| SooperKanoon Citation | sooperkanoon.com/55242 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Mar-21-2007 |
| Judge | M K Gupta, R A Neena |
| Appellant | Govind Manish, Joint |
| Respondent | Govt. of India Through Its |
2. Validity of Charge Memorandum dated 7/8.09.2005 initiated under Rule 14 of CCS (CCA) Rules, 1965 is questioned in this Original Application.
Consequential appointment of Enquiry Officer and Presenting Officer vide orders dated 09.12.2005 have also been challenged with consequential benefits.
3. At the outset, we may note that we are conscious of trite law on the subject that charges framed in a disciplinary enquiry should not be interfered with by Court/Tribunal unless charges framed read with imputation or particulars of charge, if any, no misconduct or other irregularity as alleged has been made out. At the initial stages, Tribunal/Court has no jurisdiction to go into the correctness or truth of the charges. In the light of aforesaid law, we proceed to examine the allegations contained vide impugned charge memorandum dated 7/8.09.2005.
4. Aforesaid charge memorandum contained one article of charge, to the effect that: that the said Sh. Govind Manish, while posed as Dy. Director of Income Tax (Investigation), New Delhi, in the year 2003, failed to maintain absolute integrity and exhibited conduct unbecoming of a Govt. servant, by way of approaching Sh. A. Krishnamurthy, a practicing chartered accountant in Chennai in the matter pertaining to his transfer from Delhi to Mumbai who on his behalf approached his contact Sh. R. Perumalsamy @ Babu, 1st P.A. to Sh. G.N. Ramachandran, the then Minister of State of Finance (Revenue), Govt.
of India and on the demand of Sh. R. Perumalsamy @ Babu, he agreed to pay Rs. 6 lacs to Sh. Babu towards bribe for ensuring his transfer through above Sh. A. Krishnamurthy.
Paras 2 - 5 of statement of imputation of misconduct or misbehaviour in support of the article of charge, which are the only concerned paragraphs, read as follows: 2. That Sh. Govind Manish, while posted as Dy. Director of Income tax (Investigation), Jhandewalan, New Delhi, in the year 2003, failed to maintain absolute integrity and exhibited conduct unbecoming of a Govt. servant in the matter pertaining to his transfer from Delhi to Mumbai. For getting his transfer done Sh.
Govind Manish approached Shri A. Krishnamuthy, a practicing Chartered Accountant, based at Chennai, who came in his contact during his posting in Chennai. Shri A. Krishnamurthy in turn approached Sh. R. Perumalsamy @ Babu, 1st PA to Sh. G.N. Ramachandran, the then Minister of State for Finance (Revenue), Govt. of India on his behalf and struck a deal for making payment of Rs. 6 lacs as bribe to the said Sh. Babu for getting his transfer done from Delhi to Mumbai. Sh. Govind Manish agreed to pay the said amount of Rs. 6 lacs as bribe to the above Sh. R. Perumalsamy @ Babu through his contact Shri A. Krishnamurthy.
3. That the CBI had made surveillance of the telephones (both mobile and landline nos.) of Sh. A Krishnamurthy, CA. An audio CD was prepared, containing recording of the conversation between Sh.
Anurag Vardhan and Sh. Krishnamurthy on the one hand and Sh.
Krishnamurthy and Sh. R. Perumalsamy on other hand, as well as between Sh. A. Krishnamurthy and certain other IT Officers.
4. That the name of Sh. Govind Manish figured in the telephonic conversations between Sh. Krishnamurthy and Sh. Perumalsamy on 11.5.03 at 20.30 hrs, wherein Sh. Krishnamurthy told Sh. Perumalsamy that another officer (DC) had requested his transfer from Delhi to Bombay. In the conversation dtd 15.5.2003 at 16.29 hrs, between Sh Anurag Vardhan and Krishnamurthy, the officer's name clearly figured, when Sh. Krishnamurthy enquired whether Sh. Govind Manish was ready to pay. To this, Sh. Anurag Vardhan replied that he was '200% ready'. Sh. Vardhan again asked Sh. Krishnamurthy on 19.5.03 at 18.05 hrs. whether Govind's name was there, and got an affirmative reply. After issue of transfer list on 21.5.03, Sh.
Krishnamurthy told Sh. Vardhan that for Sh. Govind Manish it would be done later.
5. That here is, thus an evidence indicating that Sh. Govind Manish had struck a deal with Sh. Krishnamurthy through Sh Anurag Vardhan.
