Central Administrative Tribunal - Delhi
Mr. S K Jasra vs Union Of India on 10 September, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3577/2012 Order reserved on 19th August 2013 Order pronounced on 10th September , 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Mr. S K Jasra S/o Mr. C L Jasra Joint Director Directorate of Air Veterans AIR HQ, SMC Building (Ist Floor) Subroto Park New Delhi-10 .. Applicant (By Advocate: Mr. S Rajappa) Versus 1. Union of India through Secretary Ministry of Defence South Block, New Delhi-11 2. Joint Secretary (Training) & CAO Ministry of Defence E Block, Dalhousie Road New Delhi-11 3. Ms. Poonam Goila Deputy Chief Administrative Officer Ministry of Defence O/o the JS (Trg) & CAO E Block, Dalhousie Road New Delhi-1 ..Respondents (By Advocate: Mr. Amit Anand) O R D E R
Mr. A.K. Bhardwaj:
Vide Memorandum No.A/28137/CAO/DD/08 dated 24.3.2009 issued to the applicant (Mr. S.K. Jasra, Joint Director of Air Headquarter), the President proposed to hold an inquiry against him under Rule 14 of CCS (CCA) Rules, 1965 (for short Rules 1965). The statement of imputations of misconduct or misbehavior in respect of which the inquiry was proposed was set out in the statement of articles of charge enclosed with Memorandum as Annexure-I. A list of documents /witnesses by whom the articles of charge were proposed to be sustained was also enclosed as Annexure-III. As mentioned in the statement of imputations of misconduct, while posted in Air Headquarter, the applicant helped Mrs. Nirmala Devi, Peon in her family problems, especially in making out a dowry case for her daughter. While doing so, he misbehaved with her daughter (Mrs. Sona Bala) and daughter-in-law (Mrs. Renu). Once when Mrs. Nirmala Devi and her daughter had gone to applicants house to meet the lawyer, finding Mrs. Sona Bala alone, the applicant caught her hand and offered her Rs.2000/- to work for him full time. In August 2006, while returning from Gole Market, he had with him both Mrs. Nirmala Devi and her daughter, Mrs. Sona Bala in his car. He dropped Mrs. Nirmala Devi at her office but insisted to drop Mrs. Sona Bala at home despite her request to drop her at the bus stand. As she was alone, he pressed her thigh, which was objected to by her. Further, the applicant made indecent phone calls to Mrs. Sona Bala, asking her to come over to meet him on the pretext of meeting the advocate. On another occasion, the applicant called up Mrs. Nirmala Devis residence and told her daughter that her mother was not speaking to him those days but was talking to Mr. P.N. Rai. When Mrs. Sona Bala discussed about the aforementioned incident with her mother, Mrs. Nirmala Devi, she reported the incident to Mrs. Ammini Rajan, Director (PP&R). Additionally, on 30.5.2007 having come to know that Mrs. Nirmala Devi and Mrs. Sona Bala had gone to Court, the applicant made a highly objectionable and indecent phone call to Mrs. Renu, daughter-in-law of Mrs. Nirmala Devi telling that he will come over to her place since she was alone. Furthermore, on meeting Mrs. Renu, the applicant always insisted on shaking hands with her and pressed it hard. The aforementioned conduct of the applicant was considered as unbecoming of a Government servant and violative of Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
2. During the preliminary hearing in the aforementioned charges, the applicant denied the allegations leveled against him and sought adjournment to engage a defence assistant. His request was accepted. On 18.5.2009, he submitted an application for change of inquiry officer alleging bias against him, thus the proceedings were kept in abeyance. Finally, the application of the charged official was rejected vide order No.A/28137/CAO/DD/08 dated 22.7.2009. On 27.7.2009, a decision was taken to proceed in the matter as per the provisions of Rule 14 of the Rules 1965. On 6.8.2009, the PO confirmed that no further document would be brought on record on behalf of the disciplinary authority. The charged official was directed to submit the list of documents he desired to inspect in his defence. He was also asked to submit the list of defence witnesses. On 13.8.2009, the applicant confirmed that he did not desire to inspect any document held in the custody of disciplinary authority. Subsequently, he submitted a letter dated 21.8.2009 indicating that Mr. Rajesh Paul (resident of E-204, Anusandhan Apartment, Sector-6, Dwarka) and Mr. S.K. Punni, SO, would be his defence witnesses. After due procedure, the inquiry officer concluded the inquiry finding the charges against the applicant as proved. The applicant made a detailed representation on 5.2.2010 against the inquiry report. He also made an additional representation on 15.3.2010. Having considered the facts, circumstances and representations of the applicant, the competent authority imposed upon him the penalty of reduction in pay by three stages for a period of two years with further order that the will not earn increment during the currency of the penalty and his future increments will remain postponed. The copy of the penalty order dated 21.9.2010 is placed on record as Annexure R-5 to the counter reply filed by the respondents. The applicant submitted a review petition dated 11.10.2010 through Raksha Rajya Mantri under Rule 29 (A) of the Rules 1965 against the penalty order dated 21.9.2010. The reviewing officer passed the order dated 10.1.2011 (Annexure R-6 to the counter reply) rejecting the petition. The applicant thereafter filed O.A.No.654/2011 before this Tribunal assailing the order of penalty and rejection of the review petition. The respondents filed a detailed reply thereto. Having heard the counsels for the parties and perused the record, this Tribunal allowed the aforesaid O.A. in terms of the order dated 28.2.2012, the operative part of which reads as under:-
21. Having been guided by the trite law on the subject, we quash and set aside the impugned order of penalty dated 21.09.2010 by which the punishment was inflicted on the applicant and remand back the case to the Disciplinary Authority to re-examine the evidence available in the enquiry and the grounds taken by the applicant during the enquiry, keeping in mind, our observations in the foregoing paragraphs that there are contradictory evidences which go in support of the applicants claim, and to pass a fresh speaking and reasoned order within a period of three months from the date of receipt of certified copy of this order.
3. The order passed by this Tribunal was challenged by the respondents before the Honble High Court of Delhi by filing W.P. (C) No.3820/2012 on several grounds pervaded in paragraphs A to W of the writ petition. The aforesaid petition was disposed of in terms of the order dated 25.7.2012, the operative part of which reads as under:-
This writ petition is directed against the order dated 28.02.2012 passed in OA 654/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi.
We find that the Tribunal has merely remanded the matter to the disciplinary authority to re-examine the evidence available in the enquiry and the grounds taken by the respondent during the enquiry. The Tribunal has also directed that the disciplinary authority shall keep in mind the observations made by the Tribunal in the impugned order. The disciplinary authority is also required to pass a fresh speaking order within a period of three months from the date of receipt of the certified copy of the impugned order.
