The Secretary Cum Chairman, ... vs Sh.G.C.Jatav
2011 Latest Caselaw 1109 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P(C) No.561-62/2005

%                             Date of Decision: 24.02.2011

The Secretary cum Chairman,                  Standing           ...... Petitioners
Committee, ESI Corporation & Anr

                           Through   Mr.Yakesh Anand & Mr.Nimit Kumar,
                                     Advocates.

                                       Versus

Sh.G.C.Jatav                                                   ...... Respondent

                       Through       Mr.R.K.Saini, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.      Whether reporters of Local papers may be                    YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                       NO
3.      Whether the judgment should be reported in                   NO
        the Digest?


ANIL KUMAR, J.

*

1. The petitioners, Secretary cum Chairman and Director General,

Employees State Insurance Corporation have challenged the order

dated 21st July, 2004 passed by the Central Administrative Tribunal,

Principal Bench in O.A No.136/2003 titled as „G.C.Jatav v. Secretary

cum Chairman, Standing Committee and Anr.‟ allowing the original

application of the respondent and setting aside the order dated 26th

July, 2001 imposing the penalty of removal of respondent from service

and also setting aside the order dated 29th October, 2001 passed by the

appellate authority, upholding the penalty.

2. Brief facts to comprehend the disputes between the parties are

that an Assistant Regional Director, Employees State Insurance

Corporation (ESIC) named Sh. G.R.Baru was caught in a trap laid by

the Central Bureau of Investigation accepting illegal gratification. The

respondent at that time was working as a Regional Director in the

petitioner Corporation and he was issued an Article of Charges alleging

that the respondent had directed Sh.G.R.Baru, Assistant Regional

Director to demand a bribe of Rs.5000/- from Sh.Jasbir Singh,

consultant of M/s. Mander Forging Pvt Ltd, Mohali. Another allegation

made against the respondent was that he had directed Sh.G.R.Baru to

demand and accept bribe from M/s. Atul Fastners, Mohali, as well. The

Articles of Charges were incorporated in the chargesheet dated 22nd

September, 1977 and they are as under:-

"ARTICLE OF CHARGE NO.1:-

That Shri G.C.Jatav, while posted and functioning as Regional Director in Employment State Insurance Corporation (ESIC), then in Regional Office, Chandigarh during 199-96 failed to discharge his duties honestly and exhibited lark of integrity and devotion to duty inasmuch as he directed Shri G.R.Baru, Asstt. Regional Director, ESIC,

Regional Office, Chandigarh to demand a bribe of Rs.5,000/- from Shri Jasbir Singh, Consultant of M/s Mander Forging Pvt. Ltd., Mohali for sowing favour of not prosecuting the Managing Director of the said company in pursuance of the Show Cause Notice dated 8.1.96 for having contravened the provisions of ESIC Act, consequent to this direction of Shri G.C.Jatav, a bribe amount of Rs.3,000/- was later on demanded and accepted by Shri G.R.Baru from Shri Jasbir Singh on 4.4.96 stating that the bribe money is to be shared by him with Sh.G.C.Jatav, Regional Director and, thereby, Sh.G.C.Jatav, committed gross misconduct unbecoming of an employee of the Corporation. Thus, he contravened rule 3(1) (i) (ii) (iii) of the Central Civil Service (Conduct) Rules, 1964 which are applicable to the employees of ESIC by virtue of Regional 23 of the ESIC (State and Conditions of Service) Regulations, 1959.

ARTICLE OF CHARGE NO.II:-

That the said Shri G.C. Jatav also received an amount of Rs.5,000/- from Sh.G.R. Baru, Asstt. Regional Director on 4.4.96, which Sh.G.R.Baru had demanded and accepted as bribe from Sh.Darshan Kumar, then Manager, ESIC, Patiala at the instance of Sh.G.C.Jatav for arranging the transfer of said Shri Darshan Kumar from Patiala to Chandigarh. Recovery of the said bribe amount was effected from the residence of Sh.G.C.Jatav by Shri G.R.Baru in presence of independent witnesses, and thereby, Shr.G.C.Jatav committed gross misconduct, unbecoming of a public servant. Thus, he contravened rule 3(1) (i) (ii) (iii) of the Central Civil Service (Conduct) Rules, 1964 which are applicable to the employees of ESIC by virtue of Regulation 23 of the ESIC (Staff and Conditions of Service) Regulations, 1959.

