V.N. Gaur, Member (A):
The applicant, an Ex-Assistant of Ministry of Defence had originally filed this OA against the order of dismissal passed by the Disciplinary Authority (DA) on 10.10.2007, with the following prayer:
(i) Quash and set aside the orders No.A/27639/CAO/DD/01 dated 10.10.2007 of the Disciplinary Authority.
(ii) Quash and set aside the order No.A/27639/CAO/DD/01 dated 7.4.2008 of the Appellate Authority.
(iii) Direct the respondents to grant all consequential relief and other relief to which the applicant is entitled to.?
2. The case was heard and this Tribunal came to the following conclusion in its order dated 21.10.2010:
œxxx xxx xxx
The question is whether the power to hold further inquiry is available when some important witnesses were not available at the time of inquiry or were not examined for some other reason, the DA may ask the IO to record further evidence. This was not a situation. The witness after all the procedure adopted had not turned up, it cannot be said that he was not available. As such, in the guise of further inquiry the de novo inquiry totally discarding the first report, which was not even supplied to the applicant having been held and resulted in the penalty of dismissal upon applicant, is not within the jurisdiction, as prescribed under Rule 15 of the Rules.
11. On this ground alone, leaving other grounds open, OA succeeds to the extent that the impugned orders passed are illegal. Resultantly, OA is partly allowed. Impugned orders are set aside. Applicant shall be reinstated forthwith in service with all benefits. However, the interregnum period as regards back wages would be decided as per the rules and instructions on the subject. However, this shall not preclude the respondents, if so advised, to initiate further inquiry from the stage of furnishing applicant of the first inquiry report and thereafter giving an opportunity to him. In that event, law shall take its own course. No costs.?
3. The respondents in this OA filed WP(C) 8705/2010 in the above-mentioned order of this Tribunal before the Honble High Court of Delhi, which was disposed of on 25.09.2012, with the following directions:
œ26. In view of the foregoing discussion, the inquiry conducted by Mr Sinha cannot be regarded as a de novo inquiry. It was merely a 'further' inquiry. Consequently, the impugned order of the Tribunal cannot be sustained. The same is set aside.
27. We note from paragraph 11 of the impugned order that the Tribunal had examined the case only from the standpoint of whether the direction given on 13.02.2004 by the Disciplinary Authority was for a further inquiry or for a de novo inquiry. It is further noticed that the other grounds were not examined by the Tribunal and, in fact the Tribunal has stated in paragraph 11 of the impugned order that the other grounds are left open. Consequently, for considering the other grounds, if any, in O.A., the matter is remitted to the Tribunal. In the first instance the parties shall appear before the Tribunal on 05.11.2012.
Accordingly the matter was remitted back to this Tribunal for considering the issues which were left open.
4. Brief facts of the case are that the applicant while working as an Assistant in MGO Branch/Army Headquarters was issued a charge-sheet on 04.12.2001 with the following charges:
œArt.I:- Shri P Sasi, while working as Assistant in MGO Branch/Army HQrs during the period from 01 May 1998 to 14 Mar 2001 came in contact with Shri Samuel Mathew of Tehelka.com who was impersonating as an agent for a fake firm viz. West-End and assisting the firm in this endeavour of getting an evaluation letter issued for supply of Army equipments for consideration in kind and money.
Thus, by above act Shri P Sasi has shown lack of integrity and acted in a manner unbecoming of a Govt. Servant there by violated Rule 3 (1)(i) and 3 (1)(iii) of the CCS (Conduct) Rules, 1964.
Art-II:- Shri P Sasi while functioning as Assistant in the MGOs Branch/Army HQrs. Min. of def. During 1st May 98 - 14 Mar 2001 passed on official information and documents to persons he was not authorized to communicate.
Thus, by the above said act Shri P Sasi has unauthorisedly communicated official document and information directly/indirectly to unauthorized persons and thereby contravened Rule 11 of the CCS (Conduct) Rules, 1964.?
