Gujarat High Court
Government Of Gujarat & 3 vs R B Sreekumar on 4 September, 2015
Bench: M.R. Shah, G.R.Udhwani
C/SCA/4150/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4150 of 2008
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
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GOVERNMENT OF GUJARAT & 3....Petitioner(s)
Versus
R B SREEKUMAR, IPS (RTD.)....Respondent(s)
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Appearance:
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGITA VISHEN, ASSTT.
GOVERNMENT PLEADER for the Petitioner(s) No. 1 4
MR IH SYED, ADVOCATE with MR KALPESH N SHASTRI, ADVOCATE for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 04/09/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Articles 226 and 227 of the Constitution of India, petitioners herein - Government of Gujarat through its Chief Secretary and others - original opponents have prayed for an appropriate writ, direction and order to quash and set aside the impugned judgment and order dated 28.09.2007 passed by the learned Page 1 of 40 HC-NIC Page 1 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "learned Tribunal") in Original Application No.166/2006 by which the learned Tribunal has allowed the said application preferred by the respondent herein - original applicant and has quashed and set aside the chargesheet dated 06.09.2005 issued and served upon the original applicant mainly on the ground that the same is barred by the provisions of Section 6 of the Commissions of Inquiry Act, 1952 (hereinafter referred to as "Inquiry Act").
[2.0] Facts leading to the present Special Civil Application in nutshell are as under:
[2.1] That the respondent herein - original applicant - a retired IPS Officer belonging to Gujarat cadre was at the relevant time serving as Additional DGP (Police Reforms), Government of Gujarat. That prior thereto original applicant was serving as Additional DGP - CID (IB) including for the period between 06.04.2002 and 18.09.2002.
[2.2] That the Government of Gujarat set up a Commission of Inquiry (hereinafter referred to as "learned Commission") under the Inquiry Act consisting of Mr. Justice K.G. Shah, Retired Judge of the High Court vide its notification dated 06.03.2002. Initially it had following terms of reference.
"(1) To inquire into
(a) The facts, circumstances and the course of events of the incidents that led to setting on fire of some coaches of the Sabarmati Express Train on 27/2/2002 near Godhra railway station,
(b) The facts, circumstances and course of events of the subsequent incidents of violence in the State in the aftermath of the Godhra incident and
(c) The adequacy of administrative measures taken to Page 2 of 40 HC-NIC Page 2 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT prevent and deal with the disturbances in Godhra and subsequent disturbances in the State, (2) To ascertain as to whether the incident at Godhra was a pre planned and whether information was available with the agencies which could have been used to prevent the incident, (3) To recommend suitable measures to prevent recurrence of such incidents in future."
It appears that thereafter the said learned Commission was reconstituted in the public interest by converting it into two member Commission headed by Mr. Justice G.T. Nanavati, Former Judge of the Hon'ble Supreme Court of India as Chairperson and Mr. Justice K.G. Shah, Former Judge of High Court as a Member vide notification dated 20.07.2004. The following terms of reference were also added "(d) Role and conduct of the then Chief Minister and/or any other Minister(s) in his Council of Ministers, Police Officers, other individuals and organizations in both the events referred to in clauses (a) and (b),
(e) Role and conduct of the then Chief Minister and/or Minister(s) in his Council of Ministers, Police Officers (i) in dealing with any political or nopolitical organization which may be found to have been involved in any of the events referred to hereinabove, (ii) in the matter of providing protection, relief and rehabilitation of the victims of communal riots (iii) in the matter of recommendations and directions given by National Human Rights Commission from time to time."
It appears that the respondent herein - original applicant submitted his 1st affidavit dated 06.07.2002 before the learned Commission. That thereafter the respondent herein - original applicant was transferred from the post of Additional DGP (IB) to Additional DGP (PR). That on 25.08.2004 the respondent herein - original applicant Page 3 of 40 HC-NIC Page 3 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT taperecorded his conversation with one Shri Murmu, Home Secretary (Law & Order) and one Shri Arvind Pandya, Special Government Counsel (alleged to have taperecorded the conversation surreptitiously and unauthorizedly). That thereafter the deposition of the respondent herein - original applicant was recorded before the learned Commission on 31.08.2004. That on 06.10.2004 the respondent herein - original applicant submitted his 2nd affidavit before the learned Commission. At this stage it is required to be noted that till 06.10.2004 i.e. neither during the course of his deposition before the learned Commission on 31.08.2004 nor in the 2nd affidavit produced before the learned Commission dated 06.10.2004, the respondent herein - original applicant referred to anything about his socalled official diary or the taperecorded conversation (which was the subject matter of charge sheet in question).
[2.3] That on 23.02.2005, one Shri K.R. Kaushik, who was junior to the respondent herein - original applicant, came to be promoted to the post of DGP. It appears that at the relevant time the Departmental Promotion Committee put its recommendation with respect to the respondent herein - original applicant in sealed cover in view of the pendency of certain proceedings against him.
It appears that the respondent herein - original applicant disclosed the information relating to the aforesaid taperecording to a daily newspaper "Divya Bhaskar" on 04.03.2005. The respondent herein
- original applicant also disclosed the aforesaid information to a newspaper called "Tehelka" on 12.03.2005 which published in their publication, part of the conversation between the respondent herein - original applicant, Home Secretary (Law & Order) and the Senior Government Counsel as taperecorded by him.
[2.4] It appears that thereafter the respondent herein - original applicant submitted his 3rd affidavit before the learned Commission on Page 4 of 40 HC-NIC Page 4 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT 09.04.2005. It appears that the said 3rd affidavit was submitted by the respondent herein - original applicant on his own and not pursuant to any witness summons issued by the learned Commission. It appears that in the said 3rd affidavit, for the first time the respondent herein - original applicant mentioned about one official diary maintained by him, during his tenure as Additional DGP and CID (IB) during the period between 06.04.2002 to 18.09.2002 as well as the taperecorded conversation on 25.08.2004 etc. [2.5] It appears that on 24.04.2005 the respondent herein - original applicant went to media and disclosed the information relating to the aforesaid diary. That thereafter the departmental inquiry was initiated against the respondent herein - original applicant and respondent herein
- original applicant was served with the chargesheet issued by the petitioner No.3 herein - Principal Secretary, Home Department, State of Gujarat for major penalties, on 06.09.2005 calling upon the respondent herein - original applicant to submit his defence as contemplated by All India Services (Conduct) Rules, 1968 (hereinafter referred to as "Rules, 1969"). That alongwith the Memorandum dated 06.09.2005, he was served with the Articles of Charges along with the Statement of Imputation of misconduct or misbehaviour by him. The Articles of Charges against the respondent herein - original applicant are as under:
"Charge1 Shri R.B. Sreekumar through his representatives knowingly, falsely claimed in Press and Media Conference a "private" diary (The contents whereof are not admitted) to be an "official" diary written by him during his tenure as Additional DGP, which conduct of his is unbecoming of a member of the service under Rule3(1) of All India Service (Conduct) Rules, 1968.Page 5 of 40
HC-NIC Page 5 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Charge2 Before making public disclosure of the said diary in Press and Media, no permission of any higher authority was obtained by Shri R.B. Sreekumar, which conduct of his is unbecoming of a member of the service under Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge3 Shri R.B. Sreekumar made public disclosure of the said private and unauthorized diary before press and media through his representatives, with an ulterior motive to malign higher officers/authorities and State Government and tarnish their reputation / image out of vindictiveness as he was not promoted to the rank / grade of Director General of Police. This conduct of Shri R.B. Sreekumar is unbecoming of a member of the service and thereby he violated Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge4 Shri R.B. Sreekumar through his representatives made a statement in Press and Media Conference with regard to the said alleged "official" diary and contents thereof which had the effect of an adverse criticism of the State Government and which was capable of embarrassing the relations between the Central Government and State Government. This conduct of Shri R.B. Sreekumar is unbecoming of the member of the service and thereby he violated Rule 3(1) and 7 of All India Services (Conduct) Rules, 1968.
