Vijay Ram Srivastava vs Union Of India & Ors.
2011 Latest Caselaw 815 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.8016/2010

%                         Date of Decision: 10.02.2011

Vijay Ram Srivastava                                          .... Petitioner

                          Through Mr.A.K.Trivedi, Advocate.

                                   Versus

Union of India & Ors.                                    .... Respondents

                          Through Mr.Chandan Kumar, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.        Whether reporters of Local papers may               Yes
          be allowed to see the judgment?
2.        To be referred to the reporter or not?              No
3.        Whether the judgment should be                      No
          reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 25th August, 2010

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in O.A No.131/2010 titled as „ Vijay Ram Srivastava v. Union of

India and Ors‟, dismissing the original application seeking quashing of

charge sheet dated 30th September, 2008, the penalty order passed by

the disciplinary authority dated 9th October, 2009 and order dated 7st

January, 2010 passed by the appellate authority and transfer order

dated 26th November, 2008 transferring the petitioner to the Lucknow

division and the major penalty imposed on the petitioner reducing his

pay with cumulative effect from Rs.17,290/- in the grade of Rs.9300-

34800+4200 to Rs.5200/- in the grade of Rs.5200-20,200/- up to his

retirement.

2. Brief facts relevant for adjudication of the disputes between the

parties are that the applicant was on duty as Hd/YYE/L/DEE, on 29th

November 2007 in Train No. 4033 Express PNP to LDH, and was

manning the Coach No. A/1, B/1 & B/2. A preventive check was

conducted by a team of H/Vig., Railway Board. Thereafter, on

conducting the checking a major penalty charge sheet dated 30th

September, 2008 was issued against the petitioner on the charges that

he was responsible for carrying two irregular passengers one in 3 AC

and another in 2 AC for his personal gain and that he was also

responsible for having Rs.40/- excess in Government cash. The day

chargesheet was issued to the petitioner he was also debarred from

cash handling duties and was grounded till the finalization of the D&AR

case.

3. The petitioner submitted a reply dated 6th November, 2008 to the

charge sheet explaining that both the charges are false and baseless

and that he has not committed any misconduct. According to the

petitioner on 29th November 2007 when he was posted in train No.4033

between Delhi and Ludhiana, he checked coaches A1 and B1 and no

extra passenger was found. He had checked B2 coach and had

prepared an Extra Fare Ticket (EFT) for a sum of Rs.3930/-. The

petitioner contended that the first Extra Fare Ticket was prepared for

Rs.360/- bearing EFT No.000568 for which passenger gave Rs.400/-

and as he was not having Rs.40/- for returning the balance amount.

Therefore, he made a remark "balance Rs.40/-" on the backside of the

Extra Fare Ticket and returned the same to the passenger at the

Ambala Railway Station and in the circumstances he did not have any

excess money of Rs.40/-.

4. Regarding the allegation of carrying the extra passenger, the

petitioner contended that one passenger namely Sh.Mahtab Singh had

confirmed reservation ticket of coach No.S-2, berth No.2, however, he

by mistake entered into the AC coach when the train started from the

platform and the Checking Inspector had directed the petitioner to

prepare the Extra Fare Ticket for him and charged the money from the

passenger by threatening him. According to the petitioner it is an

admitted fact that Sh.Dharmender Kumar charged Rs.200/- from the

said passenger for which he had already been issued a major penalty

charge sheet.

5. An enquiry officer was appointed who, after completion of inquiry

in his report dated 22nd September 2009, held that the two charges

stood proved against the applicant. A copy of the inquiry report was

given to the petitioner for his comments. Meanwhile the petitioner had

filed an original application being O.A No.752/2009 against the order of

grounding and debarring him from cash handling duties which was

disposed of with a direction to the respondents to complete the

disciplinary proceedings, and also granted stay against the operation of

order dated 30th September, 2008.

6. After conducting the enquiry both the charges made against the

petitioner of carrying two irregular passengers for personal gain and

possessing extra Government cash were established and the

disciplinary authority agreeing with the findings of the enquiry officer

awarded the punishment of reduction of pay scale of the petitioner with

cumulative effect by order dated 9th October, 2009. The applicant then

filed an appeal against the order of the disciplinary authority by appeal

dated 28th October 2009. The appeal filed by the petitioner was also

decided by the appellate authority after giving him a personal hearing

by communication dated 7th January, 2010, wherein the appellate

authority upheld the punishment imposed by the Disciplinary

Authority. Aggrieved by the order of the appellate authority, the

applicant filed an original application, before the Central Administrative

Tribunal, being OA No. 131/2010 on 5th August 2010.

7. The petitioner had challenged the various orders passed against

him inter-alia on the grounds that the disciplinary authority as well as

enquiry officer had not acted independently and had passed the order

under pressure on the directions of the vigilance department; that the

relevant documents that is the passenger statement was not supplied

due to pressure of the vigilance department and it could not be withheld

on the ground that it had not been cited as a document; that since Sh.

Dharmender Singh had admitted the fact of accepting the money from

the passenger and had been penalized for the same, the petitioner could

not be penalized for it; that the charge sheet was vague and not specific;

that except for the complainant there was no evidence on record and

that the enquiry officer had failed to consider certain relevant evidence

in favor of the applicant; that the punishment imposed on the petitioner

was harsh and did not commensurate with his alleged misconduct and

according to the circular of the respondents having cash up to Rs.100/-

short or excess by the persons dealing with the cash, is not a

misconduct.

