Central Administrative Tribunal - Delhi
K.N. Pandey vs Union Of India Through on 25 August, 2008
Central Administrative Tribunal Principal Bench OA No.1589/2007 New Delhi this the 25th day of August, 2008. Honble Mr. Shanker Raju, Membr (J) Honble Mrs. Veena Chhotray, Member (A) K.N. Pandey, S/o Shri B.N. Pandey, Jhuggi No.432, Indra Camp, Kalyanvas Grate, Delhi-110091. -Applicant (By Advocate Shri Ajay Choudhary) -Versus- Union of India through The Secretary, Ministry of Defence, DHQ, South Block, New Delhi-110001. -Respondent (By Advocate Shri R.N. Singh) O R D E R Mr. Shanker Raju, Honble Member (J):
A government servant commits a sin if he indulges in an act, which affects the security of the State. In fact, any act even of a citizen of this country either open or clandestine of secret information relating to the defence production or similar matters being passed on to the persons inimical to the country is reprehensible.
2. Doctrine of pleasure embodied in Article 310 (1) of the Constitution of India is a matter of public policy in public interest and for public good. In a Welfare State the task of efficiently implementing the policies of the Government rests with the civil services. As such, public is, therefore, widely interested in the efficiency and integrity of such services. The government servants being paid from the Public Exchequer and are incharge of the public administration for public good, owe a sense of responsibility. The government servants who are inefficient, dishonest, corrupt or have become a security risk should not continue in service and rules made under Article 309 and by Article 311 shall not be allowed to be abused to the detriment of public interest and public good. The aforesaid is a majority view in a Constitution Bench decision of the Apex Court in Union of India v. Tulsi Ram Patel, 1985 (3) SCC 398.
3. In the above backdrop, applicant by virtue of this OA has impugned Presidential order dated 18.8.1992, whereby invoking Article 310 (1) of the Constitution of India and also Rule 19 (iii) of the CCS (CCA) Rules, 1965 in the interest of security of the State, dispensing with holding of enquiry, applicant was dismissed from service. Also assailed is another Presidential order dated 31.3.2006, filed in pursuance of the direction of the High Court of Delhi in its judgment dated 25.1.2006 in WP (C) No.978/1999, where after examining the circumstances of acquittal of applicant in criminal trial, the dismissal has been upheld.
4. A brief factual matrix transpires that applicant, who was working as Draftsman (L) in Naval Headquarters was implicated in a criminal case FIR No.234/1990, under Sections 3/5/9 of Official Secrets Act along with nine other persons. During the course of criminal investigation applicant made a confessional disclosure statement on 8.9.1990, whereby it has been admitted that in lieu thereof money he has been passing classified defence documents/designs to Anand Brothers and thereafter to one Mohd. Waris from Pakistan High Commission. As per the instructions for dealing with government servants engaged in subversive activities issued by Department of Personnel and Training (DoP&T) on 1.8.1985 and also the instructions contained in OM dated 26.7.1980 and an amendment carried out, whereby subversive activities include passing of classified information. A note was prepared, detailing the individual conduct and the materials against applicant and other persons who have been found involved in subversive activities, prejudicial to the security of the State, a Committee of Advisors on consideration of the material recommended dismissal under the doctrine of pleasure, enshrined under Article 311 (2) (c) of the Constitution of India and Rule 19 (iii) of the CCS (CCA) Rules, 1965. The aforesaid recommendation has been placed before the Prime Minister and with his consent on attainment of personal satisfaction of the President, the order passed dismissing applicant by holding that it will not be expedient to hold an enquiry was issued.
