Bombay High Court
The Divisional Commercial ... vs Vm Saudagar Travelling Ticket ... on 21 September, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2461 OF 2002
1. The Divisional Commercial Manager,
Central Railway, Nagpur, District
Nagpur;
2. The Senior Divisional Commercial
Manager, Central Railway, Nagpur,
District - Nagpur. ... PETITIONERS
.. Versus ..
1. V.M. Saudagar,
Travelling Ticket Examiner (under
dismissal), Central Railway, Nagpur, Dead
R/o. Satguru Wadi, Juna Babhulkheda,
Ward No.17, Post Office : Bhagwan
Nagar, Nagpur, District Nagpur.
Legal Representatives of respondent No.1 :-
1-A Dipak S/o. Vasantrao Saudagar,
Aged about 25 years, Occ.
R/o. Sadguruwadi, Juna Babulkheda,
Ward No.17, Post Office : Bhagwan-
ghar Nagar, Distt. Nagpur.
1-B i) Smt. Sneha W/o. Chandrakant
Saudagar, Aged 35 yrs., Occ. Household,
1-B ii) Chintoo S/o. Chandrakant Saudagar
Aged about 13 yrs., Occ. Student.
1-B iii) Shubham S/o Chandrakant Saudagar
Aged about 10 yrs., Occ. Student
1-B iv) Shubhangi D/o Chandrakant Saudagar
Aged about 10 yrs, Occ. Student
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All R/o. Sadguru Wadi, Juna Babulkheda,
P.O. Bhagwan Nagar, Nagpur, Minors (ii)
to (iv) represented by their mother the
natural guardian.
1-C Kamlesh S/o Vasantrao Saudagar,
Aged major, R/o. Sadguruwadi,
Juna Babulkheda, Ward No.17,
Post Office Bhagwanghar,
Nagpur.
1-D Sau. Durga Mangal Sasodkar,
Aged about 23 years, Occ. Household,
R/o. Mohani Sagar Colony, Qtr. No.B-16,
Chhatri Road, Shivpuri (M.P.)
2. The Central Administrative Tribunal,
Mumbai Bench, Camp at Nagpur. ... RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dr. R.S. Sundaram, Advocate for Petitioners.
Mr. A.A. Naik, Advocate for Respondent Nos.1-A to 1-C.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : R.K. DESHPANDE &
MANISH PITALE, JJ.
DATED : September 21, 2017.
ORAL JUDGMENT (PER R.K. DESHPANDE, J.)
The respondent No.1 V.M. Saudagar, who was
working as a Travelling Ticket Examiner in Central Railway,
Nagpur, was on duty on 31.05.1988 on a Second Class
Sleeper Coach in 31 Down Dadar-Nagpur Express, was
dismissed from service by an order dated 07.06.1996, after
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finding him guilty of four charges levelled against him in
Departmental Enquiry. This order was confirmed by the
appellate authority, which dismissed the appeal on
30.07.1997. The respondent No.1 approached the Central
Administrative Tribunal by filing Original Application No.
431/1997, which was allowed on 21.03.2002, setting aside
the order of dismissal and directing reinstatement of
respondent No.1 with all consequential benefits. The
Department of Railway has preferred this writ petition.
2. The matter was admitted on 09.09.2002
granting ad-interim relief in terms of prayer clause (b) of
the petition. Against this interim order, SLP No.973/2003
was preferred, which was dismissed on 31.01.2003. The
respondent No.1 expired during pendency of this petition
and his legal heirs were brought on record as per the order
dated 18.12.2007.
3. The charge No.1 was that the respondent No.1
while functioning as Travelling Ticket Examiner, Central
Railway, Nagpur, demanded illegal gratification from three
passengers while travelling in Second Class Sleeper Coach
of 39-Down Dadar-Nagpur Express on 31.05.1988. An
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amount of Rs.25/- was demanded from Shri Hemant
Kumar, Rs.20/- was demanded from Dinesh Choudhary,
and Rs.5/- was demanded from Rajkumar Jaiswal for
allotment of berths. The second charge was that the
respondent No.1 was found in possession of excess amount
to the tune of Rs.1254/-, excluding his own private cash,
which was subsequently deposited by him in Railway
Sundry Account on 31.05.1988. The third charge was that
the respondent No.1 while functioning as such, failed to
recover Rs.18/- as difference in fare for Ticket No.444750
on 31.05.1988. The fourth charge was that the respondent
No.1 forged signature on Duty Card Pass No.030545, which
was issued in his favour by the office Superintendent-I, Pass
Section, DPO, Nagpur. It was alleged that the respondent
No.1 exhibited lack of integrity and devotion to duty under
Rule 3(1)(i) and (ii) of Railway Services (Conduct) Rules,
1966.
