Central Administrative Tribunal - Delhi
Babul Lal Yadav vs Union Of India on 13 March, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.686/2012 Order reserved on 07.02.2013 Order pronounced on 13.03.2013 Honble Shri George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Babul Lal Yadav Ex-Sepoy of SSF Aged about 41 years S/o Shri Nand Lal Yadav R/o 1169, Sector-3, Pushp Vihar, Saket, New Delhi. ..Applicant (By Advocate: Sh. Anil Singhal) Versus 1. Union of India Through its Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Chief Security Officer, Secretariat Security Force, 26, Man Singh Road, Jaisalmer House, New Delhi. 3. Commandant (CISF) CISF Unit CGBS, 16/11, Jamnagar House, New Delhi (Performa Party). ..Respondents (By Advocate: Shri Subash Gosain) O R D E R
Honble Sh. G. George Paracken:
In this Original Application, Applicant has challenged the Annexure A-1 Memorandum No.V-15014/SSF/ZONE-I/DISC/MAJ/2008-121 dated 04.03.2008 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965, Annexure A-2 Memorandum No.V-15014/SSF/DISC/BLY/2010-5613 dated 26.10.2010 issued by the Disciplinary Authority disagreeing with the findings of the Inquiry Officer, Annexure A-3 Memorandum No.V-15014/SSF (FSY)/Disc./Major/2010-95 dated 16.12.2010 inflicting the punishment of compulsory retirement from service upon him with 2/3rd Pension and Gratuity benefits with immediate effect and the Annexure A-4 Appellate Order No.A-44011/01/2006-SSO dated 3.11.2011 by which the Appellate Authority, after considering the appeal of the Applicant, enhanced the punishment under Rule 11 (xi) of CCS (CCA) Rules, 1965 and imposed upon him the penalty of dismissal from service.
2. Along with the Annexure A-1 Memorandum dated 04.03.2008, the Disciplinary Authority furnished the Articles of Charge, Statement of Imputation of misconduct or misbehaviour in support of the Articles of Charge, the list of documents by which the charge framed against him was proposed to be sustained and the list of witnesses by whom the Articles of Charge framed against him was proposed to be sustained. The Articles of Charge leveled against the Applicant were as under:-
ARTICLE That the said Shri Babu Lal Yadav, No.2144, Sepoy of SSF while deployed on deputation at Embassy of India, Tokyo, Japan on 9th September, 2005, sexually molested a Japanese girl Ms. Ai Ohtani, student of Urdu language and India Culture, who visited the Mission for obtaining a tourist visa.
The Statement of Imputation of misconduct or misbehaviour in support of the aforesaid Article of Charge was as under:-
ARTICLE-I That the said Shri Babu Lal Yadav, No.2144, Sepoy of SSF while deployed on deputation at Embassy of India, located at 2-2-11 Kundan-minami, Chiyoda-Ku, Tokyo, Japan, on 9th September 2005 when he was on duty in the Chancery asked an 18 year old Japanese girl, Ms. Ai Ohtani, student of Urdu Language and Indian Culture, who had visited the Mission for applying for visa, while walking down a corridor toward the exit of the embassy building from a toilet, to come in the room and offered for a coffee. Soon after two other members joined Shri Babu Lal Yadav and he took the email address and cell phone number from her. When the two members left the room where she was called/into, Shri Babu Lal Yadav suddenly changed his attitude and he sat with the girl and caught hold her left hand and kissed on the back of her hand. Simultaneously he put his hand in her skirt. Further Shri Babu Lal Yadav allegedly suppressed her resistance and pressed her head down with both his hands and then inserted his erected penis in the mouth of Ms. Ai Ohtani and ejaculated in her mouth, although she offered resistance. The action committed by Babu Lal Yadav is an indecent act on a girl through compulsion.
The Disciplinary Authority in support of the aforesaid Articles of Charge, listed the following documents by which the charges are to be sustained:-
1. Deputy Chief of Mission letter dated 12.01.2006.
2. Deputy Chief of Mission confidential letter dated 01.03.2006.
3. Notice dated 15/12/2005 by the lawyer, Shri Taichi Arai.
4. Ministry of Foreign Affairs Tokyo, Japan Note Verbale, No.1257/AS-W dated 30.03.2006.
5. Director of International investigative operation letter dated 24.03.2006 along with its enclosure.
6. Report of the handwriting expert CFL-Hyderabad and Audio report.
7. Any other documents considered relevant by the Enquiry Officer during course of enquiry.
He has also listed the following witnesses who are required to sustain those charges:-
1. Shri S.K. Mandal, Deputy Chief of Misssion, Embassy of India, Tokyo.
Ms. Ai Ohtani, Japan.
