Pinakdhar Samantaray Vs Union of India

petition, seeks to quash the order dated 01.04.2011 passed in O.A. No.337 of 2008 under Annexure-11, by which the Central Administrative Tribunal, Cuttack Bench, Cuttack, while allowing the said O.A. filed by the

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petitioner, although quashed the show-cause notice dated 26.08.2008 issued by the Divisional Railway

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Manager, Khurda Road for proposed penalty of “removal from railway service”, but upheld the order of the disciplinary authority as well as the order of the appellate authority.

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The factual matrix of the case, in brief, is that the petitioner, while working as Head Booking Clerk in Balugaon Railway Station, information was received that he was in the habit of overcharging illiterate passengers. Accordingly, on 21.8.2005, a decoy check was organized by the Vigilance Branch of East Coast Railway to verify the veracity of facts. A team comprising the following persons was framed to conduct the above check:-

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Sri H.K. Panda, CVI (T) 2. Sri B.Kar, Sr. VI(T), Annexure-II

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D. Mohanty, Sr. VI(T), 4. Sri Ajit Kumar Dutta, Head Clerk under CEE/ECoR/BBS to act as an independent witness,

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Sri Narendra Jena-an outsider to act as Decoy.

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2.1. As per the plan of action, all the team

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members went to Balugaon by road and reached there at about 7.30 AM on 21.08.05. Sri D. Mohanty, Sr.VI(T) prepared the pre-decoy check memorandum (RUD-1)

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near the RE Office, Balugaon at about 7.45 AM and

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explained it to Sri Narendra Jena in Odia and to Sri A. K. Dutta both in Odia and English. Sri Narendra Jena was advised to act as decoy and approach the on-duty booking clerk to ascertain the fare for two IInd M/E tickets ex.BALU to YPR by train No.8415 Express. In case the booking clerk demands illegal gratification over and above the actual fare of Rs.474/- (i.e. fare for two tickets), he would purchase the above two tickets and pay illegal gratification on demand only and not otherwise. He was handed over the marked GC notes amounting Rs.550/- in presence of Sri A. K. Dutta and other Vigilance Inspectors, which was mentioned in the pre-decoy check memorandum. He was instructed to buy the tickets and pay the amount from the marked GC Notes. The independent witness-Sri A. K. Dutta was shown the above GC notes, which were handed over to Sri N. Jena. Sri Dutta was advised to closely follow Sri Jena. He would stand discreetly at an audible distance near the booking window and over hear the conversation between Sri Jena and the booking clerk and witness the transaction. All the three Inspectors would wait near the

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cycle stand at Balugaon Railway Station. In case the

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booking clerk demands and accepts illegal gratification from Sri Jena, he would immediately report to the Inspectors. Simultaneously, Sri Dutta would observe where the booking clerk is keeping the decoy money and signal to the Vigilance Inspectors. It was ascertained that petitioner-P.D. Samantaray, HBC, Balugaon was manning the booking counter during the time of check.

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2.2. Accordingly, Sri N. Jena went to Balugaon

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booking counter at about 8.10 AM and asked the fare for two IInd M/E tickets ex. BALU to YPR by Train No.8415 Express. The on-duty booking clerk (the petitioner herein), stated that it would be Rs.490/-(Rupees four hundred ninety only) which was over heard by both Sri N. Jena and Sri A. K. Dutta, who were positioned near the booking counter. Sri Jena paid Rs.490/- to the petitioner from the marked GC notes. Sri Samantaray accepted Rs.490/- from Sri Jena, counted it and kept it in his drawer. Then, he issued two IInd M/E tickets ex. BALU to YPR bearing No. 09370 & 09371(RUD-2). The above transaction was witnessed by Sri A. K. Dutta, the independent witness. Sri Jena left the counter and

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handed over the tickets and the balance decoy money to Sri D. Mohanty, Sr. VI(T). Sri Dutta also passed signal to Vigilance Inspectors. Immediately, all the three Vigilance Inspectors rushed to the Booking Office, Balugaon along with Sri Dutta and disclosed their identity. The railway cash of the petitioner was blocked and he was asked to close his DTC. In the mean time, the SS, Sri H. K. Mishra was called on and he was asked to count the railway cash of the petitioner. The railway cash of the petitioner was Rs.49,560/-. Sri Mishra was shown the pre-decoy check memorandum and was asked to put tick mark against the tainted GC notes found available in the railway cash of the petitioner and segregated it. Accordingly, Sri Mishra put tick mark against eight tainted GC notes amounting Rs.490/-. The notes are mentioned below:

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G.C Note No. Denomination

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OHS 786480 Rs.100/2KA 321001 Rs.100/2NA 563765 Rs.100/6QK 942174 Rs 100/2MP 697629 Rs. 50/59R 674383 Rs 20/ 39M 929393 Rs. 10/OOR428885 Rs. 10/Total Rs.490/

Total

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The petitioner produced Rs. 103/- as his personal cash against declared Rs.116/-. He produced Rs.49,560/- as his railway cash against his DTC cash of Rs.50257/-, thereby a shortage of Rs.697/- was found in his railway cash during the time of vigilance check, (RUD-3 & 4). Sri A. K. Dutta, the independent witness in this case has witnessed the entire exercise and recovery of tainted GC notes, The post-decoy check memorandum (RUD-5) was prepared and signed by the following officials, who had witnessed the check.

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Sri H.K. Mishra, SS/BALU

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Sri H.K. Panda, CVI(T)

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Sri B.Kar, Sr.VI(T)

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Sri D.Mohanty, Sr.VI(T)

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Sri A.K. Dutta, HD. Clerk under CEE/ ECoR/BBS.

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Sri P.D. Samantaray, HBC/Balugan.

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2.3. By the above act, the petitioner failed to

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maintain railway integrity, devotion to duty and acted in a manner unbecoming of a railway servant contravening provisions of Rule 3.I(i), (ii) & (iii) of Railway Service Rules, 1966 and thereby rendered himself liable for disciplinary action under Railway Servants (D&A) Rules,

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1968 as amended from time to time.

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2.4. Thereafter, the petitioner was served with charge-sheet dated 22.10.2005 under Rule-9 of the Railway Servants (D&A) Rules, 1968 with following

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articles:-

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“ Article 1 : Shri P.D. Samantaray, while working as HBC/BAL demanded and accepted Rs.16/(Rupees Sixteen) as illegal gratification from the Decoy while issuing two IInd M/Exp. Tickets Ex BALU to UPR by Train No.8415 on 21.08.2005.

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Article II : Shri P.D. Samantaray, while working as HBC/BALU on IInd night shift on 21.08.2005 at Booking office/BALU, produced Rs.197/short in his railway cash at the time of Vigilance check, which amounts to temporary misappropriation of Govt. cash.”

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2.5. On receipt of the charge sheet, the petitioner submitted his explanation on 14.11.2005 before opposite party no.5-Divisional Commercial Manager denying the charges framed against him. Thereafter, opposite party no.6 was appointed as Inquiring Officer to enquire into the charges levelled against the petitioner and opposite party no.7 was appointed as Presenting Officer.

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2.6. In course of enquiry, six witnesses were examined by the Presenting Officer and cross-examined by the defence counsel and, on 23.03.2007, the Inquiring Officer concluded the proceeding advising the

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petitioner as well as the Presenting Officer to submit their respective statement/defence brief. Accordingly, the Presenting Officer submitted his written statement on 09.04.2007 and the petitioner submitted his defence brief on 29.06.2007. The Inquiring Officer, vide letter dated 06.09.2007, supplied a copy of the inquiry report dated 17.07.2007 to the petitioner directing him to submit his final defence statement within 15 (fifteen) days from the date of receipt of the said letter. The Inquiring Officer came to a conclusion that the charges under Article-1 are substantiated and allegations under Article II are partly proved.

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2.7. The petitioner submitted his final defence statement on 24.09.2007 before the disciplinary authority pointing out the illegalities and irregularities committed in course of the enquiry. The disciplinary authority, vide letter dated 20.03.2008, issued a punishment notice imposing the penalty of reduction from the post of Head Booking Clerk in the scale of Rs.5000-8000-RSRP to the post of Jr. Booking Clerk in

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the scale of Rs.3200-4900 with a pay of Rs.4900/- for a period of 60 months with cumulative effect.

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2.8. Aggrieved by the above punishment imposed

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by the disciplinary authority, the petitioner preferred an appeal on 04.04.2008 before opposite party no.4appellate authority, who intended to permit the petitioner for a personal hearing before taking a final decision on the appeal. The appellate authority, vide letter dated 18.04.2008, advised the petitioner to attend his chamber on 28.04.2008, along with his defence counsel, for personal hearing. Accordingly, the personal hearing was conducted on 28.04.2008. But the appellate authority, vide letter dated 30.05.2008, informed the petitioner that the punishment imposed by the disciplinary authority stood good.

