Central Administrative Tribunal - Delhi
Shri H.C. Pant vs Union Of India on 23 December, 2011
Central Administrative Tribunal Principal Bench OA No.2397/2009 MA No.1612/2009 New Delhi, this the 23rd day of December, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri H.C. Pant, S/o Late Shri B.D. Pant, Flat No.8, Plot No.8, I.P. Externsion, Patparganj, Delhi-110 092 (Ex. Staff Officer, Ordnance Factories Cell), Ministry of Defence, G Block, New Delhi-110011. . Applicant (By Advocate : Shri A.K. Behera) Versus Union of India, Through Secretary, Department of Defence Production, Ministry of Defence, South Block, New Delhi-110011. Respondent (By Advocate : Shri V.S.R. Krishna) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
MA No.1612/2009 The applicant has moved the MA seeking condonation of delay and has advanced the ground that he has been attending his aged and ailing mother. He has enclosed copy of relevant medical documents in support of his claim. For the reasons given in the MA, the delay in approaching the Tribunal against the order of Disciplinary and Revisionary Authorities dated 13.6.2006 and 3.5.2007 respectively is condoned and MA is allowed.
OA No.2397/20092. Shri H.C. Pant, who belonged to DGOF Head Quarters Civil Service and posted as Officer on Special Duty (OSD) to Minister of State for Defence Production in the year 2000-2001 was issued a charge sheet dated 10.12.2001 (Annexure-P-III) with the allegation that he accepted illegal gratification of `2 0000/- as consideration for guiding the representatives of West End International in their aim to clinch/swing the deal for the supply of Thermal Imaging Cameras/Binoculars in their favour; he committed the alleged offence of misusing his proximity to the Defence officials by offering to fix up meetings of Defence officials with the representatives of West End International; he committed alleged offence of Promoting/abetting illegal gratification of defence officials; committed the alleged misconduct of communicating vital information related to Defence to unauthorized persons and committed gross misconduct of using improper and intemperate language in his unauthorized conversation with representatives of Tehlka.com. The said Charge Memo was based on the wide spread media reports in March 2001 that Tehlka.com conducted a sting operation claiming therein that Defence & Army officials and politicians connected with the strategic area of defence were corrupt and alleged that Tehlka.com bribed most of the officers its representatives met during the sting operation. The Tehelka.com released the investigation details under caption Operation West End A story how the suitcase people are comprising Indian Defence. Tehlka.com video audio recordings done in the sting operation on 13.3.2001 captured the above alleged misconducts which were exhibited in Zee Television Channels in March 2001. On 13.3.2001, the applicant was called on to explain about his role in the alleged misconducts which he denied. He was suspended on 14.3.2001. One man Committee (R.P. Bagai, Joint Secretary) recorded the statements of Shri Mathew Samuel and Shri Anirudha Bahal and recommended departmental action against the applicant. In the meantime Government of India appointed a Commission of Inquiry headed by Justice Venkataswamy. Subsequently, on the resignation of Justice Venkataswamy, Justice S.N. Phukan was appointed. It is the case of the applicant that during the proceedings of the said Commission, sting operation tapes supposedly on the basis of which the manuscript had been published in Tehlka.com had been alleged to have been doctored/manipulated to give the same a sensational story. Several affidavits were filed by top officials of Government of India in their individual capacity questioning the veracity and authenticity of the sting operation and the associated video-audio tapes. On 08.10.2001, the Government of India officially filed an affidavit before the Commission requesting it get the veracity/authenticity of the alleged tapes verified from the competent and reliable sources before proceeding further. The Commissioner took cognizance of the same and put it for hearing but did not get the genuineness verified. However, the applicant was issued a Memorandum of Charges dated 10.12.2001 based on the manuscript published in Tehlka.com even though the veracity and authenticity of the alleged sting operation tapes had not been examined by the Commission. It is the case of the applicant that no new material regarding the authenticity of the alleged tapes had come to light. The applicants case was that the manuscript was the Document No.1 in the list of documents and he was proceeded in the disciplinary proceedings on the basis of the said document. The Inquiry Officer (IO) in his report dated 06.10.2005 (Annexure-PIV) held the applicant guilty of all five charges. The applicant was given an opportunity to make a representation, which he filed dated 06.01.2006 and one more representation dated 15.4.2006 against the advice of the CVC. The Disciplinary Authority passed the penalty order dated 13.6.2006 (Annexure-PI) dismissing the applicant from service. Feeling aggrieved, the applicant filed a detailed petition dated 27.07.2006 against the aforesaid order which was rejected by order dated 03.5.2007 (Annexure-PVIII). It is further the case of the applicant that in the said review order though some of the points urged by the applicant were considered to give it a look of a reasoned order, the basic issues like the authenticity of the alleged tapes, denial of documents to the applicant to disprove the credibility of Shri Mathew Samuel, the person who had allegedly conducted the sting operation, denial of defence witnesses who could have deposed questioning the creditability of Shri Mathew Samuel, etc. raised by the applicant was not even considered. On the other hand the entire review order was passed on the assumption that the applicant had accepted the genuineness of the alleged manuscript without challenging the same. Thus, being aggrieved by the orders of Disciplinary and Appellate Authorities and assailing the orders dated 13.6.2006 and 03.05.2007, he is before the Tribunal in the instant OA.
