1. The O.A. is filed for quashing and setting aside the order dated 5.12.2003 imposing the penalty of dismissal by the Disciplinary Authority and the order dated 8.9.2004 rejecting the representation filed by the applicant against the order dated 5.12.2003.
2. The applicant's case is that he was appointed as a Assistant Divisional Medial Officer in the North East Frontier Railway after being selected by the UPSC vide order dated 4.8.1979. He was promoted to the post of Division Medical Officer on 29.9.1987 and Senior Divisional Medical Officer on 30.11.1990. In the year 1999, he was working as a Senior Divisional Medical Officer in Khurda Road Division on erstwhile South Eastern Railway. On 1.10.1999 the applicant was given the work of conducting periodical medical examinations. It is contended that the applicant has been falsely charge-sheeted by the C.B.I. for allegedly demanding and accepting Rs. 100 from one A.Patnaik, Station Superintendent on 7.10.1999. It is contended that applicant was arrested by the C.B.I. on false charge of acceptance of illegal gratification and was kept under deemed suspension. He was released from custody and his suspension was revoked on 27.10.2000. It is contended that the applicant was served with the charge-sheet dated 2.7.2001 by respondent No. 2 for the charges alleging that he was trapped by the C.B.I. for demanding and accepting Rs. 100 as illegal gratification for issue of periodical medical examination certificate in favour of Shri A. Patnaik and the applicant was in habit of demanding and accepting the illegal gratification from Railway Employees appearing in periodical medical examination.
3. The applicant denied the charges and thus the Enquiry Officer, Presenting Officer were appointed to conduct the inquiry. It is contended that the applicant had nominated one K.C. Mohanty, Chief DPI (Special), DSO's Office, South Eastern Railway as his Assisting Railway Employee. However, by order dated 20.7.2001, respondent No. 2 informed the applicant that Shri Mohanty cannot be ARE in the case of the applicant since Shri Mohanty was not from Central Railway. It is contended that the incident had occurred while the applicant had posted at South Eastern Railway. It is also contended that the Inquiry Officer, informed the applicant during the course of inquiry that he had contacted the Dy., CPO Central Railway over phone and that the R.2 had accepted Shri Mohanty as ARE and that the acceptance letter was already issued. It is contended that no such letter of acceptance was served upon the applicant. On the basis of incorrect assurance of the Enquiry Officer, the applicant used to arrange for Mr. Mohanty each time to attend the inquiry. Shri Mohanty was never relieved officially nor was he plaid T.A. and D.A. for attending the inquiry. Shri Mohanty remained absent for some days. The Inquiry Officer however, created record to show that Shri Mohanty had participated in the inquiry. It is contended that Shri Mohanty had participated in the inquiry half heartedly and did not show the interest on account of non-co-operation on the part of the Disciplinary Authority.
4. It is contended that the applicant was not well assisted and was also not allowed to ask most of the questions of the witnesses. It is contended that there were several contradictions in the depositions of the prosecution witnesses. It is also contended that in departmental enquiry Shri R.K. Nayak and Shri Bharat Das who were dropped in the criminal case were examined. Both the witnesses deposed in favour of the applicant and falsified the entire story. One more witness, Shri U.K. Murthy, Head Clerk who was also the eye-witness deposed completely in favour of the applicant and stated that there was neither any demand nor any acceptance. It is contended that the Enquiry Officer submitted its report dated 28.11.2001 holding that both the charges against the applicant were substantiated. He submitted his representation on the report of Inquiry Officer on 13.5.2002. It is also contended that in the meantime, the Court of Sessions, Bhubaneshwar acquitted the applicant in the criminal trial vide its judgment dated 16.12.2002. The Criminal Court accepted the contention of the applicant that the money was planted in the hand bag of the applicant and the phenolphthalein powder came into contact with his hand during the physical examination of the complainant. Thus, not only the story of the prosecution of demand and acceptance of bribe was rejected by the Criminal Court but findings were recorded to the effect that the applicant was fixed in the false charges.
