Union Of India Throu.General ... vs Avnish Kumar Shukla
2017 Latest Caselaw 6092 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on 17.07.2017
 
Delivered on 01.11.2017
 
Court No. - 24
 

 
Case :- SERVICE BENCH No. - 428 of 2015
 

 
Petitioner :- Union of India and others 
 
Respondent :- Avnish Kumar Shukla
 
Counsel for Petitioner :- Pankaj Srivastava
 
Counsel for Respondent :- Abdul Moin
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Ravindra Nath Mishra-II, J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Asit Kumar Chaturvedi, learned Senior Advocate, assisted Sri Pankaj Srivastava, Advocate, for petitioners and Sri Abdul Moin, Advocate, for respondent.

2. This Writ Petition under Article 226 of Constitution has come up against judgment and order dated 04.08.2014 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") in Original Application (hereinafter referred to as ''O.A.') No. 19 of 2008 whereby Tribunal has allowed O.A. filed by respondent, Avinash Kumar Shukla (hereinafter referred to as "Applicant-employee") and has set aside the orders impugned therein.

3. Brief facts giving rise to this writ petition are as under.

4. Applicant-employee, Avinash Kumar Shukla, was working on the post of Booking Clerk, Northern Railway, Barabanki in November 2001. An information was received that officials of booking office of Barabanki Station are indulged in malpractice and earning money by overcharging from passengers. To verify veracity of information, a Vigilance Raiding Team was formed on 30.11.2001 comprising of Shri Yogesh Sharma, Shri S.K. Babbar, Shri L.D. Bhuria, Shri R.K. Pathak, Shri Mohan Prasad, all Vigilance Inspectors, Head Quarter Office, Baroda House, New Delhi along with Shri Rajeshwar Vishwakarma, Carriage Cleaner, Nizamuddin and Shri Rishhi Bhushan Singh, Carriage Cleaner, Nizamuddin. To conduct said check a Test check memo was prepared outside Barabanki Railway Station. In this memo it was decided that Shri Rajeshwar Vishwakarma, Carriage Cleaner, would act as decoy passenger, Shri Rishi Bhushan Singh, Carriage Cleaner will act as independent witness and Shri L.D. Bhoria, Vigilance Inspector will act as shadow witness. Decoy passenger Rajeshwar Vishwakarma was given rupees seven hundred as decoy money, numbers whereof were recorded in test check memo and it was made sure that he is not having any money of his own in his pocket. As per plan, decoy passenger approached Booking Clerk on duty at Barabanki Railway Station and demanded three tickets of Barabanki to Dhanbad and gave currency notes given to him after mentioning in check memo. Applicant-employee accepted the same and gave three tickets no. 29291, 29193 and 29194 dated 30.11.2001 to decoy passenger. After completion of transaction, decoy passenger gave signal to independent witness who in turn gave signal to vigilance team. Vigilance team went inside booking office. Government cash was got separated and booking was allowed as there was rush on booking counter. Shri A.P. Pandey, Chief Inspector Ticket, Barabanki was called. Then Government cash of Applicant-employee was checked in the presence of Shri A.P. Pandey, Chief Inspector Ticket, Barabanki and after counting Government cash, it was found that Rupees 32/- was short. It was also checked that notes mentioned in test check memo are also in the cash. Statements of decoy passenger, independent witness and Applicant-employee were recorded in presence of Shri A.P. Pandey, Chief Inspector Ticket, Barabanki.

5. Applicant-employee was placed under suspension on 30.11.2001 and on 14.02.2002 a charge sheet was issued to him containing following two charges:

"Article (i):- Sh. Avinash Kumar Shukla had demanded and accepted excess fare from the decoy passenger i.e. Rs. 515/- against actual fare of Rs. 435/-. Thus he charged Rs. 80/- excess from the decoy passenger.

Article (ii):- He had created an artificial shortage in government cash to earn illegal money Rs. 32/- found short in government cash during check just after he accepted Rs. 80/- excess from the decoy passenger."

By the above act of omission and commission Sh. Avinash Kumar Shukla, BC/BBK failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Railway Servant, thereby contravened rule number 3.1(i),(ii) &(iii) of Railway Service Conduct Rules, 1966."

