Arun Kumar Gupta vs Union Of India & Ors.
2012 Latest Caselaw 1634 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Review Petition No.60/2012
             & I.As. Nos. 160/2012 and 1258/2012 in
                      O.M.P. No. 562/2011

                                             Reserved on: March 05, 2012
                                            Pronounced on: March 07, 2012

ARUN KUMAR GUPTA                           ..... Petitioner
            Through: Mr. K.C. Mittal with
                     Ms. Anjali Mehra, Advocates.

                                Versus

UNION OF INDIA & ORS.                    ..... Respondents
              Through: Mr. Chandan Kumar, Advocate.

CORAM: JUSTICE S. MURALIDHAR

                              JUDGMENT

07.03.2012

Review Petition No. 60/2012 and IA No.1258/2012 (for delay) and IA No.160/2012

1. IA No.160 of 2012 has been filed by Mr. Arun Kumar Gupta, the Petitioner in OMP No.562 of 2011 complaining of disobedience by the Respondent Railways of the directions issued by this Court in its order dated 5th December 2011 disposing of OMP No.562 of 2011.

2. After notice was issued on this application on 9th January 2012, the Railways filed Review Petition No. 60 of 2012 seeking review and recall of the order dated 5th December 2011 along with an application IA No.1258 of 2012 seeking condonation of delay in filing the review petition.

3. The background to the review petition as well as I.A. No.160 of 2012 is that the Petitioner was initially granted a lease to operate the

SLR on Train No. 2420 (Gomti Express) between New Delhi and Lucknow for a period of three years from 13th October 2007 to 12th October 2010 by a lease deed dated 10th January 2008. In terms of the said lease, the Petitioner was entitled to seek renewal with 25% increase in the lease rent. The Railways, however, granted extension by only three months and with an increase in rental that was beyond 25%. The Petitioner's OMP No.641 of 2010 was disposed of by this Court on 1st December 2010 holding that the Railways could not demand increase of the lease rent for the period from 13th October 2010 till the date the Petitioner was prevented from operating the SLR.

4. Since the Railways did not grant further extension the Petitioner filed OMP No.39 of 2011. During the pendency of that petition, the Railways awarded the lease to one Mr. Arun Kumar Pandey from 13th January 2011. Meanwhile, OMP No.39 of 2011 was dismissed for non-prosecution on 6th May 2011. The Petitioner then filed the present petition OMP No. 562 of 2011 stating that since 29th June 2011 Mr. Arun Kumar Pandey had stopped operating the SRL in question and in the meantime this Court had by its decision dated 2nd June 2011 in Kishan Freight Forwarders v. Union of India 181 (2011) DLT 547 held that the Railways could not deny extension to a lease holder.

5. In its order letter dated 29th August 2011 directing notice to issue in OMP No. 562 of 2011, this Court noticed the above facts and observed as under:

"In view of the aforesaid decision of this Court, the right of the petitioner to seek extension for a period of two years from the date of expiry of the initial period of lease on 12.10.2010 cannot be

questioned. Merely because, in the meantime, a third party was introduced for a certain period who has also stopped operating the SLR, and the earlier petition preferred by the petitioner was dismissed for non-prosecution, the right of the petitioner to seek re-induction to operate the SLR in question for the remaining period of the lease prima facie cannot be denied. Accordingly the respondent is restrained from finalizing the tender in question which has now been floated."

6. A short counter affidavit was filed by the Respondent on 12th October 2011 in which it was pointed out that against the order dated 2nd June 2011 the Railways had preferred a batch of LPAs which were disposed of by the Division Bench on 1st September 2011. The said order passed by the Division Bench reads as under:

"The present batch of appeals have been preferred against the common order dated 2.6.2011 passed by the learned Single Judge in a batch of writ petitions whereby the learned Single Judge interpreted the clause 'E' of the contract that was entered into between the Railway Administration and the respondents and came to hold as follows:

"27. For the aforesaid reasons, the impugned orders dated 19th October 2010 in W.P.(C) Nos. 7289 of 2010, 7290 of 2010, 7291 of 2010 issued by the DRM, Northern Railway granting extension of the leases in favour of the Petitioners in those cases is modified to the extent that the suffixed words "...or till the finalization of the tender whichever is earlier" shall stand deleted. In other words, in those cases the leases will stand extended by a period of two years subject to the other terms in the letters dated 19th October 2010. As regards W.P.(C) Nos. 1201 of 2011, 1923 of 2011, 1925 of 2011, 2041 of 2011 and 2042 of 2011 the decision of the Respondent Northern Railway not to grant extension of the lease is hereby set aside. The Northern Railway is directed to extend the

lease in these cases for a period of two years from the date of expiry of the original lease in terms of Clause (E) of the CPLP as clarified by the Railway Board Circular No. 6 of 2010 dated 18th March 2010. Appropriate orders in terms of this judgment will be issued by the DRM, Northern Railway within a period of four weeks from today."

Mr. Ashish Mohan, learned counsel for the respondent submitted that a similar order passed in WP (C) No.5079 of 2011 on 20.7.2011 has already been implemented by the Railways.

On a query being made, learned counsel for the appellant fairly stated that in these appeals there are no allegations against the contractors of over-loading or any other kind of irregularity.

In view of the aforesaid, a consensus was arrived at as the time period has been extended in compliance of the order passed in WP(C) 5079/2011, the period involved in these contracts shall be extended. However, as we are not addressing to the issue relating to the nature of the clause involved and the respective rights following therefrom, the said issue is kept open. To elaborate, a contention was raised by the appellant that whether there should be an extension of the lis or not is within the discretion of the Railway Administration and the said discretion can be exercised regard being had to the hike in prices. That apart, learned counsel for the appellant also submitted that there are certain cases where there is over-loading and certain irregularities.

Regard being had to the aforesaid submissions made by Mr. Joydeep Mazumdar, learned counsel for the appellant-Railways, we keep these issues open to be adverted to in an appropriate case.

The appeals are, accordingly, disposed of without any order as to costs."

7. It was then stated by the Railways in its counter affidavit dated 12th October 2011 that the present case was one of overloading which is evident from the letter dated 12th/14th November 2008 issued by the Office of the General Manager (Vigilance) addressed to the Divisional Railway Manager ('DRM'), Delhi which recorded an incident of 15th October 2008 when extra weight of 217 kg. was detected and a penalty of Rs.7510 was imposed. It was paid on 16th October 2008. A copy of the said letter was enclosed with the reply as Annexure R2 and reads as under:

"Northern Railway Vigilance Branch

Head Quarters Office Baroda House New Delhi.

Confidential No.Vig/PC/2008/10/227 DT. 12/14/11/2008 To The Divisional Rly. Manager, Northern Railway, DELHI Sub:- Preventive check conducted on 16/10/2008 at L.K.L.

During the preventive check was conducted by northern railway vigilance on 16/10/2008 at LKO, the leased SLR of Train No.2420 booked against M.R.No.302844 dated 15/10/2008 Ex. NDLS-LKO was weighed. On the weighment of the above said SLR the actual weight was found 4217 Kg. Against the charged weight 4000 Kg. Thus the total weight 217 Kg. was found excess and under charges of Rs. 7510/- was raised and realized vides M.R. No.399008 dated 16/10/2008 from the lease holder M/S Arun Kumar Gupta, NDLS.....

Keeping in view of the above, it is advised that a necessary action may be taken against the leased holder under advised to this office.

DA: As above.

Sd/-

Dt. 17/11/2008 (N.L. Meena) For General Manager/Vig.

8. A reference was then made by the Railways to an order dated 18th April 2010 by this Court in OMP No. 703 of 2010 (Prompt Logistic Courier Services v. Union of India) in which the Railways' refusal to renew a lease where the case was one of overloading was upheld.

Reference was also made to Clause 18.1 of the lease which prohibited extension in cases of overloading.

9. In reply to the said affidavit, Mr. Arun Kumar Gupta submitted an affidavit dated 16th October 2011 paras 1 to 4 of which reads as under:

"1. That I have gone through the short counter affidavit filed by the Respondents in the opposition of the present petition and have perused the same. I find that along with short counter affidavit the Respondents have filed copy of the communication dated 12/14.11.2008 purported to have been written on behalf of Shri N.L. Meena, General Manager (Vigilance) to the DRM Northern Railway, New Delhi. In this letter there is a mention of some preventive measures dated 16.10.2008 and excess weight of 217 Kg having been found. The penalty of Rs. 7510/- was raised and realized vide MR No.399008 dated 16.10.2008. In this letter the name mentioned is Arun Kumar Gupta as leaseholder and Train No. 2420 has been mentioned.