5. In the criminal trial against applicant in Sessions case No.14/96 the judgment delivered on 5.7.2001 extended the benefit of doubt to applicant and hence he was acquitted from all the charges. Rests of the accused have been convicted. Applicant preferred an appeal for re-consideration of the material and ultimately filed WP (C) No.978/1999. A decision of the High Court of Delhi dated 25.1.2006 though upheld the dismissal of the applicant, yet the following observations have been made:
21. The records of the Central Government leading to the termination of the petitioner from service were produced. I have carefully gone through the files. They show that the issue regarding the petitioners service, and as to whether to hold an enquiry, was considered by various officers, and a committee of advisors. This review was carried out in respect of all the employees. The role of each one was discussed separately, along with available materials, allegations levelled specifically, and the nature of involvement of the employee concerned. The petitioners case too was considered by application of the same yardstick.
22. In view of the findings regarding inapplicability of the CCS Rules, and the extremely limited scope of proceedings, under Article 226 of the Constitution, I am of the opinion that the facts of this case do not reflect any infirmity in the approach of the Government, when it formed the opinion that it would not be reasonably practicable to hold an inquiry, having regard to the security of the state. The respondent was unaware that the petitioner would later be acquitted of charges; no materials pointing at mala fides were brought to the courts notice. As held in the decision reported in Balbir Singhs case, acquittal in a criminal trial does not invariably and automatically invalidate an order of dismissal.
23. In view of the foregoing reasons, the petitioner cannot claim the relief of reinstatement, nor can it be concluded that the respondents were under a duty to take him back into employment since he was acquitted by a criminal Court.
24. The record discloses that reliance was placed upon a confessional statement, while holding that it would not be reasonably practicable to hold an inquiry into the petitioners conduct. The statement was apparently not relied upon in criminal proceedings; similarly the witnesses cited by the prosecution at the pre-trial stage did not implicate him. He was eventually acquitted of the charges.
25. Having regard to the peculiar conspectus of facts, I am of the opinion that the respondents ought to re-examine the entire case, and while considering the materials that had been relied upon in 1992 to dispense with an inquiry, the factors which led to the acquittal too also should be taken into account. A direction to re-examine the issue as to whether the petitioners service ought to be restored or not, or an inquiry to be held, should be therefore, taken within 2 months from today, and a suitable order should be passed, and communicated to the petitioner.
6. In consideration thereof, a Presidential order dated 31.3.2006 upheld the dismissal, which was assailed in RP No.284/2006 by the applicant before the High Court of Delhi, where an order passed on 11.5.2007 with the following observations given liberty to the applicant to seek remedy in accordance with law:
Having heard counsel for the parties, I am prima facie of the view that there seems to be some substance in the grievance raised about non-consideration of the judgment in the manner, highlighted. Yet, what cannot be ignored is that the petitioner has invoked the review jurisdiction which is not the appropriate remedy. In the circumstances, the review petition and CM 10116/2006 are disposed off reserving liberty to the petitioner to seek all available remedies in accordance with law. It is open to the petitioner to seek assistance of the Delhi High Court Legal Services Committee for this purpose.
7. Hence the present OA.
8. Learned counsel of applicant makes two-fold submissions by placing reliance on a decision of the Apex Court in Bk. Sardari Lal v. Union of India & Others, AIR 1971 SC 1547. It is contended that satisfaction to be arrived at by the President as to non-expediency to hold enquiry has to be a satisfaction arrived at by the President itself and it cannot be delegated to any other authority. Accordingly, by referring to the orders passed by the respondents it is stated that the order, whereby the satisfaction has been arrived at is not by the President but by the conveying authority or by the Prime Minister, which is not a valid compliance and the order passed by the respondents, dismissing the applicant from service is without jurisdiction. Learned counsel has also stated that on acquittal applicant has not been found involved in any activities which are prejudicial and as the only material which the High Powered Committee had considered is confession of the applicant, which was not even considered by the trial court and in its judgment once applicant has been given a clean chit, the very basis of dispensing with the enquiry no more exists and as the decision was based on irrelevant considerations and on a confession, which cannot be relied upon, made before a police officer, it is stated that applicant is liable to be put back in service with all consequences.
