Central Administrative Tribunal - Delhi
A. K. Jain S/O P. R. Jain vs Govt. Of Nct Of Delhi Through on 31 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
OA 2546/2006
with
OA 2200/2006, MA 2561/2006; OA 2288/2006; OA 2544/2006,
MA 2245/2006; OA 2545/2006, MA 2246/2006; OA 2547/2006,
MA 2248/2006; OA 2548/2006, MA 2249/2006; OA 2549/2006,
MA 2250/2006; OA 2550/2006, MA 2251/2006; OA 2551/2006,
MA 2252/2006; OA 2252/2006, MA 2253/2006; OA 2553/2006,
MA 2254/2006; OA 2554/2006, MA 2255/2006; OA 2555/2006,
MA 2256/2006; OA 2556/2006, MA 2257/2006; OA 2557/2006,
MA 2258/2006; OA 2558/2006, MA 2259/2006; OA 2559/2006,
MA 2260/2006; OA 2560/2006, MA 2261/2006; OA 2561/2006,
MA 2262/2006; OA 2562/2006; OA 2563/2006, MA 2264/2006;
OA 2564/2006, MA 2265/2006; OA 2565/2006, MA 2266/2006,
MA 1826/2008; OA 2566/2006, MA 2267/2006; OA 2567/2006,
MA 2268/2006; OA 265/2006; OA 283/2006, MA 1426/2008;
OA 127/2007; OA 724/2008; MA 1418/2008 in OA 70/2007;
OA 390/2008, MA 1995/2008.
This the 31st day of August, 2009
FULL BENCH
HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN
HONBLE SHRI LJUSTICE M. RAMACHANDRAN, VC(J)
HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
OA No.2546/2006
A. K. Jain S/O P. R. Jain,
R/O III/4/39, Gopi Nath Bazar,
Delhi Cantt. 110011. ... Applicant
Versus
1. Govt. Of NCT of Delhi through
Commissioner, Trade & Taxes,
Vyapaar Bhawan, I.P.Estate,
New Delhi.
2. Principal Secretary (Finance),
Delhi Secretariat, I.P.Estate,
New Delhi. ... Respondts
OA No.2200/2006
Vinod Kashyap S/O Nathu Ram,
R/O B-8, Officer Flats,
Central Jail, Tihar,
New Delhi. ... Applicant
Versus
1. Government of NCT of Delhi through
Principal Secretary (Home),
I.P.Estae, New Delhi-110002.
2. Director General (Prisons),
Near Lajwanti chowk,
New Delhi-110054.
3. Estate Officer,
Central Jail, Tihar,
New Delhi. ... Respondents
OA No. 2288 of 2006
D.J. Gupta,
S/o Shri S.C. Gupta
R/o 72, Vigyan Lok,
Delhi 110092 ... Applicant
Verus
Lt. Governor, Delhi
Raj Niwas
Delhi
The Chief Secretary
Government of NCT of Delhi,
Players Building, I.P. Estate,
New Delhi Respondents
OA No. 2544 of 2006
Shri Ram Bhajan, Peon,
S/o Late Shri Hari Singh, aged 46 years,
R/o 45, Village gazipur, P.O Kalyanpuri,
Delhi 110096 ... Applicant
Verus
Govt. of N.C.T.D,
Through Commissioner
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi
Joint Commissioner (Admn.),
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi Respondents
OA No. 2545 of 2006
Shri Phool Singh, U.D.C.
S/o Late Shri Bhadur Singh,
Age 51 Yrs,
R/o B-159, DA Flats Timar Pur,
Delhi ... Applicant
Verus
Govt. of N.C.T.D,
Through Chief Secretary,
Delhi Secretariat,
I.P. Estate, New Delhi.
Director of Education,
Old Secretariat,
Delhi Respondents
OA No. 2547 of 2006
Shri Shri Chand, U.D.C.
S/o Late Shri Munshi Lal,
Age 49 Yrs,
R/o T-321/8 Baljeet Nagar,
New Delhi ... Applicant
Verus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
2. The Principal Secretary (Finance)
Delhi Secretariat I.P. Estate,
New Delhi ... Respondents
OA No. 2548 of 2006
Shri Mushtaq Ahmed, Peon
S/o Shri Mohd. Ahamed,
Age 30 years,
R/o 870, Chandni Mahal Darya Ganj,
New Delhi ... Applicant
Verus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Joint Commissioner (Admn.),
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi ... Respondents
OA No. 2549 of 2006
Shri Jai Bhagwan S/O Boday Ram,
106, Gali No.5, Ambedkar Basti,
Maujpur, Dehi-53. Applicant
Verus
1. Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
2. Joint Commissioner (Admn.),
Trade & Taxes, Vyapaar Bhawan,
I.P.Estate, New Delhi. Respondents
OA No. 2550 of 2006
Ms Satwant Kaur, Steno,
F/o Shri Joginder Singh,
Age 39 years,
R/o RZF-763/16, Gali No.5,
Raj Nagar, part-II, Palam Colony,
New Delhi-110024 Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance)
Delhi Secretariat, I.P. Estate,
New Delhi ... Respondents
OA No. 2551 of 2006
Shri Ajay Kumar, Steno,
S/o Shri R.P. Malhotra,
Age 35 years,
R/o C-985, LIG Flats East of Loni Road,
New Delhi-110093 Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance)
Delhi Secretariat, I.P. Estate,
New Delhi Respondents
OA No. 2552 of 2006
Smt. Kiran Verma, Peon
W/o Shri Mukesh Kumar Verma,
Aged 38 years,
R/o H-139, DTC Colony, Rana Pratap Bagh,
Delhi Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes, Vyapaar Bhawan,
I.P. Estate, New Delhi.
Joint Commissioner (Admn),
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi Respondents
OA No. 2553 of 2006
Braham Singh, LDC,
S/o Shri Bhagwan Singh, Aged, 60 years,
R/o 107-A, Gali No.3, Behind Guru Dwara
Patel Marg, Sibban Pura,
Ghaziabad Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
The Director of Education,
Directorate of Education
Old Secretariat New Delhi Respondents
OA No. 2554 of 2006
Smt. Shashi Singh, ASTO,
W/o Dr Devender Singh, aged, 36 years,
R/o 746/7, Gondpuri, Kalkaji,
New Delhi Applicant
Versus
Govt. of N.C.T.D,
Through Lt. Governor of Delhi,
5, Shayam Nath Marg,
Vyapaar Bhawan, I.P. Estate,
Delhi.
Chief Secretary,
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2555 of 2006
Smt. Sohan Lal, U.D.C.,
S/o Shri Sundar Lal, age 39 yrs,
R/o 1788, GaliMandir Wali Chowk,
Shah Mubarik Bazar, Sita Ram,
Delhi-6 Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance),
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2556 of 2006
Shri Sanjay Dawar, Stenographer,
S/o Shri Daya Nand, aged 37 years,
R/o 19/6 A-I Double Storey,
Prem Nagar, P.O Janak Puri,
New Delhi Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance),
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2557 of 2006
Shri Ranjit Choudhary, Steno,
S/o Shri Ajay Ku. Choudhary, aged 31 years,
R/o 129, Girdhar Enclave Opp.
Devidaryal Apartment, G.T. Road,
Uttar Pradesh Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance)
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2558 of 2006
Shri Rajesh Singh, Steno,
S/o Late Shri Mal Singh, aged 40 years,
R/o 1628-A, Sector-29, Housing
Board Colony, Faridabad,
Haryana Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance)
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2559 of 2006
Shri Shamsher Singh, U.D.C,
S/o Shri Lal Singh, aged 47 years,
R/o Staff Qtr No.1,
Kasturba Niketan, Lajpat Nagar-II,
New Delhi-24 Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes, Vyapaar Bhawan,
I.P. Estate, New Delhi.
Principal Secretary (Finance)
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2560 of 2006
Smt. Geeta Malhotra, S.I,
W/o Shri Parvesh Malhotra,
R/o F-2/145-146, 1st Floor,
Sector-16, Rohini,
Delhi-85 Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance)
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2561 of 2006
Shri Yad Ram Yadav, S.A,
W/o Late Shri R.K. Yadav, aged 51 years,
R/o 885, Bawan,
Delhi-39. Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
Principal Secretary (Finance)
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2562 of 2006
Shri K.S. Yadav, ASTO
S/o Kashi Ram yadav, aged 50 years,
R/o 743/34, Near Atul Kataria Chowk,
Sukhrali Enclave, Gurgaon,
Haryana Applicant
Versus
Govt. of N.C.T.D,
Through Lt. Governor of Delhi,
5, Shayam Nath Marg,,
Delhi.
Chief Secretary
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2563 of 2006
Shri Ganpat Singh, S.A.
S/o Late Shri Sanna Singh, aged 55 years,
R/o A-36*, Chanakya Place,
Gali No.13, 25 floot road,
Part-I, New Delhi 110056 Applicant
Versus
Govt. of N.C.T.D,
Through Commissioner,
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi.
The Principal Secretary (Finance)
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 2566 of 2006
Shri Prabha Joshi, ASTO,
W/o Late Shri B.D. Joshi, aged 53 years,
R/o BH-16, West Shalimar Bagh,
Delhi Applicant
Versus
Govt. of N.C.T.D,
Through Chief Secretary,
Delhi Secretariat
I.P. Estate,
New Delhi.
Commissioner
Trade & Taxes,
Vyapaar Bhawan, I.P. Estate,
New Delhi. Respondents
OA No. 2567 of 2006
Ms Swaran Gujral, ASTO,
W/o Shri S. Samphran Singh, aged 52 years,
R/o B-12, Tagore Garden Extn.
New Delhi-27 Applicant
Versus
Govt. of N.C.T.D,
Through Honble Lt. Governor,
Delhi.
Chief Secretary,
Delhi Secretariat,
I.P. Estate,
New Delhi. Respondents
OA No. 265 of 2006
Krishan Kumar
Warder (659)
Central Jail Tihar Applicant
Versus
Govt. of NCT of Delhi through
Principal Secretary (Home)
I.P. Estate,
New Delhi-110002.
The Director General (Prisons)
Prisons Head Quarters,
New Delhi 110064 Respondents
OA No. 724 of 2008
Mrs. Veena Anand
W/o Sh. Ashok Anand
R/o C-9/9425, Vasant Kunj,
New Delhi. Applicant
Versus
Govt. of NCT of Delhi through
Its Chief Secretary
Players Building, I.P. Estate,
New Delhi.
Commissioner (Trade & Taxes),
Vyapar Bhawan, New Delhi,
The Principal Secretary (Finance),
Appellate Authority
Govt. of NCT of Delhi
Delhi Secretariat, I.P. Estate,
New Delhi ... Respondents
OA No. 390 of 2008
H.R. Kapoor
S/o late Shri R.N. Kapoor
R/o 90/85-B, Ground Floor,
Malviya Nagar,
New Delhi - 110017 Applicant
Versus
Union of India
Through Secretary
Ministry of Home Affairs
North Block,
New Delhi
Under Secretary to
the Government of India
Ministry of Home Affairs
North Block,
New Delhi
Joint Secretary (UT)
Ministry of Home Affairs
North Block,
New Delhi
Government of N.C.T. of Delhi
Through its Chief Secretary,
Delhi Secretariat,
I.P. Estate
New Delhi
Union Public Service Commission
Through its Secretary
Dholpur House,
New Delhi ... Respondents
OA No.2564 of 2006
Shri Amar Singh, Peon,
S/o Shri Girver Singh, aged 45 years,
R/o D-244, Moti Bagh I,
New Delhi 21 Applicant
Versus
Govt. of NCTD,
Through Commissioner
Trade & Taxes,
Vyapaar Bhawan, I.P.Estate,
New Delhi.
2. Joint Commissioner (Admn.),
Trade & Taxes,
Vyapaar Bhawan, I.P.Estate,
New Delhi Respondents
OA No.2565 of 2006
Braham Singh, Peon,
S/o Shri Bhagwan Singh, aged 60 yrs.,
R/o 107-A, Gali No.3, Behind Guru Dwara,
Patel Marg, Sibban Pura,
Ghaziabad, UP Applicant
Versus
1. Govt. of NCTD,
Through Commissioner,
Department of Trade & Taxes,
Byapar Bhawan, I.P.Estate,
New Delhi.
2. The Joint Commissioner (Admn.),
Department of Trade & Taxes,
Byapar Bhawan, I.P.Estate,
New Delhi. Respondents
OA No. 283 of 2006
Digamber Singh
Ex.Warder (599)
Central Jail, Tihar
New Delhi 110 064. Applicant
Versus
1. Govt. of NCT of Delhi through
Principal Secretary (Home)
I.P.Estate,
New Delhi 110 002.
2. The Director General (Prisons)
Prisons Head Quarters,
New Delhi 110 064. Respondents
O.A. No.127 of 2007
Shri C.P. Yadav, Peon,
Aged 35 yrs.
R/o House No.640, Gulabi Bagh,
Delhi 110 007 Applicant
Versus
1. Govt. of NCTD,
through Commissioner,
Department of Trade & Taxes,
Bypar Bhawan, I.P.Estate,
New Delhi.
2. Joint Commissioner (Admn.)
Byapar Bhawan, I.P.Estate,
New Delhi Respondents
O.A. No.70/2007 of 2007
Ms.Ashwani Kumari, aged 42 years,
D/o Shri Harbans Lal,
Ex. Dy.SP Gr.II, Tihar Jail,
R/o H.No.C-22,
Tihar Jail, New Delhi Applicant
Versus
1. Govt. of NCT of Delhi through,
The Lt. Governor,
Rajniwas
Delhi.