2. That the Petitioner submits that the train No. And the name of the Petitioner as mentioned is totally wrong and incorrect. The Respondents have not annexed a copy of the MR No.399008 dated 16.10.2008 which is a receipt issued by the Railways for payment of penalty charge of Rs.7510/- and if the receipt would have been produced by the Respondents it would have amply proved that the

contents of the letter are baseless and incorrect.

3. That I submit that the Respondents have filed a false and incorrect affidavit before this Hon'ble Court since the receipt MR No.399008 dated 16.10.2008 for Rs.7510/- pertains to train no.2230 FSLR-II/C. The train no.2230 is Lucknow Mail and the Petitioner had no lease in respect of Lucknow Mail. It is also submitted that in so far as train no.2420 is concerned the Petitioner have never been imposed any penalty nor any penalty was ever deposited. The penalty which is referred to in letter dated 12/14.11.2008 does not pertain to the train which is a subject matter in the present petition which fact is clear from the money receipt issued by the Railways. After receipt of the copy of the affidavit of the Respondents the Petitioner verified the same from the record of the Railways at Lucknow and it was found that MR No.399008 dated 16.10.2008 pertains to train no.2230 and not 2420. This must have been verified by the Respondents and it seems they deliberately concealed the receipt from this Hon'ble Court. A photocopy of the same obtained from the railway records is annexed as Annexure R/1.

4. I also state that the Chief Parcel Supervisor, Lucknow vide letter dated 20.09.2010 and Chief Parcel Supervisor, New Delhi vide letter dated 11.10.2010 have already been given satisfactory letters in respect of the train no.2420 FSLR-II/C EX.NDLS-LKO allotted to the Petitioner as such the affidavit given by the Respondents is factual and incorrect."

10. On 4th November 2011 Mr. Chandan Kumar, learned counsel for the Railways, sought time to obtain instructions on the annexures to Mr. Arun Kumar Gupta's affidavit dated 16th October 2011. Annexure R-1 to Mr. Gupta's affidavit was a photocopy of a money receipt ('MR') No.399008 dated 16th October 2008 which indicated his name, with the train number shown as 2230 and the overcharge amount indicated as Rs.7510 and the date as 16th October 2008. When the matter was again listed on 5th December 2011, learned

counsel for the Railways sought further time to obtain instructions. Learned counsel for the Petitioner, Mr. K.C. Mittal, placed before the Court copies of order dated 13th July 2011 in other similar matters where similar prayers had been allowed. Consequently, in its order dated 5th December 2011, this Court passed an order disposing of the petition holding inter alia as under:

"5. This Court finds that the Petitioner cannot be treated differently from the said cases referred to where the reliefs prayed for have been granted by this Court in similar circumstances. After the decision in Kishan Freight Forwarders the Petitioner was entitled to an extension of the lease for a period of two years from the date of expiry of the original period of lease.

6. Accordingly, it is directed that the Respondents will renew the lease of the Petitioner for a period of two years from the date of expiry of the original lease. The Respondents shall be entitled to charge 2% development charges over and above the enhancement of 25% in the lease rent from the earlier prevailing rent under the original lease. The Respondents shall also not allot the lease in respect of the train in question, i.e., Train No. 2420-II from NDLS-LKO to any other person, except in accordance with the terms of the lease, up to the expiry of two years from the date of the expiry of the original lease or until the passing of the Award by the Arbitral Tribunal, whichever is earlier. This order is, however, subject to the Petitioner invoking the arbitration agreement within fifteen days."

11. On 2nd January 2011, the Petitioner filed IA No.160 of 2012 pointing out that in spite of the Petitioner delivering a copy of the order dated 5th December 2011 to the Railways on 12th December 2011 they had failed to comply with it. Accordingly, the prayer was that the Respondents should be punished for disobedience of the order of this Court and directions should be issued to them to forthwith allow the Petitioner to take over and operate the SLR in

question without loss of time.

