Union of India & Others v M Muthiah S/o Muthuvel

**OP (CAT).No.141 OF 2015(Z) 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **OP (CAT).No.141 OF 2015(Z)** ## **AGAINST THE ORDER IN OA 291/2012 DATED 14-06-2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY**| ||**HEAD QUARTERS OFFICE, PARK TOWN PO, CHENNAI 600003**| |**2**|**THE ADDITIONAL DIVISIONAL RAILWAY MANAGER**| ||**SOUTHERN RAILWAY, MADURAI DIVISION, MADURAI 625016**| |**3**|**THE SENIOR DIVISIONAL COMMERCIAL MANAGER**| ||**SOUTHERN RAILWAY, MADURAI DIVISION, MADURAI 625016**| |**4**|**THE DIVISIONAL COMMERCIAL MANAGER**| ||**SOUTHERN RAILWAY MADURAI DIVISION, MADURAI 625016**| |**5**|**THE ASSISTANT COMMERCIAL MANAGER**| ||**SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM**| ||**695014**| |**6**|**THE SENIOR DIVISIONAL COMMERCIAL MANAGER**| ||**SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM**| ||**695014**| |**7**|**THE CHIEF COMMERCIAL MANAGER**| ||**SOUTHERN RAILWAY, HEAD QUARTERS, OFFICE, PARK TOWN**| ||**PO, CHENNAI 600003**| ||**BY ADVS.**| ||**SMT.SUMATHY DANDAPANI (SR.)**| **OP (CAT).No.141 OF 2015(Z) 2** ## **SRI.B.RAJESH, SC, RAILWAYS** ## **RESPONDENT:** **M MUTHIAH S/O.MUTHUVEL, SENIOR COMMERCIAL CLERK, SOUTHERN RAILWAY/BOOKING OFFICE, TIRUNELVELI RS & PO, PERMANENT ADDRESS, NO.29/7-A2, MM COMPOUND, BEACH ROAD,NAGARCOIL, TAMIL NADU 629002** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.KALA T.GOPI R1 BY ADV. SRI.G.SHYAM RAJ R1 BY ADV. SMT.S.SYAMALA DEVI** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03-03-2020, THE COURT ON 10-03-2020 DELIVERED THE FOLLOWING:** ## **K.VINOD CHANDRAN & P.V.KUNHIKRISHNAN, JJ** ------------------------------------------------------------------ ---------- O.P(CAT) No.141 of 2015 ------------------------------------------------------------------ ---------Dated this the 10[th] day of March, 2020 ## **JUDGMENT** ## **P.V.Kunhikrishnan, J** Petitioners are the respondents in OP(CAT) No.141 of 2015 on the file of the Central Administrative Tribunal, Ernakulam Bench (for short Tribunal) and the respondent herein is the applicant in the above Original Application (parties are mentioned according to their rank before the Tribunal). 2. At the time of filing the Original Application, the applicant was working as Senior Commercial Clerk under the Railway. He was subjected to a trap case by projecting a decoy customer for transportation of a motor bike through railway pass, based on a source ## **OP (CAT).No.141 OF 2015(Z) 4** information that some of the staff working at PO/NCJ are demanding and collecting more money than the actual railway dues for booking two wheelers . A departmental check was conducted at PO/NCJ on 6.11.2007. For the purpose of check, one R.Ramasamy of NCJ and Sri.Chidambaranathan HTNC/MVN were deputed as a customer and independent witness. Ramasamy was asked to book a two wheeler bearing registration No.TN74E 9497, Hero Honda Deluxe for onward transportation at PO/NCJ duly filling up a forwarding note along with a photostat copy of RC book of the above vehicle to the officer concerned. He was also handed over a sum of Rs.450/- and instructed to utilize this currency to meet the railway dues and for any specific demand for more money by the staff of parcel office. Chidambaranathan was asked to with go along Sri.R.Ramasamy to witness the transaction and over hear **OP (CAT).No.141 OF 2015(Z) 5** the conversation between Ramasamy and parcel office staff and inform the vigilance, waiting near station premises. Ramasamy was also informed regarding the packing condition and insurance charges and instructed to pay as demanded by the parcel office staff and he was informed that the approximate freight charge is Rs.210/for booking the above two wheeler. A proceedings was drawn incorporating the details. 3. Thereafter then two, decoy and witness, proceeded to the parcel office and concluded the booking. Chidambaranathan informed the Vigilance Officer that the parcel office staff have demanded and collected Rs.270/and issued receipt for Rs.255/- only. The Vigilance Office decided to conduct the check. After mutual introduction, M.Muthiah, Senior CC/NCJ, who was on duty on the parcel booking counter was subjected to check. He was asked to produce the railway cash and his private cash **OP (CAT).No.141 OF 2015(Z) 6** available with him. He produced Rs.296/- as his personal cash and Rs.22,517/- as his railway cash. His total transaction up to the time of check was Rs.22,488/and thus he had an excess cash of Rs.29/-. He was asked to remit the excess cash and he did