Union Of India & 5 Ors. vs Ram Adhar Prasad
2013 Latest Caselaw 1008 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

? AFR
 
Court No. - 36
 
Case :- WRIT - A No. - 21247 of 2013
 
Petitioner :- Union Of India & 5 Ors.
 
Respondent :- Ram Adhar Prasad
 
Petitioner Counsel :- S.K.Misra
 
Respondent Counsel :- Anand Kumar,Sudama Ram
 

 
Hon'ble Vineet Saran,J.

Hon'ble B. Amit Sthalekar,J.

By this writ petition, the petitioners are challenging the order of the Central Administrative Tribunal, Allahabad dated 30.11.2012 passed in Original Application No.851 of 2006.

Briefly stated the facts are that a charge-sheet was issued to the respondent alleging that while he was on sick leave on 21.8.2002, he was found in the booking office along with a Coolie named Bandhu for the purpose of selling fake tickets 31 in number from Lar Road to Mumbai. Thus, by this act, the respondent had violated the provisions of Rule 3.1 (i), (ii) and (iii) of the Railway Servant Conduct (Rules) 1966. Disciplinary proceedings were initiated against the respondent and on the basis of the enquiry report, the Divisional Commercial Manager, North Eastern Railway, Varanasi Disciplinary Authority passed an order on 1.6.2004 removing the respondent from service. The respondent preferred an appeal which was also rejected by the order dated 30.12.2004 passed by the Senior Divisional Commercial Manager, North Eastern Railway, Varanasi. Further revision was preferred which was also rejected by the Additional Divisional Railway Manager, North Eastern Railway, Varanasi by order dated 8.6.2005. The respondent is stated to have preferred a Special Appeal before the General Manager, North Eastern Railway, Gorakhpur under Rule 24 of the Railway Servant (Discipline and Appeal) Rules, 1968.

Aggrieved by the various orders the respondent filed an Original Application before the Central Administrative Tribunal, Allahabad being O.A. No. 851 of 2006. The O.A. was filed, inter-alia, on the ground that there was no evidence that the respondent was found selling the alleged 31 fake tickets on 21.8.2002. It was further stated that the alleged 31 fake tickets were brought by Sri Bandhu, a Coolie and thrown through the window between the gap of the 'Tizori' and the counter in the dark. The case of the respondent also was that there was no allegation against him that the alleged fake tickets were recovered from his possession by the Vigilance Team which had conducted the raid nor was there any allegation that the tickets had been sold by the respondent to any passenger or to any decoy passenger set up by the Vigilance Team.

The contention of the respondent was that on the date of the incident on 21.8.2002 he was on sick leave and he was going to Mau Junction to take medicines and at the station he was falsely implicated on the charge of selling fake tickets. It is contended that the allegation against the respondent is based on suspicion and there is no material evidence to prove the charge of selling of fake tickets.

The other contention of the respondent before the Tribunal was that the raid had been conducted by the Vigilance Team whereas the enquiry officer appointed to conduct the enquiry against the respondent was the Chief Vigilance Inspector (Vigilance), North Eastern Railway, Gorakhpur who conducted the enquiry and therefore, the entire enquiry was vitiated in view of the legal position settled by the Supreme Court in the case reported in (2009) 2 SCC 541 Union of India & others Vs. Prakash Kumar Tandon.

The further contention of the respondent before the Tribunal was that at the time of issue of charge-sheet he was working in the promotional post of Head Booking Clerk in the Grade of Rs. 5,000-8,000/- and therefore his disciplinary authority was the Senior Divisional Commercial Manager but the order of removal has been passed by the Divisional Commercial Manager and the same was in violation of the rule 2 (1) (A) (ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 and Article 311(1) of the Constitution of India as the order of the removal had been passed by an authority subordinate to the appointing authority.

Before the Tribunal the case was contested by the petitioner-Railway Administration and a counter reply was filed. After hearing the counsel for the parties and perusing the documents on record the Tribunal has allowed the Original Application by the impugned order dated 30.11.2012 and has directed that the respondent is entitled to reinstatement but with 50% back-wages from the date of removal from service till the date of his reinstatement. He shall retain his seniority in his earlier position and would be entitled to all consequential benefits such as counting the service for purposes of promotion of M.A.C.P.

Hence the present writ petition.

We have heard Sri S.K. Mishra, learned counsel for the petitioner-Railway Administration and Sri Anand Kumar for the respondent.