Charge5 Shri R.B. Sreekumar clandestinely, unauthorizedly and illegally recorded conversation with Secretary (Law & Order), Page 6 of 40 HC-NIC Page 6 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Home Department Mr. Murmu and Special Government Counsel Mr. Pandya, which conduct of his is unbecoming of a member of the service and thereby he violated Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge6 Shri R.B. Sreekumar unauthorizedly parted with the said illegally and unauthorizedly recorded conversation as aforesaid to the Press and Media without obtaining permission of higher authorities, which conduct of his is unbecoming of a member of the service under Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge7 The illegal and unauthorized recorded conversation as mentioned in charge5 was unauthorizedly parted with media by Shri R.B. Sreekumar through his representatives with an ulterior motive to enable media to publish distorted version thereof with a view to malign Secretary (Law & Order), Home Department Mr. Murmu, Special Government Counsel and State Government as a whole and tarnish their image and reputation in the eyes of public, which conduct of his is unbecoming of a member of the service under Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge8 Shri R.B. Sreekumar did not obtain the required permission from the competent authorities before producing secret communications/reports from Subsidiary Intelligence Bureau (SIB) Ministry of Home Affairs, Government of India, dated 14/3/2002, 26/3/2002, 28/3/2002, 22/4/2002, 20/5/2002 and TP Message from Ministry of Home Affairs, Page 7 of 40 HC-NIC Page 7 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Government of India dated 31/5/2002 along with his affidavit dated 15/7/2002 before the Hon'ble Commission of Inquiry of Mr. Justice Nanavati and Mr. Justice Shah. This conduct of Shri R.B. Sreekumar is unbecoming of a member of the service and thereby he violated Rule 3(1) of All India Services (Conduct) Rules, 1968 and section 5 of the Official Secrets Act.
Charge9 Shri R.B. Sreekumar, upon his transfer from Addl. DGP (IB) to Addl. DGP (PR) on 18/9/2002, kept copies of secret reports of I.B. in his possession without permission of higher authorities as it is evident from his Original Application No.213/2005 filed with Hon'ble Central Administrative Tribunal, Ahmedabad, Shri R.B. Sreekumar produced copies of such secret documents as Annexure A2 to O.A. No.213/2005 without taking permission of higher authorities. This conduct of Shri R.B. Sreekumar is unbecoming of a member of the service and violative of the provisions of section 5 of Official Secrets Act, 1923 and Rules 3(1) and 9 of AIS (Conduct) Rules, 1968."
[2.6] It appears that the respondent herein - original applicant in response to the aforesaid chargesheet called for furnishing legible copies of certain documents annexed to the chargesheet which seems to be accordingly provided. It appears that thereafter the respondent herein
- original applicant called for certain new documents, which according to the petitioners, were not relied upon by them. Therefore, suitable reply was given. That thereafter vide communication dated 18.04.2006 the respondent herein - original applicant was finally called upon to furnish his defence statement.
[3.0] That thereafter the respondent herein - original applicant approached the learned Tribunal by filing Original Application Page 8 of 40 HC-NIC Page 8 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT No.166/2006 challenging the chargesheet dated 06.09.2005 mainly on the ground that that said chargesheet was hit by section 6 of the Inquiry Act. It was contended on behalf of the respondent herein - original applicant that the departmental inquiry has been initiated on the basis of his deposition and material presented by him before the learned Commission and therefore, it is violative of Section 6 of the Inquiry Act and Rule 8 of Rules, 1968. Relying upon the decision of the Hon'ble Supreme Court in the case of Kehar Singh vs. State (Delhi Administration) reported in (1988)3 SCC 609, it was submitted that the disciplinary proceeding is a civil proceeding. Therefore, it was submitted that as the disciplinary proceeding / chargesheet is contrary to law, it can be interfered that even at the initial stage. On merits also the respondent herein - original applicant challenged the charges and/or denied the charges leveled against him. It was also submitted that on the basis of the charges leveled against him it cannot be said that he has committed any misconduct as alleged.
[3.1] The application was opposed by the petitioners herein - original opponents. It was vehemently submitted that with respect to the charges leveled against the original applicant and so stated in the chargesheet, section 6 of the Inquiry Act has no application at all. It was vehemently submitted that disciplinary proceeding cannot be said to be civil proceeding. It was specifically denied that the initiation of departmental inquiry and/or with respect to the charges mentioned in their charge sheet, it has anything to do with giving statement as a witness by the original applicant for which there can be a bar under Section 6 of the Inquiry Act. It was vehemently submitted that the disciplinary proceedings were at the initial stage and therefore, it was requested not to interfere with the departmental proceedings at the initial stage. It was specifically contended on behalf of the petitioners herein - original opponents that none of the charges mentioned in the chargesheet are barred by any law as sought to be contended on behalf of the original Page 9 of 40 HC-NIC Page 9 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT applicant. It was specifically contended on behalf of the petitioners herein - original opponents that with malafide intention and as he was denied the promotion in the year 2005, he on his own filed the 3rd affidavit before the learned Commission. It was submitted that being an IPS Officer, he misused his office and tried to malign the image and reputation of the Government as he was denied the promotion for valid reasons. It was further submitted on behalf of the petitioners herein - original opponents that earlier when the original applicant gave a statement before the learned Commission and/or filed two affidavits (which were prior to his denial of promotion), there was no reference by him with respect to the alleged diary (alleged to have been maintained by him during his tenure as Additional DGP - CID (IB) during the period from 06.04.2002 to 18.09.2002) and/or with respect to any such tape recorded conversation which he disclosed for the first time in his 3rd affidavit before the learned Commission on 09.04.2005. It is submitted that prior thereto he with a malafide intention and to malign the State Government first approached the media and disclosed about the so called taperecorded conversation. It was further contended on behalf of the petitioners herein - original opponents that despite the fact that so called diary alleged to have been maintained by the original applicant during his tenure as Additional DGP - CID (IB) during the period from 06.04.2002 to 18.09.2002 cannot be said to be a diary maintained by him in his official capacity and/or it cannot be said to be official diary, he described the same as official diary and thereby committed a grave misconduct. It was therefore submitted that the State may proceed further with the departmental inquiry with respect to the charges mentioned in the chargesheet dated 06.09.2005.
