COURT CASE ON DAR

APPM/N.A.I.R

O.A. (No. 14/2001 )CAT, Jabalpur. • In this case, the Railway servant concerned had been

sanctioned leave for two days only but he remained

absent for about 3-1/2 months without intimation.

• At the time of joining, he produced medical certificate

from railway doctor.

• Still the fact remains that he had not given any

intimation about his illness and thus remained

unauthorized absent.

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ACTION OF RAILWAY ADMINISTRATION

• 1 charge sheet has issued for unauthorized absence from

duty

• 2 Penalty was imposed for the charges on leaving H Q without

prior permission

• 3. Appeal filed against the DA’s decision

• 4 penalty which was imposed by DA has been upheld in appeal

• 5 filed a case before CAT

• 6 Disciplinary authority passed fresh orders in the case bringing

out the correct charges.

• 7 Same was confirmed by A A

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• The Hon’ble Tribunal vide orders dated 6.5.2003

allowed the O.A. and set aside the orders passed in the

disciplinary case of the applicant with consequential

benefits to him.

The Hon’ble Tribunal inter alia held that :

• There is no evidence that the applicant was

unauthorized absent because leave for 2 days was

sanctioned to him by the Station Master and further

period was covered by medical certificates issued by

railway medical officer

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• The penalty was not imposed on the basis of charges sheet

• The disciplinary authority was not competent to review its own orders and as such the subsequent orders of the disciplinary authority are without jurisdiction

• iv) Revised order was passed during pendency of the O.A. and was thus not valid

• The disciplinary authority passed a cryptic order and to compound the matter also cited in the penalty order the allegations which were different from the charge sheet.

• These orders should also be self explained, reasoned and speaking as has already been emphasized on a number of occasions in the past.

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• As regards review of orders, it is clarified that an order, if found to be containing some patent error, can be reviewed by the same authority who had passed the original order.

• Some of the circumstances in which the orders can be reviewed and fresh orders passed are given below

• when order are in fructuous• where the authority who passed the order was

not competent to impose the penalty

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• where there is a patent error in the original order e.g. the date or reference number or name/designation etc. was shown incorrectly in the order

• an order which has been challenged before a court of law can be reviewed only with the permission of the court

Example- railway vigilance case

Dr. R.K. Verma, Son Of Sri Prem Shanker Verma

vs Union Of India,

Through General Manager on 8 October, 2010

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH

ALLAHABAD

Brief history of the case

VIGILANCE TRAP CASE Dr. was working as DMO and accepted Rs 200/

for sick certificate for 10 days 1st December 2001 in the Health Unit - failed2nd trap on 8 December 2001 witness a) decoy Sh. Amardan Singh (patient)b) Sh Om Prakash- Safaiwala working under

DMO and c) Sh. Mani Ram- Carriage cleaner under

CDO/Delhi- d) Rs 200/ found in a diary kept in almirah

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D) other witness Sh. Arvind Kumar, Gr- DCHARGES

• A) Violation of Service Conduct Rule 3(1) i,ii,iii• B) inquiry ex parte – C.O on study leave• C) penalty – dismissal from service in 2009• d) Appeal also turndown

Vigilance manualPara 704-705 of vigilance manual

(now para 306and 307 of 2006) which says that :-• (a) two Gazetted Officers from Railways are to

act as independent witnesses as far as possible• (b) The independent witnesses must hear the

conversation, which should establish that the money was being passed as illegal gratification to meet the defence.

• (c) The transaction should be within the sight and hearing of two independent witnesses.-

-• (d) 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.

• (e) 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.

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• In addition, the said guidelines also state the

independent witnesses will take such a position

that they could 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.

COURT OBSERVATION• There is no mention about money having been

demanded.• Again, the money was not paid to the applicant

but to one Shri Om Prakash, Safaiwala.• Shri Arvind Kumar had not stated that he had

seen Om Prakash handing over the money to the applicant i.e.DMO

• Thus, the spinal requirement of two Gazetted Officers and their actual hearing of demanding and accepting the money by the applicant is conspicuously missing in this case.

-• One of the guidelines is, 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 - this ASPECT is also not there in this case.

• Notes had not been soaked in chemicals, in the event of the applicant handling the same, his hand would have turned pink on dipping in water. That has also not been done.

