The President Indian Council of Agricultural Research New Delhi and Others Vs Dr Sarveshwar Dayal Central Potato Research Station Meghalaya and Others - Citation 1115755 - Court Judgment

Judgment:

S.C. Das, J.

1. The genesis of both the writ petitions, is an incident, which occurred on 23.09.2003 at about 5.00 pm in the office premises of National Research Centre for Mushroom(for short, âNRCM), at Chambaghat, Solan, Himachal Pradesh. Both the respondents, Dr. Sarveswar Dayal(hereinafter referred to as Dr. Dayal) and Dr. Yash Gupta(hereinafter referred to as Dr. Gupta) are husband and wife and they were on their official duty, while working as Scientist(Senior Scale) under Indian Council of Agricultural Research(for short, ICAR).

2. Having considered the submissions, made by learned counsel of both side, both the writ cases are taken up together for hearing and disposal, since the cases arose out of same incident and identical question of law and fact, involved in both the cases for decision by this Court. Therefore, this common judgment shall govern both the cases.

3. NRCM is an organization having its office/establishment at Solan, Himachal Pradesh under ICAR. The petitioners, herein, are the superior authorities/disciplinary authorities of the respondents in the ICAR. Dr. Dayal, respondent of WP(C) No.4569 of 2010 and Dr. Gupta, respondent of WP(C) No.5248 of 2010, were found guilty of gross misconduct in the disciplinary proceedings drawn against them separately for the same incident occurred on 23.09.2003 and the disciplinary authorities inflicted punishment of compulsory retirement against both the respondents and, they, by filing separate Original Applications(in short, O.A.) before the Central Administrative Tribunal(in short, CAT), Guwahati Bench, challenged the orders of the disciplinary authority and, the CAT, by impugned order dated, 04.09.2009, passed in O.A. No.299 of 2007, filed by Dr. Dayal, and by order dated, 06.04.2010, passed in O.A. No.218 of 2008, filed by Dr. Gupta, set aside and quashed the order of the disciplinary authority, and, hence, the disciplinary authorities, i.e., the present petitioners, by filing the aforenoted writ petitions, challenged the orders of the CAT on various grounds.

4. We have heard learned counsel, Mr. D. Majumdar and learned counsel, Mr. R. Sarma for the petitioners and learned counsel, Mr. A. Ahmed and learned counsel, Mr. P. Gogoi for the respondents, in both the cases.

5. Fact of the case, in short, is that, on 23.09.2003, Dr. R.N. Verma, Ex-Director of NRCM and incumbent President of Mushroom Society of India (in short, MSI), while visiting Solan, was invited by the Director of NRCM to participate in a discussions in the seminar of the Executive Committee meeting of MSI and, accordingly, Dr. Verma attended the institute of NRCM at about 3.00 pm and had discussions with the Centre Director about the activities of the NRCM and, thereafter, at about 4.00 pm, he was invited by Dr. R.C. Upadhyay of MSI to preside over the meeting of MSI and, accordingly, he participated in the meeting and was presiding over it. At about 5.00 pm, Dr. Verma went to the toilet, and while he was returning from the toilet to the meeting room Dr. Robin Gogoi, a scientist of the institute, met him in the corridor and was exchanging pleasantries with him. At that time, Dr. Dayal waylaid Dr. Verma saying âAdab arj hain Doctor sahibâ and, immediately, attacked Dr. Verma and slapped him on his face. Dr. Gupta also arrived there and insisted Dr. Dayal to beat Dr. Verma. Dr. Shwet Kamal, another scientist of the institute, who was in the door of the meeting room, rushed there and both Dr. Kamal and Dr. Gogoi disengaged Dr. Dayal from further assaulting Dr. Verma. In the meantime, hearing noise the trainees and executive members of the MSI, all came out and learnt about the occurrence. Dr. Verma got perturbed and extremely shocked in the incident and in the meantime, Dr. Dayal and Dr. Gupta went away from the spot. Director of the institute was reported about the incident and an FIR was lodged to the police. A police case was accordingly registered and investigation was taken up. The matter was reported to the superior authority i.e. the ICAR and, accordingly, disciplinary proceedings were initiated separately for the same incident against the respondents.

PROCEEDING AGAINST DR. DAYAL

5.1 Issuing Memo. No.F.3(2)/2004-Vig(D), dated 01.06.2004 ICAR initiated disciplinary proceeding against Dr. Dayal with specific Article of Charge, which reads thus:

âARTICLE OF CHARGE-I

While working as Scientist(SS), National Research Centre for Mushroom, Solan, Dr. Sarvershwar Dayal created an embarrassing and intolerable situation by indulging himself in an act of gross indiscipline and violence by physically assaulting Dr. R.N. Verma, Ex-Director of NRCM on 23.9.2003 in the NRCM Office premises when Dr. Verma was on short visit there and was presiding over the meeting of Mushroom Society of India as its President.

By his above act, Dr. Sarvershwar Dayal has indulged in gross indiscipline and violent acts and behaved in a manner unbecoming of an ICAR employee and thereby contravened the provision of Rule 3(1)(iii) of CCS(Conduct) rules, 1964 as extended to Indian Council of Agricultural Research employees.â

5.2 The Statement of Imputation of misconduct annexed with the Article of Charge reads thus:

âSTATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR. SARVESHWAR DAYAL, SCIENTIST(SS).

Dr. Sarveshwar Dayal, Scientist (SS) is presently posted at CPRI, Shimla. Prior to this he was working as Scientist at NRCM, Solan in TOT Section.

Dr. Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta waylaid Dr. Verma in the corridor and Dr. Sarveshwar Dayal started beating him with his hands and Dr.(Mrs.) Yash Gupta provoked him further to beat and manhandle him further and said that âthis is not enough and beat him moreâ. Meanwhile, Dr. Gogoi (trainee from Assam) disengaged Dr. Dayal from Dr. Verma and Dr. Shwet Kamal(Research Associate) who was present nearby prevented Dr. Sarveshwar Dayal from further injury to Dr. Verma. Meanwhile Dr. Verma returned shivering with the shock to the meeting and ended the MSI meeting abruptly.

The above incident created by Dr. Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta, Scientist(SS) not only disrupted the meeting of Mushroom Society of India in midway but also hampered the training of the Winter School and research work going on at the Centre. This also gave a bad impression to the trainees assembled at the Centre from all over the Country.

Dr. Sarveshwar Dayal, Scientist (SS) is in the habit of misbehaving with seniors in the past and disciplinary proceedings were issued vide OM. No.3(11)/98-Vig.D dated 13.11.98 against him for his arrogant and indisciplined behaviour and a penalty of âwithholding of one increment of pay for one year without cumulative effectâ was imposed on him vide order No.3-11/98-Vig.(D) dated 14.6.2003. In spite of this, no improvement in his conduct has been noticed.

By this above act, Dr. Sarveshwar Dayal, Scientist(SS) has indulged himself in gross indiscipline and violent acts and behaved in a manner unbecoming of an ICAR employee and thereby contravened the provisions of the Rule 3(1)(iii) and (iii) of CCS(Conduct) Rules, 1964 as extended to Indian Council of Agricultural Research employees.â

5.3 List of documents(in 11 items) as Annexure-III and the list of witnesses(7 witnesses) as Annexure-IV were also annexed with the Article of Charge.

5.4 It is alleged that Dr. Dayal, from the very beginning, was non-cooperative and had taken dilatory tactics to frustrate the smooth inquiry. He was served with the charge sheet on 28.07.2004 and was asked to submit his statement of defence but even after reminders issued on 14.09.2004, 07.10.2004, 10.11.2004, 23.02.2005, he did not submit his written statement in respect of the charges framed against him, on the contrary, he brought some baseless allegations against the inquiry officer and those allegations were referred to the ICAR and it was found totally unfounded and baseless and, therefore, the disciplinary authority turned down the allegation of bias raised against the inquiry officer. He was requested by the inquiry officer to submit the name of his defence assistant but he insisted for appointing a legal practitioner, which was rejected, since legal practitioner was not representing the disciplinary authority. The inquiry officer asked the Charged Officer, Dr. Dayal, to furnish the details of his defence assistant in writing on 20.03.2006, 19.05.2006, 14.08.2006 and 20.10.2006 but the charged officer did not take any effective step. It is also alleged that charged officer submitted a list of fifty six numbers of documents, out of which four documents were found to be relevant and those were supplied to the charged officer but, still, he did not submit his response and did not participate effectively in the proceedings. On the issue of appointment of defence assistant he took abnormal time and, ultimately, submitted a tour programme and demanded travelling allowance for finding out his defence assistant. He, ultimately, named the Director General of ICAR, Dr. Mangal Rai as his defence assistant. Since he neither submitted his defence statement nor was effectively participating in the proceedings, the inquiry officer, after exhausting the formalities and affording all reasonable opportunities to the charged officer, fixed the case for recording evidence of the disciplinary authority. But the charged officer was absent on 12.04.2007 sending a medical certificate of illness from a private doctor and, therefore, the inquiry officer asked the charged officer to take a second medical opinion from a Govt./authorized medical attendant and to submit the same by fax within 14.04.2007, but that was never submitted by the charged officer. Again the proceeding was fixed for recording evidence of the witnesses of disciplinary authority from 09.07.2007 to 11.07.2007 and by a notice, dated 25.05.2007, the charged officer was duly informed and, thereafter, was also reminded on 14.06.2007, but on that date again by sending a medical certificate from a private doctor, the charged officer remained absent and, under such circumstances, the inquiry officer recorded the evidence of disciplinary authority ex parte on 10.07.2007 and 11.07.2007. The charged officer, thereafter also, did not participate in the proceeding and did not adduce any defence evidence. On 28.08.2007, the inquiry officer submitted his report ex parte against the charged officer holding that the charge framed against the charged officer has been proved and sent the report to the disciplinary authority. The disciplinary authority, by sending a copy of the report, asked the charged officer to submit his reply and, accordingly, the charged officer submitted his reply. In the meantime, the criminal case instituted against the respondents, on the basis of the FIR lodged immediately after the occurrence, which was registered as Criminal Case No.245/2 of 2003 in the Court of Chief Judicial Magistrate, Solan, was ended by an order, dated 2206.2007, and both the accused, i.e., the respondents were acquitted on benefit of doubt. After that judgment, the respondents applied for dropping the disciplinary proceedings in view of their acquittal from the criminal case. The disciplinary authority, considering the enquiry report, the reply submitted by the respondent and also considering the evidence and materials on record, including that of the judgment passed by the criminal court, found the respondent guilty of misconduct and imposed the penalty of âcompulsory retirement by order, dated 05.11.2007. The relevant order passed by the disciplinary authority, dated 05.11.2007, reads thus:

âORDER

WHERES an inquiry under Rule 14 of CCS(CCA) Rules, 1965(as extended to ICAR employees) was initiated against Dr. Sarveshwar Dayal, Scientist(SS), Central Potato Research Institute, Shimla(now posted at CPRS, Shillong, Meghalaya) vide Councils Memorandum No.3(2)/2004-Vig.(D) dated 01.06.2004 containing the following articles of charge:-

Article of Charge

While working as Scientist(SS), National Research Centre for Mushroom, Solan, Dr. Sarveshwar Dayal created an embarrassing and intolerable situation by indulging himself in an act of gross indiscipline and violence by physically assaulting Dr. R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the NRCM Office premises when Dr. Verma was on short visit there and was presiding over the meeting of Mushroom Society of India as its President.

