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CASE NO.: Appeal (civil)  1729 of 2008

PETITIONER: Moni Shankar

RESPONDENT: Union of India and another

DATE OF JUDGMENT: 04/03/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 1729 OF 2008 (Arising out of SLP (C) No. 8183 of 2007)

S.B. SINHA, J.

1.      Leave granted.

2.      This appeal is directed against the judgment and order dated 8th  March, 2006 passed by a Division Bench of the High Court of Bombay in  Writ Petition No. 3748 of 2003 whereby it allowed the writ petition filed by  the respondents herein from the judgment and order dated 6th January, 2003  passed by the Central Administrative Tribunal, Mumbai Bench, in O.A. No.  283 of 2002.

3.      Appellant herein was working as Booking Supervisor with the Central  Railways.  He was transferred to Chatrapati Shivaji Terminus in December,  1997.  On or about 17th April, 1998 a decoy check was laid in the course  whereof he was found to have overcharged a sum of Rs.5/- on the ticket  issued to a decoy  passenger.  A departmental proceeding was initiated  wherein the following imputations of charges were drawn :- "Article - I: He overcharged the decoy passenger by Rs.  5/- (Rs. Five) on issue of one M/E Ticket No. 8148090  Ex. CSTM to Bhubaneshwar. Article - II: He was found having Rs. 199/- (Rs. One  hundred ninety nine) short in his railway cash. Article - III: He declared his private cash in computer  that the monetary ceiling for the satisfactory staff,  without being certified by the supervisor in the private  cash register."

4.      In the said departmental proceeding, appellant inter alia raised a  contention as regard to non compliance of paragraphs 704 and 705 of the  Railway Vigilance Manual (the Manual) in the manner in which the   purported trap was laid.   It was furthermore contended that provisions of  Rule 9(21) of the Railway Servant Discipline and Appeal Rules have not  been complied with.   

5.      Appellant was found guilty of the said charges in the said  departmental proceeding.  A penalty of reduction to the lowest scale of pay  fixing his pay at the lowest level at Rs.3,200/- for a period of five years was  imposed.  An appeal and consequently a revision preferred by him were  dismissed by the Appellate Authority as also the Revisional Authority by  orders dated 31st May, 2000 and 7th November, 2000 respectively.

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6.       He filed an O.A. before the Central Administrative Tribunal, Mumbai  Bench.  It was registered as O.A. No. 283 of 2002.   

By reason of a judgment and order dated 6th January, 2003, the same  was allowed opining that in terms of paragraphs 704 and 705 of the Manual,  the trap ought to have been laid in presence of the independent witness or  Gazetted Officer and as only one Head Constable of the RPF and not two  Gazetted Officers had been assigned to witness the trap and furthermore the  Head Constable was at a distance of more than 30 meters, he could not have  heard the conversations by and between the appellant and the decoy  passenger and thus the charges could not be said to have been proved.  It  was moreover found that the decoy passenger neither counted the money at  the window nor protested that the balance amount was less by Rs.5/-, and  in  fact admitted to have left the window and came back half an hour later with  the Vigilance Inspector which pointed out loopholes in the trap.  It was  pointed out that the appellant was not examined by the Enquiry Officer in  terms of the provisions of Rule 9(21) of the Railway Servants (Discipline  and Appeal) Rules (the Rules), which is mandatory in nature.  It was also  held that there was no evidence as regards the charge of returning Rs.5/- less  to the complainant.  

7.      Aggrieved by and dissatisfied with the said judgment of the Tribunal,  the respondents filed a writ petition before the High Court.  By reason of the  impugned judgment dated 8th March, 2006 the said writ petition was allowed  by the High Court opining that the Central Administrative Tribunal in its  original order having entered into the realm of evidence and re-appreciated  the same, exceeded its jurisdiction.  

8.      Mr. A.K. Sanghi, learned counsel appearing on behalf of the appellant  would submit that :- 1.      The High Courted committed a serious error in so far as it  failed to take into consideration that the Railways Authorities  were required to follow paragraphs 704 and 705 of the Manual  scrupulously.  2.      Appellant having not examined any defence witness, he should  have been examined in terms of Rule 9(21) of the Rules, which  being mandatory in nature, non-compliance thereof would  vitiate the entire proceeding.  3.      The shortage in cash having repaid by the appellant, no charge  could have been framed in that behalf. 4.      The findings of the High Court that the appellant was found to  have been in possession of an excess sum of Rs.5/- was beyond  record.   

9.      Dr. R.G. Padia, learned Senior Counsel, appearing on behalf of the  respondents, on the other hand, would contend :

1.      That finding of fact having been arrived at by the disciplinary  authority, the same should not have been interfered with by the  Tribunal particularly when some evidences have been led on  behalf of the department.   2.      The High Court has rightly opined that paragraphs 704 and 705  of the Manual pertaining to the manner in which the trap could  be laid, contain only administrative instructions and are, thus,  not enforceable in a court of law. 3.      Since there was sufficient compliance of Rule 9(21), the  impugned judgment should not be interfered with.   

