Bombay High Court
Union Of India Through The Secretary Of ... vs S. M. Padwal on 4 March, 2024
2024:BHC-AS:10527-DB
9062.11-wp.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9062 OF 2011
1 Union of India
Through the Secretary of Ministry of
Finance, Department of Revenue,
North Block, New Delhi - 110 001
2 The Commissioner of Central Excise,
Mumbai - 1, New Central Excise
Building, M.K.Road, Churchgate,
Mumbai - 400 020
3 The Chief Commissioner of Central
Excise and Customs, ICE House,
Sasoon Road, Pune - 411 001 ..... Petitioners
Versus
S. M. Padwal,
Prem Park, Building No.E-6/14,
Mansulkar Colony, Pimpri,
Pune - 411018 ..... Respondents
WITH
WRIT PETITION NO.11229 OF 2013
Yashwant Balu Lotale
Age - 63 years,
Retd. Superintendent of Central Excise,
Residing at 102, Shivkamal Heights,
Plot No.51, Sector-20, Kamothe, ..... Petitioner
New Mumbai - 410 206
Versus
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1 Union of India
Through the Ministry of Finance,
Department of Revenue,
Central Board of Excise & Customs,
North Block, New Delhi.
2 The Commissioner of Central Excise,
Mumbai - 1, New Central Excise
Building, M.K.Road, Churchgate,
Mumbai - 400 020 ..... Respondents
Writ Petition No.9062 of 2011
Smt. Neeta U. Masurkar with Mr. D. A. Dube for the Petitioners -
Union of India
Ms. Neeta Karnik i/b. Sangharsh V. Waghmare for the
Respondents
Writ Petition No.11229 of 2013
Mr. Vishal P. Shirke a/w. Ms. Harshada Waingankar for the
Petitioner
Mrs. Shehnaz V. Bharucha and Mr. D. A. Dube for the Respondent
- Union of India
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : 26th FEBRUARY 2024
PRONOUNCED ON : 4th MARCH 2024
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard Smt. Neeta U. Masurkar, learned counsel
representing the Petitioners - Union of India, Ms. Neeta Karnik
learned Counsel representing the Respondent in Writ Petition
No.9062 of 2011, Mr. Vishal P. Shirke learned Counsel
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representing the Petitioner and Mrs. Shehnaz Bharucha learned
Counsel representing the Respondent - Union of India in Writ
Petition No.11229 of 2013.
2. Since the subject matter of these two Writ Petitions and the
issues which arise for our consideration are intertwined, these
petitions are being decided by the following common judgment
and order:
CHALLENGE AND FACTS OF THE CASE:
(A) Facts as pleaded in Writ Petition No.11229 Of 2013:
3. Petitioner - Yashwant Balu Lotale has questioned the
validity of the judgment dated 13 th June 2013 passed by the
Bombay Bench of Central Administrative Tribunal (hereinafter
referred to as the Tribunal) in Original Application No.465 of
2010 whereby the Tribunal has declined to interfere with the
order of penalty dated 31st January 2008 and has accordingly
dismissed the Original Application. By the order of penalty dated
31st January 2008, the Petitioner was inflicted with the penalty of
compulsory retirement from Government service in terms of Rule
11(vii) of the Central Civil Services (Classification, Control &
Appeal) Rules, 1965 (hereinafter referred to as the CCS (CCA)
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Rules 1965). Said order further provides that the Petitioner
shall be entitled to only 65% of the full compensation of pension
and gratuity under Rule 40 of the Central Civil Services (Pension)
Rules.
4. The Commissioner, Central Excise, Mumbai - III issued a
Memorandum on 25th May 1998 against the Petitioner, who at
the relevant point of time, was working as Superintendent of
Central Excise, which was accompanied by Articles of Charge and
statement of imputation of misconduct in support of Articles of
Charge. The charge sheet against the Petitioner contained two
charges. The first charge against the Petitioner was that while
working as Superintendent though the Petitioner was alerted by
the Commissioner of Customs (Preventive) about possible
landing of contraband, however, he failed to take appropriate
measures to prevent the landing in his jurisdiction by effectively
mobilizing and controlling his team of officers. As per the Article
of Charge No.1, the Petitioner was charged with laxity shown by
him which contributed to landing of smuggled explosives, arms
and ammunitions which were used in conducting bomb blast in
Mumbai during the year 1993, as a result of which loss to
innocent human lives as also several buildings was caused. In
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view of these imputations, the Petitioner was, thus, charged for
having contravened the provisions of Rule 3(1), (i), (ii) and (iii)
of the Central Civil Services (Conduct) Rules 1964.
5. As per Article of Charge No.2, the Petitioner was charged
with having received illegal gratification for turning a blind eye
towards landing of contraband consisting of explosives, arms and
ammunitions and by such acts of omission and commission, the
Petitioner was further charged for failure to maintain integrity
and acted in a manner unbecoming of a Government servant,
contravening the provisions of Rule 3(1), (i), (ii) and (iii) of the
Central Civil Services (Conduct) Rules 1964.
6. The Petitioner submitted his reply to the Charge
Memorandum on 14th July 1998 denying all the charges and
further requesting to conduct an open departmental inquiry.
Accordingly, the inquiry was conducted and the Inquiry Officer
submitted his report dated 4th December 2006 to the Disciplinary
Authority with the finding that both the charges levelled against
the Petitioner were found to be proved. The Petitioner submitted
his comments / statement to the inquiry report and thereafter
the Disciplinary Authority viz. Commissioner of Central Excise,
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Mumbai passed the order of punishment dated 31 st January 2008
agreeing with the report of the Inquiry officer and finding the
charges against the Petitioner to be proved. As observed earlier,
the Petitioner, by means of punishment order dated 31st January
2008, was inflicted with the punishment of compulsory
retirement from Government service and it was also ordered by
the Appointing Authority that he shall be entitled to only 65% of
full compensation of pension and gratuity.
7. The Petitioner preferred a statutory appeal under Rule 24
of the CCS (CCA) Rules 1965 against the order of punishment
before the Appellate Authority which however, rejected the
appeal by means of order dated 22nd April 2010. Taking
exception to the order of punishment and the order passed in
the statutory appeal preferred by the Petitioners against the
order of punishment, the Petitioners instituted the proceedings
of Original Application No.465 of 2010 which too has been
dismissed by means of impugned judgment and order dated 13 th
June 2013 passed by the Tribunal.
8. Feeling aggrieved by the judgment dated 13 th June 2013
the Petitioner has now invoked our jurisdiction under Article 226
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of the Constitution of India, by instituting the proceedings of Writ
Petition No.11229 of 2013.
(B) Facts as pleaded in Writ Petition No.9062 of 2011:
9. This petition instituted by the Union of India assails the
validity of the judgment and order dated 25 th November 2010
passed by the Tribunal allowing the Original Application No.153
of 2007 by means of which the order of punishment of dismissal
from service dated 18 th November 2004 passed by the
Disciplinary Authority against the employee - S. M. Padwal and
the order dated 14th September 2006 passed by the appellate
authority, have been set aside with all consequential benefits to
the employee concerned.
