Union Of India (Uoi) vs Murari Lal
2006 Latest Caselaw 2240 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner Union of India assails in this writ petition order dated 15th October, 1999 of the Central Administrative Tribunal, hereinafter referred to as the Tribunal, allowing OA.No. 1142/96, filed by the respondent Murari Lal and quashing the punishment of compulsory retirement imposed vide order dated 29th March, 1996. The Tribunal also directed reinstatement of respondent Murari Lal with all consequential benefits including arrears of pay and allowance. The period of suspension was directed to be treated as period spent on duty. Direction was also issued to act on the recommendation of the DPC, kept in a sealed cover and depending thereon promote the respondent with effect from the date his immediate juniors were promoted.

2. Petitioner seeks to justify the order of compulsory retirement, claiming that the decision to impose the punishment of compulsory retirement had been taken by the Disciplinary Authority, after deep consideration of the evidence available. The said decision had been approved by the Committee of Secretaries. The punishment of compulsory retirement was also sought to be justified on the basis of the need to maintain probity among senior officers of a sensitive organization like the Central Bureau of Investigation. The Tribunal is also alleged to have misdirected itself in re-appraising the evidence, which was not permissible to be done in appellate jurisdiction.

3. Before dealing with the specific grounds raised, the facts culminating in the filing of the writ petition may be briefly noted:

(i) Respondent Murari Lal at the relevant time was working as Superintendent of Police, posted at Delhi with the CBI. Certain searches were to be carried out simultaneously in Bombay, Calcutta, Bangalore and Delhi. Respondent proceeded to Calcutta to supervise the investigation of the case registered vide RC-1(a)/90-ACU-III DLI, wherein one Sh. Rajiv Jain and Smt. Sushila Jain were named as co-accused. The cases related to investigation of charges of corruption against officers of M/s. Hindustan Vegetable Oil Corporation, wherein Sh. Rajiv Jain and Smt. Sushila Jain were co-accused. Both of them were partners of M/s. Adinath Corporation having dealing with M/s. Hindustan Vegetable Oil Corporation. The case related to some contracts on behalf of M/s. Hindustan Vegetable Oil Corporation where contractor had shown the work as executed without executing the same and received payments, besides alleged excess payments. The allegations against respondent Murari Lal was that during the search proceedings, he took Neeraj Jain brother of Rajiv Jain, in a Blue Maruti Van and demanded illegal gratification of Rs. 2 lacs from him, even though Neeraj Jain was not an accused in the said cases. The respondent is stated to have held out a threat of arrest of Rajiv Jain and Sushila Jain, despite directions from the Head Quarters that Sushila Jain, being a lady was not to be arrested in the case. It is stated that respondent posed himself as Mr. Jha, DSP/SP, CBI, New Delhi to Neeraj Jain and demanded from him a sum of Rs. 2 lacs on 23.3.1990 and again repeated the same on 25.3.1990 in a telephonic conversation, where he indicated the manner and modality of payment.

(ii) Mr. Neeraj Jain lodged a complaint at the local CBI office against the respondent alleging demand of Rs. 2 lacs as illegal gratification. Subsequently, Mr Neeraj Jain retracted the complaint and stated that the complaint was written as dictated by the CBI officers. By order dated 28.12.1990, respondent was placed under suspension as disciplinary proceedings against him were under contemplation. Charge sheet dated 28.12.1990 was issued to him containing three articles of charge which are reproduced below for facility of reference:

Article I. That Shri Murari Lal while functioning as SP/ACU.III, New Delhi in the month of March 1990, committed gross misconduct and failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant in as much as while Shri Murari Lal had gone to Calcutta to supervise investigation of RC-1(A)/90-ACU.III he, on 23.3.1990, at Calcutta posed himself as Mr. Jha, SP/CBI to one Shri Neeraj Jain and demanded from him a sum of Rs. 2 lakhs as illegal gratification after putting Shri Neeraj Jain and his mother Shri Sushila Jain under threat of arrest, whereas, Shri Murari Lal knew that Shri Neeraj Jain was not an accused in RC-1(A)/90-ACU.III and also knew that as per Head Office Orders Smt Sushila Jain, though an accused was not to be arrested. Again on 25.3.1990 said Sh. Murari Lal had a telephonic conversation with said Neeraj Jain about the mode of payment of said illegal gratification.