3. Shri A.K. Behera, learned counsel for the applicant presented the background of the case and placed following contentions in support of the applicant. (i) Denial of Principles of Natural Justice to the applicant in proving his innocence has prejudiced him. The applicant from the very beginning disputed the authenticity of the alleged sting operation and the credibility of the sting operator Shri Mathew Samuel. With regard to the authenticity of the alleged sting operation, the applicant during the enquiry and in his representation against IOs Report specifically raised this point. He cited the instance in applicants representation against IOs Report which was as follows:-
The management document M-1 was a copy of Tehlka.com and being an electronic record needs to be authenticated by means of electronic method or procedure in accordance with the provisions of Section 3 of Information Technology Act, 2000. This has not been done in the case of Management document-1 (M-1) to certify the originality of the document. The undersigned raised objections to the IA regarding veracity of the document M-1. During their deposition, the witnesses accepted that they have added/edited the text in the manuscript to give it a storyline. At no point of time did the applicant accept the contents of the manuscript published in Tehlka.com as true and genuine. Had that been so, no departmental enquiry would have been necessitated to hold the applicant guilty. In respect of applicant accepting `20,000.00 as illegal gratification, Shri Behera submits that the applicant raised the following in his representation:-
7. A bare perusal of tapes and transcripts clearly show that there is complete breakdown of conversation between tehlka and the undersigned. Tehlka was operating unilaterally on its own uttering the words Twenty thousand wherein the undersigned continued saying nahin who to maine kaha than a , presentation karenge uske liye then we will go for it again the undersigned said nahin .nahin . I will prepare the brief on the basis you discuss when them then Tehlkas saying okay. Viewing the context, there was no occasion to say twenty thousand. Tehlka chopped a sentence right in the middle changing the meaning of what the undersigned was saying to enable it to create an impression in the minds of the people that the undersigned accepted the bribe. There is nothing to show about any offer or acceptance of money. The unilateral utterances of some words by Tehlka are not reciprocated or replied by the undersigned. Shri Behera contends that there are similar other grounds raised by the applicant disputing the authenticity of the manuscript and the sting operation tapes, but neither the disciplinary authority nor the review/revisional authority has considered the same. He drew our attention to submit that even before the Justice Phukan Commission the issue of genuineness of the tape was raised by the Union of India. The same issue raised by the applicant during the enquiry, should have been examined by the Inquiry Officer, the Disciplinary Authority and the Review/Revisional Authority. The authenticity of microchip and magnetic tapes should have been sent to forensic test. Shri Behera would submit that as per the judicial pronouncements relating to sting operation, an authentic and genuine sting operation should fulfill the 3 conditions viz (1) the unedited original micro chip and magnetic tapes must be produced and forensically tested to prove voice of the persons, authenticity of images and continuity of conversation; (2) there must be more than one record, concurrent in nature, in writing about the various stages of the sting operation; and (3) the credibility of the sting operator must be above board. The sting operator must not have been influenced by commercial consideration or TR considerations. In the instant case none of the above conditions was fulfilled. He contended that the concerned authorities did not apply their mind to the same inspite of the objection raised on the authenticity of the tapes. Thus, the penalty order based on an alleged tape/manuscript with doubts on genuineness and authenticity amounts to clear violation of the principles of natural justice. (ii) The applicant had very specifically asked for 11 identifiable documents to impeach the credibility of Shri Mathew Samuel under heading Gamma to show that Mathew Samuel is a habitual liar, has no journalistic credibility and had been an absconder. All the said documents were affidavits, examination and cross examination before Justice Phukan Commission and details given in various news reports. All the said documents would have clearly demonstrated that Mathew Samuel was not a reliable witness at all. However, all these documents were denied to the applicant by the Inquiry Officer. Had those documents been provided, the applicant would have confronted Shri Mathew Samuel with the same at the time of cross-examination which would have discredited his credibility. It may be noted that the copy of Management document No.1 was procured by the IO from Justice Phukan Commission only. But when documents from the same Commission was required to impeach the credibility of the key witness who already stood discredited before the Commission, the same was denied. Two different yardsticks for summoning documents from the Commission, one for the Union of India and the other