Central Administrative Tribunal - Delhi
Shri Narender Singh vs Union Of India Through on 13 October, 2011
Central Administrative Tribunal Principal Bench OA No.713/2009 New Delhi, this the 13th day of October, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Narender Singh S/o Late Bagga Singh R/o 311, patarkar Parisar, Sector-5, Vasundhara, Ghaziabad, UP 201012. . Applicant. (By Advocate : Shri Bharat Bhusan) Versus 1. Union of India through The Secretary Ministry of Defence, Government of India, South Block, New Delhi. 2. The Secretary DOPT, Government of India, North Block, New Delhi. 3. UPSC through Secretary, Shahjahan Road, Dholpur House, New Delhi. 4. The CVC Satarkta Bhavan, A Block, INA, GPO Complex (Near DDA Vikas Sadan) Central Vigilance Commission, New Delhi. . Respondents. (By Advocate : Shri R. N. Singh) : O R D E R: Dr. Ramesh Chandra Panda, Member (A) :
Shri Narender Singh, the applicant herein, while working as Assistant Financial Advisor in the rank of Grade-I Central Secretariat Service in the Ministry of Defence was charge sheeted vide Memorandum dated 20.09.2001 (Annexure-A2) with the allegation that he accepted bribe of `10000 as consideration for giving official information and promising to provide further information to those not entitled to receive the information and he actually passed the information to the unauthorized persons. There was widespread media reports in March, 2001, that Tehelka.com conducted a sting operation and video taped interview of their reporters with various officials in the Ministry of Defence and politicians who seemed to have been involved in defence deals. The video tapes inter alia disclosed the meeting of Special correspondent of Tehelka.com (Shri Mathew Samuel) who was the Sting Operator with the applicant where Shri Mathew Samuel mentioned about the handing over of `10000 to the applicant, and the applicant on his part received the said amount and kept under the table. The tapes also revealed that certain information about the defence deals were passed on by the applicant who also advised Shri Mathew Samuel not to go to other people and not to pay money to anyone else. The tapes further revealed the conversation between them to the effect that applicant could be trusted for a long association in future. It is the case of the applicant that a reading of the Annexure II to the Charge sheet discloses that the video and audio inputs are at variance which shows that the part of the conversation between them have been doctored by addition / deletion / modification and as such those video and audio tapes cannot be taken as authentic evidence for the disciplinary case against him. Further, it is averred that innocuous information relating to a French Army Officer posted in Delhi and Sagem have been trying to get their produce assessed cannot be said to be official information that too not confidential matter which are not in the official records. It is also the case of the applicant that the Government representatives have stated before the Justice K. Venkatswami Commission of Inquiry that video tapes placed before it by Tehlka.com are doctored. That was the reason for which he could not submit his reply to the charge sheet but without waiting for his response, the Disciplinary Authority decided to initiate inquiry against him. Further, it is stated that there was change of Inquiry Officer (IO)- Shri P. S. Khuntia was replaced by Ms. Anjana Dubey. The applicants case is that Shri Khuntia has requested the prosecution to produce the original tapes to find the correctness of the transcript but Ms. Dubey has not doubted the authenticity of the transcript. After inquiry, the IO submitted inquiry report (Annexure-A6) holding both charges as proved. Disciplinary Authority having agreed with the IOs finding sought the representation of the applicant and on receipt of the same, Central Vigilance Commission (CVC) advice was considered and the Union Public Service Commission (UPSC) was consulted. After taking into account all these relevant facts, the Disciplinary Authority in his order dated 01.05.2007 (Annexure-A1 colly) imposed the penalty of compulsory retirement on the applicant. He preferred review of the said order in his review petition dated 29.06.2007 (Annexure-A10)which on consideration was rejected vide order dated 05.02.2008 (Annexure-A1 Colly). Feeling aggrieved by both the orders dated 01.05.2007 and 05.02.2008 has come to this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying to quash and set aside both orders of the Disciplinary and Reviewing Authorities and to grant him the consequential benefits.