From the transcript of telephonic conversations it is seen that Sh.
Krishnamurthy had provided the name of one Addl/Jt Commissioner and 3 DCITs to Sh. Perumalsamy, who were prepared to pay Rs. 6 lakhs for their transfers. The 3rd DCIT, besides Sh. Anurag Vardhan and Sh Rajesh Kumar, was Sh. Govind Manish.
13 documents and 4 witnesses were listed under Annexure III & IV appended to aforementioned charge Memorandum. The said Annexure III reads as: LIST OF DOCUMENTS BY WHICH THE ARTICLE OF CHARGE FRAMED AGAINST SHRI GOVIND MANISH, THE THEN DY.DIRECTOR OF INCOME-TAX, (INV.), DELHI, IS PROPOSED TO BE SUSTAINED The complaint dtd. 22.5.03 of Sh. N.K. Jain, Inspector/CBI/ACB, New Delhi to the SP/CBI/ACB, New Delhi.
FIR No. RC-DAI-2003-A 0031, dtd. 22.5.03, Under Section 120-B I.P.C. R/w 7,8,9,10,12,13(2) R/w 13(1)(d) of P.C. Act, 1988.
Envelope opening cum transcription comparison memo, regarding CD containing voice & Transcription file in connection with Anurag Vardhan case, received from O/p SP/CBI/SU/Chennai in a closed envelope, Dtd.22.5.03 alongwith Transcription file of transcription of conversation from/at Mobile No. 98410 73000 of Sh. A. Krishnamurthy, received from CBI/SU/Chennai.
CFSL Report No. CFSL-2003/E-0386, dtd. 19.12.03 (Report regarding Fax Machines) Call details of mobile No. 9810214219 of Mr. Govind Manish, 85, Trishul Tower, Kasushambi, Ghaziabad, UP-201001, received from Nodal Officer, Bharti Cellular Ltd. Letter of SP/SPE/CBI/ACB, Chennai dtd. 5.6.03, alongwith details of Tel. No. 24347260, 24340074, 24335599, 2433 9999, Mobile No. 9841073000 and 9444039999 of Sh. A. Krishnamurthy (last one in the name of Sh. Kalicharan), provided by BSNL, Chennai and RPG Cellular.
Letter No. TM(02) 2003/SU/CHN/940 Dtd. 27.9.04, addressed to the SP/CBI/ACB/New Delhi, from SP/CBI/SU/Chennai, alongwith certificate under Section 65-B of the Indian Evidence Act.
Transfer Proforma file, including the transfer proforma of Sh.
Govind Manish, for his transfer from New Delhi to Mumbai, given by him in 2003, for consideration in AGT-2003, including list of officers considered for transfer, including name of Sh. Govind Manish and his posting details including his posting at New Delhi.
Statement of Sh. K. Sathyan, Police Const. working at O/0 SP, Special Unit, CBI, Chennai.
5. Applicant's grievance is that aforementioned charge memorandum did not disclose any material whatsoever to sustain the impugned memorandum. The very chargesheet & its article do not disclose any involvement on his part in the alleged talk between third parties. Bare perusal of documents would reveal that he had not been attributed with any direct connection with the substance of charge. The alleged talk between two persons, which is sought to be made the basis, cannot, by any stretch of imagination, constitute a misconduct or link applicant to the allegation made. There is no iota of evidence or material available on record beyond the alleged conversation between one Shri Krishnamurthy and Shri Perumalsamy on 19.05.2003 at 1805 hours.
6. Facts stated are that applicant, a member of Indian Revenue Services of 1994 batch, was posted in Delhi during the year 2003. As per practice, for annual general transfers, which were due in April/May 2003, he made a request that he be considered for transfer & submitted his option from Delhi region to Mumbai region. Unfortunately, before the aforesaid option could be considered & materialize, he and family members met with a serious accident on the night on 16/17 April, 2003, resulting in serious injuries to all of them. His wife and son were advised bed rest for 1 - 2 months due to severe fracture and wounds suffered in the accident. Accordingly, he submitted a representation dated 24.04.2003 withdrawing his option for transfer, and prayed that he be allowed to continue in Delhi region. He had undergone two eye surgeries at Chennai for treatment & correction of eye sight/vision left eye, one of which was unfortunately unsuccessful. Therefore he obtained medical leave and permission to be treated abroad, which is evident from communication appended as Annexure A-8 (Colly.).