2. The Chief Secretary,
Govt. of NCT of Delhi,
I.P.Estate, New Delhi 110 002.
New Delhi 110 064.
3. The Director General (Prisons)
Prisons Head Quarters,
Near Lajwanti Chowk,
New Delhi -110 064. Respondents
Sh. P.P. Khurana, Sr. Advocate with Sh. A. K. Behera, Sh. Sachin Chauhan and Shri Kamal Khurana, counsel for the applicants in OA Nos. 2546, 2200, 2544, 2545, 2547, 2548, 2549, 2550, 2551, 2252, 2553, 2554, 2555, 2556, 2557, 2558, 2559, 2560, 2561, 2562, 2563, 2564, 2565, 2566, 2567 of 2006 and OA No.127/2007.
Sh. G.D. Gupta, Sr. Advocate with Sh. S.K. Sinha, Counsel for the applicants in OA No. OA 265/2006 and OA 283/2006.
Sh. Arun Bhardwaj, counsel for applicants in OA No.2288/2006.
Sh. Shyam Babu, counsel for applicants in OA No. 390/2008.
Sh. S.C. Luthra, counsel for applicant in OA No.70/2007.
Sh. Ajay Kumar Sharma, counsel for applicant in OA No.724/2008.
Sh. Rakesh Khanna, Sr. Advocate with Sh. Ajesh Luthra and Ms. Shailja, counsel for respondents in OA Nos. 2546/06; 2288/06; 2544/06; 2547/06; 2548/06; 2549/06; 2550/06; 2551/06; 2252/06; 2553/06; 2554/06; 2555/06; 2556/06; 2557/06; 2558/06; 2559/06; 2560/06; 2561/06; 2562/06; 2563/06; 2564/06; 2565/06; 2566/06; 2567/06; 127/07; 724/08; 390/08.
Sh. Rakesh Khanna, Sr. Advocate with Sh. Vijay Pandita, counsel for respondents in OA Nos. 2200/06, 265/06, 283/06 and MA1418/2008, OA 70/07.
Ms. Simran for Mrs. Avnish Ahlawat, counsel for respondents in OA Nos. 2544/06 and 2545/06
Mr. R.V. Singh with Sh. K.M. Singh, Counsel for respondents in OA No. 390/2008.
O R D E R
Justice V. K. Bali, Chairman:
The news channel Aaj Tak organized or conducted two sting operations one at the Tihar Central Jail, and the other at the Department of Trade & Taxes, Government of NCT of Delhi. Whereas, the sting operation was conducted at the Department of Trade & Taxes on 8th March, 2005, the one at the Tihar Central Jail was conducted within less than two months therefrom, i.e., on 4th May, 2005. The applicants belonging to the Department of Trade & Taxes, it is the case of the respondents, were seen accepting bribe in the news item that was telecast on Aaj Tak over the television in the programme Vishesh with the caption Ghoose mahal on 8.3.2005 at about 9.30 p.m., whereas those belonging to Tihar Central Jail were seen accepting bribe by the said news channel in the programme Tihar Jail bana ghoose mahal telecast on 4.5.2005 at about 9.30 p.m. From the news item as referred to above, and also from the respective compact disc (CD)/video tapes which were watched, the concerned authorities invoking provisions of clause (c) of the second proviso to Article 311 (2) of the Constitution of India, dismissed number of employees of both the departments. Presently we are dealing with 31 employees belonging to the Department of Trade & Taxes and the Jail department. All these matters need to be disposed of by a common judgment as same question of law, and same/similar facts are involved in all the cases. The learned counsel representing the parties have also suggested likewise. Before we may, however, give the factual matrix of the two sting operations culminating into the impugned orders passed by the disciplinary and appellate authorities, we may mention that five Original Applications bearing OA Nos.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005 pertaining to sting operation in Tihar Jail leading to similar orders of dismissal of employees of the said department being passed, came to be disposed of by a Division Bench of this Tribunal vide order dated 13.4.2006. The concerned OAs, by a speaking and detailed order, were dismissed. Pertaining to the same sting operation in Tihar Jail, another OA No.778/2006 in the matter of R. D. Bohet v Lt. Governor of Delhi & Others, came to be disposed of by a co-ordinate Bench of this Tribunal vide order dated 24.11.2006. Respondents in the said OA, for its dismissal, relied upon the judgment of the co-ordinate Bench of this Tribunal in OAs referred to above decided on 13.4.2006. The Honble Bench, however, held the precedent of the co-ordinate Bench as sub silentio and did not thus choose to refer the matter to a larger Bench. The said OA was allowed. In the scenario that thus emerged, when these matters came up for hearing before this Tribunal, the Bench then seized of the matter on 8.12.2006 in OA No.2546/2006 passed the following order:
Heard Sh. Sachin Chauhan, learned counsel for the applicants, at length in support of the application.
On the issue raised in this OA, there are two divergent views expressed by two Division Benches of this Tribunal. In one such order passed in Shri Devi Dayal Bharti etc. etc. v. Govt. of N.C.T. of Delhi & Ors., the Tribunal had taken a view that the applicability of Article 311(2)(b) was proper on the basis of which the applicants therein would have been dismissed whereas in another case, diametrically opposite view has been taken by another Bench of this Tribunal, without referring to a Larger Bench, in R. D. Bohet v. Lt. governor of Delhi & Ors. (OA No.778/2006).
In the aforesaid background, it would be appropriate to refer the matter to a Larger Bench to settle the issue once for all to avoid future controversy insofar as judicial precedent is concerned.
Issue notice to the respondents, returnable on 24.01.2007. Meanwhile, similar OA No.2200/2006 came up for hearing before a Division Bench, which vide order dated 19.1.2007, referred the matter to the Full Bench by framing the following questions:
i) Whether view taken by the Division Bench of this Tribunal in OA 2884/2005 decided on 13.04.2006, be sustained in law or view taken by another Division Bench allowing OA 778/2006 on 24.11.2006? Which of the judgment has to be taken as law and precedent on the subject? and
ii) whether a subsequent coordinate Bench could have taken a contrary view without making a reference to Larger Bench particularly in view of the law laid down in SI Roop Lal vs. Lt. Governor of Delhi (2000) 1 SCC 644. In OA No.2546/2006 the concerned Bench, vide order dated 1.2.2007 while observing that OA No.2200/2006 had since been referred to Full Bench, also referred the matter to Full Bench by framing the following two more questions:
i) whether in the facts and circumstances of the case, the power conferred by clause (b) of the second proviso to Article 311 (2) of the Constitution read with Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1985 can be justifiably invoked and the impugned order sustained;
ii) whether the O.A. is maintainable in the light of the alternative remedy having not been exhausted. On 18.7.2007, learned counsel representing the parties, ad idem, stated that inasmuch as identical issue is pending adjudication before the Honble Delhi High Court, hearing in these connected cases be adjourned awaiting the decision of the High Court. The writ pending on the same subject in WP(c) No.721/2007 is stated to be against the order recorded by the Division Bench in OA No.778/2006. Hearing in all these matters was adjourned sine die with liberty to apply for revival after the decision of the Delhi High Court. However, a misc. application in OA No.2546/2006 came to be filed for revival of the proceedings adjourned sine die vide order dated 18.7.2007. Variety of grounds were pressed into service for reviving the OAs. It was inter alia urged that number cases are pending adjudication in this Tribunal and there is no clear indication as to when the matters pending in the Honble High Court are likely to be disposed of. It was also stated that application moved before the Honble High Court for preponement of the date had been dismissed. It was further urged that for purpose of disposal of the matters pending before the High Court, it may have the advantage of the view of the Full Bench on the concerned issue. There was no serious objection to the revival of the OAs. The same were thus revived. We may add another reason for reviving the cases and the same is that when there are two diametrically opposite views of this Tribunal on the same subject, it is desirable that within the Tribunal, the issue should be finalized and thus given a quietus.
2. Insofar as, question No. i) framed for adjudication by the Full Bench in OA No.2200/2006 is concerned, the same would not require any discussion, as surely, the Full Bench has been constituted only for the purpose of finding out as to which of the two judgments reflecting opposite views, has to be taken as the law and precedent on the subject. Insofar as, the second question framed in OA No.2200/2006 is concerned, we may mention that no arguments were addressed by the learned counsel representing the parties, presumably for the reason that it was clearly understood by the counsel that a subsequent co-ordinate Bench could not have taken a contrary view without making a reference to the larger Bench. We may only mention that the Honble Bench in OA No.778/2006 ignored the decision of the coordinate Bench dated 13.4.2006 in OA Nos.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005, by holding the view taken in the said cases to be sub silentio, which means that some statement on law came to be made when there was no issue on the said subject nor any discussion. Such was not the situation at all. The facts were not identical, but exactly the same. The primary issue involved was obviously of dispensing with the enquiry, the ground for which was the same in either of the cases. Simply because, if in view of a Bench later seized of the matter, the co-ordinate Bench earlier in point of time had not made an elaborate discussion or not referred to some of the judicial precedents, which obviously were not on the same facts as in the present cases, the earlier decision of the Bench could not be said to be sub silentio. We may mention that it remained undisputed during the course of arguments that in the facts and circumstances of the present case the right course for the Honble Bench that decided OA No.778/2006 was to have referred the matter to a larger Bench. Even though, the counsel representing the respondent would rely upon the judgment recorded by the Honble Bench in OA Nos.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005, but even they would urge that if a view different than the one reflected in OA No.778/2006 was to be taken, the right course was to refer the matter to the larger Bench. In view of the stand taken by the learned counsel for the parties as mentioned above, there would be no need for us to refer to judicial precedents in support of the proposition that OA No.778/2006 ought to have been referred to the larger Bench. We are of the considered view that the view of this Tribunal in OA Nos.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005 could not be ignored by observing that the said judgment is sub silentio. It is indeed not so. Even the propriety required the matter to be referred to the larger Bench. We would not further elaborate and leave the discussion at that.
3. Facts are brief, but contentions raised by the learned counsel representing the parties are manifold and have been strenuously urged. Insofar as, the cases pertaining to the Department of Trade & Taxes are concerned, we have extracted the facts from OA No.2546/2006 in the matter of A. K. Jain v Government of NCT of Delhi, and insofar as, the facts pertaining to the Jail department are concerned, the same have been extracted from OA No.2200/2006 in the matter of Vinod Kashyap v Government of NCT of Delhi.
4. A. K. Jain, applicant in OA No.2546/2006, was originally appointed as grade IV (DASS) with the Government of NCT of Delhi in the year 1979 and thereafter promoted to grade III (DASS) (UDC). It is his case that he has always rendered his duties efficiently and diligently, and that he has an unblemished service record with no major or minor punishment. He was placed under suspension vide office order dated 9.3.2005 and FIR No.12/2005 came to be registered against him amongst others, u/s 7, 12 and 13 of the Prevention of Corruption Act, 1988 read with Section 120-B IPC, with PS Anti Corruption Branch, Old Secretariat, Delhi. He was reinstated on 11.8.2006 and again placed under suspension vide order dated 25.8.2006 in the said case. He was also arrested in connection with the FIR aforesaid. He was dismissed from service by the disciplinary authority by invoking power under Article 311(2)(b) of the Constitution, vide order dated 8.9.2006. He filed an appeal and while the same was pending, he filed the present Application. During the pendency of the Application, his appeal has since been dismissed by the appellate authority vide order dated 23.10.2007. These are the orders under challenge in the present Application. The impugned order dated 8.9.2006 recites that on 8.3.2005 at about 9.30 p.m. a news item was telecast by the TV channel Aaj Tak in the programme Vishesh with the caption Ghoose mahal. The applicant was shown accepting money in lieu of favours to be extended either to the dealers registered with the department or those approaching on their behalf, in contravention of the provisions of Delhi Sales Tax Act, 1975/Central Sales Tax, 1956 read with the provisions of Central Civil Services (Conduct) Rules, 1964. He was placed under suspension vide order dated 9.3.2005. An FIR under various provisions of the Prevention of Corruption Act and Indian Penal Code came to be registered against him. He was reinstated and again placed under suspension and was also arrested in connection with the FIR referred to above. It is further recited that the misconduct indulged in by the applicant was in violation of sub-rule (1) of rule 3 of the Rules of 1964. The misconduct on his part was stated to be clearly indicated by the interaction and the following conversation between him and the bribe giver, as shown in the programme Vishesh on the channel Aaj Tak on 8.3.2005:
Bribe giver Ek-ek karke late hain (whispers not audible).
AK Jain Zyda nahin hain.
Bribe giver Voice not audible.
