Central Administrative Tribunal - Delhi
N M Sharawat vs M/O Personnel,Public Grievances And ... on 17 October, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2762/2014
New Delhi, this the 17th day of October, 2019
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
N. M. Sharawat,
S/o Sh. Samar Singh Samar,
R/o 227-A, Pkt-I, Mayur Vihar,
Phase-I, Delhi - 110091.
...Applicant
(By Advocate: Mr. Parvinder Chauhan)
Versus
UOI & Ors. Through
1. The Secretary,
Ministry of Personnel, Public Grievances,
& Pensions,
North Block, New Delhi.
2. The Director,
Central Bureau of Investigation,
CBI Headquarters, CGO Complex,
Lodhi Road, New Delhi.
3. The Dy. Insp. General of Police,
Economic Offences-III,
5-B, 4th Floor, CBI Headquarters,
CGO Complex, Lodhi Road,
New Delhi.
...Respondents
(By Advocate: Mr. Rajeev Kumar)
2
OA No. 2762/2014
O R D E R (ORAL)
Justice L. Narasimha Reddy, Chairman:-
The applicant was working as Inspector in Central Bureau of Investigation (CBI). In the year 2009, he was issued a charge memorandum dated 14.12.2009 by the Disciplinary Authority (DA) alleging that he accepted illegal gratification from certain persons for influencing the investigating officer and to seek favour for the accused persons in the inquiry. Four incidents of such alleged misconduct are cited. He was also prosecuted in 04 corresponding criminal case, before the Special Court for CBI cases.
2. The applicant submitted his explanation to the charge memorandum and not satisfied with the same the DA appointed the Inquiry Officer (IO). Through his report dated 12.10.2012, the IO held that the charges framed against the applicant are proved. The applicant was acquitted in 02 criminal cases and discharged into 02 other. Taking the report of the IO and the developments of the criminal cases into account, the DA passed an order dated 14.06.2013, dismissing the applicant from service. The departmental appeal preferred by him was rejected on 3 OA No. 2762/2014 10.06.2014. This OA is filed challenging the order of dismissal as affirmed in the appeal.
3. The applicant contends that though he was acquitted in 02 criminal cases and was discharged into 02 other cases, the IO recorded the findings that the charges are 'Proved', based on virtually same evidence. He, further, contends that the persons who are said to have paid the money or who are said to have received the same were not examined as witnesses and the inquiry was misdirected. The applicant contends that the DA proceeded on the wrong assumption that the acquittal was on benefit of doubt whereas the record discloses otherwise. A plea is raised as to the proportionality of the punishment.
4. Respondents filed a counter affidavit opposing the OA. It is stated that the charges framed against the applicant are very serious in nature and in the departmental proceedings they were held 'Proved'. It is stated that standard of proof in the criminal case on the one hand, and departmental proceedings on the other, is substantially different and in the instant case, the IO has furnished cogent reasons in support of his findings.
5. The OA was heard on earlier occasion and through order dated 19.12.2018 it was dismissed by placing 4 OA No. 2762/2014 reliance upon the judgments of G. M. Tank vs. State of Gujarat and Others (2006 SCC (L&S) 1121) and Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. (JT 1999 (2) SC 456). The applicant filed WP(C) No. 5331/2019 before the Hon'ble Delhi High Court. The Writ Petition was allowed through order dated 29.05.2019 with the following observations:-
"The nature and quality of evidence led in the proceedings may also differ and that may also lead to different conclusions. However, when a party- applicant approaches the Tribunal raising the issue that his acquittal in criminal proceedings is clean and therefore he could not be proceeded against in the departmental proceedings, the Tribunal cannot reject the original application merely by citing the decision of the Supreme Court as it has done. The Tribunal has cited the decisions in the cases of Dy. Commissioner of Police New Delhi and Another Vs. Mehar Singh (2013) 7 SCC 685 and Union of India Vs. Purushottam (2015) 3 SCC 779, and on that basis rejected the original application without any consideration of the facts of the present case. We, therefore, set aside the impugned order and remand the case back to the Tribunal for a detailed consideration of the matter. The parties shall appear before the Tribunal on 8.7.2019. We make it clear that we have not expressed any view on the merits of the case."
