Nita Chowdhury, J
1. When this matter was taken up for hearing, learned counsel for the applicant was not present and on previous date of hearing, we had observed
that this is a very old matter of 2014, which has been listed 23 times and after noting the submissions of learned counsel for the respondents, granted
applicant last opportunity to argue this case and this case was directed to be listed today. However, nobody appears for the applicant.
2. In view of the above, we proceed to dispose of this OA by invoking the provisions of Rule 15 of the CAT (Procedure) Rules, 1987 and accordingly
heard learned counsel for the respondents in detail and perused the OA and pleadings of the applicant. Later on Ms. Meenu Mainee, learned counsel
appeared and requested that she will file the written submissions today itself and permission was granted to her. However, she has given no written
submissions.
3. By filing this OA, the applicant is seeking the following reliefs:-
“8.1 That this Hon‟ble Tribunal may graciously be pleased to allow this application and quash the impugned order.
8.2 That this Hon‟ble Tribunal may further be pleased to direct the respondents to restore the applicant to his original position and make payment of all
the due amounts and refund the amount which has been recovered from the applicant.
8.3 Pass any other and further order which this Hon‟ble Tribunal may deem fit and proper in the circumstances of the case.
8.4 That the cost of the proceedings may kindly be granted in favour of the applicant and against the Respondents.â€
4. Counsel for the respondents submitted that this is a second round of litigation as the applicant has earlier filed OA No.2529/2008 challenging the
impugned orders which was passed after having initiated disciplinary proceedings against the applicant and this Tribunal vide Order dated 27.05.2009
disposed of the same with the following observations:-
“14. Considering the above facts and circumstances of the case and our discussion and analysis within, we find that the Applicant succeeds in his
prayers to the extent we have indicated within. In the result, OA is allowed and the orders of Disciplinary Authority dated 11.11.2005, Appellate
Authority dated 9.2.2006 and Revision Authority dated 16.8.2007 are quashed and set aside and the case is remanded back to the DA as per our
direction in Para 12 to pass a fresh order on punishment. Respective parties will bear their own costs.â€
Counsel for the respondents also referred to paras 12 and 13 of the said Order of this Tribunal, which read as under:-
“12. In this context, we find that the Applicant has not properly declared the excess amount of Rs.470 in the EFT. This is the only part of the
charge which has been proved in the enquiry and for this part of the charge, the punishment under major penalty, i.e. demotion of the Applicant to the
pay scale of Rs.4000-6000 at Rs.4000 up to the time the Competent Authority finds him fit for promotion again in the pay scale of Rs.5000-8000 after
five years from the date of the order with the postponement of his future increments in the pay scale; in our considered opinion disproportionate. We
apply our judicial restraint to substitute the said punishment with any other. We, therefore, would direct the Disciplinary Authority to re-examine/re-
appreciate the evidence in the case and pass a reasoned and speaking order specifically on the punishment.
13. While appreciating the evidence available in this case as per the Enquiry Officers Report and Records perused by us, we come to the conclusion
that there are some evidence against the Applicant who has been in Page 4/5 CENTRAL ADMINISTRATIVE TRIBUNAL (OA) Original
Appl./2529/2008 JUDGEMENT possession of Rs.470/- over and above the admissible amount to which effect entry in the proper place has not been
done. In the present OA, we relied on the following decision of Hon‟ble Supreme Court in Lalit Popli‟s Vs Canara Bank, (2003) 3 SCC 583.
“It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different.
In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in
criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed
upon him. The standard of proof, the mode of enquiry and trial are conceptually different. {See STATE OF RAJASTHAN V. B.K. MEENA AND
ORS. (1996) 6 scc 417)}. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of „proof beyond doubt‟
has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent
has committed misconduct.â€
Counsel further submitted that in compliance of the aforesaid directions of this Tribunal, the disciplinary authority has passed the order dated
29/30.12.2009 imposed a punishment of reduction in same time pay band of Rs.9300- 34800 with grade pay of Rs.4200/- having basis pay Rs.15,530/-
(exclusive of grade pay/to pay band Rs.9300- 34800) Rs. 14,630/- (inclusive of grade pay) for a period of two (02) years with postponing future
increments. The appeal dated 9.5.2014 preferred by the applicant was considered by the appellate authority and while upholding the punishment
awarded upon the applicant by the disciplinary authority observed that since the applicant was under suspension w.e.f. 14.12.2009, punishment
awarded to him was not given effect to and now the same will be given effect to.