ARTICLE OF CHARGE NO.III:-

That the said Sh.G.C.Jatav had also directed Shri G.R.Baru, Asstt. Regional Director, ESIC, then in Regional Office, Chandigarh to demand and accept bribe from the representative M/s Atul Fastners, Mohali for showing the favour of not prosecuting the Managing Director of the said company for having contravened the provisions of ESIC Act.

Consequent upon this direction a bribe of Rs.5,000/- was demanded and accepted by Shri G.R.Baru on behalf of Shri G.C.Jatav from Shri Pankaj Sharma of M/s Atul Fastners and unbecoming of a public servant. Thus, he contravened rule 3(1) (i) (ii) (iii) of the Central Civil Service (Conduct) Rules, 1964 which are applicable to the employees of ESIC by virtue of Regulation 23 of the ESIC (Staff and Conditions of Service) Regulations, 1959."

3. Sh.G.R.Baru who was caught in a trap by the Central Bureau of

Investigation was tried in a case registered under the Prevention of

Corruption Act. Disciplinary proceedings were also initiated against

Sh.G.R.Baru where the penalty of 100% pension cut was imposed upon

him, by the Director General, ESIC on 2nd September 1999.

4. The charges were made against the respondent only pursuant to

alleged disclosure statement of said Sh.G.R.Baru, however, along with

the Articles of Charges made against the respondent neither the

disclosure statement of Sh.G.R.Baru was relied on nor Sh.Baru was

cited as a witness in support of the charges made against the

respondent. Allegedly an envelope containing Rs.5000/- was recovered

from the residence of the respondent which was mentioned in the

charge sheet as well. The envelope which was allegedly recovered was

also not produced and proved. During the enquiry proceeding though

Sh.G.R.Baru was not examined, but his disclosure statement made

before the police was proved by Sh.S.L.Gupta.

5. The inquiry officer submitted his report dated 27th January, 2000

and held the respondent guilty of the charges made against him and by

order dated 26th July, 2001 the respondent was awarded the

punishment of removal from the service by the Director General, ESIC.

6. That aggrieved by the order of removal from service dated 26th

July, 2001 an appeal was filed by the respondent which was also

dismissed by order dated 29th October, 2001 by the Chairman,

Standing Committee, ESIC.

7. Against the order of the disciplinary authority dated 26th July,

2001 imposing the punishment of removal from service and dismissal of

appeal by order dated 29th October, 2001, the respondent filed an

original application before the Tribunal being O.A No.136/2003. The

respondent had challenged the order imposing punishment of removal

on the grounds that the charges against him were based on the

disclosure statement of Mr. Baru, which was made by him before the

CBI. However, neither Mr. Baru was examined nor the respondent was

given any opportunity to cross examine him. The alleged disclosure

statement of Sh.Baru could not have been the basis for awarding

punishment of removal from the service nor could it have been taken on

record by the inquiry officer. The alleged disclosure statement of

Mr.Baru which was before the CBI was not admissible and

consequently the case of the petitioners against the respondent is based

on no evidence. The respondent also challenged the report of the CVC

recommending the dismissal of respondent from the service on the

ground that CVC could not have recommended the punishment as it is

only an advisory body.

8. The respondent also challenged the punishment imposed upon

him on the ground that the charges framed were based on the

statement of Sh.G.R.Baru who was not examined. Even the person, Sh

Darshan Kumar, DW1 who allegedly gave the bribe, which was alleged

to have been recovered at the respondent‟s residence, had categorically

denied that he had ever requested for a transfer or paid any amount as

bribe. Consequently, there was no evidence that any bribe was given by

anyone to Sh.G.R.Baru on behalf of the respondent. The respondent

also contended that it had not been proved that he had directed any

subordinate official to demand an amount of Rs.5000/- from M/s.

