Holding

The CAT was justified in assessing the sufficiency of the evidence and the violation of the Railway Vigilance Manual and Rule 9(21) vitiated the departmental proceeding, so the High Court's order was set aside and the CAT's order restored.

Summary

Moni Shankar, a booking supervisor with Central Railways, was caught in a decoy check and was found to have overcharged a passenger by Rs.5. A departmental proceeding found him guilty and imposed a penalty of reduction to the lowest pay scale; his appeal and revision were dismissed. He filed an application before the Central Administrative Tribunal (CAT), which set aside the penalty, holding that the trap was laid in violation of paragraphs 704 and 705 of the Railway Vigilance Manual and that Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules was not complied with. The State appealed to the High Court, which restored the penalty, reasoning that the CAT had impermissibly re‑appreciated evidence. The Supreme Court allowed the appeal, holding that the CAT was entitled to examine whether the evidence was sufficient and that non‑compliance with the manual and mandatory rule vitiated the departmental proceeding; consequently, the High Court order was set aside and the CAT order restored.

Issues considered

The extent of the Central Administrative Tribunal's jurisdiction to re‑appreciate evidence in departmental proceedings.
Whether non‑compliance with paragraphs 704 and 705 of the Railway Vigilance Manual and Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules invalidates a departmental inquiry and its penalty.
Whether the burden of proof in disciplinary proceedings lies on the department and whether natural‑justice principles apply.
Whether the High Court erred in taking judicial notice of facts not within Section 57 of the Evidence Act.

Legislation cited

Indian Evidence Act, 1872s. 57
Railway Servants (Discipline and Appeal) Ruless. Rule 9(21)

Subjects

Service lawDepartmental proceedingsRailway Vigilance ManualRule 9(21)ProportionalityNatural justiceJudicial reviewCentral Administrative TribunalEvidence re‑appreciation

Judgment

[2008] 3 S.C.R. 871

'i.

.. MONI SHANKAR A
II.
UNION OF INDIA AND ANOTHER
(Civil Appeal No. 1729 of 2008)
MARCH 4, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
~

J.-
Service Law - Trap laid - Initiation of departmental
proceedings - Delinquent employee found guilty - Dismissal
of departmental appeal and review - Application before
Central Administrative Tribunal - Allowed - Dismissal of writ
c
petition by High Court holding that re-appreciation of evidence
was not permissible by High Court - On appeal, held: Order
of the Tribunal is justified - There was non-compliance of terms
of Railway Manual in conducting the trap and the delinquent
D
employee was not examined in terms of the relevant Discipline
~
.,
Rules - Violation of terms of the manual, being executive
instructions, though do not create any legal right, but they·
cannot be totally ignored - though re-appreciation of the
evidence is not within domain of the Tribunal, but it can
consider the question whether evidence led was sufficient to E
arrive at conclusion of guilt - On certain aspects even judicial
review of facts is permissible - High Court wrongly drew
presumption against the employee without there being any
... factual foundation therfor - Facts not falling within perview of
s. 57 of Evidence Act, cannot be taken judicial notice of - F
• Railway Vigilance Manual - Paragraph 704 and 705 - Railway
Servants (Discipline and Appeal) Rules - r. 9 (21) - Judicial
Review - Evidence Act, 1872 - s. 57.
Appellant was working as a Booking Supervisor with
G
Central Railways. In the course of a decoy check, he was
found to have overcharged a sum of Rs. 51- on the ticket
.~J\
issued to the decoy passenger. Departmental proceeding
was initiated against him, wherein he was found guilty. A
871 H
872 SUPREME COURT REPORTS [2008] 3 S.C.R.

