COURT CASE ON DAR

APPM/N.A.I.R

O.A. (No. 14/2001 )CAT,

Jabalpur.

In this case, the Railway servant concerned had

been sanctioned leave for two days only but he
remained absent for about 3-1/2 months without
intimation.
At the time of joining, he produced medical
certificate from railway doctor.
Still the fact remains that he had not given any
intimation about his illness and thus remained
unauthorized absent.

ACTION OF RAILWAY ADMINISTRATION

1

charge sheet has issued for unauthorized absence

from

duty
2

Penalty was imposed for the charges on leaving H Q

without prior permission

3. Appeal filed against the DAs decision
4

penalty which was imposed by DA has been upheld in

appeal
5
6

filed a case before CAT

Disciplinary authority passed fresh orders in the

bringing out the correct charges.

7

Same was confirmed by A A

case

The

Honble

Tribunal

vide

orders

dated

6.5.2003 allowed the O.A. and set aside the

orders passed in the disciplinary case of the
applicant with consequential benefits to him.
The Honble Tribunal inter alia held that :
There is no evidence that the applicant was
unauthorized absent because leave for 2 days
was sanctioned to him by the Station Master
and further period was covered by medical
certificates issued by railway medical officer

The penalty was not imposed on the basis

of charges sheet
The
disciplinary
authority
was
not
competent to review its own orders and as
such the subsequent orders of the
disciplinary
authority
are
without
jurisdiction
iv) Revised order was passed during
pendency of the O.A. and was thus not
valid

 The disciplinary authority passed a

cryptic order and to compound the
matter also cited in the penalty order
the allegations which were different
from the charge sheet.
These orders should also be self
explained, reasoned and speaking as
has already been emphasized on a
number of occasions in the past.

As regards review of orders, it is

clarified that an order, if found to be
containing some patent error, can be
reviewed by the same authority who
had passed the original order.
Some of the circumstances in which
the orders can be reviewed and fresh
orders passed are given below
when order are in fructuous
where the authority who passed the
order was not competent to impose

where there is a patent error in the

original order e.g. the date or
reference
number
or
name/designation etc. was shown
incorrectly in the order
an order which has been challenged
before a court of law can be reviewed
only with the permission of the court

Example- railway
vigilance case
Dr. R.K. Verma,
Son Of Sri Prem Shanker Verma
vs
Union Of India,
Through General Manager
on 8 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD

Brief history of the case

VIGILANCE TRAP CASE

Dr. was working as DMO and accepted Rs
200/ for sick certificate for 10 days
1st December 2001 in the Health Unit failed
2nd trap on 8 December 2001
witness
a) decoy Sh. Amardan Singh (patient)
b)
Sh Om Prakash- Safaiwala working
under DMO and
c) Sh. Mani Ram- Carriage cleaner under
CDO/Delhi d) Rs 200/ found in a diary kept in almirah

D) other witness Sh. Arvind Kumar, GrD

CHARGES
A) Violation of Service Conduct Rule
3(1) i,ii,iii
B) inquiry ex parte C.O on study
leave
C) penalty dismissal from service in
2009
d) Appeal also turndown

Vigilance manual
Para 704-705 of vigilance manual
(now para 306and 307 of 2006) which says that
: (a) two Gazetted Officers from Railways are to
act as independent witnesses as far as
possible
(b) The independent witnesses must hear the
conversation, which should establish that the
money
was
being
passed
as
illegal
gratification to meet the defence.
(c) The transaction should be within the sight
and hearing of two independent witnesses.-

 (d)
There should be an opportunity to catch the
culprit red-handed immediately after passing of
the illegal gratification so that the accused may
not be able to dispose it of.

(e) The witnesses selected should be responsible

witnesses who have not appeared as witnesses
in earlier cases of the department or the police
and are men of status, considering the status of
the accused. It is safer to take witnesses who are
government
departments.

employees

and

of

other

In addition, the said guidelines also state

the independent witnesses will take such a
position that they could 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.

COURT OBSERVATION
There is no mention about money having
been demanded.
Again, the money was not paid to the
applicant but to one Shri Om Prakash,
Safaiwala.
Shri Arvind Kumar had not stated that he
had seen Om Prakash handing over the
money to the applicant i.e.DMO
Thus, the spinal requirement of two
Gazetted Officers and their actual hearing of
demanding and accepting the money by the
applicant is conspicuously missing in this
case.

