Sudhir Yashwant Rane v. Union Of India

Per : Smt. Chameli Majumdar, Member (J) In all these OAs, the applicants have challenged the order dt. 3.3.2007 passed by the Works Manager (C), Central Railway Workshop, Parel, Mumbai imposing upon the applicants penalty of "Dismissal from Railway Service", as well as, the orders dt. 24.8.2009 and 1.3.2011 passed by the Appellate Authority and the Revisional Authority confirming the order of dismissal dt. 3.3.2007.

2. The facts involved in all these cases are similar. The applicant's had put in 12 years of service as Khalasi from 27th October, 1994 to August, 2005. The applicants case is that they were initially working as Casual Labour under Permanent Way Inspector (Maintenance) {for short, PWI (M)}, Bhiwandi Road. After assessment of the applicants' suitability and after screening test for the post of Khalasi in Group "D" category, the applicants were absorbed as Khalasi under Sr. Electrical Engineer, Central Railway, Parel Workshop. On 13.8.2005, a Memorandum of charge sheet were issued to all the OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 applicants with the following charges : "Article-I : He managed to get appointed in the Railway on the basis of the fake/bogus relieving letter purportedly signed and issued by APWI (M) BIRD which has been prepared and issued fraudulently. Article-II : He has produced bogus/fake fitness certificate purportedly issued by CMS/KYN. Article-III : He has never worked in any of the office prior to his posting in the office of SEE Workshop/PR and managed to get fake casual labour card and service register which has been prepared and issued fraudulently. Article IV : He managed to get employment in the Railways on the basis of fake/bogus documents and received his salaries and wages causing financial and pecuniary loss to the Railway administration. Thus by the above said act, he failed to maintain absolute integrity devotion to duty and behaved in a manner of unbecoming of a railway servant thereby contravened Rule No.3.1(i), (ii) and (iii) of Railway Service (Conduct) Rules, 1966".

3. The applicants denied all the charges by submitting representation. A departmental inquiry under Rule 9 of the Railway Servant (Discipline & Appeal) Rules, 1968 was conducted against all the applicants. Ten documents were relied upon documents annexed to the charge sheet. The relied upon documents were produced during the course of inquiry.

4. The applicants have pleaded that a letter dt. 30.6.2004 was written by the Vigilance Officer, OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 who conducted a preliminary inquiry and wrote to SSE (PWAY), Bhiwandi Road calling for certain information about the service details of the applicants. The other relied upon document being a letter dt. 1.7.2004 was written by the SSE (PWAY) Bhiwandi Road forwarding the information to the said Vigilance Officer stating that the applicants never worked in his office. The said Vigilance Officer, thereafter, issued another letter dt. 5.7.2004 addressing the Chief Medical Superintendent regarding the Medical Certificates issued to the applicants by the said Chief Medical Superintendent. On 6.7.2004 the Chief Medical Superintendent, Kalyan informed the vigilance Officer that the Medical Certificate Nos.81201 to 81300 only had been issued during the period from 21.9.1989 to 17.11.1990. The Vigilance Officer obtained the statement from the applicants on 29.6.2005.

5. The statement before the Vigilance Officer was forcibly extracted from the applicants by a GRP Constable by threatening to send them behind the bars. The applicants have alleged that the regular inquiry was abruptly concluded on one date viz. 17.7.2006. The could not nominate any Defence Assistance to present defence case in the inquiry. OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 The Inquiry Officer relied on the documents Exhibit P-1 to P-9, but none of the documents were proved in the inquiry. In his examination-in-chief the prosecution witness, the vigilance officer merely stated that "I have gone through the relied upon documents and confirm that they are the same". 6.

6. The Inquiry Officer relying on those documents found the applicants guilty. The Disciplinary Authority passed the dismissal order relying on the report of the Inquiry Officer. Both the authorities being the Appellate Authority and Revisional Authority simply substituted the finding of the Inquiry Officer and the order of the Disciplinary Authority. None of the authorities applied their independent mind.

7. We have heard Shri Susheel Mahadeshwar, learned counsel for the applicant and Shri R.R.Shetty and Shri V.D.Vadhavkar, learned counsel for the respondents.

