Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) 6777/2014
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Reserved on : 18 February, 2016
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Pronounced on : 29 February, 2016
UNION OF INDIA & ORS. ..... Petitioner
Through Mr. VSR Krishna & Ms. Rashmi
Malhotra, Advocates.
versus
ASHES KIRAN PRASAD ..... Respondent
Through Ms. Ayushi Kiran, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.
1. The Union of India through the Secretary, Railway Board and three
others (the petitioner, for short), impugn the order and final judgment
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dated 16 May, 2014 of the Central Administrative Tribunal, Principal
Bench at Delhi (Tribunal for short) allowing the Original Application
No.4251/2013 filed by Ashes Prasad (the respondent), quashing the
penalty of reduction in pay scale in the same grade by two stages for a
period of three months without cumulative effect. Order of penalty
dated 22nd June, 2012, passed by the Disciplinary Authority and order
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of 4 October, 2013 of the Appellate Authority have been set aside. It
WP(C)No.6777/2014 Page 1 of 43
has been directed that the respondent would be entitled to all
consequential benefits.
2. The respondent an officer in the Indian Railway Traffic Service
Group–A Central Service belongs to the East Central Railway. On
being promoted to the Senior Administrative Grade, the Respondent
was transferred to the North-East Frontier Railway and posted at
Gauhati as the Chief Claims Officer (CCO).
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3. By memorandum No.E(O)I-2008/PU-2/NW-14 dated 7 August,
2008, disciplinary proceedings were initiated against the respondent
under Rule 9 of the Railway Servants (Discipline and Appeal) Rules,
1968, on three articles of charge, namely: (i) He had misused his
official position to dispatch three and four poly bundles of wooden
parts ex Lumding Junction to New Jalpaiguri on train No.4055 DN on
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12 July, 2005 and 14 July, 2005 respectively, and had then ensured
dispatch of the said bundles from New Jalpaiguri to Patna by train
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No.3245 DN on 6 August, 2005, without valid booking and
documents; (ii) He had engaged and mis-utilized railway staff for
loading, unloading and transportation of the aforesaid bundles; and
(iii) He had deprived Railways of the freight earnings as the wood
parcels were transported by rail without valid documents and billing.
4. The aforesaid charge-sheet was served after vigilance department of
the North-West Railways (NF Railways, for short) had carried out
detailed investigation, recorded statements and collected documents to
establish that the wood, a banned produce, was illegally transported in
the Railway wagons at the behest and on instructions of the
WP(C)No.6777/2014 Page 2 of 43
respondent without payment of freight from Lumding, Assam to New
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Jalpaiguri, West Bengal on 12 July, 2005 and 14 July, 2005 and
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then to Patna on 6 August, 2005.
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5. The enquiry officer in his report dated 18 August, 2011, exonerated
the respondent holding that none of the charges were proved. His
findings in brief and as recorded in the impugned order by the
tribunal, for the sake of convenience and completeness are reproduced
below:
“Charge –I.
Conclusions: Thus the charge that CO had instructed many
junior officials telephonically was seen to be not exactly a
correct representation of the reality on ground.
Only one person Shri Tapan Barua, CCI/HQ/ Maligaon
had claimed that CO had given him instructions from time to
time. This claim has however not supported by any evidence
in a direct manner or could be corroborated otherwise.
xxx xxx xxx
CONCLUSIONS: it has been established that there is
no direct evidence of any involvement of CO for the
movement of the bundles from LMG to NJP.
Shri Tapan Barua, CCI/HQ/ MLG, the main witness
from PO side, had however, accused CO of forcing Shri
Barua dispatch the wood bundles from NJP to Patna.
The testimony of Shri Barua to Vigilance and at the
inquiry has quite a few inconsistencies and is such that the
WP(C)No.6777/2014 Page 3 of 43
entire statement cannot be accepted as totally trustworthy and
accurate. CO has claimed that the evidences presented at the
inquiry establish beyond any doubt that the bundles of wood
that was loaded at Lumding were not the one seized at Patna
and hence he could not be accused of smuggling furniture
quality wood to Patna.
IO feels that the statements of Sh.Barua putting all
blame on CO cannot be relied upon without at least one other
confirmatory evidence from a source independent of Shri
Barua.
xxx xxx xxx
CONCLUSIONS: This charge of CO misusing his official
position to transport 7 bundles of wood from Lumding to
New Jalpaiguri and then to Patna has thus not been
established beyond reasonable doubt.
CO might certainly enjoy a high status in his own
organization but no tangible evidence was available to
convince the inquiry that his writ ran all over the NFR as well
as ECR. The score of front line staff who were in no way
under his control, had participated in illegal actions knowing
full well the possible consequences. All this was supposedly
on the basis of their being told by someone that the wood
bundles they were smuggling out without booking, belonged
to CCO/MLG.
Even Shri Barua who was the only staff belonging to
claims department (which was headed by CO), had no
convincing answer during his testimony as to why he must
follow illegal orders given by the CO over phone.
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This behaviour of Shri Barua indicated a strong
possibility that he had indulged in this illegal movement for
reasons other than alleged telephonic messages from CO.
May be, linkages possibly established over a long period, was
at the root of so many staff participating in his fraudulent
movement at the say so by Shri Barua.
Charge -II
CONCLUSIONS: This charge of CO misusing his official
position to transport 7 bundles of wood from Lumding to
New Jalpaiguri and then to Patna has not itself been
established and hence to raise the charge of CO engaging and
misusing the score of Railway staff for such act of his could
not be acceptable.
Therefore, this part of the charge was not established
beyond all reasonable doubt.
xxx xxx xxx
CONCLUSIONS: This charge that CO had used his official
standing to avoid booking his 7 bundles of wood as parcel
because of his apprehensions that the violation of the existing
ban on movement of forest product could have been detected
later because of the paper trail is not a logical construction.
The simple act of mis-declaration of the bundles as furniture
would have been easier.
Moreover, the ownership of the bundles was not traced
to CO. Also the rationale behind prosecution making a claim
about CO‟s ability to influence a large number of frontline
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staff not under his control to carry out a series of illegal acts
on his behalf had no basis or logic and could not be simply
accepted as normal for a person holding CO‟s position in the
system.
xxx xxx xxx
CONCLUSION: This article of charge did not establish in
absence of any basis for the allegation that CO had the
ownership of the wood bundles and had expected to gain
personally.
CHARGE -3
CONCLUSION: This part of the article of charge did not
establish in absence of any basis for the allegation that CO
had the ownership of the wood bundles and had arranged for
its transit from Lumding to Patna depriving Railways of
freight charges due to it.
xxx xxx xxx
CONCLUSION:
CO was accused of organizing smuggling of 7 bundles
of banned wood from NJP to PNBE on basis of confessional
statement of one Shri Barua who had actually been at the
forefront of this illegal act.
In the investigation, ownership of the smuggled articles
could not be traced to CO. Adequate evidence direct or
indirect to link CO with the staff who had actually loaded or
unloaded the bundles could be established. Only the
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unsupported testimony of Shri Barua was relied upon by the
prosecution to prove its case while CO had demonstrated lack
of any official jurisdiction on his part on the staff involved.
CCO/ MLG i.e. CO was thus not shown to be liable for
being blamed for any act of omission or commission that
made the unauthorized carriage of 7 bundles from NJP to
PNBE possible.
No association of CO could be established in this
illegal act that was detected vigilance investigation. Lapses
on the part of the CO as were pinpointed could not be
sustained through the inquiry.”