6. On such remand the matter was heard at length. Today, learned counsel for the applicant has repeated his arguments advanced earlier and apart from that he has furnished comprehensive compilation mentioning developments that have taken place in the case. He submitted that the standard of proof in the criminal case 5 OA No. 2762/2014 and the departmental proceedings was the same and in that view of the matter the result that ensued in the criminal cases ought to have been repeated in the departmental proceedings also. He submitted that when the allegations are about payment of illegal gratification the standard of proof is recorded to be same as in the criminal case.
7. Learned counsel for the respondents on the other hand submitted that the applicant was himself an officer in the CBI and he resorted to highly objectionable and serious acts of influencing the inquiry by the CBI itself. He submits that the acts of the applicant were so serious and objectionable that his telephone had to be tapped by following the procedure prescribed by law and the transcripts of the conversation were made part of the record. He submits that the applicant never disputed the authenticity of those transcripts. Learned counsel for the respondents, further, submits that the evidence of a departmental officer carries hardly any weight in the criminal case whereas in the departmental proceedings, it cannot be brushed aside, just like that.
8. The applicant was himself an officer in the CBI. It is fairly well known that the very purpose of establishing the 6 OA No. 2762/2014 CBI is to ensure that the corruption and other similar activities existing in various departments are curbed. It undertakes very sensitive investigations and makes every effort to unearth the corruption, in the cases referred to it. The charges framed against the applicant in the memorandum dated 14.12.2009, read as under:-
Article I "That Said Shri N. M. Sehrawat while functioning as Inspector of police in CBI, EOU- VIII/EO III, New Delhi, during the period from March-April, 2006, failed to maintain absolute integrity and acted in a manner which is unbecoming of public servant in as much as he obtained illegal gratification of Rs. 9 lacs from Shri Vijender Solanki through Dr. Sushil Kumar Gupta the suspect of case RC-16/E-
2005/BS&FC related to Ram Nagar CGHS Ltd., one of the Cooperative Group Housing Society (CGHS) scam cases, then under investigation with CBI, for influencing the Investigating Officer of the said case to seek favour for the accused persons of the case and thereby committed gross misconduct and thus contravened Rule 3 (1) (i) & 3(1) (iii) of Central Civil Services (Conduct) Rules, 1964.
Article II That during the period March-April, 2006 while functioning as Inspector of Police, CBI, EOU- VIII/EO III said Shri N. M. Sehrawat failed to maintain absolute integrity and acted in a manner which is unbecoming of a public servant in as much as he, in collusion with Shri Nawal Singh Verma, pressurized, threatened and scared Shri R. K. Jain r/o 168, Surya Nagr, Ghaziabad UP and consequently demanded and accepted illegal gratification of Rs. 3 lakhs from Shri R. K. Jain in connection with preliminary enquiry relating to the NCERT CGHS Ltd, for influencing IO of the case and thereby committed gross misconduct and thus contravened Rule 3 (1) (i) & 3(1) (iii) of Central Civil Services (Conduct) Rules, 1964.
Article III 7 OA No. 2762/2014 That during the period March, 2006 while functioning in the aforesaid office, said Shri N. M. Sehrawat failed to maintain absolute integrity and acted in a manner which is unbecoming of a public servant in as much as he contacted, Shri D. S. Mann, Dy SP, CBI, AOB, New Delhi, investigating officer of case RC.73(A)/2005/Delhi and sought favour from him for the accused in the said case and in collusion with and through Shri Jaideep Malik, obtained illegal gratification of Rs. 5 lacs in the aforesaid case and thereby committed gross misconduct and thus contravened Rule 3 (1) (i) & 3(1) (iii) of Central Civil Services (Conduct) Rules, 1964.