We feel that this course of action does not require any interference from us save and except concerning the direction that the observations made by the Tribunal in the impugned order shall not be looked into by the disciplinary authority. In other words, the disciplinary authority will have a relook at the matter and pass a speaking and reasoned order without being influenced by any observations contained in the impugned order.
We make it clear that the disciplinary authority shall take into account all the material available on the record. We also modify the order by extending the time for passing the speaking order by a further period of two months from today.
The writ petition stands disposed of.
4. As can be seen from the aforementioned order, the disciplinary authority was to pass its order without being influenced by any of the observations contained in the order passed by the Tribunal dated 28.2.2012. In the circumstances, the disciplinary authority passed the order No.A/28137/CAO/DD/08 dated 28.9.2012 inflicting upon the applicant the penalty of reduction in rank from Joint Director (in-situ) to that of Deputy Director. The order was made effective from the date of its issue. In the circumstances, the applicant has filed the present O.A. contending:
While disposing of the earlier O.A.No.654/2011, this Tribunal viewed that the disciplinary authority while passing the penalty order had not taken into account various relevant evidence gathered during the inquiry, more particularly the possibility of the applicant being not involved in the alleged misconduct of sexually inappropriate behavior with two ladies and contradictory evidence emerged in the inquiry, which go in support of applicants claim.
The disciplinary authority did not take into account the defence marked as Exhibit D-6, 7 and 10.
In paragraph 12 of the order dated 28.2.2012, this Tribunal noticed that there was contradictions in the depositions of the witnesses. The statements of witnesses brought in by the prosecution, viz. SW-1, SW-2 and SW-3 reveal contradictory information.
In passing the impugned order, the disciplinary authority disregarded the order passed by this Tribunal.
Without caring to analysis the purport of the order passed by this Tribunal in O.A.No.654/2011, the respondents reiterated the view taken by them in the impugned order dated 21.9.2010.
The penalty imposed upon the applicant in terms of the impugned order is severer than the one imposed earlier.
From the deposition of SW-1, it appears as if the applicant was in his chamber on 30.8.2006 while he was on medical leave from 28.8.2006 to 1.9.2006. The said factor is not taken into account by the disciplinary authority.
Once the applicant was not in his chamber on 30.8.2006, the entire story that on 29.8.2006 he took SW-1, SW-2 and SW-3 in his car to Gole Market also proved false. The applicant never took SW-1 and SW-2 in his car on 29.8.2006 and SW-1 never visited his chamber on 30.8.2006.
The inquiry officer and the disciplinary authority were not justified in not accepting the defence of the applicant that he was on medical leave between 28.8.2006 to 1.9.2006. The disciplinary authority could not have concluded that lumbago disease does not make physical activity totally impossible. Physical activity in case of lumbago stricken person is essentially confined to his routine activities within the four walls of his house. Nobody crippled with lumbago (severe backache) will be able to venture out from his house, leave alone drive a car. As the applicant was armed with irrefutable documentary evidence to prove the falsehood of the alleged misbehavior of 29.8.2006 towards SW-2, they were sufficiently cross-examined by the applicant especially with regard to the specific days of alleged incidents of misbehavior.
5. In sum and substance, the applicant has broadly contended that the deposition made by SW-1, SW-2 and SW-3 during the inquiry proceedings was false; this Tribunal in the aforesaid order has already viewed so and the disciplinary authority while passing the fresh order has disregarded the observations made by the Tribunal in the said order.
6. In the counter reply filed on behalf of the respondents, it is pleaded:-
i) The order dated 28.9.2012 has been issued strictly as per the directions of the Honble High Court vide its order dated 25.7.2012 (supra),
ii) As has been ruled in State of Punjab v. Asanand, 1968 SLR 638, no reliance should be placed on irrelevant material even along with relevant and admissible or evident material. The reason is that where a court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by irrelevant material used by it in arriving at the finding.
iii) The applicant has heavily relied upon the deposition of SW-1 regarding the incidents dated 31.12.2005, 1.8.2006 and 8.12.2006, which do not form part of the charge sheet, thus the statement of witnesses or evidence adduced in this regard cannot be treated as relevant. The Tribunal in paragraph 12 of its order dated 28.2.2012 has mentioned regarding the statements of SW-1, SW-2 and SW-3 in connection with incident dated 1.8.2006, which is not the part of the charge sheet. Therefore, the statement was not considered relevant being extraneous matter, insofar as the proceedings in the charge dated 24.3.2009 against the applicant is concerned.
1v) As has been viewed by the Honble Supreme Court in Union of India v. Sardar Bahadur, (1972) 4 SCC 618 and also in Devender Bhai v. R.V. Seth, 1992 AIR SCW 1454 in the disciplinary proceedings the charge may be established directly on the basis of the material adduced during the proceedings or by drawing reasonable inferences from other facts established by evidence. It is common sense that in a case of sexually inappropriate behaviour, generally, there are no direct/documentary evidences or independent eyewitnesses other than the alleged harasser and the harassed.
v) On the basis of the statement made by Mss. Sona Bala and Renu, the allegation against the applicant was established on the basis of preponderance of probability. The relevance of the medical certificate produced by the applicant was considered in detail. Both the documents, i.e, D-2 and D-2 (i) show that the applicant was on medical leave for five days from 28.8.2006 and assumed his duties on 4.9.2006. However, none of the documents proved the contention of the applicant that he was totally incapacitated and was not able to go to Gole Market with SW-1 and SW-2 in his car. Lumbago is not a disease that makes physical activities totally impossible. The medical certificate produced by the applicant does prove that he was advised rest but it does not certify that he was totally incapacitated. This is also not a conclusive proof that he did not accompany SW-1 and SW-2 to Gole Market on 29.8.2006 and also that he was not available in the office on 30.8.2012, as being a gazetted officer, he was not required to sign any attendance register, which becomes more evident from his own admission that officially he was present in the office on 7.8.2006 but he arranged a meeting between the lawyer and SW-1 and SW-2 at his residence during the lunch hour. The applicant also admitted that once on a Saturday he went to legal aid office in Gole Market with SW-1 and SW-2 in bus.