6. The documentary and oral evidence, relied in support of charge, and mentioned in charge-sheet, read as under:

Documentary evidence:

"1. Photocopy of test check memo dated 30.11.2001

2. Photocopy of G/C notes recovered during check from government cash of Sh. Avinash Kumar shukla.

3. Photocopy of tickets recovered from decoy passenger

4. Photocopy of cash details of Sh. Avinash Kumar Shukla of date 30-11-01.

5. Photocopy of seizure memo of G/C notes and tickets.

6. Photocopy of proceedings done by Sh. A.P. Pandey CIT/BBK

7. Photocopy of statement of decoy passenger Sh. Rajeshwar Singh CC/NZM

8. Photocopy of statement of independent witness Sh. Rishibhushan Singh CC/NZM

9. Photocopy of statement of shadow witness Sh. L.D. Bhoria/SVI/BH

10. Photocopy of statement of Sh. Avinash Kumar Shukla BC/BBK"

Oral evidence:

"1. Sh Rajeshwar Vishwkarma CC/NZM

2. Sh. Rishibhushan Singh CC/NZM

3. Sh. L.D. Bhoria/SVI/BH

4. Sh. Yogesh Sharma CVI/NDBH

5. Sh. A.P. Pandey CIT/BBK

6. Sh. S.K. Babbar/SVI/BH

7. Sh. R.K. Pathak/CVI/BH

8. Sh. Mohan Prashad/SVI/BH"

7. During oral inquiry, employer examined Shri L.D. Bhuria, Senior Vigilance Inspector of Baroda House New Delhi, Mohan Prasad, Senior Vigilance Inspector of Baroda House New Delhi, Rajeshwar Vishwakarma, Carriage Cleaner, Nizamuddin, Rishi Bhushan Singh, Carriage Cleaner, Nizamuddin, A.P. Pandey, Chief Inspector Ticket, Barabanki, Yogesh Sharma, Chief Vigilance Inspector of Baroda House New Delhi, S.K. Babbar, Ex. Chief Vigilance Inspector of Baroda House, New Delhi.

8. Inquiry Officer submitted report holding charge of excess receipt of fare not proved, but only charge no.-2 that there was shortage of Rs. 32/- in Government cash was held proved without proving allegations forming prefix and suffix to the incident of shortage of Rs. 32/- in Government cash.

9. Disciplinary Authority supplied copy of inquiry report to Applicant-employee without showing disagreement with the findings of Inquiry Officer. Applicant-employee submitted reply dated 09.02.2005 whereafter Divisional Commercial Manager (hereinafter referred to as "DCM") passed punishment order dated 09.03.2005 holding charge no.-2 to the extent of shortage of Rs. 32/- detected in Government cash, proved, and imposed punishment of "reduction of two stages lowering in existing time scale of pay for one year with cumulative effect".

10. Matter was reviewed suo moto by Additional Divisional Railway Manager, Northern Railway, Lucknow (hereinafter referred to as "ADRM"). It issued notice dated 14.06.2005 proposing enhancement of punishment though it was not mentioned as to what punishment he proposes. Applicant-employee submitted reply dated 30.06.2005 to ADRM. Reviewing Authority thereafter passed order dated 15.12.2005 enhancing punishment to "reduction to next lower time scale of pay at the initial pay of grade for three years with cumulative effect". Thereafter, Applicant-employee submitted an appeal vide memo of appeal dated 24.01.2006 which has been rejected by Chief Commercial Manager, Baroda House, New Delhi (hereinafter referred to as "CCM") vide order dated 10.01.2007. Punishment order, review order and appellate order were challenged by Applicant-employee before Tribunal and the same have been set aside by Tribunal vide judgment dated 04.08.2014, relying on Para 704 and 705 of Indian Railway Vigilance Manual (hereinafter referred to as "IRVM") and Supreme Court's judgment in Moni Shankar Vs. Union of India and another (2008) 3 SCC 484 as well as Rule 25 of Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter refered to as "Rules, 1968").

11. Learned counsel for petitioner contended that Tribunal has not referred to anything to show that there was any contravention of Rule 25 of Rules, 1968 by Reviewing Authority who reviewed the matter and enhanced punishment. Therefore, reference to Rule 25 is wholly unnecessary and is of no consequence. He further contended that for mere non compliance of Para 704 and 705 of IRVM, an otherwise valid disciplinary proceeding, culminating in order of punishment, could not have been held illegal in view of earlier Supreme Court's judgment in Chief Commercial Manager, South Central Railway and others Vs. G. Ratnam and others (2007) 8 SCC 212.