Article IV That during the period March, 2006 while functioning in the aforesaid office, said Shri N. M. Sehrawat failed to maintain absolute integrity and acted in a manner which is unbecoming of a public servant in as much as he, in collusion with Dr. Sushil Kumar Gupta, Advocate and Shri P. Balachandran, Dy SP CBI obtained illegal gratification from Shri Sandeep Sawhney in case RC EOU-1/2005A0010 to influence Shri Manoj Kumar, Inspector, CBI, EOU-I, New Delhi, Investigating Officer of the case and thereby committed gross misconduct and thus contravened Rule 3 (1) (i) & 3(1) (iii) of Central Civil Services (Conduct) Rules, 1964."
9. A perusal of the charges discloses that even if a small fraction of them is true the highest punishment deserves to be imposed. The reason is that the charges are against the officer in the CBI itself. As observed in the preceding paragraph, the applicant was tried in as many as 04 cases with reference to each article of charge. While in 02 cases he was acquitted in 02 other cases, he is said to have been discharged. The result in the criminal case is sought to be cited as the strong evidence in the departmental 8 OA No. 2762/2014 proceedings. The law in this behalf is fairly well settled. In case the charge in the criminal case on the one hand and the departmental proceedings on the other is same and the same evidence is adduced before both the authorities, there may be possibility for the result in the criminal case being reflected in the departmental proceedings also. Here again, there are exceptions. The standard of proof that is required to be placed before a criminal court is substantially different from the one in departmental proceedings. While in the former it is proof beyond any reasonable doubt, in the later it is preponderance of probability.
10. Another distinguishing feature is that if an officer belonging to the prosecution is examined as a witness in the Criminal Court, his evidence does not command acceptability on par with that of an independent witness. The evidence of a departmental officer is weighed with care and caution and unless supported or corroborated by independent evidence, the trial court may not act on the basis of such evidence. In contrast such a disadvantage does not exist in the departmental proceedings, as regards departmental officer. Once he is subjected to cross examination, his evidence would be as good as the evidence 9 OA No. 2762/2014 of any other witness. One needs to keep this distinction in mind.
11. In the instant case complainant as regards the 1st article of charge is one Mr. Vishal and he was examined as PW-1. Incidentally, he was examined as PW-4 in the criminal case. The Criminal Court has this to say about him:-
"Having said that it is but a fact that PW-4 was an interested witness and his testimony more or less reflects a parrot like version."
The drawback which a departmental witness suffers in a criminal court does not exist in the departmental Proceedings.
12. Coming to the departmental inquiry, the record discloses that the IO submitted a report which runs into 72 closely typed pages. He took into account, not only the evidence that had a direct bearing on the episode but also the transcripts of the conversation that ensued between the applicant and some other person in relation to the charges. It is also important to note that the applicant cross examined Mr. Vishal, PW-1, and he was not able to point out anything to discredit his evidence. The transcripts of conversations were also made part of the inquiry report. A perusal of the same discloses matters of very serious 10 OA No. 2762/2014 nature. We asked learned counsel for the applicant, as to whether, the applicant disputed these transcripts. His answer was a bit equivocal. All the same, there is nothing on record that shows that he has ever disputed the authenticity of the transcripts.