for the applicant, amounts to violation of the principles of natural justice. Further, two defence witnesses cited to impeach the credibility of Shri Mathew Samuel were not permitted by the IO. (iii)The next contention raised by Shri Behera relates to the perverse reasoning given by the Reviewing/Revisional Authority which is unsustainable in law, as the Disciplinary Authoritys order dated 13.6.20006 is unreasoned and has not considered any of the points raised in the representation against IOs Report and the order of the Reviewing/Revisional Authority proceeds on the presumption that the applicant has accepted the Tehlka manuscript as correct. (iv) The case of the Disciplinary Proceedings against the applicant was not referred to UPSC as required under the proviso to Rule 15(4) of the CCS (CCA) Rules, 1965 read with Article 320(3)(d) of the Constitution. The proviso to Rule 15(4) of the CCS (CCA) Rues, 1965 enjoins upon the respondents to seek the advice of the UPSC and after giving an opportunity to the applicant to represent thereon to consider the same before proceeding to pass the final order. When this provision is read with Article 320 (3) (d) of the Constitution of India it would be clear that in respect of all employees serving the Government of India in a civil capacity consultation with the UPSC is required. He refers to the case of Shri Narender Singh, which was referred to UPSC but not in the case of the applicant and the said non-consultation with UPSC violates the statutory and Constitutional provisions. (v) Shri Behera would further submit that the disciplinary proceeding against the applicant as well as Shri Narender Singh was based on the same alleged sting operation. The charges against Shri Narender Singh as well as the applicant are materially the same. Probably the only additional charge against the applicant was use of one inappropriate word (as contained in the charge sheet is saala) during the course of alleged sting operation. That charge would not make any material difference to the gravity of the charges. However, while on consultation with UPSC and on the advice of the UPSC the penalty of Compulsory retirement was imposed upon Shri Narender Singh whereas the penalty of dismissal from service was inflicted on the applicant without consulting the UPSC thereby washing out more than 35 years of pensionable Civil Service of the applicant. He terms the same in the facts of the case, as discriminatory and arbitrary. Considering the above contentions, Shri Behera would urge that the OA should be allowed.
4. On receipt of notice from the Tribunal, the respondents have entered appearance through Shri V.S.R. Krishna, learned Central Government counsel and filed the reply affidavit on 12.01.2010.
5. Controverting the above contentions advanced by the counsel for applicant, Shri Krishna would submit that the present case being a Sting Operation in which the alleged mis-conduct committed by the applicant has been captured in the audio and video tapes, the principal witnesses in the case (Mr. A. Bahal and Mr. Mathew Samuel) had been examined in the inquiry. The evidence gathered in the inquiry had been properly analysed by the Inquiry Officer who concluded holding all five charges as proved. Referring to the contentions of Shri Behera, Shri Krishna contends that there is no violation of principles of natural justice in the present case. The IO has given the relevant documents copies to the applicant and has not allowed irrelevant documents sought for by the applicant. He contends that in the present case there is enough corroborative evidence which has emerged during the inquiry from the statements and the documents like the transcript which have been properly authenticated. He refers to the evidence to submit that there is no refutal by the applicant about the receipt of `20,000/-. It is not necessary that all the three components in a trap case namely, demand, receipt and recovery of cash should be there in a matter like the instant case where the applicant received `20,000/-. Shri Krishna submits that non production of original tapes before the Inquiry Officer would not in any manner vitiate the disciplinary proceedings against the applicant, as there is enough evidence in support of both the charges against the applicant in the form of statements, transcripts and the evidence adduced by the witnesses to support the same. He submits that the Secretary/Registrar of Justice K. Venkataswamy Commission has authenticated the correct version of the transcription which has been accepted by the Inquiry Officer. The charges based on the transcript of the recorded conversation of the petitioner with the representative of West End International and in the inquiry, the same was taken as Management Document-01 . During inquiry, he had viewed the tapes along with the Presenting Officer. It is further contended that the authenticated transcript had been accepted by the delinquent after his verification of audio/video tapes. With reference to the non consultation of UPSC by the Disciplinary Authority, Shri Krishna submits that as per the CCS (CCA) Rules, the Disciplinary cases of Defence Civilians are not required to be sent to the UPSC for advice before deciding the case. He, therefore, urges that the OA is liable to be dismissed as has been decided by the Tribunal in Shri Narender Singhs case (supra).