I'
A penalty of reduction of his pay to the lowest scale of pay ...
was given. Departmental appeal as well as revision was
dismissed. Appellant filed application before central
Administrative Tribunal. Tribunal allowed the same holding
that in the facts of the case, charges could not be said to
B have been proved; that the trap was laid by not complying
with paragraphs 704 and 705 of Railway Vigilance Manual;
and that the mandatory provision of Rule 9 (21) of Railway <
....
Servants (Discipline and Appeal) Rules were also not
complied with. Respondent-State filed writ petition, which
c was allowed by High Court, holding that the Tribunal in
its original order having entered into the realm of evidence
and re-appreciated the same, exceeded its jurisdiction.
Hence the present appeal.
Allowing the appeal, the Court
D
HELD: 1.1 The trap was not conduced in terms of ..
the Railway Vigilance Manual; the Enquiry Officer acted "
as a Prosecutor and not as an independent quasi judicial
authority; he did not comply with Rule 9(21) of the Railway
Servants (Discipline and Appeal) Rules, evidently,
E therefore, it was not a case where the order of the Tribunal
warranted interference at the hands of the High Court.
[Para 27] [887-C, D]
1.2 Although paragraphs 704 and 705 of the Manual J.
F being executive instructions do not create any legal right '-
but total violation of the guidelines together with other
...
factors could be taken into consideration for the purpose
of arriving at a conclusion as to whether the department
has been able to prove the charges against the delinquent
official. The departmental proceeding is a quasi judicial
G
one. Although the provisions of the Evidence Act are not
applicable in the said proceeding, principles of natural
justice are required to be complied with. The Court ,,, ,
exercising power of judicial review are entitled to consider
as to whether while inferring commission of misconduct
H
MONI SHANKAR v. UNION OF INDIAAND ANOTHER 873

on the part of a delinquent officer relevant piece of A
evidence has been taken into consideration and irrelevant
facts have been excluded therefrom. Inference on facts
must be based on evidence which meet the requirements
of legal principles. The Tribunalwas, thus, entitled to arrive
at its own conclusion on the premise that the evidence B
adduced by the department, even if it is taken on its face
•• value to be correct in its entirety, meet the requirements
of burden of proof, namely - preponderance of probability.
If on such evidences, the test of the doctrine of
proportionality has not been satisfied, the Tribunal was c
within its domain to interfere. The doctrine of
unreasonableness is giving way to the doctrine of
proportionality. [Paras 15] (883-E-H; 884-A, B]
State of UP v. Sheo Shanker Lal Srivastava 2006 (3)
CC 276; Coimbatore District Central Cooperative Bank vs. D
• r Coimbatore District' Central Cooperative Bank Employees
Association and Anr. 2007 (4) SCC 669 2007; E v Secretary
of State for the Home Department 2004 (2) L.R. 1351 - relied
on.
The Chief Commercial Manager, South Central Railway, E·
Secunderabad and Ors. vs. G Ratnam and Ors. 2007 (8) SCC
212 - referred to.
1.3 The Tribunal was entitled to consider the question
as to whether the evidence led by the department was F
sufficient to arrive at a conclusion of guilt or otherwise of
the delinquent officer. While re-appreciation of evidence
is not within the domain of the Tribunal, an absurd
situation emanating from the statement of a witness can
certainly be taken note of. The manner in which the trap G
was laid, witnessed by the Head Constable and the legality
of enquiry proceeding were part of decision making
-~
process and, thus, the Tribunal was entitled to consider
the same. [Para 21) [885-E, F, G]
1.4 It may be that the instructions contained in H