2. Shri Bharat Bhusan, learned counsel for the applicant highlighting the background of the case, advanced many contentions. We may briefly indicate the same. (i) The Principal contention of Shri Bharat Bhusan is that this is a case of no evidence. The Disciplinary Authority in order to prove the allegations relied on the documents listed in Annexure-III to the Charge sheet and statements of witnesses given in Annexure IV of the Charge sheet. It being a case of sting operation, the non listing of the original tapes in the list of documents, not even sought to be relied upon in the course of inquiry at any point of time, the charges could not have been proved. He referred to our order dated 3.2.2011 to state that the counsel for the respondents was not able to point out that audio and video tapes, transcription whereof had been produced before the IO, were such as might have been compared with the original chip, and if that be so, who compared the same? The counsel for the respondents submitted that there were other evidences and, therefore, it was not a case of no evidence. But Shri Bharat Bhushan contends that uncorroborated version of interested witness, as observed by this Tribunal in OA No.1902/2007 decided on 6.5.2008, if officers were to be held guilty of making illegal demand of money on their statement alone without there being any further proof, nobody on this earth would be safe. The only evidence of SW-3 has been mustered in the inquiry. He carried the entire sting operation. His evidence in a corruption case, being part of sting operation, is an evidence tendered by an interested party and is not admissible without corroboration. Shri Bharat Bhusan would submit that SW-3 in his deposition was not expected to say the truth, as he is duty bound to protect his sting operation. He would toe the line taken by Tehelka. Com. In the inquiry, SW-3 confirmed that he did not carry out any investigations into the property held by the applicant. When asked whether he met a corrupt officer of the Defence Financial Advisory Panel who would not allow any defence deal to go through unless and until money was paid to his clients, SW-3 replied that he did not meet any Financial Advisor but only met the applicant. He also confirmed that he did not come across any organization by the name of Defence Financial Advisory Panel. Thus, Shri Bharat Bhusan doubted the IOs conclusion that because SW-3 had no prior dealing with the applicant and, therefore, would not be an interested witness was not reasonable. He referred to the assessment made by IO on 1st Article of Charge to submit that there was no direct evidence and only circumstantial evidence points to the applicant accepting the money because the applicant never refused to take the money, which implied that he accepted `10000. The IO did not cite any evidence that official information was given or was promised to be given and yet she concluded that `10000 was accepted as consideration for giving official information and promising to provide further information. The IO accepts that the applicant did not seek favours nor tried to misuse or misguide Shri Samuel. The IO while agreeing with the PO that the applicant did not cross examine SW-3 on the issue of receiving `10000 ignored the materials on record, cross examination of SW-3, especially question 18 (b) which included if SW-3 could say that applicant was prone to corruption, SW-3 was asked to check the shot 067 as provided by Tehelka, SW-3 stated that he could not make out anything from the said extract. Shri Bharat Bhusans contention is that the cross examination of SW-3 to a large extent goes in favour of the applicant. The IO ignored to appreciate such language appearing in the documents and also quoted certain things out of context to arrive at a prejudged conclusion. He further contends that the allegation regarding giving information or promising to give information is vague. The IO in her report in para 3.3. indicates that CO did not part with official information Hence, there was no question of further information. Shri Bharat Bhusan submits that the findings of the IO are based upon conjectures and surmises, and are perverse, assuming without admitting that SW-3s statement without corroboration could be admissible, even then, there is no evidence against the applicant of demanding any money or anything, for that matter from the alleged giver of money, or for making any promise for the money. (ii) He would contend that the penalty imposed on the applicant is based on sting operation conducted by Tehelka. Com involving allegation of corruption against the applicant, in the sense there was demand and acceptance of bribe. He submits that there is no such allegation in the Charge Sheet, the Prosecution Witness viz. SW-3 affirms in his statement that demand for money has never been made by the applicant. Further, the IO in her report stated that the applicant did not seek favours nor tried to misuse or misguide Shri Samuel (SW-3) for his own further advantage. He, therefore, contends that there is not even a whisper in the charge sheet that the applicant demanded money and accepted. Thus, he is not liable to be held guilty for the alleged acceptance of bribe or illegal gratification. In this context, Shri Bharat Bhusan placed his reliance on the judgments of this tribunal in three OAs. In case of ASI Jai Raj Singh and Others versus Government of NCT of Delhi and Others and another case [OA No.523/2006 and OA No.2425/2006 decided by a common order on 21.12.2010], it has been held that mere suspicion and speculation has no place in such type of charge. In a case of bribe, the three major ingredients demand, acceptance and recovery must be fulfilled in order to meet the end of justice. In case of ASI Raj Singh and 2 others versus Government of NCT of Delhi [OA No.655/2007 decided on 2.11.2010] the Tribunal observed that there cannot be any dispute with regard to the proposition that unless demand and acceptance