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6. The disciplinary authority vide Memorandum dated 18 April , 2012
circulated a disagreement note, which again for the sake of
convenience and completeness is reproduced below:
“Article on Charge No.1
Shri Tapan Barua, the then Chief Claims Inspector,
MLG/NFR has clearly submitted that while he was on NJP,
he received a telephonic instruction from ACM/ CP on
12.07.2005 and again on 14.07.2005 to unload bundles of
wood dispatched from LMG. This statement of Shri Barua is
supported by the statement of PW-10 Shri S.N. Dey that the
then ACM/ Claims himself asked him to load the packages
(in reply to Q-2). Both these statements, taken as coalesced,
divulge that Shri Prasad instructed on phone to Shri Barua.
Shri Tapan Barua has also submitted that he spoke to
CCO/MLG and informed about the consignments (in reply to
Q-3). Shri Tapan Barua has further submitted (in reply to Q-
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4) that on telephonic instruction of CO given on 06.08.2005,
these consignments were dispatched by 3245 Dn. Ex. NJP to
PNBE. Hence, the observation of IO that the charge that CO
had instructed many junior officials telephonically was seen
to be not exactly a correct representation does not hold
ground.
Further, Shri Tapan Barua, CCI/HQ/MLG has clearly
accused CO of forcing him dispatch the wood bundles from
NJP to PNBE. In reply to Q-13, he has stated that he was
working under him and did this illegal act due to his pressure.
Hence, the contention of IO that there is no direct evidence of
any involvement of CO for the movement of the bundles
from LMG to NJP and Shri Barua putting all blame on CO
cannot be relied upon without at least any other confirmatory
evidence from a source independent of Shri Barua is not
agreeable.
Regarding misuse of the official position by the CO,
IO has found is not established beyond reasonable doubt. It is
a fact that Shri Prasad has worked in ECR as Dy.COM from
December, 1999 to October, 2002 and as Dy. CCM from
October, 2002 to October, 2003 and then after he was posted
for NFR. Hence, it was possible for him to get his materials
carried from one place to another place without coming into
picture directly.
Hence, the charge at Article-I tentatively deserves to
be taken as proved.
Article on Charge No.2
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Though, it is an admitted fact that Shri Prasad did not
personally order any staff who were involved in flouting the
rules by way of carrying the said wooden bundles, yet the
documentary and other evidence clearly prove that an
unbooked consignment of 7 poly bundles of wooden parts
was loaded on 12.07.2005 and 14.07.2005; loaded for PNBE
on 06.08.2005 and unloaded at PNBE by 3245 for which
records were maintained in the name of Shri A.K. Prasad and
an Inspector of claims department was instructed to stay at
NJP on 11.07.2005 to 14.07.2005 to supervise unloading and
loading. All these evidence prove that CO misused his
official position to transport 7 bundles of wood from LMG to
NJP and then to PNBE.
IO has observed that simple act of mis-declaration of
the bundles as furniture would have been easier to avoid the
charge of violation of ban on forest products. As the existing
ban on booking was known to parcel staff it would have been
difficult to get the packages booked after mi-declaration.
Hence, the contention of IO that simple act of mis-declaration
of the bundles as furniture would have been easier, does not
seem to be rational. It is clear that commercial formalities
were not followed in order to prevent generation of any
records which could have ensured detection of violation of
the existing ban on booking of wood at LMG and NJP.
As records related to unloading and subsequent loading
were maintained in the name of Shri A.K. Prasad and an
Inspector of claims department was instructed to stay at NJP
on 11.7.2005 to 14.07.2005 to supervise unloading and
loading, it is clear that this was done for the personal gain of
Shri Prasad.
WP(C)No.6777/2014 Page 9 of 43
Hence, the charge at Article -2 tentatively deserves to
be taken as proved.
Article on Charge No.3
As mentioned hereinabove, all documentary evidence
and statement of PWs clearly indicate that the said wood
bundles in question were belonging to Shri Prasad and he has
arranged its unloading and transshipment from LMG to NJP
and further from NJP to PNBE though without observing
commercial formalities and thereby, he deprived of freight
charge due on it.
Hence, the charge at Article -3 tentatively deserves to
be taken as proved.”
7. The respondent protested and made a written representation, but the
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disciplinary authority did not agree and by the order dated 22 June,
2012, imposed the penalty of reduction in pay in the same grade by
two stages for a period of three months without cumulative effect.
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Appeal preferred by the Respondent was rejected vide order dated 4
October, 2013. Aggrieved, the Respondent filed the
OA.No.4251/2013 before the Tribunal which has passed the impugned
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order dated 16 May, 2014, quashing the order of the disciplinary
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authority dated 22 June, 2012 and the appellate authority dated 4
October, 2013.
8. A reading of the impugned order shows that two separate grounds
were raised. The first ground was that there was inordinate delay in
WP(C)No.6777/2014 Page 10 of 43
finalizing the disciplinary proceedings. Secondly. factual findings
recorded the disciplinary authority and the appellant authority were
perverse and periphrastic; that vested interests were working against
the respondent and that the departmental authorities were biased. It
was a case of no evidence.
9. The tribunal agreed and has held that the disagreement note was
arbitrary, fanciful and therefore the penalty imposed was illegal. The
advice rendered by the Union Public Service Commission („UPSC‟
for short) too was capricious and illogical for it wrongly and
fallaciously opines that the charges stand proved. The appellant
authority erred in blindly following the UPSC‟s advice without
application of mind. On delay, it has been held that after the articles of
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charge were served on 7 August, 2008, it took five years for
culmination of the proceedings as the respondent's appeal was
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dismissed by the appellate authority vide order dated 4 October,
2013. Central Vigilance Commission has proscribed that enquiry
proceedings to be completed in all respects within a period of one year
and three months. The delay had caused prejudice and has vitiated the
proceedings.
10. As the findings of the Tribunal are primarily factual, we would like to
reproduce in entirety the reasoning given by the Tribunal, which reads
as under:
“16. We have heard the learned counsel for the Applicant
Ms.Ayushi Kiran and the learned counsel for the
Respondents Shri V.S.R. Krishna and Shri Rajinder Khatter.
The charges against the Applicant in brief are that (1) he gave
WP(C)No.6777/2014 Page 11 of 43
instructions to junior officials and got 3 + 4 poly bundles of
wooden parts loaded ex LMG to NJP without booking &
documents, (ii) he got the same 7 poly bundles moved to
PNBE ex NJP in the same way, (iii) he misused official
position and mis utilize Railway staff to load 3+ 4 poly
bundles of wooden parts at LMG ignoring ban in force, (iv)
For unloading at NJP to PSNB he did not observe
commercial formalities for transit from LMG, (v) For
reloading ex NJP to PNBE he did not follow commercial
formalities to escape the ban on booking of timber from
LMG and NJP, (vi) he deprived Railways of due freight for
moving 7 poly bundles from LMG to NJP & then to PNBE
and (vii) he had shown lack of absolute integrity, lack of
devotion and acted in a manner unbecoming of a railway
servant. Further, according to the charge, the Applicant
instructed Shri T. Barua, CCI/HQ/MLG, from time to time
for the transportation of those bundles. The crux of the
charge is that the Applicant got 7 bundles of wooden parts
loaded ex LMG to NJP through his junior officials without
booking and documents. The Enquiry Officer held a very
detailed enquiry in the matter and came to conclusion that the
none of the aforesaid charges leveled against the Applicant
have been proved. The Enquiry Officer has held very
specifically that the charge that CO had instructed many
junior officials telephonically was seen to be not exactly a
correct representation of the reality on ground. He has also
held that only one person Shri Tapan Barua,
CCI/HQ/Maligaon had claimed that CO had given him
instructions from time to time. This claim has however not
supported by any evidence in a direct manner or could be
corroborated otherwise. Further according to the Enquiry
Officer, the statements of Shri Barua were not trustworthy to
be relied upon as he had no convincing answer during his
WP(C)No.6777/2014 Page 12 of 43
testimony as to why he must follow illegal orders given by
the CO over phone. It was also been held that the behaviour
of Shri Barua indicated a strong possibility that he had
indulged in this illegal movement for reasons other than
alleged telephonic messages from CO. From the aforesaid
conclusions arrived at by the Enquiry Officer, it is manifestly
clear that the allegations made against the Applicant were
false and Shri Tapan Barua was the person behind them and
they have been made to purposely implicate the Applicant. In
fact the integrity of Shri Barua itself is in doubt as he himself
admitted that he followed the alleged illegal orders given to
him by the Applicant. That was the reason why the Enquiry
Officer submitted in his report that the behaviour of Shri
Barua indicated strong possibility that he had been indulging
himself in the illegal movement and he had the linkage
established over a long period. But the Disciplinary Authority
disagreed with the report of the Enquiry Officer relying on
the very same deposition of Shri Tapan Barua that he
received a telephonic instruction from the Applicant to
unload bundles of wood dispatched from LMG. Again the
Disciplinary Authority in his disagreement note said Shri
Tapan Barua, CCI/HQ/MLG has clearly accused CO of
forcing him dispatch the wood bundles from NJP to PNBE.