874 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Paragraphs 704 and 705 of the Railway Manual were for ....
compliance of the Vigilance Department, but substantial
compliance thereof was necessary, even if the same were
not imperative in character. A departmental instruction
cannot totally be ignored. The Tribunal was entitled to take
B the same into consideration alongwith other materials
brought on records for the purpose of arriving at a
decision as to whether normal rules of natural justice had
been complied with or not. [Para 21] [885-G, H; 886-A] •
1.5 The High Court even without any material on
C record held that some excess amount was found from t
the appellant which itself was sufficient to raise a
presumption that it had been recovered from the decoy
passenger. No such presumption could be raised. In any
event there was no material brought on records by the
D department for drawing the said inference. The High Court
itself was exercising the power of judicial review. It could " ~
not have drawn any presumption without there being any
factual foundation therefor. It could not have taken judicial
notice of a fact which did not come within the purview of
E Section 57 of the Evidence Act. [Para 21] [886-B, C, D]
1.6 The High Court has only noticed paragraph 704
of the Manual and not paragraph 705 thereof. Paragraph
705 was very relevant and in any event both the provisions
were required to be read together. The High Court,
F . committed a serious error in not taking into consideration
paragraph 705 of the Manual. If the safeguards are
provided to avoid false implication of a railway employee,
the procedures laid down therein could not have been
given a complete go bye. [Para 23] [886-E, F]
G
1.7 High Court posed unto itself a wrong question.
The onus was not upon the appellant to prove any bias
against the Reserve Police Force (who conducted the f- ,
trap), but it was for the department to establish the charges
H levelled against the appellant. [Para 24] [886-G]
MONI SHANKAR v. UNION OF INDIAAND ANOTHER 875
[S.B. SINHA, J.]
i
4
1.8 The High Court also committed a serious error in A
opining that sub-rule. (21) of Rule 9 of Railway Servants
1 (Discipline and Appeal) Rules was not imperative. The
purpose for which the sub-rule has been framed is clear
and unambiguous. The railway servant must get an
opportunity to explain the circumstances appearing B
against him. In this case he has been denied the said
'."
.. opportunity. The cumulative effect of the illegalities/
irregularities were required to be taken into consideration
to judge as to whether the departmental proceeding stood
vitiated or not. [Paras 25 and 26] [887-A, B] c
CIVILAPPELLATE JURISDICTION : Civil Appeal No. 1729
of 2008.
From the final Judgment and Order dated 8.3.2006 of the
·High Court of Judicature at Bombay in W.P. No. 3748/2003.
D
.., • i A.K. Sanghi for the Appellant.
Dr. R.G. Padia, D.S. Mahra, Sunita Rani Singh, Sunil Roy
and Lalit Srivastava for the Respondents.
The Judgment of the Court was delivered by E
S.B. SINHA, J. 1. Leave granted.
/
2..This appeal is directed against the judgment and order
dated 8th March, 2006 passed by a Division Bench of the High
"' Court of Bombay in Writ Petition No. 3748 of 2003 whereby it F
allowed the writ petition filed by the respondents herein from
.. the judgment and order dated 5th January, 2003 passed by the
Central Administrative Tribunal, Mumbai Bench, in O.A. No. 283
of 2002.
3. Appellant herein was working as Booking Supervisor G
with the Central Railways. He was transferred to Chatrapati
. Shivaji Terminus in December, 1997. On or about 17th April,
~ 1998 a decoy check was laid in the course whereof he was
found to have overcharged a sum of Rs.5/- on the ticket issued
to a. decoy passenger. A departmental proceeding was initiated H
. 876 SUPREME COURT REPORTS [2008) 3 S.C.R.