By his above act, Dr. Sarveshwar Dayal has indulged in gross indiscipline and violent acts and behaved in a manner unbecoming of an ICAR employee and thereby contravened the provision of Rule 3(1)(iii) of CCS(Conduct) Rules, 1964 as extended to Indian Council of Agricultural Research employees.

WHEREAS Dr. Sarveshwar Dayal, Scientist(SS) did not submit any reply to the charge sheet issued to him vide memo. dated 01.06.2004. Subsequently, reminders dated 14.09.2004, 07.10.2004, 10.11.2004 and 23.02.2005 were also sent to the Charged Officer to submit his reply but even then he neither admitted nor denied the charge.

WHEREAS Dr. P.S. Naik, Principal Scientist, CPRI, Shimla was appointed as the Inquiry Officer vide Order dated 03.05.2005 to inquire into the charges framed against the Charged Officer.

WHEREAS the Inquiry Officer after holding the inquiry submitted his report dated 27.08.2007 to the Disciplinary Authority wherein he has held the charge against Dr. Sarveshwar Dayal, Scientist(SS) as proved.

WHEREAS after considering the inquiry report, the Disciplinary Authority observed that the inquiry has been held as per prescribed procedure and he tentatively accepted the findings of the Inquiry Officer.

WHEREAS, a copy of the Inquiry Report was sent to Dr. Sarveshwar Dayal, Scientist(SS) vide Memo. dated 12.09.2007 giving him an opportunity of making his submissions, if any, with reference to the findings of the Inquiry Officer.

WHEREAS Dr. Sarveshwar Dayal, Scientist(SS) in his submissions dated 27.09.2007 in response to Inquiry Report has raised the points given hereunder(in brief):

(i) Inquiry Officer has acted in a biased manner as he has held the inquiry ex-parte.

(ii) Inquiry Officer conducted the inquiry when he(Charged Officer) was sick.

(iii) Inquiry Officer did not give him any opportunity to present his witnesses.

(iv) Inquiry Officer denied him the opportunity to engage a Defence Assistant.

(v) Witnesses have been planted against him.

(vi) The inquiry report is in contradiction to the findings of the Criminal Court of Law.

WHEREAS, the points raised by Dr. Sarveshwar Dayal, Scientist(SS) in his submissions have been examined with reference to relevant records of the case, as given below:

i) Dilatory tactics adopted by the Charged Officer and his non-cooperation has led to the ex-parte inquiry against him in the disciplinary proceedings. The Charged Officer stalled the inquiry proceedings for almost two years on one pretext or the other. The representations of Dr. Sarveshwar Dayal, Scientist(SS) making allegations of bias against the Inquiry Officer were rejected twice by the Disciplinary Authority vide Memorandums dated 14.11.2005 and 16.10.2006 as there was no merit in the submissions of Dr. Sarveshwar Dayal against the Inquiry Officer.

ii) In April, 2007, when the Charged Officer sought the postponement of regular inquiry in the nick of the time of the Regular Hearing on the ground of ill health, the Inquiry Officer called for a Second Medical Opinion but the Charged Officer evaded the said notice. Under these circumstances, Inquiry Officer adjourned the regular hearing in order to provide adequate opportunity to the Charged Officer for defending his case. However, Charged Officer again exhibited his dilatory tactics on the eve of next hearing(09.07.2007 to 11.07.2007) by sending medical certificate from a Private Doctor and a telegram from New Delhi requesting therein to postpone the inquiry. Having exercised the option of Second Medical Opinion at the time of Regular Hearing in April, 2007 and the reported non-cooperation of the Charged Officer by evading the same, the Inquiry Officer was left with no option but to conduct ex-parte proceedings during the period from 10.07.2007 to 11.07.2007 as the Charged Officer had been putting impediments in the holding of the proceedings for almost two years.

iii) The Charged Officer on his own volition did not participate in the inquiry, therefore question of allowing or disallowing the defence witnesses by the Inquiry Officer does not arise. Thus, the submission of the Charged Officer is not based on facts of the case.

iv) At least on 4 occasions,(vide letters dated 20.03.2006, 19.05.2006, 14.08.2006 and 20.10.2006) Inquiry Officer asked the Charged Officer to furnish the details of the Defence Assistant. But the Charged Officer was very casual in his approach as on one occasion he demanded traveling allowance to undertake journey in search of the Defence Assistant and on another occasion he named Dr. Mangala Rai, Director General, ICAR as his Defence Assistant. Thus, the contention of the Charged Officer is contrary to the facts of the case.

v) All the witnesses mentioned in Annexure-IV of charge sheet and who also subsequently deposed during the inquiry have been relevant to the case and were present in the NRCM Office premises on the day of incident i.e. 23.09.2003. Thus there is no truth in the contention of the Charged Officer.

vi) In the criminal case, the Charged Officer has been acquitted by giving him benefit of doubt and not on merits. The standard of proof in a criminal case is different than in a departmental proceeding. Both are on a different footing. While in a criminal case, it is proof beyond doubt which is required to establish a case, in a departmental proceeding it is the âpreponderance of probability. In this case, based on the statement of witnesses, the Inquiry Officer has rightly held the charge as âproved.

AND WHEREAS, the report of the inquiry and the submissions made by Dr. Sarveshwar Dayal, Scientist(SS) have been considered by the Disciplinary Authority( i.e. President, ICAR) along with the facts and records of the case and having regard to the findings of the Inquiry Officer and submissions made by Dr. Sarveshwar Dayal, Scientist(SS), the President, ICAR has decided to accept the findings of the Inquiry Officer.

NOW THEREFORE, after considering the records of the inquiry and the facts and circumstances of the case, the President, ICAR being the Disciplinary Authority in this case, is of the opinion that Dr. Sarveshwar Dayal, Scientist(SS) indulged himself in an act of gross indiscipline and violence by physically assaulting Dr. R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the NRCM Office premises and ends of justice will be met imposing the penalty of âCompulsory Retirementâ on him.

ACCORDINGLY, the penalty of âCompulsory Retirementâ is hereby imposed on Dr. Sarveshwar Dayal, Scientist(SS) with immediate effect.

(Rajiv Mangotra)

Under Secretary (Vigilance)

For and on behalf of the President, ICARâ

5.5 Being aggrieved, the respondent, Dr. Dayal, approached the CAT, Guwahati Bench, by filing O.A. No.299 of 2007, assailing the charge sheet, dated 01.06.2004, and the order of the disciplinary authority, dated 05.11.2007. The Tribunal, by impugned order, dated 04.09.2009, set aside and quashed the order of penalty, dated 05.11.2007, on the ground that the principles of natural justice was violated, for non-supply of the documents as demanded by the respondent and for not giving adjournment as prayed for by the respondent and that ex parte hearing has caused prejudice to the respondent. The Tribunal also held that in view of the acquittal of the respondent from the criminal case on the same bundle of fact, the charge framed against the respondent would not stand.

6. PROCEEDINGS AGAINT DR.(MRS.) YASH GUPTA:

6.1 Vide Memo. No.F.3(28)/2003-Vig(D), dated 27.05.2004 ICAR initiated disciplinary proceedings against the respondent, Dr.(Mrs.) Yash Gupta on the following Article of Charge:

âARTICLE OF CHARGE-I

While working as Scientist(SS), NRCM, Solan, Dr.(Mrs.) Yash Gupta created an embarrassing and intolerable situation by indulging himself in an act of gross indiscipline and violence by instigating and provoking Dr. Sarveshwar Dayal, Scientist(SS), who had physically assaulted Dr. R.N. Verma, Ex-Director of NRCM on 23.9.2003 in the NRCM Office when Dr. Verma was presiding over the meeting of Mushroom Society of India as its President.

By her above act, Dr.(Mrs.) Yash Gupta demonstrated gross misconduct by way of her violent and rude behaviour with Dr. R.N. Verma and acted in a manner unbecoming of an ICAR employee and thereby contravened the provision of Rule 3(1)(iii) of CCS(Conduct) rules, 1964 as extended to ICAR employees.â

6.2 The Statement of Imputation of misconduct annexed with the Article of Charge reads thus:

âSTATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR.(MRS.) YASH GUPTA, SCIENTIST(SS).

Dr. (Mrs.) Yash Gupta is presently working as Scientist(SS) at CPRI, Shimla. Prior to this she was posted at National Research Centre for Mushroom, Solan.

Dr. R.N. Verma, Ex-Director of NRCM, Solan while on a short visit to Solan was invited to visit the Centre on 23.9.2003 in the afternoon. Accordingly, Dr. R.N. Verma came to the Centre at 3.00 p.m. and had discussions regarding the activities and progress of the Centre with the Director, in his Chamber upto 4.00 p.m. Thereafter Dr. R.C. Upadhyay, Secretary Mushroom Society of India, taking the benefit of his presence at the Centre, requested Dr. R.N. Verma(who is also the President of MSI) to preside over the meeting of MSI. Dr. Verma agreed to request for presiding over the meeting which was being held in the room of Dr. R.C. Upadhyay. Also present in the meeting were Dr. R.C. Upadhyay, Secretary, Dr. B. Vijay, Vice-President, Dr. S.K. Singh, Joint Secretary, Dr. M.C. Yadav, Treasurer and Shri Deep Kumar, dealing assistant, MSI. During the course of meeting at about 5.00 p.m., Dr. Verma went to the toilet. While returning to the meeting room he met a Winter School Trainee, Dr. Robin Gogoi, (Scientist, Assam Agricultural University, Jorhat) in the corridor and started exchanging pleasantries with him. All of sudden Dr. Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta waylaid Dr. Verma in the corridor and Dr. Dayal started beating him with his hands and Dr.(Mrs.) Yash Gupta instigated and provoked him further to beat and manhandle Dr. Verma further and said that âthis is not enough and beat him moreâ. Meanwhile, Dr. Gogoi(trainee from Assam) disengaged Dr. Dayal from Dr. Verma and Dr. Shwet Kamal (Research Associate) who was present nearby prevented Dr. Dayal from further injury to Dr. Verma. Meanwhile Dr. Verma returned shivering with the shock to the meeting and ended the MSI meeting abruptly.