[3.2] That the learned Tribunal framed the following questions / issues "(a) Does the expression "civil proceedings" in Section 6 of Commission of Inquiry Act include "disciplinary proceedings"
Page 10 of 40HC-NIC Page 10 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT initiated against an officer in respect of evidence tendered by him?
(b) Does Section 6 of Commission of Inquiry Act and Rule 8 of AIS (Conduct) Rules confer substantive rights under law or are only rules of evidence / procedure?
(c) Can a charge sheet be issued in connection with publication of evidence tendered or an attempt to influence the evidence to be tendered before the Commission of Inquiry even before the Commission has applied its mind and is seized of the matter?
What is the scope of Rule 8(4) of AIS (Conduct) Rules and who can complaint of its violation?
(d) Whether having regard to the answers to these questions and the facts of this case the applicant is entitled to the quashing of the charge sheet in terms of the law laid down by Apex Court."
[3.3] That thereafter after considering the submissions made by the learned advocates appearing on behalf of the rival parties, by impugned judgment and order the learned Tribunal has allowed the said OA and has quashed and set aside the chargesheet dated 06.09.2005 by observing and holding that in view of the bar of Section 6 of the Inquiry Act, initiation of the departmental proceedings / chargesheet / charges leveled in the chargesheet / mentioned in the chargesheet are hit by law more particularly section 6 of the Inquiry Act as they are with respect to the statement / evidence given by the original applicant before the learned Commission of Inquiry. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Kehar Singh (Supra) and thereafter relying upon the decision of the Hon'ble Supreme Court in the case of Union of India and Ors. vs. Upendra Singh reported in (1994)3 SCC 357 and after considering each charges and after holding that the charges leveled against the original applicant are contrary to public policy and hit by section 6 of the Inquiry Act and on Page 11 of 40 HC-NIC Page 11 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT the charges framed no misconduct or other irregularity can be said to have been made out, by impugned judgment and order the learned Tribunal has quashed and set aside the chargesheet dated 06.09.2005 at the initial stage.
[4.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal in quashing and setting aside the chargesheet dated 06.09.2005 at the initial stage and holding that the charges are hit by section 6 of the Inquiry Act and even on the charges framed no misconduct or other irregularity can be said to have been made out, the petitioners herein - original opponents have preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India.
[5.0] Shri Kamal Trivedi, learned Advocate General has appeared with Ms. Sangita Vishen, learned AGP appearing on behalf of the petitioners herein - original opponents and Shri I.H. Syed, learned advocate has appeared with Shri Kalpesh Shastri, learned advocate appearing on behalf of the respondent herein - original applicant.
[6.0] Shri Kamal Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents has vehemently submitted that the learned Tribunal has materially erred in allowing the OA and quashing and setting aside the chargesheet dated 06.09.2005 at the initial stage.
[6.1] It is further submitted by Shri Trivedi, learned Advocate General that in the facts and circumstances of the case and when the departmental proceedings were at the initial stage and the original applicant was served with the chargesheet and was called upon to submit his defence statement, the learned Tribunal ought not to have Page 12 of 40 HC-NIC Page 12 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT quashed and set aside the chargesheet at the initial stage.
[6.2] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that the learned Tribunal has materially erred in interfering with the charge sheet / departmental proceedings at the initial stage, when the delinquent - respondent herein - original applicant was yet to submit his defence statement. It is submitted that whatever the objections/defences to be raised by the respondent herein - original applicant, he ought to have stated in the defence statement which were yet to be considered by the Disciplinary Authority. It is submitted that the learned Tribunal has materially erred in not properly appreciating the fact that the ample opportunity was to be given to the delinquent and at the stage when the original applicant challenged the chargesheet, he was served with the Memorandum / chargesheet dated 06.09.2005 along with the Articles of Charges and Imputation of Charges and was called upon to submit his defence statement. It is submitted that therefore the learned Tribunal has materially erred in interfering with the chargesheet and/or quashing and setting aside the chargesheet at the initial stage, which can be in rarest of rare case. It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that the learned Tribunal has materially erred in interfering with and/or quashing and setting aside the chargesheet at the initial stage by observing and holding that the charges leveled against the delinquent are contrary to law and/or the charges framed do not constitute any misconduct or other irregularity.
[6.3] It is submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that while passing the impugned judgment and order and holding that the Page 13 of 40 HC-NIC Page 13 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT charges leveled against the delinquent do not constitute any misconduct and/or any irregularity, the learned Tribunal has exceeded in its jurisdiction and has materially erred in considering each charge at the initial stage of departmental proceedings and opining that the charges leveled do not constitute any misconduct or irregularity which is the function of the Disciplinary Authority after giving an opportunity to the delinquent.
[6.4] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that the learned Tribunal has materially erred in observing that the allegations made in the chargesheet and the charges are related to the evidence / statement given by the delinquent before the learned Commission of Inquiry and therefore, the same is hit by section 6 of the Inquiry Act.
[6.5] It is submitted that while observing and holding that the charges leveled against the delinquent are hit by section 6 of the Inquiry Act and/or the delinquent is protected by section 6 of the Inquiry Act, the learned Tribunal has materially erred in not properly considering and/or reading the charges leveled against the delinquent, in its true perspective. It is further submitted that while holding so, the learned Tribunal has materially erred in misdirecting itself and has as such misread the charges. It is submitted that if the charges leveled against the delinquent are considered and / or read in its true perspective and as a whole, it cannot be said that the same are either hit by section 6 of the Inquiry Act and/or the delinquent gets immunity from departmental proceedings taking the shelter of section 6 of the Inquiry Act. It is submitted that therefore, the learned Tribunal has materially erred in considering and relying upon the decision of the Hon'ble Supreme Court Page 14 of 40 HC-NIC Page 14 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT in the case of Upendra Singh (Supra), more particularly with respect to the charges and the misconduct alleged against the original applicant - delinquent.
[6.6] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that the learned Tribunal has not properly appreciated and considered the timings at which the delinquent went to the media with malafide intention and oblique reason and with a view to malign the State Government as he was denied the promotion at the relevant time for valid reasons. It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that the charges leveled against the delinquent and the misconduct alleged against him are with respect to and for the period prior to his making statement before the learned Commission by way of 3rd affidavit and therefore, the same cannot be said to be barred by law more particularly section 6 of the Inquiry Act.
[6.7] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that looking to the serious charges and misconduct alleged to have been committed by the delinquent, the delinquent cannot be permitted to take shelter of section 6 of the Inquiry Act. It is submitted that by giving such immunity to the delinquent under the shelter of section 6 of the Inquiry Act, the learned Tribunal has not properly appreciated and/or considered the object and purpose of protecting the witness who makes a statement before the learned Tribunal, provided under section 6 of the Inquiry Act.
