Union Of India (Uoi) vs Murli Manohar Singh And Anr.
2004 Latest Caselaw 1340 Del

JUDGMENT

B.A. Khan, J.

1. Petitioner (Union) assails Tribunal order dated 8.3.2002 allowing respondent's OA No. 2566/2001 and quashing the order of punishment dated 11.4.2001 passed by the disciplinary authority awarding a penalty of reduction of his pay by two stages in the time scale of pay for two years with a further direction that he would not earn any increment of pay during this period.

2. Respondent was working as Assistant Director in the Directorate of Estates at the relevant time and has since retired from service. It was way back on 25.6.1988 that a surprise inspection was conducted of his official desk in association with CBI and 33 receipts (applications) were found pending for three weeks to two months awaiting his decision. More than eight years later he was charged of failure to attend to these receipts/applications for malafide considerations and of failure to maintain absolute integrity and devotion to duty under Rule 3(1) of CCS (Conduct) Rules. An inquiry was held against him in which he was exonerated of the charge of malafides but found guilty of the delay caused in processing the receipts. He challenged the charge sheet in an OA which was disposed of by Tribunal directing petitioner to take a decision on this. The disciplinary authority then processed his case and disagreeing with the findings of the inquiry officer recorded:-

"a) The inquiry officer has found that CO has to accept responsibility of delaying a large number of receipts, some of which were of urgent nature and that he has not been able to explain the delay satisfactorily.

b) Considering the nature of the receipts and the period of delay the inference of malafide is obvious, especially from the fact that the officer could not give before the inquiry officer a satisfactory explanation for the delay on his part."

3. The disagreement note was communicated to respondent who contested it and claimed that the charge against him was not substantiated by any evidence. The opinion of the UPSC was sought. The UPSC found the charge of malafide unsustainable but recommended award of minor punishment of censure to respondent. The disciplinary authority all the same over-ruled this and passed the punishment order dated 11.4.2001 reducing respondent's pay by two stages in the time scale for two years along with doing away with his annual increment for this period.

4. Respondent again challenged this order before the Tribunal on the following grounds:- (i) that the charge of malafide was not established against him by any positive evidence; (ii) that the punishment was awarded to him after 12/13 years delay from the date of alleged incident and in contravention of the advice of UPSC and that of CVC; and (iii) that undue delay in disposal of his case was violative of the directions of the CVC.

5. Petitioner opposed all this on the plea that malafides of respondent could be inferred given the subject matter involving individuals and their urgent needs and also unexplainable delay in taking action on the receipts despite directions of superior authorities. Even the UPSC had found him guilty of causing delay in attending to the receipts of sensitive nature which were endorsed by the higher officers and Members of Parliament.

6. The Tribunal, however, rejected the stand of the petitioner and quashed the punishment awarded to respondent holding:-

"I have carefully considered the material placed on record and the order passed by the disciplinary authority. Malafide, in my judgment, can never be established by inference. It has to be established by positive evidence. The disciplinary authority has not placed reliance on positive evidence in support of the conclusion reached by him as regards the allegation of malafide. No such material was available before the inquiry authority either. The UPSC has also held that the charge of malafide cannot be proved. The inquiry authority has also ruled out the possibility of malafide as per his observation reproduced in para 8 above. In order to sustain the charge of malafide, the respondent could have examined the persons connected with the aforesaid receipts so as to ascertain from them whether the applicant was actually engaged in exploiting them with an ulterior motive. No such attempt has been made by the respondent in this case. The charge of malafide cannot, therefore, be sustained. Inasmuch as the said charge of malafide is at the core of the allegations made against the applicant, the order passed by the disciplinary authority stands vitiated.

The applicant had asked for the production of the diary register to establish his contention that the delay in the disposal of the receipts in question had taken place on account of excessive work load and partly also due to the practice of working prevalent in the section concerned. Certain other documents were also required by the applicant to bring home his contention of excessive work load. These too were not supplied. The applicant had produced three defense witnesses mainly in support of his contention that the aforesaid working practices of his section inevitably led to delays which remained in the knowledge of the higher officers. The evidence given by these witnesses has not been analysed by the inquiry authority, who has thus arrived at his conclusion in regard to delay without any basis. For the same reason, the charge relating to non-diarising of the receipts also cannot be sustained.