The above incident created by Dr. S. Dayal and Dr.(Mrs.) Yash Gupta, Scientist(SS) not only disrupted the meeting of Mushroom Society of India in midway but also hampered the training of the Winter School and research work going on at the Centre. This also gave a bad impression of the happenings to the trainees assembled at the Centre from all over the Country. Dr.(Mrs.) Yash Gupta, Scientist (SS) is in the habit of disobeying the Senior Officers of the Institute and lack of devotion to duty and a charge sheet No.3(12)/98-Vig(D) dated 16.11.98 was issued to her for her misbehaviour. The disciplinary Authority while dropping the charges against her, had warned her to be careful in future vide order dated 9.4.2003. In spite of the warning Dr.(Mrs.) Yash Gupta indulged in such misconduct/ offence.

By her above act, Dr.(Mrs.) Yash Gupta demonstrated gross indiscipline/violent behaviour and thereby contravened the provision of Rule 3(1)(iii) of CCS(Conduct) rules, 1964 as extended to Indian Council of Agricultural Research employees.â

6.3 Along with the Article of Charge, in Annexure-III, list of eleven items of documents and in Annexure-IV, a list of seven witnesses were enclosed to prove the charge.

6.4 The respondent, Dr. Gupta, initially after show cause notice, submitted her written statement denying the allegations and after the charge sheet was served on her, she asked for supply of copy of documents and the relevant documents were supplied to her including that of the statements of the witnesses recorded during preliminary inquiry. She also made a prayer for keeping the disciplinary proceeding in abeyance till the criminal case was disposed of but her prayer was rejected. She, thereafter, asked for supplying twenty two items of documents but after considering the prayer, seven documents were found relevant and those were supplied to her on 25.06.2005. She applied to the disciplinary authority for permitting her to engage a legal practitioner to defend her case but her prayer was rejected since the presenting officer was not a legal practitioner. She named different defence assistants at different point of time but could not secure attendance of those defence assistants as named by her, which is reflected in the inquiry report. Ultimately, she gave an undertaking that if she fail to engage her defence assistant by the next date, she will conduct her case of her own and, thereafter, the inquiry officer fixed the case for recording evidence of the disciplinary authority and in course of inquiry the Presenting Officer, on behalf of the disciplinary authority, examined all the witnesses listed in the Annexure-IV to the charge sheet and they were cross-examined by the respondent. On her behalf, she also examined two witnesses to prove her innocence. The inquiry officer on conclusion of the inquiry submitted report on 06.10.2007. Before the enquiry report was submitted she was acquitted from the criminal case and, thereafter, she made a prayer to the disciplinary authority praying for dropping the disciplinary proceeding in view of her acquittal from the criminal case. While the inquiry officer submitted the inquiry report to the disciplinary authority, copy of the same was supplied to the respondent, and she submitted her representation against the report. The disciplinary authority considering all the materials placed before it, by order dated 17.01.2008 imposed the penalty of âcompulsory retirement on the respondent. The relevant order passed by the disciplinary authority, imposing penalty, reads thus:

âORDER

WHERES, an inquiry under Rule 14 of CCS(CCA) Rules, 1965(as extended to ICAR employees) was initiated against Dr.(Mrs.) Yash Gupta, Scientist(SS)[now Sr. Scientist), Central Potato Research Institute, Shimla vide memorandum dated 27.05.2004 containing the following article of charge:-

Article of Charge While working as Scientist(SS), National Research Centre for Mushroom, Solan, Dr.(Mrs.) Yash Gupta created an embarrassing and intolerable situation by indulging herself in an act of gross indiscipline and violence by instigating and provoking Dr. Sarveshwar Dayal, Scientist(SS), who had physically assaulted Dr. R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the NRCM Office when Dr. Verma was presiding over the meeting of Mushroom Society of India as its President.

WHEREAS Dr.(Mrs.) Yash Gupta, Sr. Scientist did not reply to the charge sheet. Subsequently, reminders dated 14.09.2004, 07.10.2004 and 08.11.2004 were sent to the Charged Officer to submit her reply but even then she neither admitted nor denied the charge.

WHEREAS Dr. P.S. Naik, Principal Scientist, CPRI, Shimla was appointed as the Inquiry Officer vide Order dated 28.03.2005 to inquire into the charges framed against the Charged Officer.

WHEREAS the Inquiry Officer after holding the inquiry submitted his report dated 6th October, 2007 to the Disciplinary Authority wherein he has held the charge against Dr.(Mrs.) Yash Gupta, Sr. Scientist as proved.

WHEREAS after considering the inquiry report, the Disciplinary Authority observed that the inquiry has been held as per the prescribed procedure and he tentatively accepted the findings of the Inquiry Officer.

WHEREAS, a copy of the Inquiry Report was sent to Dr.(Mrs.) Yash Gupta, Sr. Scientist vide Memo. dated 18.10.2007 giving her an opportunity of making her submissions, if any, on the findings of the Inquiry Officer.

WHEREAS Dr.(Mrs.) Yash Gupta, Sr. Scientist vide her letter dated 28.11.2007 in response to Inquiry Report has made the following submissions(in brief):

i) She has been acquitted in the Criminal case

ii) Dr. R.N. Verma i.e. the complainant had malafide intentions:

iii) Inquiry Officer denied her the opportunity to engage a Defence Assistant.

iv) Inquiry Officer denied supply of the documents listed by her.

v) Inquiry Officer denied opportunity to present witnesses from defence side.

vi) Witnesses have been planted in the case and telling different story.

vii) Inquiry Officer has used assumption and suppositions to prove the charge.

viii) Presenting Officer is an interested person.

ix) Inquiry Officer was biased.

WHEREAS, the points raised by Dr.(Mrs.) Yash Gupta, Sr. Scientist in her submissions have been examined with reference to relevant records of the case, as given below:

i) In the criminal case, the Charged Officer has been acquitted by the CJM, Solan by giving her benefit of doubt and not on merits. Further, the standard of proof in a criminal case is different than that in a departmental proceeding. While in a criminal case, it is proof beyond doubt which is required to establish a case, in a departmental proceeding it is the âpreponderance of probability. In this case, based on the statement of witnesses, the Inquiry Officer has rightly held the charge as âproved. Furthermore, her contention that she has been acquitted in the criminal case is also not relevant. There have been numerous Court judgments including of Honble Supreme court and High Court wherein it has been held that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against her or to drop the same in the event of an order of acquittal is passed.[Suresh Pathrella v. Oriental Bank of Commerce AIR 2007 SC 199, Raj Kumar v. Presiding Officer and others 2007(5) SLR 592(Pb. and Hry), State of Gujrat and others v. Dattu Raghu Vanzari 2007(3) SLR 675(Gujrat)].

ii) While alleging malafide intention of Dr. R.N. Verma, the Charged Officer has referred to some acts/orders dated back to the period when Dr. R.N. Verma was functioning as Director, National Research Centre for Mushroom, Solan, Himachal Pradesh. The fact that a Director takes certain disciplinary action against a recalcitrant employee does not imply that he is biased against that employee. Rather, her own submission itself makes it quite clear that she was having a grudge against Dr. Verma for something which he(Dr. Verma) had done in the past in the normal discharge of his duties. Thus the contention of Charged Officer is devoid of merit.

iii) The Charged Officer requested the Disciplinary Authority vide representation dated 10.06.2005 to allow a legal practitioner to present the case on her behalf. As in this case the Presenting Officer was not a legal practitioner, the Disciplinary Authority vide Memo. dated 14.07.2005 turned down her request. Subsequently, she proposed the name of Shri G.C. Thakur, Superintendent, Court of Session Judge, Distt. and Session Court, Solan(later on transferred to Bilaspur) as her Defence Assistant in September, 2005. But Shri G.C. Thakur was not relieved by his office. Later on in April 2007, the Charged Officer proposed the name of some Shri D.N. Verma, Retired Senior Accounts Officer, Saproon as her Defence Assistant. This time too the Inquiry Officer agreed to the request of the Charged Officer. While agreeing to her request of engaging Shri D.N. Verma as her Defence Assistant, the Inquiry Officer made it clear to the Charged Officer that in future he would not allow any further delay in the proceedings on the pretext of non-availability of Defence Assistant. But despite this, after a lapse of two months, the Charged Officer once again made a request for engaging another person namely Shri R.K. Gupta, Sr. Audit Officer, Officer of AG(Audit) Shimla as her Defence Assistant. At this juncture, the Inquiry Officer reminded her about the decision taken in the previous hearing dated 19.04.2007 in which she had given an undertaking not to change the Defence Assistant any more and to put her defence herself in the case of non-availability of Shri D.N. Verma i.e. her Defence Assistant. As evident from the Daily Order Sheet dated 12.07.2007, the Charged Officer herself agreed to defend her case and therefore the submission now made by her that Inquiry Officer denied her the opportunity to engage a defence assistant is false and devoid of merit.

iv) The Inquiry Officer allowed 7 additional defence documents out of a long list submitted by the Charged Officer after discussing the matter to the satisfaction of the Charged Officer as evident from the Daily Order Sheet dated 13.06.2005. But subsequently, the Charged Officer made a representation to Disciplinary Authority i.e. President, ICAR alleging bias on the part of Inquiry Officer citing denial of some documents as one of the acts of biasness on the part of the Inquiry Officer. The President, ICAR did not find any merit in the submission of the Charged Officer. Thus there is no merit in the submission of the Charged Officer.

v) The Charged Officer submitted a lengthy list of 20 defence witnesses. At this stage, the Inquiry Officer observed that he would not like to use his discretion to refuse defence witnesses but would like that the Charged Officer should select 5-6 most relevant and most appropriate witnesses from the list. The Charged Officer herself selected 7 defence witnesses. Even out of these 7 witnesses she produced just two, during the inquiry. Thus her submission that Inquiry Officer denied her defence witnesses is contrary to the facts of case.

vi) The submission of the Charged Officer that âWitnesses have been planted in the case and telling different storyâ is itself contradictory. Had this been the case of planted witnesses, then they would have recited exactly the same miniscule details of the events. There is no merit in the submission of the Charged Officer. As per the record of the disciplinary inquiry the witnesses have described the events of the case from the stage they appeared during the fateful incident and the witnesses have not made contradictory statements during the inquiry. Even in case of the one specific witness pointed out by the Charged Officer in her submission i.e. Dr. Robin Gogoi, he has categorically confirmed, in his statement, the presence of the Charged Officer at the site of the assault and the fact of her misconduct regarding provoking Dr. Sarveshwar Dayal to assault Dr. R.N. Verma. In all, there were two eyewitnesses of the misconduct of the Charged Officer of provoking her husband Dr. Sarveshwar Dayal and both of them(Dr. Shwet Kamal and Dr. Robin Gogoi) have confirmed the misconduct of Dr.(Mrs.) Yash Gupta leaving no iota of doubt about the whole incident.