10. S. M. Padwal (sole Respondent in this Writ Petition, who
shall hereinafter be referred to as the Petitioner for clarity),
while working on the post of Superintendent, Central Excise, was
placed under suspension on 14 th June 1993 on account of a
criminal case against him which was under investigation. In
connection with the investigation of the said criminal case, a raid
was also conducted by the Central Bureau of Investigation (CBI)
at the Petitioner's residence on 2 nd April 1993. However, it
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appears that since nothing incriminating against him was found,
criminal prosecution pursuant to the investigation of the said
criminal case was not lodged against the Petitioner; neither was
the Petitioner placed under detention either by the local police or
by the CBI. Suspension of the Petitioner was thereafter revoked
on 27th July 1996 whereupon he was reinstated in service,
however, a Memorandum of Charges dated 28 th June 1996 was
issued to the Petitioner containing two Articles of Charge. As per
the first Article of Charge, the allegation against the Petitioner
was that while posted at Alibag Division of M & P Wing, he was
involved in conspiracy which resulted in landing of arms and
explosives at village Dighi in Shrivardhan Taluqa on 3 rd December
1992 and 9th January 1993 and further that the Petitioner, along
with other officers was paid Rs.4,25,000/- by way of illegal
gratification by a smuggler who was owner of the contraband
goods. The allegation further, as per Article 1 of the charge, was
that the Petitioner was again involved in conspiracy of landing of
weapons, explosives and grenades twice at village Shekhadi,
Taluqa Mhasla between the period 2nd February 1993 and 9th
February 1993 and that there was a nexus between the
smugglers and Customs Officers and also that the smuggler who
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was owner of the contraband goods, paid illegal gratification of
Rs.3,00,000/- to the Officials viz. the Superintendent Shri
Sayyed and Inspector Shri Padwal i.e. the Petitioner.
11. As per Article II of the Charges, the Petitioner received a
sum of Rs.25,000/- by way of illegal gratification for permitting
landing of smuggled goods and that he further received an
amount of Rs.25,000/- for landing of smuggled goods belonging
to the said smuggler. The Article of Charge further stated that
such acts on the part of the Petitioner showed that he did not
maintain absolute integrity and devotion to duty and acted in a
manner unbecoming of a Government servant contravening the
provisions of Rule 3(1), (i), (ii) and (iii) of the Central Civil
Services (Conduct) Rules 1964.
12. The Petitioner, however, denied the charges vide his letter
dated 12th July 1996 and accordingly, an inquiry was conducted
into the allegations levelled against the Petitioner by the Inquiry
officer who submitted the inquiry report on 14 th May 2004. The
Petitioner submitted his written representation challenging the
findings recorded by the Inquiry officer in the inquiry report
dated 14th May 2004. The Disciplinary Authority, thereafter
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passed the order of punishment on 18th November 2004 whereby
the Petitioner was dismissed from service. The Petitioner
subjected the order of punishment of dismissal from service to
challenge before the appellate authority in a statutory appeal
which too was dismissed by means of order dated 14 th
September 2006 passed by the appellate authority. Taking
exception to these two orders viz. the order of punishment and
the order passed in appeal, the Petitioner instituted Original
Application No.153 of 2007 before the Tribunal which has been
allowed by means of the impugned order dated 25th November
2010. Hence, this petition by the Union of India.
Case as put forth by the Employees:
13. The sheet anchor of the arguments made on behalf of the
employees in these cases is that the Department, to bring home
the charges against the employees, has mainly relied on the
confessional statements made by certain accused persons during
the course of investigation of criminal case before the
Investigating Agency in respect of the charges under the
Terrorists and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as the TADA Act), which in absence of
any deposition of these accused persons before the Inquiry
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Officer during the course of disciplinary proceedings, could not
be relied upon to prove the charges against the employees.
Further contention raised on behalf of the employees is that it is
a case where there is no evidence worth the name which was
gathered during the course of disciplinary proceedings and in
absence of any evidence to prove the charges available on
record of the disciplinary proceedings, the punishment either of
dismissal from service or compulsory retirement could not have
been inflicted by the Disciplinary Authority.
14. Further submission made on behalf of the employees to
impeach the order of punishment is that mere statement of
Police Officers before whom the statements of the accused
persons in the criminal case were recorded during the course of
investigation of the criminal case do not form ground for
inflicting punishment for the reason that the accused persons in
their deposition made before the Court during the trial had
retracted their statements said to have been made by them
before the Investigating Officer(s) during the investigation.
15. It is also the case put-forth by the employees that any
confessional statement made to the Police Officer during the
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course of investigation, by the accused persons in the criminal
case could though be admissible in trial of the criminal case in
terms of the provisions contained in Section 15 of the TADA Act,
however, such confessional statement is only admissible against
the co-accused or an abettor or conspirator, if such co accused is
charged and tried in the same criminal case together with the
accused making the confessional statement. It has been argued,
thus, that so far as the disciplinary proceedings against the
employees drawn and conducted by the Department is
concerned, the employees were never either made accused in
the criminal case nor were they ever tried by the criminal Courts
together with the accused persons in the criminal case, hence, in
terms of Section 15 of the TADA Act, if such confessional
statement was not admissible in evidence in the criminal trial,
the same could not have been taken aid of to prove the charges
against the employees in the disciplinary proceedings.
16. It is further argued on behalf of the employees that in the
criminal case the Petitioner - Yashwant Balu Lotale in Writ
Petition No.11229 of 2013 was not an accused and that an
attempt was made by the accused persons in the criminal case
to arraign this employee as an accused in the criminal case by
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moving an Application under Section 319 of the Code of Criminal
Procedure (Cr.P.C.) before the trial Court, however, the said
Application was opposed by the prosecutor/State/CBI by filing a
reply thereto wherein, it was stated that there was no evidence
on the basis of which this employee could be made an accused in
criminal trial and that he, thus, could not be tried together with
other accused persons facing trial. The reply to the said
Application filed by the CBI before the learned trial Court is on
record at Page Nos.29 to 31 of Writ Petition No.11229 of 2013,
wherein it is clearly stated that there was no evidence which was
brought on record against the persons named in the Application
(which included Yashwant Balu Lotale) to conclude that they had
committed any offence. Thus, as far as Yashwant Balu Lotale is
concerned, he was never made an accused in the criminal case;
nor did he face the trial and accordingly, the submission is that
any confessional statement made during the course of
investigation of the criminal case could not have been relied
upon by the Disciplinary Authority to inflict the punishment
against him for the reason that if such confessional statement
could not be admissible in evidence in criminal trial for the
reason that Yashwant Balu Lotale was not a co-accused, placing
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reliance on such confessional statement made during the course
of investigation of the criminal case, to prove the charge in the
disciplinary proceedings is not legally permissible. It has also
been argued on behalf of the employees that as far as S. M.