One of the guidelines is, there should be

an opportunity to catch the culprit redhanded immediately after passing of the
illegal gratification so that the accused
may not be able to dispose it of - this
ASPECT is also not there in this case.
Notes
had not
been soaked in
chemicals, in the event of the applicant
handling the same, his hand would have
turned pink on dipping in water. That has
also not been done.

 Nor was the money recovered from the CO i.e.

of the applicant.
DECISION OF COURT
The

impugned

order

dated

25-08-2009

is

hereby quashed and set aside.

The applicant shall be reinstated in service and
his seniority as earned by him prior to the
passing of the impugned order shall be kept in
tact.
He is entitled to earn notional increment for the
periods he has been out of service.

However, he is not entitled to any arrears of

salary.
Respondents are directed to pass suitable

orders for reinstatement and for fixation of

his salary from the date he is reinstated
within a period of three months from the
date of receipt of the certified copy of this
order.

Central Administrative Tribunal Delhi

Hari Ram
vs
Union of India
That Hari Rm demanded and
accepted of Rs.6/on 30 January, 2009
NO.1562/2006

The facts of the case in brief

The applicant, while working as a Commercial
Clerk (Booking Clerk) in Northern Railway,
Bikaner Division, DA issued a major penalty
charge sheet issued on 25.06.2001 for the
following charges:
That he demanded and accepted of Rs.300/from the decoy passenger against the tariff
fare of Rs.294/- for issue of two tickets of 2nd
Mail/Express from DLI to ABU Road for his
personal gain.
Through out the check he adopted a noncooperative attitude inasmuch as he did not
sign

 despite charging Rs.6/excess from the

decoy and recovery of all the decoy money

from the Government cash of Shri Hari
Ram,

he

produced

Government

cash

of

Rs.6599/- against Rs.6602/- as per DTC

Book, i.e. Rs.3/- short, which indicated that
he created artificial shortage in cash to
hide his misdeed of overcharging.

Contention of applicant
punishment (penalty of reduction to two lower stage in same time

scale, i.e., from the stage of Rs.4475/- to the stage of Rs.4305/- in

the scale of Rs.3200-4900), was imposed to the applicant
the charge sheet dt.25.6.2001
the Enquiry Officers Report dated 24.9.2002

the Appellate order dated 31.12.2004

the Revision order dated 14.12.2005
Challenged the decision of the various authoritys on the ground

that

the

same

are

illegal,

principles of natural justice

arbitrary

and

against

the

Allegation by applicant
The impugned charge sheet being
based

on

vigilance

trap,

the

procedure under paras 704 and 705

of

the

Indian

Railway

Vigilance

Manual is mandatory but was not

followed and, therefore, the entire
proceedings stand vitiated.

It is specifically alleged that two

independent witnesses were not
arranged nor was any Gazetted
officer engaged as a witness.
The applicant had made a detailed
representation but the disciplinary
authority had failed to consider the
same and has passed a non-speaking
order without giving personal hearing
to the applicant.

 The said shortage of Rs.9/- (the total cash was Rs.6599/whereas the sale proceeds of the tickets as per DTC Books

came to Rs.6602/- reflecting shortage of Rs.3/- in the cash,

which rose to Rs.9/- after counting of Rs.6 in the DTC book
as left by the passenger of ABR uncollected from the
counter which did not relate to the sale proceedings of the
tickets) was paid by the applicant from his pocket on the
spot and a remark to this effect was passed in the DTC
Book as required in para 705/710 of the Indian Railway
Commercial Manual Vol.I and, therefore, there is no
misconduct on the part of the applicant in this regard.

Court Observation
inMoni Shanker
vs. Union of India and Another,(2008 (1)
AJW 479), the Apex Court had an occasion
to consider again the legal status of Paras
704 and 705 wherein an extensive
reference was made to the judgment in G.
Ratnams case (supra) also. After elaborate
discussion the Apex Court held as under:
A departmental instruction cannot totally
be ignored.

 8 witness was there from N G

That is of importance in such cases is
to see whether the officials engaged
as witnesses would have any reason
to falsely implicate the official for
reasons such as conflict of interest or
personal enmity etc
No lacuna found in vigilance trap and
on part of D A/IO/AA /RA

The other main contention of the applicant in

this case is that there is a shortage of only
Rs.6/- and that the respondents should have
overlooked this in terms of their own Circular
No.19 MC/O/Policy/Pt.III dated 30.03.2006.
The relevant portion of the said circular reads
as under:
In
continuation
to
this
office
letter
No.177/MC/PNM/CPO/URMU/98, wherein it was
decided to permit a small limit of Rs.30/- in
shortage/excess of cash on hand for the staff
working in computerized reservation office,

 it has now been decided to enhance this

limit to Rs.100/-.
This shall apply to all BPCs, BCs and PCs
who are handing cash.
The staff found in excess/shortage of cash
on hand shall normally not be taken up
until and unless there are other compelling
reasons to believe irregular working of
staff. This should however not become a
regular feature in the working of the staff.

