Uoi vs Sr Tewari And Anr
2012 Latest Caselaw 681 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment reserved on: 10.01.2012
                                         Judgment pronounced on: 01.02.2012

+      W.P.(C) 4207/2011


       UOI                                                      ...         Petitioner


                                         versus


       SR TEWARI AND ANR                                       ...       Respondents


Advocates who appeared in this case:
For the Petitioner        : Mr M.K. Bhardwaj
For Respondent No.1       : Mr Paras Kuhad, Sr. Advocate with Mr Ravi Prakash, Ms Avni Singh
                            and Mr Jitiin Chaturvedi



CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN


V.K. JAIN, J.

1. This writ petition is directed against the order dated 11th February, 2011,

passed by the Central Administrative Tribunal, Principal Bench, New Delhi

(hereinafter referred to as "the Tribunal") in OA No. 3234/2009, whereby the order

dated 08th September, 2010, dismissing respondent No. 1 from service, was set

aside and he was reinstated in service with consequential benefits.

2. The respondent No.1, an officer of Andhra Pradesh Cadre of Indian Police

Service joined Border Security Force (BSF) on deputation and was posted as IG,

North Bengal Frontier. A charge memo containing as many as eight charges was

issued to him on 23rd March, 2007, followed by a Departmental Enquiry into those

charges. The Inquiry Officer, vide report dated 23 rd December, 2008, held that

Charges No. III, IV and VI were partly proved, whereas the Charges No. I, II, V,

VII and VIII were not proved. Even with respect to charges which, in the opinion

of the Inquiry Officer, were partly proved, no mala fides on the part of the

respondent was involved. The Disciplinary Authority, however, disagreed with the

report of the Inquiry Officer in respect of Charges I to V and was of the opinion

that Charges No. I to IV were fully proved, whereas Charge No. 5 was partly

proved. As regard Charge No. 1, CVC as well as UPSC were of the view that the

same stands established, whereas the Inquiry Officer was of the opinion that the

same does not stand proved. In respect of Charges No. III, IV and VI, CVC as well

as UPSC concurred with the Disciplinary Authority. Regarding Charge No. V, no

observation was made by UPSC, whereas CVC was of the opinion that it does not

stand established.

3. With respect to the power of the Tribunal or for that matter this Court to

interfere with the finding recorded in a Departmental Inquiry, this Court in a recent

judgment dated 19.1.2012 in WPC 2431/2011 Ex. Head Constable Manjeet Singh

v. Union of India & Ors inter alia observed as under:

"It is by now a settled proposition of law that the Court, while considering challenge to the orders passed in disciplinary proceedings does not act as an Appellate Authority and does not reassess the evidence led in the course of the inquiry nor can it interfere on the ground that another view in the matter is possible on the basis of the material available on record. If the Court finds that the inquiry has been conducted in a fair and proper manner and the findings rendered therein are based on evidence, the adequacy of evidence or the reliability of the evidence are not the grounds on which the Court can interfere with the findings recorded in the departmental inquiries. It is not open to the Court to interfere with the finding of fact recorded in such inquiries unless it is shown that those findings are based on „no evidence‟ or are clearly perverse. A finding would be considered to be perverse if no reasonable person could have recorded such a finding on the basis of material available before him. Another ground on which the Court can interfere with the findings recorded in a disciplinary proceeding is violation of principles of natural justice or statutory rules or if it is found that the order passed in the inquiry is arbitrary, mala fide or based on extraneous considerations. This proposition of law has been reiterated by Supreme Court in a number of cases including Union of India v. G. Gunayuthan: 1997 (7) SCC 463, Bank of India v. Degala Suryanarayana: 1999 (5) SCC 762 and High

Court of Judicature at Bombay v. Shahsi Kant S. Patil: 2001 (1) SCC 416."

4. In State of A.P. v. Sree Rama Rao AIR 1963 SC 1723, a three Judges

Bench of Supreme Court held as under:

"The High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

In State of U.P. and Anr. v. Man Mohan Nath Sinha and Anr. AIR 2010

SC 137 Supreme Court held as under:

"The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re- appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal."

In Union of India and Anr. v. B.C. Chaturvedi (1995) 6 SCC 750, a three-

Judges Bench of Supreme Court, inter alia, observed as under:-

"Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held that 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 finding, and mould the relief so as to make it appropriate to the facts of each case."

5. Since the main contention of the learned senior counsel before us was that

this was a case of no evidence at all, it would be appropriate for us to set out the

charges which were served upon the respondent No.1 and then consider whether

there was some evidence, on the basis of which the respondent No.1 could be held

guilty of one or more of these charges. The following were the Articles of Charges

against the respondent No.1:-

              Article of Charge           Statement    of   Imputation of
                                          misconduct or misbehaviour in
                                          support of charge
                   Article-I

     That the said Shri S.R. Tiwari,      In the discreet inquiry conducted by
     while functioning    as Inspector    the ADG (East), BSF, it was found
     General, Ftr. Hqrs North Bengal,     that Shri S.R. Tiwari and Smt.
     during the period from 23.06.2005    Chandrakala were living as husband
     to 14.11.2006, indulged in living    and wife. Smt. Chandrakala ordinarily
     with a lady by name Smt.             lives in Hyderabad, but periodically

Chandrakala, not being his legally visited Ftr. Hqrs Kadamtala where she wedded wife. used to stay with Shri Tiwari. Shri Tiwari admitted that he is legally wedded to her and he has a son and a daughter by her. Shri Tiwari also admitted that his first wife is alive and he has one son and two daughters by her.

Certain instances, which prove that Smt. Chandrakala stayed with Shri S.R. Tiwari at Ftr. HQ BSF North Bengal as his wife are as under:-

(a) She presided over the welfare

meeting of 118 Bn BSF which is located in Kadmtala itself on 24.04.2006. Since such functions are official in nature, therefore only lady wives of Jawan and officer participate in these functions. Smt. Chandrakala presided over above function in the capacity of lady wife of Shri S.R.

Tiwari.

(b) In the inaugural ceremony of PCO at Ftr. HQ BSF N/Bengal, a Pooja was performed as per Hindu ritual. In this Pooja, Shri S.R. Tiwari and Smt. Chandrakala participate as husband and wife.

(c) In the Independence Day ceremony on 15.08.2006 celebrated at Ftr. HQ BSF N/Bengal, Smt. Chandrakala participate in all official functions as wife of Shri S.R. Tiwari.

She accompanied Shri S.R. Tiwari to the BSF Hospital and distributed gifts to BSF personnel who were admitted in the hospital Article-II

That during the aforesaid As learnt by the ADG (East) in the period and while functioning in the discreet inquiry, Shri S.R. Tiwari aforesaid office, the said Shri S.R. visited SHQ CBR from 22.04.2006 to Tiwari, deliberately allowed 23.04.2006. During the above visit, unauthorized interference by Smt. Smt. Chandrakala accompanied him. Chandrakala living with him in While the officer was busy in official official functioning of North Bengal work, Smt. Chandrakala accompanied Ftr., causing premature release of by lady wives of the local officers four Constables from the Quarter unauthorizedly visited the Quarter Guard. Guard of 142 and 182 Bns BSF.

There, she spoke to BSF personnel in prison and got premature release of

Cost Babu Lal of 142 Bn BSF, Ct.

Raja Pal, Ct. Gayan Singh Pawak and Ct. Dalbir Singh--all of 182Bn BSF serving various prison terms, by using her influence. Subsequently, the IG formalized their release by condoning the remaining period of the prison terms.

Article-III

That during the aforesaid As per official record No. 86161306 period and while functioning in the Ct. Prakash Singh, who was a L/NK aforesaid office, discharged the under 08 Bn BSF, was reduced to the discipline propriety and guidelines rank of Ct. w.e.f. 16.07.2001 having on the subject in complete disregard been found guilty by a Force Court to the rules and without jurisdiction, for having "used insubordinate reviewed punishment awarded and language to his superior officer." On mitigated the sentence awarded to the basis of a prayer submitted by the No. 86161306 Const. Prakash Singh Const. on 17.05.2006, Shri Tiwari, by Ftr. Hq. BSF South Bengal. commuted the sentence "to forfeit pay and allowances for a period of 14 days w.e.f. 17.07.2001 to 30.07.2001"

under FTR. HQ NB Order No. 4638-

45 dated 06.06.2006. During the time of award for the punishment, the Const was serving under IG SB, whereas the IG NB did not have the jurisdiction to review the punishment awarded to the said Const, grant of Rank Pay also, from same date.

