Central Administrative Tribunal - Delhi
Satish Kumar vs Govt. Of Nct Of Delhi & Others ... on 19 January, 2012
Central Administrative Tribunal Principal Bench OA No.912/2010 Honble Mr. M.L. Chauhan, Member (J) New Delhi this the 19th day of January, 2012. Satish Kumar -Applicant (By Advocate Shri Shyam Babu with Shri Shekhar Kumar) -Versus- Govt. of NCT of Delhi & Others -Respondents (By Advocate Mrs. Renu George) O R D E R (3rd Member Reference)
A third Member Bench has been constituted to resolve the issues on which Honble Members of the Division Bench consisting of Mr. G. George Paracken, Member (J) and Shri Shailendra Pandey, Member (A) differ. The following points have been referred for consideration of the 3rd Member:
(i) whether, keeping in mind the judicial pronouncements on the subject of departmental proceedings, referred to in Paras 3 and 6 of my proposed order, interference by this Tribunal is warranted in the orders of the inquiry officer/disciplinary authority/appellate authority.
(ii) whether in the facts and circumstances in OA No.912/2010, the findings/conclusion of the inquiry officer/administrative authorities can be held to be perverse and based on no evidence whatsoever.
(iii) whether, in the facts and circumstances of this case, the non-examination of the Doctor as a witness in the departmental inquiry would vitiate the proceedings to such an extent as to warrant his opinion being overlooked altogether, keeping in mind that in departmental proceedings, findings and the conclusion of the guilt of the applicant are based on `pre-ponderance of probability and not on `proof beyond doubt.
(iv) whether interference in this case would be appropriate in view of the decision of the High Court of Kerala in B. Radhakrishnan Nair v. State of Kerala and Others, 2003(5) SLR (Kerala) 215 and this Tribunals decisions in HC Desh Raj v. Commissioner of Police, Delhi & Others (OA No.459/2010).
2. Honble Member (J) held that the charge against the applicant regarding consumption of liquor and there was smell of alcohol coming from the mouth of applicant has not been proved during the departmental proceedings, as the only material witness, who could have proved the said charge and proved the medical report was Dr. H.R. Singh, who was listed as a prosecution witness but was not produced. Thus the finding recorded by the enquiry officer against the applicant is perverse.
3. On the contrary, Honble Member (A) has placed reliance upon the report submitted by the Medical Officer and held that the finding given by the authorities to the effect that the charge stands proved against the applicant is unwarranted. At this stage, it will be useful to reproduce the relevant finding given by Honble Member (J) as well as Honble Member (A) in support of the charge leveled against applicant. Honble Member (J) in paras 11-14 has recorded the following observations in order to show that the charge against the applicant has not been proved, which thus read:
11. We have heard the learned counsel for the applicant Shri Shyam Babu and the learned counsel for the respondents Mrs. Renu George. According to Shri Shyam Babu, the crux of the charge against the applicant was that he has consumed liquor and there was smell of alcohol coming out from his mouth but the said charge has never been proved during the departmental proceedings as the only material witness who could have proved the said charge and the authenticity of the medical report during the departmental enquiry was Dr. H.R. Singh who was listed as the prosecution witness but was not produced. His further argument was that the non production of the said material witness and the resultant denial of opportunity to the applicant to cross examine him has prejudicially affected his interests in the departmental proceedings.
12. In this regard, he has relied upon a judgment of the Apex Court in Modula India Vs. Kamakshya Singh Deo (1988 (4) SCC 619), it was held as under:
It is a well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination
13. He has also relied upon a judgment of the Apex Court in Bachubhai Hassanalli Karyani Vs. State of Maharashtra (1972 SCC (Cri.) 178) in support of his argument that mere smell of alcohol does not indicate that one is under the influence of drinking. In the said case, the deposition of the Doctor was considered. According to the doctor, a person could smell alcohol without being under the influence of drinking. The Apex Court has also observed that no urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis was produced by the prosecution.
