Central Administrative Tribunal - Delhi
S. R. Tewari S/O Chandrika Tewari vs Union Of India Through on 11 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3234 of 2010 This the 11th day of February, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) S. R. Tewari S/o Chandrika Tewari, R/o 61, Prashasan Nagar, Jubilee Hill, Rd. No.72, Hyderabad-500096. Applicant ( By Shri Paras Kuhad with Shri Ravi Prakash, Shri Raunak Jain, Shri Rahul Singh and Ms. Avni Singh, Advocates ) Versus 1. Union of India through Secretary to Government of India, Ministry of Home Affairs, North Block, New Delhi. 2. State of Andhra Pradesh through Resident Commissioner, Andhra Bhawan, Ashoka Road, New Delhi. Respondents ( By Shri A. K. Bhardwaj for Respondent No.1 and Shri G. N. Reddy for Respondent No.2, Advocates ) O R D E R Justice V. K. Bali, Chairman:
The applicant is a 1982 batch officer of the Indian Police Service. Sequel to a departmental enquiry under rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 (hereinafter to be referred as the Rules of 1969), the applicant vide Presidential order dated 8th September, 2010 has been dismissed from service from the post that he then held as Inspector General of Police.
2. The applicant claims to have a meritorious service record, being one of the few officers in the entire country to be holding Gallantry Medal for bravery awarded by the President of India for naxalites operations in the State of Andhra Pradesh, and Indian Police Medal for meritorious service. The applicant, because of his involvement in anti-naxalite operations, is also a Y class protectee, to whom a bullet-proof vehicle and two PSOs have been provided round-the-clock. In the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, the applicant takes serious exception to the impugned order, citing number of patent illegalities in the conduct of the enquiry. In his endeavour to show that the impugned order would not stand the scrutiny of law, it is also the case of the applicant that findings on the allegations returned against him cannot sustain as either there was no evidence at all available before the authorities to return a finding of guilt, or that such evidence which was wholly inadmissible was taken into consideration with a pre-determined mind to hold the applicant guilty. With a view to find out whether the grievance of the applicant is genuine or otherwise, it shall be necessary to find out the bare minimum facts of the case, the charges that the applicant faced, the findings on different articles of charge as returned by the enquiry officer, the disciplinary authority, CVC and UPSC. The illegalities in the conduct of the proceedings at various levels, as alleged, shall need a close examination. Inasmuch as, the case of the applicant is also that findings on some of the charges have been returned against the applicant for which there is no evidence or the evidence that has been taken into consideration could not possibly be taken into consideration, the facts as regards the said charges and evidence that the department led in that regard shall also have to be looked into.
3. The applicant, a 1982 batch officer of the Indian Police Service, after completion of training at the Lal Bahadur Shastri National Academy of Administration, Mussoorie, was allocated to the Andhra Pradesh cadre of the Service, where he joined in April, 1984. It is the case of the applicant that he has been working with utmost sincerity and devotion and has received commendations and accolades for his role as an IPS officer, and that his contribution to the Service was acknowledged by his superiors, and accordingly he was promoted through the ranks of Superintendent of Police in 1988, Deputy Inspector General in 1996, and Inspector General of Police in May, 2001. He was awarded Indian Police Medal for Meritorious Service in 1999, Police Medal for Gallantry in 2003 and Antrik Suraksha Medal in 2004 by the Government of India. He came on Central Deputation to Border Security Force (BSF), where he was posted as IG North Bengal Frontier. The applicant is stated to have taken extensive tour of the border and visited all the 179 border outposts stretched over 1070 kms. He is said to have taken number of steps to improve the working of BSF, which have been enumerated in para 4(iii) of the OA.
4. On 13.11.2006, the applicant was placed under suspension by the disciplinary authority in contemplation of departmental enquiry. The applicant prayed for revocation of his suspension vide his representation dated 30.11.2006. He was, however, issued a charge memo on 23.3.2007. He submitted a detailed defence statement on 23.4.2007 and an additional defence statement on 16.7.2007. On 4.10.2007, the order of suspension dated 13.11.2006 was revoked by the disciplinary authority and the applicant was permitted to resume his duties. During the course of enquiry that was conducted against the applicant, the department produced 24 documents on records and examined 33 prosecution witnesses. The defence cited 18 documents and 9 witnesses were examined. On 10.10.2008, the presenting officer submitted his brief. The applicant submitted his defence brief and the enquiry officer on 23.12.2008 submitted his report holding five out of eight charges as disproved. The same were charges I, II, V, VII and VIII. Three out of eight charges, i.e., charges III, IV and VI, were held to be partially proved. Even as regards the charges which were partially proved, the finding of the enquiry officer was that there was no mala fides involved and the applicant had worked in the larger interest of BSF. It is the case of the applicant that even charges III, IV and VI could not be held as partially proved. So that this judgment is not unnecessarily burdened, we may not mention in details as regards the findings of various authorities on the eight articles of charge framed against the applicant. Instead, we may reproduce the articles of charge on which the applicant faced the departmental enquiry, and a chart which would show as to which charges were proved or not proved/partially proved by each of the authorities. The same read as follows:
Article-I That the said Shri S.R. Tiwari, while functioning as Inspector General, Ftr. Hqrs North Bengal, during the period from 23.06.2005 to 14.11.2006, indulged in living with a lady by name Smt. Chandrakala, not being his legally wedded wife.
Article-II That during the aforesaid period and while functioning in the aforesaid office, the said Shri S.R. Tiwari, deliberately allowed unauthorized interference by Smt. Chandrakala living with him in official functioning of North Bengal Ftr., causing premature release of four Constables from the Quarter Guard.
Article-III That during the aforesaid period and while functioning in the aforesaid office, discharged the discipline propriety and guidelines on the subject in complete disregard to the rules and without jurisdiction, reviewed punishment awarded and mitigated the sentence awarded to No. 86161306 Const. Prakash Singh by Ftr. Hq. BSF South Bengal.
Article-IV That during the aforesaid period and while functioning in the aforesaid office, showed favoritism and manipulated the selection of Headmaster in BSF Primary School Kadmatala even though the candidate did not possess essential qualification and was not eligible.
Article-V That during the aforesaid period and while functioning in the aforesaid office, helped one person of his native Distt. Balia, UP in enrolment in BSF by fraudulent means and also amended the Board proceedings by commenting upon medical fitness which he was not qualified to do.
Article-VI That during the aforesaid period and while functioning in the aforesaid office, Shri S.R. Tiwari had allegedly misused government vehicle, Arms and ammunition and BSF personnel at the time of marriage of his son that was solemnized on 15 February, 2006, at his native place in Balia, UP.
Article-VII That during the aforesaid period and while functioning in the aforesaid capacity, kept two Constables of 47 BN BSF and two Constables of 122 BN BSF at Hyderabad. BSF has no unit in Hyderabad. Apparently the Constables were used for private work of Shri Tiwari.
Article-VIII That during the aforesaid period and while functioning in the aforesaid office, discharged the discipline propriety and guidelines on the subject and indulged in favoritism/nepotism by way of attaching Const. Prakash Singh with Ftr. Hq. N/Bengal despite contrary remarks of the PSO, N/Bengal Ftr. On the subject which were based on the Constables past record. By his aforesaid acts, the applicant is said to have violated the provisions of the All India Services (Conduct) Rules, 1968, which would be unbecoming of a Government servant and make him liable to be prosecuted. The chart, as mentioned above, reads as follows:
Charge (Pg.53-66) Presenting Officer (pg. 127-156) Enquiry Officer (pg. 172-224) MHA Disagreement Note (pg.239 -244) CVC (pg.244) UPSC (Pg.44-50) Article-I Pressed Not proved Proved Proved Established Article-II Pressed Not Proved Proved Not proved Established Article-III Pressed Partly proved Proved Proved Established Article-IV Pressed Partly proved Proved Partly proved Partly established Article-V Not pressed Not proved Partly proved Not proved No observations Article-VI Pressed Partly proved Partly proved Partly proved Partly established Article-VII Pressed Not proved Not proved Not proved No observations Article-VIII Not pressed Not proved Not proved Not proved No observations The chart reproduced above with opinions of enquiry officer, MHA, CVC and UPSC, as mentioned therein, is not in dispute. What emerges from the chart above is that insofar as the articles VI, VII and VIII are concerned, there is unanimity of opinion. The enquiry officer, MHA, CVC and UPSC, all would hold that articles VII and VIII are not proved, whereas article VI is partly proved. As regards other articles of charge, i.e., articles I to V, the opinion of different authorities is not the same. As regards articles V and VIII, the same were not even pressed by the presenting officer.