5. It is contended that neither the Disciplinary Authority nor the UPSC considered the judgment of the Criminal Court. The applicant was served the order dated 5.12.2003 by the respondent No. 1 imposing the penalty from dismissal from service along with the copy of the UPSC advise dated 26.2.2003. UPSC held the charge No. 1 against the applicant was proved. The applicant preferred an appeal dated 5.1.2004 and brought to the notice of the R. 1 that it had completely ignored the judgment of the Criminal Court. However his appeal was rejected by order dated 8.9.2004. It is contended that the applicant is acquitted in the criminal case on merit. It is not that he is acquitted on any technical ground or because of proper evidence. The advise of UPSC on the basis of which the Disciplinary Authority passed the order is illegal. Merely because the money was found in the hand bag of the applicant and phenolphthalein powder was found on the hands of the applicant, the Commission has come to the conclusion that the applicant demanded and accepted illegal gratification. The Commission relied on the post-trap memo for proving the first charge and has recorded a perverse finding that two prosecution witnesses who deposed against the post-trap memo.
Hence the present O.A.6. The respondents resisted the application by filing their counter affidavit. The respondents contended that the Special Judge Bhubaneshwar, acquitted the applicant by giving benefit of doubt. It is contended that the departmental proceedings where guilt is established on the basis of preponderance of probability do not get vitiated in any respect whatsoever. It is contended that the application is misconceived and not maintainable in law as the applicant is seeking that this Tribunal to re-appreciate the evidences on record and come to different conclusion which is beyond the scope of judicial review as the Tribunal cannot act as an Appellate Authority. It is contended that the applicant admitted to have accepted the illegal gratification from Shri Patnaik. Thereafter he was asked to produce the tainted money of Rs. 100. He took out the handbag from the table drawer and produced the two notes of Rs. 50 each which bore the same numbers as noted earlier and which were tainted with Phenolphthalein Powder. The hands of the applicant were got washed and the solution turned pink. The applicant clearly admitted his guilt in the memorandum prepared immediately after. It is contended that during the course of inquiry the applicant was given ample opportunity to defend the case. He was provided with the copy of the report of the Inquiry Officer and the representation thereof considered by the Disciplinary Authority. The Disciplinary Authority provisionally arrived at a decision to impose penalty. The UPSC was consulted thereafter as required under the rules. It was only then the penalty of dismissal from service was imposed on the applicant. Applicant having been afforded ample opportunities and the applicant having availed them all the enquiry was conducted in accordance with rules. The applicant cannot be permitted to reopen the issue de novo.
7. It is contended that though the initial appointment of K.C. Mohanty as Defence Helper, as he was not from the same Railway Administration, was denied, however, subsequently, the approval of the Competent Authority regarding the engagement of K.C. Mohanty as Defence Helper was accorded and the said Mohanty has acted as the Assisting Railway Employee of the applicant vide letter dated 20.8.2001. The respondents also contended that perusal of the record reveals the participation of Shri Mohanty in the inquiry since 22.6.2001 although the formal approval was communicated in August, 2001. Defence Helper was allowed to participate and defended the applicant from June 2001 on wards.
Engagement of Shri K.C. Mohanty as Defence Helper is a non-issue. The record suggests the participation of Mohanty in the enquiry. It is also contended that criminal proceedings and departmental proceedings are two different independent proceedings. It is contended that the admission of the guilt which is not recorded by a Magistrate cannot be used as an evidence in the criminal proceedings. The departmental proceedings were conducted in accordance with Railway Servants (D & A) Rules, 1968. There has been no infirmity or violation of principles of natural justice in conducting departmental proceedings. Defence Helper asked for by the applicant was provided. All the prosecution witnesses were examined during the course of enquiry and applicant cross examined them. Defence witnesses cited by the applicant were also examined.
Statement of defence was furnished by the applicant. Defence statement was considered by the Enquiry Officer and the Enquiry Officer in his report has held that the charges are proved and held the applicant guilty. The enquiry report was provided to the applicant and applicant was given opportunity to submit his representation. After taking into consideration of the enquiry report, representation of the applicant, proceedings of enquiry, material available on record, and all aspects of the case, the President provisionally arrived at a decision to impose penalty on the applicant. Thereafter UPSC was consulted as required in the constitution for their advice it was only then the penalty of dismissal from service was imposed on the applicant.
8. The applicant filed the rejoinder and reiterated the contentions in the O.A.9. The respondents also filed the sur rejoinder and denied the contentions of the applicant.