AK Jain Delay nahin hoga, usko to dene hi dene hain, kehna maan liya karo, kar do, nahi hai zayada mera naam le de na kam pade to sare le jaana. The applicant was shown as accepting bribe from the bribe giver. The above conduct and conversation of the applicant, it is stated, would establish that he had expressed his ready willingness to extend unauthorized and illegal favours in lieu of monetary consideration which would amount to grave misconduct. It is also mentioned that the identity of the applicant had also been established by the Deputy Commissioner Zone-VIII, Department of Trade & Taxes as per his report dated 9.3.2005, and the arrest report dated 24.5.2008 of ACP, ACB, GNCTD, and the video footage indicated that the money thus paid was for extending unauthorized and illegal favours to the dealers in violation of the provisions of the Delhi Sales Tax Act, 1975 and Central Sales Tax, 1956 and the rules framed thereunder. It is further recited that it was clear that the applicant was not receiving money genuinely owed to him and the overwhelming presumption that could be drawn therefrom was that the applicant was receiving illegal gratification as consideration in lieu of assurances to carry out various unauthorized and illegal favours which could not have been by way of (a) payment of his salary; (b) his receiving loans; (c) his receiving back loans or other money owed to him; and (d) due to other genuine and other reasonable ground, and thus there was preponderance of probability which would indicate that money was accepted as illegal gratification. The applicant, it is stated, being an employee of a sensitive department like the Department of Trade & Taxes, was all the more expected to conduct himself with a high standard of integrity and honesty, which he did not do. It is stated that accepting cash for unauthorized and illegal favours would completely undermine the faith of public in the rule of law and the Government would suffer serious loss of image, and that the nature of misconduct on the part of the applicant was very serious. The applicant was dismissed from service. Insofar as, dispensing with the enquiry is concerned, it is recited as follows:
AND WHEREAS the TV channel Aaj Tak vide their letter dated April 19, 2005 addressed to the Addl. Secretary, Directorate of Vigilance, GNCTD has informed that as a policy, the company does not allow any of its personnel including reporters, journalists etc. to join investigation of any kind of who have performed their onerous duty in the public interest to inform the public the ill-wills in the society. Moreover, Channel Aaj Tak being a 24x7 channel, they cannot afford any of their journalists/reporters to join any investigation as they are busy in news and current affairs matters. In view of this, I am satisfied that it is not reasonably practicable to hold any departmental inquiry as during such departmental proceedings, had such an inquiry been ordered, such crucial witnesses as the reporters/journalists of Aaj Tak TV Network would not have appeared for tendering evidence and without their active assistance in the matter of conduct of inquiry, no meaningful inquiry could have been held. The appeal preferred by the applicant against the order aforesaid has since been dismissed vide order dated 23.10.2007. The appellate authority heard the applicant on two occasions, i.e., on 8.2.2007 and 19.10.2007. The CD of the sting operation was viewed in the presence of the applicant on 19.10.2007. After referring to some of the grounds taken by the applicant in appeal, the appellate authority observed that it had considered the relevant records, the order passed by the disciplinary authority, the concerned CD and the submissions made in appeal, and had taken into consideration the circumstances due to which the disciplinary authority could not hold formal departmental enquiry. After observing that every public servant has to conduct himself with high standard of integrity and honesty, it has been further observed that the applicant failed to do so as was obvious and undisputed while looking at the CD which would show him accepting bribe. It has also been observed that the applicant had not disputed his identity in the CD nor did he offer any other credible explanation, except insisting that the sting operation records should not be acceptable as proof, and further that the admissibility of TV channel recording as evidence would be dependent on the bona fide circumstances surrounding the case. Reliance has been placed upon a judgment of the Honble Supreme Court in Sajidbeg Asifbeg v State of Gujarat [SLP (Crl.) No.130/2007]. It is then observed that more than 30 officials were depicted taking bribes and, therefore, as a measure of deterrence, exemplary action was called for and justified, and that such action could be taken under Article 311 of the Constitution of India. Insofar as, dispensing with the enquiry is concerned, it is mentioned that the channel Aaj Tak had taken a stand that as a matter of policy it did not allow any of its personnel to join investigation of any kind. This has been stated to be adequate reason for dispensing with the enquiry. In paragraph 10, it has been observed as follows:
10. This is one of those rare cases in which, I am of the opinion that a formal inquiry was not practicable but circumstances of depiction of acceptance of illegal gratification in the office is apparent and self established.
5. Insofar as, OA No.2200/2006 is concerned, Vinod Kashyap, the applicant, was appointed as Assistant Superintendent, Central Jail, Tihar, Delhi in the year 1989. It is his case that he had always performed his duties with utmost devotion, sincerity and honesty, and that he was given cash awards by the competent authority, i.e., Director General of Prisons, and that he has to his credit as many as 50 rewards/honorariums for his meritorious service. It is further his case that in the year 1999 he risked his life to prevent a riotous situation in Jail No.5 and was recommended for conferment of Presidents award (gallantry reward) and out of turn promotion; he was, however, denied out of turn promotion out of bias of certain jail officials. He had challenged his non-promotion to the post of Deputy Superintendent Grade-II before this Tribunal, and his OA No.639/2002 in that behalf was allowed vide order dated 1.8.2005. One Shri Ravi Sharma, it is then the case of the applicant, along with his co-accused was previously lodged in Jail No.5 under the charge of the applicant in connection with FIR No.194/97 u/s 302/307/34 IPC, PS Dabri. He was admitted as an under trial in the jail on 6.4.1997 and finally released on bail on 15.2.2001. In between he was granted interim bail on four occasions. He is presently a correspondent with the news channel Aaj Tak. He was later on acquitted by the court, although his co-accused were found guilty. While the applicant was posted at Jail No.5, the said Ravi Sharma alias Ravinder was lodged in Jail No.5. It is the case of the applicant that he being a strict officer became the eyesore of many prisoners including Ravi Sharma, who later on joined Aaj Tak as a crime reporter and along with certain officers of the Jail department hatched a conspiracy to malign the image of the applicant. He allegedly undertook a sting operation and a video recording of the same was telecast on Aaj Tak on 4.5.2005. It is pleaded that the applicant is in possession of the CD recorded by him from TV telecast on 4.5.2005 and 5.5.2005 and is prepared to play it in the Court. Vide order dated 27.9.2005, which was served on the applicant on 29.9.2005, the disciplinary authority, i.e., Director General of Prisons, dismissed him from service. It is the case of the applicant that Ravi Sharma is openly taking credit of the sting operation, and even during second week of December, 2005, the CD was again telecast and Ravi Sharma took the entire credit for the operation by projecting himself as a crusader against the corruption rampant in Government departments. Aggrieved of the order aforesaid, the applicant preferred an appeal, which has been rejected vide order dated 2.2.2006 even though, considering his meritorious service record, the punishment has been reduced to that of removal from service. These are the orders that have been challenged in the present Application.
6. The impugned order dated 29.9.2005 recites that on 4.5.2005 at about 9.30 p.m. a news item was telecast on Aaj Tak with the caption Tihar Jail bana ghoose mahal, and that the applicant, an Assistant Superintendent posted at Jail No.7, was shown accepting money in lieu of favours to be extended either to prisoners lodged in jails or to those intending to meet them, in contravention of the provisions of the Delhi Prisons Act, 2000 and the rules framed thereunder, read with the Delhi Jail Manual. He was placed under suspension vide orders dated 4.5.2005, and a case FIR No.25/2005 dated 5.5.2005 came to be registered against him, amongst others, u/s 7, 12 and 13 of the Prevention of Corruption Act, 1988, PS ACB, Old Secretariat, Delhi. Section 9 of the Delhi Prisons Act, 2000 and rule 145 of Delhi Prisons (Inspection, Meetings and Duties of Officers) Rules, 1988 have been reproduced in the impugned order. The misconduct of the applicant is stated to be clearly indicated by the following transaction between him and the reporter of Aaj Tak as shown in the programme Vishesh by the said TV channel on 4.5.2005:
Vinod Kashyap Koi help ho to batana. Ghar yahin hai B-8, Saara group ban he gaya hai kabhi kisi time koi present ho to batana. Do main jana hai?
Aaj Tak Haan do main jaana hai.
Vinod Kashyap Main Bohet ko bata doonga.
Aaj Tak Mercedees hai mere paas maine kaha.
Vinod Kashyap Yahin khadi kar do, nahi to mere ghar kea age khadi kar do. The conversation quoted above, it is stated, would clearly establish that the applicant had expressed his ready willingness to extend undue facilities and conveniences in lieu of monetary consideration which would amount to grave misconduct on the part of a Government servant. The concerned authority then mentioned that it had seen the CD and further that the identity of the applicant had been established by a committee of three Jail officers constituted by the Director General (Prisons) vide orders dated 26.5.2005. On 2.6.2005, the committee had given its report. The video film, as per the disciplinary authority, indicated that money was thus paid for extending undue facilities and conveniences to persons visiting on prisoners in violation of provisions of the Act of 2000 and the rules made thereunder. The applicant is further stated not accepting money by way of (a) payment of his salary, (b) his receiving loans, (c) his receiving back loans/other money owed to him, and (d) due to any other genuine or reasonable ground. Reasons for dispensing with the enquiry, as mentioned, are same as mentioned in the impugned order passed by the disciplinary authority in OA No.2546/2006. Mention is then of sensitivity of the Jail department, and that given the propensity of the misconduct indulged in by the applicant, the very security of Tihar Jail could be jeopardized. Considering the sensitiveness and seriousness of the misconduct indulged in by the applicant, he was dismissed from service. The appellate authority, after referring to the background of the case and the salient features enumerated as (a), (b) and (c), took into consideration some other factors. The grounds, original and additional, taken by the applicant in his memorandum of appeal have even been mentioned. It is then recited that the applicant was given a personal hearing on 17.1.2006. The order passed by the appellate authority by and large is on the same lines/grounds as taken by the disciplinary authority, with some elaboration. Some relevant parts of the order, we may, however, reproduce, thus:
10. When it comes to the facts of the case, it cannot be denied that the news item telecast on the night of 4th May 2005 over the Aaj Tak channel under the caption of Tihar Jail bana Ghoos Mahal did occur, and it clearly showed the charged official accepting money. The order of the Director General (Prisons)/disciplinary authority further clearly mentions that a committee of three jail officials have established the identity of the charged official after going through the video footage. Not only this, the DG (Prisons)/disciplinary authority has also recorded in his order that he has himself seen the compact disc. Further there is also mentioned in the order of an incriminating conversation in the footage. In view of this the identity of the charged official is not in doubt in so far as the news item telecast at Aaj Tak on 4th May 2005 is concerned. 12. In so far as the cooperation with the jail authorities is concerned, it is observed from the records that the prison authorities had, in fact, written to the Aaj Tak channel, and the authorized signatories of TV Today network Limited by letter dated 11th May 2005 addressed to Director General of Prisons replied that the request of the Prison authorities cannot be agreed to for the following reasons:
As a policy their company does not allow their journalists/reporters to join investigation of any kind and that the reporters/journalists have performed their duties in public interest to inform the public.
Moreover the channel Aaj Tak is a 24x7 hours channel, and therefore, they cannot afford the absence of any journalists/reporters in any investigation as they are fully engaged in their operations. 13..It is difficult to construe from the telecast that there was any technical fabrication involved just to put the charged official down. It defies credibility to suggest that the charged officials action in receiving the money had either been fabricated or that he himself did not figure in the tape. The Committee of three senior jail officials have clearly confirmed that the charged official did indeed figure in the video tape that was telecast. Also 14 or 15 other officials of Tihar Jail. Similarly figured in the tape which was telecast the same evening and on the following evening also. This seriously dilutes, if not completely eliminates any suggestion of technical fabrication.
The simultaneous telecast of several jail officials including the charged official in such circumstances is important enough to lead to an over-whelming presumption that there is nothing wrong with the integrity of the telecast or its contents itself. 14. Given the fact that there was the categorical refusal of M/s Aaj Tak to participate in the departmental inquiry, the question before the disciplinary authority/Director General (Prisons) who is responsible for the administration and security of the jail was one of beginning a disciplinary proceeding against several officials including the charged official who figured in the telecast and initiating a protracted inquiry with the likely non-participation of crucial witnesses. The related question before him was whether or not these circumstances would only benefit the charged official and others like him in an undue and uncalled for manner, when there was an overwhelming presumption of indulgence and serious misconduct and wrong doing involving the acceptance of illegal gratification to extend favours. 16. On carefully going through the relevant Government instructions under Rule 19 of the CCS (CCA) rules 1965, it is observed that these are merely illustrative and the instructions themselves say so. These are not exclusive and do not exclude circumstances prevalent in the jail around the period the Aaj Tak telecast was made. Given the fact that well over a dozen jail employees were shown in the telecast accepting money as illegal gratification in lieu of favour of promise and there was an atmosphere not only of indiscipline but also lack of integrity prevalent at that time and this was not confined to the charged official alone, there was ample justification to invoke extraordinary provisions. Considering the meritorious service record of the applicant, as mentioned above, the applicant was, however, removed from service.
7. Before we may note the rival contentions of learned counsel representing the parties on the crucial issue, comment and adjudicate upon the same, we may make a mention of some developments that took place during the pendency of present Applications. On 4.3.2009, when the arguments were almost concluded, we directed the respondents to produce the unedited CD leading to the broadcast by Aaj Tak under the Vishesh programme titled Ghoosemahal Part-1 and Part-2 relating to Tihar Jail and Sales Tax, subject matter of present Applications. For some reasons as mentioned in our order dated 23.3.2009, the concerned CDs could not be produced and the matter was ordered to be listed for hearing on 15.4.2009. It, however, came up for hearing on 16.4.2009 when the CD, said to be unedited, pertaining to sting operation in Tihar Jail, as also the Video Cassette pertaining to sting operation in Sales Tax Department were brought in the Tribunal in sealed envelopes and the same were opened before us. The CD, to some extent, was watched by the Bench sitting along with the learned counsel for parties and the officials who had brought the same. Insofar as, the video cassette is concerned, the same could not be watched as the lead connecting the VCR and the TV was not available with the officials of the respondents. The matter was thus ordered to be listed on 17.4.2009. On the date aforesaid, we watched the video cassette to some extend with regard to sting operation in Sales Tax Department, and ordered the matter to be listed for 29.4.2009 for the learned counsel to make suggestions/arguments on the authenticity of C.D. and the video cassette. On the adjourned day, we passed the following order:
We had watched the Video Cassette and C.D. of both the sting operations, i.e., Tihar Jail and Sales Tax Department, on an earlier occasion. However, inasmuch as, there was some confusion as to which was the edited version and un-edited version, we have done the same exercise again today. For an hour or so we have watched the un-edited and edited Video Cassettes and CDs of both the sting operations of Sales Tax Department and Tihar Jail as well.
