IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 22.10.2010 Coram: The Honourable Mr.Justice ELIPE DHARMA RAO AND The Honourable Mr.Justice K.K.SASIDHARAN WRIT PETITION NO.37607 OF 2007 J. Jason Joseph ... Petitioner Versus 1. The Union of India rep.by the Member (Traffic), Railway Board Ministry of Railways, New Delhi. 2. The General Manager Southern Railway Headquarters Office Park Town, Chennai-600 003. 3. The Registrar Central Administrative Tribunal Madras Bench, Chennai-104. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus to call for the records relating to the third respondent Tribunal's order made in Original Application No.559 of 2006 dated 30.5.2007, confirming the order of the first respondent communicated vide letter No.P(A) 86/Misc/117 (Pilot) dated 30.6.2006, to quash the same and consequently direct the first and second respondents to reinstate the petitioner back into railway service with all consequential benefits both monetary as well as service. For Petitioner .. Mr.L.Chandrakumar For Respondents .. Mr.R.Thiagarajan Senior Counsel for Mr.V.G.Suresh Kumar for RR1 and 2 ***** https://hcservices.ecourts.gov.in/hcservices/ O R D E R K.K.SASIDHARAN, J INTRODUCTORY: This case concerns the belated exercise of Revisional jurisdiction by the General Manager, Southern Railways at the instigation of the vigilance wing for the purpose of substituting the punishment of reduction in rank by removal from service, notwithstanding the fact that it was only at the instance of the Chief Vigilance Inspector, who was inimically disposed of against the petitioner, a trap was arranged, on the basis of which, the very disciplinary proceeding was initiated. 2. The petitioner challenges the order dated 30 May, 2007 in O.A.No.559 of 2006 on the file of the Central Administrative Tribunal whereby and whereunder the original application challenging the punishment of removal from service was confirmed. THE FACTS: 3. The petitioner was initially appointed as Ticket Collector in Indian Railways in the year 1979. Subsequently, he was promoted to the post of Senior Ticket Collector/Travelling Ticket Examiner and Travelling Ticket Inspector. 4. While the petitioner was working as Travelling Ticket Inspector, he was issued with a major penalty charge memo dated 19 February, 1997 by the Divisional Commercial Manager, Chennai for the alleged misconduct committed by him. In the said charge memo, it was stated that while working as Train Ticket Inspector in Train No.6007 Mail, on 12 October, 1996, his records were checked by the vigilance wing and it was found that he collected substantial amount from passengers, who were travelling in First Class with Sleeper Class ticket without accounting for the conversion charges. Altogether there were seven charges. The petitioner submitted his detailed explanation denying the charges. The disciplinary authority opined that the explanation was not convincing and accordingly, inquiry officer was appointed to inquire into the charges. The inquiry officer conducted the inquiry and submitted his report, holding that the charges were proved. Based on the report of the inquiry officer, the Senior Divisional Commercial Manger of Southern Railways at Chennai imposed the penalty of removal from service as per proceedings dated 15 September, 1999. 5. The order of punishment was challenged by the petitioner before the Central Administrative Tribunal alleging violation of the principles of natural justice. The Central Administrative Tribunal as per order dated 18 September, 2001 set aside the penalty of https://hcservices.ecourts.gov.in/hcservices/ removal from service and directed the railway administration to proceed with the inquiry from the stage of examination of witnesses. 6. Subsequently, another inquiry officer was appointed. The inquiry officer submitted his detailed report once again holding that the charges were proved. Accordingly, the Senior Divisional Commercial Manager passed an order of dismissal from railway service, as per proceedings dated 26 September, 2002. 7. The petitioner preferred a statutory appeal before the Additional Divisional Railway Manager. The appellate authority opined that, out of seven charges, charges 2,3,4 and 5 were not proved. The appeal was accordingly allowed by modifying the punishment. Instead of removal, the petitioner was placed in the lower post for a period of three years with recurring effect. 8. The order passed by the appellate authority on 20 February, 2003 was implemented by posting the petitioner as Senior Ticket Inspector at Gummidipoondi Railway Station. The petitioner joined the said station on 26 February, 2003. 9. Subsequently, the petitioner was transferred to Tiruchirappalli Division. 10. While the matters stood thus, the second respondent by invoking revisional jurisdiction issued a notice dated 4 March, 2004 calling upon the petitioner to show cause as to why he should not be given the punishment of dismissal from railway service. The petitioner on receipt of the said communication submitted his detailed reply on 15 April, 2004. 