Central Administrative Tribunal - Delhi
Rajesh Singh vs Govt. Of Nctd on 30 March, 2022
1
OA No. 444/2014 with OA No.4302/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 444/2014
With
OA No.4302/2014
Reserved on: 22.03.2022
Pronounced on: 30.03.2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
OA No.444/2014
Ranjit Kumar Chaudhary
s/o Sh. Ajay Kumar Chaudhary
R/o C-248, Ground Floor,
Shalimar Garden Extension-II,
Sahibabad, Ghaziabad, UP. ...Applicant
Versus
1. The Govt. of NCT of Delhi through
Chief Secretary,
Players Building, I.P. Estate,
New Delhi.
2. The Principal Secretary (Finance)
The Govt. of NCT of Delhi,
4th Level, A Wing, Delhi Secretariat,
I.P. Estate, New Delhi.
3. The Commissioner (VAT),
Vyapaar Bhawan,
I.P. Estate, New Delhi. .Respondents
OA No.4302/2014
Rajesh Singh, Age 48 years,
S/o Sh. Mal Singh,
R/o 1628-A, Sector 29,
Housing Board Colony,
Faridabad, Haryana. ...Applicant
2
OA No. 444/2014 with OA No.4302/2014
Versus
1. The Govt. of NCT of Delhi through
Chief Secretary,
Players Building, I.P. Estate,
New Delhi.
2. The Principal Secretary (Finance)
The Govt. of NCT of Delhi,
4th Level, A Wing, Delhi Secretariat,
I.P. Estate, New Delhi.
3. The Commissioner (VAT),
Vyapaar Bhawan,
I.P. Estate, New Delhi. ....Respondents
Appearance: Sh. A.K. Behra, Sr. Advocate with Sh.
R.K. Jain and Ms. Neha Bairagee,
counsel for applicant in both the OAs.
Sh. Sameer Sharma, counsel for the
respondents in both the OAs.
ORDER
Hon'ble Ms. Manjula Das, Chairman:
As in both the OAs filed under Section 19 of the Administrative Tribunals Act, 1985, identical questions of law and similar facts are involved, and even the Articles of Charge framed against the applicants vide orders dated 05.08.2011 are also identical, the same are being disposed of by this common order, with the consent of the learned counsel for the parties. However, for the sake of convenience, the facts are being taken from OA No.444/2014.
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OA No. 444/2014 with OA No.4302/2014
2. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"I. To quash and set aside the memorandum dated 5.8.2011 issued by the respondents and the order dated 28.03.2012 passed by the Enquiry Officer vide which the application of the applicant for additional document has been rejected.
II. To quash and set aside the findings submitting by the Enquiry Officer and order dated 8.7.2013 passed by the Disciplinary Authority, whereby the applicant has been dismissed from service and order dated 21.10.2013 passed by the Appellate Authority vide which the appeal has been rejected.
III. Direct the respondents to reinstate the applicant in service with all consequential benefits along with arrears of pay with interest @ 18% from the date of entitlement till the date of payment and the suspension may kindly be decided as spent on duty for all intent purposes.
IV. cost of the proceedings may also be awarded to the applicant.
V. any other relief which this Hon‟ble Tribunal may deem fit and proper may also be passed in favour of the applicant."
3. The facts, as narrated in the OA, are that the applicant initially joined as Stenographer Grade-III in the Delhi Government on 06.08.1998, and was subsequently transferred to the Sales Tax Department (presently known as Trade & Taxes Department), in the year 2002. It is stated that he was placed under suspension, vide order dated 09.03.2005, which was 4 OA No. 444/2014 with OA No.4302/2014 revoked w.e.f. 07.06.2005, vide order dated 11.08.2006. However, he was again placed under suspension, vide order dated 25.08.2006. Vide order dated 08.09.2006, the applicant was dismissed from service under Article 311(2)(b) of the Constitution of India without holding departmental inquiry.
4. The applicant challenged the dismissal order before this Tribunal by filing OA No.2557/2006, which was referred to the Full Bench along with other identical OAs. The Full Bench allowed the said OAs by a common order dated 31.08.2009 and quashed the dismissal order dated 08.09.2006, operative portion whereof reads as under:-
"31. All these Applications are accordingly allowed. Impugned orders passed by the concerned auathorities, 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 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 5 OA No. 444/2014 with OA No.4302/2014 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..."