of money is proved an employee cannot be held guilty of receiving illegal gratification Further in case of ASI Ranbir Singh and Another versus Government of NCT of Delhi and Others[OA No.3261/2009 decided on 7.5.2010] it is held that in a case where the charge is of acceptance of illegal gratification, it is necessary to prove that the illegal gratification was demanded and it was accepted. (iii) The learned Counsel for the applicant referred to the charges to say that the applicant was proceeded on two alleged charges; (a) he accepted bribe of `10000 as consideration for giving official information and promising to give further information, and (b) gave official information regarding Sagem. He submits that the IO in her report notes the contention of applicant and has accepted that he has not given any official information regarding Sagem (iv) One more limb of his argument is that the original tape or the true copy thereof, has not been used in the inquiry. The transcripts provided by Tehelka.com which were edited, were used as Documents M-1. The applicant found two sets of transcripts, the one provided by UOI another provided by Tehelka.Com. Both differed from each other. The IO did not appreciate this and did not understand the difference in the two transcripts. Certification of document M-1 by the Secretary / Registrar of Justice K. Venktaswamy Commission of Inquiry was accepted by the IO. The applicant desired the Registrar to be examined as witness to show that he had not compared nor was it on the record of the Commission that the said document was a true transcript of the original tape. But he was not allowed to be examined. The applicant was thereby prejudiced in the Inquiry in two ways viz., (i) the applicant was not questioned under Rule 14 (18) of the CCS (CCA) Rules for which it was contended that the applicant was prejudiced inasmuch as he could not come to know as to what was being considered as material evidence against him to afford him an opportunity to rebut the same and (ii) in the absence of any evidence that the applicant was corrupt, it should have been concluded that SW-3 tried to corrupt the applicant. Such a trap done in the garb of sting operation cannot be called a legitimate trap, instead it is reprehensible act and in support thereof Shri Bharat Bhusan places his reliance on the Honble Apex Court judgment in the case of State of Ajmer versus Shivaji Lal (AIR 1959 SC 847). Evidence of SW-1 is a hearsay evidence and the evidence of SW-2 is against the prosecution and also against the Tehelka.com. Further, he relied on the judgment of the Full Bench of this Tribunal in batch of OAs leading being OA No.2546/2006 decided on 31.08.2009 where this Tribunal observed that mere acceptance of money by employees may not pin them down with accepting bribe or illegal gratification. It had to be further established that the money was being paid and/or received in lieu of services that may be rendered or favours that may be extended to the bribe giver. Shri Bhusan further states that even it it is assumed without admitting for arguments sake that money was accepted by the applicant, nothing has been established that the money accepted was paid and received in lieu of services or promise for services that may be rendered or favours that may be extended to the bribe giver. Findings returned by the IO are perverse and contrary to the material on record. The mention of `10000 is in shot number 067 and it does not refer to any information or promise to give information and yet the IO says that `10000 was accepted for giving official information. He, therefore, terms the inquiry as unfair. Learned Counsel contends that the advice tendered by CVC was mechanical without application of mind and the advice rendered by UPSC was based upon conjuctures and surmises and partial appreciation of material on record. For it being a case of no evidence, no punishment was called for. But the major punishment of compulsory retirement was inflicted on the applicant. It is, therefore, submitted that the OA should be allowed and the applicant be reinstated into his service.
3. In response to the written submissions of the respondents, the counsel for applicant has responded with a note dated 23.08.2011 in the following ways: (1) the principle of preponderance of evidence does not imply that the statements be extracted and quoted out of context to draw home the point as desired. The statements have to be read as a whole and in the proper context to appreciate the correct import thereof. No original chip was available to appreciate the whole of the statements. The transcript of Tehelka (M-1) was different from he transcript of UOI (D-9), so neither of the transcripts without comparison with the original, could be considered as true. (2) Our attention was drawn to the following NS looks a little peeved and troubled. T leaves. Gets into car says office. IO observes in her report in para No.2.13 of the Inquiry Report that the applicant was more tough in the second meeting. (3) The sum total of the ratio in the judgments cited by the respondents is that the Tribunal shall not substitute its own judgment in re-appreciation of evidence. The applicant is only submitting that IO was not justified in reaching the conclusions that the money transaction allegedly took place in return for giving some official information and promising to give further official information. It was reiterated that the applicant was not guilty, there was no evidence against him and the order of Disciplinary and Reviewing Authorities are liable to be quashed.
4. On receipt of notice from the Tribunal, the respondents have entered appearance through Shri R.N. Singh, learned Senior Central Government counsel and filed their counter reply affidavit on 28.8.2009. They have also filed an additional affidavit on 05.01.2011 pursuant to the directions issued by this Tribunal on various issues and also in response to the rejoinder filed by the applicant.
