K.V. Shaji vs Union of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** **OP (CAT).No. 1945 of 2013** **AGAINST THE ORDER/JUDGMENT IN OA 808/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 21-03-2012** ## **PETITIONER/S:** **K.V.SHAJI, S/O.VELAYUDHAN NAIR, TICKET EXAMINER, ERNAKULAM TOWN RAILWAY STATION, PERMANENT ADDRESS AT 11/127/T.10, KARUNANIDHI NAGAR, PODANUR, COIMBATORE23.** **BY ADVS. SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI SMT.T.N.SREEKALA SRI.G.SHYAM RAJ** ## **RESPONDENT/S:** **1 THE UNION OF INDIA REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600 003. 2 CHIEF COMMERCIAL MANAGER SOUTHERN RAILWAY, CHENNAI-600 003. 3 DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY, TRIVANDRUM-695 014.** **4 SENIOR DIVISIONAL COMMERCIAL MANAGER SOUTHERN RAILWAY, TRIVANDRUM-695 014.** **BY ADVS. SRI.C.S.DIAS,STANDING COUNSEL, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 19.2.2019,, THE COURT ON 25.02.2019 PASSED THE FOLLOWING:** 2 OP (CAT).No. 1945 of 2013 ## **JUDGMENT** ## **A.M.BABU, J.** Petitioner challenged before the Central Administrative Tribunal (tribunal for short) the punishment imposed on him. He lost. Hence he filed the present original petition under article 227 of the Constitution of India. 2. The petitioner is employed in the southern railway. He serves as a ticket examiner. He was on duty in train No.1013 on the 30[th] and 31[st] of January, 2005. There was a vigilance check on 31.1.2005 whilst he was on duty. He was subjected to a trap. He was booked by the vigilance team. Against him disciplinary proceedings were initiated. He faced two charges. One, he demanded and collected Rs 200/- as against the actual charge of Rs 130/- for allotting two berths. Two, he had with him Rs 200/which he did not declare before commencement of duty on 30.1.2005. He was found guilty of both charges. A major penalty was imposed on him. He was directed to go on compulsory retirement from service with effect from 30.6.2008. He preferred an appeal. The appellate authority reduced the punishment. The punishment was converted into one of reduction to the lower scale of ticket examiner for ten years without any increment 3 OP (CAT).No. 1945 of 2013 during that period. The petitioner approached the revisional authority. The revision met dismissal. 3. The petitioner filed an original application before the tribunal. He contended in it as under: The vigilance team acted illegally. Paragraphs 704 and 705 of the vigilance manual were violated. The petitioner was coerced to give a statement as dictated by the vigilance team. The witnesses examined in the inquiry were stock witnesses of the railways. The petitioner did not collect any excess amount for allotting two berths to the decoy passenger. The amount of Rs 200/- referred to in the second charge as the undeclared money was the amount gifted to the petitioner by his sister 2½ years ago from her first salary. The inquiry officer was biased. The punishment imposed on the petitioner was harsh and disproportionate. 4. The petitioner in his original application requested the tribunal to quash the orders passed by the disciplinary, appellate and revisional authorities. Another relief sought for was to declare that the petitioner was entitled to be restored to his position which he was holding before 30.6.2008 with all benefits. The tribunal upheld the punishment imposed on the petitioner and dismissed his original application. 4 OP (CAT).No. 1945 of 2013 5. Heard Sri.T.C.Govindaswamy, the learned counsel for the petitioner. Heard too Sri.C.S.Dias, the learned standing counsel for the railways. 6. We state at the outset that we are not sitting in appeal over the orders passed by the disciplinary authority, appellate authority, revisional authority and the tribunal. Therefore we are not expected to reappraise the entire evidence adduced in the inquiry. The jurisdiction we exercise is the judicial review under article 226/227 of the Constitution of India (see **L.Chandra Kumar vs Union of India- AIR 1997 SC 1125)** . The apex court holds in **R.Mahalingam vs Chairman, TNPSC (AIR 2013 SC 2225)** that the scope of judicial review in matters involving challenge to a disciplinary action taken by the employer is very limited. It is also held that if the court comes to the conclusion that the inquiry was held in consonance with the prescribed procedure and the rules of natural justice and that the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment, except when the same is found to be wholly disproportionate to the misconduct found proved or shocks 5 OP (CAT).No. 1945 of 2013 the conscience of the court. A decision of the division bench of this court straight to the point is **Unnikrishnan vs Union of India (2017 KHC 354).