5. It is contended that against the aforesaid order of the Tribunal, respondents preferred WP(C) No.116/2010 before the Hon‟ble High Court of Delhi, which was dismissed, vide order dated 06.08.2010. Consequently, though the respondents vide order dated 22.02.2011 revoked the dismissal of the applicant, but placed him under suspension w.e.f. 08.09.2006. Meanwhile, SLP preferred by the respondents against the aforesaid order of the Hon‟ble High Court of Delhi, was dismissed by the Hon‟ble Supreme Court, vide order dated 16.08.2011.
6. It is further stated that the respondents issued a Memorandum dated 05.08.2011, vide which departmental inquiry was proposed to be initiated against the applicant on the following Article of charge:-
"Sh. Ranjit Choudhary, while functioing as Stenographer, Ward-21 in the erstwhile Salex Tax Department (Now Trade & Taxes) during the relevant period of posting committed gross misconduct inasmuch as he accepted illegal gratification offered by a bribe giver who 6 OA No. 444/2014 with OA No.4302/2014 approached him in his office to seek favour from him. The transaction of offer and acceptance was secretly vide-graphed and recorded by a News Channel „Aaj Tak‟ and was also telecast which tarnished the image of Salex tax Department, Govt. of NCT of Delhi.
Thus, Sh. Ranjit Choudhary, the then Stenographer by the above mentioned deliberate act failed to maintain absolute integraity and devotion to duty and acted in a manner unbecoming of a Govt. Servant thereby violated Rule 3 of CCS (Conduct) Rules, 1964."
7. The applicant contends that he submitted reply dated 26.08.2011 to the chargesheet denying the allegations, but without considering his reply, the disciplinary authority, vide orer dated 03.02.2012 ordered departmental inquiry against him, and inquiry officer was also appointed. The disciplinary authority also issued an addendum dated 02.03.2012 adding two more persons as witnesses in the list of witnesses.
8. It is the case of the applicant that the inquiry officer, without appreciating the evidence properly, submitted the inquiry report holding the charge as proved. Finding of the inquiry officer is extracted hereunder:-
"On the basis of the documentary and oral evidence adduced in the case before me and in view of the reasons given above I hold that charged official accepted money/sewa from a person (bribe giver) during the course of his 7 OA No. 444/2014 with OA No.4302/2014 posting in Salex Tax Deptt. Now Trade & Taxes Deptt."
9. Against the aforesaid findings of the IO, the applicant submitted his reply to the disciplinary authority, who, without considering the grounds taken by the applicant and appreciating the evidence, imposed the punishment of dismissal upon him, vide order dated 08.07.2013. Even the appeal filed by the applicant was rejected by the appellate authority, vide order dated 21.10.2013.
10. Aggrieved, the applicant has filed this OA seeking the reliefs, as already extracted above.
11. The respondents have filed their reply to the OA. They have stated that on 08.03.2005, a News item was telecast on the channel (Aaj Tak) with the caption "Ghoos Mahal" wherein certain officials of Sales Tax Department including the applicant were shown as demanding/accepting gratification, in consideration for official favour/work. It is further stated that the applicant and all other officials, who were shown in the said telecast, were placed under suspension and an FIR No.12/05 was registered against them under the POC Act, 1988 read with section 120-B of IPC. 8
OA No. 444/2014 with OA No.4302/2014 Consequently, the applicant was dismissed from service, vide order dated 08.09.2006. However, the said dismissal order was set aside by this Tribunal, permitting the respondents to proceed against the applicant and others departmentally before taking any disciplinary action against them. In compliance with the said order of this Tribunal, the respondents initiated the departmental proceedings by issuing the impugned Charge Memorandum dated 05.08.2011. It is further stated that the inquiry officer, having examined the oral and documentary evidence, submitted his report holding the charge against the applicant as proved. It is further submitted that the reply filed by the applicant to the inquiry report was meticulously considered by the discplinary authority but was not found satisfactory. Hence, punishment of dismissal from service was imposed upon the applicant. The appeal filed by the applicant was also rejected by the appellate authority by passing a reasoned order. Hence, the respondents prayed for dismissal of the OA.