9. Learned counsel has also stated that the direction of the Delhi High Court in Writ Petition obligates the authorities to re-examine the entire case in the light of the findings recorded by the trial court in acquitting the applicant, yet in the review petition (supra) prima facie view taken by the High Court that the judgment of the trial court was not considered in the manner highlighted, which renders the Presidential order passed on 31.3.2006 as nullity in law.
10. Learned counsel has further stated that the order has been passed without application of mind and contravenes Articles 14, 16 and 311 of the Constitution of India. Violation of principles of natural justice and deprivation of reasonable opportunity is also one of the grounds raised.
11. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that the Apex Court in Union of India and another v. Balbir Singh and another, (1998) 5 SCC 216, placing reliance on a decision of the Apex Court in A.K. Kaul v. Union of India, (1995) 4 SCC 73, in a similar situation where decision to dispense with the enquiry on an act prejudicial to the security of the State, subsequent acquittal has not been found to have made any difference. The aforesaid has no applicability in the present case also.
12. Shri R.N. Singh states that passing on classified documents of defence to a Pakistani national is prejudicial to the security of the State and after following the due procedure a satisfaction arrived at that it is not expedient to hold an enquiry was based on circumstances and confession of the applicant, which does not suffer from any legal infirmity.
13. Rejoinder reiterates the pleas taken in the OA.
14. We have carefully considered the rival contentions of the parties and perused the material on record.
15. Insofar as the issue of personal satisfaction to be arrived at by the President himself is concerned, a subsequent constitution Bench in Tulsi Ram Patels case (supra) after taking cognizance of Sardari Lals case (supra) ruled as under:
59. The position, therefore, is that the pleasure of the President or the Governor is not required to be exercised by either of them, personally, and that is indeed obvious from the language of Article 311. Under clause (1) of that Article a government servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed. The question of an authority equal or superior in rank to the appointing authority cannot arise if the power to dismiss or remove is to be exercised by the President or the Governor personally. Clause (b). of the second proviso to Article 311 equally makes this clear when the power to dispense with an inquiry is. conferred by it upon the authority empowered to dismiss, remove or reduce in rank a government servant in a case where such authority is satisfied that for some reason, to recorded by that authority in writing it is not reasonably practicable to hold such inquiry, because if it was the personal satisfaction of the President or the Governor, the question of the satisfaction of any authority empowered to dismiss or remove or reduce in rank a government servant would not arise. Thus, though under Article 310 (1) the tenure of a government servant is at the pleasure of the President or the Governor, the exercise of such pleasure can be either by the President or the Governor acting with the aid and on the advice of the Council of Ministers or by the authority specified in Acts made under Article 309 or in rules made under such Acts or made under the proviso to Article 309; and in the case of clause (c) of the second proviso to Article 311(2) the inquiry, is to be dispensed with not on the personal satisfaction of the President or the Governor but on his satisfaction arrived at with the aid and on the advice of the Council of Ministers.
16. What is discerned is that the satisfaction arrived at on the advice of the Council of Ministers and not being a personal satisfaction shall not constitute any illegality and the act would be within the prerogative and jurisdiction. Moreover, instructions dealing with government servants engaged in subversive activities issued by the DoP&T on 26.7.1980, as amended on 1.5.1985 clearly stipulates that final order stipulates that wherever the Committee of Advisors recommended dismissal under Article 311 (2) (c) of the Constitution of India the recommendation should be submitted to the Prime Minister. As we do not find any fault with the satisfaction arrived at, the contention put-forth by applicant is bereft of merit and is accordingly rejected.
17. As regards scope of interference in an order passed by the President under the doctrine of pleasure and also under Rule 19 (iii) of the CCS (CCA) Rules, 1965, which is akin to Article 311 (2) (c) of the Constitution of India, the decision of the constitution Bench in Tulsi Ram Patel (supra) as to the judicial review is concerned, the law laid down is that an enquiry into the acts, affecting the security of the State, certain matters are not to be made public, including the source of information. In such an event, the interest of security of the State would be prejudicially affected. However, the requirement is that all materials relied upon, on the basis of which the satisfaction of the President is arrived at, have to be produced, including the advice tendered by the Minister to the President.
