Delhi High Court
Ram Prakash Kesharwani vs Union Of India & Ors. on 19 August, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
#4.
+ W.P.(C) 13412/2009
% Date of Decision:19.08.2010
RAM PRAKASH KESHARWANI ..... Petitioner
Through: Mr.M.K.Bhardwaj, Adv.
versus
UNION OF INDIA AND OTHERS ..... Respondent
Through: Mr.Neeraj Atri, Ms.Vineeta Atri,
Mr.Jairaj Mudgal, Mr.Himanshu
Kaushik, Advs.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
: PRADEEP NANDRAJOG,J(Oral)
1. Penalty imposed upon the petitioner of reduction of pay by four
stages for a period of five years without cumulative effect has been
upheld by the Tribunal vide impugned judgment and order dated
17.10.2008 and as a result O.A.No.775/2008 filed by the petitioner
has been dismissed.
2. A perusal of the reasoning of the Tribunal as per para 5 of the
impugned decision shows that the Tribunal has been influenced by
the fact that it stands proved that two persons broke the queue and
the petitioner received the reservation requisition forms from them
but threw the forms when he saw the raiding party approach. The
Tribunal has observed that if the evidence led is read „in between the
lines' it would be crystal clear that the petitioner has acted in an
irregular way and with an ulterior motive. The relevant observations
of the Tribunal which we have noted read as under:
"When the CO had seen those two persons not coming in
queue, he would have asked them to come in queue
instead of receiving reservation requisition forms. Whey
should he receive the reservation requisition forms when
they did not come in queue? The motive is obvious and we
are sure that the witness, who gave evidence 17 months
after the incident, had twisted the facts to the advantage
of the applicant herein and we do not hesitate to say that
he was manage. If we read in between lines, it is crystal
clear that the applicant had acted in an irregular way with
an ulterior motive."
3. The charge against the petitioner was that while manning
counter No.549 at the Reservation Office, Ghaziabad on 19.08.2005,
he was having cash shortage of Rs.15/- which he could not explain
and secondly he got two filled-in reservation requisition forms in his
possession for preparing tickets ignoring priority of queue
passengers, which he threw out across the window, on seeing the
vigilance team.
4. It is important to note that there was no charge that the
petitioner received requisition forms from persons who broke the
queue.
5. As regards Article I of the charge, which has been held as
proved by the Inquiry Officer, we find no discussion in the impugned
decision of the Tribunal, but suffice would it be to note that, as
conceded by learned counsel for the respondent, as per applicable
guidelines framed by it, shortage or excess by Rs.30/- had to be
ignored.
6. The reason for the same appears to be that many times
passengers do not take back small change on account of it not being
available and many times the booking clerk does not insist on
receiving petty change, if not available with the customer.
7. Thus, it is Article II of the charge which is the focus of
consideration.
8. It may be noted at the outset that Article II of the charge as
framed does not state that the petitioner had allowed persons to
break the queue and took from them reservation forms, but threw
them away when the raiding party came. The charge simply is of
having kept two filled in reservation forms for issuing tickets, ignoring
priority of passengers in the queue.
9. It is apparent that the Tribunal has gone off at a tangent.
10. The reason why the Tribunal did so, is the fact that the witness
to the alleged incident i.e. Jamil Ahemad PW-4, on cross examination
denied having seen persons breaking the queue and handing over
two requisition forms. It is apparent that a superfluous question put
to the witness during cross examination had led the Tribunal at a
tangent.
11. Now, the fact of the matter remains that neither was the charge
nor is there any evidence that the charged officer received two
reservation requisition forms from persons who had broken the queue
and thus what has been read between the lines by the Tribunal i.e.
the petitioner did so on account of some illegal gratification is
incorrect.
12. But, learned counsel for the petitioner concedes that there is
evidence that two filled up reservation forms were thrown out by the
petitioner when the raiding party came and proof of said fact is the
statement of PW-4 recorded at the spot by the raiding party which
has been treated as the examination-in-chief during inquiry. In the
said statement. PW-4 Jamil Ahemad has stated:-
"I came for reservation of Railway Ticket on 19.08.2005. I
was standing at number 5 in the queue at window no.549
when my turn reached I gave my reservation slip or form
to Mr.Kesharwani. At the same time vigilance team came
for raid and Mr.Kesharwani threw two filled reservation
form from the window. The details of the said two form are
given below. Upon the request, myself picked the said two
forms and handed over the same to vigilance team."
13. It is apparent that the petitioner had pre-filled reservation
forms which he would have certainly used to issue tickets and when
he saw the raiding party he threw the said two forms.
14. Experience tells us that people manning railway counters leave
their seats from time to time under the pretext of visiting the toilet
and in this way, on return, they can bring back pre-filled forms
obviously to issue tickets. These pre-filled forms could be the ones
that are handed over to them by touts.
15. The conduct of the petitioner of throwing out the two pre-filled
forms shows his guilty mind and the obvious guilt was that the
petitioner knew that the game was up and he had to explain as to
who were the persons in whose name the reservation form was filled
up and for whom the petitioner would have got issued two tickets. He
wanted to get rid of the forms and thus he threw them away.
16. In such kinds of cases it is difficult to bring on record full
evidence of the motive of the delinquent and thus one would have to
draw inferences based on conduct.
17. Thus, we conclude by holding that charge No.II stands proved.
18. But we agree with learned counsel for the petitioner that in the
absence of any further evidence, merely because the petitioner had
with him two pre-filled forms which he threw when the raiding party
came and keeping in view the fact that no excess cash was found in
his person, the penalty imposed is disproportionate to the gravity of
the offence and certainly can be called shocking to the conscious of
the Court. We note that the penalty is of reduction of pay by four
stages for a period of five years.
19. We accordingly dispose of the petition quashing the penalty
imposed upon the petitioner but remand the matter before the
disciplinary authority to levy a penalty, which needless to state would
be less than the penalty imposed.
20. The petitioner is permitted to appear in person before the
disciplinary authority who would hear him on the issue of penalty and
thereafter would pass a reasoned order justifying the quantum of
penalty imposed.
21. No costs.
PRADEEP NANDRAJOG,J
MOOL CHAND GARG, J
AUGUST 19, 2010
anb
