rajneesh madhok
SPNer
- Jan 1, 2010
- 517
- 490
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From: Rajneesh Madhok, M.Com, LL.B, DFS (Advocate)
(Punjab & Haryana High Court), Legal & Forensic Investigator,
B-xxx/63, Nehru Nagar, St. No. 2, Railway Road, Phagwara-144401 (Pb)
(M) 94173-06415, E-mail: rajneesh_madhok@yahoo.com
REGISTERED. AD/ E-mail Dated: July 12, 2015
1. The Chairman, E-mail: crb@rb.railnet.gov.in
Ministry of Railways ( Railway Board)
New Delhi.
2. The General Manager,
Northern Railway,
New Delhi. Email: gm@nr.railnet.gov.in
3. Divisional Railway Manager, Ferozepur Division, Ferozepur. E-mail: drm@fzr.railnet.gov.in
4. Chief Commercial Manger, Northern Railway, Ferozepur Divison,
Ferozepur.
5. Senior Divisional Personnel Officer, Northern Railway, Ferozepur Division, Ferozepur.
6.Senior Commercial manager, Northern Railway, Ferozepur Division, Ferozepur.
5.Vigilance Department for conducting investigation in departmental trap of Indian Railways.
Sir,
Place of occurrence of offence: Phagwara, 15708 ASR-KIR Express. Dated Saturday July 11, 2015.
It is requested to nab the four TTEs (the corrupt officials), for allegedly committing fraud with passengers (Agricultural labour—bhaiyyas---). The TTEs charge from the passengers to reserve the seats for them up to their destination but after collection of Rs 500/- each illegally fail to provide reserved seats to them. The TTEs strike deals with the passengers to allot seats to them up to Katihar but after extortion of Rs 500 each from the passengers they were directed that your seats had been reserved up to Delhi, whereas the said compartments No. 6,7 and had been reserved for the passengers those travel from Delhi onwards. After collection of money from the passengers those are maltreated by the TTEs.
The case of fraud and cheating kindly be registered against the culprits.
Yesterday, On July 11, 2015,
1.I boarded from Phagwara Railway Station and travelled up to Ludhiana in 15708 ASR-KIR Express. Dated Saturday July 11, 2015.
2.I was astonished to know the modus operendi adopted by the Travelling Ticket Examiners to extort money from the (Bhaiyyas ---Khetihar majdoors –Agricultural labour) those come to Punjab in the days of sowing of agriculture crop and at the time of harvesting of agriculture crop. How they people are being looted by Travelling Ticket Examiners?.
3.That in the beginning of the train three compartments are there those are General Compartments, then two or Three AC compartments, then one compartment on the outside of that compartment nothing has been mentioned, and after that compartment the series of Sleeper compartments starts. Now have a look on the modus operendi of the TTEs.
4.Three numbers of Travelling Ticket Examiners (TTEs) assemble in that compartment. One comes out at the stoppage of train at Phagwara Railway Station and don’t object to the poor agriculture labour, as it is a huge rush nowadays in the trains and the General compartments are already packed to more than 50 times of its seating capacity. When the crowd enters in the compartment. The passengers are being stopped at the first turning point of the compartment and tickets of all the passengers got collected by TTE (Lady TTE), The Lady TTE sat on the Side Lower seat No. 8 and window one Gents Sikh TTE sat on the Seat No. 3 just opposite to Seat No. 8 and the third TTE who covers all those passengers enter the compartment and the programme of extortion starts as under:
5.All the tickets of the passengers are being collected and then they are supposed to come one by one towards the Lady TTE sat on Seat No. 8. (No body is allowed to sit on Seat No. 7) Now all the three TTEs capture seat No. 8 Seat No. 3 and Seat No. 6. The lady TTE now orders to all those labourers to pay Rs 500/- each and the poor labour has to shell out Rs 500/- whereas they had been directed to occupy the seats in Compartment No. 6 or 7 or 8 and after collection of Rs 500 each from each passenger the receipt has been issued in the name of one of the passenger.
6.That as I occupied seat no. 3 instantly, the TTE said me to pay Rs 500/- to me, and on my no objections to the demand, he asked me, show me your Travelling ticket. I forwarded my M.S.T. towards him. Then one of the TTE asked me what are you doing, when I said I am an Advocate and Forensic Investigator he demanded my Identity Card. On showing my identity card of Advocate, the TTE who had collected Rs 500 from me returned the money to me.