Shri Marcos Ramos Dimayuga Jr. Staff of Indian Embassy, Japan.
Shri Romulo Ramos Dimayuga, Staff of Indian Embassy, Japan.
Shri Taichi Arai, Lawyer, Chiyodarku Tokyo, Japan.
Any other witness considered relevant by the Enquiry Officer during the course of enquiry.
3. The Inquiry Officer after having detailed enquiry in the matter, vide Annexure A-6 report dated Nil held that the charge against the Applicant was not proved. The Inquiry Officer considered the facts that he had gone for duty as Security Guard in Indian Embassy in Tokyo City and he was posted at the Reception counter from 0800 hours to 1800 hours on 09.09.2005. On the said date, one girl by the name Ms. Kawawa of Japanese origin was posted for duty along with him. During the enquiry, in the absence of the defence witnesses and the defence assistants, the Inquiry Officer cross-examined the applicant and he stated that on 09.09.2005, no girl named Ai. Ohtani came there during his duty time. He also did not call any Japanese girl in a separate room. He also stated that he did not know any Japanese girl. He denied having offered coffee to any Japanese girl or asked any girl to come to India. He also denied the contention that on 09.09.2005, an 18 years old Japanese girl, namely, Ai. Ohtani was sexually molested by him. Moreover, Shri Taichi Ararai, Japanese Advocate to the Indian Embassy stated the date of incident was 05.09.2005 but in Exhibit No.3, the duty of the Applicant has not been at the Reception counter of Indian Embassy. Finally, the Enquiry Officer held that the charge against the Applicant was not proved. The relevant part of the said report reads as under:-
The above act on the part of Shri Babu Lal Yadav, No.2144 Sepoy of SSF created a diplomatic stand OFF between the two governments which constitutes a gross misconduct of assault the Japanese girl sexually, willful breach of orders and conduct unbecoming of a Government servant. Charge is not proved.
4. However, the Disciplinary Authority, vide the impugned Memorandum dated 26.10.2010, disagreed with the findings of the Inquiry Officer and its relevant part is as under:-
The findings of Enquiry Officer has been served to you vide this office Memo No.V-15014/GBS/Major/Babu Lal (SSF)/2008-397 dated 23.04.2010. On perusal of reply dated 30.04.2010 of the enquiry report submitted by you, the undersigned being the disciplinary authority does not agreed with the conclusion of the enquiry officer and your reply due to the following points on article wise:-
Article-I That the said Shri Babu Lal Yadav, No.2144, Sepoy of SSF while deployed on deputation at Embassy of India, Tokyo, Japan on 9th September, 2005, sexually molested a Japanese girl Ms. Ai Ohtani, student of Urdu language and India Culture, who visited the Mission for obtaining a tourist visa.
The above act on the part of Shri Babu Lal Yadav, No.2144 Sepoy of SSF created a diplomatic stand off between the two governments which constitutes a gross misconduct of assault the Japanese girl sexually, willful breach of orders and conduct unbecoming of a Government servant. Hence the charge.
1. Enquiry officer does not examine the report of Shri K.B.S. Katoch, Joint Secretary (Pers) MEA New Delhi DO No.Q/BOS/III/815/59/2006/328 dated Ist June, 2007 (paced at page No.76).