vi) During the cross-examination of SW-1, SW-2 and SW-3, the applicant did not put even a single question to them on the charge of misbehavior with SW-2 on 29.08.2006 and about his non-presence in office on account of medical leave w.e.f. 28.08.2006 to 1.9.2006, which clearly establishes that he deliberately avoided to raise the issue during the cross-examination. The applicant misbehaved with SW-2 and SW-3 on several occasions. Any evidence relating to the occasion other than those, which are mentioned in the charge sheet, is immaterial to the correctness of the charges alleged against the applicant. The SW-1, SW-2 and SW-3 supported the charges before the inquiry officer even after a lapse of more than three years from the date of ordeal of facing multiple inquiries on the same complaint.
vii) The applicant admitted during the general examination of the inquiry officer under Rule 14 (18) of the Rules 1965 that he helped SW-1, SW-2 and SW-3 in the dowry case, i.e., Mrs. Sona Bala by arranging a meeting between SW-1 and the lawyer (DW-1), who was not acquainted with the applicant, as claimed by him, at his residence. He also went to dowry cell, Nanak Pura and to legal aid office in Gole Market and also made phone calls to SW-1 to her residence in connection with the lawyer, which corroborates the depositions made by SW-1, SW-2 and SW-3. The disciplinary authority arrived at its conclusion after analyzing the material on record.
7. We have heard the learned counsel for the parties and perused the material placed on record.
8. Mrs. Nirmala Devi, SW-1 employed as Peon in Air Headquarters, R.K. Puram, made a complaint dated 31.5.2007 to the Deputy Chief Administrative Officer (Co-ord & Welfare) and another written complaint dated 11.6.2007 to Chairperson, Womens Complaint Committee, Ministry of Defence against the applicant alleging that he helped her when she was faced with domestic problems but subsequently starting taking unreasonable benefit, as he started misbehaving with her daughter and daughter-in-law by making phone calls at her residence. In her complaint, she mentioned that if the problem created by applicant in her family life was not resolved expeditiously, she would commit suicide for which the applicant alone would be responsible. According to her, as alleged in the complaint, the applicant wanted her daughter to work as domestic aid in his house for Rs.2000/- per month. She further mentioned in the complaint that after she apprised the Deputy Chief Administrative Officer regarding the aforementioned incident, the applicant started threatening her and causing mental agony to her. In the complaint dated 31.5.2007, she also alleged that the applicant had been misbehaving with her daughter and daughter-in-law. During the proceedings before the Complaints Committee on prevention of sexual harassment of women at work places, the applicant accepted the fact that he helped Mrs. Nirmala Devi, SW-1 in her daughters dowry case and accompanied to Nanak Pura women cell along with some staff members to get back her daughters dowry items. He also visited complainants house once for some personal work. He denied talking to either of the complainant, SW-2 (Mrs. Sona Bala) or SW-3 (Mrs. Renu) over phone. He also denied offering money (Rs.2000/- per month) to SW-2 to work at his house. He accepted the fact that he accompanied SW-1 and SW-2 to the legal aid cell, Gole Market by bus but denied going there by car. He accepted the visit of Mrs. Nirmala Devi and her daughter to his house at one point of time when he arranged a meeting with lawyer and they were to sign vakalatnama. He also did not deny the visit of Mrs. Nirmalas daughter to his office on her own volition. According to the applicant, on 28.5.2007 when he was discussing farewell party arrangements for a retiring officer with Wg. Cdr. Shukla and Mr. S.K. Punni, she barged into his office and shouted that she is aware of what they are talking about. Her outburst was objectionable/unwarranted and she was told by the applicant to leave the room immediately. According to him, she had been instigated by staff to make the complaint as he was strict and enforced discipline. He was puzzled why she made the complaint against him after he had extended so much help to her and her family. In her statement made before the Committee, Mrs. Sona Bala daughter of Mrs. Nirmala Devi averred that she has known the applicant since December 2005 and he had accompanied her mother and her to the Nanak Pura women cell on 31.12.2005. Sometimes in August 2006, he called her mother and her to his house to discuss the court case with the lawyer that he had volunteered to arrange. He then sought her help to remove washed clothes from the terrace while her mother and the lawyer were discussing the case downstairs. He tried to hold her hand and touch her body. On another occasion when he accompanied them to Gole Market in his car, he tried to touch her again. She shared both incidents with her mother after the Gole Market episode. He had offered her a job in his house for Rs.2000/- per month which she refused. He had also offered to pick and drop her sister-in-law (SW-3) from her place of work. Mrs. Renu (SW-3), daughter-in-law deposed before the Committee that the applicant visited their home 3-4 times to discuss the court case. According to her, he offered to pay for expenses for her hospitalization and also pick and drop her at her place of work. On 30.5.2007 when he knew that her mother-in-law and sister-in-law had gone to the court, he called her to inquire whether he could come home but she refused. He would insist on shaking hands and then press the hand. Her mother-in-law had informed her superior officer but she was not given any help. Mrs. Ammini Rajan, Director confirmed before the Committee that the complainant, Mrs. Nirmala Devi had been reporting to her regarding the behavior of the applicant. Mrs. Shashi Bansal, UDC deposed before the Committee that the applicant was helpful by nature and had also helped her when she had a sprain two years back. At his behest, she had also typed some material for dowry case of Mrs. Nirmala Devis daughter. She had advised Mrs. Nirmala Devi not to be hasty in her daughters matrimonial dispute. Mrs. Poonam Sharma, UDC also made a statement before the Committee that she had helped to prepare a list of dowry case in the Mrs. Nirmala Devis daughters case and was aware of her family problems also. According to her, the applicant was not strict but he could be a problem for those who come late. She had also seen Mrs. Nirmala Devi in applicants room off and on while doing her official duties and at times sitting in applicants room while making phone calls. She had also been introduced to Mrs. Nirmala Devis daughter in the office corridor by her. Mrs. Pratima Mathur, Assistant also confirmed the fact that she had seen Mrs. Nirmala and her daughter in applicants room in May 2007 and was aware of the help extended by applicant in dowry case of complainants daughter. Mr. Taqdir Singh, UDC confirmed before the Committee that he accompanied the applicant to dowry cell at Nanak Pura to attend the dowry case of the daughter of complainant, Mrs. Nirmala Devi and they returned in applicants car. Mss. Nirmala Devi and Sona Bala sat in the front seat and he dropped them at the Shanti Niketan bus stop. He had seen Mrs. Nirmala Devis daughter in the office, as she had come to applicants office 3-4 times. Mr. Kiran Kumar, Assistant also deposed before the Committee that he had accompanied the applicant to help Mrs. Nirmala Devi in getting back her daughters dowry items from the Nanak Pura women cell. Mrs. Charanjit Kaur, PA deposed before the Committee that she had heard Mrs. Nirmala Devi once saying that she would complain against applicant, as he had misbehaved with her daughter and daughter-in-law. For easy reference, the relevant excerpt of the statement made by Mrs. Nirmala Devi, SW-1 before the Committee is extracted hereinbelow:-
9. As has been referred to in the report of the inquiry officer, once the applicant accepted the request of the complainant and arranged her meeting with the lawyer at his residence, it is difficult to take a view that his motives are totally altruistic and without any interest. Once he had interactions with SW-1 and SW-2, the possibility of misbehaving with them cannot be denied. The plea of the applicant regarding his medical leave for five days could be dealt with by the inquiry officer, which reads as under:-
44. While question of availability of independent evidence has already been discussed, the issue of absence / attendance on 30 May 07 would need to be discussed. While it is true that as per attendance register (D-9-iv), SW-1 attended office on that day, it does not establish that she was present in office throughout the day. She may have taken permission to go to the court, as she has claimed in her written statement. If the CO, while being present in his office could, on a working day, arrange a meeting between SW-1 and the lawyer which, as per the evidence of DW-1, continued at least till 0200 pm them, SW-1, while being present in office as per attendance register, could also have gone to the court, with or without the permission of her superior. Since she was present in the office in the morning, before leaving for the court, the CO would have come to know that SW-1 had left the office to go to the court and knowing that, may have made the phone call to SW-3.