5. Shri Paras Kuhad, learned counsel who appears in support of the Application, would contend in the first instance that the enquiry is vitiated and suffers from legal infirmities, such as the impugned order dismissing the applicant from service is a non-speaking order. In that regard, it is urged that the enquiry officer had returned a finding of innocence as regards five articles of charge, whereas, as regards other three charges, finding of the enquiry officer was that the same were partly proved. Even as regards such charges as were partly proved, the finding of the enquiry officer was that there was no mala fide involved and the applicant had worked in the larger interest of BSF. The disciplinary authority, but for charges VI, VII and VIII, would not agree with the enquiry officer with regard to any other charge. The first two charges and charge number V were held not proved by the enquiry officer. The disciplinary authority held the first two charges as proved, whereas charge V was held by it to be partly proved. The applicant made his representation against the same. The disciplinary authority obtained the second-stage advice of CVC and UPSC, and while passing the impugned order, never dealt with the representation made by the applicant against the report of the enquiry officer and the dissenting note made by the disciplinary authority. In fact, the defence projected by the applicant in his representation was not considered at any stage. This alone, the counsel contends, would vitiate the orders, as the defence projected by the applicant as regards the report of the enquiry officer to the extent it was against the applicant and the dissenting note made by the disciplinary authority, had necessarily to be taken into consideration, failure whereof would not only be against statutory rules, but would also be against principles of natural justice. It is then urged that the disciplinary authority in its note of dissent pre-judged the issue and held the charges as proved without first obtaining the representation of the applicant, which would be wholly illegal.
6. During the course of arguments, when prima facie we were of the view that there may be merit in the two-fold contentions raised by the learned counsel representing the applicant, as noted above, we put it to him that even if the said contention is accepted, the matter shall have to be remitted to the authorities to re-visit the matter from the stage of recording of the dissenting note by the disciplinary authority; the counsel would contend that the way and manner the applicant has been dealt with by the concerned authorities, and particularly the disciplinary authority, he may not get any justice from concerned authorities. In that regard, the counsel contends that this may be one of the rarest of rare cases where the defence projected by the applicant, when the report of the enquiry officer and the note of dissent of the disciplinary authority were communicated to him, was not dealt with at any stage. Further, the disciplinary authority while recording the note of dissent had finally made up its mind that the charges stood proved against the applicant, and even such charges which were not even pressed by the presenting officer were held proved or partly proved. The disciplinary authority, thus pre-determined the issue without even taking into consideration the defence of the applicant. He further contends that he is prepared to run the risk of having our findings on the issues instead of getting the matter remitted to the concerned authorities. Such being the conviction in the contention of the learned counsel, we gave our serious thoughts to the same and heard the arguments on merits of the controversy.
7. Before we may take into consideration the contention of the learned counsel representing the parties, we may mention that we are conscious of the limited powers of courts and tribunals of judicial review of the administrative decisions. Surely, therefore, we shall take into consideration such contentions of the learned counsel on the basis of which it may be permissible to interfere in the administrative decisions taken by the authorities and quasi judicial functionaries in the limited power of judicial review vested with us. Before we may, however, do that, we may mention that on conclusion of arguments, we are of the considered view that the legal issues raised by the learned counsel in his two-fold contentions, as noted above, have also merit. The chart reproduced above would clearly demonstrate that insofar as, the enquiry officer is concerned, none of the charges leveled against the applicant was fully proved; whereas, five charges, as mentioned above, were not proved, three were only partly proved, and as regards the said three charges as well, the finding of the enquiry officer was that there was no mala fide involved and the applicant had worked in the larger interest of BSF. The disciplinary authority differed with the enquiry officer to the extent as reflected in the chart. The applicant was indeed given copy of the report of the enquiry officer and the note of dissent recorded by the disciplinary authority, to which he responded by his representation. It is not in dispute that while holding the applicant guilty, at no stage the defence of the applicant came to be even mentioned, least discussed and rejected. In the impugned order dismissing the applicant from service as well, whereas there may be reference to forwarding of the report of the enquiry officer along with the note of dissent recorded by the disciplinary authority and the second stage advice tendered by CVC to the applicant, and the fact that the applicant did make representation on 11.11.2009, but for referring that the applicant had made representation, nothing else has been mentioned. What points the applicant had raised as against the report of the enquiry officer, dissenting note and the view of CVC, have not even been mentioned, least, as mentioned above, discussed and rejected. The impugned order, for that reason itself, needs to be set aside. Further, the disciplinary authority in its note of dissent available at page 240 of the paper book, while referring to the first charge, recorded his reasons for disagreement by stating that during the preliminary enquiry the applicant had admitted to the allegations to claim that he was legally wedded to Smt. Chandrakala and has a son and daughter by her. He also admitted that his first wife is alive and he has a son and two daughters by her. The disciplinary authority observed that the enquiry officer had failed to appreciate the evidence put forth in the chargesheet, and that the circumstantial evidence of photographs and CDs would reveal that Smt. Chandrakala was attending the function as a prominent person in the life of the applicant, and that she was extended courtesies as would be given to the spouse of the applicant during the function, and further that during the function she was addressed as Mrs. Tiwari/Madam Tiwari/First lady by different persons during their speeches, which was never corrected either by the applicant or by Smt. Chandrakala at any point of time. The disciplinary authority further mentioned that disciplinary proceedings are quasi judicial proceedings and the Evidence Act would not apply to such proceedings, and that the guiding principle is to take into account the evidence in such disciplinary proceedings on preponderance of probabilities, and that In view of the above, this charge against the CO stands proved (emphasis supplied). We need not, at this stage, refer to the reasons of disagreement recorded by the disciplinary authority as regards other charges. We may only make a mention of the conclusions arrived at by the said authority. As regards charge II, the disciplinary authority mentioned that The IO has not considered this aspect in his findings. This charge against the Charged Officer stands proved. As regards charge III, once again, while concluding the matter, the disciplinary authority mentioned that This clearly establishes misconduct on the part of the Charged Officer and this charge against him stands proved. As regards charge V also, the concluding sentence is, Thus, this charge against him stands partly proved.
8. It is too well settled a proposition of law that while disagreeing with findings of the enquiry officer, the disciplinary authority must arrive at a decision in good faith. He, while disagreeing with the findings, is required to give reasons for such disagreement, but such a decision has to be a tentative one and not final. A Division Bench of the High Court of Delhi in Commissioner of Police v Const. Pramod Kumar & Others [CWP Nos.2665/2002 & 4593/2001] decided on 12.9.2002, held so. The facts of the case aforesaid reveal that the enquiry report submitted by the enquiry officer was detailed one. He considered all materials on record and arrived at a finding of fact that the delinquent officers were not guilty. The disciplinary authority, however, recorded his positive finding to the effect that upon notice of the entire material on record the respondents were guilty. Nowhere in the findings did he suggest that the same were tentative. It was held that However, while disagreeing with such findings, he must arrive at a decision in good faith. He, while disagreeing with the findings of the Inquiry Officer, was required to state his reasons for such disagreement but such a decision was required to be tentative one and not a final one. In Yoginath D. Bagde v State of Maharashtra & Another [JT 1999 (7) SC 62], the Apex Court took the view that the decision arrived at by the disciplinary authority while disagreeing with the findings of the enquiry officer has to be tentative. Facts of the case aforesaid reveal that the District Judge, who was the enquiry officer, had recorded that the articles of charge were not proved. Said findings were submitted to the disciplinary committee, which disagreed with the same and a notice was issued to the appellant requiring him to show cause why he should not be dismissed from service. Along with the show cause notice, the reasons on the basis of which the disciplinary committee had disagreed with the findings of the District Judge, were communicated to him, but the disciplinary committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. It was held by the Supreme Court that it was not indicated to the employee that the disciplinary committee had come only to a tentative decision and that he could show cause against that too. The employee was required to show cause only against the punishment proposed by the committee, which had already taken a final decision that charges against the employee were proved. Since the disciplinary committee did not give any opportunity of hearing to the employee before taking a final decision in the matter relating to findings on the charges framed against him, it was held that principles of natural justice had been violated. There may be slight difference in the case before the Honble Supreme Court and the one at hand. Whereas, in the present case, the disciplinary authority finally concluded with regard to guilt of the applicant and required him to comment/make representation on the disagreement note, in Yoginath D. Bagde (supra) the employee was given show cause with regard to quantum of punishment, but that, in our view, would not make any difference as surely if the disciplinary authority may have arrived at a conclusion while clearly mentioning that the charges stood proved or fully proved having pre-judged the issue, asking for the comments/representation of the employee would be of no meaning and consequence. In Punjab National Bank & Others v Kunj Behari Misra [(1998) 7 SCC 84], it was held that Principles of natural justice will have therefore to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. We need not refer to other judicial precedents on the issue, as during the course of arguments the proposition of law, as mentioned above, could not be countered by the counsel representing the respondents either on the basis of any rules or judicial precedents. The law is firmly entrenched that if instead of tentative opinion, a final view is taken contrary to the view expressed by the enquiry officer, the opinion has to be tentative, as otherwise it would violate the principles of natural justice.
9. In the context of the contention raised by the learned counsel representing the applicant that there was no evidence whatsoever to hold the charges as proved or partly proved, as there was either no evidence whatsoever or some such evidence was taken into consideration which would be wholly inadmissible, each charge shall have to be separately taken into consideration.