Mander Forging Pvt Ltd, Mohali. Referring to the cases of M/s. Atul

Fastners and Ms.Mander Forging Pvt Ltd, respondent pleaded that he

had referred the cases of these firms to the vigilance department and

had sought clarification and advice in accordance with the procedure

and the ESIC Rules and, therefore, their matters were not decided by

him alone and he was not the sole authority to decide the prosecution

against them.

9. The respondent also contended that for conducting departmental

enquiries attendance of witnesses can be enforced by the inquiry officer

and he has powers to do so. However, no reasons have been given for

not enforcing the attendance of Sh.G.R.Baru who was neither examined

nor an opportunity was given to the respondent to cross examine him

and on the basis of his disclosure statement before the CBI, the

punishment has been awarded to the respondent. Also the disclosure

statement given by Sh.G.R.Baru before the CBI, was not even relied on,

in list of the documents which were annexed along with the Articles of

Charges. The respondent had also challenged examination of

Sh.R.Upasak, DSP, CBI who was not mentioned as a witness in the

chargesheet but was later on examined as the witness, SW11.

10. On behalf of petitioners, their counsel had sought time on 14th

July, 2004 to produce the record of the disciplinary proceedings along

with their submissions, however, in spite of the opportunity given, it

was not complied with and no record was produced before the Tribunal

and, therefore, the Tribunal had proceeded on the basis of the record

which was available with the Tribunal. The petitioners‟ counsel had

rather relied on the recovery memo and the tripartite statements which

according to him tallied with the disclosure statement of Sh Baru. In

the circumstances it was contended that the case against the

respondent is not of no evidence and that the disciplinary authority

has duly applied its mind to the evidence on record while concluding

the guilt of the respondent.

11. The Tribunal relied on Managing Director, ESIC v. B.Karunakar,

JT 1993 (6) SC 1; State Bank of Patiala v. S.K.Sharma, (1996) 3 SCC

364; Union of India v. T.R.Sharma, AIR 1957 SC 882; Phulbari Tea

Estate v. Its Workmen, AIR 1959 SC 1111; State of Mysore & Ors v.

Shivabasappa Shivappa Makapur, AIR 1963 SC 315; Ministry of

Finance & Anr v. S.B.Ramesh, 1998 SCC (L&S) 865 and Surajmal v.

State (Delhi Administration), (1979) 4 SCC 725 and held that mere

recovery of money itself could not prove the charge of prosecution

against the respondent as the money could not be proved to have been

given by Mr. Baru, as it did not have any identification mark nor were

the numbers of the currency notes disclosed by Mr. Baru. It was held

that in absence of any evidence to prove demand of bribe or to show

that the respondent voluntarily accepted the money it could not be held

that bribe was demanded and was taken by the respondent. Even the

persons who had allegedly given the bribes had not been examined, and

had subsequently denied the same. In the circumstances, it was held

that the recovered amount has not been proved to be the amount

demanded and accepted by respondent through Sh. Baru. The Tribunal

also relied on the statement of DW-2 deposing that Rs.5000/- was his

money and is not the money which is alleged to have been given by

Sh.G.R.Baru. The Tribunal also noticed that the money recovered could

not be associated with Sh.G.R.Baru as he had not been examined and

even the envelope from which the money was recovered though it had

figured in the list of documents cited in the chargesheet, however, it

had not been produced on the record of the enquiry and hence it was

not proved that the same was given to the respondent by Sh. G.R.Baru.