[6.8] It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that Page 15 of 40 HC-NIC Page 15 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT the learned Tribunal has materially erred in not properly appreciating the fact that when initially the delinquent made a statement before the learned Commission of Inquiry and/or filed his two affidavits, there was no mention by him with respect to the alleged diary posed as official diary maintained by him during his tenure as Additional DGP - CID (IB) during the period from 06.04.2002 to 18.09.2002. It is submitted that only after when the delinquent was denied the promotion for valid reasons, for oblique reason, thereafter he started maligning the State and started acting against the interest of the State and thereafter, for the first time in the 3rd affidavit which was filed by him on his own, came out with a case with respect to the so called alleged official diary maintained by him. It is submitted that therefore, in the facts and circumstances of the case, the learned Tribunal ought not to have given the immunity / protection to the delinquent as provided under section 6 of the Inquiry Act. It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that even otherwise in any case and in the facts and circumstances of the case and with respect to the charges leveled against the delinquent, section 6 of the Inquiry Act shall not be applicable and there shall not be a bar of section 6 of the Inquiry Act against proceeding with the departmental proceedings against the delinquent with respect to the charges leveled in the chargesheet dated 06.09.2005.
[6.9] It is submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners herein - original opponents that the 3rd affidavit before the learned Commission of Inquiry by the respondent herein - original applicant - delinquent cannot be said to be giving a statement by the original applicant as a witness before the learned Commission. It is submitted that the 3rd affidavit before the learned Commission was by the original applicant on his own and at that Page 16 of 40 HC-NIC Page 16 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT stage neither there was any witness summons nor the learned Commission called upon the original applicant to give such statement / affidavit. It is submitted that therefore the 3rd affidavit cannot be said to be in any case giving the statement during the course of the evidence before the learned Commission, for which section 6 of the Inquiry Act would be attracted and/or the original applicant shall get the immunity and/or protection as provided under section 6 of the Inquiry Act.
[6.10]Shri Trivedi, learned Advocate General appearing on behalf of the petitioners - original opponents has submitted that the learned Tribunal has materially erred in quashing and setting aside the charge sheet/charges on the ground that departmental inquiry for the charges mentioned in the chargesheet is barred by law i.e. barred by section 6 of the Inquiry Act. It is submitted that if all the 9 charges leveled against the original applicant are considered, in that case, it cannot be said that for the charges alleged, the original applicant can get the protection of section 6 of the Inquiry Act. It is submitted that charge Nos.1 to 4 relate to labeling of "private" diary to be "official" one; making public disclosure without prior permission, through its representative with ulterior motive to malign higher officers/authorities and the State Government and tarnish the reputation out of vindictiveness as he was not promoted to the rank of Director General of Police. That the said disclosure resulted in adverse criticism of the State Government and was capable of embarrassing the relations between the Central Government and State Government. It is submitted that charge Nos.5, 6 and 7 relate to clandestinely, unauthorizedly and illegally recording the conversation with Home Secretary (Law & Order), Home Department Shri Murmu and Special Government Counsel Mr. Pandya, unauthorizedly parting with the said information without obtaining permission, and parting with the same through its representatives to malign Home Secretary Page 17 of 40 HC-NIC Page 17 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT (Law & Order), Special Government Counsel and the State Government as a whole and tarnish their image and reputation. It is submitted that charge No.8 refers to enclosing with the affidavit dated 15.07.2002 filed before the learned Commission the reports of Subsidiary Intelligence Bureau and violation of section 5 of the Official Secrets Act and section 123 of the Indian Evidence Act. It is submitted that charge No.9 relates to declaring secret documents of Intelligence Bureau and enclosing the same as Annexure2 of O.A. No.213/2005 without taking prior approval.
It is submitted that therefore the aforesaid charges are not with respect to the statement made by the original applicant before the learned Commission and therefore for the aforesaid, section 6 of the Inquiry Act shall not be applicable and/or attracted.
[6.11]It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners - original opponents that even otherwise in any case the learned Tribunal has materially erred in quashing and setting aside the chargesheet at the initial stage and has as such exceeded in its jurisdiction. It is further submitted that the learned Tribunal has materially erred in quashing and setting aside the chargesheet on the ground that on charges framed, no misconduct or other irregularity can be said to have been made out. It is further submitted by Shri Trivedi, learned Advocate General appearing on behalf of the petitioners - original opponents that as such the learned Tribunal has acted as if the learned Tribunal is an Inquiry Officer and has dealt with each and every charge and has come to the conclusion that on the charges framed no misconduct or other irregularity can be said to have been made out as if the application before the learned Tribunal was a departmental proceedings and/or as if the learned Tribunal is the Inquiry Officer. It is submitted that therefore the learned Tribunal has erred in quashing and setting aside the chargesheet at this stage i.e. at Page 18 of 40 HC-NIC Page 18 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT the threshold, which can be only in exceptional and rarest of rare cases.
Making above submissions it is requested to allow the present petition and quash and set aside the impugned judgment and order passed by the learned Tribunal and permit the petitioners herein - original opponents to proceed further with the charge sheet/departmental inquiry as ample opportunity shall be available to the original applicant to defend himself and whatever grievances / defences are available to the original applicant - delinquent, the same can be made in the disciplinary proceedings / before the Inquiry Officer as well as subsequently before the Disciplinary Authority.
[7.0] Present petition is vehemently opposed by Shri I.H. Syed, learned advocate appearing on behalf of the respondent herein - original applicant. It is vehemently submitted by Shri Syed, learned advocate appearing on behalf of the respondent herein - original applicant that in the facts and circumstances of the case the learned Tribunal has not committed any error in quashing and setting aside the chargesheet. It is submitted that as the learned Tribunal has specifically found that the departmental inquiry / disciplinary proceedings / charges leveled against the original applicant so stated in the chargesheet are contrary to law i.e. section 6 of the Inquiry Act as well as on the charges framed, no misconduct or other irregularity can be said to have been made out, the learned Tribunal has not committed any error in quashing and setting aside the chargesheet at the initial stage. It is vehemently submitted by Shri Syed, learned advocate appearing on behalf of the respondent herein - original applicant that whatever was disclosed / stated by the original applicant before the learned Commission was the truth and so as to enable the learned Commission to find out the truth for which the learned Commission was constituted.
Page 19 of 40HC-NIC Page 19 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT [7.1] It is further submitted by Shri Syed, learned advocate appearing on behalf of the respondent herein - original applicant that if all the charges are considered, all are related to the disclosure / statement made by the original applicant before the learned Commission and therefore, for whatever was disclosed by the original applicant before the learned Commission, he got the immunity and the same cannot be questioned in any civil proceedings. It is submitted that as rightly held by the learned Tribunal, disciplinary proceedings can be said to be civil proceedings and therefore, for whatever was stated by the original applicant before the learned Commission, the original applicant is protected and for which there cannot be any civil proceedings including the departmental / disciplinary proceedings.