14. We consider that the submission of the learned counsel for the applicant has merit. In a departmental proceedings, the documents relied upon for proving the charge have to be proved by the witness concerned who is authorized to do. In this case, it was specifically stated in the list of documents and the list of witness that Dr. H.R. Singh would prove the medical report. However, the disciplinary authority miserably failed to produce the said listed witness to prove the said listed document. Neither any other prosecution witness was competent to prove the said medical report nor the same was even attempted to be proved during the disciplinary proceedings. When, admittedly the said witness was not produced by the enquiry officer and the said document remained unproved, the finding of the enquiry officer to the contrary that the charge is proved against the applicant can only be considered as a perverse one. We, therefore, allow the OA and quash and set aside the enquiry officers report dated 24.02.2009 and the orders of the disciplinary authority as well as the appellate authority dated 11.06.2009 and 11.12.2009 respectively. There shall be no order as to costs.
4. The contrary view taken by Honble Member (A) in his dissenting order, which finds mentioned from para-2 onwards is to the following effect:
2. The issue for consideration in this case is whether in the facts and circumstances of the case non-calling of the Doctor in the departmental inquiry for cross examination by the applicant, would warrant interference by this Tribunal in the findings of the authorities concerned in this departmental proceedings and quashing of the inquiry officers report, disciplinary order and appellate order.
3. At the very outset, it would be necessary to refer to the legal position relating to judiciary interference in departmental proceedings, particularly with regard to the admissibility of evidence and the findings of the administrative authorities in disciplinary matters. The law in this regard has evolved through a series of pronouncements on this issue and may be summarized as follows:
(i) a departmental inquiry/proceeding is distinct from a criminal trial where the Evidence Act or Criminal Procedure Code is strictly applicable. The technical rules of evidence are not applicable in a departmental inquiry and the standard of proof required in a departmental proceeding is preponderance of probability as opposed to proof beyond doubt in a criminal proceeding [See: N. Rajarathinam v. State of Tamil Nadu, (1997) 1 Lab LJ 224 (SC) and State bank of Bikaner and Jaipur v. Srinath Gupta, (1997) 1 Lab LJ 677; and High Court of Judicature, Bombay v. Udaysingh (1997) 5 SCC 129; Noida Entrepreneurs Association v. Noida & Ors., (2007) 10 SCC 385]. In most departmental proceedings the act on the part of the Government servant concerned relates to dereliction of duty and the punishment imposed is with a view to maintaining discipline and efficiency of performance of a public service, as opposed to an act in a criminal trial which is one of violation of law.
(ii) the scope of judicial review in departmental proceedings is limited and a Tribunal/Court should ordinarily not interfere in them by re-appreciating the evidence adduced by the inquiry officer and substituting their own findings/conclusion for that of the administrative authorities, unless the findings/conclusion arrived at are based on absolutely no evidence or are totally perverse in the sense that no man of ordinary prudence could possibly arrive at such findings/conclusion in the facts and circumstances of the case. This is so because the power of imposing an appropriate punishment on a Government employee is within the discretion of the administrative authorities. The only exception to this general principle is if it is found that the inquiry proceedings have not been conducted fairly and are vitiated because of non-observance of the relevant rules and regulations or principles of natural justice (such as affording of reasonable opportunity to defend, etc.) or if the punishment is shockingly disproportionate to the proved misconduct of the Government servant concenred [See: State of T.N. v. S.Subramaniam, (1996) 7 SCC 509; State of Tamil Nadu v. T.V.Venugopalan, (1994) 6 SCC 302; U.P.S.R.T.C. v. Ram Chandra Yadav, JT 2000 (8) SC 198; M.P.State Agro Industries Development Corporation Ltd. V. Jahan Khan, (2007) 10 SCC 88].
In this connection, the following relevant extracts from two Apex Court Judgments may also usefully be referred to:
(i) In B.C. Chaturvedi Vs. Union of India & Ors. reported in AIR 1996 SC 484, it was held as under:-
When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.
(ii) In Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar reported in 2003 (4) SCC 364, Honble Supreme Court has held as follows:-
11. It is settled that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision - making process and not the decision.
4. Let us now examine the present OA in the above backdrop. The following factors are noteworthy in the departmental proceeding in this OA:
It is not in dispute that the orders passed in this case (which are impugned in this OA) have been passed by the administrative authorities competent to do so. Thus, on this count, no interference is warranted.
