* THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND * THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 22221 OF 2002 % 08.12. 2006 # Ch. Purushotham. ….. Petitioner Vs. $ The Senior Divisional Commercial Manager, S.C. Railway, Vijayawada and others. …..Respondents ! Counsel for the petitioner: Sri Shiva ^ Standing Counsel for respondents: Sri R.S. Murthy < Gist: >Head Note ? [1] AIR 1998 SC 3038 2 (1999)8 SCC 582 3 (2001) 5 ALD 406 4 2006 WCC (L&S) 840 5 (2006) 6 SCC 794 6 1996(4)ALD 749 7 AIR 1970 SC 1255 8 1993(4) SCC 727 9 1996(3) SCC 364 10 AIR 1965 SC 155 11 AIR 1984 SC 289 12 1969 (3) SCC 372 13 AIR 1974 SC 696 14 1977(2) SCC 491 15 AIR 1982 SC 673 16 AIR 1974 SC 1596 17 1966 MPLJ 26 18 AIR 1969 NSC 186 19 AIR 1976 SC 2547 20 AIR 1989 SC 1933 21 2002(4) SCC 234 22 1985(2) APLJ Short notes page 13 (judgment in W.A.909 of 1982 dated 18.12.1984) 23 (2005) 3 SCC 241 24 AIR 1963 SC 779 26 AIR 1969 SC 966 27 AIR 1989 SC 1854 28 AIR 1966 SC 1827 29 1990(4) SCC 594 30 1991(2) SCC 716 31 1994 Suppl.(2) SCC 468 32 1977(1) SCC 472 THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 22221 OF 2002 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) Aggrieved by the order of the Central Administrative Tribunal, in O.A. No. 1888 of 1999 dated 20.07.2001 and R.A. No. 68 of 2001 dated 16.10.2001, Sri Ch. Purushotham, erstwhile Train Conductor Guard, South Central Railway, Vijayawada has preferred this writ petition. The petitioner joined as a Ticket Collector on 10.05.1976. He was initially promoted as a Senior Ticket Collector in 1979, thereafter as a Travelling Ticket Examiner in 1982, and as a Head Travelling Ticket Inspector in 1995. During the period when he was discharging the duties of a Travelling Ticket Inspector in the A/c chair cars of Train No. 7245 Ratnachal Express, running between Visakhapatnam and Vijayawada, he was issued charge memo dated 18.03.1997, containing two articles of charge. “Article-I That the said Sri Ch. Purushottam, TCG/BZA while working as such during the month of November, 1996 committed serious misconduct in that by Train No. 7245 express on 26.11.95, while manning AC Chair Car between VSKP and BZA, he allowed 7 passengers holding II/M/E tickets in the AC Chair Car without collecting Railway dues till the time of vigilance check, with an intention to collect the same at the destination from the passengers for misappropriating the amount for himself, thus causing loss of revenue to the Railway as detailed in the statement of imputations. Sri Ch. Purushottam, TCG/BZA violated instructions laid own in para 522 of IREM Vol. I Sri Ch. Purushottam, TCG/BZA thus failed to maintain absolute integrity and acted in a manner unbecoming of a Railway servant and violated Rules 3(1), (i) and (iii) and Rule 26 of Railway Services (Conduct) Rules, 1966. Article II He did not declare his private cash in the EFT Book. He also mixed up his private cash with Railway cash with an intention to cover up his illegal earnings and at a later stage to avoid his illegal earnings from being detected. Sri Ch. Purushottam TCG/BZA violated instructions laid down in CCM/SC letter No. C.569/TC/VI/EFT/Vol. III dated 01.08.1995 and C.569/TC/VII/EFT/ Vol. IV dated d24.01.1996. Sri Ch. Purushottam TCG/BZA thus failed to maintain devotion to duty and violated Rule 3(1) (ii) and Rule 26 of Railway Services (Conduct) Rules, 1966.” Sri K. Altaf Hussain, the Inspector who conducted the vigilance check in Train No. 7245 on 26.11.1996, was among the listed witnesses. The petitioner submitted his explanation to the charge memo on 20.10.1997 denying the charges. An enquiry officer was appointed. In the enquiry, the petitioner was defended by Sri P. Charles S. Rao his defence representative. The Enquiry Officer, in his report, noted that the petitioner had submitted his explanation, to the charge memo dated 18.03.1997, on 20.10.1997, that he did not put forth any defence during the enquiry, (either oral or in the form of a statement), that he did not submit his defence brief despite being given an opportunity by the enquiry officer to do so, and that he had categorically refused to answer any one of the enquiry officer’s questions during general examination. The Enquiry Officer held that no defence was highlighted by the petitioner during or after completion of the enquiry and as such he was constrained to discuss the evidence based on the available documents/oral evidence on record. The enquiry officer noted that the prosecution witness Sri K. Altaf Hussain, (the Vigilance Inspector), had informed that, on 26.11.1996, he had drawn the cash proceedings, recorded the statements of two passengers and had seized the reservation chart of the A.C. Chair Car Coach No. 7078 of 7245 Ratnachal Express. The enquiry officer also noted that, after closure