[7.2] Relying upon the decision of the Hon'ble Supreme Court in the case of Kehar Singh (Supra), it is vehemently submitted by Shri Syed, learned advocate appearing on behalf of the respondent herein - original applicant that whatever was disclosed by the original applicant by way of 3rd affidavit before the learned Commission i.e. the statement before the learned Commission was only with a view to facilitate the learned Commission to find out the truth. It is submitted that the original applicant disclosed before the learned Commission with respect to the pressure upon the original applicant by the concerned Shri Murmu, Home Secretary (Law & Order) and the Special Government Counsel as they wanted the original applicant to tell before the learned Commission whatever suits the Government and not the truth. It is submitted that the conversation between the original applicant, Shri Murmu Home Secretary (Law & Order) and Special Government Counsel was disclosed before the learned Commission and the original applicant infact did not make the statement as was insisted by the State Government i.e. Home Secretary (Law & Order) and the Special Government Counsel and Page 20 of 40 HC-NIC Page 20 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT stated the truth before the learned Commission. It is submitted that if the original applicant would have stated what the Government wanted, in that case, the original applicant would have committed the perjury by not stating the correct facts and/or true facts before the learned Commission. It is submitted that as such the Special Government Counsel and the Shri Murmu, Home Secretary (Law & Order) wanted the original applicant to commit perjury by not stating correct facts before the learned Commission. It is submitted that therefore as rightly held by the learned Tribunal the Disciplinary proceedings / inquiry / charges mentioned in the chargesheet are barred by section 6 of the Inquiry Act.
[7.3] Now, so far as the contention on behalf of the petitioners herein - original opponents that the 3rd affidavit / statement before the learned Commission with respect to the disclosure of the official diary maintained by the original applicant during the period between 06.04.2002 to 18.09.2002 and with respect to taperecording of conversation between the Home Secretary (Law & Order), Special Government Counsel cannot be said to be a statement as a witness before the learned Commission and therefore, section 6 of the Inquiry Act shall not be applicable is concerned, it is submitted by Shri Syed, learned advocate appearing on behalf of the original applicant that public notice was given by the learned Commission by which all concerned were called upon to make statement before the learned Commission with respect to the inquiry before the learned Commission. It is submitted that so far as the Rules, 1968 is concerned, there is no such requirement that only when the witness summons is issued and the statement is made, the same can be said to be a statement of the witness. It is submitted that therefore for the statement in the form of 3rd affidavit dated 09.04.2005 before the learned Commission, section 6 of Page 21 of 40 HC-NIC Page 21 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT the Inquiry Act shall be applicable and therefore, as rightly held by the learned Tribunal, charges leveled against the original applicant are barred by law.
[7.4] It is further submitted by Shri Syed, learned advocate appearing on behalf of the original applicant that it is not that what was stated by the original applicant before the learned Commission by way of 3rd affidavit dated 09.04.2005 with respect to the official diary maintained by the original applicant during his tenure as Additional DGP and CID (IB) during the period between 06.04.2002 to 18.09.2002 and/or with respect to taperecorded conversation was for the first time made before the learned Commission. It is submitted that earlier in detailed representation / letter dated 03.11.2004 addressed to the Principal Secretary, Home Department the original applicant disclosed the maintaining of the diary. It is submitted that no action was taken thereafter. It is submitted that thereafter on 11.04.2005 on the record of the learned Commission by way of 3rd affidavit, true facts were brought on record. It is further submitted by Shri Syed, learned advocate appearing on behalf of the original applicant that as such whatever is stated by the original applicant before the learned Commission on 11.04.2005, which was in the form of affidavit, the original applicant stated the true and correct facts and as such tried to avoid the perjury. It is further submitted that as such nobody is disputing the contents of the taperecorded conversation between the original applicant, Home Secretary (Law & Order) and Special Government Counsel. It is submitted that the charge memo was issued so that the learned Commission may not be able to find out the truth.
Making above submissions and relying upon the following decisions, Shri Syed, learned advocate appearing on behalf of the original applicant has requested to dismiss the present petition.
Page 22 of 40HC-NIC Page 22 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT
1. AIR 1959 SC 356 Bhogilal Chunilal Pandya v. State of Bombay
2. (1988)3 SCC 609 Kehar Singh vs. State (Delhi Administration)
3. (1994)3 SCC 357 Union of India and Ors. vs. Upendra Singh [8.0] Heard learned advocates appearing for respective parties at length. We have perused the impugned judgment and order passed by the learned Tribunal by which the learned Tribunal in exercise of powers conferred under the Administrative Tribunal Act has quashed and set aside the charges/chargesheet issued against the original applicant at the initial stage and at the threshold. We have also gone through the entire material on record through which the learned advocates for respective parties have taken us.
At the outset it is required to be noted that by impugned judgment and order the learned Tribunal has quashed and set aside the charge sheet issued upon the original applicant dated 06.09.2005 at the threshold and at initial stage on the ground and by holding that the departmental inquiry / proceedings for the charges mentioned in the chargesheet is barred by law i.e. section 6 of the Inquiry Act and that on the charges framed, no misconduct or other irregularity can be said to have been made out.
[8.1] That the learned Tribunal framed the following questions while deciding the main original application which are as under:
"(a) Does the expression "civil proceedings" in Section 6 of Commission of Inquiry Act include "disciplinary proceedings"
initiated against an officer in respect of evidence tendered by him?
(b) Does Section 6 of Commission of Inquiry Act and Rule 8 of Page 23 of 40 HC-NIC Page 23 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT AIS (Conduct) Rules confer substantive rights under law or are only rules of evidence / procedure?
(c) Can a charge sheet be issued in connection with publication of evidence tendered or an attempt to influence the evidence to be tendered before the Commission of Inquiry even before the Commission has applied its mind and is seized of the matter? What is the scope of Rule 8(4) of AIS (Conduct) Rules and who can complaint of its violation?
(d) Whether having regard to the answers to these questions and the facts of this case the applicant is entitled to the quashing of the charge sheet in terms of the law laid down by Apex Court."
[8.2] Now, so far as question No.(a) i.e. whether "disciplinary proceedings" can be said to be the "civil proceedings" as mentioned in section 6 of the Inquiry Act is concerned, we are in complete agreement with the view taken by the learned Tribunal that the expression "civil proceeding" in section 6 of the Inquiry Act include "disciplinary proceeding" initiated against the officer in respect of evidence tendered by him. Any proceedings which affects the civil rights of a person can be said to be civil proceedings. It cannot be disputed that disciplinary proceedings does not affect the right of the original applicant. On conclusion of the disciplinary proceedings it shall entail a punishment/penalty which shall affect the civil rights / rights of the original applicant. Under the circumstances, we concur with the finding recorded by the learned Tribunal that the expression "civil proceeding"
in section 6 of the Inquiry Act include "disciplinary proceeding" initiated against the officer in respect of the evidence tendered by him.
