Though undoubtedly the overcharging is to a very limited extent,
it is only with regard to that decoy passenger. It is in respect of a
case in which the petitioner has been watched and caught. It leaves
out the numerous instances when the petitioner may not have been
watched and caught. Each passenger is a victim. Each passenger
has consequently been cheated and defrauded to that extent. The
fact that the petitioner could overcharge a passenger whilst being
under vigilance and scrutiny showed that the petitioner took
advantage of either the ignorance or the illiteracy of the victim. It
shows a dishonest attitude of the Government servant. It causes
financial loss to the institution he serves. It results in criminal
breach of trust between the third party contracting with the
institution as also qua the petitioner in the service of that institution.
It results in misappropriation of funds as it would cause unlawful
loss to the third party and unlawful gain to the petitioner. In a given
case, albeit to that limited extent, misappropriation of each small
amount may cause unlawful loss to that extent to the institution and
the corresponding unlawful gain to the petitioner by the use of such
dishonest means and by misconducting himself.
It is in this light that it is a settled position in law through various
judgments of the Apex Court that the quantum of the amount
misappropriated, stolen or defrauded is not the yardstick to
determine the extent of the punishment. No matter what is the
amount the conduct betrays the trust of the institution in its worker.
The institution, therefore, loses confidence in the worker. That
institution, therefore, is entitled, upon proof of the misconduct, to
remove such employee.
WRIT PETITION NO. 3545 OF 2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE
Sarvjeet Chhotelal Tiwari alias
S.C.Tiwari
V/s.
Union of India, through
General Manager, Central Railway,
CORAM :NARESH H.PATIL &
RAVINDRA V.GHUGE, JJ.
Pronounced On : 1ST AUGUST, 2014
Citation; 2014(6) ALLMR 699
By an order dated 14/07/2006, this petition was admitted.
02. By this petition, the Petitioner seeks to challenge his “compulsory
01.
removal from service” effected by the Respondent employer dated
27/12/2001 and the judgment of CAT dated 30/09/2004 whereby his
original application was dismissed.
03.
We have heard the learned advocates for the respective sides. The
submissions of Shri.M.S.Karnik, learned advocate for the petitioner can
a)
ig
be summarized as under :
The petitioner was appointed as a 'Booking Clerk' with the
b)
respondent-Railway Department.
He was posted as a 'Booking Clerk' at the Lokmanya Tilak
Terminus, Mumbai.
On 26/11/1999, the petitioner was issued with a charge-
c)
sheet.
d)
Two charges were levelled against him. The first charge
was that he had over charged the Decoy passenger by Rs.2/-
and the second charge was that Rs.122/- were found short in
the railway cash.
e)
The petitioner in his written say denied the charges and has
explained his case through his reply dated 30/11/2000.
f)
The petitioner stated that the Decoy passenger had carried
the currency notes of 100 and 50.
g)
The Decoy passenger was asked to wait in order to accept
the change of Rs.2/-, which was supposed to be returned to
him.
Since the petitioner did not have the necessary change, the
h)
Decoy passenger should have waited as per his instructions,
i)
but he went away.
The Enquiry Officer has submitted his report dated
30/11/2000 after concluding the inquiry.
j)
A copy of the Enquiry Officer's report was supplied to the
petitioner and his explanation was called for.
k)
The petitioner submitted his explanation dated 28/05/2001,
l)
misconduct.
explaining his stand and denying having committed any
By the order dated 18/07/2001, the Disciplinary Authority
awarded a major punishment to the petitioner by effecting
his “removal from service” from 30/07/2001.
m)
The petitioner was given the opportunity of preferring an
appeal within 45 days to the Appellate Authority as per
rules.
n)
The petitioner moved an appeal dated 04/09/2001 to the
case of the petitioner, set aside the order of punishment and
reinstate the petitioner in service.
o)
By an order dated 18/09/2001, the appeal of the petitioner
was rejected. However, he was given the liberty to prefer a
Appellate Authority thereby requesting it to reconsider the
Revision Petition within 45 days as per rules.
p)
The petitioner moved a Revision Petition to the Revisional
Authority on 24/10/2001. The same request was made to
the Revisional Authority as was made to the Appellate
q)
Authority.