12. Central issue raised before this Court is, "whether Tribunal was justified in setting aside orders of punishment, appeal and revision on the ground of non compliance of Paras-704 and 705 of IRVM, following judgment in Moni Shankar Vs. Union of India and another (supra).

13. Learned counsel for Railway submitted that there was another decision of Supreme Court in Chief Commercial Manager, South Central Railway and others Vs. G. Ratnam and others (supra) which has held that Para-704 and 705 of IRVM are not applicable to disciplinary inquiry matters and Tribunal, therefore, has erred in law in setting aside order of punishment etc. for non compliance of Paras-704 and 705 of IRVM.

14. Refuting the same, learned counsel for Applicant-employee contended that procedure for Vigilance Trap is prescribed under IRVM. Paras-704 and 705 of IRVM are in the nature of protection to the employees concerned so that there may not be any occasion of undue haste, bias and operational zeal on the part of Vigilance Officials so as to implicate an employee, falsely, or for any reason other than bona fide. He submitted that compliance of procedure prescribed in Paras-704 and 705 of IRVM is mandatory. A complete deviation thereto is bound to vitiate disciplinary proceedings. He urged that Tribunal has rightly set aside orders of punishment etc. in view of proceedings conducted in utter violation of procedure prescribed in Paras-704 and 705 of IRVM.

15. We have heard learned counsels for parties and perused record.

16. It is not in dispute that inquiry was conducted against Applicant-employee under Rules, 1968 which have been framed under proviso to Article 309 of Constitution of India by President of India and came into force on 01.10.1968. Procedure for imposing "major penalty" is contained in Rule 9 of Rules, 1968 and we may reproduce relevant extract of Rule 9 as under:

"9. Procedure for imposing Major Penalties -

(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.

(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof.

Provided that were there is a complaint of sexual harassment within the meaning of rule 3 C of the Railway Services (Conduct) Rules, 1966, the Complaints Committee established for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

.........

(6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up -

(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain -

(a) a statement of all relevant facts including any admission or confession made by the Railway servant;

(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

(7) 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.

(8) The Railway servant may, for the purpose of his defence submit with the written statement of his defence, a list of witnesses to be examined on his behalf.

Note: - If the Railway servant applies in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (6), the disciplinary authority shall furnish him with a copy each of such statement as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.

(9) (a) (i) On receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under this rule.

(ii) Where the disciplinary authority decides to proceed with the inquiry it may itself inquire into such of the articles of charge as are not admitted or appoint under sub-rule (2) a Board of Inquiry or other authority for the purpose.

(iii) Where all the articles of charge have been admitted by the Railway servant in his written statement of defence, the disciplinary authority shall record its findings on each charge, after taking such further evidence as it may think fit and shall act in the manner laid down in Rule 10.

(iv) If the disciplinary authority, after consideration of the written statement of defence, is of the opinion that the imposition of a major penalty is not necessary, it may drop the proceedings already initiated by it for imposition of major penalty, without prejudice to its right to impose any of the minor penalties, not attracting the provisions of sub-rule (2) of Rule 11. Where the disciplinary authority so drops the proceedings but considers it appropriate to impose any of the minor penalties, not attracting th6e provisions of sub-rule (2) of Rule 11, it may make an order imposing such penalty and it will not be necessary to give the Railway servant any further opportunity of making representation before the penalty is imposed.

(b) If no written statement of defence is submitted by the Railway servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose and also inform the Railway servant of such appointment.

(c) Where the disciplinary authority itself inquires into an article of charge or appoints a Board of Inquiry or any other inquiring authority for holding an inquiry into such charge, it may, by an order in writing, appoint a railway or any other Government servant to be known as Presenting Officer to present on its behalf the case in support of the articles of charge.

(10) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority -

(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;

(ii) a copy of the written statement of defence, if any, submitted by the Railway servant;

(iii) a copy of the statement of witnesses, if any, referred to in sub-rule (6);

(iv) evidence proving the delivery of the documents referred to in sub-rule (6) to the Railway servant;

(v) a copy of the order appointing the Presenting Officer, if any; and

(vi) a copy of the list of witnesses, if any, furnished by the Railway servant.