11. The General Manger, Southern Railways as per his proceedings dated 8 September, 2005 set aside the order passed by the appellate authority and imposed the punishment of dismissal from railway service. 12. The order passed by the second respondent was challenged by the petitioner before the Railway Board. The appeal was rejected as per order dated 30 June, 2006. Feeling aggrieved, the petitioner filed original application before the Central Administrative Tribunal in O.A.No.559 of 2006. THE JUDGMENT OF THE TRIBUNAL: 13. The Central Administrative Tribunal was of the view that paragraph 705 of the Railway Vigilance Manual was more in the nature of administrative instructions and as it has no statutory force, any violation of the provisions of the manual would not give the delinquent officer, a right to challenge disciplinary proceedings. The Tribunal also found that there was no time limit for invoking the revisional jurisdiction by the General Manager and as such, there was https://hcservices.ecourts.gov.in/hcservices/ no merit in the contention that the review was undertaken after a period of one year. In short, the Tribunal opined that the petitioner was given full opportunity to present his case before the inquiry officer and the revisional authority was having sufficient materials to arrive at the conclusion that the punishment awarded by the appellate authority was not proportionate to the charges levelled against the petitioner. Accordingly, the original application was dismissed as per order dated 30 May, 2007. It is the said order which is challenged in this writ petition. 14. Since the respondents have filed a reply statement in O.A.No.559 of 2006, they have not filed a separate counter affidavit in the present writ petition. SUBMISSIONS: 15. The learned counsel for the petitioner would contend thus: (a) The very trap arranged by the vigilance was in violation of paragraph 705 of the Railways Vigilance Manual. As per the said provision, the Investigating Officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses. In the case on hand, it was a pre-planned trap and as such, there was sufficient time for the vigilance team to take the assistance of gazetted officers from Railways to act as independent witnesses. Failure on the part of the vigilance to take such independent witnesses have to be taken serious note of in this matter, in view of the factual background, inasmuch as the Chief Vigilance Inspector was inimically disposed of against the petitioner, on account of an earlier incident. Therefore, the very trap was a stage managed one with the sole purpose to oust the petitioner from railway service. (b) The appellate authority while modifying the punishment indicated reasons for its interference in the matter. However, in the revisional notice issued by the General Manager, no reasons were indicated as to why the punishment imposed by the appellate authority was not sufficient in the facts and circumstances of the case. (c) The petitioner was re-instated into service, consequent to the order passed by the appellate authority. It was long after that the second respondent has initiated the revisional proceedings. The revision was highly belated and as such, the very initiation of proceedings caused substantial prejudice to the petitioner. (d) The inquiry officer committed serious irregularities in the matter of conduct of inquiry. The previous statement of witnesses were marked without examining those witnesses. Those statements were taken as primary evidence to arrive at a finding of guilt against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ (e) The coat alleged to have been thrown away by the petitioner and recovered by the vigilance official was not produced before the inquiry officer. 16. The learned Senior Counsel for the Southern Railways would contend thus: (a) The petitioner was involved in a trap case and the very trap was on the basis of the reasonable information received by the vigilance wing. Proceedings were initiated on the basis of the report submitted by the vigilance and as such, the petitioner was not justified in contending that there were no materials before the inquiry officer. (b) Paragraphs 704 and 705 of the Railway Vigilance Manual were in the nature of administrative instructions. It has no statutory force. Therefore non-complaince of those provisions would not result in nullifying the trap organized by the vigilance. (c) The General Manager in his capacity as revisional authority initiated revisional proceedings after one year and fourteen days and given the nature of misconduct, the said period was not unreasonable. DISCUSSION: 17. The basic material for initiating departmental proceedings against the petitioner was the report submitted by the vigilance wing after conducting the trap in train No.6007 Mail on 12 October, 1996. 18. Before considering the validity of the departmental trap organized by the vigilance wing, the basic facts relating to the strained relationship between the petitioner and the Chief Vigilance Inspector, Southern Railways requires consideration. 