8. The learned counsel for the applicant submits that the entire Disciplinary Inquiry suffered from blatant violation of principles of natural justice. The findings of the Inquiry Officer were arrived at by relying upon the relied upon documents which were never proved. The authors of the OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 documents were not called for adducing evidence. The applicants were not given the opportunity to cross- examine them. The finding of the Inquiry Officer is wholly perverse. Relying on the perverse finding of the Inquiry Officer, the Disciplinary Authority imposed upon the applicants the penalty of dismissal from service. The statement before the Vigilance Inspector cannot be relied upon since the same was not a voluntary statement.

9. The learned counsel for the respondents submits that the applicants acted fraudulently while obtaining the service of the Railways by using fake and bogus certificates that they worked in the Railways. The applicants were given full opportunity in the inquiry. The applicants never raised any question before the Inquiry Officer that they were prejudiced for not examining the authors of the documents or for not giving opportunity for cross- examining them. As such, they were not prejudiced. This case is a open and shut case. In the instant case there was not only circumstantial, but also direct evidence against the applicants.

10. The respondents in their reply have contended that during the vigilance investigation appointment of applicants were found to be bogus. OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 Hence, they were placed under suspension w.e.f. 26.4.2005. The chargesheet dt. 13.8.2005 was issued levelling four Articles of Charges. The office of the Electrical Branch initiated a office note dt. 7.12.2005 for nomination of Inquiry Officer at vigilance level since the matter was being investigated by Vigilance Department. As per record, preliminary inquiry was held at CSTM when the applicants were present and did not plead guilty of the said Articles of Charges. The departmental inquiry was conducted and the charges levelled against the applicants were proved. The applicants were given opportunities to defend their case after going through the complete DAR case file in detail. They were asked question whether they would like to say anything more at that stage. The respondents deny that the inquiry was held in gross violation of principles of natural justice. The applicants were given ample opportunity to defend their case. All the relied upon documents were confirmed in the departmental inquiry by the Management Witness Shri S.N.Ganti who was also subjected to cross-examination by the applicants. The most important document relied upon was Exhibit  P-9 where the applicants categorically admitted that in collusion with one OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 Shri Shashi Kumar and by paying him Rs.20,000/-they had obtained the appointment in the Railways. There is no illegality or infirmity in the orders passed by the Disciplinary Authority, Appellate Authority or Revisional Authority.

11. We have gone through all the records. The relied upon documents 1, 2, 3 and 4 as mentioned herein above are the documents relying on which the applicants were absorbed as Khalasi. The Document No.I is the service record of the applicants as Khalasi, Document No.2 is the letter dt. 25.10.1994 of the PWI (M) BIRD certifying that the applicants worked as Casual Labour and relying on the said letter the applicants were absorbed as Khalasis. Third document is the copy of the Medical Certificate dt. 20.8.1990 finding the applicants fit for appointment. The fourth document is the Casual Labour Card. Therefore, there was no question for calling the authors of these relied upon documents 1 to 4 to prove these documents, inasmuch as the applicants themselves produced these documents before the authority for their appointment as Khalasi in the year 1994. The fifth document being a copy of the letter dt. 30.6.2004 has been annexed to the O.A. The said letter is addressed to SSE (PWAY), Bhiwandi OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 Road. It is apparent that since the documents 1 to 4 were suspicious documents, therefore the Vigilance Inspector wrote the letter addressed to SSE (PWAY), Bhiwandi Road to ascertain the truth and/or falsity of the above mentioned document Nos.1, 2 and 4 and to get correct information. The Vigilance Inspector requested to verify the following points : " The zerox copies of the following employees are enclosed for perusal. You are requested to verify the following points.

1. Whether these employees have worked under your control in any capacity mentioned for the period as mentioned in the S.R.s of these employees.

2. Whether their applications were forwarded to CWM/Parel for their absorption in temporary capacity. If so, the details and applications may be make available.

3. The copies of letter received from SSE (W/S)/Parel about their screening.

4. Whether these employees are relieved for their joining at Parel Workshop. If so, copies of the letters may be made available.