Thereafter, the Disciplinary Authority assumed that it was
possible for him (Applicant) to get his materials carried from
one place to another place without coming into picture
directly. In our considered view, when the Enquiry Officer
who understands the ground reality more than anyone else,
has held that the statements of Shri Tapan Barua was not
trustworthy for the reasons that emerged from the enquiry
itself and the charges have not been proved, the Disciplinary
Authority cannot rely on the very same statement of Shri
Barua and hold that the charges have been proved. The
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Enquiry Officer who conducted the enquiry after considering
all aspect of the case, is the best judge to say whether charge
has been proved or not. Unless his findings are biased, mala
fide, arbitrary and contrary to the prescribed procedure, the
reasons given by the Enquiry Officer cannot be rejected that
too on the ground there was the possibility for the Applicant
to commit the misconduct alleged in the Articles of Charge.
The Disciplinary Authority failed to give any reasons as to
why the findings of the Enquiry Officer that the statements of
Shri Tapan Barua was not trustworthy was wrong. Such a
disagreement note can be treated as only arbitrary and
whimsical. In view of the above position, the disagreement
note of the Disciplinary Authority and its order imposing the
penalty upon the Applicant are illegal and liable to be
rejected. The Union Public Service Commission has also in
its advice to the Appellate Authority held in an arbitrary
manner that the charges against the Applicant have been
proved. The Appellate Authority has simply followed the
Commissions advice without any application of mind and
rejected the appeal of the Applicant. We also observe that
there was inordinate delay in finalizing the disciplinary
proceedings initiated against the Applicant. The Articles of
Charge issued to the Applicant on 07.08.2008 took over five
years for its culmination in the Appellate Authority‟s order
dated 04.10.2013 whereas the CVC had prescribed a period
of maximum of only one year and 3 months for an enquiry
proceedings to be completed in all respects.
17. In view of the above facts, circumstances and legal
position, we allow this OA. Consequently, the impugned
order of the Disciplinary Authority dated 22.06.2012 and the
Appellate Authority‟s order dated 04.10.2013 are quashed
and set aside with all consequential benefits. The
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Respondents shall also pass appropriate orders in
implementation of the aforesaid directions within a period of
two months from the date of receipt of a copy of this order."
11. Reading of the aforesaid paragraph manifests that the tribunal had
ventured into the factual matrix as an appellate authority and has
primarily relied on the enquiry officer‟s report to overturn and set
aside factual findings of the disciplinary authority and appellate
authority and has arraigned the opinion rendered by the UPSC. The
decision holds that statement of a single witness Tapan Barua
CCI/HQ/ Malagaon does not resonate adequate support from any
other direct or corroborative evidence and would not bring home the
charges. Tapan Barua's statement was untrustworthy and
unconvincing. There was no cause or reason for Tapan Barua to
follow and obey alleged illegal orders statedly given by the respondent
on telephone. Behavior of Tapan Barua was such that it indicts him
and he had indulged in illegal transportation and wrongful acts for
reasons other than the directions given by the respondent. The view of
the enquiry officer, who understood the ground reality was more
sustainable and a better view. The enquiry officer was the best judge,
to say whether the charge was proved or not, and unless the findings
of the enquiry officer were biased, mala-fide and arbitrary, his report
cannot be rejected on the ground that there was a possibility that the
respondent had committed the charged mis-conduct.
12. We perceive and believe that the tribunal has mis-directed and faulted
on several accounts. The tribunal is not an appellant forum which can
WP(C)No.6777/2014 Page 15 of 43
reappraise and evaluate the evidence and facts. The power of judicial
review is confined to examination whether the procedure established
by law was followed and principles of natural justice were complied
with. The tribunal could examine whether the orders under challenge
were predicated on irrelevant and extraneous evidence or there was
exclusion of admissible material evidence, or admission of
inadmissible evidence, which had affected and vitiated the decision
making exercise. Power of judicial review is also exercised when the
decision is wholly arbitrary and capricious and is based on no
evidence. The test is whether a reasonable man, well conversant in the
said field, could have arrived at the decision under challenge.
Pertinently, enquiry report is neither final nor binding on the
disciplinary authority. Disciplinary authority may disagree with the
findings recorded in the enquiry report. Law does not give primacy to
the enquiry report, but expressly authorizes issue of a disagreement
note recording reasons and tentative findings, which should be
confronted to the charged officer for his reply. Observations in the
impugned order that the enquiry officer was the best judge, for he
knew the ground realities and that his findings were conclusive unless
the findings were biased, malafide or arbitrary, are inaccurate and
unsound. A single witness when credible and reliable can prove even a
criminal charge. Section 134 of the Evidence Act states that a single
witness may establish and prove the prosecution case. Statement of
Tapan Barua is duly corroborated by ocular and documentary
evidence.
WP(C)No.6777/2014 Page 16 of 43
13. On the question of scope and ambit of judicial review, we would refer
to the recent judgment of the Union of India and Anr. Vs. P.
Gunasekaran (2015) 2 SCC 610, which extensively dealt with the
case law on the subject and holds as under:
“12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry officer.
The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India, shall not
venture into reappreciation of the evidence. The High Court
can only see whether:
( a ) the enquiry is held by a competent authority;
( b ) the enquiry is held according to the procedure
prescribed in that behalf;
( c ) there is violation of the principles of natural justice
in conducting the proceedings;
( d ) the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
( e ) the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
( f ) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
( g ) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
( h ) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
( i ) the finding of fact is based on no evidence.
WP(C)No.6777/2014 Page 17 of 43
13. Under Articles 226/227 of the Constitution of India, the
High Court shall not:
( i ) reappreciate the evidence;
( ii ) interfere with the conclusions in the enquiry, in
case the same has been conducted in accordance with
law;
( iii ) go into the adequacy of the evidence;
( iv ) go into the reliability of the evidence;
( v ) interfere, if there be some legal evidence on which
findings can be based.
( vi ) correct the error of fact however grave it may
appear to be;
( vii ) go into the proportionality of punishment unless it
shocks its conscience.”
