1. This is a petition under Article 226 of the Constitution by a subordinate servant of the South Eastern Railway, challenging the order dated 4-104962 of the District Mechanical Engineer, of the S. E. Rly. at Waltair, dismissing him from railway service,
2. In March 1961 the petitioner was working as the Khalasi of the Carriage shed in Cuttack Railway Station. It was alleged that on 18-3-1961 he provided accommodation for one Sri A. R. Ritchie, in the slip coach attached to 382 Down (Puri Howrah Express) by opening the locked door, and then demanded from Sri Ritchie some gratification for the, service thus rendered. Shri Ritchie paid him annas 8. The Vigilance staff who were secretly watching the activities of the petitioner immediately went inside the carriage, took the statement of Shri Ritchie and submitted a report, on, the basis of which regular departmental proceedings were drawn up against him; and he was charged with 'serious misconduct in having demanded and accepted illegal gratification of a sum of -/8/- annas from Sri A. R. Ritchie for providing accommodation for him in the slip coach attached to 302 Dn., on 18-2-1961'. A regular enquiry was made and the evidence of Sri A. R. Ritchie and other Railway officials was recorded in the presence of the petitioner and he was given an opportunity of cross-examining them and also adducing evidence on his behalf.
A copy of the evidence of Sri Ritchie is on record and it shows that during his examination in chief he stated that the petitioner opened the locked door of the said coach and allowed him to sit inside and then 'asked for some money saying that every one to whom seats are provided is giving some money'. Then he paid 8 annas to the petitioner. It appears that there were some other passengers also in the coach from whom money was collected in the same manner. In the cross-examination of Sri Ritchie however, it was brought out that he gave the money out of good will, as Bakshish. The enquiring officer, however, in We report came to a definite finding that though money might have been paid by Shri Ritchie as Bakshish out of goodwill nevertheless it was paid by him when it was demanded by the petitioner. Hence he observed that the action of the petitioner amounted to serious misconduct. He was given an opportunity to show cause why order of dismissal may not be passed against him, and after taking his explanation into consideration the Dt. Mechanical Engineer, Waltair, held that his demanding and accepting illegal gratification of 3 annas from Sri Ritchie amounted to serious misconduct and accordingly dismissed him from service.
3. The only point urged by Mr. Murty appearing on behalf of the petitioner is that payment of Bakshis by a passenger, out of goodwill to a Railway servant for any service rendered to him would not amount to serious misconduct. He relied on a single Judge decision (s) of the Bombay High Court in Dami Bhika v. S. K. Nair, Misc. Case No. 207 of 1960 (Bom), and Umar Nabi Bux v. S. K. Nair, Misc. case No. 221 of 1960, D/- 23-6-1961 (Bom). A copy of this judgment was actually filed by him before this Court. Having gone through the judgment we find that not only does it not support the contention put forward by Mr. Murty but it is sufficient authority to show that on the facts found in the instant case the petitioner was clearly guilty of 'serious misconduct'. In that judgment the learned Judge referred, to para 2 (1) of Rule 1701 of the Railway Servants Conduct Rules printed at appendix XI to the Indian Railway Establishment Code (Vol. I) which says that a railway servant shall not accept any gift, gratuity or reward. Hence acceptance of a bakshis even if it is given by a person out of goodwill for service rendered to him by the Railway servant would amount to a contravention of this - Rule and as such would amount to misconduct.
The learned Judge further discussed the question as to whether mere acceptance of such bakshish would amount to serious misconduct and held that where the bakshish was not demanded by the Railway servant but was given voluntarily by a passenger it may not amount to serious misconduct. Thus a distinction was made between baksheesh or gratuity offered voluntarily, without any demand being made, on the one hand and a baksheesh or gratuity given to a railway servant on a demand being made, on the other.
4. Here the clear finding of the competent authority is that it was on the demand made by the petitioner that Sri Ritchie paid him 8 annas as gratification. Following the principle laid down in the aforesaid Bombay decision, therefore, it must be held that the action of the petitioner amounted to serious misconduct.
5. It was then urged that the extreme punishment of dismissal for accepting a Bakshees of such a paltry amount of 8 annas was too severe. This is not a matter with which we are concerned, in this application under Article 226. Moreover a perusal of the record shows that this practice had become widely prevalent in Cuttack Station and though one passenger may give only 8 annas similar amounts were collected from many other passengers by subordinate Railway employees. Under such circumstances if the Railway wanted to award an exemplary punishment in one case so as to put stop to this evil. It will obviously not be within the jurisdiction of this Court to enquire whether the punishment of dismissal is too severe or not.
6. Mr. Murty also wanted to develop an argument to the effect that acceptance of such small amounts will not amount to bribery as defined in Section 161 of the Indian Penal Code. In our opinion, this argument is not tenable here. The Railway Establishment Code itself prohibits the acceptance of any 'gift, gratuity or reward' and it is immaterial whether it was given voluntarily by a passenger for services rendered by a Railway Servant even though such service may not be part of the official duties of the railway servant. Any contravention of the disciplinary rules prescribing the code of conduct of railway servants must necessarily amount to misconduct, and the question whether it is ordinary misconduct or serious misconduct will depend on whether the gift or reward was actually demanded by the Railway servant, so as to involve an element of extortion which necessarily implies dishonest intention.
7. The petition is therefore dismissed, and there wilt be no order for costs.
8. I agree.