Article-IV

That during the aforesaid As alleged by Smt. Sharmistha Saha, period and while functioning in the Primary Teacher, BSF Primary aforesaid office, showed favoritism School Kadamtala, Shri Tiwari had and manipulated the selection of selected and appointed Shri S.S. Headmaster in BSF Primary School Majumdar as Headmaster of BSF Kadmatala even though the Primary in complete violation of the candidate did not possess essential rules. Shri Majumdar did not even qualification and was not eligible. meet the eligibility standards for the

post. While one of the essential qualifications for the post is Graduation with 55 per cent marks in aggregate, Shri Majumdar had secured only 43 per cent marks in the B.Sc examination. The matter was enquired into and the ADG (East), BSF directed Shri Tiwari to cancel the appointment order and arrange for appointment of a qualified person to the post of Headmaster, as per the recruitment rules after issuing fresh advertisement for the purpose. Shri Tiwari instead of issuing formal cancellation order, waited for Shri Majumdar to resign from the post on 03.04.2006. On the same day Shri Tiwari appointed him as a regular primary teacher w.e.f the date he joined as Headmaster of the School.

Shri Majumdar was earlier engaged as a temporary teacher. Shri Majumdar was appointed as a regular teacherin the pay scale of Rs 4500-125-7000 in violation of the policies/instructions circulated by the FHQ. No Selection Committee was constituted in regard to the appointment of Shri Majumdar as a regular teacher, nor was the approval of the FHQ taken. Besides Shri Majumdar had secured only 43 per cent marks in his B.Sc examination, whereas one of the essential qualifications for such appointment is 45 per cent marks in aggregate in the degree examination.

                   Article-V

         That during the aforesaid In           one       of             the
   period and while functioning in the anonymous/pseudonymous      petitions

aforesaid office, helped one person against the IG received at HQ, ADG of his native Distt. Balia, UP in (East) BSF, following five persons enrolment in BSF by fraudulent were allegedly recruited as followers, means and also amended the Board based on fabricated domicile proceedings by commenting upon certificates:-

medical fitness which he was not qualified to do. (a) Shri Brijesh Kumar, S/o Girja Prasad, Vill-Ujanushivnagar, PO-

Pradhannagar, PS-Matigara, Distt-

Darjeeling

(b) Shri Panchanan Ram S/o Ganga Ram, Vill-Ujanushivnagar, PO-

Pradhannagar, PS-Matigara, Distt-

Darjeeling

(c) Shri Munna Prakash Vill-

Ujanushivnagar, PO-Pradhannagar, PS-Matigara, Distt-Darjeeling

(d) Shri Ashwani Kumar Singh, S/o Ram Nath Singh, Vill-

Ujanushivnagar, PO-Pradhannagar, PS-Matigara, Distt-Darjeeling

(e) Shri Om Prakash Ram, S/o Kasnji Ram, Vill-Ujanushivnagar, PO-

Pradhannagar, PS-Matigara, Distt-

Darjeeling

However, it was found that only Shri Brijesh Kumar, S/o Girja Prasad, Vill-

Ujanushivnagar, PO-Pradhannagar, PS-Matigara, Distt-Darjeeling was recruited as follower in BSF. He was recruited on the basis of domicile certificate which showed him to be a resident of PS Matigara, Distt-

Darjeeling (West Bengal), whereas, actually he hails from Balia Distt. of

Uttar Pradesh.

The recruitment of followers was held at BSF Campus Radhabari (Jalpaiguri, West Bengal) w.e.f 12.012.2005 to 16.12.2005, the Board of Officers, which included a Medical Officer, submitted the proceedings of the recruitment for approval by the IG, NB. Shri S.R. Tiwari in the capacity of the IG of the Ftr rejected the candidature of one cook, one sweeper, one water carrier, one washer man on the basis of overweight/underweight, which he was not competent to do, whereas these candidates were found fit by the Medical Officer of the recruitment board. In place of these rejected candidates, Brijesh Kumar, S/o Girja Prasad, was asked to submit an application for re-medical since he was earlier found unfit by the recruitment board. The re-medial was carried out by Ftr FQ BSF N/Bengal itself and Shri Brijesh Kumar, S/o Girja Prasad was found medically fit and thus he was issued an appointment order to join BSF as sweeper.

Article-VI

That during the aforesaid Vehicle No. WB-74J-4337 (Bolero) period and while functioning in the was detailed to proceed to THQ 89 aforesaid office, Shri S.R. Tiwari BN BSF, which was located in Patna had allegedly misused government (Bihar). No. 89298601 CT/DVR Ajit vehicle, Arms and ammunition and Singh of 89 BN BSF along with two

BSF personnel at the time of others at FTR HQ BSF N/Bengal left marriage of his son that was FTR HQ BSF N/Bengal in above solemnized on 15 February, 2006, at vehicle for THQ 89 BN BSF. his native place in Balia, UP. However the vehicle did not report to THQ 89 BN BSF and instead went to the home place of Shri S.R. Tiwari, located in Balia Distt. of U.P.

As brought out in the discreet enquiry by the ADG (East), BSF, the officer has admitted that, he did take the Mahindra Bolero Van of his FTR to his native place during his visit to organize his son‟s marriage, which was solemnized on 15.02.2006. The officer further stated that he has been declared a "Y" category protectee due to threats from Naxalites. He had taken the vehicle as his escort from Patna to Balia, as he had to travel through Naxalite-infested areas of Bihar. On asking for the copy of the order vide which he was declared a "Y" category protectee, Police intelligence Deptt, AP Hyderabad sent the same through FAX. The Police authority however, clarified that such protectees are ordinarily provided with a house guard and 2 PSOs. Some of them however are also provided with BP Vehicles. No such order has been issued by the BSF authorizing Shri Tewari to use vehicular escort during his private journeys. In any case movement of vehicles beyond the IG‟s functional jurisdiction, requires the approval of HQrs, which was not taken.

It was further gleaned in the discreet

inquiry that Const. Anil Kumar accompanied the IG to his native place from 08.02.2006 to 21.02.2006 during the latter‟s visit to organize his son‟s marriage. 50 rounds of 9 mm were issued to him from the Ftr. Kote.

Shri Tewari did not admit that Const Anil Kumar had fired some rounds during the ceremony, as part of the fanfare. Actually 41 rounds were fired in such firing and only 9 live rounds were returned to the Kote on his return from tour. The shortage has apparently been made up by manipulating the records of ARCF.

Article-VII

That during the aforesaid Information was received at Hq. ADG period and while functioning in the (East) that Shri S.R. Tiwari had been aforesaid capacity, kept two keeping two Constable of 47 Bn BSF Constables of 47 BN BSF and two and two Constables of 122 BN BSF at Constables of 122 BN BSF at Hyderabad unauthorizedly beyond the Hyderabad. BSF has no unit in jurisdiction of BSF deployment. It Hyderabad. Apparently the was verified during discreet enquiry Constables were used for private that No. 87102682 Const B.L.

work of Shri Tiwari. Kamalaiah of 47 Bn BSF and No. 93009473 Const D.V. Ramana of 47 Bn BSF were called to the N/Bengal Ftr HQrs on 06.07.2005 and 25.10.2005 respectively. Both of them were sent to Hyderabad where Const B.C. Kamalaiah stayed up to 02.12.2005 and Const. D.V. Ramaiah till 19.04.2006. Further No. 97009634 Const Sayed Ahmed of 122 BN BSF was sent to the residence of Shri S.R.

Tiwari at Hyderabad in the month of August, 2006 and he remained there till 15.12.2006.

It also came to the notice that, No. 99101220 Const T. Bhaskar of 122 BN BSF as sanctioned 15 days C/L w.e.f. 01.08.2006 to 07.09.2006 and was directed by Shri S.R. Tiwari to report his house at Hyderabad after termination of his leave. However, the parent unit of the individual i.e. 122 BN BSF was not informed accordingly. As a result, when the individual did not report for his duty in time, 122 BN BSF sent letters at the home address of Const T. Bhaskar to rejoin his duty without any delay.