The applicant was given 10 days time to submit his defence in response to the charges. He requested for copies of listed documents to prepare his defence vide letter dated 24.12.2001 which was not fulfilled completely despite some correspondence. The DA went ahead to appoint Shri Trilochan Raut as Inquiry Officer (IO) vide order dated 01.03.2002. The IO completed the inquiry and submitted his report dated 17.09.2003 to the DA based on the evidence available on record holding Article-I of the charges as partly proved and Article-II as not proved. During the inquiry one prosecution witness Shri Samuel Mathew of Tehelka.com, who had been interacting with the applicant during the sting operation, did not turn up despite issuing of notices by the IO. Considering him to be a key witness, the DA remitted the matter back to the IO vide order dated 13.02.2004 for further inquiry with a view to have the evidence of Shri Samuel Mathew by way of his deposition before inquiry. According to the applicant it was not a further inquiry, it was second or de novo inquiry ordered by the respondents, which was not permissible under the rules and law. The further inquiry/second inquiry was completed by a new IO Shri A. Sinha vide report dated 26.12.2006 holding Article-I of the charge as proved and Article-II as partially proved due to insufficient evidence on record. After following due procedure and taking into account the representation made by the applicant, the DA decided to impose the penalty of dismissal on the applicant.
5. Shri Bharat Bhushan, the learned counsel appearing for the applicant challenged the disciplinary proceedings mainly on the following grounds:
i) The charge-sheet itself was not maintainable because it contained vague averments based on uncorroborated transcript and no specific charge had been made;
ii) The whole case was based on conjectures and surmises; and
iii) The applicant was denied the documents required to lead his defence by the IO/respondents.
6. The learned counsel contended that Article-I of charge only mentioned that the applicant came in contact with Shri Samuel Mathew of Tehelka.com who was impersonating as an agent for a fake firm and assisting the firm in this endeavor of getting an evaluation letter issued for supply of Army equipments for consideration in kind and money. No specifics had been mentioned as to the manner in which the applicant assisted Shri Samuel Mathew in his endeavors. The details of dates or place of the occurrence of such events had also not been given. In Article-II a vague allegation had been made that during the period 1.5.1998 to 14.5.2001 the applicant passed on official information and documents to persons he was not authorized to communicate. There was no mention of what specific information and document was given by him. According to the learned counsel this vagueness of the charge itself was a sufficient ground for this Tribunal to quash the same. The learned counsel further contended that the whole case was based on conversation and alleged transactions recorded on tape by Shri Samuel Mathew and Shri Rajeev Sharma of Tehelka.com. However, despite repeated requests by the applicant the original tapes were not provided to him for inspection. The transcripts that were provided were uncertified excerpts, and not full text, admittedly downloaded from the internet. In reply to the request of the applicant to supply the full text of the transcript the respondents advised him that the same could be downloaded by the applicant also from the internet, if he so desired. The same was the case with the other document, viz. newspaper report, the authenticated copy of which was never supplied to the applicant. In any case, the newspaper report could not be relied for the purpose of disciplinary inquiry. Again Sh. Samuel Mathew represented Tehelka.com who was an interested party being a beneficiary of the sensation created by the so called sting operation. The statement of Shri Samuel Mathew cannot be accepted as a document in support of the allegation against the applicant. Thus the whole premise on the basis of which the charges were framed was based on conjectures and surmises.