By the impugned order dated 27/12/2001, the Revisional
Authority upon considering the Revision Petition of the
petitioner, passed a reasoned order thereby reducing the
punishment initially awarded to the petitioner from
“removal from service” to “compulsory retirement from
service”.
r)
By the reduction of the punishment, the petitioner stood to
gain all retiral benefits as well as the liberty to obtain
Government employment, which he was deprived of by the
order of punishment dated 18/07/2001.
The petitioner has challenged the impugned order dated
s)
27/12/2001 issued by the Revisional Authority before the
Central Administrative Tribunal, Bench at Mumbai
(“C.A.T. in short) on 20/11/2002.
t)
The original application filed by the petitioner was rejected
by the impugned judgment and order of the C.A.T. dated
30/09/2004.
u)
It is stated that the Vigilance Department has influenced the
Disciplinary Authority by it's communication dated
20/06/2001 and 03/07/2001.
v)
Had
the Vigilance Department
not influenced
the
Disciplinary Authority, the petitioner would not have been
awarded the impugned punishment, since the punishment of
reversion in rank was being proposed by the Disciplinary
Authority.
The two communications dated 20/06/2001 and 03/07/2001
w)
from the Vigilance Department and the reply of the
that
the
Disciplinary
Disciplinary Authority dated 28/06/2001 clearly indicate
Authority
had
proposed
the
punishment of reversion to the initial cadre (RSRP) for a
period of three years with cumulative effect
x)
The impugned order is rendered unsustainable as it is an
outcome of the influence exerted by the Vigilance
Neither the law nor the principles of natural justice permit
y)
Department, upon the Disciplinary Authority.
the Disciplinary Authority either to consult the Vigilance
Department or be influenced by any person under any
Authority in the matter of deciding the quantum of
punishment to an employee.
It is prayed that the impugned order of compulsory
z)
retirement dated 27/12/2001 and the impugned judgment of
C.A.T. dated 30/09/2004, deserve to be quashed and set
aside.
04.
The learned advocate Shri.T.J.Pandian appearing on behalf of the
Department of Railway-respondents No.1 to 3, has made his
submissions, which can be summarized as follows :
a)
The Vigilance Department of the Indian Railways sent a
Decoy passenger to the ticket booking window No.1 of the
Booking Clerk-Shri.S.C.Tiwari who is the petitioner herein.
b)
Gaikwad RD
While purchasing the tickets, the total fare of the Decoy
not return two rupees to the Decoy passenger.
The Decoy passenger had carried 5 notes of Rs.100/-
c)
passenger was to the tune of Rs.478/-. The petitioner did
denomination and two notes of Rs.50/- denomination with
him.
d)
The currency notes offered by the Decoy passenger to the
petitioner were pre-marked by the Vigilance Department.
e)
An independent witness accompanied the Decoy passenger
On inspection by the Vigilance Department Rs.122/- were
f)
to the window of the petitioner.
found short in the railway cash of the petitioner's booking
g)
window.
Reliance is placed on the Railway Servant's (Conduct)
Rules, 1966 (“1966 Rules” in short) and the Railway
Servant's (Discipline and Appeal) Rules, 1968 (“1968
Rules” in short).
h)
Rule 3(1) of the 1966 Rules mandates that every railway
servants shall at all times (i) maintain absolute integrity; (ii)
maintain devotion to duty and (iii) do nothing which is
unbecoming of a railway servant.
i)
Rule 6 under Part III of the 1968 Rules prescribes major
penalties from Clause (v) to (ix).
j)
Rule 9 under Part IV of the 1968 Rules prescribes the
procedure for imposing major penalties and the said
procedure has been followed by the respondent-Railways
Department.
The Vigilance Department had taken up the exercise of
k)
sending a Decoy passenger within it's power and as such it
was the Vigilance Department which had conducted the
said operation.
l)
The petitioner falls in Group C employees. The Circular
RBE No.93 of 2001 lays down the procedure for Non-CVC
vigilance cases pertaining to Group C and Group D
employees.
The above mentioned circular enables the Disciplinary
m)
Authority to give due regard to the advice of the Vigilance
Department and to strive to remove/reduce all areas of
disagreement with the Vigilance Department by mutual
consultation and discussion. In the event of a disagreement
between two, the Disciplinary Authority is free to take an
independent decision on the case.
n)
The Vigilance Department in it's letter dated 20/06/2001
and 03/07/2001 have neither insisted nor influenced the
Disciplinary Authority to award a grave punishment to the
petitioner. The Vigilance Department has only advised the
Disciplinary Authority to impose a penalty in conformity
with the Railway Board guidelines in disciplinary matters.
