The Union Of India And Ors vs Surendra Mishra
2021 Latest Caselaw 6182 Patna

           N THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No 15644 of 2014

 1.   The Union Of India through General Manager, East Central Railway,
      Hajipur, District - Vaishali (Bihar)
 2.   The Divisional Railway Manager, East Central Railway, Samastipur (Bihar).
 3.   The Additional Divisional Railway Manager, East Central Railway,
      Samastipur (Bihar).
 4.   The Senior Divisional Operating Manager, East Central Railway, Samastipur
      (Bihar).
 5.   The Senior Divisional Personnel Officer, East Central Railway, Samastipur
      (Bihar).

                                                                  ... ... Petitioner/s
                                        Versus

      Surendra Mishra, Son of Ram Rajit Mishra Assistant Station Master, East
      Central Railway, Samastipur (Bihar), resident of Mohalla - Gandhi Nagar,
      Bhunidhara, Post Office - Dhurlak, District - Samastipur (Bihar).

                                                                ... ... Respondent/s

      Appearance :
      For the Petitioner/s   :     Mr Abbas Haider, Advocate
      For the Respondent/s   :     M/s M P Dixit, S K Dixit, S K Chaubey, Swastika,
                                       Advocates
      ======================================================

CORAM: HONOURABLE MR JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR JUSTICE MADHURESH PRASAD

ORAL JUDGMENT

(Per: HONOURABLE MR JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 16-12-2021

Heard learned counsel for the parties.

2 The Union of India through General Manager, East

Central Railway, Hajipur and other officials of Railway have filed

the present writ application under Article 226 of the Constitution Patna High Court CWJC No.15644 of 2014 dt.16-12-2021

of India assailing judgment and order dated 23.07.2013 passed in

Original Application (for brevity, OA) No 666 of 2009 by the

Central Administrative Tribunal (for brevity, the Tribunal), Patna

Bench whereby the application filed by the sole respondent before

the Tribunal under Section 19 of the Administrative Tribunal Act,

1985 has been allowed and the order of the Disciplinary Authority

dated 09.01.2009 imposing punishment of reduction of pay to

lower stage, i e, from Rs 13,610/- to Rs 13,090/- with postponing

further increment, was imposed, has been set aside. The order of

the Appellate Authority dated 19.11.2009 affirming the order of

punishment has also been set aside by the said impugned order of

the Tribunal.

3 The facts of the case, in brief, are that the respondent

was working as an Assistant Station Master at Tharbitiya under

East Central Railway. A departmental vigilance raid for trap was

conducted on 12.10.2006 leading to initiation of a departmental

proceeding against the petitioner with the issuance of charge sheet

on 17.01.2007 on the allegation that the petitioner charged a sum

of Rs 500/- for two train-tickets in place of Rs 478/- (Rs 239/-

each) and, thus, he charged a sum of Rs 22/- more than the actual

fare from one Ashok Kumar Shah Gond, who had acted as decoy.

It was also alleged against him that he had not declared his Patna High Court CWJC No.15644 of 2014 dt.16-12-2021

personal cash and further, a shortage of Rs 45/- in 'Government

cash' was reported. It is noteworthy that Tharbitiya, being a small

railway station, the Respondent, in addition to discharge of his

duties as 'Assistant Station Master' was performing duties of

commercial department including selling of tickets.

4 Based on the said vigilance raid, the charges against

the Respondent were held to be proved in the departmental enquiry

by the Enquiring Authority in its report accepting which the

Disciplinary Authority passed the punishment order dated

09.01.2009, as noted above. The respondent's appeal also came to

be dismissed by the Appellate Authority by order dated

19.11.2009. The Respondent approached the Tribunal, Patna

Bench by filing aforesaid OA No 666 of 2009 assailing the order

of Disciplinary Authority and the Appellate Authority. The

Tribunal has recorded, in its impugned decision, that the trap was

not held in accordance with the Rules prescribed therefor and,

therefore, the trap itself was illegal based on which no penalty

could be imposed. The Tribunal relied upon Supreme Court's

decision in the case of Moni Shankar -Versus- Union of India &

Others, reported in (2008) 3 Supreme Court Cases 484.

