A.K. TIWARI Vs. UNION OF INDIA THROUGH SECRETARY, RAILWAY BOARD, MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW DELHI

JUDGEMENT

(1.) Challenging the order dated 07.09.2009 of the Disciplinary Authority (DA) imposing the penalty of removal from service, the order dated 13.11.2009 of the Appellate Authority (AA) by which the penalty was modified to compulsory retirement from railway service, the order dated

(2.) 03.2010 of the Revising Authority (RA) rejecting his Revision Petition, the applicant has sought the following relief in the present O.A.: - (i) That this Honble Tribunal may be graciously pleased to allow this application and quash the impugned orders. (ii) That this Honble Tribunal may be further pleased to reinstate the Applicant with all consequential benefits. (iii) That the Honble Tribunal may also be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper on the facts and in the circumstances of the case. (iv) That the cost of these proceedings may kindly be granted in favour of Applicant. 2. The applicant was originally engaged as a daily rated casual labour on 17.06.1976; gained MRCL status and posted as Catering Cleaner then placed on the panel of Commercial Clerk and posted as a Commercial Clerk on 10.01.2002. While working on the ticket counter at Kosi Kalan Station in shift duty hours from 16.00 hrs. to 24.00 hrs. on 20.07.2007, a vigilance raid was conducted and on the allegation that he had demanded and accepted Rs. 11/ - extra while selling 11 tickets to a decoy passenger (actual fare was Rs. 198/ - @ Rs. 18/ - each and he received Rs. 209/ -) and further that an excess amount of Rs. 141/ - was detected in the government cash in his custody, a Charge Memo was issued to him on 15.01.2008. He denied the charges; an inquiry was conducted and the IO found him guilty of the charge, a copy of the inquiry report was given to him; he made his representations against the findings in the inquiry report but the DA agreed with the findings and decided to impose the penalty of removal from service with full compassionate benefits. The AA agreed with the findings of the DA but considering the penalty as too harsh and taking a lenient view in the matter reduced the penalty to compulsory retirement from railway service. The RA did not interfere with the order of the AA; hence this O.A.

(3.) At the time of hearing, learned counsel for the applicant highlighted the following grounds: - (i) The respondent authorities did not consider the explanation of the applicant that on detection of payment of excess ticket amount the applicant tried to call the decoy passenger back but the passenger left the place without heeding to his summons. (ii) The raid having been conducted by vigilance officers, they were to be guided by instructions contained in Paragraphs 704 & 705 of the Vigilance Manual. Neither was there any gazetted officer who acted as an independent witness, and the witnesses who were pressed into service were stock witnesses having been utilized previously by the vigilance. Rather the decoy witness was a Class -IV employee and the independent witness was admittedly not a gazetted officer, but a stock witness. (iii) The IO was an employee working in the vigilance branch itself and as such he could not have acted as an independent judge. The IO did not examine the applicant properly as required under Rule -9(21) of the Railways (Discipline & Appeal) Rules, 1958. The infirmities associated with the vigilance raid pointed out by the applicant were ignored by the IO. He did not take into account the explanation of the applicant about the allegation of excess government cash amount and gave his finding about his call to the decoy passenger with a cryptic observation that there was no proper evidence to back up the plea of the applicant. (iv) The orders of the respondents are non -speaking in nature without proper application of mind to the defence pleas.