So also, the Vigilance Department has requested the
Disciplinary Authority to consider imposition of any of the
penalties prescribed under Rule (vii-ix) of the 1968 Rules in
conformity with the Railway Board guidelines.
o)
The Disciplinary Authority has arrived at an independent
conclusion after considering the report of the Enquiry
Officer and the gravity of the misconduct proved to have
been committed by the petitioner, while awarding the
punishment.
p)
The Revisional Authority, after considering the Revision
Petition of the petitioner, has reduced the punishment.
q)
From any angle an act of dishonesty and misappropriation
of the railway cash cannot be termed to be a misconduct of
The
Apex
Court
has
r)
a minor or trivial nature.
laid
down
the
law
that
misappropriation by itself is a grave and serious misconduct
s)
and the amount involved is immaterial.
The CAT in the impugned judgment has rightly come to a
conclusion that the petitioner deserves to be deprived of his
employment on account of the grave and serious
misconduct, in as much as, the Disciplinary Authority has
correctly arrived at an independent decision.
t)
05.
The petition filed by the petitioner, therefore, be dismissed.
Having heard the learned advocates for the respective sides, we
have gone through the entire petition paper book with their assistance
and have considered reliance placed on reported judgments by both the
sides.
06.
We have gone through the charge sheet dated 26/11/1999. It is
clearly set out that the respondent-employer proposed an enquiry against
the petitioner under Rule 9 of the 1968 Rules. Annexure I and Annexure
II clearly set out the statement of articles of charge and the statement of
imputation of misconduct or misbehaviour in support of each article of
charge. Annexure III and IV pertain to list of documents and list of
witnesses by whom the article of charge are proposed to be sustained.
The petitioner was given access to the documents and was permitted to
take assistance of any other railway servant or an official of the Railway
Before us, there has been no challenge to the fairness of the
07.
Trade Union subject to 1968 Rules.
enquiry and as regards the fairness of the Enquiry Officer's report. The
petitioner has focused his case purely on the aspect that the misconduct
is of a minor character and the Disciplinary Authority was inclined to
award punishment of reversion, but for the undue influence and pressure
exerted by the Vigilance Department owing to which the Disciplinary
Authority was compelled to award a grave punishment.
In the light of the challenge posed before us by the petitioner, we
08.
find it appropriate to advert to the Rules of 1966 and 1968 coupled with
the correspondence between the Vigilance Department and the
Disciplinary Authority.
09.
A Decoy passenger approached his booking window.
The
Vigilance Department had entrusted him with five notes of Rs.100/-
denomination and two notes of Rs.50/- denomination. Each of these
notes were pre-marked and their numbers were noted by the Vigilance
Department. The Decoy passenger purchased tickets whose total fare
was Rs.478/-. Rs.20/- were returned to the Decoy passenger by the
It has been proved through evidence that the Decoy
petitioner.
passenger was not asked to wait by the petitioner in order to return Rs.
2/-, which according to the petitioner was not available with him either
in loose coins or currency notes. The Decoy passenger then left and the
Vigilance Department swooped in. In the inspection conducted by the
Vigilance Department, it was noticed that the petitioner had a short fall
10.
of Rs.122/- in his cash which could not be explained.
We are not impressed by the submissions of the petitioner that had
he had the intention of misappropriating money, excess cash would have
been found in his cash box. The fact remains that the final tally of
money indicated a short fall of Rs.122/-.
Nevertheless the charges
having been proved against the petitioner, we are not called upon to re-
appreciate the evidence on record and to arrive at an independent finding
as to whether the charges have been proved or not.
11.
Rule 3 of the 1966 Rules reads as under :
3. General.
(1)
Every railway servant shall at all times-
(i)
maintain absolute integrity;
(ii)
maintain devotion to duty; and
(iii) do nothing which is unbecoming of a railway servant.