2. As per the mentioned in the ibid report the hand writing and voice samples of charged official Constable Babu Lal Yadav provided by the Japanese Police was sent to the Director Andhra Pradesh Forensic Science Laboratory (APFSL) Hyderabad duly accompanied by Shri N.P. Singh, SO, Bureau of Security (BOS). APFSL confirmed that the handwritten email address [email protected] is indeed written by the Applicant (Charged Official). It is implied that while Charged Official was on duty Miss Ai Ohtani Japanese Student of Urdu language and Indian culture of National University had come to Chancerry on 9th Sep2005 for applying visa to step in the drivers room (No.104) located between the Visa hall in the toilet and enquired from her whether she was planning to go to India and also offer her a cup of Coffee. While Charge Official and Japanese girl were talking to each other in the drivers room, both local based Philipino drivers viz. Mr. Marcos Dimayuga and Romolo Dimayuga briefly entered the room separately and left. Charged Official had given to victim Japanese girl, his mobile No. and E-Mail ID. Charged Official took the girl to rear side of the room where a three seater sofa was placed and made her to seat on that. Charged Official held the hand of the Japanese girl and planted a kiss on the back of her hand and simultaneously put his hand in her skirt. Victim Japanese girl was totally shocked by the behavior of the Charged Official and resisted his advances. Later on Charged Official allegedly put his erect pennies in the mouth of Japanese girl and ejaculated.
3. Charged Official had sexually harassed the Japanese girl on 9th September, 2005. The Disciplinary Authority, further in the aforesaid disagreement note, has submitted that the Applicant, during the course of enquiry in his reply of question No.26, he has stated that on 07.01.2006 he was going to the residence of Shri Mani Lal Tripathi, due to heavy cold, he had covered his mouth and ear with a Muffler to escape from cold and he has tried to enquire about the route of Rajdoot Niwas but unfortunately Japanese people were got afraid by looking his odd dress/appearance and call for Police. The Japanese Police arrested him but they leaved him free without any FIR/charges. The reply of Charged Official on Question No.26 during the course of enquiry is false and fabricated, it is very clear from the report dated 01.06.2007 submitted by the Joint Secretary (Pers) MEA New Delhi, that Charged Official was detained by the Japanese Police on 7th January, 2006 on the charge of making in appropriate advances to a young lady on the road side a Coffee shop. Charged Official was released by the local police on the intervention of the Embassy Officials.
4. As per the report received from MEA New Delhi dated Ist June, 2007 the Charged Official reportedly sent message to the victim on her cell phone on 11.09.2005 from the cell phone of his (Yadav) friends cell phone No.090-93854500. Photographs of victim cell phone screen showing text of SMS message (I LOVE YOU SO MUCH) reportedly sent by the Charged Official to victim Japanese girl from his friends cell phone No.090-93854500 on 8th October, 2006.
5. The Disciplinary Authority will take a suitable decision after considering your representation. If you wish to make any representation or submission against the findings of Disciplinary Officer, you may do so in writing to Disciplinary Authority within 15 days from the date of receipt of this letter, failing which it will be presumed that you have nothing to represent and the case will be finalized accordingly.
5. The Disciplinary Authority gave a further opportunity to the Applicant to make representation, if any, against the aforesaid disagreement note and the reasons thereof so that they could be taken into consideration before the proceedings are finalized. Accordingly, the Applicant made Annexure A-7 representation dated 13.11.2010. The relevant part of the said representation is as under:-
Sir, I am to reiterate here that the Report of Shri K.B.S. Katoch, Joint Secretary (Pers.) MEA, New Delhi vide DO NO.Q/BOS/III/915/59/2006/328 dated 1st June 2007 may be based upon the initial FIRST Confidential Letter from Sh. S.K. Mandal, Deputy Chief of Mission. Sh. K.B.S. Katoch, J.S. (Pers) rightly took the complaint seriously and pursued according to the established law. But the successive second Confidential Letter From the same Deputy Chief of Mission to Sh. Katoch, Jt. Secretary (Pers) MEA, New Delhi with contents of their findings during their Inquiry on this subject casefound all charges baseless, fabricated and untenable and so I have been cleared and absolved off all alleged charges. The whole case was fabricated, cooked up and concocted against me by mischievous Philipino Drivers for the Mission. I have already stated this in all my previous submissions. It is surprising notion that no one in my department of SSF or CISF have initiated to summon the said unknown Japanese girl, AI Ohtani and Philipino brothers who could have been put to same stringent process of submissions, depositions and even litigation for fraud and framing of salacious charges.
Sir, I do admit even now that the Mail-Id was written by me and the said Paper Slip was placed inadvertently under Table Glass of the Reception office at the Mission by me. Only that Slip caused all this embarrassment and, later on, harassment to me as it helped the Philipino drivers to fabricate and cook up the whole bonfire and grim saga of treachery and extortion. Whereas the Voice sample is concerned, it was tested by APFSL and was not found conclusively as of mine and hence no substance.