6. Having heard the above contentions of the rival parties, with the assistance of their counsels, we perused the pleadings. Two issues come up for our consideration and determination. (i) Is this a case of violation of principles of natural justice? (ii) Is the impugned penalty order legally sustainable? These issues are interlinked. All other issues being ancillary to the above principal issues, we will simultaneously deal with those during our analysis on those two controversies.
7. At this stage, we may refer to the settled position in law on the role of this Tribunal in the matters of disciplinary proceedings. It is trite law that this Tribunal can examine the evidence to find out whether there is any evidence against the applicant in the case. Compared to the level of evidence in criminal proceedings, the level of evidence in the departmental disciplinary case is not so full proof and beyond doubt. The probability of preponderance is applicable in the disciplinary cases including the present one. We note our power is limited in respect of appreciation or re-appreciation of evidence gathered during the inquiry. We may refer to the judgments of Honourable Supreme Court of India in the matters relating to framing of charges, conducting of the Inquiry, and orders of the Disciplinary, Appellate and reviewing Authorities and identify the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The guiding principles emerging from these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we also kept in our mind while deciding the issues in the present OA, are the following: (i) Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which the decision is taken. (ii) The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards. (iii) The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
8. We may now advert to both the controversies. Has this disciplinary case been vitiated by the violation of principles of natural justice and whether the penalty of dismissal from service imposed on the applicant is legally sustainable? Let us examine what charges were framed against the applicant? Five articles of charges have been framed against the applicant vide Memorandum dated 10.12.2001. The Statement of Imputation of these five articles read as follows:-
ARTICLE I & II In his conversation with the aforesaid from Shri H.C. Pant advised its (firms) representatives to go about the work through the DG Infantry channel as DG Infantry basically recommends the proposal to MGO or DGOS who in turn gives it to Major General P.S.K. Choudhary, Addl. DG (W&E). He also guaranteed to fix an appointment of representatives of Tehelka.Com with Lt. General Shankar Prasad. Further he informed the firms representatives that once the DG Infantry recommends the case of DGOS, he would talk to meet Colonel Pandey in the office of DGOS. Not only that, he promised to speak to Major General Choudhary for facilitating the progress of the defence deal with the aforesaid firm named Westend International. By the above acts Shri H.C. Pant had communicated vital information on defence matters to the unauthorized persons i.e. representatives of the aforesaid firm & showed utter lack of integrity, devotion to duty & conduct unbecoming of a Govt. servant.
ARTICLE III It is alleged that Shri H.C. Pant advised the representatives of West End International on the kind of gifts that were to be given to the Major General P.S.K. Choudhary, Addl. DG (W&E) and Lt. General Shankar Prasad, DG, Infantry. He recommended the firms representative to present gold chains approximately costing Rs.9 1-, 000/- a piece to the aforesaid Major Generals. By this act Shri H.C. Pant had committed the offence of abetting in illegal gratification allegedly of other Sr. Defence officers.
ARTICLE IV It is alleged that Shri H.C. Pant took a sum of Rs.20,000/- as bribe during his first encounter with the Tehelka.Com team as consideration for parting with relevant information relating to procurement procedure in respect of defence equipments/stores as well as for fixing up meetings with defence officials. By this act, Shri H.C. Pant has allegedly committed the offence of accepting illegal gratification for himself & derived personal benefits.
ARTICLE V In the transcript of the recorded conversation with West End International Shri H.C. Pant is quoted to have used improper & intemperate language against Major General P.S.K. Choudhary. To be more specific, while referring to Major General Choudhary he had gone on record to have threatened the former with the statement Saala I will have you locked up. The use of the aforesaid language in a loose manner is not in keeping with his status as a govt. officer.
9. The Inquiry Officer, having conducted comprehensive inquiry, submitted her report to the Disciplinary Authority on 10.10.2005. The Summary and Findings of the same are reproduced below:-
IV Summary & Findings 4.1 The case relates to the infamous revelations made in the website Tehelka.Com through a sting operation, against the Ministry of Defence. Shri Mathew Samuel posed as the Chief Representative of a fictitious firm M/s Westend International and developed contacts in the Ministryof Defence through his acquaintance Shri Sasl who worked as an Assistant in the MOD. The charges in this case against Shri HC Pant, the CO relate to misuse of his official position, abetting and accepting illegal gratification for consideration.