accordingly. When M.Muthiah was questioned regarding the excess cash and whether he had booked any two wheeler, he stated that he had booked two wheelers and he had demanded Rs.270/- for the booking of two wheeler against PWBNo.952148 and collected Rs.300/- and returned Rs.30/- as balance. But he has issued receipt for Rs.255/- only. The initial proceedings was shown to M.Muthiah and it was signed by him. 4. Based on the above trap, it was found by the authority that there was a shortage of Rs.24/- in personal cash and excessive Rs.29/- in the railway cash. The explanation given by the applicant was that, as no floating ## **OP (CAT).No.141 OF 2015(Z) 7** cash was made available to him, in order to ensure that the customers are not made to wait for balance, in three or four cases he had utilized his personal cash and in so far as the case of the decoy customer, the fair being Rs.255/-, on receipt of Rs.300/- the applicant returned Rs.40/- and asked decoy passenger to pay Rs.5/- and get back the balance of Rs.10/-. Since the applicant had demanded and accepted Rs.15/- in excess of the fair for transportation of the bike, he was kept under suspension followed by issue of charge. The charges are extracted here under: “Sri. M.Muthiah, Sr.CC/CVP, while working as Sr.CC/NCJ on 06.11.07, has committed serious irregularities and failed to maintain absolute integrity, show devotion to duty and acted in a manner unbecoming of a Railway servant in that, (1) He had demanded and collected Rs.270/from Sri.R.Ramasamy of NCJ and booked a Hero Honda deluxe with registration No.TN 74E 9497 and issued receipt No.952148 for Rs.255/- only and thereby he retained Rs.15/- ## **OP (CAT).No.141 OF 2015(Z) 8** for his personal gains. (2) He had excess cash of Rs.29/- in his railway cash. Thus, Sri.Muthiah, Sr.CC/CVP, while working as Sr.CC/NCJ had contravened the provision of Rule 3.1(i), (ii) and (iii) of the Railway Services (Conduct)Rules, 1966.” 5. The applicant denied the charges. Hence, an enquiry followed which resulted in Annexure-A11 report of the Enquiry Officer. As per Annexure-A11 enquiry report, the Enquiry Officer held that, first charge is not proved, but the second charge is proved. The applicant was supplied with the copy of the same, against which he has represented vide Annexure-A12. The disciplinary authority, differed from the finding of the Enquiry Officer on first charge also and held that, both the charges remained proved and imposed the penalty as under: Considering the nature of offence committed by the charged employee, I, in exercise of powers conferred under Rule 9 and 10(5) of Railway Servants(Discipline & Appeal) **OP (CAT).No.141 OF 2015(Z) 9** Rules, 1968, impose a penalty of “Reduction to lower post for a period of Three years” on the charged employee. He will be fixed on the pay which he is drawing now. Accordingly, Shri.M.Muthiah is reduced from the post of Sr.CC in pay band Rs.520020200 + GP Rs.2800/- to the post of Commercial Clerk in pay band Rs.520020200 + GP Rs.2000/- for a period of three years w.e.f 01.12.2010. On expiry of the penalty- (1) he will be restored back to his original post ie, Sr.CC on the Grade pay from which he was reduced; and (2) he will retain his original seniority in the category of Sr.CC”. 6. The applicant preferred an appeal vide AnnexureA15 raising several contentions. The appellate authority as per Annexure-A2, modified the penalty imposed by the disciplinary authority. Relevant portion is extracted here under: In terms of Rule 22 of the Railway Servants (D&A) Rules 1968, I have **OP (CAT).No.141 OF 2015(Z) 10** considered your appeal dated 28.12.10/6.1.11 along with connected records in detail. You were imposed with a penalty of Reduction to lower post ie, from Sr.CC in pay band Rs.5200-2000+ GP Rs.2800 to CC in pay band Rs.520020200+GP Rs.2000 for a period of 3 w.e.f 1.12.2010 the years by Disciplinary Authority (DCM/MDU)holding you guilty of the charges. In your case, the deposition of Shri R.Ramasamy (SW1) is very important. In answer to Qn.No.28 & 29, he had stated that you have asked Rs.270/- as freight charge. The SW1 has stated that the charged employee had not demanded any extra money i.e, other than Rs.270/-, as freight charge of the motor cycle. But when the SW1 had paid Rs.300, you had paid back Rs.30/- as balance. Up to this point, there appears to be no malafide intention on the part of the charged employee. However, in the later part of the transaction ie, after handing over the Way Bill for Rs.255/-, you should have paid back the balance of Rs.15/- also. The SW1 