45. The SW-1 has in her deposition claimed that it was as a consequence of this call made by the CO to her daughter-in-law that she had to make a written complaint on 31 May 07. This fact is partly corroborated by the document D-4 produced by the CO. It has been stated in this complaint that the CO had been making objectionable calls to her daughter-in-law (and daughter).
10. We have referred to the statement made by the staff members before the Committee and the analysis by the inquiry officer not to re-appreciate the evidence but only to satisfy ourselves whether there was sufficient material on record to substantiate the charges against the applicant or not and whether the inquiry officer applied his mind to such material within the purview of domestic inquiries. We are also conscious that strict rule of evidence is not applicable to the domestic inquiries. The disciplinary authority in its detailed order has sufficiently dealt with various pleas raised by the applicant in his defence and dealt with the contentions raised by the applicant in his representation in detail. For easy reference, relevant excerpt of the order passed by the disciplinary authority is extracted hereinbelow:-
And whereas, the above contentions of the Charged officer are untenable for the following reasons:-
(A) As per Rule 14 (18) of CCS (CCA) Rule The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him. In the instant case, it can be seen from the examination done under Rule 14 (18) that all 28 questions have been asked by the IO in strict compliance with the above rule, with the intention to make available to the CO an additional of defence with regard to the evidences going against him. The examination has been done not after the closure of the case, as alleged by the CO, but at the right stage, i.e. after closure of the case by the Govt. servant and before presentation of the written brief under rule 14 (19). Moreover, no cross-examination has been done by the IO in the guise of Rule 14 (18), as alleged by the CO. The Rule itself provides for questioning on circumstances appearing against the CO in the evidence and in strict compliance with the rule, the questions that have been asked under Rule 14 (18) by the IO are enabling questions, aimed at evincing a defence from the CO, if any. Besides alleging procedural flaw with regarding to rule 14 (18), the CO has not produced any evidence / reason for bias of IO. Therefore, the impartiality of IO cannot be doubted.
(B) Representation dated 28 Jan 2010 of CO is not part of IO report. Therefore, any reference to such representation, when the CO has been specifically asked to submit his reply against the IO report in terms of Rule 15 of CCS (CC&A) Rules, 1965, is out of contest and cannot be commented upon. Further, the findings of the IO are based on evidence adduced from each side and his own analysis thereto. Most of the IOs findings are based on COs own admissions, as evident from para 30-32 of the IO report which establish the basic facts of the case like whether the CO had an interaction with Smt. Nirmala Devi beyond the call of duties, did they have any relationship beyond the official relationship and did the CO have an opportunity to misbehave with SW-2 and SW-3. Later, the same admissions by the CO have been used by the IO for establishing the imputations. Therefore, it is not correct to say that the IO has accepted the deposition of SW-1, 2 & 3 as gospel truth.
(C) As per Rule 14 (23) (ii) of the CCS (CCA) Rules, 1965, after the conclusion of the inquiry, a report shall be prepared and it shall contain:
(i) The articles of charge and the statement of imputations of misconduct or misbehaviour.
(ii) The defence of the government servant in respect of each article of charge.
(iii) An assessment of the evidence in respect of each article of charge.
(iv) The findings on each article of charge and reasons thereof:-
The CO, in his Defence statement against the charge sheet had vehemently denied the single article of charge contained in the charge sheet. Obviously therefore, the IO was supposed to inquire into the charge. Assessment of evidence in respect of the charge is an essential part of the IO report and it is in course of such assessment that the IO has tried to ascertain the culpability of the CO by evaluating the evidence on record. For ascertaining the culpability of the CO, IO has used certain parameters, which in no way contravene the provisions of the statutory Rules. At the same time, since the assessment is followed by scrutiny of available evidence for recording final findings on the Article of charge, it is not known how it can be said to cause prejudice against the CO. As a matter of fact the findings of the IO are supported by fully reasoned arguments based on evidences, as required under the above quoted rule.
(D) The statement of IO that evidences of SW-1, 2 & 3 cannot be given less weightage merely on the grounds that they are bound by family ties is in the context of COs statement in his brief that deposition of SW 1, 2 & 3 alone, who are related by birth/marriage and also the interested persons, to this effect cannot be relied upon for want of independent corroboration. It simply means that credence needs to be given to the deposition of SW-1, 2 & 3 and it does not in any way indicate less weightage being given to the Defence witnesses.
(E,F&G) Para 30 to 31 of the IO report deal with the following issues:
(i) Did CO have any interaction with Smt Nirmala Devi beyond the call of his duties?
(ii) Did he have any relationship with Smt Nirmala Devi beyond the office relationship?
(iii) Did he have an opportunity to misbehave with SW-2 & SW 3?
