Central Administrative Tribunal - Delhi
Anil Kumar vs The Principal Secretary (Finance) on 4 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.926/2008 New Delhi, this the 4th day of December, 2009 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Anil Kumar Aged about 37 years S/o Shri Deshraj House No.11/4 Bhogal Lane, Bhogal, Jangpura, New Delhi-110 014. Applicant By Advocate: Shri Abhai Kumar. Versus 1. The Principal Secretary (Finance) Delhi Secretariat, I.P. Estate, New Delhi. Finance Department, Government of NCT of Delhi. 2. The Commissioner (Trade & Taxes) Government of NCT of Delhi, Vyapar Bhawan, New Delhi. Respondents By Advocate: Shri Rishi Prakash. O R D E R
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 2.11.2007 with a direction to the respondents to reinstate him with full back wages and other consequential benefits.
2. It is submitted by the applicant that on the complaint of one Daya Nand, SI, AC Branch dated 9.3.2005 an FIR No.12/2005 under Sections 7, 12, 13 of the Prevention of Corruption Act read with sections 120 IPC was registered against some of the officers of the Sales Tax Department on the basis of telecast of a Television Programme dated 8.32005 captioned with Ghoos Mahal on channel Aaj Tak wherein it was shown that Tax Assessing Authorities were apparently taking bribes during 10 days of coverage made by the correspondent, namely, Dhirender Bunder of the channel Aaj Tak. Applicants name did not figure in the said FIR, yet vide order dated 7.9.2006 applicant was placed under suspension with immediate effect and vide another order dated 8.9.2006, he was dismissed from service with immediate effect in exercise of power under Article 311 (2)(b) read with Rule 19 of CCS (CCA) Rules without holding any enquiry or giving an opportunity to him to defend himself. Being aggrieved, applicant filed an appeal before the Appellate Authority, but that too was rejected. He again filed an appeal before the Chief Secretary but that too has been rejected on 2.11.2009 by a cryptic order. In these circumstances applicant had no other option but to file the present OA.
3. Applicant has challenged his dismissal on the ground that it was not a case where formal enquiry was not practicable, therefore, his services could not have been dismissed in this fashion and arbitrarily without even giving him an opportunity to defend himself. He has placed reliance on the judgments of Honble Supreme Court in the case of U.O.I. Vs. Tulsiram Patel reported in AIR 1985 SC 141, S.M. Gupta Vs. Oriental Bank of Commerce reported in 2003 (1) CLR 459 and Ashwani Kumar Vs. State of Haryana reported in 2005 (12) SCC 428. He has also submitted that the authenticity of the said footage is totally disputed and unreliable and the alleged misconduct committed by the applicant has been imaginated by the respondents as there is nothing on record to show that the applicant had ever made any demand much less an illegal demand, nor that any bribe was delivered to him by anyone. He has also stated that the respondent No.1 is not the appointing authority of the applicant, therefore, the order of dismissal is liable to be quashed on this ground also. He has prayed that the order may be quashed and set aside and he may be granted the relief as prayed for.
4. OA is opposed by the respondents. They have reiterated that since the competent authority was satisfied that in the given circumstances it was not reasonable and practicable to hold any departmental enquiry, therefore, looking at the grave misconduct of the employee, he was rightly dismissed by invoking Article 311 (2)(b) read with Rule 19 of CCS (CCA) Rules, 1965. They have explained that since a large number of employees of the department were shown in the telecast accepting money as illegal gratification and there was an atmosphere not only of indiscipline but also lack of integrity prevalent at that time, therefore, there was ample justification to invoke extra the ordinary provisions of Article 311 (2)(b), as it definitely had a damaging effect on the functioning of the Government at large and, therefore, it was necessary to impose the punishment of dismissal as a deterrent to other employees. The misconduct shown on the national television is in fact a crime against society at large and, therefore, it required the befitting punishment of dismissal from service.
5. They have also stated that the Government had tried to seek the cooperation of the channel Aaj Tak which had conducted the sting operation but due to their non-cooperation, the disciplinary authority took a decision that without further delaying the matter for reestablishing the misconduct by a routine departmental enquiry, a penalty could be imposed under Article 311 (2)(b). They have thus stated that since this is a very serious matter and the authorities were fully satisfied that it is not practicable to hold the departmental enquiry, therefore, this OA may be dismissed with cost.
6. We have heard both the counsel and perused the pleadings as well.
7. At the outset we may note that reference was made to the Full Bench by framing the question whether in the facts and circumstances of the case, the power conferred by clause (b) of the 2nd proviso to Article 311 (2) of the constitution read with Rule 19 of the CCS (CCA) Rules, 1965 can be justifiably invoked and the impugned order can be sustained, therefore, the same issue as raised in this OA was the subject matter before the Full Bench. After hearing all the parties, a detailed and reasoned judgment has been delivered by the Full Bench on 31.8.2009 in a batch of cases, leading case being OA No. 2546/2006. Counsel for the applicant submitted this case is fully covered by the aforesaid judgment.