The inquiry in this case was held after following due procedure and affording full opportunity to the applicant to defend himself. Therefore, there has been no violation of rules of natural justice and no interference on this count also is warranted.
The findings of the administrative authorities (inquiry officers report/disciplinary order/appellate order) have also been passed after due application of mind and cannot be said to be perverse or based on no evidence as some evidence was in existence in the case as seen from the following:
i) It is an admitted fact that the applicant had come to the duty officers room and started talking with Constable Virender Kumar at concerned police station on 2.12.2006. When the concerned SHO (Ishwar Singh Beniwal) came there and asked the purpose of the applicants visit in the PS and when the SHO reportedly found the applicant in drunken condition, there were two persons present, namely, SI Ram Swaroop and Constable Hazari Lal.
ii) The applicant was taken for medical examination and was got medically examined by Dr. H.R.Singh, CMO of the Lady Harding Medical College. The Doctors certificate, based on the medical examination, showed smell of alcohol (+). The applicant never protested when he was being taken for medical examination or stated that he may be smelling of alcohol because of taking some medicine on the day of incident occurred. His plea thereafter in this regard is an after thought, as held by the administrative authorities. The applicant had produced one Doctor, namely, Dr. Ranjish Attam of Attam Nursing Home and Medcical Research Center Pvt. Ltd., in his defence, who stated that the applicant had been under his treatment since 12.10.2006 to 7.12.2006 and he was being treated for allergy, cough and appetite disease and the medicine `Nayers contain 10% of alcohol and was prescribed (to be taken 5 ml. at a time) which does not have much smell for a long time. However, the medical examination of the applicant by the CMO revealed that the smell of alcohol was still coming out of his mouth even at the time of the medical examination, which was conducted at 10.30 PM while he was detained at 9.30 PM in the D.O. Room. Thus, it was concluded by the administrative authorities concerned that the applicant had drunk enough liquor before coming to the Police Station and that the plea of the applicant that smelling of alcohol because of taking some medicine was an afterthought. It cannot be said that such a conclusion, in the facts and circumstances of the case, is perverse and not possible of being arrived at by a person of ordinary prudence.
iii) The applicant has not challenged the veracity of the Doctors certificate nor is it his case that he was not examined by the Doctor. The Doctor is the Head of an established and reputed hospital, namely, Lady Harding Medical College, Delhi and has no personal enmity with the applicant. His opinion is the `opinion of an expert and can be relied on even without his being produced in the inquiry and being cross examined by the applicant. It is also not the case of the applicant that the said Doctor is biased against him or has any enmity with him.
Taking into account the above, based on the principle of pre-ponderance of probability which is applicable in departmental proceedings, the findings/conclusions of the inquiry officer and the Disciplinary Authority/Appellate Authority in this case cannot be said to be perverse or based on no evidence at all.
The facts and circumstances of the case and the SHOs Statement, the fact that he was taken for medical examination and was examined by a CMO and the doctors report after such medical examination constitute some evidence and keeping this in view, this case cannot be considered to be a case of `no evidence. Resultantly, no interference in the orders passed by the inquiry officer, disciplinary authority and the appellate authority is warranted.
The police department has a very onerous and important duty to perform towards the public, which looks upto the department to provide it protection and to maintain law and order at all times and the act which the applicant has been charged for and punished for is certainly an act that cannot be overlooked or taken lightly in the case of a Head Constable of the police force, and any unwarranted interference on the basis of technicalities, with the action taken by the executive authorities in this disciplinary matter, would send a wrong message and adversely impact efficiency and public purpose.
