Satpal vs Uoi
2012 Latest Caselaw 4565 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: July 19, 2012
                       Judgment Pronounced on: August 01, 2012

+                          WP(C) 5469/1998

      SATPAL                                   ..... Petitioner
          Represented by: Mr.Jawahar Chawla, Advocate.

                           versus

      UOI                                        ....Respondent
             Represented by: Mr.Ankur Chhibber, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J.

1. The petitioner was a driver with General Reserve Engineering Force (GREF). As pleaded by him in the writ petition, on December 23, 1995 he was served with a charge- sheet alleging that while functioning as a driver of vehicle bearing registration No.BA88 E 59328 at Thenzawl (Mizoram), during the period October 1991 to May 1992 he misappropriated Government Stores like cement, diesel and explosives and sold the same to Shri Bhola Nath Pathak in village Thenzawl and thereby failed to maintain integrity.

2. As per the statement of imputation to the charge- sheet, it was alleged that aforesaid fact surfaced at a Court of Inquiry, when `1,09,344/- were recovered from the Superintendent Shri S.Rangarajan.

3. The petitioner pleads that the inquiry was initiated under the CCS (CCA) Rules 1965 on the findings by a Court of Inquiry under the Army Act. The petitioner pleads that before

the Inquiry Officer said Bhola Nath Tiwari never appeared as a witness and that one K.Vasudevan, an LDC in the department simply tendered Bhola Nath's statement recorded during Court of Inquiry proceedings.

4. The principal three counts on which the penalty levied upon the petitioner i.e. of dismissal from service is questioned are : Firstly, that the department could either proceed against the petitioner as per the Army Act or before a Civil Forum and having chosen to proceed under the Army Act, the respondents could not opt to proceed at a Civil Forum. The second contention urged is that statement of Bhola Nath Tiwari during Court of Inquiry proceedings could not be relied at the departmental inquiry. Thirdly, that a person cannot be subjected to dual jurisdiction.

5. We note that while pleading the facts in paragraphs 1 to 18 of the writ petition, much has been spoken of by the petitioner, but while laying a challenge during arguments of the writ petition, only aforesaid three issues were urged.

6. As per the respondents, petitioner's involvement with respect to misappropriation of petrol, diesel and explosives surfaced during Court of Inquiry proceedings initiated when `1,09,344/- were detected as the illegal possession of Shri S.Rangarajan, the Superintendent. Witnesses were recalled and their statements were re- recorded in the presence of the petitioner, and unfortunately by then the time prescribed under the Army Act to try the petitioner lapsed and this is the reason why disciplinary proceedings were initiated under the CCS (CCA) Rules 1965. On the subject of employees of General Reserve Engineering Force being subjected to a dual discipline i.e. under the Army

Act and secondly under the CCS (CCA) Rules 1965, it is pleaded that GREF employees are civilian employees, but as held by the Constitution Bench of the Supreme Court in the decision reported as AIR 1983 SC 658 R.Viswan & Ors. v. UOI & Ors. they could be subjected to the dual disciplinary control i.e. under the Army Act as also as per the disciplinary rules applicable to civil servants. Admitting that at the inquiry Bhola Nath Tiwari was not examined as a witness, it is highlighted that at the Court of Inquiry, upon being re-summoned, in the presence of the petitioner, Bhola Nath Tiwari had deposed inculpating the petitioner, who had cross-examined Bhola Nath Tiwari. It was thus urged that the statement of Bhola Nath Tiwari, who subsequently could not be located, was rightly relied upon at the domestic inquiry.

7. The first and the third contention urged by learned counsel for the petitioner stand negated by the decision of the Supreme Court in R.Viswan's case (supra). The issue being no longer res-integra, we need not pen any opinion. As per the Supreme Court, law permits a person to be subject to two disciplinary controls and action to be taken by either. The respondents have a good case to proceed against the petitioner under the CCS (CCA) Rules 1965 inasmuch as his involvement during Court of Inquiry proceedings surface late and by which time period of limitation prescribed to initiate a trial under the Army Act was over. We simply highlight that trial under the Army Act would have entailed a trial akin to a criminal offence and under the CCS (CCA) Rules 1965, there is no trial: a departmental action for a civil wrong i.e. breach of a service rule, is resorted to.

8. That leaves the issue of Bhola Nath's statement recorded during Court of Inquiry proceedings being relied upon by the Inquiry Officer to sustain the indictment and based on the report of the Inquiry Officer, the Disciplinary Authority levying the penalty of dismissal from service to be decided.

9. We note Bhola Nath's statement recorded at the Court of Inquiry on September 08, 1995 and petitioner's cross- examination. The two read as under:-

"Witness No.2 Shri Bhola Nath Pandit of Thenzawl village states:-

1. I was working as a CPL in GREF 9 years back. Presently I have married a local girl and doing my own business. I was working as a labourer in the Army at Bakthang. I have settled in Thenzawl Village along with my wife and children. I used to get discharged and recruited frequently.