14. The aforesaid decision refers to State of A.P. Vs. Sree Rama Rao ,
AIR 1963 SC 1723, which elucidating the law of judicial review
holds that the High Court (the tribunal in the present case) is not a
court of appeal which examines merits of the findings recorded in the
departmental enquiry. Power of judicial review is confined to;
whether the enquiry was held by a competent authority; according to
the procedure prescribed and whether rules of natural justice were
violated. The court / tribunal can interfere when the authorities had
disabled themselves from reaching a fair decision by consideration of
extraneous evidence or by allowing them to be influenced by
irrelevant considerations. They can also interfere when the
conclusion on the face of it was arbitrary and capricious as no
reasonable person could have arrived at such conclusion. However,
when there was legal evidence on which the finding could be based,
the adequacy or reliability of that evidence cannot be examined and
WP(C)No.6777/2014 Page 18 of 43
canvassed before the High Court or tribunal. When there was some
evidence that had been accepted by the authorities and the same
reasonably supports the conclusion, then it is not the duty of the
High Court or the tribunal to re-examine the issue on factual merits
by re-appreciating and evaluating the evidence.
15. State of A.P Vs. Chitra Venkata Rao (1975) 2 SCC 557, strives to
draw a distinction between criminal trial where the offence is not
established unless proved by evidence beyond reasonable doubt and
departmental proceedings were principle of preponderance of
probabilities applies. Standard of proof beyond reasonable doubt is
not applicable to departmental proceedings against a public servant.
Courts/tribunal in exercise of power of judicial review can correct an
error which is apparent on the face of the record, but not a finding of
fact, on the ground that they would have reached to a different
conclusion. Adequacy or sufficiency of the evidence led on the point
and inferences of fact to be drawn from the said finding, are within
the exclusive jurisdiction and domain of the authorities.
16. State of Haryana Vs. Rattan Singh , (1977) 2 SCC 491, examines the
question of hearsay evidence in domestic enquiry and observes;-
“ 4 . … in a domestic enquiry the strict and sophisticated rules
of evidence under the Indian Evidence Act may not apply.
All materials which are logically probative for a prudent
mind are permissible. There is no allergy to hearsay evidence
provided it has reasonable nexus and credibility. It is true that
departmental authorities and administrative tribunals must be
careful in evaluating such material and should not glibly
swallow what is strictly speaking not relevant under the
Indian Evidence Act. For this proposition it is not necessary
to cite decisions nor textbooks, although we have been taken
WP(C)No.6777/2014 Page 19 of 43
through case law and other authorities by counsel on both
sides. The essence of a judicial approach is objectivity,
exclusion of extraneous materials or considerations and
observance of rules of natural justice. Of course, fair play is
the basis and if perversity or arbitrariness, bias or surrender
of independence of judgment vitiate the conclusions reached,
such finding, even though of a domestic tribunal, cannot be
held good.”
17. P. Gunasekaran (Supra) quotes and relies on Railway Board Vs.
Niranjan, (1969) 1 SCC 502, on the question that the courts /
tribunal should not exceed their jurisdiction in interfering with the
finding of the disciplinary authority. On the aspect whether the
disciplinary authority could disagree with the finding recorded by the
enquiry committee, it was held in Niranjan (Supra) as under:-
" ....This Court said that the Enquiry Committee felt that the
evidence of two persons that the respondent led a group of
strikers and compelled them to close down their compressor
could not be accepted at its face value. The General Manager
did not agree with the Enquiry Committee on that point. The
General Manager accepted the evidence. This Court said that
it was open to the General Manager to do so and he was not
bound by the conclusion reached by the committee. This
Court held that the conclusion reached by the disciplinary
authority should prevail and the High Court should not have
interfered with the conclusion."
18. In Managing Director ECIL Vs. B. Karunakar (1993) 4 SCC 727,
the Supreme Court dealt with aspects relating to effect of the 42nd
amendment of the Constitution, furnishing of enquiry officer‟s report
to the delinquent employee etc. On the question of the enquiry
WP(C)No.6777/2014 Page 20 of 43
officer's report and the power of the disciplinary authority it was
held:-
“ 27. It will thus be seen that where the enquiry officer is other
than the disciplinary authority, the disciplinary proceedings
break into two stages. The first stage ends when the disciplinary
authority arrives at its conclusions on the basis of the evidence,
enquiry officer's report and the delinquent employee's reply to it.
The second stage begins when the disciplinary authority decides
to impose penalty on the basis of its conclusions. If the
disciplinary authority decides to drop the disciplinary
proceedings, the second stage is not even reached. The
employee's right to receive the report is thus, a part of the
reasonable opportunity of defending himself in the first stage of
the inquiry. If this right is denied to him, he is in effect denied
the right to defend himself and to prove his innocence in the
disciplinary proceedings.
xxx
29. Hence it has to be held that when the enquiry officer is not
the disciplinary authority, the delinquent employee has a right to
receive a copy of the enquiry officer's report before the
disciplinary authority arrives at its conclusions with regard to the
guilt or innocence of the employee with regard to the charges
levelled against him. That right is a part of the employee's right
to defend himself against the charges levelled against him. A
denial of the enquiry officer's report before the disciplinary
authority takes its decision on the charges, is a denial of
reasonable opportunity to the employee to prove his innocence
and is a breach of the principles of natural justice.”
19. In Punjab National Bank v. Kunj Behari Misra , (1998) 7 SCC 84,
after referring to several earlier decisions, the Supreme Court had
following observations to make:
WP(C)No.6777/2014 Page 21 of 43
"17. ...It will not stand to reason that when the finding in
favour of the delinquent officers is proposed to be overturned
by the disciplinary authority then no opportunity should be
granted. The first stage of the enquiry is not completed till the
disciplinary authority has recorded its findings. The
principles of natural justice would demand that the authority
which proposes to decide against the delinquent officer must
give him a hearing. When the enquiring officer holds the
charges to be proved, then that report has to be given to the
delinquent officer who can make a representation before the
disciplinary authority takes further action which may be
prejudicial to the delinquent officer. When, like in the present
case, the enquiry report is in favour of the delinquent officer
but the disciplinary authority proposes to differ with such
conclusions, then that authority which is deciding against the
delinquent officer must give him an opportunity of being
heard for otherwise he would be condemned unheard. In
departmental proceedings, what is of ultimate importance is
the finding of the disciplinary authority."
18. ....When the enquiry is conducted by the enquiry
officer, his report is not final or conclusive and the
disciplinary proceedings do not stand concluded. The
disciplinary proceedings stand concluded with the decision of
the disciplinary authority. It is the disciplinary authority
which can impose the penalty and not the enquiry officer.
Where the disciplinary authority itself holds an enquiry, an
opportunity of hearing has to be granted by him. When the
disciplinary authority differs with the view of the enquiry
officer and proposes to come to a different conclusion, there
is no reason as to why an opportunity of hearing should not
be granted. It will be most unfair and iniquitous that where
the charged officers succeed before the enquiry officer, they
are deprived of representing to the disciplinary authority
before that authority differs with the enquiry officer's report
and, while recording a finding of guilt, imposes punishment
on the officer. In our opinion, in any such situation, the
charged officer must have an opportunity to represent before
WP(C)No.6777/2014 Page 22 of 43
the disciplinary authority before final findings on the charges
are recorded and punishment imposed.
19 . The result of the aforesaid discussion would be that
the principles of natural justice have to be read into
Regulation 7(2). As a result thereof, whenever the
disciplinary authority disagrees with the enquiry authority on
any article of charge, then before it records its own findings
on such charge, it must record its tentative reasons for such
disagreement and give to the delinquent officer an
opportunity to represent before it records its findings. The
report of the enquiry officer containing its findings will have
to be conveyed and the delinquent officer will have an
opportunity to persuade the disciplinary authority to accept
the favourable conclusion of the enquiry officer. The
principles of natural justice, as we have already observed,
require the authority which has to take a final decision and
can impose a penalty, to give an opportunity to the officer
charged of misconduct to file a representation before the
disciplinary authority records its findings on the charges
framed against the officer."
