Dismissed

Union of India Thr. the General Manager and 2 Ors. v. Shri Nasim Ali Abid Ali

Bombay HC27 Sept 2011WP/4038/2011

Case brief

AI extract

What is this about?

The Division Bench dismissed the Constitutional application challenging the Central Administrative Tribunal's order exonerating a respondent and reinstating him after compulsory retirement. The Court held the Tribunal had jurisdiction and re-appreciated evidence regarding gratification and cash shortage charges correctly.

What did the court decide?

The writ petition was dismissed in limine with no order as to costs.

Union of India Thr. the General Manager and 2 Ors. Vs… — Service and Employment | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Writ Petition No.4038/2011

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( Union of India, through the General Manager, Central Railway and others

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..Vs..

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Shri Nasim Ali Abid Ali )

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Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Judge’s orders and Registrar’s orders.

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Court’s or

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Mr. R.G. Agrawal, Adv. for petitioners. Mr. M.M. Sudame, Adv. for respondent.

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CORAM : S.A. BOBDE & M.N. GILANI, JJ

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ORDER ( Per M.N. Gilani, J.)

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Date of Reserving the order : 20/09/2011. Date of Pronouncing the order : 27/09/2011.

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Heard both sides.

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By this petition under Article 226 and 227 of the

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Constitution the petitioner takes an exception to the order dated 16/3/2011 passed by the Central Administrative Tribunal, Bombay Bench, Mumbai (for short “Tribunal) in Original Application No.693/2010 whereby the petitioners were directed to reinstate the respondent in service retrospectively from the date on which he was compulsorily retired with all commensurate benefits.

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The respondent who is Head Ticket Collector was assigned duty to attend the Train No.8029 – Shalimar Express on 14/9/2007. The Vigilance Department conducted pre-arranged decoy operation and nabbed the respondent while accepting Rs.100/- from the alleged dummy passenger. On search of his belongings, shortage of Rs.40/- in railway cash and Rs.10/- in his personal cash was found. The respondent was required to face departmental enquiry on the following charges.

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“i) Respondent accepted Rs.100/- from the decoy passenger as illegal gratification and allowed him to travel in S/9 coach with independent witness without regularization of such travel.

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“ii) Respondent also indulged in mismanagement of cash.”

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The respondent denied the charges. On

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5/12/2008, the Inquiry Officer recorded the finding against

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the respondent on both charges. However, the Disciplinary Authority (for short “D.A.”) after assessing the evidence of the defence put forth by the respondent, concluded that the first charge of accepting illegal gratification from the passenger was not proved. As regards second charge of mismanagement of cash, the D.A. agreed with the Inquiry Officer and proceeded to award minor penalty of stoppage of increment for two years without cumulative effect. The respondent

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acquiesced in by not preferring any appeal against this order.

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The Revisional Authority (for short “R.A.”) suo motu issued notice calling upon the respondent to show cause as to why major penalty/higher penalty of compulsory retirement with all pensionary benefits be not imposed upon him by further observing that the minor penalty imposed by D.A. is inadequate. After hearing the respondent, the R.A. set aside the findings recorded by the D.A. so far as it relates to charge of accepting illegal gratification and held that the penalty of the compulsory retirement with all pensionary benefits is the appropriate punishment commensurate with the nature and gravity of charges proved against the respondent. Being aggrieved by this, the respondent preferred O.A. No.693/2010 before the Tribunal. The learned Tribunal exonerated the respondent on both charges and directed his reinstatement with full monetary benefits. This very order is assailed in this petition.

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Mr. Agrawal, learned counsel for the petitioner, states that learned Tribunal should not have entertained the O.A. since the respondent had not exhausted remedy of preferring an appeal against the order passed by the R.A. He invited our attention to section 20 of the Administrative

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Tribunals Act, 1985 which reads as under.

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“Application not to be admitted unless other remedies exhausted

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(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.”

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On plain reading of the aforesaid provisions, it appear that there is no complete bar in entertaining the petition by the Tribunal on the ground that the remedy of appeal has not been exhausted by the person approaching the Tribunal. In the present case, against the decision of D.A. the respondent did not choose to prefer an appeal. It was R.A. who decided to reconsider the issue of exonerating the respondent of charge No.I and also to reconsider the quantum of punishment. The R.A. ordered compulsory retirement of the respondent with immediate effect. This seems to be the reason for the respondent approaching the Tribunal with a prayer for interim relief. On perusal of the order of learned Tribunal it does not show that issue of lack of jurisdiction was raised much less dealt with by the Tribunal. We find no whisper in this regard in the entire order of learned Tribunal. 6. As regards Article-I of the Charge, learned Tribunal after meticulously considering the evidence available on record agreed with the findings of the D.A. The allegations against the respondent were that he made passengers who

