WP(C) 5158/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE A.C.UPADHYAY Ranjan Gogoi, J The writ petitioner is the wife of one Late K.C. Sarkar who had instituted this writ petition challenging an order dated 28.8.2008 passed by the learned Central Administrative Tribunal, Gauhati Bench dismissing the Original Application (O.A. No. 109/06) filed by him. In the proceedings before the learne d Tribunal an order dated 27.12.2005 passed by the Joint Secretary (E &P) Railwa y Board imposing the penalty of forfeiture of pension and gratuity of Late K.C. Sarkar was under challenge. Late Sarkar who had instituted the writ petition in question having died on 31.1.2010, the present writ petitioner, as his widow, ha s been permitted to pursue the reliefs sought in the writ petition by impleading herself as the writ petitioner. 2. The relevant facts that will be required to be noticed for the p urposes of the present adjudication may be summarized below: At the relevant point of time the deceased writ petitioner was w orking as the Principal of the Zonal Training Centre, NF Railway at Alipurduar. On 29.8.98 a complaint was filed by a trainee, one Amlan Bhadra, to one AR Choud hury, RSO/ CRI stating that the trainees in the Zonal Training Centre at Alipurd uar were being made to pay money to the deceased writ petitioner as a condition for passing of the different examinations conducted by the Centre. The aforesaid complaint was followed by another complaint dated 30.8.98 addressed to one Sri R.K. Das, Inspector, CBI, Siliguri Unit through the RSO/ CRI. Acting pursuant to the aforesaid complaints, on 1.9.98, a surprise check was conducted by a team o f CBI Officers along with independent witnesses on the person of one Sri J.K. Da s, a trainee. From the aforesaid person seven numbers of question papers (hand w ritten) and answerscripts were recovered. The aforesaid trainee i.e. Sri J.K. Da s had stated that he had paid a sum of Rs. 4000/- (Rs. 2000/- each) on his own behalf and on behalf of the other trainee Amlan Bhadra to the deceased writ peti tioner for supplying the question papers. It may be noticed, at this stage, that a memorandum of the aforesaid surprise check was drawn up which was later exhib ited as Exhibit-7 in the disciplinary proceeding that was initiated against the deceased writ petitioner. On the same day, i.e. 1.9.98 , another surprise check was conducted by the same team of CBI officers along with the same independent w itnesses in the office premises of the deceased writ petitioner. In the course of said surprise check a sum of Rs.8,000/-, in denomination of Rs.100/-, was rec overed from the Almirah in the office. The said amount was found in a bag, whic h was kept inside a brown envelope on which the names of JK Das and Amlan Badra were written. In the written memorandum that was prepared in respect of the afo resaid surprise check, it was recorded that no satisfactory explanation could be offered by the deceased petitioner in respect of the aforesaid money that was r ecovered from his office. The said written memorandum was exhibited in the disc iplinary proceeding against the deceased writ petitioner as Exhibit-7(1). 3. The materials on record indicate that after the aforesaid surpri se checks were conducted the deceased writ petitioner was subjected to several r ounds of interrogation by the CBI authority and the statement of the trainee Am lan Bhadra was also recorded on 21.12.98. A reading of the statement of Amlan B hadra dated 21.12.98, which is available on the records of the case, indicates t hat the said trainee had clearly implicated the deceased writ petitioner by stat ing that there was a demand for money in exchange of question papers which was s upplied to Sri JK Das on payment of a sum of Rs.4000/-(Rs. 2000/- each). Howeve r, what would be significant to be noticed in this regard is that no criminal ca se was filed by the CBI in respect of the alleged incident. 4. Thereafter, a memorandum dated 30.5.2001 was issued by the Gener al Manager(Commercial), NF Railway, Maligaon proposing to hold an enquiry agains t the deceased writ petitioner under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 . The substance of the imputation of mis-conduct in res pect of which the enquiry was proposed to be held was set out in an enclosed sta tement of articles of charges which was annexed as Annexure-1 to the memorandum dated 30.5.01. A statement of imputations of mis-conduct or misbehaviour in res pect of each article of charges was also enclosed as Annexure-II, whereas the li st of documents by which and the list of witnesses by whom the article of charge s were proposed to be proved were also enclosed as Annexure-III & IV to the memo randum dated 30.5.2001. The memorandum dated 30.5.2001 was subsequently correct ed by a corrigendum dated 30.8.2001. The sum and substance of the corrections m ade by the corrigendum dated 30.8.2001 was that in Annexure-I & II, the figure o f Rs.4000/- as mentioned stood corrected as Rs.2000/-. 