Delhi High Court
S.K. Tyagi vs Union Of India & Ors. on 4 July, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 4th May, 2011
% Judgment Pronounced on: July 04, 2011
+ WP (C) No. 4421/2000
S.K. TYAGI ..... Petitioner
Through: Mr.P.P. Khurana, Sr. Advocate with
Ms. Sunita Tiwari, Advocate.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ravinder Agarwal with
Mr. Nitish Gupta, Advocates
for Respondent Nos. 1 and 2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the judgment? Yes
2 To be referred to the Reporter or not? Yes
3 Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
In this writ petition preferred under Articles 226 and 227 of the
Constitution of India, the petitioner has called in question the legal
substantiality of the order dated 18.2.2000 passed by the Central
WP (C) 4421/2000 page 1 of 17
Administrative Tribunal, Principal Bench (for short „the tribunal) in OA
No.1265/1995.
2. The petitioner entered Indian Revenue Service (IRS) as a direct
Class-I Officer in 1968. He was promoted as Inspecting Assistant
Commissioner of Income Tax in 1979. A disciplinary proceeding was
initiated against him and he was served with a chargesheet on 29.11.1988
for imposition of major penalty. A raid was also conducted by the CBI on
9.12.1988 at his office and the residential premises. The CBI did not think
it appropriate to file the chargesheet and accordingly the seized documents
were returned to him on 20.3.1992. As set forth in the petition in April
1988, the Departmental Promotion Committee (DPC) recommended his
name for the post of Commissioner of Income Tax (CIT) but eventually he
was not extended the benefit of promotion.
3. The disciplinary proceeding that was initiated vide charge memo
dated 29.11.1988 continued. An additional charge memo was served on
him on 26.7.1989. The petitioner was found guilty in respect of the
additional charge levelled against him and eventually the penalty of
dismissal was imposed vide order dated 11.7.1994. Being dissatisfied with
WP (C) 4421/2000 page 2 of 17
the order of penalty of dismissal, the petitioner addressed a memorial
dated 30.8.1994 to the President of India but there was no response to the
same. The order of dismissal was assailed before the tribunal in the
original application. It was contended before the tribunal that the
petitioner was not afforded adequate opportunity during the enquiry as a
consequence of which the disciplinary proceeding is vitiated; that he was
not allowed reasonable opportunity to examine the material defence
witnesses; that the enquiry officer rejected the testimony of the defence
witnesses in a most cryptic manner and further the enquiry officer did not
consider the stand and stance put forth during his defence and, hence, the
enquiry report did not deserve to be accepted; that the order passed by the
disciplinary authority was based on conjectures and it was basically a case
of no evidence; and that the expert evidence was accepted without
following the due procedure of law.
4. The respondents before the tribunal in support of the order of
dismissal submitted that the charge had been properly proven and the
findings recorded by the disciplinary authority do not suffer from any
perversity of approach and the tribunal should not appreciate the material
brought on record as an appellate authority. The tribunal referred to the
WP (C) 4421/2000 page 3 of 17
chargesheet, the material brought on record and certain authorities in the
field and analyzed the evidentiary value of the material and came to hold
that there was no justification for interference in the order of punishment.
5. Mr. P.P. Khurana, learned senior counsel appearing for the
petitioner has submitted that the punishment has been imposed on the
basis of the report given by the Union Public Service Commission (UPSC),
the copy of which was not supplied to the petitioner and, hence, the
punishment is unsustainable in law. That apart, the authorities could not
have pressed into service the report of the UPSC which is only a
recommendatory one in view of the decision of the Apex Court in State
Bank of India and others v. D.C. Aggarwal and another, (1993) 1 SCC 13.