-• Nor was the money recovered from the CO i.e. of

the applicant.DECISION OF COURT

• The impugned order dated 25-08-2009 is hereby

quashed and set aside.

• The applicant shall be reinstated in service and his

seniority as earned by him prior to the passing of

the impugned order shall be kept in tact.

• He is entitled to earn notional increment for the

periods he has been out of service.

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• However, he is not entitled to any arrears of

salary.

• Respondents are directed to pass suitable

orders for reinstatement and for fixation of his

salary from the date he is reinstated within a

period of three months from the date of receipt

of the certified copy of this order.

Central Administrative Tribunal - DelhiHari Ram

vs Union of India

That Hari Rm demanded and accepted of Rs.6/-

on 30 January, 2009 NO.1562/2006

The facts of the case in brief The applicant, while working as a Commercial Clerk

(Booking Clerk) in Northern Railway, Bikaner Division, DA issued a major penalty charge sheet issued on 25.06.2001 for the following charges:

That he demanded and accepted of Rs.300/- from the decoy passenger against the tariff fare of Rs.294/- for issue of two tickets of 2nd Mail/Express from DLI to ABU Road for his personal gain.

Through out the check he adopted a non-cooperative attitude inasmuch as he did not sign

-despite charging Rs.6/- excess from the decoy

and recovery of all the decoy money from the

Government cash of Shri Hari Ram,

he produced Government cash of Rs.6599/-

against Rs.6602/- as per DTC Book, i.e. Rs.3/-

short, which indicated that he created artificial

shortage in cash to hide his misdeed of

overcharging.

Contention of applicant

• punishment (penalty of reduction to two lower stage in same time scale,

i.e., from the stage of Rs.4475/- to the stage of Rs.4305/- in the scale of

Rs.3200-4900), was imposed to the applicant

• the charge sheet dt.25.6.2001

• the Enquiry Officer’s Report dated 24.9.2002

• the Appellate order dated 31.12.2004

• the Revision order dated 14.12.2005

• Challenged the decision of the various authority’s on the ground that the

same are illegal, arbitrary and against the principles of natural justice

Allegation by applicant

• The impugned charge sheet being based on a

vigilance trap, the procedure under paras 704

and 705 of the Indian Railway Vigilance

Manual is mandatory but was not followed

and, therefore, the entire proceedings stand

vitiated.

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• It is specifically alleged that two independent witnesses were not arranged nor was any Gazetted officer engaged as a witness.

• The applicant had made a detailed representation but the disciplinary authority had failed to consider the same and has passed a non-speaking order without giving personal hearing to the applicant.

-• The said shortage of Rs.9/- (the total cash was Rs.6599/-

whereas the sale proceeds of the tickets as per DTC Books came

to Rs.6602/- reflecting shortage of Rs.3/- in the cash, which rose

to Rs.9/- after counting of Rs.6 in the DTC book as left by the

passenger of ABR uncollected from the counter which did not

relate to the sale proceedings of the tickets) was paid by the

applicant from his pocket on the spot and a remark to this effect

was passed in the DTC Book as required in para 705/710 of the

Indian Railway Commercial Manual Vol.I and, therefore, there is

no misconduct on the part of the applicant in this regard.

-Court Observation

• in Moni Shanker vs. Union of India and Another, (2008 (1) AJW 479), the Apex Court had an occasion to consider again the legal status of Paras 704 and 705 wherein an extensive reference was made to the judgment in G. Ratnams case (supra) also. After elaborate discussion the Apex Court held as under:

• A departmental instruction cannot totally be ignored.

• 8 witness was there from N G• That is of importance in such cases is to see

whether the officials engaged as witnesses would have any reason to falsely implicate the official for reasons such as conflict of interest or personal enmity etc

• No lacuna found in vigilance trap and on part of D A/IO/AA /RA

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• The other main contention of the applicant in this case is that there is a shortage of only Rs.6/- and that the respondents should have overlooked this in terms of their own Circular No.19 MC/O/Policy/Pt.III dated 30.03.2006.

• The relevant portion of the said circular reads as under:

• In continuation to this office letter No.177/MC/PNM/CPO/URMU/98, wherein it was decided to permit a small limit of Rs.30/- in shortage/excess of cash on hand for the staff working in computerized reservation office,

• it has now been decided to enhance this limit to Rs.100/-.