4.2 The defence of the CO is mainly based on the issue that the charges are vague and not specific. The Tehelka.Com has carried out sting operation only to sensationalise the sensitive issue of defence procurement and gain publicity. The credentials of Shri Mathew are doubtful. The tapes have been edited and distorted with motives and mischievous intent to defame the CO and thus the charges are not proved. Objections were rasied by the CO in the Inquiry for admitting the document M-1 though in the Preliminary Hearing the CO has accepted that he does not need to inspect the M1 with original and is satisfied with it. However, subsequently he raised objections on the veracity of the document M-1. Since the M-1 was a copy of transcript down loaded from the website of Tehelka.com and no personnel of Ministry of Defence was willing to certify the originality of document, the IA had no choice but call for relevant extracts of the transcripts as certified by the Phukan Commission and procure and a copy of the tape to view and authenticate the contends of M1. Initially CO did not cooperate in the process and tapes were viewed by IA and PO with CO not participating. However, subsequently he viewed the tape alongwith the PO and marked the deviations of the audio/visual evidence on the transcript. Thus after tallying the tape as obtained by the Disciplinary Authority from the Phukan Committee, the M1 was accepted as the authenticated and verified evidence. CO had no objection to admitting M2, M3. However, it was agreed that M4 and M5 can be taken on record if the witness deposed before the Inquiry. Thus, the Inquiring Authority called Shri Aniruddha Bahal and Shri Mathew Samuel as Court Witnesses in this Inquiry as the Disciplinary Authority had not listed them as witnesses. Thus, the COs contention with respect to veracity of the documents were satisfied and all management documents accepted as valid documents.
4.3 As regards the credibility of the witnesses it is observed that the witnesses Shri Mathew Samuel and Shri Anirudh Bahal had at no prior dealing with the CO and there is no reason to suspect any malicious intent on their part against the CO. During their deposition they were frank and candid and accepted that they have added/edited the text in the manuscript to give it a story-line. It is also observed that they have stated the designation of the CO and other officials to much higher level and played with words for sensationalisation of the story. However, this does not in anyway imply that the basic conversation and oral and documentary evidence has been manipulated/doctored. The facts of the conversation have been verified by the two Court Witnesses.
4.4. One of the argument of the CO is that the information he passed on to Shri Mathew Samuel was available in public domain. It is observed that the information on the hierarchy of official of Ministry of Defence and as to who would deal and clear the proposal is not an information on pubic domain. It is a specific information known to only the dealing officers/personnel/staff of the Ministry of Defence and hence is not authorized to be told any representative. The COs arguments in this regard are not accepted. The Annual Reports and the replied to the Parliament Question give only general information and no information with respect to dealing official etc. The general examination of the CO also revealed that the entertained Shri Mathew Samuel though he had no specific reason to do so. His job had no linkages to defence procurement, however he, by virtue of working as OSD to MOS for defence and Coordination work of OF Cell, he was in touch with Shri P. Sasi and Senior Officers of Ministry of Defence. The defence documents cited by CO at least would give some idea about the procurements made by the MOD.
4.5 Keeping in view the above each of the charges have been assessed on the basis of oral and documentary evidence and taking into account the POs brief and COs contentions. The findings on each of the articles of charges are as follows :-
Article-I : Proved.
Article-II : Proved.
Article-III : Proved.
Article-IV : Proved.
Article-V : Proved.