The Tribunal also relied on the fact that even the disclosure statement

had not formed part of the record of the departmental proceedings. In

the circumstances the documents, the alleged envelope containing the

money and the disclosure statement which if produced and proved,

could have been some sort of evidence, however since they were not

even produced, therefore, there was no evidence against the

respondent. The Tribunal also placed reliance on S.K.Jain v. Union of

India, 1989 (4) SLJ 953 holding that in a trap case mere recovery of

money is not sufficient.

12. The Tribunal also noticed the order of the disciplinary authority

categorically recording that the alleged envelope containing Rs.5000/-

recovered from the residence of the respondent could not be produced

as it was with the CBI. The observation of the disciplinary authority in

this respect is as under:-

b) It is a fact that the envelope containing Rs.5,000/- recovered from the residence of the Charge Officer was one of the prosecuting documents cited in the charge sheet ibid. The same could not be produced before the Inquiry Officer as it is with the CBI Court in the criminal case against Shri Baru. However, the recovery of Rs.5,000/- from the residence of the Charged Officer is evident from the following witnesses and documents:-

              1)       Recovery memo dated 5.4.96 (ex.S.9)

              2)    Statement dated 15.4.96 from Shri Vinod Goel

(SW.4), Dy.Manager, State Bank of India, Chandigarh (Ex.S.17) (pp 9 & 10)

3) Statement dated 18.4.96 from Shri Harjeet Singh (SW.5), Administrative officer, National Insurance Company Ltd., Sector 34, Chandigarh (Ex.S.18) (pp.10 & 11)

4) Deposition of Shri Vinod Goel, SW4 before the Inquiry Officer on 13.9.99.

5) Deposition of Shri Harjeet Singh SW5 before the Inquiry Officer on 13.9.99.

6) Deposition of Shri S.L.Gupta, SW9 before the Inquiry Officer on 04.9.99.

7) Deposition of Shri R.Upasak, SW11 before the Inquiry Officer on 12.11.99."

13. The Tribunal also repelled the contention on behalf of the

petitioners that the disclosure statement of Sh.G.R.Baru was not relied

on by the disciplinary authority. Perusal of enquiry report and the order

of the disciplinary authority reveals that the disciplinary authority had

relied on the report of the inquiry officer which categorically relied on

the disclosure statement of Sh.G.R.Baru. The relevant enquiry report is

as under:-

"7.27. From the depositions of the various witnesses and the recovery of Rs.,5000/- from the house of the CO at exactly the same place and in manner as disclosed by Shri Baru, it was reasonable to infer that as stated by Shri Baru, he had collected the bribe amount from Shri Darshan Kumar for his transfer from Patiala to Chandigarh and passed it on to CO. Thus, he had done on the directions of the CO. The recovery also suggests that what Shri Baru had stated about collection of bribe from other parties on behalf of CO was also correct, there was collusion between CO and Shri Baru, and Shri Baru demanding and accepting the bribe amounts was acting on the directions of the CO.

7.28. On the basis of evidence on record, the Article of Charge-II is held as proved."

28. Regarding Article of Charge-I it is recorded as under:-

7.34. As already established in Article of Charge-II, Shri Baru and CO were hand in glove with each other and Shri Baru was demanding and collecting illegal gratification on behalf/directions of the CO.

29. Regarding Article of Charge-III it is recorded as under:-

7.37. CO has again mentioned in his brief that the charge is based on the statement of Shri Baru and Shri Baru had not been produced during the enquiry. However, as established in the Article of Charge-II, Shri Baru was

demanding and collecting illegal gratification on behalf of the CO. It was the CO who could give the benefit to the parties and Shri Baru along could not have provided the desired relief to the parties. Shri Pankaj Sharma (SW-10) in his deposition stated that Shri Baru had demanded Rs.1,000/- and had told him that the amount was to be shared with the CO. However, the amount was later settled for Rs.5,000/-. Once the amount had been settled, Shri Baru had taken Shri Pankaj Sharma and Shri Luther to the CO‟s chamber Shri Panjak Sharma deposed that it was embarrassing to meet the Regional Director when the matter had already been settled with Shri Baru and they could not understand why Shri Baru had taken them to the CO. When they had gone to CO‟s chamber, he had told them about the consequence of default. The amount of Rs.5,000/- was given to Shri Baru at his residence."