7. The applicant was also denied opportunity to defend himself, as full transcript of the interview of the applicant with the reporter of the Tehelka.com was not supplied to him. Besides this, applicant had submitted a list of 25 documents to be examined in defence. Almost all of them were rejected with the cryptic comment like not considered relevant. There were documents mentioned at serial nos.10, 11, 14, 15, 17, 18 and 19 in the list of documents submitted by the applicant to the respondents, which were absolutely essential for preparing his defence but the same were denied to the applicant. For example, the documents at serial no.17 and 18 were affidavits filed by the Government of India before Justice Venkataswamy Commission to the effect that the tapes were not reliable. These documents could prove the contradictory stand taken by the Government of India before Justice Venkataswamy Commission and this Tribunal. It was difficult to fathom as to how these documents were not considered relevant by the IO while denying the copy/access of the applicant to the same. The applicant was severely prejudiced by the denial of the defence documents which were relevant and germane to the defence of the applicant. Elaborating further, the learned counsel stated that the copy of the excerpts of transcript provided to the applicant was not a running document. On the basis of an edited copy of the transcript, no witness could be successfully cross-examined. The complete copy of the document was absolutely essential to satisfy the applicant that the statements had not been quoted out of context. Further the entire text itself was based on the conversation secretly taped by the Tehelka.com journalist, the genuineness of which was denied by the Government of India before Justice K. Venkatswami Commission. The respondents cannot take two different stands before two different forums. During the course of inquiry the I.O. did not seek any clarification from the applicant on the points answered by him as evidence against the applicant as laid down in Rule 14 (8) of CCS (CCA) Rules and thereby did not give any opportunity to the applicant to rebut the same. It was also alleged that his appeal was dismissed ignoring his submissions by the Deputy Chief Administrative Officer, who was not the Appellate Authority.
8. The applicant has further contended that the DA had ordered institution of the second inquiry. The second inquiry was not a further inquiry but a de novo inquiry which was not permitted under the Rules. It was trite law that once a finding has been given by the IO based on the evidence before him, even no further inquiry can be ordered. The applicant was not supplied with a copy of the report of the first inquiry. It has also been submitted that the applicant was not dealing with any information which was classified as secret and he did not disclose any information that was not supposed to be a matter of knowledge amongst the persons acquiring it. This Tribunal in OA-1902/2007 decided on 6.5.2008 held that if officers were to be held guilty of making illegal demand of money on the statements of interested witnesses only, herein sting operators, without there being any further proof, nobody on this earth would be safe. This being evidence tendered by interested party only, cannot be considered admissible without corroboration. To quote, we are of the considered view that if uncorroborated version of interested witnesses are to be believed and officers are to be held guilty of making illegal demand of money on their statement alone without there being any further proof, nobody on this earth would be safe. There is no dearth of unscrupulous people in this world.If their statement alone that a particular officer made demand of money is taken as gospel truth, as mentioned above, nobody will ever escape an allegation of demanding illegal money. The Honble Apex Court in a catena of cases held that the version of interested witnesses unless corroborated is not to be accepted.
9. Per contra, Shri D.S. Mahendru, learned counsel for the respondents drew attention to the order passed by the Honble High Court of Delhi on 25.09.2012 in WP(C)8705/2010 where the issue of further inquiry versus second inquiry had already been settled. The action of the respondents in ordering further inquiry was upheld. Referring to the allegation that the applicant was not supplied the documents to defend his case, the learned counsel referred to the list of documents on which the charges were based, these were:
œ1. Transcript of excerpts of the interview of Shri P Sasi with reporters of M/s Tehelka.com.
2. The written statement of Shri P. Sasi, Asstt dt 14 Mar 2001.
3. News items captioned Samta party treasurer admits having fixed defence deals published in the Hindustan Times dated 4.3.2001.
4. Written statements of Shri Anirudh Behl, Editior-Investigations, Tehelka.com and Shri Samuel Mathew, correspondent, Tehelka.com.?
The respondents had vide letter dated 23.01.2002 supplied all the documents except a news item published in the Hindustan Times dated 04.03.2001 which was available in public domain. Regarding other 25 documents demanded by the applicant it was submitted that the Government of Indias instructions no.23 below Rule 14 of CCS (CCA) Rules, 1965 stipulates that Right of access to official records is not unlimited and it is open to the Govt. to deny such access if in its opinion such records are not relevant to the case or not desirable in the public interest to allow the access. The I.O. had considered relevancy of each documents asked for by the applicant vide daily order sheet no.9 dated 08.07.2002 and the documents which were found to be relevant to the case, were allowed by the IO and the copies of the same were given to the applicants vide separate letter issued as part of the proceeding.