5. Controverting the above contentions advanced by the counsel for applicant, Shri R.N. Singh would submit that the present case being a Sting Operation in which the alleged mis-conduct committed by the applicant has been captured in the audio and video tapes. The principal witness in the case is Mr. Mathew Samuel who has been examined as SW-3 in the inquiry. The evidence that has been recorded in the inquiry has been properly analysed by the Inquiry Officer who has given her conclusion and findings holding both the charges as proved. Referring to the contentions of Shri Bharat Bhushan that the present case is a case of no evidence, he contends that in the present case there is enough corroborative evidence which has emerged during the inquiry from the statements given by SW-1, SW-2 and SW-3 and the documents like the transcript which have been properly authenticated. He refers to the evidence to submit that there is no refutal by the applicant about the receipt of `10,000/- from SW-3. It is not necessary that all the three components in a trap case namely, demand, receipt and recovery of cash should be there in a matter like the instant case where the applicant has received `10,000/- in lieu of information he has given and has promised to give more information in future. Shri R.N. Singh raised a question that had he not received `10,000, he could have raised the issue in the cross examination of SW-3 which he did not do. He submits that non production of original tapes before the Inquiry Officer would not in any manner vitiate the disciplinary proceedings against the applicant, as there is enough evidence in support of both the charges against the applicant in the form of statements in the form of transcript available and evidence adduced by the witnesses to support the same. He refuted the issue of different versions emerging from the transcript produced by Union of India and Tehelka.com in the inquiry. He submits that the Secretary/Registrar of Justice K. Venkataswamy Commission has authenticated the correct version of the transcription which has been accepted by the Inquiry Officer. As such, the transcript so authenticated is relevant in the present case. Shri R.N. Singh submits that the applicant has been inquired by the Inquiry Officer under Rule 14(18) of CCS (CCA) Rules and as such he repels the applicants claim that such inquiry having not been done by the Inquiry Officer, the whole inquiry proceeding has been vitiated. With regard to the judgments relied upon by the counsel for applicant, Shri R.N. Singh would submit that those are clearly distinguishable. He submits that even the Full Bench judgment relied upon by the applicant to say that the GhoosMahal case would cover his contentions, would not come to the applicants rescue as the star witness (SW-3) has been examined and cross examined in the inquiry in the instant case. The judgment of this Tribunal in GhoosMahal case noted that applicants in the said case were summarily dismissed from service without any inquiry. On the contrary, he would submit that in the instant case that proper disciplinary proceeding has been conducted where three witnesses have been examined in support of the disciplinary case against the applicant. He would, further, submit that the Shivaji Lals case (supra) relied upon by Shri Bharat Bhushan being a case of dealing with the issues of criminal nature, the law laid in the said case are clearly distinguishable and will not help the applicant. He also submits that unlike criminal cases where the benefit of doubt is granted if the prosecution does not prove the charges against the accused beyond reasonable doubt but in departmental/disciplinary proceedings, the principle of preponderance of probability and not the rigors of proved beyond doubt would hold the field . Exactly the same has been found by the Inquiry Officer while holding the charges as proved because there is adequate evidence found in the inquiry to apply the principle of preponderance of probability. Shri Singh submitted that in the absence of any evidence to show that the cash was returned to SW-3 by the charged officer (applicant), there was enough circumstantial evidence to support that `10,000/- was accepted by the applicant for the consideration of giving official information. He would also refer to the inquiry proceedings to argue that the applicant has received SW-3 more than once at his home which comes to prove the clear involvement of the applicant in the case. In support of the contentions raised by Shri R.N. Singh, he places his reliance on the judgments of Honble Supreme Court in B.S. Chaturvedi Vs. UOI and Ors. [(1995) 6 SCC 749], State of Tamilnadu & Anr. Vs. S. Subramaniam [(1996) 7 SCC 509], Chairman and Managing Director, V.S.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu [(2008) 5 SCC 569], Kuldip Singh Vs. State of Punjab and Ors. [(1996) 10 SCC 659] and the judgments of Honble High Courts in Syndicate Bank Vs. B.S. Narayanan [(1998) (4) SCT 606 and Union of India Vs. M. Shankar Kumar (WP(C) No.1361/2004) decided on 04.08.2010.
6. Having heard the above contentions of both the parties, with the assistance of their counsels, we perused the pleadings as well. On our direction, the respondents have placed before us 12 folders / records relating to the inquiry proceedings against the applicant. Those folders are; (i) Inquiry report and representation of the charged officer; (ii) charge sheet in original and other related correspondence; (iii) Prosecution documents (M1, M2, M3, M4, M5, M6 and M7); (iv) Defence Documents (D1, D2, D4,D5, D8, D9, D10, D11, D12, D13, D15, D16 and D17); (v) Defence Document (D-14); (vi) Defence Documents (D3, D6 and D7); (vii) Depositions of SW1, SW2 and SW3 and DW1 and DW2 and General Examination); (viii) IOs correspondence folder-two volumes (ix) Daily order sheet; (x) brief of presenting officer; (xi) Brief of charged officer and (xii) statement of defence. We carefully perused these records.
7. Two issues come up for our consideration and determination. (i) Is this a case of no evidence? (ii) Is the impugned penalty order legally sustainable? These issues are interlinked and intertwined. All other issues being ancillary to the above principal issues, will get addressed during our analysis on those two controversies.