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2.9. Opposite party no.3-revisional authority suo motu reviewed the case and issued a show cause notice dated 26.08.2008 indicating that he has decided to enhance the penalty and impose punishment of removal from railway service and called upon the petitioner to submit his show-cause/representation at the earliest.

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Challenging the same, the petitioner approached the Central Administrative Tribunal, Cuttack Bench,

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Cuttack by filing O.A. No.337 of 2008. The Tribunal, vide order dated 01.04.2011, though quashed the showcause notice dated 26.08.2000 issued by the revisional authority for enhancement of penalty, but confirmed the order passed by the disciplinary authority as well as the appellate authority. Hence, this writ petition.

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Mr. A.K. Bose, learned counsel appearing for the petitioner vehemently contended that the Inquiring Officer though found that the demand of illegal gratification was not established, but came to a conclusion that the charge under Article-I is proved. He also came to a conclusion that the charge under ArticleII is partly proved, as shortage of cash is not exactly appropriate as mala fide intention but due to lack of efficiency in cash dealing. But the disciplinary authority, without considering the same in proper perspective and without assigning any reasons for disagreement with the report of the Inquiring Officer, concluded that the charges under Articles-I and II are proved and

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accordingly imposed the major penalty, which cannot be sustained in the eye of law. It is further contended that it is the duty of the appellate authority to call for the records of the proceedings and, after going through the records as well as the appeal preferred by the petitioner, pass a reasoned and speaking order, but in the instant case, the appellate authority, without discussing all the points raised by the petitioner in his appeal, passed a cryptic order upholding the punishment imposed by the disciplinary authority. It is further contended that the Tribunal, vide order dated 01.04.2011, though quashed the impugned notice to enhance the punishment, but upheld the order of punishment passed by the disciplinary authority as well as the appellate authority and, thereby, has not applied its mind properly. Thus, the order so passed by the Tribunal is liable to be quashed.

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Mr. B. Maharana, learned Central

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Government Counsel appearing for the opposite partyRailway authorities urged that considering the report of the Inquiring Officer, reply submitted by the petitioner

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and materials available on record, the disciplinary authority duly applying his mind imposed the punishment, which was also upheld by the appellate authority after giving personal hearing to the petitioner. The order of the disciplinary authority as well as the appellate authority is well justified.

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4.1. It is further contended that in terms of Rule 25 of the Railway Servants (D&A) Rules, 1968, the ADRM/KUR, the revisional authority suo motu reviewed the matter and issued show cause notice dated 26.08.2008 to the charged official asking him to reply as to why the penalty of removal from service shall not be imposed on him. This notice of the revisional authority cannot be called in question, as he is empowered to do so in view of the provisions embodied in Rules 9, 10, 12, 18, 19, 22 and 25 of the Railway Servants (D A) Rules, 1968. It is further contended that the punishment imposed on the petitioner was inadequate to the offence committed by him.

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4.2. It is also contended that so far as shortage of

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the railway cash during his duty hour is concerned, the

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petitioner has admitted the same in his explanation to the charge sheet and according to him he had deposited

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the amount on the same day and that was not the first occasion of committing omission and commission by the petitioner. During the period from 1987 to March, 2008, the petitioner has been imposed punishment of various natures on twelve occasions and he was also placed under suspension for the period from 04.09.2005 to 08.09.2005. As such, adequate opportunity of hearing was given to the petitioner and such fact has not been denied by the petitioner by filing rejoinder affidavit to the counter affidavit filed by the opposite parties before the Tribunal. Apart from that, the petitioner was subjected to a trap case.

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4.3. It is further contended that in exercise of

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power of judicial review under Article 226 of the Constitution of India, this Court cannot examine the evidence on record so far as imposition of penalty is concerned. As such, the scope of judicial review is limited to the decision making process but not the decision and there is no violation of any rules and the

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principle of natural justice, which has been followed strictly by giving adequate opportunity of hearing to the petitioner. Thereby, the order passed by the Tribunal is well justified which does not warrant interference of this Court at this stage.

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This Court heard Mr. A.K. Bose, learned counsel appearing for the petitioner and Mr. B. Maharana, learned Central Government Counsel appearing for the opposite party-Railway authorities in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel appearing for the parties, the writ petition is being disposed of finally at the stage of admission.

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On the basis of the factual matrix, as discussed above, it is revealed that a vigilance trap case was initiated on receipt of various allegations against the petitioner and by following due procedure, as envisaged under the Act and Rules, disciplinary authority imposed major penalty, which has been confirmed by the appellate authority in appeal. But, so far as suo motu revision is concerned, though such power has been

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vested with the revisional authority, for enhancement of punishment, issuance of notice of show-cause dated 26.08.2008 is not in conformity with the provisions of law. Therefore, the Tribunal quashed the said notice, but confirmed the order of punishment passed by the disciplinary authority as well as appellate authority.