5. Whether the signatures and stamp of PWI is genuine or otherwise.

6. The names of the Time Keeper and PWI worked during the period at your Unit.

7. Whether LPC issued to them or otherwise. Names of employees.

1. S/Shri Mayur D.Hajare,

2. Sudhir Yashwant,

3. Rajendra Babban."

12. The applicants have also annexed the letter dt. 30.6.2004. The information was forwarded after verification of records that none of the applicants worked in the Unit so the question of issuing LPC and OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 relieving letters did not arise.

13. In reply to the query regarding the issuance of the Medical Certificate by the Chief Medical Superintendent, the documents being the reply of the C.M.S. clearly showed that the medical certificates were fake certificates and were not issued by the Chief Medical Superintendent.

14. We have gone through the statements made by the applicants before the Chief Vigilance Inspector. From the said statement it would be evident that the applicants clearly admitted that they never worked in Railways previously as Casual Labours in the respective Units. They got the job in collusion with one Shri Shashi Kumar after paying Rs.20,000/-. The Medical Certificates were also obtained by paying Shri Shashi Kumar. They have clearly admitted that Shri Shashi Kumar resorted to illegal means and cheated the applicants to get the job at Parel Workshop. However, they had been working in the Parel Workshop for more than 10 years and they had families, they might be pardoned and permitted to continue in service.

15. We have gone through the examination-inchief, as well as, cross-examination not to reappraise the evidence but to see whether enquiry was OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 fair or not. It appears that the applicants were given full opportunity to defend themselves. They in fact cross examined the Prosecution Witness. As discussed above, there was no question of calling the authors of Document Nos.1 to 4 to verify the truth of the contents inasmuch as the subsequent documents are letters issued by the respective authorities clarifying that the documents as mentioned in relied upon documents 1 to 4 were fake and bogus. Those documents were produced in the inquiry for perusal and inspection of the applicants. They did not raise any objection towards those documents. They never raised the objection that the documents could not be relied upon as those were not proved. They did not ask the authors of the documents to come forward and prove the documents. The general examination of C.E. being applicant of O.A. No. by the Inquiry Officer dt. 17.7.2006 is set out herein below : "General Examination of CE by the EO : Shri Rane, now that you have heard the prosecution witness cited in your cae, please state what have you to say in your defence, whether you wish to be a witness in your own case and whether you wish to cite any defence witnesses in your case? Ans. I do not wish to be a witness in my own case. I also do not wish to cite any defence witness in my case. OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 Q.2. Having heard the prosecution witness, please state whether you plead guilty to the charges framed against you or not? Ans. I plead not guilty to the charges framed against me. Q.3. As has been deposed by prosecution witness, you had never worked in Railways and your appointment in the office of CWM/PR is based on fraudulently prepared documents and thereby you caused financial and pecuniary loss to the Railways. Please offer your clarification? Ans. I will clarify this in my defence brief. Q.4. Whether you would like to submit your oral defence brief or written one, and if so, when? Ans. I shall submit my written defence brief within eight days".

16. We have gone through the written brief dt. 19.7.2006. In the written brief, the applicants have stated that the service record and personal files were verified by the Screening Committee and on that basis payments were made for the last 12 years. Number of vigilance checks, as well as, audit check took place in Parel Workshop and at that time it was not noticed by any of them. Therefore, the Chief Vigilance Inspector, Prosecution Witness Shri S.N.Ganti admitted that the applicants were selected through proper selection process. From the said defence brief we do not find applicants alleged that they were prejudiced for non-examination of the OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 authors of the relied upon document Nos. . On the contrary, they admitted that on the basis of those documents, the applicants were absorbed in Railway service. They requested to consider their case and exonerate them from all the charges in view of their serving for more than 12 years and since they became overaged and had already started their family life.

17. From the entire evidence on record and the written brief of the applicants we do not find that the applicants during enquiry challenged the authenticity of the relied upon documents. In their statement before the Vigilance Inspector they admitted that by paying Rs.20,000/-to one Shri Shashi Kumar they obtained these documents and got their job. Such specific admission by names appears to be voluntary and cannot be extracted statement under coercion. We do not find any merit in the submission of the learned counsel for the applicants that there has been a violation of natural justice for not examining the authors of the relied upon documents or the finding of the Inquiry Officer was perverse.