Thereafter, he was promoted to the grade of Joint Commissioner of Income Tax in the year 2005. Since he did not want to be transferred even on promotion, he submitted a request for his retention in Delhi CCIT region vide letter dated 09.03.2005. His request was accepted & retained at Delhi. He reported to rejoin on promotional post on 30.05.2005. He was shocked and surprised to receive impugned charge memorandum dt. 7/8th Sep, 2005. He being an innocent submitted his reply dt. 17.8.2005 specifically rebutting the charge alleged. In addition, he requested to provide copies of relied upon documents and evidence, which were the basis of said charge. There was no response from Respondent No. 2 and consequently he repeated his request vide communications dated 31.10.2005 & 25.11.2005. Ignoring his persistent request & fervent prayer to supply relied upon documents, respondents appointed Presenting Officer as well as Enquiry Officer vide order dated 09.12.2005. His further detailed representation dated 27.12.2005, reiterating request to supply material, evidence and clarifications enabling him to prepare and furnish his comprehensive defence, also remained unattended. Vide communication dated 09.1.2006 (Annexure A-8) certain documents, which were not the relied upon documents were supplied to him, viz. his request dated 24.4.2003 regarding withdrawal of his option and further request dated 09.03.2005 for retention in Delhi on promotion. Other documents supplied at serial Nos. 2 - 6 were in relation to his treatment and permission to go abroad for medical treatment. But his basic request for supply of documents, which were listed under Annexure A-III to Charge Memorandum remained unattended.
7. Shri A.K. Behera, learned Counsel of the applicant strenuously urged that applicant's request for supply of 'relied upon documents' has not been acceded to till date. He is totally innocent and no misconduct is made out based on article of charge, imputation of misconduct & relied upon documents, which is the foundation for the Article of charge.
Documents relied upon as detailed under Annexure III to charge memorandum have not been furnished to him despite repeated written request. If one examines the allegation vis-a-vis factual aspects narrated, which remained uncontroverted, undisputed and unchallenged, it would establish that he has been falsely implicated therein. When he along with family members met with an accident on the night of 16/17 April, 2003, and made a written request for his retention in Delhi on 24.04.2003 and also applied for permission to take medical treatment abroad, why he would be interested in transfer & involved in a telephonic conversation on the subject of transfer, which as per Respondents' own stand had been subsequently i.e at later dates 11.05.2003 and 15.05.2005. The said alleged conversation is the only material evidence against him, as per Respondents' record. No person of a reasonable prudence would arrive at the conclusion as arrived at by the Disciplinary Authority, contended Ld. Counsel.
8. It was further maintained that documents relied upon had not been in possession of competent authority while framing & issuing afore-mentioned charge memorandum and, therefore, said proceedings were initiated mechanically, without application of mind and the entire action is rendered non-est, misconceived and unsustainable in law. The exercise of power to initiate disciplinary action against an employee cannot be dealt with mechanically or very lightly, as not only career of the employee comes under attack even his reputation is put at stake.
It would have an adverse consequence and effect on the life of the person and his family members too. Moreover, there was abnormal delay in initiating said proceedings as well. Though alleged incident is of May 2003, yet proceedings were initiated in September 2005 and that too after his promotion to next higher grade of Joint Commissioner of Income Tax, in May, 2005. The said proceedings were initiated based on CVC/CBI recommendations, without any independent application of mind.
Learned Counsel further contended that apart from legal malafides, bias and unfairness, in Respondents' action render it unsustainable in law.
Furthermore, such proceedings, if continued, would be mere farcical show. The harassment & humiliation caused to applicant should be stopped & avoided. Strong reliance was placed on 2001 (2) SCC 330, State of Punjab v. V.K. Khanna, particularly paragraphs 32 - 34, which read as under: 32. It is on this score Mr. Subramaniam for respondent No. 1 contended that the factual context as noted hereinbefore prompted the Chief Secretary to submit the note to the Chief Minister and the allegation of not assessing the factual situation in its entirety cannot be said to be correct.
33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.
34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - is it an indication of a free and fair attitude towards the officer concerned? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record.
