JUDGMENT D.P. Singh, J.
1. Heard counsel for the parties.
2. This petition is directed against an order of removal dated 31.8.1991 and also the appellate order dated 184.2001 rejecting - the resultant appeal of the petitioner.
3. Learned counsel for the respondent has raised a preliminary objection that a statutory revision lies against the impugned orders and in fact the petitioner has alleged that he had preferred the revision on 24.5.2001. therefore the petition is not maintainable. The respondents in their counter affidavit have denied that any memo of revision was received by the competent authority. The appeal of the petitioner was decided after about a decade of the removal order. This petition has remained pending for the last about 4 years and pleadings have been exchanged between the parties thus. on these facts it would not be appropriate to throw out the petition on the ground of alternative remedy
4. "Finders Keepers" an age old adage, cost the petitioner dearly.
5. The petitioner, a constable in the Railway Protection Force was detailed alongwith another Constable Sri R.K. Dubey, on 20.4.1990 10 escort a party of Railway officials for distribution of money to the workmen between Railway Stations Etawah and Bharthana. While going in two Railways Trolleys alongwith a PW 1 and some labourers, some currency notes were found strewn between the railway tracks. On the instructions of the P.W.1., his staff collected the money which were in denominations of Rs. 100/- and Rs. 50/- amounting to Rs. 3,150/-. The P.W.1. prepared an inveptory, but it is alleged, that the petitioner and his companion constable Sri Dubey forcibly took the money and the inventor from the P W.1. on the promise that they would deposit it at the relevant place, it is alleged that the receipt for the aforesaid was not given even after demand. After his return, the petitioner did not deposit it immediately or mention it in the general diary, though it was subsequently deposited on 22.4.1990 with the Railway Booking Office when pressure was mounted by the officials. It is further alleged that on being questioned by a Sub Inspector, they misbehaved with him. This forcible dispossession, retention of the money for about two days and the alleged misbehaviour with the Sub Inspector, prompted the Railways Authorities to initiate disciplinary proceedings for major punishment and issued a charge sheet dated 1.5.1990 leveling the following four charges.
1. P.W.1 I.T.W. Sey Jabarjasti Rs. 3150/- Ley Liya Va Mangney per Pawti Nahi Di.
2 Prapta Kiye Gaye Rupayon Ki report Na To Rojnamchey Mey Ki Aur Na S.I. Cash Guard C.N.B. Athwa Guard Commander Ko Rupayon Key Vishay Mey Bataya.
3. Janch Key Dauran I.P.F./I.T. W. Key Sath Abhadrataka Voyhar Kiya Tatha Bayan Dene Sey Inkar Kiya.
4. Dinak 20.4.1990 Ko Prapta Rupaye Dinak 22.4.1990 Ko lama Kiya Tatha Vrapta Rupya Do Din Tak Radniyati sey Apne Avaidh Kabje Mey Rakha.
6. After enquiry, the petitioner was exonerated for the most serious charge No. 3, but was found guilty on the rest of the three charges. After notice, the punishment of removal was; awarded to him on 31 8 1991 but the appear was dismissed after about a decade on 18.4,2001.
7. Learned counsel for the petitioner has firstly urged that the first charge relating to forcibly, dispossessing the P.W.1, of the amount and the detail sheet was not proved as there was absolutely no evidence that the petitioner at any time used any force or coercion against the P.W.1, or any other member of his party.