A wherein the following imputations of charges were drawn :-
..
"Article - I: He overcharged the decoy passenger by Rs.
5/- (Rs. Five) on issue of one M/E Ticket No. 8148090 Ex.
CSTM to Bhubaneshwar.
B Article - II: He was found having Rs. 199/- (Rs. One hundred
ninety nine) short in his railway cash.

Article - Ill: He declared his private cash in computer that
the monetary ceiling for the satisfactory staff, without being
certified by the supervisor in the private cash register."
c
4. In the said departmental proceeding, appellant inter alia
raised a contention as regard to non compliance of paragraphs
704 and 705 of the Railway Vigilance Manual (the Manual) in
the manner in which the purported trap was laid. It was
furthermore contended that provisions of Rule 9(21) of the
0
Railway Servant Discipline and Appeal Rules have not been
complied with. ... '
5. Appellant was found guilty of the said charges in the
said departmental proceeding. A penalty of reduction to the
E lowest scale of pay fixing his pay at the lowest level at Rs.3,200/
- for a period of five years was imposed. An appeal and
consequently a revision preferred by him were dismissed by
the Appellate Authority as also the Revision al Authority by orders
dated 31 51 May, 2000 and 7th November, 2000 respectively.

F 6. He filed an O.A. before the Central Administrative
Tribunal, Mumbai Bench. It was registered as O.A. No. 283 of
2002.
By reason of a judgment and order dated 6th January,
G 2003, the same was allowed opining that in terms of paragraphs
704 and 705 of the Manual, the trap ought to have been laid in
presence of the independent witness or Gazetted Officer and
as only one Head Constable of the RPF and not two Gazetted
Officers had been assigned to witness the trap and furthermore
H the Head Constable was at a distance of more than 30 meters,
MONI SHANKAR v. UNION OF INDIAANDANOTHER 877
[S.B. SINHA, J.)
.. he could not have heard the conversations by and between the A
• appellant and the decoy passenger and thus the charges could
not be said to have been proved. It was moreover found that the
decoy passenger neither counted the money at the window nor
protested that the balance amount was less by Rs.5/-, and in
fact admitted to have left the window and came back half an B
hour later with the Vigilance Inspector which pointed out
~
loopholes in the trap. It was pointed out that the appellant was
not examined by the Enquiry Officer in terms of the provisions
" of Rule 9(21) of the Railway Servants (Discipline and Appeal)
Rules (the Rules)', which is mandatory in nature. It was also held c
that there was no evidence as regards the charge of returning
Rs.5/- less to the complainant.
7. Aggrieved by and dissatisfied with the said judgment of
the Tribunal, the respondents filed a writ petition before the High
Court. By reason of the impugned judgment dated 81h March, D
, {
2006 the said writ pe~ition was allowed by the High Court opining
that the Central Administrative Tribunal in its original order having
entered into the realm of evidence and re-appreciated the same,
exceeded its jurisdiction.
8. Mr. AK. Sanghi, learned counsel appearing on behalf E
of the appellant would submit that:-
1. The High Court committed a serious error in so far
as it failed to take into consideration that the Railways
..._
j Authorities were required to follow paragraphs 704 F
and 705 of the Manual scrupulously.
..
2. Appellant having not examined any defence witness,
~e should have been examined in terms of Rule 9(21)
of the Rules, which being mandatory in nature, non-
compliance thereof would vitiate the entire G
proceeding.
3. The shortage in cash having repaid by the appellant,
--i no charge could have been framed in that behalf.
4. The findings of the High Court that the appellant was H
878 SUPREME COURT REPORTS [2008] 3 S.C.R.

A found to have been in possession of an excess sum
of Rs.5/- was beyond record.
..
9. Dr. R.G. Padia, learned Senior Counsel, appearing on
behalf of the respondents, on the other hand, would contend :
B 1. That finding of fact having been arrived at by the
disciplinary authority, the same should not have been
interfered with by the Tribunal particularly when some ..
evidences have been led on behalf of the department.
2. The High Court has rightly opined that paragraphs
c 704 and 705 of the Manual pertaining to the manner
in which the trap could be laid, contain only
administrative instructions and are, thus, not
enforceable in a court of law.
3. Since there was sufficient compliance of Rule 9(21 ),
D
the impugned judgment should not be interfered with.
)'
.
10. We may at the outset notice that with a view to protect
innocent employees from such traps, appropriate safeguards
have been provided in the Railway Manual.
E
Paragraphs 704 and 705 thereof read thus :-
"704. Traps
(i) ...
(ii) ... > ...
F
(iii) ... ..
(iv) ...
(v) When laying a trap, the following important points have
G to be kept in view:
(a) Two or more independent witnesses must hear the
conversation, which should establish that the money was ,._
being passed as illegal gratification to meet the defence
that the money was actually received as a loan or
H
MONI SHANKAR v. UNION OF INDIAANO ANOTHER . 879
[S'.B. SINHA, J.]
-~

.. something else, if put up by the accused. A
(b) The transaction should be within the sight and hearing
of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-
handed immediately after passing of the illegal gratificati~n B
so that the accused may not. be able to dispose it of.
•
• (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 c
take witnesses who are Government employees and of
other departments.
(e) After satisfying the above conditions, the Investigating
Officer should take the decoy to the SP/SPE and pass on
D
1 the information to him for necessary action. If the office of
i
the S.P., S.P.E., is not nearby and immediate action is
required for laying the trap, the help of the local police may
be obtained. It may be noted that the trap can be laid only
by an officer not below the rank of Deputy Superintendent
E
of Local Police. After the S.P.~. or local police official
have been entrusted with the work, all arrangements for
laying the trap and execution of the same should be done
by them. All necessary help required by them ~hould be
J
. rendered .
F
(vi) ...
..
(vii) ...
Departmental Traps
For Departmental traps, the following instructions in G
addition to those contained under paras 704 are to be
followed:
~
(a) The Investigating Officer/Inspector should arrange two
gazetted officers from Railways to. act as independent
H
880 SUPREME COURT REPORTS [2008] 3 S.C.R.
~