(11) The Railway servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the order appointing him as such, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the inquiring authority may allow.

(12) The inquiring authority shall, if the Railway servant fails to appear within the specified time, or refuses or omits to plead, require the Presenting Officer if any, to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Railway servant may for the purpose of preparing his defence, give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in possession of Railway Administration but not mentioned in the list referred to in sub-rule (6).

Note: The Railway servant shall indicate the relevance of the documents required by him to be discovered or produced by the Railway Administration.

........

(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.

(18) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and reexamine any witness and in such cases the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.

Note: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(22) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the Railway servant, or permit them to file written briefs of their respective cases, if they so desire.

(25)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain -

(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;

(b) the defence of the Railway servant in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge; and

(d) the findings on each article of charge and the reasons therefor.

Explanation - If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the Railway servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include -

(a) the report prepared by it under clause (i);

(b) the written statement of defence, if any, submitted by the Railway servant;

(c) the oral and documentary evidence produced in the course of the inquiry;

(d) written briefs, if any, filed by the Presenting Officer, if any, or the Railway servant or both during the course of the enquiry; and

(e) the orders, if any, made by the disciplinary authority in regard to the inquiry." (emphasis added)

17. Thus Inquiry Officer has to record its findings on the basis of evidence, documentary and oral, relied in support of charges adduced on behalf of disciplinary authority as also in defence by delinquent employee. This is evident from Rule 9 (17)(18)(22) and (25)(i). Inquiry Officer is under an obligation to record an assessment of evidence in respect to each article of charge in the light of oral and documentary evidence adduced and proved during course of inquiry and charge has to be proved on assessment of such evidence. The aforesaid Rule nowhere contemplates any external assistance or procedure for inquiry including collection of evidence before disciplinary inquiry after service of charge-sheet.

18. Now we come to Paras-704 and 705 of IRVM which read as under:

"Para 704

When laying a trap, the following important points have to be kept in view:

(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.

(b) The transaction should be within the sight and hearing of two independent witnesses.

(c) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.

(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are Government employees and of other departments.

(e) ..."

"Para-705

For Departmental traps, the following instructions in addition to those contained under paragraph 704 are to be followed:

(a) The Investigating Officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilised.

(b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the Investigating Officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the G.C. notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the Investigating Officer/Inspector. Another memo, for returning the G.C. notes to the decoy will be prepared for making over the G.C. notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and Investigating Officer/Inspector. The independent witnesses will take up position at such a place where from they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the Investigating Officer/Inspector should disclose the identity and demand in the presence of the witnesses, to produce all money including private, Railway and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.

(c) ...

(d) ...

(e) ..."

(emphasis added)

19. IRVM was first published in 1970, revised in 1996 and again in 2006. Learned counsel for parties could not tell us the statutory provision under which various instructions and guidelines contained in IRVM were issued. Chapters-II, III, VIII, IX and XIII of IRVM deal with Railway Vigilance Organization and its role, Central Vigilance Commission, Central Bureau of Investigation, Investigation of Complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Rules, 1968 etc.

20. Paras-704 and 705 of IRVM have been considered in two judgments, referred above, hence it would be appropriate to consider aforesaid judgments in depth to find out "ratio decidendi" therein.