5. My learned brother has passed the order in para 14 primarily on the basis that the doctor who had carried out the medical examination of the applicant and had issued the certificate, has not been called for cross-examination and in this connection, reliance was placed in Modula Indias case (supra). As already discussed in Para 3 and 4 above, this is not necessary to establish the applicants guilt in the case. Also the case law [Bachubhai Hassanalli Karyani v. State of Maharashtra, 1972 SCC (Criminal) 178], mentioned by the applicants counsel, referred to by my learned brother in para 13 of his order, pertains to a Criminal case and has no application in a departmental proceeding. In Bachubhai Hassanalli Karyanis case (supra), the applicant was convicted by the learned Presidency Magistrate for rash and negligent driving and the heavy sentence of Rigorous Imprisonment was imposed upon the applicant because he was found drunk on that night. Therefore, in these circumstances, the Honble Apex Court observed as under:
4. The learned counsel contends that the heavy sentence has been imposed on the appellant because he was found to have been drunk on that night. He says that Dr. Kulkarni, who examined the appellant, based his conclusion merely on the facts that the appellants breath was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. The doctor had admitted that a person, placed in the circumstances in which the appellant was put as a result of the accident, would be under a nervous strain and his gait might be unsteady. The doctor had also admitted that a person could smell of alcohol without being under the influence of drinking. No urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis was produced by the prosecution.
5. It seems to us that on this evidence, it cannot be definitely held that the appellant was drunk at the time the accident occurred.
6. In view of this conclusion we are of the opinion that it would meet the ends of justice if the sentence of rigorous imprisonment passed against the appellant is reduced to imprisonment already undergone, but the sentences of fine shall remain. It is directed that the appellant be released forthwith. A perusal of the aforesaid Judgement, would show that, as already observed, it pertains to a criminal proceeding and, therefore, has no application in a departmental proceeding. A perusal of the said Judgement would also show that the Honble Apex Court has not laid down therein any law that would be applicable to departmental proceedings. The Apex Court has also not absolved the applicant in that case and has, in fact, confirmed the punishment inflicted on the applicant, but has reduced the severity of the punishment.
The other case relied upon by the counsel for the applicant (referred to in para 12 of his order) viz., Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619. The following observations of the Apex Court have been quoted:
It is well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination and the mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination. .
The said case related to a Rent Control and Eviction matter and the issue involved was the nature and scope of the rights available to a defendant whose defence has been struck out by Court, in the context of the West Bengal Premises Tenancy Act, 1956. The observations quoted above were in the context of the facts and circumstances of that case and would have no application in the present case, which is a departmental proceeding instituted against a Head Constable of the Delhi Police with the object of enforcing proper conduct in the public interest. In the present case, as already pointed out, the medical certificate issued by CMO of a reputed Hospital constitutes an opinion of an expert who cannot be said to be a biased party in the proceedings.
6. Further, the Judgement of the Kerala High Court in B. Radhakrishnan Nair v. State of Kerala and Others, 2003(5) SLR (Kerala) 215 squarely covers the present case. In that case, the applicant was subjected to medical examination by a Doctor of Medical College Hospital, Alappuzha and the certificate issue by that Doctor was produced in evidence in the oral inquiry. Relying on that certificate, the applicant was found guilty of the allegation of having consumed alcohol. The Doctor was not produced/examined as a witness in the course of the oral inquiry. The Honble Shri Justice J.B.Koshy of the High Court of Kerala observed as under:
4. One of the exhibits relied on by the enquiry officer is the certificate of Dr.Shahul Hameed of Medical College Hospital, Alappuzha. It is true that doctor was not examined in the enquiry. Copy of the certificate of the doctor was given to the petitioner and it is one of the documents specifically mentioned in the charge-sheet (Ext.P-1). It is the certificate issued by an expert. There is no case for the petitioner that he was not examined by the above doctor or sample of his blood was not taken. There is also no personal enmity between them. Departmental enquiry is not like a criminal case or a proceeding where Evidence Act or Criminal Procedure Code is applicable. (See N.Rajarathinam v. State of Tamil Nadu, (1997) 1 Lab LJ 224(SC) and State Bank of Bikaner and Jaipur v. Srinath Gupta, (1997) 1 Lab LJ 677. It was held by the Apex Court in High Court of Judicature, Bombay v. Udaysingh, (1997) 5 SCC 129: [1997(4) SLR 290 (SC)] the technical rule of evidence and proof beyond doubt is not applicable in departmental enquiry. The Apex Court in U.P.S.R.T.C. v. Ram Chandra Yadav, (2000) 8 JT (SC) 198:[2000(4) SLR 767 (SC)] held as follows:
