HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.5781/2004 & 8122/2004 DT. 16-11-2009 WP No.5781/2004: Khajahussain …Petitioner V. 1. The Senior Divisional Commercial Manager, South Central Railway, Guntakal. ..Respondents WP No.8122/2004: 1.Union of India represented by Senior Divisional Commercial Manager, South Central Railway, Guntakal and others. ..Petitioners V. Shaik Khaja Hussain ..Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.5781/2004 and 8122/2004 COMMON ORDER: (Per the Hon’ble Sri Justice A. Gopal Reddy) These two writ petitions arise out of the very same judgment of the Central Administrative Tribunal, Hyderabad Bench at Hyderabad (for short” the Tribunal”) dt. 19-1-2004 passed in OA No.227/2003. Hence, they are heard together and disposed of by this common order. For the sake of convenience, Sk. Khaja Hussain, applicant will be hereinafter referred to as “the petitioner” and the officials of the South Central Railway, Guntakul, respondents, will be referred to as “the respondents”. The petitioner while working as Senior Travelling Ticket Examiner, Renigunta, a charge sheet was issued alleging that while working in train No.6010 on 31-8/1-9-1988 Ex.MAS-HX in S-5 coach had failed to maintain absolute integrity, show devotion to duty and acted in a manner unbecoming of a Railway Servant as he had demanded and accepted Rs.100/- from G. Chandrasekharan holding II M/E Ticket No.00511430 Ex.MAS-HX while allotting berth No.37 in S-5 coach but did not issue any conversion receipt till the time of check and not made any endorsement in the chart of the above allotment and retained the amount collected for his personal gain. On petitioner denying charge levelled against him, enquiry under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 was ordered by the disciplinary authority appointing one G. B. Jaganatha Rao as enquiry officer, for which the petitioner protested stating that the enquiry officer is biased against him and he cannot proceed with the enquiry. But he proceeded with the enquiry. On 9-6-1999 the petitioner submitted his defence statement. The Enquiry Officer, after conducting enquiry, submitted his report holding that charge is proved. On communicating the enquiry report to the petitioner, he submitted his representation to the disciplinary authority on 16-10-1999. After considering the said representation, the disciplinary authority by order No.GZ/D&A/225/98(170)S.53 dt. 13-12-1999 has imposed the penalty of removal from service. Challenging the order of removal from service, the petitioner filed OA No.1/2000 before the Tribunal. The Tribunal by order dt. 4-6-2002 disposed of OA holding that the petitioner without availing alternative remedy cannot file OA and permitted him to file an appeal within a period of 30 days from the date of order and on filing such appeal, the appellate authority was directed to dispose of the same within a period of 45 days from the date of such receipt. On disposal of OA, the petitioner submitted an appeal to the appellate authority, ie., Senior Divisional Commercial Manager, South Central Railway, Guntakal. The appellate authority confirmed the penalty of removal from service vide order dt. 11-2-2003. On dismissal of the appeal, the petitioner again approached the Tribunal by filing OA No.227/2003 contending that the basis for issuing charge sheet containing one article of charge is the report of the Vigilance (Railways), who conducted decoy check, for which a team consisting of G. Chandrasekharan, Chief Vigilance Inspector, Madras who was given the role of a decoy passenger, and Muttumanikyam C. Gnanasambandam, Section Officer, Carriage and Wagon, Perambur was asked to act as a witness in the transaction. The decoy check was planned in advance with a sole object of implicating the petitioner in the case. Though there is no mention of the word “demand” in page 3 of Ex.9 of the prosecution ie., joint proceedings drafted on 1-9-1998 by the Vigilance, the Vigilance has compelled the disciplinary authority to frame the article of charge. Though the petitioner denied the allegation, enquiry under Rule 9 was ordered by the disciplinary authority by appointing G. B. Jagannatha Rao to enquiry into the charge sheet, who earlier worked as Vigilance Inspector under the control of Vigilance and who was the de facto complainant in the charge- sheet. Therefore, enquiry conducted is not fair as the Enquiry Officer played the role of the Judge and the Prosecutor. Though the petitioner made a request to cause production of defence witness, no action was taken. The petitioner submitted his defence brief stating that it is a trap arranged by the Vigilance of Southern Railway in a planned manner. The preliminary enquiry statements obtained during the check were not furnished and there is no eye-witness for demanding of money, which is essential to establish the charge of demanding extra amount of Rs.46/- towards berth charges. When the decoy himself admitted that there was no demand of extra money on the part of the charged employee, finding of the Enquiry Officer that charge is proved on the basis of availability of cash is erroneous. All the five persons involved in the check relate to Railway Department and all of them are non-gazetted staff and stock witnesses/interested witnesses for the disciplinary authority. There is no independent witness among the staff participated in the check. Earlier, the Tribunal in OA Nos.1407/99 and 1339/2000 held that decoy check resorted to by the Railways is contrary to Rule 