10. The first article of charge is that while functioning as Inspector General, Ftr. Hqrs., North Bengal, during the period from 23.6.2005 to 14.11.2006, the applicant indulged in living with a lady by name Smt. Chandrakala, not being his legally wedded wife. The learned counsel, in the first instance, would contend that an employee living with a woman who may not be his legally wedded wife, would per se be no misconduct; unless, therefore, there were allegation that the applicant had abandoned his legally wedded wife and was living with another woman who is not married to him in a way and manner a person may live with his wife, there would be no misconduct whatsoever. He, however, states that he may not go by the contention as raised above as the charge against the applicant which was held not proved by the enquiry officer, has been said to be established by the disciplinary authority and others on evidence which was never led before the enquiry officer. Before we may advert to the contention of the learned counsel, as noted above, it would be seen that the applicant, for discipline and appeals, is governed by the rules known as the All India Services (Discipline and Appeal) Rules, 1969 (hereinafter to be referred as the Rules of 1969). Procedure for imposing major penalties is dealt in rule 8 of the Rules aforesaid. Sub-rules (4), (5), (15) and (16) of rule 8 read as follows:
8(4) Where it is proposed to hold an inquiry against a member of the Service under this rule and/or rule 10, the disciplinary authority shall draw up or caused to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the member of the Service;
(b) a list of documents by which, and a list of witness by whom the articles of charge are proposed to be sustained. 8(5) The disciplinary authority shall deliver or cause to be delivered to the member of the Service a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witness by which each article of charge is proposed to be sustained and shall require the member of the Service to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. 8(15) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by, on behalf of, the disciplinary authority. The witness shall be examined by, or on behalf of, the Presenting Officer and may be cross-examined by, or on behalf of, the member of the Service. The Presenting Officer shall be entitled to re-examine the witnesses on any point, on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. 8(16) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the member of the Service or may itself call for new evidence or recall and re-examine any witness and, in such case, the member of the Service shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give to the member of the Service an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the member of the Service to produce new evidence, if it is of opinion that the production of such evidence is necessary in the interests of justice.
NOTE.- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. By virtue of provisions contained in rule 8(4)(ii)(b), a statement of imputation of misconduct or misbehaviour in support of each article of charge, which shall contain a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained, has to be drawn up by the disciplinary authority. By virtue of rule 8(5) the disciplinary authority shall deliver or cause to be delivered to the member of the service a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained. By virtue of rule 8(15), the employee has a right to cross-examine the witnesses that may be examined by or on behalf of the presenting officer. As per rule 8(16), before close of the case on behalf of the disciplinary authority, the inquiring authority, in its discretion, may allow the presenting officer to produce evidence not included in the list given to the member of the service, or may itself call for new evidence or recall and re-examine any witness and, in such case the member of the service shall be entitled to have, if he demands, a copy of the list of further evidence proposed to be produced.
11. The presenting officer pressed article of charge I, but, as mentioned above, the enquiry officer held the same as not proved. While so holding, the enquiry officer observed that the prosecution had failed to produce cogent evidence that Smt. Chandrakala was staying with the applicant as his wife; the prosecution also failed to produce Smt. Chandrakala as a witness during the enquiry; as per depositions of SW 6, 7, 20 and others, the applicant never introduced Smt. Chandrakala as his wife; as per statements of DW 2, 3, 4 and 5, the applicant indeed introduced her as his guest; Smt. Chandrakala visited the applicant for a short duration and stayed in his guest room; and further that the prosecution had reached the conclusion that the applicant was having relation of a husband with Smt. Chandrakala on the basis of circumstances, and as such, violation of the provisions of the Conduct Rules of 1968 had not been substantiated. As against that, the disciplinary authority referred to some admissions said to have been made by the applicant during preliminary enquiry. The admission was that Smt. Chandrakals was wedded to him and he has a son and a daughter by her. His further admission as taken into consideration was that his first wife is alive and he has a son and two daughters by her. The disciplinary authority also placed reliance upon circumstantial evidence of photographs and CDs, which, according to it, would reveal that Smt. Chandrakala was attending functions as a prominent person in the life of the applicant and was being extended the courtesies that would be given to the spouse of the applicant, and further she was addressed as Mrs. Tewari/Madam Tewari/first lady by different persons, which was not corrected either by the applicant or by Smt. Chandrakala at any point of time. The applicant objected to the finding of the disciplinary authority as recorded in the note of dissent. Representation of the applicant is available at page 245 of the paper book. We need not refer to the contents thereof as the objections raised therein have also been taken during the course of arguments, to which we shall advert to later. CVCs second stage advice contains no reasons for holding articles of charge I and III as proved and articles IV and VI as partly proved. Insofar as, UPSC is concerned, its reasons for holding the charges established read as follows:
3.1. Article-I. The Commission observe that the charge against the MoS that he lived with a lady by name Smt. Chandrakala other than his wife is to be viewed as a serious violation of conduct on his part. The MoS in his statement of defence had himself admitted that Smt. Chandrakala stayed at his residence as a guest but he had failed to give any logical answer to the question why she stayed at his residence when he was alone without his wife. Therefore, it is proved that the MoS indulged in living with the said lady, who was not being bis legally wedded wife. Not only this lady stayed at the residence of the MoS, she also accompanied him at several official and non official functions. She was viewed and understood as the wife of the MoS and addressed as such, to which the MoS never made any attempt to correct the scenario within the force. It may be recalled that the disciplinary authority while holding the charge as proved, primarily relied upon the preliminary enquiry, where the applicant is said to have admitted that he is legally wedded to Smt. Chandrakala and has a son and a daughter with her, and that his first wife is alive and he has a son and two daughter with her. The circumstantial evidence relied upon by the disciplinary authority is the photographs and CDs, which, according to it, would reveal that Smt. Chandrakala was attending the function as a prominent person in the life of the applicant, and that she was extended courtesies as would be given to the spouse of the applicant during the function, and that during the function she was addressed as Mrs. Tewari/Madam Tewari/first lady by different persons during their speeches, which was never corrected by the applicant or by Smt. Chandrakala at any point of time. Learned counsel representing the applicant would vehemently contend that no reliance could be placed upon the preliminary enquiry report as it was not even a listed document, nor the same was ever produced before the enquiry officer. Averments in that regard have been made in para xv. at page 18 of the paper book. We need not refer to the pleadings made in that regard by the respondents, as it remained admitted during the course of arguments that preliminary enquiry report was not even a listed document and that even the author of the report (ADG, BSF East), although listed as a witness, but was dropped during the course of enquiry. It also remained undisputed that the CD was never relied upon by the presenting officer or the enquiry officer, even though it was listed as a prosecution document. The contents of the CD are unknown as it was never opened or relied upon during the course of enquiry. The author of the CD, contents thereof, and in whose custody the CD was kept, are all unknown to the applicant. If the evidence which has been taken into consideration by the disciplinary authority is excluded, the counsel would contend that there was no evidence whatsoever with the respondents to hold the applicant guilty of the first article of charge. The disciplinary authority would not take into consideration the evidence that was led before the enquiry officer, but would rather choose to rely upon the evidence which could not be looked into. A perusal of the report given by the enquiry officer would reveal that the department relied upon Exs. S-1 and S-2 which are photographs showing Smt. Chandrakala attending various functions of Ftr. Hqrs., Kadamtala. The enquiry officer specifically recorded that the imputation of charges states that the applicant had accepted that he had married Smt. Chandrakala, but no such document has been placed on records. As regards the photographs, it was observed that the same would only disclose that Smt. Chandrakala had attended the functions of BSF, and on the basis of the photographs only, the relation of the applicant and Smt. Chandrakala could not be ascertained. The enquiry officer referred to the statement made by the applicant, wherein he stated that Smt. Chandrakala had attended the function as his guest and he had never introduced her as his wife. SWs 6, 7, 16, 20,21, 23, 24, 26 and 27 were examined by the department in its endeavour to prove the first article of charge against the applicant. The applicant too examined Shri Sindhu Kumar, Commandant, DW-2, Shri M. L. Garg, Commandant, DW-3 and HC C. K. Singh as DW-3 in his defence. The enquiry officer threadbare discussed the statements of all the SWs and DWs, mentioned above, and came to conclude that Smt. Chandrakala had visited the applicants residence twice or thrice during his tenure as IG, North Bengal and had attended the functions at officers mess and also visited some official places along with wives of other BSF officials. She was treated as madam IG, but the applicant had never introduced her as his wife to the officials of BSF or the wives of BSF officials. She had visited Kadamtala for a very short duration and had stayed in the IGs guest room at his residence. In the ultimate analysis the enquiry officer observed that he did not agree with the prosecution that as per Indian tradition and customs, no lady guest would stay with a man when his wife is not with him, and further that the prosecution had arrived at the conclusion that the applicant was having relation of a husband with Smt. Chandrakala on the basis of circumstances only, and that the conduct rules do not bar stay of a lady guest with an officer in the absence of his wife, and as such the allegation that the applicant had violated provisions of the conduct rules could not be substantiated.
12. The disciplinary authority has not discarded the findings of the enquiry officer based upon the evidence led by the prosecution witnesses. He has rather chosen to return a finding of guilt on the basis of the evidence which was never led before the enquiry officer, and that, in our view, would completely vitiate the findings. If perhaps, on the basis of evidence led by the prosecution before the enquiry officer, a different conclusion might have been arrived at by the disciplinary authority and other authorities, it would not be permissible to appreciate the evidence to have come to the conclusion in tune with the findings recorded by the enquiry officer, but as mentioned above, the disciplinary authority would return a finding of guilt against the applicant on the basis of evidence which could not be looked into. As mentioned above, CVC gave no reasons even though held article I of the charge as proved, whereas UPSC came to such finding which cannot possibly sustain. It had observed that the applicant in his statement of defence had himself admitted that Smt. Chandrakala stayed at his residence as a guest, but had failed to give any logical answer to the question why she stayed at his residence when he was alone without his wife. We do not find it to be a case of misconduct where a lady may simply stay in the house of an employee when his wife may be away. Further, if the disciplinary authoritys observations are to be accepted, it may be recalled, that the finding of guilt has been recorded primarily for the reason that the applicant had admitted during preliminary enquiry that Smt. Chandrakala was his wife and he has two children from the said wedlock. If that was to be so, then it would be a case of the applicant marrying a woman when his first marriage is subsisting. The charge in that case would have been entirely different and not the one which is said to have been proved against the applicant.
