Sobha Mary Alexander v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **OP (CAT).No.25 OF 2014(Z)** **AGAINST THE ORDER IN OA 490/2012 DATED 21-08-2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/ RESPONDENTS IN O.A.:** |**1**|**UNION OF INDIA,**| |---|---| ||**REPRESENTED BY GENERAL MANAGER,**| ||**SOUTHERN RAILWAY, CHENNAI-600 003.**| |**2**|**ADDL. DIVISIONAL RAILWAY MANAGER,**| ||**SOUTHERN RAILWAY, PALGHAT DIVISION,**| ||**PALAKKAD-678 002.**| |**3**|**SR. DIVISIONAL COMMERCIAL MANAGER,**| ||**SOUTHERN RAILWAY, PALGHAT DIVISION,**| ||**PALAKKAD-678 002.**| ||**BY ADVS.**| ||**SMT.SUMATHY DANDAPANI (SR.)**| ||**SRI.N.K.SUBRAMANIAN, SC, RAILWAYS.**| ## **RESPONDENT/ APPLICANT IN O.A.:** **SOBHA MARY ALEXANDER, W/O. JOSEPH GEORGE, EX.HEAD COMMERCIAL CLERK, PAYYANNUR RAILWAY STATION, RESIDING AT CHATHUKULAM, PERUMPAIKADU POST, KOTTAYAM DISTRICT, PIN-686 028.** **R1 BY ADV. SRI.MARTIN G.THOTTAN R1 BY ADV. SRI.M.P.VARKEY.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **OP(CAT).25 of 2014** **K.Vinod Chandran & V.G.Arun, JJ. -------------------------------O.P(CAT) No.25 of 2014 -------------------------------Dated this the 21[st] day of November, 2019** ## **JUDGMENT** ## **K. Vinod Chandran,J:** **The Railways, the petitioner herein, is aggrieved with the order of the Tribunal in an Original Application filed by a charge-sheeted employee ['CSE' for short] challenging the order of compulsory retirement imposed upon her as a punishment pursuant to disciplinary proceedings.** **2. The CSE was proceeded against on two counts, one of which was found to be not proved, by the Tribunal, despite the Inquiry Officer, the Disciplinary Authority and the Appellate Authority finding it to be proved. On the second charge, it was held to be proved and there was a direction to the disciplinary authority to consider the punishment afresh especially since that imposed of compulsory retirement would be disproportionate, considering the gravity of the second misconduct alleged and proved.** **3. Learned Senior Counsel Smt.Sumathy Dandapani appearing for the Railways would take us meticulously through the various documents produced to contend that on** **- 3 -** **OP(CAT).25 of 2014** **preponderance of probabilities the CSE has to be found guilty on both counts; which misconducts were alleged on the basis of a trap set, with the help of a decoy. It is submitted that the Tribunal erred in re-appreciating the evidence, to find lack of proof to bring home the guilt of the CSE on one count of the allegations. The Tribunal also erred in finding procedural irregularity as to questioning of the CSE on conclusion of the inquiry especially since the CSE had voluntarily submitted that she would submit a written defense. The learned Senior Counsel relies on the decisions in** _**Chief Commercial Manager, South Central Railway v. G.Ratnam [(2007) 8 SCC 212], Govt. of T.N. v. A.Rajapandian [AIR 1995 SC 561]**_ **and** _**Bank of India v. Degala Suryanarayana [(1999) 5 SCC 762**_ **] to assail the findings of the Tribunal. It is urged that the Tribunal is not an appellate authority and is in judicial review; which power has been overstepped.** **4. Sri.Martin G.Thottan, learned Counsel appearing for the respondent-CSE would contend that** _**G.Ratnam**_ **though not specifically overruled, has been considerably deviated from in** _**Moni Shankar v. Union of India [(2008) 3 SCC 484**_ **]. The mandate of questioning as seen from the rules is one akin to Section 313 of the Code of Criminal Procedure and** **- 4 -** **OP(CAT).25 of 2014** **each aspect of evidence adduced which stands against the CSE, has to be put to her to elicit an explanation, if any. Reliance is also placed on a Division Bench decision of this Court in** _**Dena Bank v. Shakuntala Madhavan [1999 (1) ILT Kerala 396**_ **]. It is argued that though the Tribunal is in judicial review, where there is no evidence and the findings based on the materials on record is perverse there could definitely be interference caused to the orders of the disciplinary authority.** **5. The facts constituting the allegations arose from a trap set up by the Vigilance, allegedly on constant complaints raised as to the conduct of Booking Clerks at the booking offices in Kottayam. It was alleged that there was rampant re-selling of tickets proffered for cancellation, without effecting such cancellation. On a ticket being cancelled, the Railways deduct a marginal portion of it for clerkage and by re-sale, the Booking Clerks appropriate this amount for themselves, was the complaint raised.** **6. One John (examined as SW-1 in the inquiry), a Head Constable with the Railway Police Force [“RPF” for short], was the decoy who was entrusted with the job of purchasing three tickets and subsequently cancelling them.** **- 5 -** **OP(CAT).25 of 2014** **He was accompanied by one Ravi (examined as SW-2), who witnessed the purchase and cancellation of the tickets by John. On purchase, the tickets were produced before the Vigilance Team, the leader of which was one Pramod Kumar, who was examined as SW-5 in the inquiry. On production of the tickets, before the Vigilance Officers, they copied out the numbers, but was disabled from getting a photocopy for reason of there being no photo-copiers available. The purchase of tickets was for an amount of Rs.181/-, which was later cancelled through the very same booking counter by John, accompanied by Ravi. Later, one of the tickets cancelled was re-sold to one Maya Muraleedharan, an unconnected passenger, who had given a statement to the Vigilance Officer of the purchase effected from counter No.3 which was manned by a lady, produced as Exhibit S6 in the inquiry, which is the crucial document relied on.** **7. The Vigilance team is said to have obtained the statement of Maya Muraleedharan in the presence of one Ulahannan (who was examined in the inquiry as SW4). Ulahannan was specifically summoned for the purpose of witnessing the statement and also issuing a free ticket in lieu of the surrender of that issued to her from the booking counter; which is one of the tickets cancelled by** **- 6 -** **OP(CAT).25 of 2014** **John. Ulahannan is said to have issued the free ticket, witnessed the statement and made an endorsement thereon, affixing his signature; as per the Statement of Allegations forming the basis of the charges alleged.** **8. Later, one Suseela Varghese (SW3) who was residing in the Railway Quarters was summoned, at which point John and Ravi (SW1 and SW2) again were called in; who narrated the sequence of events till the cancellation. Suseela Varghese is said to have signed on the document after verifying from Ulahannan that the statement was given by the passenger. The Vigilance team had also conducted a check of the booking counter and verified the cash details; both personal and of the Railways available in the custody of the CSE. The CSE was also instructed to cancel two of the three tickets; one of which was admittedly defaced and the other kept as such in the counter. It was on these facts that the charge-sheet was issued and the inquiry conducted. The Inquiry Officer found both the charges of resale and the system having not been updated, effecting the cancellation were proved. The disciplinary authority concurred with the same, imposing the punishment of compulsory retirement. The CSE filed an appeal, which was unsuccessful. In the O.A. filed before the Tribunal, as was** **- 7 -** **OP(CAT).25 of 2014** **noticed, it was found that there was no evidence to prove the first charge of re-sale of the cancelled ticket. The second charge of one of the two cancelled tickets, recovered from the counter having not been defaced and both not cancelled in the system was found against the CSE. It was directed that a re-look on the penalty be carried out, for reason of the graver offence having been found to be not proved.** **9. The Tribunal relied on the following circumstances to find the allegation of re-sale of cancelled ticket to be not proved. The cash available with CSE, both her personal cash which was declared and also of the Railway's were deficient. There was no excess cash found, which would have been the situation if a ticket cancelled was re-issued. The person who is said to have purchased the cancelled ticket was not produced before the Inquiry Officer. The statement of the passenger, as seen from Exhibit S6, was couched with abbreviations, normally used by a Railway personnel and not a member of the public. The free ticket issued to the passenger who allegedly purchased the cancelled ticket was issued by the Vigilance party and not by Ulahannan. Ulahannan contrary to the Statement of Allegations, did not admit to having written** **- 8 -** **OP(CAT).25 of 2014** **the name of the passenger in the counterfoil of the free ticket. Ulahannan also categorically deposed, as SW4 that he had not witnessed the statement of the passenger. He merely deposed that there was a lady along with the Vigilance team and he did not know her status of a passenger. Annexure A10 clearly showed that the CSE had cancelled many other tickets in the system during the time when she was in the counter from noon onward; which establishes her conduct otherwise.** **10. We also notice the document at Exhibit S6 marked in the inquiry, which is available at page 50 of the paper-book, enclosed in Annexure A1. It is the statement of one Maya Muraleedharan, the passenger who was issued with the cancelled ticket, addressed to CVI/MAS, which abbreviation would obviously have been recorded on the directions of the Vigilance team. This by itself does not raise any suspicion, according to us. However, Ulahannan (SW4) had signed the said document with the recital “This statement is given in my presence”, which was retracted from. There is a further endorsement in Exhibit S6 by Suseela Varghese (SW3) to the effect that “enquired Shri Ulahannan that the statement was given by a passenger”. In her deposition, which is at page 68 of the paper-book,** **- 9 -** **OP(CAT).25 of 2014** **Suseela Ulahannan stated, on cross examination that she did not see the lady passenger giving any statement. She had also stated in cross-examination that the endorsement in Exhibit S6 is made by her as dictated by the Vigilance team. Ulahannan while deposing as SW4, denied he having witnessed the lady passenger giving the statement and he having obtained the signature of the lady passenger in the EFT foil. The signature of the lady passenger in the EFT foil must have been obtained by the Vigilance Inspectors was his categorical statement. It is well established that Suseela Varghese was not present when the statement was recorded, from the fact that the endorsement of Ulahannan shows it to be at 23.00 hrs, while even in the Statement of Allegations Suseela Varghese is stated to have been summoned only at 23.15 hours.** **11. The CSE had a case that only two tickets were surrendered for cancellation; both of which were recovered from the counter, one in a defaced manner. She also had a contention that it was the Sabarimala season and there was heavy rush of pilgrims which inhibited her from effecting cancellation in the system immediately after refunding the money. As was noticed by us, Exhibit S6 statement of the alleged lady passenger is the clinching evidence to bring** **- 10 -** **OP(CAT).25 of 2014** **home the guilt on the first charge of re-sale of a cancelled ticket. The alleged lady passenger was not examined at the enquiry despite the Railways having her full address. There was not even an attempt made to summon the lady passenger to the enquiry. At the enquiry, Exhibit S6 was sought to be proved by examining Ulahannan (SW4), who is said to have witnessed the document and Suseela Varghese (SW3), who made an endorsement in the document after verifying from Ulahannan that the statement was recorded in his presence. Suseela Varghese admitted that she had not witnessed the recording of the statement, but had made the endorsement after having verified with Ulahannan. She also stated that the endorsement in Exhibit S6 was dictated by the Vigilance. Ulahannan, on the other hand, denied having witnessed the statement, quite contrary to the endorsement made. In such circumstances, it has to be found that Exhibit S6 document is not proved. Neither the executant nor the person who made the endorsement therein spoke of the proper execution by the executant, a lady passenger.** **12. In this context, we cannot but notice that the Vigilance team, who had collected the re-sold cancelled ticket from the lady passenger,had not directed the CSE to** **- 11 -** **OP(CAT).25 of 2014** **cancel that ticket in the system. After the lady passenger was accosted, the Vigilance team entered the booking counter and found 2 out of 3 tickets cancelled by John; one in a defaced manner from the counter itself. The 3[rd] ticket said to have been cancelled and re-sold; remained with the Vigilance is the contention of the CSE; which is plausible given the fact that the resale was not witnessed by anyone except the Vigilance Inspectors. This validates the stand taken by the CSE that only two tickets were presented for cancellation and the other ticket was retained by the Vigilance team to accuse her of a far graver charge of re-sale of a cancelled ticket, especially since the re-sale and surrender of the same, which was supposed to be proved by Exhibit S6, remains unsubstantiated. We perfectly agree with the Tribunal that the allegation in the first charge has not been proved in the enquiry. The evidence of SW1 and SW2 is to the effect that there was a booking of three tickets and a cancellation of the same. They also witnessed that immediately on cancellation, the tickets were not defaced, physically. They did not witness the resale or the statement by the passenger issued with the cancelled ticket, its surrender or the issuance of a free ticket. The two other witnesses also denied having witnessed any of** **- 12 -** **OP(CAT).25 of 2014** **these activities, of resale or what transpired thereafter.** **13. We also specifically rely on the circumstance of there being no excess cash found from the CSE. From the time of subject booking, cancellation, alleged re-sale, surrender of the resold ticket and recovery of two other tickets from the counter; the CSE has not moved away from the counter or there is no evidence to that end. If the third ticket was presented for cancellation by the decoy and was again re-sold to a genuine passenger, then there would have been excess cash, though minimal, in the counter. The Railway's cash was in deficit of Rs.7/-. The CSE also did not have any personal cash in excess of what she had declared at the commencement of her duty. The circumstances are one of absolutely no evidence to prove the charge.** _**A.Rajapandian & Degala Suryanarayana**_ **are both decisions which laid down the jurisdiction of the Tribunal and the High Court in matters of disciplinary enquiry; the contours of judicial review. It is fairly well established that in judicial review there cannot be any re-appreciation of evidence and the Court cannot act like an appellate authority. If there is some material in the enquiry held, as to prove the misconduct alleged and if any reasonable man would arrive at the conclusion of guilt on the totality** **- 13 -** **OP(CAT).25 of 2014** **of the circumstances revealed in evidence, then its not for the Court, exercising powers of judicial review, to pick holes and substitute its view over that of the disciplinary authority.** **14.** _**Degala Suryanarayana**_ **held so in para 11 and quoted from a Constitution Bench decision, which quote succinctly speaks on the jurisdiction exercised:** **“11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived** **- 14 -** **OP(CAT).25 of 2014** **at by the departmental authority, the same has to be sustained. In** _**Union of India v**_ **.** _**H.C.Goel**_ **AIR 1964 SC 364 the Constitution Bench has held:** **“[T]he High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.”** ## **[ underlining by us for emphasis ]** **This precisely is the exercise carried out by the Tribunal and by us. We find no evidence to substantiate the resale or reissue of the cancelled ticket. We find no infirmity in the Tribunal having set aside the order of the disciplinary authority and appellate authority on that count.** **15. We agree with the Tribunal that the second charge has been proved; but, however, only because one of the tickets remained un-defaced in the counter. We agree with the Tribunal that the overall circumstance of the CSE having effected many cancellations in the system on that particular day itself should be a mitigating circumstance in her favour. It has also to be noticed that Sabarimala season commences every year in mid-November. The alleged** **- 15 -** **OP(CAT).25 of 2014** **incident occurred on 21.11.2007 when the Kottayam Railway Station, nearest to the Hill Shrine, is subjected to heavy rush of pilgrims travelling to and from the temple. There being no dishonest intent found from the over all circumstances, definitely the punishment of compulsory retirement would be one having absolutely no nexus with the gravity of offense. We perfectly agree with the Tribunal that the same should be considered afresh by the disciplinary authority.** **16. One other omission we notice is the non compliance of Rule 9(21) of the Railway Servants (Discipline & Appeal) Rules.** _**G.Ratnam**_ **held that nonadherence to Paras 704 and 705 of the Vigilance Manual, which lays down the manner in which a trap is laid through a decoy, would not vitiate the departmental proceedings.** _**Moni Shankar**_ **trod a different path and noticing** _**G.Ratnam**_ **held that it was never intended that the Vigilance Manual could be given a complete go-bye and if there is total violation of the guidelines, coupled with other factors the Court could examine whether the proof adduced in the enquiry is sufficient. We are not concerned with that question here but are bound by the observations in** _**Moni Shankar**_ **as to the mandatory nature of Rule 9(21). The** **- 16 -** **OP(CAT).25 of 2014** **Enquiry Officer ought to have questioned the CSE on all the aspects in the evidence, which according to the E.O leads him to believe as to the guilt of the CSE. The submission of the CSE that she would submit a written brief does not absolve the liability of the E.O to put forth the specific evidence against the CSE and question her on those. If she chooses even then to proffer a written brief then so be it. The written brief then could be considered but only after the inculpatory circumstances are put to the CSE. Here, the major misconduct alleged, having been found by us to be not proved, we do not think the proceedings should recommence from that stage. We have also considered the explanation of the CSE and taken note of the mitigating circumstances. Sending the matter to the Enquiry Officer would be an empty formality. What is left to be considered is only the punishment for the offence which stood proved, which the authority would consider, keeping in mind the principles of proportionality as propounded in** _**Moni Shankar.**_ **17. We direct such consideration on the aspects as noticed by us herein above including the mitigating circumstances pointed out by us. We make it clear that the respondent/applicant/CSE would be entitled to immediate reinstatement, if not crossed the age of superannuation and** **- 17 -** **OP(CAT).25 of 2014** **should be disbursed the entire pay and allowance for the period she was kept out of employment by reason of the punishment imposed, on allegations which were not supported by any evidence; deducting any amounts paid as pension, if any paid.** **We dismiss the Original Petition (CAT), with no** **order as to costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **Vku/-** **- 18 -** **OP(CAT).25 of 2014** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 COPY OF THE OA NO.490/12 ON THE FILES OF THE CAT (ERNAKULAM BENCH).** - **ANNEXURE A7 TRUE COPY OF PENALTY ADVICE NO. CON/J/V/533/SMA DATED 17.08.2011 ISSUED BY THE 3RD REPONDENT** - **ANNEXURE A9 TRUE COPY OF APPELLATE ORDER NO. CON/J/V/533/SMA DATED 16.12.2012 ISSUED BY THE 2ND RESPONDENT** - **ANNEXURE A1 A TRUE COPY OF CHARGE MEMORANDUM BEARING NO. CON/J/V/533/SMA DATED 26.03.2010 ISSUED BY THE 3RD RESPONDENT ALONG WITH ENCLOSED EXHIBITS S1, S6, S7, S8 & S13** - **ANNEXURE A2 A TRUE COPY OF THE APLICANT'S STATEMENT OF DEFENCE DATED 10.04.2010** - **ANNEXURE A3 A TRUE COPY OF THE INQUIRY PROCEEDINGS HELD ON 5TH AUGUST, 25TH NOVEMBER, & 26TH NOVEMBER 2010** - **ANNEXURE A4 A TRUE COPY OF WRITTEN BRIED DATED 23.12.2010 SUBMITTED BY THE APPLICANT** - **ANNEXURE A5 A TRUE COPY OF INQUIRY REPORT FORWARDED UNDER 3RD RESPONDENT'S LETTER NO. CON/J/V/533/SMA DATED 27.01.2011** - **ANNEXURE A6 A TRUE COPY OF APPLICANT'S REPRESENTATION DATED 07.06.2011** - **ANNEXURE A8 A TRUE COPY OF APPEAL DATED 31.08.2011 TO THE 2ND RESPONDENT** - **EXHIBIT P2 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN OA 490/2012 ON THE FILES OF THE CAT (ERNAKULAM) BENCH.** **ANNEXURE R1 TRUE COPY OF THE TICKETS NO. 232217167 (EXT. S2) & NO. 232217169 (EXHIBIT S4) ANNEXURE R2 A TRUE COPY OF RELEVANT PORTION OF PARA 307 OF VIGILANCE MANUAL.** **- 19 -** **OP(CAT).25 of 2014** - **ANNEXURE R3 A TRUE COPY OF EXHIBIT S5 OF THE PROCEEDINGS.** - **ANNEXURE R4 A TRUE COPY OF EXHIBIT S1 STATEMENT GIVEN BY SMT. SUSHEELA VARGHESE ANNEXED ALONG WITH ANNEXURE A1 CHARGE MEMORANDUM** - **ANNEXURE R5 TRUE COPY OF EXHIBIT S18 STATEMENT ANNEXURE R6 TRUE COPY OF EXHIBIT S15 STATEMENT ALONG WITH ENGLISH TRANSLATION** - **ANNEXURE R7 TRUE COPY OF EXHIBIT S 16 STATEMENT EXHIBIT P3 COPY OF THE REJOINDER FILED BY THE APPLICANT IN OA 490/2012.** - **ANNEXURE A10 TRUE COPY OF THE DAILY STATEMENT OF CANCELLED TICKETS AT KOTTAYAM, ON 21.11.2007** - **ANNEXURE A11 TRUE COPY OF CABINET SECRETARY'S LETTER DATED 15.03.1990 CIRCULATED UNDER RAILWAY BOARD'S LETTER NO. E/D & A/90/GS 1-3 DATED 07.05.1990** - **EXHIBIT P4 COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 490/2012.** - **ANNEXURE R8 TRUE COPY OF RAILWAYS BOARD'S LETTER NO.E(G)82-LL2-2(A) DATED 4.6.1992.** - **EXHIBIT P5 COPY OF THE REJOINDER TO THE ADDITIONAL REPLY STATEMENT FILED BY THE APPLICANT IN OA 490/2012.** - **EXHIBIT P6 COPY OF THE MA NO.749/2013 ALONG WITH 2ND ADDL.REPLY STATEMENT FILED BY THE RESPONDENTS IN OA 490/2012.** - **EXHIBIT P7 COPY OF THE ORDER DTD.21.8.2013 IN OA 490/2012 OF THE CAT (ERNAKULAM BENCH).** **[TRUE COPY]**