14. In the circumstances, the Tribunal had held that the disclosure

statement of Sh.G.R.Baru was relied on, however, the same could not

be relied on as it was a statement given before the CBI. Reliance was

also placed on the statement of Sh.Jasbir Singh who categorically

denied that any amount was demanded from him or accepted by the

respondent. The observations of the Tribunal regarding the evidence

against the respondent in the order dated 21st July, 2004 impugned

before us are as under:-

31. We have not come across any evidence apart from supporting evidence of other witnesses to establish the disclosure statement of Baru and to establish that the amount recovered is the same amount which had been demanded by applicant from Jasbir Singh. The aforesaid witness Jasbir Singh denied the allegations against the applicant and categorically deposed that neither any amount was demanded nor same was recovered.

32. As regards disclosure statement, if a document is not forming part of inquiry and the only mode even in accordance with rules of preponderance of probabilities the same should have been established and proved by the maker of this document, i.e. Baru. By not exhibiting this document in the inquiry and not affording a reasonable opportunity to applicant to cross-examine Baru who is a material witness has certainly prejudiced applicant. Had this witness been examined, applicant would have established his defence of not demanding any money and also in the view that there is overwhelming evidence that the amount has been claimed by applicant as his own, there is no rebuttal to this in the inquiry report.

33. Any material which is recorded behind the back of the delinquent cannot be relied upon against him, if at all the aforesaid document is to be accepted or relied upon reasonable opportunity to rebut is mandated. This includes proving the document through examination of Baru and calling him as a witness with an opportunity to cross examination to applicant. For want of such a procedure this disclosure statement is not admissible and in the light of the decision of the Constitution Bench decision in Shivappa and T.R. Verma (Supra) such a procedure contravenes principles of natural justice. Keeping in view the particular circumstances non-examination of this witness, which is very material, and the statements having been relied upon to establish all the charges against applicant certainly goes to the root of the matter and vitiates the inquiry."

15. In the circumstances, the Tribunal has held that the case of the

respondent is of no evidence against him of having demanded the bribe

or any amount allegedly given as bribe recovered from him and,

therefore, set aside the penalty order of removal from service and

reinstated him with all consequential benefits however, holding that the

respondent shall not be entitled to back wages.

16. The learned counsel for the petitioners, Mr.Yakesh Anand has not

been able to explain satisfactorily as to how the disclosure statement of

Sh.G.R.Baru which was given before a CBI official could be relied on by

the disciplinary and appellate authority and could form the basis of

penalty imposed upon the respondent. This has not been denied that

even the disclosure statement has not been produced before the inquiry

officer. Also the alleged recovery of the envelope made on the basis of

the disclosure statement too has not been produced. No satisfactory

explanation has been given as to why Sh.G.R.Baru was not produced as

a witness. The charges against the respondent are based on the

statements of Sh.G.R.Baru and he was neither produced nor was his

disclosure statement produced which anyways could not be relied on,

nor was the alleged envelope allegedly recovered from the residence of

the respondent produced. It has not been explained by the learned

counsel as to what is the other cogent evidence against the respondent

on the basis of which he could be penalized.

17. Perusal of the record also reveals that one of the allegations

against the respondent is that bribe was demanded from Sh.Darshan

Kumar for his transfer. However, Sh.Darshan Kumar, DW1 was

produced during the enquiry and he had categorically denied that he

ever wanted a transfer or paid any money and, therefore, even on this

account also there is no cogent evidence that the money was demanded

by the respondent for the transfer of Sh.Darshan Kumar through Shri

Baru. If Shri Baru had been committing illegal acts demanding bribes

even in the name of the respondent, the respondent cannot be held

liable unless there is cogent and reliable evidence against him.