5 Mr Abbas Haidar, learned counsel appearing on behalf

of the Union of India has submitted that the finding of the Patna High Court CWJC No.15644 of 2014 dt.16-12-2021

Tribunal, based on non-compliance of the provision under

Vigilance Manual dealing with departmental trap cases, is

unsustainable for the reason that during the departmental

proceeding, the witnesses were produced who had supported the

allegation of demand and acceptance of more money against actual

fare of tickets, by the petitioner and, therefore, the said finding

could not have been held to be bad on the ground of any breach of

the guideline laying down procedure for vigilance trap. Learned

counsel for the petitioner has further submitted that the Guidelines,

relied on by the Tribunal, was not invogue on the date when the

raid was conducted and, therefore, the impugned order, being

unsustainable, requires interference by this Court in the present

proceeding. He has relied on a Supreme Court's decision rendered

in the case of Chief Commercial Manager, South Central Railway,

Secunderabad & Others -Versus- G Ratnam & Others, (2007) 8

Supreme Court Cases 212.

6 Mr M P Dixit, learned counsel appearing on behalf of

the sole respondent has, on the other hand, has drawn our attention

to a coordinate Bench decision of this Court dated 23.12.2016

rendered in the case of Union of India & Others -Versus- Dilip

Kumar Sinha (CWJC No 5922 of 2014) to contend that in identical

situation, relying upon Supreme Court's decision in the case of Patna High Court CWJC No.15644 of 2014 dt.16-12-2021

Moni Shankar (supra), this Court refused to interfere with the

order passed by the Tribunal. He has submitted that the order of

the Tribunal, which was under challenge in the case of Union of

India -Versus- Dilip Kumar Sinha (supra) has since been

implemented by the respondents and, therefore, they cannot deny

the same relief in case of the petitioner.

7 From perusal of the Division Bench decision in the

case of Union of India & Others -Versus- Dilip Kumar Sinha

(supra), we find force in submissions made on behalf of the sole

respondent. Paragraphs 8, 9 and 10 of the said decision are

relevant and, therefore, are being reproduced herein below:

"8 Although there appears to be some force in the submission of learned counsel for the petitioner that decoy procedure is not exactly the same as the trap procedure, but considering the fact that in Moni Shankar case (supra), the Supreme Court has applied Paras 704 and 705 of the Manual to a case which was on an identical footing, this Court cannot take a different view in the matter. Thus, in view of the law laid down by the Supreme Court in Moni Shankar case (supra), this Court does not see any reason to interfere with the order of the Tribunal on the said point.

9 Once it is held that the impugned orders are bad on account of non-compliance of Paras 704 and 705 of the Manual, there would be no occasion to consider the other submission regarding the disciplinary authority or the revisional authority acting at the behest of another authority, but it goes without saying that any disciplinary authority while imposing punishment in the departmental proceedings, is Patna High Court CWJC No.15644 of 2014 dt.16-12-2021

required to apply, being a quasi judicial authority, its independent mind in the matter and it cannot act at the behest of any other authority, whether superior or coordinate to it. Thus, the action of the disciplinary authority in passing the order dated 20.09.2005 compulsorily retiring the applicant-respondent at the behest of the Vigilance Department appears to be contrary to the established legal proposition which has been recognized even by the Railway Board in its Circular.

10 However, as we have said that since the entire proceedings have been held to be non est and bad on account of not following the procedure of Paras 704 and 705, the said issue does not really survive for consideration."

8 Further, the Supreme Court's decision in the case of G

Ratnam (supra) relied on by Mr Abbas Haider has been considered

by the Supreme Court in the case of Moni Shankar (supra).

Relying on the decision in the case of Moni Shankar (supra), the

Division Bench has passed the order in identical situation in the

case of Union of India -Versus- Dilip Kumar Sinha (supra), as

quoted above. We, therefore, see no reason why we should take a

different view than the one taken by a co-ordinate Bench of this

Court in the case of Dilip Kumar Sinha (supra).

9 Situated thus, considering the aforesaid facts and

circumstances and rival submission on behalf of parties, we do not

find any reason to interfere with the judgment and order of the

Tribunal.

Patna High Court CWJC No.15644 of 2014 dt.16-12-2021

10 This writ application is, accordingly, dismissed.

(Chakradhari Sharan Singh, J)

(Madhuresh Prasad, J) M.E.H./-

AFR/NAFR                    NAFR
CAV DATE                     NA
Uploading Date          21.12.2021
Transmission Date            NA