Delhi High Court
Inder Kumar Sharma vs The General Manager, Northern ... on 3 September, 2015
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6452/2015
% Judgment dated 3rd September, 2015
INDER KUMAR SHARMA ..... Petitioner
Through : Mr. G.D. Bhandari, Advocate.
Versus
THE GENERAL MANAGER, NORTHERN
RAILWAY BARODA HOUSE &ANR. ..... Respondents
Through : Mr. J. K. Singh, Standing Counsel for
Railway for respondents.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present writ petition challenges the correctness of the order dated
08.12.2014 passed by the Central Administrative Tribunal in O.A. No.
3967/20110 by which the O.A. filed by the petitioner herein assailing the
punishment of reduction of pay was dismissed.
2. The facts as are necessary for the adjudication of the present writ petition
are as follows:
"The petitioner was appointed as Enquiry-cum-
Reservation on 10.09.1999. While on duty at Gurgaon in
the morning shift between 8:00A.M. to 2:00P.M. on
19.03.2009, two Vigilance Inspectors asked the petitioner
to declare the private cash available with him. The
petitioner produced Rs.360/- from one pocket and
Rs.9,000/- from the other pocket. The explanation
rendered for extra cash was that he had to purchase
medicines for his mother who was ailing. On an inquiry
being held, a charge sheet was served on the petitioner
on 22.05.2009. The Inquiry Officer submitted his report
on 18.11.2009. The petitioner made a representation
against the inquiry on 01.12.2009. After examining the
representation of the petitioner the disciplinary authority
proposed a penalty of reduction of pay by one step in the
time scale for two years with cumulative effect by the
order dated 28.01.2010 and an appeal against the said
order was preferred on 12.03.2010. The Appellate
Authority by an order dated 17.05.2010 issued a show
cause notice for enhancement of penalty. Objection
against the order was filed on 01.07.2010. By an order
dated 07.07.2010, the penalty was enhanced by reduction
of pay by three steps in the time scale for five years with
cumulative effect. The Appellate Authority by an order
dated 21/24.09.2010 reduced the penalty from five to
four years with cumulative effect."
3. Mr. G.D. Bhandari, learned counsel for the petitioner submits that the
learned Tribunal has failed to take into consideration that the inquiry was
not conducted as per the procedure and rules. The petitioner was not given
any opportunity to lead defence evidence. It is also contended that the
Inquiry Officer, the Disciplinary Authority as well Appellate Authority
failed to take into consideration the defence raised by the petitioner and
the excess cash found with the petitioner was for procuring medicines for
his ailing mother. It is also contended that the order dated 28.01.2010
passed by Disciplinary Authority shows complete non-application of mind
as the order has not discussed the evidence on record.
4. Mr. G.D. Bhandari, learned counsel appearing on behalf of the petitioner
has strongly urged that the impugned order is discriminatory and violates
the Principles of Equity, Justice and Good Conscience. The counsel
further clarified that the said order appears to have been passed on
account of colourable exercise of powers due to which the impugned
order is bad in law.
5. Learned Counsel for the petitioner has further contended that the
departmental traps were not laid by the Vigilance Officers of the Railways
in accordance with the provisions of the Indian Railway Vigilance
Manual, 1996. Non- compliance of the provisions has vitiated the
disciplinary proceedings and as a result thereof, the order of the
authorities imposing penalty upon the petitioner is invalid and illegal.
6. Learned Counsel for the petitioner further contended that provisions of
Rule 9(21) of the Railway Servant Discipline and Appeal Rules, 1968
have not been complied which has resulted in the violation of principles
of natural justice. To substantiate his arguments learned counsel for the
petitioner has relied upon the judgment of the Hon'ble Supreme Court
Moni Shankar Vs. Union of India (UOI) and Anr., (2008) 3 SCC 484 in
which the Apex Court held that though the paras 704 and 705 of
Vigilance Manual may be departmental instructions but the said paras
have to be substantially complied with and cannot be totally ignored.