12. Notice was directed to issue in IA No. 160 of 2012 on 9th January 2012.

13. On 17th January 2012 counsel for the Railways stated that he would be filing reply to IA No.160 of 2012 within two days. On the very next date i.e. 18th January 2012 he filed the Review Petition No.60 of 2012 along with an application for delay of ten days in filing the review petition. In the review petition after setting out the order passed by this Court in OMP No.562 of 2011 on 4th November 2011, it was stated by the Railways as under:

"3. While passing order dated 5.12.2011, this Hon'ble Court recorded in paragraph 4 thereof that learned counsel for the Respondent was still awaiting instructions. This instruction was received only on 9.1.2012. A copy of the same is annexed hereto and marked as Annexure R/1 (three pages/colly).

3.1 Annexure R/1 confirms that Petitioner was indeed fined for over-loading and was accordingly fined and he paid the same. Relevant document countersigned by 'Arun Kumar Gupta Lease Holder' on 16.10.2008 is part of Annexure R/1.

4. In view thereof, this Review Applicant reiterates the objections as set out in its short counter affidavit in opposition filed on 12.10.2011 and prays that relief prayed for are uncalled for in the facts of the case.

5. It is therefore prayed that:

5.1 order dated 5.12.2011 be recalled and upon hearing the matter, OMP No.562 of 2011 be dismissed.

5.2 this Hon'ble Court may pass such other and further orders as are deemed fit and proper in the facts of the case."

14. The annexures to the review petition are a copy of this Court's order dated 5th December 2011 followed by copies of three documents. The first was letter dated 9th January 2012 addressed to the DRM by Mr. D.S. Bhatia, General Manager (Vigilance) which stated as under:

"Confidential No.Vig/PC/2008/10/227 Date 09-01-2012

The Divisional Railway Manager, Northern Railway, New Delhi

Sub:-OMP No.562/2011 filed by Shri Arun Kumar Gupta V/s UOI & Others, before Hon'ble High Court of Delhi at New Delhi.

Ref:- Your office letter no.CIID/SLR/TN/2420-II/Court Case/2011 dated 26-12-2011

In reference to above cited letter, it is advised that a preventive check was conducted in parcel office, Lucknow on 16.10.2008 and leased SLR of Shri Arurn Kumar Gupta (Lease holder) of train no.2420 (Gomti Express) Ex.NDLS - LKO were checked. During the check excess weight of 217 Kgs was detected in FSLR (II Comp.) and Rs.7510/- were raised and realized vide MR no.399008 dated 16-10-2008 (Attested copy enclosed).

DA/As above.

Sd/-

(D.S. Bhatia) For General Manager/Vigilance"

15. Enclosed with this letter was a photocopy of the money receipt No.399008 dated 16th October 2008 bearing the attestation with rubber stamp by Mr. Bhatia. The sheet next to this was a purported calculation prepared of the overcharge amount in respect of train No.2420 on 16th October 2008. This again is shown to have been

attested by Mr. Bhatia.

16. Notice was issued in the review petition as well as the application for condonation of delay on 20th January 2012. On that date, this Court also noted the submission of Mr. Mittal and passed the following order:

"Review Petition No. 60/2012 (filed by the Respondent) & IA No. 1258/2012 (for delay)

1. Notice. Mr. K.C. Mittal, learned counsel for the Petitioner/non-applicant accepts notice. He states that the Petitioner checked up his records and found on comparing the receipt dated 16th October 2008, as filed with the review petition, with the receipt of the same date, (a copy of which has been enclosed by the Petitioner with his affidavit dated 16th October 2011 filed in OMP No. 562 of 2011), that the receipt filed with the review petition is a tampered document.

2. Mr. Mittal tenders an affidavit dated 20th January 2012 of the Petitioner to the above effect. The said affidavit further states that the calculation sheet enclosed at page 12 of the review petition does not contain the signature of either the Petitioner or any of his representatives. The Petitioner alleges that the said document has been forged and somebody has signed as a representative of one Mr. Arun Kumar Gupta but there is no such person representing the Petitioner at Lucknow. The said affidavit is taken on record.

3. Since the Petitioner has raised grave questions concerning the genuineness of the documents filed by the Railways with the review petition, the Railways is directed to produce in this Court the original file containing the above documents, from which copies were prepared and enclosed with the review petition including the book from which the receipts have been made.

4. The Railways will file a response to the aforementioned affidavit tendered today in this Court by

the Petitioner, before the next date of hearing.

