Central Administrative Tribunal - Delhi
A.K. Saxena vs Union Of India Through on 1 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.952/2012 Order Reserved on 19.08.2013 Order Pronounced on 01.10.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) A.K. Saxena S/o Sh. K.C. Saxena R/o A-597, Sector-19, Noida. -Applicant (By Advocate: Shri Ankur Chhibber) Versus 1. Union of India Through Secretary Ministry of Finance, North Block, New Delhi-110001. 2. Chief Commissioner of Central Excise, Delhi Zone, C.R. Building, I.P. Estate, New Delhi. 3. Commissioner, Service Tax Office, 17-B, I.A.E. Bhawan, Mahatama Gandhi Marg, New Delhi. -Respondents (By Advocate: Shri Rajeev Kumar) O R D E R Honble Mr. Sudhir Kumar, Member (A):
The applicant of this OA is before us, aggrieved by the order dated 24.10.2011 (Annexure P/1) passed by the Appellate Authority rejecting his appeal under the relevant provisions of the CCS (CCA) Rules, 1965, alleging that he had contravened the provisions of CCS (Conduct) Rules, 1964. He is further aggrieved that the order dated 13/14.12.2010, by which the Commissioner, Service Tax Office had through Annexure P-2 as the Disciplinary Authority ordered for reduction of his pay, which has since been confirmed by the Chief Commissioner/Appellate Authoritys order at Annexure P-1, dated 24.10.2011, rejecting his appeal. He was informed that a Review Petition lies within a period of six months with the President of India against the order of the Appellate Authority at Annexure P-1, but rather than filing the review, the applicant chose to approach this Tribunal on 20.03.2012 by filing this OA.
2. The facts of the case have been discussed in detail both by the Disciplinary Authority in his order dated 13/14.12.2010 enclosed as Annexure P-2, and by the Appellate Authority at Annexure P-1. But we choose to borrow the description of the facts as given by the applicant himself, in the List of Dates and Events, as follows:-
Applicant was posted as Inspector, Central Excise in Range-X of Division-2, Faridabad in 2002-03.
M/s Anu Exports and M/s Amico international vide their letters requested to Superintendent, Central Excise, Division-II, Faridabad for issuance of Feasibility report for permission of factory stuffing.
Applicant on the instruction of the Superintendent was directed to submit the feasibility report regarding the below-mentioned firms.
a) M/s Anu Exports, plot no.124, sector-24, Faridabad. The report was given by the applicant vide the letter dated 19.12.2002.
b) M/s Amico International, Plot no.124, Sector-24, Faridabad. The report was given by the applicant vide letter dated 19.12.2002.
c) M/s Div-Dig Creations Plot no.129, sector-24, Faridabad. The report was given by the applicant vide letter dated 03.01.2003.
Applicant in discharge of his duty submitted a feasibility report in respect of the movement of containers and stuffing and sealing thereof. Feasibility reports were with reference to the feasibility of movement of containers and stuffing and sealing thereof in the said premises. The said reports were recommended by the then Superintendent and were granted permission for factory stuffing at the abovementioned plots vide letter dated 20.08.02 & 19.12.02. An investigation was held by the DRI on the basis of a frivolous complaint after few years. In the said inquiry the DRI after investigation booked a case against five firms namely:
I. M/s Dig-Dig Creations II. M/s Anu Exports III M/s Amico International IV M/s Zebra Inc V M/s Prayas Enterprises For exporting over-invoiced and sub-standard/cheap quality readymade garments through fictitious firms with the sole purpose of fraudulently availing drawbacks. Wherein a total of 24 consignments were exported under 24 different shipping bills declaring total F.O.B. value of Rs.9,65,42,371/- against which total drawback of Rs.1,04,62,396/- was availed. The declared value of readymade garments ranged from Rs.343/- to Rs.472/- per piece whereas the marked value thereof varied between Rs.8 to Rs.40/- per piece. The drawback availed on the same was between Rs.40/- to Rs.50/- per piece approximately. That just because the applicant was the Central Excise Inspector during the period 2002-03 and had submitted some feasibility reports regarding the abovenoted firms at serial no.I to III therefore the DRI arbitrarily and in the most mechanical manner had alleged the Applicant to have colluded/connived with the fraudulent exporters and alleged to have defrauded the exchequer to the tune of Rs.1.04 Crore by giving false report confirming existence of garment manufacturing facility at the given factory addresses of the firms mentioned at serial No.I to III. Above and certified the feasibility of factory stuffing of sub-standard export goods and malafidely had alleged that the applicant had taken on record prime quality garments purchased from the local market by the exporters and sent the same as representative samples to the customs officers at ICD, Ballabhgarh and attempted to destroy evidence relating to the alleged fraud.