5. For the purpose of clarity the statement of the articles of char ges enclosed as Annexure-I to the memorandum dated 30.5.2001 and the statement o f imputations of misconduct annexed as Annexure-II to the said memorandum may be usefully extracted below: ANNEXURE -I STATEMENT OF ARTICLE OF CHARGES AGAINST SHRI K.C. SARKAR, EX. PRINCIPAL/ZTC/ALIP URDUAR JN. NOWS STM/CON Shri K.C. Sarkar, STM/Con while posted and functioning as Principal, Zon al Training Centre, Alipurduar failed to ensure fairness in conducting the exami nation of trainee CC’s at the centre. Shri Sarkar, disclosed the question papers of the examination to be held on 3.9.1998 at the Zonal Training Centre for moni tory consideration of Rs. 4000/- per candidate. Shri Sarkar failed to give any tangible explanation about the recovery f rom his office almirah a sum of Rs. 8000/- in an envelop with names of two candi dates of the examination written on top. Thus Shri K.C. Sarkar failed to maintain absolute integrity, displayed l ack of devotion to duty and acted in a manner unbecoming of a Railway Servant, t hereby violated Rule 3.1(i)(ii) & (iii) of Railway Service Conduct Rules, 1966. ANNEXURE-II STATEMENT OF IMPUTATON OF MISCONDUCT/ MISBEHAVIOUR AGIANST SHRI K.C.SARKAR, EX. PRINCIPAL/ZTC/ ALIPURDUAR NOW STM/CON/MLG. 1. That Shri K.C. Sarkar was posted and functioning as Principal, Zonal Tra ining Centre, N.F. Railway, Alipurduar during September 1998. 2. That on 01.09.98 a surprise check was conducted by a team consisting of the members of CBI/ Siliguri, RSO, SBI/ Siliguri and independent witnesses in th e official chamber of Shri K.C. Sarkar, Principal Zonal Training Centre, N.F. Ra ilway, Alipurduar. 3. That during the surprise check a sum of Rs. 8000/- G.C. Notes of 100 den omination were recovered from the Steel Almirah which was placed in the office c hamber of Shri K.C. Sarkar. 4. That on 01.09.98 before conducting the surprise check in the office of S hri K.C. Sarkar, Principal, Zonal Training Centre, N.F. Railway, Alipurduar, one Shri Jayanta Kumar Das, Tr. CC, N.F. Railway, Alipurduar was intercepted by the checking team, while proceeding to the Zonal Training centre in a rickshaw. 5. That the hand written (manuscript) question and answer papers supplied b y Shri K.C. Sarkar, Principal, Zonal Training Centre, N.F. Railway, Alipurduar a nd pertaining to the forthcoming examination scheduled to be held on 3.9.98 were recovered from the possession of said Shri Jayanta Kumar Das along with other p apers. That those manuscripts question and answer papers were supplied by Shri K.C. Sar kar, Principal, Zonal Training Centre, N.F. Railway, Alipurduar to Shri Jayanta Kumar Ds, Tr. CC/LMG. That Shri Sarkar, Principal ZTC had accepted a sum of Rs. 4000/- each fr om said Shri J.K. Das and Shri Amlan Bhadra through Shri J.K. Das in lieu of sup plying manuscripts question and answer papers to Shri J.K. Das and Shri Amlan B hadra, both Tr. CC and candidates for the examination on 3.9.98. That Shri K.C. Sarkar, Principal, Zonal Training Centre, N.F. Railway, A lipurduar failed to maintain absolute integrity, displayed lack of devotion to d uty and acted in a manner unbecoming of a Railway servant and this committed gro ss misconduct. Thus the said Shri Sarkar, Principal, ZTC contravened Rule 3.1(i)(ii) & (iii) of Railway Service Conduct Rules, 1966. . 6. The deceased writ petitioner submitted his reply to the aforesai d memorandum dated 30.5.2001 read with the corrigendum dated 30.8.2001 by denyin g the charges levelled. Thereafter, an enquiry was held, in the course of which, eight witnesses were examined in support of the charges. A large number of docu ments were exhibited in the course of the enquiry held. Defence witnesses were a lso examined by the deceased writ petitioner who had cross-examined the witnesse s examined in support of the charges. It will be required to be noticed that bef ore the enquiry had actually commenced on 24.4.2002 the deceased writ petitioner superannuated from service w.e.f 28.2.2002. The enquiry proceedings, therefore, were held after the retirement of the deceased writ petitioner. The same were c oncluded by submission of the enquiry report dated 28.2.2003 holding the charges levelled against the deceased writ petitioner to be proved and established. The petitioner was given a copy of the enquiry report