Padwal, the other employee who is the Respondent in Writ
Petition No.9062 of 2013 filed by the Union of India, though he
was placed under suspension on the ground that a criminal case
against him was under investigation, however, since nothing
incriminating against him was found by the Investigating Agency
i.e. CBI, hence, no criminal prosecution was lodged against him.
The submission, thus, is that even in respect of S. M. Padwal, no
criminal trial proceeded and accordingly, the statements made
during the course of investigation of the criminal case by the
accused persons will not form any evidence to be read against
him to prove the charge in the departmental proceedings.
17. Learned Counsel representing Yashwant Lotale, the
Petitioner in Writ Petition No.11229 of 2013, has also drawn our
attention to the order of punishment of compulsory retirement
dated 31st January 2008 passed by the Disciplinary Authority,
wherein he has observed, "there is no direct evidence of CO
taking such money directly from smugglers. In the facts
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and circumstances, it is obvious that the CO was in the
know of happenings. The only point of doubt can be
whether he was an active player or a passive accomplice.
From the evidence before me I conclude that he was a
passive accomplice. Thus I agree with the report of the
IO that the charges are proved."
18. According to the learned Counsel representing Yashwant
Lotale, despite arriving at a conclusion that there was no
evidence establishing the charge of having accepted illegal
gratification from the smugglers and also despite doubting
whether this employee was an active player or passive
accomplice, the Disciplinary Authority has concluded that he was
a passive accomplice. Thus, the reasoning given by the
Disciplinary Authority is not based on any definitive conclusion
on the basis of evidence; rather it is based on conjectures and
surmises and hence, merely on account of suspicion, even in
disciplinary proceedings, an employee cannot be punished.
19. Urging the aforesaid grounds, it has thus, been argued by
the learned Counsel representing the employees that the
punishment orders passed by the Disciplinary Authority against
the employees are based on no evidence and hence while
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exercising the jurisdiction under Article 226 of the Constitution of
India, this Court can judicially review the same and set aside the
punishment orders. It is also argued that, thus, the judgment
and order dated 25th November 2010 passed by the Tribunal
which is under challenge in Writ Petition No.9062 of 2011 does
not warrant any interference by this Court, whereas, the order
dated 13th June 2013 passed by the Tribunal which is assailed in
Writ Petition No.11229 of 2013 is liable to be set aside. Learned
Counsel for the Petitioner in Writ Petition No.11229 of 2013 has
taken an additional ground for impeaching the order passed by
the Tribunal, dated 13th June 2013 by stating that the Tribunal,
after noticing the respective pleas of the parties without any
analysis worth the name, has suddenly concluded that the
disciplinary authority and the appellate authority have dealt with
all the points fairly which were raised by the employee and
hence the Original Application was dismissed without giving any
reasons therefor.
Case set-up by the Union of India:
20. Defending the orders of punishment inflicted upon the
employees in these two cases, learned Counsel representing the
Union of India has urged that the orders of punishment do not
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suffer from any illegality or irregularity so as to call for any
interference by this Court in these Writ Petitions. The
submission on behalf of the Union of India in Writ Petition
No.9062 of 2011 is that the Tribunal, while passing the
impugned order dated 25th November 2010 has completely erred
in law inasmuch as that it was not permissible for the Tribunal to
have interfered with the order of punishment for the reason that
any order passed in disciplinary proceedings can be interfered
with only if it suffers from any procedural irregularity or some
legal flaw is found in the decision making process adopted by the
Disciplinary Authority.
21. It has further been argued by the learned Counsel for the
Union of India that no illegality was committed by the
Disciplinary Authority while placing reliance the confessional
statements made by the accused persons during the course of
investigation of the criminal case under the TADA Act for the
reason that such confessional statements were recorded strictly
following the procedure for recording such statements and the
Police Officers, before whom such statements were recorded,
were examined on behalf of the Department during disciplinary
proceedings, who proved such statements.
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22. The Union of India has further pleaded that the submission
that the confessional statement made during the course of
investigation of the criminal case was inadmissible in evidence in
the departmental proceedings, is erroneous, for the reason that
Section 15 of the TADA Act or any other Rule of evidence either
emanating from the Indian Evidence Act, 1872 or the Cr.P.C.
whatsoever, has no application so far as conducting the
departmental inquiry is concerned. It has also been argued that
the strict rule of evidence for bringing home the criminal charge
against the accused persons in criminal trial, is not applicable for
the purpose of establishing charges against an employee in the
departmental proceedings; rather the charges in the domestic
inquiries are required to be proved by preponderance of
probabilities. It is, thus, the case of the Union of India that no
fault can be attributed to the Disciplinary Authority while he
relied on the confessional statement made by the accused
persons in the criminal case which was recorded during the
course of investigation.
23. Lastly; learned Counsel representing the Union of India has
also stated that on account of various mis-conducts and laxity on
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the part of the employees, the contraband goods such as
explosives and grenades etc. were allowed landing which were
used in the ill-famed Bombay blast which occurred in 1993,
causing enormous damage to human lives and property and
accordingly, it has been urged on behalf of the Union of India
that Writ Petition No.9062 of 2011 deserves to be allowed,
whereas Writ Petition No.11229 of 2013 is liable to be dismissed.
ISSUES:
24. On the basis of the pleadings available on record and the
respective submissions made by the learned Counsel for the
parties, one issue which emerges for our consideration and
decision is as to whether the confessional statements made by
accused persons during the course of investigation of a criminal
case where the employees were not tried as co-accused and the
accused persons retracted from the confessional statements in
their deposition during the course of trial, forms sufficient
evidence to bring home the charges in departmental
proceedings.
Another issue which falls for our consideration is as to
whether there is any evidence on record of the departmental
proceedings drawn and conducted against the employees in
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these cases other than the confessional statements made by
certain co-accused persons in the criminal case during the
course of investigation before the Investigating Agency/Officer,
on the basis of which the charges leveled against them can be
said to be proved or it is a case of no evidence.
ANALYSIS:
(A) Nature of evidence sufficient to prove a charge
in departmental proceedings against the
employee.
(B) Scope of judicial review under Article 226 of the
Constitution of India of the punishment order
passed in departmental proceedings.
25. By now, it is well settled that standard of proof required for
holding a person guilty in criminal charges and in an inquiry
conducted by way of a departmental proceedings is entirely
different. In a criminal case, onus of establishing the guilt is on
the prosecution and if the prosecution fails to establish the guilt
beyond reasonable doubt, the accused will be presumed to be
innocent, however, strict burden of proof required to establish
guilt in a criminal case is not required in departmental
proceedings and it is preponderance of probabilities which is
sufficient to bring home a charge in the departmental matters.
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We may, in this regard, refer to the judgment of the Hon'ble
Supreme Court in the case of State of Rajasthan and Ors. Vs.
Heem Singh1, wherein certain observations made by the
Hon'ble Supreme Court in the case of State Vs. S.