13. The manner in which the IO recorded the findings with reference to each of the charge can be exemplified with the observations with reference to charge No. 01. Some of the excerpts read as under:-
"v. During enquiry Sh. Vishal (PW-I), the crucial witness in the matter has been examined who proved his complaint dated 16.03.2006 (PD-1). He in his deposition stated that the investigation of the CBI case RC 16/E-2005/BS & FC relating to Ram Nagar Cooperative Group Housing Society was entrusted to him in Jan 2005 when he was posted in BS & FC branch, CBI, Yashwant Place, Chanakyapuri, New Delhi. The case was registered on the directions of the Hon'ble High Court of Delhi and involved fraudulent revival of Ram Nagar CGHS Ltd. by accused N. Diwakar and other officials of Registrar of Cooperative Group Housing Societies along with others. During investigation the name of Sh. Vijender Solanki surfaced as one of the suspects/accused person in the above case during Feb. 2006 and accordingly he was summoned by Sh. Vishal during investigation Shri Vijender Solanki was reluctant to join the investigation. In the evening of 13.03.2006 Shri Yogender, Inspector CBI who happens to be batch mate of Shri Vishal called Shri Vishal on his mobile number 9810657135 and told a person close to Inspector N.M. Sherawat was involved in the case being investigated by him and they wanted to meet him. Shri Vishal called them in his Office the next day i.e. on 14.03.2006. Shri Yogender, Inspector CBI again called Shri Vishal on his mobile number 9810657135 about 11.11.30 AM on 14.03.2006 and 11 OA No. 2762/2014 inform him that he and Shri N.M. Sherawat wanted to meet him in Hotel Diplomat to which he refused. After a short while Shri Yogender again called him and asked him to meet Shri N.M. Sherawat in the parking of NDMC Building as he had some problem in coming to BS&FC Branch. Thereafter Shri Yogender came to his office and told him that Shri Vijender Solanki is close associate of Shri N.M. Sherawat and they wanted a favour from him in the undergoing investigation in respect of Shri Vijender Solanki. Thereafter Shri Yoginder requested Shri Vishal to meet Shri N.M. Sherawat who was waiting in his car in the parking. Accordingly Shri Visahl met Shri N.M. Sherawat in the parking. Shri Sherawat enquired about the role of Shri Vijender Solanki from Vishal and asked him to see that Vijender Solanki's name did not figure in the said case and that Shri Solanki might not be called in CBI Office and in case he was to be examine Shri Visahl might examine him on telephone. Shri Vishal during the enquiry further stated that the politely refused the said request of Shri N.M. Sherawat. Thereafter Shri sherawat asked him whether he had any objection if he accompanied the suspect Shri Vijender Solanki to attend the CBI Office in this case. Shri Vishal replied that he had no objection if Shri Sherawat accompanied Shri Solanki. Thereafter Shri Sherawat asked him whether he had any objection if he accompanied the suspect Shri Vijender Solanki to attend the CBI Office in this case. Shri Vishal replied that he had no objection if Shri Sherawat accompanied Shri Solanki. Thereafter Shri Sherawat informed Vishal that he would bring Shri Vijender Solanki in CBI office on 16.03.2006. Inspector Sherawat also offered lunch to Shri Vishal in Hotel Diplomat which he refused. Shri Sherawat further informed Shri Vishal that Shri Yogender would visit his residence in the evening. Shri Yogender visited residence of shri Vishal at about 8 PM on the same day and disclosed to Shri Vishal that many CBI senior officers have been paid by different accused persons involved in CGHS cases including the case investigated by him. Shri Vishal was also offered Rs. 2 lac for side tracing the investigation from Shri Vijender Solanki. Shri Vishal refused to accept the said bribe and asked him that he would decide the case on merit. On this, Shri Yogender asked that the said amount could be enhanced. Shri Yogender further informed that Shri N.M. Sherawat alongwith 12 OA No. 2762/2014 Vijender Solanki would visit his office on 16.03.2006 as 15.03.2006 is holiday on account of Holi. After this incident Shri Vishal decided to report this matter to his SP. On 16.03.2006, Sh. Vishal received a call on his mobile from Shri Yogender at about 8.30 AM to 9 AM that Inspector Sherawat would visit his office alongwith Shri Vijender Solanki at 11 AM. However Inspector Sherawat alongwith Shri Vijender Solanki visited his office on 16.03.2006 at 10.30 AM Shri Vishal asked them to sit in his room and thereafter went to his SP and narrated the entire incident to him. Thereafter this matter was also brought in the knowledge of DIG. Subsequent to this Shri Vishal also submitted a detailed report of the said incident to his SP, CBI, BS & FC N. Delhi. This complaint was exhibited in the enquiry as PD-1. In Examination In- Chief and during his cross examination Shri Vishal further revealed during informal talks Sh. Vijender Solanki confirmed to Sh. Vishal that he paid an amount of Rs.9 lacs to Shri N.M. Sherawat (C.O.) & Shri Yoginder for getting favour in the investigation against him in case RC 16/E-2005/BS & FC but after he came to know that the I.O never sought any favour from him or them, he recovered the paid amount from them. Shri Vishal also stated that the said Sh. Solanki had also visited CBI office and met him in February 2006, with Dr. S.K. Gupta to whom he introduced as his advocate PW-1, Sh. Vishal has also stood by his testimony during his cross examination in the enquiry.