also failed to check the way bill and demand the balance of Rs.15/-. Hence your integrity and honesty is questionable. Though the amount is ## **OP (CAT).No.141 OF 2015(Z) 11** only Rs.15/-, you should have paid it back. The integrity and honesty in whatever degree should never be compromised. Considering the situation under which the transaction is occurred, the undersigned is inclined to take a sympathetic view and propose to modify the penalty of “Reduction to lower post for a period of 3 years w.e.f 1.12.2010” to that of “Reduction of pay by 2 stages for a period of 24 months (NR)” w.e.f.1.12.2010, ie, the date of punishment as earlier imposed by the Disciplinary Authority. Your appeal has been disposed of by the undersigned (Sr.DCM/MDU) and the Revisionary Authority in this case is DRM/MDU. Revision Petition, if any, should be submitted in writing within 45 days from the date of receipt of this advice. You are to acknowledge receipt of this advice. 7. The applicant filed a revision as evident by Annexure-A18 and that was also dismissed as per Annexure-A3. Hence, the Original Application is filed challenging Annexures-A1, A2 & A3 which are the orders of the disciplinary authority, appellate authority and **OP (CAT).No.141 OF 2015(Z) 12** revisional authority. After hearing both sides, the Tribunal allowed the Original Application declaring that the order of the disciplinary authority is illegal and unjust and consequently the same was quashed. 8. Challenging the order dated 14.6.2013 in OA No. 291 of 2012 of the Tribunal, the respondent filed OP(KAT) 98 of 2014 before this court. This court closed the above OP(KAT) reserving right to the respondent to seek appropriate remedies before the Tribunal itself. Accordingly, the respondent filed a Review Petition as RA/180/00022/14 in O.A.No. 291 of 2012. The Tribunal after hearing both sides, dismissed the Review Petition as evident by Ext P6 order holding that, there is nothing to review the order dated 14.6.2013 in O.A.No.291 of 2012. Now the present OP(CAT) is filed challenging Exts P4 final order and P6 order in the Review Petition. 9. Heard the learned counsel for the petitioners and ## **OP (CAT).No.141 OF 2015(Z) 13** the respondent. 10. On going through the pleadings and arguments, the Tribunal as per Ext P4 order, framed two issues for consideration, which are extracted here under: a) Whether the inquiry involving trap was conducted as per the procedure and if not whether the same is fatal to the very conducting of the inquiry. b) Whether non availability of opportunity to rebut the point of disagreement prior to imposition of penalty is fatal to the case and if so, the effect thereof. 11. The Tribunal after analyzing all the evidence and documents found that the orders of the disciplinary authority, appellate authority and revisional authority are unsustainable and accordingly, the Original Application was allowed. The counsel for the petitioners/respondent submitted that, their contentions are not considered properly by the Tribunal. The counsel for the respondent/applicant submitted that the order of the **OP (CAT).No.141 OF 2015(Z) 14** Tribunal is a well considered order and there is nothing to interfere in it. According to him, non communication of the tentative finding arrived at by the disciplinary authority disagreeing with the inquiry officer is fatal to the entire proceedings. He also contended that the procedure adopted in respect of trap cases should be as per the guidelines in para 704 & 705 of the Indian Railway Vigilance Manual. He reiterated the contention that the applicant ought to have afforded opportunity before the disciplinary authority came to the conclusion based on his views on the finding of the Enquiry Officer. The counsel heavily relied on the decision of the Apex Court in **Moni Shankar v Union of India & another (2008)3 SCC 484.** 12.After hearing both sides, according to us, there is nothing to interfere with the order passed by the Tribunal. The first question to be decided is whether the enquiry involving trap was conducted as per the procedure and if ## **OP (CAT).No.141 OF 2015(Z) 15** not, whether the same is fatal to the very conduct of the enquiry. Para 704 and 705 of Indian Railway Vigilance Manual deals about the procedures to be followed in the trap cases: Paras 704 and 705 thereof read thus: “704. _Traps_ .