7. Mr. J. K. Singh, Standing Counsel for Railway submitted that there has
been no violation of Rule 9(21) of the Railway Servant Discipline and
Appeal Rules, 1968 and the enquiry proceedings were conducted in
accordance of settled Rules. The counsel further clarified that the
petitioner himself chose not to present any defence witness and he was
examined on 22.05.2009 in accordance with Rule 9(21) of the said Rules.
In the light of above submissions the impugned order needs no
interference.
8. We have heard learned counsel for the petitioner and learned counsel for
the respondent, who had appeared on an advance copy.
9. In order to appreciate the respective contentions of the learned Counsel
for the parties, we think it appropriate at this stage to refer to the relevant
provisions of paragraphs 704 and 705 of the Indian Railways Vigilance
Manual, 1996, which read as under:
"704. Traps
i. .....
ii. .....
iii. .....
iv. .....
v. When laying a trap, the following important points have to
be kept in view:
a) Two or more independent witnesses must hear the
conversation, which should establish that the money was
being passed as illegal gratification to meet the defence that
the money was actually received as a loan or something else,
if put up by the accused.
b) The transaction should be within the sight and hearing
of two independent witnesses.
c) There should be an opportunity to catch the culprit
red-handed immediately after passing of the illegal
gratification so that the accused may not be able to dispose it
of.
d) The witnesses selected should be responsible witnesses
who have not appeared as witnesses in earlier cases of the
department or the police and are men of status, considering
the status of the accused. It is safer to take witnesses who are
Government employees and of other departments.
e) After satisfying the above conditions, the Investigating
Officer should take the decoy to the SP/SPE and pass on the
information to him for necessary action. If the office of the
S.P., S.P.E., is not nearby and immediate action is required
for laying the trap, the help of the local police may be
obtained. It may be noted that the trap can be laid only by an
officer not below the rank of Deputy Superintendent of Local
Police. After the S.P.E. or local police official have been
entrusted with the work, all arrangements for laying the trap
and execution of the same should be done by them. All
necessary help required by them should be rendered.
vi. .....
vii. .....
Para 705 Departmental Traps
For Departmental traps, the following instructions in addition to
those contained under paras 704 are to be followed:
a) The Investigating Officer/Inspector should arrange
two gazetted officers from Railways to act as independent
witnesses as far as possible. However, in certain exceptional
cases where two gazetted officers are not available
immediately, the services of non-gazetted staff can be
utilised.
All railway employees, particularly, gazetted officers, should
assist and witness a trap whenever they are approached by
any officer or Vigilance branch. The Head of Vigilance
Branch detail a suitable person or persons to be present at
the scene of trap. Refusal to assist or witness a trap without a
just cause/without sufficient reason may be regarded as a
breach of duty, making him liable to disciplinary action.
b) The decoy will present the money which he will give to
the defaulting officers/employees as bribe money on demand.
A memo should be prepared by the Investigating
Officer/Inspector in the presence of the independent
witnesses and the decoy indicating the numbers of the G.C.
notes for legal and illegal transactions. The memo, thus
prepared should bear the signature of decoy, independent
witnesses and the Investigating Officer/Inspector. Another
memo, for returning the G.D. notes to the decoy will be
prepared for making over the G.C. notes to the delinquent
employee on demand. This memo should also contain
signatures of decoy, witnesses and Investigating
Officer/Inspector. The independent witnesses will take up
position at such a place where from they can see the
transaction and also hear the conversation between the
decoy and delinquent, with a view to satisfy themselves that
the money was demanded, given and accepted as bribe a fact
to which they will be deposing in the departmental
proceeding at a later date. After the money has been passed
on, the Investigating Officer/Inspector should disclose the
identity and demand, in the presence of the witnesses, to
produce all money including private, Railway and bribe
money. Then the total money produced will be verified from
relevant records and memo for seizure of the money and
verification particulars will be prepared. The recovered
notes will be kept in an envelope sealed in the presence of the
witnesses, decoy and the accused as also his immediate
superior who should be called s a witness in case the
accused refuses to sign the recovery memo, and sealing of
the notes in the envelope.
c) XXX
d) XXX
e) XXX"
10. With regard to the aforestated instructions, learned counsel for the
petitioner had submitted that the Tribunal had failed to consider that the
instructions contained in paragraphs 704 and 705 of the Manual are
mandatory in nature and their violation by the Investigating Agency in the
process of laying traps against the petitioner have caused prejudice to the
rights of the petitioner to defend his cause in the departmental
proceedings which were initiated against him by the Authority on the
basis of the defective and unfounded investigation reports prepared by the
investigation officers.