704 and 705 of the Indian Railways Vigilance Manual. On appeal, this Court has upheld the said finding of the Tribunal. Mere acceptance of money as tendered by the decoy passenger who is determined to implicate the official into the an offence does not amount to taking bribe unless demand has been established. A detailed counter has been filed by the respondent contending that there is compliance of mandatory procedure prescribed under Paragraphs 704 and 705 of the Indian Railway Vigilance Manual in conducting the vigilance check and the finding recorded by the inquiring authority, which is accepted by the disciplinary authority is supported by the evidence placed on record. The appellate authority has acted as the disciplinary authority because of the contention taken by the petitioner that the 2nd respondent who acted as the disciplinary authority has no power to impose major penalty of removal from service. Without exhausting the remedy of appeal against the order passed by the first respondent who acted as the disciplinary authority, the petitioner cannot file OA. The disciplinary proceedings were conducted in accordance with the rules and necessary opportunity was provided to the petitioner even after submission of the report. After considering the explanation submitted by the petitioner, penalty of removal from service was imposed. The second respondent who is the Divisional Commercial Manager, Guntakal and who is a senior scale officer was empowered to issue major penalty as per Schedule II to the Railway Servants (Discipline & Appeal) Rules, 1968. The Tribunal after elaborately considering the evidence made available on record came to the conclusion that the Chief Vigilance Inspector, Madras has been employed as decoy passenger. As per Paragraphs 704 and 705 of the Indian Railway Vigilance Manual, two Gazetted Officers from Railways are not taken as independent witnesses for vigilance check conducted by the Vigilance Department. On the other hand, Muttumanikyam C. Gnanasambandam, Section Officer, Carriage & Wagon, who is not a Gazetted Officer, was asked to go along with the Chief Vigilance Inspector and observe the transaction. V. Kuruppan, TTI, Raichur manning A-1 coach by 6010 express who was called to S-5 coach at Raichur to witness the check had not witnessed the transaction between the petitioner and the decoy passenger, but he is a witness to the post check proceedings. The Tribunal further found that V. Karuppan in his reply to question No.36 stated that on noting the word ‘demand’ in Exhibit P.9- check proceedings, already drawn, he had inquired with decoy passenger, Chandrasekharan, as to whether the petitioner had demanded any amount, for which the decoy witness told him that the petitioner had not demanded but he (decoy witness) had given G.C. notes and he informed Radhakrishnan, Chief Vigilance Inspector who conducted the check that unless the word demand is struck down he will not affix his signature, then the said word ‘demand’ was struck out in Exhibit P.9. The Tribunal also observed from the evidence given by V. Karuppan that there was neither any demand for payment of Rs.100/- by the petitioner for allotment of sleeper berth in S-5 compartment to the decoy passenger nor there was acceptance of the said amount by him in furtherance of the demand, knowing that the amount which was given to him is Rs.100/- in the form of ten Rs.10/- notes. It is quite possible that the petitioner might have received the amount without counting it from the decoy passenger and before he could verify the said amount, the decoy passenger might have left the compartment to pass on the information to Chief Vigilance Inspector, Madras. Further in reply to the question No.33, P.W.3- V.Kuruppan stated that whatever knowledge of events he had was only through the narration to him by the Chief Vigilance Inspector who conducted decoy test. P.W.4-S.Md. Rafeeq who also signed the check proceedings drawn, deposed that he had no knowledge of English and he could not say about the contents of the check proceedings drawn. P.W.2 admitted that he did not get his travel recorded in the Travel Ticket Examiner’s chart. P.W.2 who is Section Engineer in the Carriage and Wagons at Perambur has not produced any documentary evidence to show that he had been on deputation to the Vigilance on that day and he was not in possession of any duty card pass at the time of the check. Whether P.W.2 was really present at the time when the decoy check was conducted and what transpired at the time when the decoy passenger approached the petitioner for allotment of berth is not known. Since there is no evidence to show that the petitioner counted the amount knowing extra cash been paid for allotment of berth after handing over the amount, it is possible that without counting money he might have received the said amount. Even if the amount is handed over for payment of extra cash for allotment of berth, it cannot be held that the charge of demand and acceptance of the amount is established. In the memorandum of appeal, the petitioner stated that the Inquiry Officer did not allow him to examine the defence witness on his behalf, which fact is corroborated by the report of the inquiring authority, where in it has been mentioned that the petitioner requested for examination of the passenger Subramanya Raju, a resident of Madras, as a defence witness but the said request has been turned down. Thus, it is found that there is non-compliance of the principles of natural justice in conducting the inquiry