Article II. That Shri Murari Lal, on 25.3.1990 at Calcutta promised to show undue favor to said Shri Neeraj Jain by promising to help and manage the bail of his brother Shri Rajiv Jain at Delhi who was arrested at Calcutta on 23.3.1990 in the said case and was then in Police custody.

Artcle III That Shri Murari Lal stayed in the NIC Guest House at Alipore Estate on Alipore Road, Calcutta from 1900 hours on 24.3.1990 to 12:30 hours on 25.3.90, but did not record any entry in the register of the guest house in order to suppress his said stay at the guest house for ulterior motives.

4. Inquiry Officer submitted the Inquiry report on 29.4.1993, holding the respondent not guilty of charges. The Disciplinary Authority did not accept the report and the matter was sent to Central Vigilance Commission for further inquiry. In the further inquiry Neeraj Jain, principal complainant, was examined as a witness. On 23.3.1995, Enquiry Officer submitted the report holding only the charge of threatening the complainant and not recording entry of stay in the NIC Guest house, as proved. CVC advised for acceptance of the Inquiry Officer's report and recommended for imposition of a major penalty. The case was sent to UPSC for statutory advice. UPSC advised exoneration of the respondent, on 8.9.1995 for the reason that the complaint which formed basis of the charge sheet, did not contain the initials of the officer who received it, the complainant had retracted from it and had stated it to be written as per the dictation of CBI officers. The Inquiry Officer had also conceded that there were doubts about the authenticity of the taped telephonic conversation, which formed basis of the alleged demand of illegal gratification. Relevant portions from the advice of UPSC are quoted below:

Article I

...The case of the Disciplinary Authority against the charged officer is mainly based on the complaint (Ex.S-2) filed by Sh. Neeraj Jain. But it has been proved during the enquiry that Ex S-2 does not contain the initials of the officer, who received it. Secondly, Sh. Neeraj Jain (SW-28) has stated during the enquiry that the complaint was written by him as dictated by the CBI officers from Delhi. And thirdly, Shri Neeraj Jain has retracted from many important statements made against the 'Charged Officer' in his complaint. Shri Jain has retracted his statement that the Charged Officer has introduced himself as 'Jha' and that the Charged Officer had demanded from him a sum of Rs. 2 lacs. In view of the above factors the Commission feels that the complaint (Ex S-2) has lost much of its sting.

3.1.1 The Commission notices that the Inquiry Officer feels that since the Charged Officer had identified his signatures on Ex.S-2, his statement that parts of it were written at the prompting of CBI officials, does not detract from the authenticity of the documents. The Inquiry Officer considers it significant that the complainant has admitted that the Charged Officer had threatened him and his mother Smt Sushila Jain with arrest. The Inquiry Officer has discussed in detail the deposition of SW-4 Shri Jagdish Mishra; SW-12 Shri N.K. Mukhopadhyay, SW-2 Sgt.Guha; SW-3 Sh Abdul Majid, Caretaker NIC Guest House SW-1 Sh.T.K. Sanyal, SP, ACB Calcutta; SW-26 Sh Diwakar Prasad, DIG and SW-10 Shri T Das, Inspector, CBI Calcutta to know the truth about the complaint (Ex S-2), the statement of the complainant at ExS-45 and the tape recorded conversation (Casette at Ex S-12 and transcript at Ex S-3 (which took place at 1010 AM on 24.3.1990 between Sh Neeraj Jain (Complainant) and Sh.Murari Lal (Charged Officer). The Inquiry officer has come to the conclusion that Shri Neeraj Jain's deposition is not completely credible. According to the Inquiry Officer, the very fact that the Charged officer had threatened Shri Neeraj Jain the complainant, and his mother with arrest shows that the charged officer was abusing his authority and had an underlying motive. However the Inquiry Officer has conceded that the complainant had retracted a large portion of his statement including his statement that the charged officer had demanded a sum of Rs. 2 lacs from him. The Inquiry Officer has also conceded that there are doubts about the authenticity of the taped conversation (Ex S-3 and Ex S-12). The Commission therefore, do not consider it proper to hold the Charged Officer guilty on the basis of doubtful evidence.