10. With regard to non-supply of the tapes containing recording of the conversations the learned counsel stated that allegation of the applicant has no basis as the transcript excerpts of the interview of the applicant with the reporter of the Tehelka.com were not taken on record by the IO as it could not be authenticated. The entire proceeding was conducted on the basis of the remaining three documents adduced in the inquiry. The learned counsel also produced the original record to show that the applicant had given a handwritten certificate on 14.06.2002 that he had inspected the original statement of Shri Anirudh Bahl and Shri Samuel Mathew, which is reproduced below:
œCertificate
I have been inspected the original statement of Shri Anirudh Bahl and Mathew Samuel. I under take not to divulge the whole or any portion of the document to any other unauthorized/non-entitled person.
Sd/-
(P. Sasi)
14/6/illigible?
11. The charged officer was given the opportunity to produce defence documents and witnesses in his defence. He was also allowed to avail the services of a Defence Assistant and he had engaged Shri Sudhir Kumar as his Defence Assistant. It was his responsibility to ensure the attendance of Shri Sudhir Kumar in all the hearings. He was also given the opportunity to cross-examine Shri Samuel Mathew and Shri Anirudh Bahel. The cross examination of Shri Samuel Mathew, who was the key witness, was carried out by the charged officer on 21 September, 06th, 07th October, 10th October and 13th October in the year 2005 (Para 12 of the Inquiry Report). Shri Samuel Mathew stuck to his statement in the deposition during cross examination. The charged officer produced a copy of the extract of the statement given by Shri Mathew Samuel before the Justice Venkatswamy Commission of Inquiry. However, this extract also revealed that Shri P. Sasi indulged in activities and transactions with unauthorized persons such as Shri Samuel Mathew, Shri Anirudh Behal and Shri Rajiv Sharma alias Anil Malviya and got these individuals introduced to other Government officers. The defence document no where contradicts the deposition of Shri Samuel Mathew that he paid a bribe of Rs.52000/- to Sh. P. Sasi. The charged officer was examined by the Inquiry Officer Shri T. Rout on 19th June 2003 under Rule 14 (18) of the CCS (CCandA) Rules, 1965. Due to administrative reasons Inquiry Officer was changed on 16th June 2004. Shri P Sasi was also examined on 03rd February 2006 by the then Inquiry Officer, Shri A Sinha which has been clearly brought out in para 17 of the Inquiry Officers report contradicting the allegations of the applicant that the provision of Rule 14 (18) had been violated by the Inquiry Officer. The appeal dated 28th November 2007 preferred by Shri P. Sasi against the order of dismissal dated 10th October 2007 was examined by the Appellate Authority viz the Raksha Rajya Mantri on behalf of the President. The decision of the Appellate Authority was conveyed by a reasoned speaking order dated 07th April 2008 under the signature of Dy. Chief Administrative Officer, who is competent to sign an order on behalf of the President. The standard of proof required in a departmental proceeding is preponderance of probability. The Inquiry Officer has found the charges proved on the basis of the deposition of the two prosecution witnesses who withstood the extensive cross-examination by the charged officer during the Court of Inquiry. The deposition of these witnesses before Justice Venkatswamy Commission was beyond the scope of departmental inquiry against Shri P. Sasi.
12. He further submitted that it was not an ordinary disciplinary inquiry as the action of the applicant was prejudicial to the interest of the security of the Country. He also submitted that the scope of judicial review was limited and the Tribunal has to examine whether the laid down procedure and the principles of natural justice have been followed in conducting disciplinary proceedings. In the instant case, the respondents have meticulously followed the laid down procedure ensuring compliance with the natural justice and the applicant was given full opportunity to defend himself. The applicant, on the other hand, has been indulging in dilatory tactics right from the stage of issue of show cause notice by asking documents, which were not relevant to the case. The orders passed by the DA and AA therefore did not suffer from any legal infirmity and the OA was liable to be dismissed.
13. In his rejoinder the learned counsel for the applicant reiterated that the charge-sheet itself was issued on the basis of extracts of documents and not the whole document and when the complete document was not made available to the applicant it was quite possible that the statements extracted from the original may have been quoted out of context. He also contested the submission of the learned counsel for the respondents that the full opportunity was provided to the applicant to defend himself because in the absence of the desired documents applicants defence was severely handicapped.