In the aforesaid case of V.K. Khanna and Ors, the respondents were proceeded by issuing charge sheet, which was challenged before Chandigarh Bench of this Tribunal. The said challenge was not accepted by this Tribunal as reply was yet to be submitted as well as noticing that Enquiry Officer appointed happened to be a retired Judge of the High Court. On a Writ Petition filed, Tribunal's findings were reversed and Court concluded high-handed, arbitrary and mala-fide approach towards the official and, therefore, the matter reached before the Hon'ble Supreme Court. The entire case rested on malice. According to respondents therein, the issue of charge sheet was the 'direct outcome of the reference of the two cases to the CBI' and was 'overtly malafide'. It is in this background that the matter had been examined noticing brief facts relating to issuance of two Notifications to CBI.The Hon'ble Court, after noticing earlier case law on the subject, observed that concept of fairness in administrative action is well settled. As a matter of fact, fairness is synonymous with reasonableness and on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common man's perception in its proper perspective which would prompt the court to determine the situation as to whether the same is otherwise reasonable or not. Similarly, the existence of mala fide intent or biased attitude cannot be put on a strait-jacket formula but depends upon facts and circumstances of each case. Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and mala fide move creep in.
9. Respondents by filing reply resisted applicant's claim stating at the outset that OA was premature. The respondents would contend that there is no real cause of grievance as the proceedings under challenge have not been finalized nor any penalty imposed upon him. After concluding the enquiry, Disciplinary Authority will take a final decision, after forming the views on the enquiry report in consultation with CVC/UPSC etc. He would then be given adequate opportunity to inspect the materials and documents at the time of enquiry proceedings; hence it was premature, at that stage, on his part to request for supply of same. It is for the Disciplinary Authority to decide the culpability or otherwise. It was further denied that charge sheet was issued arbitrarily without considering all relevant materials & without application of mind. Non-supply of material at this stage, cannot become, by any stretch of imagination, a ground for seeking relief from this Tribunal. All facts brought out by the CBI in its report were 'examined carefully and thoroughly and it was only after proper application of mind that disciplinary proceedings against the officer were initiated.' Judgment of K.K. Dhawan v. Union of India was relied upon. Shri V.P. Uppal, learned Counsel, forcefully relied upon 2006 (1) SC SLJ 331 Syndicate Bank and Ors. v. Venkatesh Gururao Kurati to contend that non-supply of documents on which Enquiry Officer did not rely upon, would not cause any prejudice to the delinquent. Even the prejudice, on account of non-supply of documents must be established by the applicant. However, during the course of hearing, on 15.1.2007, learned Counsel very fairly stated that documents listed at serial Nos.
6, 7, 9, 10 and 11, under Annexure A-III appended to charge memorandum were neither in possession of Disciplinary Authority at the time of issuing charge sheet or even on date. Ld. Counsel pleaded that if this Tribunal takes a view otherwise in favour of applicant, the matter may be remitted back to Department with appropriate directions. Learned Counsel further maintained that V.K. Khanna's judgment (supra) was inapplicable in the facts and circumstances of present case, as applicant had never been harassed. Since the documents produced on 15.1.2007 did not include original file on which decision to initiate DE was taken, the matter was listed for being spoken, when the direction was reiterated to produce complete original records. The File No. DGIT(v)/DP/182/05 contained note dated 8.6.2005, which had been the basis for initiation of charge memo against applicant. Vide para-5 of the said note, copy of listed documents (pages 1 to 753/c in two volumes, copies of statement of witnesses at pages 754-853/c in one volume, were placed below the main correspondence file. However, during the course of hearing, complete document as noticed hereinabove were not made available. We may note with concern that the complete file was not produced before us despite directions. We are unable to appreciate the reasons for such an attitude.
10. We heard learned Counsel for the parties at length and perused the pleadings and materials placed on record very carefully.
11. The only question which needs to be adjudicated is whether this Tribunal should interfere at this stage with the action of Respondents in issuing the charge memorandum dated 7/8th September 2005 or not? 12. It is an admitted fact that the documents asked for by applicant vide his representations were those which were listed documents under Annexure-III appended to charge memorandum. In other words, the documents asked for were not the one which could be termed as additional documents sought for by the delinquent official. As per Central Vigilance Commission, Letter No. IQ/DSP/3, dated 19.06.1987, circulated by Home Department, Chandigarh Administration under endorsement No. 1424-H.II (6)-87/15580 dated 25.08.1987, it has been emphasized that: 'copies of all the documents relied upon and the statements of witnesses cited on behalf of the Disciplinary Authority be supplied to the Government servant along with charge-sheet, wherever possible'. The said decision is available and printed under Govt. of India decision No. 25 'Inspection of documents and furnishing copies thereof to delinquent, under Rule 14 of CCS (CCA) Rules - Swamy's Compilation (2005 Edition). The Hon'ble Supreme Court in , Committee of Management, Kisan Degree College v.Shambhu Saran Pandey and Ors. was confronted with a situation where the opportunity to inspect documents had been postponed to the time of final hearing and the delinquent official was dismissed on imposition of major penalty, validity of which had been challenged on various grounds including that there had been denial of opportunity to Respondents therein. He made request for inspection of documents mentioned in the charge sheet at the earliest. Admittedly, neither the documents were supplied nor an opportunity of inspection had been given. The Hon'ble Supreme Court observed as follows: It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural justice.