The complainant Shri Neeraj Jain during his examination as SW-28, has retracted large portions of his complaint (Ex S-2) as well as his pre recorded statement (Ex S-45). He stated that the complaint Ex.S-2 was written at the behest of the CBI officers from Delhi. In his cross examination by the prosecution (since he was declared hostile), he stated that the reason for retracting the complaint was that he had waited for 9 months hoping that he would get help from CBI as indicated to him at the time of making the complaint against the charged officer. It is evident from the above that the complainant had written the complaint against the Charged Officer merely as a quid pro quo and not on merit. The evidence of such a person cannot be relied upon unless it is supported by corroborative evidence to prove the article of charge against the Charged Officer.

3.13 In view of the position analysed above and taking into account all other factors, including the defense of the Charged Officer, the Commission held Article I of charge as not proved against Shri Murari Lal.

Article II

....The Commission agree with the Inquiry Officer and hold Article II of the charge as not proved.

Article III

It is alleged that Shri Murari Lal stayed in the NIC Guest House from 1900 Hrs on 24.3.1990 to 12:30 hrs on 25.3.1990 but did not record any entry in the register of the Guest House in order to suppress his said stay for ulterior motive. According to the Inquiry Officer, Shri Abdul Majid (SW-3) makes it clear that while vacating the room on 25.3.1990, the Charged Officer paid all the dues including room rent and asked for the guest house register for making the entry. In his general examination, the Charged Officer had stated that he wanted to make the entry but since the caretaker suggested that it was not necessary, he left at that. Thus the Charged Officer had no intention of omitting to make the entry to conceal the fact of his stay. ...Though the Charged Officer had not made the required entry in the Guest House Register but since he had no ulterior motive, the Commission feels that it cannot be held that he violated the provisions of the conduct rules.

....

3.4 To sum up, the Commission hold Articles I, II and III of the charge as not proved against Shri Murari Lal.

5. The Disciplinary Authority did not accept the advice of the UPSC and referred the case back to UPSC for reconsideration. UPSC reiterated its advice. The case was placed before the Committee of Secretaries for recommendation. On the basis of preponderance of probability, the Committee of Secretaries recommended imposition of a major penalty. Pursuant thereto, the Disciplinary Authority approved the recommendations and penalty of compulsory retirement with no reduction in the compulsory retirement pension was imposed vide order dated 29.3.1996.

6. As noted hereinafter, respondent filed OA.No. 1142/90 before the Tribunal seeking quashing of the order of compulsory retirement dated 29th March, 1996 and further directions, as noted in para 1. The Tribunal vide order dated 15th October, 1999, which is impugned in the present writ petition, held the findings of the Disciplinary Authority, holding the respondent guilty of charges as baseless. Petitioner was directed to reinstate the respondent with all consequential benefits, including arrears of pay and allowance. Recommendation of the DPC kept in a sealed cover were to be opened and depending thereupon, promotion from the date the immediate junior of the respondent was promoted, was to be given.

