* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: April 09, 2013 Judgment pronounced on: April 22, 2013 + W.P.(C) 4847/2012 UNION OF INDIA & ORS. ..... Petitioners Represented by: Mr.R.L.Dhawan, Advocate.

versus JAGDISH PRASAD ..... Respondent Represented by: Ms.Meenu Mainee, Advocate CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MS.JUSTICE PRATIBHA RANI PRADEEP NANDRAJOG , J.

1. Joining service under the Indian Railways as a Goods Clerk on June 30, 1980, the respondent was promoted to the post of Goods Supervisor on July 02, 2004, a post in the pay scale ‘5500-9000 by the Divisional Railway Manager, but it appears that the formal communication was sent under the signature of Senior Divisional Commercial Manager. It is trite that it is the order passed on the file which determines the authorship thereof and not the ministerial function of sending a communication pertaining to the same.

2. On July 28, 2008 a Memorandum of Charges was served on the respondent alleging misconduct. The Articles of charge read as under:-

“Article of Charge-1 He issued RR no.352042 dated 09.2.2005 from MNQ to NJP in favour of M/s Krishna Traders, Harchand Malik Street, Kolkata, in which he manipulated in record copy, distance was shown 1300 km whereas in the RR the distance was shown 1301 km, which shows his malafide intention.

Article of Charge-2 He has collected the freight of RR No. D 352042 dated 09.2.2005, ‘15,65,159/- in the receipt foil but in the RR he has mentioned the forged freight amounting ‘15,93,931/- i.e he has mentioned an excess amount of ‘28,772/- in the RR to take the refund with the connivance of the party and undue benefit.

Sh. Jagdish Prasad, GS/MNQ by his above acts of omission and commission failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of railway servant by contravening rule 3.1(i), (ii) & (iii) of the Railway Services (Conduct)

Rules,1966.”

3. Since the respondent did not deny the fact of recording a distance other than for which the goods were transported and as a result thereof conceded that the same would have entitled the holder of the Railway Receipt to obtain a refund in sum of ‘28,772/- which would be illegal, we need not note the evidence led at the domestic enquiry except the defence taken that in the area i.e. Mainpuri the criminals had virtually taken over; in the past 4-5 railway staff had been killed and thus he did the offending act out of fear and intimidation. It be noted that the goods were booked at Mainpuri Railway Junction to be delivered at New Jalpaiguri.

4. With reference to the defence, the respondent led no evidence that in the past 4-5 railway employees had been killed by the mafia. But to be fair to him, we must note that he relied upon a communication sent by him through courier on February 11, 2005 giving information that an irregularity in the form of distance mentioned in the Railway Receipt was recorded incorrectly. Therefrom, the respondent sought to establish his bona fides.

5. Ignoring the communication sent by him on February 11, 2005, the Inquiry Officer held respondent guilty. Concurring with the report of the Inquiry Office and not accepting respondent’s justification, the disciplinary authority levied the penalty of reduction of pay at the bottom of the scale for a period of three years with cumulative effect. The respondent filed an appeal to the Senior Divisional Commercial Manager. On October 21, 2009 the said Senior Divisional Commercial Manager issued a show cause proposing to enhance the penalty to one of compulsory retirement to which respondent submitted a reply; and considering the same the Senior Divisional Commercial Manager levied the penalty of compulsory retirement as per reasoning contained in the order dated March 12, 2010 which reads as under :-

“Appellant‟s contention seems to be afterthought to just cover up his misdeed. The appellant in his statement given to CCM (Refund) N.C. Rly/ALD dated 25.10.2007 and state