Sir, the labeled salacious charge of sexual assault on a Japanese girl is false, fabricated and cooked up broth and found unsubstantiated even in the Mission Inquiry. My individuality, liberty and Rights have unnecessarily been put to uncalled for tests/scrutiny leading to humiliation, harassment and scars on me and affecting my family esteem socially and that, too, in absence of plausible evidence or substance against me. A disciplinary action under conduct Rules cannot be initiated against me ex-parte on mere whimsical nuances or biased conclusions at the departmental level. You cannot provide soft havens of exemptions to the culprits, Ms Ai Ohtani and Philipino drivers on one hand and take punitive action against me. I have submitted my version in details to the Enquiry Officers and hence nothing more to add here.
Sir, the glaring facts as substantiated by the Enquiries held at the mission Office in Japan and subsequent Confidential Letter by Deputy Chief of Mission to Sh. KBS Katoch, Joint Secretary (Pers) is full of facts and self explanatory. Finally the truth prevailed and I got fair deal and justice at the hands of Mission authorities in their findings yet I am to get justice from my own Department of SSF and CISF.
Therefore, in the light of the given submissions on each part of the cooked-up and fabricated story, I do seek your kindful authority to provide me needed relief and justice as I have already undergone the grim saga of treachery and extortion and faced undue harassment and humiliation through suspension and presently getting a Lump-sum without increments and without fixation of my pay according to Pay Commission recommendations for the last five years.
6. However, the Disciplinary Authority, vide Annexure A-3 order dated 16.10.2010, imposed upon him the punishment with 2/3rd Pension and Gratuity Benefits with immediate effect. The relevant part of the said order reads as under:-
9. After thorough consideration and careful study of the enquiry report submitted by the Enquiry Officer, all other relevant documents and evidence available on the case file, the undersigned found that all the Prosecution witnesses relating to the case are the foreign citizen and as they reside in foreign, their examination cannot be done, from which the accused did not get any opportunity of cross examination, but the documentary evidence which has been given by Shri K.B.S. Katoch Joint Secretary (Pers) MEA, New Delhi vide letter No.(328) dated 01.06.2007 against the accused, according to it, the charge leveled against the accused is fully proved because confirmation of such kind sexual harassment can be made on the basis of direct evidence, only confirms on the basis of the circumstantial evidence of incident. Finally the undersigned arrives on this result that 18 years old japanned girl Miss Ai Ohtani had come to the Indian Embassy for giving the Visa application on 09.09.2005 and the accused Bau Lal Yadav with bad intention made her to sit in the Duty room and gave her one cup of Coffee to drink and thereafter committed sexual molested with the victim. Thus the above said act committed by Babu Lal Yadav, Sepoy SSF from which the integration of the country has been affected and differences arose between the two countries, which cannot be ignored in any case, and for which the above said charged member is entitled to get strict punishment.
10. Therefore the undersigned exercise the powers conferred under Rule 11 (vii), Rule 14 of Central Civil Service Rules 1965 and Order No.12012/24/2001 VC dated 21.7.2002 of the Government of India (Ministry of Home), passes the order of punishment of Compulsory Retirement from service with 2/3rd Pension and Gratuity benefits with immediate effect.
11. Babu Lal Yadav Sepoy No.2144, SSF New Delhi will not be treated on duty of the suspension period from 12.07.2007 to 20.10.2009 (Afternoon) (Suspension period treated as dies non) and during this suspension period, whatever subsistence allowance has been paid to him, except the same no other pay and allowance will be payable.
12. Babu Lal Sepoy No.2144 is informed that if he wants, then he can file the appeal against this order within 45 days of the receipt of this order to the Dy. Inspector General, CISF CGBS, Jamnagar House, New Delhi.
13. Shri Babu Lal Yadav, Sepoy No.2144 is given copy of this order from of cost.
14. Acknowledgement of the order be sent.
Sd/-
Commandant.