A witnesses as far as possible. However, in certain
,..
exceptional cases where two gazetted officers are not
available immediately, the services of non-gazetted staff
can be utilised.
All employees, particularly, gazetted officers, should assist
B and witness a trap whenever they are approached by any
officer or branch. The Head of Branch detail a suitable •
<II
person or persons to be present at the scene of trap.
Refusal to assist or witness a trap without a just cause/
without sufficient reason may be regarded as a breach of
c duty, making him liable to disciplinary action.
(b) The decoy will present the money which he will give to
the defaulting officers/employees as bribe money on
demand. A memo should be prepared by the Investigating
Officer/Inspector in the presence of the independent ,.
D
witnesses and the decoy indicating the numbers of the r
G.C. notes for legal and illegal transactions. The memo,
thus prepared should bear the signature of decoy,
independent witnesses and the Investigating Officer/
Inspector. Another memo, for returning the G.D. notes to
E the decoy will be prepared for making over the G.C. notes
to the delinquent employee on demand. This memo should
also contain signatures of decoy, witnesses and
Investigating Officer/Inspector. The independent witnesses
will take up position at such a place where from they can ' ~

F 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 a fact to which they will be deposing in the
departmental proceeding at a later date. After the money
G has been passed on, the Investigating Officer/Inspector
should disclose the identity and demand, in the presence
of the witnesses, to produce all money including private, !--• -
.and bribe money. Then the total money produced will be
VP•ified from relevant records and memo for seizure of the
H money and verification particulars will be prepared. The
MONI SHANKAR v. UNION OF INDIAAND ANOTHER 881
[S.8. SINHA, J.)'
~

' recovered notes will be kept in an envelope sealed in the A
presence of the witnesses, decoy and the accused as
also his immediate superior who should be called s a
witness in case the accused refuses to sign the recovery
memo, and sealing of the notes in the envelope.
(c) XXX B
•
• (d) XXX"
11. The trap was laid by the members of the Railways
Protection Force (RPF). It was a pre-arranged trap. It was,
therefore, not a case which can be said to be an exceptional c
one where two gazetted officers as independent witnesses were
not available.
12. Indisputably the decoy passenger was a constable of
RPF. Only one Head Constable from the said organization was
~
D
deputed to witness the operation. The number of witness was,
thus, not only one, in place of two but also was a non gazetted
officer. It was a pre-planned trap and thus even independent
witnesses could have also been made available.
13. When the decoy passenger purchased the ticket, the E
Head Constable was at a distance of 30 meters. The booking
counter was a busy one. It normally remains crowded. Before
the Enquiry Officer, the said decoy passenger accepted that he

" had not counted the balance amount received from the appellant
after buying the ticket It was only half an hour later that the F
Vigilance Team arrived and searched the appellant.
14. While we say so we must place on record that this
Court in the Chief Commercial Manager, South Central
Railway, Secunderabad and Ors. vs. G Ratnam and Ors. :
(2007) 8 sec 212 opined that non-adherence of the instructions G
laid down in Paras 704 and 705 of the Vigilance Manual would
·...\ not invalidate a departmental proceeding, stating :-
"17. We shall now examine whether on the facts and the
material available on record, non-adherence of the
H
...
~
882 SUPREME COURT REPORTS [2008] 3 S.C.R.

A instructions as laid down in paragraphs 704 and 705 of ..
the Manual would invalidate the departmental proceedings
initiated against the respondents and rendering the
consequential orders of penalty imposed upon the
respondents by the authorities, as held by the High Court
B in the impugned order. It is not in dispute that the
departmental traps were conducted by the investigating
•
officers when the respondents were on official duty
undertaking journey on trains going from one destination •
to another destination. The Tribunal in its order noticed
c that the decoy passengers deployed by the investigation
officers were RPF Constables in whose presence the
respondents allegedly collected excess amount for
arranging sleeper class reservation accommodation etc.
to the passengers. The transaction between the decoy
passengers and the respondents was reported to have
D
been witnessed by the RPF Constables. In the facts and ~
,
circumstances of the matters, the Tribunal held that the
investigations were conducted by the investigating officers
in violation of the mandatory Instructions contained in
paragraphs 704 and 705 of the Vigilance Manual, 1996,
E on the basis of which inquiries were held by the Enqui!'Y
Officer which finally resulted in the imposition of penalty
upon the respondents by the Railway Authority. The High
Court in its impugned judgment has come to the conclusion
~
that the Inquiry Reports in the absence of joining any
.,
F independent witnesses in the departmental traps, are found
inadequate and where the Instructions relating to such •
departmental trap cases are not fully adhered to, the
punishment imposed upon the basis of such defective
traps are not sustainable under law. The High Court has
G observed that in the present cases the service of some
RPF Constables and Railway staff attached to the
Vigilance Wing were utilised as decoy passengers and I-
/'.
they were also associated as witnesses in the traps. The
RPF Constables, in no terms, can be said to be
H independent witnesses and non- association of
...,,
MONI SHANKAR v. UNION OF INDIAAND ANOTHER 883
rs.B. SINHA, J.]
~
. independent witnesses by the investigating officers in the A
investigation of the departmental trap cases has caused
prejudice to the rights of the respondents in their defence
before the Enquiry Officers.