8. In this context, we may refer to the settled position in law on the role of this Tribunal in the matters of disciplinary proceedings. It is trite that this Tribunal can examine the evidence to find out whether there is any evidence against the Applicant in the case. Compared to the level of evidence in criminal proceedings, the level of evidence in the departmental disciplinary case is not so full proof and beyond doubt. The probability of preponderance is applicable in the disciplinary cases including the present one. We note our power is limited in respect of appreciation or re-appreciation of evidence gathered during the inquiry. We may refer to the judgments of Honourable Supreme Court of India in the matters relating to framing of charges, conducting of the Inquiry, and orders of the Disciplinary and Appellate Authorities and identify the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we also kept in our mind while deciding the issues in the present OA, are the following: (i) Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which the decision is taken. (ii) The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards. (iii) The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
9. We may now advert to the first and second controversies. Is this a case of no evidence and whether the penalty of compulsory retirement imposed on the applicant is legally sustainable? Let us examine what charges were framed against the applicant? Two articles of charges have been framed against the applicant vide Memorandum dated 20.09.2011. The Statement of Imputation of these two articles read as follows:-
Article I Shri Narender Singh was posted as Assistant Financial Adviser in the Ministry of Defence w.e.f. 29th May, 2000-14th March, 2001. A private Internet portal, M/s Tehelka. Com. Had video taped certain meetings of their representatives posting as employees of a fictitious company, M/s Westend International, with various officials in the Ministry of Defence apparently to expose murky defence deals. The tapes have revealed a meeting of Shri Mathew Samuel, Special Correspondent of Tehelka.Com posing as a representative of this company, with Shri Narender Singh at his residence. In the course of the meeting, Shri Mathew Samuel handed over Rs.10,000/- to Shri Narender Singh. While handing over the money to Shri Narender Singh, Shri Mathew clearly mentioned that he was handing over the said amount. It is evident from the tapes that Shri Narender Singh accepted the money and kept it under the table. Though part of the material portion when the money was handed over is not seen in the video, the audio inputs of those precise moments clearly capture Shri Mathew telling Shri Singh about handing over Rs.10,000/-. At no point of time in the tape, Shri Narender Singh refused to take the money. Further, Shri Narender Singh has revealed to Shri Mathew, in the course of their conversation, certain information about defence deals.
It is further seen that Shri Narender Singh in his statement dated 12.4.2001 has accepted that the voice in the conversation in the said Tape was his. Shri Mathew Samuel in his statement dated 18.05.2001 has deposed that he paid Rs.10,000/- to Shri Narender Singh and the latter took the money and kept it under the table. Shri Mathew further deposed that Shri Narender Singh did not return the money, as he claimed subsequently, in his deposition before the Chairman of the One Man Fact Finding Committee. In fact Shri Narender Singh advised Shri Mathew not to go to other people and not to pay money to anyone else. The deposition has further revealed that in the course of interview, Shri Narender Singh also hoped that he and Tehelka would have a long association.
Thus by the above said act, Shri Narender Singh has committed grave misconduct, exhibited lack of integrity, devotion to duty and acted in a manner unbecoming of a government servant, thereby violating the provisions of Rule 3(1) (i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
Article II The tape referred to under Article I above has revealed that, in the course of the meeting, Shri Narender Singh communicated official information regarding purchase of army equipment, to the Tehelka representative who was not authorized to receive such information. Shri Narender Singh in his meeting with the Tehelka.Com representative stated that Sagem, the French Company had been trying to get their products assessed by the Indian Army for the last five years but was not successful. He also mentioned that a retired General level officer of the French Army has been posted in Delhi for this purpose. In his deposition on 12.4.2001 before the Chairman of One Man Fact Finding Committee, set up by the Ministry of Defence, Shri narender Singh has tried to explain his acts by stating that he found Mr. Mathew who posed as representative of a Company, to be a very naove person and the world of defence deals being a very murky one, he thought that Mr. Mathew would be done in by the persons dealing with procurement cases, since he seemed to be totally unaware of the system. He, therefore, took pity upon Mr. Mathew and advised him, as revealed in the tapes. It is thus established that Shri Narender Singh has conveyed official information to a person to whom he was not authorized to communicate such information.
By his aforesaid act, Shri Narender Singh, Asstt. Financial Adviser, has contravened Rule 11 of the CCS (Conduct) Rules regarding communication of official information and has also shown lack of integrity and ahs exhibited conduct unbecoming of a Government servant thereby violating Rule 3 91) (i) and 3 (1) (iii) of the CCS (Conduct) Rules, 1964.
10. The Inquiry Officer, having conducted comprehensive inquiry, submitted her report to the Disciplinary Authority on 31.10.2005. The Summary and Findings of the same are reproduced below:-
IV Summary and Findings 4.1 The case relates to the infamous revelations made in the website Tehelka.Com through a sting operation, against the Ministry of Defence. Shri Mathew Samuel posted as the Chief Representative of a fictitious firm M/s Westend International and developed contacts in the Ministryof Defence through his acquaintance Shri Sasi who worked as an Assistant in the MOD. The charges in this case against Shri Narender Singh, the CO relate to illegal gratification and providing official information to unauthorized person.