8. Perusal of the judgment shows that in all those cases also, the applicants were either from Tihar Central Jail or from the Department of Trade and Taxes, Government of NCT of Delhi and they were all dismissed due to the sting operation conducted by the channel Aaj Tak on 8.3.2005 by attracting Article 311 (2)(b) of the Constitution. Facts insofar as cases pertaining to the Department of Trade and Taxes are concerned were extracted from the case of A.K. Jain vs. Govt. of NCT of Delhi in OA No. 2546/2006. Shri A.K. Jain was suspended vide office order dated 9.3.2005 and FIR No. 12/2005 was registered against him amongst others under Sections 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 was again placed under suspension vide order dated 25.8.2006 in the said case. He was arrested in connection with FIR 12/2005 and was dismissed from service by invoking power under Article 311 (2)(b) of the Constitution vide order dated 8.9.2006. The appeal was dismissed. He had challenged these orders before the Tribunal on the ground that there was no justification to dispense with the enquiry and he could not have been dismissed without giving him an opportunity to defend himself. The matter was very hotly contested by the respondents. They submitted that the applicant therein was shown on the television 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 and, therefore, the applicant was rightly dismissed from service by invoking Article 311 (2)(b) of the Constitution because channel Aaj Tak was not cooperating.
9. The Full Bench after noting various contentions of the parties, observed as follows:-
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.
10. The judgments relied upon by the respondents were also dealt with by the Full Bench and were distinguished on the point of video footage, it was further observed by the Honble Full Bench as follows:-
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.
11. Reliance was placed on the judgment of Honble Supreme Court in the case of Sudesh Kumar Vs. State of Haryana & Others reported in 2005 (11) SCC 525 wherein the services of the appellant were dismissed by resorting to provisions of Article 311 (2)(b) of the Constitution dispensing with the enquiry on the ground that it was not practicable to hold the enquiry as complainant was a foreigner, who was likely to leave the country and that he had been threatened by the appellant yet the order of dismissal was set aside. It was further held that subjective satisfaction of authority for dispensing with departmental enquiry must be based on objective criteria as held by the Honble Supreme Court in the case of Tarsem Singh Vs. State of Punjab and Others reported in 2008 (2) SCC (L&S) page 140. Since respondents had relied on the judgment of Honble Supreme Court in the case of R.K. Anand and Another Vs. Registrar, Delhi High Court that was also dealt with. Dealing with the contention of the respondents that 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 and the very fact that they kept quiet over the issue would be an implied admission on their behalf of the misconduct alleged against them, the Full Bench observed as follows:-
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.
It was thus held:-
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.
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 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, therefore, they had no occasion or opportunity to deny the allegations made against them. 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 might have seen the telecast of the programme aired by the channel Aaj Tak. While filing their appeals thus, they could not go beyond stating that the CD containing the alleged role attributed to them is a fabrication.
12. The case of R.K. Anand was distinguished by the Full Bench by observing as follows:-
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.
13. In view of the discussion made above, the Full Bench allowed all the OAs. The orders passed by the disciplinary or the appellate authorities were set aside and quashed. However, liberty was given to the respondents to proceed against the applicants departmentally by observing 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. It was also made clear that even though the orders were being set aside but no orders of reinstatement of the employees were being passed. Since the applicants were under suspension before their services were terminated, they would remain under suspension and may at the most be entitled to subsistence allowance from the date they were dismissed. It was further made clear that it would be exclusively up to the authorities to continue their suspension during the pendency of the departmental enquiry against them. The authorities were directed to conduct the enquiry on day-to-day basis and pass final order, in sofar as, at least the disciplinary authority is concerned, as expeditiously as possible within a period of six months from the date of judgment. It was further clarified that if the employees do not cooperate then for reasons to be recorded the respondents might proceed ex-parte against them or seek orders on that behalf from this Tribunal.
14. If the facts of the case in hand are examined in the light of above judgment, it is seen the applicant was also dismissed from service in exercise of the powers conferred by Article 31 (2)(b) of the Constitution read with Rule 19 of CCS (CCA) Rules, after dispensing with the enquiry on the basis of telecast of a Television Programme dated 8.32005 captioned with Ghoos Mahal on channel Aaj Tak wherein 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. In the order dated 8.9.2006 (page 22) it is specifically mentioned that Shri Anil Kumar, i.e., the applicant is placed under suspension vide order dated 7.9.2006 and further case FIR NO.12/2005 registered under Sections 7, 12 and 13 of the Prevention of Corruption Act 1988 (49 of 1988) read with Sections 120-B IPC with the Police Station, Anti Corruption Branch, Old Secretariat, Delhi.
15. From the perusal of the above order, it is clear that this case is fully covered by the judgment delivered by the Full Bench in the case of A.K. Jain in OA No. 2546/2006, therefore, this OA has to be decided in terms of the judgment dated 31.8.2009 of Full Bench in OA No. 2546/2006, therefore, the order, by which applicant was dismissed from service and the appellate orders whereby his appeals were rejected are quashed and set aside. However, liberty is given to the respondents to proceed against the applicant departmentally. The applicant may not be reinstated. He may be kept under suspension and at best he would be entitled to subsistence allowance from the date he was dismissed. The enquiry should be completed as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order by holding it on day-to-day basis. It is made clear that if the applicant does not cooperate with the respondents then for the reasons to be recorded, the respondents may proceed ex-parte against him or seek orders in this behalf from the Tribunal.
16. With the above directions, OA is partly allowed. No costs.
( SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER) MEMBER (A) MEMBER (J) Rakesh