11. Reliance is placed on the decision rendered by the Hon'ble Supreme
Court in Chief Commercial Manager, South Central Railway,
Secunderabad and Ors. vs. G. Ratnam and Ors., AIR 2007 SC 2976 in
which the Apex Court has opined that non-adherence of the instructions
laid down in Paras 704 and 705 of the Vigilance Manual would not
invalidate a departmental proceeding, stating:
"17. We shall now examine whether on the facts and the material
available on record, non-adherence of the instructions as laid down
in paragraphs 704 and 705 of the Manual would invalidate the
departmental proceedings initiated against the respondents and
rendering the consequential orders of penalty imposed upon the
respondents by the authorities, as held by the High Court in the
impugned order. It is not in dispute that the departmental traps
were conducted by the investigating officers when the respondents
were on official duty undertaking journey on trains going from one
destination to another destination. The Tribunal in its order noticed
that the decoy passengers deployed by the investigation officers
were RPF Constables in whose presence the respondents allegedly
collected excess amount for arranging sleeper class reservation
accommodation etc. to the passengers. The transaction between the
decoy passengers and the respondents was reported to have been
witnessed by the RPF Constables. In the facts and circumstances of
the matters, the Tribunal held that the investigations were
conducted by the investigating officers in violation of the mandatory
Instructions contained in paragraphs 704 and 705 of the Vigilance
Manual, 1996, on the basis of which inquiries were held by the
Enquiry Officer which finally resulted in the imposition of penalty
upon the respondents by the Railway Authority. The High Court in
its impugned judgment has come to the conclusion that the Inquiry
Reports in the absence of joining any independent witnesses in the
departmental traps, are found inadequate and where the
Instructions relating to such departmental trap cases are not fully
adhered to, the punishment imposed upon the basis of such
defective traps are not sustainable under law. The High Court has
observed that in the present cases the service of some RPF
Constables and Railway staff attached to the Vigilance Wing were
utilised as decoy passengers and they were also associated as
witnesses in the traps. The RPF Constables, in no terms, can be
said to be independent witnesses and non- association of
independent witnesses by the investigating officers in the
investigation of the departmental trap cases has caused prejudice to
the rights of the respondents in their defence before the Enquiry
Officers.
18. We are not inclined to agree that the non- adherence of the
mandatory Instructions and Guidelines contained in paragraphs
704 and 705 of the Vigilance Manual has vitiated the departmental
proceedings initiated against the respondents by the Railway
Authority. In our view, such finding and reasoning are wholly
unjustified and cannot be sustained."
It has been noticed in the above judgment that Paras 704 and 705
cover the procedures and guidelines to be followed by the investigating
officers, who are entrusted with the task of investigation of trap cases and
departmental trap cases against the railway officials. This Court
proceeded on the premise that the executive instructions/guidelines do not
confer any legally enforceable rights on any person and impose no legal
obligation on the subordinate authorities for whose guidance they are
issued.
12. After perusing the above judgment, we are of this considered view that
the Hon'ble Supreme Court has held that executive instructions do not
create any legal right in favour of any person. However, total violation of
the guidelines together with other factors including violations of
Principles of Natural Justice can be taken into consideration for the
purpose of arriving at a conclusion as to whether the department has not
conducted the enquiry by following proper procedure to prove the charges
against the delinquent official.
13. The next issue which comes up for consideration is that whether the
Inquiry Officer had examined the petitioner in accordance with the
principle enshrined under Rule 9(21) of the Railway Servants (Discipline
and Appeal) Rules, 1968?
14. The above mentioned Rule reads as under:
"The inquiring authority may, after the Railway servant closes his
case, and shall, if the Railway servant has not examined himself,
generally question him on the circumstances appearing against him
in the evidence for the purpose of enabling the Railway servant to
explain any circumstances appearing in the evidence against him."