against which he had filed a representation. Thereafter, it appears that the matter was referred to the Centr al Vigilance Commission which body by a communication dated 3.12.2003 rendered i ts opinion against the deceased writ petitioner and recommended exemplary punish ment. Subsequently, the matter was also referred to the Union Public Service Com mission. The Commission by communication dated 28.10.2005 suggested that the pun ishment of forfeiture of pension and gratuity should be imposed. Accordingly, th e said punishment has been imposed by the order dated 27.12.2005 of the Joint Se cretary, (E&P) Railway Board. Against the aforesaid order the deceased writ peti tioner, as already noticed, moved the learned Tribunal by instituting O.A. No. 1 09/06. The learned Tribunal by order dated 28.8.2008 took the view that the pow er of judicial review being highly circumscribed the same cannot be exercised to appreciate the evidence adduced in the course of a departmental/ disciplinary proceeding. Broadly on the aforesaid basis the learned Tribunal came to the conc lusion that the case of the deceased writ petitioner was not fit and appropriate for interference. Accordingly, the Original Application was dismissed occasioni ng the present approach to this Court. 7. We have heard Sri KN Choudhury, learned senior counsel for the p etitioner and Sri S Sarma, learned counsel appearing for the respondents. 8. The submissions advanced by Sri Choudhury lies within a short co mpass. According to Sri Choudhury, who has taken the Court elaborately through t he report of the Enquiry Officer particularly the evidence adduced in the course of the disciplinary proceeding, the present is a case where the findings of gui lt have been recorded against the deceased writ petitioner without their being a ny evidence on record. To substantiate that the present is a case of no evidenc e , Sri Choudhury has referred to the relevant part of the evidence of the witn esses examined in support of the charges to show that neither the handwriting in the question papers recovered from Sri JK Das has been demonstrated to be the h andwriting of the deceased writ petitioner, nor it has been proved that the said question papers were the question papers actually meant for the examination sch eduled to be held on 3.8.98. Sri Choudhury has also referred to the purport and effect of the charges levelled against the petitioner and has contended that the failure of the department to prove the facts noted above would be sufficient to demolish the other charges, inasmuch as, the charges in respect of receipt and recovery of money are consequential to the main charge which is one of furnishi ng of question papers by the deceased writ petitioner to the trainees in questio n. 9. The submission advanced on behalf of the petitioner has been sou ght to be controverted by Sri S Sarma, learned counsel for the respondents. Acco rding to Sri Sarma, there is overwhelming evidence on record to show that the de ceased writ petitioner had acted dishonestly and has abused his power as the Pri ncipal of the Zonal Training Centre, Alipurduar. It is further submitted by the learned counsel for the respondents that the materials on record clearly establi sh that the deceased writ petitioner had made available the question papers of t he concerned examination to thetwo trainees on payment of Rs. 4,000/- (Rs. 2,00 0/- each) by them. The charges, therefore, according to Sri Sarma, are fully pro ved and established warranting no interference with the punishment imposed. 10. We have considered the elaborate arguments advanced on behalf of the contesting parties and the materials on record, particularly, the report of the Enquiry Officer which contains a detailed recital of the evidence tendered by all the eight witnesses examined in support of the charges. We have also kept in mind that in the present process of adjudication proof of guilt has to be es tablished by the disciplinary authority on a preponderance of probabilities and not by the yardstick of beyond all reasonable doubt. 11. A reading of the statement of the articles of charges drawn agai nst the deceased writ petitioner enclosed as Annexure-1 to the memorandum dated 30.5.2001, which has already been extracted above, would go to show that in esse nce there were two charges against the deceased writ petitioner. The first is th at the deceased writ petitioner as the Principal of the Zonal Training Centre, A lipurduar had failed to maintain fairness in the conduct of the examination of t he trainees and, in particular, had disclosed the question papers of the examina tion scheduled on 3.9.98 for monetary consideration of Rs. 4,000/- (subsequently corrected as Rs. 2,000/-) per candidate. The second charge against the deceased writ petitioner is that he had failed to give any satisfactory explanation with regard to the recovery of the sum of Rs. 8,000/- from his office which amount w as contained in an envelope with the names of the two trainees written thereon. 