The aforesaid findings record that the first stage of enquiry is not
complete till the disciplinary authority has recorded its findings.
Further, the disciplinary authority can differ with the conclusions in
the enquiry report. No fetters or restrictions can be inferred and are
discernable, for ultimately importance is to the findings of disciplinary
authority. Enquiry Officer's report is only a step in the disciplinary
proceedings and finality and conclusiveness is not attached to his
report. However, the delinquent employee must be given right to
represent before the disciplinary authority.
WP(C)No.6777/2014 Page 23 of 43
20. In Yoginath D. Bagde Vs. State of Maharashtra (1999) 7 SCC 739,
the Supreme Court reiterated that where disciplinary authority does
not agree with finding of the enquiry report, the only obligation in
such a situation is to record the reasons for such disagreement and call
upon the charged officer to make submissions. It was observed:-
31. In view of the above, a delinquent employee has the right of
hearing not only during the enquiry proceedings conducted by
the enquiry officer into the charges levelled against him but also
at the stage at which those findings are considered by the
disciplinary authority and the latter, namely, the disciplinary
authority forms a tentative opinion that it does not agree with
the findings recorded by the enquiry officer. If the findings
recorded by the enquiry officer are in favour of the delinquent
and it has been held that the charges are not proved, it is all the
more necessary to give an opportunity of hearing to the
delinquent employee before reversing those findings. The
formation of opinion should be tentative and not final. It is at
this stage that the delinquent employee should be given an
opportunity of hearing after he is informed of the reasons on the
basis of which the disciplinary authority has proposed to
disagree with the findings of the enquiry officer. This is in
consonance with the requirement of Article 311(2) of the
Constitution as it provides that a person shall not be dismissed
or removed or reduced in rank except after an enquiry in which
he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those
charges. So long as a final decision is not taken in the matter,
the enquiry shall be deemed to be pending. Mere submission of
findings to the disciplinary authority does not bring about the
closure of the enquiry proceedings. The enquiry proceedings
would come to an end only when the findings have been
considered by the disciplinary authority and the charges are
either held to be not proved or found to be proved and in that
event punishment is inflicted upon the delinquent. That being
so, the "right to be heard" would be available to the delinquent
up to the final stage. This right being a constitutional right of the
WP(C)No.6777/2014 Page 24 of 43
employee cannot be taken away by any legislative enactment or
service rule including rules made under Article 309 of the
Constitution.”
21. Question can be raised, what is meant by the term “hearing”; whether
the law mandates personal or oral hearing before the disciplinary
authority. The Supreme Court in J.A. Naiksatam vs. Prothonotary &
Senior Master, High Court of Bombay , (2004) 8 SCC 653 after
examining earlier decisions in Kunj Behari Misra and Yoginath D.
Bagde (supra) rejected a similar contention and did not accept the
plea that principles of natural justice will be violated if the
disciplinary authority fails to provide an opportunity of oral hearing.
It was held as under:-
“ 6. .....In the instant case, the appellants were given a copy
of the tentative decision of the disciplinary authority and the
appellants furnished detailed explanation and we are of the view
that the principles of natural justice have been fully complied
with and we do not find any infraction of rules or infirmity in
the said decision.
7. The counsel further contended that from the tentative
decision it could be spelt out that the disciplinary authority had
already taken a final decision in the matter and the details have
been given therein and the opportunity which was given to the
appellants was only an exercise in futility. We are not inclined
to accept this contention. It is true that the disciplinary authority
gave its reasons for disagreement with the report of the enquiry
officer and the appellants had given their full-fledged
explanation and if at all the disciplinary authority gave detailed
tentative decision before seeking explanation from the
appellants, it enabled them to give an effective representation
and the principles of natural justice were fully complied with
WP(C)No.6777/2014 Page 25 of 43
and it cannot be said that the appellants were not being heard in
the matter.”
This position was referred to by a Division Bench of this Court in
Union of India and Others versus Kushal Pal Singh , W.P. (C) No.
th
2612/2014 decided on 28 November, 2014, in which it has been
held:-
“8. It is thus clear that the first part of the finding, that the
Enquiry Officer did not give a disagreement note and denied the
applicant an opportunity to represent against the hearing,
arrived at by the CAT, is in fact without foundation. What Kunj
Bihari Mishra and subsequently Arvind Kumar Shukla
(supra) require is that as a matter of course, if the disciplinary
authority proposes to arrive at a finding contrary to that of
Enquiry Officer, a disagreement note spelling briefly the
reasons why the contrary opinion is to be formed, has to be
given to the charged officer. The reasons are that the charged
officer should be given an opportunity to air his views on the
proposed opinion and the reasons in support of it. Like in the
case of an enquiry report which does not exonerate but records
findings of guilt (where the officer is given a copy of the report
to elicit his response), equally when a contrary view which
seeks to override findings of the Enquiry Officer and arrive at a
findings of guilt is proposed, the same standard i.e. granting
opportunity to the charged officer is insisted upon. Although,
the observations in Kunj Bihari Mishra and Arvind Kumar
Shukla (supra) and Yoginath D. Bagde v. State of
Maharashtra & Anr. , 1999 (7) SCC 739 appear to be broad
and general as to the nature of hearing, this aspect was clarified
in the ruling reported as J.A. Naiksatam v. Prothonotary &
Senior Master , (2004) 8 SCC 653. It was held that the nature
of the opportunity need not necessarily comprehend a
mandatory personal hearing but an opportunity to represent
against the proposed findings. This, in the opinion of the Court,
is in line with the logic of providing an opportunity. Whenever
WP(C)No.6777/2014 Page 26 of 43
a finding of guilt based upon materials discussed in the course
of the enquiry proceedings are recorded, the final order is to be
made after considering the representation of the charged officer.
The hearing, therefore, extends only to the grant of opportunity
to represent against the proposed contrary findings and not to
the extent of a compulsory personal or oral hearing in every
case, as has been held by the CAT in the present case.”
22. When we turn to the facts of the present case, the respondent was
th
served with disagreement memo dated 18 April, 2012 and had in
th
response filed written submissions dated 30 April, 2012. Thus,
there was compliance with the principles of natural justice. The
disciplinary authority has not ignored the written submissions and
has dealt with the contentions and issues raised therein in the order
nd
dated 22 June, 2012 imposing penalty. The said order also records
that personal hearing was not prescribed in the Railway Servants
(D&A) Rules, 1968. The appellate authority has referred to the
Railway Servants (D&A) Rules, 1968 and observed that the Rules do
not postulate personal or oral hearing.
23. Rule 10 of the Railway Servants (D&A) Rules, 1968 read as under:-
"10. Action on the inquiry report :- (1) If the disciplinary
authority:-
(a) after considering the inquiry report, is of the opinion that
further examination of any of the witnesses is necessary in
the interests of justice, it may recall the said witness and
examine, cross-examine and re-examine the witness;
(b) is not itself the inquiring authority may, for reasons to be
recorded by it in writing, remit the case to the inquiring
authority for further inquiry and report and the inquiring
authority shall thereupon proceed to hold further inquiry
according to the provisions of rule 9, as far as may be.
WP(C)No.6777/2014 Page 27 of 43
(2) The disciplinary authority:- (a) shall forward or cause to
be forwarded a copy of the report of the inquiry, if any, held
by the disciplinary authority or where the disciplinary
authority is not the inquiring authority a copy of the report of
the inquiring authority, its findings on further examination of
witnesses, if any, held under sub-rule(1) (a) together with its
own tentative reasons for disagreement, if any, with findings
of the inquiring authority on any article of charge to the
Railway Servant, who shall be required to submit, if he so
desires, his written representation or submission to the
disciplinary authority within fifteen days, irrespective of
whether the report is favourable or not to the Railway
Servant;
(b) shall consider the representation if any, submitted by the
Railway Servant and record its findings before proceeding
further in the matter as specified in sub-rules (3), (4) and (5).