8. The Tribunal noticed the pleas and contentions raised by the

respondents that the applicant had not deliberately joined at the

Lucknow division and remained absent from duty from 11th November,

2009 without any interim order which amounted to a grave misconduct

and he was asked to comply with the transfer order dated 26th

November, 2008 but he rather filed the original application

No.131/2010 challenging the penalty imposed against him and his

transfer order. The Tribunal while considering the pleas and

contentions of the petitioner had held that the Tribunal does not have

to reappreciate the evidence especially as the petitioner had failed to

point out any perversity or illegality in the order of the disciplinary

authority and the appellate authority. It has also been noted that two

passengers without proper tickets were found during vigilance

checking, one in A1 coach and the other in B1 coach and an amount of

Rs.40/- in excess in the Government cash was also detected. Since the

petitioner had not made any entry in the record that the excess amount

had to be returned to a passenger consequently the plea raised by the

petitioner was not accepted. In the circumstances, it has been held that

it is not a case of no evidence and on the basis of the evidence a

probable conclusion could be reached by the disciplinary and appellate

authority against the petitioner which is not to be substituted by the

Tribunal with its own inferences.

9. Perusing the disciplinary and appellate authority orders it has

also been held that the orders are reasoned orders and the plea of the

petitioner that the authorities had passed cryptic orders was repelled.

Relying on Union of India v. B.K.Srivastava, 1998 (1) ATJ 166 Tribunal

has also held that on the findings of facts which are based on evidence

there is no scope for the Tribunal to interfere as an appellate authority

and to reappreciate the whole evidence. The Tribunal has also held that

the chargesheet was issued to the petitioner on the basis of the report of

the vigilance team which had conducted preventive checking and

pursuant to chargesheet filed opportunity was given to the petitioner to

defend himself and on the basis of the enquiry report the disciplinary

authority after agreeing with the same had imposed the punishment

which cannot be termed disproportionate to the misconduct on the part

of the petitioner. In the circumstances it was held that there is no

illegality or infirmity in the conduct of the departmental enquiry or the

process by which the disciplinary authority and the appellate authority

arrived at their decision and imposed the punishment on the petitioner.

10. The Tribunal has specifically noted that there were no averments

made by the petitioner that the enquiry was not conducted properly or

that no opportunity was given to the petitioner to defend himself.

Regarding the plea of the petitioner that the copy of the passenger

statement was not supplied the Tribunal noted that the statement of

the passenger was not relied on by the enquiry officer. The pleas of the

petitioner that Sh. Dharmender Singh had admitted of having accepted

the money and that the case of the petitioner was of no evidence and

the chargesheet being vague and not specific was also repelled as the

charges could not be considered to be vague and Sh.Dharmender Singh

also having taken the money from a passenger which was in the coach

which was under the petitioner cannot absolve the petitioner of the

misconduct on his part of carrying an illegal passenger. Regarding the

circular under which having extra money or less money upto Rs.100/-

was held to be not applicable as it is not applicable in cases of irregular

working of staff/vigilance/corruption matters.

11. We have heard the learned counsel for the parties and have also

perused the record of the disciplinary proceedings. Petitioner has

contended that the transfer order dated 26th November, 2008 is also

without any basis and he has relied on the grounds taken by him in the

original application bearing O.A No.131/2010 and pleaded that the

pleas and contentions taken in the original application be also treated

as part and parcel of the present petition. Perusal of orders of

punishment passed by the disciplinary authority and the appellate

authority reveal that they have considered the pleas and contentions

and have passed reasoned orders. This Court while exercising its writ

jurisdiction does not have to reverse a finding of the enquiry authority

on the ground that the evidence adduced before it was not sufficient

and probable inferences as has been drawn could not be drawn.

12. This Court, however, on perusal of some of the relevant evidence

is of the view that the findings of the enquiry officer are plausible and

the conclusion of the enquiry officer cannot be termed to be perverse or

based on no evidence. The learned counsel for the petitioner has not

pointed out any evidence which has not been considered or ignored by

the enquiry officer which would have led to different inferences. In any

case the enquiry officer is the sole judge of the facts so long as there is

cogent and legal evidence to substantiate the findings. No such

inadequacy in the evidence has been pointed out which will lead to

different inferences.

13. Regarding non supply of the statement of the passenger, it is

apparent the same has not been relied on by the enquiry officer and in

the circumstances non supply of the copy of the statement of the

passenger would not prejudice the case of the petitioner and to that

extent we agree with the findings of the Tribunal. The learned counsel

for the petitioner has not denied that on the basis of the charges made

against the petitioner if established, the major punishment of dismissal

or termination could have been imposed by the respondents. The

penalty of reduction in the pay of the petitioner, therefore, is a lenient

punishment and cannot be termed to be disproportionate to the charges

established against the petitioner. In the circumstances, this Court is

also of the view that the punishment imposed on the petitioner is not

disproportionate to the misconduct established against him.

14. No other point has been raised by the learned counsel for the

petitioner. This Court has also perused the record of the enquiry

especially evidence and documents. In the totality of the facts and

circumstances the learned counsel for the petitioner has failed to make

out any such grounds which will entail any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

There is no illegality or perversity in the orders challenged by the

petitioners. The writ petition in the facts and circumstances is without

any merit and it is, therefore, dismissed. Considering the facts and

circumstances, the parties are also left to bear their own costs.

ANIL KUMAR, J.

FEBRUARY 10, 2011                               VEENA BIRBAL, J.
„k‟