12. A reading of the two charges levelled against the deceased writ petitioner would indicate that the gravamen of the first charge is that the dece ased writ petitioner disclosed the question papers of the examination scheduled on 3.9.98 to the two trainees on payment of a sum of Rs. 2,000/- per candidate. Exchange of money between the deceased writ petitioner and the two trainees is a consequence of the alleged disclosure of the question papers of the concerned e xamination to the said trainees. By itself, exchange of money between the deceas ed writ petitioner and the two trainees, even if proved, will be of no consequen ce if the first ingredient of charge No.1, namely, that the deceased writ petiti oner had disclosed the question papers to the two trainees is not proved. Simila rly, if the aforesaid first charge is not proved the recovery of Rs. 8000/- from the office of the deceased writ petitioner will be of little consequence in det ermining the culpability or liability of the deceased writ petitioner in the lig ht of the charges framed. 13. Having analyzed and understood the essence of the charges agains t the deceased writ petitioner in the above manner, the Court may now proceed to embark upon a consideration of the evidence on record to find out as to whether the arguments advanced by Sri Choudhry, learned counsel for the petitioner that the present is a case of no evidence has any substance. 14. Sri B.K. Das, Chief Manager (Banking Operations), SBI, Corporate Office, Mumbai was examined as P.W.1 in the disciplinary proceedings in questio n. He was called by the CBI to be a witness to the surprise checks conducted on 1.9.98. The said witness who was examined on 13.5.2002, inter alia, stated that he had seen the question papers being recovered from the person of Sri J.K. Das. The witness had also stated that the CBI had asked the Vice-Principal of the Tr aining Centre, one Sri D.K. Ghosh (P.W.3), whether the question papers recovered from Sri J.K. Das was in the handwriting of the Principal of the Training Centr e i.e. the deceased writ petitioner. P.W.1 had deposed that the answer of the Vi ce-Principal Sri D.K. Ghosh was to the effect that the handwriting may or may no t be of the Principal i.e. the deceased writ petitioner. 15. P.W.2, Subhasish Karmakar, an accountant of the SBI was the seco nd independent witness examined in respect of the surprise checks that were cond ucted by the CBI on 1.9.98. He was examined on 12.11.2002. According to P.W.2, t he surprise check was conducted on J.K. Das at the junction of Hospital Road nea r DRM’s office and several handwritten documents were recovered. P.W.2 had speci fically deposed that the question papers recovered from Sri JK Das were not veri fied with the original question papers of the examination to be held on 3.8.98 w hich original question papers were kept in the office of the Principal. This wit ness had further stated that to prove the handwriting in the question papers the Vice-Principal of the Training Centre, Sri DK Ghosh, was asked to give his opin ion but he had replied that the handwriting may nor may not be that of the decea sed writ petitioner. However, P.W.2 in his statement before the Enquiry Officer had stated that the question papers that were recovered from Sri J.K. Das pertai ned to the examination scheduled to be held on 3.9.98 in which both J.K. Das and Amlan Bhadra were candidates. 16. The third witness in the disciplinary proceedings in question is Sri D.K. Ghosh, Vice-Principal of the Zonal Training Centre, Alipurduar. He wa s examined on 15.5.,2002. This witness had stated that the handwriting in the qu estion papers may or may not be of the Principal of the Training Centre as he w as not aware of the handwriting of the Principal. To another specific question P .W.3 had replied that as the question papers were written in capital letters he could not recognize whether the same were those of the Principal. 17. P.W.4, J.K. Das who was examined on 13.6.2002 had mainly deposed with regard to the recovery of Rs. 8000/- from the office of the Principal. He, however, confirmed that the memorandum of the surprise checks [Exhibit-7 and 7( 1)] were correctly recorded and that the question papers were meant for the exam ination scheduled to be held on 3.9.98. 