As regards (i) above, the IO has relied on the admission of the charged officer regarding organising a meeting at his residence between Smt Nirmala Devi and Lawyer with whom the CO had no prior acquaintance, making telephone calls to SW-1 at her residence in connection with the lawyer for the dowry case of her daughter, going to dowry cell, Nanakpura on the request of SW-1 to settle the issue of collection of dowry items and his accompanying SW-1 on a Saturday to legal aid office, Gole market. Further, IO has relied on the COs admission regarding meeting Ms Sona Bala in his office at least on two occasions and his non-denial of claim of SW-1, SW-2 & SW-3 that the CO had been coming to their residence. On the basis of above evidences, the IO has concluded that the CO had interaction with Smt Nirmal Devi beyond the call of his duty. It is relevant to consider that for establishing the charge of sexually inappropriate behaviour with the daughter and daughter-in-law Smt Nirmala Devi, it is absolutely essential to consider whether the charged officer had any interaction which Smt Nirmala Devi beyond the call of official duties. Otherwise, there would have been no question of the charged officer interacting with the daughter and daughter-in-law of Smt Nirmala Devi or his sexually inappropriate behaviour with them. Therefore, the COs contention that the above evidence in no way reveals any nexus between the charge and the prosecution evidence is not at all tenable.
Next, the IO deals with the question whether the CO had any relationship with Smt Nirmala Devi beyond the official relationship. An official relationship, even if it extends beyond the office hours, is generally confined to discharge of official work. Helping out in a subordinates daughters matrimonial dispute, arranging for meeting with a lawyer with whom the CO had no prior acquaintance at his own residence on the flimsy ground of his residence being centrally located, accompanying a female official colleague and her family members to the Legal Aid Office on a Saturday or visiting the dowry cell on the request of such of an official colleague who is drastically junior in rank can definitely not be termed as an official relationship. The CO has contented that besides him, other staff members also helped SW-1, as admitted by her and SW-2 during the cross-examination. It is true that SW-1 & SW-2 have admitted that the other staff members were also helping them. As a matter of fact, SW-1 has stated in her re-examination that a lady colleague was helping her out, after being asked to do so by Shri Jasra. However, it is not understood as to how this argument of the CO can disprove the fact that he had a relationship with Smt Nirmala Devi beyond the official relationship.
The IO has dealt with the question whether the CO have an opportunity to misbehave with SW-2 & SW-3. The very fact that the CO had a relationship with Smt Nirmala Devi beyond an official relationship and the very fact that by the COs own admission, arranging of lawyer at his residence, making phone calls to SW-1 in connection with lawyer for her daughters dowry case, going to Dowry Cell, Nanakpura on the phone call of Smt Nirmala Devi, accompanying them to Legal Aid Office at Gole Market, meeting SW-2 in his office and his non-denial of SW-1, 2 & 3s claim that the CO used to visit their residence are ample testimonies to the fact that the CO did have the opportunity to misbehave with SW-2 & SW-3.
Regarding COs contention, wherein he has raised objection on the IOs conclusion that the COs motive in helping out SW-1 and her family could not have been totally altruistic, it is submitted that the contention of the CO that he helped the family on humanitarian grounds does not carry much conviction for he could have very well offered such help from his office. It has been held in the case of PV Narayanan Vs State of Andhra Pradesh (1997) that if the motive is proved, the case of prosecution becomes easier to connect the accused with the alleged incident. In the instant case, going by the COs own admission, only his parents and children stay with him in his house. This indicates that he is not residing/living with his spouse under the same roof. This is supported by details contained in the current CGHS card of the CO, which does not contain his wifes name. In view of this, there seems to be a probability for his licentious advancements towards people of the opposite sex. By helping out SW-1 with the dowry case of daughter, whose marriage had gone awry, the CO may have spotted a captive source for the satiation of his sexual desires. Considering the subordinate status of the complainant and also considering the fact hat he was helping out with her daughters dowry case, the CO may have presumed that his advancements towards her female relatives may not be resisted.
In the case of Devender Bhai vs RV Seth, 1992 AIR SCW-1454, it was held that in judicial as well as quasi judicial proceedings there is requirement of proof. Further, it may be established directly on the basis of the evidence adduced during the proceedings or by drawing reasonable inferences from other facts established by evidence. The process must not be vitiated by surmises or conjectures. In the instant case the IO has based his conclusion on the oral testimony of the various witnesses who were also duly cross-examined and has drawn reasonable inferences from the other facts established by the evidence; which is perfectly in sync with the above quoted judgement. Therefore, the contention that the IO based himself on surmises and conjecture is totally baseless.
(H) The CO has relied on the deposition of Shri Rajesh Paul, DW-1 to prove that he never had an opportunity to misbehave with Smt Sona Bala on the day of meeting at the COs residence. As per Shri Rajesh Pauls deposition, on the day of meeting he had arrived at Shri Jasras residence at 1:00 pm and Ms Sona Bala arrived at around residence at around 1.10 pm and Ms Sona Bala arrived at around 1.30 pm. Further, Shri Rajesh Paul has deposed that the meeting continued up to 2.00 pm and during the course of the meeting Ms Sona Bala was at no point of time alone with Shri Jasra, giving him an opportunity to misbehave with her. It is difficult to believe that Shri Rajesh Paul has such a picturesque memory so as to recollect the exact time of arrival of everyone and also to recollect that during the course of the entire meeting, Shri Jasra did not have an opportunity to be alone with Ms Sona Bala, especially considering the fact that the incident dates back to more than three years before his deposition. However, when asked about the date of the meeting Shri Rajesh Paul could not recollect the exact date; which was much simpler a detail to remember as compared to the timings and other minute details of the meeting. Clearly therefore, Shri Rajesh Pauls deposition lacks credence. Further, as rightly argued by the IO, Shri Rajesh Paul can not be treated as a disinterested witness considering the fact that he could be holding a grudge against Smt Nirmala Devi because of non-payment of his fee by her. Also, the statement of SW-5 during the inquiry that she came to know from the CO that he advised SW-1 to take legal help if required from the son of ex-colleague, Sh Paul shows that the contention of the CO that he had no prior acquaintance with DW-1, is false.
As regards the COs contention that SW-1 & 2 are interested witnesses, it is submitted that in the case of Rizan Vs. the State of Chhattisgarh, AIR 2003 SC 976, it was held that relationship is not a factor to affect the credibility of a witness. Therefore, the contention of the charged officer that SW-1 & SW-2 are interested witnesses, colluding with each other in furtherance of common aim to falsely implicate the CO is totally unfounded.