 It is seen that this circular clearly provides

an exception in cases of irregular working of
staff. The present case being a case of
excess charging on account of issue of
tickets would fall under the exception, and in
view

of

this

the

applicant

counsels

contention that the shortage of Rs.6/- should

have been overlooked in terms of this
circular is not tenable.

DECISION
In view of the above discussion, we
are not inclined to interfere in this
case and the OA is accordingly
dismissed. No costs.
**************************************

UNUTHORISED ABSENCE
Andhra High Court
WRIT PETITION No.19350 of 2012
Union of India,
Rep. by The General Manager,
South Central Railway, Rail Nilayam,
Secunderabad
vs
Debashish Pal

Fact of case

working as Loco Pilot (Goods) Grade-I at Vijayawada

Railway Station, South Central Railway, committed misconduct

by absenting himself unauthorized from duty for 84 days from
23.02.2005 to 17.05.2005 without prior sanction of leave and
not observing the Railway Medical Attendance Rules.
Because of his unauthorized absence, the respondent herein
was issued a charge sheet dated 16.08.2005.
The respondent was supplied with all the relevant material on
his application and he had also sought for an opportunity of
personal hearing before the authorities.

However, the said case could not go on

further as the respondent was involved in
another case, which culminated in imposing
a major penalty of removal from service
with effect from 10.01.2007.
However, on appeal made by him, the
penalty of removal from service was
reduced to that of reduction of pay in time
scale.
The respondent reported to duty on
26.05.2007 and at that point of time the
present case was reopened.

Sri Debashish Pal while functioning as

Sr.Goods Driver/T.No.95/RJY, committed
serious misconduct, in that; he absented
himself unauthorized from duties for 84
days during the period from February 2005
to May, 2005 without prior sanction of
leave or observing Railway Medical
Attendance Rules.
Thus he has failed to maintain devotion to
duty and thereby contravened Rule 3(1) (ii)
of Railway Services (Conduct) Rules, 1966

The enquiry officer after giving ample opportunity to the

respondent and after giving reasons submitted his report on
17.07.2008, a copy of which was served on the respondent on
25.10.2008.
Thereafter, the disciplinary authority directed the respondent
herein to give his explanation within 15 days from the date of
receipt of the enquiry report.
The respondent herein had submitted his detailed explanation
on 13.11.2008. The disciplinary authority by its order in
proceedings OO.B/E.150/TRSO/II/5/DAR/V/30 dated 01.05.2009
found that the charges are proved and as such imposed a
penalty of removal from service with immediate effect.

 Being aggrieved by the said

order, the respondent
herein filed O.A.No.466 of 2010 before the Tribunal
and the Tribunal below by its order dated
21.03.2012 found that there is evidence in support
of the charge levelled against the charged
employee i.e. the respondent herein.
However, the Tribunal disposed of the O.A. directing
the disciplinary authority to impose upon the
applicant a penalty less severe than removal from
service.
It is further mentioned in the said order that the
order in that regard should be passed within a
period of 45 days from the date of receipt of a copy
of the said order passed by the Tribunal. Challenging
the said order passed by the Tribunal,
the present Writ Petition is filed UNDER ART 226

 On

the

other

hand

the

learned

counsel

for

the

respondent argued that the plea of the respondent

was consistent right from the beginning.
He

further

contended

that

the

respondent

while

working as loco pilot at Vijayawada railway station, on

22.02.2005 submitted a requisition to his controlling
officer i.e. Chief Crew Controller (Traction), Vijayawada
to issue a sick memo as he was not feeling well, so as
to get himself treated at railway hospital, VIjayawada.
The respondent made the said request pursuant to the

procedure evolved by the authorities

. It is further contended that the Chief Crew Controller not

only refused to acknowledge the requisition made by the
respondent but also did not issue a sick memo.
As the respondent was suffering from viral fever and
jaundice, the respondent took treatment in Government
hospital at vijayawada from 22.02.2005 to 17.05.2005 and
was declared fit to resume duty from 17.05.2005 by a
competent doctor at Government Hospital, Vijayawada.