12. Rule 6 under Part III of the 1968 Rules along with Sub-rules reads
as under :
6. Penalties :
The following penalties may, for good and sufficient reasons
and as hereinafter provided, be imposed on a Railway servant,
namely:-
Minor Penalties -
(i)
Censure;
(ii)
Withholding of his promotion for a specified period;
(iii) Recovery from his pay of the whole or part of any pecuniary
loss caused by him to the Government or Railway
Administration by negligence or breach of orders;
(iii-a) Withholding of the Privilege Passes or Privilege Ticket
Orders or both;
(iii-b) Reduction to a lower stage in the time scale of pay by one
stage for a period not exceeding three years, without
cumulative effect and not adversely affecting his pension;
(iv) Withholding of increments of pay for a specified period with
further directions as to whether on the expiry of such period
this will or will not have the effect of postponing the future
increments of his pay;
Major Penalties -
(v)
Save as provided for in clause (iii-b) reduction to a lower
stage in the time-scale of pay for a specified period, with
further directions as to whether on the expiry of such period,
the reduction will or will not have the effect of postponing
the future increments of his pay;
(vi) Reduction to a lower time scale of pay, grade, post, or service,
with or without further directions regarding conditions of
restoration to the grade or post or service from which the
Railway servant was reduced and his seniority and pay on
such restoration to that grade, post or service;
(vii)
Compulsory retirement;
(viii) Removal from service which shall not be a disqualification for
future employment under the Government or Railway
Administration;
(ix)
Dismissal from service which shall ordinarily be a
disqualification for future employment under the
Government or Railway Administration:
Provided that in cases of persons found guilty of any act or
omission which resulted or would have, ordinarily, resulted in
collision of Railway trains, one of the penalties specified in clauses
(viii) and (ix) shall, ordinarily, be imposed and in cases of passing
Railway signals at danger, one of the penalties specified in clauses
(v) to (ix) shall, ordinarily be imposed and where such penalty is not
imposed, the reasons therefor shall be recorded in writing:
13.
Provided further that in case of persons found guilty of
possessing assets disproportionate to known sources of income or
found guilty of having accepted or having obtained from any person
any gratification, other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act, one of the
penalties specified in clauses (viii) or (ix) shall ordinarily be
imposed and where such penalty is not imposed, the reasons therefor
shall be recorded in writing.
Rule 10(iv) and (v) of the 1968 Rules reads as under :
10. Action on the inquiry report :-
(1)..............
(2).............
(3)............
(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
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
It is thus clear that the respondent had proposed the enquiry
against the petitioner under Rule 9.
14.
before making an order imposing any such penalty on the
railway servant”.
The vexed issue before us is
whether the misconduct proved against the petitioner could be termed as
a “minor misconduct” and as to whether the consultation between the
Vigilance Department which conducted the operation and the
Disciplinary Authority, could be termed as an “undue influence” exerted
The Circular RBE No.93 of 2001 referred to above reads as
under :
15.
by the Vigilance Department, as are the submissions of the petitioner.
R.B.E. No.93/2001
Subject : Procedure for non-CVC vigilance cases pertaining to
Group 'C' and Group 'D' employees.
[No.E(D&A)2000/RG 6-30, dated 16.5.2001.]
The role of Vigilance Organization in the non-CVC
disciplinary cases, which arise out of their investigations, was one of
the items in the agenda of the JCM/DC meeting held with the staff
side in June, 2000. Pursuant to the discussions in the meeting and
after further examination of the issues raised by the staff side, Board
would like to clarify/specify as under:-
(i)
Appointment of Inquiry Officer is the prerogative of the
Disciplinary Authority. In majority of the cases, the Vigilance
Organization will leave the choice of Inquiry Officer completely with
the Disciplinary Authority. In such a case, while appointing Inquiry
Officer, Disciplinary Authority may ensure that the officer being
appointed by him for conduct of Inquiry is of sound integrity and
possesses adequate knowledge of rules and procedures in regard to
conduct of inquiry, which is a quasi-judicial proceeding.
(ii)
However, in some cases, the Vigilance would forward a panel
of Inquiry Officers, indicating the number of inquiries pending with
each one of them. The Disciplinary Authority in that case may choose
one out of panel and appoint him as Inquiry Officer. In cases
involving more than one charged official, special care may be taken
by all the concerned DAs to appoint the same inquiry officer out of
the panel of I.O's sent by Vigilance.
ig
(iii) In terms of this Ministry's letter No.78/V-I/CVC/1/2, dated
17.3.1989, the disciplinary authority may give due regard to the
advice of the Vigilance Organization and strive to remove/reduce
areas of disagreement, if any, with the Vigilance, by mutual
consultation and discussion. However, if there is still a disagreement,
the disciplinary authority is free to take an independent decision on
the case.