In conclusion, therefore, I hold that the disciplinary authority has failed to apply his mind properly and judiciously and has proceeded to impose the penalty in question on the applicant even though proper evidence was not available. The proceedings have been grossly delayed and this too was without any justification. Such abnormal delays most generally cause prejudice to the cases of charged officers. In the present case, the delay of 13 long years has, without any doubt, caused a serious prejudice to his defense as reflected in the facts and circumstances revealed in the OA and referred to in the preceding paragraphs."

7. Petitioner questions this order primarily on the ground that Tribunal had exceeded its jurisdiction by re-appreciating the evidence before the inquiry officer and the disciplinary authority; that it had failed to appreciate that charges at the domestic inquiry are proved on the preponderance of probability and direct evidence to prove malafides was not required; that it had gone into the correctness of charges and that it had failed to appreciate that the scope of domestic inquiry was different than that of a criminal trial in which the charge was required to be proved beyond doubt and in which only preponderance of probabilities was required to be considered on the material on record for reaching the conclusion whether the delinquent had committed misconduct.

8. Had the Tribunal over-stepped its jurisdiction by re-appraising and re-appreciating the evidence before the inquiry officer or the disciplinary authority and had it taken any erroneous view on the issue of malafides is the question.

9. It is true that the scope of judicial review in cases of domestic inquiry is limited and that a court or a Tribunal is not competent to undertake any re-appraisal or re-appreciation of the evidence before the inquiry officer or the disciplinary authority so as to upset their findings and to reach a contrary conclusion. But at the same time, it is well settled that judicial review extends to upsetting the perverse findings which are unsupported by any evidence and the court or Tribunal enjoys the power to interfere where the inquiry proceedings are conducted against the delinquent in violation of the rules of natural justice or the statutory rules prescribing the mode of inquiry.

10. The scope of judicial review in a domestic inquiry has been the subject matter of several Supreme Court judgments and it should suffice to quote from its judgment in B.C. Chaturvedi v. Union holding:-

"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 inquiry 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 findings and mould the relief so as to make it appropriate to the facts of each case."

11. It is within these parameters that the Tribunal judgment requires to be examined and it does not appear to us that it suggests any crossing of the boundaries by the Tribunal by re-appreciating any evidence before the inquiry officer or the disciplinary authority. All it had done was to hold that the charge of malafide could not be inferred against the delinquent/respondent in the facts and circumstances of the case and that it was required to be established by some direct evidence, which indeed was in consonance with the settled position on the issue.

12. It is a trite that the charge of malafides was to be established by a positive evidence and that it could not succeed on the mere ipsi dixit or an inference. Going by its ordinary meaning, malafide is a disposition which implies injury to another without cause from any spirit of revenge or from personal gratification. It is a state of mind, as observed by the Supreme Court in various judgments which prompts a conscious violation of law to the prejudice of another that an intent to do harm out of revenge or enmity. The burden of proving it is also very heavy on the person who alleges it and the following observations of the Supreme court judgment in Barium Chemicals Ltd. v. Company Law Board would be instructive:-

"The allegations of malafide are often more easily made than proved and the very seriousness of such an allegation demands proof of a high order of credibility. Suspicion, however grave, can't substitute the evidence. An allegation of malafide, an indirect motive or purpose can't be held established except on a clear proof thereof."

13. Could the plea of malafides succeed on the mere probabilities was also settled by the Supreme Court in A. Periakaruppan v. State of Tamil Nadu holding:-

"The court cannot uphold the plea of malafides on the basis of mere probabilities."

14. No fault, therefore, could be found with the view taken by the Tribunal that the charge of malafides could not succeed on an inference or on the basis of probabilities.

15. We also find nothing wrong with the handling of the other charge of delay in the disposal of receipts by respondents which has been also found to be unsupported by any worthwhile evidence by the Tribunal and in our view rightly so. Because it has gone undisputed that respondent's request for production of diary register and some other documents which could have shown that the delay was not of his making and had taken place on account of excessive work load and also because of prevalent department practices was not allowed and that his supportive evidence in this regard was also not taken into consideration. Therefore, the Tribunal was within its competence to hold that the charge of delay was not backed up by any valid evidence.

16. All this coupled with the fact that petitioner had brought the charge against this respondent more than eight years after the incident and had taken about 12 years to conclude the proceedings against him persuades us to affirm the Tribunal order and to dismiss this petition.