S.A. Shah, J.
1. The petitioner who is a class IV employee of the railway working as Acting Pointsman and Parcel Porter under the Station Superintendent, Ahmedabad. challenges the order of removal from service passed by the competent authority dated 3-1-76 and the order under revision dt. 6-1-77 on the ground that the same is passed without any evidence and, therefore, perverse and is not in accordance with the provisions of Article 311 of the Constitution of India. The short facts of this petition are as under.
2. The petitioner was at the relevant time working as class IV employee Acting Pointsman and Parcel Porter at Ahmedabad Railway Station. During the course of the employment of the petitioner, he was charged by the railway authorities. As it appears from the enquiry held by the enquiry officer, the petitioner was served with a memorandum of charge-sheet and the statement of imputation dt. 31-1-76. The charge was as under:
Indulging in mal and corrupt practice, highly unsocial and unlawful activities.
The statement of imputation of misconduct and misbehaviour was as under:
While working as PP-AD1 on 30-11-76, you were found to have cornered the upper berth on the seat No. 7 in the SLR MO. 33458 by 2 Dn. Delhi Mail by keeping the handsignal flags fully rolled on the said berth, with wilful and mala fide motive of selling the same to passengers at high premium. The strategy to have the handsignal flags with you even though you were not on duty was ostensibly adopted by you to save yourself from being detected and to cover up your guilt and nefarious activities.
When asked to explain you absolutely failed to give any satisfactory/convincing reason of your being in the coach and cornering the upper berth. You repeatedly went on backing out from your statements, changing one after the other etc. etc.
The enquiry officer appears to have framed three questions for consideration. He has elaborately discussed the evidence of the prosecution witnesses namely Shri Jamnadas and Suraj Bahadur as well as defence witnesses. So far as the occupation of the upper berth in 2 Dn. Delhi Mail is concerned, even the petitioner has deposed that he occupied a seat on unreserved portion and, therefore, we have to decide that, whether, even if the petitioner has occupied berth over the seat No. 7, would it amount to a mal and corrupt practice in accordance with the charge. The enquiry officer has rightly held that the material issue is of occupation of the upper berth for seat No. 7 and since no reservation for the upper berth is done, the question of exact occupation of the seat is not important and it does not affect the consequence, namely the occupation and sale on premium. The occupation of seat in BKN-SLR is admitted. With regard to the purpose of occupation, according to the enquiry officer, different evidence was forthcoming. According to the two witnesses of the railway, the purpose of unauthorised occupation of upper berth was to sale on premium. But they have drawn this conclusion on presumption of facts and not on their own personal knowledge. In para 6(i) of his report, the enquiry officer says that according to the delinquent, the purpose of occupation of BKN-SLR coach was for going to Mehsana with his family including his pregnant wife to put them at a safer place either at Raniwada or Ahmedabad, depending upon the health of the pregnant wife. It is true that the explanation given by the petitioner was deferring from person to person. The second phase of story was that he was going to his native place Raniwada and that was the purpose of occupation. In para 6(3) of the report, the enquiry officer has stated as under:
On going through the evidence adduced during the enquiry, it is difficult to reach positive conclusion about any definite purpose of the occupation. Apart from that there are possibilities of the occupation for more than one purpose. Shri Ganpat R. has deposed that he was having a bag of clothes. The evidence about Shri Ganpat R. having a bag with him is supported by defence witnesses. He had also taken a day's leave on 30-11-75 on the previous day evening. Since the leave application is dt. 30-11-75, Shri Pande who assisted the relief work was examined. He has deposed that the said leave application was received by him on the evening of 29-11-75 and leave sanctioned on the evening of 29-11-75. The said leave application is taken on record of enquiry-proceedings.
The enquiry officer, has, therefore, stated that these two circumstances namely, a bag of clothes and obtainment of a day's leave tend to support the disclosed purpose of undertaking journey upto Mehsana and if necessary upto Raniwada. He had intended to go upto Mehsana. He had no necessity to occupy upper berth for rest. The pass No. 789590 dated 8-10-75 to Raniwada and back was not made available by mail train nor was it endorsed for break of journey at Mehsana. As such, he was liable to be dealt with for the irregularity under the pass rules. Regarding third question, namely, the purpose of occupation for sale on premium, the enquiry officer in para 7 has stated as under:
The prosecution witnesses S/Shri Jamnadas and Suraj Bahadur have deposed about this purpose. Both these prosecution witnesses have arrived at this conclusion, not on the basis of any positive act of conduct on the part of delinquent employee but on the basis of presumptive circumstances. They are as under:
(1) Spread of cloth and a rolled pair of red and green flags on the upper berth over seat No. 17.
(2) Quarrel with a passenger who wanted to occupy seat.
(3) Changing statements of Shri Ganpat R. for occupation of coach.
