IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8063 of 2004. WRIT PETITION NO.8063 of 2004. WRIT PETITION NO.8063 of 2004. Union of India, through G.M. Cenral Railway, Mumbai CST. ..Petitioners versus Sandeep Manjrekar ..Respondent Mr.Suresh Kama with T.J.Pandian for the Petitioner Mr.Rahul Walia for the Respondent alongwith alongwith alongwith WRIT PETITION NO.8675 OF 2004 WRIT PETITION NO.8675 OF 2004 WRIT PETITION NO.8675 OF 2004 Sandeep Manjrekar ..Petitioner versus Union of India & Others ..Respondents Mr.Rahul Walia for the petitioner Mr.Suresh Kama with T.J.Pandian for the respondent CORAM : D.K.DESHMUKH & CORAM : D.K.DESHMUKH & CORAM : D.K.DESHMUKH & R.Y.GANOO, JJ. R.Y.GANOO, JJ. R.Y.GANOO, JJ. DATED : 12th June, 2008. DATED : 12th June, 2008. DATED : 12th June, 2008. P.C. P.C. P.C. -2- 1. Both these petitions challenge the same order passed by the Central Administrative Tribunal. Both these matters can be conveniently disposed of by a common Order. 2. Sandeep Manjrekar had joined Railways as a Ticket Collector in the year 1993, and was working as Train Ticket Examiner at the relevant time. He was involved in a vigilance trap and two charges were levelled against him. First charge was "he overcharged the decoy passenger Rs.45/- on issuing EFR A230747 for allotment of berth" The second charge was "he was in possession of Rs.575/- as excess in his original cash". Departmental Enquiry was held. Both the charges were found to have been proved. It appears that the Disciplinary Authority proposed the punishment of reduction to lowest grade in the scale of Rs.3050/- for a period of five years with cumulative effect. Advise of the Vigilance Cell was sought. The Vigilance Cell advised that as the misconduct found is of serious nature the Disciplinary Authority should consider imposing one of the three major punishments i.e. dismissal, removal and reduction in rank. Accepting the advise of the Vigilance Cell, the -3- Disciplinary Authority imposed the punishment of removal from service. That Order was taken to the Appellate Authority. The Appellate Authority dismissed the appeal. The Revisional Authority also rejected the revision. Thereafter applicatin was preferred before Central Administrative Tribunal. The Central Administrative Tribunal decided the application by its Order dated 2nd July, 2004. The Central Administrative Tribunal found that the charges are duly proved against the employee. The enquiry was also fair and proper. However, the Tribunal observed that it was shocked by the quantum of punishment imposed on the applicant, which the Tribunal found was imposed under the influence of Vigilance Department. Therefore, the Tribunal set aside the Order imposing the punishment passed by the Disciplinary Authority, and confirmed by the Appellate Authority and the Revisional Authority, and directed to reinstatement of the applicant in service and directed the Disciplinary Authority to reconsider the matter after applying its mind independently and pass fresh order imposing punishment which should be less than dismissal, removal from service and compulsory retirement. The Order of the -4- Central Administrative Tribunal holding that the charges have been proved and the enquiry is fair and proper is challenged by the employee in Writ Petition No.8675 of 2004 whereas the Order setting aside the punishment imposed by the Disciplinary Authority is challenged by the employer in Writ Petition No.8063 of 2004. 3. We have heard the learned Counsel for both the sides. The learned Counsel appearing for the employer relying on the provisions of Rule 6 of the Railway Servants (Discipline & Appeal) Rules, 1968 submitted that where an employee is found guilty of having accepted illegal gratification penalty specified in Clause (viii) or (ix) i.e. punishment of "Removal from Service" and "Dismissal from Service" is ordinarily to be imposed. Where such penalty is not imposed reasons therefor are to be recorded in writing. The learned Counsel submits that when charge of accepting illegal gratification is proved the Disciplinary Authority has to impose the punishment of dismissal or removal, unless the Disciplinary Authority gives special reasons why some lesser penalty deserves to be imposed. He submits that the Tribunal ought to have considered -5- this rule before holding that the punishment is imposed under the influence of Vigilance Department. According to the learned Counsel, considering the nature of the punishment and Service Rules referred to above, no fault could have been found with the quantum of punishment by the Central Administrative Tribunal. The