7. Thereafter, the Applicant made Annexure A-8 detailed appeal to the Appellate Authority against the charges framed against him. He has stated that in the absence of any substantial documentary evidence against him, it was unfair for the Disciplinary Authority to impose upon him the punishment of compulsory retirement from service. However, the Appellate Authority, vide Annexure A-4 order dated 03.11.2011, in exercise of the powers conferred upon him under Rule 11 (xi) of the CCS (CCA) Rules, 1965, imposed upon the Applicant the penalty of dismissal from Government service. The reasoning given by the Appellate Authority for exercising the punishment was as under:-
Whereas the undersigned, as the Appellate Authority has studied and examined the allegations, charges of sexual molestation of a Japanese national and sequence of events including the contents of the Departmental Enquiry and observed that the misconduct on the part of Constable Babu Lal Yadav would have had a serious impact on relationship of the two countries. The misconduct on the part of Ex. Constable Babu Lal Yadav virtually created a diplomatic stand off between two Governments and he was declared a Not acceptable person by the Japanese Government. Such implications should have been kept in mind by the disciplinary authority while imposing the penalty of Compulsory Retirement from service with 2/3rd Pension and Gratuity Benefits. Penalty of compulsory retirement should only be imposed in those cases where dismissal or removal from service are considered too harsh. In view of the nature of offence committed by the Constable and embarrassment to the Nation, the penalty of dismissal from service cannot be considered harsh and may be imposed now.
8. The Applicant has challenged the aforesaid impugned orders on various grounds. According to him, none of the listed prosecution witnesses were produced before the Inquiry Officer thereby he was deprived of his valuable opportunity to cross-examine them. According to him, said lacuna was a serious one violating the principles of natural justice. The learned counsel for the Applicant has submitted that without examining any prosecution witnesses from the list of witnesses furnished to the Applicant as per Rule 14 of the CCA (CCA) Rules, 1965, denying opportunity of cross-examination and at the same time calling him by the Inquiry Officer in his office and cross-examining him, are contrary to the principles of natural justice, as laid down in the CCS (CCA) Rules, 1965.
9. Further his submission is that the Disciplinary Authority rejected the findings of the Inquiry Officer on surmises and conjectures while the Inquiry Officer had applied its mind objectively in stating and analyzing the factual position that there was no oral or documentary evidence against him to come to the conclusion that the charges against him have been proved. The learned counsel for the applicant in support of this submission has relied upon the judgment of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank & Others 2009 (2) SCC 570 wherein it has been held that documentary evidence are required to be proved not by mere production of the documents before the Inquiry Officer but it has to be proved by examining the witnesses. The relevant part of the said judgment reads as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
10. Further, according to the Applicant, the Presenting Officer in his brief dated 18.02.2010 itself has concluded that the charges leveled against him were not proved. Therefore, there is no question of the Disciplinary Authority saying that the charges have been proved. The Inquiry Officer has rightly concluded in his report that the charges leveled against the Applicant were not proved in the absence of cross-examination of the prosecution witnesses and doubtful documentary evidence. The contention of the learned counsel for the Applicant that no document and its content can be said to have been proved unless the witnesses are examined to prove a document and its content. In support of this contention, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in the case of Kuldeep Singh Vs. Commissioner of Police and Others 1999 (2) SCC 10 wherein it has been held as under:-
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
11. Another ground taken by the learned counsel for the Applicant is that the disagreement note of the disciplinary authority is mala fide and arising out of perverse consideration. According to him, in the absence of any evidence on record to support the findings of guilt and the findings of the Disciplinary Authority are such that no person acting reasonably and objectively could have arrived at the findings. Therefore, the findings of the Disciplinary Authority are liable to be set aside and quashed. He has also pointed out that the Disciplinary Authority acted with a pre-determined mind as the disagreement note shows that it was not his tentative opinion but he has already come to the conclusion in an arbitrary manner that the charges were proved despite the fact that the Inquiry Officer appointed by him has stated that the charges have not been proved. In this regard, the learned counsel for the Applicant has relied upon the Apex Court judgment in the case of Yoginath D. Badge Versus State of Maharashtra and Anr. (1999) (7) SCC 739) wherein it has already been held as under:
39. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (1998 AIR SCW 2762 : AIR 1998 SC 2713 : 1998 Lab IC 3012 : 1998 All LJ 2009) (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the Disciplinary Authority that the findings already recorded by the Enquiry Officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.
12. The Respondents have filed their reply denying the contentions of the Applicant. They have also justified that the Appellate Authority has rightly exercised the powers conferred upon him under Rule 11(xi) of the CCS (CCA) Rules, 1965 while imposing the punishment of dismissal from service upon the Applicant. They have also stated that Rule 19 of the CCS (CC) Rules lays down special procedure in certain cases and it reads as under:-
19. SPECIAL PROCEDURE IN CERTAIN CASES:
Notwithstanding anything contained in rule 14 to rule 18-
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i):
Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.