18. The finding of the Inquiry Officer is based on materials on record which have not been disputed by the applicants during enquiry or before the OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 disciplinary authority. The applicants never denied that the documents produced by them at the time of absorption as Khalasi were not fake or not bogus. They merely stated that there were several checks before by various authorities before such appointment/absorption. The applicants never denied their statement before the Vigilance Inspector either in the inquiry or in their written statement of defence, the only submission of the applicants is that the said statement was extracted by coercion.

19. In various decisions rendered by the Hon'ble Apex Court, the circumstantial flexibility principle has been applied in relation to the requirement of examining witenesses. It has been held that if allegations are properly made and disclosed and no reply is filed or no dispute is raised or if a reply is filed and substantial facts are admitted, it may not be necessary to lead evidence and non-examination of witnesses in such cases will not result in breach of the principles of natural justice (Gujarat State Road Transport Corporation v. Amarbhai Kodarbhai Parma {(1995) 1 LLJ 966}).

20. Where the genuineness of a document produced in a departmental inquiry was not in dispute, it was not necessary to have their authors examined OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 (Director General, Indian Council of Medical Research

v. Anil Ghosh {AIR 1998 SC 2592}).

21. Regarding cross-examination, the Hon'ble Supreme Court in the case of (State of U.P. v. Sheo Shanker Lal Srivastava {(2006) 3 SCC 276}) held that "The real test is whether the absence of cross- examination renders the decision unfair in all circumstances".

22. The Hon'ble Supreme Court in the case of (K.L.Tripathi v. State Bank of India {(1984) 1 SCC 43}), has held that "failure to give an opportunity to cross-examine will not necessarily vitiate the proceedings, e.g. Where there is absence of prejudice as to facts because allegations are not disputed by the delinquent officer or where cross-examination was not asked for".

23. In the instant case, the applicants admitted before the Vigilance Authority that the applicants had never worked in any Unit of Railways as Casual Labours. The documents were obtained by paying a sum of Rs.20,000/-. Such clear admission is on record. Even if such admission is not before the Inquiry Officer, but before any other authority, the Hon'ble Supreme Court has said that detailed inquiry was not called for (V.S.P. v. Goparaju Sri Prabhakara Hari OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 Babu {(2008) 5 scc 569}).

24. We do not find any force in the arguments of the learned counsel for the applicant that the findings were perverse. A finding will be perverse if it is based on `no evidence' whatsoever or if it is based on mere suspicion. It is settled proposition of law that the evidential material must be such that it amounts to the guilt of the employee in respect of the charge against him with some degree of definiteness. The conclusion must be based on existent and relevant material. The Hon'ble Supreme Court held in the case of (Narinder Mohan Arya v. United India Insurance Co. Ltd. {AIR 2006 SC 1748}) that one should bear in mind the distinction between some evidence or no evidence but the question which was necessarily required to be posed should have been as to whether some evidence adduced would lead to the conclusion as regards the guilt of the delinquent officer or not.

25. The Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. Preponderance of probabilities and some material on record are sufficient to arrive at a conclusion regarding the OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 guilt of the delinquent. Technical rules of evidence are not applicable (Lalit Popli v. Canara Bank {AIR 2003 SC 1795}).

26. A three Judge Bench of the Hon'ble Supreme Court held in the case of (High Court of Judicature at Bombay v. Shashikant S.Patil {AIR 2000 SC 22}) that if there is some legal evidence on which findings can be based then adequacy or even reliability of that evidence is not a matter for canvassing judicial review. While exercising powers of judicial review the Courts cannot embark upon an appreciation of evidence and arrive at a conclusion of its own on the sufficiency of the evidence or on the correctness of the conclusion which is based on such evidence. Sufficiency of evidence in a departmental enquiry postulates existence of some evidence which links the charged officer with the misconduct alleged and the mere fact that the enquiry officer had noted in his report that "in view of oral, documentary and circumstantial evidence as adduced in the enquiry" would not in principle satisfy the rule of lacking of sufficiency of evidence (Sher Bahadur v. Union of India {AIR 2002 SC 3030}).