21. In Chief Commercial Manager, South Central Railway and others Vs. G. Ratnam (supra) one M. Anjaneyulu, a Head Train Ticket Examiner (hereinafter referred to as "HTTE") was discharging duties on Train No. 8561 on 26.11.1998 going from Vijayawada to Kazipet stations. A vigilance trap was laid by Vigilance Officer by arranging a decoy passenger. Vigilance reported that M. Anjaneyulu demanded more money against EFT amount for providing accommodation in sleeper class and, therefore, violated Rules 3(1)(i)(ii) and (iii) of Rule No. 26 of Conduct Rules, 1966. Charge-sheet was issued, enquiry was conducted and employee was held guilty of the charge. Punishment of ''Reversion by two grades from HTTE to Ticket Examiner' was imposed. It was enhanced to ''Removal' by Revisional Authority and upheld in appeal. In another matter, one M. Subramanyam Devers working as TTE in Train No. 752, Summer Special Express on 07.06.1999 between Secunderabad to Wadi, was trapped in a Vigilance trap and similar charge was leveled against him. He was also punished with ''Removal'. In third connected case, G. Ratnam was found indulged in a similar trap case for demanding excess fare. He was imposed punishment of ''Removal' which was substituted by ''Compulsory Retirement' in appeal. All these punishment orders were set aside by Tribunal on a short ground that traps were not laid by Vigilance Officers in accordance with procedure laid down in IRVM. Tribunal held that procedure under Paras-704 and 705 of IRVM was mandatory and non compliance thereof would vitiate disciplinary proceedings. Andhra Pradesh High Court confirmed judgment of Tribunal and dismissed writ petitions filed by Railway and that is how matter came to Supreme Court. It found that departmental traps were conducted by Investigating Officers when employees were on official duty, undertaking journey on different trains, going from one destination to another. Decoy passengers deployed by Investigation Officers were RPF Constables in whose presence employees allegedly collected excess amount/demanded extra fare for arranging sleeper class reservation accommodation etc. The transactions between decoy passengers and employees were reported to have been witnessed by RPF Constables which were arranged as independent witnesses. Tribunal held above investigation in violation of Paras-704 and 705 of IRVM and High Court held that there was no independent witness in departmental traps. High Court held that RPF Constables cannot be said to be independent witness and non association of independent witness by Investigating Officer in the investigation of departmental trap cases has caused prejudice to the rights of employees in their defence before Inquiry Officers. These observations and finding of Tribunal and High Court were not upheld by Supreme Court and it held:

"18. We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained."

(emphasis added)

22. Court further held that administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of aggrieved party and cannot be enforced in a Court of law against Administration. Executive orders, appropriately, do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on delinquent and even if any of the directions is ignored, no right would lie. Breach of Executive Orders may expose subordinate authorities to disciplinary or other appropriate action, but Executive Orders cannot be said to be in the nature of statutory rules having force of law, subject to the jurisdiction of certiorari. Court further said that Government can give administrative instructions to its servants telling them as to how they should act in certain circumstances; but that will not make such instructions, Statutory Rules, which are justiciable in certain circumstances. In order to show that such executive instructions have force of Statutory Rules, it must be shown that they have been issued either under a statutory power conferred upon the Government or under some provision of Constitution. Even if there has been any breach of executive instructions, that would not confer any right on any member of public to ask for a writ against Government by a petition under Article 226 of the Constitution. Court also referred to the distinction between "departmental inquiry" and "prosecution" and said that departmental inquiry and prosecution are two different and distinct aspects. In a case of departmental inquiry, procedural aspects with regard to search, seizure and trap etc. cannot be insisted upon, if in departmental inquiry, charges have been found proved on the basis of evidence adduced during the course of inquiry. Having said so, in para 24 of judgment, court said as under:

"24. On consideration of the foregoing facts and in the teeth of the legal aspect of the matter, we are of the view that the instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting 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 instructions as contemplated under Paras 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers."

(emphasis added)

23. In Moni Shankar Vs. Union of India and another (supra), employee was a "Booking Supervisor" in Central Railway. On 17.04.1998, while on duty at Chatrapati Shivaji Terminus, a decoy check was laid wherein he was found to have overcharged a sum of Rs. 5/- on the ticket issued to a decoy passenger. Charge-sheet was issued and ultimately penalty of "Reduction to lowest scale of pay for a period of five years" was imposed upon him. The order of punishment was set aside by Tribunal vide judgment and order 06.01.2003 on the ground that in terms of paragraphs 704 and 705 of IRVM, trap ought to have been laid in the presence of independent witness or Gazetted Officer but as only one Head Constable of RPF was present and not two Gazetted Officers, and that too Head Constable was at a distance of more than 30 meters, he could not have heard conversation hence charge could not be said to have been proved. Tribunal also found that decoy passenger neither counted money at the window nor protested for refund of Rs. 5/- less. There was admission that decoy passenger left window and came back after half an hour later with Vigilance Inspector to complain about return of Rs. 5, short. Tribunal also found that employee was not examined by Inquiry Officer in terms of Rule 9(2) of Rules, 1968 which is mandatory. In these facts, Tribunal held that there was no evidence as regards charge of returning Rs. 5/- less to decoy passenger. Railway filed writ petition which was allowed by Bombay High Court observing that Tribunal has entered into realm of evidence, re-appreciated the same and, therefore, has exceeded its jurisdiction. It set aside order of Tribunal and that is how matter was taken to Supreme Court by Employer. Court observed that trap was pre-arranged one and not an exceptional one where two gazetted officers as independent witnesses could not have been available. RPF Head Constable was sole witness and a non gazetted officer. Despite a pre-planned trap, Railway could not explain as to why independent witness or two gazetted officers as contemplated in Para 704 and 705 of IRVM could not be arranged. Court further found, when decoy passenger purchased ticket, Head Constable RPF (alleged independent witness) was at a distance of 30 meters. It was a busy counter and normally remain crowded. During course of inquiry, decoy passenger accepted before Inquiry Officer that he did not count balance money after receiving the same from employee but came half an hour later with Vigilance team and searched the employee concerned. Court then also referred to law laid down in Chief Commercial Manager Vs. G. Ratnam (supra) that Executive Orders do not confer any legally enforceable right but then proceeded to hold:

"... we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official."

(emphasis added)

24. It was further held that proceedings are quasi judicial. Although Evidence Act is inapplicable, still principle of natural justice are attracted. Court, exercising power of judicial review, is entitled to consider whether, while inferring commission of misconduct on the part of a delinquent officer, relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Court emphasized:

"Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere." (emphasis added)

25. Court further found serious error in departmental inquiry and in para 19 has noticed that examination-in-chief was conducted by Inquiry Officer himself. Railway could not explain, why Presenting Officer did not examine witnesses. Court said:

"Even the minimum safeguard in regard to the manner in which examination-in-chief was conducted has not been preserved. The questions posed to him were leading questions. It is interesting to note that in answer to a question as to whether he had asked the appellant to return Rs. 5/- , he not only answered in the negative but according to him the said statement was made by him as instructed by the Vigilance Inspector. He although proved Exhibits P/1 and P/2 which were written in English language but also stated that he did not know what had been written therein Strangely enough, the Enquiry Officer started reexamining him. Even in the reexamination he accepted that he could not read and write English."

26. It is in this backdrop, Court found that departmental inquiry itself was conducted in utter violation of principles of natural justice. The manner in which questions were raised from delinquent employee shows that there was a clear non compliance of Rule 9(21) of Rules, 1968. Court held that High Court had wrongly observed that Tribunal has exceeded its jurisdiction by appreciating evidence and said that in a case of major penalty, as a result of disciplinary inquiry, Tribunal was entitled to consider the question, whether evidence led by department was sufficient to arrive at a conclusion of guilt or otherwise of the delinquent officer. While re-appreciation of evidence is not within the domain of Tribunal, an absurd situation emanating from the statement of a witness can certainly be taken note of. The manner in which trap was laid, witnessed by Head Constable and legality of enquiry proceeding were part of decision making process and, thus, Tribunal was entitled to consider the same. Court said that reference to Paras-704 and 705 of IRVM was invoked only for the aforesaid purpose. Executive Instructions, even if are not imperative in character, substantial compliance thereof was necessary. A departmental instruction cannot totally be ignored. In any case Tribunal was entitled to take the same into consideration, along with other materials brought on record, for the purpose of arriving at a decision whether normal rules of natural justice had been complied with or not. Court said, when a safeguard is provided to avoid false implication of a railway employee, procedure laid down therein could not have been given a complete go bye. It also held that Rule 9(21) of Rules, 1968 is imperative and Railway servant must get an opportunity to explain circumstances appearing against him.

27. The judgment in Chief Commercial Manager Vs. G. Ratnam (supra) was referred to but explained to some extent in later decision, i.e., Moni Shankar Vs. Union of India and another (supra). Both the judgments, however, are clear on the question that mere alleged non compliance of Paras-704 and 705 of IRVM would not vitiate an otherwise valid order of punishment passed after conducting a departmental inquiry in accordance with Rules and based on due appreciation of evidence recorded during inquiry proceedings.