of the case from the D.A. side, the petitioner had requested the enquiry officer to permit him to introduce the two passengers as his defence witnesses on the plea that he was not in a position to defend himself against the charge without these defence witnesses and that his request had been agreed to subject to the condition that it was his responsibility to present them. While holding that it was not mandatory on the part of the administration to provide passes for the journey of the defence witnesses, the enquiry officer directed that the defence witnesses be provided with passes, so that the petitioner had a more reasonable opportunity of defending himself. The enquiry officer noted that the petitioner had failed to produce these witnesses during the enquiry and his contention that discrimination was shown between the witnesses had been clarified and he was advised to inform whether there were any more defence documents or witnesses which he wished to submit. The enquiry officer noted that the petitioner had not examined himself as a witness, that he did not give his defence statement and that he did not answer any of the questions put to him by the enquiry officer in the general examination. The enquiry officer noted that the defence counsel had prompted and restrained the petitioner, did not allow him to answer the questions and had instructed him not to give answers to any of the questions and it was in such circumstances that the enquiry officer was constrained to conclude the enquiry. Even thereafter, the petitioner had informed that there would not be any defence statement in the absence of his being provided an opportunity to present his version by examining the defence witnesses. On analysis of the evidence on record, in respect of the first charge, the enquiry officer noted that the statement of the passengers were recorded to the knowledge of the petitioner and necessary certification to that effect had been made by him in Ex.P-2 and 3 and that these two exhibits were self-explanatory. The enquiry officer held that the reasons for non- production of the witnesses in the enquiry were to the knowledge of the petitioner himself as it was his responsibility to produce his defence witnesses and it was subject to the condition that he would take the responsibility of producing them that production of the defence witnesses had been agreed to. The enquiry officer noted that Sri P. A. Srinivasa Rao, in his statement marked as Ex.P-2, had stated that he was holding a Second Class ticket from Visakhapatnam to Tadepalligudem, that he had informed the TTE that he would be traveling in the a/c coach and by the time he went to the bath room and came back, the TTE had come, checked the Coach and had gone away. He stated that subsequently the vigilance check took place and thereafter the TTE had collected Rs.133/- from him and had tendered a receipt. Sri D.G. Srinivasa Raju, the other passenger from Simhachalam, stated that four adults had got into the a/c coach at Visakhapatnam, that they did not pay any amount to the TTE before the vigilance check, that their tickets were from Visakhapatnam to Rajahmundry, that their second class tickets had been given to the TTE at Annavaram and that, after the vigilance check, the TTE had collected Rs.484/- from them and had issued a receipt. The enquiry officer placed reliance on Ex.P-4 to hold that there were a large number of vacancies in the a/c coach and that as per the chart very few passengers were traveling therein. The enquiry officer noted that the allegation levelled against the petitioner was that he had allowed seven passengers holding second class tickets to sit in the a/c chair car without collecting railway dues till the time of vigilance check with the intention of collecting the amount from the passengers, at their destination, in order to misappropriate the amounts for himself. The enquiry officer held that, as per Ex.P-2 and P3, it was established that the tickets were in possession of the TTE right from Annavaram and though Sri P.A. Srinivasa Rao had stated that he had gone to the bath room, and before he could come back the TTE had checked and gone away, no passenger, even if he went to the toilet, would wait there for two hours which was the journey time from Visakhpatnam to Annavaram. The enquiry officer noted that as there was not much rush in the compartment, even after the passenger had come back from toilet, the petitioner could have realized the differential amount from him which was his primary responsibility as the TTE. With regards the statement of Sri D.G. Srinivasa Raju, the enquiry officer noted that though the tickets were taken from him at Annavaram, the dues were not realized by the petitioner till the vigilance check and, in view of the small number of passengers available