against the petitioner, therefore, the finding recorded by the inquiring authority as accepted by the disciplinary authority is not supported by the evidence and holding so allowed the OA setting aside the removal order directing reinstatement of the petitioner with all consequential benefits such as continuity of service, seniority etc. but denying back wages. Questioning the order to the extent of denial of back wages, the petitioner filed WP No.5781/2004 and questioning the reinstatement, the respondents filed WP No.8122/2004. Learned counsel for the petitioner in WP No.5781/2004 and respondent in WP No.8122/2004 contended that no reasons were assigned for denying back wages except stating that the petitioner is not entitled to back wages. When entire disciplinary proceedings were planned, which caused the mental agony to the petitioner, the tribunal which set-aside the removal order ought to have been granted back wages, but while denying back wages reasons should be given for disallowing the back wages. Per contra, Sri R.S. Murthy, learned Standing Counsel for the petitioners in WP No.8122/2004 and respondents in WP No.5781/2004 in his usual vigor contended that the Tribunal allowed OA on the premise that mandadoty provisions contained in Paragraphs 704 and 705 of the Indian Railways Vigilance Manual, which provide that there will be two gazetted officers to act as independent witnesses, have not been complied with at the time of check and earlier judgments rendered by the tribunal for non-violation of the above guidelines vitiate the disciplinary proceedings. Learned counsel for the respondents-Railways placed before this court two judgments of the Apex Court. They are, (1) CHIEF COMMERCIAL MANAGER, SOUTH CENTRAL RAILWAY V. G.RATNAM[1]; and (2) MONI SHANKER V. UNION OF INDIA[2]. In G. RATNAM (1 supra), the Railway Authority imposed penalty of reversion by two grades from HTTE to Ticket Examiner, removal from service and reduction to lower grade post of TTE upon the respondents respectively. The respondents, aggrieved by the imposition of punishments, filed OA Nos.1339, 1349 and 1773 of 2000 before the Central Administrative Tribunal, Hyderabad Bench, at Hyderabad respectively. The Tribunal allowed the original applications of the respondents herein, on a technical ground, holding that the departmental traps were not laid by the Vigilance Officers of the Railways in accordance with the provisions of the Indian Railways Vigilance Manual, 1996 and as a result of the defective investigations, orders of imposition of penalty upon the respondents by the disciplinary authority and the consequential orders of the revisional authority as well as the appellate authority are quashed. Feeling aggrieved by the orders of the Tribunal, the railway authorities filed WP Nos.1489/2002, 26165 and 25111 of 2001 before this court respectively. This court by order dt. 4-9-2002 dismissed the writ petitions upholding the orders of the Central Administrative Tribunal, Hyderabad Bench at Hyderabad. On further appeal by the Railway authorities, the Supreme Court has not agreed with the view taken by the Tribunal as affirmed by the High Court that 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 and such finding and reasoning are wholly unjustified and cannot be sustained. The Supreme Court while observing that “the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances, but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Art. 226 of the Constitution” allowed the appeals setting aside the orders passed by the High Court and allowed the writ petitions filed by the Railway Department. The Supreme Court in MONI SHANKAR (2 supra) after referring the judgment of the Apex Court in G.RATNAM (1 supra) held that the Paragraphs 704 and 705 of the Indian Railways Vigilance Manual do not create any legal right but emphasize 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 charge against the delinquent official. The Supreme Court while observing that “the courts exercising power of judicial review are entitled to consider as to whether while interfering 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, 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,” held that the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The tap was not conducted in terms of the Manual, the enquiry officer acted as a prosecutor and not an independent quasi-judicial authority, he did not comply with rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court and holding so allowed the appeal setting aside the judgment of the High Court and restored the order of the Tribunal allowing OA filed by the employee. While placing the above two judgments, Sri R.S. Murthy would contend that there is differences of opinion according to co-ordinate Benches of the Supreme Court with regard to compliance of mandatory provisions contained in Paragraphs 704 and 705 of the Indian Railways Vigilance Manual and later will prevail and same has to be followed as held by the Full Bench of this court in USHODAYA ENTERPRISES LTD., V. COMMISSIONER OF COMMERCIAL TAXES, A.P., HYDERABAD[3]. It is not necessary for us to dilate on the aspect whether non- compliance of guidelines prescribed in Paragraphs 704 and 705 vitiates the entire enquiry and the judgment rendered by the Supreme Court in MONI SHANKER V. UNION OF INDIA ( 2 supra) has to be followed in preference to the earlier judgment in CHIEF COMMERCIAL MANAGER, SOUTH CENTRAL RAILWAY V. G.RATNAM (1 supra) There is no infirmity in the findings recorded by the