Though the CO claims to have irrefutable documentary evidence to expose the lies of SW-1 and SW-2, it is intriguing that during the cross examination, the CO willfully avoided referring to specific questions relating to the imputations, perhaps because of the fear of being exposed. Further, a case of sexual harassment / sexually inappropriate behaviour generally does not have an eye witness, other than the harasser and the harassed. In such a situation, any conclusion that is arrived at has to be based on logical inference and circumstantial evidences. In view of this, the IOs inferences from the depositions / documents on record that it was probable that SW-2 informed her mother about the incident of misbehaviour in the evening and that is why she was allowed to travel with the CO in his car cannot be dismissed as a mere conjecture. Further, the IO has rightly concluded that SW-1 may not have taken a serious view of SW-2s complaint and might have allowed her daughter to travel with the CO in his car. Perhaps, SW 1s trust and respect for his senior officer who was helping her fight her daughters dowry case, dedicating his time and energy even beyond office premises and office hours weighed in favour of not paying much heed to her daughters complaint.
(J) As mentioned earlier, there is a possibility that SW-1 did not pay much heed to her daughters complaint and her immense faith in the CO, made her to allow her daughter to travel with the CO in his car. The COs claim that he was on five days medical leave from 28 Aug to 01 Sept 06 as he was suffering from lumbago and therefore, there was no chance for the alleged incident of 29 Aug 06 taking place is also totally without merit. As per the documents produced by the CO, the CO first visited AIIMS on 26 Aug 06 after he fell down in the bathroom and no rest was prescribed to him at that time. Later, when he visited the Safdarjang Hospital on 28 Aug 06, rest (not complete bed rest) was advised to him. This implies that the CO was not totally incapacitated atleast upto 28 Aug06, as he visited the hospital on that date. It seems unlikely therefore, that on 29 Aug 2006, ie, the day of the incident the CO became totally confined to bed; though there is no evidence supporting such a sudden deterioration in his health. Further, as the IO has rightly argued, lumbago is not a disease that makes physically activity totally impossible. Therefore, there is every possibility that the CO might have gone to Gole market despite being on medical leave.
(K) There is no conclusive proof that the CO was using the same car on the date of the alleged incident. Mere quoting of the colour of his car as while instead of pearl silver by persons like SW-1 and SW-2, with limited educational background is not a conclusive proof that SW-2 did not travel by his car.
(L) As already mentioned earlier, in a case of alleged sexually inappropriate behaviour, generally there are no independent eye witnesses and no documentary evidences. Therefore, it has to be logically inferred from the evidences on record based on preponderance of probability whether the charge can be taken as proved or otherwise. Accordingly in the instant case, the IO has relied on the deposition of the prosecution and defence witnesses and rational examination of the same to arrive at his conclusion.
The Supreme Court has held that in a disciplinary case the standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt, [Union of India v. Sardar Bahadur, (1972) 4 SCC 618; (1972) 1 LLJ 1]. Therefore, it is perfectly in order for the IO to consider the charge as proved on preponderance of probability basis. Further, SW-5s deposition in Examination-in-chief is not considered fully reliable in view the factors discussed in comments to sub para (P) below.
(M) CO by his own admission made a couple of phone calls to SW-1s residence in connection with SW-2s dowry case. It seems improbable that an officer of the stature of the CO would directly call at the residence of her female group D employee only with altruistic motive, especially considering the fact that he had adequate opportunity to discuss the matter with SW-1 in office. Further, the allegation of indecent phone calls is adequately substantiated by the deposition of SW-1 & 3, who, as discussed earlier can not be regarded as interested witnesses. Therefore, there is no convincing reasons to believe that the CO did not make such phone calls. As regards the CO making a phone call to SW-2 at the residence of SW-1 and stating that SW-1 had not been talking to him but had instead been talking to SW-4 (Shri PNRai), though, as per the statement of SW-5 (in response to Q15 of cross-examination), there is contradiction between the statement made by SW-1 to her and to SW-4, at least this part of the imputation can be considered as proved that he CO had been making phone calls to SW-1s residence and speaking to SW-2 regarding her mother not talking to him.
(N) The contention of the CO that the IO has surpassed all limits of conjecture by assuming that since SW-1 was present in office before leaving for the court, the CO may have made a phone call to SW-3; is not at all convincing considering the fact that in coming to this conclusion, the IO has relied upon the deposition of SW-1, duly cross examined by the defence assistant of CO and on other circumstantial evidences. The very fact that the CO was helping out SW-1 & SW-2 with the dowry case by arranging for the lawyer, visiting the Legal Aid Office etc is adequate circumstantial evidence to indicate that CO was aware of the whereabouts of SW-1 with regard to her going to the court. Secondly, SW-1s statements that HUM SUB APNI BETI KI COURT KI TAARIKH KE LIYE COURT GAYE HUYAE THI. MAI BHI DAFTAR SE CHHUTTI LE KAR GAYE THI, is not conclusive evidence that all family members had gone to the Court. The statement that MAI BHI DAFTAR SE CHUTTI LE KAR GAI THI seems to imply that SW 1 had come to office on that day and had then taken leave from office for going to the court. Otherwise, in common parlance SW-1 would have stated MAY BHI US DIN CHHUTTI PAR THI. This clearly indicates towards the CO being aware of the whereabouts of SW-1 and also explains how SW-1 was present in office on that date as per the attendance register.
(O) The contention of the CO is totally baseless considering the fact that the basis for even the present inquiry/ proceedings is a one page complaint dated 31.05.07 submitted by SW-1, later supplemented with a similar complaint dated 11 Jun 07. The so-called twenty seven page complaint submitted by the SW-1 is actually a 23 page deposition/written statement given before the IO.
(P) The deposition of SW-5 in examination-in-chief can not be relied upon because of the following reasons:
(i) The complainant (SW-1) had first complained to SW-5 who was the then Director, PP&R, Air HQ. However, she failed to take any action on the complaint as evident from her own statement in reply to Q 25 of Examination-in-Chief. Therefore, her depositions that it was a false complaint, can only be seen as an endeavour to cover up her own inaction in the matter. The recommendations of the Complaints Commite on sexual harassment, which had earlier inquired into the matter, is relevant in this connection, which is on record and is as follows:-
It is clear that Shri Jasra had violated the conduct rules in so far as he failed to maintain good conduct as a Govt. employee. His action to take advantage in seeking sexual gratification from kins of a low paid subordinate, need to be taken cognizance of. This fact has separately been held/established during an internal enquiry conducted by Air HQ/Dte of PP & R and duly corroborated by Smt A Rajan, Director (SW-5), in her evidence tendered before the committee. It is a fit case to initiate suitable disciplinary proceedings against Shri Jasra for his misdeeds. The Committee accordingly recommends initiation of Disciplinary Proceedings against Shri SK Jasra for imposition of a suitable penalty as provided in CCS (CC &A) Rules, 1965. (ii) She has stated that the allegations made by Mrs. Nirmala appear to be false because these were made after she got annoyed with the officers of the Dte when they refused to take up her case for retention, but she failed to give a convincing reason as to why Smt Nirmala Devi made a complaint against Sh. Jasra only and that of such a serious nature when she was annoyed with Smt A Rajan, Director and other officers also for her non-retention, particularly in view of the fact that Sh. Jasra was the person who was helping her in her hours of needs in her daughters case.