vii) The conclusion reached by the Inquiry Officer is based on the evidence which came up during the inquiry. The sentences referred by the Charged Officer in this point are part of the logical analysis. His conclusion about the misconduct has come out logically out of the evidences and while arriving at his conclusion, the Inquiry officer has remained confined to the records of the case presented during the course of inquiry. Thus, the contention of the Charged Officer, that Inquiry Officer has used assumption and supposition to prove the charge is devoid of merit.

viii) The Charged Officer, herself, has not been able to cite even one ulterior motive of the Presenting Officer. Further, presenting the facts of the case by the Presenting Officer cannot be termed as biased exercise. Thus the contention of the Charged Officer is devoid of merit.

ix) The Charged Officer has attributed motives to each and every action of the Inquiry Officer. Her submission that the Inquiry Officer deliberately selected NRC-M, Solan as the venue for inquiry is one such example. In fact, the Inquiry Officer has selected the National Research Centre for Mushroom, Chambaghat, Solan, Himachal Pradesh as venue for inquiry as most of the witnesses were based at that place. Further, while considering the representation of the Charged Officer alleging bias on the part of Inquiry Officer, the Disciplinary Authority i.e. President, ICAR did not find any merit in her submissions and the same was conveyed to the Charged Officer vide Memorandum dated 14.11.2005.

WHEREAS, the submission of the charged officer itself is convoluted, verbose and in a round about manner on several extraneous issues and makes it very clear that there is truth in that the incident actually happened and she has no real defence.

AND WHEREAS, the report of the inquiry and the submissions made by Dr.(Mrs.) Yash Gupta, Sr. Scientist have been considered by the Disciplinary Authority i.e.

President, ICAR along with the facts and records of the case and having regard to the findings of the Inquiry Officer and submissions made by Dr.(Mrs.) Yash Gupta, Sr. Scientist, the President, ICAR has decided to accept the findings of the Inquiry Officer.

NOW THEREFORE, after considering the records of the inquiry and the facts and circumstances of the case, the President, ICAR being the Disciplinary Authority in this case, is of the opinion that Dr.(Mrs.) Yash Gupta, Sr. Scientist indulged herself in an act of gross indiscipline and violence by instigating and provoking Dr. Sarveshwar Dayal, Scientist(SS), who had physically assaulted Dr. R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the NRCM Office premises and ends of justice will be met by imposing the penalty of âCompulsory Retirementâ on her as the offence is grave and her continuance in the service would be harmful to the system.

ACCORDINGLY, the penalty of âCompulsory Retirementâ is hereby imposed on Dr.(Mrs.) Yash Gupta, Sr. Scientist with immediate effect.

(Rajiv Mangotra)

Under Secretary (Vigilance) For and on behalf of the President, ICARâ

6.5 Being aggrieved, the respondent, Dr.(Mrs.) Gupta approached the CAT, Guwahati Bench, by filing O.A. No.218 of 2008, and by impugned order, dated 06.04.2010, the CAT set aside and quashed the order of the disciplinary authority simply on the ground that the order passed by the CAT in OA No.299 of 2007(case of Dr. Dayal) was not challenged in the meantime and further drawing attention to some particular line of the deposition of Dr. Rabin Gogoi and Dr. Shwet Kamal, the Tribunal allowed the O.A. and set aside the order of disciplinary authority in a cryptic order.

7. Learned counsel, Mr. Majumdar, drawing our attention to the inquiry proceeding and the reports submitted by the inquiry officer, severely criticized the order passed by CAT in both the OAs and has submitted that the respondents, being responsible officers of ICAR committed gross misconduct by physically assaulting the Ex-Director of the institute intentionally and willfully and when the disciplinary proceeding was initiated, they have taken hostile stand and were non-cooperative from the very beginning. They were creating hindrance in the proceeding by taking imaginary and unfounded pleas to stall the proceeding. Dr. Dayal even did not submit his statement of defence though several opportunities were given to him. He was insisting for 56 items of documents but he could not show relevancy of those documents and the inquiry officer found four of the documents relevant and those documents were supplied to him, which is evident in the inquiry report. Dr. Dayal also consumed abnormal time for engaging his defence assistant and he submitted tour programme claiming dearness allowance for searching out his defence assistant.

Mr. Majumdar also submitted that when all reasonable opportunity was given to him, he cannot blame the disciplinary authority and the Tribunal was wrong in holding that principle of natural justice was violated and that reasonable opportunity was not given to the respondents. Learned counsel, Mr. Majumdar has also submitted that acquittal in the criminal case is not by itself be a ground to drop a disciplinary proceeding. Drawing our attention to the deposition of seven witnesses recorded during the inquiry, learned counsel, Mr. Majumdar has submitted that all the witnesses made consistent statements about the occurrence and simply based on the evidence of the victim, Dr. R.N. Verma, which is fully supported by the statements of Dr. Rabin Gogoi and Dr. Shwet Kamal, the charges against the respondents have been well established. He has assailed the orders of the Tribunal submitting that the Tribunal did not at all apply its mind and has violated the settled position of law that the Courts and Administrative Tribunals should not interfere in the order of domestic Tribunals unless there is gross violation of the principles of natural justice and that the order of punishment is based on no evidence and further that the conclusion of the disciplinary authority is shocking to conscience of the Court. The criminal Court, submitted by Mr. Majumder, acquitted the accused persons on benefit of doubt after critical analysis of the evidence in the criminal case, which is not binding on the disciplinary authority.

Finally, learned counsel Mr. Majumdar, has contended that in both the disciplinary proceedings, depositions of all the listed witnesses of the disciplinary authority (seven witnesses), who all are responsible Govt. officers of ICAR and are colleagues of the respondents, substantially corroborated the statements of the victim, who was Ex-Director of the institute and, there is no reason to disbelieve them. PWs, Dr. Rabin Gogoi and Dr. Shwet Kamal, were the direct eyewitnesses and other witnesses were inside the office room/meeting room and they came out hearing the noise and all of them corroborated the incident, who were reported by the victim and the eyewitnesses. It has also been transpired in the evidence of the eyewitnesses, submits Mr. Majumdar, that the respondents, while working under the victim, Dr. Verma, were not happy with some of his action and, therefore, were nurturing hostile attitude towards Dr. Verma and executed it after his retirement by assaulting him physically in the office premises, and such conduct of respondents, being the senior officers of the Department is highly detrimental to the interest of the Department and, therefore, their departure from the Department, by way of âcompulsory retirement is a minimum punishment in the facts and circumstances of the case, which deserves no interference. In course of hearing, learned counsel, Mr. Majumdar has submitted that the deposition of seven witnesses recorded in the disciplinary proceeding of Dr. Gupta has been enclosed in both the writ cases, and that, inadvertently, evidence recorded in the case of Dr. Dayal has not been enclosed in the writ petition and prayed for submitting the same later on, which was allowed since not objected, most fairly, by learned counsel of the other side and, accordingly, the copy of the deposition of all the seven witnesses recorded in the disciplinary proceeding of Dr. Dayal has been placed on record.

In support of his argument, learned counsel, Mr. Majumdar, relied on the following case laws:

(1) State of U.P. and Ors. v. Ramesh Chandra Mangalik: (2002) 3 SCC 443(para 11 and 12).

(2) Pepsu Road Transport Corporation v. Rawel Singh: (2008) 4 SCC 42 (para 15).

(3) R.P. Kapur v. Union of India and Anr. : AIR 1964 SC 787(para 9).

(4) K. Venkateshwarlu v. State of Andhra Pradesh: (2012) 8 SCC 73 (para 13).

8. Per contra, learned counsel Mr. Ahmed, while supporting the judgment and order passed by the CAT, argued that the FIR was lodged just immediately after the occurrence and a criminal case was instituted, which has been ended by judgment, dated 22.06.2007, passed by learned Chief Judicial Magistrate, Solan. Since, on the same bundle of fact, i.e. the alleged assault of Dr. R.N. Verma, criminal case was tried by a competent Court of jurisdiction, and, same set of witnesses were examined in the disciplinary proceeding as well as in the criminal trial, so, the judgment passed by the Criminal Court must have a bearing on the fate of the disciplinary proceeding. The disciplinary authority would drop the proceeding after the criminal case has ended in acquittal. According to Mr. Ahmed, while a criminal case was pending for trial and disposal, the disciplinary authority would keep the proceeding in abeyance but in the case of the respondents, the disciplinary proceeding was allowed to continue simultaneously and that has caused injustice on the respondents. It has also been submitted that a meticulous reading of the deposition of witnesses, examined on behalf of the disciplinary authority would reveal that except the eyewitnesses, Dr. Rabin Gogoi and Dr. Shwet Kamal, other witnesses did not corroborate the alleged victim, Dr. R.N. Verma and out of the alleged two eyewitnesses, Dr. Shwet Kamal is a relative of the victim and, so, he cannot be relied. He has also submitted that the alleged victim, Dr. Verma earlier worked as a Director of NRCM and he tried to spoil the service career of the respondents and, therefore, he might have grudge against the respondents for which he has made a false allegation against the respondents, which is not supported by the other witnesses of the disciplinary authority.

The allegation against Dr. Gupta is that of provoking and/or instigating her husband, Dr. Dayal, in assaulting Dr. Verma, whereas, there is no evidence of provocation, submits learned counsel Mr. Ahmed, on record, at least, to show that Dr. Dayal alleged to have assaulted because of the provocation or instigation by Dr. Gupta and, under such circumstances of the case, the Tribunal rightly interfered in the order of punishment of Dr. Gupta, which cannot legally sustain.

In support of his contention, learned counsel has referred the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. reported in (1999) 3 SCC 679.

9. Both the respondents(husband and wife) were gazetted officers, working in highly responsible posts as Senior Scientist under ICAR. While on duty, Dr. Dayal, in the office premises, manhandled

Dr. Verma, their Ex-Director and, assaulted him physically, while Dr. Gupta, having been present there in the scene, uttered that Dr. Verma ought to have been beaten more and instigated Dr. Dayal to assault Dr. Verma.

10. Let us first see whether the alleged act of the respondents constitutes âmisconductâ. In Blacks Law Dictionary, the word, âmisconductâ is defined as a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, a misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness. The very word, âmisconductâ has not been defined in the CCS(Conduct) Rules, which is applicable to the respondents. CCS (Conduct) Rules requires that every Government servant shall all timesâ

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant.