List these matters for further arguments on 12.5.2009 at 11.30 a.m. Arguments were heard and concluded on the date as mentioned above. While, however preparing the judgment, we thought that the matter needs some clarification/elaboration on certain points which may have bearing upon the controversy in issue. Vide orders dated 7.7.2009, after reproducing the brief factual background of the case, we required the respondents to file affidavits on the points referred to in the order. Relevant part of the said order reads thus:
2. Be it from the impugned orders or from the pleadings made, in particular by the respondents, we find that the original chip wherefrom the edited and unedited versions of the CDs might have been made, was not brought by the concerned officials. Surely, we had not even passed an order for production of the chip. The learned counsel representing the parties had also not made submissions with regard to the availability of the original chip, or for that matter, even that the edited and unedited versions of the CD/video tape were compared by any one with the original chip. We are prima facie of the view that the original recording would be contained in the chip. While preparing the judgment, we, however, thought it expedient, considering the factual aspect of the case, to find out as to whether the chip of two sting operations was ever handed over or passed on by the channel Aaj Tak to the two departments, or that the same is still lying with the TV channel, and if the chip was handed over to the departments by the TV channel Aaj Tak, whether the disciplinary authority or any one, be it a committee constituted or any other authority, ever compared the edited and unedited versions with the chip. We need not comment at this stage with regard to evidentiary value of the edited and unedited CD/video tape, even though we may mention that prima facie, we are of the view that the genuineness of the video film would be the first test. Primary evidence, it appears, would be the chip, similarly as in the case of a photograph, negative of the same would be primary evidence.
3. Before we may further proceed in this case, we would like to have the position clarified. That being so, we direct the respondents to file affidavits of responsible officers of both the departments referred to above as to whether the original chip from which the edited and unedited versions of the CD/video tape have been made, is available with them or the same is with the news channel Aaj Tak, and further as to whether any of the authorities in either of the department had compared the CD/video tape with the original chip. We may again mention that from the impugned orders what appears is that the orders came to be passed on watching the two programmes which were telecast by the said news channel, and/or from watching the CD/video tape.
4. List again on 15.07.2009. Copy of this order be given to the main counsel representing the parties under signatures of Court Officer today itself. Pursuant to our orders aforesaid, the respondents have filed respective affidavits. We may refer to the affidavit filed in OA No.2546/2006 in the matter of A. K. Jain only, as the affidavits with regard to both the sting operations are identical. In the affidavit filed by Jalaj Srivastava, Commissioner (VAT), it has been mentioned that the comments of Anti corruption Branch of Directorate of Vigilance were sought vide letter dated 8.7.2009 in the light of orders of this Tribunal dated 7.7.2009. In response thereto, Assistant Commissioner of Police, Anti Corruption Branch, Delhi vide his letter dated 10.7.2009 intimated the factual position and the exact sequence of events pertaining to Ghoose Mahal cases. A copy of the letter aforesaid has been annexed with the additional affidavit. Relevant extract of the said communication, however, is as follows:
During the course of investigation Shri Dheerender Pundir, Reporter, News Channel Aaj Tak TV Today Network Ltd., Delhi produced one Video Cassette of sting operation (Ghoose Mahal), before the I.O. which has taken in the possession, through seizure Memo, and statement of Shri Dheerender Pundir, Reporter, News Channel Aaj Tak, TV Delhi Today, Network Ltd., Videocon Tower, E-1, Jhandewalan Extension, New Delhi was recorded U/S 161 Cr.P.C. vide which he has stated that the Video Cassette of the sting operation Ghoose Mahal contains the recording of the all the 82 officials of Sales Tax Deptt. accepting bribe from the bribe givers in their office, without any fear and hesitation, many of them have negotiated before demanding and accepting the bribes with the bribe givers. This sting operation was shot by Shri Jalaj Kathuria, Cameraman of the News Channel, Aaj Tak by a Spy Camera in A.S.F. format. After that the recording was transferred in a DV tape and stored in the feed room of the News Channel in digital shape. The story of sting operation Ghoose Mahal was telecast on 8.3.2005 and 9.3.2005 by taking few footage from the digital storage in the feed room as per the scheduled time allotted for the telecast. The produced Video Cassette was prepared from the digital storage in the feed room which is absolutely unedited and nothing has been edited/deleted/altered/added in the cassette. He also stated that all the gadgets/instruments used for the sting operation Ghoose Mahal have been reused and as such News Channel do not have any record of the sting operation except the Video Cassette which the true copy of the sting operation prepared by the above stated mechanical device. It is then mentioned that the original chip of the said sting operation was not provided by the News Channel to the investigating officer due to reasons as mentioned above, and as such the video cassette could not be sent to CFSL for comparison with the original chip. However, the video cassette was sent to CFSL for voice comparison, which gave positive results. Since the chips are not retained by the channel after their use in the manner stated above, no chip of the recording of the programme Ghoose Mahal has been handed over or passed on by the Channel to the Government authorities.
What thus appears from the additional affidavit is that the reporter of the News Channel Aaj Tak during investigation had produced one video cassette of the sting operation before the investigating officer, which was taken into possession. Statement of Shri Pundir, Reporter, was recorded u/s 161 Cr.PC. In the said statement Shri Pundir stated that the video cassette of the sting operation contained recording of all the 82 officials of Sales Tax department accepting bribe in their office. The sting operation was shot by Shri Jalaj Kathuria, Cameraman, of the News Channel Aaj Tak in ASF format, and after that the recording was transferred to a DV tape and stored in the feed room of the Channel in digital shape. The story of the sting operation was telecast on 8.3.2005 and 9.3.2005 by taking some footage from the digital storage in the feed room as per scheduled time. He stated that the produced video cassette was prepared from the digital storage which was absolutely unedited and nothing had been edited/deleted/ altered/added in the cassette. He also stated that all the gadgets/instrument used for the sting operation had been reused and as such the Channel would not have any record of the sting operation except the video cassette, which, it is stated, is true copy of the sting operation prepared by the mechanical device as mentioned above. The original chip of the sting operation is stated to be not available now, nor was it available even at the time when statement u/s 161 Cr.PC of Shri Dheerender Pundir, Reporter, came to be recorded by the investigating officer. Surely, it was not even available having been reused, and it is conceded during the course of arguments, was not seen nor even compared with the provided edited/unedited video cassette.
9. The respondents pursuant to notice issued by this Tribunal, have entered appearance and by filing their counter reply, seriously contested the cause of the applicants. Insofar as, however, the basic facts as culled out from the two OAs referred to above are not much in dispute, there would be no need to refer to the pleadings made in the counter replies. The contest between the parties is primarily on legal issues. However, in the context of the submissions made by the learned counsel representing the parties, there may be need to refer to the facts, mention whereof shall be accordingly made.
10. The most crucial issue in this case is reasons dispensing with the enquiry. By virtue of Article 311 (2) of the Constitution, no member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges. Holding of an enquiry as sine qua non for dismissal, removal or reduction in rank, is, however, subject to the provisos or exceptions mentioned in clauses (a), (b) and (c) of sub-article (2) of Article 311. If the authority empowered to dismiss, remove or reduce in rank is satisfied that for some reason, which has to be recorded by the said authority in writing, it may not be reasonably practicable to hold such enquiry, the same can be dispensed with. The enquiry in the present case has been dispensed with. The reasons for doing so have been recorded in writing as well. The pertinent question, however, is whether the said reasons are such by which it was not reasonably practicable to hold an enquiry. We may advert to the impugned orders, be it pertaining to employees of the Trade and Taxes Department or the Jail Department, the only reason in addition to drawing an overwhelming presumption from the video footage for dispensing with the enquiry, is that the TV channel Aaj Tak vide their letter dated 19.4.2005 addressed to Addl. Secretary, Directorate of Vigilance, GNCTD, informed that as a policy, the company would not allow any of its personnel including reporters, journalists etc. to join investigation of any kind of who have performed their onerous duty in the public interest to inform the public the ill-wills in the society, and that, moreover, the channel Aaj Tak being a 24x7 channel, they could not afford any of their journalists to join any investigation as they are busy in news and current affairs matters. By observing as mentioned above, the disciplinary authority recorded its satisfaction that it was not reasonably practicable to hold a departmental enquiry and that had such enquiry been ordered, such crucial witnesses as the reporters/journalists of Aaj Tak TV Network would not have appeared for tendering evidence, and without their active assistance in the matter of conduct of enquiry, no meaningful enquiry could have been held. We will deal with the observations made in the earlier part of the judgment with regard to overwhelming presumption drawn from the video footage, in the later part of the judgment. Insofar as, however, the reason dispensing with the enquiry on the only ground of the information received by the disciplinary authority through letter dated 19.4.2005 that the company would not allow any of its personnel to join investigation of any kind, does not appear to be a reason which may sustain scrutiny of law. It appears that the disciplinary authority was totally oblivious of the provisions of law vested with the enquiry officer by the statute to enforce attendance of witnesses as also production of records/documents. Reference in this connection may be made to the Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1972 (hereinafter to be referred as the Act of 1972). The statement of objects and reasons of the Act would manifest that the Santhanam Committee recommended that powers to summon and compel attendance of witness and production of documents should be conferred on the inquiring authorities in departmental proceedings by suitable legislation. The Central Vigilance commission had also stressed the need for conferring such powers on the inquiry officers. Inquiry officers, it is mentioned, appointed to conduct departmental inquiries had no statutory powers to enforce the attendance of witness or to compel the production of documents, and that experience had shown that persons not in government employment are very unwilling to attend departmental inquiries and they try to avoid attendance on one plea or the other. It was, therefore, necessary to clothe the inquiring authorities with statutory powers to enforce the attendance of witnesses and production of documents. The Bill sought to achieve the said objects. By virtue of provisions contained in Section 2 of the Act aforesaid, provisions of the Act would apply to every departmental inquiry made in relation to (a) persons appointed to public services or posts in connection with the affairs of the Union; (b) persons who, having been appointed to any public service or post in connection with the affairs of the Union are in service or pay of (i) any local authority in any union territory, (ii) any corporation established by or under a Central Act and owned or controlled by the Central Government, (iii) any Government company within the meaning of Section 617 of the Companies Act, 1956, in which not less than fifty-one per cent of the paid-up share capital is held by the Central government or any company which is a subsidiary of such Government company, and (iv) any society registered under the Societies Registration Act, 1860, which is subject to the control of the Central Government. Departmental inquiry, as per clause (a) of Section 3 means an inquiry held under and in accordance with any law made by Parliament or any rule made thereunder, or any rule made under the provisions of Art. 309, or continued under Art. 313 of the Constitution of India, into any allegation of lack of integrity against any person to whom the Act would apply. Inquiring authority as per clause (b) of Section 3 would mean an officer or authority appointed by the Central Government or by any officer or authority subordinate to that Government to hold a departmental inquiry and includes any officer or authority who is empowered by or under any law or rule for the time being in force to hold such inquiry. Lack of integrity has been defined in clause (c) of Section 3 to include bribery or corruption. By virtue of provisions contained in Section 4, the Central Government has power to authorize the exercise of powers specified in Section 5. Section 5 authorizes the inquiring authority to enforce attendance of witnesses and production of documents. The Central Government has to issue notification in the official gazette authorizing to exercise powers specified in Section 5 in relation to any person within such class or category and thereupon the inquiring authority may exercise such power at any stage of the departmental inquiry. By virtue of Section 4(2) the power conferred on the Central Government by sub-section (1) may also be exercised by such authority, not being an authority inferior to the appointing authority in relation to the person against whom the departmental inquiry is being held, as the Central Government may, by notification in the official gazette, specify in that behalf. Vide DGP&Ts letter No.6/20/72-Disc.-I dated 23.11.1972 the Act of 1972 has been ordered to be added as a separate chapter (Chapter 8) under rule 14 of the CCS (CCA) Rules, 1965. We may reproduce the decision, which is in two parts one pertaining to adding of the Act of 1972 as a separate chapter under rule 14, and the other with regard to issuing ad hoc notification in respect of each departmental enquiry, which is to be issued by the Central Government, authorizing the enquiring authority to exercise powers specified in Section 5 of the Act of 1972:
1. A copy of the Departmental Enquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1972, is reproduced for information and guidance, as a separate chapter [Chapter 8].