13. Before we may part with this aspect of the case, we may mention that apart from the rules referred to above, which enjoin upon the concerned authorities to furnish all such documents on which reliance may be placed to prove the charge against the applicant, the principles of natural justice would also require that copies of documents relied upon against a delinquent are furnished to him. Reference in this connection may be made to the judgment of the Honble Supreme Court in Chandrama Tewari v Union of India [AIR 1988 SC 117], wherein it has been held as follows:
Principles of natural justice require that the copy of the document, if any, relied upon against the party charged, should be given to him and he should be afforded opportunity to cross-examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court.
14. If the admissions said to have been made by the applicant, mention whereof may have been made in the preliminary enquiry report and the CDs are excluded, there would be no evidence to prove the first article of charge. Insofar as the evidence which was led by the department is concerned, the same has been disbelieved by the enquiry officer, and no authority has given reason as to why the findings recorded by the enquiry officer would be incorrect, but for generally referring to the law as regards preponderance of probabilities as required in departmental enquiries.
15. Article II of charge is that during the period mentioned in article I, the applicant deliberately allowed unauthorized interference by Smt. Chandrakala living with him in official functioning of North Bengal Ftr. causing premature release of four constables from the quarter guard. This charge was pressed by the presenting officer but the enquiry officer found the same as not proved for the reason that Smt. Chandrakala had visited the quarter guard of 142 and 182 Bn. along with wives of officers of BSF, but did not ask any of the BSF officials to release the prisoners, and that the prosecution failed to establish that the release of the four constables from quarter guard was against the BSF rules, and further that violation of BSF rules/acts in the release of prisoners had not been referred to by the prosecution and as such, the release of four constables from the quarter guard had not been found illegal or against the rules. The disciplinary authority disagreed with the views of the enquiry officer and held the charge as proved, once again, on the basis of the admissions made by the applicant during preliminary enquiry that Smt. Chandrakala accompanied him during his visits to SHQ CBR on 22.4.2006 and 23.4.2006. The disciplinary authority also referred to admission of the applicant that Smt. Chandrakala visited the quarter guard where prisoners were kept, and after her visit four constables were released and the applicant subsequently formalized their release, and further that even if Smt. Chandrakala was the applicants guest, allowing a guest to visit the quarter guard and release of the prisoners would undoubtedly establish interference in official work and functioning of the applicant. We may produce in verbatim the reasons recorded for disagreement by the disciplinary authority, thus:
The Charged Officer during the preliminary inquiry had admitted that Smt. Chandrakala accompanied him during his visit to SHQ, CBR on 22.04.2006 and 23.04.2006. He also admitted that she visited the BSF Quarter Guard where the prisoners have been kept. After her visit, four Constables were released from the Quarter Guard. Subsequently Shri Tiwari formalized their release.
The Charged Officer in his defence statement has mentioned that Smt. Chandrakala was his guest. Even if it is so, allowing a guest to visit the BSF Quarter Guard and release the prisoners undoubtedly establishes interference in the official work and functioning of the Charged Officer. This reflects the misconducts on the part of the Charged Officer. The I.O. has not considered this aspect in his findings. The charge against the Charged Officer stands proved. CVC, however, held article II as not proved. UPSC held the charge as proved by observing as follows:
3.2 Article-II. The Commission note that Smt. Chandrakala had visited the quarter guard of 142 Bn and 182 Bn and had met the prisoners, whereafter 4 out of them were released, but some of them were kept in the barracks. It is quite obvious that none would have written in official records that the prisoners were being released/shifted to barracks, under instructions of Mrs. I.G. but it is very much on record that the release of Ct. Babu Lal was approved by I.G. in writing w.e.f. 23.04.2006, following telephonic instructions from the Adjutant, who had quoted Mrs. I.G. having asked for the same. Therefore, this Article of Charge stands established against the MoS. The admissions said to have been made by the applicant, mention whereof may have been made in the preliminary enquiry report, for the reasons as given above, has to be excluded. The preliminary enquiry was not, as mentioned above, even a document relied upon by the prosecution to prove the charge against the applicant. The disciplinary authority further observed that even if Smt. Chandrakala was a guest of the applicant, allowing a guest to visit the quarter guard and release prisoners would undoubtedly establish interference in the official work and functioning of the applicant, which would reflect misconduct on his part, and that the enquiry officer had not considered this aspect in his findings.
16. The enquiry officer before arriving at the conclusion of innocence of the applicant of the second charge, as mentioned above, referred to the depositions made by SWs 20, 21, 25, 26 and 27. The disciplinary authority would not refer to the evidence led by the department and take a view different than the one taken by the enquiry officer. It would rather, as mentioned above, choose to rely upon the evidence which was not led before the enquiry officer. While making mention of the admissions made by the applicant in the preliminary enquiry that Smt. Chandrakala had accompanied him during his visits to SHQ CBR on 22.4.2006 and 23.4.2006, as also that she visited the quarter guard where prisoners were kept, a conclusion was drawn from the admissions aforesaid only that since after the visit of Smt. Chandrakala, four constables were released and the applicant formalized their release, therefore, the charge would be proved. It is further mentioned that even if Smt. Chandrakala was a guest, allowing a guest to visit the quarter guard and release of the prisoners would establish interference in the official work and functioning of the applicant. It is significant to mention that the core charge against the applicant was release of prisoners on interference of Smt. Chandrakala. There is no mention of such evidence having been led by the department, by the disciplinary authority. Simply because the applicant or Smt. Chandrakala, or both, visited the BSF quarter guard, whereafter the prisoners were released, a conclusion of misconduct has been drawn. We are of the firm view that unless the release of the prisoners was connected with the interference caused by Smt. Chandrakala, the charge could not be said to have been proved. That being so, even the admissions said to have been made by the applicant would not lead to proof of the charge.
17. We were told during the course of arguments that constables were undergoing sentence only for overstaying the leave granted to them. A positive finding has been returned by the enquiry officer that their release was not in violation of the rules and, in fact, proper procedure was adopted. That the petitions or applications filed by the constables for their release did not have merit, was and is not, even the case of the department. The only charge, therefore, is that the constables were released on interference caused by Smt. Chandrakala. If there is no link between the interference caused by Smt. Chandrakala in the release of the prisoners, the charge could not be said to have been proved at all. A positive finding by the enquiry officer has been recorded that Smt. Chandrakala did not ever speak to any officer of BSF to get any of the constables released. Insofar as, CVC is concerned, as mentioned above, it held the charge as not proved. UPSC, however, held the charge as proved on account of the fact that the release of constable Babu Lal was approved by the applicant in writing w.e.f. 23.4.2006, following telephonic instructions from the Adjutant, who had quoted Mrs. IG having asked for the same. The Adjutant referred to in the opinion of the UPSC was examined as SW-29. Copy of the statement of the said witness has been annexed with the OA as Annexure A-8 (page 225 of the paper book). We have gone through the statement made by the said witness. He clearly stated that he got the application of constable Babu Lal which was processed as per instructions and he was released only after instructions from higher officials. He also stated that the quantum of sentence was reduced by the officer commanding and not the applicant, and that the release was done as per BSF rules and regulations, and proper procedure was followed. We may reproduce some of the questions put to the said witness with their answers, thus:
Q-2: In the year 2006, did wife of some senior officer visit your HQ?
Ans: I am not able to recollect but I came to know from my colleagues that some senior officers lady wife had visited the HQ.
Q-3: Who told you about the visit of some senior officers wife?
Ans: It is difficult to remember now.
Q-4: Who was that senior BSF lady who visited your HQ?
Ans: I do not remember.
Q-5: What action did you take after getting the information about the visit of a senior lady?
Ans: I had informed my Offg Commandant about the visit of the senior lady.
Q-6: What were the instructions given by the Offg Commandant?
Ans: He instructed me to visit Officers mess immediately for further orders.
Q-7: What did you do based on that order?
Ans: By that time the lady had already left the Officers Mess.
Q-8: What action did you take after that?
Ans: When I was returning back to my residence, I got an application written by Const Babu Lal that his punishment of 89 days was on higher side and that should be commuted. However, I do not remember the person who had handed over the application of Ct. Babu Lal.
Q-8: What did you do thereafter?
Ans: I forwarded that application to the Offg Commandant for further course of action.
Q-9: Did you report the visit of Senior lady to your Commandant who was on leave.
Ans: I do not remember.
Q-12: Whether you have forwarded the application to Ftr HQ for orders?
Ans: My Offg Comdt instructed me to take up case with higher HQ & accordingly I submitted the case to higher HQ, which was signed by the Offg Commandant. On rejoining duty by commandant, the case was again submitted to higher HQ.