From a perusal of the order of the Tribunal, it will be seen that with regard to the charge of selling fake tickets the Tribunal has recorded a categorical finding that the said charge is based on suspicion and the only ground for holding the charge proved against the respondent was that he was present in the booking office and that the alleged 31 fake tickets recovered from the Coolie, Bandhu goes to prove that there was a link between the selling of the fake tickets and the presence of the respondent in the booking office. The Tribunal has also recorded a finding that the Disciplinary Authority held the charge proved as one Shiv Shankar a staff member of the Lar Road Station had stated that he saw the Coolie, Bandhu throwing the fake tickets. The Tribunal however has also held that there was no evidence that even one of the alleged fake tickets had been sold by the respondent to any passenger. Thus, the Tribunal has held that the entire charge against the respondent is based on mere suspicion and there was no material evidence to establish that the respondent had sold any of the tickets to any passenger. Merely being present in the booking office on the date when he was on sick leave does not indicate that he was guilty of selling fake tickets unless the charge has been proved by the authority by establishing that sale of even one ticket took place. The finding recorded by the Tribunal is a finding of fact which is established from the record and it is not for this Court to sit as a court of appeal and re-apprise the evidence and interfere with the findings of fact recorded by the Tribunal.

On the second question that the raid was conducted by the Vigilance Team and enquiry officer was also the Chief Vigilance Inspector, the Tribunal has recorded a finding that this allegation by the respondent has not been amply met by the petitioner-Railway Administration.

From a perusal of the averments made in para 4(7) of the Original Application, it is noticed that there is a categorical finding made by the respondent that the disciplinary authority had appointed one Sri Amiya Raman, Chief Vigilance Inspector (Vigilance) N.E. Railway, Gorakhpur as Enquiry Officer and in the circumstances, the departmental enquiry against the respondent cannot be said to have been fair or impartial. This averment has not been categorically denied or explained in para 10 of the counter reply. Rather what is stated in para 10 of the reply of the Railway Administration may be quoted herein.

" it is further submitted that applicant has never submitted any objection against the appointment of enquiry officer at the relevant time, as such, objection at the stage are after thought and barred by principle of law of estoppels and acquiescence."

Thus it has not been denied by the petitioner-Railway Administration that the raid was conducted by the Vigilance Team and the enquiry officer was the Chief Vigilance Inspector one Sri Amiya Raman. This finding has also been noted by the Tribunal in its impugned order and thereafter the Tribunal relying upon the judgment of the Supreme Court reported in (2009) 2 SCC 545, Union of India & others Vs. Prakash Kumar Tandon has held that the appointment of an officer from the Vigilance Department particularly when the entire case has been initiated at the instance of the Vigilance Department is against the law laid down by the Supreme Court.

Sri S.K. Mishra, learned counsel for the petitioner tried to distinguish the judgment of the Supreme Court stating that the same was on its own facts and did not apply to the facts of the present case. We are not convinced with the submissions so made. In para 14 of the said judgment the Supreme Court has clearly held as follows:

" 14. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all."

Thus in our opinion the Tribunal has rightly taken the view that the enquiry stood vitiated by the appointment of the Chief Vigilance Officer particularly when the entire case was itself initiated on a raid conducted by the Vigilance Department.

So far as the competency of the Appointing Authority is concerned, the Tribunal has held that at the time when the charge-sheet had been issued, the petitioner was posted in the promotion grade and scale of pay of Rs. 5,000-8,000/- and he was promoted in the said grade with the approval of the Senior Divisional Commercial Manager/Additional Divisional Commercial Manager and therefore, his Appointing Authority for the said grade would be the Senior Divisional Commercial Manager, whereas the respondent was removed from service by the Divisional Commercial Manager i.e. by an authority lower in rank than the appointing authority. The petitioner-Railway Administration on the other hand has taken the stand before the Tribunal that at the time of issuing the charge-sheet the respondent was working on the post of Senior Commercial Clerk in the pay scale of Rs. 4,000-6,000/- and therefore his appointing authority/ disciplinary authority was the Divisional Commercial Manager.

Be that as it may, once the finding has been recorded by the Tribunal, with which we are also in agreement, based upon the documents on record, that the charge against the respondent of selling fake tickets was never proved and not a single passenger was named or his statement recorded to establish that the sale of fake tickets had actually taken place, the entire case against the respondent is one of no evidence and the entire disciplinary proceedings against the respondent and the impugned order are therefore liable to be set aside.

Therefore in the facts and circumstances of the case that the charge of selling of fake tickets against the respondent was never proved and the petitioner-Railway Administration has failed to show that the order of the Tribunal was otherwise in any way illegal or perverse, we are not inclined to interfere with the same.

The writ petition fails and is accordingly dismissed.

Order Date :- 17.4.2013

N Tiwari