2. I have seen cement and diesel being sold by GREF Personnel to locals. I have also seen couple of GREF driver dropping cements in Thenzawl village.

3. I have one purchased cement 50 (50) bags from MT Driver Satpal after the deal was made with BR-II MC Gupta. The cement was purchased by me at `150/- bag. I subsequently sold the cement to the locals as it was required by them. The money was handed over to the driver.

4. I have known MT/Driver Satpal as he used to drive a load carrier on TB Road and used to come to Thenzawl once in a while.

5. Except one the occasion cited earlier I have had no dealings with BR-II MC Gupta of MT/Driver Satpal.

The above statement has been read over to me in the language I understand in the presence of

independent witness AE(C) RA Naidu and I sign it as correct.

Cross examination by accused (MT/Driver Satpal)

Q1: Which vehicle I have given cement? A1: The vehicle was a GREF vehicle and was a big vehicle.

Q2: Who unloaded the cement from the vehicle? A2: The vehicle was unloaded by local "Kapies".

Q3:Where was the cement unloaded? A3: The cement was unloaded in my shop at Thenzawal Bazar.

Q4: What time was it?

A4: It was 4 PM in the evening.

Q5: Which date and month?

A5: I do not remember the month and date.

Q6: Where was my vehicle working? A6: It was working in Bapai but used to come to the Thenzawal once a while.

Q7: Which Supervisor spoke to you regarding the deal?

A7: BR-II MC Gupta.

Q8: Which year did I sell you the cement? A8: I do not remember the year.

The recording of the statement of the civilian witness given above was recorded in my presence and the cross-examination done was also by me. The above statement and the cross- examination has been read over to me in the language I understand and I sign it as correct."

10. Way back in the year 1963, in the decision reported as AIR 1963 SC 375 State of Mysore v. Shivabasappa, the Supreme Court had observed that domestic tribunals,

exercising quasi-judicial functions, are not Courts and therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information, material from the points under inquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in Court. With respect to fair opportunity to be granted to the delinquent employee, it was observed by the Supreme Court that what is a fair opportunity must depend on the facts and circumstances of each case.

11. The issue of statements recorded, of persons during investigation and the same being used in departmental proceedings, without the maker of the statement being examined as a witness in the departmental proceedings, is not the subject matter of no decision. Under the Excise Act, as also under the Customs Act, we have a plethora of decisions that at the adjudicatory proceedings, statements made by persons during investigation can be relied upon, without the maker of the statement being examined.

12. These decisions recognize the principle of law adumbrated in Section 32 of the Indian Evidence Act 1872, and needless to state, Section 32 of the Indian Evidence Act 1872 recognizes the principle of necessity i.e. if something said by a person is relevant to ascertain the truth, if the maker of the statement is dead, or is not available, or cannot be reasonably produced at a subsequent stage, said previous statement would be a relevant fact; of course, Section 32 lists 8 circumstances under which alone such previous statements made by persons are made relevant evidence. But, as held by

the Supreme Court repeatedly, and for which statement of law, we have only noted one decision as above, at domestic inquiries, the strict rules of evidence are inapplicable.

13. Previously recorded statements of witnesses have been held to be admissible evidence but upon the condition that the person concerned was permitted to be cross- examined at the domestic inquiry. One such decision may be noted. It is reported as (1976) 3 SCC 76 K.L.Shinde v. State of Mysore.

14. We could find no parallel of a situation, as we are encountering. The witness Bhola Nath Tiwari was examined during Court of Inquiry proceedings in the presence of the petitioner, who cross-examined Bhola Nath Tiwari. It is this statement made by Bhola Nath Tiwari, together with his cross- examination, which was tendered in evidence at the domestic inquiry.

15. On first principle, which is that as long as there is procedural fairness at a domestic inquiry and as long as a witness has been cross-examined, statements made by such a witness would be admissible in evidence; being relevant to the inquiry, we conclude by holding that where statement made by a person inculpating the other is made in the presence of he who is inculpated and said inculpated person is granted an opportunity to cross-examine the maker of the statement, be it at a preliminary inquiry or a proceedings akin to a Court of Inquiry, such statements would be admissible in evidence at a domestic enquiry for the reason the person inculpated has been granted a fair opportunity to test the veracity of the statement made by cross-examining the maker of the statement.

16. On the subject of petitioner being proved to be guilty of misappropriating government property i.e. cement bags and selling the same and pocketing the ill gotten gains, the testimony of Bhola Nath Tiwari at the Court of Inquiry proceedings nails the petitioner. The petitioner cross-examined Bhola Nath and could not demolish his credibility.

17. On the subject of the penalty imposed, suffice would it be to state that he who steals government property or misappropriates the same, and is a government servant, must suffer the consequences and the penalty of dismissal from service would be the appropriate penalty. Thus, there is no merit in the petition, the same is dismissed.

18. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 01, 2012 dk