10. We have heard the earned Counsel Mr. S.V. Marne for the applicant and Mr. S.C. Dhawan for the respondents.
11. Mr. S.V. Marne while arguing on behalf of the applicant submitted that the entire enquiry is conducted in gross violation of principles of natural justice. The earned Counsel submitted that the applicant was denied the assistance of Assisting Railway Employee (A.R.E. in short) as Defence Assistant. He submitted that the findings of the Inquiry Officer, UPSC and the Disciplinary Authority are perverse and are based on no evidence. The findings of the authorities are based on such an evidence on the basis of which no man with ordinary prudence can hold the applicant guilty of the offence of demanding or accepting illegal gratification. The earned Counsel relied on the judgment in the case of Kuldeep Singh v. Commissioner of Police and Ors.
12. The earned Counsel submitted that the applicant is acquitted in the Criminal Court on merits and not on technical grounds only. Neither the Disciplinary Authority nor the UPSC considered the acquittal of the applicant which is on merit. The earned Counsel further submitted that the acquittal by giving the benefit of doubt cannot be taken as the Court has recorded a finding of guilt. The acquittal on benefit of doubt cannot be used adversely against the person pertaining to the said acquittal. Once a person is acquitted he is exonerated of the charge that has been framed against him. The earned Counsel in that respect relied on the judgment in Ram Pal and Ors. etc. etc. v.Commissioner of Police, New Delhi and Ors. 2005(1) ATJ (PB) 201. The earned Counsel submitted that merely because money was found in the hand bag of the applicant and phenolphthalein powder was found on the hands of the applicant, the Commission has come to the conclusion that the applicant has demanded and accepted the illegal gratification. The Criminal Court accepted the defence of the applicant about planting of notes by the complainant, the Commission gave a finding that this defence of the applicant is weak. The earned Counsel submitted that neither the Disciplinary Authority nor the UPSC made any reference to judgment of Criminal Court regarding the acquittal. According to learned Counsel, there is absolutely no evidence against the applicant to impose the penalty.
13. On the other hand, the earned Counsel for the respondents Mr. S.C.Dhawan for the respondents submitted that the acquittal of the applicant in criminal case was not honourale and cleaner one. The earned Counsel submitted that the applicant is seeking this Tribunal to re-appreciate the evidence and to come to a different conclusion which is beyond the scope of jurisdictional review. The earned Counsel also submitted that the standard of proof in the departmental proceedings is not a proof beyond reasonable doubt. The evidence required is that of preponderance of probabilities. The earned Counsel submitted that where there is some material which the Disciplinary Authority has accepted and which reasonably supported the conclusion reached by the Disciplinary Authority it is not the function of the Administrative Tribunal to review the same and reach a different findings than that of a Disciplinary Authority. The earned Counsel relied on the judgment in the case of Kuldeep Singh v. Commissioner of Police and Ors. (supra).
He also relied on the judgments in the case of N. Rajarathinam v. State of Tamil NaduGovt. of Tamil Nadu and Ors. v. S. Vel Raj 1997(2) SLJ 32; Govt. of Tamil Nadu v. N. Ramamurthy ; Transport Commissioner, Madras v. A. Radha Krishna Moorthy 1995(1) ATJ 299 (SC); and Govt. of Tamil Nadu and Anr. v. A. Rajapandian . The earned Counsel further submitted that when acquittal by Criminal Court is not a clean one, but it is only by giving benefit of doubt. Departmental enquiries on the same allegation against him cannot be said to be barred. The earned Counsel relied on the judgment in the case of Corporation of City of Nagpur and Ors. v.Ramchandra and Ors. . He also relied on the case Sr.
Supdt. of Post Offices. A Gopalan . He also relied on the judgment in the case of Secretary, Ministry of Home Affairs v.Thahir Ali Khan Tyagi 14. The earned Counsel submitted that Departmental Enquiry is based on relied upon documents listed with the charge memorandum as well as the documents permitted by the Inquiry Officer and proved during the course of an inquiry. The findings of the Inquiry Officer are in accordance with the rules and after affording ample opportunity to the applicant.
The earned Counsel submitted that Shri K.C. Mohanty, Defence Helper was granted to the applicant and he acted as ARE. He was allowed the participate in the inquiry to defend the case of the applicant in June 2001. There is evidence to prove the guilt of the accused.