5. List on 24th January 2012, the date already fixed. A copy of this order be given dasti to learned counsel for the parties under signature of the Court Master."

17. After taking further time on 24th January 2012 to produce original records, Mr. Chandan Kumar produced them on 2nd February 2012 when the following order was passed by this Court:

"1. The original receipt books maintained by C.P.S. Northern Railway, Lucknow and the office of the Northern Railway in Delhi have been produced by Mr. Chandan Kumar, learned counsel for the Respondents along with one file of the Vigilance Department and a calculation sheet along with a covering letter. These be kept in a sealed cover with the Registry and be kept ready for perusal on the next date.

2. Mr. Chandan Kumar, learned counsel for the Respondents is permitted to file a further affidavit before the next date.

3. List on 21st February 2012."

18. The Railways filed a rejoinder on 25th February 2012 supported by the affidavit of Mr. Navin Kumar Parsuramka, Sr. Divisional Manager/Freight. The said rejoinder reads as under:

"A. Preliminary Objections:

1. That as recorded in order dated 2.2.2012, Respondents have placed on record the original records.

2. It is stated that in terms of rule 4.2 of terms and conditions of the agreement, lease rental of the leased train is paid and received one day in advance. A copy of the said rule has already been filed along with the petition as Annexure P/2 at page no.8 (Index IV).

2.1 In the instant case, however, payment for 10 days

made in advance in Delhi on 8.10.2008 for a period of 13.10.2008 to 22.10.2008. This was recorded in receipt issued dated 8.10.2008 bearing number 202844. A copy of this money receipt is annexed hereto and marked as Annexure R-1/A.

3. The train bearing no.2420 left Delhi for Lucknow on 15.10.2008. This was to reach Lucknow on the same day.

3.1 Upon information having been received that leased compartment was carrying goods which was excess of permitted weight of 4000 kg. Upon arrival of the sai drain at Lucknow on 15.10.2008, a vigilance check was carried out. This was done, inter alia, in the presence of Petitioner's Lucknow representative, Mr. Birender Pandey. Other persons present during this inspection were Chief Parcel Supervisor, Lucknow and Commercial Inspector, Lucknow. That in terms thereof, a report was prepared. It was found that an excess weight of 217 kg. was loaded. A penalty of Rs.7510/- was imposed upon the Petitioner. This was instantly paid without any protest. Money receipt issued at Lucknow is dated 16.10.2008 and it bears number as 399008. A copy each of the inspection report and the receipt number, as available on the Vigilance File, has been filed along with the Review Application and is marked as Annexure R/2.

3.2 Upon scrutiny made, it was found that receipt available in the vigilance file maintained at Delhi office, had overwriting on train number, while original receipt as available in Lucknow, did not have it. A copy of receipt so available at Lucknow is annexed as Annexure R-2/A. This discrepancy shows that some vested interest was at work who benefited from this. Respondent has placed all original documents before Hon'ble Court. It is also intriguing how Petitioner placed a copy of Annexure R-2/A along with their reply to the OMP, even when it was Railway's (payee) copy and even when Respondent's own vigilance department was not having that copy. Petitioner further does not aver that it procured the said document under Right to Information Act.

4. That Vigilance further submitted a Check report dated 4.11.2008. This is signed by Mr. Navneet Kumar, Vigilance Inspector. It records the aforesaid facts setting out two receipt numbers. That based upon that report, office of General Manager/Vigilance advised Divisional Railway Manager, Northern Railway by their letter dated 14.11.2008 to take necessary action against the said lease holder. Original of these have already been placed on record. A copy each of the said two documents is additionally annexed hereto and marked as Annexure R-3/A.

5. If so required and so directed by this Hon'ble Court, facts so set out in the annexed documents can be proved by affidavit of the said railway employees.

B. Reply on merit:

1.2 In view of the preliminary submissions made hereinabove, contents of paragraph nos. 1 and 2 of reply are denied. Petitioner is put to strict proof of its alleged averments. Amongst others, it is denied that calculation sheet was not signed by Lease holder's representative Mr. Birender Pandey. It is stated that Mr. Birender Pandey was Petitioner's representative in Lucknow. A copy of letter issued by Petitioner, introducing Mr. Birender Pandey to railways for this purpose is annexed hereto and marked as Annexure R-4/A.

