Union of India and Others v. V.S. Radhakrishnan

_**OP(CAT).4689/13**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** **OP (CAT).No.4689 OF 2013(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 531/2011 DATED 22-05-2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600003. 2 CHIEF COMMERCIAL MANAGER HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI600003.** **3 ADDITIONAL DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY, TRIVANDRUM DIVISION, THIRUVANANTHAPURAM-695014.** - **4 SENIOR DIVISIONAL COMMERCIAL MANAGER SOUTHERN RAILWAY, TRIVANDRUM DIVISION, THIRUVANANTHAPURAM-695014.** **BY ADVS. SRI.V.K.MOHAMMED YOUSUF,SC,RAILWAYS SRI.A.DINESH RAO, SC, RAILWAYS** ## **RESPONDENT/S:** **V.S.RADHAKRISHNAN S/O. K.VASUDEVAN, RETIRED SENIOR COMMERCIAL CLERK, KOCHUVELI, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT "SAI VAS' VPI 1/156, SANKARAN NAIR ROAD, KUNDAMON BHAGOM, PERUKAVU P.O., THIRUVANANTHAPURAM-695573.** 2 _**OP(CAT).4689/13**_ **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.T.N.SREEKALA** ## **OTHER PRESENT:** **SMT.KALA.T.GOPI** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(CAT).4689/13**_ 3 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------O.P(CAT).No. 4689 of 2013 ----------------------------------------------Dated this the 18[th] day of November, 2019 ## **JUDGMENT** ## _**Arun, J.**_ The Union of India and the Railway Establishment are aggrieved by Exhibit P3 order of the Central Administrative Tribunal, Ernakulam Bench. By the impugned order the Tribunal allowed the original application filed by the respondent herein, set aside the penalty of compulsory retirement imposed on him and directed reinstatement with all consequential benefits, including pay and allowances during the period he was kept out of service. It was also ordered that, if the respondent had crossed the age of superannuation, he shall be deemed to have served till the age of superannuation and accordingly paid the pay and allowances and his terminal benefits, based on the last pay he would have drawn. _**OP(CAT).4689/13**_ 4 ## 2. The facts in brief are as follows; The original application was filed by the respondent challenging Annexures A1 to A3. Annexure A1 being the penalty advise dated 9.1.2009, imposing the penalty of compulsory retirement from service with effect from 14.1.2009. Annexures A2 and A3 are concurrent orders of dismissal by the appellate and revisional authorities. The charges levelled against the respondent, which culminated in the penalty order were; _“Shri V. S. Radhakrishnan, Sr.CC/KCVL while working as Delivery clerk at PO/TVC on 26-10-2005 had failed to maintain absolute integrity, show devotion to duty and acted in a manner of unbecoming of a railway servant. In that:_ _'(1) He demanded Rs.30/- for his personal gains while effecting delivery of parcels under Parcel Way Bill Nos. 244024, 244025 and 244026 all dated 25-10-2005 ex ERS to TVC and collected the amount through a contract labourer._ _(2) In addition to the subject amount of Rs.30/-, he had collected Rs.740/- for effecting delivery of the parcels through the said contract labourer for his personal gains"._ _Thus he violated Rule 3.1 (i), (ii) & (iii) of Railway services (Conduct) Rules 1966._ _`````````````````````` (K. Manoj)_ _```````````````````````````Sr.Diyl.Connl.Manager”_ _**OP(CAT).4689/13**_ 5 3. As per the statement of allegations, on 26.10.2005, two decoy constables, one masquerading as customer and the other as a bystander, were deputed to collect parcels from the parcel office at the Trivandrum Central Station while the respondent was on duty as Parcel Clerk. The respondent directed the decoy customer to pay an amount of Rs.30 to a contract labourer named Usman, who was standing in the vicinity. On being accosted and searched, Usman was found to be in possession of Rs.770/-, including the Rs.30/- he had received from the decoy customer. Usman gave Annexure A5 contemporaneous statement imputing that he had collected the amount of Rs.30/- from the decoy customer as directed by the respondent and had altogether collected an amount of Rs.400/- from different parties. 