** Having stated the limits and scope of the judicial review, let us proceed to decide the case on hand. 7. Admittedly the petitioner was subjected to a vigilance check on 31.1.2005 while he was on duty in train no.1013 as ticket examiner. He contends that the vigilance team acted illegally as there has been violation of paragraphs 704 and 705 of the vigilance manual. The sole violation pointed out by the petitioner is the absence of an independent witness in the matter of laying the trap. But the vigilance manual is without statutory force and is only a document containing necessary instructions to the vigilance wing of the railways. Therefore any violation of any of the instructions contained in paragraphs 704 and 705 of the manual is no good ground for the petitioner to get the punishment imposed on him set aside, unless a serious prejudice is caused to him. He has not stated what prejudice was caused to him. He does not even say that any prejudice was caused to him. We may now refer to the decision in **Chief Commercial Manager, South Central Railway, Secunderabad vs G.Ratnam ( AIR 2007 SC 2976)** . That too was a case where 6 OP (CAT).No. 1945 of 2013 violation of paragraphs 704 and 705 of the vigilance manual was the ground of attack against the disciplinary proceedings. What was highlighted was the absence of any independent witness in the trap laid against the delinquent employee by the vigilance officer of the railways. The apex court has held that the instructions contained in paragraphs 704 and 705 of the vigilance manual are procedural in character and not of a substantive nature. The apex court holds further that the violation of those instructions by the investigating officer in conducting the departmental trap would not ipso facto vitiate the departmental proceedings initiated against the employee who was subjected to the trap. It is also held that the instructions as contemplated under paragraphs 704 and 705 of the manual have been issued not for the information of the delinquent in the departmental proceedings, but it is for the information and guidance of the investigating officers. 8. The learned counsel for the petitioner relied on the decision in **Moni Shankar vs Union of India [(2008) 3 SCC 484].** That too was a case where the trap was laid not in the presence of any independent witness. Paragraphs 704 and 705 of the vigilance manual were therefore considered in the said 7 OP (CAT).No. 1945 of 2013 decision too. The apex court considered its earlier decision in **G.Ratnam** (supra) which we have referred to already. After considering the dictum in **G.Ratnam** (supra) the apex court holds in **Moni Shankar** (supra) that it should be proceeded on the assumption that paragraphs 704 and 705 of the manual being executive instructions do not create any legal right, but total violation of the guidelines together with other factors should be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent officer. A few vitiating factors taken notice of in **Moni Shankar** (supra) were these, namely, (i) the inquiry officer acted as a prosecutor and not as an independent quasi judicial authority, (ii) leading questions were put to the witnesses in their examination-in-chief by the inquiry officer and (iii) the inquiry officer did not comply with the mandatory provisions of rule 9 (21) of the Railway Servant Discipline and Appeal Rules while holding the inquiry. What is to be understood after reading **G.Ratnam** (supra) and **Moni Shankar (** supra) is that mere violation of any instruction in paragraphs 704 and 705 of the vigilance manual is not, by itself, a ground to interfere with the imposition of penalty by the 8 OP (CAT).No. 1945 of 2013 disciplinary authority, but the penalty imposed on the delinquent officer may be liable to be interfered with in a case where there was total violation of those guidelines coupled with the existence of other vitiating factors in laying the trap and holding the inquiry. In order to decide as to which category the present case belongs, we have to consider the other grounds taken by the petitioner to ascertain whether any vitiating factor exists. We therefore pause here. We shall come back after considering the other grounds taken in the petition by the petitioner to challenge the vigilance check, trap and departmental inquiry. 9. The petitioner contends that the charges against him were not proved by any valid evidence produced in the inquiry. Annex-A5 is a copy of the report of inquiry. The inquiry officer has discussed in detail the evidence produced by the prosecution and also the arguments advanced on either side. As we have already indicated, the jurisdiction of judicial review does not permit us to reappraise the whole evidence tendered by the department. Neither in the petition, nor at the hearing, the petitioner pointed out as to where did the inquiry officer go wrong in appreciating the evidence. It is only a vague contention that no valid evidence was produced in the inquiry. 