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OA No. 444/2014 with OA No.4302/2014
12. The applicant has filed rejoinder denying the averments made in the reply filed by the respondents and reiterated the stand taken by him in the OA.
13. Heard Sh. A.K. Behra, Sr. Advocate assisted by Sh. R.K. Jain, learned counsel for the applicant and Sh. Sameer Sharma, learned counsel for the respondents.
14. Learned counsel for the applicant argued that Sh. Dhirendra Singh, Reporter, and Sh. Jalaj Kathuria, Cameraman, T.V. Today Network Ltd., who were added in the list of witnesses by issuing addendum dated 02.03.2012, as PW 11 & 12, and Sh. R.N. Singh (PW-8) were the only independent witnesses, who are said to have secretly video-graphed and recorded the alleged news item, which was the basis of the sole charge levelled against the applicant, and telecast with the caption "Ghoos Mahal" in the Aaj Tak News Channel on 08.03.2005. However, the respondents did not examine the said PWs in the inquiry, and non-examination of the said witnesses is stated to be fatal to the prosecution case and on this 10 OA No. 444/2014 with OA No.4302/2014 ground alone, the disciplinary proceedings initiated against the applicant are liable to be quashed.
15. Learned counsel for the applicant further argued that the foundation of the charge levelled against the applicant was only the CD whereunder a video recording was done allegedly showing that the applicant demanded/accepted illegal gratification for official favour or work. Learned counsel, while arguing that it is a settled proposition of law that CD is inadmissible in evidence, relied upon the decision of this Tribunal in Constable Sanjay Kumar Dubey vs. Commissioner of Police (OA No.2802/2013 decided on 02.08.2016) wherein it is held that even in departmental proceedings, the general principles of the Evidence Act cannot be dispensed with and when the CD itself was not admissible as an evidence, the tertiary evidence of the PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. The learned counsel, thus, contended that since in the present case also, the alleged CD was neither proved nor got compared with original CD/chip, the same cannot be treated as an 11 OA No. 444/2014 with OA No.4302/2014 admissible evidence, and holding the charge against the applicant as proved based on such a CD, is illegal.
16. Learned counsel for the applicant argued that neither in the memorandum of charge nor in the orders passed by the disciplinary/appellate authorities, following points have been considered-
- The alleged bribe giver has not been identified;
- The alleged favour which the applicant being Stenographer Grade-III could extend, has not been identified;
- The demand of bribe has not been proved, consequently the amount of alleged bribe money has not been specified;
- No amount of bribe has ever been recovered from the applicants;
- The demonination of the bribe money and quantum of bribe money has not either been specified or proved;
- The date on which the alleged demand/ acceptance of bribe took place has neither been specified nor proved; and 12 OA No. 444/2014 with OA No.4302/2014
- The place where the alleged demand and acceptance of bribe took place has neither been specified nor proved.
17. Learned counsel for the applicant has vehemently argued that based upon the above, it is crystal clear that the charge of demand and acceptance of bribe levelled against the applicant is totally vague. The applicant also brought the said fact before the inquiry officer, disciplinary authority as well as in his appeal submitted to the appellate authority, but none of the authorities considered the same while passing their orders. He has also argued that it is well established proposition of law that vagueness of charge is a ground for quashing of chargesheet, inquiry report, penalty order and the appellate order, as has been held by Hon‟ble Supreme Court in Govt. of A.P. and Others vs. A. Venkata Raidu [2007 (1) SCC 338), operative portion whereof reads as under:-
"9. We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge I, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in 13 OA No. 444/2014 with OA No.4302/2014 Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc., but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge..."
Learned counsel relied upon yet another decision of Hon‟ble Supreme Court in Anil Gilurker vs. Bilaspur Raipur Kshetria Gramin Bank & Anr. [JT 2011 (10) SC 373] on the question of charge being vague, wherein it has been held as under:-
"7. A plain reading of the charges and the statement of imputations reproduced above would show that only vague allegations were made aggainst the appellant that he had sanctioned loans to a large number of brick manufacturing units by committing irregularities, but did not disburse the entire loan amount to the borrowers and while a portion of the loan amount was deposited in the account of the borrowers, the balance was misappropriated by him and others. The details of the loan accounts or the names of the borrowers have not been mentioned in the charges. The amounts of loan which were sanctioned and the amounts which were actually disbursed to the borrowers and the amounts alleged to have been misappropriated by the appellant have not been mentioned.