At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at his request and cost of the delinquent.
13. The procedure adopted therein by the Enquiry Officer that the inspection of documents would be permitted at the time of final hearing was held to be: 'an erroneous procedure followed by the Enquiry Officer'. The Court emphasized that: 'In the first instance he should be given the opportunity for inspection and thereafter conduct the enquiry and then hear the delinquent at the time of conclusion of his enquiry'.
14. It is an admitted fact that listed documents under Annexure-III which recites as: 'list of documents by which article of charge framed against is proposed to be sustained', remained un-supplied, and his request made on said aspect remains unattended. We may note the fact that documents at serial Nos. 6, 7, 9, 10 & 11 admittedly were neither in possession of Disciplinary Authority while taking the decision, as fairly stated by Shri V.P. Uppal, learned Counsel at the time of oral hearing, nor documents listed against said serial Nos. were produced even for our perusal despite repeated opportunities. Said documents are crucial, important and relevant, according to respondents' own understanding and that is why the same were listed to be relied upon to sustain the charge against him. The law on the subject of supply of documents relied upon in support of the charges, has been very aptly summarized in State of U.P. v. Shatrughan Lal and Anr.
4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (See : Chandrama Tewari v. Union of India ; In High Court of Punjab and Haryana v. Amrik Singh 1995 Supp (1) SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges.
It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated.
15. The aforesaid law squarely applies in the facts of present case.
Applying the above principles to instant case, it will be seen that the copies of the documents which were indicated in the charge-sheet to be relied upon as proof in support of the articles of the charges were not supplied to him nor was any offer made to him to inspect those documents. In the above backdrop, we are of the considered view that principles of natural justice were violated and the applicant was not afforded an effective opportunity of hearing.
16. Further guiding principle for deciding the issue raised in present case is the law laid down by the Hon'ble Supreme Court in , Union of India and Ors. v. Upendra Singh, which has been to be following effect: In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law.
17. The aforesaid guiding principle, when placed in practical laboratory, would establish beyond reasonable doubt that allegations of misconduct made against applicant in present case, as reflected vide article of charge, could be split into following: That applicant approached Shri A. Krishnamurthy, a practicing Charted Accountant in Chennai relating to his transfer from Delhi to Mumbai.
As per para 4 of the imputation of misconduct, Annexure-II to Charge Memorandum, which is the only relevant part in our considered view, recites that applicant's name figured in the telephonic conversation - a) between Shri A. Krishnamurthy and Shri R. Perumalsamy on 11.05.2003 at 2030 hours; b) between Sh. Anurag Vardhan and Shri A. Krishnamurthy on 15.5.2003 at 1629 hrs; and c) between Shri Vardhan & Shri Krishnamurthy on 19.5.2003 at 1506 hours.
Said para further states that by that time a transfer list had already been issued on 21.05.2003, which did not include applicant's name and Shri A. Krishnamurthy had told Shri Vardhan that required job in respect of applicant 'would be done later'. It is an admitted fact that prior to said date, i.e. on 24.4.2003 he withdrew his option for transfer and requested the concerned authority to allow him to continue in Delhi. Admittedly documents at Sl. Nos. 6, 7 9, 10 & 11 at Annexure III charge memorandum have not been supplied. If the aforesaid documents are deleted from the list of documents, rest of the documents would not throw any light on the allegations made, as rest of them are inconsequential. With reference to Civil List of IRS, it was pointed out that there are many 'Govind' in the Deptt., namely 1) Govind La, (2) Gobind Ram Singhal (3) Govind Bhai C. Chouhan (4) S. Govind Rao Joshi (5) R. Govind Rajan (6) Har Govind Singh (7) P. Govinda Moorthy (8) L.R. Govinda Rao (9) K. Govindan Kutty (10) Ushan Govindan. It was also pointed out that in all conversations, the reference made is to one 'Govind' & not to 'Govind Manish' i.e. the applicant. It was further pointed out that though Statement of imputation repeatedly alleges that name of 'Govind Manish' figured in the telephonic conversations but no document or record has been either supplied or pointed out to establish that the name which figured in the telephonic conversations was of 'Govind Manish'. In backdrop of the above, Ld.