7.Now the point of consideration is that the amount collected from each labour amounting to Rs 500/- each but receipt in one of the passenger’s name had been issued without mentioning EFT amount, the amount for which the money collected what is the coversion amount and what are the Reservation charges for providing SL Class accommodation on Second Express Tickets to the passengers.
8.That the extortion made from the poor labour having no provision of Reservation of the seat and as the Coach No.s 6, 7 and 8 had been reserved from Delhi Railway Station those passengers had been looted in broad day light by the TTEs of Railways. Those TTEs violated Rule No. 3(1)(l)(ll) & (lll) of Rule No. 26 of Railway Services (Conduct) Rules, 1966. Though I having knowledge of all the frauds conducted by the TTEs and extortion of more than Rs 10,000 in five minutes, I can’t do anything.
9.That the cash of the TTEs can be checked with the EFT earning and excess amount so collected be accounted for. The violation of Rule 3(1)(ii) and (iii) of Rule No. 26 of Railway Services (Conduct) Rules, 1966 can be proved whenever required.
10.That the Compartment Attendant who was told to the passengers that this person will go up to Delhi as Compartment Attendant and all those labours had been directed to shift to Compartment No. 6, 7 or 8. Go and sleep on the seat which ever you like as your seats had been got reserved up to Delhi----- Directions of the Lady Travelling Ticket Examiner.
11.That the bad luck with the poor labour passengers is that they had been penalized for providing Sleeper reserved accommodation and after collection the amount as all the passengers were supposed to go up to Katihar had been directed that your seats had been reserved and this Compartment Attendant will go up to Delhi.
12.WHEN LAYING A TRAP, THE FOLLOWING IMPORTANT POINTS HAVE TO BE KEPT IN VIEW:-
13.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 something else, if put up by the accused.
14.That the transaction should be within the sight and hearing of two independent witnesses.
15.There should be an opportunity to catch the culprit red-handed immediately after passing the illegal gratification so that the accused may not be able to dispose it of.
16.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 take witnesses who are Government employees and of other departments.
17.After satisfying the above conditions, the Investigating Officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of 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 offier not below the rank of Deputy Superintendent of Local Police. After the S.P.E. 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 should be rendered.
18.Para 705 Departmental Traps For Departmental traps, the following instructions in addition to those contained under paras 704 are to be followed:
19.(a) The Investigating Officer/Inspector should arrange two gazetted officers from Railways to act as independent 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.
20.All railway employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or Vigilance branch. The Head of Vigilance Branch detail a suitable 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 duty, making him liable to disciplinary action.
21.(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 witnesses and the decoy indicating the numbers of the 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 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 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 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, Railway and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the 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.
22.That the Instructions contained in paragraphs 704 and 705 of the Manual are mandatory in nature and their violation by the Investigating Agency in the process of laying traps against the respondents, have caused prejudice to the respondents to defend their cause in the departmental proceedings which were initiated against the respondents by the Authority on the basis of the defective and unfounded investigation reports prepared by the investigation officers.
23. Vigilance Manual which was first published in 1970 was revised in 1996 under which the departmental traps were laid against the respondents. The revised Vigilance Manual of 1996 has now been re-revised by the Indian Railways in the year 2006. Paragraph 306 in Chapter III of the Indian Railways Vigilance Manual, 2006 deals with trap cases by the C.B.I. Departmental trap cases, procedure and guidelines are prescribed in paragraph 307 (corresponding to paragraph 705 of the 1996 Manual). However, the present cases are covered and dealt with by the procedure and guidelines as contained in paragraphs 704 and 705 of the 1996 Manual.
24.Please examine whether on the facts and the material available on record, non-adherence of the 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 Various High Courts in the impugned orders. 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 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 kindly be reported to have been witnessed by the RPF Constables. In the facts and circumstances of the matters, the investigations can be conducted by the investigating officers and violation of the mandatory Instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries should be conducted by the Enquiry Officer which finally resulted in the imposition of penalty upon the culprits by the Railway Authority. After trap. Inquiry Reports in the absence of joining any 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 service of some RPF Constables and Railway staff attached to the Vigilance Wing should be utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF Constables, in no terms, can be said to be independent witnesses and non- association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the Enquiry Officers.