4. The respondent denied the charges and a departmental enquiry was conducted. In the enquiry seven witnesses were examined to prove the charges, but Usman, the prime witness, was not examined. On conclusion of enquiry, report was submitted finding the first article of charge, i.e., demand and collection of Rs.30/- towards the personal gains of the respondent, while effecting delivery of parcel article, to have _**OP(CAT).4689/13**_ 6 been proved. It was found that evidence was insufficient to prove the 2[nd] article of charge that, the amount of Rs.770/- found from the person of Usman was collected by him from different parties as directed by the respondent. Based on the proven charge it was found that the respondent had violated Rule 3.1(i),(ii)&(iii) of the Railway Servants Conduct Rules. On receipt of the enquiry report, the disciplinary authority disagreed with the findings of the enquiry officer with respect to the second article of charge and after issuing a memorandum of disagreement to the respondent, imposed the penalty of compulsory retirement. 5. The order imposing penalty and the orders in appeal and revision were challenged before the Tribunal. The orders were assailed on the ground that the procedure prescribed for trap cases, spelt out in the Railway Vigilance Manual and held to be mandatory by the Honourable Supreme Court in _**Moni Shankar v. Union of India and Another**_ [(2008) 3 SCC 484], were not followed. The second ground of challenge was that the disciplinary authority had disagreed with the findings in the enquiry without any cogent reason. The third challenge was against the reliance placed on the statement of Usman without _**OP(CAT).4689/13**_ 7 examining him, which, it was submitted, had caused immense prejudice to the respondent. The other challenge was that noncompliance of the requirement of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968 ('the Rules', for short), had vitiated the enquiry. 6. As regards the challenge based on _**Moni Shankar**_ , the department contended that the procedure for trap cases prescribed under the Vigilance Manual was only directory and not mandatory. In support of this contention, reliance was placed on the decision of the Honourable Supreme Court in _**Chief Commercial Manager, South Central Railway, Secunderabad and Others v. G. Retnam and Others**_ [(2007) 8 SCC 212]. In reply to the contention regarding prejudice, due to the non examination of Usman, it was submitted that the statement of Usman implicating the respondent, having been proved in the enquiry by examining the two persons who had witnessed Usman writing the statement, Usman's nonexamination had not prejudiced the respondent. With respect to the contention regarding the non-compliance of Rule 9(21) of the Rules, it was submitted that in spite of being provided with an _**OP(CAT).4689/13**_ 8 opportunity of examining himself, the respondent had expressed his unwillingness and had requested for permission to submit a written statement, which was granted. 7. The Tribunal, relying on _**Moni Sankar,**_ and its own order in O.A.No.155 of 2003 held that, failure to adhere to the procedure relating to the trap cases had weakened the case of the respondents to a great extent. The Tribunal found that the non-examination of Usman, the crucial witness, had caused prejudice to the applicant. The observations of the Honourable Supreme Court on the aspect of prejudice, in _**Canara Bank v. Devassi Das**_ [(2003) 4 SCC 557] was relied on. It was also held that the attempt to prove the statement of Usman by examination of two persons, who are alleged to have witnessed Usman writing the statement, could at best be treated only as hearsay evidence and that the contents of the statement of Usman cannot be proved in that manner. The Tribunal also held that the disagreement of the disciplinary authority to the findings in the enquiry report was without cogent reasons. Finally it was held that the mandatory requirement under Rule 9(21) of the Rules, of questioning the delinquent employee on the _**OP(CAT).4689/13**_ 9 circumstances appearing against him in the evidence tendered before the enquiry officer not having been complied with, the decision of the disciplinary authority cannot stand judicial scrutiny. Based on the said findings, the