th August, 2011 and final order of the Petitioner‟s dated 22nd November, 2011.

33. Resultantly, there is no merit in the petition and it is accordingly dismissed. The pending application is also disposed of. It is directed that the Respondent be reinstated within a period of one month and all consequential benefits be calculated and credited to his account within a period of two months from today. No order as to costs.

TALWANT SINGH, J. S. MURALIDHAR, J. SEPTEMBER 12, 2019