2. It will be seen that Section 4 of the Act empowers the Central Government to authorize the Inquiring Authority in departmental enquiry to exercise powers specified in Section 5 to enforce attendance of witnesses and production of documents. The intention is that, an ad hoc notification in respect of a particular enquiry will be issued by the Central Government authorizing the Inquiry Authority conducting that enquiry to exercise powers specified in Section 5. In other words, for each departmental enquiry in which it is found necessary to invoke the provisions of the Act, a separate notification will be issued. We have checked up, and indeed under rule 14 of the Rules of 1965, the Act of 1972 has been added as a separate chapter (Chapter 8). Central Vigilance Commission issued a letter dated 2.11.2001 addressed to all Chief Vigilance Officers, on the subject of ensuring attendance of private witnesses in departmental enquiries. In para 2 of the said letter it is mentioned that provisions of the Act of 1972 can be taken recourse to in cases where there is possibility of private witnesses, who are required to provide crucial evidence, evading appearance before the enquiring authority, and that the Act is applicable to all enquiry proceedings where lack of integrity is a charge or part of a charge, and further that the enquiring authority authorized under the Act is conferred with the powers of a trial court to summon witnesses/documents, and such summons shall be served through a District Judge. The authorization to summon under the Act can be issued by the Central Government, and, therefore, wherever lack of integrity is a charge and witnesses have to be compelled to attend, a proposal will have to be made to the Central Government by the concerned enquiring authority for issuance of a notification conferring the power under the Act. Section 5 of the Act of 1972 dealing with power of authorized inquiring authority to enforce attendance of witnesses and production of documents, reads, thus:
5. Power of authorized inquiring authority to enforce attendance of witnesses and production of documents. (1) Every inquiring authority authorized under section 4 (hereafter referred to as the authorised inquiring authority) shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1980, while trying a suit, in respect of the following matters, namely:-
the summoning and enforcing the attendance of any witness and examining him on oath;
requiring the discovery and production of any document or other material which is producible as evidence;
the requisitioning of any public record from any court or office.
(2) Notwithstanding anything contained in sub-section (1), the authorised inquiring authority shall not compel the Reserve Bank of India, the State Bank of India, any subsidiary bank as defined in clause (k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959, or any corresponding new bank constituted under section 3 of the Banking companies (Acquisition and Transfer of Undertakings) Act, 1970, -
(a) to produce any books or account or other documents which the Reserve Bank of India, the State Bank of India, a subsidiary bank or the corresponding new bank claims to be of a confidential nature, or
(b) to make any such books or documents a part of the record of the proceedings of the departmental inquiry, or
(c) to give inspection of any such books or documents, if produced, to any party before it or any other person.
(3) Every process issued by an authorised inquiring authority for the attendance of any witness or for the production of any document shall be served and executed through to District Judge within the local limit of whose jurisdiction the witness or other person, on whom the process is to be served or executed, voluntarily resides or carries on business or personally works for gain, and, for the purpose of taking any action for the disobedience of any such process, every such process shall be deemed to be a process issued by the District Judge.
(4) Every authorised inquiry authority making any departmental inquiry under this Act shall be deemed to be a civil court for the purposes of sections 480 and 482 of the Code or Criminal Procedure, 1898. The inquiring authority, by virtue of provisions contained in Section 5 (a) would thus have power and jurisdiction to summon and enforce the attendance of any witness and examine him on oath. The mere letter written by the News Channel Aaj Tak that its employees would not appear in any investigation for the reasons stated by them, as mentioned above, and the conclusion drawn on the contents of the letter aforesaid that the employees of Aaj Tak would not appear in the departmental inquiry, are totally incorrect, and as mentioned above, have come into being perhaps being oblivious of the existence of the Act of 1972 and the provisions contained therein. The Division Bench of this Tribunal dealt with this issue in OA No2884/2005 and connected matters. Arguments based thereon, however, were repelled by observing thus:
.Under the aforesaid provisions, what can be done by the inquiry officer is that attendance of witnesses can be ensured besides compelling the concerned authority to produce the documents concerned. Mere presence of witness would not serve any purpose. Even if a witness is compelled to attend the enquiry proceedings, there is no rule, regulations or law under which he can be compelled to make a statement either favourable or otherwise. It is a well known saying that one can take a horse to water, but cannot make it drink. These observations, it appears, have been made without adverting to the provisions of the Act of 1972. As mentioned above, as per clause (a) of Section 5 of the Act, the power of the inquiring authority is not limited to compel attendance of witnesses. It certainly goes beyond that and the summoned witness can well be compelled to make a statement on oath. The inquiring authority, it is further made out from sub-section (1) of Section 5, has the same powers as are vested in a civil court under the CPC while trying a suit, in respect of the matters enumerated in clauses (a), (b) and (c), which pertain to summoning and enforcing of attendance of witnesses also. The power in relation to summoning and enforcing attendance of witnesses finds mention in Order XVI of CPC. Vide instructions issued by the Government of India relating to the Act of 1972, it has been clearly mentioned that the procedure laid down in Order XVI of CPC may be adopted mutatis mutandis for summoning and enforcing attendance of any witness and examining him on oath, etc., before a departmental enquiry. So much so, the standard draft forms for summoning of witnesses etc. have also been specified. That apart, even if, perhaps, the language of statute was not explicit and unambiguous as contained in various provisions referred to above, and it was perhaps only mentioned that the inquiry officer would have jurisdiction to summon and enforce attendance of witnesses, in our view, even then, it would imply examination of witnesses also. Witness means a person who has to depose. Once, a person is called as a witness, the only purpose of calling him is to depose or make a statement. The very power to summon and enforce attendance of a witness would inherently include the power to examine him as well. The coordinate Bench of this Tribunal in OA No.778/2006, it appears, correctly observed that Accordingly, nothing precluded the disciplinary authority to have summoned the reporters, journalists of Aaj Tak before taking an extreme view of the matter to dispense with the inquiry which has been done lightly without application of mind. Even though, while arriving at the conclusion aforesaid, it does not appear that the provisions of the Act of 1972 have been noted or discussed, but the conclusion arrived at, as extracted above, appears to be correct. We have no doubt whatsoever in our mind that in view of the provisions of the Act of 1972, fully detailed above, the inquiring authority would have every power and jurisdiction not only to enforce attendance of the relevant persons/employees of the Channel Aaj Tak as witnesses in the case, but also to call upon them to make their statement. The satisfaction of the disciplinary authority that it was not reasonably practicable to hold a departmental enquiry as crucial witnesses as reporters/journalists of the News Channel Aaj Tak would not have appeared for tendering evidence and without their active assistance in the matter, no meaningful enquiry could have been held, has to be held as totally incorrect, fallacious and arrived at in ignorance of law. Shri Rakesh Khanna, learned senior counsel representing the respondents, would have nothing to counter the contention raised by the learned counsel representing the applicants based upon the Act of 1972, but for to say that no notification was issued. We are unable to accept the plea raised by the learned counsel. The Act of 1972 would be clearly applicable to the situation in hand. The witnesses could be enforced to attend and depose. Resort to the provisions, of course, could be had only when an enquiry officer was to be appointed, and it is at that stage that a request was to be made to the Central Government for issuing notification conferring power on the enquiry officer as vested with him under the provisions of the said Act. Appointment of an enquiry officer was sine quo non for issuance of a notification, whereas the learned counsel representing the respondents would contend that only if notification was to be issued by the Central Government that the enquiry officer would have powers of the provisions contained in the Act of 1972. Even if we may agree with the contention of the learned counsel assuming it to be correct, there was no difficulty with the Government of NCT of Delhi to request the Central government to issue the requisite notification, which, in the facts and circumstances of the case, ought to have been allowed. We are, however, of the considered view that the concerned authorities were blissfully ignorant of the provisions of the Act of 1972. If, however, they knew about the same, then the reason to dispense with the enquiry that the employees of the TV channel Aaj Tak would not appear is totally incorrect and uncalled for. The respondents in that case have to be said to be in post haste to show exit door to all the employees, may be, under pressure of public created through media.
11. The power with the disciplinary authorities to resort to the provisions of the Act of 1972 and compel attendance of witnesses and examining them apart, even on facts, the reason to dispense with the enquiry that the company would not spare its employees to join any investigation, does not appear to be correct. The two sting operations were carried out by the TV news channel Aaj Tak on 8.3.2005 and 4.5.2005. The telecast of the news was on the same days when the sting operations were carried out. The very next day, the concerned officials were placed under suspension and criminal cases against them came to be registered. The orders dismissing the employees of the Trade and Taxes Department was passed by the disciplinary authority on 8.9.2006, whereas the appeal preferred by the employees was dismissed on 23.10.2007. Insofar as, the sting operation pertaining to Tihar Jail is concerned, the same was carried on 4.5.2005 and was telecast the very same day. The very next day, the employees were suspended and criminal cases were registered against them. They were dismissed from service on 27.9.2005, whereas the appeals of the employees were dismissed on 2.2.2006. The employees of Trade and Taxes department were dismissed from service after one and a half year of the incident and their appeals were dismissed more than two years from the date of sting operation. In the case of employees of the Jail department, the disciplinary authority passed order dismissing them from service after four months from the incident, whereas their appeals came to be dismissed after about nine months.
12. In OA No.265/2006 in the matter of Krishan Kumar v Government of NCT of Delhi & Others, a misc. application bearing MA No.2317/2006 came to be filed during pendency of the OA. The prayer in the misc. application is to permit the applicant to place on records additional affidavit. In the additional affidavit it has inter alia been pleaded that the same news channel had carried out a sting operation in respect of some officials of Delhi Police. In that connection SI (Exe.) Sobhen Barik was chargesheeted on 14.7.2005. He had made demand of Rs.50,000/- and the incident of demanding money was recorded by the channel Aaj Tak, which was so mentioned in the chargesheet issued against him. It is further mentioned that the charge against the SI was not only of asking for money but also of running from the camera after he realized that the conversation was being recorded. It was subsequently telecast by the TV channel and watched by public. Even though, the incident of demanding and accepting bribe was of 3.11.2004, SI Sobhen Barik was chargesheeted on 14.7.2005, far before at least the employees of the Trade & Taxes department were dismissed from service, and far before the appeals of the employees of the Jail department were dismissed. The disciplinary or the appellate authority knew or were at least supposed to know that by the time they passed their respective orders, an employee of the Police department was being proceeded departmentally on the allegations which could be proved only by those who carried out the sting operation and who were from the same TV channel Aaj Tak only. It is then pleaded in the additional affidavit that the correspondent who conducted the sting operation was Shri Dhirender Pundir, and his name was listed in the list of witnesses dated 14.7.21005 as PW-10. On 7.11.2005, Shri Pundir appeared and deposed in the departmental enquiry. By 7.11.2005, which is again the date before which in one case the disciplinary authority passed the order of dismissal, and in the other before the appellate authority dismissed the appeal. The concerned authorities knew or at least were supposed to know that despite the letter received by them from the company that its employees would not be spared to join any investigation, not only an employee of the Delhi Police was facing departmental enquiry, but also the correspondent of the news channel Aaj Tak had appeared as a witness in that enquiry. It is also pleaded that HC Ramesh of CRPF was on duty in Central Jail on the date of alleged sting operation, who is alleged to have allowed the car of the reporters inside the Jail, and was seen in the CD opening the main gate for allowing the car to enter after accepting money, but he has not been dismissed from service invoking provisions of Article 311(2). The disciplinary authority in his case, despite the facts being absolutely identical and despite letter of the company that its employees would not join any investigation, chose rather to proceed departmentally against HC Ramesh. No reply to this misc. application has been filed nor was any adjournment sought for doing so even during the course of the arguments as well. The facts stated in the additional affidavit are not in dispute. What thus, emerges from the facts as mentioned above is that the disciplinary authority of SI Sobhen Barik, despite similarity of the facts as also the allegations and the way and manner the same were to be proved, chose to hold a regular departmental enquiry, whereas on the same facts the disciplinary authorities, be it in respect of employees of Trade & Taxes department or the Jail department, have taken a contrary decision. What, however, would clinch the issue from the facts as mentioned above is that despite a letter written by the news channel Aaj Tak dated 19.4.2005 that its employees would not join any investigation, the fact is that they were cited as witnesses in the departmental enquiry and when summoned, did attend the hearing and deposed. At that stage at least, there should have been change in the thought process of the concerned authorities. Insofar as, however, the Police department is concerned, the orders of dismissal were passed far after the correspondent of the TV channel appeared as a witness. It is too well settled and reference in this connection be made to the judgment of the Honble Supreme Court in Union of India v Tulsiram Patel [(1985) 3 SCC 398] that if there be change in circumstances even during appeal, the decision to hold an enquiry can be taken even at that stage. Once the correspondent of the news channel appeared and deposed in the departmental enquiry in the case of employee of Delhi Police, there ought to have been change in the stand of the disciplinary authority in the present cases. The same would also hold good with regard to the employees of Jail department even though, at the stage of appeal.