Const. T. Bhaskar in turn reported the matter to Shri S.R. Tiwari. In order to regularize his OSL period, Ftr HQ BSF N/Bengal informed 122 BN BSF on 14.01.02006 that, Const T.

Bhaskar joined the Recruitment Board of North Bengal Frontier which was in Bangalore in connection with the recruitment of Constables in southern States on expiry of his leave.

BSF has no unit in Hyderabad, Apparently the constables were used for private purposes of Shri Tiwari.

Article-VIII

That during the aforesaid As per the official documents, Cost. period and while functioning in the Prakash Singh was posted to NB Ftr. aforesaid office, discharged the by Shri Tiwari over-ruling the discipline propriety and guidelines objection of the PSO. The PSO had on the subject and indulged in objected to posting of Const. Prakash favoritism/nepotism by way of Singh to Ftr. Hq. N/Bengal based on attaching Const. Prakash Singh with latter‟s pas record. Ftr. Hq. N/Bengal despite contrary remarks of the PSO, N/Bengal Ftr.

On the subject which were based on

the Constable‟s past record.

Article-I

6. A perusal of the Article of Charge and the Statement of Imputation of

Misconduct or misbehaviour in support of the charge would show that the

allegation against the respondent No.1 was that he and Smt. Chandrakala were

living as husband and wife. This was also the case of the Department that the

respondent No.1 had admitted being married to Chandrakala and having a son and

a daughter by her. This charge was also sought to be proved from the

circumstances (a) Chandrakala presided over the welfare meeting of a battalion of

BSF on 24.04.2006, in the capacity of a wife of the respondent No.1; (b) in the

inaugural ceremony of a PCO at FTR. Hqr. BSF North Bengal, the respondent

No.1 and Smt. Chandrakala participated in a pooja as a husband and wife and (c)

during Independence Day ceremony in the year 2006, Smt. Chandrakala

participated in the official function as the wife of the respondent No.1 and

accompanied him to a hospital, where she distributed gifts, to the BSF personnel

admitted in the hospital. As noted earlier, the Inquiry Officer held the charge to be

"not proved". In the Disagreement Note, the Disciplinary Authority, inter alia

observed as under:-

"During the preliminary inquiry Shri Tiwari has admitted to the allegation but claims that he is legally wedded to Smt. Chandrakala and has a son and daughter by her. He

also admitted that his first wife is alive and he has a son and two daughters by her.

The Inquiry Officer has failed in the charge sheet. The circumstantial evidence of photographs and CDs reveal that Smt. Chandrakala was attending the function as a prominent person in the life of the C.O. She was extended courtesies as given to the spouse of the Charged Officer during the function. During the function she was addressed as Mrs. Tiwari/Madam Tiwari/First lady by different persons during their speeches. This was never corrected by the Charged Officer or by Smt. Chandrakala at any point of time.

Disciplinary Proceedings are quasi-judicial proceedings and Evidence act does not apply to such proceedings. The guiding principle is to take into account the evidence in such disciplinary proceedings on preponderance of probability. In view of the above, this charge against the CO stands proved."

7. Admittedly, no evidence was led by the Department to prove that the

respondent No.1 had admitted, in the course of preliminary inquiry, that he had

married Chandrakala and has a son and a daughter by her. In fact, as noted by the

Tribunal, preliminary inquiry report was not even a listed document and the author

of the report, though listed as a witness, was not examined.

We also note that in his representation to the Disciplinary Authority, the

respondent No.1 had denied having made any such admission. In view of denial by

the respondent No.1, it was incumbent upon the Department to prove the alleged

admission in the course of inquiry. Even if such an admission was made during the

preliminary inquiry, but, was not proved in the course of the Departmental Enquiry

against the respondent No.1, the alleged admission could not have been taken into

consideration for holding that the charge against the respondent No.1 stands

proved. If the Department was relying upon a document evidencing the admission,

alleged to have been made by the respondent No.1, it was incumbent upon it to

supply the copy of that document to the respondent No.1, prove that document

during the course of inquiry and an opportunity was to be given to the respondent

No.1 to cross-examine the witnesses with respect to such a document. No reliance

could have been placed by the Disciplinary Authority on a document, copy of

which was not made available to the respondent No.1 and which was not proved

during the course of Departmental Enquiry.

8. As regards a CD relied upon by the Disciplinary Authority, the Tribunal has

noted that no CD was ever relied upon by the Presenting Officer or the Inquiry

Officer though it was listed as a document. The contents of the CD were never

made known to the respondent No.1, nor was the CD opened or played in his

presence. The author of the CD was not examined. Since no such evidence was

either relied upon or proved during the course of inquiry, it was not permissible for

the Disciplinary Authority to take the contents of the CD into consideration for

holding that the charge against the respondent No.1 stands established.

In Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors (1971)

II LLJ 407 SC, Supreme Court, inter alia, observed as under:

"Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced." The view taken by the Tribunal is therefore, in consonance with the above-

referred decision.

9. As regards the photographs (Ex.S-1 and S-2), relied upon by the Department

as circumstantial evidence to prove this charge, the Tribunal noted and, in our

view, rightly so, that they would show Smt. Chandrakala attending various

functions of BSF, but they do not indicate that she had attended those functions as

the wife of IG, BSF North Bengal. The case of the respondent No.1, as disclosed

in his representations to the Disciplinary Authority, was that Smt. Chandrakala was

a family friend and had stayed in his house in the guest room and attended the

function as a guest. As regards distribution of sweets, he had claimed in his written

statement of defence, that the functions were attended by Smt. Chandrakala without

his knowledge and at the behest of the wife of Commandant 118 Battalion/DIG

(PSO). He also stated that some functions in the school were attended by family

members of officer, jawans and civilians and being a family friend, Chandrakala

also attended the function and after function at the school, he visited the hospital

with 20-25 persons and other officers and almost all of them, including

Chandrakala were given opportunity to distribute sweets to patients in the hospital.

Therefore, the photographs (Ex.S-1 and S-2) by themselves do not indicate any

relationship of husband wife between the respondent No.1 and Smt. Chandrakala.

What is important is that there is no evidence of the respondent No.1 having

introduced Smt. Chandrakala to anyone as his wife. There is no evidence of

anyone having addressed Smt. Chandrakala as the wife of the respondent No.1, in

his presence. Obviously, if Chandrakala was not addressed as wife of the

respondent No.1 in his presence, there was no occasion for him to rebut such an

address. If Smt. Chandrakala accompanied the respondent No.1 to certain functions

as his guest and some BSF personnel, attending those functions, merely on account

of Chandrakala accompanying the respondent No.1, presumed her to be his wife,

the respondent No.1 cannot be blamed for such a wrong impression in the mind of

those who saw Chandrakala attending the function with him. There is no evidence

of Smt. Chandrakala having presided over any function of BSF as the wife of IG,

BSF North Bengal. We are in agreement with the Inquiry Officer and the Tribunal

that mere attendance of some functions of BSF and distributing sweets to the

patients admitted in a BSF hospital, when other persons who went to the hospital

from the school where the functions were held, were also given a similar

opportunity, does not prove the relationship of husband and wife between the

respondent No.1 and Smt. Chandrakala. There is absolutely no evidence of Smt.

Chandrakala having been given a treatment which is normally accorded to the wife

of IG, BSF North Bengal, in the presence of the respondent No.1. Had that been

done, it could have been said that by keeping silent, despite Chandrakala being

accorded treatment and courtesies which are accorded only to the wife of the IG,

BSF North Bengal, the respondent No.1 had given an impression that Smt

Chandrakala was his wife and, therefore, was entitled to such a treatment.

10. Though it is alleged in the Statement of Imputation of Misconduct of

Misbehaviour that the respondent No.1 and Smt. Chandrakala performed pooja as

husband wife, the charge was denied by the respondent No.1 and no evidence was

led during the course of inquiry, to substantiate the charge.