8. We also find that along with the charge-sheet dated 21.01.1989 no statement of imputations giving the particulars of the loan accounts or the names of the borrowers, the amounts of loans sanctioned, disbursed and misappropriated were furnished to the appellant, and yet the disciplinary authority has called upon the applicant to submit his written defence statement in reply to the charges. We fain to appreciate how the appellant could have submitted his written statement in defence in respect of the charges and how a fair enquiry 14 OA No. 444/2014 with OA No.4302/2014 could be held unless he was furnished with the particulars of the loan accounts or the names of the borrowers, the amounts of loan sanctioned, the amounts actually disbursed and the amounts misappropriated were also furnished in the chargesheet."
18. Learned counsel for the applicant has further argued that a similar view on the point of vagueness of charge has been taken by a coordinate Bench of this Tribunal in Rakesh Singh Rana vs. Govt. of NCT of Delhi & Ors. [OA No.4374/2012 decided on 07.02.2014].
19. Learned counsel for the applicant vehemently argued that the entire disciplinary proceedings are based upon the alleged CD telecast by Aaj Tak Channel, but the said CD, which was produced by the concerned TV Channel to the then Sales Tax Department, at no point of time was proved before the inquiry officer. He has further argued that the Full Bench of this Tribunal has already given its finding that the original CD/chip was neither available with the department nor the edited CD/chip supplied by Aaj Tak Channel to the department, got compared with the original CD/chip, and, therefore, the authenticity of CD based on which penalty of 15 OA No. 444/2014 with OA No.4302/2014 dismissal was imposed upon the applicant, cannot be sustained. The Full Bench also observed as under:-
"We need not comment at this stage with regard to the evidentiary value of the edited and unedited CD/vido tape, even though we may mention that prima facie we are of the view that the genuiness of the video film would be the first test. Primary evidence, it appears would be the chip, similarly in the case of a photograph, negative of the same, would be the primary evidence."
20. Learned counsel for the applicant submitted that the law relating to electronic evidence in the departmental inquiry cases is also well settled that electonic evidence has to be proved in the manner as it is provided in the Information Technology Act, as has been held by Hon‟ble Supreme Court and various High Courts. To buttress his arguments, he relied upon the decision of a coordinate Bench of this Tribunal in Sanjay Kumar Dubey (supra), relevant portion whereof reads as under:-
"9. The legal position is well settled that the standard of proof required in a criminal proceeding is of much higher order than in the departmental proceedings. The preponderance of probability is sufficient to come to a conclusion with regard to the guilt of the delinquent. The general principles of the Evidence Act cannot be dispensed with. The involvement of the applicant has been proved by the EO only on the basis of the statement of prosecution witness who had allegedly seen the CD and identified the applicant demanding the bribe. The CD itself ws never proved, which is the conclusion arrived at by the Special Judge (PC Act), Tis Hazari Courts, Delhi 16 OA No. 444/2014 with OA No.4302/2014 vide order dated 12.08.2015. Relying on the Hon‟ble Supreme Court judgment in the case of Anwar P.V. versus P.K. Basheer reported as Manu/SC/0834/2014, the learned Special Judge concluded that the CD was inadmissible as a secondary evidence as well....
10. In such a situation, when the CD itself was not admissible as an evidence, a tertiary evidence of the PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty.
11. In the circumstances and for the reasons stated, the OA is allowed. The report of the EO and the orders of Disciplinary Authority and Appellate Authority are quashed. The applicant will be entitled to all consequential benefits including the treatment of the period of suspension from 27.12.2005 to 23.12.2010, as a period spent on duty, but without back wages..."
21. In yet another decision in the case of Anvar P.V. vs. P.K. Basheer & Ors. [2014 (10) SCC 473], the Hon‟ble Supreme Court has held as under:-
"22. The evidence relating to electronic record, as noted hereinafter, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case2, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of 17 OA No. 444/2014 with OA No.4302/2014 taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate in terms of Section 65-B in respect of CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground."