It is therefore, prayed Review be allowed in terms of prayers made herein." (emphasis supplied)

19. Annexure R-1/A to the above rejoinder is a copy of MR No.302844 dated 8th October 2008 issued in respect of train No.2420 in the name of Mr. Arun Kumar Gupta. Annexure R-2/A is a copy of MR No. 399008 dated 16th October 2008 which completely tallies with a similar document annexed with Mr. Arun Kumar Gupta's affidavit filed on 16th October 2011. Annexure R-3/A is the Check Report dated 4th November 2008 of the Vigilance Inspector, Mr. Navneet Kumar, at the CPS office at Lucknow. The said Check

Report reads as under:

"Check Report

Case No. : Vig/PC/208/10/227 Date of Check : 16/10/08 Place of Check : Parcel office/Lucknow Aim : Weighment of leased SLR of Train No.2420"

Check Report:-

A preventive check was conducted in parcel Office, Lucknow on 16.10.08. The aspect of the check was to detect undercharges on account of excess weight in booked leased SLR of train no.2420 NDLS to LKO, Gomti Express. Front SLR of Train no.2420 was booked NDLS to LKO vide MR No.302844 dated 15.10.08, in favour of M/s. Arun Kumar Gupta.

The front SLR of said Train no.2420 was weighed at Parcel Office, LKO. After weightment, weight was found as 4217 kgs. instead of chargeable weight of 4000 kgs. as such excess weight of 217 kgs. was detected. Thus Rs.7510/- were raised and realized vide M.R. No.399008 dated 16.10.08 against the excess weight.

Loading and underloading was done by party. Loading not supervised by Railway staff because of leased SLR.

Undercharges have been correctly realized by parcel staff.

Conclusion:-

Over-weight of 217 kgs. Was detected in the Front SLR leased, booked from NDLS to LKO arrived by train no.2420 on 15.10.08 and weighed on 16.10.08. An amount of Rs.7510/- was raised and realized.

Submitted please."

20. Mr. K.C. Mittal, learned counsel for the Petitioner, submits that false statements have been made in the review petition supported by

an affidavit as well as in the rejoinder filed by the Railways on 25th February 2012 again supported by an affidavit. He points out that the Petitioner at the relevant point of time was operating the SLR only on Train No.2420 i.e. Gomti Express which leaves Delhi at 12.40 pm every day and reaches Lucknow at 9.40 pm on the same day. In the present case, even as per the rejoinder affidavit, Train No.2420 which is subject matter of this petition left Delhi for Lucknow on 15th October 2008.

21. It may be mentioned that the date '15th October 2008' mentioned in paras 3 and 3.1 of the rejoinder dated 25th February 2012 of the Railways has been corrected by hand but not bothered to be initialled by the deponent in the affidavit in support thereof i.e. Mr. Navin Kumar Parsuramka, the Senior Divisional Commercial Manager, Northern Railway. Although, in para 2.1 it is stated that the lease rental was paid ten days in advance in Delhi on 8th October 2008 under MR No. 302844, which is evident from the MR itself, in the Check Report it is stated that "front SLR of Train no.2420 was booked from NDLS to LKO vide MR No. 302844 dated 15th October 2008 in favour of M/s. Arun Kumar Gupta." Even if one were to ignore the above discrepancy, the fact remains that according to both the Petitioner as well as the Railways MR No.302844 dated 8th October 2008 pertained to the lease rental corrected from the Petitioner in respect of Train No.2420. The second issue on which there is no dispute is that Train No.2420 left Delhi for Lucknow on 15th October, 2008 and reached Lucknow on the same day.

22. Mr. Mittal points out that even according to Railways the said Gomti Express was supposed to have been checked on 15th October 2008 at Lucknow in the presence of the Petitioner's Lucknow

representative, Mr. Birender Pandey. The Check Report, however, on top indicates 'the Date of Check' as 16th October 2008. However, in the conclusion portion of the Check Report it is stated that over weight was "detected" on 15th October 2008 and weighed on 16th October 2008. During the course of the arguments, it was sought to be suggested that although the train arrived at 15th October 2008, it was checked only on 16th October, 2008. This is disputed by Mr. Mittal who points out that usually the checking of the overweight in an SLR is done within a period of two hours after the train arrives at the destination. He further submits that the fact that no wharfage was charged makes it unbelievable that checking could have been postponed till the next date 16th October 2008. He insists, therefore, that MR No.399008 dated 16th October 2008 did not pertain to Train No.2420 at all. He insists that the said MR even in the original indicates the Train No. as 2230 (Lucknow Mail) for the SLR of which the Petitioner had no lease.