Samuthiram2 have been quoted with approval. Though Heem
Singh (supra) was a case where the question for consideration
of the Hon'ble Supreme Court was as to whether acquittal in
criminal proceedings shall affect the decision in the disciplinary
proceedings and lead to automatic reinstatement of such
employee, nevertheless, the distinction between the standard of
proof has been outlined in Heem Singh (supra) relying upon S.
Samuthiram (supra) in the following words:
"It is settled law that the strict burden of proof required to
establish guilt in criminal court is not required in disciplinary
proceedings and preponderance of probabilities is sufficient.
There may be a case where a person is acquitted for technical
reasons or the prosecution giving up other witnesses since few
of other witnesses turn hostile etc."
26. We may also refer to a latest judgment of the Hon'ble
Supreme Court in the case of Union of India & Ors. Vs. Dilip
Paul,3 wherein the nature of evidence required to prove a
charge in domestic inquiry has been underscored in paragraphs
1 (2021) 12 SCC 569
2 (2013) 1 SCC 598
3 2023 SCC OnLine SC 1423
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53, 54 and 55, which are extracted hereinbelow:
53. In the aforesaid context, we may refer to the decision of
this Court in State of Haryana v. Rattan Singh, (1977) 2 SCC
491, wherein the Court held that all material that are logically
probative to a prudent mind ought to be permissible in
disciplinary proceedings keeping in mind the principles of fair
play. The relevant observations are reproduced below:--
"4. It is well settled that in a domestic enquiry the strict
and sophisticated rules of evidence under the Indian
Evidence Act may not apply. All materials which are
logically probative for a prudent mind are permissible.
There is no allergy to hearsay evidence provided it has
reasonable nexus and credibility. It is true that
departmental authorities and administrative tribunals
must be careful in evaluating such material and should not
glibly swallow what is strictly speaking not relevant under
the Indian Evidence Act. For this proposition it is not
necessary to cite decisions nor text books, although we
have been taken through case law and other authorities
by counsel on both sides. The essence of a judicial
approach is objectivity, exclusion of extraneous materials
or considerations and observance of rules of natural
justice. Of course, fairplay is the basis and if perversity or
arbitrariness, bias or surrender of independence of
judgment vitiate the conclusions reached, such finding,
even though of a domestic tribunal, cannot be held good.
However, the courts below misdirected themselves,
perhaps, in insisting that passengers who had come in and
gone out should be chased and brought before the tribunal
before a valid finding could be recorded. The 'residuum'
rule to which counsel for the respondent referred, based
upon certain passages from American Jurisprudence does
not go to that extent nor does the passage from Halsbury
insist on such rigid requirement. The simple point is, was
there some evidence or was there no evidence -- not in
the sense of the technical rules governing regular court
proceedings but in a fair commonsense way as men of
understanding and worldly wisdom will accept. Viewed in
this way, sufficiency of evidence in proof of the finding by
a domestic tribunal is beyond scrutiny. Absence of any
evidence in support of a finding is certainly available for
the court to look into because it amounts to an error of
law apparent on the record."
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(Emphasis supplied)
54. In view of this unequivocal and clear proposition of law set
out in Rattan Singh (supra), it could be said that there was no
legal bar on the Central Complaints Committee to look into the
allegations levelled in the second complaint dated 18.09.2012.
Since strict and technical rule of evidence and procedure does
not apply to departmental enquiry the connotation "evidence"
cannot be understood in a narrow technical sense as to include
only that evidence adduced in a regular court of law when a
person is examined as a witness by administering oath. There
should not be any allergy to "hearsay evidence" provided it has
reasonable nexus and credibility.
55. In our judgment, the correct principle of law is found in the
following observations of Diplock, J. in Regina v. Deputy Indus-
trial Injuries Commissioner, Ex parte Moore, [1965] 1 Q.B. 456.
"These technical rules of evidence, however, form no part
of the rules of natural justice. The requirement that a
person exercising quasi-judicial functions must base his
decision on evidence means no more than it must be
based upon material which tends logically to show the
existence or non-existence of facts relevant to the issue to
be determined, or to show the likelihood or unlikelihood of
the occurrence of some future event the occurrence of
which would be relevant. It means that he must not spin a
coin or consult an astrologer, but that he must take into
account any material which, as a matter of reason, has
some probative value. If it is capable of having any
probative value, the weight to be attached to it is a matter
for the person to whom Parliament has entrusted the
responsibility of deciding the issue. The supervisory
jurisdiction of the High Court does not entitle it to usurp
this responsibility and to substitute its own view for his."
(Emphasis supplied)
27. It is true that in disciplinary proceedings, the strict and
sophisticated rules of evidence under the Indian Evidence Act
may not apply and the materials which are logically probative for
a prudent mind is permissible to be taken aid of to bring home
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the charge in domestic inquiries and in a case where charges in
the disciplinary proceedings are proved on the basis of
preponderance of probabilities, interference of this Court will not
be warranted, however, there are certain circumstances in which
this Court, in exercise of its power of judicial review under Article
226 of the Constitution of India, can interfere with the order of
punishment awarded in departmental inquiries. One such
situation where order of punishment awarded in departmental
proceedings can be interfered with by this Court in a petition
under Article 226 of the Constitution of India, is where there is
no evidence to establish the guilt of an employee. Apart from
this, in certain other circumstances as well the order of
punishment awarded in disciplinary proceedings can be judicially
reviewed. The Court may interfere where the proceedings
against the delinquent officer are found to have been held in a
manner inconsistent to the rules of natural justice or in violation
of statutory rules prescribed for the mode of inquiry or where
the conclusion or finding reached by the Disciplinary Authority is
based on no evidence. We may further note that the Court may
also interfere in such matters if the conclusion or the finding is
such that no reasonable person would have ever reached.
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Interference is also permissible when findings are clearly
perverse and the test to determine perversity in such matters is
to see whether the authority concerned acting reasonably could
have arrived at such conclusion or finding on the basis of
material on record. We may, at this juncture, refer to the
judgment of the Hon'ble Supreme Court in the case of United
Bank of India Vs. Biswanath Bhattacharjee4. Paragraphs 17,
18, 19 and 20 thereof are apposite to quote, which are as under:
17. In one of the earliest decisions of Union of India
v. H.C. Goel [Union of India v. H.C. Goel, 1963 SCC
OnLine SC 16 : (1964) 4 SCR 718 : AIR 1964 SC
364] relating to departmental proceedings, this
Court observed that where a public servant is
punished for misconduct after a departmental
enquiry is conducted, a clear case where
interference under Article 226 of the Constitution is
warranted is when there is no evidence to establish
the official's guilt : (AIR pp. 369-70, paras 22-23)
"22. ... The two infirmities are separate and distinct
though, conceivably, in some cases both may be present.