10. Further, during the hearing the relevance or otherwise of the judgment of Full Bench of this Tribunal in OA No.2546/2006 and associated other OAs relating to the sting operation by India Today popularly known as Ghoos Mahal Case was sought. Both parties referred to the case in support of their respective contentions. We note that the present case is different from the facts of the case in OA No.2546/2006 (GhoosMahal case). In the present case the disciplinary proceeding followed the prescribed procedure and the applicant was provided appropriate opportunity to defend himself. The Disciplinary Authority followed the extant rules, consulted CVC and UPSC, considered the representations and defence taken by the applicant at each stage and decided the case in imposing the major penalty of compulsory retirement. It is seen that Mr. Mathew Samuel being the sting operator has been examined and cross examined during the inquiry. The applicant terms him as an interested party and the statement made by SW-3 should not be considered. We notice that he is the direct witness to the incident. This Tribunal in the Ghoosmahal Case (OA No.2546/2006 and associated OAs) noted that orders of dismissal were issued without conducting any inquiry and further observed that the Disciplinary Authority should have got the sting operator as the witness. Exactly what were found missing in the GhoosMahal case i.e. proper departmental inquiry, had been attended to in the instant case, not only the proper inquiry had been conducted but the two important witnesses viz the sting operator and Mr. Bahal had been examined in the inquiry. We may refer to the pertinent part of the said judgment to appreciate the difference, which reads as follows:-
.Even though, we are conscious that the provisions contained in Cr.PC are such that a person cannot refuse to be a witness if his evidence may be relevant in a criminal trial, and if he may refuse, he can be prosecuted as well, but the fact that those who carried out the sting operation were cooperating and despite the letter dated 19.4.2005 of the news channel Aaj Tak, had willingly made their statements and supplied the material, ought to have been a factor for consideration by the concerned authorities. Surely, if they were cooperating in criminal trial, there should have been no hesitation on their part to make statement in the departmental enquiry. In the circumstances as mentioned above, there ought to have been some efforts made to persuade the company to spare its employees to depose in the departmental enquiry. We are absolutely sanguine that those very employees of the channel Aaj Tak who had dared to carry out the sting operation of such dimensions and scale as the present one, would have not felt shy of making deposition before the enquiry officer. The authorities, however, even though would take in one case four months and in the other a year and a half to dispense with the enquiry, but never thought in that direction. From the above observations, we are of the opinion that the ratio laid in the referred case does not support applicants case.
11. There was a reference to our judgment in Shri Narender Singhs case (supra). We note that there is lot of similarity in both the cases as the sting operator and witnesses were same. In Shri Narender Singhs case , the amount of bribe was `10,000/-, here it is `20,000/- but similar operation, authenticated transcript and evidence have been gathered during the inquiry. While dismissing the OA on 13.10.2011, we observed as follows :-
20. We may refer to other associated issues like compliance of principles of natural justice and the proportionality angle. In view of the above discussions and conclusion that there is adequate evidence in the case and the inquiry officer has held all charges as fully proved. Acceptance of `20,000/- in lieu of passing on certain official information relating to procurement procedures in respect of defence equipments/stores and fixing of meetings with officials are misconduct of grave nature for which imposition of a major penalty like dismissal from service is proportionate. For the proved misconduct as enshrined in the charges and concluded in the Inquiry Officers report, the applicant has been visited with a punishment of dismissal from service by the Disciplinary Authority. Though, the doctrine of proportionality has not been directly raised but grounds of discrimination has been raised as one of the grounds by the applicant comparing the punishment of compulsory retirement imposed on Shri Narender Singh with his punishment of dismissal from service. We, however, tested the penalty from the proportionality angle. We find that proved misconduct is grave. Receipt of `20,000/- as bribe is corruption which is a serious misconduct. Shri Narender Singh faced two charges whereas the applicant in the instant OA faced five charges. We, therefore, hold that the punishment of dismissal from service imposed by the Disciplinary Authority and upheld by the Reviewing Authority is proportionate to all the proved misconducts more specifically for receiving `20,000/- as bribe in a quid pro quo manner. Therefore, we are of the considered opinion that the penalty imposed on the applicant for the said proved misconducts is proportionate. We also note that Inquiry Officer, Disciplinary Authority and Reviewing Authority have meticulously followed the principles of natural justice by granting adequate opportunities to the applicant to defend himself and providing relevant documents to him. It is also noted that the transcript of Tehelka.com has been appropriately corroborated by the prosecution witnesses i.e. Shri A. Bahal and Shri Mathew Samuel. Hence, the penalty order dated 13.06.2006 passed by the Disciplinary Authority and Review Order dated 03.05.2007 passed by the Reviewing Authority in rejecting the applicants review petition is sustainable in the eyes of law.
21. Having considered the totality of the facts and circumstances of the case, and in view of our discussions within, we are of the considered view that the applicant has not been able to convince us for any interference in the matters. We, therefore, find that the penalty order dated 13.6.2006 and review order dated 03.05.2007 are legally sustainable and procedurally maintainable.
12. We noticed that proper departmental inquiry prescribed under CCS (CCA) Rules was conducted where the sting operator (Shri Mathew Samuel) and the Editor of the Channel (Shri Anirudha Bahal) were examined in the inquiry. Besides their statements recorded before the Fact Finding Committee have been taken into account in the inquiry as prosecution documents respectively. Examination and cross examination of the witnesses in the inquiry have been conducted before the Inquiry Officer.