23. The above contention is borne out by the original counterfoil, as produced by the Railways before this Court, in the book containing MR No.399008. A perusal of the original MR No.399008 shows that the 'Lease MR No.' written in the body of MR No.399008 is No.302894. This is written by hand. Even if the number '9' in 302894 is read as '4', as insisted by the Railways, it is intriguing how the train number indicated therein is '2230'. What is disconcerting is that the document annexed with the review petition, which is also a photocopy of MR No.399008, is different from the original of that document. This is plainly discernible from a comparison of the said annexure with the original. The said annexure reveals shows that the Train No.2230 therein has been corrected by hand, by overwriting, to read as '2420'. Further the Train No.2420 has again been written

above the said correction. These corrections/insertions made by hand are absent in the original. Clearly, therefore, prior to the filing of the review petition, someone has manipulated/tampered with a copy of the MR No.399008 and then submitted it to the counsel for the Railways who has then filed it along with the review petition. Strangely, that copy filed with the review petition has been attested by Mr. D.S. Bhatia, Senior Vigilance Officer at the New Delhi Office with a rubber stamp. The said copies bearing the original rubber stamp and signature of Mr. Bhatia were handed over in Court by Mr. Chandan Kumar during the hearing on 5th January 2012.

24. Understandably, Mr. Chandan Kumar sought to get out of a difficult situation by submitting that Mr. Bhatia, when he attested the said photocopy of MR No.399008 at the time of filing of the review petition did not, in fact, have the benefit of seeing the original which was available in the office of the CPS at Lucknow. Considering that Mr. Bhatia is a General Manager (Vigilance), it was not expected that he would mechanically attest the photocopy of a document without even verifying whether it was a true photocopy of the original. Further, considering that the said document was being filed in the Court, Mr. Bhatia was expected to take the necessary precaution since the very basis of the review petition was to show that the Petitioner, in fact, had been booked for overloading Train No. 2420 (Gomti Express) on 15th October 2008 and a fine had been collected from him for that purpose. This, in fact, raises serious questions as to why a tampered document has been filed by the Railways along with its review petition and who is responsible for such tampering.

25. The dispute as to the genuineness of MR No.399008 had been raised by the Petitioner way back on 16th October 2011 itself in his

affidavit of that date. So there was sufficient time for a proper inquiry to have been conducted by the Vigilance Department of the Railways by the time the review petition was filed. However, all that is said in para 3.2 of the rejoinder is that "some vested interest was at work who benefited from this." This is a statement casually made without any inquiry having been conducted to substantiate it. Incidentally, the photocopy of MR No.399008 as filed by the Petitioner with the affidavit of 16th October 2011 is indeed a true copy of the original.

26. The calculation sheet accompanying the photocopy of MR No.399008, which has been enclosed with the review petition, also has several problems. In the first place, even in the files of the Vigilance Department there exists only a photocopy of this document. Mr. Bhatia has simply again attested this document with a rubber stamp without even bothering to find out whether its original exists on the file. Apart from this lapse being inexcusable, there are on the face of the said document other discrepancies. The said document bears the signatures of a railway clerk with the date below his signature shown as "16.10.2008". Sequentially, this document ought to have been prepared first because it lists out the weight in each of the sub-compartments of the SLR and shows the total weight as 4217 kg. It contains a detailed calculation of the overloading amount as Rs.7510. It is on the basis of this calculation that MR No.399008 should have been prepared. Consequently, it is only to be expected that the person who prepared and signed this calculation sheet was also the person who signed MR No.399008. However, when one compares the signatures of this Railway Clerk (whose name is not indicated) on the MR with the signature on the calculation sheet, they do not tally. It appears that there has been a crude attempt, by someone to fabricate the signature either on the

calculation sheet or on the MR. Why this has happened and who is responsible for this has not been explained by the Railways.