The learned counsel for the respondent, therefore, prayed

for dismissal of the Writ Petition since the Tribunal below has
given sufficient reasons for giving such a direction to the
disciplinary authority.

Krushnakant

B.

Parmar

Vs.

Union

of

India

and

Another2 wherein the apex Court while dealing with

the question whether unauthorized absence from duty
amounts to failure to devotion to duty or behavior
unbecoming of a government servant observed that
the same cannot be decided without deciding the
question whether absence is willful or because of
compelling circumstances.

The Court held that if the absence is the result of

compelling circumstances under which it was not
possible to report or perform duty, such absence

There may be different eventualities due to which an

employee may abstain from duty, including compelling
circumstances beyond his control like illness, accident,
hospitalization, etc, but in such case the employee
cannot be held guilty of failure of devotion to duty or
behavior unbecoming of a government servant.
It is further held that in a departmental proceeding, if
allegation of unauthorized absence from duty is made,
the disciplinary authority is required to prove that the
absence is willful, in the absence of such finding, the
absence will not amount to misconduct.

Accordingly, we find that this is not a case of

no evidence.
There is evidence in support of the charge.
The process of decision making has caused no
prejudice to the charged employee.
However, we are of the view that in the facts
and circumstances of this case, the penalty of
removal from service is disproportionate.
In the reply statement our attention has been
drawn to the past misconduct of the applicant
including unauthorized absence.
However, we note that the applicant was not
put on notice in this regard by the disciplinary
authority before imposition of penalty.

In Mecken Singh N. Marak case (1 supra) the

apex Court held that the jurisdiction of the High
Court to interfere with the quantum of
punishment is limited and cannot be exercised
without cause.
It is further held that the High Court, although
has jurisdiction in appropriate cases, to consider
the question in regard to the quantum of
punishment, but it has limited role to play.
The punishment imposed by the disciplinary
authority or the appellate authority unless
shocking to the conscious of the Court, cannot
be subjected to judicial review.

In the light of the legal position

noticed above, it is clear that unless
the punishment imposed by the
disciplinary authority shocks the
conscience of the Court / Tribunal,
there is no scope for interference.
At any rate, the Tribunal cannot by
itself reduce the quantum of
punishment without assigning any
reasons therefore.

 In the case on hand,- the Tribunal recorded

a clear finding that the period of
unauthorized absence is willful.
It was also observed that even on earlier
occasion
the
respondent
was
on
unauthorized absence.
Having recorded such a finding, the
Tribunal below ought not to have given a
positive direction to the disciplinary
authority to impose a penalty less severe
than removal from service.
Such direction particularly in the absence
of any reasons for reducing the penalty
cannot be sustained.

 In view of the above, we deem it

appropriate to set aside the order
dated 21.03.2012 in O.A.No.466 of
2010 and remand the matter back to
the Tribunal for consideration afresh
in the light of the legal position
noticed
above
and
to
pass
appropriate orders as expeditiously
as possible preferably within a period
of three months from the date of

Mitras case
Kolkata High Court
Union of India and Ors.
Vs
Mrs. Binita Mitra
on 4 June, 2013
W.P.C.T. 137 of 2013

 In
the
present
case,
an
interesting question has been
raised whether an authority can
pass the order of punishment
without hearing the employee
concerned after the matter being
referred by another authority,
who had actually heard the said
employee.

 In this case, the original Disciplinary Authority

namely, the General Manager, Eastern Railway
heard the employee concerned namely, the
respondent herein and the said General Manager
proposed to impose the penalty which was not
within his competence and therefore, referred
the matter to the appropriate Disciplinary
Authority namely, the Railway Board.
The said Railway Board ultimately, imposed the
penalty without even granting any opportunity of
hearing to the affected employee namely, the
respondent herein.

 Enquiry Officer after conducting the

enquiry submitted his report to the
Disciplinary Authority exonerating
the respondent from the charges
mentioned in the charge sheet

 The General Manager being the Disciplinary

Authority, however, did not agree with the findings of
the Enquiry Officer and the said General Manager
recorded his disagreement in the disagreement note.
The said General Manager thereafter, referred the
matter to the Railway Board for passing necessary
order of punishment.
While referring the matter to the Railway Board,
General Manager was of the opinion that the penalty
warranted in the matter cannot be imposed by him
since he had no competence to impose the said
penalty under the Rules.
The matter was referred to the Railway Board by the
Disciplinary Authority namely, the General Manager,
Eastern Railway in terms of Rule 10(3) of the 3
Railway Servants (Discipline & Appeal) Rules, 1968.