(Q) The contention that SW-4 was intentionally tutored by the PO goes totally unsubstantiated as the CO has not produced any evidence in support of his contention. Moreover, SW-4s deposition is not in a capacity of eyewitness but rather as a direct recipient of Smt. Nirmala Devis sharing of first hand experience with him. As there are no direct evidence or eyewitness of the various incidents of alleged sexual harassment of SW-2 & SW-3 by the CO. Therefore, only circumstantial evidences have to be relied upon. In this context, Smt. Nirmala Devis sharing of her personal experience with SW-4 is definitely a strong circumstantial evidence supporting the imputation. Smt. Nirmala Devis statement that she did not share any of her household matters with anyone in office is also not contradictory to her sharing of her experience with SW-4 as this particular experience involved incidents of misbehaviour by a senior officer from the same office; thus transgressing the domain of a household matter. (R) The contention of the CO lacks any merit because as per SW-3s reply to cross examination (Question no.8), everybody in the house had shaken hands with Shri Jasra. In all probabilities, in the first instance SW-3 as well as other family members must have taken it as a gesture indicative of cultural lag between the two parties. Whatever doubts they may had had in their minds may have been overshadowed by a sense of respect and gratitude towards a senior officer who had been extending help to them. SW-3 may have come to know of the wrong intentions of the CO in unambiguous terms only when the CO pressed her hand, which could have been experienced by her alone. Obviously, she must have got an opportunity to share this with her family only after the CO left the house. This explains why the family members did not react immediately to the COs inappropriate behaviour with a lady in their house.
(S) The contention of the CO that his reporting of the incident of 28 May 07 to SW -5 was the reason for SW-Is complaint dated 31.05.07 goes totally unsubstantiated. Further, his contention is contradictory to his own statement before the IO during the general examination under Rule 14(18) that the motive behind such false complaint is best known to SW-I. He personally feels that after having failed to get the intended outcome of the dowry cases through lawyer who also left their case, SW-1,2 & 3 joined in a conspiracy of collusion to falsely implicate him thinking that he is a soft target and can be easily coerced to extract money they desperately needed to overcome their financial crisis. From the deposition of SW-5, SW-1 as well as the CO, it is quite apparent that SW-5 was fully conversant with the informal relationship between SW-I and the CO. Therefore, it seems unlikely that the reporting of incident of 28.05.07, (which, as per the deposition of the CO was an incident of SW 1 barging in the room of CO and shouting at him before other officers) by the CO to SW-5 angered SW-1 to such an extent that she made a false and concocted complaint against the CO. Further, the conviction with which SW-1, along with SW-2 and SW-3 defended the complaint before the Complaints Committee on sexual harassment as well as before the IO is a further testimony to the fact that such a complaint could not have been out of sheer retaliation. Moreover, the COs contention that the IO has been biased against him is also totally baseless as he has not adduced any evidence to support his contention. It is relevant to mention that the bias petition submitted by the CO at the outset of the inquiry was disposed off by the disciplinary authority vide a speaking order. As a matter of fact, it is absolutely essential to consider as to what could have been the motive of the complainant behind making a complaint against a senior colleague who had helped her out with her daughters dowry case. Further, what could have been the motive behind pursuing the complaint with full conviction and dedication even after lapse of almost three years from the date of the complaint and even after undergoing the ordeal of facing multiple inquiries on the same complaint? What is also intriguing is the fact that at the moment the CO and the complainant are not posted in the same office and still the complainant is pursuing the case in such a meticulous manner so as to have submitted a twenty three page statement before the IO describing each and every incident of misdemeanour by the CO. Perhaps the complainant kept on taking the CO as a decent person till the time his repeated misconducts totally shattered her trust in him and this was the point at which she made the complaint.
Moreover, the IOs role is to record his findings on each imputation of charge for which he is required to analyse the evidences on record. In the instant case there is no direct independent evidence/ eyewitness and the IO had to largely rely on the circumstantial evidences, for which it is essential to analyse the motive behind the complaint. Therefore, the COs contention that the IO has overstepped his jurisdiction by analysing the motive behind the complaint is totally unfounded.
(T) By unimpeachable evidence IO has simply meant direct documentary evidence or eyewitnesses other than the alleged harasser and the harassed. The cases of sexual harassment / sexually inappropriate behaviour generally do not have documentary evidences or independent eyewitnesses as only the harasser and the harassed are privy to it. It does not mean, however, that the harasser should be allowed to go scot-free even if all circumstantial evidences point towards his/her culpability.
(U) In a disciplinary proceeding, the standard of proof required is that of preponderance of a probability and not proof beyond reasonable doubt. In this case the IO has relied upon the deposition of all the prosecution and defence witnesses alongwith the statement of the CO during the general examination under R. 14(18) and the defence documents to hold the charge as proved on preponderance of the probability basis. Basic facts like interaction between SW-1 and the CO beyond the call of duties, their relationship beyond the official relationship and the CO having an opportunity to misbehave with SW-2 and SW-3 have first been established by the IO. Thereafter, he has established the imputation as proved on the basis of evidences on record. Therefore, the COs argument that how can the charge be said to be established on preponderance of probability basis when the basic facts have not been proved, lacks any rationale.
(V) The alleged incident of misbehaviour stated to be taken place in front of office of DCP (South) on 08-12-2006 does not form part of the charge/imputation.
(W) As regards W(a), each and every contention of the CO has been based on the records available. With reference to W(b), the CO has not been able to establish any procedural irregularity on the part of IO. Further, the present case does not pertain to his 37 years of service of sincerity and dedication to duty of the CO but for other reasons as mentioned in the charge-sheet issued to him on 24 Mar 2009.
And whereas the Disciplinary Authority after having re-examined all the material on record in the case of Sh SK Jasra, Jt. Director, has come to the conclusion that this does not bring out any new fact/evidence warranting any change in the decision of the Disciplinary Authority taken earlier. Hence, the charge of behaving in a sexually inappropriate manner with the daughter and daughter-in-law of his subordinate, Smt Nirmala Devi, Peon on several occasions, continues to stand proved.