5. Counsel further submitted that by filing this OA, the applicant is challenging the aforesaid orders passed by the disciplinary and appellate authorities,
which were in compliance of aforesaid Order of this Tribunal passed in OA 2529/2008 and as such the orders impugned in this OA do not suffer from
any illegality and are passed in consonance with the rules on the subject.
6. Counsel also submitted that the charge against the applicant is that he was found in possession of Rs.470/-undeclared cash at the movement when
preventive check was conducted by the vigilance team. The prosecution has successfully established that the applicant was found in possession of this
amount which was undeclared. The plea of the applicant that the amount of Rs.470/- was given by one Sh. Rajesh Kumar Sharma. The statement of
Sh. Rajesh Kumar Sharma did not help the applicant as the possession of the amount was in violation of Rule. It is also not acceptable that if a person
is sending some amount to the other, he will sent the exact Rs.470/- unless there is some specific supporting document. Moreover if the amount of
Rs.470/- was given to him by Sh. Rajesh Kumar Sharma, this should have been mentioned in cash detail. Not mentioning this amount in cash detail
proves that plea taken by the applicant is an afterthought. If his personal cash which is declared as exceeding, then according to rules, that amount
should have been declared at the same place where the previous personal cash is declared and got verified.
7. Counsel further submitted that in Railway in order to eradicate corruption amongst Group C and D employees, an organization in each Zonal
Railway has been established on the pattern of Central Vigilance Commission. This organization has also two distinct separate branches i.e. (i)
investigation Organization and (ii) Enquiry Organization. At the Zonal Railway level, the Vigilance organization is headed by the Senior Deputy
General Manager, who is also ex-officio Chief Vigilance Officer of the Zonal Railway. He is assisted by Vigilance Officers drawn from various
disciplines of Railway services. These Officers are designated as Deputy CVO (Selection Grade/JA Grade), Vigilance Officers (Senior Scale),
Assistant Vigilance Officer (Junior Scale) and Inspectors. There is also full-fledged Enquiry Organisation under the administrative control of SDGM to
deal with the discipline and appeal enquiries arising from vigilance cases. This organization is manned by the Enquiry Officer (Senior Scale), Assistant
Enquiry Officer (Junior Scale) and Enquiry Inspectors drawn from the various disciplines of Railway service. The Railway Board has been much
concerned about the overall time taken in regard to final disposal of vigilance complaints. Therefore, the enquiry organization has also been brought
under the administrative control of SDGM of the respective Railway Zones. However, enquiry organization works independently without any influence
of investigation organization. Appointed enquiry officer Shri Y.K. Yagi does not belong to vigilance organization but he belongs to General
Administrative Section working under the administrative control of SDGM, NR, New Delhi. The enquiry cell is separate from vigilance department.
8. Counsel further submitted that as regards the judgment of the Hon‟ble Supreme Court in the matter of Prakash Kumar Tandon, it is distinguished
from the instant case as in that case the enquiry officer was the chief of the vigilance department whereas the appointing authority was of lower rank
whereas in the instant case, there is no such issue.
9. Applicant has averred in the OA that punishment now imposed by the disciplinary authority is not in consonance with the directions given by this
Tribunal.
9. 1 Applicant has further contended that the respondents have neither fixed the salary of the applicant nor paid the amount which become due to the
applicant after the judgment when the punishment has been quashed nor they had been paying the subsistence allowance in accordance with the
judgment and without applying their mind to th observations and without applying their mind to the observations made by this Tribunal.
9.2 Applicant has also averred that penalty imposed now is once again disproportionate and the amount of subsistence allowance which they had been
paying for the long period of suspension is also not in accordance with the pay to which the applicant is entitled to in accordance with the aforesaid
Order of this Tribunal.