10.1 âMisconductâ is wide expression, which is not defined in any enactment. But it can be inferred, where there are gross intentional violation of law, and, acts which are prohibited by law. What amounts to âmisconduct is a matter, which depends on the circumstances of each and every case.

10.2 Each and every person is governed under the Rule of law irrespective of his status, rank and position in the society. It is well recognized principle and proposition of law that the concept of employment involves three basic components i.e. the Employer, Employee and contract of employment. The relationship between employer and employee as master and servant is the product and creation of a contract. Both the master and servant are governed under definite terms and conditions of contract. Besides, terms and conditions of employment, there is a Code of Conduct and principles of natural justice implied on specific for both master and servant. The expression âconduct has a significant meaning which includes his character, discipline, integrity, decency, efficiency to duty, a conduct befitting to the position and morality etc. in the matter of private and public employment. In the case of Union of India v. J. Ahmed reported in 1978 SC 1028, the apex Court, while summarizing the meaning of âmisconductâ, heldâ

â(a) Blameworthy conduct of Government servant;

(b) Lack of efficiency, lack of intelligence and farsightedness and indecisiveness of the Government servant;

(d) Gross or habitual negligence in performance of duties.â

10.3 In the case of Probodh Kumar Bhowmick v. University of Calcutta reported in 1994(2) CLJ 456 : (1994) 8 SLR 300(Cal), his Lordship Honble Justice S.B. Sinha, while relying on the principles laid down by the Apex Court in the case of Mahendra Singh Dhantwal v. Hindustan Motors Ltd., reported in (1976) III LLJ 259(264) SC, Delhi Cloth and General Mills Co.Ltd. V. Its Workmen, reported in (1969) 2 LLJ 755, State of Punjab and Ors. V. Ram Singh Ex. Constable, reported in 1992(4) SCC 54, has held:-

â14. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behavior; intentional wrong doing on deliberate violation of a rule of standard or behaviour".

âMisconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct.â

Further, referring to P. Ramanath Aiyar's Law Lexicon, Reprint Edition 1987 at Page 821 His Lordship, Honble Justice Sinha in paragraph 21 of the judgment quoted thus:-

â21. P. Ramanath Aiyar's Law Lexicon, Reprint Edition 1987 at Page 821 defines 'misconduct' thus:

âThe term misconduct implies a wrongful intention, and not a mere error of judgment, Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour of neglect by a public official, by which the rights of a party have been affected.â

Thus it could be seen that the word 'misconduct' though not capable of precise of definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.â

11. In the case at hand, the allegation is that the respondent, Dr. Dayal, while was on official duty, physically assaulted Dr. Verma, Ex-Director of the Institute and, Dr. Gupta uttered remarks to assault Dr. Verma more and, thereby insisted her husband, Dr. Dayal, which, definitely, amounts to a gross misconduct on the part of the respondents.

12. Admittedly, an FIR was lodged immediately after the occurrence, which has resulted in Criminal Case No.245/2 of 2003 in the Court of Chief Judicial Magistrate, Solan. Before the disciplinary proceeding ended in punishment of the respondents, the judgment in the criminal case was passed on 22.06.2007, with an order of acquittal of the respondents. The operative portion of the judgment reads thus:

â16. After going through the entire prosecution evidence, as discussed above, it has to be held that prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, my findings on point No.1 is in the negative and against the prosecution.

FINAL ORDER

17. In view of my findings on point No.1 above, accused are given benefit of doubt and acquitted of the charge under section 341, 323, 506 read with section 34 IPC. File after completion be consigned to record room.

Announced in the open court of this 22nd day of June, 2007 in the presence of Sh. Yashpal Singh APP for State and accused with Sh. D.K. Thakur, Adv.â

12.1 It is, therefore, evident that the respondents were acquitted from the criminal case after critical appreciation of the evidence recorded in the criminal trial. We do not like to make a comment on the judgment passed by the learned CJM, Solan in the criminal case. Simply the fact, which is placed before us renders that the respondents were acquitted on benefit of doubt from the criminal case.

12.2 In a case of acquittal with benefit of reasonable doubt, it is quite permissible to initiate departmental proceedings on the same set of facts, for it is still a point to be decided by the employer as to whether a person whose character or action is of doubtful nature should or should not be allowed to continue in service. But in the case of honourable acquittal with a finding that the charge was false or that no case was at all made out, and the accused was completely exonerated of the charges, it would be wrong to draw up a disciplinary proceeding on the same set of facts.

12.3 It is a well settled proposition of law that for the same bundle of fact a criminal proceeding and a departmental proceeding may be initiated simultaneously but where the factual aspect of the disciplinary proceeding is completely dependent on the fact of the criminal proceeding, simultaneous disciplinary proceeding before end of the criminal proceeding is not desirable. In cases of the present nature, there is no impediment in simultaneous disciplinary proceedings as well the criminal proceedings.

12.4 Obviously, no principle can be stated in any absolute or unqualified form, but a general proposition may be laid down as that where the acquittal is on a technical ground or the facts are held established which would justify disciplinary action, but the criminal trial ends in an acquittal, because some necessary ingredient has not been proved beyond reasonable doubt, there might, as well, be a case for contending that the departmental authorities could nevertheless punish. But if for instance, a man is acquitted of a grave offence like criminal misappropriation on the ground that dishonest conversion is not at all made out it is certainly anomalous that a departmental authority be permitted to differ and to hold that there was a dishonest conversation and further, to inflict punishment on that basis.

12.5 Acquittal of the accused from criminal case cannot take away the power of the concerned authority to continue the departmental enquiry in an appropriate case. In the case of Corporation of City of Nagpur v. Ramachandra G. Madak, 1981(2) SCC 744 : 1981(3) SCR 22, the Apex Court has held that normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered.

12.6 Where a delinquent has been tried in a Criminal court and acquitted, a departmental enquiry may be held by the department. Indeed the department has got to follow the norms of fairness and justice while instituting a departmental enquiry against him. It is difficult to accept the proposition that a departmental enquiry cannot be held if the case falls in one straight jacket formula or another. Whether a departmental enquiry should be held or not depends upon the facts and circumstances of each case. It is wrong to fetter the judgment of the disciplinary authority by specifying circumstances for holding a departmental enquiry and observing that a case must fall under one or the other circumstances. It is difficult to imagine innumerable situations which may develop in a dynamic society consisting of innumerable patterns of unpredictable human behaviour.

12.7 The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and in some cases, at least, material or evidence which would be relevant or open for consideration in the departmental proceeding if, may absolutely be tabooed in the criminal proceedings. The rules relating to the appreciation of evidence in the two enquiries may also be different. The scope of an enquiry in a criminal trial is to determine whether an offence against the law of the land has taken place and if so, to punish the person who has been guilty of that offence. The scope of a departmental enquiry is to determine whether a public servant has committed a misconduct or delinquency and even if the same constitutes, from one point of view, a crime, to consider the question whether the delinquent deserves to be retained in public service or to be reverted or to be reduced in rank or otherwise suitable with for the delinquency concerned. In criminal trial, an incriminating statement made by an accused, in certain circumstances or before certain individuals is totally inadmissible evidence. In a departmental proceeding, the enquiry officer is not bound by any such technical rule. The degree of proof which is necessary to record an order of conviction is different from the degree of proof which is necessary to record the commission of the delinquency. The rule relating to the appreciation of evidence in the two proceedings is also not identical. For example, in a criminal trial, the Court invariably proceeds on the presumption that accomplice evidence is suspect and shall not be acted upon without an independent corroboration in material particulars. An enquiry officer is not bound by any such rule. In a criminal proceeding, proof is required beyond reasonable doubt, whereas in a departmental proceedings, it is only preponderance of probability, as required in civil suit and practically much else than that.

13. In the case at hand, the respondents were acquitted from the criminal proceeding on benefit of doubt, while there was evidence on record that there was an incident as alleged but on some technical aspect of appreciation of evidence, learned Magistrate has given the benefit of doubt. In the facts and circumstances of the case, the disciplinary authority was supposed to consider the evidence on record in the proceeding and, while there was sufficient evidence on record to hold the charge, in our considered opinion, there was nothing wrong in imposing punishment by the disciplinary authority.

14. In the case of Capt. M. Paul Anthony(supra), which is relied by the respondents, we find that the case stands on a quite distinguishable fact. In that reported case the appellant was working as a security officer of Bharat Gold Mines Ltd. and a raid was conducted by the police in his house, wherefrom mining sponge gold ball weighing 4.5 grams and 1276 grams of 'gold bearing sand' were recovered from his house. A criminal case was instituted against him and a disciplinary proceeding was also initiated. The appellant was acquitted in the criminal case with a categorical finding that the prosecution failed to establish its case and that there was no evidence of any raid by police in the house of the appellant and recovery of such incriminating articles. In the disciplinary proceedings drawn against the appellant, he was, however, found guilty and was dismissed from service. He challenged the order before the High Court and the High Court directed his reinstatement with a further direction giving opportunity to the respondents to initiate fresh proceeding against the appellant. The Apex Court, while allowing the appeal in paragraph 13 and 22 of the judgment observed thusâ

â13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.

22. The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.â

This decision is in no way in aid of the respondents, rather the principles laid down therein is fairly against the case of the respondents.

15. The case of R.P. Kapur(supra), as referred by the learned counsel of the petitioners, in the facts and circumstances of the present case, is quite distinguishable and, we find no relevance.

16. In the case of K. Venkateshwarlu(supra), the Apex Court reiterated that an acquittal in criminal case, not on merit but on insufficiency of evidence, disciplinary proceedings, if pending against the appellant, authority concerned may proceed with the same independently uninfluenced by the judgment in accordance with law and arrived at an independent decision. The ratio of that decision may be gainfully applied in the facts and circumstances of the present case.

17. In the case of Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar reported in (2003) 4 SCC 364, the Apex Court has held that acquittal in criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application.

18. Let us now have a glimpse to the evidence recorded during enquiry. In the case of Dr. Dayal, as already stated earlier, all the seven listed witnesses, namely, (1) Dr. R.N. Verma, (2) Dr. Robin Gogoi, (3) Dr. R.C. Upadhyay, (4) Dr. B. Vijay, (5) Dr. S.K. Singh, (6) Dr. M.C. Yadav, (7) Dr. Shwet Kamal, have been examined in âquestion answer form.

18.1 Dr. R.N. Verma is the victim, who was the Ex-Director of Dr. Dayal. For fair appreciation, we may reproduce here the statement of Dr. Verma as recorded by the inquiry officer thusâ

âStatement of Dr. R.N. Verma S/o Late Dr. P.N. Verma; Aged: 65 years, R/o: âAshirwadâ, Rabindra Nagar, Phase-II, Morabadi University PO, Ranchi-834008(Jharkhand), Ex-Director, NRCM, Solan witness at Sr. No.4 of Annexure-IV in the charges framed against Dr. S. Dayal vide Memorandum F.No.3(2)/2004-vig(D) dated 01.06.2004.