4. Before the Enquiry Officer, one Shri. N.C.
Dhankode the then Senior Vigilance Inspector, entered the
witness box and proved the Joint Surprise Check Report
submitted on 31.05.1988 and confirmed that Exh.P-4, P-5,
P-6 and P-7 are the complaints referred to by him. He
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identified the signatures of respondent No.1 on Exh.P-7, P-8
and P-9 as respondent No.1 signed the said documents
before him which were referred to him in his statement
dated 08.08.1988. Before the Enquiry Officer, the
passenger Hemant Kumar was not examined, but the other
passengers Dinesh Choudhary and Rajkumar Jaiswal were
examined. The Enquiry Officer records finding after taking
into consideration the evidence of these two witnesses
alongwith the documents placed on record and the
evidence of Shri. N.C. Dhankode, that the charge of
accepting illegal gratification has been proved.
5. The second charge of possessing excess amount
to the tune of Rs.1254/- excluding his own private cash is
held to be proved on the basis of evidence of one M.S.
Joshi, CTI Central Railway, Wardha, whose statement was
recorded by CBI at P-19 and also by one Shri A.B. Waikar,
retired HBC Nagpur, in his statement at P-25. Relying upon
the evidence of Shri N.C. Dhankode, it is held that non-
collection of difference of Rs.18/- in the fare has also been
proved. The Enquiry Officer further holds that respondent
No.1 under his own signature without any authority
extended the validity of Duty Card Pass No.030545 upto
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31.03.1988 when it expired on 31.03.1986.
6. The Central Administrative Tribunal sets aside
the finding recorded by the Enquiry Officer of the charge of
illegal gratification holding that one passenger Shri Hemant
Kumar was not examined as witness in the Enquiry and the
other witnesses examined namely Dinesh Coudhary and
Rajkumar Jaiswal have supported the case of respondent
No.1. In our view, it was not necessary for the department
to examine the passengers in Departmental Enquiry and
non-examination of such passengers shall not vitiate the
findings of the Enquiry Officer. The statements of all the
passengers recorded on 31.05.1988 are placed on record
and have been proved before the Enquiry Officer. The
documents are contemporaneous in nature. The evidence
of Dinesh Choudhary before the Enquiry Officer clearly
shows that an amount of Rs.20/- was not refunded to him
by the respondent No.1 though he assured to return it
subsequently. The another witness Rajkumar Jaiswal has in
fact gone ahead to tell that the sum of Rs.120/- was given
to the respondent No.1 who issued receipt of Rs.45/- only
and did not pay the remaining amount. The tribunal ought
to have seen that the findings recorded by the Enquiry
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Officer in respect of the demand of illegal gratification are
based on the evidence available on record. At any rate, it
was a possible view of the matter which did not call for
interference by the Central Administrative Tribunal.
7. In respect of second charge of possessing excess
amount of Rs.1254/- by the respondent No.1, the tribunal
holds that the reliance placed on Railway Board's letter
dated 22.08.1997 was misplaced as there was no ceiling
limit of carrying the cash existing on 31.05.1988 when the
incident took place. The Enquiry Officer took into
consideration the evidence of Mr. M.S. Joshi, CTI, Wardha
Railway and retired HBC Shri A.B. Waikar confirming their
statements at Exh.P-9 and P-25 that the amount was
subsequently deposited by the respondent No.1 and the
receipt was prepared at Exh.P-3 on 31.05.1988. The
Enquiry Officer does not rely upon any such letter imposing
this ceiling limit for possessing the private cash by TTE
during the travel. The very object is to find out the
unaccounted money possessed by an employee. It cannot
be therefore, said that the findings recorded by the Enquiry
Officer was not based upon any evidence. At any rate, it
was the possible view of the matter and there was no
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reason for the tribunal to interfere in it.
8. The third charge of failing to recover the
difference of fare of Rs.18/- between the old and new rate
of the ticket. The Enquiry Officer relied on the evidence of
Shri N.C. Dhankode, Senior Vigilance Inspector. Though
the third charge regarding forging the signatures for
extending the validity of Card Pass No.030545 has not been
proved, from the findings recorded by the Enquiry Officer it
seems that the respondent No.1 without any authority
under his signatures extended the validity of the Card Pass.
9. In our view, the tribunal was not correct in
interfering the findings of fact recorded by the Enquiry
Officer in respect of the charges levelled against the
respondent No.1, which are held to be proved. The view
taken by the Enquiry Officer was a plausible view of the
matter and it was not the matter of no evidence at all. We
cannot therefore, sustain the order passed by the Central
Administrative Tribunal.
10. In the result, this petition is allowed. The
judgment and order passed by the Central Administrative
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Tribunal dated 21.03.2002 is hereby quashed and set aside.
The application filed by the respondent No.1 is dismissed.
No order as to costs.
JUDGE JUDGE
waghmare