18. We are not inclined to agree that the non~adherence
of the mandatory Instructions and Guidelines contained in B
41 paragraphs 704 and 705 of the Vigilance Manual has
& vitiated the departmental proceedings initiated against
the respondents by the Railway Authority. In our view, such
finding and reasoning are wholly unjustified and cannot be
sustained." c
It has been noticed in that judgments that Paras 704 and
705 cover the procedures and guidelines to be followed by the
investigating officers, who are entrusted with the task of
investigation of trap cases and departmental trap cases against
D
1, the railway officials. This Court proceeded on the premise that
the executive orders do not confer any legally enforceable rights
on any persons and impose no legal obligation on the
subordinate authorities for whose guidance they are issued.

15. We have, as noticed hereinbefore, proceeded on the E
assumption that the said paragraphs being executive
instructions do not create any legal right but we intend to
emphasise that total violation of the guidelines together with
ll other factors could be taken into consideration for the purpose
of arriving at a conclusion as to whether the department has F
been able to prove the charges against the delinquent official.
The departmental proceeding is a quasi judicial one. Although
the provisions of the Evidence Act are not applicable in the said
proceeding, principles of natural justice are required to be
complied with. The Court exercising power of judicial review
G
are entitled to consider as to whether while inferring commission
of misconduct on the part of a delinquent officer relevant piece
•-\ of evidence has been taken into consideration and irrelevant
facts have been excluded therefrom. Inference on facts must be
based on .evidence which meet the requirements of legal
H
884 SUPREME COURT REPORTS (2008] 3 S.C.R.

~

A principles. The Tribunal was, thus, entitled to arrive at its own .
conclusion on the premise that the evidence adduced by the
department, even if it is taken on its face value to be correct in
its entirety, meet the requirements of burden of proof, namely-
preponderance of probability. If on such evidences, the test of
B the doctrine of proportionality has not been satisfied, the Tribunal
was within its domain to interfere. We must place on record that ,.
the doctrine of unreasonableness is giving way to the doctrine
of proportionality. (See - State of U.P. v. Sheo Shanker Lal
•
Srivastava : (2006) ) 3 SCC 276 and Coimbatore District
c Central Cooperative Bank vs. Coimbatore Distarict Central
Cooperative Bank Employees Association and another :
(2007) 4 sec 669 2007.
16. We must also place on record that on certain, aspects
even judicial review of fact is permissible. Ev Secretary of State
D for the Home Department : (2004] 2 W.L.R. 1351. ~
~
17. We have been taken through the evidence of Shri S.B.
Singh by Dr. Padia. Significantly the examination-in-chief was
conducted by the Enquiry Officer himself. As the proceeding
was for imposition of a major penalty, why the Presenting Officer,
E who must have been engaged by the department, did not
examine the witness is beyond any comprehension. Even the
minimum safeguard in regard to the manner in which
examination-in-chief was conpucted has not been preserved.
#
The questions posed to him were leading questions. It is
F interesting to note that in answer to a question as to whether he
j,
had asked the appellant to return Rs.5/- , he not only answered
in the negative but according to him the said statement was
made by him as instructed by the Vigilance Inspector. He
although proved Exhibits P/1 and P/2 which were written in
G English language but also stated that he did not know what had
been written therein Strangely enough, the Enquiry Officer started
re-examining him. Even in the re-examination he accepted that
he could not read and write English.
18. The Enquiry Officer had put the following questions to
H
MONI SHANKAR v. UNION OF INDIAAND ANOTHER 885
[S.B. SINHA, J.]
1
. the appellant:- A
"Having heard all the PWs, please state if you plead guilty?
Please state if you require any additional documents/
witness in your defence at this stage? Do you wish to
submit your oral defence or written defence brief? Are you