vi. The statement of the Shri Vishal (PW-1) is further corroborated from the fact the Shri Yoginder was known to Shri Vishal and during the relevant period i.e. from 13.03.2006 to 16.03.2006, Shri Yogender made several calls to Shri Vishal on his mobile phone bearing number 9810657135. During enquiry, Sh. Vishal (PW-1) confirmed that he was the user for mobile no. 9810657135 and Sh. Yoginder being the user of mobile nos. 9868030030 and 9811893451. He also identified the calls made between him and Yogender during the period 13.3.2006 to 16.03.2006 by using the above numbers which is reflected in the Call Details Report (CDR) marked as PD-2. The call details of the mobile no. 9810657135 of Shri Vishal clearly reveals that there were following incoming calls transacted between Sh. Vishal and Sh. Yogender;-13 OA No. 2762/2014
a) 13.03.2006 at 19.02.04 incoming call from mobile no. 9868030030 for 177 seconds.
b) 14.03.2006 at 11.55.54 incoming call from mobile no. 9868030030 for 150 seconds.
c) 14.03.2006 at 13.19.45 incoming call from mobile no. 9868030030 for 29 seconds.
d) 14.03.2006 at 13.45.36 incoming call from mobile no. 9868030030 for 156 seconds.
e) 14.03.2006 at 13.52.48 incoming SMS from mobile no. 9868030030.
f) 14.03.2006 at 13.57.41 incoming call from mobile no. 9868030030 for 9 seconds.
g) 14.03.2006 at 17.48.57 incoming call from mobile no. 9868030030 for 38 seconds.
h) 14.03.2006 at 19.09.51 incoming call from mobile no. 9811893451 for 28 seconds.
i) 14.03.2006 at 19.52.47 incoming call from mobile no. 9811893451 for 11 seconds.
j) 14.03.2006 at 20.12.35 incoming call from mobile no. 9868030030 for 36 seconds.
k) 16.03.2006 at 8.43.01 incoming call from mobile no.
9811893451 for 73 seconds.
(vii) Sh. R.K. Singh, Nodal Officer, Airtel (PW-15) during enquiry proved that the customer application form of Mobile number 98106571356 (PD-28) belongs to Shri Vishal S/o Shri Late Baldeo Raj, Sub- inspector CBI (PD-29). He has also proved the CDR of Mobile number 9810657135 of Shri Vishal for the period 1.03.2006 to 30.04.2006 (PD-2). The documents relating to mobile no. 9868030030 (PD- 6, 7 &) and PW-17 Shri R.S. Yadav, JTO, MTNL also proved that this number was in the name of Shri Yoginder.
(viii) It is also in the evidence of Shri Satbir Singh PW- 21, that telephonic calls pertaining to the C.O. were also intercepted and recorded by the Special Unit of CBI, N. Delhi. These recordings (82 calls) were taken over and the transcript of the same was prepared as PD-49.