It cannot be accepted that someone will hear

the grievances of an employee and another
person will pass the order.
The majority view of the Full Bench of the
Hon'ble Supreme Court in the case of Gullapalli
Nageswara Rao & Ors. vs. Andhra Pradesh
State Road Transport Corporation and another
reported in AIR 1959 SC 308 is quoted in this
regard
as
hereunder:
"31.......................................... If one person
hears and another decides, then personal
hearing becomes an empty formality. We
therefore hold that the said procedure followed
in this case also offends another basic principle
of judicial procedure."

 For the aforementioned reasons, we are of the

opinion that the learned Tribunal has rightly
decided the issues raised before it and we do
not find any infirmity and/or error in the
findings of the said learned Tribunal.
Therefore, we affirm the decision of the
learned Tribunal and dismiss this writ petition,
as we do not find any merit in the same.
*************

Central Administrative Tribunal Mumbai

S.K.Shrivastava
vs
Sr.Divisional Commercial ...
on 18 November, 2010
Dated this Thursday the 18th day of
November, 2010
O.A.170 of 2006

 The applicant at the relevant time is

a Head Booking Clerk at Dadar
Station of the Central Railways in the
pay scale of Rs.5000-8000/-. While
working so he was charge sheeted on
22.8.2003 and pursuant to an
enquiry, he was imposed the
punishment
of
compulsory
retirement w.e.f. 19.3.2004
APPEAL/ REVISION IS REJECTED

1 decoy check was conducted by the vigilance team on 13.05.03

2

Shri N.B. Ingle, Sr. Clerk, CE's office CSTM

and Shri Arun Bhor RPF Constable No. 6453, Mulund were utilized
as decoy passenger and independent witness respectively.
3 Accordingly TCM-I dated 13.05.03 was prepared and the decoy
passenger was handed over Rs. 809/- (Rs. 500x1, Rs. 100x3, Coins
Rs. 5x1, Rs. 1x4) and the decoy passenger was instructed to
purchase three II M/E tickets ex Dadar to Jaunpur and the
independent witness was instructed to witness the transaction
taking place between the decoy passenger and the booking clerk
and also to listen to the conversation taking place between them,
if any.

TICKET FARE 238*3 = 714

Collected money
= 804
excess
= 30
vigilance team prepared TCM-2 dated
13.05.03 further investigation.
The railway cash of the said booking was
checked and the G.C. notes of Rs. 100/and Rs. 500/- mentioned in TCM-1 were
recovered and the confronted statement
of the decoy passenger and independent
witness with the said booking clerk was
recorded by the vigilance team.

Three un cancelled tickets i.e. II/M/E/one adult

DR-MAU Jn. Ticket No. 36906595 printed fare
Rs. 253/-. II M/E/one adult DR-MAU Jn. Ticket
No. 36906596 printed fare Rs. 253/- and II
M/E/one adult DR-ARA ticket No. 36906612
printed fare Rs. 258/- were detected lying on
the counter of the said booking clerk.

During the physical check of the railway

and the private cash in the possession
of the said booking clerk it was detected
by the vigilance team that Rs. 103/(Rupees One Hundred Three) were
detected short in his railway cash and
the same were made good vide money
receipt No. G 521115 dated 13.05.03.
Considering the shortage of Rs. 103/- in
railway cash, the possibility of creating
artificial shortage in Railway cash
cannot be ruled out.

The contentions raised by the

applicant
Penalty of compulsory retirement not
imposed by appointing authority
The trap witnesses were one RPF
Constable and a Junior Clerk.
The Constable was already a witness in
one of the earlier cases as deposed by
him in the enquiry.
These were not independent witness to
witness the trap.

Court observation
On the basis of the discussion above,
it has to be held that the order of
punishment
imposed
upon
the
applicant
was
not
authority
competent to issue the same.
Thus, the penalty being imposed by
an incompetent officer is illegal and
without any jurisdiction.

 Para 704 d
--- The witnesses
selected should be responsible
witnesses who have not appeared as
witnesses in earlier cases of the
Department or the police and are
men of status, considering the status
of the accused. It is safer to take
witnesses who are government
employees
and
of
other
departments.

 We may however add to say that the

Enquiry Officer after the discussion of the
evidence established that the CE has
overcharged PW-4 when CE's cash was
subjected to check, it was found short by
Rs.103/- instead of excess due to
overcharging.
Hence, possibility of overcharging cannot
be ruled out.
We are unable to find out the reasoning
behind the above finding.