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In course of hearing, Mr. A.K. Bose, learned counsel appearing for the petitioner persuaded this Court to look into the evidence adduced by the respective parties. But the question of interference in the matters of disciplinary proceedings is no more res integra and it is well settled that if the proceedings and/or of that matter the order of punishments are in violation of the rules, principles of natural justice and based on no evidence, then certainly whatsoever the gravity of the offence may be, the Court cannot be a silent spectator and/or a party to such irregularity/ illegality committed by the authority. As such, the Court can also rise on an occasion if the order of punishment is without jurisdiction, competence, unreasoned and shocking to the judicial conscience. In other words,

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power of judicial intervention in the disciplinary proceedings is possible where there has been miscarriage of justice in the decision making process of the matter.

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Keeping in view the above basic principles, this Court, in exercise of power of judicial review, is of the considered opinion that neither the disciplinary authority nor the appellate authority has committed any procedural irregularities in awarding punishment and, as such, the punishment has been imposed by following due procedure in compliance of the principle of natural justice and nothing has been brought to the notice of this Court with regard to infraction of any statutory provisions so as to make imposition of penalty as redundant. Rather, the punishment has been imposed on the basis of the findings of the Inquiring Officer arrived at by giving due opportunity of hearing to the petitioner.

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So far as the trap case is concerned, the contention is raised that it has not been done by following the mandatory provisions, as provided in Paras

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704 and 705 of the Vigilance Manual, and the same should be declared void. Such contention raised by learned counsel for the petitioner cannot be sustained in the eye of law.

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In Deputy Commissioner, KVS & others v. J. Hussain , AIR 2014 SC 766, the apex Court held that host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. Therefore, in exercise of power under judicial review, the apex Court time and again held that the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting

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lack of good faith. In paragraph-11 of the said judgment,

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the apex Court held as follows:-

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“………… In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result. That would not mean that in a given case punishment of removal can be discarded by the Court. That cannot a ground for the Court to interdict with the penalty. This is specifically held by this Court in H.G.E. Trust & Anr. V. State of Karnataka & Ors. (2006) 1 SCC 430 in the following words:

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“A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matter, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforesaid principles in view, we may hereinafter notice a few recent decisions of this Court.”

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11. In Karnataka Bank Ltd. v. A.L. Mohan

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Rao , (2006) 1 SCC 63, the apex Court held that charge against the delinquent employee was that he had colluded with one of the Branch Managers and enabled grant of fictitious loan. The High court interfered with the punishment of dismissal and ordered reinstatement on sympathetic ground even when it found misconduct was proved. This Court reversed the judgment of the High Court. The apex Court emphatically held that the courts should not be guided by misplaced sympathy or

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continuity ground, as a factor in judicial review while examining the quantum of punishment.

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12. In Ex-Constable Ramvir Singh v. Union of

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India , (2009) 3 SCC 97 : AIR 2009 SC (Supp) 33, the apex Court held that the appellant in that case was working as a Constable in the Border Security Force. Penalty of removal from service was imposed upon him on account of his failure to return to place of duty despite instructions given to him and refusal to take food in protest when he was punished and refusal to do pack drill while undergoing rigorous imprisonment. This Court held that the punishment imposed upon him was not disproportionate.

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13. In Charanjit Lamba v. Commanding

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Officer , (2010) 11 SCC 314 : AIR 2010 SC 2462, the apex Court held as follows:

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“Where the appellant who was holding the rank of Major in the Indian army had exhibited dishonesty in making a false claim of transport charges of household luggage. It was held that the penalty of dismissal was not disproportionate.”

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In view of fact and law, as discussed above, we

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do not find any reason to interfere with the order dated 01.04.2011 passed by the Tribunal in O.A. No.337 of 2008 and the same is hereby confirmed. Consequentially, the order of punishment passed by the disciplinary authority and confirmed by the appellate authority is upheld.

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In the result, therefore, the writ petition merits

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no consideration and the same is dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.

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(DR. B.R. SARANGI) JUDGE

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G. SATAPATHY, J. I agree.

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(G. SATAPATHY) JUDGE

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Orissa High Court, Cuttack The 8^th May, 2024, Alok

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Signature Not Verified

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Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 08-May-2024 16:32:06

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Pinakdhar Samantaray v. Union of India

Case brief

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Pinakdhar Samantaray v. Union of India

Case brief

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