Satish Dahiya vs Union Of India & Others

L. Narasimha Reddy, J

The applicant was functioning as Senior Ticket Examiner, on 16.12.2003 in the New Delhi Railway Station. A vigilance inquiry was held against

him when he was conducting a train. Through an order dated 16.12.2003 he was placed under suspension and thereafter a charge memo was issued

on 11.03.2004 alleging that he has resorted to financial irregularities in the course of conducting the train. The applicant has submitted an explanation

and not satisfied with the same, the Disciplinary Authority (DA) appointed Inquiry Officer (IO). The report was submitted by the IO on 11.11.2005,

wherein it was held that all the charges are proved. A copy of the same was furnished to the applicant and he in turn, submitted his representation.

Vide order dated 24.03.2006, the DA proposed the punishment of reduction of the pay of the applicant from Rs.5300/- to Rs.5000/- for a period of

three years. He forwarded the file to the General Manager, Vigilance. The later in turn issued a disagreement note on 01.09.2006 and indicated that

the charges against the applicant are serious in nature and a suitable ‘stiff major penalty’ must be imposed. Taking the advice into account, the

DA passed an order dated 27.12.2006 imposing the penalty of reduction of pay from Rs.5500/- in the grade of Rs.4000-6000 to Rs.3050/- in the grade

of Rs.3050-4590 for a period of ten years.

Aggrieved by the order of punishment, the applicant preferred an appeal and that was dismissed on 12.07.2010. Thereafter the applicant has availed

the remedy of revision. Through his order dated 22.06.2011 Revision Authority (RA) retained the nature of punishment but reduced the period to five

years, with cumulative effect. This OA is filed challenging the order dated 27.12.2006 as modified by the RA through order dated 22.06.2011.

The applicant contends that the charges framed against the applicant are not based on the evidence and though the DA was to take a decision on

his own accord as to the quantum of punishment, he has consulted the vigilance department and thereby surrendered his power. He contends that the

very interference by the vigilance department in the disciplinary proceedings is contrary to law. The applicant pleads that though the RA has reduced

the punishment to certain extent, he ought to have granted the relief in its entirely.

Respondents filed a detailed reply and additional affidavit. It is stated that the charges against the applicant are serious in nature and all of them

were held proved in the departmental inquiry. It is also stated that the circular issued by the Railway Board on 16.05.2001 provides for the reference

of the matter of to vigilance department before the punishment is decided and in that view of the matter, it cannot be said that there is any undue

interference. It is also pleaded that the circular issued by the Railway Board has the legal status of Rules framed under Article 309 of the Constitution

of India. Respondents contend that the punishment imposed against the applicant is commensurate with the gravity of the charges held proved against

him.

We heard Sh. Yogesh Sharma, learned counsel for the applicant and Sh. Shailendra Tiwari, learned counsel for the respondents in detail.

An inspection was conducted when the applicant was on duty, in a train. The following lapses or violations are noticed on his part.

“I have gone through the case-file, the charges, enquiry proceedings, documents/evidence available on record, report submitted by the

Inquiry Officer & your comments thereon. After going through the entire case, I find that you are charged for the following charges and the

observations are as under:-

1) You deserted the coach assigned to you after smelling the presence of the team with an intention to eliminate the detection of carrying the

passengers & misguide the Vigilance Team with negative attitude.

2) It was detected that ten passengers were found travelling without ticket in AS/1 Coach and the last three EFTs were prepared for

seventeen passengers. Thus you were carrying seventeen passengers for your vested interest. Had there been no vigilance check, the

amount would have been pocketed by you for your personal gain.

3) You produced Rs.1,000/- excess in your personal cash with un-convincing reason.

4) You produced Rs.1,205/- short in the Govt. Cash with un-convincing reason.

5) You prepared the EFTs for signal fare on the strength of the invalid Platform Tickets which caused loss to the Railway Revenue.