10. Before adverting on the claim of the applicant, it is pertinent to note that the law relating to judicial review by the Tribunal in the departmental
enquiries has been laid down by the Hon‟ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon‟ble Supreme Court in para 9 observed as under:-
“9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High
Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent
to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not
stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by
the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not
vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the
Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-
examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he
did make the former statement before P. S. I. Khada - bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in
the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our
opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of
actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry
from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which
the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used
and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an
opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure
followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is
given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its
entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called,
the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he
is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness
word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They
are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to
the person charged and he is given an opportunity to cross-examine them.
(2) Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon‟ble Supreme Court observed as under:-
“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the
Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry
was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some
evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to
disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to
hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to
reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held
the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the
mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such
as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to
make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the
evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964)
4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence,
reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of
certiorari could be issued.â€
(3) In the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon‟ble Supreme Court has observed as under:-
“Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary
proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no.I was accepted by the disciplinary authority and
was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the
evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.â€
11. Keeping in view the aforesaid observations of the Apex Court and also having regard to the observations of this Tribunal made in earlier OA
preferred by the applicant, this Court observes that in this case, this Tribunal is required to see whether the punishment imposed upon the applicant by
the disciplinary authority is disproportionate to the gravity of charge proved against him after the passing of the aforesaid Order dated 27.5.2009 in OA
2529/2008 by this Tribunal. To appreciate this matter, we deem it appropriate to reproduce the order dated 29/30.12.2009 passed by the disciplinary
authority as under:-
“In compliance of the judgment passed by the Hon‟ble Central Administrative Tribunal, New aDelhi on 27.5.2009 in O.A. No.2529/2008 in the
matter of Shri Anil Kumar Awasthi presently working as THE/SPN, I have gone through the papers and materials available on record. I have
carefully considered and examined the matter in question along with the issues involved in the case by going through the articles of charges, oral and
documentary evidences along with enquiry proceedings, report and findings drawn by the Enquiry Officer on 26.7.2005. I noticed that the
papers/documents pertaining to your D & AR case were sent to the then Disciplinary Authority by the EO, NIP dt. 11.11.2005 was issued
accordingly. Since the said NIP including Appellate Authority‟s order and Revisionary Authority‟s orders have been set aside by the Hon‟ble Court,
the undersigned presently being the Disciplinary Authority is in a position to decide the matter. For which your representation dt. 12.8.2005 & another
representation dated 30.8.2005 submitted during personal hearing have also been perused.
With regard to above, I find that the charges leveled against you are as under:
While you working as such on 24.2.2004 in train No. 4048 Exp. Committed misconduct/misbehaviour in as much as that you were detected to have
committed following serious lapses/irregularities:-
“That, an amount of Rs.470/- were detected excess in his government cash. The government cash as per total of EFTs were 946/- but he
produced Rs.1,416/- as his government cash. Excess deposited vide EFT No.0365226 dt. 24.02.2004.â€
Inquiry was conducted and all the opportunities including personal hearing were given to you to prove your innocence in order to maintain the spirit of
natural justice but you failed to prove your innocence. The Inquiry officer has given findings in the inquiry as under:-
Charge is proved to the extent of Rs.470/- were found excess with you.
I have gone through the analysis and discussions of the prosecution and the defence on the basis of which the I.O. has proved the charge. There is no
reason to disbelieve the conclusion drawn by I.O.
You have submitted your representation on the inquiry report and said that you had declared your private cash in the loby register NDLS and at the
back of last used EFT No.0365219 further you have pleaded that alleged Rs.470/- was given to you at intermediate station Shahdara by your cousin
Shri Rajesh Sharma which was also noted at the back o the then last used EFT No.0365220 and duly got counter signed from Captain conductor your
supervisor in the train for ready reference and Shri Rajesh Sharma appeared before the inquiry officer who owned to have given Rs.470/- to you for
purchase silk Kurta Pyjama from Lucknow. As per Ex. P-1, your government cash was found excess by Rs.470/-. Reason for this excess is not
mentioned in it, hence your plea that this amount of Rs.470/- was given by Shri Rajesh Kumar Sharma is not sustainable and appears your, an
afterthought plea.