order imposing punishment, as well as the orders of the appellate and revisional authorities were set aside and the original application allowed. The Tribunal declared the applicant to be entitled to all such benefits as if there was no disciplinary proceeding against him. 8. The challenge against the order of the Tribunal in the original petition is mainly based on the decision of a Division Bench of this Court _**Chandrakumar N. v. Union of India and Others**_ [2016 (4) KHC 857] **,** wherein, after adverting to _**Moni Shankar,**_ the Division Bench had held that the procedural irregularities in setting up a trap would not vitiate the disciplinary proceedings process in all circumstances. With respect to the finding regarding prejudice caused due to the non examination of Usman, the challenge is on the ground that the decision not to examine Usman was accepted by the applicant. As regards the finding on non compliance of Rule 9(21) of the Rules, the contention is that on a specific question put by the enquiry officer _**OP(CAT).4689/13**_ 10 as to whether he wished to submit oral defence or written defence in brief, the applicant had answered in the affirmative and hence there was substantial compliance of the Rule. 9. Heard Sri.Dinesh Rao, learned Standing Counsel for the Railways and Smt.T.N.Sreekala, learned counsel for the applicant. 10. The primary challenge being based on _**Chandrakumar,**_ the decision was scrutinised carefully. True, that in _**Chandra Kumar**_ the Division Bench, after adverting to _**Retnam and Moni Sankar**_ , distinguished the decision in _**Moni Sankar**_ on facts. One of the distinguishing features highlighted by the Division Bench was that in _**Moni Sankar**_ the Honourable Supreme Court had observed that the incriminating evidence brought out on record was not put to the delinquent employee therein and his explanation sought, as mandated in Rule 9(21) of the Rules. In that context, we take a look at the decision in _**Moni Sankar**_ , especially with regard to the manner in which the Apex Court has dealt with violation of Rule 9(21). 11. In _**Moni Sankar's**_ case _**the enquiry officer had**_ put the following questions to the delinquent employee, before closing the evidence; _**OP(CAT).4689/13**_ 11 _“Having heard all the PWs, please state if you plead guilty? Please state if your require any additional documents/witness in your defence at this stage? Do you wish to submit you oral defence or written defence in brief? Are you satisfied with the enquiry proceedings and can I conclude the enquiry?”_ The Apex Court held that such questions do not comply with Rule 9(21) since the circumstances appearing against the appellant had not been disclosed. 12. Now let us have a look at the manner in which the enquiry officer in the instant case had put questions to the respondent at the conclusion of the enquiry. The questions were as follows: _“So far you have heard the evidence of administrative witnesses. Please do you have any defence witnesses/documents to be examined on your behalf? At this stage do you admit/deny the charges? Would you like to be examined yourself as a witness in your own case or indicate the way of your defence?”_ 13. We have no hesitation to hold that the questions above do not comply with the requirements under Rule 9(21), which mandate as under: _“The inquiring authority may, after the Railway Servant closes his case, and shall, if the railway servant_ _**OP(CAT).4689/13**_ 12 _has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him.”_ 14. The perfunctory manner in which the mandatory questions were put by the enquiry officer shows that it was mere lip service and not with the intention of providing an opportunity to the delinquent employee to explain the circumstances appearing against him in the evidence; which were never put to him. The non-compliance of the mandatory requirement, by itself is sufficient to invalidate the disciplinary proceedings and the consequential actions. 