TMI Blog2008 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal proceeding was initiated wherein the following imputations of charges were drawn: Article - I: He overcharged the decoy passenger by Rs. 5/- (Rs. Five) on issue of one M/E Ticket No. 8148090 Ex. CSTM to Bhubaneshwar. Article - II: He was found having Rs. 199/- (Rs. One hundred ninety nine) short in his railway cash. Article - III: He declared his private cash in computer that the monetary ceiling for the satisfactory staff, without being certified by the supervisor in the private cash register. 4. In the said departmental proceeding, appellant inter alia raised a contention as regard to non compliance of paragraphs 704 and 705 of the Railway Vigilance Manual (the Manual) in the manner in which the purported trap was laid. It was furthermore contended that provisions of Rule 9(21) of the Railway Servant Discipline and Appeal Rules have not been complied with. 5. Appellant was found guilty of the said charges in the said departmental proceeding. A penalty of reduction to the lowest scale of pay fixing his pay at the lowest level at Rs. 3,200/- for a period of five years was imposed. An appeal and consequently a revision preferred by him were dismissed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having repaid by the appellant, no charge could have been framed in that behalf. 4. The findings of the High Court that the appellant was found to have been in possession of an excess sum of Rs. 5/- was beyond record. 9. Dr. R.G. Padia, learned Senior Counsel, appearing on behalf of the respondents, on the other hand, would contend: 1. That finding of fact having been arrived at by the disciplinary authority, the same should not have been interfered with by the Tribunal particularly when some evidences have been led on behalf of the department. 2. The High Court has rightly opined that paragraphs 704 and 705 of the Manual pertaining to the manner in which the trap could be laid, contain only administrative instructions and are, thus, not enforceable in a court of law. 3. Since there was sufficient compliance of Rule 9(21), the impugned judgment should not be interfered with. 10. We may at the outset notice that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in the Railway Manual. Paragraphs 704 and 705 thereof read thus: 704. Traps (i) ... (ii) ... (iii) ... (iv) ... (v) When laying a trap, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the Investigating Officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the G.C. notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the Investigating Officer/Inspector. Another memo, for returning the G.D. notes to the decoy will be prepared for making over the G.C. notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and Investigating Officer/Inspector. The independent witnesses will take up position at such a place where from they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the Investigating Officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigation officers were RPF Constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF Constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory Instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the Enquiry Officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the Inquiry Reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the Instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See - State of U.P. v. Sheo Shanker Lal Srivastava (2006)IILLJ219SC and Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and Anr. (2007)IILLJ724SC . 16. We must also place on record that on certain, aspects even judicial review of fact is permissible. E v. Secretary of State for the Home Department [2004] 2 W.L.R. 1351. 17. We have been taken through the evidence of Shri S.B. Singh by Dr. Padia. Significantly the examination-in-chief was conducted by the Enquiry Officer himself. As the proceeding was for imposition of a major penalty, why the Presenting Officer, who must have been engaged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to consider the same. It was only for the aforementioned purpose that paragraphs 704 and 705 of the Manual have been invoked. It may be that the said instructions were for compliance of the Vigilance Department, but substantial compliance thereof was necessary, even if the same were not imperative in character. A departmental instruction cannot totally be ignored. The Tribunal was entitled to take the same into consideration alongwith other materials brought on records for the purpose of arriving at a decision as to whether normal rules of natural justice had been complied with or not. 22. The High Court unfortunately even without any material on record held that some excess amount was found from the appellant which itself was sufficient to raise a presumption that it had been recovered from the decoy passenger. No such presumption could be raised. In any event there was no material brought on records by the department for drawing the said inference. The High Court itself was exercising the power of judicial review. It could not have drawn any presumption without there being any factual foundation therefor. It could not have taken judicial notice of a fact which did not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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