It is also not acceptable and if a person is giving some amount for purchasing some goods, he will send the exact Rs.470/-unless there some specific
supporting document.
In his statement in chief both the PWs have supported the charge levelled against you. So far as the argument about the complaint is concerned, there
is no meaning.
Further, you produced Shri Rajesh Sharma as defence witness, but you did not make COR as your defence witness who had verified about the excess
money of Rs.470/- in government cash.
However, if the amount of Rs.470/- was given to you by Shri Rakesh Kumar Sharma this should have been mentioned in cash detail. Not mentioning
this amount in cash detail proves that plea taken by you is an afterthought. If your personal cash which is declared as exceeding, then according to the
rules, that amount should have been declared at the same place, where the previous personal cash is declared, and got it verified in accordance with
rules.
The prosecution has successfully established that you were found in possession of this amount which was undeclared. You have not denied the
possession of undeclared amount.
It is established that Rs.470/- were found excess with you. I fully agree with the findings of the Inquiry Officer.
Keeping in view of the above, I have decided to impose a punishment of Reduction in same time pay band, you are therefore, reduced in same time
pay band of Rs.9300 â€" 34800 with grade pay of Rs.4200/- having basic pay Rs.15,530/- (inclusive of grade pay) to pay (in pay band Rs.9300-34800)
Rs.14,630/- (Inclusive of grade pay) for a period of two (o2) years with postponing future increments.
2. Under Rule 18 of the Railway Servants (Discipline and appeal) Rules, 1968 an appeal against these orders lies to Sr. DCM/MB provided:-
(i) the appeal is submitted within 45 days from the date you receive the orders, and
(ii) the appeal does not contain improper or disrespectful language.
3.Please acknowledge receipt of this letter.â€
12. From the above, it is quite clear that disciplinary authority‟s order does not suffer from any illegally having regard to the aforesaid observations of
the Hon‟ble Supreme Court in the case of P.Gunasekaran (supra). However, it is pertinent to mention that appeal was directed to be preferred by the
applicant within a period of 45 days from the date of receipt of said order but he has filed the same on 9.5.2014, admittedly after expiry of more than
45 days prescribed for filing the same. Even than the appellate authority considered the same and rejected vide order dated 5.6.2014.
13. It is also relevant to mention that this case was earlier remanded back by this Tribunal to the respondents after quashing the orders passed by the
respondents in view of the observation made in para 12 of the said Order dated 27. 5.2009, as already reproduced above in para 4. It is well settled
proposition of law, as held by the Hon‟ble Apex Court in catena of cases, that it is only in those cases where the punishment is so disproportionate
that it shocks the conscience of the court that the matter may be remitted back to the authorities for reconsidering the question of quantum of
punishment. In Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad reported in 2010 (3) ALSLJ SC 28 it has been held
by Hon‟ble Supreme Court as under:-
“The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the
discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such
discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunalâ€.
14. Having regard to the gravity of the article of charges levelled against the applicant, we have perused the punishment awarded by the disciplinary
authority vide impugned order dated 29/30.12.2009, which is a detailed and reasoned order, and the same was confirmed by the appellate authority
vide Order dated 5.6.2014 and, therefore, we are of the considered view that punishment imposed by the impugned orders dated 29/30.12.2009 and
dated 5. 6.2014 is not so disproportionate that it shocks the conscience of the court, therefore, we do not find any case as made out for interference by
the Tribunal on the question of quantum of punishment.
15. The respondents have revisited the order passed by them and as per the last orders dated 29/30.12.2009 and 5. 6.2014, they have given a detailed
reasoning for the same. Hence, in view of the detailed discussion above and in view of the law laid down by Hon‟ble Apex Court referred to above
and in view of the fact that no procedural lapses or violation of principles of natural justice was urged by the applicant, as such there is no ground for
interference in the impugned orders.
16. Accordingly, the OA being devoid of merit is dismissed. No order as to costs.