[8.3] Now, so far as the other questions raised by the learned Tribunal with respect to bar under section 6 of the Inquiry Act is concerned, by Page 24 of 40 HC-NIC Page 24 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT impugned judgment and order the learned Tribunal has held in favour of original applicant that the disciplinary proceedings initiated against the original applicant for the charges leveled in the charge memo / charge sheet dated 06.09.2005 is contrary to law i.e. section 6 of the Inquiry Act and that on the charges framed, no misconduct or other irregularity can be said to have been made out. At this stage, relevant provision of Inquiry Act and the Rules, 1968 are required to be considered.
Section 6 of the Commissions of Inquiry Act, 1952 reads as under:
"Statements made by persons to the Commission: No Statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement:
Provided that the statement
(i) Is made in reply to a question which he is required by the Commission to answer, or
(ii) Is relevant to the subject matter of the inquiry.
Rule 8 of the All India Services (Conduct) Rules, 1968 are as follows:
"8. Evidence before committees, etc. 8(1) Save as provided in subrule (3), no member of the Service shall except with the previous sanction of the Government, give evidence in connection with any inquiry conducted by any person, committee or other authority.
8(2) Where any sanction has been accorded under subrule (1) no member of the Service giving such evidence shall criticize the policy or any action of the Central Government or of a State Government.
8(3) Nothing in this rule shall apply to 8(3) (a) evidence given at any inquiry before an authority appointed by the Government, or by Page 25 of 40 HC-NIC Page 25 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Parliament or by a State Legislature; or
(b) evidence given in any judicial inquiry; or
(c) evidence given at departmental inquiry ordered by any authority subordinate to the Government.
8(4) No member of the Service giving any evidence referred to in subrule (3) shall give publicity to such evidence."
[8.4] While considering the aforesaid question more particularly whether the charges mentioned in the chargesheet for which the departmental inquiry is initiated against the original applicant are contrary to law more particularly section 6 of the Inquiry Act and/or can it be said at this stage that on the charges framed, no misconduct or other irregularity can be said to have been made out, 9 charges leveled against the original applicant so stated in the chargesheet dated 06.09.2005 and the chronological dates and events are required to be considered.
9 charges leveled against the original applicant so stated in the chargesheet dated 06.09.2005 are as under:
"Charge1 Shri R.B. Sreekumar through his representatives knowingly, falsely claimed in Press and Media Conference a "private" diary (The contents whereof are not admitted) to be an "official" diary written by him during his tenure as Additional DGP, which conduct of his is unbecoming of a member of the service under Rule3(1) of All India Service (Conduct) Rules, 1968.
Charge2 Before making public disclosure of the said diary in Page 26 of 40 HC-NIC Page 26 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Press and Media, no permission of any higher authority was obtained by Shri R.B. Sreekumar, which conduct of his is unbecoming of a member of the service under Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge3 Shri R.B. Sreekumar made public disclosure of the said private and unauthorized diary before press and media through his representatives, with an ulterior motive to malign higher officers/authorities and State Government and tarnish their reputation / image out of vindictiveness as he was not promoted to the rank / grade of Director General of Police. This conduct of Shri R.B. Sreekumar is unbecoming of a member of the service and thereby he violated Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge4 Shri R.B. Sreekumar through his representatives made a statement in Press and Media Conference with regard to the said alleged "official" diary and contents thereof which had the effect of an adverse criticism of the State Government and which was capable of embarrassing the relations between the Central Government and State Government. This conduct of Shri R.B. Sreekumar is unbecoming of the member of the service and thereby he violated Rule 3(1) and 7 of All India Services (Conduct) Rules, 1968.
Charge5 Shri R.B. Sreekumar clandestinely, unauthorizedly Page 27 of 40 HC-NIC Page 27 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT and illegally recorded conversation with Secretary (Law & Order), Home Department Mr. Murmu and Special Government Counsel Mr. Pandya, which conduct of his is unbecoming of a member of the service and thereby he violated Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge6 Shri R.B. Sreekumar unauthorizedly parted with the said illegally and unauthorizedly recorded conversation as aforesaid to the Press and Media without obtaining permission of higher authorities, which conduct of his is unbecoming of a member of the service under Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge7 The illegal and unauthorized recorded conversation as mentioned in charge5 was unauthorizedly parted with media by Shri R.B. Sreekumar through his representatives with an ulterior motive to enable media to publish distorted version thereof with a view to malign Secretary (Law & Order), Home Department Mr. Murmu, Special Government Counsel and State Government as a whole and tarnish their image and reputation in the eyes of public, which conduct of his is unbecoming of a member of the service under Rule 3(1) of All India Services (Conduct) Rules, 1968.
Charge8 Shri R.B. Sreekumar did not obtain the required permission from the competent authorities before producing secret communications/reports from Subsidiary Intelligence Bureau (SIB) Ministry of Home Affairs, Government of Page 28 of 40 HC-NIC Page 28 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT India, dated 14/3/2002, 26/3/2002, 28/3/2002, 22/4/2002, 20/5/2002 and TP Message from Ministry of Home Affairs, Government of India dated 31/5/2002 along with his affidavit dated 15/7/2002 before the Hon'ble Commission of Inquiry of Mr. Justice Nanavati and Mr. Justice Shah. This conduct of Shri R.B. Sreekumar is unbecoming of a member of the service and thereby he violated Rule 3(1) of All India Services (Conduct) Rules, 1968 and section 5 of the Official Secrets Act.
Charge9 Shri R.B. Sreekumar, upon his transfer from Addl.
DGP (IB) to Addl. DGP (PR) on 18/9/2002, kept copies of secret reports of I.B. in his possession without permission of higher authorities as it is evident from his Original Application No.213/2005 filed with Hon'ble Central Administrative Tribunal, Ahmedabad, Shri R.B. Sreekumar produced copies of such secret documents as Annexure A2 to O.A. No.213/2005 without taking permission of higher authorities. This conduct of Shri R.B. Sreekumar is unbecoming of a member of the service and violative of the provisions of section 5 of Official Secrets Act, 1923 and Rules 3(1) and 9 of AIS (Conduct) Rules, 1968."
Chronological dates and events That the original applicant served as Additional DGP - CID (IB) between 06.04.2002 to 18.09.2002. That thereafter he was transferred as Additional Director General of Police, Incharge Police Reforms. That the Government of Gujarat set up a commission of Inquiry under the Inquiry Act vide notification dated 06.03.2002. That initially the learned Commission was a one member Commission. It had the following terms Page 29 of 40 HC-NIC Page 29 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT of reference.
"(1) To inquire into
(a) The facts, circumstances and the course of events of the incidents that led to setting on fire of some coaches of the Sabarmati Express Train on 27/2/2002 near Godhra railway station,
(b) The facts, circumstances and course of events of the subsequent incidents of violence in the State in the aftermath of the Godhra incident and
(c) The adequacy of administrative measures taken to prevent and deal with the disturbances in Godhra and subsequent disturbances in the State, (3) To ascertain as to whether the incident at Godhra was a pre planned and whether information was available with the agencies which could have been used to prevent the incident, (3) To recommend suitable measures to prevent recurrence of such incidents in future."