In partial modification of the Ministry's aforesaid letter dated
17.3.1989, it has been decided that if, in a case, the Vigilance has
recommended a major penalty and the disciplinary authority proposes
to exonerate or impose a minor penalty, the disciplinary authority
should first record his provisional order and then consult Vigilance
Organization once. However, if, after such consultation, the
Disciplinary Authority is not in agreement with the views of Vigilance,
then he/she is free to proceed and pass speaking order about the
penalty. The Vigilance Organization may, if they so consider, seek
revision of the penalty by the appropriate authority.
Likewise, where a major penalty has been imposed by the
disciplinary authority in agreement with the recommendations of the
Vigilance but the appellate/revisionary authority proposes to
exonerate or impose a minor penalty, the appellate/revisionary
authority may first record provisional decision and consult the
Vigilance Organization once.
After such consultation, the
appellate/revisionary authority is free to take a final decision in the
matter and record his/her views about penalty through speaking order.
2.
It has
been
observed
that, in
many
cases,
disciplinary/appellate/revisionary authorities invariably refer all the
disciplinary cases arising out of vigilance investigation to the
Vigilance Organization, before taking a final decision in the case. It
is advised that consultation with Vigilance is required only in those
cases where they intend to impose/modify the penalty at variance with
Vigilance's advice of major penalty.
3.
The Disciplinary Authority may ensure that the copy of 'Notice
Imposing Penalty (NIP) is sent to Vigilance promptly on issue, so that
they can take necessary action to process for revision, if considered
necessary.
16.
4.
There will be no change in the extant procedure for dealing
with cases involving CVC's advice.
We neither have any hesitation nor any doubt in our mind that the
misconduct proved to have been committed by the petitioner is of a
grave and serious nature. We do not intend to enlarge this judgment by
referring to several reported judgments of the Apex Court as well as
many High Courts on the point that misappropriation of whatsoever
nature, irrespective of whether it involves Rs.1/- or thousands, is a grave
and serious misconduct. It is trite that such a misconduct could never be
treated leniently on the ground that such a misconduct is of a minor
nature. Quantum of the amount misappropriated is not the yardstick to
be considered while awarding punishment in cases of misappropriation,
theft, fraud etc.
17.
It has been held by the Division Bench of this Court (Coram :
Ranjana Desai & Roshan Dalvi, JJ) in the case of Nilesh R Mandra V/s.
Union of India & Others, 2008(4) ALL MR 789, in paragraphs No.6,7
and 8 as under :-
6. Though undoubtedly the overcharging is to a very limited extent,
it is only with regard to that decoy passenger. It is in respect of a
case in which the petitioner has been watched and caught. It leaves
out the numerous instances when the petitioner may not have been
watched and caught. Each passenger is a victim. Each passenger
has consequently been cheated and defrauded to that extent. The
fact that the petitioner could overcharge a passenger whilst being
under vigilance and scrutiny showed that the petitioner took
advantage of either the ignorance or the illiteracy of the victim. It
shows a dishonest attitude of the Government servant. It causes
financial loss to the institution he serves. It results in criminal
breach of trust between the third party contracting with the
institution as also qua the petitioner in the service of that institution.
It results in misappropriation of funds as it would cause unlawful
loss to the third party and unlawful gain to the petitioner. In a given
case, albeit to that limited extent, misappropriation of each small
amount may cause unlawful loss to that extent to the institution and
the corresponding unlawful gain to the petitioner by the use of such
dishonest means and by misconducting himself.
7. It is in this light that it is a settled position in law through various
judgments of the Apex Court that the quantum of the amount
misappropriated, stolen or defrauded is not the yardstick to
determine the extent of the punishment. No matter what is the
amount the conduct betrays the trust of the institution in its worker.
The institution, therefore, loses confidence in the worker. That
institution, therefore, is entitled, upon proof of the misconduct, to
remove such employee.
8. It is argued on behalf of the petitioner that it is a small act of a
small man and the punishment is, therefore, disproportionate to his
misconduct. We cannot persuade ourselves not to consider the
victim's point of view. Just as the petitioner is a small man and has
committed a small misconduct, his victim is an equally a small man.
