P.R. Shele vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1002 Bom

JUDGMENT

Ranjana Desai, J.

1. The petitioner was working as Inquiry Reservation Supervisor with the Central Railway. Charge-sheet was issued to him on 12-2-2001. Shortly stated the charge against the petitioner was that while working as Inquiry Reservation Supervisor, he made special cancellations for four journey C.P. tickets amounting to a total of Rs. 35,036/- and pocketed the said amount. He had thus defrauded the railway administration to the tune of Rs. 35,036/-.

2. Enquiry Officer was appointed. Enquiry Officer submitted his report dated 6-9-2001 with his findings. The said report is dated 12-2-2001. We must refer to the conclusions drawn by the Enquiry Officer because the learned Counsel for the petitioner has heavily relied on those conclusions. The said conclusions are as under:

(i) The Spl. Cancellation were made on the ID OF THE CE. However, it cannot be said that the CE had himself resorted to spl. cancellation.

(ii) The amount of debit of Rs. 35,036/- is to be recovered from the wages of the CE, because his ID was used.

(iii) The CE had remained careless on account of which his ID could be used.

(iv) There is no direct evidence to prove that the CE had either defrauded the Rly. Admn. or misappropriated the said amount. It is a case of admitted debit. The loss was caused to Rly. because of his (CE) carelessness and negligence.

3. The Disciplinary Authority disagreed with the findings of the Enquiry Officer. Copy of the enquiry report and the note of disagreement were served on the petitioner. The petitioner submitted his representation dated 22-1-2002. The Disciplinary Authority considered the petitioner's representation. After going through the representation, the enquiry report and available evidence on record, the Disciplinary Authority held that the charges against the petitioner are proved and he imposed penalty of removal from service vide order dated 12-2-2002.

4. The petitioner preferred an appeal against the said order which was dismissed on 13-5-2002. The petitioner filed a revision application which was rejected on 30-10-2002. Compilation of these orders is made available to us by Mr. Suresh Kumar, learned Counsel for the respondents. Both these orders are speaking orders. The petitioner filed a mercy petition which was rejected by the General Manager. The petitioner thereafter preferred original application before the Central Administrative Tribunal, Bombay being O.A. No. 260 of 2004. The Tribunal by the impugned order dismissed the original application. The petitioner is aggrieved by the said order and hence this petition.

5. We have heard at considerable length learned Counsel for the petitioner. He submitted that the enquiry officer has given a finding that charge of misappropriation or defrauding the railway administration is not proved for want of proper documentary evidence. He has held that loss was caused because of the petitioner's negligence or carelessness and, therefore, the Disciplinary Authority could not have taken a different view. He submitted that in the circumstances the Disciplinary Authority's order ought to have been set aside by the Tribunal. He submitted that the order of the Tribunal does not deal with the submissions advanced by the petitioner. It is a perverse order and hence it may be set aside. He submitted that in any event the punishment awarded to the petitioner is disproportionate and, therefore, this Court may set aside the punishment and substitute it by any other prescribed punishment considering the fact that the petitioner has rendered 22 years' of service.

6. Learned Counsel for the respondents on the other hand submitted that no case is made out for interference with the impugned order.

7. It must be stated here at the outset that in the original application as the prayer clause indicates the petitioner had challenged only the charge-sheet dated 12-2-2001, the petitioner had not challenged the order dated 8-2-2002 passed by the Disciplinary Autority or the order dated 13-10-2002 passed by the Appellate Authority. The Tribunal has dismissed the original application on the ground that such a challenge is not tenable. The Tribunal has also held that the original application is time barred.

8. In our opinion, no fault could be found with the Tribunal for taking a view that challenge to charge-sheet is not tenable. In this connection we may refer to the judgment of the Supreme Court in Transport Commissioner, Madras-5 v. A. Radhakrishna Moorthy where while dealing with somewhat similar contention, the Supreme Court has observed as under:

The truth and correctness of the charges was not a matter for the Tribunal to go into - more particularly at a stage prior to the conclusion of the disciplinary enquiry. Even when the matter comes to the Tribunal after the imposition of punishment, it has no jurisdiction to go into truth of the allegations/charges except in a case where they are based on no evidence i.e. where they are perverse. The jurisdiction of the Administrative Tribunal is akin to that of the High Court under Article 226 of the Constitution. It has power of judicial review. It only examines the procedural correctness of the decision-making process. For this reason the order of the Tribunal insofar as it goes into or discusses the truth and correctness of the charges, is unsustainable in law.

9. We may also refer to yet another judgment of the Supreme Court in Union of India and Ors. v. Upendra Singh . The relevant observations of the Supreme Court may be quoted:

In the case of charges framed in a disciplinary inquiry the tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.

The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view.

10. We may also refer to the judgment of this Court in Ramchandra Govindrao Gaidhani v. Union of India and Anr. delivered on 18-9-2006 in Writ Petition No. 6211 of 1999, to which one of us (Smt. Ranjana Desai, J.) is a party. Similar view has been taken by this Court in that case. Examined in the light of the above judgments, we cannot fault the Tribunal for having refused to examine the correctness, the truth or otherwise of the charges. We cannot lose sight of the fact that the petitioner did not challenge the Disciplinary Authority's order or the Appellate Authority's order. The first submission of learned Counsel for the petitioner must, therefore, fail.