4. Rules of natural justice are not embodied rules. The question whether in a given case the principles have been violated or not has to be found out on consideration as to whether the procedure adopted by the appropriate authority is in accordance with law or not, and further whether the delinquent knew what the charge he is going to meet. In other words, what is required to be examined is whether the delinquent knew the nature of accusation, whether he has been given an opportunity to state his case and whether the Tribunal has acted in good faith. If cannot be said that the principle of natural justice has been violated. .. Petitioner did not request the enquiry officer to examine the doctor as a witness. In Ext. P-1 charge-sheet certificate given by Dr. Shahul Hameed was mentioned as Document No.5. In the list of witnesses, his name was not mentioned. In Exts. P-2 and P-3 reply also petitioner he did not request that doctor should be examined. Even in Ext.P-3 reply his main allegation is against the complainants and he stated that he did not behave improperly to him. He did not request the enquiry officer to examine the doctor also. Veracity of the certificate was also not questioned. Only after the imposition of punishment in Ext. P-5 appeal this question was raised. Since he did not request the enquiry officer to examine the doctor or did not raise an objection regarding non-examination of the doctor, we are of the opinion that mere non-examination of the expert doctor of Alappuzha Medical College is not enough to set aside the enquiry proceedings especially when there are other evidence also in this case. Also, the decision of a Coordinate Bench of this Tribunal in a similar case, in OA No.459/2010 (HC Desh Raj v. Commissioner of Delhi Police & Others) decided on 7.09.2010 also squarely covers this case. In that case, the applicant, a Head Constable in the Delhi Police, was smelling of alcohol by the Duty Officer at Police Station and he was, therefore, apprehended and taken to Safdarjung Hospital where he was got medically examined and was found to be `under the influence of alcohol. In that case also, the applicant had taken a plea that he had taken some homeopathic medicines that also have an `alcoholic smell. The Coordinate Bench held as under:
11. In the instant case, clear evidence exists in the report of the doctor at Safdarjung hospital about the applicant being under the influence of alcohol. It is also noticed that after the applicant was apprehended and taken for the medical examination to the hospital where he was found and reported to be under the influence of alcohol, he did not make any statement to the authorities that he had been having homeopathic medicines, which lead to an alcoholic smell. He did not state so either on the way of the hospital or even in the hospital when the doctor examined him. He also did not state this either to the duty officer or any other senior police officer or even to the doctor at the hospital at the time of medical examination. We also find that the applicant has been punished after a proper enquiry was conducted as per the procedure prescribed and that full opportunity was afforded to him to submit his defence and that the Disciplinary Authority and the Appellate Authority have come to their conclusions based on examination of the records. This case can (sic. not) also be considered to be a case of no evidence as the MLC issued by Safdarjung Hospital is itself sufficient evidence. Further, as already noted there is no violation of principles of natural justice and the procedure prescribed for disciplinary proceedings has been followed meticulously by the respondents. We also agree with the counsel for the respondents that the fact that the applicant did not raise the plea of his having had some homeopathic medicines, which led to his smelling of alcohol and perhaps giving the impression that he had taken alcohol, to the senior officers at the time when he was apprehended and when he was taken to the hospital and medically examined by the doctor, would suggest that this plea is an afterthought. In view of all this, we are of the view that no case for interference by this Tribunal has been made out.
12. The police department has a very onerous and important duty to perform towards the public, which looks up to the department to provide it protection and to maintain the law and order at all times and the act which the applicant has been charged for and punished is certainly an act or misconduct, particularly taking into account that he belongs to the police department. The aforementioned judgment of this Tribunal in that OA appears to have attainted finality as no order of the High Court setting it/staying it has been brought to my notice.