27. It is well settled that application of OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 technical rules of evidence and doctrine of proof beyond doubt is not necessary for ascertaining misconduct, pre-ponderance of probabilities and material on record is sufficient (Lalit Popli (supra)(Lalit Popli v. Canara Bank {AIR 2003 SC 1795}).

28. The learned counsel for the applicant has heavily relied on (Roop Singh Negi v. Punjab National Bank and Ors. -{(2009) 2 SCC 570}). Relying on Roop Singh Negi's case, learned counsel submits that the confession made before the Vigilance Officer was extracted on coercion, therefore the said confusion was not proved before the enquiry. As such, the same does not have any evidential value. In Roop Singh Negi's case the appellant's charge was established on the basis of an F.I.R. and alleged confession before the Police. The Hon'ble Supreme Court came to a finding that the applicant was forced to sign on the confession as he was tortured in Police Station. The applicant being an employee of the Bank the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct or indirect evidence. Subsequently, the appellant before the Hon'ble Supreme Court was acquitted by the Criminal Court. OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 The Hon'ble Supreme Court held that if the admission made by the charged employee before Police authorities was taken into consideration, therefore his subsequent acquittal by the Criminal Court on the self same evidence could not be ignored. In the instant case, no such fact is available. In the preliminary investigation by the Vigilance Officer the applicant in his statement made the confession admitting the charge that the certificates and documents were procured by paying money to one Shri Sashi Kumar. The said statement is a relied upon document in the enquiry and a part of this O.A. It appears that the said confession was very specific by naming a person who had taken money and cheated the applicants. The admission appears to be voluntary and the same does not appear to have been extracted statement under coercion.

29. The learned counsel for applicant next has relied on the Judgment of (Mathura Prasad v. Union of India {(2007) 1 SCC 437}). In the said judgment, the Disciplinary Authority's order was set aside because the same was vague. The Disciplinary Authority passed an order to the following effect :" I have decided to impose upon you the penalty of compulsory retirement/removal/ dismissal from service. You are, therefore, compulsorily retired/removed/ dismised from OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 service with..." In our considered view, Mathura Prasad's judgment does not apply to the facts and circumstances of the present case.

30. The learned counsel for the applicant next relied on the judgment of the Hon'ble High Court of Delhi in the case of Satish Chand Gupta & Ors., Hari Om & Ors., Amit Kumar v. M.C.D & Ors. {Writ Petition (C) Nos.8379-99/2006, 8268-85/2006 and 9576/2006 decided on 9.7.2007}. This judgment is clearly distinguishable, inasmuch as, the case which was considered by the High Court of Delhi, the writ petitioners were not given opportunity of hearing. The same was a case of `no enquiry' and no `notice'. The Hon'ble High Court at Delhi set aside the termination order by holding that the respondents will not be precluded from holding an enquiry and consider material afresh before passing appropriate orders in respect of each of the petitioners. In the instant case, we have already said that regular inquiry was held and the applicants got sufficient opportunity to defend their cases.

31. Regarding the allegations of violation of natural justice of the applicants for not examining the authors of the documents, we are inclined to rely OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 on a judgment of the Hon'ble Supreme Court in the case of (Director General, Indian Council of Medical Research and Ors. v. Dr.Anil Kumar Ghosh and another  {AIR 1998 SC 2592}). The Hon'ble Supreme Court held that plea of non-examination of officials issuing certificates is unjustified since the fact of issuance of certificate was not disputed. In this regard rellavant paras 8 and 9 are set out herein below : "8. The Disciplinary Authority accepted the report as he found that the material on record was sufficient to sustain the findings. The main grievance put forward by the first respondent before the High Court in the writ petition with regard to the alleged violation of the principles of natural justice was that the witnesses whom he wanted to be examined by the Enquiry officer were not examined. Secondly, it was alleged that the documents were marked as exhibits only on July 21, 1977 after the conclusion o the enquiry. Thirdly, it was urged that the Enquiry officer was biased against the first respondent. The fourth objection was that the Municipal Authorities who had issued certified copies of the municipal assessment register had not been examined and consequently those documents were not admissible in evidence.