25.The non-adherence of the mandatory Instructions and Guidelines contained in paragraphs 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the Railway Authority be investigated properly.
26.Chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance organization and its role, Central Vigilance Commission, Central Bureau of Investigation, Investigation of Complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work etc. Paragraphs 704 and 705, as noticed earlier, 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 the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called 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. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
27. It is well-settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such Instructions Statutory Rules which are justiciable in certain circumstances. In order that such executive instructions have the force of Statutory Rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against Government by a petition under Article 226 of the Constitution of India.
28. In State bank of Patiala V.S.K. Sharma (1996) 3 SCC 364 Court held that in a case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantial compliance. The order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. The Court or the Tribunal should inquire whether:-
29.(a) the provision violated is of a substantive nature; or
30.(b) whether it is procedural in character?
31.. It is by now well-settled that the purposes of departmental inquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. Crime is an act of commission in violation of law or of omission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. [see Hindustan Petroleum Corporation V. Sarvesh Berry (2005) 10 SCC 471]. In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the investigating officers. The Railway authority appointed enquiry officer to hold inquiry against the respondents for their misconducts in discharge of their official duty on the relevant day when vigilance officers laid departmental traps when the respondents were traveling on the above-said trains going from one destination to another destination. The enquiry officer held the inquiry strictly in accordance with the provisions of the Railway Service (Discipline and Appeal) Rules, 1968 in the presence of the respondents and finally found them guilty of misconduct on the basis of the evidence led before the enquiry officers. The disciplinary authority, on consideration of the inquiry reports and other material on record, imposed punishments upon the respondents in terms of the Service Rules. The respondents filed their revision petitions and the appeals before the Revisional Authorities and the Appellate Authority under the relevant service rules, which were duly considered by the authorities.
32. On consideration of the foregoing facts and in the teeth of the legal aspect of the matter, the instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental proceedings initiated against the respondents on the basis of the complaints submitted by the investigating officers to the railway authorities. The instructions as contemplated under paragraphs 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers..
33.I, therefore call upon you to immediately take appropriate action against the culprits. I may also state that the legal action will be preferred against you at the costs and expenses on your own with no liability whatsoever.
Thanking you,
Yours sincerely,
(Rajneesh Madhok)
Advocate, Phagwara.
Reply, Reply all or Forward | More
(Punjab & Haryana High Court), Legal & Forensic Investigator,
B-xxx/63, Nehru Nagar, St. No. 2, Railway Road, Phagwara-144401 (Pb)
(M) 94173-06415, E-mail: rajneesh_madhok@yahoo.com
REGISTERED. AD/ E-mail Dated: July 12, 2015
1. The Chairman, E-mail: crb@rb.railnet.gov.in
Ministry of Railways ( Railway Board)
New Delhi.
2. The General Manager,
Northern Railway,
New Delhi. Email: gm@nr.railnet.gov.in
3. Divisional Railway Manager, Ferozepur Division, Ferozepur. E-mail: drm@fzr.railnet.gov.in
4. Chief Commercial Manger, Northern Railway, Ferozepur Divison,
Ferozepur.
5. Senior Divisional Personnel Officer, Northern Railway, Ferozepur Division, Ferozepur.
6.Senior Commercial manager, Northern Railway, Ferozepur Division, Ferozepur.
5.Vigilance Department for conducting investigation in departmental trap of Indian Railways.
Sir,
Place of occurrence of offence: Phagwara, 15708 ASR-KIR Express. Dated Saturday July 11, 2015.
It is requested to nab the four TTEs (the corrupt officials), for allegedly committing fraud with passengers (Agricultural labour—bhaiyyas---). The TTEs charge from the passengers to reserve the seats for them up to their destination but after collection of Rs 500/- each illegally fail to provide reserved seats to them. The TTEs strike deals with the passengers to allot seats to them up to Katihar but after extortion of Rs 500 each from the passengers they were directed that your seats had been reserved up to Delhi, whereas the said compartments No. 6,7 and had been reserved for the passengers those travel from Delhi onwards. After collection of money from the passengers those are maltreated by the TTEs.
The case of fraud and cheating kindly be registered against the culprits.
Yesterday, On July 11, 2015,
1.I boarded from Phagwara Railway Station and travelled up to Ludhiana in 15708 ASR-KIR Express. Dated Saturday July 11, 2015.