22. Learned counsel submits that the afaoresaid law in regard to the electronic evidence has not been followed in the present case. Therefore, the findings of the IO only based upon the unapproved/edited CD, being not an admissible evidence, the present case is one of „no evidence‟. Moreover, during the entire proceedings, the respondents have not disclosed that the voice sample of the applicant had been sent to the CFSL for comparison with the voice in the CD telecast on Aaj Tak Channel. He further argued that a perusal of the CFSL report dated 09.02.2007, which was in possession of the respondents, would reveal that the voice could not be conclusively identified as that of the applicant. It is stated that the said report was suppressed from the applicant.
23. Learned counsel has argued that in departmental proceedings, conjectures and surmises 18 OA No. 444/2014 with OA No.4302/2014 cannot take place of the proof, as has been held by the Hon‟ble Supreme Court in a Constitution Bench decision in Union of India & Ors. vs. H.C. Goel [AIR 1964 (SC) 364]. However, in the instant case the charges against the applicant have been proved on conjectures and surmises. He has also placed on record the inquiry report of Ajay Kumar, Stenographer Grade-III, who is also similarly situated person, wherein the IO held exactly similar charges, based on the same Aaj Tak telecast CD, not proved.
24. Mr. Sameer Sharma, learned counsel for the respondents in order to substantiate the fact of demand and accpetance of bribe, drew our attention to the statement of imputation of misconduct, which reads as under:-
"Sh. Ranjit Choudhary while functioning as Stenographer in Ward-21 of Salex Tax Department during the relevant period of posting committed gross misconduct in as much as he accepted illegal gratification offered to him by a bribe giver who approached him in his office to seek some favour. The transaction of offer and acceptance was secretly video-graphed by a News Channel „Aaj Tak‟. Thus, Sh. Ranjit Choudhary, the then Stenographer was caught unaware. Later, the episode was telecast on the News Channel „Aaj Tak‟.
On the 8th March, 2005 at about 9.30 P.M., a news item was telecast on the "Aaj Tak" News Channel with the caption "Ghoos Mahal". In the news clippings, Sh. Ranjit Choudhary, the then Stenographer was shown receiving the money from the bribe giver by his right hand. After receiving the 19 OA No. 444/2014 with OA No.4302/2014 money from his right hand, he shifted the money to his left hand and then put the money in left side pocket of his trousers. The audio transcription of the recorded conversation is as under:-
RANJIT CHOUDHARY -MADAM KE SAMNE DE RAHE HO LAUGHS & SAYS YEHH BAAT HAI Above said Video footage wherein Sh. Ranjit Choudhary was shown accepting bribe from bribe giver, proves that Sh. Ranjit Chaudhary, the then Stenographer had accepted money as bribe offered to him, to do some favour for his work.
As the telecast tarnished the image of the department and a video-graphic evidence against Sh. Ranjit Choudhary, the then Stenographer, prima facie indicated his involvement in accepting bribe, Sh. Ranjit Choudhary, the then Stenographer, was placed under suspension vide Office Order No.F.II(55)/CC/CST/04-05/175 dated 09.03.2005. In the said telecast, Sh. Ranjit Choudhary, the then Stenographer, was identified by Sh. G.L. Meena, the then Jt. Commissioner (Zone-III), vide his report dated 09.03.2005. An FIR No.12/2005 was registered against the said Sh. Ranjit Choudhary, the then Stenographer along with others, under Section 7, 12 & 13 of the Prevention of Corruption Act, 1988 (49 of 1988) read with Section 120 B of the Indian Penal Code, at the Police Station, Anti Corruption Branch, GNCT of Delhi, Old Sectt. Delhi. Sh. Ranjit Choudhary, the then Stenographer was arrested on 20.1.06 in connection with the said FIR as per Arrest Report dated 20.01.2006 received from ACP, Anti Corruption Branch, GNCT of Delhi.
After viewing the relevant video footage, three officers/officials of Ward-21 of Sales Tax Deparement namely, Sh. Gyaneshwar Sharma, the then STTO, Sh. Manoj Kumar, the then STI and Sh. Inderjeet, the then S.I., identified said Sh. Ranjit Choudhary, the then Stenographer, accepting bribe. Smt. Indira Bahl, the then STO, Confidential Cell also identified Sh. Ranjit Choudhary, the then Stenographer. Her identification statement was recorded by Sh. R.K. Singh, the then ACP, Anti Corruption Branch, Delhi.
