Union Of India vs Shri P.K. Sharma
2009 Latest Caselaw 2687 Del

*               HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 6157/2008



                        Judgment reserved on: July 13, 2009
%                       Judgment delivered on: July 17, 2009


      Union of India                             ..... Petitioner

                        Through: Mr. H.K. Gangwani, Adv.

                    Versus


      Shri P.K. Sharma                           ..... Respondent

                        Through: Mr. S. Rajappa, Adv.

      Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK


      1. Whether the Reporters of local papers may          Yes
         be allowed to see the judgment?

      2. To be referred to Reporter or not?                 Yes

      3. Whether the judgment should be reported            Yes
         in the Digest?

A.K. PATHAK, J.

1. Respondent joined as Peon with the Petitioner on 9th

September, 1974. Later on, he was appointed as LDC on 20th

October, 1981 through Staff Selection Commission.

2. Disciplinary proceedings were initiated against the

Respondent and a charge-sheet dated 7th October, 1993 for major

penalty was served upon him with the allegations that he incited

members of staff on 16th July, 1993 and 3rd September, 1993 to

lodge fictitious complaints against the superior officers and his

this act was in violation of Rule 3 (1)(iii) of CCS (Conduct) Rules

1972. Initially, Handwriting Expert's report dated 29th September,

1993 of Central Forensic Science Laboratory (CFSL) was not

annexed with the charge-sheet and the same was supplied later

on. Enquiry Officer submitted his report on 27th December, 2004

to the Disciplinary Authority. Enquiry Officer held Respondent

guilty of charge levelled against him.

3. Disciplinary Authority vide order dated 25 th July, 2005

imposed penalty of dismissal from service on the Respondent.

Appeal filed by the Respondent was disposed of by the Appellate

Authority vide order dated 4th January, 2006 whereby the

punishment was modified to compulsory retirement.

4. Aggrieved by the orders passed by Disciplinary Authority

and Appellate Authority, Respondent preferred an Original

Application bearing OA No. 20/2007 before the Central

Administrative Tribunal Principal Bench, New Delhi (for short

hereinafter referred to as "the Tribunal). Vide impugned order

dated 3rd June, 2008 Tribunal set aside the orders passed by the

Disciplinary Authority as well as Appellate Authority and directed

the Petitioner to forthwith reinstate the Respondent in service.

Tribunal also directed that Respondent shall be entitled to all

consequential benefits as per law.

5. Petitioner has filed this writ petition praying therein that

order passed by the Tribunal be quashed and/or set aside.

6. Perusal of the impugned order shows that the Tribunal held

that the orders passed by the Disciplinary Authority as well as

Appellate Authority did not reflect application of mind as reasons

for arriving at conclusion that Respondent was guilty of charges

levelled against him, had not been given. Tribunal was also of the

view that no sufficient evidence was available before the Enquiry

Officer to conclude that Respondent was guilty of charges.

Handwriting Expert's report relied upon by the Enquiry Officer

was not proved as the maker of report was not produced in the

witness box by the prosecution during the enquiry proceedings

and could not have been read in evidence against the

Respondent. Tribunal also found that none of the witnesses

deposed that Respondent had incited the members of the staff to

lodge complaints against the superior officers. No witness was

examined to prove that complaints were lodged at the instance of

the Respondent. Tribunal also considered the fact that the

allegations against the Respondent pertained to September 1993

and the charge-sheet was issued in the year 1994 itself but

enquiry was initiated only in the year 2004 as such there was

delay of about 10 years which remained unexplained. While

relying on judgments of Supreme Court, Tribunal concluded that

the delay had also prejudiced the Respondent.

7. We have perused the copy of the enquiry report, order of the

Disciplinary Authority and order of the Appellate Authority and

we do not find any ground to interfere with the findings of the

Tribunal. Report of the Handwriting Expert was placed on record

but the same was not proved by producing maker of the said

report in the witness box. Petitioner should have produced maker

of the report to prove the report and in such an eventuality

Respondent would have had opportunity to cross-examine him to

test the veracity of the report. This was all the more necessary as

none of the witnesses examined by the Petitioner made a

statement that Respondent had incited his subordinates to file

complaints against the superior officers. Tribunal has also rightly

observed that there was delay of 10 years in initiating the

enquiry, which had prejudiced the Respondent.

8. Judgement relied upon by the learned counsel for the

Petitioner titled as State of HP vs. Mast Ram reported in (2004)

8, Supreme Court Cases 660 is in different context and is of no

help to the Petitioner. The question involved in the said case was

as to whether report of Ballistic Expert can be used in evidence in

terms of sub Section (1) of Section 293 of Criminal Procedure

Code.

9. We are, therefore, not inclined to interfere with the findings

returned by the Tribunal. Accordingly, writ petition is dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 17, 2009 rb