18. Regarding the recovery of an amount of Rs.5000/- from the

residence of the respondent, it is apparent that it has not been

established that this is the money which was allegedly given by

Sh.G.R.Baru to the respondent. The disciplinary and the appellate

authority has relied on the envelope in which the money was allegedly

kept, however, the envelope has not even been produced. In any case no

distinguishing features of the envelope have been established which

could be related to the envelope allegedly given by Sh.G.R.Baru. The

testimony of Sh.G.R.Baru becomes very relevant and in the absence of

his testimony as he was not produced the alleged recovery of Rs.5000/-

could not be associated or held to be the money which was given by

Sh.Baru to the respondent. Even the testimony of Sh.R.Upasak, DSP

cannot establish any charge against the respondent on account of

Sh.G.R.Baru allegedly having written his name and Rs.4313/- on the

envelope and scoring it off, as stated in his disclosure statement. In

order to establish that the envelope which was recovered from the

house of the respondent had the writing of Sh.G.R.Baru either

Sh.G.R.Baru should have been examined or the writing of Sh.G.R.Baru

should have been obtained and should have been compared with the

writing on the said envelope. In the circumstances, the findings of the

Tribunal that this is a case of no evidence against the respondent

cannot be faulted.

19. The testimonies of other witnesses Sh.Vinod Goel, SW-4;

Sh.Harjeet Singh, SW-5 and Sh.S.L.Gupta, SW-9 also do not implicate

the respondent in any manner nor can it be constituted to be cogent

evidence about the alleged fact that an envelope was allegedly recovered

from the residence of the respondent which was allegedly given by

Sh.G.R.Baru, as the alleged envelope had not been produced on the

record of the enquiry as has been admitted by the disciplinary

authority. In the circumstances the evidence of these witnesses also

does not prove the recovery of the envelope. Consequently the findings

of the Tribunal that there is no evidence against the respondent cannot

be termed to be illegal or unsustainable.

20. The Tribunal has categorically recorded in paragraph 11 of the

order dated 21st July, 2004 in O.A No.136/2003 that despite the time

given to the petitioners to produce the record of the disciplinary

proceedings it was not produced. Para 11 of the order is as under:-

11. On the other hand, respondents‟ counsel Sh.Yakesh Anand appeared and has been allowed two days‟ time on 14.7.2004 to place before us record of the disciplinary proceedings along with short submissions. Having failed to comply with the same, we proceed to record our observations. The opportunity accorded having not been availed of respondents have lost their right."

21. In the present writ petition the notice was issued on 14th

January, 2005 whereafter Rule DB was issued. The matter has been on

the list of regular matters for considerable period and even today the

petitioners have not produced any record from which any evidence

could be perused which would establish the culpability of the

respondent. Perusal of the entire record of the writ petition does not

reveal any such evidence or document on the basis of which it can be

held that there is some cogent evidence against the respondent. The

order of the disciplinary authority and the appellate authority are not

sustainable as they are based on no evidence. In (2003) 4 SCC 579,

Indian Rly. Construction Co. Ltd. vs. Ajay Kumar, the Supreme Court

had held that Judicial review shall be permissible in cases of failure to

exercise discretion and excess or abuse of discretionary power or

illegality or irrationality and procedural impropriety. It was held that

non consideration or non-application of mind to relevant factors renders

exercise of discretion manifestly erroneous calling for judicial

interference. This also cannot be disputed that the grounds on which

administrative action is subject to control by judicial review are,

"illegality"; "irrationality" and "procedural impropriety". This is also not

disputed that the Court have to be slow to interfere in such matters

relating to administrative functions unless the decision is tainted by

any vulnerability like illegality, irrationality and procedural impropriety.

Whether action falls within any of the categories is to be established

and mere assertion in that regard may not be sufficient. To be

"irrational" it has to be held that on material, it is a decision "so

outrageous" as to be in total defiance of logic or moral standards. If a

power is exercised on the basis of facts which do not exist and which

are patently erroneous, such exercise of power shall stand vitiated.