The identification made by Sh. G.L. Meena, the then Jt. Commissioner (Zone-III), Smt. Indira Bahl, the then STO, Confidential Cell and other officers/officials of concerned Ward, Sales Tax 20 OA No. 444/2014 with OA No.4302/2014 Department as shown in the video footage of Sh. Ranjit Choudhary, the then Stenographer, established the fact beyond doubt that the person shown in the said video footage accepting illegal gratification offered by a bribe giver was Sh. Ranjit Choudhary, the then Stenographer, Ward-21 Sales Tax Department, who had indulged himself deliberately in accepting money as bribe.
Thus, Sh. Ranjit Choudhary, the then Stenographer by the above mentioned acts, omission and commission, exhibited lack of absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant thereby violated Rule 3 of CCS (Conduct) Rles, 1964."
25. Learned counsel for the respondents has relied upon the decisions of coordinate Bench of this Tribunal in case of Shri Narender Singh vs. Union of India & Ors [OA No.713/2009 decided on 13.10.2011]; Shri P. Sasi vs. Union of India & Ors [OA No.1497/2009 decided on 06.05.2014] and of the Court of Special Judge, Tis Hazari Courts, Delhi in the case of State vs. Chandbeer [CC No.18/2009 decided on 19.08.2013].
26. We have carefully gone through the inquiry report. On „Analysis and Assessment of Evidence‟, the inquiry officer after summarising the statements of witnesses observed as under:-
"On going through the CD it is confirmed that C.O. is accepting Money/something/sewa from a person (bribe giver) but no witness identified the bribe giver motice behind the money given the bribe and the amount given. All the witnesses gave their statement 21 OA No. 444/2014 with OA No.4302/2014 on basis of the CD. No eyewitness (PW11 PW 12) gave any statement. All the produced witnesses confirmed their statement."
27. From the above analysis of evidence, it appears that the witnesses produced, who were from the respondent department, have identified that the person shown in the CD was the applicant. However, none of the witnesses, as has been mentioned in the inquiry report itself, have confirmed as to who was the bribe giver; what was the denomination and quantum of amount of bribe; the motive of the bribe giver behind giving the bribe; whether bribe amount was recovered from the applicant or not, etc. etc. Even the key witnesses, namely, Dhirendra Singh, Reporter, and Jalaj Kathuria, Cameraman of T.V. Today Network Ltd., who had been added in the list of witnesses vide addendum dated 02.03.2012, as PW 11 & 12, have not been examined in the inquiry. These witnesses were the persons who are stated to have secretly video-graphed and recorded the alleged incident, which was the basis and foundation of the sole charge levelled against the applicant, and telecast with the caption "Ghoos Mahal" in the Aaj Tak News 22 OA No. 444/2014 with OA No.4302/2014 Channel on 08.03.2005, and whose non-examination is fatal to the proceedings.
28. We also notice that the primary defence taken by the applicant is that the edited CD/chip is inadmissible in evidence. This issue has been decided by this Tribunal in Constable Sanjay Kumar Dubey (supra) holding that even in departmental proceedings, the general principles of the Evidence Act cannot be dispensed with and when the CD itself was not admissible as an evidence, mere tertiary evidence of a PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. Similarly, in the present case also, the alleged CD has neither been proved nor got compared with original CD/chip, therefore, the same cannot be taken as admissible evidence. Resusltantly, holding the charge against the applicant as proved based on such a CD, in our view, is not tenable in the eyes of law. Even the Full Bench of this Tribunal, as stated above, was of the view that the genuiness of the video film would be the first test.
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OA No. 444/2014 with OA No.4302/2014
29. In view of the above discussion, we are of the considered opinion that the inquiry officer has proved the charge against the applicant on surmises and conjectures without there being any concrete and firm evidence.
30. In these circumstances and for the reasons stated, both these OAs are allowed. Consequently, the Charge Memorandum, report of the IO, and the orders of the disciplinary authority and appellate authority are quashed. The applicants will be entitlted to all consequential benefits including the treatment of the period of suspension, as spent on duty, but without back wages. The respondents are directed to complete the exercise, as ordained above, within a period of three months from the date of a copy of this order. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das) Member (A) Chairman /ahuja/