• This shall apply to all BPCs, BCs and PCs who are handing cash.

• The staff found in excess/shortage of cash on hand shall normally not be taken up until and unless there are other compelling reasons to believe irregular working of staff. This should however not become a regular feature in the working of the staff.

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• It is seen that this circular clearly provides an

exception in cases of irregular working of staff.

The present case being a case of excess charging

on account of issue of tickets would fall under the

exception, and in view of this the applicant

counsels contention that the shortage of Rs.6/-

should have been overlooked in terms of this

circular is not tenable.

DECISION

• In view of the above discussion, we are not inclined to interfere in this case and the OA is accordingly dismissed. No costs.

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UNUTHORISED ABSENCE

Andhra High CourtWRIT PETITION No.19350 of 2012

Union of India, Rep. by The General Manager,

South Central Railway, Rail Nilayam, Secunderabad

vsDebashish Pal

Fact of case A working as Loco Pilot (Goods) Grade-I at Vijayawada Railway Station,

South Central Railway, committed misconduct by absenting himself

unauthorized from duty for 84 days from 23.02.2005 to 17.05.2005

without prior sanction of leave and not observing the Railway Medical

Attendance Rules.

Because of his unauthorized absence, the respondent herein was issued a

charge sheet dated 16.08.2005.

The respondent was supplied with all the relevant material on his

application and he had also sought for an opportunity of personal hearing

before the authorities.

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• However, the said case could not go on further as the respondent was involved in another case, which culminated in imposing a major penalty of removal from service with effect from 10.01.2007.

• However, on appeal made by him, the penalty of removal from service was reduced to that of reduction of pay in time scale.

• The respondent reported to duty on 26.05.2007 and at that point of time the present case was reopened.

-• Sri Debashish Pal while functioning as Sr.Goods

Driver/T.No.95/RJY, committed serious misconduct, in that; he absented himself unauthorized from duties for 84 days during the period from February 2005 to May, 2005 without prior sanction of leave or observing Railway Medical Attendance Rules.

• Thus he has failed to maintain devotion to duty and thereby contravened Rule 3(1) (ii) of Railway Services (Conduct) Rules, 1966

-• The enquiry officer after giving ample opportunity to the respondent

and after giving reasons submitted his report on 17.07.2008, a copy of which was served on the respondent on 25.10.2008.

• Thereafter, the disciplinary authority directed the respondent herein to give his explanation within 15 days from the date of receipt of the enquiry report.

• The respondent herein had submitted his detailed explanation on

13.11.2008. The disciplinary authority by its order in proceedings

OO.B/E.150/TRSO/II/5/DAR/V/30 dated 01.05.2009 found that the

charges are proved and as such imposed a penalty of removal from

service with immediate effect.

-• Being aggrieved by the said order, the respondent herein filed O.A.No.466 of 2010 before the Tribunal and the Tribunal below by its order dated 21.03.2012 found that there is evidence in support of the charge levelled against the charged employee i.e. the respondent herein.

• However, the Tribunal disposed of the O.A. directing the disciplinary authority to impose upon the applicant a penalty less severe than removal from service.

• It is further mentioned in the said order that the order in that regard should be passed within a period of 45 days from the date of receipt of a copy of the said order passed by the Tribunal. Challenging the said order passed by the Tribunal,

• the present Writ Petition is filed UNDER ART 226

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• On the other hand the learned counsel for the respondent argued

that the plea of the respondent was consistent right from the

beginning.

• He further contended that the respondent while working as loco

pilot at Vijayawada railway station, on 22.02.2005 submitted a

requisition to his controlling officer i.e. Chief Crew Controller

(Traction), Vijayawada to issue a sick memo as he was not feeling

well, so as to get himself treated at railway hospital, VIjayawada.

• The respondent made the said request pursuant to the procedure

evolved by the authorities

-• . It is further contended that the Chief Crew Controller not only refused

to acknowledge the requisition made by the respondent but also did not

issue a sick memo.

• As the respondent was suffering from viral fever and jaundice, the

respondent took treatment in Government hospital at vijayawada from

22.02.2005 to 17.05.2005 and was declared fit to resume duty from

17.05.2005 by a competent doctor at Government Hospital, Vijayawada.

