1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4670/2004 1. Union of India Through The General Manager, Western Railway,H.Q.Office, Churchgate,Mumbai-400-20 2. Divisional Railway, Manager,Mumbai Division, Western Railway, Mumbai Central,Mumbai 400 008 Petitioners Vs. Mohan H.Raut working as Senior Luggage Clerk,Palghar, Residing at Railway Quarter No.106/LB, Railway Colony,Palghar Respondent Mr.Suresh Kumar for the petitioner None for the respondents CORAM : V.C.Daga,& Mrs.Mridula Bhatkar,JJ. Date : 17th February,2009. J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) . This petition filed under Article 226 of the Constitution of India is directed against the order passed by the Central Administrative Tribunal dated 21/3/2003 for quashing and setting aside the said order confirming the order of punishment imposed on the respondent by the Revisional Authority. 2 FACTUAL MATRIX 1] The respondent was working as a Senior Luggage Clerk,at Palghar station,Western Railway. He was found over charging Rs.10/- for each ticket issued by him at the ticket counter.The Administration planted a decoy purchaser of the ticket. Though the ticket fare was of Rs.172/- the respondent charged Rs.182/- and gained wrongfully Rs.10/- for himself .After this trap the Railway Administration chargesheeted him as per the provisions of the Rules. Departmental Enquiry was conducted and he was held guilty and his three increments were withheld by an order dated 17/7/1996.The respondent challenged the said order before the Appellate Authority which was maintained by an order dated 20/5/1997. Thereafter the respondents approached the Revisional Authority and the Revisional Authority confirmed the above finding by an order dated 8/10/1994.The respondent then filed O.A.No.837/91 before Central Administrative Tribunal which was allowed by the Tribunal by an order dated 21/3/2003.The Tribunal set aside and quashed the previous order against the respondent. SUBMISSIONS 2] Learned Advocate Mr.Suresh Kumar appearing for the petitioner submitted that the respondent was trapped and there is sufficient evidence against him. The Tribunal should not have given undue importance to the non-compliance of the procedure laid down in the Vigilance Manual which required compliance of paragraphs-704 3 and 705 of Indian Railway Vigilance Manual (IRVM) pursuant to which two gazetted officers from Railway were required to be present while laying trap. He has submitted that the provisions of the Vigilance Manual are not mandatory and non-compliance would not render the trap non-est .He placed reliance on the Judgment of the Apex Court in the case of (Chief Commercial Manager,South Central Railway Vs.g.Ratnam and Ors.) reported in(2007)8,Supreme Court Cases,212 in support of his submissions . 3] Inspite of service of writ of summons nobody is present on behalf of the respondent. As such we did not have the advantage of the other view. R E A S O N S 4] Perused the order passed by the Central Administrative Tribunal dated 21/3/2003. The Tribunal has held that the provisions in paragraphs 704 and 705 of Indian Railway Vigilance Manual were not observed by the railway authority at the time of laying the trap against the respondent. As per paragraph 704 of the Manual two or more independent witnesses are required to remain present to hear the conversation at the time of the trap . Paragraph 705 states that two gazetted officers from the railway department are required to be kept present as independent witnesses. The Tribunal appreciating the non-compliance of the provisions incorporated in paragraphs 704 and 705 relied on the decision between Union of India Vs.M.Ajnaneyulu 4 of the Andhra Pradesh High Court in Writ Petition no.1489/2002 , (unreported) which in turn relying upon the decisions in the cases of Union of India Vs.Arjun Singh,AIR 2000(2) SC 783 and J.R.Raghupathy Vs.State of Andhra Pradesh 1998 (9)SCC 390 held that Chapters and paragraphs containing therein were mandatory and found that the consequent action being in breach of paragraphs 704 and 705 of Indian Railway Vigilance Manual were unsustainable. In the result the O.A.was allowed and the punishment was set aside. 5] The Apex Court in the above recent judgment in the case of (Chief Commercial Manager,South Central Railway Vs.g.Ratnam and Ors.) reported in(2007)8,Supreme Court Cases,212 has dealt with the provisions of Indian Railway Vigilance Manual, and held as under:- '' the said instructions were procedural in character and not of a substantive nature-These instructions had been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings,but for the information and guidance of the investigating officers-Hence,any violation thereof by the investigating officers in conducting departmental traps would not ipso facto vitiate the departmental proceedings initiated on the basis of the complaints submitted by the said investigating officers.'' 6] At this stage we may observe that while dealing with the legality of the order passed by the Tribunal,we cannot appreciate or reappreciate the evidence tendered before the departmental enquiry. We, therefore,find it proper to remand this matter to the Tribunal to 5 decide the same in consonance with the judgment of the Apex Court in the case of G.Ratnam quoted supra within three months from the date of this order. All rival contentions on merits are kept open. 7] In the result the impugned order is set-aside, matter is remitted back to the Tribunal for denovo hearing . Rule is made absolute in terms of this order. (Mrs.Mridula Bhatkar,J.) (V.C.Daga,J.)