19. The petitioner was cited as a witness in a complaint relating to a co-employee by name Tmt.Chitra Ramanathan. The Chief Vigilance Inspector Thiru Ravikumar appears to have shown undue interest in the said matter and called upon the petitioner to abstain from tendering evidence. The said advise was not taken seriously by the petitioner and he appeared before the authorities and tendered his evidence, which ultimately resulted in the dismissal of the said officer. 20. While the petitioner was on duty on 8 October, 1996 in 2640 Express from Bangalore to Madras, he was assaulted by the Chief Vigilance Inspector. The incident was witnessed by Thiru V. Gopinath, an officer of Indian Overseas Bank at Madras. The petitioner preferred a complaint against Thiru Ravikumar, Chief Vigilance Inspector on 9 October, 2010. The said complaint reads thus: https://hcservices.ecourts.gov.in/hcservices/ "Respected sir, Sub:- Previous enmity against me by Sri.Ravikumar CVI/MAS/S.Rly. Ref:- His open challenge with me when I was working in 2640 Express dated 8.10.1996 When I was working in 2540 Express on 8.10.1996 from Bangalore to Madras, I met Sri.Ravikumar CVI/Mas in the pantry car near the manager's cabin. He called me and challenged me openly that he would not leave me unless I am sent out of Railways by his frequent checks. He also said that I escaped during the last vigilance check and next time he would come with full team from which I could not escape and he would some how fix me. I fear that as a Chief Vigilance Inspector in Railways Sri.Ravikumar may cause danger to my job. He also informed my batch J.Kannan about this and J.Kannan in turn revealed to me in presence of V. Leelarama T.T.I/BG I/Mas and I was advised to report this matter to your goodself for necessary action. I am prepared to face any enquiry in this regard. I was the main witness in the vigilance case Tmt.Chitra Ramanathan (Ex.Personal Inspector, Madras Division). So I was forced by Sri.Ravikumar CVI/MAS to withdraw the complaint on several occasions, since the lady is known to him for which I was not prepared. This was the main reason for our previous enmity and he is trying to teach me a lesson by somehow fixing me during his vigilance checks. This is for your kind information and necessary action. Thanking you, Yours faithfully, sd/ J.Jason Joseph" 21. The complaint was forwarded by the Chief Travelling Ticket Training Inspector on 9 October, 2006. A copy of the complaint is available in the file produced by the Standing Counsel for the Railways. 22. Thiru V.Gopinath, an employee of the Indian Overseas Bank was examined as a witness in respect of the complaint preferred by https://hcservices.ecourts.gov.in/hcservices/ the petitioner against Thiru Ravikumar. The statement of the said witness is also available in the file. The complaint preferred by the petitioner against the Chief Vigilance Inspector was on 9 October, 1996. On 12 October, 1996 Thiru Ravikumar, Chief Vigilance Inspector convened a meeting of the vigilance officials in the air conditioned dormitory at Madras station. In the said meeting a decision was taken to conduct a check in Train No.6007 Mail on 12 October, 1996 after ascertaining the roster of the petitioner. Thiru Mohammed Rafeeq, Vigilance Watcher, who was attached to the vigilance wing of the Southern Railways at Madras was nominated to act as a passenger for the purpose of check. The said witness was given a sleeper class wait list ticket, and a sum of Rs.400/- besides his dinner. The witness was asked to approach the petitioner to accommodate him in the First Class compartment with Sleeper Class wait list ticket. He was further instructed to pay the amount as demanded and to insist for a receipt, if he was accommodated in first class. The witness was given specific instruction to inform the vigilance team at Jolarpet junction, if the petitioner had collected money but failed to issue the receipt. There were five other vigilance officials including Thiru Ravikumar, Chief Vigilance Inspector. 23. The vigilance team was not accompanied by gazetted officers from Railways to act as independent witnesses as provided under Paragraph 705 of the Railways Vigilance Manual. When the train reached Jolarpet junction at 1.35 a.m. on 13 October, 1996 on platform No.1, Thiru Mohammed Rafeeq, trap witness peeped through the window of F2 coach and informed the vigilance officials that the petitioner collected a sum of Rs.400/- but he did not issue receipt. Immediately the vigilance team entered F2 coach and found the petitioner in the toilet. On seeing the vigilance team, the petitioner went inside the toilet and attempted to lock the toilet door. The said attempt was prevented by Thiru G.Ravikumar and another vigilance official. In the said process, the petitioner threw his coat containing the material documents outside the door. The vigilance team found two persons sleeping near the toilet of F2 coach. On enquiry, they told the vigilance officials that the petitioner did not collect any money from them or issued any receipt. The vigilance team further found that six adults and two children were travelling in the cabin F2 as against the capacity of four members. On inquiry, those passengers stated that a sum of Rs.1,300/- was paid towards excess charges, but no receipt was issued by the petitioner. Similar inquiries were made with witness Mohammed Rafeeq and other passengers and the vigilance team obtained their statement implicating the petitioner. 