6) You prepared the EFTs in a hurry by quoting wrong Platform Tickets with an intention to hide out your misdeed. As such you tried to

keep the Administration in dark.â€​

The charges were elaborated further, in the charge memo.

The explanation submitted by the applicant was not found satisfactory and accordingly inquiry was ordered. In his report, the IO had undertaken

extensive discussion and held all the components of the charge, as proved. The copy of the same was furnished to the applicant that the DA proposes

to impose the punishment of reduction of his pay from Rs.5500-5000 for a period of three years. This obviously is a minor penalty.

It is common that the punishment is imposed by the DA himself and in certain cases the AA is conferred with the power to enhance the same

when the situation warrants, duly following the prescribed procedure. However, in the instant case the DA forwarded file to the General Manager,

Vigilance. The later in turn disagreed with the proposed punishment and recommended a stiff major penalty, which, according in the Railways, said to

be one of the dismissal, removal or compulsory retirement. Taking that suggestion into account the DA passed an order dated 28.12.2016 imposing the

punishment of reduction of the pay of the applicant from Rs.5500/- to Rs.3050/- to be in force, for a period of 10 years. Therefore, an important legal

aspect, namely, whether it was permissible for the DA to refer the matter to the Vigilance Department in the context of deciding the punishment,

arises for consideration.

The consultation of this nature is provided for under CCA Rules, where the UPSC is required to be consulted before any punishment is imposed.

The Conduct Rules of the Railways are a bit silent about this. However, we find that the Railway Board issued a circular dated 16.05.2001. The

relevant paragraph reads as under :

“In partial modification of the Ministry’s aforesaid letter dated 17.02.90, it has been decided that if, in a case, the vigilance has

recommended a major penalty and the disciplinary authority proposes to exonerate or impose a minor penalty, the disciplinary authority

should first record his provisional order and then consult Vigilance Organisation once. However, if, after such consultation, the

Disciplinary Authority is not in agreement with the views of Vigilance, then he/she is free to proceed and pass speaking order about the

penalty. The Vigilance Organisation may, if they so consider, seek revision of the penalty by the appropriate authority.

Likewise, where a major penalty has been imposed by the disciplinary authority in agreement with the recommendations of the Vigilance but

the appellate /revisionary authority may first record provisional decision and consult the Vigilance Organisation once. After such

consultation, the appellate/revisionary authority is free to take a final decision in the matter and record his/her views about penalty through

speaking order.â€​

It is obviously on the basis of this circular, that the Vigilance Department was consulted. The status of the circulars issued by the Railway Board is

dealt with by the Hon’ble Supreme Court in Railway Board and Ors. Vs. P.R.Subramanyam and Ors. AIR 1978 SC 28.4 The relevant para

reads as under :

“In the Indian Rly. Establishment Code, Volume I are the Rules framed by the President of India under Art.309 of the Constitution.

Contained in the said Code is the well-known R.157 which authorises the Railway Board, as permissible under Art.309, to have “full

powers to make rules of general application to non-gazetted railway servants under their controlâ€. The Railway Board have been framing

rules in exercise of this power from time to time. No special procedure or method is prescribed for the making of such rules by the Railway

Board. But they have been treated as rules having the force of rules framed under Art.309 pursuant to the delegated power to the Railway

Board if they are of general application to non-gazetted railway servants or to a class of them.â€​

Therefore, the act of DA in consulting the Vigilance, before deciding the quantum of punishment cannot be found fault with.

We have examined in detail, the manner in which the charges are proved. We did not notice any defect in the findings. The irregularities or the

acts attributed to the applicant are serious in nature. It was not a casual omission. On the other hand, it was a very planned way of appropriating the

money from the passengers, to the detriment of the Railways. Out of compassion towards the applicant, the RA has reduced the period of the

operation of the punishment to half.

We do not find any merit in the OA and the same is accordingly dismissed. There shall be no order as to costs.