11. We agree with the Inquiry Officer and the Tribunal that merely on account

of Smt. Chandrakala having stayed in the house of the respondent No.1 2-3 times,

in the guest room, no relationship of husband and wife between the respondent

No.1 and Chandrakala can be presumed, even if the wife of the respondent No.1

was not present in the house during the days Smt. Chandrakala stayed there as a

guest.

12. For the reasons given hereinabove, we are entirely in agreement with the

view taken by the Tribunal in respect of Article-I and hold that the Disciplinary

Authority had no legally admissible evidence before it to prove this charge and the

finding recorded by it, to the extent it pertains to this charge, is perverse in law, in

the sense that no reasonable person, acting upon the evidence, which was produced

during the course of inquiry, could have held the charge to be proved.

Article II

13. In a nutshell, the charge against the respondent No.1 under this Article is that

he, acting under influence from Smt. Chandrakala, ordered premature release of

Constable Babu Lal, Constable Raja Paul, Constable Gayan Singh Pawak and

Constable Dalbir Singh, who were undergoing imprisonment for different terms.

The Inquiry Officer held that this charge to be not proved. The Disciplinary

Authority, however, recorded the following Disagreement Note with respect to this

charge:-

"The Charged Officer during the preliminary inquiry had admitted that Smt. Chandrakala accompanied him during his visit to SHQ, CBR on 22.04.2006 and 23.04.2006. He also admitted that she visited the BSF Quarter Guard where the prisoners have been kept. After her visit, four Constables were released from the Quarter Guard. Subsequently Shri Tiwari formalized their releases.

The Charged Officer in his defence statement has mentioned that Smt. Chandrakala was his guest. Even if it is so, allowing a guest to visit the BSF Quarter Guard

and release the prisoners and release the prisoners undoubtedly establishes interference in the official work functioning of the Charged Officer. This reflects the misconducts on the part of the Charged Officer. The I.O. has not considered this aspect in his findings. This charge against the charged Officer stands proved."

14. Admittedly, no evidence was led by the Department to prove, during the

course of the Departmental Enquiry, that the respondent No.1 had in preliminary

inquiry admitted that Smt. Chandrakala had accompanied him to SHQ CBR on

22.04.2006 and 23.04.2006. There is no admission on the part of the respondent

No.1 that the constables were released by him on account of intervention of Smt.

Chandrakala or at her instance. As noted earlier, no copy of the Preliminary

Inquiry Report was supplied to the respondent No.1 and the author of the report

was not examined as a witness. Since no such admission was proved by the

Department during the course of the Departmental Enquiry, it was not permissible

for the Disciplinary Authority to take the alleged admission into consideration to

hold the respondent No.1 guilty of this charge. We would like to note that the

defence of the respondent No.1 with respect to this charge was that it were the

wives of Commandant 142 Battalion and 182 Battalion, who had taken

Chandrakala to their Battalion Area, including the Quarter Guard and when these

ladies visited the Quarter Guard, the detainees expressed their problems to them

and thereupon the wife of the Commandant agreed to look into their grievance and

if possible get them released. This, according to the respondent No.1, was

conveyed to him in Cooch Behar, where he at that time was, and after ascertaining

details and being fully satisfied in the matter, he ordered release of these

Constables and later confirmed the release in writing. He specifically stated that

Chandrakala had no role to play in the premature release of the Constables and the

decision was taken by him on its merits.

15. There is absolutely no evidence of Smt. Chandrakala having visited the

Quarter Guard along with the respondent No.1. There is no evidence of Smt.

Chandrakala having played any role in the release of these Constables on the orders

of the respondent No.1. There is no evidence of the respondent No.1 having

allowed Smt. Chandrakala to visit the Quarter Guard. If Chandrakala visited the

Quarter Guard with the wives of other BSF officer, on their invitation, the

respondent No.1 cannot be faulted for her visit. Therefore, it cannot be said that the

respondent No.1 had allowed Smt. Chandrakala to visit a place which was not

accessible to an outsider. In fact, the Inquiry Officer has returned a finding that

Smt. Chandrakala did not speak to any officer of BSF to get these Constables

released. In our view, there was no legally admissible material on record, on the

basis of which, the Disciplinary Authority could have held this charge to be proved.

We, therefore, agree with the Inquiry Officer and the Tribunal that this Article of

Charge does not stand established against the respondent No.1. We, therefore, see

no good reason to interfere with the finding returned by the Inquiry Officer and the

view taken by the Tribunal with respect to this Article of Charge.

Article III

16. In a nutshell, the charge against the respondent No.1 is that he commuted the

sentence of Constable Prakash Singh, who at the time of award of punishment was

serving under IG (South Bengal) and being IG (North Bengal), the respondent No.1

did not have jurisdiction to review the punishment awarded to him. The Inquiry

Officer held that the charge was partly proved. The Inquiry Officer held that the

respondent No.1 considered the mercy petition of a Constable, who at the time of

committing the offence, was outside his jurisdiction and he was not authorized to

decide that petition. He, however, on the basis of the evidence on record, felt that

the decision taken by the respondent No.1 was in the larger interest of BSF. The

Disciplinary Authority, however, felt that the charge stands wholly proved and

recorded the following disagreement note in this regard:-

"Shri Prakash Singh, Constable was serving under IG, South Bengal, BSF when he was awarded the punishment of reduction in rank on 16.07.2001 being found guilty by a Force Court for having used insubordinate language about his superior officers. He was later on posted on attachment basis to North Bengal Frontier, BSF in July 2005 under the command of Shri Tiwari. An officer not below the rank of DIG or the prescribed officer may review the punishment awarded to any person under

whose command such person was serving at the time of conviction, as prescribed in Section 128 of the BSF Act.

Shri Prakash Singh was serving under the command of IG, South Bengal at the time of his conviction (July 2001). The Charged Officer was in-charge of North Bengal Frontier, and as such he is not competent to review the punishment awarded to Shri Prakash Singh in his capacity as the Prescribed Officer. This clearly establishes misconduct on the part of the Charged Officer and this charge against him stands proved."

17. Section 128 of BSF Act, to the extent it is relevant, provides that an officer

not below the rank of Deputy Inspector General, within whose command a person

convicted by a Security Force Court of any offence, was at the time of conviction

serving or the Prescribed Officer may pardon the person or remit the whole or any

part of the punishment or mitigate the same or commute such punishment for any

less punishment mentioned in the Act or release him on parole. Since Constable

Prakash Singh was admittedly not working in the command of the respondent No.1

at the time he was convicted nor is there any evidence of the respondent No.1

having been prescribed as the person who could exercise the power under Section

128 of BSF Act, the respondent No.1 was not competent in law to interfere with the

sentence awarded to Constable Prakash Singh. The next question which arises is

whether the respondent No.1 can be said to be guilty of „misconduct‟ on account of

his having exercised the power under Section 128 of BSF Act in respect of

Constable Prakash Singh. The Tribunal has noted that the petition of the Constable

was processed by law officer of BSF, who indicated that the respondent No.1 had

the authority to commute the sentence in question and when the file came up before

him for decision, there was no view to the contrary expressed by anyone on the file.

The Tribunal also noted that it was not the case of the Department that the

respondent No.1 had extended any favour to Constable Prakash Singh by reducing

his sentence and in fact the Constable had a case on merit for reduction of the

sentence awarded to him. The Inquiry Officer was of the view that the respondent

No.1 had exceeded his jurisdiction while reviewing the sentence of Constable

Prakash Singh, but, this decision was taken by him in the larger interest of BSF as

the BSF Jawans, who work in difficult conditions at Borders should not be

penalized vindictively by the seniors on trivial issues. The offence alleged to have

been committed by Constable Prakash Singh was of abusing, in a threatening

language, Head Constable Jaspal Singh and in the opinion of SCOI, Prakash Singh

was harassed and abused by Shri Ram Singh, AC, Company Commander.

18. It is not in dispute that while hearing the mercy petition of Constable

Prakash Singh under Section 128 of BSF Act, the respondent No.1 was acting in a

quasi-judicial capacity and there was no allegation of mala fide or any culpable

negligence against him. The Tribunal, in holding that this charge does not stand

proved, relied upon the following observations made by Supreme Court in

Zunjarrao Bhikaji Nagarkar v Union of India: 1999 (7) SCC 409:

"If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge- sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings."