(3) Where the disciplinary authority is of the opinion that the
penalty warranted is such as is not within its competence, he
shall forward the records of the inquiry to the appropriate
disciplinary authority who shall act in the manner as
provided in these rules.
(4) If the disciplinary authority having regard to its findings
on all or any of the articles of charge, is of the opinion that
any of the penalties specified in clauses (i) to (iv) of rule 6
should be imposed on the railway servant, it shall,
notwithstanding anything contained in rule 11, make an order
imposing such penalty: Provided that in every case where it
is necessary to consult the Commission, the record of the
inquiry shall be forwarded by the disciplinary authority to the
Commission for its advice and such advice shall be taken
into consideration before making any order imposing any
penalty on the Railway Servant.
(5) If the disciplinary authority, having regard to its findings
on all or any of the articles of charge and on the basis of the
evidence adduced during the inquiry, is of the opinion that
any of the penalties specified in clauses(v) to (ix) of rule 6
should be imposed on the railway servant, it shall make an
order imposing such penalty and it shall not be necessary to
WP(C)No.6777/2014 Page 28 of 43
give the railway servant any opportunity of making
representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult
the Commission, the record of the inquiry shall be forwarded
by the disciplinary authority to the Commission for its advice
and such advice shall be taken into consideration before
making an order imposing any such penalty on the railway
servant.”
It is not the case of the Respondent or a finding of the Tribunal that
Rule 10 was violated and not followed.
24. Adverse observations of the Tribunal with regard to the opinion
rendered by UPSC is erroneous. UPSC is a constitutional authority,
who had examined the factual matrix in the present case and rendered
th
their advice by letter dated 10 June, 2013. The opinion of the UPSC
th
dated 10 June, 2013 is by an independent person. It is a detailed
opinion after examining ocular and documentary evidence on record.
It cannot be described as an arbitrary and a cryptic exercise with a pre-
determined or prejudiced mind. It specifically records that the
statement of Tapan Barua was supported by S.N. Dey and asks the
pertinent question why did the name of the respondent crop up if the
consignment did not have any connection with him. Bundles had no
railway marking but somebody had put the marking CCO/MLG,
which had reference to the respondent and the consignments were
marked to SS/NJP. The UPSC has mentioned that the respondent had
used his official standing for booking of seven bundles of
parcel/wood, but did not directly give instructions because of the ban
on transportation of forest products and the paper trail would have put
him into problem. There were documentary and other evidence that
WP(C)No.6777/2014 Page 29 of 43
unbooked consignments of seven poly bundles of wooden parts were
dispatched to Patna. As per records the consignment was for the
respondent. Unloading records maintained at Patna name the
respondent. The respondent had directed Tapan Barua to stay at New
th
Jalpaiguri at 11 to 14 July, 2005 for supervising the unloading. On
this question of statement of D. Bose, the then ACM who had
allegedly abetted the act of loading of timber at Lumding and had
denied his involvement, the UPSC has opined that D. Bose was an
accomplice to the illegal act. This was the apparent reason for him not
to implicate the respondent. Tapan Barua and T.K. Paul had obliged
the respondent, possibly in deference to the wishes of the senior
officer. The seven poly bundles of wooden parts dispatched to Patna
record the name of the respondent. The consignment had no marks on
the parcels but the owner‟s name was mentioned in the unloading
book as "CCO, E. Rly. Mr. A.K. Prasad". The train guard had told
Rabindra Prasad, Sr. Parcel Clerk at Patna that the consignment was
for Mr. Prasad, CCO. The entire system had surrendered to the
irregular instructions of the CCO and his junior functionaries of the
claim department.
25. Before us, counsel for the respondent had drawn our attention to the
enquiry report and to the statement of Tapan Barua and S.N. Dey.
Tapan Barua, in his statement, has elaborated that he had been
th
instructed by the respondent to stay at New Jalpaiguri between 11 to
th
14 July, 2005; and on the instructions of the ACM, he had unloaded
three bundles of wood with marks CCO to SS/NJP from SLR
th
No.97703 train No.4055 DN on 12 July, 2005 and had thereafter
WP(C)No.6777/2014 Page 30 of 43
th
advised one Partha S. Seal, to take delivery on 13 July, 2005, but
th
when he refused to do so, he contacted Vijay Prasad on 14 July,
2005. On 14th July, 2005, he was informed by the ACM to supervise
unloading of four bundles of wood in the front compartment of Rear
SLR No.99702. This was done and the bundles were without railway
marks, except CCO LMG to NJP. These consignments were kept in
the godown. There was no transit permit or railway mark on both the
consignments. Tapan Barua had accordingly informed the respondent,
that the bundles were without railway mark etc., who had then replied
“let me see”. These consignments were later on dispatched from New
th
Jalpaiguri to Patna on 6 August, 2005 by train No.3245 DN. Tapan
Barua had given reasons why they could not earlier load these bundles
and transport them to Delhi.
26. Tapan Barua was himself charge-sheeted for his mis-conduct and had
submitted his reply. It is accepted that Tapan Barua was punished for
his lapses and misconduct. In his cross-examination, by the
respondent, Tapan Barua accepted that the dispatched goods were
prohibited and it was illegal to transport wood without permit. On
being questioned, why had he agreed to follow instructions of the
respondent, Tapan Barua had responded that he was working under
the respondent and he was pressurized. He was candid and categorical
in stating that the wooden bundles were booked and dispatched at the
behest of the respondent and that he had reported the matter to the
ACM, Tarak Nath Bhattacharya.
WP(C)No.6777/2014 Page 31 of 43
th
27. S.N. Dey in his statement has stated that on 12 July, 2005, he was on
duty at Lumding station between 6:30 and 13:00 hours and had
noticed three bundles of wooden parts without railway marking, but
with the marking of CCO / MLG to SS/NJP. He had loaded these
bundles in the SLR compartment and a card label with marking LMG
to PNBE was prepared by him. S.N. Dey had admitted that this was
the only parcel loaded in the SLR compartment and he had sealed the
compartment for Patna. Further, the ACM was present at that time and
had asked him to load the said goods. On questioning by the
respondent, S.N. Dey had stated that he was told that the consignment
belonged to the respondent, and therefore, he had not checked the
booking particulars before loading. S.N. Dey was candid that he had
never talked to the respondent and had in fact never seen the
respondent in his entire career.
28. We would at this stage consider in brief the contentions raised by the
respondent in their written submissions, which for the sake of
convenience are narrated point wise:
(i) It is unexplained why the goods were unloaded at New
Jalpaiguri, when the wood in the two trains could have been
transported to Patna.
(ii) The wood transported to Patna was cheap quality fire wood.
(iii) The wood transported to Patna, was different from the wood
loaded at Lumding and unloaded at New Jalpaiguri.
(iv) The wood got destroyed in the fire at the Patna parcel
godown.
WP(C)No.6777/2014 Page 32 of 43
(v) The respondent was not the direct senior of Tapan Barua,
S.K. Dey etc. and therefore, he could not have influenced or
pressurized them.
(vi) Respondent has been targeted by foisting this false and
fabricated case for as the CCO he had checked corruption by
reducing pending /outstanding claims.
(vii) Tapan Barua was an unreliable and untruthful witness.
(viii) Tapan Barua had indulged in wrongs and misconduct and
had a grudge and ill will towards the respondent.