9 OP (CAT).No. 1945 of 2013 10. According to the petitioner, the witnesses examined in the inquiry were the stock witnesses of the railways. He calls them stock witnesses only because of their participation in other vigilance checks and of their giving evidence in disciplinary inquiries against others. They cannot be coloured stock witnesses simply for their such participation and giving evidence. Their antecedents of associating with the vigilance wing of their employer to identify, expose and book corrupt persons are their quality and not disqualification. No ground is taken in the petition that the witnesses were blindly loyal to the department or they had any animosity or grudge against the petitioner. Nor has the petitioner taken a contention challenging the quality of the evidence tendered by those witnesses. We do not see any merit in the contention that the inquiry was vitiated since the persons who gave evidence had associated with the vigilance wing in other cases or in the contention that they were stock witnesses of the railways. 11. A few precautions to be taken when laying a trap are stated in paragraph 704 of the vigilance manual as points (a) to (d). Point (d) states that the witnesses selected should be responsible witnesses who have not appeared as witnesses in 10 OP (CAT).No. 1945 of 2013 earlier cases of the department or the police and are men of status considering the status of the accused. The reference in point (d) is to independent witnesses and not to departmental witnesses who assist the vigilance team in laying the trap. This is clear from points (a) and (b) and also from the last sentence in point (d) itself. The last sentence in point (d) is that it is safer to take witnesses who are government employees of other departments. There cannot be any doubt that the witnesses referred to in point (d) are independent witnesses. Therefore the petitioner cannot be heard to say that the departmental witnesses who assist the vigilance in laying the trap should be persons who never had figured as witnesses before. Nor can he be heard to say that such witnesses are stock witnesses if they had any kind of participation in laying trap in any other case or had given evidence in any other disciplinary inquiry. 12. The petitioner contended during the departmental inquiry that he did not take any extra money from the decoy passenger for allotting two berths. But the petitioner himself had given a statement on 31.1.2005 itself that he wrongly collected an excess amount of Rs 70/-. It was also stated therein that he collected Rs 200/-, but issued a receipt for Rs 130/- only. The said 11 OP (CAT).No. 1945 of 2013 statement of the petitioner was marked in the inquiry as Ext S6. He has no case that he did not give Ext S6 statement. He admits having given such a statement, but attacks it as one taken from him under duress. Ext S6 is detrimental to the petitioner unless it was taken from him under duress. He contends that he was coerced by the vigilance team to give such a statement. It is only his contention. His contention cannot take the place of proof. It was for him to establish the coercion pleaded by him. But he did not choose to give any evidence to prove that he was coerced to write Ext S6 statement. He stated during the inquiry at the appropriate stage that he was not offering himself to be examined as a witness in his own case and that he did not have any defence witnesses/documents (vide paragraph 2.8 of the report of inquiry). The learned counsel for the petitioner highlighted the evidence of the witness who was examined as SW1 that after the vigilance check, the vigilance team asked the petitioner to give a statement and that accordingly the petitioner gave a statement as dictated by the vigilance team. The said evidence of SW1 is quite insufficient to find any coercion. Ext S6 goes a long way against the petitioner. The same was not proved to be a statement given under duress. 12 OP (CAT).No. 1945 of 2013 13. The petitioner was charged for keeping with him an undeclared amount of Rs 200/-. He admits that the said amount was kept by him in his handbag. According to him, it was the amount gifted to him by his sister from her first salary. The said contention of the petitioner also remains as a contention without any proof. He did not make any endeavour to establish his such defence. The said defence was not a good defence also. Even if the said amount was gifted to him by his sister, he should have declared it. 13. Another contention of the petitioner is that the inquiry officer was biased. This contention is vague. Too vague. The petitioner does not say why does he say that the inquiry officer was biased. No particular incident or circumstance is pointed out to justify the allegation touching bias. Neither in the appeal nor in the revision filed by the petitioner he had a case that the inquiry officer was biased. The alleged bias of the inquiry officer was taken as a ground for the first time when the original application was filed before the tribunal. We are in complete agreement with the learned tribunal that the allegation of bias against the inquiry officer is without merit. 14. Yet another contention of the petitioner is that the 13 OP (CAT).No. 1945 of 2013 disciplinary authority while imposing the penalty did not consider that there was no demand to the decoy passenger for any extra amount for allotting two berths. The contention is feeble. Bribe is bribe when paid and received, whether or not there was a demand for it. That apart, the penalty of compulsory retirement imposed by the disciplinary authority was reduced in appeal by the appellate authority. 15. We now resume the discussion which we paused at paragraph 8 of this judgment. In the present case there has been no complete violation of paragraphs 704 and 705 of the vigilance manual. Only one of the instructions was violated by not availing of the services of an independent witness in laying the trap. No vitiating factor exists to consider along with the violation of the aforesaid instruction in the vigilance manual. Therefore the dictum in **Moni Shankar's** case (supra) is not helpful to the petitioner. The facts of the present case are more close to the facts of the case in **G.Ratnam's** case (supra). The mere violation of the vigilance manual highlighted by the petitioner, in the absence of any other vitiating factor, is quite insufficient to hold that the trap laid against the petitioner was illegal or that the inquiry against him was vitiated. 14 OP (CAT).No. 1945 of 2013 16. What remains is the contention of the petitioner that the penalty imposed on him was harsh and disproportionate. He received a bribe to allot two berths. True, the amount involved was only Rs 70/-. But what is important is taking the bribe and not the amount taken as bribe. A large amount was not possible to be taken as bribe for allotting two berths for a journey. Taking bribe should be viewed seriously. It is indeed a serious matter. Still, the petitioner was not removed from service. The penalty of compulsory retirement imposed on him originally was reduced in appeal to one of reduction to a lower scale of the same post for ten years without increment during the said period. There is no room for showing further leniency exercising the jurisdiction of judicial review. 17. The learned counsel for the petitioner relied on three decisions of the apex court. The decisions are (i) **Ex.Naik Sardar Singh vs Union of India (AIR 1992 SC 417),** (ii) **Dev Singh vs Punjab Tourism Development Corporation Ltd (AIR 2003 SC 3712)** and (iii) **Collector Singh vs L.M.L Ltd, Kanpur [(2015) 2 SCC 410]. Ex.Naik Sardar Singh** (supra) was a case where a jawan serving the Indian army had a permit to carry four bottles of rum and one bottle of brandy, but he carried seven 15 OP (CAT).No. 1945 of 2013 extra bottles of rum while going to his hometown on leave. He was sentenced to rigorous imprisonment for three months and was dismissed from service. Finding the punishment severe and arbitrary, the apex court set it aside and remanded the case to the court martial directing it to award a lesser punishment. In **Dev Singh** (supra), the delinquent employee was dismissed from service on proof of the charge that he was responsible for the misplacement of a file which was entrusted with him. The most severe penalty of dismissal from service was imposed on him despite the fact that no ulterior motive was alleged against him. Holding that the disproportionate punishment shocks the conscience of the court, the harsh punishment was set aside and the apex court imposed a penalty of withholding of one increment including stoppage of efficiency bar. The misconduct proved against the delinquent employee in **Collector Singh's** case (supra) was him throwing jute/cotton balls which hit another employee. When it was objected to, the delinquent abused the other employee and threatened him of dire consequences outside the factory premises. On proof of the said allegations, the employer dismissed the delinquent employee from service. The apex court interfered with the said harsh and disproportionate 16 OP (CAT).No. 1945 of 2013 punishment. Unlike the three reported decisions mentioned above, the present case is one involving a bribe. Therefore the reported decisions relied on by the petitioner are not helpful to him. 18. We conclude. We find no merit in the original petition. The same deserves only a dismissal. 19. Dismissed. sd/- **C.T. RAVIKUMAR Judge** sd/- **A.M.BABU Judge** sks/23.7.2018 17 OP (CAT).No. 1945 of 2013 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER IN O.A.NO.808 OF 2010 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 21.3.2012 EXHIBIT P2 TRUE COPY OF THE O.A.NO.808/2010 WITH ITS ANNEXURES** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 16.02.2011. EXHIBIT P4 TRUE COPY OF THE REJOINDER DATED 24.02.2011 WITH ANNEXURE A12**