13. It is appropriate for us to note that the Inquiry Officer in his report has taken up all the charges and considered the same in the background of the Rule 3 and Rule 11 of CCS (CCA) Rules. She flagged three questions to be determined in the inquiry. Those are (i) whether the applicant communicated vital information relating to defence to un-authorised persons? (ii) Did the applicant misuse his proximity to defence officials? (iii) Did he promote/abet illegal gratification of defence officials? (iv) Did the applicant accept the illegal gratification as consideration for guiding the representative of M/s West End? (v) Did he use improper and intemperate language in his unauthorized conversation? It is appropriate to note that the Inquiry Officer has considered the issue of production of original tapes and noted that since the original tapes were in the custody of the Commission, the documents M-I received with the seal of the Commission would be treated as authentic document for the purpose of her inquiry. The applicant did inspect the documents stated in the charge sheet in the presence of the Presenting Officer. Thus, we do not find any reason to disbelieve the MI documents i.e. the transcript authenticated by the said Commission.
14. At this stage, we refer to the issue which came up more often in the hearing whether the principal witness was cross examined by the applicant, more specifically, on the matter of giving the money (`20000) to the applicant and return of the said money by the applicant. There is audio and video evidence about the receipt of `20,000/- by the applicant but there is no whisper about the return of the same amount. With regard to the evidence relating to Shri Mathew Samuel and Anirudha Bahal, the inquiry officer has found that the audio in puts of these precise moments clearly capture Tehelka.com representative telling the applicant about handing over `20,000/- and therefore, did not find from the tape at any point of time that the applicant had refused to take the said money. The assessment that the Inquiry Officer has made from this reads as follows :-
3.1 CO has argued that Tehelka has resorted to cinematic techniques of editing /chopping/ interpretations and have used digital imaginary techniques in fabricating him. He has compared the extract of edited version of transcript with the unedited version of Govt. transcript which is not a record of Inquiry still it is observed there is no different in the two tests except the translation of Hindi to English.
3.2 As stated by Po from the audio visual it is clear that Shri Pant got up from his seat and accepted the money. The following conversation No, No.I will prepare the brief on the basis you discuss with them points to taking the money for consideration. Further, CO has also stated in his General Examination that he received lucrative offer of job from Shri Mathew, which corroborates that he sought favours. There is no reason to accept that Tehalka had any motive to target Shri Pant. They had no previous dealing with him and hence there is no reason for any malice. Both the court witnesses have unequivocally accepted that Shri Pant had taken illegal gratification. Based on the documentary and oral evidence, there is no doubt that he sought and received consideration for his information/help to Shri Mathew Samuel. Charge is held as proved.
15. The inquiry further reveals that Shri Mathew Samuel representing M/s West End International met the applicant at his residence and outside office premises 3-4 times. While holding the Charge-I as proved, the IO made the following assessment :-
3.4 The argument of the CO that there were no official document which were passed is valid, however, it is clear from the documentary and oral evidence as stated by the PO above, that he passed vital information about the personnel involved in the decision making process, the information was passed on to Shri Mathew Samuel during his meeting outside his office 3-4 times and evidence of meeting has been corroborated by Shri Mathew Samuel, Shri Aniruddha Bahal and even Shri Sasi, defence witness who was instrumental in taking Shri Samuel to Shri Pant. However, Shri Sasi denied any knowledge about the discussion on defence deals, taking the plea that he was there only for the part of the meeting and left I between. This plea does not negate any of the earlier mentioned evidence, and Shri Sasi is himself instrumental in introducing Shri Mathew Samuel to Shri Pant, his testimony is contradicted by other evidence. The annual Reports of the Ministry of Defence and Parliament Question taken as defence documents do not reveal the details disclosed by CO to Shri Mathew. Hence, his plea that such information is readily available is not accepted. Hence, the charge is held as proved.
16. In respect of the Article of Charge-II relating to the alleged offence committed by him in misusing his proximity to defence officials by offering to fix meeting with those officials, the IO held the charge as proved in following manner:-
3.3 The case of prosecution is that CO offered to fix meeting hence the argument of the PO are logical. COs arguments that the assertions are vague and he did not fix up any meeting not tenable as he did offer to fix up the meeting with Major General PSK Chaudhary and Lt. General Shankar Prasad, thus tried to misuse his proximity. Accordingly, the charge is held as proved.
17. With regard to the Charge-III, the I.O. held the charge as proved. The relevant part of her assessment reads as follows :-
3.1 The CO has only argued that imputation is vague and it does not specify when and what was the extent of deviation of duty. From whom and when the illegal gratification was accepted and who corroborated the assertions. PO in his argument has referred to the specific discussions and the evidence available on the management document.