4.2 The defence of the CO is mainly based on the issue that the charges are vague and not specific. The Tehelka. Com has carried out sting operation only to sensationalise the sensitive issue of defence procurement and gain publicity. The credentials of Shri Mathew are doubtful. The tapes have been edited and distorted with motives and mischievous intent to defame the CO. Objections were raised by the CO in the Inquiry for admitting the document M-1. However, certified copy of the document by Justice K. Venkataswami Commission was accepted and taken on record. A copy of Tape No.28 and 34 was also obtained for use in the Inquiry in case of doubt. CO was also allowed certified copy of the transcript prepared by UOI. M2, M3, M6, M7 and M8 were taken on record. M-4 and M-5 were got authenticated by the witnesses. Thus, the COs contentions with respect to the veracity of the documents were satisfied and accordingly all management documents were found in order and accepted for the purpose of Inquiry. Defence documents Ex.D.1 to Ex.D.14 and one defence witness were allowed to the CO and Regular Hearing was initiated. During the course of Regular Hearing CO was allowed additional documents (Ex.D.15 to Ex.D.17) and one defence witness (Shri P. Sasi).
4.3 As regards the credibility of the prosecution witnesses it is observed that the witnesses Shri Samuel Mathew and Shri Anirudh Bahal had at no prior dealing with the CO and there is no reason to suspect any malicious intent to their part against the CO. During their deposition they were frank and candid and accepted that they have added/edited the text in the manuscript to give it a story-line. It is also observed that they have stated the designation of the CO and other officials to much higher level and played with words for sensationalisation of the story. These things were added as commentary. However, this does not in anyway imply that the basic conversation and oral and documentary evidence has been manipulated/doctored. The facts of the converstation/their statements have been verified by the two witnesses (SW-1 and SW-3).
4.4 One of the argument of the CO is that the information he passed on to Shri Samuel Mathew was available in public domain. It is observed that the information on the Directorates/officials of Ministry of Defence and as to who would deal/not deal and clear the proposal is not an information on public domain. It is a specific information known to only the dealing officers/personnel/staff of the Ministry of Defence and hence is not authorized to be told/offered to any representative. The COs arguments in this regard are not accepted. The Annual Reports and the replies to the Parliament Question give only general information and no information with respect to dealing official etc. These defence documents cited by CO at best would give some idea about the procurements made by the MOD. The general examination of the CO also revealed that he entertained Shri Mathew Samuel though he had no specific reason to do so except the request of Col. Sahgal. He was no longer dealing with the defence procurement. However, he by virtue of his earlier work experience was in the know of specific procedure and personnel of WE Directorate which dealt with such proposals. There is clear evidence that he was offered Rs.10,000/-. Circumstantial evidence implies he did not resist/refuse the offer.
4.5 Keeping in view the above each of the charges have been assed on the basis of oral and documentary evidence and taking into account the POs brief and COs contentions. The findings on each of the articles of charges are as follows:-
Article-I : Proved Article-II : Proved.
11. On 02.12.2010, the respondents were directed to obtain the original tapes from the Trial Court where Criminal proceedings were pending for being shown to us and also to file an affidavit to the effect that audio and video tapes transcription whereof was produced before the IO, were such which may have been compared with the original chip and if so who compared the same. The respondent filed the additional affidavit on 05.01.2011 which inter alia disclosed the following: (i) on the basis of the procedure adopted by the One Man Commission, the copy of the tapes requested in connection with the departmental proceedings should have been made in the premises of the Commission from one equipment to another through the wires in the presence of Commission officials and handed over to the applicant and the original tapes were not handed over to the applicant for comparison. As the Commission had been wound up long back, and the concerned officials current posting/placing were not readily known, the respondent could not ascertain for confirmation the details of the said procedure stated to have been adopted by the Commission. (ii) Further, the respondents made best efforts to procure the original tapes number 28 and 34 from the Court of Special Judge through CBI and the same was not acceded to by the Trial Court in its order dated 21.12.2010.
12. Further, during the hearing the relevance or otherwise of the judgment of Full Bench of this Tribunal in OA No.2546/2006 and associated other OAs relating to the sting operation by India Today popularly known as Ghoos Mahal Case was sought. Both parties referred to the case in support of their respective contentions. We note that the present case is different from the facts of the case in OA No.2546/2006 (GhoosMahal case). In the present case the disciplinary proceeding followed the prescribed procedure and the applicant was provided appropriate opportunity to defend himself. The Disciplinary Authority followed the extant rules, consulted CVC and UPSC, considered the representations and defence taken by the applicant at each stage and decided the case in imposing the major penalty of compulsory retirement. It is seen that SW3 (Mathew Samuel) being the sting operator has been examined and cross examined during the inquiry. The applicant terms him as an interested party and the statement made by SW-3 should not be considered. We notice that SW-3 is the direct witness to the incident. He is the star witness whose evidence is relevant in the case. This Tribunal in the Ghoosmahal Case (OA No.2546/2006 and associated OAs) noted that orders of dismissal were issued without conducting any inquiry and further observed that the Disciplinary Authority should have got the sting operator as the witness. Exactly what were found missing in the GhoosMahal case i.e. proper departmental inquiry, had been attended to in the instant case, not only the proper inquiry had been conducted but SW-3, i.e. the sting operator has been examined in the inquiry. We may refer to the pertinent part of the said judgment to appreciate the difference, which reads as follows:-
.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.