24. Thiru M.Murugan, Vigilance Inspector recovered the coat from the track with the assistance of Railway Protection Force Constables. The said witness prepared the inventory and a statement was also recorded. The vigilance wing was of the view that the action of the https://hcservices.ecourts.gov.in/hcservices/ petitioner in not issuing tickets to the passengers resulted in loss of revenue to the railways to the tune of Rs.1,779/-. Accordingly, a report was submitted to the railway administration. This made the railways to initiate departmental proceedings against the petitioner. 25. The charge sheet contains as many as seven charges and it reads thus:- "1. Shri. J.Jason Joseph, TTI/S/BG.I/MAS did not extend his co-operation to the Vigilance Inspectors in their legitimate duties. He refused to produce rough journal books, cash value books, charts, personal cash and Railway cash, when asked for. 2. He had demanded and collected Rs.400/- from one passenger by name Shri.Mohammed Rafeeq in between MAS and AJJ as against the actual difference in fare of Rs.279/- but did not issue the receipt therefor till the time of check at JTJ. 3. He has collected Rs.1200/- from Shri Shakir Hussain towards conversion charges from Sleeper Class to First Class for four adults and two children but did not issue the receipt therefore till the time of check at JTJ. 4. He has collected Rs.300/- along with the reservation slip from a passenger holding ticket No.01288015 travelling in F1 coach through Coach Attendant, Shri Ramaiah at AJJ but did not issue receipt till the time of check at JTJ. 5. He did not make entry in the chart about the allotment of berths to Shri Mohammed Rafeeq, Shri. Shakir Hussain and family and the passenger holding ticket Nos.78715276/01288015 till the time of check at JTJ. 6. Besides his non-co-operation and refusal to produce documents, he attempted to do away with the documentary evidence in support of the charges listed above 2 to 5 by throwing his coat along with the case, EFT book and the charts of F1 and F2 coaches. 7. He has allowed two passengers holding Sleeper Class W/L ticket No.83859556 to travel from AJJ in the corridor of F2 coach without realizing the difference in fare till the time of check at JTJ" https://hcservices.ecourts.gov.in/hcservices/ 26. The petitioner in his reply to the charge memo denied the charges specifically. He also alleged mala fides, as according to him he was beaten by Thiru Ravikumar and other officers of the vigilance department and there was no act of misconduct on his part as alleged by the vigilance. The Divisional Commercial Manager, being the disciplinary authority appointed an inquiry officer. The inquiry was ultimately conducted by Thiru G.Dhanasekaran and he submitted his inquiry report on 13 June, 2002 reporting that all the charges were proved except the demand portion in charge No.2. 27. The disciplinary authority accepted the inquiry report. Accordingly, the petitioner was removed from service. 28. The order passed by the disciplinary authority was challenged in appeal before the Additional Divisional Railway Manager. The appellate authority was of the view that there were no acceptable materials to prove charges 2,3,4 and 5 and therefore, the quantum of punishment must be restricted to charges 1,6, and 7 only. Accordingly, he set aside the punishment of removal from service and imposed the punishment of reduction in rank for a period of three years. 29. The Railway Administration accepted the order passed by the appellate authority on 20 February, 2003. Accordingly, the petitioner was re-instated into service on 26 February, 2003. 30. The file produced by the Railway Administration does not contain any material even to suggest remotely that there was an attempt made by the railway officials at any point of time either to review the punishment or to exercise the revisional jurisdiction. This material fact assumes importance in a case like this on account of the peculiar background facts. 31. Before dealing with the issue as to whether the General Manager exercised the revisional jurisdiction independently or at the instance of the Chief Vigilance Inspector, it is necessary to consider the charges framed against the petitioner and the findings recorded by the inquiry officer. 