7. Learned Counsel for the petitioner Ms. Jyoti Singh submitted that the Tribunal had misdirected itself in reappreciating the evidence. She submitted that the findings of the Tribunal that there was no evidence with regard to demand for illegal gratification and threat being held out was not correct. The matter had been inquired into twice. The Inquiry Officer had examined 36 witnesses including the complainant. The Tribunal had assailed the role of Inquiry Officer and re-appreciated the entire evidence and reached its own conclusion. She submitted that respondent, a senior officer of the CBI, was expected to show exemplary probity, his conduct was shrouded with suspicion and such person could not be allowed to continue to work in a sensitive organization like CBI. It would be contrary to national interest and the sanctity of the important job could not be maintained. She next submitted that it was not a case of no evidence. Respondent Murari Lal admittedly had taken Neeraj Jain in Blue Maruti Van to look for Sunil Saria and on his way had threatened Neeraj Jain that he and his mother would be arrested. There was a subsequent tele communication between Murari Lal and Neeraj Jain, in which the modalities for the payment of the amount of illegal gratification was explained while impersonating as Jha, another DSP, who was involved in the searches. Non-entry of name in the register regarding the stay at the Guest House would further corroborate the ulterior motive of the petitioner in not leaving any clue regarding his presence while impersonating as Jha. She further submitted that the objection of the UPSC were technical in nature and should not be used to deviate from the primary facts, which had been brought on record. The tape recorded conversation with the respondent leads to a strong suspicion and shrouds the behavior of the charged officer with suspicion. Applying the principle of preponderance of probabilities to the facts and circumstances, an inference of misconduct could be safely drawn. She submits that taking Neeraj Jain in Maruti Van indicates the culpability of the officer.

8. We have heard Ms. Jyoti Singh in support of the petition and Mr. P.P. Khurana, learned senior counsel for the respondent, who has refuted her submissions, urging that an impartial body like the UPSC has twice in its advice exonerated the respondent. The first inquiry report also did not contain any charges proved against the respondent. He argues that respondent was first subjected to injustice when the petitioner was permitted to examine the complainant, who had been dropped from the list of witnesses. Significantly, the complainant Neeraj Jain himself retracted from large portion of the complaint. He submits that petitioner's arguments that the Tribunal had re-appraised the evidence was incorrect. The Tribunal had merely gone through the record to satisfy its judicial conscience to see if there was any evidence at all based on which the findings of misconduct could be returned. This was especially so since the UPSC had twice recommended exoneration on the ground that there was no evidence, which could permit a conclusion of guilt.

9. We have heard counsel for the parties, perused the impugned orders of the Tribunal as well as order of the Disciplinary Authority and have been taken through the statement of the complainant. A perusal of the statement of Neeraj Jain-complainant shows that he has stated that the complaint which he lodged had been done on the dictation of CBI Officers from Delhi. The CBI Officers had promised to help him in the case to get the bail for his brother in Delhi and that is why he gave the complaint as dictated to him. The statement does not even contain any charge of demand of illegal gratification. In these circumstances, the Tribunal has rightly concluded that there was no evidence to implicate the charged officer or the respondent. Rather, the ulterior motive of Neeraj Jain appears to be to seek help from the CBI Officers by falsely implicating the respondent. In these circumstances, even if the respondent had told the petitioner that Rajiv Jain and Sushila jain could be arrested and taken to jail, the same cannot be construed as threat for the purpose of demanding illegal gratification, which is absent. It is significant that the respondent had permitted Neeraj Jain to go home. The gravamen of the charge itself disappears with the demand for illegal gratification not having been proved.

In view of the foregoing discussion, we are of the view that the Tribunal has rightly concluded that there is no evidence available from which the misconduct as alleged against the respondent can be stated to have been proved. While the need for probity and exemplary conduct of the officers of CBI, the premier agency of investigation, cannot be undermined, yet at the same time the career of officer cannot be ruined and he be put to disgrace on the eve of retirement on the basis of mere suspicion, where the primary and basic evidence is not available. We find no ground to interfere with the order of the Tribunal. Writ petition is dismissed. The stay order stands vacated.