8. The department has examined several witnesses, including P.W.1. Sh. R.G. Sharma to. prove the charges. The statements are not annexed but they have been examined and the substance has been mentioned in the enquiry report. The Trolleymen Bindeshwan and Jhabboo Lal and so also Ganuman Man Singh in their deposition before the Enquiry Officer have stated that the money was handed over to the two Constables but they say nothing with regard to usage of force or coercion. P.W.1,, Sri Sharma the star witness, in his deposition has stated that he handed over the money and the detailed sheet on the request of the constables Subsequently, he clarities in his statement that Sri Dubey pressurized him to hand over the money and the detail sheet with the promise of giving a receipt after reaching Achalda Railway Station, but the receipt was not given. So far as the petitioner is concemed, Sri Sharma has categorically stated that he only requested him while Constable Dubey coerced him to hand over the money. There is no witness who says that the petitioner either used force or coercion against Sri Sharma. There is also no allegation of any overt act attributable to the petitioner except for his "request" No doubt it can be argued that usage of words by different individuals at different times may not be of any evidentiary value without considering the attending circumstance, but in the present case the star witness of the department has used the two words in his statement recorded in one sitting/day. Obtaining a thing by force "Jabarjasti" and on request "Agrah" are two poles apart. Forcibly or 'Mabarjasti" signifies using force by any over act to change the stance of another but as already found above, there is no evidence worth the name that the petitioner used any force either by any overt act or action or by words, except for his request; thus, it cannot be said that the first part of the charge of using force by the petitioner was proved as there was no evidence In the circumstances the court is left with no option but to hold that the first part of the charge was not proved against the petitioner
9. It is then alleged that the petitioner had given due explanation for not depositing the amount on his return, but the authorities below have glossed over it. From the record it is apparent that after return of the petitioner neither the Sub Inspector nor the Commander were available even though the petitioner searched for them, Further explanation is given in paragraph No. 9 of the writ petition that on the next day i.e. on 21.4.1990 the petitioner went to the Assistant Security Commissioner to inform him and seek his instructions as to where and how the money was to be deposited but since on that day the Chairman, Railway Board was on a visit to Kanpur, thus, he was not allowed to meet him. He met the Assistant Security Commissioner on 22.4 1990 when he directed the petitioner to deposit it in the Booking Office whereafter immediately both of them deposited the amount in the presence of the S.I. Cash Guard. The explanation given has not been specifically denied in the counter affidavit. Thus, the petitioner has given a reasonable explanation of retaining the amount with him for two days and as such it cannot be said that the 4th charge was proved against him, Had the petitioner not deposited the amount within a reasonable time, which he did in this case, it could have amounted to a major misconduct
10. Learned counsel for the petitioner has lastly urged that the punishment awarded to the petitioner was grossly disproportionate to the charges proved. However, learned counsel for the respondent has laid great emphasis in his contention that this Court tinder Article 226 of the Constitution of India cannot interfere with the punishment awarded as this Court is neither sitting in appeal over the action of the respondents nor can it substitute its own decision because such a decision is in the exclusive domain of the employer. He has relied Upon a recent judgment of a Division Bench of this Court in the case of Union of India and Ors. v. Virendra Prasad Dubey and Anr. Special Appeal No. 1084 of 2005 decided on 26.9.2005 No doubt the writ court is very wary in interfering with the punishment "awarded by the employer and it is also well settled that unless the conscience of the Court is shaken and the punishment is so much disproportionate to the charges proved it would not interfere with the award of punishment.
11. However, in the present case, the petitioner has not been found guilty for the major part of the first charge of using force or coercion and he has already been exonerated of the serious charge of misbehaviour with his superior by the Disciplinary Authority. No rule or procedure has either been noticed before the domestic enquiry nor has been apprised to. the Court as to what is the procedure where a person chances upon some valuable which is neither the property of the Government nor anybody lays claim to it, 'Good moral' does suggest that information should be given to a senior representative of the State because any unclaimed property would vest with the Government In the present case, the petitioner has deposited the amount even though after two days. It can be said that the motive may have been doubtful but, even if the motive was doubtful for two days, his deposit shows that there is scope for improvement and therefore the petitioner should be given a chance. For all these reasons, the Court is of the view that the extreme punishment of removal, on the facts and circumstances of this case, appears to be harsh.
12. In the case of Virendra Prasad Dubey (Supra) a Constable had remained absent without due authorization for about 21 months and without there being any exenuating circumstances, the writ Court interferered with the award of punishment. In these circumstances it found that the punishment awarded was not disproportionate to the charges proved against him. In my opinion, the ratio cannot be doubted but on the facts of this case it is inapplicable.
13. For the reasons given above, this petition is partly allowed and the punishment of removal is hereby cuashed The matter is remanded to the Disciplinary Authority which will reconsider the award of punishment and take a decision within a month from the date of submission of a certified copy of this order. No order as to cost.