.. ~
satisfied with the enquiry proceedings and can I conclude B
the Enquiry?"
19. Such a question does not comply with Rule 9(21) of
the Rules. What were the circumstances appearing against the
appellant had not been disclosed. c
20. The High Court, on the other hand, as indicated
hereinbefore, proceeded to opine that the Tribunal committed
a serious illegality in entering into the realm of evidence. It is
permissible in law to look to the evidence for the purpose of
ascertaining as to whether the statutory requirement had been D
complied with or not.
21. Dr. Padia would submit that the jurisdiction of the
Tribunal was limited and as some evidence was adduced, the
Tribunal should not have interfered with the order of punishment
imposed upon the appellant. E

The Tribunal was entitled to consider the question as to
whether the evidence led by the departm~nt was sufficient to
arrive at a conclusion of guilt or otherwise of the delinquent
J "" officer. While re-appreciation of evidence is not within the F
t domain of the Tribunal, an absurd situation emanating from the
statement of a witness can certainly be taken note of. The
manner in which the trap was laid, witnessed by the Head
Constable and the legality of enquiry proceeding were part of
decision making process and, thus, the Tribunal was entitled to G
consider the same.
.,,, It was only for the aforementioned purpose that paragraphs
704 and 705 of the Manual have been invoked. It may be that
the said instructions were for compliance of the Vigilance
Department, but sub;stantial compliance thereof was necessary, H
886 SUPREME COURT REPORTS [2008] 3 S.C.R.

A even if the same were not imperative in character. A
departmental instruction cannot totally be ignored. The Tribunal
.
was entitled to take the same into consideration alongwith other
materials brought on records for the purpose of arriving at a
decision as to whether normal rules of natural justice had been
B complied with or not.
21. The High Court unfortunately even without any material •
on record held that some excess amount was found from the
appellant which itself was sufficient to raise a presumption that
•
it had been recovered from the decoy passenger. No such
c presumption could be raised. In any event there was no material
brought on records by the department for drawing the said
inference. The High Court itself was exercising the power of
judicial review. It could not have drawn any presumption without
there being any factual foundation therefor. It could not have taken
D judicial notice of a fact which did not come within the purview of
t
Section 57 of the Indian Evidence Act. ~

22. We must also place on record that even Dr. Padia has
taken us through the evidence of one of the witnesses.
E 23. The High Court has only noticed paragraph 704 of the
Manual and not the paragraph 705 thereof. Paragraph 705 was
very relevant and in any event both the provisions were required
to be read together.
The High Court, thus, committed a serious error in not ;.
~
F taking into consideration paragraph 705 of the Manual.

The approach of the High Court, in our opinion, was not
.
entirely correct. If the safeguards are provided to avoid false
implication of a railway employee, the procedures laid down
G
therein could not have been given a complete go bye.
24. It is the High Court who posed unto itself a wrong
question. The onus was not upon the appellant to prove any
bias against the RPF, but it was for the department to establish ,..
the charges levelled against the appellant.
H
MONI SHANKAR v. UNION OF INDIAAND ANOTHER 887
[S.i3. SINHA, J.]

25. The High Court also committed a serious error in A
...
opining that sub-rule (21) of Rule 9 of the Rules was not
imperative. The purpose for which the sub-rule has b~en framed
is clear and unambiguous. The railway servant must get an
· opportunity to explain the circumstances appearing against him.
In this case he has been denied from the said opportunity. B

26. The cumulative effect of the illegalities/irregularities
"j '
were required to be taken into consideration to judge as to
whether the departmental proceeding stood vitiated or not.

27. For the aforementioned purpose, the manner in which c
the enquiry proceeding was conducted was required to be taken
into consideration by the High Court. The trap was not conduced
in terms of the Manual; the Enquiry Officer acted as a Prosecutor
and not as an independent quasi judicial authority ; he did not
comply with Rule 9(21) of the Rules, evidently, therefore, it was
0
not a case where the order of the Tribunal warranted interference
at the hands of the High Court.
27. The impugned judgment, therefore, cannot be
sustained. It is set aside accordingly and that of the Tribunal
restored. The appeal is allowed with costs. Counsel fee E
assessed at Rs.25,000/-.
K.K.T. · Appeal allowed.

F

G

H