It is further noticed that the decision of another Coordinate Bench of this Tribunal (wherein my learned brother was also one of the members) in OA No.2092/2010 [Shri Niranjan Sinah v. Government of NCT of Delhi & Others], decided as recently as 14.09.2011, also covers this case, as case the facts and circumstances were almost identical viz., the applicant, a Constable under the Delhi Police, was also found under the influence of alcohol. The applicant had taken the plea that he had been taking medicines preparations that contained alcohol, and that as the Doctor of RML Hospital and the officers of FSL had not been examined to prove the MLC and the FSL reports, the same could not be considered in evidence. The OA was dismissed and the Tribunal observed as under:
11.1 . The orders of the Disciplinary Authority and the Appellate Authority are speaking and reasoned orders passed after due consideration of the main contentions of the charged official. This is evidently not a case where the C.O. had not been given opportunity for defence. The emphasis by the applicants learned counsel on non-production of the RML doctor or the FSL officers to prove the reports cannot be taken in isolation in view of the totality of the evidence produced during the inquiry in this case. As indicated above, such a course would be against the settled proposition of law about the strict laws of Evidence Act not being applicable in disciplinary proceedings. They would also run contrary to the Honble Apex Courts proposition of the type of evidence that is necessary to establish a case in a disciplinary proceeding (as per Rattan Singhs and H.H.Pujjars cases). The reliance placed on certain judicial rulings in this context would also not help the case of the applicant in any way, as a judgment is to be viewed in totality and not divorced from its context. Considering the gravity of the misconduct, the punishment awarded is also not found to be harsh or disproportionate.
7. Thus, keeping in view the well settled position of law as enunciated by the Honble Apex Court in the matter of departmental proceedings in the case law referred in paras 3 and 6 above, namely, the decision of the High Court of Kerala in B. Radhakrishnan Nair v. State of Kerala and Others, 2003(5) SLR (Kerala) 215, and the order of a Coordinate Bench of this Tribunal in HC Desh Raj v. Commissioner of Police, Delhi & Others (OA No.459/2010), and the facts and circumstances of the present case, which show that it cannot be considered to be a case of absolutely no evidence, I have no hesitation in holding that this is a case in which no interference on the part of this Tribunal is warranted in the Inquiry Officers Report, Disciplinary Authoritys Order and the Appellate Authoritys Order.
Viewed from any angle, the present OA would need to be dismissed.
5. Thus, in the light of the view expressed by Honble Member (J) and Honble Member (A) and in the light of the points of reference framed, as noticed above, let me proceed to examine the matter. The sole issue, which requires my consideration is whether the certificate issued by the Doctor, which constitutes an expert evidence and is thus admissible in evidence can be taken into consideration without examining the Doctor who gave such an expert opinion? Honble Member (J) has relied upon the judgment of the Apex Court in the case of Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619 and Bachubhai Hassanalli Karyani v. State of Maharashtra, 1972 SCC (Crml.) 178 in order to establish that such an opinion given by the Doctor cannot be taken into consideration so long as the Doctor who has given such opinion is not examined as a witness. Honble Member (A) has already noticed in para-5 of the order, relevant portion of which has been extracted above, as to how the judgment in the case of Bachubhai Hassanalli Karyani (supra) is not applicable in the facts and circumstances of the case. Further, I am of the view that in the case of Bachubhai Hassanalli Karyani (supra) the Doctor was examined as a witness and the question whether the certificate issued by the Doctor, which is admissible in evidence being an expert opinion without examining the said Doctor/expert as a witness was not in issue. As such, no reliance can be drawn on this judgment. Similarly, in the case of Modula India (supra) the issue was whether the oral testimony of a witness can be relied without putting him to the cross-examination and whether such an oral testimony constitutes evidence? Thus, no assistance can also be drawn from this judgment, as the issue whether the opinion given by the expert evidence is admissible in evidence without examining the said witness in trial was not an issue before the Apex Court.
6. On the other hand, I agree with the conclusion drawn by Honble Member (A), as noticed in paras 4, 6 & 7 of the judgment based upon the decision of the Kerala High Court in the case of B. Radhakrishnan Nair v. State of Kerala and Others, 2003 (5) SLR (Kerala) as well decision of the coordinate Bench of this Tribunal in HC Desh Raj v. Commissioner of Delhi Police & Others (OA No.459/2010), decided on 07.09.2010.