10.     We may at the outset notice that with a view to protect innocent  employees from such traps, appropriate safeguards have been provided in  the Railway Manual.   

Paragraphs 704 and 705 thereof read thus :- "704. Traps (i) ...

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(ii) ... (iii) ... (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 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 S.P., S.P.E., 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  S.P.E. 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) ... Departmental Traps For Departmental traps, the following instructions in  addition to those contained under paras 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 gazetted officers are  not available immediately, the services of non-gazetted  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 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 G.C. 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 G.D. notes to the decoy will be prepared for  making over the G.C. notes to the delinquent employee  on demand. This memo should also contain signatures of

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decoy, witnesses and Investigating Officer/Inspector. The  independent witnesses will take up position at such a  place where from 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 s a witness in  case the accused refuses to sign the recovery memo, and  sealing of the notes in the envelope. (c) XXX (d) XXX"

11.     The trap was laid by the members of the Railways Protection Force  (RPF).    It was a pre-arranged trap.  It was, therefore, not a case which can  be said to be an exceptional one where two gazetted officers as independent  witnesses were not available.  

12.     Indisputably the decoy passenger was a constable of RPF.  Only one  Head Constable from the said organization was deputed to witness the  operation.  The number of witness was, thus, not only one, in place of two  but also was a non gazetted officer.  It was a pre-planned trap and thus even  independent witnesses could have also been made available.   

13.     When the decoy passenger purchased the ticket, the Head Constable  was at a distance of 30 meters.  The booking counter was a busy one.  It  normally remains crowded.  Before the Enquiry Officer, the said decoy  passenger accepted that he had not counted the balance amount received  from the appellant after buying the ticket  It was only half an hour later that  the Vigilance Team arrived and searched the appellant.   

14.     While we say so we must place on record that this Court in the Chief  Commercial Manager, South Central Railway, Secunderabad and Ors.  vs.  G. Ratnam and Ors. : (2007) 8 SCC 212 opined that non-adherence of the  instructions laid down in Paras 704 and 705 of the Vigilance Manual would  not invalidate a departmental proceeding, stating :-  "17.    We shall now examine whether on the facts and  the material available on record, non-adherence of the  instructions as laid down in paragraphs 704 and 705 of  the Manual would invalidate the departmental  proceedings initiated against the respondents and  rendering the consequential orders of penalty imposed  upon the respondents by the authorities, as held by the  High Court in the impugned order. It is not in dispute that  the departmental traps were conducted by the  investigating officers when the respondents were on  official duty undertaking journey on trains going from  one destination to another destination. The Tribunal in its  order noticed that the decoy passengers deployed by the  investigation officers were RPF Constables in whose  presence the respondents allegedly collected excess  amount for arranging sleeper class reservation  accommodation etc. to the passengers. The transaction  between the decoy passengers and the respondents was  reported to have been witnessed by the RPF Constables.

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In the facts and circumstances of the matters, the  Tribunal held that the investigations were conducted by  the investigating officers in violation of the mandatory  Instructions contained in paragraphs 704 and 705 of the  Vigilance Manual, 1996, on the basis of which inquiries  were held by the Enquiry Officer which finally resulted  in the imposition of penalty upon the respondents by the  Railway Authority. The High Court in its impugned  judgment has come to the conclusion that the Inquiry  Reports in the absence of joining any independent  witnesses in the departmental traps, are found inadequate  and where the Instructions relating to such departmental  trap cases are not fully adhered to, the punishment  imposed upon the basis of such defective traps are not  sustainable under law. The High Court has observed that  in the present cases the service of some RPF Constables  and Railway staff attached to the Vigilance Wing were  utilised as decoy passengers and they were also  associated as witnesses in the traps. The RPF Constables,  in no terms, can be said to be independent witnesses and  non- association of independent witnesses by the  investigating officers in the investigation of the  departmental trap cases has caused prejudice to the rights  of the respondents in their defence before the Enquiry  Officers.  18.     We are not inclined to agree that the non- adherence of the mandatory Instructions and Guidelines  contained in paragraphs 704 and 705 of the Vigilance  Manual has vitiated the departmental proceedings  initiated against the respondents by the Railway  Authority. In our view, such finding and reasoning are  wholly unjustified and cannot be sustained."

It has been noticed in that judgments that Paras 704 and 705 cover the  procedures and guidelines to be followed by the investigating officers, who  are entrusted with the task of investigation of trap cases and departmental  trap cases against the railway officials.  This Court proceeded on the premise  that the executive orders do not confer any legally enforceable rights on any  persons and impose no legal obligation on the subordinate authorities for  whose guidance they are issued.  15.     We have, as noticed hereinbefore, proceeded on the assumption that  the said paragraphs being executive instructions do not create any legal right  but we intend to emphasise 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.  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 Court 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 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 \026 preponderance of probability.  If  on such evidences, 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 :   (2006) ) 3 SCC 276  and Coimbatore District Central Cooperative Bank vs.  Coimbatore Distarict Central Cooperative Bank Employees Association and  another : (2007) 4 SCC 669 2007.   16.     We must also place on record that on certain, aspects even judicial

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review of fact is permissible. E v Secretary of State for the Home  Department  : [2004] 2 W.L.R. 1351.