Rs. 25/- matters to a passenger taking a second class daily ticket
from Khadavli to Pune. Such victims would be expected to prefer a
rate lesser even to that extent to make that small saving. It is only
because of his illiteracy or the ignorance of the ticket value that he
could be cheated, albeit to that extent. We must, therefore, not turn a
nelson's eye to the victim's point of view. In this light, we must refer
to the judgments of the Apex Court cited before us by the counsel for
the respondents.
18.
This leaves us to deal with the last issue which has been forcefully
argued by Shri.M.S.Karnik-the learned advocate for the petitioner that
the Disciplinary Authority was unduly influenced and pressurized to
award a grave punishment to the petitioner.
The gravamen of the
submissions of the petitioner is that the Disciplinary Authority was
inclined to award the punishment of reversion to the initial cadre of Rs.
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years with cumulative effect.
3200-Rs.4000 (RSRP), fixing the pay at Rs.3200/- for a period of three
It is by the letters of the Vigilance
Department dated 20/06/2001 and 03/07/2001 that the Disciplinary
Authority was influenced and pressurized to award a grave punishment.
19.
We find from these two letters that the Vigilance Department has
only tried to highlight the seriousness of the misconduct proved against
the petitioner.
In both these letters this is a common thread of
submissions by the Vigilance Department.
In the first letter dated
ig
20/06/2001, the Disciplinary Authority was requested to reconsider and
impose a penalty in conformity with Railway Board's guidelines on the
In the second letter dated 03/07/2001, the Disciplinary
subject.
Authority was requested to consider the imposition of any of the penalty
under Rule 6(vii-ix) of the 1968 Rules in conformity with the Board's
guidelines.
20.
We further find from Rule 10(5) of the 1968 Rules that the
Disciplinary Authority has the liberty to seek an advice from the
Commission. The circular placed before us i.e. R.B.E.No.93 of 2001
specifically provides for the Disciplinary Authority consulting the
Vigilance Organization in such cases. It is sufficiently clear from the
said Circular that if there is any disagreement between the Disciplinary
Authority and the Vigilance Department, the Disciplinary Authority will
be free to take an independent decision on the case. Thereafter, the
communication sent by the Disciplinary Authority to the Vigilance
Department in the form of Notes Imposing Penalty (NIP) would be
binding upon the Vigilance Department.
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21.
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The learned counsel for the petitioner has placed reliance upon a
reported judgment delivered by the Honourable Supreme Court in the
matter of Satyendra Chandra Jain V/s. Punjab National Bank and
Ors. reported at (1997) 11 SCC 444.
In the said case, the Chief
Vigilance Officer had recommended a severe punishment of removal
from service to the Disciplinary Authority. It was a clear view and
opinion of the Chief Vigilance Officer that the punishment of removal
Judgment in the case of Nagraj
from service should be imposed.
ig
Shivarao Karjagi V/s. Syndicate Bank, Head Office reported at (1991)3
22.
SCC 219 was cited.
In the said case reference was made to a directive dated
21/07/1984 issued by the Joint Secretary, Ministry of Finance,
Department of Economic Affairs (Banking Division) to all banking
institutions whereby it was stated that under no circumstances, the
advice of the Central Vigilance Commission should be modified except
with the prior concurrence of the Commissioner and the Ministry. The
Apex Court held such a directive to be wholly unsustainable. It was
concluded that the Disciplinary Authority abdicated it's function
entrusted to it by law of deciding the punishment to be imposed and it
acted under the dictates of the Central Vigilance Commission. It was
concluded that the Disciplinary Authority had the discretion to decide
the quantum of punishment. It was also concluded that the impugned
order of punishment was passed when the said directive was operative.
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201.WPNo.35452006
We find the ratio laid down in the Satyendra Chandra Jain
23.
(supra) and Nagraj case (supra) to be inapplicable to the facts of this
case. There is no directive in operation with the Indian Railways akin to
the directive dated 21/07/1984 that was operative when the Disciplinary
Authority awarded punishment in the Nagraj and Satyendra Chandra
Jain cases.
Moreover, we find that both the letters written by the
Vigilance Department merely highlight the seriousness of the
misconduct, in as much as, it advised the Disciplinary Authority to
follow the Rules and take a decision as it may deem fit. We, therefore,
ig
do not find that the said letters written by the Vigilance Department, was
a determined effort to direct the Disciplinary Authority to award a
24.
specific punishment to the petitioner.