In the aforesaid case, the appellant was posted as Collector of Central

Excise, Nagpur in the year 1995. The appellant, while holding adjudication

proceedings under Section 33 of Central Excise Act, confirmed the confiscation of

the goods of an assessee as well as the excise duty demanded from it. He,

however, chose not to impose any penalty. He was, however, served with a charge-

sheet on the allegation that he had favoured the assessee M/s Hari Vishnu

Packaging Ltd by not imposing penalty on it under Rule 173Q of Central Excise

Act, 1944 while passing the Order in Original dated 02nd March, 1995 wherein he

had held that that the assessee had clandestinely manufactured and cleared the

excisable goods and evaded the excise duty. The order passed by the appellant did

not indicate any reason in not imposing the penalty. Challenging the inquiry, it

was contended on behalf of the appellant that he could not be subjected to the

disciplinary proceedings merely because he had chosen not to impose any penalty

in the facts and circumstances of the case. Allowing the appeal filed by the

appellant, the Supreme Court observed that negligence in quasi-judicial

adjudication is not the negligence perceived as carelessness inadvertence or

omission but as culpable negligence. The Supreme Court referred to the view

taken by it in an earlier decision in State of Punjab v. Ram Singh Ex-Constable :

1992 (4) SCC 54, where it was held that mere error in judgment, carelessness or

negligence in performance of duty does not come within the purview of

misconduct.

19. The Tribunal, in our view, has applied a correct principle of law in holding

that since the respondent No.1 while passing order on the petition of Constable

Prakash Singh under Section 128 of BSF Act was acting in a quasi-judicial

capacity and there is no allegation of any mala fides nor had it been alleged that he

intended to extend a favour to the Constable by reducing his sentence, the order

passed by him could not have been held to be an act of misconduct. If BSF was

aggrieved on account of the order passed by the Tribunal under Section 128 of BSF

Act, it could have challenged that order in an appropriate forum, but, in the absence

of any mala fides or an element of corruption or culpable negligence on his part, it

would be difficult to say that the quasi-judicial order passed by the respondent

No.1 amounted to misconduct. We, therefore, see no good reason to interfere with

the view taken by the Tribunal, with respect to this charge.

Article IV

20. One Shri S.S. Majumdar was working as a teacher in BSF Primary School

on a temporary basis. BSF issued an advertisement, inviting applications for

appointment to the post of Headmaster of that primary school. The essential

qualifications for the aforesaid post were fixed with the approval of the respondent

No.1. One of the essential qualifications approved for the post was graduation with

55% marks in aggregate. Four persons, including Shri S.S. Majumdar, applied for

the aforesaid post. The Screening Board set up to scrutinize the applications

recommended only two candidates, who were found to be fulfilling the eligibility

criteria. Since Shri S.S. Majumdar did not have 55% marks in graduation, he was

not found eligible and, therefore, was not recommended by the Screening Board.

The respondent No.1, however, allowed all the four candidates to appear before the

Interview Board. The respondent No.1 was the Chairman of the Board which

interviewed the candidates and selected Shri S.S. Majumdar for the post of

Headmaster. Representations were made against appointment of Shri S.S.

Majumdar and FHQ, New Delhi, asked North Bengal Ftr. for clarification, which

was sent under signatures of the respondent No.1. Additional Director General (E)

directed Frontier HQ North Bengal to cancel the appointment of Shri S.S.

Majumdar, since he did not possess the requisite educational qualification. Shri

S.S. Majumdar resigned from the post of Headmaster in April, 2006, but, the

respondent No.1 appointed him as a regular teacher, retrospectively from the date

he was appointed as the Headmaster. In his letter dated 09.09.2006 sent to Director

General, BSF, the respondent No.1 claimed that he was not well-versed with BSF

Education Code and after going through the code, it was found that the selection

was not in conformity with the same and accordingly Shri S.S. Majumdar was

asked to resign. It also came in evidence that in fact none of the four applicants

possessed the required experience of ten years and, therefore, none of them was

eligible for the interview. It also came in the deposition of SW-19 that no codal

formalities were observed by the respondent No.1 in appointment of Shri S.S.

Majumdar, a primary teacher. The respondent No.1 later issued notice terminating

the services of seven primary teachers, including Shri S.S. Majumdar, who did not

fulfill the qualification as per BSF Education Code. FHQ, New Delhi, however,

allowed IG, North Bengal Frontier to keep all the teachers since they were working

for a long time. Out of those seven teachers, the respondent No.1 had appointed

only Shri S.S. Majumdar whereas the remaining six persons were appointed by the

other officers. The Inquiry Officer held that the charge was partly proved but there

was no favouritism and manipulation. In taking this view, the Inquiry Officer also

noted that the department had failed to produce any evidence to indicate the

procedure to be followed for appointment of primary teachers. The Disciplinary

Authority, however, held the charge to be proved and recorded the following

disagreement note with respect to this charge:

"The essential qualification prescribed for the post of Head Master, BSF Primary School is graduation with 55% marks in aggregate. Shri Mazumdar, Primary School teacher, BSF had secured only 43% in his graduation (B.Sc.). The Charged Officer has mentioned that he acted upon the notings of t he Dy. Commandant, In-charge of BSF Primary School who had indicated that there is no eligibility criteria prescribed in the BSF education code and IG as Chairman of Selection Board, is competent to decide the criteria for selection to the post of Headmaster.

Shri Mazumdar was not fulfilling, the eligibility criteria and he was not recommended by the selection Board to the post of Headmaster. Allowing Shri Mazumdar for the interview though he does not fulfill the criteria, establishes favouritism by the Charge Officer. BSF Headquarters directed the Charged Officer to cancel the appointment of Shri Mazumdar and take action for filling of the post of Headmaster after issuing fresh advertisement. Shri Mazumdar submitted his resignation from the post of Headmaster on 03.04.2006. On the same day, the Charged Officer appointed him as a primary teacher. The above conduct of the Charged Officer establishes favoritism extended by him in selection and appointment of Shri Mazumdar, Headmaster. Thus the charge against him stands proved."

21. The Tribunal, however, noted that the decision to appoint Shri S.S.

Majumdar as Headmaster was a unanimous decision of the Selection Board, the

respondent No.1 being only a member of the Board though he also was its

Chairman. The decision of the Board being a joint unanimous decision, the

Tribunal found it difficult to infer mala fide, favoritism or manipulation. The

Tribunal was of the view that when none of the candidates applying for the post of

Headmaster was eligible, there was nothing wrong if all of them were called for the

interview. The Tribunal relied upon the decision of the Supreme Court in

Bongaigaon Refinery & P.C. Ltd. & Ors v. Girish Chandra Sarmah:

2007(7)SCC 206. In the aforesaid case, the respondent was a member of the Price

Negotiation Committee and the charge against him was that he had failed to assess

reasonable price of the land and appointed a valuer, violating the due process of

tendering and accepted the fictitious price fixed by the valuer. The Tribunal relied

upon the following observations made by the Court :-

"After going through the report and the finding recorded by the Division Bench of the High Court, we are of the opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalized accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it

stinks is unfair in the matter of unanimous decision of the Committee."

22. In our view, the finding recorded by the Disciplinary Authority with respect

to this charge cannot be said to be based on no evidence nor can it be said to be

perverse. The Tribunal, in our view, was not correct in holding that this charge

against the respondent No.1 does not stand established on the basis of the material

available on record. As noted earlier, the eligibility criterion was fixed by none

other than the respondent No.1. Advertisements were issued in the newspaper,

inviting applications from those who fulfilled the published eligibility criteria. The

Screening Board found only two out of the four applicants to be eligible and

accordingly recommended that only those two who were found eligible by them, to

be called for interview. The respondent No.1, however, decided to call all the four

applicants for the interview. Once the educational qualifications were fixed and

duly notified by way of advertisements in newspapers, it was not permissible to

anyone, including the respondent No.1 who himself had approved those

educational qualifications, to allow anyone who did not possess the notified

qualification, to appear for the interview. If none of the applicants was eligible for

the post, on account of none of them having experience of ten years, it was not

open to anyone, including the respondent No.1 to permit any or all of them to

appear in the interview. If no eligible candidate applied for the post of

Headmaster, the only option available to the respondent No.1 was to re-advertise

the post either with the same qualification and experience and experience or with

revised educational qualification and/or experience. The respondent No.1 could

not have allowed any ineligible person to appear in the interview, so long as the

educational qualification and/or prescribed experience, if any, were not relaxed and

the relaxed qualification and experience were not duly notified to the public. It has

to be kept in mind that had the essential qualifications and/or experience been

revised and notified to the public, those who did not fulfil the qualifications and

experience that were initially notified, but fulfilled the revised qualification and

experience, could also have applied for the post. By allowing ineligible persons to

appear in the interview and appointing one such person, the respondent No.1

denied opportunity to others, who did not possess the initially prescribed marks in

graduation, but possessed as many marks as Shri S. Majumdar possessed, to apply

and compete for the post of Head Master in BSF school.