After considering all these circumstances, the enquiry officer has arrived at a conclusion that the petitioner was intending to go atleast upto Mehsana. What made him to give such different statement for occupation of the coach, it is difficult to read his mind. The enquiry officer has further stated that on being challenged by the authorities, he must be in a state of fear. The pass held by him was not made available for mail train and was not endorsed for break of journey at Mehsana. He has further stated that it may be that he must have detected fear behind his act of unauthorised travel by mail train and possible consequences of such journey and, therefore, gave different statements. It may be out of his personal ego. It may be that he had a mala fide purpose as presumed by defence witnesses. The reason may be any one or more but the fact that he made changing statements was sufficient to raise reasonable suspicion and strengthen the presumption of prosecution witnesses. Ultimately, the enquiry officer has stated that there may be strong and reasonable circumstances in favour of the presumption of mala fide purpose and sale of seats/berth on premium, but such a purpose was either abandoned or has remained undisclosed. He, therefore, held that the allegations and charges levelled against the employee are partly substantiated.
3. The finding of the enquiry officer is very vague. At the most, be has found that because of changing defence, there was a strong and sufficient circumstances in favour of mala fide purpose. But there is no positive evidence at all to the effect that the petitioner had occupied the space/seat for the purpose of selling. Suspicion however strong it may be, cannot take place of proof. One thing was very certain that the petitioner had taken leave and that he was issued a pass for travel which was not made for travelling in a mail train and having detected this fact, he might have changed the statements out of fear. As soon as the enquiry officer came to the conclusion that the petitioner intended to travel and that his clothes were also there on the upper berth, but in absence of any other proof that the petitioner had tried to sell the seat, no reasonable man can come to the conclusion that petitioner was guilty. When an extreme penalty of removal is to be imposed upon an employee, he cannot be subjected to such a penalty only on suspicion or mala fide intention. The charge against the petitioner was of indulging in a mal and corrupt practice. But the petitioner has indulged in such a mal and corrupt practice has not been shown by any evidence worth the name. A presumption of a witness is no evidence. The petitioner himself has admitted that he was travelling and he had put his clothes on the berth. Therefore, the evidence of the prosecution witnesses that they had seen the petitioner occupying the berth by putting his bag of cloth supports the petitioner and it does not lead to any conclusion that the same was for the purpose of selling space on premium. The petitioner had taken leave. He had got a pass. These two factors and that he had occupied the upper berth for which there is no reservation cannot lead to the conclusion that the petitioner was indulging in the practice of selling the seat or upper berth. He might have committed other delinquencies of travelling by mail train. But that is not the imputation. The competent authority has also not applied its mind and has arrived at a conclusion only on the basis that the petitioner had spread a cloth and a rolled pair of red and green flags on the upper berth though he was not on duty at that time. Only on these admitted facts, he has jumped to the conclusion that the occupation of berth was for a mala fide purpose of selling a seat on premium and he has based his decision on two grounds that he was not on duty and that he has changed the statements. To my opinion, since the petitioner was not on duty and be had asked for leave, these are the circumstances weighing in favour of the petitioner. The petitioner had got pass for travel. He had taken leave, actually occupied the upper berth by putting his clothes bag. He has not been found dealing with any passengers or selling seat to the passengers. This evidence of spreading of cloth and rolled pair of red and green flags is not an evidence which can prove that the same was for a mala fide purpose. This is a case of no evidence and the decision is based upon presumptions of witnesses. To my opinion, even though the strict rules of evidence may not be applicable in case of departmental proceedings, atleast there should be some positive evidence which can lead to the inference that the occupation of the space by the petitioner was for the purpose of selling the same on premium. If such presumptions of witnesses are made the basis of the relevant evidence, nobody will be safe. Circumstantial evidence is in favour of the petitioner. The petitioner explains atleast one specific point that he was travelling. In these circumstances, the competent authority was not justified in arriving at the conclusion that the petitioner occupied the space with an intention to sell the seat. This conclusion being based on suspicion cannot take the place of legal evidence. The competent authority has not taken into consideration the defence evidence at all nor he has mentioned that there was any defence evidence. The finding of the enquiry officer is also vague as the fact of petitioner having indulging in mal and corrupt practice has not been stated in specific terms. The petitioner is a Pointsman and a Parcel Porter. He is not a Coolie who generally indulge in such types of activities. I am, therefore, of the opinion that the petitioner has been found guilty only on suspicion and there is no evidence at all-worth the name to raise the contention that the petitioner was selling the space.
4. In the result, the petition is allowed. The impugned order dt. 3-1-76 of the competent authority at Annexure 'B' and the order dt. 6-1-77 at Annexure 'C are quashed and set aside. The petitioner will be reinstated in service with continuity of service. The petitioner has not averred that he has remained unemployed and he has also not prayed for any back wages. In the circumstances, I do not pass any order for the back wages. Rule is made absolute with costs.