The respondent has relied upon an unreported judgment of the
Division Bench of this Court dated 12/06/2008 in the case of Union of
India V/s. Sandeep Manjrekar, delivered in W.P.Nos. 8063 of 2004 and
8675 of 2004. This Court while dealing with a similar situation, has
observed in Paragraphs No. 4 and 5 as under :
4.
..... The charge No.2 is definitely a charge of receiving illegal
gratification. It is in this background, that Rule 6 of the Discipline
Rules of the Railway Service becomes relevant. Proviso to that rule
reads as under :
“Provided further that in case of persons found guilty of
possessing assets disproportionate to known sources of income
or found guilty of having accepted or having obtained from
any person any gratification other then legal remuneration, as
a motive or reward for doing or forbearing to do any official
act, one of the penalties specified in clauses (viii) or (ix) shall
ordinarily be imposed and where such penalty is not imposed,
the reasons therefore shall be recorded in writing.”
Now, it is clear that before interfering with the Order imposing
punishment, consideration of above quoted provision was relevant.
Gaikwad RD
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201.WPNo.35452006
Perusal of the Order of the Central Administrative Tribunal shows
that the CAT while holding that the punishment is disproportionate
has excluded from its consideration the above quoted provision. it is
not a settled law that when a Judicial or Quasi Judicial authority
excludes from its consideration the relevant provision, the finding
recorded by such Judicial or Quasi Judicial Authority gets vitiated
because it is one of the Principle of Natural Justice that the Judicial
and Quasi Judicial Authority can not allow any irrelevant
consideration enter the mind and they can not exclude from their
consideration aspects which are relevant. The Central administrative
Tribunal while considering the question whether the punishment is
proper or not has not considered the provision quoted above and
therefore that part of the order is liable to be set aside.
ig
5.
We have also gone through the correspondence exchanged
between the Disciplinary Authority and the Vigilance Cell. All that
has been done by the Vigilance Cell is that it advised the Disciplinary
Authority that looking to the nature of misconduct, stringent
punishment is required to be imposed. Even ignoring whatever
advise is given by the Vigilance Cell, the Disciplinary Authority, in
view of the provisions of the Rules quoted above was under a duty to
impose one of the two major punishments, unless it finds that there
are reasons which are required to be recorded in writing for imposing
a lesser punishment. In our opinion, therefore, considering the
purpose why the above quoted provision has been enacted, in the
present case there was no room for the Disciplinary Authority to
impose any punishment lesser than dismissal or removal. From the
proposal that was sent by the Disciplinary Authority to the Vigilance
Cell it is clear that the Disciplinary Authority has not indicated any
reason why lesser punishment in the opinion of the Disciplinary
Authority will be adequate. Looking to the language used in the
provision imposing Punishment of dismissal or removal is automatic
on finding the delinquent guilty of accepting illegal gratification.
Reasons are required to be recorded only if lesser punishment is to be
imposed. In our opinion, as we also find that the charge of illegal
gratification is clearly proved against the petition, there was no room
for the Disciplinary Authority to impose any other punishment than
removal under the advise or without the advise or the Vigilance
Department. In our opinion, therefore, the Order of the CAT
modifying the Order of the punishment is liable to be set aside. In
our opinion, therefore, following order would meet the ends of
justice.
Gaikwad RD
20/21
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201.WPNo.35452006
In the light of the above, we are of the considered view that the
25.
correspondence between the Disciplinary Authority and the Vigilance
Department simply indicates that the Vigilance Department called upon
the Disciplinary Authority to look into the seriousness and the gravity of
the misconduct proved against the petitioner and consider his case from
that angle for awarding a commensurate punishment. We are, therefore,
convinced that the Vigilance Department has neither unduly influenced
the Disciplinary Authority nor has it compelled the Disciplinary
Authority to award a specific punishment to the petitioner. Hence, we
ig
find no illegality in the action of the Disciplinary Authority. Moreover,
26.
the Revisional Authority has reduced the punishment of the petitioner.
It is in these circumstances that we do not find any legal infirmity,
error or perversity in the impugned action of the Disciplinary Authority
and the impugned judgment of the C.A.T. dated 03/09/2004 and the
impugned order dated 19/04/2005.
27.
The petition is, therefore, devoid of merit and is accordingly
dismissed. Rule is discharged. No order as to costs.
(RAVINDRA V.GHUGE,J.)
Gaikwad RD
(NARESH .H.PATIL, J.)
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