—( _i_ )-( _iv_ ) * * * _v_ ( ) When laying a trap, the following important points have to be kept in view: _a_ ( ) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused. ( _b_ ) The transaction should be within the sight and hearing of two independent witnesses. _c_ ( ) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of. ( _d_ ) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the Department or the police and are men of status, considering the status of ## **OP (CAT).No.141 OF 2015(Z) 16** the accused. It is safer to take witnesses who are government employees and of other departments. ( _e_ ) After satisfying the above conditions, the investigating officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the SP, SPE, is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the SPE or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered. ( _vi_ )-( _vii_ ) * * * 705. _Departmental traps_ .—For departmental traps, the following instructions in addition to those contained under Para 704 are to be followed: _a_ ( ) The investigating officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two ## **OP (CAT).No.141 OF 2015(Z) 17** gazetted officers are not available immediately, the services of nongazetted staff can be utilised. All employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or branch. The Head of Branch should detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action. (b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the investigating officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the GC notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the GD notes to the decoy will be prepared for making over the GC notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and investigating officer/Inspector. The ## **OP (CAT).No.141 OF 2015(Z) 18** independent witnesses will take up position at such a place wherefrom they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the investigating officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope. * * *” ( _c_ )-( _d_ ) 13. In _**Moni Shankar**_ 's case (supra) the Hon'ble Supreme Court held that the violation of the guidelines together with other factors could be taken into ## **OP (CAT).No.141 OF 2015(Z) 19** consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official . Relevant portion is extracted here under: 16. We have, as noticed herein before, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasis that total violation of the guidelines together with other factors could 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 official. 17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which ## **OP (CAT).No.141 OF 2015(Z) 20** meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See _**State of U.P v. Sheo Shanker Lal Srivastava and Coimbatore District Central**_ **.** _**Coop.Bank v. Employees Assn**_ ) 14. We have to consider the present case based on the principle laid down by the Supreme Court in _**Moni Sharankar**_ 's case . Admittedly, this is a case in which the charge against the applicant is mainly to the effect that he retained Rs.15/- for his personal gains after collecting Rs.270/- for booking a vehicle for transportation. The booking charges is Rs.255/- and the applicant received Rs.300/- and he returned only Rs.40/-. It is also the case **OP (CAT).No.141 OF 2015(Z) 21** of the establishment that the applicant had excess cash of Rs.29/- in his railway cash. It is to be noted that the total transaction up to the time of the check was Rs.22,488/and according to the department the applicant had an excess of Rs.29/- . The defence of the applicant before the Enquiry Officer is that, the applicant prepared railway receipts for Rs.255/- and handed over to Ramasamy, the decoy along with the balance of Rs.40/- and requested him to bring Rs.5/- to get back Rs.10/-. What has come out in evidence is only that Rs.300/- was paid by the decoy for which railway receipt of Rs.255/- was issued and balance paid of Rs. 30/-. There is no allegation that the Charge Sheeted Employee had sought any excess money over that required for the booking. Against the said statement of the decoy and witness the Charge Sheeted Employee claimed that he returned Rs. 40/- and asked the decoy to bring Rs. 5/- and get Rs.10/- balance. It is ## **OP (CAT).No.141 OF 2015(Z) 22** to be noted that, as on the time of the trap, the applicant was having Rs.22,517/- as his railway cash which was in excess and there was shortage in his declared personal cash. 15. The finding of the Enquiry Officer on first charge as per Annexure-A11 is extracted here under; 5.2.21. In view of the reasons mentioned above, the evidence of SW-1 and SW-2 cannot be relied upon. There was no demand of money by the CO at the time of booking the two wheeler and also both the witnesses never bothered about the balance amount due to them. Considering the entirety of the case, I relieve the employee from this charge. In the light of the above finding, the disciplinary authority erred in reversing the finding of the Enquiry Officer, which is based on evidence and documents produced in the enquiry. The trap was not properly laid and there was nothing in thee transaction that there was an attempt to seek illegal gratification. Therefore, according to us, the **OP (CAT).No.141 OF 2015(Z) 23** first charge itself will not stand. 