learned Counsel further submits that the observation of the Tribunal that the punishment has been imposed under the influence of the Vigilance Department is also incorrect. There is no influence from the Vigilance Department. As per the procedure, after the Department Enquiry is over, the Vigilance Department is required to be consulted. Accordingly, the Vigilance Department was consulted and the Vigilance Department advised that in the facts of the case, a stringent penalty should be imposed and therefore according to the learned Counsel, the observation of the Tribunal that the punishment was imposed under the influence of Vigilance Department is not correct. The learned Counsel appearing on behalf of the employee, on the other hand, submits that the Tribunal has rightly interfered with the punishment imposed. The learned Counsel took us through the correspondence -6- between the Disciplinary Authority and the Vigilance Department to show that really the Disciplinary Authority has acted as per the dictate of the Vigilance Department and therefore according to the learned Counsel the Tribunal was justified in interfering with the punishment imposed in the present case. The learned Counsel, in so far as challenge to the finding that the charges have been proved and the enquiry is fair, took us through the statements recorded during the Departmental Enquiry and submitted that as the decoy passenger who is alleged to have paid money himself has stated that no bribe was demanded from him the charge No.1 cannot be said to have been proved. The learned Counsel submitted that there is no evidence on record to establish the charge No.1. So far as Charge No.2 is concerned, the learned Counsel submits that the employee has given explanation for the excess cash found with him and he had also produced two letters written by one Virendrasingh Deo, one to the Vigilance Department dated 26.12.2000 and the other addressed to the Chief Manager, Central Railway dated 5.3.2002. The learned Counsel submits that these letters explain the excess cash found with the employee. The -7- learned Counsel therefore submits that the Tribunal was not justified in holding that both the charges are proved against the Petitioner. The learned Counsel also submits that on the same day trap was also laid on some other employee by name A.P.Chunarkar. He was also found guilty of similar misconduct, but lesser punishment was being imposed on him. The learned Counsel thus submitted that there has been discrimination practised by the respondent in imposing the punishment. The learned Counsel also relied upon the judgment of Supreme Court in case of Satyendra Chandra Jain v. Punjab Satyendra Chandra Jain v. Punjab Satyendra Chandra Jain v. Punjab National Bank & Ors. reported in (1997) 11 SCC National Bank & Ors. reported in (1997) 11 SCC National Bank & Ors. reported in (1997) 11 SCC 444, the Judgment of Supreme Court in the case of 444, the Judgment of Supreme Court in the case of 444, the Judgment of Supreme Court in the case of Nagaraj Shivarao Karjagi vs. Syndicate Bank 1991 Nagaraj Shivarao Karjagi vs. Syndicate Bank 1991 Nagaraj Shivarao Karjagi vs. Syndicate Bank 1991 SCC (L&S)965. SCC (L&S)965. SCC (L&S)965. 4. Now, first taking up the question whether the Tribunal was justified in holding that both the charges have been proved against the petitioner is concerned, in our opinion, both the charges levelled against the petitioner were of extremely serious nature and both the charges were connected with each other. So far as the charge No.2 is concerned, it is alleged that the petitioner was -8- found in possession of Rs.575/- in excess. The fact that the petitioner was found in possession of Rs.575/- in excess is not in dispute. The allegation of the employer is that he collected the cash as illegal gratification from the passengers. The defence of the employee is that he received that cash from his friend Virendrasingh Deo for buying Ghee. Now, it is an admitted position that before the duty starts, the employee is required to give declaration of the cash in his possession and that declaration was given by the petitioner. The purpose of imposing the requirement of an employee like the petitioner to give details about the cash in their possession, is that if they are found in possession of excess cash, a presumption can be raised at that they have received it as illegal gratification, unless they are able to prove otherwise. Thus, the burden was on the employee to establish that it was not the cash received by him by way of illegal gratification. To prove that, the employee relied on the