11. Preliminary objection of limitation has also been rightly upheld by the Tribunal. Revising Authority's order is dated 30-10-2002. It was handed over to the petitioner on 29-11-2002. The original application should have been filed within one year from that date. However, it is filed two years thereafter. Having held against the petitioner on the two preliminary objections, the Tribunal did not think it necessary to examine the merits of the case. Though on preliminary objections, we concur with the Tribunal, in the interest of justice, we have carefully read the orders of the Disciplinary Authority, the Appellate Authority and the Revising Authority and, we have come to the conclusion that no case is made out for interference with the impugned order.

12. The Disciplinary Authority has observed that the fact that the passengers had travelled on the said tickets was corroborated after checking the amended chart of the coach S/9 of 2133 Dn of 24-3-2000, from which it is clear that the last five digits of the PNR have been recorded by the Ticket Checking staff on duty and that passengers holding ticket No. 28907434 under PNR No. 810-9611334 have travelled by this train, whereas on the other hand it was subsequently detected that this ticket was cancelled using the petitioner's ID under Special Cancellation. It was also detected that the petitioner had failed to submit this ticket along with the ROPD statement. The Disciplinary Authority has further stated that though the PNR numbers have been recorded in respect of the other tickets by the respective conductors on amended charts, the petitioner has also failed to deposit these tickets. From the amended chart it is clear that the passengers had travelled on these tickets. The berth numbers and destination on these tickets are also entered exactly the same on the amended chart even though some of the berths were vacant. The Disciplinary Authority has rejected the petitioner's submission that cancellation was done on his ID, but it cannot be said that he had himself cancelled these tickets on the ground that user ID is allotted to the individual staff and no staff is supposed to use the user ID of others and the staff is also not supposed to disclose the user ID to others. The Disciplinary Authority has thus concluded that the special cancellation was done by the petitioner himself.

13. By a reasoned order dated 13-5-2002, the appeal preferred by the petitioner from this order was dismissed. Thus the finding of fact was confirmed. The petitioner carried a revision to the Revising Authority. The Revising Authority by a detailed order dated 30-10-2002 confirmed the finding of fact recorded by the Disciplinary Authority and the Appellate Authority. Having read these orders, we are of the opinion, that the petitioner has rightly been found to be guilty. The concurrent finding of fact cannot be called perverse so as to warrant interference from this Court.

14. That takes us to the last submission of learned Counsel for the petitioner as regards the alleged disproportionate punishment. In this connection our attention is drawn by Mr. Suresh Kumar, learned Counsel appearing for the respondent, to the judgment of the Supreme Court in Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane where the employee had misappropriated the funds of the appellant Corporation. The employee was removed from service. The High Court directed reinstatement with full back wages and continuity of service. The Supreme Court observed that while dealing with the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. The Supreme Court further observed that when a person is found guilty of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal. The Supreme Court restored the dismissal order passed by the Disciplinary Authority.

15. We may also refer to another judgment of the Supreme Court in Managing Director, North-East Karnataka Road Transport Corporation v. K. Murti (2006) 12 SCC 570. The relevant paragraph of the judgment may be quoted:

The learned Counsel for the appellant, at the time of hearing, placed strong reliance on the two decisions of this Court, one in Regional Manager, Rajasthan SRTC v. Ghanshyam Sharma which was also a case of bus conductor carrying passengers without issuing tickets. This Court, in the above case, held that carrying the passengers without tickets amounts to dishonesty or grave negligence and for such misconduct punishment of removal from service is justified. This Court also further observed that the Labour Court was not justified in directing the reinstatement with continuity of service but without backwages. This Court has also relied upon a judgment in Karnataka SRTC v. B.S. Hullikatti. In the said judgment, this Court has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a rate less than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court has also observed that in cases like the present, orders of dismissal should not be set aside. The learned Counsel for the appellant also cited Divisional Controller, N.E.K.R.T.C. v. H. Amaresh. In this case, this Court was considering the case of misappropriation of a small amount of State Road Transport Corporation's fund by a conductor and held it a grave act of misconduct, which resulted in financial loss to the Corporation. This Court also held that punishment of dismissal from service awarded by the disciplinary authority did not call for any interference by the Labour Court or the High Court and hence the order of reinstatement passed by the High Court was set aside. This Court also in a catena of decisions held that the Tribunal should not sit in appeal over the decision of any employer unless there exists a statutory provision in this behalf. This Court also observed that the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved.

16. In this case the Divisional Authority, the Appellate Authority as well as the Revisional Authority have held the petitioner guilty. It is observed that the special cancellations were made by the terminal manned by the petitioner. The privilege of special cancellation can only be accessed, if the appropriate user 1 D and password are entered. The password being confidential is known to the concerned Enquiry Reservation Supervisor who enters his User ID and password. It is observed that the concerned Enquiry Reservation Officer at the relevant time was the petitioner. Conduct of the petitioner is despicable. It shows dishonesty. As said by the Supreme Court, the amount involved is immaterial. It is the conduct and its effect which needs to be seen. If the respondents feel that such a person should not be allowed to work in railways which is a service essentially meant for general public their action of removing him from service cannot be faulted.

In the view that we have taken it is not possible for us to interfere with the punishment awarded to the petitioner. Besides there is no challenge to the Enquiry Officer's order. Challenge is to the charge-sheet. In the circumstances, in our opinion, there is no merit in the petition. The petition is rejected.