That the original applicant - delinquent submitted his first affidavit dated 06.07.2002 before the learned Commission of Inquiry. As stated hereinabove thereafter with effect from 18.09.2002, the original applicant - delinquent was transferred from the post of Additional DGP - CID (IB) to Additional DGP (PR). It appears that thereafter the learned Commission of Inquiry was reconstituted by converting it into a two member Commission vide notification dated 20.07.2004 and following terms of reference were also added.
"(d) Role and conduct of the then Chief Minister and/or any other Minister(s) in his Council of Ministers, Police Officers, other individuals and organizations in both the events referred to in clauses (a) and (b),
(e) Role and conduct of the then Chief Minister and/or Page 30 of 40 HC-NIC Page 30 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT Minister(s) in his Council of Ministers, Police Officers (i) in dealing with any political or nopolitical organization which may be found to have been involved in any of the events referred to hereinabove, (ii) in the matter of providing protection, relief and rehabilitation of the victims of communal riots (iii) in the matter of recommendations and directions given by National Human Rights Commission from time to time."
[8.5] It is alleged that and as such it is not in dispute that the original applicant taperecorded his conversation with one Shri Murmu, Home Secretary (Law & Order) and Shri Arvind Pandya, Special Government Counsel. That the deposition of the original applicant was recorded before the learned Commission on 31.08.2004. That on 06.10.2004 the original applicant - delinquent submitted his 2nd affidavit before the learned Commission. At this stage it is required to be noted that till that date i.e. 06.10.2004, the original applicant - delinquent did not make any disclosure before the learned Commission and/or made any statement before the learned Commission with respect to the contents of so called "official diary" maintained by him during his tenure as Additional DGP and CID (IB) during the period between 06.04.2002 to 18.09.2002 and/or with respect to his taperecorded conversation on 25.08.2004 with the Home Secretary (Law & Order) and Special Government Counsel. It appears that thereafter on 23.02.2005 the junior to the original applicant - delinquent was promoted to the post of Director General of Police and the case of the original applicant - delinquent was kept in a sealed cover in view of the pendency of certain proceedings against him.
[8.6] It is alleged that thereafter on 04.03.2005 the original applicant - delinquent disclosed the information relating to the aforesaid tape Page 31 of 40 HC-NIC Page 31 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT recorded conversation to a daily newspaper "Divya Bhaskar". It is also further alleged that thereafter the original applicant - delinquent disclosed the aforesaid information to one another newspaper "Tehelka", which pubished in their publication on 12.03.2005 part of the conversation between him, the Home Secretary (Law & Order) and Special Government Counsel as taperecorded by the delinquent. At this stage it is required to be noted that before the learned Tribunal it was the case on behalf of the original applicant that he did not disclose the information relating to the taperecorded conversation to the Media, but his advocates might have given the information to the media. That thereafter for the first time on 09.04.2005 the original applicant - delinquent filed the 3rd affidavit before the learned Commission mentioning everything about the so called "official diary" - disclosing the contents of the "diary" maintained by him during his tenure as Additional DGP - CID (IB) maintained for the period between 06.04.2002 to 18.09.2002 claiming the said diary to be "official diary"
and also disclosed the taperecorded conversation dated 25.08.2004. That thereafter the original applicant again went to Media and disclosed the information relating to the aforesaid diary on 24.04.2005.
[8.7] The aforesaid chronological dates and events are required to be considered while considering the chargesheet and the charges leveled against the original applicant so mentioned in the chargesheet dated 06.09.2005 and while considering the applicability of bar under section 6 of the Inquiry Act.
[8.8] Now, considering 9 charges leveled against the original applicant so stated in the chargesheet which are reproduced hereinabove, they can be divided into three categories. First category can be said to be related to so called diary or register alleged to have been maintained by Page 32 of 40 HC-NIC Page 32 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT the original applicant during his tenure as Additional DGP - CID (IB) from 06.04.2002 to 18.09.2002 and declaring it to be an "official diary"
alleged to have been maintained by him during his official duty. Second category can be said to be related to audio recording and the third category is related to IB Reports. Charge Nos.1 to 4 relate to first category; charge No.5 & 6 relate to second category and charge Nos.7 to 9 relate to third category.
[8.9] If the charge Nos.1 to 4 are considered as a whole it is alleged that the original applicant - delinquent has falsely claimed in press and media conference a "private" diary (the contents whereof are not admitted) to be an "official" diary written by him during his tenure as Additional DGP. There is a serious dispute whether the so called diary alleged to have been maintained by the original applicant - delinquent during his tenure as Additional DGP can be said to be an "official" diary maintained by him and the authenticity of the same is also seriously doubted. There is a serious dispute whether the so called diary alleged to have been maintained by the original applicant - delinquent can be said to be a "private" diary maintained by him and/or "official" diary as alleged and claimed by the original applicant - delinquent. It cannot be disputed that the "official" diary maintained by a police official shall have more importance and/or authenticity rather than a "private" diary maintained by a particular employee / official. Therefore, the so called diary maintained by the original applicant - delinquent can be said to be an "official" diary written by him during his tenure as Additional DGP was the subject matter of charge No.1. Similarly, charge Nos.2 and are with respect to the public disclosure of the said private and unauthorized diary alleged to have been maintained by him before the press and media through him and/or through his representative along with ulterior motive of maligning the State Government and/or higher officer and Page 33 of 40 HC-NIC Page 33 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT tarnish their reputation / image out of vindictiveness as he was not promoted to the rank/cadre of Director General of Police. Thus, the aforesaid charge Nos.1 to 4 as such are for the period prior to the disclosure made by the original applicant in the form of 3rd affidavit before the learned Commission on 09.04.2005. Under the circumstances, with respect to charge Nos.1 to 4 and/or disciplinary proceedings initiated against the original applicant for the charge Nos.1 to 4, the bar under section 6 of the Inquiry Act shall not be attracted and/or the charge Nos.1 to 4 cannot be said to be barred by law i.e. barred by section 6 of the Inquiry Act. If the contention on behalf of the original applicant and even conclusion and findings recorded by the learned Tribunal that the charge Nos.1 to 4 are barred by law i.e. section 6 of the Inquiry Act are accepted, in that case, it would tantamount to first permitting an employee to commit the misconduct and thereafter claiming the protection, which is not permissible.
[9.10] Similarly, with respect to charge Nos.5 to 7, it is required to be noted that the original applicant taperecorded his conversation with Home Secretary (Law & Order) and the Special Government Counsel unauthorizedly on 25.08.2004. The reason for such taperecording is best known to him. Be that as it may, neither his deposition before the learned Commission on 31.08.2004 nor in the 2nd affidavit filed by him before the learned Commission on 06.10.2004 the original applicant - delinquent made any disclosure either with respect to the contents of so called diary claimed by him as "official" diary maintained by him during his tenure as Additional DGP - CID (IB) between 06.04.2002 to 18.09.2002 or with respect to the aforesaid taperecorded conversation. Thereafter and even before his filing the 3rd affidavit before the learned Commission on 09.04.2005, the original applicant - delinquent went to the media and disclosed the information relating to the aforesaid tape Page 34 of 40 HC-NIC Page 34 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT recording on 04.03.2005 and/or 12.03.2005. If the charge Nos.5 to 7 are appreciated and considered along with the aforesaid dates and events, it cannot be said that with respect to charge Nos.5 to 7 also, there shall be bar of departmental proceedings considering section 6 of the Inquiry Act. If charge Nos.5 to 7 are considered, as such they cannot be considered to be with respect to the disclosure before the learned Commission. Therefore, even with respect to charge Nos.5 to 7 also, as provided under section 6 of the Inquiry Act shall not be attracted and/or applicable.