28. Both the aforesaid judgments have been referred to, recently, in Mukut Bihari and another Vs. State of Rajasthan (2012) 11 SCC 642 wherein ratio of judgment in Chief Commercial Manager, South Central Railway and others Vs. G. Ratnam has been noticed and Court held that Paras-704 and 705 of IRVM are merely Executive Instructions and guidelines and did not have statutory force, therefore, non observance thereof would not vitiate proceedings. With reference to Moni Shankar Vs. Union of India (supra), ratio thereof has been noticed observing that Instructions contained in IRVM should not be given a complete go-bye as they provide for the safeguards to avoid false implication of a railway employee. Though Mukut Bihari and another Vs. State of Rajasthan (supra) was a case relating to Health Department of State of Rajasthan but therein also Court has observed that it is always desirable to have a shadow witness in the trap party but mere absence of such a witness would not vitiate whole trap proceedings, if there is no contradiction in the deposition of witnesses; they have truthfully deposed and their version is without any embellishment and improvement and there is no reason or motive to falsely enrope the person concerned.

29. A similar aspect has been considered with reference to Section 10(7) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954") by one of us (Hon'ble Sudhir Agarwal, J.) in Nathoo Vs. State of U.P. 2016 (3) ALJ 610, as under:

"10. The objective of Section 10 (7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory in so much so that Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that there is any non-compliance of Section 10(7) of Act, 1954.

11. Section 10(7) was amended in 1964 and prior thereto there were words "as far as possible call not less than two persons". The words "as far as possible" were deleted by amendment of 1964. It was sought to be argued, therefore, that deletion means that if the independent witnesses do not corroborate the action of Food Inspector in taking sample etc., it shall vitiate the Trial.

12. A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad Vs. M.V. Alu and another, 1991 Cri.L.J. 2174 considered it and in para 2 of the judgment said that sub-section (7) of Section 10 is only intended as a safeguard to ensure fairness of action taken by Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that Section 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable.

13. In another matter arisen from State of Uttar Pradesh itself, a three Judges Bench of Apex Court had occasion to consider this aspect in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 and in paras 5 and 6 thereof the Court said:

"5. We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the Sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 it was held by this Court after noticing that Section 10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimizing the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.

6. As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws."

14. From the above it is clear that Apex Court also took the view that what is important to attract Section 10(7) is that the Food Inspector at least should try to secure presence of one or more independent witness when he takes action under any of the provisions mentioned in Section 10(7). Once that has been done, evidence of Food Inspector himself, even if not corroborated by independent witnesses, can be relied if the Trial Court finds it otherwise acceptable. It is not to be discarded only for the reason that independent witnesses have not signed the sample and seizure documents.

15. This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika Vs. Mohammad Wasim, 1993 All Criminal Cases 47. Here the Court further said that object of indicating Section 10(7) is to ensure that particular sample is taken from the accused. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample.

16. Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) and it will not vitiate the prosecution at all. Here I am fortified by a decision of Madras High Court in Public Prosecutor Vs. Ramachandran, 1993(1) FAC 93.

17. The Apex Court in State of U.P. Vs. Hanif, AIR 1992 SC 1121 said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. His evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on to prove prosecution case.

18. Following the above authorities and taking similar view, this Court in Criminal Revision No. 976 of 1989 (Ramesh Chandra Vs. State of U.P.) decided on 11.12.2014 in para 18 of judgment said as under:

"18. It is the duty of Food Inspector to call one or more independent persons to be present at the time of taking sample and once that is done by him it is sufficient but if the witnesses are not ready to come forward and sign the documents the Food Inspector cannot compel them and, therefore, where the attempt has been made but failed, lack of signature by independent witness would not vitiate the trial."

19. In the present case, the prosecution has clearly proved that an attempt was made to get independent witness at the time of taking sample and seizure but since none came forward, hence, the Food Inspector proceeded further. Hence the mere fact that independent witness is not there, proceedings would not vitiate." (emphasis added)

30. From combined reading of both the judgments relating to departmental proceedings of Railway, wherein Paras-704 and 705 of IRVM have been considered, we find that a mere technical violation of aforesaid procedure has not been held sufficient to vitiate departmental proceedings and what has been emphasized is that there must exist other factors, which, if taken together, must show that Department has not been able to prove charge against delinquent employee. If from evidence on record and proceedings conducted by Inquiry Officer, it cannot be found that there is any infraction of the procedure giving adequate opportunity of defence to delinquent employee and evidence is sufficient to prove the guilt of delinquent employee, then mere non observance of Paras-704 and 705 of IRVM, here and there, would not be sufficient to vitiate the proceedings.

31. It is in this backdrop we would examine, whether in the present case there is evidence to prove charge against Applicant-employee.