PO: Will you please narrate the details of the incidence which took place in NRCM campus on 23.09.2003 against which you made a complaint to the Authorities in the Council?

Dr. R.N. Verma:

Sir, I came on 23rd September, 2003 on a personal visit to my son Mr. Sushant Bharati in the morning. In the afternoon Director, NRCM, Solan invited me to visit the Centre and I came to NRCM in the office vehicle and participated in a discussion with Director, AO and AFACO for about 45 minutes. After which the Director took me a round in some of the laboratories to show their functions. Later I went to Dr. R.C. Upadhyays room to preside over the meeting of the Mushroom Society of India of which I was the out-going President. The meeting was being attended by other office bearers of the Society namely Dr. R.C. Upadhyay, Dr. B. Vijay, Dr. S.K. Singh etc. After sometime I went out on natures call and when I was coming back I happen to meet Dr. Rabin Gogoi who was then participating in a training programme at NRCM. We were knowing each other for quite some time when I was serving in the North Eastern Complex. When I was exchanging pleasantry with Dr. Gogoi in the Corridor Dr. Sarveshwar Dayal alongwith his wife Dr. Yash Gupta came towards us shouting from a distance that âAdab Arj hai R.N. Vermaâ and after reaching me he slapped on my left side of the face. His wife from behind was shouting to hit more and instigating him by saying more is required. After hearing the noise Members of MSI namely Dr. Upadhyay, Dr. Vijay, Dr. S.K. Singh, Dr. Yadav and Dr. Shwet Kamal came out from the meeting room and the nearby laboratory. Dr. Shwet Kamal and Dr. Gogoi attempted to save me from further assault by Dr. Dayal. The Director along with some other staff also reached the spot after few minutes. Although I wanted to continue with the meeting of MSI but since the atmosphere was vitiated and all the members were feeling tense and disturbed, the meeting was postponed and I was taken to the Directors Chamber and consoled by one and all. The matter was officially reported to the Police and the Police party arrived at the scene within a few minutes. After visiting the scene of the incidence the police recorded my statement and got my signature on the same.

On going back to Ranchi I though it proper to put a written complaint to the Higher Authorities of the ICAR namely Director General and Deputy Director General(Hort.) separately by fax on 01.10.2003.

IO: Can you please have a look at documents at SE-3 and SE-9 and verify their correctness?

Dr. R.N. Verma:

I verify documents at SE-3 and SE-9, which were written and signed by me. I am not at all aware of SE-4(FIR). I never lodged any complaint of this incidence with the police. When the Police Party arrived at NRCM after official intimation they took my statement at NRCM itself and got it signed from me.

IO: At what time the incident took place?

Dr. R.N. Verma: It was between 4.30â5.00 P.M. I dont remember the exact time.

IO: What is the approximate distance between the site of incident and venue of the MSI meeting?

Dr. R.N. Verma: It should be about 10 to 15 feet.

IO: Who were the eye witnesses to the incidence?

Dr. R.N. Verma: Dr. S. Dayal, Dr. Yash Gupta and Dr. Gogoi were eye witnesses at the time of beating but later when he was trying to further assault and shout Dr. Shwet Kamal, Dr. Upadhyay, Dr. Vijay and Dr. S.K. Singh came at the scene.

IO: As a Director, NRCM, Solan what differences you had with Dr. Dayal and Dr. Yash Gupta which culminated in such a incidence?

Dr. R.N. Verma: I had no personal differences either with Dr. Dayal or Dr. Yash Gupta but while following the official procedures and general discipline as well as performing duties and work of the Centre Dr. Dayal and possibly Dr. Yash Gupta might have mistaken my actions wrongly due to which they took the law in their own hand and performed this ghastly incident and failed to observe the discipline and decorum of a Scientist particularly in the office premises.

IO: Can you please indicate few instances of official differences and did you try to amicably sort out them?

Dr. R.N. Verma: To cite only a few, the most important is that Dr. Dayal did not undertake a single research project at the Centre despite repeated requests and pursuations. He failed to attend several training programme for which he was nominated as a trainee. He flouted Office Orders on various occasions and refused to lead Sports Team as Chief-de-Mission at the last moment. As far as I remember he also failed to submit his Annual Confidential Reports on

certain occasions. I may point it out that such indifferent and disobedient attitude of Dr. Dayal was despite the fact that I tried my level best to motivate and encourage him to indulge in scientific and development activities of the Centre by giving both oral and written advises and suggestions. Even on one occasion I had gone out of way to provide him the required facilities to carryout his past experiments on low temperature cabbage and raise a crop at NRCM, Chambaghat although it was not a mandate crop of the Centre, only to keep his scientific pursuit alive, so that he may involve himself fully in research.

In case of Dr. Yash Gupta also I was positive in my approach in helping her in all her endeavour and even recommended her name for Young Scientist Award and award for writing Hindi Book on Button Mushroom. Besides she was given various assignments such as Organizing Hindi Week, Staff Welfare Association etc.

On the other hand, Dr. Dayal and his wife Dr.(Mrs) Yash Gupta seem to nurse personal enmity and hatred against me and wanted to harm me as is evident from their various actions, besides the one under investigation. For example, just before my retirement, Dr. Dayal sent false complaints to ICAR as admitted by them in their submissions to the Honble CAT, Chandigarh in an OA filed around November, 2003, which were all found baseless and false by the ICAR. Also, in the same OA they alleged my direct role and malafide in their transfer to CPRS, Shillong, which was also rejected by the Honble CAT. Dr. Dayal had been highly aggressive and rough in behaviour as evident from several complaints lodged against him from various staff members of NRCM, Solan and has faced charges of indiscipline etc. earlier also, which I do not remember in details today.â

18.2 We may also reproduce here the deposition of two other eyewitnesses, i.e. Dr. Robin Gogoi and Dr. Shwet Kamal.

The statement of Dr. Robin Gogoi reads thus:

Statement of Dr. Robin Gogoi, AAU, Jorhat presently at IARI, New Delhi; S/o Late Sh. Bhuban Chandra Gogoi, Aged: 43 years, R/o: Scientist Apartment, III-D, IARI, Pusa Campus, New Delhiâ12 witness at Sr. No.2 of Annexure-IV in the charges framed against Dr. S. Dayal vide Memorandum F.No.3(2)/2004-vig(D) dated 01.06.2004.

PO: Will you please narrate the details of the incidence which took place in NRCM campus on 23.09.2003 in your presence and what were you doing there and what exactly happened immediately after that.

Dr. Robin Gogoi: I was attending a Winter school training programme of ten days at NRCM, Chambaghat, Solan(H.P.). On 23th September 2003 at around 4.30 P.M. I was engaged in one practical class. At that time I saw from the classroom that Dr. R.N. Verma was walking in the corridor of that Classroom. As I knew him for the last several years, I immediately came out of the classroom and wished him. He stopped and started talking with me. At that moment suddenly I heard a voice of Dr. S. Dayal from my backside who was loudly wishing some words to Dr. Verma and came near to us. He shook hand with Dr. Verma and then embraced him and very quickly Dr. Dayal slapped on the face of Dr. Verma. Another trainee of the Winter School Dr.(Mrs) Yash Gupta was instigating Dr. Dayal to beat more. There was some noise at the site listening to which Dr. Shwet Kamal who was working in nearby laboratory also came to us. Immediately after the incidence I was surprised and shocked to see the behaviour of Dr. Dayal and myself and Dr. Shwet Kamal tried to rescue Dr. Verma. Immediately after committing the incidence Dr. Dayal and Dr. Yash Gupta left the place hurriedly.

IO: Can you please have a look at document SE-7 and verifying its correctness?

Dr. Robin Gogoi: I verify document SE-7 that had also been signed by me.

IO: As per SE-7, seven trainees have lodged the complaint with the Director, NRCM. How did they know about the incidence?

Dr. Robin Gogoi: In fact I was the only person present at the time of incidence. I informed the incidence to other trainees who felt that the matter needs to be brought in the notice of the Director.

IO: Did Dr. Yash Gupta come along with Dr. Dayal.

Dr. Robin Gogoi: Dr. Dayal came from somewhere else, whereas, Dr. Mrs. Yash Gupta joined him after coming from the class.

IO: When Dr. Dayal embraced Dr. Verma and slapped him what was the reaction of Dr. Verma?

Dr. Robin Gogoi: He was shocked and shivering too much.

IO: How did you and Dr. Shwet Kamal rescued Dr. Verma?

Dr. Robin Gogoi: We both tried to hold Dr. Dayal and prevented him from beating Dr. R.N. Verma.

PO: Did the Police come after the incidence and whether the Police took your statements?

Dr. Robin Gogoi: The Police did come to campus but they did not take my statement.â

18.3 The statement of Dr. Shwet Kamal reads thus:

Statement of Dr. Shwet Kamal, S/o Dr. Nagendra Kumar; Aged: 37 years, R/o: 7-B, Express view Apartment, Sector-93, Noida(U.P.) witness at Sr. No.3 of Annexure-IV in the charges framed against Dr. S. Dayal vide Memorandum F.No.3(2)/2004-vig(D) dated 01.06.2004.

PO: Will you please narrate the details of the incidence which took place in NRCM campus on 23.09.2003 in your presence, what were you doing there and what exactly happened immediately after Dr. Sarveshwar Dayal manhandled Dr. R.N. Verma?

Dr. Shwet Kamal: At that time it was about 4.45 P.M. and I was guiding a practical to winter school trainees. I heard that Dr. Verma was talking to Dr. Robin Gogoi outside the lab. I just came out and was standing 6-7 ft away from Dr. Verma in the corridor. Just before that Dr. Yash Gupta had left the practical and gone down. I was in the corridor. Dr. Dayal came saying âAdab Arj Dr. Sahidâ Dr. Yash Gupta was following Dr. Dayal. I thought Dr. Dayal wanted to greet Dr. Verma. Dr. Dayal embraced Dr. Verma and suddenly slapped on the left side of Dr. Vermas face. Dr. Robin Gogoi and I tried to disengage Dr. Dayal but Dr. Yash Gupta has pulled me from behind saying âYeh to kuch bhi nahi hai isko aur mar padni chhahiyeâ in the meantime other trainees came out and Dr. Dayal ran away from the spot. After that MSI meeting was adjourned Dr. Upadhyay, Dr. Vijay, Dr. Singh and Dr. Yadav came out. We all went to Directors Office from where Local Police was called and FIR was lodged against Dr. S. Dayal.