13. We are also inclined to accept the contention raised on behalf of the applicants that the decision to dispense with the enquiry has been made post-haste and as a short-cut to give marching orders to the employees. In that context it may be noted that all the employees were suspended and criminal cases under Sections 7, 12 and 13 of Prevention of Corruption Act read with Section 120-B IPC were registered against them. The applicants have placed on records the list of witnesses, who had to be examined in the court seized of the criminal trial. Admittedly, those who carried out the sting operations are cited as witnesses. The statements of all these witnesses were recorded under Section 161 Cr.PC. They fully cooperated with the prosecution not only in making statement under Section 161 Cr.PC, but in supplying the material available with them as well. Even though, we are conscious that the provisions contained in Cr.PC are such that a person cannot refuse to be a witness if his evidence may be relevant in a criminal trial, and if he may refuse, he can be prosecuted as well, but the fact that those who carried out the sting operation were cooperating and despite the letter dated 19.4.2005 of the news channel Aaj Tak, had willingly made their statements and supplied the material, ought to have been a factor for consideration by the concerned authorities. Surely, if they were cooperating in criminal trial, there should have been no hesitation on their part to make statement in the departmental enquiry. In the circumstances as mentioned above, there ought to have been some efforts made to persuade the company to spare its employees to depose in the departmental enquiry. We are absolutely sanguine that those very employees of the channel Aaj Tak who had dared to carry out the sting operation of such dimensions and scale as the present one, would have not felt shy of making deposition before the enquiry officer. The authorities, however, even though would take in one case four months and in the other a year and a half to dispense with the enquiry, but never thought in that direction. It is conceded that no request was ever made to the channel Aaj Tak that in a case of this kind when those who daringly carried out the sting operation, were appearing in the criminal trial as witnesses, they should also be spared for some time to make their statements before the enquiry officer. Records of this case also reveal that almost on the heels of the TV telecast pertaining to the Jail department, the High Court of Delhi took suo motu notice of the matter and issued notice to the Chief Secretary, Government of NCT of Delhi; Director General (Prisons), Delhi; Secretary, Department of Justice, Ministry of Home Affairs, government of India. The notice was issued on 6.5.2005 for 24.5.2005. Notice was also issued to the producer of News Channel Aaj Tak C/o T.V. Today Network to produce before the court copy of the unedited and complete version of the telecast (audio and visual) on the subject. When the matter came up before the High Court on 24.5.2005, Shri Sushil Salwan, who appeared for T.V. Today Network, handed over copy of the edited CD which was telecast, and unedited CD with source masked to the learned standing counsel, Ms. Mukta Gupta, who stated that the CDs would be viewed and further appropriate action as required, would be taken. The CDs were ordered to be kept in safe custody subject to further directions. The order passed on 24.5.2005 as also the earlier order referred to above, would show that the High Court was mainly concerned with the security in Jail. Insofar as, the employees are concerned, it appears that action to be taken against them was left to the concerned authorities. The TV channel Aaj Tak when asked by the High Court to produce the material available with it, it promptly brought everything before the court. Once again, we are conscious that the directions issued by the High Court could be only disobeyed at the risk of contempt proceedings and, therefore, perhaps the TV channel had no option but for to obey the orders. What, however, emerges from the facts as mentioned above, is that the employees of T.V. Today Network were cooperating without any murmur and presenting themselves wherever required. This fact ought to have been taken into consideration by the concerned authorities, and we have no doubt in our mind that if all this factual background was taken into consideration, even a little effort made on the part of the concerned authorities for employees of the news channel Aaj Tak to cooperate would have succeeded. There does not appear to be any reason for employees of Aaj Tak not to appear before the enquiry officer when they were appearing and cooperating in every enquiry, investigation or trial. In the context of the facts and circumstances of this case, we are of the firm view that the reasons for dispensing with the enquiry were inadequate and wholly insufficient. The primary ground for dispensing with the enquiry as mentioned above, cannot possibly sustain. Once, we have returned a finding that the reasons for dispensing with the enquiry are an outcome of ignorance of law and against factual position in the context of the facts and circumstances of the case in hand, there may not be need to deal with the matter any further. However, inasmuch as, the learned counsel for the parties have referred to some case law on the subject, in all fairness, the same needs mention.
14. Learned counsel representing the applicants has referred to number of judicial precedents, but laid particular emphasis on some of them which may be very close to the facts of the present case. In that connection, reference is first made to a decision of this Tribunal in OA No.2362/2006 decided on 5.11.2007 in the matter of Ex. ASI Surinder Kumar v Union of India & Others. In short, the facts of the case aforesaid reveal that Surinder Kumar, ASI, was involved in a serious misconduct. On 7.2.2006 at 7.00 p.m. a sting operation was telecast on NDTV channel wherein it was shown that ASI Surender Kumar was interacting with one Mr. Anand, and was shown demanding and negotiating the amount of bribe. A wad of currency notes was shown being recovered from his bed, followed by a blurred vision of a scooterist escaping hurriedly from the police post. Thereafter, an interview of Mr. Anand and his family members was telecast wherein they leveled allegation against Surinder Kumar for causing harassment to them relating to arrest of accused Bhupinder @ Montee and Kapil. Surinder Kumar was dismissed from service invoking the provisions of Article 311(2) of the Constitution. The disciplinary authority dispensed with the enquiry by observing that it is common experience that due to terrorizing and intimidation, witnesses and complainant do not come forward to depose against the delinquent in departmental enquiries, and it calls for great courage to depose against such a police officer and the task becomes more acute and difficult where the delinquent is a police official who may use his job to influence their statements/deposition, and that the possibility of the victim being unduly pressurised and threatened also cannot be ruled out. It was also observed that the recording shown by NDTV would clearly show the misconduct of the ASI. Similar observations were made by the appellate authority while dismissing the appeal of Surinder Kumar against the order of dismissal from service. This Tribunal relying upon the judgment of the Apex Court in Sudesh Kumar v State of Haryana & Others [(2005) 11 SCC 525], as also other judgments referred to in the order, culled out guidelines or conditions precedent for dispensing with the enquiry. The impugned orders were set aside by observing that the reasoning that the possibility of the victim being unduly pressurized and threatened could not be ruled out, was a mere hogwash. It is no doubt true that insofar as, one of the reasons to dispense with the enquiry that the misconduct of the applicant was clearly shown on the TV channel, is concerned, the same was not dealt with, as surely, no arguments based thereon were raised. However, we find that the judgment of this Tribunal in Surinder Kumar was challenged by the respondents before the High Court of Delhi in WP (C) No.1758/2008, which came to be dismissed on 24.4.2008. The reason for dispensing with the enquiry that allegation against ASI Surinder Kumar was made out clearly from the recordings shown on NDTV, was dealt with by the High Court. We may reproduce the observations of the Honble High Court. The same read, thus:
In our opinion, it is reasonably practicable to conduct the departmental enquiry in the present case of sting operation. The department could have proved the charge against the respondent by examining the witnesses from NDTV who carried out the sting operation. We are further of the view that conducting of the departmental enquiry in sting operation is all the more necessary in order to rule out the possibility of any motivated action in sting operation. Whether such a sting operation was genuine or not has to be proved by cogent evidence and for this, it is not difficult to produce the material witnesses. [[[[ This Tribunal had occasion to deal with dispensing with the enquiry, once again, pertaining to a sting operation, in OA No.1586/2007 decided on 12.12.2007 in the matter of SI Sathyaraj v Government of NCT of Delhi & Others. Brief facts of the case aforesaid reveal that on 21.10.2003 an incident of suicide was reported in the area of PS S.N.Puri whereby one Himanshu Sharma had committed suicide by hanging at his residence. He was taken to hospital by his relatives, where he was declared brought dead, and an information to this effect was given by hospital authorities to PS S.N.Puri on the same day. A complaint was received regarding harassment to the relatives of the deceased by SI Sathyaraj alleging that the SI was demanding illegal gratification to handover the dead body and obtain a favourable postmortem report. This complaint was made by the relatives to NDTV, who tried to trap the SI on camera while accepting the illegal gratification. Later on, the matter was reported to the concerned authority, who in turn asked ACP/Lajpat Nagar to conduct an enquiry into the whole episode and also obtain the relevant video footage showing the SI accepting money from the complainant. Enquiry was conducted by the ACP who submitted his report substantiating the allegations against the SI. The enquiry officer recorded the statement of the complainant. The reporter from NDTV who had captured the SI on camera accepting money was also examined and the video footage was shown to the enquiry officer, which, according to the concerned authority, clearly established beyond doubt that some transaction did take place between the complainant and the SI in Patiala House court complex. When the SI was confronted by the reporter, he flatly denied having taken any money. However, the video footage with the reporter was held to be enough proof for substantiating charges against the SI. One of the reasons dispensing with the enquiry was also that the video footage obtained from the TV channel more than clearly established the guilt of the defaulter SI, thereby warranting no further enquiry. The orders passed by the disciplinary and appellate authorities were quashed by this Tribunal. While setting aside the orders, reliance was once again placed upon the judgment of the Honble Supreme Court in Sudesh Kumar v State of Haryana (supra). There may not be any discussion insofar as, the truth of allegations, based upon the sting operation, as one of the reasons dispensing with the enquiry is concerned, but surely, the observations made by the Honble High Court in WP(C) No.1758/2008 in Surinder Kumar (supra) would apply. We may make it clear that nothing based upon the sting operation and its authenticity and the truth or otherwise of the delinquency depicted there came to be debated in the two cases decided by this Tribunal as mentioned above. It was presumed that to go into the truthfulness or otherwise of the video recordings, or in other words, the allegation of misconduct against an employee brought out in the video recording, it had first to be held that the video tapes were authentic and there is no element of the same being tampered with or altered. If the authorities had not made the exercise of first finding the truthfulness or authenticity of the video tapes, there would be no argument based thereon with regard to the allegations depicted in the video footage being true. We are saying so as one of us (Justice V. K. Bali, Chairman) was a Member in both the decisions mentioned above.
16. Reliance upon video footage of the sting operation came up for direct discussion before this Tribunal in OA No.2353/2006 decided on 5.10.2007 in the matter of Constable Jagdish Kumar v Government of NCT of Delhi & Others. We held that the video film would come within the words and expressions used for document in Section 3 of the Indian Evidence Act, 1872, and the evidentiary value of video film shall have to be examined similarly as a document is examined. We held that It is too well known that documents would provide far better evidence than the oral evidence provided the authenticity of documents is beyond question. If, therefore, there may be a doubt with regard to the genuineness of a document, the same would have no evidentiary value. With regard to evidentiary value of video films, much case law is not available, but the genuineness of the video film would be the first test, and unless it is so proved, in our considered view, it may not have much evidentiary value. Raw footage of a video film seen by someone who is to appreciate the evidence may have some evidentiary value, but, the edited version of the video film cannot be made the sole basis for returning a finding. Unless, therefore, corroborated, it would have no evidentiary value. In Raja Ram Pal v Speaker, Lok Sabha & Others [(2007) 3 SCC 184], the Honble Supreme Court while relying upon the video film, observed that the concerned committee had taken care not to proceed on the edited versions of the video recordings and the committee insisted on raw video footage of different sting operations and drew conclusions after viewing the same. In the present case, the concerned authorities, which aspect we will deal with in the later part of the judgment, did not make any efforts to find out that the material provided to them so called edited and unedited versions of the sting operation, was genuine.
17. In Sudesh Kumar v State of Haryana & Others [(2005) 11 SCC 525], the Supreme Court was dealing with adequacy of reasons for dispensing with an enquiry. Reason for such satisfaction as stated was that the complainant being a foreigner may leave the country in the midst of the enquiry and that he was not likely to name the delinquent official during the departmental proceedings. Brief facts of the case reveal that Sudesh Kumar, appellant, was recruited as a constable in Haryana Police. At the relevant time he was holding the post of head constable and posted in the executive clerical branch at Gurgaon. On the basis of a complaint lodged by one Japanese national, investigation was carried out by Deputy Superintendent of Police, and on the basis thereof services of the appellant were terminated by resorting to the provisions of Article 311(2)(b) of the Constitution, dispensing with the enquiry. In the order terminating the services of the appellant, it was mentioned that a news item appeared in a Hindi daily on 1.12.1999 wherein reference was made to an allegation made by a Japanese national regarding bribe money paid by him for securing extension of his visa in Gurgaon. Deputy Superintendent of Police was asked to conduct an enquiry into the matter and to fix responsibility. The enquiry officer submitted his report in which he held the dealing hand HC Sudesh Kumar guilty of accepting bribe of Rs.2840/- from the Japanese national. Visa of the Japanese national was to expire on 21.12.1999 and he applied for extension of visa for a period of one year. He was made to pay a total of Rs.5000/- to the dealing clerk, out of which Rs.2160/- was the extension fee and rest of money was pocketed by Sudesh Kumar. The Japanese national was also threatened by him that in case of non-payment of bribe money, he (foreign national) would face difficulty and his case would not be favourably recommended. Only on payment of the bribe money, the case of the foreign national was processed and forwarded to Deputy Commissioner, Gurgaon. The enquiry officer also stated in the report that the foreign national refused to name the dealing clerk as he feared harassment, but the statement of ASI Shiv Dutt, in-charge, security branch, and ASI Lal Singh clearly revealed that it was HC Sudesh Kumar who was posted as foreign registration clerk in the district police office on 1.10.1999, and he had processed the visa extension case of the foreign national, and that he had also deposited the extension fee of Rs.2160/- in State Bank of Patiala. Therefore, there was no doubt whatsoever about the identity of Sudesh Kumar who accepted illegal gratification. It was also mentioned in the order that the Japanese national was likely to leave the country. Despite the facts as mentioned above, where the foreign national felt threatened and was leaving the country and thus, may not be available for making statement, the order of dismissal of the appellant was set aside.