in the coach, the amounts should have been realized within a reasonable time. The enquiry officer held that failure on the part of the petitioner to realize the dues was with malafide intentions as the passengers had also stated that, though they had informed and boarded the train, the petitioner did not collect any money until the vigilance check. The enquiry officer noted that both the coaches 7078 and 7183, manned by the petitioner, had a connecting vestibule and that it was not impossible for the petitioner to realise the amount if he intended to do so. The enquiry officer held that the reasoning put forth by the petitioner, vide question no. 18, that the passengers traveling in his coach had started an argument with the pantry car staff, had demanded eatables and had threatened to pull the chain, and he was therefore required to stop his check and pacify them for a long time before the vigilance inspector went into the coach, was not based on any evidence. The enquiry officer noted that, in answer to the said question, the vigilance inspector had stated that no such incident was reported to him on the day of the check either by the petitioner or by the passengers. The enquiry officer held that the petitioner’s contention was not based on evidence and could not be accepted. The enquiry officer held the first charge as established. With regards the second charge, the enquiry officer on noting that the petitioner, in Ex.P- 1, had admitted that he had mixed up the railway cash and private cash, held that the petitioner had left no scope for the checking authorities to ascertain as to the amount of private cash and the amount which constituted railway cash and that one could not be sure whether the petitioner, though he had declared the private cash, had got the amount physically as to that extent the amount could be inflated by other means. The enquiry officer rejected the petitioner’s contention that the instructions mentioned in the circular were not notified to him individually and held that the procedure, in cases where such instructions were not individually communicated, was that it would be displayed on the notice board and that it was in the petitioner’s interest to ensure that the circulars were followed. The enquiry officer referred to Rule 26 of the Railway Services (Conduct) Rules, 1966, which provides that, notwithstanding anything contained in the rules, a railway servant shall be governed by the administrative instructions, that may be issued from time to time, with regards their conduct, and held that it was incumbent on the petitioner to make himself aware of such instructions. The Enquiry Officer held the second charge also to have been established. The disciplinary authority, in his memo dated 25.11.1999, after careful consideration of the enquiry report and the representation dated 09.12.1998 submitted by the petitioner in reply thereto, agreed with the findings of the enquiry officer and held that the articles of charge were established. The disciplinary authority, in his order, noted the facts and circumstances relating to the case as under:- 1. The train left Visakhapatnam at 13.00 hrs as stated by the charged employee. 2. The Vigilance Inspector entrained at Annavaram station and started the check i.e., nearly two hours after the train left Visakhapatnam. 3. The train had only one halt between Visakhapatnam and Annavaram i.e, at Anakapalli. 4. Mr. G. Srinivasa Raju, one of the two passengers who gave the statement, stated that all four of his party had entrained at Visakhapatnam. 5. The other passenger Sri P.A. Srinivasa Rao stated that he had told the TTE that he was travelling by AC Chair Car. Though he had not mention where he entrained, it could be reasonably assumed that he entrained at Visakhapatnam or at Anakapalle. 6. The Charged Employee, in his report of the Vigilance Inspection check, has stated that “I have also produced four II Express tickets.” 7. The charged employee was incharge of the two AC Chair Car coaches only. 8. The computer charts for the two coaches showed one coach as fully vacant and the other coach with passenger. According to the Vigilance Inspector there were passengers sitting in both the coaches and there were only 15 passengers in the AC coach in which the check was conducted. 9. The Charged Employee stated that he had mixed up his private and railway cash. 10. Prior to the vigilance check only 6 extra-fare tickets were issued i.e., from Nos.966356 to 966361 for six passengers. 11.There were 15 confirmed names in the chart out of which 14 had entertained and were checked by the charged employee. 