(ix) It is in the evidence of Shri M.C. Kashyap, Dy. SP, SU, CBI (PW-4) that on receipt of information that Shri N.M. Sherawat and Shri Yoginder Kumar both Inspectors of CBI were talking each other, Dr. S.K. 14 OA No. 2762/2014 Gupta and various I.Os of CBI investigating CGHS Cases & private persons involved in the said scam cases to strike deals to jeopardize public interest and inciting commission of offences for their personal gains and for gain of others, the cell phone numbers and landline numbers used by Inspector N.M. Sehrawat (Charged Officer), Yogender Kumar and Dr. S.K. Gupta were put under interception from first week of March 2006 to May 2006 after taking approval of the competent authority and the conversations were recorded as per the provisions of Indian Telegraph Act. Relevant documents have been exhibited and marked (PD-3), (PD-4) and (PD-5). He also produced certificate given by him to prove the interception and recording of conversations by Special Unit of CBI. Apart from deposing his evidence in the departmental enquiry he also confirmed the contents of his statement recorded on 15.06.2006 and 21.09.2006 by Shri D.S. Rawat, Inspector CBI, ACU-1 in RC AC-1-2006A0001. In his evidence he inter-alia stated that while monitoring various telephones used by Shri N.M. Sherawat, Dr. S.K. Gupta and others, it was found that Shri N.M. Sherawat the C.O. And other aforementioned persons were talking with each others, with other investigating officers of CBI investigating CGHS cases and private persons involved in the said CGHS scam cases to strike deals. After it came in his knowledge that ACU-1 Unit of AC- 1 Branch of CBI has registered a Regular Case, he informed about the monitoring of telephone numbers used by Shri N.M. Sherawat and others and on request of the I.O. Shri Satbir Singh he prepared a recorded call information report giving serial number, call date, call time, call duration, calling partly phone number and called party telephone number (PD-48). This document inter-alia mentions various mobile numbers and landline numbers used by the C.O. Shri N.M. Sherawat and his family members. This document specifically mentions that the C.O. Shri N.M. Sherawat was using three mobile numbers 9810027257, 9871771750 & 9873407171. This recorded Call Information Report along with the conversation recorded on a Compact audio Disc were also prepared on Compact Disc and handed over to the I.O. vide Seizure memo dated 26.04.2006 after observing all legal formalities. The said Compact Disc contained 82 voice calls of the above named persons. The PW-4 Shri M.C. Kashyap also supplied a copy of a 15 OA No. 2762/2014 Certificate u/s 65-B, Indian Evidence Act marked as PD-5 confirming that the data provided is tamper proof and unaltered.
(x) The Charged Officer Shri N.M. Sherawat has used Mobile number 98100227257 during the relevant period i.e. 1.03.2006 to 30.04.2006 is further corroborated from the Documentary evidence (PD-47) and (PD-18) i.e. Search List through which three Mobile Handsets were recovered along with three SIM Cards. For each Handset one Memorandum was prepared for inventory of IMEI number of the handset seized during search along with SIM Number, Dialled calls, received calls, missed calls and contact numbers was prepared in presence of two independent witnesses. In one such Memorandum prepared on 1.09.2006 (PD-18), it was revealed that one such Mobile Handset (Make-NOKIA, Model N70) recovered along with two more mobile handset from the house search of the C.O. Shri N.M. Sherawat bears a unique International Mobile Equipment Identity Number (IMEI Number) 357927000863616. It has also come in the documentary evidence (PD-27) i.e. Call Details, Record of Mobile Number 9810027257 for the period 1.03.2006 to 30.04.2006, that during the period 1.03.2006 to 30.04.2006, SIM of this Mobile Number 9810027257 was being used in the Mobile Handset bearing IMEI No. 357927000863616 which was recovered from the house search of the C.O. Shri N.M. Sherawat. The SIM card of the said Mobile number inter-alia contained the contact number of many CBI Officials including Shri S.K. Peshin, P. Balachandran and Shri D.S. Mann. Thus it is abundantly established that the Mobile number 9810027257 was being used by the C.O. Shri N.M. Sherawat during 1.03.2006 to 30.04.2006."