15. The other patent violation is with regard to nonexamination of Usman, who figures as the most crucial witness for the Department. The specific allegation is that Usman is the conduit through whom the bribe was collected by the respondent. The most important evidence to connect the respondent with Usman and thereby establish the allegation of collection of bribe, is 'W5', the statement alleged to have been written by Usman on being accosted by the vigilance officials. Surprisingly, Usman was not examined to prove his statement or the contents therein. _**OP(CAT).4689/13**_ 13 Instead, SW1 and SW2, who, it is claimed, had witnessed the preparation of the statement by Usman alone were examined. Even if it is accepted that SW1 and SW2 had witnessed Usman preparing a statement, they are not competent to testify as to the contents of the statements. Added to this, is the fact that Usman himself had retracted from his earlier statement and had later submitted another statement wherein he stated that he had not collected money from SW1 or others as directed by the delinquent employee. In such circumstances, the acceptance of the first statement of Usman (S5) without examining him and thereby denying an opportunity to the respondent to cross examine him, had definitely prejudiced the respondent in his defence. 16. The vital defects in the enquiry cuts at the root of the disciplinary proceedings as was rightly found by the Tribunal. In such circumstances, we deem it unnecessary to consider the question as to whether strict compliance of the instructions contained in the Vigilance Manual was required or not. The enquiry itself being vitiated, the question as to whether the manner in which the disciplinary authority disagreed with the _**OP(CAT).4689/13**_ 14 findings in the enquiry was proper or not also becomes irrelevant. In the result, we find no reason to interfere with the impugned order of the Tribunal and consequentially the original petition is dismissed. No order as to costs. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgs_ **x** _**OP(CAT).4689/13**_ 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 TRUE COPY OF PENALTY ADVICE NO.V/VO/CON./40 DATED 09/01/2009 ISSUED BY THE 4TH RESPONDENT DISCIPLINARY AUTHORITY.** - **ANNEXURE A2 TRUE COPY OF ORDER NO.V/VO/CON./40 DATED 23/06/2010 ISSUED BY THE 3RD RESPONDENT APPELLATE AUTHORITY.** - **ANNEXURE A3 TRUE COPY OF ORDER NO.P(A)86/2010/500 DATED 11/01/2011 ISSUED BY THE 2ND RESPONDENT REVISIONAL AUTHORITY.** - **ANNEXURE A4 TRUE COPY OF CHARGE MEMORANDUM BEARING NO.V/VO/CON.040 DATED 16/01/2007 BY THE 4TH RESPONDENT DISCIPLINARY AUTHORITY.** - **ANNEXURE A5 TRUE COPY OF STATEMENT DATED 26/10/2005 OF SHRI USMAN, THE CONTRACT LABOURER.** - **ANNEXURE A5 (A) TRANSLATION OF ANNEXURE A5. ANNEXURE A6 TRUE COPY OF STATEMENT DATED 28/10/2005 OF SRI. K.N. MANAJUNATHA.** - **ANNEXURE A6(A) TRANSLATED VERSION OF ANNEXURE A6 AS SERVED ON THE APPLICANT BY THE RESPONDENT.** - **ANNEXURE A7 TRUE COPY OF STATEMENT DATED 28/10/2005 OF SRI. K. BHASKAR NAIDU.** - **ANNEXURE A7(A) TRUE COPY OF TRANSLATION OF ANNEXURE A7 AS SERVED BY THE RESPONDENTS.** - **ANNEXURE A8 TRUE COPY OF PROCEEDINGS DATED 26/10/2005 DRAWN UP BY VIGILANCE TEAM AT 16.50 HRS ON 26/10/2005.** - **ANNEXURE A9 TRUE COPY OF RELEVANT PAGES OF THE PROCEEDINGS OF THE INQUIRY CONDUCTED BY THE INQUIRY OFFICER.** - **ANNEXURE A10 TRUE COPY OF INQUIRY REPORT DATED 29/07/2008.** _**OP(CAT).4689/13**_ 16 |**ANNEXURE A11**|**TRUE COPY OF DISAGREEMENT BEARING**| |---|---| ||**NO.V/VO/CON./40 DATED 16/10/2008 OF THE 4TH**| ||**RESPONDENT.**| |**ANNEXURE A12**|**TRUE COPY OF STATUTORY APPEAL DATED**| ||**185/02/2011 OF THE APPLICANT SUBMITTED TO**| ||**THE 3RD RESPONDENT APPELLATE AUTHORITY.**| |**ANNEXURE A13**|**TRUE COPY OF REVISION PETITION DATED**| ||**31/07/2010 OF THE APPLICANT.**| |**ANNEXURE A14**|**TRUE COPY OF DECISION IN MONI SHANKAR VS.**| ||**UNION OF INDIA, (2008) 1 SCC (L&S) 919.**| |**ANNEXURE R1**|**TRUE PHOTOGRAPH OF APPLICATION DATED**| ||**15/01/2009 OF THE APPLICANT.**| |**EXHIBIT P1**|**TRUE COPY OF THE OA.NO. 531/2011 FILED**| ||**BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL,**| ||**ERNAKULAM BENCH.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.**| ||**531/2011 FILED BEFORE THE CENTRAL**| ||**ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER OF THE CENTRAL**| ||**ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH**| ||**DATED 22ND MAY 2013 IN OA NO. 531/2011.**|