There may be cases of no evidence even where the
Government is acting bona fide; the said infirmity may
also exist where the Government is acting mala fide and in
that case, the conclusion of the Government not
supported by any evidence may be the result of mala fides
but that does not mean that if it is proved that there is no
evidence to support the conclusion of the Government, a
writ of certiorari will not issue without further proof of
mala fides. That is why we are not prepared to accept the
learned Attorney General's argument that since no mala
fides are alleged against the appellant in the present case,
4 (2022) 13 SCC 329
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no writ of certiorari can be issued in favour of the
respondent.
23. That takes us to the merits of the respondent's
contention that the conclusion of the appellant that the
third charge framed against the respondent had been
proved, is based on no evidence. The learned Attorney
General has stressed before us that in dealing with this
question, we ought to bear in mind the fact that the
appellant is acting with the determination to root out
corruption, and so, if it is shown that the view taken by
the appellant is a reasonably possible view this Court
should not sit in appeal over that decision and seek to
decide whether this Court would have taken the same
view or not. This contention is no doubt absolutely sound.
The only test which we can legitimately apply in dealing
with this part of the respondent's case is, is there any
evidence on which a finding can be made against the
respondent that Charge 3 was proved against him? In
exercising its jurisdiction under Article 226 on such a plea,
the High Court cannot consider the question about the
sufficiency or adequacy of evidence in support of a
particular conclusion. That is a matter which is within the
competence of the authority which deals with the
question; but the High Court can and must enquire
whether there is any evidence at all in support of the
impugned conclusion. In other words, if the whole of the
evidence led in the enquiry is accepted as true, does the
conclusion follow that the charge in question is proved
against the respondent? This approach will avoid weighing
the evidence. It will take the evidence as it stands and
only examine whether on that evidence legally the
impugned conclusion follows or not. Applying this test, we
are inclined to hold that the respondent's grievance is well
founded, because, in our opinion, the finding which is
implicit in the appellant's order dismissing the respondent
that Charge 3 is proved against him is based on no
evidence."
18. Apart from cases of "no evidence", this Court has also
indicated that judicial review can be resorted to. However, the
scope of judicial review in such cases is limited [T.N.C.S. Corpn.
Ltd. v. K. Meerabai, (2006) 2 SCC 255 : 2006 SCC (L&S) 265] .
In B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of
India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] a three-Judge
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Bench of this Court ruled that judicial review is not an appeal
from a decision but a review of the manner in which the
decision is made. It is meant to ensure that the individual
receives fair treatment and not to ensure that the conclusion
which the authority reaches is necessarily correct in the eyes of
the court. The court/tribunal in its power of judicial review does
not act as an appellate authority; it does not reappreciate the
evidence. The Court held that : (B.C. Chaturvedi case [B.C.
Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC
(L&S) 80] , SCC pp. 759-60, paras 12-13)
"12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power
of judicial review is meant to ensure that the individual
receives fair treatment and not to ensure that the
conclusion which the authority reaches is necessarily
correct in the eye of the court. When an enquiry is
conducted on charges of misconduct by a public servant,
the Court/Tribunal is concerned to determine whether the
enquiry was held by a competent officer or whether rules
of natural justice are complied with. Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold enquiry has jurisdiction,
power and authority to reach a finding of fact or
conclusion. But that finding must be based on some
evidence. Neither the technical rules of the Evidence Act
nor of proof of fact or evidence as defined therein, apply
to disciplinary proceeding. When the authority accepts
that evidence and conclusion receives support therefrom,
the disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does not act
as appellate authority to reappreciate the evidence and to
arrive at its own independent findings on the evidence.
The Court/Tribunal may interfere where the authority held
the proceedings against the delinquent officer in a manner
inconsistent with the rules of natural justice or in violation
of statutory rules prescribing the mode of enquiry or
where the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have ever
reached, the Court/Tribunal may interfere with the
conclusion or the finding, and mould the relief so as to
make it appropriate to the facts of each case.
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13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has co
extensive power to reappreciate the evidence or the
nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence are
not relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel [Union of
India v. H.C. Goel, 1963 SCC OnLine SC 16 : (1964) 4
SCR 718 : AIR 1964 SC 364] , this Court held at p. 728
that if the conclusion, upon consideration of the evidence
reached by the disciplinary authority, is perverse or suffers
from patent error on the face of the record or based on no
evidence at all, a writ of certiorari could be issued."
19. Other decisions have ruled that being a proceeding before
a domestic tribunal, strict rules of evidence, or adherence to the
provisions of the Evidence Act, 1872 are inessential. However,
the procedure has to be fair and reasonable, and the charged
employee has to be given reasonable opportunity to defend
himself (ref : Bank of India v. Degala Suryanarayana [Bank of
India v. Degala Suryanarayana, (1999) 5 SCC 762 : 1999 SCC
(L&S) 1036] a decision followed later in Punjab & Sind Bank v.
Daya Singh [Punjab & Sind Bank v. Daya Singh, (2010) 11 SCC
233 : (2010) 2 SCC (L&S) 758] ). In Moni Shankar v. Union of
India [Moni Shankar v. Union of India, (2008) 3 SCC 484 :
(2008) 1 SCC (L&S) 819] this Court outlined what judicial
review entails in respect of orders made by the disciplinary
authorities : (Moni Shankar case [Moni Shankar v. Union of
India, (2008) 3 SCC 484 : (2008) 1 SCC (L&S) 819] , SCC p.
492, para 17)
"17. 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 courts
exercising power of judicial review 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
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
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be correct in its entirety, meet the requirements of burden
of proof, namely, preponderance of probability. If on such
evidence, the test of the doctrine of proportionality has
not been satisfied, the Tribunal was within its domain to
interfere."
20. This Court struck a similar note, in State Bank of Bikaner
& Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner & Jaipur
v. Nemi Chand Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC
(L&S) 721] , where it was observed that : (SCC p. 587, para 7)
"7. ... If the enquiry has been fairly and properly held and
the findings are based on evidence, the question of
adequacy of the evidence or the reliable nature of the
evidence will not be grounds for interfering with the
findings in departmental enquiries. Therefore, courts will
not interfere with findings of fact recorded in departmental
enquiries, except where such findings are based on no
evidence or where they are clearly perverse. The test to
find out perversity is to see whether a tribunal acting
reasonably could have arrived at such conclusion or
finding, on the material on record."
28. It is also equally well settled that mere suspicion even in
the matter of departmental proceedings cannot be allowed to
take the place of proof and that the Disciplinary Authority should
arrive at its conclusion of guilt of the employee concerned on the
basis of some evidence with some degree of definiteness
establishing the guilt of delinquent for which he is charged.