18. The trainee at whose instance the entire episode had started i.e . Amlan Bhadra was examined as P.W.5 in the departmental proceeding. In his stat ement before the Enquiry Officer, Amlan Bhadra had clearly stated that the state ment shown to have been recorded by the CBI on 21.12.98 was not his statement an d he could not remember whether he had paid any money to be paid to the Principa l of the Training Centre i.e. the deceased writ petitioner. 19. One Sri R.K. Agarwal, Inspector, CBI was examined as P.W.6 in th e disciplinary proceedings held. This witness was asked by the Enquiry Officer a s to how they could presume that the question papers were in the handwriting of the Principal. In reply, P.W.6 had stated that the question papers were show to the Vice Principal Sri D.K, Ghosh who had stated in reply that the same may hav e been written by the Principal i.e. the deceased writ petitioner. In response t o another question by the Enquiry Officer as to whether any other steps were ta ken to find out the identity of the handwriting in the question papers, the answ er given by this witness was to the effect that he had not conducted the investi gation of the case after the surprise checks. 20. A reading of the evidence of the witnesses examined in support o f the charges, the details of which have been mentioned above, would go to show that though P.W.2 had stated that the question papers recovered from J.K. Das on 1.9.98 pertained to the examination scheduled to be held on 3.9.98 and a simila r statement was also made by P.W.4, J.K. Das, who had also confirmed the writte n memorandum of the surprise checks as being correctly recorded, no attempt was made to co-relate the question papers recovered from J.K. Das with the original of the question papers meant for the examination scheduled on 3.9.98. The said o riginal question papers were available in the office of the Principal, as stated by P.W.2. A co-relation between the question papers recovered and the original kept in the office of the Principal was necessary in view of the fact that from the communication dated 28.10.2005 of the U.P.S.S. (Para 7.2) it is evident that the question papers of the examination held on 3.9.98 were different from those recovered on 1.9.98. In the absence of any such co-relation the statements of P .W.2 and P.W.4 that the question papers recovered on 1.9.98 were meant for the e xamination held on 3.9.98 will remain mere assertions of the witnesses. Such ass ertions will not constitute proof of the fact alleged. Such proof lay in the ori ginal question papers which were, according to P.W.2, available in the office of the Principal. 21. In the above circumstances, mere recovery of the question papers from a trainee/candidate without co-relating the same to the question papers se t for the examination scheduled to be held on 3.9.98 would be of little signific ance in attributing liability or culpability to the deceased writ petitioner in view of the specific charge framed that the deceased writ petitioner had furnish ed the question papers of the examination to be held on 3.9.98 to the trainees. To prove the charge that question papers pertaining to the examination to be hel d on 3.9.98 were furnished by the deceased writ petitioner to the two trainees, it had to be conclusively proved by the disciplinary authority that the question papers recovered from J.K. Das on 1.9.98 were in fact the question papers meant for the examination to be held on 3.9.98. Such co-relation could have been eas ily made, inasmuch as, the evidence adduced clearly indicate that the original q uestion papers meant for the examination scheduled to be held on 3.9.98 were ava ilable in the office of the Principal. Yet, for reasons not known, the aforesaid co-relation was not attempted. 22. The question papers recovered from J.K. Das were hand written. I f any liability is to be attributed to the deceased writ petitioner for passing on the question papers to J.K. Das it had to be conclusively proved that the que stion papers were in the handwriting of the deceased writ petitioner or any othe r person at the instance of the deceased writ petitioner. This was not done. Rat her, the Vice-Principal of the Training Centre was merely asked as to whether th e handwriting in the question papers were that of the deceased writ petitioner t o which he had replied in a very ambiguous manner by stating that it may or may not be in the handwriting of the deceased writ petitioner. On this issue even th e UPSC to whom a reference of the matter was made, in para 7.2 of its recommenda tions, had observed that the documents i.e. the offending question papers should have been sent to the examiner of questioned documents. This was also not done . Though