14. We have carefully considered the material placed before us by both the sides and the arguments presented by the learned counsels. In the context of the present case it is relevant to recall certain judgments of the Honble Supreme Court relating to law of natural justice and, judicial review of disciplinary proceedings and quashing of the charge-sheet.
15. In Union of India v Tulsiram Patel [AIR 1985 SC 1416], the Constitution Bench clearly said that if the charged employee is dissatisfied with the result of the appeal he has the remedy of judicial review, which is left open to him. He may challenge the entire proceedings showing that there was violation of natural justice.
16. The concept of natural justice has been further elaborated in K.I. Shephard v. Union of India [1987 SCC (LandS) 438], the Court held (para 12):
"it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representation on their own behalf, (b) or to appear at a hearing or enquiry (if one is held), and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.?
17. Judicial review is said to be addressed to the decision-making process. Following passage from the decision in H.B. Gandhi, Excise and Taxation Officer cum-Assessing Authroity, Karnal v. Gopinath and Sons, 1992 Supp. (2) SCC 312 was cited by the Honble Supreme Court in Union of India and others v. Upendra Singh, (1994) 3 SCC 357 to highlight the scope of judicial review:
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
18. In State of Andhra Pradesh v. S. Sree Rama Rao, AIR 1963 SC 1723 the Honble Supreme Court held that the Courts and Tribunals are not appellate forums and cannot arrive at their independent finding while reviewing the order of the disciplinary authorities. If there is some evidence to reach conclusion by them, the Court should not interfere. Thus, except where the findings are based on no evidence or beset with surmise and conjectures, court cannot interfere in the findings of fact as arrived at quasi-judicial proceedings [State of West Bengal v. Atul Krishna Shaw, AIR 1990 SC 2205]. This has always been an inflexible rule of judicial review over disciplinary proceedings and was reiterated in B.C. Chaturvedi v. Union of India [1996 SCC (LandS) 80.]
19. With regard to the grounds of judicial review, after referring to State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C. Chaturvedi v. Union of India, 1995 (6) SCC 749, the Honble Supreme Court restated the grounds of judicial review in High Court of Judicature at Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, which in an enumerated form would be as follows:
"(a) where there has been a violation of the principles of natural justice; or
(b) the proceedings have been held in violation of statutory regulations prescribing the mode of such enquiry; or
(c) the decision is vitiated by considerations extraneous to the evidence and merits of the case; or
(d) if the conclusion made by the authority is ex facie arbitrary or capricious that no reasonable person could have arrived at such conclusion; or
(e) other very similar to the above grounds.
It was also reiterated that if there was some legal evidence on which the findings could be based, then adequacy on even reliability of such evidence would be outside the pale of judicial review.?
20. Considering the law as established through the aforementioned judgments of the Honble Supreme Court and the facts of the case we have to consider the following questions in this case:
i) whether the charge-sheet is legally valid and maintainable;
ii) Whether there was any deviation from the laid down procedure for the disciplinary proceedings and thereby violation of the law of natural justice;
iii) whether the authorities came to the conclusion as they did on the basis of some evidence and after taking into account the contentions of the applicant.