13. From the above observations, we are of the opinion that the ratio laid in the referred case does not support applicants case. We noticed that proper departmental inquiry prescribed under CCS (CCA) Rules was conducted where the sting operator (Shri Mathew Samuel) and the Editor of the Channel (Shri Anirudha Bahal) were examined as SW3 and SW1 respectively in the inquiry. Besides their statements recorded before the Fact Finding Committee have been taken into account in the inquiry as prosecution documents M4 and M5 respectively. Examination and cross examination of SW1 and SW3 in the inquiry have been conducted before the Inquiry Officer.
14. It is appropriate for us to note that the Inquiry Officer in his report has taken up both the charges and considered the same in the background of the Rule 3 and Rule 11 of CCS (CCA) Rules. She flagged three questions to be determined in the inquiry. Those are (i) whether the applicant communicated vital information relating to Defence to un-authorised persons (ii) Whether the applicant promised to provide further information, (iii) Did the applicant accept the illegal gratification as consideration for guiding the representative of M/s West End. It is appropriate to note that the Inquiry Officer has considered the issue of production of original tapes and noted that since the original tapes were in the custody of the Justice K. Venkataraman Commission, the documents M-I received with the seal of the Commission would be treated as authentic document for the purpose of her inquiry. The applicant did inspect the documents mentioned in the Annexure-3 of the charge sheet in the presence of the Presenting Officer on 02.12.2001. Thus, we do not find any reason to disbelieve the MI documents i.e. the transcript authenticated by the Registrar of the said Commission. Non-examination of the Commission Registrar does not, in our opinion vitiate the inquiry proceedings.
15. At this stage, we refer to the issue which came up more often in the hearing whether the principal witness was cross examined by the applicant, more specifically, on the matter of giving the money (`10000) to the applicant and return of the said money by the applicant. There is evidence about the receipt of `10,000/- by the applicant but there is no whisper about the return of the same amount, even the applicant has not cross-examined SW-3 to prove his bonafide. With regard to the evidence relating to Shri Mathew Samuel (SW-3), who handed over `10,000/- to the applicant, the inquiry officer has found that the audio in puts of these precise moments clearly capture Shri Mathew Samuel telling Shri Singh about handing over `10,000/- and therefore, did not find from the tape at any point of time that the applicant had refused to take the said money. The inference that the Inquiry Officer has drawn from this reads as follows this, imply that he accepted the amount of `10,000/- as consideration for giving official information, promising to provide further information, Inquiry Officer in his report has stated that the circumstantial evidence clearly point on Shri Narender Singh accepting the money.
16. The inquiry further reveals that SW-3 (Shri Mathew Samuel) representing M/s West End International met the applicant at his residence twice where Shri Samuel was referred by Col. Sahgal to the applicant . It is the applicant under influence of said Col. Sahgal introduced the SW-3 and guided him with the information on the defence procurement procedure. These and other discussions have been detailed in the transcript. It is also noticed that transcript of the tape number 28 and 34 (Ex D9 and Ex D-10 respectively) was in the document M-I which is an edited version of the commentary prepared by the Union of India. The Inquiry Officer has stated that there is evidence on both these transcripts edited and unedited (M-I and D9) that SW-3 offered `10,000/- to the applicant and the applicant on his part has accepted the said amount besides other incentives. The Inquiry Officers report brings out certain conversations between the applicant and SW-3 which corroborates the above conclusions arrived at by the Inquiry Officer. In this regard, the part 3.10 of Inquiry Officers report is relevant which reads as follows :-
3.10 Though the tapes have been edited yet the contention of the CO that the tapes are doctored or editing is unethical is not substantiated. In fact UOI transcripts Ex.D.9 and Ex.D.10 reveal much more. Though directly CO has not sought favours and nor tried to misuse or misguide Shri Samuel for his own further advantage. However, indulging in loose talk, giving impression that he would be of help, divulging all kinds of information to unknown and unauthorized person and entertaining them in the house is definitely unbecoming of an officer. As per M-2 CO has stated that he wanted to pay me a wad of 100 Rupees currency notes. I was puzzled in the first instance. But later on told him to take the money back as I am not accepting the money and why is he paying me when I cannot do anything for him. While going back that person too the money with him. Nowhere in any transcript the above mentioned conversation exists and as suggested by PO, CO did not cross-examine SW-3 on this issue. SW-3 in his statement has denied that he took any money back. Thus, direct evidence of offer of Rs.10,000/- exists and as per the deposition of SW-3 and circumstantial evidence of conversation as per various transcripts of tape, the Article of Charge I held as proved.