Q-13: What was the final decision conveyed by higher HQ in the matter?
Ans: Yes, I received the permission from higher HQ for commutation of punishment.
Q-14: After all these incidents, did you come to know who was the senior lady wife who visited your HQ?
Ans: I do not remember. The deposition made by the Adjutant as SW-29 would not support the findings recorded by the UPSC, as mentioned above. Before we may part with the second article of charge, we may only mention that the disciplinary authority had stated that even allowing a guest to visit the quarter guard would constitute unauthorized interference in the official work. This was not the charge framed against the applicant. How only allowing a guest to visit the quarter guard would constitute interference in official work, is not understandable, nor has it been mentioned as to how it will constitute misconduct. That apart, if the applicant was to be saddled with delinquency on that count, the charge had to be like that.
18. Article III of the charge against the applicant is that during the period aforesaid, in complete disregard to the rules and without jurisdiction, he reviewed the punishment and mitigated the sentence awarded to const. Prakash Singh by Ftr BSF, South Bengal. At the very outset, we may mention that constable Prakash Singh, as proved from records, was a victim at the hands of his superiors. He was L/NK and was reduced to the rank of constable w.e.f. 16.7.2001. He was tried by SSFC on 16.7.2001 for the offence committed on 11.11.1999. As per instructions the case should have been finalized within three months time from the date of commission of offence. He was a dedicated personnel who was awarded for his extra hard work and dedication to his duties on ten different occasions. He was detailed to undergo section leader course w.e.f. 16.7.2001, and after completion of the course, he could have become head constable, but on the same day, i.e., 16.7.2001, he was tried by SSFC and punished. The offence said to have been committed by him was of using threatening language to BHM HC Jaspal Singh. During trial the witnesses had not deposed in support of the allegation. In the opinion of SCOI, Prakash Singh was harassed and abused by Shri Ram Singh, AC, company Commander. He filed a mercy petition, which, in routine, was brought for decision before the applicant. The petition filed by the constable was processed by the law officer who indicated that the applicant had the authority to commute the sentence in question. When the matter. When the matter came up before the applicant for decision, there was no contrary view expressed by any one that he would not have jurisdiction to decide the mercy petition of the constable. That the constable had a case on merit for reduction of sentence is not in dispute. In fact, it is not even the case of the department that the applicant had done any favour to the said constable in reducing his sentence. The only charge against the applicant is that he did not have jurisdiction in the matter. The enquiry officer held the charge as partly proved to the extent that the applicant exceeded his jurisdiction while reviewing the sentence of const. Prakash Singh. The enquiry officer, however, returned a categorical finding that the evidence on record would establish that the decision taken by the applicant was in the larger interest of BSF as the Jawans who work in difficult conditions at the borders should not be penalized vindictively by seniors on trivial issues. The disciplinary authority, however, held the charge as fully proved by observing that Prakash Singh was serving under the command of IG South Bengal at the time of his conviction (July 2001), and that the applicant was in-charge of North Bengal Frontier, and as such he was not competent to review the punishment awarded to the constable in his capacity as the prescribed officer. CVC and UPSC were of the opinion that the charge against the applicant stood proved. Counsel representing the applicant, in the first instance, contends that the applicant had jurisdiction in the matter and the interpretation as made by the respondents as regards Section 128 of the BSF Act to infer that he would not have jurisdiction to deal with the matter is incorrect. With a view to appreciate the contention of the learned counsel, it would be useful to reproduce Section 128, which reads as follows:
128. When any person subject to this Act has been convicted by a Security Force Court of any offence, the Central Government or the Director-General or, in the case of a sentence, which he could have confirmed or which did not require confirmation, an officer not below the rank of Deputy Inspector-General within whose command such person at the time of conviction was serving, or the prescribed officer may:-
either with or without conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or mitigate the punishment, or commute such punishment for any less punishment or punishments mentioned in this Act, either with or without conditions which the person sentenced accepts, release the person on parole. The respondents have interpreted Section 128 so as to hold that the applicant would not have jurisdiction for the reason that constable Prakash Singh at the time of his conviction was not in the command of the applicant. At the time of his conviction he was under the command of Ftr. BSF South Bengal. Counsel for the applicant would contend that the respondents have completely missed out on the words or the prescribed officer. It is his contention that officer not below the rank of Deputy Inspector-General within whose command such person at the time of conviction was serving and the prescribed officer would have jurisdiction to review the matter. The words or the prescribed officer, it is urged, are not to be completely ignored. The counsel states that be that as it may, it would be at least a moot point as to whether the applicant would also have jurisdiction in the matter. He, however, states that this Tribunal may not go into this question as the applicant while hearing the mercy petition of constable Prakash Singh under Section 128 was acting in a quasi judicial capacity, and once, there were no mala fides nor any culpable negligence, the decision recorded by the applicant would be correct, which only advanced the cause of justice, and the applicant could not be held guilty of delinquency. This aspect of the case was highlighted before the authorities, but nobody would even refer to the same. We find sufficient merit in the contention raised by the learned counsel representing the applicant. It is proved on records of the case that const. Prakash Singh was a victim of harassment by his superiors, and that the orders passed on merits by the applicant cannot be faulted. A firm finding in that regard has been returned by the enquiry officer, which has not been set at naught by any of the authorities. It is not in dispute that while dealing with the case of Prakash Singh, the applicant was acting in a quasi judicial capacity. He had before him the opinion of the law officer who had given a complete history of the case, and after doing so, had clearly mentioned that the worthy IG may take appropriate action as empowered u/s 128, BSF Act. It is too well settled a proposition of law by now that to hold delinquency of an employee when he may be acting in a quasi judicial capacity, some overtones or undertones of the guilty intention or culpable negligence has to be shown. The Honble Supreme Court in Zunjarrao Bhikaji Nagarkar v Union of India & others [(1999) 7 SCC 409] dealt with such a question and held as under:
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings. Counsel for the applicant also for his contention as noted above, relied upon Cholan Roadways Ltd v G. Thirugnanasambandam [(2005) 3 SCC 241], Inspector Prem Chand v Government of NCT of Delhi & others [Civil Appeal No.1815/2007 decided on 5.4.2007] and Ramesh Chander Singh v High Court of Allahabad & another [(2007) 4 SCC 247]. In Cholan Roadways (supra) the Supreme Court relied upon its judgment in Ngaarkars case as well for granting the desired relief. In Prem Chand (supra), while granting the relief, the Apex Court placed reliance upon its judgment in Ngaarkars case as well. In view of the judgments of the Honble Supreme Court in Nagarkar, Cholan Roadways and Prem Chand (supra), the negligence of an officer has to be culpable. We do not find the present to be a case of culpable negligence. In fact, it would be a case of no negligence, where the applicant on the advice given by the law officer that he had the jurisdiction, decided the matter without showing any favour to anyone whatsoever. He in fact rendered justice while passing the order in the matter of constable Prakash Singh.