14. The conversation between the applicant and one Mr. Yoginder Kumar, another CBI Inspector which took place on 13.02.2006 proceeded on the following lines:-
YK है लो N ह ां YOGINDER YK ह ां जी सर मैं गय थ उसके घर होत हुआ आय हां 16 OA No. 2762/2014 N जी
YK तो मतलब वो तो वह ीँ पर कह ां लग हुआ है फील्ड वील्ड में N ह ां YK तो मेर उसके फोन पर मैंने ब त कर वह ां से N जी YK तो मैंने उसे ऐसे reference दिए कक भई अपने एक है स ब उनके ककसी क वो आ गय है तेरे प स तोरे को िे खन वो कहत है कफर मैंने उसको यह भी कह दिय कक कुछ serious मसल है तो कल मैं तेरे प स आउां ग तो कल चल पड़ते है लांच में उसके प स तो जो भी ब त है कर लेते है N ब हर ब त करनी पड़ेगी योगगांिर YK ब हर ह करें गे सर आप गचांत क्यों कर रहे है office में कौन ज रह है N उसको कोई ड उट तो नह ां हुआ न YK नह ां जी बबल्कुल नह ां मैंने उनको बोल कक भई वो स हब क relative है तो बस तेरे को जैसे भी है िे खन है N लड़क ठीक है न वो YK लड़क ठीक है सर N हैं | ववश्व स क है वो YK ह ां सर बबल्कुल ववश्व स क है N कोई दिक्कत नह ां है अब YK कोई दिक्कत नह ां है सर N चल ठीक है लांच में बल ु ले उसको YK वह ीँ से ब हर उसको उसमें ममल लेंगे N कह ां पर YK वह ां S.K. Chanakaya में N उसको पांड र रोड पर बल ु ले YK चलो ठीक है कफर मैं कल पहुचते हैं office तो आ ह रहे हो आज कफर N ह ां ह ां YK तो कफर आप जैस कहोगे वैस कर लेंगे N ह ां पांड र रोड वगैरह में Chanakay के आस प स कोई-CBI व ल नह ां होन च दहए यर YK ठीक है सर N Unnecessarily है न ब ते आिमी 011try to understand YK ठीक है सर N है लो N Agreeable है न वो बांि YK ह ां बबल्कुल बबल्कुल N ठीक है Agree होन च दहए ब की तो कोई ब त नह ां YK मतलब अभी मैंने वो ब त तो नह ां कर है मगर कर लग ां मैं उससे N ह ां ह ां ककसी में कुछ मैम्बर बन मलए हो तो वो ककसमलए य र और वो Actually sign कर दिए न वो तो वो ह ब त करें गे बहनचोि | Sign व ल लफड होत है न 17 OA No. 2762/2014 YK अच्छ अच्छ N ठीक है है लो ठीक है सर N कफर कल ब त करत हां मै | कल जल्ि आ ज न office में YK बबल्कुल सर N OK
15. A similar transcript of conversation between the applicant and one Mr. Girish Bharadwaj, Inspector CBI, which run into about 07 pages was extracted in the report. A perusal of the same discloses that the applicant was deeply involved in trying to bribe Mr. Vishal in the process of helping one of his friends. The applicant did not dispute the authenticity of any of the transcripts. The modus operandi of the applicant is also evident from the observations of the IO, which reads as under:-
"(XV) The fact that the C.O. was using different mobile numbers obtained on different identities for carryingout his aforementioned nefarious activities reveal his guilty intentions in a bid to escape from any liability even if his said phones were tapped by the Special Unit of CBI."