It is his further submission that the allegation of interpolation has not been
proven since the only witness in this regard is the expert witness who had
not taken the admitted signatures or the writings of the petitioner and,
therefore, the opinion of the said expert does not deserve acceptation and,
hence, the charge in entirety falls to the ground. Learned senior counsel
would contend that the disciplinary authority had passed the order
without considering the explanation / show cause submitted by the
petitioner in proper perspective and further the order being laconic is
WP (C) 4421/2000 page 4 of 17
indefensible. It is urged that if the evidence of SW-1, SW-2 and SW3 are
properly scrutinized nothing is reflected that the petitioner had any role in
the interpolation, as alleged in the chargesheet but the disciplinary
authority has not taken pains to scrutinize the same and passed a very
routine order. To buttress the said submission he has drawn inspiration
from the decision in Anil Kumar v. Presiding Officer and others, AIR 1985
SC 1121. It is the further submission of learned senior counsel for the
petitioner that it is a case of no evidence and the findings are based on
such material which cannot be conferred the status of evidence in law.
6. Mr. Ravinder Agarwal and Mr. Nitish Gupta, learned counsel for
respondent nos. 1 and 2 supporting the order passed by the tribunal
contended that the same is absolutely impeccable and does not suffer from
any infirmity since the charges levelled against him have been proven. It
is urged by them that the nature of proof in a disciplinary proceeding and
in a criminal trial are different and, therefore, the submission as regards
the appreciation of evidence is totally sans substance.
7. To appreciate the submissions raised at the Bar, it is appropriate to
mention that in the charge memo dated 29.11.1988 four articles of charge
WP (C) 4421/2000 page 5 of 17
were mentioned. The first three articles of charges were held not proven
and in respect of the fourth one a finding was returned that no malafides
were established against him.
8. Be it noted, during the pendency of the first enquiry an additional
charge memo dated 26.7.1989 containing one Article of charge was served
on the petitioner. It is as follows:
"Major penalty proceedings were initiated against Shri
S.K. Tyagi, D.C.I.T., now under suspension, by service
of a Memorandum dated 29th November, 1988. Shri
Tyagi was granted inspection of documents listed in the
said chargesheet for enabling him to furnish his written
statement of defence. On 14.2.1989 when Shri S.K.
Tyagi was taking inspection of a folder marked "Angel
Office File Super-de-Luxe" which was a part of
assessment records for Asstt. Years 1981-82 and 1982-83
in the case of Kishore Kumar documents contained in
the folder and inserted fresh document therein with an
intention to get undue advantage in the disciplinary
proceedings already instigated against him vide
memorandum dated 29.11.1988. Thereby he failed to
maintain absolute integrity and exhibited a conduct
unbecoming of a Govt. Servant and accordingly he
violated the provisions of rules 3(1)(i) & 3(1)(iii) of the
C.C.S. (Conduct) Rules, 1964."
WP (C) 4421/2000 page 6 of 17
9. At this stage, it is pertinent to refer to Article III of the original
chargesheet as the additional charge memo pertains to it. The said Article
of charge reads as follows:
"Shri S.K. Tyagi while posted as Inspecting Assistant
Commissioner of Income Tax, C-II, Range, Bombay
during the year 1984-85, approved the assessment
orders for the assessment years 1981-82 and 1982-83 in
the case of Shri Kishor Kumar Bhimji Zaveri in an
improper manner, ignoring the directions of the
Commissioner of Income Tax directing full and proper
investigation in this case and overlooking the material
available on record. Shri Tyagi thereby failed to
maintain absolute integrity and devotion to duty and
exhibited a conduct, unbecoming of a Govt. servant.
He, thus violated provisions of Rules 3(1)(i), 3(1)(ii) and
3(1)(iii) of CCS (Conduct) Rules, 1964."
10. After the said chargesheet was served on the petitioner, an enquiry
proceeding was initiated and the enquiry officer submitted the report
dated 4.5.1992 holding that the charge leveled against him had been
proved and on the basis of the said report the disciplinary authority vide
order dated 11.7.1994 imposed the punishment of dismissal. At that stage
the petitioner preferred a petition before the Apex Court under Article 32
of the Constitution of India but the same was disposed of with the
WP (C) 4421/2000 page 7 of 17
observation that the petitioner may move the tribunal for redressal of his
grievances.