11. The order of the disciplinary authority is well reasoned and self-explanatory. Even the applicant also never denied the fact of his having interaction with SW-1, SW-2 and SW-3 and extending help to them by calling them to his house, visiting their house and accompanying them to women cell, Nanak Pura. The charge against the applicant is not related to specific incident of particular dates. Besides the inquiry officer specifically dealt with his plea of being on medical leave and viewed that even after having availed medical leave, the applicant could remain present in office and being on medical leave, he could very much take the complainant and her daughter in the car. It is not the case of the applicant that he had no interaction with complainant (SW-1), her daughter (SW-2) and daughter-in-law (SW-3). Though in the order passed by this Tribunal certain view could be taken regarding the contradiction of the witnesses, but by an order dated 25.7.2012, the Honble High Court of Delhi made it clear that the disciplinary authority shall take into account all the material available on record and pass a fresh order without being influenced by the observations made by this Tribunal. The Honble High Court of Delhi directed that while passing the fresh order, the observations made by the Tribunal in the impugned order shall not be looked into by the disciplinary authority. Thus, we do not find any force in either of the pleas raised by the applicant, i.e., there was contradiction in the deposition of SW-1, SW-2 and SW-3 or disregard to the order of the Tribunal by the disciplinary authority vitiates the same. In disregarding the observations made by the Tribunal, the disciplinary authority acted as per the order of Honble High Court. Besides from the material available on record, we are satisfied that there was frequent interactions between the applicant, SW-1, SW-2 and SW-3. We also agree with the respondents that in cases of sexual harassment, the possibility of independent witnesses is not there. We also do not find any infirmity in the stand taken by the respondents that the medical leave of the applicant would not falsify the allegation made against him. In fact, the complainant did not make any allegation against the applicant with reference to any particular date. It is the applicant only, who has identified the dates of incident and explained his position on the concerned relevant dates. Such adding of the dates and explanation would strengthen the allegations. Once the Honble High Court of Delhi viewed that the order passed by this Tribunal (supra) need to be disregarded, the said order is no longer of any consequence. Nevertheless, we find force in the contention of the learned counsel for applicant that when earlier on the same facts the lesser penalty was imposed upon the applicant, there could be no justification for subjecting him severe penalty. The only exception put forth by the learned counsel for respondents that since the applicant was nearing the date of retirement, any other penalty imposed upon him could not be implemented. He also explained that the implication of the penalty imposed in terms of the impugned order would not be heavier than those of the penalty order dated 21.9.2010. We do not agree with such stand taken by the respondents for the simple reason that the order of reduction of pay by three stages before retirement was very much implementable. As a ramification of said order, the applicant could have received reduced pension for all times to come. It is not so that the applicant had retired on 28.9.2012, the order passed on said date was going to be effective immediately and the next salary payable to the applicant could be fixed at the reduced stage. Thereafter, receiving such reduced salary for rest of his service, the applicant could receive reduced pension only. It is for these reasons only that when minor penalty of withholding of increment, etc. is leviable upon an employee before his retirement, the same is not permissible in the absence of detailed inquiry under Rule 14 of the Rules 1965, as no such penalty, which adversely affects the terminal benefits of the employee can be imposed upon him without inquiry. For easy reference, Rule 16 (1) (a) of the Rules 1965 reads as under:-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal.
12. Withholding of increment affects adversely the amount payable to a government servant only when the period during which three increments are not allowed is just before the age of retirement.
13. The Honble Supreme Court in High Court of Judicature at Bombay through its Registrar v. Uday Singh s/o Ganpatrao Naik Nimbalkar & others, JT 1997 (5) SC 298 has held The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the findings and mould the relief so as to make it appropriate to the facts of each case. The relevant excerpt of the said judgment reads as under:-
12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the Disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see what there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is; whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved ? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statement to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises; whether their evidence is acceptable or not? In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When the evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.
13. Under these circumstances, the question arises: whether the view taken by the High court could be supported by the evidence on record or whether it is based on no evidence at all ? From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is; what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference.
14. The appeal is accordingly allowed. The judgment of the Division Bench of the High Court stands set aside and that of the High Court dismissing the respondent from service stands upheld. No costs.
14. Also in B.C. Chaturvedi v. Union of India & others, (1995) 6 SCC 749, it has been held that the disciplinary authority is the best judge regarding imposition of penalty and it is not for the Court/Tribunal to interfere in the matter. Relevant excerpt of the said judgment reads as under:-
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
14. In Union of India v. S. L. Abbas (1993) 4 SCC 357 : (1993 AIR SCW 1753), when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with order of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551 : (1992 AIR SCW 2830), it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant, recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court to which two of us (B. P. Jeevan Reddy & B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
15. It, is, therefore, difficult to go into the question whether the appellant was in possession of property disproportionate to the known source of his income. The finding of the disciplinary authority and that of Inquiry Officer are based on evidence collected during the inquiry. They reached the findings that the appellant was in possession of Rs. 30,000/- in excess of his satisfactorily accounted for assets from his known source of income. The alleged gifts to his wife as stridhana and to his children on their birthday were disbelieved. It is within the exclusive domain of the disciplinary authority to reach that conclusion. There is evidence in that behalf.
16. It is true a three-Judge Bench of this Court in Krishanand's case (supra) (AIR 1977 SC 796), held in para 33, that if the excess was comparatively small (it was less than 10% of the total income in that case), it would be right to hold that the assets found in the possession of the accused were not disproportionate to his known source of income raising the presumption under sub-section (3) of Section 5. It is to be rembered that the said principle was evolved by this Court to give benefit of doubt, due to inflationary trend in the appreciation of the value of the assets. The benefit thereof appears to be the maximum. The reason being that if the percentage begins to rise in each case, it gets extended till it reaches the level of incredulity to give the benefit of doubt. It would, therefore, be inappropriate, indeed undesirable, to extend the principle of deduction beyond 10% in calculating disproportionate assets of a delinquent officer. The salary of his wife was not included in the assets of the appellant. The alleged stridhana of his wife and fixed deposits or gifts of his daughter, in appreciation of evidence, were held to be the property of the appellant. It is in the domain of appreciation of evidence. The Court/Tribunal has no power to appreciate the evidence and reach its own contra conclusions.
15. In view of the aforementioned, while declining to grant reliefs prayed for by the applicant in the Original Application, we direct respondents to take a view regarding penalty imposed upon the applicant. It is made clear that such view to be taken by them would not be considered as a fresh penalty order. Either of the penalty to be decided by the disciplinary authority and imposed upon the applicant would be effective from the date of speaking order dated 28.9.2012.
16. Subject to aforementioned, the O.A. is disposed of. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/