High Court Kerala High Court

Union Of India Represented By The vs K.J.Gandhi on 2 February, 2009

Kerala High Court
Union Of India Represented By The vs K.J.Gandhi on 2 February, 2009
       

  

  

 
 
  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.

                      -----------------------------------------

                       W.P.(C) NO. 15918 OF 2006-S

                      -----------------------------------------

                          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/