11. To appreciate the submissions of learned counsel for the petitioner,
it is essential to refer to the enquiry report. The enquiry officer has
referred to the charge which dealt with the issue that the delinquent officer
had tampered with the documents contained in the folder Ex.S.3(ii) and
inserted fresh documents therein with an intention to get undue advantage
in the disciplinary proceedings already instituted against him vide
Memorandum dated 29.11.1988. The enquiry officer has taken note of the
fact that on 14.2.1989 the petitioner was allowed inspection of certain
records in the office of SW-4. On a perusal of the enquiry report, it is
demonstrable that the enquiry officer has referred to the evidence SW-1 to
SW-4 and the insertion of the letters and in the enquiry report he has
stated thus:
"(III) From the depositions of witnesses it is seen that
Shri S.D. Sabnis was produced and examined as SW-1
during the enquiry..
From the deposition of SW-1 it is seen that SW-1
has confirmed the contents of Ex.S.2 and has also
clarified that numbering of pages of the files in Ex.S.2
was done by is staff and he had checked them before
signing Ex.S.2.
WP (C) 4421/2000 page 8 of 17
(IV) From Ex.S.4 it is seen that the documents
suspected to have been inserted by the CO i.e. the
disputed documents were given to the Examiner of
Questioned Documents (SW-2) for his "Expert
Opinion".
It is also seen from Ex.S.4 read with the
deposition of SW-2 (who prepared Ex.S.4) that SW-2 has
given the following "expert opinions":
(a) The writers of the Standard encircled figures
representing the page numbers 1 to 10 and the standard
encircled figure in the page number „104‟ on the blank
piece of paper of Ex.S.3(ii) have not written the
disputed eight encircled figures in the page numbers
104 to 111 of Ex.S.3(ii).
It is seen that SW-2 has given 15 reasons for
coming to the conclusion mentioned above.
(b) The CO has written the eight disputed encircled
figures representing the page numbers 104 to 111 of
Ex.S.3(ii).
It is seen that SW-2 has given 15 reasons for
arriving at the conclusion mentioned above.
(c) The eight disputed statements of Account bearing
hand written encircled page numbers 104 to 111 are
subsequently filed / inserted after a very long gap or
interval of time after the filing of the documents bearing
hand written encircled page numbers 1 to 103 and the
blank paper showing hand written encircled page
number „104‟ (having a long downward straight stroke
going towards right edge of the said blank paper).
It is seen that SW-2 has given six reasons for
arriving at the above conclusion.
In view of above, the allegation against the CO is held
to be proved."
WP (C) 4421/2000 page 9 of 17
12. The learned senior counsel for the petitioner has referred to the
depositions of SW-1 to SW-3 but the enquiry officer has found them as self-
contradictory on material points and, hence, not relied upon. He has held
that the veracity of SW-4‟s letter dated 15.2.1989 to SW-5 in Ex.S.1 cannot
be questioned on the basis of such statement which is self-contradictory.
The enquiry officer has given adequate reasons to place reliance on the
testimony of SW-4 and SW-5. He has also ascribed cogent reasons to
discard the testimony of the defence witnesses as they were self-
contradictory and further the testimony of one witness, namely, Kishore
Kumar Bhimji Zaveri was totally inconsistent and contradictory. The
disciplinary authority has taken note of the submissions of the petitioner
against the findings returned by the enquiry officer. The grounds that
were raised before the disciplinary authority were that the enquiry
proceedings were vitiated as the principles of natural justice had been
violated; that the report was totally perverse as there had been no
discussion of evidence; that the enquiry officer had not applied his mind to
the charges leveled against the concerned officer; and that he had blindly
relied on the expert evidence.
WP (C) 4421/2000 page 10 of 17
13. The principal ground that was raised in the explanation / show
cause to the enquiry report before the disciplinary authority is as follows:
"(ii) that he placed before the I.O. two reports of the
private hand writing experts against the opinion of Sh.
Gajjar, hand writing expert relied upon by the
Department. As per the opinion of these two hand
writing experts, the opinion of Shri Gajjar was based on
grossly insufficient sample of disputed and standard
writing and that the opinion was false and erroneous,
but the I.O. totally ignored the opinion of these two
experts."