29. It is also to be seen that departmental proceedings are
quasi-judicial in nature and though the provisions of the
Evidence Act are not applicable strictly in such proceedings,
however, broadly speaking, there are two safeguards while
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conducting departmental proceedings against the charged
employee which are to be borne in mind by the Courts and these
safeguards are; (i) that principles of natural justice are complied
with, and (ii) the Courts exercising powers of judicial review are
entitled to consider as to whether while inferring misconduct on
the part of the charged officer, relevant piece of evidence has
been taken into consideration and irrelevant facts have been
excluded therefrom and further that inference in such matter on
facts must be based on evidence which meets the requirements
of legal principles. In Heem Singh (supra), the Hon'ble
Supreme Court in paragraph 34 has observed as under:
34. We have to now assess as to whether in arriving at its
findings the High Court has transgressed the limitations on its
power of judicial review. In Moni Shankar v. Union of India
[Moni Shankar v. Union of India, (2008) 3 SCC 484 : (2008) 1
SCC (L&S) 819] , a two-Judge Bench of this Court had to assess
whether the Central Administrative Tribunal had exceeded its
power of judicial review by overturning the findings of a
departmental enquiry by reappreciating the evidence. In regard
to the scope of judicial review, the Court held thus : (SCC p.
492, para 17)
"17. 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 courts
exercising power of judicial review 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
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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
evidence, the test of 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 [State of U.P. v. Sheo Shanker Lal Srivastava,
(2006) 3 SCC 276 : 2006 SCC (L&S) 521] and Coimbatore
District Central Coop. Bank v. Employees Assn.
[Coimbatore District Central Coop. Bank v. Employees
Assn., (2007) 4 SCC 669."
(emphasis supplied)
30. The Apex Court in Heem Singh (supra) has further
observed that there are two facets of judicial review in
departmental matters. First is the rule of restraint and the
second is when interference is permissible. It has further been
observed that the determination of whether a misconduct was
committed lies primarily within the domain of the employer and
the Courts cannot be permitted to assume the mantle of the
Disciplinary Authority, nor does the Judge wear the hat of an
employer. Further observation made in the Heem Singh
(supra) is that the Disciplinary Authorities are required to follow
the rules of natural justice, however, the strict rules of evidence
which apply to the judicial proceedings are not applied in
departmental inquiries and that the standard of proof is not the
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strict standard governing a criminal trial i.e. of proof beyond
reasonable doubt but standard is governed by the
preponderance of probabilities.
31. Hon'ble Supreme Court, in the said case, has further
observed that the other end of the spectrum is the principle that
the Court has jurisdiction to interfere when the findings in the
domestic inquiry are based on no evidence or where such
findings suffer from perversity and that failure to consider vital
evidence amounts to perverse determination of fact. It is also
observed by the Hon'ble Supreme Court that service
jurisprudence recognizes proportionality as a legal principle in
allowing the authority of the Court to interfere when the finding
or the penalty are disproportionate to the weight of evidence or
misconduct. It has also been observed that though the law does
not permit the Court to reappreciate the evidence / findings in
departmental inquiries or to substitute the view which appears to
the Court to be more appropriate, however, it is to be seen that
the finding in departmental inquiries is based on some evidence
to satisfy the conscious of the Court that there is some evidence
to support the charge of misconduct and to guard against
perversity. Paragraph 37 of the judgment in Heem Singh
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(supra) summarizes the scope and nature of judicial review
permissible by a Court in departmental matters which is
extracted hereunder:
"37. In exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review. This
is for a valid reason. The determination of whether a misconduct
has been committed lies primarily within the domain of the
disciplinary authority. The Judge does not assume the mantle of
the disciplinary authority. Nor does the Judge wear the hat of an
employer. Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the employer who
is responsible for the efficient conduct of their service.
Disciplinary enquiries have to abide by the rules of natural
justice. But they are not governed by strict rules of evidence
which apply to judicial proceedings. The standard of proof is
hence not the strict standard which governs a criminal trial, of
proof beyond reasonable doubt, but a civil standard governed by
a preponderance of probabilities. Within the rule of
preponderance, there are varying approaches based on context
and subject. The first end of the spectrum is founded on
deference and autonomy -- deference to the position of the
disciplinary authority as a fact-finding authority and autonomy
of the employer in maintaining discipline and efficiency of the
service. At the other end of the spectrum is the principle that
the court has the jurisdiction to interfere when the findings in
the enquiry are based on no evidence or when they suffer from
perversity. A failure to consider vital evidence is an incident of
what the law regards as a perverse determination of fact.
Proportionality is an entrenched feature of our jurisprudence.
Service jurisprudence has recognised it for long years in
allowing for the authority of the court to interfere when the
finding or the penalty are disproportionate to the weight of the
evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which have
been termed as the two ends of the spectrum. Judges do not
rest with a mere recitation of the hands-off mantra when they
exercise judicial review. To determine whether the finding in a
disciplinary enquiry is based on some evidence an initial or
threshold level of scrutiny is undertaken. That is to satisfy the
conscience of the court that there is some evidence to support
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the charge of misconduct and to guard against perversity. But
this does not allow the court to reappreciate evidentiary findings
in a disciplinary enquiry or to substitute a view which appears to
the Judge to be more appropriate. To do so would offend the
first principle which has been outlined above. The ultimate guide
is the exercise of robust common sense without which the
Judges' craft is in vain."
32. From the aforesaid discussion, we conclude that the power
of judicial review of this Court under Article 226 of the
Constitution of India in departmental matters, though, is not an
appellate jurisdiction so as to reappreciate the evidence or
substitute its own findings to the findings recorded by the
Disciplinary Authority, however, interference in such matter is
very well permissible by the Courts in case the findings of the
Disciplinary Authority are based on no evidence or on evidence
which can not be relied upon for want of probative value or the
same are perverse or there have been violation of principles of
natural justice or statutory prescription relating to conduct of
inquiry. The Court has also the jurisdiction to interfere in
departmental proceedings when the Disciplinary Authority
appears to have failed to consider the vital evidence. The
principle of proportionality is also recognized which is available
to the Courts while judicially reviewing the departmental matters
and interference is also permissible when the findings or the
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penalty imposed are disproportionate with the weight of
evidence or misconduct.
We also conclude that the strict rule of evidence as per the
Evidence Act which is applicable to bring home a criminal charge
in a criminal trial i.e. proof of guilt beyond reasonable doubt is
not applicable to the departmental proceedings and the charge in
department proceedings has to be proved on preponderance of
probabilities, however, if there is a case of no evidence or
perversity in findings or the findings arrived at by the
Disciplinary Authority are such which is difficult for a person of
common prudence to arrive at, interference in departmental
matters is permissible by the Courts or Tribunals.
DISCUSSION AND CONCLUSION:
33. We shall now proceed to consider the findings recorded by
the Disciplinary Authority against the employees qua the
evidence available on record of disciplinary proceedings to prove
the charge in the light of the afore-discussed principles of law. If
we find that it is a case of no evidence or that the findings in the
departmental proceedings against the employees are perverse in
the sense that no person of common prudence would have
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arrived at the same, the order of punishment will be difficult to
be sustained. However, before undertaking the said exercise, we
may also reflect upon the evidentiary value in departmental
proceedings of confessional statements made by accused in
criminal case before the Investigating Officer during the course
of investigation where the employee against whom the
departmental proceedings are drawn is not an accused. In both
the departmental proceedings which are subject matter of these
Writ Petitions, admittedly, the employees were not tried as
accused persons in the criminal case, where the CBI had
investigated and prosecuted certain departmental officers as also
private individuals. It is also not in dispute rather it is even
otherwise abundantly clear from a perusal of the record available
before us that both, the Inquiry Officer as also the Disciplinary
Authority have heavily relied upon the confessional statements
made by the accused persons during the course of the criminal
case before the Investigating Officers. As to whether such
confessional statements can be made basis for bringing home
the charge in the departmental proceedings is, thus, an issue
which assumes relevance for deciding these Writ Petitions.