(ix) There is a discrepancy as to the size of the wood that was
loaded at Lumding and New Jalpaiguri and the
measurements/sizes recorded at Patna on 3.2.2006.
(x) Disciplinary authority was biased and prejudiced against the
respondent since he had approached the Jaipur Bench of the
Tribunal and adverse orders were passed.
The respondent asserts that the disagreement note was arbitrary and
his reply reflects the true factual position.
29. Most of the factual contentions and inferences drawn by the
respondent, we would observe, are mere assumptions and far fetched
suppositious. For example, the claim that the wood was cheap quality
fire wood, a finding also given by the Inquiry Officer is fallacious and
unfounded. There could be several apparent reasons why the wood
was first unloaded at New Jalipaiguri and after about two months sent
to Patna. The transportation of wood was banned and illegal and no
railway freight had been paid. The respondent himself in the written
WP(C)No.6777/2014 Page 33 of 43
submissions has accepted that transportation of wood from North-East
was banned /prohibited. It did not matter, whether or not the
respondent was the Reporting or Reviewing Officer or immidiate
senior of Tapan Barua. Respondent was the CCO and holding a
senior and powerful post. Tapan Barua was also proceeded
departmentally and it was accepted at the Bar that he had suffered
punishment. The wood was transported to Patna on 6.8.2005. Patna
is the home town of the respondent. Transportation, including loading
of goods at Lumding, unloading at New Jalpaiguri, the fact that the
wood was then stored in the Railway godown and after about two
months sent to Patna would clearly indicate involvement of a railway
officer of standing and who could influence and pressurize the staff at
three stations. It is apparent that the witnesses have in seritum
referred to the respondent, who was then the CCO. At Patna in the
records name of the respondent was recorded. It was not possible for a
junior officer like Tapan Barua or S.N. Dey to have conducted
themselves in this manner, unless there were instructions and
directions from a senior officer. Tapan Barua was cross- examined by
the respondent at some length. There is nothing to either suggest or
show that Tapan Barua had any ill-will or had deliberately introduced
the words "CCO" to falsely implicate the respondent.
30. Reliance placed on Sections 18 and 155 of the Evidence Act, 1872 has
to be rejected for several reasons. Evidence Act, per se is not
applicable to departmental proceedings. Pertinently, Section 134 of
the Evidence Act specifically stipulates that no particular number of
witnesses, are required to prove any fact. A single witness can prove
WP(C)No.6777/2014 Page 34 of 43
a fact. In a case of this nature, it would be difficult to find direct
witnesses who would have interacted with the respondent as the goods
transported were banned and freight charges had not been paid.
31. It would be incorrect to state that the statement of Tapan Barua is not
corroborated. The Relied Upon Documents (RUDs) and statement of
S.K. Das, S.N. Dey, T.K. Paul and Belan Chandra Mashashay and
others, negate the said contention. No doubt, S.N. Dey had not
interacted with the respondent but he has mentioned that the wooden
parts loaded had the markings of CCO/MLG to SS/NJP. B.R. Mishra,
Senior Goods Guard had stated that he had seen a label card fixed on
the SLR door lock on train No. 4055 (Dibrugargh town to Delhi) on
12.7.2005 and on the card it was recorded that the consignment
belonged to CCO/MLG. The respondent was the CCO. The
transhipment clerk had also told him that the consignment belonged to
CCO/MLG. S.K. Das, Senior Goods Guard affirms that on 14.7.2005
they had loaded a consignment of wood at Lumding. He had referred
to RUD 6, which mentions that the consignment was for SS/NJP and
should not be touched. K.L. Biswas, transhipment clerk at New
Jalpaiguri had stated that he was intimated that some packages of
CCO/MLG were coming by train and these were to be unloaded at
New Jalpaiguri. He had opened the compartment in the presence of
Tapan Barua and had seen the label card and the guard had also told
him that the packages were of CCO/MLG. Three poly bundles of
woods were unloaded and taken into possession by Tapan Barua.
There were no railway markings on the said parcels, which had private
markings of CCO/MLG to SS/NJP. The said statement of K.L.
WP(C)No.6777/2014 Page 35 of 43
Biswas tallies with his contemporaneous written recoding made in the
RUD 12 and the fact that there was marking CCO/MLG on the
packets, which had wood. A.K. Rabha, Chief Transhipment Clerk has
stated that he was charge-sheeted and punished for unloading of parcel
th
consignment from 4055 Express at New Jalpaiguri on 14 July, 2005.
The consignment of four poly bundles had the marking of CCO/MLG
to SS/NJP. He had been intimated in advance by Tapan Barua
regarding the consignment. The label card had mentioned that the
consignment was for NJP and also PNEB (Patna). The guard had
stated that the consignment was from CCO/MLG, which was a private
marking. He affirmed that Tapan Barua had told him that the bundles
belonged to CCO/MLG. Rabindra Prasad, Sr. Parcel Clerk, Patna Jn.,
has narrated that they had unloaded goods from the rear compartment
SLR No. 02713 in train No. 3245 UP on 7.8.2005, which had poly
bags of wood sleepers without any railway marking. The
compartment had a private padlock, which was opened by the guard
who had told him that the consignment belonged to A.K. Prasad,
CCO, i.e. the respondent. The guard had told him that the
consignment was for the Station Master. The name of the CCO was
recorded by him in the unloading tally book and he had deposited the
consignment in the inward shed. Ram Dutta Pathak, Guard, on train
No. 3245 UP who had taken over the charge at Barauni, has stated that
he was informed verbally by the incoming guard B.K. Singh that the
consignment belonged to A.K Prasad Saheb and was to be unloaded at
Patna. He was handed over a key of a private padlock. In his cross-
examination, Ram Dutta Pathak was questioned whether the
WP(C)No.6777/2014 Page 36 of 43
consignment was for Station Master, Patna as well as CCO? He
replied having reproduced what was written on the relief memo of the
incoming guard.
32. Belan Chandra Mashahary, who was the Vigilance Officer and had
investigated the case, has supported the department‟s case. He has
stated the record of the transhipment at NJP and Patna established
involvement of the respondent. As per official records, the
consignment were from CCO/MLG. The consignment of three poly
bundles of wood and four poly bundles of wood were loaded at
Lumding and unnloaded at New Jalpaipguri. Thereafter, on 6.8.2005
these were sent to Patna and unloaded at Patna junction on 7.8.2005.
These bundles were transported without any booking authority and
valid documents and at the behest and on instructions of A.K. Prasad,
the respondent. H.P. Paswan, who was working as the guard, had
noticed a label with the markings SS/PNBE/EC Railway from
CCO/MLG affixed on a compartment, which had a private padlock.
At the bottom of the label, name A.K Prasad was mentioned. T.K.
Paul has stated that he had loaded four bundles of wood parts with the
marking CCO/MLG to SS/ NJP. He has added NJP to the label card,
which already had the marking of PNBE and DLI. He had got
instruction from Barua to load the said bundle on the train. He has
accepted that he did not get any instructions from CCO/MLG. We
have already referred to the statement of SN. Dey. To repeat, he has
affirmed that three bundles of wooden parts had the markings of
CCO|MLG to SS/NJP. He affirmed having been orally informed that
the consignment belonged to CCO and the ACM was himself present.
WP(C)No.6777/2014 Page 37 of 43
This witness had never talked to CCO or even seen him in his entire
service period. There is no reason and cause for the witnesses, one
after the other, to name the respondent. Contemporaneous written
official records mention/reflect that the consignment belonged to the
CCO/A.K. Prasad.
33. Question No. 13 put to the respondent during the course of enquiry
and his answer reads as under:
"Q.13 Is it not a fact that all relevant RUDs right from LMG
were created as per direction and orders of Shri Tapan Barua?