14. The disciplinary authority has dealt with the same as follows:
"(ii) It has been alleged by Shri Tyagi that the I.O. had
not considered the admitted evidence in the form of two
private hand writing experts opinion. From the enquiry
records, it is evident that the I.O. admitted the opinion
of the private hand-writing expert Mrs. R.K. Vij as
exhibit D-2, while second opinion of Shri Mahesh Wagh
was enclosed as Annexure "E" to C.O‟s brief submitted
before the I.O.
(iv) It is alleged by the C.O. that the opinion of Shri
Gajjar, departmental handwriting expert was wrong
and based on insufficient sample and even this fact was
accepted by Shri Gajjar in his cross-examination. A
perusal of the enquiry records show that Shri Gajjar was
a witness as SW-II and a detailed examination was
conducted. During examination, Shri Gajjar admitted
that Sl. No.1 to 103 could have been written by more
than one person as against one person mentioned in his
report but he was definite that the marking on the 8
pages from 104 to 111 was in the hand writing of the
C.O."
WP (C) 4421/2000 page 11 of 17
15. The tribunal took note of the fact that there was no reason to discard
the evidence of Mr. Gajjar, the handwriting expert and further Mr. R.K. Vij,
the private handwriting expert, who was examined as a defence witness.
Learned senior counsel for the petitioner would submit that the enquiry
officer did not allow the second hand writing expert Shri Wagh to adduce
defence evidence and further his admitted signatures were not taken. The
tribunal has analyzed the material on record to return a finding that there
was no specific prayer to examine Mr.Wagh. A part of the letter that was
written by the petitioner seeking permission to examine Mr. Wagh, reads
as follows:
"I would also request you to permit either Mr.Mahesh
Wagh if he is being permitted as a Defence Witness or
Mrs. R.K. Vij B.A.L.L.B., Examiner of Questioned
Documents, New Delhi (who has already been admitted
as Defence Witness) to cross-examine the handwriting
expert engaged by the Disciplinary Authority namely
Shri H.T. Gajjar. This request is being made because
neither I nor my Defence Assistant would be in a
position to cross-examine a hand writing expert
effectively."
16. Relying on the same, the tribunal has opined that no specific request
was made. That apart, Mr. Wagh was also not included in the list of
defence witnesses. Had he been examined as a defence witness, the
WP (C) 4421/2000 page 12 of 17
department could have cross-examined him. Be that as it may, it cannot be
regarded as a violation of principles of natural justice as the petitioner had
cross-examined Mr.Gajjar at length and Mr.Vij was permitted to be cited as
a defence witness.
17. It is well settled in law that the tribunal does not sit in appeal on the
findings recorded by an enquiry officer in a departmental proceeding but
under certain circumstances a judicial review of fact is permissible.
18. In H.B. Gandhi v. Gopi Nath & Sons, 1992 Supp (2) SCC 312,
wherein it has been held as follows:
"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."
Similar view has been reiterated by their Lordships in B.C.
Chaturvedi v. Union of India and others, (1996) 1 LLJ 1231 SC.
19. In Moni Shankar v. Union of India and another, (2008) 3 SCC 484, it
has been held thus:
"17. The departmental proceeding is a quasi-judicial
one. Although the provisions of the Evidence Act are
WP (C) 4421/2000 page 13 of 17
not applicable in the said proceeding, principles of
natural justice are required to be complied with. The
courts exercising power of judicial review are entitled to
consider as to whether while inferring commission of
misconduct on the part of a delinquent officer relevant
piece of evidence has been taken into consideration and
irrelevant facts have been excluded therefrom. Inference
on facts must be based on evidence which meet the
requirements of legal principles. The Tribunal was,
thus, entitled to arrive at its own conclusion on the
premise that the evidence adduced by the Department,
even if it is taken on its face value to be correct in its
entirety, meet the requirements of burden of proof,
namely, preponderance of probability. If on such
evidences, the test of the doctrine of proportionality has
not been satisfied, the Tribunal was within its domain
to interfere. We must place on record that the doctrine
of unreasonableness is giving way to the doctrine of
proportionality. [See State of U.P. v. Sheo Shanker Lal
Srivastava, (2006) 3 SCC 276 and Coimbatore District
Central Coop. Bank v. Employees Assn. (2007) 4 SCC 669].