18. Insofar as review is concerned, the parameters have been laid down by the Apex Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1, by a nine-Judge constitution Bench where judicial review has been directed to be exercised only with the decision-making process. Judicial review must be distinguished from justiciability. The Judiciary has to decide the source, extent, limitations of the power and legitimacy in exercise of the power by an authority.
19. Though the doctrine of pleasure has been invoked in the instant case, yet as the enquiry has been dispensed with under Rule 19 (iii) of the CCS (CCA) Rules, 1965, the Apex Court in A.K. Kaul (supra), in an identical case, placing reliance on S.R. Bommai (supra) laid down certain guidelines with the following observations:
20. It would thus appear that in S.R. Bommai, (1994 (3) SCC 1 : 1994 AIR SCW 2946) (supra) though all the learned Judges have held that the exercise of power under Article 356(1) is subject to judicial review but in the matter of justiciability of the satisfaction of the President, the view of the majority (Pandian, Ahmadi, Verma, Agrawal, Yogeshwar Dayal and Jeevan Reddy,JJ.) is that the principles evolved in Barium Chemicals (AIR 1967 SC 295) (supra) for adjudging the validity of an action based on the subjective satisfaction of the authority created by statute do not, in their entirety, apply to the exercise of a constitutional power under Article 356. On the basis of the judgment of Jeevan Reddy, J., which takes a narrower view than that taken by Sawant, J., it can be said that the view of the majority (Pandian, Kuldip Singh, Sawant, Agrawal and Jeevan Reddy JJ.) is that:
(i) the satisfaction of the President while making a Proclamation under Article 356(1) is justiciable;
(ii) it would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds;
(iii) even if some of the materials on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some relevant material sustaining the action:
(iv) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President;
(v) the ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power;
(vi) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of Ministers are the best judge of the situation and that they are also in possession of information and material and that the Constitution has trusted their judgment in the matter; and
(vii) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.
20. Similarly, an identical situation has cropped up before the Apex Court in Balbir Singh (supra) where a police man though dismissed under Article 311 (2) (c) of the Constitution of India, dispensing with the enquiry, was acquitted of the charges subsequently, the following observations have been made:
7. In the case of A. K. Kaul v. Union of India (1995 AIR SCW 2075) (supra) this Court has examined the extent of judicial review permissible in respect of an order of dismissal passed under second proviso Clause (c) of Article 311 (2) of the Constitution. This Court has held that the satisfaction of the President can be examined within the limits laid down in S. R. Bommai v. Union of India (1994) 3 SCC 1 : (1994 AIR SCW 2946). The order of the President can be examined to ascertain whether it is vitiated either by mala fides or is based on wholly extraneous and/ or irrelevant grounds. The Court, however, cannot sit in appeal over the order, or substitute its own satisfaction for the satisfaction of the President. So long as there is material before the President which is relevant for arriving at his satisfaction as to action being taken under Clause (c) to the second proviso to Article 311 (2), the Court would be bound by the order so passed. This Court has enumerated the scope of judicial review of the President's satisfaction for passing an order under Clause (c) of the second proviso to Article 311 (2). The Court has said, (1) that the order would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds' (2) even if some of the material on which the action is taken is found to be irrelevant the Court would still not interfere so long as there is some relevant material sustaining the action; (3) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President; (4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power; (5) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Council of Ministers are the best judge of the situation and that they are also in possession of information and material and Constitution has trusted their judgment in the matter; (6) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive. (cf. Also Union Territory, Chandigarh v. Mohinder Singh (1997) 3 SCC 68 : (1997 AIR SCW 1231)
8. If an order passed under Article 311 (2) Proviso (c) is assailed before a Court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State, the Court can examine the circumstances on which the satisfaction of the President or the Governor is based; and if it finds that the said circumstances have no bearing whatsoever on the security of the State, the Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations.