Counsel contended that issue which arises for consideration is on what basis one could allege with certainty that it was applicant whose name figured in talk in between aforesaid persons, particularly in the absence of said persons cited an witness? These factual & crucial aspects were not disputed & controverted by Respondents. Shri A.K.Behera, learned Counsel, in our opinion, rightly emphasized and contended that basis for the impugned charge memorandum is the alleged conversation between various other persons and not with applicant. None of them are listed as witness. In other words, the entire allegations are based on hear-say. The alleged talk between persons cannot, by any stretch of imagination, be the basis of issuing charge sheet, particularly when neither said persons were listed as witness nor applicant's identity or link with them is free from serious doubts.
18. We may note V.K.Khanna (supra) heavily relied upon 2001 (1) SCC 182 Kumaon Mandal Vikas Nigam Ltd v. Girja Shanker Pant, wherein it was observed that doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. In Baldwin case (1964 AC 40) the doctrine was held to be incapable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. A question arises as to who is a reasonable man. In India, a reasonable man cannot but be a common man similarly placed. In the circumstances, we find justification in the contention raised that when respondents themselves have neither supplied even the relied upon documents and his representation dated 24.4.2003 was available on record seeking retention in Delhi, than why would he either negotiate or agree to pay a whopping amount of Rs. 6 lacs, and that too in the month of May, 2003. We must appreciate the circumstances in which the applicant was placed in the Month of April, 2003 when he & family members met with a serious accident. Would a person of ordinary prudence in such circumstance take care of his family well being or negotiate to pay a bribe for his transfer, particularly when his representation for retention in Delhi had not been rejected? In our considered view the answer to the aforesaid question would be in negative. An ordinary man of prudence similarly placed will not act in a manner for which allegation has been made.
19. It is well settled that the public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness & justice. That, which is not fair and just, is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established.
An action is mala fide if it is contrary to the purpose for which it was authorized to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An action is bad even without proof of motive or dishonesty, if the authority is found to have acted contrary to reason.
20. It is further settled law that State functionaries must act fairly and reasonably. Fairness is a rule to ensure that the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not guided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons.
(see ). Impugned action, when examined in the light of above test, would reveal that said principles have not been followed either in letter or in its spirit. In Tandon Brothers v. State of West Bengal it was observed that: 'Governmental action must be based on utmost good faith, belief and ought to be supported with reason on the basis of the State of law - if the action is otherwise or runs counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of equity, good conscience & justice. Justice of the situation demands action clothed with bonafide reason and necessities of the situation in accordance with the law. But if the same runs counter, law courts would not be in a position to countenance the same.'In Shakila Abdul Gafar Khan (Smt) v. Vasant Raghunath Dhoble and Anr. it was held that: 'The courts exist for doing justice to the persons who are affected....The court is not merely to act as a tape-recorder recording evidence, overlooking the object of trial i.e. to get at the truth, and oblivious to the active role to be played for which there is not only ample scope but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e.
to render justice in a case where the role of the prosecuting agency itself is put in issue Justice has no favourite, except the truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.' In these circumstances, we hold that there is no justification in the respondents contention. Judgements cited by respondents are also inapplicable in peculiar facts of the case at hand.
22. In view of the discussion made hereinabove and taking a cumulative view of the matter, we are of the considered view that factual situation in its entirety cannot be said to be correct and there is element of malice and malafide imputation involved in the matter of charge-sheet and conclusions are well known. There has to be at least some material implicating the official, which is found to be wanting.
Charge Memo cannot be issued merely based on suspicion. This Tribunal in terms of law laid in V.K. Sharma (supra) particularly in paras 33 - 34 is justified in interfering at an earlier stage so as to avoid further harassment and humiliation of public official. Further the fact that concerned authority concerned failed to apply its mind upon receipt of the reply of charge-sheet as to whether further enquiry is called for. In our opinion, allowing respondents to continue with the impugned proceedings would amount to miscarriage of justice, which is impermissible. Thus, OA is allowed. Charge Memorandum dated 7/8th September, 2005 is quashed & set-aside with all consequences. There shall be no order as to costs.