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were allotted berth No.64 and 65 to vacate their berths so as to accommodate the dummy passengers put on job by the Vigilance Squad. Admittedly, the respondent sought permission to examine these two passengers namely Advocate Rangari and Smt. Anusaya. The Inquiry Officer did not accede to his request. Hence the respondent submitted an affidavit sworn in by Smt. Anusaya wherein she stated that she had physically occupied the berth No.65 in Coach No.S/9 of Train No.8029 ex Kalyan to Shegaon on 13/9/2007. She further stated that the said berth was not claimed by any other passenger. Absolutely, the Inquiry Officer did not record any reason while discarding the same. The D.A. who was supposed to pass the final order examined in detail the evidence led by department as well as the defence raised by the delinquent – respondent. By adversely commenting on the conduct of the witnesses examined by the department the

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D.A. concluded that :

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“ I came to the conclusion that DP and IW hide the fact that berth No.64 and 65 were already occupied by the passengers. As per records available i.e. original chart, amended chart and statement of the passenger travelling in berth No.64 and 65 submitted by you (respondent), it is proved that berth No.64 and 65 were already occupied. The statement of DP and IW that these berths were got vacated by you (respondent) and allotted to them is totally unbelievable. No passengers travelling on

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confirm berth will vacate the berth at mid-night just to accommodate other passengers at the instance of ticket checking staff. Considering the various facts as brought out in his conclusion by the EO, I came to the conclusion that DP and IW has given wrong information, despite the fact that EO warned them that they will face DAR action if their answers are proved false.”

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The learned Tribunal laid emphasis on the

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aforesaid observations in holding Article-I of the charge as not proved. The R.A. By assigning reason that affidavit has been prepared after one year of the incident brushed aside the defence evidence by observing that “the defense document i.e. AD-3 which is prepared on the basis of DD-1 cannot be relied

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upon. DD-2 i.e. affidavit before the Notary by Smt. A.R. Rajapurkar, is prepared after a lapse of one year from the date of check and specific mention in that affidavit is that “it is as per request of CE”. While observing so the R.A. Seems to have lost sight of the fact that the respondent had made request before the Inquiry Officer to summon the passengers who were allotted berth No.64 and 65. Since his request was not allowed, he was required to approach these witnesses and ask them to swear an affidavit. The fact that they sworn in an affidavit as per the request of the respondent was taken adversely. This approach of the R.A. is misconceived in the

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sense that the endorsement in the affidavit that it was sworn

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at the request of the respondent was natural and true statement of fact. Sitting in revision, the authority has substituted its own views for the views of the D.A. and that too by misreading the evidence. The factual finding of the D.A. after holding a detailed inquiry and reading the evidence in correct perspective was in fact not assailable or liable to be interfered with particularly by the authority sitting in revision. This was the reason for learned Tribunal to interfere with the order of the R.A.

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In a proceeding under Article 226 of the Constitution the High Court does not sit as a Court of appeal over the findings recorded by the Tribunal to re-appreciate the evidence for itself, or to correct an error of fact on the ground that the evidence on which it was based was not satisfactory or sufficient. In this view of the matter, we do not find any force in the submission of Mr. Agrawal, learned counsel for the petitioner, that the order of learned Tribunal Is liable to be interfered with on any count.

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So far as the charge No.II is concerned, facts are not disputed. An amount of Rs.40/- was found short in railway cash and Rs.10/- in personal cash. The learned Tribunal observed that “ only a small sum of Rs.50/- was the shortage and applicant have enough personal money to cover it

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up. He had used it for mundane purpose of providing himself with some eatables .” The Tribunal further observed that “ it was therefore, premature to have jumped to the conclusion as to any mismanagement of cash .” The observations in case of Union of India and others V/s. A.A. Makwana, 2006 (4)SLR 734 were extensively quoted by learned Tribunal in their judgment. In that the High Court of Gujarat was dealing with a case of Ticket Collector who was also found short of Rs.40/-. It was observed that the Ticket Collector was supposed to account for or deposit the amount on reaching to the final destination. If verification of the cash is carried out before the train reached to the destination, the charge of misappropriation because of shortage of cash cannot be sustained. We are of the considered view that with the well reasoned order of the learned Tribunal which is passed on the evidence available on record, the interference by this Court in exercise of jurisdiction under Article 226, is not warranted.

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Thus, there being no substance in this writ petition, the same is dismissed in limine with no order as to costs.

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Tambaskar.

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JUDGE

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JUDGE

Union of India Thr. the General Manager and 2 Ors. v. Shri Nasim Ali Abid Ali

Case brief

What is this about?

What did the court decide?

Union of India Thr. the General Manager and 2 Ors. v. Shri Nasim Ali Abid Ali

Case brief

What is this about?

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