18. We must also place on record that on certain,
aspects even judicial review of fact is permissible. (E v.
Secy. of State for the Home Deptt., 2004 QB 1044)"
20. In State of U.P. and Another v. Johri Mal, (2004) 4 SCC 714, it has
been held as follows:
"It is well settled that while exercising the power of
judicial review the court is more concerned with the
decision-making process than the merit of the decision
itself. In doing so, it is often argued by the defender of
an impugned decision that the court is not competent to
exercise its power when there are serious disputed
questions of facts; when the decision of the Tribunal or
WP (C) 4421/2000 page 14 of 17
the decision of the fact-finding body or the arbitrator is
given finality by the statute which governs a given
situation or which, by nature of the activity the
decision-maker‟s opinion on facts is final. But while
examining and scrutinizing the decision-making
process it becomes inevitable to also appreciate the facts
of a given case as otherwise the decision cannot be
tested under the grounds of illegality, irrationality or
procedural impropriety. How far the court of judicial
review can reappreciate the findings of facts depends
on the ground of judicial review. For example, if a
decision is challenged as irrational, it would be well-
nigh impossible to record a finding whether a decision
is rational or irrational without first evaluating the facts
of the case and coming to a plausible conclusion and
then testing the decision of the authority on the
touchstone of the tests laid down by the court with
special reference to a given case. This position is well
settled in the Indian administrative law. Therefore, to a
limited extent of scrutinizing the decision-making
process, it is always open to the court to review the
evaluation of facts by the decision-maker."
21. Similar principle has been reiterated in Noble Resources Ltd. v. State
of Orissa & Anr., AIR 2007 SC 119.
22. On a perusal of the report of the enquiry officer and the order
passed by the disciplinary authority, it cannot be treated as perverse or
unreasonable.
WP (C) 4421/2000 page 15 of 17
23. Though, the learned senior counsel for the petitioner has raised with
immense vehemence that principles of natural justice have been violated
by not examining Mr. Wagh but, the same leaves us unimpressed as, we
have indicated hereinbefore, that Mr. Gajjar, the handwriting expert was
cross-examined at length by the defence and Mr. Vij, the private
handwriting expert was permitted to be cited as a defence witness. Thus,
it can be said with certitude that there has been substantial compliance of
principles of natural justice. That apart, the tribunal has also ascribed
cogent reasons that the petitioner had really not sought permission to
examine Mr. Wagh. In any case, no prejudice has been caused to the
petitioner.
24. The learned senior counsel would further submit that the report of
the enquiry officer should be a reasoned one and to buttress the said
submission he has commended us to the decision rendered in Anil Kumar
(supra). In the said case the Apex court has held thus:
"It is well-settled that a disciplinary enquiry has to be a
quasi-judicial enquiry held according to the principles
of natural justice and the Enquiry Officer has a duty to
act judicially. The Enquiry Officer did not apply his
mind to the evidence. Save setting out the names of the
witnesses, he did not discuss the evidence. He merely
WP (C) 4421/2000 page 16 of 17
recorded his ipse dixit that the charges are proved. He
did not assign a single reason why the evidence
produced by the appellant did not appeal to him or was
considered not credit-worthy. He did not permit a peep
into his mind as to why the evidence produced by the
management appealed to him in preference to the
evidence produced by the appellant. An enquiry report
in a quasi-judicial enquiry must show the reasons for
the conclusion. It cannot be an ipse dixit of the Enquiry
Officer. It has to be a speaking order in the sense that
the conclusion is supported by reasons."
25. On a studied scrutiny of the enquiry report, we are of the considered
view that the ratio of the aforesaid decision is not applicable inasmuch as
the enquiry officer at hand has given cogent and germane reasons and, in
fact, scrutinized in detail the depositions of the witnesses and appreciated
them. Thus, the said contention is without any substance and is hereby
repelled.
26. In view of the aforesaid analysis, we do not perceive any merit in
this writ petition and accordingly the same is dismissed without any order
as to costs.
CHIEF JUSTICE
JULY 04, 2011 SANJIV KHANNA, J.
dk WP (C) 4421/2000 page 17 of 17