12.After the vigilance check, one extra fare ticket folio No.966362 was cancelled by the vigilance inspector. Thereafter 3 extra fare tickets were issued as follows: EFT. No. Ticket No. No. of persons From To ____________________________________________________________ 966363 7564484 2 VSKP RJY 966364 7564488 1 VSKP TDD 966365 6579022 to 4 VSKP RJY 7569025 13. Obviously the charged employee himself had written the tickets incompletely and the series were not tallying. But they were issued for 7 passengers. With regards the first charge, the disciplinary authority held that the petitioner had allowed seven passengers, holding second class tickets, to sit in the a/c chair car without collecting railway dues with the intention of collecting the same from the passengers at their destination, misappropriate the amounts for himself and cause loss of revenue to the railways. The disciplinary authority held that it was possible to check the confirmed passengers and issue nine extra fare tickets before the train reached Anakapalle, let alone Annavaram, that being the case there was no reason why the petitioner should have waited till Annavaram without issuing extra fare tickets. The disciplinary authority noted that all but one of the extra fare tickets, which the petitioner had issued prior to the vigilance check, were for passengers bound to Vijaywada whereas all the eleven second class tickets for which he had not issued extra fare tickets were for destinations short of the last station i.e., Vijayawada. While holding that failure on the petitioner’s part, in not issuing the extra fare tickets, was established beyond doubt, the disciplinary authority held that from the extra fare tickets issued prior to the vigilance check as well as the left over tickets, based on preponderance of probabilities, it was clear that the tickets had not been issued with the malafide intention of collecting the money from the passengers when they alighted from the train and thereafter misappropriate the same. The disciplinary authority noted that the petitioner had displayed an obstructive attitude right from the inception when the charge memo was issued, that the enquiry officer had taken reasonable steps of intimating the defence witnesses to attend the enquiry and that, in any case, the enquiry officer had no police powers to arrest witnesses and produce them nor judicial powers to issue non-bailable warrants and that, if the charged employee felt that these witnesses were the key to his defence, he should have supplemented the efforts of the enquiry officer and produced the witnesses himself. The disciplinary authority held that non-cooperation of the petitioner was with a view to later claim that he had been denied reasonable opportunity and that the enquiry officer cannot be said to have been biased only because unlisted witnesses were not produced in the enquiry. The disciplinary authority agreed with the findings of the enquiry officer that both the charges were proved and, vide memo dated 25.01.1999, imposed on the petitioner the penalty of compulsory retirement from service. According to the petitioner none of his contentions were considered before the impugned order of punishment was passed. Aggrieved thereby, the petitioner preferred an appeal to the 2nd respondent on 03.02.1999 reiterating the contentions raised by him before the disciplinary authority. In his order dated 28.09.1999 the appellate authority, after carefully going through the appeal preferred by the petitioner, the enquiry report and other relevant documents, and after giving the petitioner a personal hearing on 06.09.1999, noted that the procedure laid down had been fully complied with, that the findings of the disciplinary authority were warranted by the evidence on record and that the charges framed against the petitioner were proved in the enquiry. The appellate authority agreed with the findings of the enquiry officer and noted that the petitioner had allowed seven passengers possessing second class tickets into the a/c coach without collecting the difference in the fare prior to the vigilance check at Annavaram which showed that he had wantonly not collected the amounts with malafide intentions for his personal gain. The appellate authority held that the petitioner had failed to declare his private cash in the extra fare ticket book as per the extant rules but had only entered it in the rough journal. The appellate authority also noted that, during the personal hearing, the petitioner had not thrown any light on any new aspect and that, on perusal of his service register, it was noticed that he had a tendency of not collecting charges, difference in fares and of not issuing receipts for the amounts collected from passengers in sleeper coaches. The appellate authority held that the punishment imposed needed no modification and that it stood good. The petitioner was informed that he had a right of filing a revision against the order of the appellate authority. According to the