18. In Tarsem Singh v State of Punjab & Others [(2008) 2 SCC (L&S) 140], the Honble Supreme Court held that subjective satisfaction of authority for dispensing with departmental enquiry must be based on objective criteria. The short facts of the case are that Tarsem Singh, a police constable, was charge-sheeted for commission of misconduct, viz., outraging modesty of a woman by entering her house along with his accomplices, having carnal intercourse against the law of nature with a migrant labourer by stuffing cloth in his month and causing threats of dire consequences to anyone deposing against him in an inquiry/ investigation. The concerned authority, on being satisfied that the constable could win over aggrieved people as well as witnesses from giving evidence by threatening or other means, dispensed with the formal departmental proceeding. Report of the preliminary enquiry conducted by the DSP was also taken into consideration to hold that regular departmental enquiry need not be held. While invalidating the orders, the Honble Supreme Court relied upon the following observations made in its earlier decision in Union of India v Tulsiram Patel [(1985) 3 SCC 398]:
Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. We will refer to reliance placed by the counsel representing both the parties on a recent decision of the Honble Supreme Court in Criminal Appeal No.1393 and 1451 of 2008 decided on 29.7.2009 in the matter of R. K. Anand & Another v Registrar, Delhi High Court, while we deal with the arguments based upon authenticity, reliability and genuineness of sting operations in the later part of the judgment.
19. As against the judgments as mentioned above, Shri Rakesh Khanna, learned counsel representing the respondents, would rely upon the judgments of the Honble Supreme Court in Kuldip Singh v State of Punjab [(1996) 10 SCC 659]; Sahadeo Singh & Others v Union of India & Others [(2003) 9 SCC 75]; Romesh Kumar Sharma v Union of India & Others [(2006) 6 SCC 510]; Director, Town Planning, Maharashtra & Another v Bhalchandra Vasantrao Kulkarni [(2006) 5 SCC 464]; and a. K. Sen, etc. v Union of India [AIR 1986 SC 335]. In Kuldip Singh (supra), a head constable of Punjab Police was dismissed from service invoking provisions of Article 311(2). Head constable Kuldip Singh, as per case of the State of Punjab, was found indulging in activities prejudicial to the efficient functioning of the police force, having close links with extremists and helping them by providing information of the police department. He was mixed up with extremists and had been found responsible for supplying information relating to the force. The concerned authority being satisfied that the circumstances of the case were such that it was not reasonably practicable to hold an enquiry, dispensed with the same. The appeal and the writ filed by the head constable were dismissed. One of the materials relied upon by the authorities was the case diary pertaining to a crime which contained the statement of the head constable, where he clearly stated about his association with certain named militants, the plot laid by them to kill Shri Harjit Singh, superintendent of Police, Taran Taran by placing a bomb and the manner in which they carried out the said plot. He also stated that he and his militant companions planned to plant a bomb in the office of SSP, Taran Taran but the police officers came to know of the said plan, thus foiling the same. This admission, even though not admissible as per Sections 25 and 26 of the Evidence Act, 1972, having been made to a police officer, was held admissible in the departmental enquiry. Relying upon its earlier decisions, the Honble Supreme Court held that the only test in departmental proceedings is compliance with the principles of natural justice, and, of course, compliance with the rules governing the enquiries, if any. It was also held that the High Court had opined that there was enough material before the appropriate authority upon which it could come to a reasonable conclusion that it was not reasonably practicable to hold an enquiry as contemplated by clause (2) of Article 311, and that nothing had been brought to the notice of the Honble Supreme Court to persuade them not to accept the said finding of the High Court. It was also observed that the matter being dealt with was with regard to the situation obtaining in Punjab during the years 1990-91. Even though, not said so, but the years 1990-91 were the extreme days of extremists and militancy in the State of Punjab.
20. In Sahdeo Singh (supra), the reason dispensing with the enquiry was held proper. The facts of that case reveal that Sahdeo Singh and others were on duty as Rakshaks (guards) og 733 UP goods train. They colluded with other officials in the said train and certain other miscreants by assisting them in the theft of large quantities of rice bags from the said goods train, thereby causing huge pecuniary loss to Railways. The authorities after holding preliminary enquiries and considering the material gathered in the three reports received from such preliminary enquiries, passed the order dismissing them from service, dispensing with the enquiry. While upholding such decision, it was observed that before the disciplinary authority etc. decided to dispense with the enquiry exercising the power under rule 47 of the Rules, three internal enquiries were conducted by the officials of RPF, and that a perusal of the enquiry reports would clearly show that though there were witnesses who had seen the incident of theft of rice bags from the goods train in question to which the appellants and others were parties, none of them was willing to either give a statement in writing or give evidence apprehending danger to his life. The facts narrated in the internal reports would clearly go to show that the appellants were in league with certain desperate miscreants, and, therefore, the locals who witnessed the theft were not willing to come forward to give any evidence, and for that reason, it was held that the disciplinary authority was right in coming to the conclusion that it would be impracticable for the Railways to hold an enquiry wherein witnesses could be examined to establish the misconduct of the appellants.
21. In Romesh Kumar Sharma (supra), the appellant while working as Havildar/Clerk (GD) having 17 years service in the Army, was found involved , along with a few others, in espionage activities during the period 1984-85. He was interrogated and a court of enquiry under Rule 177 of the Army Rules, 1974 was constituted to collect evidence and to report. The court of enquiry confirmed the involvement of the appellant. Keeping in view the paramount consideration of army discipline and the security of the State, it was considered expedient by the authorities to proceed against the appellant to dismiss him from service dispensing with the enquiry. The reason dispensing with the enquiry was upheld by observing that the original records were produced, and a perusal thereof would show that the Chief of Army Staff had followed the requisite procedure and the certificate as contemplated in proviso to rule 17 of the Rules had been given, and that the note-sheets and the records which were also perused by the High Court, would clearly show that various aspects were taken note of and it was specifically recorded that it would be inexpedient to follow the procedure provided in the main part of rule 17 of the Rules.
22. In Director, Town Planning (supra), Kulkarni, the respondent before the Honble Supreme Court, was working as a peon in the establishment of Director of Town Planning, Maharashtra. His services were terminated dispensing with the enquiry. In the order dated 7.5.1986, fifteen charges of misconduct were referred to. The Deputy Director passed the order indicating therein that the various acts of the respondent would clearly demonstrate his unsuitability and the reasons as to why it would not be reasonably practicable to hold an enquiry. Therefore, dispensing with the enquiry, the authority concerned decided to terminate the services of the respondent. The Tribunal and the High Court set aside the orders terminating his services. In appeal, it was observed by the Honble Supreme Court that the view expressed by the Tribunal as affirmed by the High Court was clearly unsustainable for the simple reason that the reasons were recorded before the order was passed.
23. A. K. Sen (supra) was a case of large-scale abstention from duty and parade. Orders of superior officers were disobeyed and flouted, superior officers were abused in filthy and obscene language, there were dharnas and gheraos of superior officers in a unit of the Force and certain members of the unit were dismissed after dispensing with the enquiry. Delinquent members of the unit were holding clandestine meetings in collaboration with certain dismissed members and had decided that efforts be made to restart agitation on wide scale in all units of southern Zone for forming association. The orders of dismissal from service were passed to prevent possible recurrence of near mutiny by units posted in Southern Zone. Orders of dismissal expressly stated that witnesses were being threatened and intimidated from coming forward to give evidence and charge-sheets could not be served in spite of efforts made in that behalf. Dispensing with the enquiry on the ground as mentioned above was found to be justified.
24. We have no doubt in our mind that the judgments relied upon by the learned counsel representing the respondents, have no parity whatsoever with the facts of the case in hand. We have already mentioned that by and large, reasons dispensing with the enquiry, whether good or not, would depend upon facts and circumstances of each case. The judicial decisions wherein it was proved to the hilt that the witnesses who could prove the charge were intimidated, terrorized and threatened with their lives, would have no parity with the facts of the present case, where the witnesses have expressed their inability to join the investigations, being busy, and where their attendance could be enforced through not only persuasion but also by process of law.
25. Shri Rakesh Khanna, learned counsel representing the respondents, while referring to the order of dismissal, the order passed by the appellate authority, the role of the employees clearly shown or seen accepting bribe at their workplace, no denial by the employees of the allegations of misconduct shown in the video footage, as also in the pleadings, and by their conduct, would contend that there was no need whatsoever to hold an enquiry against the employees. Elaborating the contention as noted above, the counsel would contend that the order of dismissal came to be passed far after the TV telecast, which the employees also must have seen. Electronic media had highlighted the incident for several days. If it was the case of the employees that the sting operation was bogus, they ought to have proceeded against the TV channel Aaj Tak for defamation and also by filing criminal case against them. The very fact that they kept quiet over the issue would be an implied admission on their behalf of the misconduct alleged against them. When the order of termination came about, the applicants would still take no step to proceed against the news channel. They have done nothing in that regard till date. When the appeals were dealt with and the employees were shown the video footage, they would yet not deny their role in the episode, or that they were not the persons shown accepting bribe. The counsel has placed reliance upon some observations made by the Honble Supreme Court in a recent decision in the matter of R. K. Anand (supra). We have given our thoughtful consideration to the contentions of the learned counsel as noted above, but do not find any merit therein. We may observe at the very outset that the concerned authorities had such evidence in their possession which may substantially prove the guilt of the employees, does not appear to be a ground to dispense with the enquiry. If that was to be so, no enquiry may be held in any sting operation. Such course to be adopted would be fraught with dangerous propositions and evil propensities. The media, and in particular the electronic media, would then assume the role of complainant, prosecutor and judge, all rolled in one. The basic or fundamental governance, be it administrative or judicial, in our country is based upon checks and balances. If the media is to be made so powerful without any checks and balances, some times, if not always, most innocent citizens may suffer having been framed up. We may not illustrate, but there is no dearth of cases where sting operations have been found to be doctored or morphed. There is no dearth of cases as well which may appear to be open and shut cases, but when put to trial, they end up in a smoke. It is not unknown that in trap cases where an employee may have accepted bribe and caught on spot, the courts in the consequent trials have held the money to have been thrust upon the employee out of sheer grudge, vindictiveness or mala fides. In our considered view, no one in this country can be condemned without being heard. No doubt, insofar as the employees are concerned, enquiry against them can be dispensed with, but that has to be based upon cogent grounds to be mentioned in writing, and we do not accept the contention raised by Shri Khanna that if the evidence available with the prosecution or the department may clearly show it to be a case of delinquency of an employee, it would be a good ground to dispense with the enquiry.
26. In a given set of circumstances, availability of overwhelming evidence may be one of the grounds to dispense with the enquiry, but in no case, it can be the sole ground. In the present case also, at the most, availability of the evidence, overwhelming according to the respondents, but disputed by the applicants, is also one of the grounds for dispensing with the enquiry. The first and the foremost reason is that the employees of the news channel Aaj Tak would not appear. If the first and the primary reason for dispensing with the enquiry is to be rejected, the second with regard to availability of clear evidence with the respondents against the employees, cannot sustain. We may also mention that even though, Shri Khanna may state the present case to be one where authentic and unrebutted evidence was available with the respondents to pin down the employees with the allegations of corruption against them, but so is not even said by the respondent authorities. It may be recalled that while referring to the video footage indicating that the money was paid for extending unauthorised and illegal favours, the concerned authorities observed that overwhelming presumption could be drawn. The authorities had also thus not gone beyond drawing an overwhelming presumption.
27. We will deal with the overwhelming presumption drawn by the authorities from the video footage in the later part of the judgment. On factual aspect of the case, we may note that the conduct of an employee is always examined after taking into consideration the nature and quantum of proof brought on record by the department while proceeding departmentally against an employee. The counsel representing the respondents would, however, endeavour for us to take a view that the conduct of the employees only may be the proof of their misconduct. We are not prepared to accept this contention of the learned counsel. We reiterate, the conduct is seen in the context of the evidence that may be led by the department or prosecution. Further, we do not find that the employees were given any opportunity to deny the allegations leveled against them. Surely, they were not issued even a show cause before passing the order of dismissal. There was thus, no show cause, no enquiry, nor even a fact-finding enquiry by associating the employees. Till such time, therefore, the order came to be passed, they had no occasion or opportunity to deny the allegations against them, or for that matter, the authenticity of the video footage covered by the channel Aaj Tak while telecasting the programmes Ghoose mahal and Tihar Jail bana ghoose mahal. The opportunity that came in the way of the employees was when they filed their appeals, and secondly when they filed present Original Applications in this Tribunal. By the time, the employees had filed their appeals they, at the most, might have seen the telecast of the programme aired by the channel Aaj Tak, which was admittedly an edited version. While filing their appeals thus, they could not go beyond stating that the CD containing the alleged role attributed to them is a fabrication. It is not in dispute that they have stated so in their appeals. Some of them have even denied their identity alleged therein.