34. It is not in dispute that a criminal case was registered and
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investigated in relation to the blasts which shook the city of
Bombay in the year 1993. One of the employees herein viz.
S.M.Padwal was though suspended initially on account of his
alleged involvement in the criminal case, however, on
investigation by the CBI, since no incriminating material was
found against him, he was not tried in the criminal case and
even the suspension was revoked subsequently. As far as the
other employee viz. Yashwant Balu Lotale is concerned he was
not an accused in the criminal case at all. Thus, both the
employees in the instant case did not face any criminal trial.
35. For a moment, keeping aside the nature of evidence
required to prove the guilt of an employee in departmental
proceedings, we shall discuss the evidentiary value of
confessional statement made before the Investigating Agency /
Officer during the course of investigation of a criminal case.
36. Section 161 of the Cr.P.C. empowers an Investigating
Officer to examine orally any person supposed to be acquainted
with the facts and circumstances of the case being investigated
by such Investigating Officer/Agency. The Police Officer
recording statement under Section 161 of the Cr.P.C. is also
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required to reduce the statement into writing made to him in the
course of investigation.
37. Section 162 of the Cr.P.C., however, clearly provides that no
statement made by any person before Police Officer in the
course of an investigation, shall be signed by the person making
it. Section 162 further provides that any such statement cannot
be used for any purpose at any inquiry or trial except that such a
statement may be used by the accused to contradict such
witness and also by prosecution with the permission of the
Court, to contradict a witness. Thus, the statements made
during the course of investigation under Section 161 can be used
only for contradiction during the course of trial, however, the
same cannot be used for any other purpose at any inquiry or
trial as mandated by Section 162 of the Cr.P.C. In other words
statement recorded under Section 161 of Cr.P.C. is not
admissible in evidence in criminal trial.
38. Certain provisions of Indian Evidence Act may also be
noted though only in the context of evidence required to be
adduced during the course of trial and not in the departmental
proceedings. Section 25 of the Indian Evidence Act provides
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that a confession made to a Police officer shall not be proved
against a person accused of any offence. Section 26 provides
that no confession made by any person whilst he is in custody of
a Police Officer shall be proved against such person unless it is
made in immediate presence of a Magistrate. Section 27 of the
Evidence Act, however, carves an exception to the principle of
evidence available in Section 26, that too, to a limited extent.
According to this provision when any fact is deposed to as
discovered in consequence of information received from a person
accused of any offence who is in the custody of a police officer,
only that much of such information, which relates to the fact
discovered, may be proved. Meaning thereby, a fact so
discovered may be proved even if deposition is made in the
custody of a Police Officer.
39. Thus, the legal principle which emerges as per cumulative
reading of Sections 25 and 26 of the Indian Evidence Act and
Sections 161 and 162 of the Cr.P.C. is that any statement made
before a Police Officer cannot be proved during the course of a
criminal trial and accordingly no confession made by any person
in custody of Police Officer shall be proved against such person.
The statement recorded under Section 161 of the Cr.P.C. can,
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during the course of trial, be used only for the purpose of
contradiction.
40. Since in the instant matters, the Disciplinary Authority has
relied upon the confessional statement made during the course
of investigation by the Investigating Officer of a criminal case
pertaining to TADA, we may also note Section 15 of the TADA
Act which carves an exception to the provisions of the Indian
Evidence Act and the Cr.P.C., however, the exception is
circumscribed by certain conditions. According to Section 15 of
the TADA Act, a confession made by a person before a Police
Officer not below the rank of a Superintendent of Police and
recorded by such Police Officer, shall be admissible in trial of
such person or co-accused, abettor or conspirator for an offence
under the TADA Act. However, so far as the admissibility of
confessional statement under Section 15 of the TADA Act against
co-accused or abettor or conspirator is concerned, the proviso
appended to Section 15 needs to be noticed, according to which,
for such confessional statement to be admissible against co-
accused, such co-accused should be charged and tried in the
same case together with the accused whose confessional
statement is relied upon as an evidence against co-accused.
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41. Accordingly, even in a criminal trial, confessional statement
made before the Investigating Officer is admissible as evidence
against co-accused only in a situation where the co-accused is
charged and tried in the same case along with the accused. In
other words, confessional statement made by an accused during
the course of investigation of a criminal case concerning
offence(s) under TADA will not be admissible in evidence against
a co-accused if the co-accused is not charged in the same case
or if he is not tried in the same case, that too, together with the
accused whose statement is sought to be relied upon against the
co-accused.
42. Thus, if in a criminal trial, the confessional statement made
by an accused is not admissible in evidence against co-accused,
where co-accused is not charged or not tried in the same case
together with the accused, in our opinion, the question of
admissibility of such confessional statement in departmental
proceedings where the charged employee is not an accused in
the criminal case, does not arise at all, especially when in the
departmental proceedings accused in the criminal case has not
been examined and he later, during the course of criminal trial,
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retracts or resiles from his confessional statement.
43. Analyzing the evidence available on record of the
disciplinary proceedings, we find that the department has relied
upon the confessional statements made by four accused persons
during the course of investigation of criminal case and these
accused persons are (i) Uttam Potdar (smuggler) (ii) Mohd.
Sultan Sayyed, Superintendent, Customs Officer (iii) R. K. Singh,
Assistant Commissioner and (iv) Dawood M. Phanse (smuggler).
These persons were not examined during the course of
departmental proceedings; rather, to prove the confessional
statement Police Officers were examined. Smt.Meeran Chadha
Borwankar, Superintendent of Police was examined before the
Inquiry Officer as witness in the departmental proceedings. This
witness in the departmental proceedings has only stated she had
recorded the confessional statement of Uttam Potdar during the
course of investigation of the criminal case conducted by her and
that the confessional statement was made by Uttam Potdar
without any duress.
44. Similarly, so far as the confessional statement made by
Dawood M. Phanse during the course of investigation of the
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criminal case is concerned, he was never examined during the
course of departmental inquiry; rather to prove that such a
confessional statement was made during the course of criminal
proceedings, one Mr. K. L. Bishnoi, Dy. Commissioner of Police
was examined before the Inquiry officer as a witness in the
departmental proceedings who stated that he recorded the
statement of confessional statement of Dawood M. Phanse which
was made by him without any duress during the course of
investigation of the criminal case.
45. In respect of the confessional statement made by Mohd.
Sultan Sayeed, the Superintendent of Customs, it is to be seen
that Mohd. Sultan Sayeed was never examined during the course
of departmental proceedings; rather one Shri C. Prabhakar,
Superintendent of Police was examined as witness during the
course of departmental proceedings who stated that Mohd.