• The learned counsel for the respondent, therefore, prayed for dismissal

of the Writ Petition since the Tribunal below has given sufficient reasons

for giving such a direction to the disciplinary authority.

• Krushnakant B. Parmar Vs. Union of India and Another2 wherein the apex

Court while dealing with the question whether unauthorized absence from

duty amounts to failure to devotion to duty or behavior unbecoming of a

government servant observed that the same cannot be decided without

deciding the question whether absence is willful or because of compelling

circumstances.

• The Court held that if the absence is the result of compelling circumstances

under which it was not possible to report or perform duty, such absence

cannot be held to be willful. Absence from duty without any application or

prior permission may amount to unauthorized absence, but it does not

always mean willful.

-• There may be different eventualities due to which an employee

may abstain from duty, including compelling circumstances beyond

his control like illness, accident, hospitalization, etc, but in such

case the employee cannot be held guilty of failure of devotion to

duty or behavior unbecoming of a government servant.

• It is further held that in a departmental proceeding, if allegation of

unauthorized absence from duty is made, the disciplinary authority

is required to prove that the absence is willful, in the absence of

such finding, the absence will not amount to misconduct.

-• Accordingly, we find that this is not a case of no evidence. • There is evidence in support of the charge.• The process of decision making has caused no prejudice

to the charged employee. • However, we are of the view that in the facts and

circumstances of this case, the penalty of removal from service is disproportionate.

• In the reply statement our attention has been drawn to the past misconduct of the applicant including unauthorized absence.

• However, we note that the applicant was not put on notice in this regard by the disciplinary authority before imposition of penalty.

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• In Mecken Singh N. Marak case (1 supra) the apex Court held that the jurisdiction of the High Court to interfere with the quantum of punishment is limited and cannot be exercised without cause.

• It is further held that the High Court, although has jurisdiction in appropriate cases, to consider the question in regard to the quantum of punishment, but it has limited role to play.

• The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscious of the Court, cannot be subjected to judicial review.

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• In the light of the legal position noticed above, it is clear that unless the punishment imposed by the disciplinary authority shocks the conscience of the Court / Tribunal, there is no scope for interference.

• At any rate, the Tribunal cannot by itself reduce the quantum of punishment without assigning any reasons therefore.

-• In the case on hand, the Tribunal recorded a clear finding that the period of unauthorized absence is willful.

• It was also observed that even on earlier occasion the respondent was on unauthorized absence.

• Having recorded such a finding, the Tribunal below ought not to have given a positive direction to the disciplinary authority to impose a penalty less severe than removal from service.

• Such direction particularly in the absence of any reasons for reducing the penalty cannot be sustained.

• In view of the above, we deem it appropriate to set aside the order dated 21.03.2012 in O.A.No.466 of 2010 and remand the matter back to the Tribunal for consideration afresh in the light of the legal position noticed above and to pass appropriate orders as expeditiously as possible preferably within a period of three months from the date of receipt of this order.

Mitra’s case

Kolkata High Court

Union of India and Ors. Vs

Mrs. Binita Mitra on 4 June, 2013

W.P.C.T. 137 of 2013

• In the present case, an interesting question has been raised whether an authority can pass the order of punishment without hearing the employee concerned after the matter being referred by another authority, who had actually heard the said employee.

• In this case, the original Disciplinary Authority namely, the General Manager, Eastern Railway heard the employee concerned namely, the respondent herein and the said General Manager proposed to impose the penalty which was not within his competence and therefore, referred the matter to the appropriate Disciplinary Authority namely, the Railway Board.

• The said Railway Board ultimately, imposed the penalty without even granting any opportunity of hearing to the affected employee namely, the respondent herein.

• Enquiry Officer after conducting the enquiry submitted his report to the Disciplinary Authority exonerating the respondent from the charges mentioned in the charge sheet

-• The General Manager being the Disciplinary Authority, however, did not agree with the findings of the Enquiry Officer and the said General Manager recorded his disagreement in the disagreement note.

• The said General Manager thereafter, referred the matter to the Railway Board for passing necessary order of punishment.

• While referring the matter to the Railway Board, General Manager was of the opinion that the penalty warranted in the matter cannot be imposed by him since he had no competence to impose the said penalty under the Rules.

