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Judgment
By Mallika Arya, AM.-
The applicant is challenging the chargesheet dated 28.02.2011 (Annexure A-2) and the punishment awarded to him by the Disciplinary Authority, Appellate Authority and the Revisionary Authority.
Central Administrative Tribunal2. Brief facts of the case are that a vigilance check was conducted on 23.12.2010 when the applicant was working as Travelling Ticket Examiner (TTE) in Train No.12185. The vigilance check was conducted between Damoh – Katni stations and till that time only 01 vacant birth No.68 in S/3 coach was allotted by the applicant and a receipt of Rs.130/- was issued to the passenger. The vigilance team found Rs.1250/- excess with the applicant. The applicant submitted that this amount of Rs.1250/- was given to him by one of his friends at Sagar. The Vigilance Department recommended for initiation of major penalty disciplinary action and imposition of major penalty against the applicant vide the order dated 21.02.2011 (Annexure A-1). The respondent No.6, without independent application of mind, issued major penalty chargesheet to the applicant on 28.02.2011 (Annexure A-2). Thereafter, vide order dated 07.04.2011 (Annexure A-3), the Disciplinary Authority appointed Shri H.S. Pandey, as IO who belongs to the Vigilance Department.
The statutory procedure laid down under Rule 9(21) of Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as ‘1968 Rules’ in brevity) was not followed by the Inquiry Officer and he held the charges proved against the applicant whereas nothing was on record to prove the charges. During vigilance check there was no irregularity in the coaches manned by the applicant and only one berth was allotted by the applicant. There was no complaint by any of the passengers against the applicant.
Under Rule 10(2)(a) of 1968 Rules, an exhaustive written representation dated 21.02.2012 was submitted by the applicant before Disciplinary Authority stating that the alleged money Rs.1250 was actually a loan amount returned to the applicant by one of his friend at Sagar Railway station. However, the Disciplinary Authority drew a conclusion that an amount of Rs.1250 received at Sagar should have been declared by the applicant in his EFT book. Thus the applicant is guilty of not following instructions and decided to impose a major penalty of "reduction to lower stage in the same time scale of pay, by 03 stages for a period of 03 years with cumulative effect" vide order dated 12.04.2012 (Annexure A-4).
The order dated 12.04.2012 passed by the Disciplinary Authority was however rejected by the vigilance section vide order dated 19.04.2012 (Annexure A-5) stating that since the proposed penalty is not in accordance with the vigilance dictates hence adequacy to the proposed penalty cannot be given. Succumbing to the displeasure from the vigilance, respondent No.06 brushed aside to discharge the function of Disciplinary Authority. Respondent No.5 revised/enhanced penalty vide order dated 10.05.2012 (Annexure A-6) thereby imposing the following penalty "reduction to lower stage in the same time scale of pay, by 05 stages for a period of 03 years with cumulative effects and fixing of pay of the applicant at initial stage i.e. from Rs.9500 to Rs.5880.
The respondent No.05 wrote a letter dated 10.05.2012 (page 40 of the Paper Book) to the vigilance department asking for adequacy of penalty imposed on the applicant. Thereafter, the respondent No.02 vide letter dated 01.06.2012 (Annexure A-9) remitted the matter back to the respondent No.5 to re-write the penalty orders. Accordingly, the respondent No.05 vide order dated 13.06.2012 (Annexure A-10) has enhanced penalty as follows:-"reduction to the lowest time scale of pay i.e. from grade pay Rs.2400 to grade pay Rs.1900 for a period of 05 years with cumulative effects and fixing pay of the applicant at initial stage l.e. from Rs.9500 to Rs.5880”.
Further, in compliance to the vigilance dictates, the quantum of punishment was further enhanced by the respondent No.05 vide order dated 23.07.2012 (Annexure A-12) to "reduction to the lowest time scale of pay i.e. from grade pay Rs.2400 to grade pay Rs.1900 for a period of 10 years with cumulative effect and fixing the pay of the applicant at initial stage i.e. from Rs.9500 to Rs.5880".