28. Insofar as, the employees of Tihar Jail are concerned, they were not shown the CD by the department at any stage. They had no occasion to admit or deny their role. Insofar as, the employees of Trade & Taxes department are concerned, we find a total confusion. In the order passed by the appellate authority in the case of A. K. Jain (OA No.2546/2006), it has been mentioned that the CD was played in the presence of the employee on 19.10.2007, whereas in two other cases, i.e., OA nos.724/2008 and 2288/2006 the order does not recite so. On conclusion of arguments, we had asked the counsel representing the respondents to give in writing as to in which cases the appellate order recites that the CD was shown to the employees. A totally confusing chart has been given to us, which, even after required to be made as per orders by the appellate authority, continues to be confusing. Counsel representing the applicants, on the other hand, would state that in number of appeals the Lt. governor had neither seen the CD himself nor the same was shown to the employees, whereas in some other cases the employees were made to sit on the same day to see the CD. The applicants too have created total confusion on this issue. That being so, we may only go by the records from where it is quite clear that in some of the cases, the Lt. Governor may have seen the CD along with concerned employees, whereas in other cases it was not so done. We are of the view that insofar as, the grounds of appeal are concerned, the same would not contain any ground with regard to admission or denial of the employees of accepting bribe. The employees might have seen the programme telecast by the channel Aaj Tak and from that, they could say that the entire CD was a fabricated affair. Insofar as, denial of the employees at a time when some of them might have seen the CD along with the Lt. Governor when their appeals were heard is concerned, it does not appear from the orders that they were specifically asked by the Lt. Governor as to whether they had accepted the bribes as shown in the video footage. That being so, it cannot be said that they had an opportunity even at that time to deny the role played by them. Assuming that they had not denied their identity, but had stated at every relevant stage that the CD was a fabricated affair, the question that would arise is as to whether the mere identity, or for that matter, even taking some money, would prove that they were receiving illegal gratification in lieu of some promises that they might have made to the bribe giver. Mere acceptance of money by the employees may not pin them down with accepting bribe or illegal gratification. It had to be further established that the money was being paid and/or received in lieu of services that may be rendered or favours that may be extended to the bribe giver. Nothing on that count is clear either from the edited or unedited versions. We would not like to comment much upon the impression that we have gathered while watching the edited and unedited CDs in Court in the presence of every one concerned, as any expression of opinion on this crucial issue may adversely affect the case of parties in the departmental enquiry. Suffice it to say that unless the person who gave bribe may come and depose as to what exact favour he had sought in lieu of money paid by him, and what was the conversation between him and the concerned employee, it may be difficult to hold only on the basis of the conversation shown in the video footage that the money paid was in lieu of some favours to be extended by the employees. We may illustrate it best by even making a mention of the transcription of the conversation reproduced in the earlier part of the judgment in two OA nos.2546/2006 and 2200/2006 one from the Trade & Taxes department and the other from Jail department. It may be difficult from the said conversation as to whether there was a money transaction and for how much and for what purpose. In the circumstances as mentioned above, therefore, the CD may at the most be a corroborative piece of evidence, but the same could not at all be taken as primary evidence to pin down the applicants on corruption charges. At this stage, it may be recalled that the concerned authorities had before them, at the most, edited and unedited CDs. Admittedly, the same were not compared with the original chip. We have already made a mention of the affidavit that came to be filed by the respondents pursuant to our directions. The statement of Shri Dheerender Pundir, reporter, Aaj Tak, it appears, had been recorded under Section 161 Cr.PC. The reporter had also produced video cassette of the sting operation which was taken into possession by a seizure memo by the police. Shri Pundir stated in his statement u/s 161 Cr.PC that the sting operation was shot by Shri Jalaj Kathuria, cameraman of the news channel Aaj Tak by a spy camera in ASF format, and after that the recording was transferred in a DV tape and stored in the feed room of the news channel in digital shape. The produced video cassette was prepared from the digital storage in the feed room which was stated to be absolutely unedited and that nothing had been edited/deleted/altered/added in the cassette. He also stated that all the gadgets/instruments used for the sting operation ghoose mahal had been re-used. We may not give any final opinion, as, once again, the same may prejudice the case of parties in departmental enquiry, but as to whether the produced CD can be said to be a true version of its original having been taken from digital storage in the feed room of the news channel, same as if compared with the original chip, would be a question. If the CD was compared with the original chip, perhaps different parameters may follow. Nothing at all was stated by the counsel for the respondents that if the produced video cassette was prepared from the digital storage in the feed room, the same would be said to as if compared with the original chip. We are also no experts in this line and, therefore, it would be up to the enquiry officer to return a finding on the issue as mentioned above on the basis of evidence that may be led. All that can be said at this stage is that unless there was a finding of the CD to be absolutely correct and the original version, no finding of availability of overwhelming evidence could be returned by the concerned authorities. No exercise was undertaken by the concerned authorities to compare the video cassette produced before them to compare it with the chip, or to even otherwise return a finding about its genuineness based upon its preparation from the digital storage in the feed room of the news channel.
29. We may refer to a recent decision of the Honble Supreme Court in R. K. Anand (supra), on which both parties have placed strong reliance. A well known English language news channel called NDTV telecast a programme on May 30, 2007 in which one Sunil Kulkarni was shown meeting with I.U.Khan, Special Public Prosecutor, and R.K.Anand, senior defence counsel, and two others, and negotiating for his sell out in favour of the defence for a very high price. According to NDTV, the programme was based on a clandestine operation carried out by means of a concealed camera with Kulkarni acting as a mole. What appeared in the telecast was outrageous and tended to confirm the cynical but widely held belief that in this country the rich and the mighty enjoyed some kind of corrupt and extra-constitutional immunity that put them beyond the reach of the criminal justice system. Shocked by the programme, the Delhi High Court suo moto initiated criminal proceedings for contempt against R.K.Anand, I.U.Khan and Bhagwan Sharma, an associate of Anand. Notice was issued to those against whom criminal proceedings for contempt were initiated. They were given full opportunity to defend themselves. According to NDTV, in all these operations a total of five microchips were used. Four out of those five microchips were available with them in completely untouched and unaltered condition, and only one chip was reformatted after its contents were transferred onto a CD. When the High Court took suo moto notice of the matter, it directed the Registrar to collect all materials that may be available in respect of the telecast including copies of CDs/Video and transcript and submit the same for consideration within ten days. The Court also directed NDTV to preserve the original material including the CDs/Video pertaining to the aforesaid sting operation, and as mentioned above, four out of five microchips were available and were taken into possession. The Court recorded statement of the counsel appearing for NDTV that its order had been fully complied with. The Court required a further affidavit regarding the telecast based on the sting operation, and accordingly directed NDTV to file an affidavit concerning the sting operation from the stage it was conceived and the attendant circumstances, details of the recording done, i.e., the time and place etc. and other relevant circumstances. In compliance of the aforesaid directions, Poonam Agarwal, programme incharge, NDTV, filed an affidavit as required. On the material that came before the Court, prima facie action for contempt was deemed appropriate, and, therefore, notices were issued. Registry was directed to supply copies of the order passed by the Court dated 7.8.2007, affidavit of Ms. Poonam Agarwal dated 23.7.2007 together with annexures including the four copies of CDs filed along with the affidavit, copy of the corrected transcripts filed on 6.8.2007, and copies of 6 CDs, including one edited and five unedited, containing the original footage which were produced on 6.6.2007. NDTV was also asked to make available to the Registry sufficient number of copies of the CDs and transcripts, which the Registry had to supply to the notices. The contemnors were given full fledged hearing, their replies obtained and they were heard by adhering to all principles of natural justice. The contemnors were held guilty by the High Court, and, but for one contemnor, the order of the High Court was upheld by the Supreme Court. Whereas, counsel representing the respondents would rely upon this judgment to say that sting operations can be relied upon to return a finding of guilt, the counsel representing the applicants, without joining any issue on the contention of the learned counsel as noted above, would, however, state that to place reliance upon sting operations emanating from CDs, the first and the foremost requirement is to find out the authenticity of the material recorded in the CD, and further that before returning a finding of guilt, the concerned person has to be heard. Whereas, the counsel representing the respondents may be right to state that sting operations can be relied upon to return a finding of guilt, counsel for the applicants is also equally right to contend that the verdict of guilt cannot be returned unless a finding be given with regard to authenticity of the recorded version of the CD and a proper opportunity having been granted to the accused or the delinquent, as the case may be. In the present case, we find that there is no finding returned by the concerned authorities that the CD that they had watched was genuine and there was no scope of it being tampered, altered or morphed. No material has been placed on records of the present case as well from where such a finding can be returned. No opportunity whatsoever has been given to the employees to prove that the CD produced by the authorities was a made-up affair simply with a view to gain popularity by the news channel Aaj Tak. We are not commenting anything with regard to genuineness of the CDs produced before the authorities, as that is a matter that shall have to be decided by the concerned authorities. All that we are saying is that on the basis of unedited and edited versions of CDs produced before the authorities and without there being a finding with regard to its genuineness, no finding of availability of overwhelming evidence against the employees could be returned. Having said so, we may still refer to some salient features of the case decided by the Honble Supreme Court. Cross examination of Poonam Agarwal was declined, but while doing so the High Court had observed that what transpired between R. K. Anand and Kulmarni in the sting meetings was there on the microchips and the CDs, copied from those chips, for anyone to see and no statement by Poonam Agarwal in his cross examination would alter that even slightly. The High Court also recorded the finding that the microchips were not subjected to any tampering etc. and, therefore, rejected the petition for proceeding against NDTV for perjury. A firm finding of fact thus came to be recorded that what transpired between Anand and Kulmarni in the sting meetings was there on the microchips which were genuine and not subjected to any tampering etc. The High Court had spent a full day viewing all the sting recordings, the recording of the programmes telecast by NDTV on May 30, 2007 and the eight-minute CD prepared by R. K. Anand. Present at the viewing were all the counsel as also R. K. Anand. The transcription of the talk between Kulkarni and Anand and others was audible and absolutely clear. The same was not even in dispute. The same has been reproduced in the judgment and clearly makes out a case constituting contempt against R. K. Anand and I. U. Khan. The contention raised on behalf of the appellant before the Honble Supreme Court that a proceeding under Contempt of Courts Act was quasi judicial in nature and it demanded the same standard of proof as required in a criminal trial to hold a person guilty of criminal contempt, was accepted by observing that there cannot be any disagreement with the proposition advanced by the appellant. It was, however, further noted that if the sting recordings are true and correct, no more evidence is required to see that R. K. Anand was trying to suborn a witness. It is significant to note that one of the appellants before the Honble Supreme Court was let off. The reason therefor was that the transcript of the sting recording submitted to the Court by the TV channel was confined only to the exchange between I.U.Khan and Kulkarni, and that in the absence of full transcript it became difficult and cumbersome to see what transpired between Kulkarni and Deepak Verma immediately before and after the meeting with their subject. In view of the Honble Supreme Court, that part of the recording was also highly relevant and important for judging the true import of the exchange that took place between Kulkarni and Khan. The salient features of the case as referred to above, have no parity with the facts of the case in hand. As mentioned above, there is no proof of authenticity of the edited and unedited CDs. No such finding was returned. No comparison with the original chip was done. The transcription, even as relied upon by the respondents and mentioned in the impugned orders, does not make any sense. It is not possible to make out from the said transcription as to whether the employees had demanded money, and if so, for what purpose. In some of the cases, there is no transcription of the dialogue between the employees and those who conducted the sting operation. The employees were given no opportunity to defend themselves. Even the edited and unedited versions of the CDs were not supplied to them. Insofar as, the contention of the learned counsel representing the respondents that the applicants had taken no action against the TV channel Aaj Tak by not filing any defamation or damages proceedings is concerned, we are of the view that no parallel can be drawn from the facts as available before the Honble High Court and Supreme Court in the case of R. K. Anand with the facts of the present case. The contemnors before the Court were highly established lawyers knowing their rights under law. Even if they had not proceeded against the TV channel NDTV, a presumption of guilt may arise because of their conduct. The same, however, cannot be said with regard to the employees whose only anxiety would be to save their jobs. They have no financial resources nor expertise in law, as the contemnors before the Honble High Court and Supreme Court may have had. Further, the conduct of the contemnors came to be commented in the context of the proof or evidence available against them. We have already mentioned that the conduct of a person alone may not be a sole determining factor in returning a finding of guilt, be it a criminal case or a departmental proceeding. The same has to be seen and assessed in the context of evidence available. Before we may part with this aspect of the case, we may only mention that one of the persons who carried out the sting operation in Tihar Jail happened to be Ravi Sharma, who was himself an under trial prisoner in a murder case, and had remained in Tihar Jail for some time.
30. In view of the discussion made above, whereas we approve the view taken by the Division Bench of this Tribunal in OA No.778/2006 for some reasons which may be the same and for some reasons which may be in addition to the view taken by the Division Bench, we do not approve and thus overrule the view taken by the co-ordinate Bench of this Tribunal in OA Nos.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005.
31. All these Applications are accordingly allowed. Impugned orders passed by the concerned authorities, be it the disciplinary or the appellate authorities, are set aside and quashed. The respondents would be, however, at liberty to proceed against the applicants departmentally. We are conscious that there can be only zero tolerance for corruption, but before a person is thrown away by such a stigma which may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure. While, however, setting aside the orders, as mentioned above, we pass no orders of reinstatement of the employees/applicants. It may be recalled that before the orders terminating services of the applicants were passed, they were under suspension. They would thus remain under suspension and may be, at the most, entitled to subsistence allowance from the date they were dismissed. It will be exclusively up to the authorities to continue their suspension during the pendency of departmental enquiry against them. Considering the nature of the case, we direct the authorities to conduct the enquiry on day-to-day basis and pass final orders, insofar as, at least the disciplinary authority is concerned, as expeditiously as possible and preferably within a period of six months from today. If the employees may not cooperate, then for reasons to be recorded the respondents may even proceed ex parte against them, or seek orders on that behalf from this Tribunal. In view of the peculiar facts and circumstances of this case, costs of this litigation are made easy.
( Dr. R. C. Panda ) (M. Ramachandran ) ( V. K. Bali ) Member (A) V.C.(J) Chairman /as/