7. At this stage, it will be useful to quote paras 17 & 18 of the judgment of the Delhi High Court in the case of Mahender Singh Sachdeva v. Kailash Rani Wadhwan, 2010 (120) DRJ 34, which thus read:
17. Now to examine the contention of the appellant relating to expert evidence, it is a settled legal position that the opinion of the expert is relevant as provided by section 45 of the Indian Evidence Act, 1872 but the report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in the Court and has to face cross-examination. Hence in the present case the report of the CFSL would not carry the sanctity of being the gospel truth in the absence of the aid expert being summoned. Even in the event of the expert being examined, it is also an established rule of evidence that the opinion of the expert is not conclusive and has to be corroborated by other piece of evidence. It would be relevant to refer the judgment of the Apex Court in the case of State of Himachal Pradesh v. Jai Lal, (1999) 7 SCC 280 here:
17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.
18. Therefore, the opinion of the expert can be relied upon when supported by other internal and external evidence as the opinion of the expert simply corroborates the other evidence produced and is not the only determining factor. (emphasis supplied)
8. Thus, as can be seen from the portion as quoted above, it is evident that Section 45 of the Evidence Act makes the opinion of the expert admissible though not conclusive and such evidence has to be corroborated by other piece of evidence. If the matter is viewed in the light of judgment delivered by the Delhi High Court (supra) as well as Kerala High Court (supra) I am of the view that the opinion given by the Doctor being an expert opinion is admissible for the purpose of holding the charge in departmental proceedings, as the strict rules of Evidence Act and standard of proof envisaged therein have no application in a domestic enquiry, and the standard of proof required in a departmental proceeding is preponderance of probability as opposed to the proof beyond doubt, as envisaged in criminal proceedings. At this stage, it will be useful to notice paras 15 & 16 of the judgment of the Apex Court in the case of Cholan Roadways Ltd. V. G. Thirugnanasambandam, 2005 SCC (L&S) 395, whereby the Apex Court has held as under:
15. It is now a well-settled principle of law that the principle of Evidence Act have no application in a domestic enquiry.
16. In Maharastra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others [(1991) 2 SCC 716], it was held:
"It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof, however, cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquires." (Emphasis supplied)
9. As already stated above, in this case the applicant has neither disputed the authenticity of the certificate nor the contents of the certificate. Admittedly, in this case the certificate was issued by none else than Doctor H.R. Singh, who was Chief Medical Office of Lady Harding Medical College, which is a Government Institution and the certificate was not given by a private institution and the Doctor opined in MLC that smell of alcohol positive. Under these circumstances it cannot be said that the certificate issued by the Doctor cannot be taken into consideration without examining such a Doctor. The certificate was issued by the Doctor who is the Head of an established and reputed hospital, namely, Lady Harding Medical College, Delhi and has no personal enmity with the applicant. His opinion is the `opinion of an expert and can be relied on even without his being produced in the inquiry and being cross examined by the applicant. It is also not the case of the applicant that the said Doctor is biased against him or has any enmity with him. The matter would have been otherwise if the applicant would have questioned the genuineness and authenticity of the certificate and the finding recorded in that certificate. In that eventuality only, according to me, it would have been necessary to examine the Doctor in order to prove the contents of the finding recorded in such certificate and also that such certificate was issued and signed by him.
10. For the foregoing reasons, I am of the view that the finding recorded by the disciplinary and appellate authorities based upon the certificate issued by the Doctor of a Government Institution, especially when authenticity of such certificate has not been disputed is cogent acceptable and material facts germane and relevant to facts in issue and it cannot be said that it is a case of no evidence and the finding recorded by disciplinary as well as appellate authorities is perverse. I agree with the finding and reasoning recorded by Honble Member (A) in para-4 of his order, which has been reproduced in the earlier part of the order and is of the view that non-examination of the Doctor as a witness in the enquiry would not vitiate the departmental proceedings to such an extent as to warrant his opinion being overlooked, especially when the scope of interference in such matters is very limited and standard of proof is preponderance of probability and not proof beyond doubt.
11. Accordingly, I am of the view that the OA is bereft of merit, which is accordingly dismissed. No costs.
(M.L. Chauhan) Member(J) San.