Sultan Sayeed made the confessional statement before him in
the investigation of the criminal case without any duress
however, it is to be noticed that Mohd. Sultan Sayeed retracted
from his confessional statement in the criminal case and that he
was never examined in the departmental proceedings. As
observed above, the confessional statement of another accused
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in the criminal case, Shri R. K. Singh, Assistant Collector
Customs has also been relied upon by the Disciplinary Authority
but he was never examined as a witness and in respect of his
confessional statement, one Shri T. S. Bhal, Superintendent of
Police made a deposition during the course of the departmental
proceedings that he had recorded confessional statement of R.
K. Singh without any duress during the course of investigation of
the criminal case. One also notices that R. K. Singh, accused in
the criminal case also retracted from his confessional statement
during the course of trial of the criminal case.
46. Thus, what we find is that the confessional statements
made by Uttam Potdar, Mohd. Sultan Sayyed, R. K Singh and
Dawood M. Phanse during the course of investigation of the
criminal case have been relied upon to bring home the charges
against the employees in the departmental proceedings,
however, as observed above such statements cannot be the
basis of proving the charge in departmental proceedings for two
reasons. Firstly, because these persons were not the witnesses
of the charge against the employees in the departmental
proceedings; rather they had allegedly made confessional
statements in respect of the charge in the criminal case. It may
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also be noticed that the employees were never tried in the
criminal case along with these persons and, as concluded by us
above, since such a confessional statement cannot be relied
upon even against the co-accused in the criminal case if the co-
accused persons are not tried in the same criminal case, the
question of placing reliance on such confessional statements in
the departmental proceedings against the employees does not
arise at all.
47. As regards the evidence of the Police Officers deposed by
them during the course of departmental proceedings, one may
only observe that these Police Officers are not the witnesses of
the charge on the basis of which the employees are said to have
been found guilty of misconduct in the departmental
proceedings; rather they are the witnesses of the fact that they
had allegedly recorded the confessional statements of the
accused persons during the course of investigation of the
criminal case. Accordingly, the depositions made by the Police
Officers during the course of departmental proceedings, in our
opinion, do not assume character of evidence sufficient for
bringing home the charge against the employees in the
departmental proceedings. We are of the considered opinion
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that what could be said to have been proved on the basis of the
statement of the Police Officers made by them in the
departmental proceedings is the fact that they had recorded the
confessional statements of the accused persons during the
course of investigation of the criminal case and such evidence
cannot be relied upon to prove the charge against the employees
in the departmental proceedings for the reason that these
witnesses were not the witnesses of the charge in the
departmental proceedings.
48. The punishment order dated 31st January 2008 passed
against the employee - Yashwant Balu Lotale shows that the
evidence which has been relied upon for proving the charge
against this employee as is available on record are (i) statement
of Uttam Potdar (ii) statement of Mohd. Sultan Sayyed (iii)
statement of R. K. Singh (iv) Dawood M. Phanse (v) statement
of wife of Uttam Potdar, and (vi) statement of Salim Mirah
Shaikh. So far as the statements of Uttam Potdar, Mohd.
Sayyed, R. K. Singh and Dawood Phanse are concerned these
are the confessional statements made by them before the
Investigating Officer during the course of the criminal case.
These witnesses are not the witnesses of charge against the
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employees in the departmental proceedings; rather they had
only made confessional statements during the course of
investigation of the criminal case. These persons were also not
examined during the course of departmental proceedings. As
already discussed above, merely because some of the Police
Officers, who recorded these confessional statements, were
examined during the course of the departmental proceedings, it
cannot be said that such confessional statements can be read in
evidence for proving the charge against the employees in the
departmental proceedings. The reason as to why these
confessional statements do not assume character of evidence in
the departmental proceedings has already been discussed above.
49. As far as the statement of wife of Shri Uttam Potdar is
concerned, the Disciplinary Authority himself has stated in the
order of punishment that this statement was not being relied
upon. In respect of the statement made by Salim Mirah Shaikh
also the disciplinary authority has clearly recorded that since
said statement was not marked in the disciplinary proceedings,
the same was also not relied upon.
50. Apart from the aforesaid evidence, the only other evidence
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which was produced during disciplinary proceedings is the alert
circular of the Commissioner of Customs dated 25 th January
1993. Existence of the said alert circular on the record of the
disciplinary proceedings only establishes that such circular was
issued. The Disciplinary Authority himself has recorded in the
order of punishment that this circular is not relevant to prove
any commission of mischief by the employee; rather it is
relevant only to prove his omission to do his duty in spite of
specific alert. There is no other evidence on record of the
disciplinary proceedings other than what has been discussed
above. We have already concluded that on the basis of the
alleged evidence available on record as discussed above, the
charge against the employees did not stand proved and
accordingly, from the over-all view of the evidence available on
record of the disciplinary proceedings, our indefeasible
conclusion is that it is a case where there was no evidence at all
and accordingly, the conclusion arrived at by the Disciplinary
Authority while passing the punishment orders is erroneous.
51. The legal principle relating to judicial review of the
disciplinary action has already been discussed above. The
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principle that any punishment order passed in disciplinary
proceedings can be subjected to judicial review in a case where
the punishment order is based on no evidence, is already well
established. From these discussions, it is apparent and well
established that it is a case where despite existence of no
evidence to prove the charge in the departmental proceedings,
the employees have been punished by the Disciplinary Authority.
The evidence available on record is only the confessional
statements made by the accused persons during the course of
investigation of the criminal case which, for the reasons already
stated above, in our opinion, could not be made basis of
inflicting the punishment upon the employees in this case. In
absence of any evidence, it is not even a case where guilt of the
employees in the departmental proceedings can be said to have
been proved even on preponderance of probabilities.
52. For the reasons stated above, we have no hesitation to
hold that the Tribunal, while passing the impugned judgment and
order dated 13th June 2013 in Original Application No.465 of
2010 was in error in dismissing the said Original Application. We
are also inclined to hold for the reasons given and discussions
made above that the other judgment and order dated 25 th
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November 2010 passed by the Tribunal in Original Application
No.153 of 2007 does not suffer from any illegality so as to call
for any interference by us in this matter.
53. Resultantly, Writ Petition No.11229 of 2013 is hereby
allowed and the order dated 13th June 2013 passed by the
Tribunal in Original Application No.465 of 2010 is hereby set
aside. The order of punishment dated 31 st January 2008 and the
appellate order dated 12th April 2010 are also hereby quashed.
Writ Petition No.9062 of 2011 filed by the Union of India is
liable to be dismissed, which is hereby dismissed.
54. Consequences to follow.
55. The employees viz. S. M. Padwal and Yashwant Balu Lotale
shall be entitled to all consequential benefits such as arrears of
salary and pension etc. which shall be made available to them
within a period of two months from today.
56. There will be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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