19. The fourth charge against the applicant is that during the period aforesaid, he showed favouritism and manipulated the selection of Headmaster in BSF Primary School, Kadamtala, even though the candidate did not possess essential qualification and was not eligible. In the statement of articles of charge, in addition to the allegation that selection and appointment of Shri S. S. Majumdar as Headmaster of BSF Primary School was in complete violation of rules, it has also been stated that the matter as regards appointment of Shri Majumdar was enquired into, and ADG (East) directed the applicant to cancel the appointment order and arrange for appointment of a qualified person on the post of Headmaster, as per recruitment rules, after issuing fresh advertisement for the purpose, but the applicant instead of issuing formal cancellation order, waited for Shri Majumdar to resign from the post on 3.4.2006, and on the same day appointed him as a regular primary teacher with effect from the date he had joined as Headmaster of the school. It was further stated that Shri Majumdar was earlier engaged as a temporary teacher, and was appointed as regular teacher in violation of policies/instructions circulated by the FHQ, and that no selection committee was constituted in regard to the appointment of Shri Majumdar as a regular teacher, nor was the approval of the FHQ taken; besides Shri Majumdar had secured only 43% marks in his B.Sc. examination, whereas one of the essential qualifications for such appointment was 45% marks in aggregate in the degree examination. This charge was pressed into service by the presenting officer. The enquiry officer as regards appointment of Shri Majumdar as Headmaster observed that the prosecution had produced one document, i.e., Ex. S-11 in support of the allegation, which was a complaint by one Smt. Samistha Saha, PRT BSF Primary School, Kadamtala, to the applicant and to the Headmaster against the appointment of Shri Majumdar as a regular teacher of BSF Primary School. The complaint was not related to the appointment of Shri Majumdar as Headmaster. The enquiry officer further observed that the prosecution had failed to produce the documents relating to appointment of Headmaster/Primary Teacher of BSF Primary School, and further that the order of ADG (East), the resignation letter of Shri Majumdar and the mark sheet/documents relating to his qualifications, BSF policies/circulars in that regard, and the recruitment rules had also not been placed on records by the prosecution. The prosecution, to prove the charge, relied upon the witnesses that were examined by the presenting officer. Shri Ravi Ranjan, then AC (Admn.), Ftr. HQ, Kadamtala, examined as SW-6, stated that after getting approval from FHQ education cell for filling up the vacancy of Headmaster in BSF Primary School, advertisement for the same post was published in the newspapers, and as per the advertisement the eligibility criteria, 55% marks at graduation level and age limit of 40 years were required for the post. This eligibility was finalized/approved by the applicant as Chairman/IG. The witness also stated that there was no eligibility criteria prescribed for the post of Headmaster in BSF Education Code and the Chairman/IG was competent to decide the eligibility criteria for Headmaster, as informed by FHQ as per policy. He further stated that four applications were received and a screening board detailed to scrutinize the applications, recommended only two candidates for appearing in the interview, who were found fulfilling the eligibility criteria. Shri Majumdar was not recommended by the board, as he was not fulfilling the eligibility criteria. However, the applicant had allowed all the four candidates to appear before the interview board. The interview board, of which the applicant was a part, had selected Shri Majumdar for the post of Headmaster. The witness also stated that the complaints from almost all teachers of BSF Primary School were received against the appointment of Shri Majumdar as Headmaster, and that Smt. Samistha Saha had also made an application. All the representations were sent to FHQ, New Delhi, which asked the clarification from North Bengal Ftr. The clarification was sent under signatures of the applicant. He also stated that Shri Majumdar had submitted his resignation from the post of Headmaster in April, 2006 and he was appointed as a regular teacher from the retrospective date of appointment as Headmaster. In his cross examination, the SW stated that no specific criteria was mentioned in the BSF Education Code about the qualification required for the post of Headmaster and that IG was competent to decide the criteria for appointment on the said post. From the statement made by SW-6, the enquiry officer opined that the CO had allowed all the four candidates to appear before the interview board. Shri Majumdar who was not recommended by the screening board had been selected by the interview board for the post of Headmaster. The depositions of SW-1, SW-2, SW-3 & SW-4 disclose that the CO as Chairman had conducted the interview of all the four candidates and selected Shri S. S. Majumdar for the post of Headmaster even though he did not possess the eligibility criteria. Shri Vijay Singh, DE (Edn.) in his deposition as SW-19 has stated that ADG (E) directed Ftr. HQ North Bengal to cancel the appointment of Shri S. S. Majumdar as Headmaster as he was found not possessing the required educational qualifications of 55% marks in graduation. In his cross examination, SW-2 stated that the decision to select Shri Majumdar was taken by all the members of the board, including the chairman, i.e., the applicant. SW-3 in his cross examination stated that the best candidate was selected by the interview board. The applicant in his written statement also stated that the appointment of Shri Majumdar was made by a duly constituted board and the appointment was unanimous based on merit and ability. The enquiry officer referred to Ex. D-18 which disclosed that screening committee had found only two applicants eligible for interview, however, the applicant vide his note dated 17.11.2005 instructed to call four candidates for the interview. He also referred to Ex. D-8 which disclosed that the applicant vide his letter dated 9.9.2006 submitted his clarification to DG, BSF about the selection of Shri Majumdar as Headmaster. From the evidence that was recorded by the enquiry officer, some of the relevant findings that came to be recorded would read, thus:
It is seen from the evidences on record that the CO had approved eligibility criteria for the selection of Headmaster. Four candidates applied for the post of Headmaster and screening committee found only two candidates eligible for the post. Shri Majumdar who had also applied was found having less percentage than the required at graduation level. The CO as Chairman of BSF Primary School Kadamtala had allowed shri Majumdar and one more candidate for the interview even both were lacking in the marks percentage as advertised in the News-papers for the post of headmaster. Shri S. S. Majumdar was one of the candidates having less percentage of marks and he was selected by the interview board headed by the CO. I agree with the CO that IG/Chairman was competent to fix the eligibility criteria. Accordingly, the CO decided the eligibility criteria before publishing the same in the News-papers. However, the CO after the receipt of the applications had allowed two candidates who were not qualifying the eligibility criteria and as such the CO himself violated the conditions decided by him. The CO had accepted the irregularity committed by him in the selection of Shri Majumdar due to lack of knowledge and after ascertaining the provisions of BSF education code Shri Majumdar was asked to resign. I agree with the CO that the selection of Shri Majumdar was not objected by any of the member of the selection committee. I also agree with the CO that the entire selection committee is responsible for the selection of Shri Majumdar. All the applicants were given chance to appear before the interview board and as such no favour was extended to any one applicant. It is also seen from the cross-examination of SW-6 that all the four applicants were not having the 10 years experience requirement and as such all the four applicants were technically not fit for appearing before the interview board. The depositions of any prosecution witnesses do not disclose any involvement of the CO in manipulating the appointment of Shri Majumdar as Headmaster. On the basis of the evidences on record it is found that the selection of Shri Majumdar in the post of Headmaster, BSF Primary School, Kadamtala was not in line with the provisions of BSF education code. However, no favouritism/manipulation of selection process has been substantiated on the basis of evidences on record. Insofar as, the appointment of Shri Majumdar as primary teacher is concerned, the enquiry officer observed that Shri Majumdar and six other primary teachers were appointed in violation of the education code and all of them were working since long in the same school. They were appointed as primary teachers by officers other than the applicant. He also observed that the appointment of Shri Majumdar was in violation of the BSF Education Code along with six other primary teachers of the same school, but the prosecution had failed to produce any evidence to show that a procedure was to be followed for appointment of primary teacher and the applicant had allowed to violate the procedure in the appointment of Shri Majumdar as primary teacher. He mentioned that even the appointment order had not been placed on record to ascertain the facts, and that the depositions of prosecution witnesses would also not disclose that the applicant had allowed to violate the selection process and had appointed Shri Majumdar without following the procedure, and further that the evidence on record would only establish that the appointment of Shri Majumdar as primary teacher was not in line with the provisions of the BSF education code. He concluded, thus:
Article-IV of charge has been found as partly proved to the extent of wrong selection of Headmaster and primary teacher in BSF School, Kadamtala, by the CO without any favouritism & manipulation. The disciplinary authority while holding the charge as fully proved, observed as follows:
The essential qualification prescribed for the post of Head Master, BSF Primary School is graduation with 55% marks in aggregate. Shri Majumdar, Primary School teacher, BSF had secured only 43% in his graduation (B.Sc.). The Charged Officer has mentioned that he acted upon the notings of the Dy. Commandant, In-charge of BSF Primary School who had indicated that there is no eligibility criteria prescribed in the BSF education code and IG as Chairman of Selection Board, is competent to decide the criteria for selection to the post of Headmaster.
Shri Majumdar was not fulfilling the eligibility criteria and he was not recommended by the selection board to the post of Headmaster. Allowing Shri Majumdar for the interview though he does not fulfill the criteria, establishes favouritism by the Charged Officer. BSF Headquarters directed the Charged Officer to cancel the appointment of Shri Majumdar and take action for filling of the post of Headmaster after issuing fresh advertisement. Shri Majumdar submitted his resignation from the post of Headmaster on 3.04.2006. On the same day, the Charged Officer appointed him as a primary teacher. The above conduct of the Charged Officer establishes favouritism extended by him in selection and appointment of Shri Majumdar, Headmaster. Thus, the charge against him stands proved. Insofar as, CVC is concerned, it held the charge as partly proved. UPSC while also holding the charge to be partly proved, mentioned as follows:
The Commission observe that in the matter of selection of Shri Mazumdar to the post of Headmaster, it is seen that the evidence on record establishes that the appointment and selection of Majumdar was not in line with the provisions of the BSF education code. However, since there are certain inherent ambiguities in the code, this article of charge can be said to be only partly proved.