17. With regard to the Article 2, Inquiry Officer has also considered the case presented by the Presenting Officer and thereafter by the applicant. The Inquiry Officers assessment revealed that the applicants arguments was that he took pity on SW-3 and found him to be naove and being misled by other officials. Therefore, applicant tried to guide him. He further argued citing the deposition of Defence Witness-2 that whatever he stated to SW-3 about Sagem was totally in contradiction to the factual position. Thus applicants arguments was that same should be construed as if the applicant did not convey any information to the SW-3. The Inquiry Officer has accepted the version. It is seen from the evidence that the applicant did not part with the correct information of Sagem. His statement revealed that he was helping SW-3 to save him from the clutches of unscrupulous officers. The Inquiry Officer has gone forward to indicate the following in her assessment on this charge :-
However, giving any information on a competitor (correct or incorrect) to any other agent (authorized or unauthorized) in itself is improprietory. In his efforts to guide Shri Samuel under the influence of Col. Sahgal, Shri Singh has given him details of Directorates involved and the channels to follow. No where the RFP cited by CO as defence document gives such details. CO in M-2 has also stated that first of all the product has to be trial evaluated by WE Directorate and if found successful then only RFP can be issued to them. Thus, RFP cannot be issued to all vendors. Thus COs contention that he gave only the information which was on public domain is not accepted. He had offered to give SW-3 references to whom he can meet in an official manner and explain problems being faced by him on induction of equipment though CO was no longer concerned with induction or procurement of imported equipments. Other defence documents like Annual Report and Parliament Question cited by CO, at best give an idea about the procurements made by MOD and not on the channel and directorates. As made clear by DW-2 sharing of this restricted document with unauthorised persons by a Personnel who is not authorized to meet vendors in itself exhibits misconduct. Hence, the basic article of charge that Shri Singh passed on official information to unauthorized persons is held as proved.
18. We have also extracted within the summary of findings of the Inquiry Officer. Collective reading of the evidence which emerged from prosecution and Defence Witnesses during the inquiry would disclose that there was evidence in support of the receipt of `10,000/- by the applicant from SW-3. Besides, there is evidence that he has given certain information and promised to give some more information to SW-3. All these three components of two charges as highlighted by the Inquiry Officer have been held as proved. The evidence in the IOs report is adequate for the Disciplinary Authority to take disciplinary action against the applicant. The principle of preponderance of probability as indicated by the counsel for respondents, would be squarely applicable as there is evidence against the applicant, in the forms of statements of SW-1, SW-2 and SW-3 and various documents referred to by the Inquiry Officer in the inquiry. We, therefore, are of the considered opinion that there is evidence in the case on which the Disciplinary Authority has correctly imposed the punishment. The contention of the counsel for applicant that this is a case of no evidence, is not borne out of the facts.
19. One legal infirmity in inquiry was raised by the counsel for the applicant i.e., the applicant was not examined by the Inquiry Officer under Rule 14 (18) of CCS (CCA) Rules. Our perusal of the pleadings shows that the applicant was put 14 questions by the Inquiry Officer on 31.8.2005 to which he did furnish his reply. Thus, this contention of the Applicants counsel does not stand to reason.
20. We may refer to other associated issues like compliance of principles of natural justice and the proportionality angle. In view of the above discussions and conclusion that there is adequate evidence in the case and the inquiry officer has held both charges as fully proved. Acceptance of `10,000/- in lieu of passing on certain official information and promising to pass on more such information are misconduct of grave nature for which imposition of a major penalty is proportionate. For the proved misconduct as enshrined in the charges and concluded in the Inquiry Officers report, the applicant has been visited with a punishment of compulsory retirement by the Disciplinary Authority. Though, the doctrine of proportionality has not been raised as one of the grounds by the applicant, we however, tested the penalty from the proportionality angle. We find that proved misconduct is grave. Receipt of `10,000/- as bribe is corruption which is serious misconduct. We, therefore, hold that the punishment of compulsory retirement imposed by the Disciplinary Authority and upheld by the Reviewing Authority is proportionate to the proved misconduct of receiving `10,000/- from SW-3 and passing on certain information and promising to give more information to SW-3. Therefore, we are of the considered opinion that the penalty imposed on the applicant for the said proved misconduct is proportionate. We also note that Inquiry Officer, Disciplinary Authority and Reviewing Authority have meticulously followed the principles of natural justice by granting adequate opportunities to the applicant to defend himself. Hence, the penalty order dated 01.05.2007 passed by the Disciplinary Authority and Review Order dated 05.02.2008 passed by the Reviewing Authority in rejecting the applicants review petition is sustainable in the eyes of law.
21. Having considered the totality of facts and circumstances of the case, and in view of our discussions within, we are of the considered opinion that the applicant has not been able to convince us for any interference in the matters. We, therefore, find that the penalty order dated 01.05.2007 and review order dated 05.02.2008 are legally sustainable and procedurally maintainable.
22. Resultantly, the Original Application being devoid of merits is dismissed leaving the parties to bear their respective costs.
( Dr. Ramesh Chandra Panda ) ( V.K.Bali )
Member(A) Chairman
/rk/