32. Charge no.-1, admittedly, has been found non-proved by Inquiry Officer and Disciplinary Authority as well as Review Authority, none has disagreed with inquiry report, hence, matter relating to charge no.-1 stands closed.

33. Now coming to charge no.-2, we find that it had three parts. The entire charge can be read in following three parts:

(i) Applicant-employee created a artificial shortage in Government cash to earn illegal money,

(ii) Rs. 32/- found short in Government cash during check,

(iii) just after he accepted Rs. 80/- excess from decoy passenger.

34. Inquiry report clearly mentioned that it is only the factum of shortage of Rs. 32/- in Government cash during check was proved but prefix and suffix allegations were not proved. The reason being that third part of charge no.-2, as we have noticed above, is nothing but repetition of charge no. 1 and since charge no.-1 itself has not been held proved, therefore, third part of charge no.-2 also stands not proved and no action could have been taken against Applicant-employee on this part. The motive assigned for shortage of Rs. 32/- by first part of charge no.-2, i.e., artificial shortage created to earn illegal money, was also found not proved, Findings of Inquiry Officer in this regard has not been disagreed at any point of time by disciplinary authority. Review and Appellate authority, in fact, have misread entire material including inquiry report and proceeded on assumption that charge no.-2 is proved in its entirety, though the fact is otherwise. Only one part of charge no.-2 that there was shortage of Rs. 32/- in Government cash was found proved and nothing more than that. This shortage could have been due to a bona fide error in various transactions in which Applicant-employee as a Booking Clerk had entered and rush on booking window is also admitted. Thus, in absence of anything more, in our view mere shortage of cash could not have been treated to be a 'misconduct'.

35. The term "misconduct" was considered in Union of India Vs. J. Ahmed AIR 1979 SC 1022, wherein Court held as under :

"It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the contest of disciplinary proceedings entailing penalty." (para 10)

"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1988) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspaper)]. (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt. Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa RazaF, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -

"Misconduct means, misconduct arising from ill motive; act of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."

In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434: (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India (1967) 2 SCR 566: (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104: (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intraveious injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p.120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of rule 3 of the conduct rules as would indicate lack of devotion to duty." (para 11)

36. Again of State of Punjab and others vs. Ram Singh Ex-constable, (1992) 4 SCC 54, Court has held as under:

"Thus it could be seen that the word ''misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve." (para 6)

37. Thus, A 'misconduct' is something more than mere error committed by an employee. Lack of efficiency or failure to attain highest standards in discharge of duties attached to public office would not constitute misconduct, unless consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.

38. In the present case, we find that it was not necessary at all to go into the question whether procedure under Para 704 and 705 of IRVM was followed or not for the reason that serious misconduct alleged in charge-sheet pursuant to vigilance trap was found not proved by Inquiry Officer and this finding was not disagreed by disciplinary authority or any higher authority thereafter. The only thing Inquiry Officer found proved was factum of Rs. 32/- short in Government cash. This fact was not disputed by Applicant-employee also though he explained that this could have been due to some mistake due to rush of work. In absence of proof of first and third part of charge no.-2, as we have already noticed above, mere factum of shortage of Rs. 32/-, per se, could not have been said to be a 'misconduct' at all, justifying any punishment, whatsoever.

39. Moreover, Disciplinary, Reviewing and Appellate authorities without appreciating the fact that entire charge no.-2 has not been found proved, proceeded to impose punishment upon Applicant-employee assuming as if entire charge no.-2 has been proved and thus have clearly erred in law. The orders of punishment etc., therefore, could not have been sustained. Unfortunately Tribunal has not looked into this matter in correct perspective. Those aspects which were otherwise clear have not been examined at all. Since it is an old matter and entire relevant material is on record, therefore, we ourselves have examined all these aspects and find that punishment imposed upon Applicant-employee can not sustained for the reason we have already discussed above. Hence there was no occasion to look into the question whether procedure under Paras 704 and 705 was followed or not, therefore, though reasons assigned by Tribunal for setting aside order of punishment etc. we find, not justified, but since ultimately conclusion, in our view, is correct, therefore, we have no hesitation in dismissing this writ petition though we are substituting reasons for setting aside punishment and other orders passed against Applicant-employee by findings recorded by us in this judgment.

40. The writ petition is, accordingly, dismissed. No costs.

Dt. 01.11.2017

PS