3.2 The arguments of the PO are valid. As per M-1 Shri Pant has stated Give him some gift; Gold Chain and something like that, must be around nine thousand. Thus, it is clear that CO has suggested the kinds of gifts to be given to Major General PSK Chaudhary. Charge is held as proved.
18. The IO also analysed the Article of Charge-V and found the same as substantiated. The relevant part is extracted below :-
3.1 CO has argued that he did not use any improper language during communication with Shri Mathew. The case against CO is that during his conversation with Shri Mathew, he used intemperate language against Major General PSK Choudhary which is evident from the transcript and accepted as M-1. Charge is held as proved.
19. We have also extracted within the summary of findings of the Inquiry Officer. Collective reading of the evidence which emerged from prosecution and defence witnesses during the inquiry would disclose that there was evidence in support of the receipt of `20,000/- by the applicant. Besides, there is evidence that he has given certain information and promised to give some more information to the representatives of West End International. All these components of five charges as highlighted by the Inquiry Officer have been held as proved. The evidence in the IOs report is adequate for the Disciplinary Authority to take disciplinary action against the applicant and impose punishment. The principle of preponderance of probability as indicated by the counsel for respondents, would be squarely applicable as there is evidence against the applicant, in the forms of statements of witnesses and documents referred to by the Inquiry Officer in the inquiry. The relevant documents have been provided. The documents sought by the applicant from the Commission were found to be not relevant and rejection of such request does not violate principles of natural justice. We, therefore, are of the considered opinion that there is evidence in the case on which the Disciplinary Authority has correctly imposed the punishment. The contention of the counsel for applicant that this is a case of violation of principles of natural justice is not borne out of the facts.
20. One legal infirmity in inquiry was raised by the counsel for the applicant i.e., the Disciplinary Authority did not consult UPSC before passing the final order. Applicant claimed that had such consultation with UPSC been there, he would have got justice in the case. The respondents are correct in the stand that there is no mandatory provision for the Competent Authority to seek advice of UPSC in case of disciplinary proceedings involving Defence Civilians. Thus, this contention of the Applicants counsel does not stand to reason.
21. We may refer to other associated issue like the proportionality angle. In view of the above discussions and conclusion that there is adequate evidence in the case and the inquiry officer has held all charges as fully proved. Acceptance of `20,000/- in lieu of passing on certain official information relating to procurement procedures in respect of defence equipments/stores and fixing of meetings with officials are misconduct of grave nature for which imposition of a major penalty like dismissal from service is proportionate. For the proved misconduct as enshrined in the charges and concluded in the Inquiry Officers report, the applicant has been visited with a punishment of dismissal from service by the Disciplinary Authority. Though, the doctrine of proportionality has not been directly raised but grounds of discrimination has been raised as one of the grounds by the applicant comparing the punishment of compulsory retirement imposed on Shri Narender Singh with his punishment of dismissal from service. We, however, tested the penalty from the proportionality angle. We find that proved misconduct is grave. Receipt of `20,000/- as bribe is corruption which is a serious misconduct. Shri Narender Singh faced two charges whereas the applicant in the instant OA faced five charges. We, therefore, hold that the punishment of dismissal from service imposed by the Disciplinary Authority and upheld by the Reviewing Authority is proportionate to all the proved misconducts more specifically for receiving `20,000/- as bribe in a quid pro quo manner. Therefore, we are of the considered opinion that the penalty imposed on the applicant for the said proved misconducts is proportionate. We also note that Inquiry Officer, Disciplinary Authority and Reviewing Authority have meticulously followed the principles of natural justice by granting adequate opportunities to the applicant to defend himself and providing relevant documents to him. It is also noted that the transcript of Tehelka.com has been appropriately corroborated by the prosecution witnesses i.e. Shri A. Bahal and Shri Mathew Samuel. Hence, the penalty order dated 13.06.2006 passed by the Disciplinary Authority and Review Order dated 03.05.2007 passed by the Reviewing Authority in rejecting the applicants review petition is sustainable in the eyes of law.
22. Considering the totality of the facts and circumstances of the case, and in view of our discussions within, we are of the considered view that the applicant has not been able to convince us for any interference in the matters. We, therefore, find that the penalty order dated 13.6.2006 and review order dated 03.05.2007 are legally sustainable and procedurally maintainable.
23. In the result, the Original Application being devoid of merits is dismissed leaving the parties to bear their respective costs.
( Dr. Ramesh Chandra Panda ) ( V.K.Bali )
Member(A) Chairma
/rk/