9. In the present case, there is no material to infer any mala fides. What is required to be seen is whether the order is based on material which is wholly extraneous or irrelevant, having no bearing whatsoever on the security of the State. The Tribunal had called upon the appellants to produce the entire confidential material on which the order is based. The Tribunal has held that at least two of the files placed before it are highly confidential. They all relate to the activities of the respondent which have a bearing on the security of the State. This is not a case where there is absolutely no material relating to the activities of the respondent prejudicial to the security of the State. The entire material gathered by the Intelligence Bureau was placed before a very high level Committee of Advisors under the procedure prescribed by the Government Memorandum. This was precisely for the purpose of ensuring that when a Government servant is dismissed without enquiry, there should be cogent material to indicate that it is necessary to do so in the interest of the security of the State. The material was examined by the Advisory Committee. Thereafter, it advised the dismissal of the respondent under proviso (c) to Article 311 (2). Therefore, the President has issued an order under proviso (c) to Article 311 (2).
10. In our view, this was not a case where there was no relevant material. The Tribunal could not have substituted its own judgment for the satisfaction of the President of India. The Tribunal is under a misapprehension when it holds that if the respondent could be criminally prosecuted a Departmental Enquiry could have been held on the basis of this same material. The respondent placed reliance on the observations to this effect made by the Andhra Pradesh High Court in B. Bhaskara Reddy v. Govt. of Andhra Pradesh, (1981) 1 Serv LR 249 : (1981 Lab IC 18). The Tribunal has not noted that the material which was placed by the Intelligence Bureau before the Advisory Committee and the President did not relate merely to the assassination of the Prime Minister. It related to various other activities of the respondent as well, which the authorities considered as prejudicial to the security of the State. The fact that the respondent was subsequently acquitted by this Court in the criminal trial will not make any difference to the order which was passed by the President on the totality of material which was before the authorities long prior to the conclusion of the criminal trial.
21. In our considered view, the only exception where interference is permissible in judicial review is when the action is based on malafides or on extraneous or irrelevant grounds. The truth or correctness of the material on substitution of opinion is not the jurisdiction vested in the court. There has to be a legitimacy of the action by the President and Council of Ministers but the Court is not precluded from examining the circumstances on which the satisfaction of the President has been arrived at.
22. We have seen the records, including the note put up before the Council of Ministers and the Advisory Committee. We have also perused the confessional statement of the applicant and other attending circumstances. Though no cognizance has been made to the criminality of the misconduct committed by the applicant, yet from the circumstances and the confession of the applicant, his indulgence in the activities prejudicial to the security of the State was considered to be a great threat to the country. Therefore, it was decided that it would not be in the interest of the security of the state to produce all the documents required if an enquiry is held and it was desired that his services should be terminated by invoking Article 310 (1) of the Constitution of India readwith Rule 19 (iii) of the CCS (CCA) Rules, 1965. We do not find any malafide on the part of the High Powered Committee and the President, as not only the applicant but also similarly situated others who have been found to have indulged in subversive activities against the State have been meted out a similar treatment. Applicant was neither isolated nor meted out a differential treatment. The exceptions carved out do not exist in the instant case to warrant any interference. The subjective satisfaction arrived at is apt in law. The decision in Balbir Singhs case (supra) fully covers the present issue.