2.I was astonished to know the modus operendi adopted by the Travelling Ticket Examiners to extort money from the (Bhaiyyas ---Khetihar majdoors –Agricultural labour) those come to Punjab in the days of sowing of agriculture crop and at the time of harvesting of agriculture crop. How they people are being looted by Travelling Ticket Examiners?.
3.That in the beginning of the train three compartments are there those are General Compartments, then two or Three AC compartments, then one compartment on the outside of that compartment nothing has been mentioned, and after that compartment the series of Sleeper compartments starts. Now have a look on the modus operendi of the TTEs.
4.Three numbers of Travelling Ticket Examiners (TTEs) assemble in that compartment. One comes out at the stoppage of train at Phagwara Railway Station and don’t object to the poor agriculture labour, as it is a huge rush nowadays in the trains and the General compartments are already packed to more than 50 times of its seating capacity. When the crowd enters in the compartment. The passengers are being stopped at the first turning point of the compartment and tickets of all the passengers got collected by TTE (Lady TTE), The Lady TTE sat on the Side Lower seat No. 8 and window one Gents Sikh TTE sat on the Seat No. 3 just opposite to Seat No. 8 and the third TTE who covers all those passengers enter the compartment and the programme of extortion starts as under:
5.All the tickets of the passengers are being collected and then they are supposed to come one by one towards the Lady TTE sat on Seat No. 8. (No body is allowed to sit on Seat No. 7) Now all the three TTEs capture seat No. 8 Seat No. 3 and Seat No. 6. The lady TTE now orders to all those labourers to pay Rs 500/- each and the poor labour has to shell out Rs 500/- whereas they had been directed to occupy the seats in Compartment No. 6 or 7 or 8 and after collection of Rs 500 each from each passenger the receipt has been issued in the name of one of the passenger.
6.That as I occupied seat no. 3 instantly, the TTE said me to pay Rs 500/- to me, and on my no objections to the demand, he asked me, show me your Travelling ticket. I forwarded my M.S.T. towards him. Then one of the TTE asked me what are you doing, when I said I am an Advocate and Forensic Investigator he demanded my Identity Card. On showing my identity card of Advocate, the TTE who had collected Rs 500 from me returned the money to me.
7.Now the point of consideration is that the amount collected from each labour amounting to Rs 500/- each but receipt in one of the passenger’s name had been issued without mentioning EFT amount, the amount for which the money collected what is the coversion amount and what are the Reservation charges for providing SL Class accommodation on Second Express Tickets to the passengers.
8.That the extortion made from the poor labour having no provision of Reservation of the seat and as the Coach No.s 6, 7 and 8 had been reserved from Delhi Railway Station those passengers had been looted in broad day light by the TTEs of Railways. Those TTEs violated Rule No. 3(1)(l)(ll) & (lll) of Rule No. 26 of Railway Services (Conduct) Rules, 1966. Though I having knowledge of all the frauds conducted by the TTEs and extortion of more than Rs 10,000 in five minutes, I can’t do anything.
9.That the cash of the TTEs can be checked with the EFT earning and excess amount so collected be accounted for. The violation of Rule 3(1)(ii) and (iii) of Rule No. 26 of Railway Services (Conduct) Rules, 1966 can be proved whenever required.
10.That the Compartment Attendant who was told to the passengers that this person will go up to Delhi as Compartment Attendant and all those labours had been directed to shift to Compartment No. 6, 7 or 8. Go and sleep on the seat which ever you like as your seats had been got reserved up to Delhi----- Directions of the Lady Travelling Ticket Examiner.
11.That the bad luck with the poor labour passengers is that they had been penalized for providing Sleeper reserved accommodation and after collection the amount as all the passengers were supposed to go up to Katihar had been directed that your seats had been reserved and this Compartment Attendant will go up to Delhi.
12.WHEN LAYING A TRAP, THE FOLLOWING IMPORTANT POINTS HAVE TO BE KEPT IN VIEW:-
13.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 something else, if put up by the accused.
14.That the transaction should be within the sight and hearing of two independent witnesses.
15.There should be an opportunity to catch the culprit red-handed immediately after passing the illegal gratification so that the accused may not be able to dispose it of.
16.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 take witnesses who are Government employees and of other departments.
17.After satisfying the above conditions, the Investigating Officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of 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 offier not below the rank of Deputy Superintendent of Local Police. After the S.P.E. 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 should be rendered.