petitioner the appellate authority, in his order dated 28.09.1999, had mechanically rejected the appeal confirming the penalty imposed on him. Aggrieved thereby, the petitioner filed O.A. No.1888 of 1999 and the Central Administrative Tribunal, Hyderabad, by order dated 20.07.2001, dismissed the O.A. The petitioner sought review of the order passed in O.A. No. 1888 of 1999 dated 20.07.2001 in R.A. No. 68 of 2001 and the said review application was also dismissed by order dated 16.10.2001. Sri Shiva, learned counsel for the petitioner, would seek to have the impugned order of punishment quashed on the following grounds: 1. Material witnesses were not examined in the departmental enquiry. While the statements of two of the passengers were recorded by the vigilance Inspector, these two passengers were neither examined nor produced for cross-examination in the departmental enquiry despite a specific request by the petitioner to have them summoned. The petitioner was, thereby, denied reasonable opportunity of effectively defending himself. 2. Even though the vigilance officer was examined in the departmental enquiry, a copy of the vigilance report was not furnished to the petitioner. 3. The order of the appellate authority is cryptic and is bereft of reasons. Since none of the contentions, raised by the petitioner, were considered the order of the appellate authority suffers from non-application of mind. Sri Shiva, learned Counsel for the petitioner, would refer to the provisions of the Departmental Enquiries Act in support of his submission that the enquiry officer was statutorily required to have the two passengers, whose statements had been recorded by the Vigilance Inspector, produced as witnesses in the departmental enquiry. According to the learned Counsel, on the petitioner’s specific request to have these two passengers examined in the enquiry the enquiry officer, finding merit in the said contention, had sent an intimation calling upon them to participate in the enquiry, that on the mere ground that the summons sent to one of the passengers i.e., Sri D.G. Srinivas Raju was returned for want of correct address, the enquiry was held and completed without any further efforts being made to have them summoned as witnesses in the departmental enquiry. Learned Counsel would submit that the enquiry officer had failed to take effective steps to secure their presence either as prosecution witnesses or as defence witnesses, that if these two passengers had been summoned as prosecution witnesses, the petitioner would have had the opportunity of cross- examining them, and even if they could not be summoned as prosecution witnesses they should have been summoned as his defence witnesses, since he had requested that they be so summoned to enable him to substantiate his contention that he was not guilty of the charge. With regards the second charge, learned Counsel would submit that since the petitioner had disclosed his private cash when he boarded the train, and had entered it in the “on and off register” maintained at Visakhapatnam station and as it was not the case of the respondents that he had on his person excess cash, the article of charge would, at best, be a mere procedural irregularity. Learned Counsel would submit that since the private cash had been entered in the register maintained in the railway station as well as in the rough journal book maintained by the petitioner, while he was travelling on the train, he could not be held guilty of the charge and that, in any event, this procedural irregularity did not warrant imposition of such a major punishment which deprived the petitioner of his remaining years of service. Learned Counsel would place reliance on State of U.P. Vs. Shatrughan Lal[1]; Hardwari Lal Vs. State of U.P.[2] and K. David Wilson Vs. Secretary to Government[3]. Sri R.S. Murthy, learned Standing Counsel for the respondents, would invoke the doctrine of Res ipsa loquitur to contend that since the facts in the present case speak for themselves, and a mere reading of the evidence on record would reveal that the charges are established, non-examination of the passengers was of no consequence. Learned Standing Counsel would submit that the petitioner had also affixed his signature on the statements of the passengers, as recorded by the vigilance inspector, which would substantiate the evidence of the vigilance inspector regarding the statements given to him by the passengers concerned. Learned Standing Counsel would submit that, since the vigilance report was not relied upon in the departmental enquiry, failure to furnish a copy thereof was of no consequence. He would submit that the petitioner had been furnished copies of the statements of the two passengers despite which he neither chose to adduce any evidence in his defence nor