15. The Disciplinary Authority is the sole judge of facts. However, where
appeal is presented the Appellate Authority has co-extensive power to
re-appreciate the evidence or the nature of punishment. In a disciplinary
inquiry the strict proof of legal evidence and findings on that evidence are
not relevant. Adequacy of evidence or reliability of evidence cannot be
permitted to be canvassed before the Court/Tribunal. In all disciplinary
proceedings a reasonable opportunity for defending the case is required to
be given to the charged officer and that extreme care should be taken to
ensure that he is not made to suffer a penalty without ensuring that there is
proper evaluation of evidence that has come in records.
16. Learned Counsel for the petitioner has brought the non-compliance of the
Rule 9(21) of the Railway Servants (Discipline & Appeal) Rules, 1968 to
a sharp focus. As explained by the Hon'ble Supreme Court in Moni
Shankar's case, Rule 9(21) is for enabling the charged officer to disclose
or explain the circumstance appearing against him in the evidence that
was adduced in the inquiry proceedings.
17. In disciplinary proceedings Rule 9(21) is analogous to Section 313 of
Code of Criminal Procedure. The object of Section 313 of Code of
Criminal Procedure is to enable the accused person to explain the
circumstances appearing in the evidence against him. The answer given
by the accused must be taken into consideration in such inquiry or trial
and put in evidence for or against him. However, in a departmental
inquiry/disciplinary proceedings, the scope of questioning the charged
officers by the Inquiry Officer is not as wide as contemplated in Rule 313
of the Code of Criminal Procedure. In disciplinary proceedings, the scope
of inquiry is to enable the accused the charged officer to get a reasonable
opportunity of being heard in respect of the charges levelled against him.
18. Furthermore, Rule 9(21) of Railway Servants (Discipline & Appeal)
Rules, 1968 stipulates that the Enquiry Officer (EO) shall generally
question the Charged Officer (CO) on the circumstances appearing
against him in the evidence for the purpose of enabling the CO to explain
any circumstances appearing in the evidence against him. It goes without
saying that examination of the CO under this provision shall be done on
the basis of the circumstances appearing against the CO, as appreciated by
the EO. This provision is to be resorted when the CO himself does not
choose to appear as a witness exposing himself for examination, cross
examination and re-examination, etc. The underlying idea is that EO
should arrive at the findings only after appreciating the CO's defence on
each and every allegation/circumstances appearing against him.
19. The learned Counsel for the petitioner referring to Moni Shankar v.
Union of India, (2008) 1 SCC (L & S) 819 submitted that the said Rule
9(21) is imperative in character. In Moni Shankar's case, the nature of the
defective inquiry is slightly different. In that case, the Hon'ble Supreme
Court found fault with the presenting officer that even the minimum
safeguard in regard to manner in which examination-in-chief was
conducted has not been preserved and that the questions posed by him
were leading questions. Anyhow, such insufficient mode of examination
or re-examination was not seen resorted by the Inquiry Officer or by the
presenting officer in this case.
20. After perusing the facts and circumstances of the present case, we are of
this considerable view that the petitioner in this case had adequate
opportunity for bringing contra-evidence by way of defence and also for
cross-examination of the witnesses. In a disciplinary proceeding, what
should be looked into is whether the charged officer was in any way
prejudiced by non-compliance or loose compliance of the procedural
requirement in the rules. It is well settled that the omission of Inquiry
Officer to put questions to the charged officer on the evidence appearing
against him cannot be the sole ground for vitiating the departmental
proceedings. However, in the present case, we have found that there is no
such omission by the Inquiry Officer and the petitioner was examined in
accordance to the above Rule. Thus, in our considerable view Rule 9(21)
of Railway Servants (Discipline & Appeal) Rules, 1968 was properly
followed.
21. We find no infirmity in the judgment of the Central Administrative
Tribunal; resultantly the writ petition is dismissed.
SANGITA DHINGRA SEHGAL, J
G.S.SISTANI, J.
SEPTEMBER 03, 2015
gr