16. Similar discussion was undertaken with reference to charge No. 02 and 03. With reference to charge No. 03, one, Mr. R. K. Jain was examined as PW-3 and the various transcripts with reference to that charge were made part of the record. The applicant did not elicit anything from Mr. R. K. Jain or from another person to doubt the authenticity 18 OA No. 2762/2014 of the transcript. It is also necessary to mention that one Mr. M. C. Kashyap, DSP, CBI was examined as PW-4. The gist of his evidence is contained in page-27 of the report of the IO. It reads as under:-
"It is in the evidence of Shri M.C. Kashyap, Dy. SP, SU, CBI (PW-4) that on receipt of information that Shri N.M. Sherawat and Shri Yoginder Kumar both inspectors of CBI were talking each other, Dr. S.K. Gupta and various I.Os of CBI investigating CGHS Cases & private persons involved in the said scam cases to strike deals of jeopardize public interest and inciting commission of offences for their personal gains and for gain of others, the cell phone numbers and landline numbers used by Inspector N.M. Sherawat (Charged Officer), Yoginder Kumar and Dr. S.K. Gupta were put under interception from first week of March 2006 to May 2006 after taking approval of the competent authority and the conversations were recorded as per the provisions of Indian Telegraph Act. Relevant documents have been exhibited and marked (PD-3), (PD-4) and (PD-5). He also produced certificate given by him to prove the interception and recording of conversation by Special Unit of CBI. Apart from deposing his evidence in the departmental enquiry he also confirmed the contents of his statement recorded on 15.06.2006 and 21.09.2006 by Shri D.S. Rawat, Inspector CBI, ACU-1 in RC ACU-1 in RC AC-1-2006A0001. In his evidence he inter-alia stated that while monitoring various telephones used by Shri N.M. Sherawat, Dr. S.K. Gupta and others, it was found that Shri N.M. Sherawat the C.O. and other aforementioned persons were talking with each others, with other Investigating Officers of CBI investigating CGHS cases and private persons involved in the said CGHS scam cases to strike deals. After it came in his knowledge that ACU-1 Unit of AC-1 Branch of CBI has registered a Regular Case, he informed about the monitoring of telephone numbers used by Shri N.M. Sherawat and others and on request of the I.O. Shri Satbir Singh he prepared a recorded call information report giving serial number, call date, call time, call duration, calling party phone number and called party telephone number (PD-
48). This document inter-alia mentions various mobile numbers and landline numbers used by the C.O. Shri N.M. Sherawat and his family members.19 OA No. 2762/2014
This document specifically mentions that the C.O. Shri N.M. Sherawat was using three mobile numbers 9810027257, 9871771750 and 97873407171. This recorded Call Information Report along with the conversation recorded on a Compact audio Disc were also prepared on one Compact Disc and handed over to the I.O. vide Seizure memo dated 26.04.2006 after observing all legal formalities. The said Compact Disc contained 82 voice calls of the above named persons. The PW-4 Shri M.C. Kashyap also supplied a copy of a Certificate u/s 65-B, Indian Evidence Act marked as PD-5 confirming that the data provided is tamper proof and unaltered."
17. Nearly a dozen conversations which were recorded by CBI in accordance with the Provisions of Indian Telegraph Act, 1885 were made part of the record. It must be set to the fate of the IO that he not only meticulously followed the procedure but also made every effort to ensure that each finding recorded by him is supported by evidence. Charges No. 03 and 04 are also 'Proved' in similar fashion. We are not referring to them in detail lest the size of the judgment becomes duly large.
18. The judicial review in context of departmental proceedings has its own limitations. The Tribunals/Courts cannot sit as an Appellate Authority (AA). The interference can only be when the proceedings are carried out by an officer not vested with the power or when the findings of the IO are on the basis of no evidence. The scrutiny shall be more of the decision making process than of the decision itself. If one examines the instant case on that 20 OA No. 2762/2014 touchstone, the result would be that there is not even an allegation that either the DA or IO is not competent under the law. The evidence is in fact much more than what is needed. The mere reference to the findings in the criminal case cannot cloud the departmental proceedings. The Charges against the applicant are very serious in nature and they were held 'proved' in departmental proceedings in accordance with law.
19. In State Bank of Bikaner & Jaipur vs. Nemi Chand Nalwaya (2011) 4 SCC 584, the Hon'ble Supreme Court held as under:-
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416)."21 OA No. 2762/2014
20. We do not find any merit in the OA and the same is, accordingly, dismissed. There shall be no order as to costs.
(Mohd. Jamshed) (Justice L. Narasimha Reddy)
Member (A) Chairman
/ankit/