9. Unfortunately, the above objections found favour with the Single judge as well as the Division bench of the High Court. In our opinion, none of the objections has any substance".

32. The Hon'ble High Court at Jammu and Kashmir held in the case of (Zonal Manager, L.I.C. of India and Ors. v. Mohan Lal Saraf  {1978(2) SLJ 868}) that OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 Evidence Act is not applicable to the departmental proceedings before domestic tribunals and that strict and sophisticated rules of evidence do not apply to such enquiries. Material which may not be strictly admissible in evidence in a court of law can nonetheless be admitted into evidence in domestic enquiries provided, the enquiry officer is satisfied about the credibility of the evidence to be so admitted. The rule that unless the maker of a document is available for cross-examination, the document should not be admitted into evidence, is a rule from the Evidence Act and has no application to domestic enquiries. So far as a domestic enquiry is concerned, the only requirement of law is that it should be consistent with principle of natural justice. It would be stretching the principles of natural justice to a breaking limit if it were to be held that evidence, though credible, is inadmissible because the maker of the document sought to be admitted in evidence has not appeared at the enquiry. All that the law requires is that it should be put to the party against whom it is sought to be used to give a fair opportunity to explain it. If the opportunity to explain the evidence has been given, the domestic Tribunals can rely upon such evidence. OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 The incredibility of a document would affect its evidentiary value and not its admissibility. It is one thing to say that the document is not admissible, but quite a different thing to say that being incredible it has no evidentiary value.

33. The Hon'ble Gujarat High Court in the case of (Gujarat State Road Transport v. Amarbhai Kodarbhai Parma and Ors. {(1995) ILLJ 966 Guj}, held as follows :

13. Thus, the requirement of principles of natural justice will depend on the facts of each case and the procedure followed in each case. If all allegations are properly made and disclosed and no reply is filed or no dispute is raised, it may not be necessary to hold any enquiry and/or if reply is filed and substantial facts are admitted, it may not be necessary to lead evidence by the employer and offer witnesses to prove the case, which is already admitted. In such cases, non-examining witnesses by the employer does not result into breach of the principles of natural justice. It is not necessary in all cases that regular and protracted trial should be held. For example, in the aforesaid case of supersession of an elected public body, the Supreme Court held that if the person proceeded against is informed that he is required to meet the allegations which might lead to a certain action being taken against him, that would meet the requirements of natural justice. Principles of natural justice cannot be said to be any fixed and straight-jacket formula, which has to be applied in all cases, irrespective of the nature of the enquiry, the status of the person to be proceeded against, nature of the ultimate order to be passed and the facts which are already admitted. Depending on several such circumstances, the OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 disciplinary authority can come to its own conclusion and that may be consistent with the principles of natural justice".

34. The Hon'ble Supreme Court in the case of (State of Haryana and Anr. v. Rattan Singh  {(1977)

2 SCC 491}, held that if there is some evidence and on the basis of that evidence the Disciplinary Authority came to a finding, the Tribunal will not interfere with such conclusion unless the order is vitiated by perversity and violation of natural justice. Paragraph 4 is set out herein below :

4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding,even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground".

35. The learned counsel for the respondents has relied on Judgment passed by the Hon'ble Supreme Court in (Orissa Mining Corporation & Anr. v. Ananda Chandra Prusty {1997 (1) AISLJ 133}) on the question of burden of proof, wherein it has been held as follows : "On a consideration of the totality of the facts and circumstances of the case including the nature of charges we are not inclined to interfere in the matter. The position with respect to burden of proof is as clarified by us hereinabove viz., that there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanatian. For example take the first charge in this case. OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 The charge was that he made certain false notings on account of which loans were disbursed to certain ineligible persons. The respondent's case was that those notings were based upon certain documents produced and certain records maintained by other employees in the office. In such a situation it is for the respondent to establish his case. The department is not expected to examine those other employees in the office to show that their acts or records could not have formed the basis of wrong notings made by the respondent".