IO: You are signatory to document SE-8. Would you please verify correctness of this document?

Dr. Shwet Kamal: I verify above document.

IO: From your above statement it appears that the incidence occurred in your presence. Is it true that Dr. Sarveshwar Dayal actually manhandled Dr. R.N. Verma and Dr. (Mrs.) Yash Gupta instigated him?

Dr. Shwet Kamal: Yes I have seen Dr. Sarveshwar Dayal slapping Dr. R.N. Verma and Dr.(Mrs.) Yash Gupta instigating Dr. Dayal to beat more. In fact it was me and Dr. Robin Gogoi who separated Dr. Sarveshwar Dayal from Dr. R.N. Verma.

IO: How much was the distance between the laboratory you were guiding practical and the site of incidence?

Dr. Shwet Kamal: The incidence took place just outside the laboratory.

IO: Did you ever work with Dr. Sarveshwar Dayal.

Dr. Shwet Kamal: When I was SRF, we both were working in the same laboratory although I was not directly working under him.

IO: Did you have any problems working with Dr. Sarveshwar Dayal in the same laboratory.

Dr. Shwet Kamal: No I did not have any problem working with Dr. S. Dayal.

PO: Who others were present at the site when the incident took place?

Dr. Shwet Kamal: Myself, Dr. Robin Gogoi, Dr. R.N. Verma, Dr. S. Dayal and (Dr.) Mrs. Yash Gupta were present at the time of incidence in the corridor. After listening to the noise the trainees of Winter School as well as Executive Members of MSI came out to the corridor.

IO: How did you disengage Dr. S. Dayal from Dr. R.N. Verma.

Dr. Shwet Kamal: I pulled Dr. Dayal away from Dr. R.N. Verma. While doing so Dr.(Mrs.) Yash Gupta was pulling me back saying that âYeh to kuch bhi nahi hai isko aur mar padni chhahiye.â

18.4 The other witnesses, Dr. R.C. Upadhyay, Dr. V. Vijay, Dr. SK. Singh and Dr. M.C. Yadav, all came out hearing the noise in the corridor and saw the respondents as well as Dr. Verma and the eyewitnesses, Dr. Gogoi and Dr. Kamal. They all came to know about the occurrence from Dr. Verma and what they learnt from Dr. Verma they stated the same fact before the inquiry officer, who recorded the same in âquestion answer form. The respondent, Dr. Dayal, neither cross-examined those witnesses nor adduced any evidence to controvert the evidence of those witnesses. The deposition of the witnesses remained completely un-rebutted and, there is nothing to hold that Dr. Dayal did not manhandle and/or did not physically assault Dr. Verma in the corridor of the office. His wife, the other respondent was also present there and directly instigated Dr. Dayal that Dr. Verma was rightly beaten up and that he should have been beaten more.

19. In the proceedings of Dr. Gupta also, all those seven witnesses have been examined and they were cross-examined by Dr. Gupta. The victim, Dr. R.N. Verma in his statement narrated the entire incident.

For fair appreciation, we may reproduce here the statement of Dr. Verma, recorded by inquiry officer in âquestion answer form, which reads thus:

âStatement of Dr. R.N. Verma S/o Late Dr. P.N. Verma; Aged: 65 years, R/O: âAshirwadâ, Rabindra Nagar, Phase-II, Morabadi, University PO, Ranchi-834008(Jharkhand), Ex-Director, NRCM, Solan witness at Sr. No.4 of Annexure-IV in the charges framed against Dr.(Mrs.) Yash Gupta vide Memorandum F.No.3(28)/2004-Vig(D) dated 27.05.2004 held at NRC for Mushroom, Chambaghat, Solan(H.P.) on 12.07.2007.

Dated: July 12, 2007

PO: Will you please narrate the details of the manhandling incidence, which took place in the NRCM Campus on 23.09.2003 for which you made a complaint(P-3) against Dr.(Mrs.) Yash Gupta?

Dr. R.N. Verma: Actually on 23.09.2003 I visited Solan on a private visit to my. In the afternoon the Director, NRCM, Solan invited me to visit the Centre. After participating at a discussion in the Directors Chamber I was taken around in some of the laboratories showing their facilities and working. Later I went to Dr. R.C. Upadhyays room to preside over the meeting of the MSI Executive committee since I was the President of the Society. The meeting was attended by Dr. R.C. Upadhyay, Dr. B. Vijay, Dr. S.K. Singh and Dr. M.C. Yadav. After sometime I had to go out on natures call and when I was coming back I met Dr. Rabin Gogoi whom I knew for several years. Dr. Gogoi and myself were exchanging pleasantries in the corridor. Suddenly I saw Sarveshwar Dayal who was coming to me and from a distance he loudly âAdab Araj hai R.N. Vermaâ. Within a few seconds he reached me, shook hands with me and suddenly slapped me on left part of the face. From behind Dr. Dayal, Dr.(Mrs.) Yash Gupta was shouting and instigating him to make further assault saying âgive him more, give him more this is not enough. I was taken aback and fortunately Dr. Gogoi and Dr. Shwet Kamal who were standing on the door of the lab. Rushed and saved me from further assault by holding him and pulling him away. Simultaneously all the MSI Executive Members had also came out. I along with them went back to Dr. Upadhyays room and tried to come to normal state of mind. But all decided to postpone the meeting and they took me to Directors Chamber. One and all consoled me. The matter was officially reported to the Police immediately and a FIR was lodged by the A.O. After few minutes a Police party arrived at NRCM Office campus and reported to the Director from where the officer-In-Charge went to visit the site of the incidence. Coming back from there they took my statement and obtained my signature on the same. The Police looked for Dr. Dayal and Dr. Gupta in the NRCM premises but by then perhaps they had left. After going to Ranchi I thought it appropriate to send a written complaint to the Higher Authorities of the ICAR namely DDG(Hort.), ICAR. I verify the same(P-3).

PO: At what time the incident took place.

Dr. R.N. Verma: It was around 4.45-5.00 P.M. on 23.09.2003.

PO: What is the approximate distance between the site of incident and venue of the MSI meeting?

Dr. R.N. Verma: I think it should be around 15 fts.

PO: Whether Dr. S. Dayal and Dr. Yash Gupta were indifferent to you as a Director.

Dr. R.N. Verma: I think the work indifferent is too inadequate. When they had gone to the extent of taking the law in their hands and indulged in assaulting me, their attitude towards me is very much obvious. I had been in this Centre for more than seven and half years and I had all the cooperation and support from the entire staff of the Centre through which only the Centre could win the âBest Institution Award from the ICARâ. I dont know why Dr. Dayal and Dr.(Mrs.) Yash Gupta could not cooperate like others and involve in the mandated programme of the Centre in the constructive manner. Had they followed the normal office procedures, discipline, decorum and the routine work of the Centre such nasty incidence in which they involved themselves did not have occurred. It was unfortunate that Dr. Yash Gupta instead of giving good counseling and sane advice to her husband, herself indulged in instigating and encouraging her husband to go to such hostile and aggressive activity to assault me that too one and half years after my retirement and leaving Solan forever.

PO: What may be the reasons, which culminated into such an incident where Dr. Yash Gupta provoked her husband, to beat yourself.

Dr. R.N. Verma: First of all I think indulging in such a violent and wild activities was not at all necessary and hence why did she(Dr. Mrs. Yash Gupta) advise and instigate her husband to go for the same may better be answered by herself. I can only guess that they might have gone to this extreme step with a revengeful mind and attitude.

PO: What is your view for such an act of Dr. (Mrs.) Yash Gupta being a women scientist who instigated her husband to beat a Director at the work place.

Dr. R.N. Verma: I think it may not be possible for me to comment more than what I have said earlier and it will probably depend on the personal relations between Dr. Dayal and Dr. Gupta.

PO: Did you actually see that Dr. Gupta came to the site of the incident?

Dr. R.N. Verma: Yes I very much saw Dr. Yash Gupta instigating Dr. S. Dayal to beat more and more. Cross-examination:

CO: Did you give your statement to the Police when they came to the NRCM? Does this document(D-4) contain the statement given by you to the Police?

Dr. R.N. Verma: Yes, when the Police Party came and visited the site of the incident they asked and took my statement and got my signature done on the same. The D-4 document shown to me here only is not the statement given by me to the Police party on 23.09.2003 evening at NRCM. It seems to be copy of a Police Diary and contains the contents recorded in my statement given on 23.09.2003 besides other details noted by the Office of the Police Station.

CO: At what time the meeting of the MSI Executives started.

Dr. R.N. Verma: The MSI meeting started around 4.30 P.M. as far as I remember.

CO: Did you transact some business before going to urinal?

Dr. R.N. Verma: Because I had come to the meeting venue after visiting the Director and the laboratories, I had to leave the meeting mid way itself.

CO: After how much time of starting the meeting did you leave for urinal.

Dr. R.N. Verma: Obviously I dont remember these finer details after so many years.

CO: Exactly at what location you were talking with Dr. Gogoi in the corridor and for how long you were talking with him.

Dr. R.N. Verma: It was nearest to the Crop Improvement Laboratory were training was going on. It must be a few minutes only when we were talking. I dont remember the finer details.

CO: How did Dr. Dayal assault you.

Dr. R.N. Verma: He came rushing to me saying âAdab Araj hai R.N. Verma, held me and within moments slapped me before I could know anything.

CO: How many slaps did he give?

Dr. R.N. Verma: As far as I remember he gave only one slap on my face and a few thrashes (Dhakka-Mukka) to my body.

CO: Did you fall when he was assaulting you.

Dr. R.N. Verma: I stepped back as a natural response before Dr. Shwet Kamal and Dr. Robin Gogoi disengage Dr. Dayal and helped to save me from further assault.

CO: Did Drs. R.C. Upadhyay, B. Vijay, Dr. S.K. Singh, M.C. Yadav, Dr. Shwet Kamal and Dr. Robin Gogoi all of them save you.

Dr. R.N. Verma: No. I have told that they came out hearing the noise but Dr. Upadhyays room was about 15 feet away and they were simply mute spectators since by the time they could reach the spot of the incident was over. Dr. Robin Gogoi and Dr. Shwet Kamal saved me from further assault my disengaging Dr. Dayal.

CO: Did you depose in the court of CJM in the similar case.

Dr. R.N. Verma: Yes, I deposed in the CJMs court but unfortunately CJM was not in his seat till more than three-fourth of my statement was recorded.

CO wanted to put certain questions related to her previous case in the year 1997(D-5). PO Objected to this saying that this is not relevant to the deposition by the witness. IO sustained the objection.