On receipt of the proposed penalty order dated 23.07.2012 from respondent No.05, respondent No.2 vide letter dated 26.07.2012 (Annexure A-13) informed that adequacy of punishment has since been satisfied, the Disciplinary Authority may take decision applying it’s own mind. Accordingly, the respondent No.05 has issued penalty order dated 07.08.2012 (Annexure A-14) to the applicant imposing punishment of "reduction to the lowest time scale of pay i.e. from grade pay Rs.2400 to grade pay Rs.1900 for a period of 10 years with cumulative effect and fixing pay of the applicant at initial stage i.e. from Rs.9500 to Rs.5880".
The applicant preferred an appeal on 28.09.2012 (Annexure A-15) before the respondent No.04 refuting allegations and explaining the circumstances with regard to production of alleged amount of Rs.1250 during vigilance check. However, the appeal was rejected by the Appellate Authority vide order dated 16.10.2015 (Annexure A/16). The Revisionary Authority vide order dated 02.08.2016 (Annexure A-18) has further rejected the revision petition preferred by the applicant. However, he concluded that since there was no passenger complaint against the applicant during vigilance check for taking excess amount, he has modified the penalty to "reduction to the lowest time scale of pay i.e. from grade pay Rs.2400 to grade pay Rs.1900 for a period of 05 years with cumulative effect and fixed the pay at initial stage i.e. from Rs.9500 to Rs.5880".
The applicant submits that as per the provisions contained in Rule 414.2 of the Indian Railway Vigilance Manual (for short 'IRVM'), the vigilance investigation report was required to be submitted by the vigilance officer along with its recommendations to the disciplinary authority and it was for him to decide whether to accept the recommendations and take action or disagree with the recommendations. In the instant case the vigilance investigation report was never submitted before the Disciplinary Authority for a decision as is evident from the letter dated 21.02.2011 (Annexure A-1). The decision to initiate major penalty action and to impose major penalty was taken by the vigilance section much before issuance of the impugned charge sheet.
Further, provisions of Rule 9(2) of 1968 Rules were never complied by the respondent No.06. Charges against the applicant were framed by the vigilance section in violation of Rule 812 contained in IRVM and Rule 9(6) of the 1968 Rules. Writing of 04 different penalty orders by the respondent Nos.06 and 05 and rejection, thereof by the vigilance (respondent No.02) clearly indicate that Disciplinary Authority acted under severe threat from the vigilance. Ultimately Disciplinary Authority without independent application of mind did exactly what the vigilance actually wanted in the case.
In their reply, the respondents have stated that during the vigilance check, an amount of Rs.1250/- was found excess in the possession of the applicant. The applicant had not given proper explanation for this excess amount. Therefore, on the basis of the recommendation of the Vigilance branch, the applicant was issued a major penalty chargesheet on 28.02.2011. The charges levelled against the applicant were found to be proved during the course of enquiry and he was given a reasonable opportunity to defend himself. The Disciplinary Authority, after going through the DAR case file, enquiry report and representation of the Central Administrative Tribunalapplicant, imposed the punishment of reduction to the initial grade and pay with a Grade Pay of Rs.1900/- from the present Grade Pay of Rs.2400/- for a period of 10 years with cumulative effect. The basic pay was fixed at Rs.5880/- from Rs.9500/- vide order dated 07.08.2012 (Annexure A-14). The appeal and the revision preferred by the applicant have also been rejected by the Appellate and the Revisionary Authorities.
As per the D&AR schedule of power-II, Assistant Commercial Manager (ACM)/Jabalpur has maximum power to impose punishment specified in Rule 6(v). The Vigilance department did not agree with the proposal of ACM dated 12.04.2012. Therefore, the D&AR case file was put up before the Divisional Commercial Manager, Jabalpur, who is the higher authority of the ACM. The DCM, thereafter, again sent the proposal for imposing penalty of reduction to the initial post and stage, i.e. from Grade Pay (Rs.2400/-) to the Grade Pay (Rs.1900/-) for a period of 05 years with cumulative effect. However, the Vigilance Department did not agree with the proposal sent by the DCM dated 28.06.2012. Ultimately, the DCM imposed the punishment of reduction to initial stage in initial grade for a period of 10 years with cumulative effect vide order dated 07.08.2012.
We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
The applicant has challenged the disciplinary proceedings and the penalty imposed upon him, inter alia, on the ground that the entire disciplinary proceedings were conducted under the dictates and directions of the Vigilance Department and that the Disciplinary Authority failed to exercise his independent discretion vested in him under the applicable disciplinary rules.