two letters referred to above, but admitted fact is that he did not examine the author of these two letters and he did not make an attempt to prove those letters. In fact, there is no evidence on record to show that the person by -9- name Virendrasingh Deo actually exists. From the record it cannot be said that the petitioner has succeeded in discharging the burden cast on him. Therefore, in any case, accepting everything that the employee says about charge No.1, in no case it can be said that the charge No.2 is not proved against the petitioner. The charge No.2 is definitely a charge of receiving illegal gratification. It is in this background, that Rule 6 of the Discipline Rules of the Railway Service becomes relevant. Proviso to that rule reads as under: "Provided further that in case of persons found guilty of possessing assets disproportionate to known sources of income or found guilty of having accepted or having obtained from any person any gratification other then legal remuneration, as a motive or reward for doing or forbearing to do any official act, one of the penalties specified in clauses (viii) or (ix) shall ordinarily be imposed and where such penalty is not imposed, the reasons therefore shall be recorded in writing." . Now, it is clear that before interfering with the Order imposing punishment, consideration of above quoted provision was relevant. Perusal of the Order of the Central Administrative Tribunal -10- shows that the CAT while holding that the punishment is disproportionate has excluded from its consideration the above quoted provision. It is now a settled law that when a Judicial or Quasi Judicial authority excludes from its consideration the relevant provision, the finding recorded by such Judicial or Quasi Judicial Authority gets vitiated because it is one of the Principle of Natural Justice that the Judicial and Quasi Judicial Authority can not allow any irrelevant consideration enter the mind and they can not exclude from their consideration aspects which are relevant. The Central Administrative Tribunal while considering the question whether the punishment is proper or not has not considered the provision quoted above and therefore that part of the order is liable to be set aside. 5. We have also gone through the correspondence exchanged between the Disciplinary Authority and the Vigilance Cell. All that has been done by the Vigilance Cell is that it advised the Disciplinary Authority that looking to the nature of misconduct, stringent punishment is required to be imposed. Even ignoring whatever -11- advise is given by the Vigilance Cell, the Disciplinary Authority, in view of the provisions of the Rules quoted above was under a duty to impose one of the two major punishments, unless it finds that there are reasons which are required to be recorded in writing for imposing a lesser punishment. In our opinion, therefore, considering the purpose why the above quoted provision has been enacted, in the present case there was no room for the Disciplinary Authority to impose any punishment lesser than dismissal or removal. From the proposal that was sent by the Disciplinary Authority to the Vigilance Cell it is clear that the Disciplinary Authority has not indicated any reason why lesser punishment in the opinion of the Disciplinary Authority will be adequate. Looking to the language used in the provision imposing Punishment of dismissal or removal is automatic on finding the deliquent guilty of accepting illegal gratification. Reasons are required to be recorded only if lesser punishment is to be imposed. In our opinion, as we also find that the charge of illegal gratification is clearly proved against the petitioner, there was no room for the Disciplinary Authority to impose any other punishment than -12- removal under the advise or without the advise of the Vigilance Department. In our opinion, therefore, the Order of the CAT modifying the Order of the punishment is liable to be set aside. In our opinion, therefore, following order would meet the ends of justice. ORDER 1. Writ Petition No.8675 of 2004 is dismissed. Rule stands discharged with no order as to costs. 2. Writ Petition No.8063 of 2004 succeeds and is allowed. 3. That part of the Order of the CAT which sets aside the Order of the Disciplinary Authority imposing punishment is set aside. The Orders passed by the Disciplinary Authority, Vigilance Authority and Revisional Authority are restored. 4. Rule made absolute accordingly with no order as to costs. (D.K.Deshmukh, J.) (D.K.Deshmukh, J.) (D.K.Deshmukh, J.) -13- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)