Tribunal on appreciation of the evidence made available on record. The evidence of the decoy witness is clear and unambiguous that the petitioner had not demanded but he had given G.C. notes and informed Sri Radhakrishnan, Chief Vigilance Inspector who conducted the check. P.W.3 stated that unless the word ‘demand’ is struck down, he will not affix his signature. The statement of P.W.3-Kuruppan goes to show that there was neither any demand for payment of Rs.100/- by the petitioner for allotment of sleeper berth in S-5 coach to the decoy passenger nor there was acceptance of the said amount by the petitioner in furtherance of the demand, knowing that the amount which was given to him is Rs.100/-. Further P.W.3 who manning A-1 coach was called to S-5 coach to witness the check but he has not witnessed the transaction between the petitioner and the decoy passenger but he is a witness to post check proceedings. The evidence of P.W.3 would further disclose that whatever knowledge of events he had was only through the narration to him by the Chief Vigilance Inspector, Radha Krishnan. P.W.2 who was asked to over hear the conversation between the petitioner and the decoy passenger deposed that he had travelled on privilege pass in the said compartment while on duty. He admitted that he did not get his travel recorded in Travel Ticket Examiner’s chart. He did not produce any documentary evidence to show that he had been on deputation to the Vigilance on that day. Therefore, the tribunal rightly has not given credence to the evidence of P.Ws.2 and 3 and held that they appear to be planted witnesses. Since it is a case of no evidence, the tribunal rightly set-aside the order passed by the disciplinary authority on the ground that there is non-compliance of principles of natural justice in conducting enquiry apart from non-compliance of mandatory provisions contained in Paragraphs 704 and 705 of the Indian Railways Vigilance Manual. Even if the finding that non-compliance of mandatory requirement of Paragraphs 704 and 705 is excluded, still the order of the tribunal cannot be sustained as the department failed to adduce evidence to substantiate that the petitioner demanded any amount for allotment of berth. In view of the same, the finding recorded does not suffer from any manifest illegality warranting interference. We according dismiss W.P.No.8122/2004 filed by the Railways. The next question remains for our consideration is whether the petitioner is entitled to back wages or not on setting aside the removal order. Learned counsel for the petitioner by placing reliance on the judgment of the Supreme Court in MANORAMA VERMA V. STATE OF BIHAR[4] a n d UNION OF INDIA V. MADHUSUDAN PRASAD[5] contended that the petitioner is entitled to back wages. It is well settled that grant of back wages is a matter of judicial discretion. Though the services of delinquent employee have been terminated unjustifiably, that itself does not create a right of reinstatement with full back wages. In MANORAMA VERMA (4 supra) the Supreme Court held that ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. In MADHUSUDAN PRASAD (supra 5) the delinquent employee was removed from service by the disciplinary authority without any enquiry and he was not even given show cause notice prior to his dismissal from service. The respondent preferred an appeal and the appellate authority set-aside the order passed by the disciplinary authority observing that the period of absence from the date of dismissal from service ie.,7-11-1994 till the reinstatement shall be treated as dies-non. The respondent filed a writ petition before the High Court seeking salary for the period from the date of dismissal to the date of reinstatement. The learned Single Judge held that the respondent was entitled to get salary for the period he was out of service. On appeal, the Division Bench affirmed the judgment of the learned single Judge. On further appeal, the Supreme Court held that there is no infirmity in the decision of the High Court holding that the respondent is entitled to get back wages for the period he was out of service. The Supreme Court in G.M. HARYANA ROADWAYS V. RUDHAN SINGH[6] after referring to its earlier judgments in para 10 held that order should not be passed in a mechanical manner but host of factors are to be taken into consideration before passing any order for award of back wages. Following the same, the Supreme Court in KANPUR ELECTRICITY SUPPLY CO. LTD., V. SHAMIM MIRZA[7] held as under: “It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer of back wages, factual scenario, equity and good conscience and a number of other factors, like the manner of selection, nature of appointment, the period for which the employee has worked with the employer etc., have to be kept in view All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case.” The Supreme Court in U.P.S.R.T.C. V. MITTHU SINGH[8] held that entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equity, and good conscience have to be kept in view by an appropriate Court/Tribunal. In HINDUSTAN MOTORS LTD V. TAPAN KUMAR BHATTACHARYA[9], on approving the proposed order of dismissal from the service by the Industrial Tribunal and on raising an industrial dispute, the matter was referred to the Tribunal for adjudication. The Industrial Tribunal answered the reference holding that order of dismissal of the concerned workman from his service is not at all justified and as such he is entitled to reinstatement in his service with other benefits