Exercise of power will be set aside if there is manifest error in the

exercise of such power or the exercise of power is manifestly arbitrary.

To arrive at a decision on "reasonableness" the court has to find out if

the authorities have left out relevant factors or taken into account

irrelevant factors. In the case of the respondent it is apparent that the

petitioners had acted on the basis of facts which do not exist and the

findings of disciplinary authority are patently wrong and based on no

evidence. In (2006) 5 SCC 88, M.V.Bijlani vs. Union of India & ors. it

was held by the Court Supreme Court at page 95 as under:

25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being

quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

22. This Court has heard the learned counsel for the parties and has

perused the evidence on record and the decisions of the disciplinary

authority, the appellate authority and the tribunal. The disclosure

statement of Sh G.R.Baru has been relied on by the disciplinary

authority, to inculpate the guilt of the respondent. However since the

disclosure statement has not been produced, nor has the maker of the

disclosure statement been examined, it cannot be relied on. The

disciplinary authority has also relied on the recovery of the envelope.

However, the alleged recovery made on the basis of the disclosure

statement, i.e. the envelope containing Rs. 5000/- from the side drawer

of the bed, from the house of the respondent, was also not produced.

The nexus between the envelope and the fact that it was given by Sh.

Baru to the respondent has also not been proved. In the disclosure

statement of Sh. Baru, he has categorically stated that the envelope

given by him to the respondent had his name and the amount of Rs.

4313/- written on it which was scored off and which contained the

bribe amount of Rs. 5000/- allegedly taken from Sh. Darshan for his

transfer. However, the envelope containing Rs. 5000/- which was

recovered from the respondent‟s residence was not produced, hence

whether it contained the above mentioned marks on it or if it was given

to the respondent by Sh. Baru could not be proved, as neither was Sh.

Baru produced before the inquiring authority nor was a comparison

made of the handwriting on the envelope with that of the handwriting of

Sh. Baru. The recovery memo, and the statements of the tripartite alone

cannot be relied on to accept the inference that the said envelope was

the one allegedly given by Sh. Baru to the respondent. In any case the

respondent in his deposition as DW-2 had categorically admitted that

the amount recovered was his own money and even though he had

stated the same at the time, it was not recorded by the authorities. This

has not even been refuted by the petitioners. Also Sh Darshan Kumar,

who allegedly gave the bribe of Rs.5000/- has categorically stated that

neither was the amount demanded from him nor did he ever make a

request to be transferred.

23. The allegation as to the demand for bribe made by the respondent

through Sh. Baru from Sh Jasbir Singh, SW-3 and Sh Pankaj Sharma,

SW-10 was also not successfully established as in their cross

examination itself it has been categorically stated by SW-3 and SW-10

that the respondent had never demanded the bribe from them, nor was

the amount ever given to him. The amount was instead always

demanded and collected by Sh. Baru, who allegedly stated that the

amount was to be shared with the respondent. However, since Sh. Baru

himself has not substantiated this allegation before the inquiry

authority, no reliance on such hearsay evidence can be placed and

hence the Tribunal has rightly concluded that there is no evidence to

prove the factum of "demand" and "acceptance" of bribe by the

respondent and has consequently set aside the order of the disciplinary

authority and the appellate authority upholding the guilt of the

respondent.

24. In the totality of facts and circumstances this Court does not find

any illegality or such unsustainability in the order of the Tribunal which

will entail any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India. The learned counsel for

the petitioners has also failed to show any perversity in the order of the

Tribunal. In the facts and circumstances the writ petition is, therefore,

dismissed. The respondent has been deprived of his retiral benefits

since January, 2004 on account of the writ petition filed by the

petitioners and the stay of order of Tribunal setting aside the order of

punishment awarded against him. In the circumstances considering all

the relevant facts and circumstances, the petitioners shall be liable to

pay a cost of Rs.35,000/- to the respondent.

ANIL KUMAR, J.

February 24, 2011                               VEENA BIRBAL, J.
„k‟