32. Charge No.2 realting to payment of Rs.400/-, was disbelieved by the inquiry officer. So Charge No.2 was only partly proved. Charges 3, 4, 5 and 7 pertains to collection of money from passengers and failure to issue receipts. Except witness Mohammed Rafeeq, who was nominated as a passenger for the purpose of check, none of the other passengers were examined. The alleged statement given by those passengers were marked through other official witnesses. No attempt was taken to examine those independent witnesses. https://hcservices.ecourts.gov.in/hcservices/ 33. It is true that in cases relating to non issue of tickets, non examination of independent witnesses alone would not vitiate the inquiry. However, in a case like this, wherein the very bonafides in conducting the trap was disputed and in the face of the materials available on record regarding the strained relationship between the Chief Vigilance Inspector and the petitioner, such non examination of independent witnesses assumes significance. The presenting officer has given a very strange explanation that the present address of those passengers were not given correctly and as such, they were not in a position to summon the independent witnesses. Similarly, the main witness Thiru Murugan, Vigilance Inspector was also not examined. The said witness was a railway employee. There would be no difficulty for Railways to secure his presence. With respect to the said witness also, a noval defence was taken that he was transferred to another office. However, on the basis of the records, the appellate authority in his note sent to the vigilance department observed that no attempt was taken by the authorities to ensure the presence of either the independent witnesses or Thiru Murugan, so as to prove the allegations levelled against the petitioner in an acceptable manner. The fact that passengers from whom the petitioner has collected money were not examined, the statement of the material witness, the Vigilance Inspector, who recovered the coat and recorded the mahazar was not examined coupled with the fact that the coat which was stated to have been thrown out by the petitioner was found missing, etc., gives a clear indication that all were not well. Therefore, there were no sufficient materials to arrive at the conclusion that all the seven charges were proved. These aspects were considered by the appellate authority and it was only in such circumstances the appellate authority modified the punishment, as according to him, the punishment of dismissal from service, was shockingly disproportionate to the proved charges. 34. The file produced by the Railways contains materials to suggest that the proposal for suo motu review of the punishment imposed by the appellate authority was initiated by the vigilance wing and the subsequent initiation of revisonal proceedings by the General Manager was also at their instance. 35. The Chief Vigilance Inspector as per his proceedings dated 19 June, 2003 called upon the Additional Divisional Railway Manager/Appellate Authority to process the case for suo motu review. The said communication reads thus: `"DRM/CON/MAS Dated:19.6.2003 Sub: Vigilance case against Shri J.Jason Joseph TTI/MAS. Ref: Your letter No.M/CON/C/1177 dated 24.4.2003 ----- https://hcservices.ecourts.gov.in/hcservices/ Shri J.Jason Joseph, TTI/MAS has been reinstated into service and awarded with a penalty of reduction from the rank of TTI in time scale of pay of Rs.5000-8000 to the rank of Sr.TC in time scale of pay of Rs.4000-6000 for a period of 3 years (Recurring) as per the appellate authority's orders. The penalty of dismissal from service imposed by the disciplinary authoirty has been reduced by the appellate authority based on the following points. (i) There was (alleged) enmity between the CO and Sri.Ravikumar, then CVI/T. (ii) The charges 2 to 5 which have been proved in the inquiry and accepted by the disciplinary authority have been held not proved by the appellate authority on the plea that the author of the RUD did not attend the enquiry and hence no credence can be given. The Vigilance has the following remarks to offer with regard to the above orders of the appellate authority. In DAR proceedings, the authorities who deal the cases should not consider any extraneous factors and the decision of penalty are to be confirmed within the evidences placed in enquiry. Moreover the issue of enimity between the Vigilance Inspector Sri G. Ravikumar and the CO is under trial before the Court of Law, disputed by Sri.G.Ravikumar. As regards the point number two it is not always necessary that the author of a statement has to confirm it at the enquiry but anyone in whose presence the statement has been recorded can adduce and confirm the content and the charged official was given an opportunity to cross examine the witness. Moreover the charged official had not disputed these evidences. In view of the above and the fact that the reduced penalty does not commensurate with the gravity of offence committed by the employee the https://hcservices.ecourts.gov.in/hcservices/ case may be processed for suo-motto review by the competent authority under advise to this office. Sd/- For Chief Vigilance Officer" 36. The communication dated 19