23. The next question which comes up for consideration is as to whether the act

of the respondent No.1 in allowing all the four applicants to appear in the interview

was a bona fide, though wrong, decision or it was an act of favoritism. As noted

earlier, the Screening Board had recommended only two persons to be called for

the interview and Shri S.S. Majumdar was not one of them. The circumstances of

the case indicate that by allowing all the four applicants to appear in the interview,

the respondent No.1 clearly favoured Shri S.S. Majumdar. Though the second

person who was not recommended by the Screening Board but was allowed to

appear in the interview was also a beneficiary of the decision and in case none of

the applicants was eligible to be called for the interview, all of them were

beneficiaries of the decision, the subsequent conduct of the respondent No.1 clearly

indicates that the aim of the respondent No.1 in allowing all the four candidates to

appear in the interview was to favour Shri S.S. Majumdar, by appointing him as the

Headmaster. Had the respondent No.1 permitted only Shri S.S. Majumdar while

disallowing the fourth candidate to appear for interview, the favour would have

been just too obvious and too open. The act of the respondent No.1, firstly, in

appointing Shri S.S. Majumdar and then, appointing him as a regular teacher and

that too retrospectively, from the date he was appointed as Headmaster, is a clear

indicator that he intended to benefit none other than Shri S.S. Majumdar when he

allowed all the four applicants to appear in the interview. Therefore, in our view,

the act of the respondent No.1 in allowing Shri S.S. Majumdar to appear in the

interview for the post of Headmaster in BSF Primary School was an act of

favoritism, amounting to misconduct.

24. Had this been a case only of recommendation of an ineligible person for his

appointment to the post of Head Master, the decision of Supreme Court in the case

of Bongaigaon Refinery & P.C. Ltd. (supra), would have been applicable and it

could have been said that the decision of the Selection Board, being unanimous, the

respondent No.1 could not have been selectively targeted for the disciplinary

action, for recommending an ineligible person for appointment to the post. Here,

the misconduct on the part of the respondent No.1 is established from a series of

acts in (i) his allowing Shri S.S. Majumdar to appear in the interview, despite his

being not eligible (ii) his selection by the Selection Board chaired by the

respondent No.1 and (iii) his appointment by the respondent No.1 in his capacity as

IG, North Bengal, followed by his appointment as a regular teacher with

retrospective effect which clearly indicate that the purpose of allowing the

ineligible candidates to appear in the interview was to enable Shri S.S. Majumdar

to appear in the interview so that he could be selected and appointed as the Head

Master of BSF Primary School.

25. We would like to take note of the fact that no codal formalities were

observed by the respondent No.1 in appointing Shri S.S. Majumdar as a primary

teacher on his resigning from the post of Head Master. The Tribunal has observed

that the codal formalities were not brought on record during the course of the

inquiry. Even if it is so, since the appointment of Shri S.S. Majumdar as a regular

was made without even constituting a Selection Committee which would be the

essential codal formality for any such appointment and he possessed less than 45%

marks in his graduation, it cannot be said that the finding recorded by the

Disciplinary Authority with respect to this charge was based on no evidence or was

perverse in law or on facts. It was contended by the learned counsel for the

respondent No.1 that appointment of Shri S.S. Majumdar as a regular teacher was

not the charge against the respondent No.1 and, therefore, it was not open to the

Disciplinary Authority to hold him guilty for the said appointment. A perusal of

the Imputation of Misconduct or misbehaviour with respect to this charge would

show that it was clearly alleged therein that on the day Shri S.S. Majumdar

resigned from the post of Head Master, he was appointed as a Primary Teacher

with effect from the date he had joined as Head Master and his appointment as a

regular teacher was in violation of policies/instructions circulate by FHQ. It was

also stated that no Selection Committee was constituted with regard to the

appointment of Shri S.S. Majumdar as a regular teacher nor was the approval of

FHQ taken. Besides that, Shri S.S. Majumdar had secured only 43% marks in his

B.Sc., whereas one of the essential conditions for such appointment was 45% in

aggregate in the degree examination. In his reply to the charge-sheet, the

respondent No.1 stated that Shri S.S. Majumdar was regularized as a school

teacher because he was the senior most temporary teacher to be regularized,

already having served as temporary teacher for 10 years. In his reply, the

respondent No.1 did not dispute that the appointment of Shri S.S. Majumdar as a

regular teacher was in violation of policies/instructions circulated by the FHQ since

no Selection Board was constituted for his appointment as regular teacher nor was

the approval from FHQ taken. He also did not dispute that the essential

qualification for appointment as regular teacher was 45% marks in aggregate in the

degree examination. He expressly admitted that Shri S.S. Majumdar had 43%

marks in his graduation. Since the respondent No.1 did not claim that he had

violated the policies/instructions circulated by FHQ in appointment of Shri S.S.

Majumdar as a regular teacher nor did he dispute a person could be appointed as a

regular teacher only if he had obtained at least 45% marks in graduation, it was not

necessary for the Department to prove by producing documentary evidence, during

the course of the inquiry, that the aforesaid appointment was contrary to the

policies/instructions issued by BSF in this regard. In any case, it can hardly be

disputed that setting up a Selection Committee for appointment of a regular teacher

would be an essential codal requirement for any appointment under the

Government and appointment of a person who did not possess the minimum

prescribed marks in his graduation, would also be illegal. The respondent No.1

claimed that he had regularized Shri S.S. Majumdar as a teacher as he was the

senior most teacher and has experience of 10 years. There is no evidence of BSF

having formulated a policy for regularization of temporary teachers as regular

teachers nor was any such policy alleged by the respondent No.1 in his reply to the

charge-sheet. In the absence of any such policy, the respondent No.1 could not

have regularized Shri S.S. Majumdar as a school teacher even if he had the

experience of 10 years. Added to this, is the fact that on account of his having

secured less than 45% marks in the graduation, Shri S.S. Majumdar was not

eligible to be appointed as a regular teacher. On the top of it, Shri S.S. Majumdar

was appointed as regular teacher with a retrospective effect and not prospectively.

These are the circumstances, indicating that the respondent No.1 was determined to

favour Shri S.S. Majumdar and that is why he first allowed him to appear in the

interview despite his not being an eligible even in terms of the educational

qualification fixed by the respondent No.1 himself, then the Interview Board

headed by him recommended his appointment, the respondent No.1 accepted the

recommendation as IG, BSF and appointed Shri S.S. Majumdar as the Head

Master of the primary school and when the matter was reported to the Headquarter

and Shri S.S. Majumdar had no option but to resign, the respondent No.1

appointed him as a regular teacher with retrospective effect.

26. It has come in evidence that as many as 7 persons were appointed as

teachers, none of whom were eligible and Shri S.S. Majumdar was only one of

those teachers. However, the fact remains that as far as the respondent No.1 is

concerned, he appointed only Shri S.S. Majumdar. The remaining teachers having

been appointed by other officers of BSF and the appointment made by him was an

act of favouritism as is evident from the facts and circumstances discussed

hereinabove. Even if we proceed on the basis that the respondent No.1 could not

have been held guilty of showing favour to Shri S.S. Majumdar in his appointment

as a regular teacher, his subsequent conduct in appointing him as a regular teacher,

with retrospective effect, without even the basic codal formality of constitution of a

Selection Committee and without his possessing the prescribed minimum marks, is

a strong circumstance which indicates that the appointment of Shri S.S. Majumdar

as the Head Master of the primary school, Kadamatala was an act of favouritis m

shown to him by the respondent No.1. It has also come in evidence that later on,

when the respondent No.1 sought to terminate the services of all the seven teachers,

BSF Headquarter allowed them to continue. This, to our mind, was a decision

taken on administrative grounds and does not absolve the respondent No.1 from the

act of favour shown by him to Shri Majumdar. We, therefore, disapprove the view

taken by the Tribunal with respect to his charge and hold that the finding of the

Disciplinary Authority with respect to this charge was justified on facts and in law.

Article-V

27. In a nutshell, the charge is that one Brijesh Kumar was appointed as

Follower in BSF on the basis of a domicile certificate showing him to be a resident

of PS Matigara, District Darjeeling (West Bengal), whereas actually he was a

resident of Balia, District Uttar Pradesh. It is alleged that the respondent No.1

rejected the candidature of one cook, one sweeper, one water carrier and one

washer man, recommended by the Board of officers, which included a medical

officer, on account of their being overweight/underweight, despite they having

been found fit by the Medical Officer and Shri Brijesh who was earlier found unfit

by the Recruitment Board was asked to submit an application for another medical

examination in which he was declared fit and later appointed as a sweeper in BSF.

The Inquiry Officer held the charge to be not proved. The Disciplinary Authority,

however, held the charge to be partly proved and recording the following

disagreement note in this regard:-

"The service records of Shri Brijesh Kumar, recruited as a Follower by the Charged Officer show his domicile as Village Ujanu Shivnagar, Dist. Darjeeling. The residents of North Bengal Districts and Sikkim are only eligible to appear before the Recruitment Board for selection to the post of Followers. The domicile certificate of Shri Brijesh Kumar issued by the SDO, Silliguri shows his domicile as Village-Digilijote, PO-Kadamatala. Neither any examination of SDO staff, Siliguri, nor steps were taken by the Charged Officer for verification of the records of the SDO, Silliguri to confirm the genuineness of domicile of Shri Brajesh Kumar. During the inquiry, the prosection did not produce the evidence to show that Shri Brajesh Kumar belongs to Balia, in U.P."

The Tribunal noted that the Presenting Officer had not pressed this charge

and hence, there could be no reason or even justification to examine the evidence

and hold the charge to be proved or partly proved. It was further observed that the

allegations on which the charge was held to be proved, were not the subject matter

of the charge and, therefore, no finding of guilt could have been recorded on the

basis of such allegations. The Tribunal, in taking this view relied upon the decision

of Supreme Court in M.V. Bijlani v. Union of India & Ors.: AIR 2006 SC 3475,

where the Apex Court, inter alia, observed as under:-

"..........He cannot enquire into the allegations with which the delinquent officer has not been charged with.........."

In Director (Inspection & Quality Control) Export Inspection Council of

India and Others v. Kalyan Kumar Mitra & Others: 1987 (2) CLJ 344 it was held

that the Inquiry Officer is not permitted to travel beyond the charges and any

punishment imposed on the basis of the finding which was not the subject matter of

the charges is wholly illegal.

The ratio of these judgments is that a person cannot be held guilty of acts

which did not form part of the charges served upon him.

28. On a perusal of the Articles of Charge and Imputation of Misconduct or

Misbehaviour served upon the respondent No.1 with the reasons for disagreement

recorded by the Disciplinary Authority in the disagreement note, we find that the

conclusions drawn by the Disciplinary Authority, with respect to this Article of

Charge, were altogether different from the allegations contained in the charge-sheet

served upon the respondent No.1. In the charge-sheet, there was no allegation that

the respondent No.1 had failed to examine the record of SDO, Siliguri to confirm

the genuineness of the domicile of Shri Brijesh Kumar, or that when the

discrepancies with respect to his domicile were brought to the notice of the

respondent No.1, he failed to take action against Shri Brijesh Kumar. The

respondent No.1 therefore, was not subjected to any inquiry with respect to the

charges which the Disciplinary Authority held to be proved against him, under

Article V of the charge-sheet. In any case, the Inquiry Report does not disclose any

evidence on the basis of which such a finding could be recorded by the

Disciplinary Authority. With respect to the allegation contained in the charge-

sheet, the Inquiry Officer noted that the Presenting Officer, in his written brief, had

stated that the witnesses had failed to prove anything against the respondent No.1,

as far as this charge was concerned. It was also noted by the Inquiry Officer that

the respondent No.1 had observed „overweight/underweight‟, while rejecting the

recommendation of the Board in respect of 04 candidates. He also noted that the

department had not produced any evidence to show that Shri Brijesh Kumar

belonged to Balia. He took note of the fact that in his deposition SW-31 Shri

Brijesh Kumar had stated that though his place of birth was Balia, after passing

High School in 1995 he had worked in his father‟s barber shop in Siliguri and the

domicile certificate was issued to him by the Councilor from Ward No.46 in

Matigara, Siliguri. Shri Brijesh Kumar also stated before the Inquiry Officer that

he was found medically unfit due to „hydrosil‟ and thereafter he went to Review

Medical Board which declared him fit. Another witness Shri Stephen Tirky, in his

deposition as SW-30, stated before the Inquiry Officer that Shri Brijesh Kumar was

in fact a domicile of West Bengal. No fault, therefore, can be found with the

conclusion drawn by the Inquiry Officer with respect to this charge. We are of the

view that the finding of the Disciplinary Authority with respect to this charge,

besides being beyond the charge-sheet served upon the respondent No.1, was also

based on no evidence at all and, therefore, was vitiated in law.

Article No. VI

29. The allegation against the respondent No.1 is that vehicle No. WB-74 J

4337, which was detailed to proceed to THQ 89 Battalion of BSF located in Patna

was taken by him to his home place in Balia District of UP. It is also alleged that

Constable Anil Kumar, who accompanied him to his native place and who was

issued 50 live rounds fired 41 rounds during the marriage function and returned

only 09 rounds on his return from the tour and the shortage was made up by

manipulating the record.

The respondent No.1, while replying to the charge-sheet, admitted that he

had taken the aforesaid vehicle to his native place in Balia on his visit to attend the

wedding of his son, solemnized on 15.2.2006. He claimed that since he was a „Y‟

category protectee due to threat from Naxalities he had taken the vehicle as his

escort vehicle from Patna to Balia. He also admitted that Constable Anil Kumar

had accompanied him to the aforesaid marriage. He further stated that earlier,

ADGP (Intelligence) Andhra Pradesh had intimated AFHQ about his security

categorization and providing security to him as per „Y‟ scale and on the basis of

that message AFHQ had asked North Bengal Frontier to take necessary action.

According to him, in his honest belief, he thought that the endorsement was enough

for him to take security as per the prescribed scale and depending upon the threat

and local circumstances. Regarding use of ammunition, he claimed that no

government ammunition was used to his knowledge and all the 50 rounds issued to

Constable Anil Kumar were deposited by him with the Headquarter.

It is thus, an admitted case that vehicle No. WB-74 J 4337 which was

detailed to proceed to THQ-89 Battalion of BSF, did not report at its destination

and the respondent No.1 took the aforesaid vehicle to his native place in Balia

along with 03 BSF personnel including Constable Anil Kumar. The only question

which arises for consideration is whether the respondent No.1 had the permission

for using the aforesaid vehicle as an escort vehicle, on his private visit or he was

otherwise entitled to an escort vehicle on his private visit without any prior

permission from BSF Headquarter. The Inquiry Officer held that though the

respondent No.1 was provided „Y‟ category security, he was not entitled to an

escort vehicle for his road journeys, even under „Y‟ category security and therefore

use of the aforesaid vehicle by the respondent No.1 was not justified nor was it

permitted by the Competent Authority. During the course of arguments before us,

the learned Counsel for the respondent No.1 relied upon a letter dated 8.7.2005

purporting to be written by Directorate General of BSF to Inspector General, HQ

North Bengal Frontier of BSF stating therein that DGP, Intelligence, Hyderabad

had intimated that the respondent No.1 was categorized as „Y‟ security and

therefore necessary security be provided to him. Annexed to his letter is the copy

of a letter dated 1.7.2005 sent by DG of BSF to FTR HQ BSF North Bengal,

forwarding a photocopy of the message received from Additional Director General

of Police (Intelligence) Andhra Pradesh. A copy of the message sent by Additional

Director General (Intelligence) Andhra Pradesh, which is annexed to this letter,

would show that vide his message BSF was requested to provide security, as per

„Y‟ scale category, to the respondent No.1. A list of categorized police officers

was also made available to us by the learned Counsel for the respondent No.1.