20. Before we may advert to the contentions raised by the learned counsel representing the parties on the charge aforesaid, some salient features of the said charge need to be mentioned. It would be seen that whereas all authorities, like, the enquiry officer, CVC and UPSC, have held the charge to be partly proved, it is only the disciplinary authority which has held the charge to be fully proved. The factual background of the case, which is not in dispute, would reveal that there were seven primary teachers in the school, including Majumdar. They were in service as such for substantial periods, which in some cases may be even up to ten years. Four out of them, it appears, had applied for the post of Headmaster, and were called for interview, and it is Majumdar who was ultimately selected and appointed on the said post. The other feather of the case which needs pertinent mention is that the prosecution, as held by the enquiry officer, and which finding is not disturbed by any other authority, had failed to produce documents relating to appointment of Hedmaster/Primary Teacher of BSF Primary School, and further that the order of ADG (East), the resignation letter of Majumdar and the marks sheet/documents relating to his qualifications, BSF policies/circulars in that regard, and the recruitment rules had also not been placed on records by the prosecution. In its endeavour to prove the charge against the applicant, admittedly, once again, the prosecution relied only upon oral evidence, mention whereof we have already made hereinbefore. From the prosecution evidence, which, as mentioned above, was only oral, it would be made out that there was no eligibility criteria prescribed for the post of Headmaster in the BSF education code, and as admitted by the witnesses, Chairman/IG was competent to decide the eligibility criteria for Headmaster, as informed by FHQ as per policy. What further appears is that there was a screening and selection committee. It would also be found from the oral evidence that the decision to select and appoint Majumdar was taken by all the members of the selection board, including the applicant, and that the best available candidate was selected by the interview board. It would also be seen that none of the teachers, if one was to go by the concerned education code or the advertisement, was eligible be it because of obtaining less percentage of marks in graduation or because of not having the requisite experience of ten years. The enquiry officer returned a firm finding on the evidence adverted to above that the applicant had shown no favouritism and done no manipulation. Insofar as, Majumdar is concerned, it may not have been mentioned by the enquiry officer, but it is an admitted position, as was taken by the applicant in his defence, but not adverted to, that he was B.Sc. and B.Ed. Whereas, he had only 43% marks in B.Sc., he has secured 59% marks in B.Ed. It is true that the screening committee had short-listed only two candidates, but the applicant called for interview four, including Majumdar. The enquiry officer has held the charge partly proved for the only reason that when in the advertisement itself the eligibility criteria was 55% marks in BSc., and which criteria was fixed by the selection committee, of which the applicant too was a member, he could not have violated the same and appointed Majumdar as the Headmaster. The allegation as against the applicant that there was favouritism or manipulation on his part has been completely ruled out. The selection committee consisted of the applicant, a DIG having more than 30 years of service in BSF, a senior Commandant having about 25 years of service and other senior officers dealing with the subject. It was a joint decision taken by all and not by the applicant alone. We will advert to the finding of the enquiry officer holding the applicant guilty as regards violating the procedure as regards eligibility for appointment of Majumdar as Headmaster later. At this stage, however, we would like to mention that the disciplinary authority while holding that Majumdar was not fulfilling the eligibility criteria, has made a factual error in further observing that he was not recommended by the selection board. The positive evidence led on that behalf is that it is the selection board which recommended Majumdar for appointment as Headmaster. It was a unanimous decision and everyone thought that he was the best candidate available. The disciplinary authority also held that allowing Majumdar to appear in the interview, though he was not fulfilling the criteria would establish favouritism by the applicant. This does not appear to be a conclusion that could be arrived at on the basis of evidence, as surely, it is not only Majumdar who was called for interview, but another person who too did not fulfill the criteria as regards marks in B.Sc., was also called for interview. Further, as admitted by the SWs, none of the four candidates had answered the eligibility criteria. In the circumstances, none of the candidates who had applied, had the eligibility criteria, and two of them were short-listed, which does not appear to be a bad decision on the part of the applicant to call all, as surely, no distinction could be made amongst persons equally situate. It may be true that whereas two who were called for interview, may have the criteria of educational qualification, but would not have the criteria as regards experience in service, which was of ten years, whereas Majumdar and the other may not be answering the eligibility criteria as regards their educational qualifications, but nonetheless, all of them were ineligible, and, therefore, either nobody had to be called for interview, or if any of them was to be called, all of them had to be called for interview. CVC, as mentioned above, has held the charge to be only partly proved. The part said to have been proved, could well be as mentioned by the enquiry officer. Insofar as UPSC is concerned, it also held the charge as partly proved, but the said opinion is contradictory in terms, and further, insofar as at least favouritism is concerned, no such finding has been recorded by UPSC. It is contradictory in terms as whereas, on the one hand it has opined that appointment of Majumdar was not in line with the provisions of the BSF education code, in the very next sentence, it has said that there are certain inherent ambiguities in the code, and, therefore, the article could be said to be partly proved.
21. From the discussion as made above, we are of the clear view that the disciplinary authority has made factual errors in holding the applicant guilty of favouritism. We repeat and reiterate that it was not an individual decision of the applicant to appoint Majumdar as Headmaster. It was the unanimous decision of the board, of which the applicant was a member, or may be even the head. In a joint decision, it would be difficult to infer mala fides, favouritism or manipulation. We have already held that in a case where none of the candidates who may have applied, may be eligible, there would be nothing wrong for the applicant to have called all. A decision could of course be taken not to call any one, but simply because Majumdar was also called, no inference of favouritism could be returned. The only thing that goes against the applicant is that he being member of the selection board, he assented to or was a party to a joint decision whereby Majumdar was appointed, even though he did not have the eligibility criteria as regards his qualifications, but in that case, he alone cannot be held to be responsible. There were other senior officers who had long experience as compared to only four months of the applicant at the time when the selection was made. If the respondents had not chosen to proceed against the said officers, no action in that regard could be taken against the applicant alone. The finding of the enquiry officer that out of the candidates interviewed, the best was chosen, was not controverted by the disciplinary authority.
22. Insofar as appointment of Majumdar on the post of teacher is concerned, it is seen, as mentioned above, that he was in position as a primary teacher for ten years. When on enquiry, his appointment was found to be against rules, the same was ordered to be cancelled. Before, however, such an order could be passed, he himself resigned. The applicant indeed appointed him as a teacher on regular basis, but for appointing him on regular basis, there is no evidence that any irregularity was committed. However, when the applicant himself took a decision to cancel the appointment of all, i.e., Majumdar and six others, who were similarly appointed, and which, according to the respondents, would be against the BSF education code, the applicant issued them show cause notice for termination of their services. It is rather strange that the same very respondents, who were harping upon irregular appointment of Majumdar as Headmaster, the same being against the education code, when the applicant issued them show cause notice for termination of services, directed him to withdraw the same and permit all of them to continue in service. So much so, it was specifically ordered that Majumdar would be continued in service. We accept the contention of the learned counsel for the applicant that the respondents are blowing hot and cold in the same breath. The applicant, at the most, could be jointly held responsible for making selection of Majumdar on the post of Headmaster, even though he was the best amongst the lot to the extent that his appointment was against the educational qualification criteria mentioned in the advertisement itself, but for that, as mentioned above, he alone could not be held responsible. If, therefore, the respondents have not chosen to proceed against others who constituted the selection board, the applicant could not be proceeded as well, as that would be a case of hostile discrimination. The Honble Supreme Court in Bongaigaon Refinery & Petrochemicals Ltd. & others v Girish Chand Sharma [(2007) 7 SCC 206] held that in a collective decision, one person cannot be made the scapegoat. The charges against the employee in the case aforesaid were that he had dishonestly selected and recommended purchase of land at Jorbat, and as a member in the price negotiation committee, he failed to assess reasonable price of the land, as also that he appointed a valuer for land valuation violating the due process of tendering, and that the fictitious price fixed by the valuer was accepted, and further that the valuer was engaged without process of tendering for determination of soil and rock strata as recommended by the employee. The facts of the case aforesaid reveal that in different committees there were number of members who had taken decisions, which were unanimous, and one employee alone was proceeded departmentally. In the context of the facts as mentioned above, the Honble Supreme Court observed as follows:
18. After going through the report and the finding recorded by the Division Bench of the High Court, we are of opinion that in fact the Division Bench correctly assessed the situation that the respondent alone was made a scapegoat whereas the decision by all three Committees was unanimous decision by all these members participating in the negotiations and the price was finalised accordingly. It is not the respondent alone who can be held responsible when the decision was taken by the Committees. If the decision of the committee stinks, it cannot be said that the respondent alone stinks; it will be arbitrary. If all fish stink, to pick one and say only it stinks is unfair in the matter of unanimous decision of the Committee.
23. Before we may part with this aspect of the case, we may mention that we are conscious that the role and responsibility of the applicant may be more being the head of the selection board, but the respondents would not proceed against others and decided to proceed against the applicant alone, even though in the ultimate analysis, a lesser punishment could be imposed upon them.
24. To conclude on the charge aforesaid, we may mention that the enquiry officer, while holding the charge as partly proved only to the extent that Majumdar could not be appointed as Headmaster as his educational qualifications were not commensurate to the one mentioned in the advertisement, completely missed out on the legal issue of discrimination. CVC also held the charge as partly proved, presumably agreeing with the view expressed by the enquiry officer. The plea of the applicant as regards discrimination went abegging before CVC as well. Insofar as the disciplinary authority is concerned, it made factual errors, as have been elaborated above. It would not even refer to the evidence and the findings based thereon recorded by the enquiry officer while holding that the applicant had shown no favouritism, nor made any manipulations when Majumdar was appointed on the post of Headmaster. Dissenting note, such as the one made by the disciplinary authority, without even referring to and differing with the reasons given by the enquiry officer, would be wholly illegal and cannot be taken into consideration. Insofar as UPSC is concerned, as mentioned above, the reasons given by it for holding the charge as partly proved are contradictory.
25. The fifth charge against the applicant is that he helped one person of his native district Balia, UP, in his enrollment in BSF by fraudulent means and also amended the board proceedings by commenting about his medical fitness. Once again, we may at the very outset, mention that it is only the disciplinary authority which has held the charge as partly proved. This charge was not even pressed by the presenting officer. CVC has held the charge as not proved, whereas UPSC has made no observations, meaning thereby that it had nothing to say against the applicant on the said charge. The conclusion arrived at by the enquiry officer is as follows:
It is seen from the above that the evidences on record clearly establish that the article-V of charge has no substance and hence found as not proved. The disciplinary authority while clearly mentioning that during the enquiry the prosecution did not produce evidence to show that Brijesh Kumar belonged to Balia, U.P., and that since verification of the records of domicile issues by SDO, Silliguri, and examination of the SDOs staff had not been done, misconduct on the part of the applicant could not be established, yet held the charge as partly proved by observing, thus:
However, at a later stage, when the discrepancies were brought to his notice, he should have taken action against the recruited persons including Shri Brajesh Kumar, which he had failed to do. Thus, this charge against him stands partly proved. We need not elaborate on this charge by referring to the evidence that was led by the department. It appears to us that when the presenting officer had not even pressed the charge, there could not be any reason or even justification for the concerned authorities to yet examine the evidence and hold the same to be proved or partly proved. That apart, even though, the allegation on which the charge is based has been held as not proved by the disciplinary authority as well, but the applicant has been held guilty of such allegations which were not even subject matter of charge. It is too well settled a proposition of law by now that no finding of guilt can be recorded as regards allegations which may not have been even made against a delinquent. Reference in this connection be made to the judgment of the Honble Supreme Court in M. V. Bijlani v Union of India & others [AIR 2006 SC 3475]. While holding that enquiry officer performs quasi judicial functions, who upon analyzing the documents must arrive at a conclusion that there had been preponderance of probability to prove the charges on the basis of materials on record, the Apex Court further observed as follows:
While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with (emphasis supplied).