23. As regards subsequent acquittal of applicant in criminal trial, though in normal circumstances when a government servant is acquitted in a criminal offence, which does not concern the security of the State or involved in espionage activities, the benefit of doubt has been held good for all purposes by the Apex Court in General Manager Uco Bank v. M. Venuranganath, 2007 (14) SCALE 307. Though there is no concept of honourable acquittal under the Criminal Procedure Code, yet an acquittal where some evidence has been found against the accused but not sufficient to hold him guilty in the present scenario where the allegations pertained to espionage, by no stretch of imagination this acquittal could be treated as an obliteration of the offence alleged against applicant or his clean acquittal. Moreover, in the High Court a Single Bench (supra) extensively dealt with the action of the respondents and placing reliance on Balbir Singh (supra) having recorded a finding that the reinstatement of applicant cannot be claimed just because he has been acquitted in the criminal case, a passing reference as to placing reliance on the confessional statement, which was not relied upon in the criminal proceedings, re-examination of the case of applicant vis-`-vis ground of acquittal has been fully complied with by the respondents in their order dated 31.3.2006, where all the circumstances have been considered, yet further recording that the acquittal by the Sessions Court would not deter in any manner the satisfaction arrived at by the President, which was based on sufficient material like confessional statement and circumstantial evidence. The observations made in review is only a liberty given to the applicant and prima facie view as to non-consideration of the judgment in the manner highlighted is not even obiter dicta, it is open for us to examine whether such a consideration has taken place in right perspective or not? From the perusal of the order passed on 31.3.2006, we are satisfied that reexamination has been done on valid consideration and the reasons recorded are apt in law.
24. No doubt, as per Tulsi Ram Patels case (supra) after the decision has been arrived at to dispense with the enquiry one is not remedy less. The remedy lies by way of departmental appeal but where while dispensing with the enquiry under Article 311 (2) (c) the satisfaction has been arrived at by the President to hold that it will be inexpedient to hold such an enquiry, even right to appeal would not be available.
25. As regards confessional statement, confession made before a police officer may not be admissible, in criminal proceedings where the Indian Evidence Act of 1872 with all its provisions has strict applicability, yet in the disciplinary proceedings or a decision to dispense with it when a departmental action, which is based on preponderance of probability and once even circumstantial evidence and hear-say evidence are admissible, the confession even made before the police would be admissible, as ruled by the Apex Court in Commissioner of Police v. Narender Singh, 2006 (4) SCALE 161, with the following observations:
24. In Kuldip Singh v. State of Punjab and Others [(1996) 10 SCC 659], this Court held :
"10. Now coming to the main contention of the learned counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of, a police officer is not admissible in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well settled that these rules of evidence do not apply to departmental enquiries_"
25. It is now well-settled that the provisions of the Evidence Act are not applicable in a departmental proceeding. [See Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Others (1997) 2 SCC 699; Lalit Popli v. Canara Bank and Others (2003) 3 SCC 583; and N. Rajarathinam v. State of T.N. and Another _ (1996) 10 SCC 371].
26. In State of Andhra Pradesh and Others v. Chitra Venkata Rao [(1975) 2 SCC 557], this Court held :
"19. The High Court was not correct in holding that the domestic enquiry before the Tribunal was the same as prosecution in a criminal case."
It was further held :
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226."
[See also State of Haryana and Another v. Rattan Singh (1977) 2 SCC 491]
28. The submission of Mr. Krishnamani that there lies a distinction between the provisions of Section 25 and Section 26 of the Evidence Act, in this behalf, may although be correct but the same is not of much significance for the purpose of this case.
29. Section 26 also speaks about confession by an accused while in custody of police. Sections 25 and 26 of the Evidence Act although seek to achieve the same purpose but they operate in somewhat two different fields. Section 25 raises an embargo as regard proof of confession before a police officer. The same need not be in police custody; whereas Section 26 raises a bar as regard admissibility of such confession, if made by an accused in the custody of a police officer although such a confession might have been made before a person who is not a police officer.
29. The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act.
30 A confession would mean incriminating statement made to the police suggesting inference of the commission of the crime and it, therefore, is confined to the evidences to be adduced in a court of law. If the provisions of the Evidence Act are not attracted in a departmental proceeding, a fortiori Sections 25 and 26 shall not apply.
26. Having regard to the above, reliance on confessional statement of applicant by the Committee and its further reliance on the satisfaction arrived at by the President does not suffer from any legal infirmity.
27. As regards subsequent acquittal, as the earlier action is not based on the criminal case but also other circumstances and factors, which are not found to be irrelevant or vitiated by malafides, the action of the respondents cannot be found fault with in law.
28. In the result, for the foregoing reasons, OA fails, as bereft of merit and is accordingly dismissed. No costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.