15. It is the contention of the applicant that he was denied the opportunity to take assistance of Defence Helper. It is apparent from the record that applicant was allowed to engage K.C. Mohanty vide order dated 20.8.2001. On perusal of record, it reveals that Mohanty participated in the inquiry since June 2001 shows that though formal approval was communicated to the applicant on 20.8.2001, he was allowed the engage Mohanti as a Defence Assistant since June 2001 on wards. The record shows that Mohanty has acted as a Defence Assistant and cross examined the witnesses examined by the Presenting Officer. Thus, the contention of the applicant that he was denied opportunity to take assistance of Defence Helper cannot be accepted. The witnesses examined by the Presenting Officer have been cross examined by the Defence Assistant Shri Mohanty. There is no violation of principle of natural justice.
16. There is no dispute that the criminal case regarding the corruption charge of demanding and accepting illegal gratification of Rs. 100 for issue of fitness certificate in the Periodical Medical Examination, was filed against the applicant. The case ended in the acquittal. It is also apparent that the Special Court acquitted the applicant by giving the benefit of doubt. It is the contention of the applicant that when the applicant has been acquitted in criminal case, he should not have been held guilty in the departmental proceedings.
17. In Corporation of City of Nagpur and Ors. v. Ramchandra and Ors.
AIR 1981 SCC 624 the Apex Court has held that "it is now well settled that if acquittal by a Criminal Court is not a clean one, but it is only by giving benefit of doubt, departmental enquiries on the same allegation against him, cannot be said to be barred."Sr. Supdt. of Post Offices v. A. Gopalan (supra) the Apex Court also held that "when acquittal in criminal trial is on benefit of doubt, it does not conclude in departmental proceedings." In the case of Secretary, Ministry of Home Affairs v. Thahir Ali Khan Tyagi (supra) it is held by the Apex Court that departmental proceedings and criminal proceedings can run simultaneously and departmental proceedings can also be initiated even after acquittal in criminal proceedings particularly when the standard of proof in the criminal case is completely different from the standard of proof that is required to prove the delinquency of a Govt. servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability.
19. On perusal of the judgment of the Special Court it reveals that accused has been acquitted by giving the benefit of doubt. The Special Judge has observed in the judgment that "there is possibility of the hands of the accused coming in contact with phenolphthalein powder during physical check up of P. W. 3." It is also observed that "it was possible for p. W. 3 to plant tainted currency note in the open handbag lying in the open drawer." It is also observed that "there was a possibility of complainant planting the currency notes in the handbag of the accused." The Special Court has observed in Para 15 that "The evidence and circumstances put-forth by the prosecution do not prove beyond reasonable doubt that the accused demanded and accepted illegal gratification or that the tainted currency noted were there in his hand bag with his tacit consent. On the other hand, the materials and circumstances on record to some extent support the plea of the accused that the tainted money might have been planted in his hand bag and that the phenolphthalein powder might have come to his hand during examination of the complainant. Under such circumstances the accused would be entitled to benefit of doubt and the charges levelled by the prosecution against him would fail." 20. As the accused has been acquitted by giving the benefit of doubt in the criminal case, the departmental inquiry on the said fact is not barred. The disciplinary proceedings is not a criminal trial. The standard of proof required is that of preponderance of probabilities and not beyond the reasonable doubt. Inference can be drawn from the proved facts of the case. The technical rules which govern the criminal trials in the Courts are not necessarily applied to the departmental proceedings.In Kuldeep Singh v. Commissioner of Police's case (supra) Their Lordships have observed in Para 10 that "A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions, would not be treated as perverse and the findings would not be interfered with."Principal Secretary, Govt. of A.P. and Anr. v. M.Adinarayana 2005 (1) SLJ 505. The apex Court has observed in Para 22 of the judgment as under: 22. In our opinion, the Administrative Tribunal cannot ignore the findings of the Disciplinary Authority or the Tribunals. The truth or otherwise of the charge, is a matter of the Disciplinary Authority to go into. The findings of the Court of Tribunal under judicial review which, in our opinion, cannot extend to the re-examination of all evidence to decide the correctness of the charge. In our view, the Administrative Tribunal cannot sit as a Court of appeal over a decision based on finding of the Enquiry Authority in disciplinary proceedings. This Court, time and again, categorically stated that Court should not interfere with the quantum of punishment where there is some relevant material which the Disciplinary Authority has accepted and which material has reasonable supports, the conclusion reached by the Disciplinary Tribunal, it is not the Function of the Administrative Tribunal to review the same and reach a different finding than that of the Disciplinary Authority.