• The matter was referred to the Railway Board by the Disciplinary Authority namely, the General Manager, Eastern Railway in terms of Rule 10(3) of the 3

Railway Servants (Discipline & Appeal) Rules, 1968.

-• It cannot be accepted that someone will hear the grievances of an employee and another person will pass the order.

• The majority view of the Full Bench of the Hon'ble Supreme Court in the case of Gullapalli Nageswara Rao & Ors. vs. Andhra Pradesh State Road Transport Corporation and another reported in AIR 1959 SC 308 is quoted in this regard as hereunder: "31.......................................... If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure."

• For the aforementioned reasons, we are of the opinion that the learned Tribunal has rightly decided the issues raised before it and we do not find any infirmity and/or error in the findings of the said learned Tribunal.

• Therefore, we affirm the decision of the learned Tribunal and dismiss this writ petition, as we do not find any merit in the same.

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-Central Administrative Tribunal - Mumbai

S.K.Shrivastava vs

Sr.Divisional Commercial ... on 18 November, 2010

Dated this Thursday the 18th day of November, 2010

O.A.170 of 2006

• The applicant at the relevant time is a Head Booking Clerk at Dadar Station of the Central Railways in the pay scale of Rs.5000-8000/-. While working so he was charge sheeted on 22.8.2003 and pursuant to an enquiry, he was imposed the punishment of compulsory retirement w.e.f. 19.3.2004

• APPEAL/ REVISION IS REJECTED

-• 1 decoy check was conducted by the vigilance team on 13.05.03

• 2 Shri N.B. Ingle, Sr. Clerk, CE's office CSTM

• and Shri Arun Bhor RPF Constable No. 6453, Mulund were utilized as decoy passenger and independent witness respectively.

• 3 Accordingly TCM-I dated 13.05.03 was prepared and the decoy passenger

was handed over Rs. 809/- (Rs. 500x1, Rs. 100x3, Coins Rs. 5x1, Rs. 1x4) and

the decoy passenger was instructed to purchase three II M/E tickets ex

Dadar to Jaunpur and the independent witness was instructed to witness the

transaction taking place between the decoy passenger and the booking clerk

and also to listen to the conversation taking place between them, if any.

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• TICKET FARE 238*3 = 714• Collected money = 804• excess = 30• vigilance team prepared TCM-2 dated 13.05.03

further investigation. • The railway cash of the said booking was checked

and the G.C. notes of Rs. 100/- and Rs. 500/- mentioned in TCM-1 were recovered and the confronted statement of the decoy passenger and independent witness with the said booking clerk was recorded by the vigilance team.

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• Three un cancelled tickets i.e. II/M/E/one adult DR-

MAU Jn. Ticket No. 36906595 printed fare Rs. 253/-. II

M/E/one adult DR-MAU Jn. Ticket No. 36906596

printed fare Rs. 253/- and II M/E/one adult DR-ARA

ticket No. 36906612 printed fare Rs. 258/- were

detected lying on the counter of the said booking

clerk.

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• During the physical check of the railway and the private cash in the possession of the said booking clerk it was detected by the vigilance team that Rs. 103/- (Rupees One Hundred Three) were detected short in his railway cash and the same were made good vide money receipt No. G 521115 dated 13.05.03. Considering the shortage of Rs. 103/- in railway cash, the possibility of creating artificial shortage in Railway cash cannot be ruled out.

The contentions raised by the applicant• Penalty of compulsory retirement not

imposed by appointing authority• The trap witnesses were one RPF Constable

and a Junior Clerk. • The Constable was already a witness in one of

the earlier cases as deposed by him in the enquiry.

• These were not independent witness to witness the trap.

Court observation

• On the basis of the discussion above, it has to be held that the order of punishment imposed upon the applicant was not authority competent to issue the same.

• Thus, the penalty being imposed by an incompetent officer is illegal and without any jurisdiction.

• Para 704 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.

• We may however add to say that the Enquiry Officer after the discussion of the evidence established that the CE has overcharged PW-4 when CE's cash was subjected to check, it was found short by Rs.103/- instead of excess due to overcharging.

• Hence, possibility of overcharging cannot be ruled out.

• We are unable to find out the reasoning behind the above finding.