13. The learned counsel for the Respondents has also relied on the judgment of the Apex Court in the case of The High Court of Judicature At Bombay Vs. Shashikant S. Patil & Another JT 1999 (8) SC 493 wherein it has been held as under:-
15. The Disciplinary Committee enumerated all the above reasons in its proceedings for dissenting from the Inquiry Officer's conclusions. In fact all such reasons have been set out in the notice issued by the Disciplinary Committee to the first respondent requiring him to show cause why the conclusions of the Inquiry Officer be dissented from.
16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
14. We have heard the learned counsel for the Applicant, Shri Anil Singhal and the learned counsel for the Respondents, Shri Subhash Gosain. We have also perused the relevant documents on record. In our considered view allegations, howsoever serious they are, they remain as mere allegations, unless they are proved in accordance with the rules. It is seen in this case that the Applicant was proceeded under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. Accordingly, the Applicant was also served with the Statement of Article of Charge, the Statement of Imputation of misconduct in support of the charge, list of documents by which the Article of Charge framed against the Charged Official (Applicant herein) were proposed to be sustained and the list of witnesses by whom Article of Charge framed against him were proposed to be sustained. To that extent, the Disciplinary Authority has complied with the provisions contained in sub-rule (3) of rule 14 ibid. However, it is an admitted position that name of the listed witnesses to be examined on behalf of the Disciplinary Authority have not been produced during the enquiry proceedings before the Enquiry Officer by the Presenting Officer to examine and the Government servant to cross-examine. Therefore, the enquiry was held in total violation of the provisions contained in the sub-rule (14) of Rule 14 of the CCS (CCA) Rules, 1965, which reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
15. As held by Apex Court in Roop Singh Negis case (supra) relied upon by the Applicants counsel, departmental proceedings is a quasi judicial proceedings and mere tendering of the documents is not sufficient to prove the charge. The witnesses have to be examined to prove the charge. The Government servant should also have the opportunity to cross-examine the prosecution witnesses and refute their contention. Again in Kuldeep Singh Vs. Commissioner of Police and Others 1999 (2) SCC 10, the Apex Court held that reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them.
16. Therefore, in the absence of the basic ingredients of a departmental proceeding, i.e., examination and cross-examination of the witnesses, no enquiry proceedings are worth its name. According to the Enquiry Officers report itself, in the absence of the witnesses, it was the Enquiry Officer who cross-examined the Applicant which was violation of the aforesaid sub-rule (14) of the CCS (CCA) Rules, 1965. In Gujarat Urja Vikas Nigam Limited Vs. Essar Power Limited AIR 2008 SC 1921 the Honble Supreme Court has, inter alia, held that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and not in other manner.
17. However, the Enquiry Officer rightly held that the charges leveled against the Applicant was not proved due to the absence of the prosecution witnesses and contradictions in the listed documents. But thereafter, in conclusion of the report, the Enquiry Officer has made an unwarranted statement that the act on the part of the Applicant created a diplomatic stand off between two Governments which constitutes a gross misconduct. Therefore, in the face of the judgment of the Apex Court in both Roop Lal Negis case (supra) and Kuldeep Singhs case (supra), there is no question of the Disciplinary Authority agreeing or disagreeing with the Enquiry Officers report based on the proceedings held in violation of the rules. For the same reason, the subsequent order of the Disciplinary Authority imposing the penalty upon the Applicant and the order of the Appellate Authority rejecting the Applicants appeal are also not sustainable.
18. In view of the above position, the OA succeeds. The impugned report of the Enquiry Officer, the Disagreement Note of the Disciplinary Authority, the Disciplinary Authoritys order dated 16.12.2010 imposing the punishment of compulsory retirement from service and the Appellate Order dated 03.11.2011 enhancing the said penalty to that of dismissal from service are quashed and set aside. The Respondents shall, therefore, forthwith reinstate the Applicant in service. But in the facts and circumstances of this case, the Applicant will only be entitled for the consequential benefits without back wages. However, if the Respondents fail to comply with the aforesaid directions within the aforesaid prescribed period, on expiry of the same, he will be entitled for full monthly salary also. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh