The Union Of India vs Sh. M.N. Saxena
2014 Latest Caselaw 3980 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on: 28.08.2014

+                         W.P.(C) 3533/2007

       THE UNION OF INDIA                    ..... Petitioner
                Through : Sh. Manish Mohan, CGSC with Ms.
                Manisha Rana Singh, Advocate.

                          Versus

       SH. M.N. SAXENA                      ..... Respondent

Through : Ms. Tamali Wad with Sh. Bir Singh, Advocates.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. The petitioner is aggrieved by an order of the Central Administrative Tribunal (CAT) dated 10.01.2007 in O.A. No. 2450/2004. The respondent/applicant, who, at the relevant time was working as Assistant Enforcement Officer, challenged a disciplinary order dated 03.02.2004, which imposed a penalty of compulsory retirement upon him. The CAT, by its order set aside the penalty, but at the same time granted liberty to the petitioner/UOI to initiate fresh disciplinary proceedings after reinstating the respondent/applicant, and continue the said proceeding from the stage of issue of chargesheet.

W.P.(C) 3533/2007 Page 1

2. Briefly the facts are that the respondent was working as an Assistant Enforcement Officer, a post to which he was appointed in the year 1983. On 17.10.2000, a major penalty chargesheet was issued against the applicant, containing one article of charge which alleged, inter alia, that during the course of his official functioning from 17.04.1998 to 11.06.1999, he was deployed to investigate a case relating to outstanding export proceeds in respect of M/s. Iqbal International. He unauthorisedly met the proprietor of the said concern

- Sh. R.S. Chauhan beyond the official working hours without informing his superior officers. It was also alleged that the respondent had demanded illegal gratification from the said Sh. R.S. Chauhan. The last allegation levelled was that Sh. R.S. Chauhan had handed- over a video cassette containing a recording which showed the respondent/applicant in a compromising position with some woman, thus showing the department in poor light. The charges were resisted by the applicant. In the course of departmental proceedings, the Enquiry Officer (EO) proved in his report two charges, i.e. of unauthorisedly meeting Sh. R.S. Chauhan without reporting to the superior officers, and that pertaining to the video cassette recording. The EO, however, held that the charge of demand of illegal gratification could not be proved. As a matter of fact, in the course of enquiry, Sh. R.S. Chauhan, the alleged complainant, did not present himself or record his statement - either in support of the charge of demand of illegal gratification. or as to the video recording. After duly considering the report, the disciplinary authority disagreed with the exoneration recorded in respect of the charge of demand of illegal

W.P.(C) 3533/2007 Page 2 gratification. Ultimately, the penalty of compulsory retirement was imposed. The departmental appeal of the respondent was also dismissed. Consequently, the respondent approached the CAT.

3. The CAT noted that contrary to the law declared by the Supreme Court in Ministry of Finance v. S.B. Ramesh 1998 SCC (L&S) 865, the materials in the form of complaints and the statement alleged to have been recorded by Sh. R.S. Chauhan were not proved in the course of the enquiry. It appears that the respondent/applicant had also relied upon the effect of Rule 14(18) of the CCS (CCA) Rules, 1965, which requires that the materials gathered in the course of preliminary enquiry or any other adverse material have to be formally substantiated in the course of regular departmental proceedings. Furthermore, the CAT was of the opinion that on an overall conspectus of circumstances, in the absence of the complainant, the conclusions arrived at by the disciplinary committee cannot be supported. As a consequence, the CAT in this regard noted as follows:

"11. Having regard to the aforesaid principle though the strict rules of evidence are not applicable in the disciplinary proceedings, which is based on preponderance of probability, yet when a document is tendered in the enquiry it cannot be cross-examined being a non-living entity by the concerned person. Behind the back of a Government servant any number of complaints could be filed but once the complainant comes in the witness box to depose to the authenticity of the contents of the complaint and when he is put to cross-examine as a part of reasonable opportunity to defend to the Government servant the process of a fair hearing is completed, yet when the documents are adduced in the enquiry, which are

W.P.(C) 3533/2007 Page 3 procured by on its own and have not been confronted with by the charged officer, it not only deprives him a reasonable opportunity to put question in cross- examination but to make his defence. Non-examination of the witness, despite availability, is an infraction to audi alteram partem and also injustice to the concerned. Gravity of misconduct may be a determining factor for punishment but before hand it has to be established in accordance with law and rules, which, inter alia includes accord of reasonable opportunity.

12. In the light of the above, it is admitted that along with the memorandum only three documents, i.e. letters written by Shri Saxena, had been filed but there was no list of witnesses attached. Later on, when the presenting officer was asked to name his witnesses he refused to cite any witness and as a result thereof these letters have been accepted and relied upon by the EO to hold applicant guilty of the charge. It is pertinent to note that neither the witness was examined who had written these letters nor was applicant afforded an opportunity to cross-examine him. Even by the standard of preponderance of probability such a procedure is not legal.

13. The Apex Court in S.B. Ramesh's case (supra) held as follows:

"14. Then, again after extracting the relevant portions from the disciplinary authority's order. The Tribunal observed as follows :-

"We have extracted the fore-going portions from the order of the disciplinary authority for the purpose of demonstrating that the disciplinary authority has placed reliance on a statement of Smt. K. R. Aruna, without examining Smt. Aruna as a witness in the inquiry and also on several documents collected from somewhere without establishing the authenticity thereof to come to a finding

W.P.(C) 3533/2007 Page 4 that the applicant has conducted himself in a manner unbecoming of a Government servant. The nomination form alleged to have been filed by Sri Ramesh for the purpose of Central Government Employees' Insurance Scheme, was not a document which was attached to the memorandum of charges as one on which the Disciplinary Authority wanted to rely on for establishing the charge. This probably was one of the documents which the applicant called for, for the purpose of cross-examining the witness or for making proper defence. However, unless the Government servant wanted this document to be exhibited in evidence, it was not proper for the Enquiry Authority to exhibit it and to rely on it for reaching the conclusion against the applicant. Further, an inference is drawn that S.B.R. Babu mentioned in the school records (admission registers and Sh. Ramesh mentioned in the Municipal records was the applicant, on the basis of a comparison of the hand-writing or signature or telephone numbers are only guess work, which do not amount to proof even in a disciplinary proceedings. It is true that the degree of proof required in a departmental disciplinary proceeding, need not be of the same standard as the degree of proof required for establishing the guilt of an accused in a criminal case. However, the law is settled now that suspicion, however strong, cannot be substituted for proof even in a departmental disciplinary proceeding.

Viewed in this perspective we find there is a total dearth of evidence to bring home the charge that the applicant has been living in a manner unbecoming of a Government servant or that, he has exhibited adulterous conduct by

W.P.(C) 3533/2007 Page 5 living with Smt. K. R. Aruna and begetting children."

15. On a careful perusal of the above findings of the Tribunal in the light of the materials placed before it, we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the appellants. On the facts of this case, we are of the view that the departmental enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it."

14. In the light of the above, the enquiry is vitiated on the ground of relying upon a material which has not been established and proved in accordance with law. Consequently, the penalty and its affirmation meet the same fate.

15. Another illegality which has cropped up in the proceedings is the tentative view taken on disagreement by the DA. Unless the reasons are given in its tentative form, which would not be taking up a final view by the DA of the matter, the concerned in whose favour the finding has been given by the EO would be well equipped to rebut the view point of the DA as to its disagreement. Failure to record tentative reasons and disagreeing mechanically on ipsi dixit and in the present case a vague statement as to adequate evidence available before the EO without any further detail as to what material and evidence was there has put applicant to a Herculean task to investigate into as to what was the material against him and evidence thereof which had weighed in the mind of the DA to disagree. The reasons may be tentative and cannot be in air but should be deduced in black and white. Failure to record tentative

W.P.(C) 3533/2007 Page 6 reasons has denied applicant a reasonable opportunity, which, in turn, an infraction to the principles of natural justice."

4. It is urged on behalf of the UOI that the CAT fell into error in concluding - as it did, that the procedure followed was contrary to the rules. It is submitted in this regard that so far as the video recording is concerned, the answers given by the applicant/respondent in response to the questions clearly show his admission about the recording pertaining to his activities. Emphasizing that strict rules of evidence are inapplicable in disciplinary proceedings, learned counsel submits that the CAT's inference with the findings of the enquiry were, therefore, not warranted, in the circumstances of the case.

5. Learned counsel for the respondent/applicant highlighted, on the other hand, that even the statement allegedly admitting the guilt was supposedly recorded in the course of preliminary enquiry, neither was that statement nor were materials in support of such charge ever produced in the course of the departmental proceedings or made known to the petitioner who was not formally put such questions. It was also highlighted that the three complaints, - of one Sh. Saxena, were never proved as no individual supported them during the course of enquiry. Learned counsel also stated that Sh. R.S. Chauhan, from whom the illegal gratification was allegedly demanded, and who allegedly gave the video recording, never appeared in the departmental enquiry. In these circumstances, learned counsel for the applicant submits that the CAT's findings were justified and warranted.

W.P.(C) 3533/2007 Page 7

6. Whilst the Union is not entirely incorrect in contending that the standard of proof in disciplinary proceedings cannot be equated with formal legal proceedings, yet the enquiry proceedings have to be credible in order to be upheld in judicial review. In the present case, the CAT noted - a fact also supported by the enquiry proceedings, that Sh. R.S. Chauhan, a vital source of information on the charge of demand of illegal gratification as well as the video recording - which he allegedly handed over to the concerned Enforcement Directorate, was never produced during the course of proceedings. Learned counsel sought to urge that it is quite likely that the said complainant had been won over. That is a possibility. However, even if that were to be so, it goes without saying that some rudimentary procedure to prove the authenticity of the video recording, such as - who recorded it, the date or dates when the recording took place, the place where it was made, and the evidence to show that there was no possibility of tampering - had to be necessarily shown, before establishing how it was relevant for the charge. Neither was the source, i.e. Sh. R.S. Chauhan, a witness in the disciplinary proceedings, nor was there any other material to establish the charge of illegal gratification. Likewise, Sh. R.S. Chauhan would have been the most relevant single witness to establish the charge of unauthorized meeting of the respondent applicant with him on the relevant dates.

7. In these circumstances, the Court is of the opinion that the CAT's findings and orders were entirely justified. In the light of the above conclusions, we find no infirmity with the order of the CAT.

W.P.(C) 3533/2007 Page 8 The UOI is directed to reinstate the respondent in service and comply with the order of the CAT in accordance with the Fundamental Rules (FRs) and release such consequential benefits as are admissible to him. This entire exercise shall be completed within four weeks from today. The writ petition is accordingly dismissed subject to above directions.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) AUGUST 28, 2014 'ajk'

W.P.(C) 3533/2007 Page 9