The facts of the case are not in dispute that the applicant was performing his duties as TTE on train No.12185. An amount of Rs.1,250/-was found in his possession in excess during the vigilance check on 23.12.2010. The applicant explained that the said amount had been handed over to him by his friend at Sagar Railway Station towards repayment of an amount which the applicant had earlier lent to him. The Vigilance Department, however, recommended initiation of major penalty proceedings against the applicant. After conducting the disciplinary proceedings, on four successive occasions, the Disciplinary Authority proposed punishment adequate and the matter was remitted back to the Disciplinary Authority for a fresh consideration. Ultimately, the punishment order dated 07.08.2012 (Annexure A-14) came to be issued by the Disciplinary Authority in accordance with the views expressed by the Vigilance section.
The question which arises for consideration is whether a disciplinary proceeding can be sustained where the records demonstrate that the Disciplinary Authority, instead of independently determining the appropriate penalty on the basis of the proven misconduct and the relevant circumstances, repeatedly reconsidered the matter at the instance of Vigilance and ultimately imposed the punishment as directed/recommended by Vigilance.
It is a settled principle that the power to impose punishment is a statutory power vested in the Disciplinary Authority. The authority entrusted with such power is required to exercise its own judgment after considering the charges, the evidence, the findings of the Inquiry Officer, the representation of the charged employee and the circumstances relevant to the quantum of punishment. The Hon'ble Supreme Court in Nagaraj Shivarao Karjagi vs. Syndicate Bank, (1991) 3 SCC 219, held that a Disciplinary Authority cannot surrender its statutory discretion to the Central Vigilance Commission or any other outside authority. The Hon’ble Supreme Court has further held that no third party can dictate to the Disciplinary Authority how it should exercise it’s disciplinary power or what punishment it should impose. The principle is not that Vigilance can never be consulted. The principle is that the ultimate decision must remain that of the statutory Disciplinary Authority. What would vitiate the decision is the demonstrable fact that the Disciplinary Authority ceased to exercise its own statutory discretion and acted under the dictate or pressure of Vigilance.
The facts of the present case are not in dispute. The repeated remittal of the matter to the Disciplinary Authority merely because the punishment proposed by the Disciplinary Authority was not acceptable to Vigilance section is a compelling circumstance which goes to the root of the question as to whether there has been an independent application of mind by Disciplinary Authority. Such a procedure effectively transfers the decision-making power concerning punishment from the statutory Disciplinary Authority to an authority which is only advisory in nature. This is precisely the mischief against which the principle laid down in Nagaraj Shivarao Karjagi (supra) is directed. The disciplinary discretion cannot be fettered by the opinion or direction of an external authority. The orders passed by the Disciplinary Authority do not reflect an independent application of mind by him. The Vigilance Department can legitimately investigate and place its findings before the competent authority. However, where the competent Disciplinary Authority is shown to have surrendered it’s independent discretion and the final punishment is the consequence of such dictation, the punishment order cannot be sustained. The fact that the allegation involved an excess amount of Rs.1,250/- also reinforces the necessity for the Disciplinary Authority to have independently examined the applicant's explanation, the evidence establishing the alleged misconduct, the nature of the proved charge and the proportionality of the proposed penalty. We are of the considered view that the impugned punishment orders and the orders passed in appeal and revision are liable to be set aside since they are based on the directions/recommendations of the vigilance section.
In view of the aforesaid, the impugned orders passed by the Disciplinary Authority, Appellate Authority and the Revisionary Authority are quashed and set aside. The matter is remitted back to the Disciplinary Authority for fresh consideration from the stage of determination of the appropriate penalty. The Disciplinary Authority shall consider the matter independently, uninfluenced by the earlier Vigilance insistence regarding the quantum of punishment, and shall take into account the findings recorded in the enquiry report, the applicant's defence, the circumstances of the case and the relevant provisions of the applicable disciplinary rules. If required, the Disciplinary Authority can give an opportunity of hearing to the applicant before taking a decision. The above exercise shall be completed by passing a reasoned and speaking order within a period of 120 days from the date of receipt of the copy of this order.
The Original Application is accordingly partially allowed in the above terms. No order as to costs.