16. Moreover, there are procedural irregularities along with the above factors. As per paragraph 704 of the Railway Manual, when laying a trap, two or more independent witnesses must hear the conversation. Admittedly, in this case there is only one witness was deputed along with R.Ramasamy, the customer. It should be pointed out that the trap was a pre-planned one. In such circumstances, there is no difficulty in getting two or more independent witnesses as insisted in paragraph 704 (v)(a) of the Railway Manual. As per paragraph 704(v)(d) of the Railway Manual, the witnesses selected should be responsible witness who have not appeared as a witness in earlier cases of the department, or the police and are men of status, considering the status of the accused. It is also stated that it is safer to take witness who are Government ## **OP (CAT).No.141 OF 2015(Z) 24** employee and of other departments. As per the Vigilance Manual, the decoy selection should be done very carefully. It is imperative that decoy should not have any relationship with either of the independent witness. In this case, the decoy is the brother of Sri.Chidambaranathan, who is the alleged witness. It is also to be noted that, as per Railway Manual, every railway employee should participate in the decoy check as independent witness. But, the independent witness cannot be from the station concerned where the trap is conducted nor from a nearby station. As per paragraph 705 of the Railway Manual for departmental traps additional instructions to those contained under paragraph 704 are to be followed. As per para 705(a), two gazetted officers from railway should act as independent witness as far as possible. Only if gazetted officers are not available, the service of nongazetted staff can be utilized. From a conjoint reading of ## **OP (CAT).No.141 OF 2015(Z) 25** para 704 & &705 of the Railway Manual it is clear that, the procedures mentioned therein are not just formalities, but mandatory. In this case, _**Moni Shankar**_ 's case, is squarely applicable and the departure from the mandatory provisions vitiates the trap laid. 17. Similarly, whenever the disciplinary authority disagrees with the enquiry authority on any charge, then before it records its finding on such charge, tentative reasons for such disagreement should be given to the delinquent officer to give him an opportunity to represent against the tentative view. In **Punjab National Bank v Kunj Behari Mishra (1998)7 SCC 84)** the Supreme Court held as under: “..........whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its ## **OP (CAT).No.141 OF 2015(Z) 26** findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 18. In Annexure-A19, the railway board has also emphasized the need to forward the tentative opinion of the disciplinary Authority, and the said order reads as under:- “5. It has also been decided that where the Inquiry Authority holds a charge as not provided and the disciplinary authority takes a contrary view, the reasons for such disagreement must be communicated, in brief, to the charged officer along with the report of inquiry so that he charged officer can make an effective representation. This procedure would require the Disciplinary Authority to first examine the report as per the laid down procedure and formulate its tentative **OP (CAT).No.141 OF 2015(Z) 27** views before forwarding the Report of Inquiry to the Charged Officer.” 19. In this case, admittedly, the disciplinary authority before reversing the finding of the Enquiry Officer on charge No.1 of the Enquiry Report, did not forward his tentatative findings to the applicant or give him an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Enquiry Officer. Therefore, on this ground also, the findings of the disciplinary authority are to be held unsustainable. 20. Regarding the second charge which is proved according to the Enquiry Officer, disciplinary authority, appellate authority and revisional authority, the Tribunal rejected the same on the following grounds. 