IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15918 of 2006(S)
1. UNION OF INDIA REPRESENTED BY THE
... Petitioner
2. THE CHIEF COMMERCIAL MANAGER,
3. THE ADDITIONAL DIVISIONAL RAILWAY
4. THE SR.DIVISIONAL COMMERCIAL MANAGER,
Vs
1. K.J.GANDHI, S/O.G.KOIL PILLAI,
... Respondent
For Petitioner :SRI.M.C.CHERIAN,SR.SC.,RAILWAYS
For Respondent :SRI.T.C.GOVINDA SWAMY
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :02/02/2009
O R D E R
K.BALAKRISHNAN NAIR &
P.N.RAVINDRAN, JJ.
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W.P.(C) NO. 15918 OF 2006-S
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Dated 2nd February, 2009.
JUDGMENT
Balakrishnan Nair, J.
The respondents in O.A.No.155/2003 before the Central
Administrative Tribunal, Ernakulam Bench are the writ petitioners and the
applicant therein is the respondent.
2. The brief facts of the case are the following: The respondent was
charge-sheeted for having received extra amount for booking a
consignment. The respondent was trapped on 6.4.2000. An R.P.F.
Constable pretending himself to be a passenger, booked a parcel. Though
the booking charge was only Rs.520/-, the respondent allegedly received
Rs.580/. The notes paid were previously marked under a mahazar. The
respondent was served with Annexure-A4 charge memo dated 23.6.2000.
Since he denied the charges, an enquiry officer was appointed, who
submitted Annexure-A7 report dated 31.5.2001. After following the due
procedure, by Annexure-A1 dated 3.9.2001, a penalty of reduction of pay
WPC 15918/2006 2
by one stage for a period of two years with recurring effect was imposed on
him. He filed Annexure-A9 appeal. The appeal was dismissed by
Annexure-A2 order. He filed Annexure-A10 revision, which was dismissed
by Annexure-A3 order. Challenging Annexures-A1 to A3, the O.A was
filed. The C.A.T., by Ext.P5 order dated 16.2.2006, allowed the O.A and
quashed Annexures-A1 to A3 orders. Hence this Writ Petition.
3. Before the C.A.T., the main point canvassed was that the trap was
laid and executed not as provided under the Manual governing vigilance
proceedings. According to the relevant provisions in the Manual, as far as
possible, two gazetted officers should be asked to be present as witnesses.
Only in exceptional cases, the services of non-gazetted officers could be
utilized. Admittedly, in this case, gazetted officers were not present as
witnesses. The Tribunal found that it is a serious irregularity, which goes to
the root of the matter. Relying on a decision of the C.A.T., Hyderabad
Bench, which was affirmed by the High Court of Andhra Pradesh, the
Tribunal allowed the O.A and quashed the impugned orders.
4. Now, it is common case that the decision of the Hyderabad Bench,
relied on by the Ernakulam Bench of the C.A.T in the present impugned
order has been reversed by the Apex Court by the decision in Chief
WPC 15918/2006 3
Commercial Manager & Ors. v. G.Ratnam [(2007)8 SCC 212].
5. Any one, who has anything to do with the appreciation of
evidence must know that there cannot be any hard and fast rule concerning
reliability of witnesses. Non-gazetted officers, who are witnesses, may be,
in some cases, more reliable than gazetted officers. That will depend upon
the facts of each case. So, there is no reason or justification to reject the
evidence of non-gazetted officers at the threshold. Further, the guidelines in
the Manual are generally meant to guide and not to govern. Unless
prejudice is shown, violation of the provisions in the Manual does not
ipso facto nullify the entire proceedings. In this case, we notice that the
Tribunal did not venture to consider the case on merits. But, it simply
followed the decision of the Hyderabad Bench. We also notice that the
respondent has got other grounds also to impugn the orders, Annexures A1
to A3. In view of the above position, the impugned order of the C.A.T is set
aside and O.A.No.155/2003 is remitted for fresh disposal in accordance
with law after affording an opportunity of being heard to both sides. The
Tribunal shall endeavour to dispose of the matter as expeditiously as
possible. The Tribunal shall examine the records of the enquiry and find
out whether any prejudice has been caused by the violation of the provisions
in the Manual and whether the evidence on record could be acted upon,
WPC 15918/2006 4
even if the witnesses are non-gazetted officers. Needless to say, the
Tribunal shall also consider the other contentions raised on behalf of the
respondent/applicant.
The Writ Petition is allowed as above.
K.BALAKRISHNAN NAIR, JUDGE.
P.N.RAVINDRAN, JUDGE.
nm/