The Union Of India And ORS v. Dilip Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5922 of 2014 ===========================================================
1. The Union of India through General Manager, North Eastern Railway, Gorakhpur
2. The General Manager (Vigilance), North Eastern Railway, Gorakhpur
3. The Chief Personnel Officer, North Eastern Railway, Gorakhpur
4. The Chief Operative Manger, North Eastern Railway, Gorakhpur
5. Divisional Railway Manager, North Eastern Railway, Varanasi
6. Sr. Divisional Personnel Officer, North Eastern Railway, Varanasi
7. Sr. Divisional Operative Manager, North Eastern Railway, Varanasi
8. Divisional Operating Manager, North Eastern Railway, Varanasi .... .... Petitioner/s
Versus
Dilip Kumar Sinha, S/o Late Sheo Narayan Lal, Resident of Sheo Keshri Bhawan, Road No. 3-A, Dwarika Puri, Hanuman Nagar, Patna-20, Last employed as Assistant Station Master at Sidhwalia Railway Station, Gopalganj (Bihar), under Varanasi Division of North Eastern Railway, Gorakhpur .... .... Respondent/s =========================================================== Appearance:
For the Petitioner/s :
Mr. Anil Kumar Sinha, Advocate.
Mr. Abhimanyu Deo, Advocate.
For the Respondent/s :
Mr. M.P.Dixit, Advocate.
Mr. S.K.Dixit, Advocate.
Mr. Sanjay Kumar Chaubey, Advocate.
=========================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA and HONOURABLE MR. JUSTICE ARUN KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) Date: 23-12-2016 Heard learned counsel for the petitioner-Railway and learned counsel for the sole respondent.
2. The writ application has been filed seeking quashing of the order dated 18.07.2013 passed by the Central Administrative Tribunal, Patna Bench Patna (hereinafter referred to as the 'Tribunal') in O.A. No. 500 of 2012, by which the Tribunal has disposed of the application with direction to the Railway (petitioners herein) to
2/6 reinstate the applicant (respondent herein) forthwith and also to take all consequential action pursuant to the said direction.
3. The present matter arises out of a decoy test, under which a trap was laid on 12.12.2002. The respondent was alleged to have demanded Rs. 482 and issued ticket for Rs. 444/- only and retained the excess amount of Rs. 38/-. The serial number of notes had also been noted down in the joint note prepared on 12.12.2012. The respondent stated that he had received only Rs. 444/-, but upon search, the currency notes as per the joint note prepared for Rs.482 were found with the respondent. Upon the said facts, disciplinary proceedings were initiated and the respondent was found guilty in the enquiry proceeding whereafter the disciplinary authority by order dated 06.10.2004 directed that he be reduced by two stages in the time scale of pay of Rs. 4500-7000/- from his present pay of Rs. 5500-5250 for a period of two years.
Thereafter another order was passed on 20.9.2005 by the disciplinary authority who had joined on the post, after transfer of the then disciplinary authority, on the suggestion of the Vigilance Department and the punishment was raised to compulsory retirement. Aggrieved by the same, the respondent filed the Original Application before the Tribunal.
4. Although the ground taken is that the statutory disciplinary authority could not have acted on the basis of the
3/6 direction of any other superior authority or the Vigilance Department in the matter of imposition of punishment, but it appears from the order of the Tribunal that it has been passed on the basis of noncompliance of the procedure as per the mandatory provisions of Para704 and 705 of the Indian Railways Vigilance Manual (hereinafter referred to as the 'Manual'). In support thereof, the Tribunal has relied upon the decision of the Apex Court in the case of Moni Shankar vs. Union of India; (2008) 3 SCC 484, in which, on practically identical facts, it was held that apart from other grounds, the trap not having been conducted in terms of the Manual, therefore, the order of the Tribunal setting aside the order passed in the departmental proceeding was justified and the High Court should not have interfered with the said order.
5. Before us, learned counsel for the petitioner-Railway has sought to argue that the case was in fact not covered by Para 704 and 705 of the Manual rather it is a decoy case covered under Para 307.6 and Para 307.8 of the said Manual.
6. Secondly, learned counsel submits that even if the order of the departmental proceeding had been set aside and reinstatement order had been made, full back wages should not have been ordered as a consequence.
7. Learned counsel for the respondent, on the other hand,
4/6 submits that the present matter is identical to the case of Moni Shankar (supra) as decided by the Supreme Court and thus no case is made out for interference with the order of the Tribunal. It is also submitted that as a matter of fact, even otherwise the order of the Disciplinary Authority is fit to be quashed for the reason that he has acted upon the directions of a third authority, namely, the Vigilance Department, which no statutory authority could have done. In this regard, he also relies upon the Railway Board Circular being RBE No. 146/2001 dated 30.7.
2001, in which it has been clarified that one of the points raised for discussion in the last PNM/NFIR meeting is that in some of the cases where the Vigilance Organization forwarded a disciplinary case to the revising authority for consideration of revision of the penalty imposed on the charged official, a specific penalty that should be awarded is also suggested and that the Board had examined the matter in the context of above and it was clarified that disciplinary proceeding being quasi judicial, it would not be proper to suggest any specific penalty to revisional authority by any other authority.
8. Although there appears to be some force in the submission of learned counsel for the petitioner that the decoy procedure is not exactly the same as the trap procedure, but considering the fact that in Moni Shankar case (supra), the Supreme Court has applied Paras 704 and 705 of the Manual to a case which
5/6 was on an identical footing, this Court cannot take a different view in the matter. Thus, in view of the law laid down by the Supreme Court in Moni Shankar case (supra), this Court does not see any reason to interfere with the order of the Tribunal on the said point.
9. Once it is held that the impugned orders are bad on account of non-compliance of Paras 704 and 705 of the Manual, there would be no occasion to consider the other submission regarding the disciplinary authority or the revisional authority acting at the behest of another authority, but it goes without saying that any disciplinary authority while imposing punishment in the departmental proceedings, is required to apply, being a quasi judicial authority, its independent mind in the matter and it cannot act at the behest of any other authority, whether superior or coordiante to it. Thus, the action of the disciplinary authority in passing the order dated 20.9.2005 compulsorily retiring the applicant-respondent at the behest of the Vigilance Department appears to be contrary to the established legal proposition which has been recognized even by the Railway Board in its Circular.
10. However, as we have said that since the entire proceedings have been held to be non est and bad on account of not following the procedure of Paras 704 and 705, the said issue does not really survive for consideration.
6/6
11. Lastly, the question would be as to whether the consequential full back wages on reinstatement ought to be paid to the applicant-respondent or not. The decision relied upon by learned counsel for the Railway in this regard in the case of J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr.; (2007) 2 SCC 433, cannot be wholly applicable in the present matter as the said case had arisen under the Industrial Disputes Act, 1947 between the workmen and the private industry, and similar considerations may not always operate in the case of departmental proceedings against a government employee.
12. In the present matter, the employee has been kept out of his job on account of the action of the authorities and thus we feel that he would be entitled to full back wages and consequential benefits on reinstatement.
13. In view of the aforesaid findings, the writ application is without any merit and it is, accordingly, dismissed. (Ramesh Kumar Datta, J) (Arun Kumar, J) S.Sb/ Sujit AFR/NAFR CAV DATE Uploading Date Transmission Date