21. From the applicants side it has been contended that the charge-sheet is vague and it does not specify in specific terms any action of the applicant that would violate the provisions of CCS (CCA) Rules, 1965. It is observed that Article-I of the charge mentions a period, i.e., from 01 May 1998 to 14 Mar 2001 when the applicant came in contact with Shri Samuel Mathew of Tehelka.com who was impersonating as an agent for a fake firm viz. West-End and assisting the firm in this endeavour of getting an evaluation letter issued for supply of Army equipments for consideration in kind and money. The implied suggestion of the alleged vagueness of the charge-sheet is that the applicant did not know as to which incident or incidents it was referring to and, therefore, he could not defend himself effectively. From the statement of PW-1 Mr. Samuel Mathew and statement of applicant himself, as recorded in para-17 of the inquiry report this suggestion does not appear to be valid. The applicant has admitted contacts with PW-1 on specific occasions and has narrated his version and what transpired during those interactions. Without going into the details of narration and what was stated therein it would suffice to say that the alleged vagueness does not come out to be a handicap for the applicant to defend himself. The Honble Supreme Court in Hari Prasad v. Commissioner of Income Tax, AIR 1972 Calcutta 27 has held that whether a charge-sheet in a given case is vague or not, will depend upon the facts and circumstances of each case. In the present case we do not find that the charge-sheet was vague and that the same had prejudiced the defence of the applicant. The applicant has also contended that the charge-sheet is based on the documents whose authenticity could not be verified. From the inquiry report and the documents produced by the respondents during the hearing it is found that the documents which were relied upon by the prosecution during the inquiry were inspected by the applicant except the transcripts of excerpts of interview of the applicant with the reporter of Tehelka.com, which was not taken on record by the IO being uncertified copy. In our view, since the transcript contained conversation between PW-1 and the applicant and the fact that the statements in the transcript were corroborated by PW-1 in person, the importance of a further authentication of the transcripts becomes secondary even if we accept that the charges originated on the basis of uncertified copy of the transcripts of excerpts of the interview. It is relevant to note in this context that there is no allegation of collusion of respondents with PW-1 in concocting the excerpt of transcripts. The situation would have been different had there been a retraction by PW-1. We, therefore, do not find any force in the argument that the charge-sheet is not legally valid.
22. With regard to the procedural deviation the applicants first argument that there was a second inquiry or de novo inquiry ordered by the respondents has already been rejected by the Honble High Court. This fact also nullifies the argument of the applicant that non-supply of the report of the first inquiry had prejudiced his defence, since it has already been held that the respondents had ordered further inquiry and as such there was no first inquiry. The final report of the IO covered both the parts of the inquiry and copy of the same had been supplied to the applicant. The applicant has further submitted that he was denied the right to defend himself effectively because of the denial of most of the documents out of a list of 25 documents he had submitted to the IO/respondents. Here, we find that many of the documents asked for by the applicant were not in the custody of the respondents like memorandum of association of the company Tehelka.com, its balance-sheet along with supporting vouchers in respect of financial year 2000-01, 2001-02, articles of association etc. Some of them were in public domain like copy of the newspaper (the Hindustan Times) dated 14.03.2001, a copy of the stay order dated 19.10.2001 of Delhi High Court in CWP no.6566/2001 obtained by Col. Anil Sehgal against the Court Martial, a copy of the SLP, if any, filed by the Government against the stay order dated 19.10.2001 of Delhi High Court in CWP no.6566/2001 obtained by Col. Anil Sehgal against the Court Martial. The list also contains documents like name and address of the Stenographer who typed the transcript of the so called video tapes, full name and address of the Chartered Accountant of Tehelka.com and name and address of Brig. Sehgal mentioned in the extract of transcript of so called interview. There are other documents which the IO has taken a view that the same do not have bearing on the proceedings in the present inquiry. In this regard, we agree with the submission of the respondents that under Rule 14 (12) of the CCS (CCA) Rules, 1965 the IO has the authority to decide the relevance of the defence documents and the witnesses to the charges before the same is requisitioned. The right of access to official record is not unlimited and the respondents exercise their right to deny such access. The applicant has not been able to establish before us as to how denial of access to aforesaid documents has in any way prejudiced his defence. With regard to the order passed by the AA we have carefully scrutinized the order. It is a detailed order where all the contentions of the applicant have been reproduced and they have been dealt with seriatim. The document shows that there has been application of mind and specific responses have been given to each of the contention of the applicant. It has also been clarified by the learned counsel for the respondents that the order has been signed by the Deputy Chief Administrative Officer (A) but the same has been approved by the competent authority, i.e., Honble Raksha Rajya Mantri, who is the Appellate Authority. We, therefore, do not find any legal infirmity in the order passed by the AA.
23. Taking into account the entire conspectus of the case, the law and the facts as placed before us, we do not find any merit in the OA and the same is dismissed accordingly. No costs.