17.     We have been taken through the evidence of Shri S.B. Singh by Dr.  Padia.  Significantly the examination-in-chief was conducted by the Enquiry  Officer himself.  As the proceeding was for imposition of a major penalty,  why the Presenting Officer, who must have been engaged by the department,  did not examine the witness is beyond any comprehension.  Even the  minimum safeguard in regard to the manner in which examination-in-chief  was conducted has not been preserved.  The questions posed to him were  leading questions.  It is interesting to note that in answer to a question as to  whether he had asked the appellant to return Rs.5/- , he not only answered in  the negative but according to him the said statement was made by him as  instructed by the Vigilance Inspector.  He although proved Exhibits P/1 and  P/2 which were written in English language but also stated that he did not  know what had been written therein   Strangely enough, the Enquiry Officer  started reexamining him.  Even in the re-examination he accepted that he  could not read and write English.  

18.     The Enquiry Officer had put the following questions to the appellant:-

"Having heard all the PWs, please state if you plead  guilty? Please state if you require any additional  documents/witness in your defence at this stage?  Do you  wish to submit your oral defence or written defence  brief?  Are you satisfied with the enquiry proceedings  and can I conclude the Enquiry?"

19.     Such a question does not comply with Rule 9(21) of the Rules.  What  were the circumstances appearing against the appellant had not been  disclosed.   

20.     The High Court, on the other hand, as indicated hereinbefore,  proceeded to opine that the Tribunal committed a serious illegality in  entering into the realm of evidence.   It is permissible in law to look to the  evidence for the purpose of ascertaining as to whether the statutory  requirement had been complied with or not.

21.     Dr.  Padia would submit that the jurisdiction of the Tribunal was  limited and as some evidence was adduced, the Tribunal should not have  interfered with the order of punishment imposed upon the appellant.   

       The Tribunal was entitled to consider the question as to whether the  evidence led by the department was sufficient to arrive at a conclusion of   guilt or otherwise of the delinquent officer.   While re-appreciation of  evidence is not within the domain of the Tribunal, an absurd situation  emanating from the statement of a witness can certainly be taken note of.   The manner in which the trap was laid, witnessed by the Head Constable and  the legality of enquiry proceeding were part of decision making process and,  thus, the Tribunal was entitled to consider the same.  

       It was only for the aforementioned purpose that paragraphs 704 and  705 of the Manual have been invoked.  It may be that the said instructions  were for compliance of the Vigilance Department, but substantial  compliance thereof was necessary, even if the same were not imperative in  character.  A departmental instruction cannot totally be ignored.  The  Tribunal was entitled to take the same into consideration alongwith other  materials brought on records for the purpose of arriving at a decision as to  whether normal rules of natural justice had been complied with or not.  

21.     The High Court unfortunately even without any material on record  held that some excess amount was found from the appellant which itself was  sufficient to raise a presumption that it had been recovered from the decoy

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passenger. No such presumption could be raised.  In any event there was no  material brought on records by the department for drawing the said  inference. The High Court itself was exercising the power of judicial review.   It could not have drawn any presumption without there being any factual  foundation therefor.   It could not have taken judicial notice of a fact which  did not come within the purview of Section 57 of the Indian Evidence Act. 22.     We must also place on record that even Dr. Padia has taken us through  the evidence of one of the witnesses. 23.     The High Court has only noticed paragraph 704 of the Manual and not  the paragraph 705 thereof.  Paragraph 705 was very relevant and in any  event both the provisions were required to be read together.   

       The High Court, thus, committed a serious error in not taking into  consideration paragraph 705 of the Manual.           The approach of the High Court, in our opinion, was not entirely  correct.  If the safeguards are provided to avoid false implication of a  railway employee, the procedures laid down therein could not have been  given a complete go bye.   24.     It is the High Court who posed unto itself a wrong question. The onus  was not upon the appellant to prove any bias against the RPF, but it was for  the department to establish that the charges levelled against the appellant.  25.     The High Court also committed a serious error in opining that sub- rule (21) of Rule 9 of the Rules was not imperative.  The purpose for which  the sub-rule has been framed is clear and unambiguous.  The railway servant  must get an opportunity to explain the circumstances appearing against him.   In this case he has been denied from the said opportunity.   

26.     The cumulative effect of the illegalities/irregularities were required to  be taken into consideration to judge as to whether the departmental  proceeding stood vitiated or not. 27.     For the aforementioned purpose, the manner in which the enquiry  proceeding was conducted was required to be taken into consideration by the  High Court.  The trap was not conduced in terms of the Manual ; the  Enquiry Officer acted as a Prosecutor and not as an independent quasi  judicial authority ; he did not comply with Rule 9(21) of the Rules,  evidently, therefore, it was not a case where the order of the Tribunal  warranted interference at the hands of the High Court.   27.     The impugned judgment, therefore, cannot be sustained.  It is set aside  accordingly and that of the Tribunal restored.  The appeal is allowed with  costs.  Counsel fee assessed at Rs.25,000/-.