Re-examination:

PO: Do you think that Dr. Sarveshwar Dayal had beaten yourself only because Dr.(Mrs.) Yash Gupta provoked and instigated him to do so?

Dr. R.N. Verma: I cant say that it was solely the result of provocation by Dr.(Mrs.) Yash Gupta that led to my assault by Dr. S. Dayal, but definitely her provocation and instigation must have played major role in the same.

IO: Dr. S. Dayal and Dr. (Mrs.) Yash Gupta were not actively involved in research and Institute building activities. Did you try to motivate them and bring them in the mainstream of NRCM.

Dr. R.N. Verma: Yes, I tried my level best to bring both of them to the main stream of the Scientific team of the Centre by providing facilities, giving suggestions and advises and when inquired. I was particularly paying more attention to Dr. Dayal since he was comparatively newer to mushroom. To keep his research pursuit alive

once I even went out of the way to provide him all facilities to lay field experiments on his cabbage breeding material which he brought from his previous place of posting, although the cabbage was not the mandatory crop of the CRCM. Similarly to encourage Dr.(Mrs.) Yash Gupta, I even recommended her name for Young Women Scientist Award and Hindi writing Book Award besides nominating both of them for various training programmes, Seminars etc.â

20. If we see the statement carefully, particularly, the cross-examination of Dr. Verma, it would be evident that in cross-examination, the incriminating statement as against the respondents has rather been confirmed. Further, Dr. Robin Gogoi and Dr. Shwet Kamal also made the same statement. In cross-examination of Dr. Shwet Kamal, he has admitted that Dr. Verma is his maternal uncle. There is nothing to disbelieve or to doubt the statement of Dr. Kamal for the only reason that he is a relative of Dr. Verma, while we find corroboration from the statements of other witnesses that Dr. Kamal was working as a scientist in the said institute at that relevant point of time and was present there at the time of occurrence. Relationship cannot be a factor for drawing an adverse inference against his otherwise cogent statement. Dr. Gogoi is an independent witness, a scientist working in the establishment and he made a consistent statement that when Dr. Verma was in conversation with him, Dr. Dayal manhandled and assaulted Dr. Verma. The evidence of this witness has not been shaken in any manner in cross-examination.

The Tribunal has singled out one line from the statement of Dr. Gogoi in his re-examination, where a specific question asked by the PO, to which Dr. Gogoi made the statement. Both the question and answer read thus:

âPO: Do you think Dr. Verma was beaten by Dr. Dayal because he was provoked and instigated by Dr. Yash Gupta.

Dr. Robin Gogoi: It is sure that Dr. Dayal had beaten Dr. Verma. But I am not sure that Dr. R.N. Verma was beaten on provocation and instigation from Dr.(Mrs.) Gupta.â

The above statement can in no way be interpreted or construed that Dr. Gogoi intended to mean thereby that there was no instigation by Dr. Gupta to her husband in the alleged assault. What was in the mind of Dr. Dayal cannot be adjudged or read as to whether he assaulted Dr. Verma at the instance of his wife or not, but fact remains, when Dr. Dayal assaulted Dr. Verma, at that time Dr. Gupta was also there and she uttered saying to beat Dr. Verma and that he should have been beaten more. Therefore, irrespective of the fact whether Dr. Dayal had beaten Dr. Verma at such instigation or not is not at all a factor, what she uttered itself is a misconduct on her part for which she deserved punishment.

We have also gone through the statements of defence witnesses examined by Dr. Gupta in her proceeding. DW Ajeet Kumar stated that on 23.09.2003, at 4.30/5.00 pm, he was in the lab of Crop Improvement Section, headed by Dr. Upadhyay and that

he did not hear any quarrel or noise. DW Dr. S.R. Sarma stated about some previous inquiry in the name of Dr. Gupta, which is not relevant. He further stated that on 23.09.2003, he was not present in the office of NRCM. The statement of defence witnesses, therefore, is in no help of Dr. Gupta, to discredit the evidence of disciplinary authority.

21. Regarding ex parte hearing of the proceeding against Dr. Dayal, we find enough material on record clearly supporting the case of disciplinary authority that Dr. Dayal from the very inception was non-cooperative and by hook or crook was trying to delay and frustrate the disciplinary proceedings drawn against him. He did not participate in the proceedings taking this and that plea. He did not even submit his statement of defence on receipt of show cause notice and the charge sheet. He cannot claim advantage of his own wrong. Since he did not participate in the proceeding regularly, the inquiry officer was compelled to have the ex parte hearing. The observation of CAT that reasonable opportunity was not given to the charged officer in the circumstances of the disciplinary proceedings is unfounded and unfortunate. The Tribunal would go into details of the inquiry proceedings and then was supposed to observe about the denial of principles of natural justice.

22. Respondents also contended that the documents claimed by them were not supplied. The Tribunal entertained such plea of the respondents without meticulously examining the materials on record and without recording a finding as to whether those documents, which the respondents asked for, were at all relevant or not for just decision of the disciplinary proceedings. If a delinquent demands a bunch of documents, the yardstick for such demand on the part of the delinquent is to show that those were material and in absence of those documents, they would be prevented from taking an effective defence. In the cases at hand, unfortunately, the respondents failed to put up a cogent case that they were deprived of their rights for denying the supply of any particular document. As we find on record, Dr. Dayal demanded fifty six items of documents, wherefrom the inquiry officer found only four as relevant. Dr. Gupta also demanded fifteen items of documents initially and then demanded twenty two items of documents but she has also failed to make out any case that those documents were relevant for just decision of the disciplinary proceedings. On the ground of non-supply of all documents, we find no injustice caused to the respondents. We may gainfully refer here the observation of the Apex Court in the case of Ramesh Chandra Mangalik(supra) in paragraphs 11 and 12, which read thus:

â11. Learned counsel for the appellant has further submitted that particular documents copies of which are said to have not been supplied are not indicated by the respondent much less in the order of the High Court nor has their relevance been pointed out. The submission is that the delinquent will also have to show as to in what manner any particular document was relevant in connection with the inquiry and what prejudice was caused to him by non furnishing of a copy of the document. In support of this contention, reliance has been placed upon a case reported in Chandrama Tewari v. Union of India reported in 1997 Supp. SCC 518. It has been observed in this case that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges. It is further observed that if a document even though mentioned in the memo of charges, has no bearing on the charges or if it is not relied upon or it may not be necessary for cross-examination of any witness, non-supply of such a document will not cause any prejudice to the delinquent. The inquiry would not be vitiated in such circumstance. In State of Tamil Nadu v. Thiru K.V. Perumal : (1996) 5 SCC 474 relied upon by the appellant, it is held that it is for the delinquent to show the relevance of a document a copy of which he insists to be supplied to him. Prejudice caused by non-supply of document has also to be seen. In yet another case relied upon by the learned counsel for the appellant, reported in (2001) 6 S.C.C. 392 State of U.P. v. Harendra Arora and Anr., it has been held that a delinquent must show the prejudice caused to him by non-supply of copy of document where order of punishment is challenged on that ground.

12. Learned counsel for the appellant submitted that no material or document has been relied upon by the inquiry officer, copy of which or inspection thereof may not have been allowed to the respondent. No material has been obtained after the date of hearing nor has any such material been made use of by the inquiry officer. It is further submitted that in the judgment of the High Court it has nowhere been indicated that any material or document, copy of which has not been supplied to the respondent, was used much less any prejudice, if caused to the respondent. Learned counsel for the respondent could not pinpoint any particular document which may have been made use of by the inquiry officer for establishing the charges leveled against the respondent, copies of which or inspection thereof may not have been allowed to the delinquent by the Department. No submission has been advanced on behalf of the respondent on the point of prejudice which may have been caused to the respondent by non-supply of document, if any. The high Court has also not gone into the question of the relevance of the documents, copies of which are said to have not been supplied to the respondent and consequent prejudice, if caused. We therefore find that the finding of the High Court that the principles of natural justice have been violated for non-supply of documents to the respondent is sustainable. The cross-examination of a witness which was sought for, had unfortunately died which fact was also brought to the notice of the respondent.â

In the case of Pepsu Road Transport Corporation(Supra), the respondents even after notice did not turn up and allowed the proceeding to go ex perte so that he may take the plea of violation of the principles of natural justice. Considering the facts and circumstances of that case, the Apex Court observedâ We are not entering into correctness or otherwise of the allegations of the Corporation. One thing, however, is certain that in spite of service of show cause notice, the respondent failed to appear at the enquiry and the Enquiry Officer had to proceed with the enquiry in absence of the respondent.

In the present case, the respondent, Dr. Dayal was well informed by notice about the hearing of the proceedings but he remained absent simply sending letter of illness with a medical certificate from a private doctor. His conduct from the inception shows that he did so deliberately with a view to take a future plea of denial of natural justice. Inquiry report, clearly depicting the picture of non-cooperation extended by Dr. Dayal throughout the course of inquiry, he cannot take the advantage of his own wrong, while he is guilty of non-cooperation.

23. The plea of the respondents that the principles of natural justice was violated, in our considered opinion, is absolutely mechanical, having no materials to support the plea and the Tribunal, we are constrained to hold, failed to apply its judicial conscience and superficially arrived at a decision and wrongly interfered in the finding of the disciplinary authority.

24. The power of judicial review of the decision of a domestic Tribunal is very limited. Such judicial review is possible only when the principles of natural justice has been violated i.e. the opportunities, which ought to be given to the delinquent, as per rules, were not given or that the decision of the domestic Tribunal was based on no evidence and that the punishment inflicted is shocking to the judicial conscience. If there is no glaring violation of principles of natural justice and there is some evidence to support the decision taken by the disciplinary authority, the Court or Tribunal cannot sit as a matter of appeal to re-appreciate the evidence and to substitute the finding of the disciplinary authority with its own findings.

25. In view of the discussions made above, we are of the opinion that the Tribunal has wrongly interfered in the orders passed by the disciplinary authority, and, hence, those are liable to be set aside and quashed. Accordingly, order, dated, 04.09.2009, passed in O.A. No.299 of 2007 and order, dated 06.04.2010, passed in OA No.218 of 2008, by the Central Administrative Tribunal, Guwahati Bench, are set aside and quashed. No costs.

Court	Guwahati High Court
Decided On	Jan-22-2013
Case Number	WP(C) No. 4569 of 2010 & WP(C) No. 5248 of 2010
Judge	I.A. ANSARI & S.C. DAS
Appellant	The President, Indian Council of Agricultural Research, New Delhi and Others
Respondent	Dr. Sarveshwar Dayal, Central Potato Research Station, Meghalaya and Others

The President, Indian Council of Agricultural Research, New Delhi and Others Vs. Dr. Sarveshwar Dayal, Central Potato Research Station, Meghalaya and Others - Court Judgment