[9.11] Similarly, with respect to charge Nos.8 and 9, neither it can be said that the same are barred by law i.e. section 6 of the Inquiry Act or on the basis of the said charges it cannot be said that no misconduct is made out.
Under the circumstances, we are of the opinion that the learned Tribunal has materially erred in quashing and setting aside the chargesheet on the ground that the charges are barred by law i.e. section 6 of the Inquiry Act.
[10.0] In light of the aforesaid findings recorded by us, the next question which is required to be considered by this Court is, whether in the facts and circumstances of the case, the learned Tribunal is justified in quashing and setting aside the chargesheet at the initial stage and/or at the threshold. From the impugned judgment and order it appears that the learned Tribunal has quashed and set aside the chargesheet at the initial stage and at the threshold on the ground that the departmental proceedings / chargesheet / charges are contrary to law i.e. section 6 of the Inquiry Act and also on the ground that on the charges leveled against the delinquent does not disclose any misconduct and/or irregularity. Now, so far as the disciplinary proceedings / chargesheet / Page 35 of 40 HC-NIC Page 35 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT charges whether can be said to be barred by law i.e. section 6 of the Inquiry Act is concerned, we have already observed above that the disciplinary proceedings / chargesheet per se cannot be said to be contrary to law i.e. hit by section 6 of the Inquiry Act.
[10.1] Now, so far as the finding recorded by the learned Tribunal that the charges leveled do not constitute any misconduct and/or irregularity and on the aforesaid ground quashing and setting aside the chargesheet at initial stage is concerned, from the impugned judgment and order passed by the learned Tribunal it appears that the learned Tribunal has acted as if he was an Inquiry Officer. The learned Tribunal has considered each charge minutely as if any disciplinary proceedings was before it. As per the catena of decisions of the Hon'ble Supreme Court more particularly in the case of Upendra Singh (Supra), the chargesheet / disciplinary proceedings at the initial stage and/or at the threshold can be set aside in exceptional and rarest of rare cases. Thus, while quashing and setting aside the chargesheet at the initial stage the learned Tribunal has exceeded in its jurisdiction while exercising the power conferred under the Administrative Tribunal Act.
[10.2] In the case of Upendra Singh (Supra), while considering the scope of judicial review of the chargesheet by the Central Administrative Tribunal, the Hon'ble Supreme Court has observed that the Tribunal has no jurisdiction to go into the correctness or truth of the charges. It is observed that the truth or otherwise of the charges is a matter for disciplinary authority to go into. In paras 4 & 6, the Hon'ble Supreme Court has observed and held as under:
"4. When the matter went back to the Tribunal, it went into the correctness of the charges on the basis of the material produced by the respondent and quashed the charges holding that the charges do not Page 36 of 40 HC-NIC Page 36 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT indicate any corrupt motive or any culpability on the part of the respondent. We must say, we are not a little surprised at the course adopted by the Tribunal. In its order dated Sept. 10, 1992 this Court specifically drew attention to the observations in A.N. Saxena that the Tribunal ought not to interfere at an interlocutory stage and yet the Tribunal chose to interfere on the basis of the material which was yet to be produced at the inquiry.In short, the Tribunal undertook the inquiry which ought to be held by the disciplinary authority (or the inquiry officer appointed by him) and found that the charges are not true.It may be called that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Art. 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari , prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this Court in T. C. Basappa v. T. Nagappa. It was observed by Mukherjee, J. speaking for the Constitution Bench (Para 6):
"The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus', mandamus, quo warranto, prohibition and certiorari , as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of ' certiorari ' in all appropriate cases and in appropriate manner, "so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law".
(emphasis supplied)
6. In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal Page 37 of 40 HC-NIC Page 37 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the Court/Tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H. B. Gandhi, Excise and Taxation OfficercumAssessing Authority, Karnal v. M/s. Gopi Nath and Sons. The Bench comprising M. N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principles thus:
"Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
[11.0] In view of the above and for the reasons stated above, present Special Civil Application succeeds. The impugned judgment and order dated 28.09.2007 passed by the learned Central Administrative Tribunal, Ahmedabad Bench in Original Application No.166/2006 quashing and setting aside the chargesheet / charge memo dated 06.09.2005 is hereby quashed and set aside. However, it is observed and made clear that this Court has not expressed anything on merits with respect to the charges leveled against the original applicant - delinquent in favour of either parties and any of the observations made by us hereinabove be construed with respect to the questions raised herein above and with respect to the legality, validity and initiation of the Page 38 of 40 HC-NIC Page 38 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT disciplinary proceedings with respect to the charges mentioned in the chargesheet and reasonable and sufficient opportunity shall be available to the original applicant - delinquent to putforth his case.
With these observations, present Special Civil Application is allowed. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Record & Proceedings to be sent back forthwith.
Sd/ (M.R. SHAH, J.) Sd/ (G.R. UDHWANI, J.) FURTHER ORDER At this stage Shri Syed, learned advocate appearing on behalf of the original applicant has requested to stay for two months the present judgment and order, restraining the State Government from proceeding further with the departmental inquiry pursuant to the chargesheet / charge memo dated 06.09.2005, so as to enable the respondent herein - original applicant to challenge the present judgment and order before the Hon'ble The Supreme Court.
The prayer is vehemently opposed by Shri K.B. Trivedi, learned Advocate General appearing on behalf of the State by submitting that as such for whatever reason the inquiry has been sufficiently delayed.
However, considering the request made by Shri Syed, learned advocate appearing on behalf of the original applicant, as the original applicant proposes to challenge the present judgment and order before the Hon'ble Supreme Court, it is directed that further inquiry in pursuance to the chargesheet / charge memo dated 06.09.2005 may not be proceeded further till 20.10.2015, however the interregnum period Page 39 of 40 HC-NIC Page 39 of 40 Created On Tue Sep 08 01:40:55 IST 2015 C/SCA/4150/2008 CAV JUDGMENT may be utilized by the original applicant by filing a reply to the charge sheet / charge memo, however the same shall be without prejudice to his rights and contentions challenging the present judgment and order before the Hon'ble Supreme Court and by that itself it may not be construed that he has participated in the departmental proceedings.
Sd/ (M.R. SHAH, J.) Sd/ (G.R. UDHWANI, J.) Ajay Page 40 of 40 HC-NIC Page 40 of 40 Created On Tue Sep 08 01:40:55 IST 2015