16. Though the enquiry officer has held that the second charge stands proved a mere shortage or excess of cash would not be construed that the applicant has committed the misconduct. Provision exists for ## **OP (CAT).No.141 OF 2015(Z) 28** depositing the excess money or making up the deficiency. This means that there could be certain inadvertent errors resulting in availability of excess money or shortage of money. Again in the instant case the applicant had stated that there had been no floating money made available to him on the day which would be utilized for the purpose of paying the balance amount especially when they are in smaller denomination. The utilization of personal cash which resulted in shortage of Rs.29 in the personal cash, for the purpose of discharging the customers without making them wait for a long time for small changes, cannot be ruled out as the excess money found in the railway cash is comparable to the deficiency in personal cash. Preponderance of probability is well in favour of the applicant rather than in favour of the prosecution. Thus the holding of charge number two as proved also is questionable insofar as it relates to misconduct. At best it could be an act which is not based on any specific rule. The mischief aimed at in the charge sheet does not exist. It cannot be said to be an act of lack of devotion to duty. 21. We find no reason to interfere with this specific **OP (CAT).No.141 OF 2015(Z) 29** finding of the Tribunal. In the light of the above findings, we are of the opinion that there is nothing to interfere in the order passed by the Tribunal and hence, the OP(CAT)141 of 2015 is dismissed. No costs. **K.VINOD CHANDRAN, JUDGE** **P.V.KUNHIKRISHNAN, JUDGE** cms xxx **OP (CAT).No.141 OF 2015(Z) 30** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1 P1:TRUE COPY OF THE OS.NO.291/2012 ON THE FILE OF THE CAT (ERNAKULAM BENCH)** **EXHIBIT P2 P2:TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN OA.NO.291/2012** **EXHIBIT P3 P3::TRUE COPY OF THE REJOINDER IN OA.NO.291/2012 OF CAT (ERNAKULAM BENCH)** **EXHIBIT P4 P4:TRUE COPY OF THE ORDER DATED 16.11.2012 IN OA.291/2012 OF CAT (ERNAKULAM BENCH)** **EXHIBIT P5 P5:TRUE COPY OF THE JUDGMENT IN OP(CAT) NO.98/2014 DATED 02.07.2014** - **EXHIBIT P6 P6:TRUE COPY OF THE ORDER DATED 09.07.2015 IN RA.NO.22/2014 OF CAT (ERNAKULAM BENCH)** - **ANNEXURE-A1 A TRUE COPY OF PENALTY ADVICE BEARING NO.U/Z 57/237 DATED 19-11-2010 ISSUED BY THE 4TH RESPONDENT** **ANNEXURE-A2 A TRUE COPY OF APPELLATE ORDER BEARING NO. U/Z 57/237 DATED 18-072011 ISSUED BY THE 3RD RESPONDENT** - **ANNEXURE-A3 A TRUE COPY OF REVISIONAL ORDER BEARING NO. U/Z 57/237 DATED 21-012012 ISSUED BY THE 2ND RESPONDENT** - **ANNEXURE-A4 A TRUE COPY OF THE ORDER BEARING NO.V/VO/NCJ/CC/07 DATED 19-11-2007 ISSUED BY THE 5TH RESPONDENT** - **ANNEXURE-A5 TRUE COPY OF THE APPEAL DATED 06-122007 ADDRESSED TO THE SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION** ## **OP (CAT).No.141 OF 2015(Z) 31** **ANNEXURE-A6** - **A TRUE COPY OF THE ORDER BEARING NO.V/VO/NCJ/CC/07 DATED 25-02-2008 ISSUED BY THE 5TH RESPONDENT** - **ANNEXURE-A7** - **TRUE COPY OF THE OFFICE ORDER NO.07/2008/CC DATED 13-02-2008 ISSUED BY THE DIVISIONAL RAILWAY MANAGER(P),TRIVANDRUM** - **ANNEXURE-A8 A TRUE COPY OF THE MEMORANDUM BEARING NO.U/Z.57/237 DATED 23-06-2008 ISSUED BY THE 4TH RESPONDENT** - **ANNEXURE-A9 A TRUE COPY OF THE PROCEEDINGS OF THE INQUIRY CONDUCTED ON DIFFERENT DATES** - **ANNEXURE-A10 A TRUE COPY OF THE DEFENCE BRIEF DATED 07-10-2009 ALONG WITH ITS ENCLOSURES SUBMITTED BY APPLICANT** - **ANNEXURE-A11 A TRUE COPY OF INQUIRY REPORT DATED 23-11-2009 SUBMITTED BY K.MOORTHY, SENIOR ENQUIRY OFFICER** - **ANNEXURE-A12 A TRUE COPY OF LETTER DATED 02-022010, SENT BY APPLICANT ADDRESSED TO THE 4TH RESPONDENT** - **ANNEXURE-A13 A TRUE COPY OF THE REPRESENTATION DATED03-03-2010 SUBMITTED BY APPLICANT ADDRESSED TO THE 7TH RESPONDENT** - **ANNEXURE-A14 A TRUE COPY OF THE REMINDER DATED 1608-2010 SUBMITTED BY APPLICANT TO THE 4TH RESPONDENT** - **ANNEXURE-A15 A TRUE COPY OF THE APPEAL DATED 2812-2010 SUBMITTED BY APPLICANT ADDRESSED TO THE 3RD RESPONDENT** - **ANNEXURE-A16 A TRUE COPY OF THE REVISION DATED 0309-2011 ADDRESSED TO THE DIVISIONAL RAILWAY MANAGER, MADURAI** - **ANNEXURE-A17 A TRUE COPY OF THE LETTER BEARING U/Z 57/237 DATED 26-09-2011 ADDRESSED TO** **OP (CAT).No.141 OF 2015(Z) 32** ## **THE REVISIONAL AUTHORITY** ## **ANNEXURE-A18** **A TRUE COPY OF THE APPEAL DATED 1410-2011 ADDRESSED TO THE 2ND RESPONDENT** RESPONDENTS EXTS NIL cms /True copy/ P.S.to Judge