This list would show that the respondent No.1 was entitled to „Y‟ category security

with bullet proof car. However, vehicle No. WB-74 J 4337, which the respondent

No.1 took to Balia on his private visit was used as an escort vehicle and not as the

vehicle in which he travelled to Balia. Though the respondent No.1 was entitled to

a bullet proof car, for his personal travel, there is no material on record to show that

he was entitled to an escort vehicle. There is no document on record to indicate

that the respondent No.1 asked for any permission to take the aforesaid vehicle as

an escort vehicle on his private visit to Balia. There is no evidence on record to

indicate that a „Y‟ class protectee was entitled to an escort vehicle. Therefore, it

cannot be disputed that the respondent No.1 misused the government vehicle No.

WB-74 J 4337, by using it as an escort vehicle, on his private visit to Balia on the

occasion of marriage of his son. The Tribunal felt that the charge was held to be

partly proved, without taking into consideration the explanation of the respondent

No.1 that as a „Y‟ class protectee he was entitled to round-the-clock security,

including a bullet proof vehicle and no permission was therefore required to take

vehicle, in question, to Balia. The Tribunal was of the view that they had two

options available to them in the matter; the first being to remit the matter to the

concerned authorities, but, in the peculiar facts and circumstances of the case, they

were refraining from doing so, because the charge, to the extent it was held to be

proved, was required to be ignored, inasmuch as the respondent No.1 was entitled

to take the vehicle and PSOs to Balia and therefore not obtaining prior permission

for this purpose, would not be a serious issue. We are, however, not in agreement

with the view taken by the Tribunal, for the simple reason that even if we proceed

on the assumption that the respondent No.1, being a „Y‟ class protectee, was

entitled to a bullet proof car even on his private visits, he certainly was not entitled

to use a vehicle of BSF as an escort vehicle, whereas, vehicle No. WB-74 J 4337

was used by him as an escort vehicle and not as the vehicle for his personal travel

to Balia.

30. It was contended by the learned Counsel for the respondent No.1 that if the

Disciplinary Authority disagreed with the findings of the Inquiry Officer, it could

have only recorded tentative reasons for the disagreement, whereas in the present

case, the Disciplinary Authority concluded in the reasons for the disagreement

itself that the charge against the respondent No.1 had stood proved and therefore

the order imposing penalty is liable to be struck down, on this ground alone. In

support of his contention, the learned Counsel for the respondent No.1 relied upon

Yoginath D. Bagde v. State of Maharashtra & Anr.: (1999) 7 SCC 739.

In the case before Supreme Court, the Inquiry Officer had recorded the

findings that the charges against the respondent No.1 were not proved. These

findings were submitted to the Disciplinary Committee which disagreed with those

findings and issued a notice to the appellant requiring him to show-cause why he

should not be dismissed from service. The reasons on the basis of which

Disciplinary Committee disagreed with the findings of the District Judge were also

communicated to the appellant along with the show-cause notice. However,

instead of forming a tentative opinion, the Disciplinary Committee had come to

final conclusion that the charges against the appellant were established. Allowing

the appeal filed by the delinquent, the Supreme Court inter alia held as under:

"In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges leveled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.

Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank and Ors. v. Kunj Behari Mishra (1998) II LLJ 809 SC, were violated. ..............a final decision with regard to the charges leveled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the Disciplinary Authority that the findings already recorded by the Enquiry Officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case."

In the case before this Court, the Inquiry Officer, in his report in respect of

Article IV held that the evidence on record established that the appointment of Shri

Mazumdar as primary teacher was not in accordance with BSF Education Code and

the charge had been partly proved to the extent of wrong selection of Headmaster

and Primary Teacher in BSF Primary School by the respondent No.1, without any

favourtism and manipulation. The only disagreement recorded by the Disciplinary

Authority was with respect to the allegations of favourtism and manipulation,

which the Inquiry Officer held to be not proved but the Disciplinary Authority held

to be proved. As far as Article VI is concerned, the Inquiry Officer held the same

to be partly proved and there was no disagreement note recorded by the

Disciplinary Authority. A perusal of the letter dated 6.10.2009 whereby the

disagreement note was forwarded to the respondent No.1 through the Chief

Secretary Government of Andhra Pradesh, would show that the disagreement note

along with the copy of CVC's second stage advice was forwarded to the respondent

No.1 and he was advised to submit his representation, if any, on the same within 15

days from the date of receipt of the letter. (emphasis supplied). In the case of

Yoginath (supra) while supplying copy of a disagreement note to the appellant, he

was called upon to show-cause against the proposed punishment of dismissal,

whereas in the case before this Court no punishment was proposed in the letter

dated 6.10.2009 whereby the disagreement note was sent to the respondent No.1.

In the case before Supreme Court, no opportunity was given to the appellate to

convince the Disciplinary Authority that the findings already recorded by the

Inquiry Officer were just and proper and there was no good ground for reviewing,

the findings or taking of a contrary view by the Disciplinary Authority. On the

other hand, in the case before this Court, the respondent No.1 was particularly

advised to submit his representation on the disagreement note and CVC's second

stage advice as well as on the report of the Inquiry Officer. The respondent No.1

therefore had adequate opportunity to convince the Disciplinary Authority that the

findings recorded by the Inquiry Officer did not call for any review by it, the

reasons recorded in the disagreement note were not germane and the finding

recorded by the Inquiry Officer was not liable to be interfered with. It is also not in

dispute that the respondent No.1 did submit a detailed reply on receipt of

communication from the Disciplinary Authority and a perusal of the order dated

8.9.2010 whereby penalty was imposed on the respondent No.1 would show that

the submissions made by the respondent No.1 were duly considered by the

Disciplinary Authority before concluding that a major penalty needs to be imposed

on him. The order would also show that on receipt of submissions of the

respondent No.1 the matter was referred to UPSC for its statutory advice and

thereafter only a decision was taken to impose a major penalty of dismissal of

service on the respondent No.1. Therefore, though the Disciplinary Authority did

not say that the findings recorded in the disagreement note were tentative, the facts

and circumstances indicate that the findings were treated by the Disciplinary

Authority only as tentative findings and that is why the respondent No.1 was given

an opportunity to make a representation against those findings and the submissions

made by him were duly considered, in consultation with UPSC, before imposing

penalty upon the respondent No.1. Therefore, the findings ultimately recorded by

the Disciplinary Authority do not stand vitiated in law on account of findings in the

disagreement note not being termed as tentative.

31. For the reasons given in the preceding paragraphs we are of the view that the

finding of the Disciplinary Authority in respect of Article IV of the charge-sheet

which was held to be fully proved and Article VI which was held to be partly

proved cannot be said to have been passed on „no evidence‟ or were otherwise

perverse inasmuch as it could not be said no reasonable person acting on the basis

of the material disclosed during the course of the inquiry could have taken such a

view. Therefore, in our view the Tribunal was not justified in interfering with the

findings recorded by the Disciplinary Authority in respect of the aforesaid two

Articles of Charge.

CONCLUSION

32. In view of the foregoing discussion, we are of the view that

the impugned order passed by the Central Administrative Tribunal, to the

extent it held that none of the charges against the respondent No.1 was

proved or partly proved, cannot be sustained. However, since the order

passed by the Disciplinary Authority imposing penalty of dismissal

from service upon the respondent No . 1 was based on the premise that

Articles I, II, III and IV were fully proved and Articles V & VI were partly proved,

it cannot be allowed to stand, and the Disciplinary Authority is required to pass a

fresh order on the question of penalty, taking Article No. IV as proved and Article

VI as partly proved as indicated in this order. We therefore, while setting aside the

impugned order passed by the Tribunal, direct the Disciplinary Authority to pass a

fresh order on the quantum of punishment within 06 weeks from the date of this

order. In the facts and circumstances in the case, there shall be no order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

FEBRUARY 01, 2012 Bg/'sn'/vn