Let me explain at LMG, Shri Pal was told by Shri Barua to
load the poly bundles on behalf of CCO and Shri Pal made
out the card label as from CCO to SS/NJP. At NJP, Barua
was present to unload the consignment and told everyone that
it was from CCO. The tally book was filled up accordingly in
absence of any other documents. At NJP, when the packages
were loaded for Patna, Shri Barua informed the guard
verbally that the consignment was for CCO. This was
repeated by the last in the guard Chain, Shri Pathak to parcel
clerk at Patna and this was again recorded at tally book at
Patna.
Ans. At Lumding, one lot was loaded by Shri Dey, who had
stated that he was instructed by ACM/CPR/MLG."
th
34. The respondent in his reply dated 9 August, 2006 to questions Nos.
5, 6 and 7 has stated as under:
“5, 6 & 7. The fact that the consignments belonged to me
or not is immaterial. Any one can purchase any furniture in the
market. This is a free country. What is important here is why
were these booked without observing Commercial formalities.
For this, the loading clerk at LMG and Shri Barua at NJP
should be asked. Even if the consignments belonged to CCO as
they allege, why were these not properly booked? Did they
WP(C)No.6777/2014 Page 38 of 43
book these consignments and send the bill to CCO? As far as
Shri Barua is concerned, he has not met me since ages. Since
he has alleged that the consignments were mine, he should have
booked them and presented me with the freight bill. As far as
LMG is concerned, I do not know which loading clerk claims
that I even talked to him. At least, I am not aware of talking to
any clerk or Inspector at LMG which is the source and origin of
all this confusion.”
35. On the question of delay in conduct of the inquiry proceedings, we
notice that the impugned order is silent and does not primarily
proceed on the said basis, except making reference to the Chief
Vigilance Commissioner‟s instructions. The petitioner along with the
written synopsis has furnished complete details of the events from
July, 2005 till October, 2015. In July, 2005, vigilance inquiry was
instituted against the respondent and his name was put on the Agreed
list. On conclusion of the vigilance inquiry, the respondent was
th
served with the charge sheet on 29 August, 2008 and his name was
shifted from the Agreed list to the Secret List. In December, 2009,
the respondent had filed OA No. 559/2009 before the Central
Administrative Tribunal, Jaipur contending there were legal flaws
and lacunas. This OA was subsequently withdrawn and a fresh OA
No. 68/2010 was filed before the same tribunal seeking various
reliefs, including direction to dispose of the respondent‟s reply to
th
memo of charges with a speaking order. By order dated 4 January,
2011, the tribunal at Jaipur had given liberty to the respondent to
make a representation within two weeks to the disciplinary authority
for deletion of his name from the Secret List. Inquiry Officer gave
WP(C)No.6777/2014 Page 39 of 43
th
his report dated 7 August, 2008. In the meanwhile, the respondent
had filed Contempt Petition No. 14/2012 before the tribunal at Jaipur
th
for violation of the order passed in OA No. 68/2010. On 18 April,
2012, the disagreement memo was served on the respondent to which
th
he had responded on 30 April, 2012. Disciplinary Authority had
nd
passed its order on 22 June, 2012 and punishment as noted above,
th
was imposed. On 4 July, 2012, the tribunal dismissed the contempt
petition filed by the respondent. The respondent filed an appeal
rd
before the President on 3 July, 2012. In August, 2012, the
respondent moved another OA No. 535/2012 before the Tribunal at
Jaipur for removal of his name from the Secret List and had stated
that there was non-compliance of the CVC directives for completion
of inquiry proceedings within fifteen months. The respondent‟s
name had remained on the Secret List for seven years, whereas it
should have remained in the Secret List for four years and three
months. The said OA was disposed of vide order dated 9th October,
2012, without giving any relief to the respondent, inter alia, holding
that as per the Rules the respondent‟s name had to be put in the
Secret List for a period of three years from the date of punishment.
There is obviously a disconnect between this order and the impugned
order. The respondent had filed yet another OA No. 714/2012 before
the Tribunal at Jaipur for quashing of punishment, which was not
accepted and was disposed of with the direction to approach the
Tribunal after a period of six months. The petitioner thereupon had
filed OA No. 62/2013 before the Tribunal at Jaipur, which was
disposed of directing that the Railways would dispose of the appeal
WP(C)No.6777/2014 Page 40 of 43
th
within three months. This time was extended vide order dated 28
th
April, 2013 for three more months. Subsequently, on 10 June,
2013, UPSC‟s advised was received. For this reason another
application was filed and time for passing of the appellate order was
extended by two weeks with a specific condition that in case appeal
was not decided, the punishment order would be treated as quashed.
th
On 4 October, 2013, the appellate order was passed and served on
the respondent on 8th October, 2013.
36. The delay in the departmental proceedings and the appellate
proceedings had bothered us, as the respondent‟s name had remained
on the Secret List for the entire period of the inquiry and after
nd st
punishment from the period 22 June, 2012 to 21 June, 2016. In
rd
these circumstances, by order dated 3 February, 2016, we had asked
the petitioner to file an affidavit, noticing that the respondent had
claimed that as a result of the punishment, he had been denied
promotion to Higher Administrative Grade and to the post of Chief
Commercial Manager whereas his batch mates and juniors had been
promoted or granted non-functional HAG and consequently, the
respondent would become junior to them. The petitioner has
contested the said submission relying upon paragraph 4 of their
affidavit filed before the Supreme Court in the Special Leave Petition
(C) No. 31466/2014. It was also stated that the respondent‟s case for
grant of non-functional HAG was considered and rejected by the
Departmental Promotion Committee. We note that the meeting of
th
the Departmental Promotion Committee was held on 20 October,
2015 i.e. after the respondent‟s name had been removed from the
WP(C)No.6777/2014 Page 41 of 43
Secret List. The affidavit records that the respondent was declared as
unsuitable for empanelment by the Selection Committee consisting
of Chairman, Railway Board, Secretary, DOP and Member Traffic,
Railway Board. The Selection Committee had gone on performance.
It is highlighted that the respondent was not denied promotion during
th
pendency of the disciplinary proceedings from 2005 till 20 October,
2015. The affidavit sets out the reason for the delay in proceedings
and gives details of proceedings initiated by the respondent form
time to time. It is noticeable that the respondent had filed another
OA No. 2848/2014 questioning his grading in the Annual
Performance Appraisal Reports, which was disposed of vide order
th th
dated 7 April, 2015, i.e. after the impugned order herein dated 16
May, 2014 was passed. The respondent has filed contempt petition
in the said OA in which we are informed arguments have been heard
and order is reserved. The subject matter of the said OA includes
challenge to the recommendation of the Selection Committee in their
th
meeting held on 20 October, 2015. Pertinently, we are not directly
concerned with the said minutes of the Selection Committee or their
final outcome as they were not a subject matter of OA No. 4251/2013
in which the impugned order was passed.
37. For the reasons aforesaid, the present writ petition is allowed and the
th
impugned order dated 16 May, 2014 passed by the tribunal allowing
OA No. 4251/2013 and quashing the penalty imposed in the
nd
disciplinary proceedings vide order dated 22 June, 2012 and
th
affirmed in appeal vide order dated 4 October, 2013 is set aside.
WP(C)No.6777/2014 Page 42 of 43
The penalty is affirmed. In the facts of the case, there would be no
order as to costs.
-sd-
SANJIV KHANNA
(JUDGE)
-sd-
NAJMI WAZIRI
(JUDGE)
February 29, 2016
ssn
WP(C)No.6777/2014 Page 43 of 43