18.Para 705 Departmental Traps For Departmental traps, the following instructions in addition to those contained under paras 704 are to be followed:
19.(a) The Investigating Officer/Inspector should arrange two gazetted officers from Railways to act as independent 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.
20.All railway employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or Vigilance branch. The Head of Vigilance Branch detail a suitable 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 duty, making him liable to disciplinary action.
21.(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 witnesses and the decoy indicating the numbers of the 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 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 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 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, Railway and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the 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.
22.That the Instructions contained in paragraphs 704 and 705 of the Manual are mandatory in nature and their violation by the Investigating Agency in the process of laying traps against the respondents, have caused prejudice to the respondents to defend their cause in the departmental proceedings which were initiated against the respondents by the Authority on the basis of the defective and unfounded investigation reports prepared by the investigation officers.
23. Vigilance Manual which was first published in 1970 was revised in 1996 under which the departmental traps were laid against the respondents. The revised Vigilance Manual of 1996 has now been re-revised by the Indian Railways in the year 2006. Paragraph 306 in Chapter III of the Indian Railways Vigilance Manual, 2006 deals with trap cases by the C.B.I. Departmental trap cases, procedure and guidelines are prescribed in paragraph 307 (corresponding to paragraph 705 of the 1996 Manual). However, the present cases are covered and dealt with by the procedure and guidelines as contained in paragraphs 704 and 705 of the 1996 Manual.
24.Please examine whether on the facts and the material available on record, non-adherence of the 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 Various High Courts in the impugned orders. 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 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 kindly be reported to have been witnessed by the RPF Constables. In the facts and circumstances of the matters, the investigations can be conducted by the investigating officers and violation of the mandatory Instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries should be conducted by the Enquiry Officer which finally resulted in the imposition of penalty upon the culprits by the Railway Authority. After trap. Inquiry Reports in the absence of joining any 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 service of some RPF Constables and Railway staff attached to the Vigilance Wing should be utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF Constables, in no terms, can be said to be independent witnesses and non- association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the Enquiry Officers.
25.The non-adherence of the mandatory Instructions and Guidelines contained in paragraphs 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the Railway Authority be investigated properly.
26.Chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance organization and its role, Central Vigilance Commission, Central Bureau of Investigation, Investigation of Complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work etc. Paragraphs 704 and 705, as noticed earlier, 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 the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called 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. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
27. It is well-settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such Instructions Statutory Rules which are justiciable in certain circumstances. In order that such executive instructions have the force of Statutory Rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against Government by a petition under Article 226 of the Constitution of India.
28. In State bank of Patiala V.S.K. Sharma (1996) 3 SCC 364 Court held that in a case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantial compliance. The order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. The Court or the Tribunal should inquire whether:-
29.(a) the provision violated is of a substantive nature; or
30.(b) whether it is procedural in character?
31.. It is by now well-settled that the purposes of departmental inquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. Crime is an act of commission in violation of law or of omission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. [see Hindustan Petroleum Corporation V. Sarvesh Berry (2005) 10 SCC 471]. In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the investigating officers. The Railway authority appointed enquiry officer to hold inquiry against the respondents for their misconducts in discharge of their official duty on the relevant day when vigilance officers laid departmental traps when the respondents were traveling on the above-said trains going from one destination to another destination. The enquiry officer held the inquiry strictly in accordance with the provisions of the Railway Service (Discipline and Appeal) Rules, 1968 in the presence of the respondents and finally found them guilty of misconduct on the basis of the evidence led before the enquiry officers. The disciplinary authority, on consideration of the inquiry reports and other material on record, imposed punishments upon the respondents in terms of the Service Rules. The respondents filed their revision petitions and the appeals before the Revisional Authorities and the Appellate Authority under the relevant service rules, which were duly considered by the authorities.
32. On consideration of the foregoing facts and in the teeth of the legal aspect of the matter, the instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental proceedings initiated against the respondents on the basis of the complaints submitted by the investigating officers to the railway authorities. The instructions as contemplated under paragraphs 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers..
33.I, therefore call upon you to immediately take appropriate action against the culprits. I may also state that the legal action will be preferred against you at the costs and expenses on your own with no liability whatsoever.
Thanking you,
Yours sincerely,
(Rajneesh Madhok)
Advocate, Phagwara.
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