36. The next judgment relied upon by the learned counsel for the respondents is (Jaiprakash Yadav and Ors. v. Union of India and Ors. -{1999 (1) AISLJ 234}, wherein it has been held that on finding that appointment was obtained by fraudulent means, the termination of such appointment can neither be deemed to be arbitrary nor by way of penalty. Paragraphs 7 and 8 of the said judgment are set out herein below : "7. The Tribunal earlier observed in para 13 that "Quashing such orders of termination, would revive appointments which should never have been made." In Para 17 it is observed that if the basic requirements are found to be incorrect, the orders of termination cannot be said to be invalid. On the point relating to departmental proceedings, the Tribunal observed in Para 29 that : "Termination of such an appointment can neither be deemed to be arbitrary nor to be by way of penalty. Offer made on assumption of facts which are not true, is not a valid offer of appointment. There can be no valid acceptance of such a offer, especially by a person who OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 accepts the offer knowing that material statements in the offer are not true. Consequently, there was no valid contract. Any agreement which never fructified into a valid contract cannot give rise to a status which the Tribunal is obliged to protect. Assuming that such termination order should have been preceded by an inquiry in accordance with the CCS (CCA) Rules (which, in our opinion, is not required) and such an inquiry not having been held, the orders of termination are bad, even then if the Tribunal finds that quashing these orders would result in reviving appointments which should never have been made, would not issue any writ, direction or order. Granting any relief to the applicants would amount to allowing them to abuse the process of court. The Tribunal, therefore, declined to grant any relief to the applicants. For the aforesaid reasons, the impugned orders do not call for interference".

8. Considering the ratio of the judgment in relation to the present OA., we are of the view that the appointment of the applicant was obtained by fraud. Apart from the medical certificate, there are no prerecruitment documents which the applicants were able to produce before the respondents. The applicant did not have any material to show that there was any recruitment process through which the applicants had come. Therefore, the appointment order never existed and therefore any question of acting on that appointment orders and giving them protection of Railway Servants (Discipline and Appeal) Rules does not arise. The basic assumption relating to status of Railway servant is lacking and any quashing of termination order would amount to revival of illegal appointments".

37. The next Judgment relied on by the learned counsel for the respondents is (R.Vishwanatha Pillai OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012

v. State of Kerala & Ors. {2004 (2) AISLJ 1}). The Hon'ble Supreme Court rejected the prayer of the applicant that the dismissal should be converted to Compulsory Retirement since the appellant rendered 27 years of service holding that right to retiral dues accrues from a valid appointment and not where the appointment itself was void ab-initio. The Hon'ble Supreme Court further held that a person who seeks equity must come with clean hands. He who comes to the Court with false claims cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. In R.Vishwanatha Pillai's case (supra), the appellant before the Hon'ble Supreme Court got the appointment on the basis of a false caste certificate.

38. We are also inclined to refer to the Judgment of the Hon'ble Supreme Court in the case of (Chairman & Managing Director, V.S.P. and Ors. v. Goparaju Sri Prabhakara Hari Babu  {(2008) 2 SCC (L&S) 311}. The Hon'ble Supreme Court held that in terms of Section 58 of the Indian Evidence Act, charges having been admitted were not required to be proved. The High Court's power to interfere with disciplinary matters is circumscribed by well known OA Nos.330/2012, 866/2011, 331/2012, 332/2012, 333/2012, 334/2012, 335/2012 factors. It cannot set aside a well reasoned order only on sympathy or sentiments. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. The Hon'ble Supreme Court in the said judgment referred to the judgmentof Hon'ble Supreme Court in (Sangramsingh P.Gaekwad & Ors. v. Shantadevi P.Gaekwad (Dead) through LRs & Ors. -{2005 (11) SCC 314}). The Hon'ble Supreme Court held that things admitted need not be proved.

39. Accordingly, we hold that there is no infirmity or illegality in the report of the Inquiry Officer and the orders passed by the Disciplinary Authority, Inquiry Authority and Revisional Authority. Having regard to the facts and law, the O.A. is dimissed. No costs. (MRUTYUNJAY SARANGI) (SMT.CHAMELI MAJUMDAR) MEMBER (A) MEMBER (J)