27. The further problem with the copy of the calculation sheet sought to be relied upon by the Railways is that it is shown to have been countersigned on the right margin by one Mr. Birendra Pandey acting on behalf of Mr. Arun Kumar Gupta. A careful perusal of the calculation sheet shows the name of Mr. Birendra Pandey figures on the right hand corner with the prefix 'for' and below that the name of 'Arun Kumar Gupta Lease holder' is indicated. Considering that this is only a photocopy of the original, and no original of the said document is available on file, it would be unsafe to place any reliance on the said document.

28. The net result is that review petition by the Railways is sought to be based on documents, the authenticity of which is in grave doubt. It is distressing to note that a senior officer of the Railways has attested the documents enclosed with the review petition without, in fact, verifying whether these documents are true copies of their respective originals. It is indeed baffling as to why Railways would along with its review petition file an obviously tampered document, showing it to be a true copy of MR No.399008. There has been, therefore, an attempt to introduce into the court record a fabricated and tampered document. While condemning this in the strongest terms, this court considers it necessary to require a full-fledged inquiry to be conducted into the matter.

29. Mr. Chandan Kumar pleaded that such inquiry should be conducted by the DRM himself. This Court is however not confident that such enquiry can be conducted in a fair manner since the

Vigilance Department of the Railways has itself been responsible for this mess and has not shown any inclination as yet to bring out the complete truth. This Court, therefore, considers it appropriate to request the Central Vigilance Commission ('CVC') to conduct a proper investigation into the entire episode, and unearth the complete facts and submit a report to this Court within a period of three months from today. For this purpose, a complete set of paper book together with photocopy of the file submitted by the Railways to this Court including the three sheets submitted in Court on 5th January 2012 will be handed over to the CVC by a special messenger of the Court within a period of ten days from today.

30. The CVC will have the inquiry conducted through any senior official of CVC who will also be permitted to access the original books containing MR counterfoils, which have been placed in a sealed cover with the Registrar General. The official of the CVC entrusted with the enquiry can approach the Registrar General of this Court for that purpose. The seals of the packet consisting of the originals of the above counterfoil books and other papers as noted hereinbefore will be opened to enable such officer to peruse the originals and other papers and thereafter the packet will be resealed. It will be open to the official of the CVC inquiring into the matter examine all the relevant records of the Parcel Office of the Northern Railway at Lucknow as well as the records available with the Vigilance Department of the Railways both at Lucknow and Delhi. The Railways will extend their full cooperation in the inquiry. The official entrusted with the enquiry is free to seek the assistance of experts including handwriting and forensic experts whose expenses will be borne by the Railways. The Railways will also bear the entire expenses of the official, including the travel and incidental expenses,

and fees which is peremptorily fixed at Rs.50,000. This will be paid to the said official by the Railways within four weeks. In conducting the said enquiry, the official of the CVC will act as an officer of the Court and everyone concerned will extend their full cooperation to such official.

31. The inquiry report shall be submitted to this Court within a period of three months from today in a sealed cover. Apart from ascertaining whether and in what manner the alleged overloading was detected and on which precise date, the official entrusted with the enquiry will also ascertain who the persons responsible for the tampering of the documents referred to hereinbefore were. The inquiry report could include suggestions as to how the working of the parcel booking office of the Railways can be improved to eliminate illegal practices including, but not limited to computerizing the entire system to obviate tampering of records.

32. While condoning the delay in filing the review petition and thereby allowing IA No.1258 of 2012, this Court does not find sufficient ground having been made at this stage out for recalling its order dated 5th December 2011 on the basis of the documents now submitted with the review petition. Review Petition No. 60 of 2012 is accordingly dismissed in the above terms.

33. If aggrieved by the Railways continuing to be in breach of the order dated 5th December 2011, it will be open to the Petitioner to file an appropriate contempt petition in accordance with law. IA No.160 of 2012 is, accordingly, disposed of.

34. Apart from compliance with the direction in para 29 above, the

Registry will ensure that a certified copy of this order be delivered to the CVC by special messenger on or before 13th March 2012 to enable the CVC to take steps in terms of the paras 29 to 31 above. Order dasti to the parties as well.

35. The report of enquiry be placed before the roster Bench for directions on 4th July 2012.

S. MURALIDHAR, J.

MARCH 7, 2012 s.pal