26. The sixth charge against the applicant is that he misused government vehicle, arms and ammunition and BSF personnel at the time of marriage of his son that was solemnized on 15.2.2006 at his native place in Balia, UP. This charge has been held as partly proved by all. Before we may take into consideration as to the part of the charge proved against the applicant and the reasons therefor, some salient features of the case would need a necessary mention. The applicant after his training was allocated to the Andhra Pradesh cadre. He was on central deputation to Border Security force when he was chargesheeted. Admittedly, earlier in point of time, the applicant was a Z class protectee, which was later changed to class Y. Because of the stellar role played by him in the anti-naxalite operations in the State of Andhra Pradesh, the applicant has been in the list of naxalites. Even though, the applicant was on deputation to BSF, the Intelligence Department of Andhra Pradesh was communicating with him the instructions as he was listed as a target by the naxalites. A note dated 6.11.2010 issued by Inspector General of Police, Intelligence, P, Hyderabad, was sent to the applicant, which contains circular memo dated 30.10.2010 which was regarding guidelines formulated and circulated by CPI (Maoist) to its recce teams for collection of intelligence about the targets before planning attacks on police stations, outposts, camps and single targets. All officers and personnel of concerned units and trainees were to be briefed. It is not in dispute that the Y class security arrangements are continued to be made for the applicant even after his dismissal from service. Two attacks on the life of the applicant have already taken place from naxalites. The area to which the applicant was traveling in connection with the marriage of his son is naxalite infested. Balia, where the applicant visited, is at UP-Bihar border. The applicant was admittedly entitled to two PSOs on a round-the-clock basis with a bullet proof car as per the prescribed norms. The jurisdiction of the applicant with respect to anti-naxalite operations of his battalion extended to the State of Bihar. Directorate General, Border Security Force, addressed a letter dated 8.7.2005 to Inspector General, Hqr North Bengal Ftr., BSF, Kadamtala, Siliguri, as regards security of the applicant. The same reads as follows:
Addl. DGP, Intelligence, Hyderabad (AP) has intimated that Shri Shree Ram Tiwari, IPS, IG, BSF is categorized as Y security. Therefore, necessary security be provided to Shri Sree Ram Tiwari, IPS, IG, BSF, North Bengal Ftr. As per radio message sent on 29.6.2005 by ADG (Intelligence) AP Police to the Directorate General, BSF, the applicant has been categorized as a Y class protectee. The said message has been produced on records at page 121 of the paper book. The applicant, as per the message aforesaid, was to be provided necessary security cover as per Y scale. In furtherance of the radio message, a letter was sent by Directorate General, BSF, whereby it was directed that necessary action for the security of the applicant be taken. The applicant was to be ensured security as per his entitlement. It is not in dispute that the applicant was indeed entitled to security as per norms as mentioned above. It is also not in dispute that the applicant could take a vehicle and two PSOs with him for his security to Balia. The enquiry officer has, however, held the charge as partly proved, as before taking the vehicle and the PSOs, the applicant would not take permission. Insofar as, the other allegation as regards one of the PSO firing some rounds from his weapon during the marriage ceremony of the son of the applicant is concerned, the same has been disproved. While referring to the allegation against the applicant, the enquiry officer mentioned that the applicant was not authorized by BSF to use the vehicular escort during his private journeys and that movement of vehicles beyond IGs jurisdiction would require the approval of HQ, which was not obtained. On the allegation aforesaid, the finding returned is that, It is found from the security details of Y category, no escort vehicle was entitled to the CO for his road journeys. However, the escort vehicle was taken by the CO for his private visit to Balia. Even though, the finding is as mentioned above, but the same has to be read in the context of the allegation, which was that the applicant had taken the escort vehicle without prior approval of the headquarters. The disciplinary authority, CVC and UPSC have agreed with this finding of the enquiry officer. The applicant had never denied taking the vehicle and PSOs to Balia. His explanation, however, was that whenever a person is declared as a Y class protectee, he will have to be provided round-the-clock security, and that even while working with BSF, as per communications sent to the applicant and BSF as well, the applicant was to take necessary steps for his security, and he availed the same as per his entitlement. It was also his case that two PSOs on a round-the-clock basis and a bullet proof vehicle is the prescribed security norm for a Y class protectee, and that the jurisdiction of the applicant with respect to anti-naxalite operations of his battalion extended to the State of Bihar, and further that Balia is on the UP-Bihar border. It is rather distressing to note that when the applicant had admitted taking two PSOs and the escort vehicle to Balia, and as regards prior permission it was his case that there was no need in view of the facts as fully detailed above, and, therefore, it is only his explanation that was required to be taken into consideration, no authority would do the same. The charge has been partly proved by them completely ignoring the explanation furnished by the applicant. There is thus, an apparent error both on facts and law by the respondents in completely ignoring the defence projected by the applicant. Even though, prima facie, we are of the view that the explanation furnished by the applicant required acceptance, but once, while doing so, we will be appreciating evidence, we may not do the same. On this charge, therefore, the course open may have been to remit the matter to the concerned authorities, but in the peculiar facts and circumstances of this case, we refrain from doing so, as even if the charge to the extent it stood proved, the same requires to be ignored inasmuch as, once the applicant was entitled to take the vehicle and PSOs to Balia, not obtaining prior permission would not be a serious issue at all.
27. Insofar as charges VII and VIII are concerned, the same have been held as not proved by all the authorities. The applicant has addressed arguments on these charges also, but we do not think there would be need to take into consideration such arguments, once the applicant has not been held guilty on the allegations subject matter of the said charges.
28. Shri A. K. Bhardwaj, learned counsel representing the respondents, would support the impugned orders by contending that in the disciplinary enquiry charges can be proved on the preponderance of probability, and as held by the Honble Supreme Court in Union of India & another v B. C. Chaturvedi & another [(1995) 6 SCC 750], when an enquiry is conducted on charges of misconduct by a public servant, the court/tribunal concerned is to determine whether the enquiry has been held by a competent officer or whether rules of natural justice have been complied with, and that neither the technical rules of the Evidence Act nor the proof of fact or evidence as defined therein would apply to disciplinary proceedings, and further that the court/tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent finding, and that the disciplinary authority is the sole judge of facts. We have already mentioned hereinbefore that judicial review of administrative decisions, even though taken in quasi judicial capacity by the concerned authorities, is limited. While appreciating evidence and coming to different conclusion may not be in the domain of courts or tribunals, judicial review is on limited grounds, some of which have been mentioned by the Supreme Court in M. V. Bijlani (supra). Insofar as the disciplinary proceedings are concerned, it has been held that they are quasi criminal in nature and there should be some evidence to prove the charge. The charges are not required to be proved like in a criminal trial, i.e., beyond shadow of reasonable doubt, but it has been further observed that the enquiry officer performs quasi judicial functions, who upon analyzing the documents must arrive at a conclusion that there had been preponderance of probability to prove the charges on the basis of materials on record, and while doing so, he cannot take into consideration any irrelevant fact; he cannot refuse to consider the relevant facts; he cannot shift the burden of proof; he cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures; and he cannot enquire into the allegations of which the delinquent officer had not been charged. The present case is a classic example where either such evidence has been taken into consideration which could not be read in evidence having not been led before the enquiry officer, or such patent facts coming on records by the evidence led by the prosecution itself were totally ignored by all, and more particularly, by the disciplinary authority. It is also a case where the procedure prescribed under the statutory rules for holding departmental enquiries was not followed, as also that the respondents would not care to even consider the legal issues raised by the applicant. Findings on the charges held proved or partly proved are vitiated for the reasons already enumerated above, and which, we may reiterate, have not been held vitiated by appreciating the evidence and coming to our own conclusion.
29. Shri Bhardwaj, learned counsel representing the respondents, in addition to his contentions as noted above, would, by and large, defend the departmental proceedings and the impugned orders on the grounds which have been taken by concerned authorities, but there would be no need to make a mention of the contentions of the learned counsel, as all that has been said by concerned authorities, has been discussed by us hereinbefore.
30. For the reasons as mentioned above, finding considerable merit in the contentions raised by the learned counsel representing the applicant, we set aside the impugned order dated September 8, 2010 dismissing the applicant from service. The applicant would be reinstated in service with all consequential benefits that may accrue to him under rules. Costs of the litigation are, however, made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/