23. In the instant case, the Presenting Officer has examined in all six witnesses. In order to substantiate their case, the accused also examined two defence witnesses. There is evidence of Shri A. Patnaik, Station Superintendent of Khurda Road Railway Division on whose complaint the trap was laid. The evidence of S.K. Moharana UDC in the office of Commissioner, RPFC/BBSR and Shri R.K. Nayak, the then Chief Officer, Bank of India, Regional Office, Bhubaneswar were also before the I.O. These were the two independent witnesses. It appears from their evidence that both of them have reaffirmed the facts narrated by them before the CBI Officer on 7.10.1999. The evidence of Shri S.K.Maharana shows that he had heard some converstion between Shri Patnaik and the applicant. It is true that he stated that he could not recollect what exactly the talk had taken place. But it has come in his evidence that the applicant demanded and accepted Rs. 100 from the complainant. He confirmed that the conversation was related to demanding of bribe. The applicant extended his hand and Shri Patnaik handed over the money. Evidence of both the independent witnesses and Shri Patnaik shows that after the Doctor was challenged by the officer of C.B.I. he admitted having demanded and accepted the bribe from the complainant which finds place in post trap panchanama. The hands of the applicant were washed with a solution of Soda and plain water when the colour of right hand wash turned pink. They have confirmed that the doctor produced Rs. 800 from his hand bag which contained the tainted money of Rs. 100 i.e., two currency notes of 50 denomination. The evidence of R.P. Behera, Inspector CBI (P.W. 6) was also before the I.O. He also confirmed the facts as narrated by the other witnesses in their statements recorded by him in the post trap panchanama and on 7.10.1999. It has also came in the evidence that the applicant has signed the post trap Panchanama immediately after the incident in question on 7.10.1999. It is also apparent that the post trap Panchanama which has been confirmed by the witnesses and signed by the applicant mentions that the applicant having accepted the illegal gratification from Shri Patnaik. Not only that it also mentions that the applicant also produced tainted currency notes of Rs. 100. He took out the hand bag from the table drawer and produced the currency notes of which the numbers were noted. It has also come in the Panchanama that hands of applicant were found to have phenolphthalein powder traces when his hands were dipped in solution it turned pink. The Panchanama was immediately prepared and the applicant signed the same.
The I.O. has considered the statements confirmed by the witnesses mentioned in the post trap Panchanama. The Enquiry Officer also considered the admission given by the applicant accepting the bribe amount and producing the currency notes from the handbag kept in the drawer.
24. It is not open for the Tribunal to examine the evidence adduced before the Enquiry Officer and on re-appreciation of the same disturb the findings arrived at. The judicial review cannot be extended for the examination of correctness of the charges or reasonableness of the decision. It is not a review of matter in which decision is made. As there is evidence before the I.O. to support his findings it is not the function of the Tribunal to review the evidence arrived at on its own independent findings. The applicant cannot seek the intervention of the Tribunal to reassess the evidence on record and come to a different conclusion. The scope of judicial review is very limited in departmental proceedings, only to find out whether the enquiry has been done as per rules and whether the principles of natural justice have been observed. Thus, the legality of decision making process and not the actual decision are concerned. The Disciplinary Authority considered all these factors and came to the conclusion in reasonable manner we were no supposed to review the order. The adequacy or reliability in the matter is not supposed to be considered by the Tribunal. The Disciplinary Authority has also consulted the UPSC as required under the rules for its advise after provisionally arriving at the decision to impose the penalty. The Disciplinary authority as well as the UPSC considered all the records, I.O.'s report, representation of the applicant etc., and advised dismissal from service as an appropriate punishment.
25. To sum up, for the reasons stated above, we find that the inquiry is consistent with all the rules and in accordance with the principle of natural justice. The conclusion of the I.O. is based on the evidence. The Disciplinary Authority after considering the report of the I.O. representation of the applicant against it, and following the principle of natural justice, arrived at its own conclusion. The Disciplinary Authority consulted UPSC and imposed the appropriate penalty. We find no reason to interfere with the impugned orders. O.A.is dismissed. No order as to costs.