On the basis of the above stated allegations the applicant was issued a Memorandum under Rule 14 of CCS (CCA) Rules 1965, by the Additional Commissioner (P&V), Central Excise, Delhi-I that Sh. A.K. Saxena while functioning as Inspector, Central Excise, Range-X, Division-II, Faridabad, during the period 2002-03 failed to maintain absolute integrity and discharge his duty with devotion and diligence and acted in a manner unbecoming of a Govt. Servant and did not act in his best judgment. In Annexure I of the Memorandum under Rule 14 of CCS (CCA) Rules 1965 issued to Sh. A.K. Saxena, Inspector the following Articles of charge were framed:-
Artilce-I: that he submitted a false report confirming that there was garment manufacturing facility and stuffing feasibility at the premises of M/s Dig Dig Creation.
Article-II: that he also submitted a false report confirming that there was garment manufacturing facility and stuffing feasibility at the premises of M/s Anu Exports & M/s Amico International.
Article-III: that he also supervised the factory stuffing of the export consignments of M/s Zebra Inc. and M/s Prayas Enterprises for which no factory stuffing permission was given by the Customs Authority.
Atricle_IV: That he instead of drawing representative sample from the export consignments of the above mentioned five exporter, took on record prime quality garments purchased from the local market by the exporter and sent the same as samples to the concerned customs office at ICD Ballabgarh to cover and facilitate the fraud.
Article-V: That he was also instrumental in removing the left over cartons of the garments similar to export consignments from the factory premises at Plot No.124, Sector-24, Faridabad and thereby attempted to destroy the evidence, which were subsequently recovered by the area Police of Faridabad.
Article-VI: That he alongwith his Superintendent was being paid Rs.1,30,000/- per container by the exporters as per their statement.
Article-VII: That he while performing his official duty and in the exercise of the powers conferred on him, did not act in his best judgment resulting in undue benefit to the exporter and consequent loss to the Govt. revenue.
The applicant was alleged to have contravened the provisions of Rule 3(1) (i) (ii)& (iii) and Rule 3(2)(ii) of the CCS (Conduct) Rules, 1964. Sh. Madan Mohan, Assistant Commissioner, Central Excise Delhi IV, Commissionerate Faridabad was appointed as Enquiry Officer who conducted the enquiry in the most mechanical manner without applying his mind blindfolded relied upon the report given to him by the Presenting Officer which was a mere reiteration of the charges mentioned in the memorandum. The Presiding Officer relied upon Section 36A of the Central Excise Act, 1944 with regard to the acceptability of the documents as evidence and stated that on the basis of the documents produced, the charges framed against the applicant were proved.
3. The departmental enquiry had been instituted against the applicant through the Memorandum and Articles of Charges dated 04.10.2007 served upon him through Annexure P-6, pages 51 to 62 of the paper book. Through his report dated 05.06.2009, produced by the applicant at pages 64 to 92 of the paper book, sent to the applicant for his comments through Annexure P-7 dated 04.12.2009, the Enquiry Officer had held three out of the 7 charges to be proved, and four charges as not having been proved against the applicant.
4. The applicant submitted his reply/representation to the same on 31.10.2010, denying the charges levelled against him, but he has not filed a copy of the reply along with this OA. Thereafter, the Disciplinary Authority passed the order dated 14.12.2010 (Annexure P-2 pages 32/32-A to 46 of the OA), in which it is seen that the contentions raised by the applicant have been recorded by the Disciplinary Authority in Para-8(i), 8 (ii) of his order (at pages 39 to 43 of the OA). It was further noted by the Disciplinary Authority in the opening sentence of the Para-9 of the said order that the applicant had requested for an opportunity of personal hearing to be given to him, which was also granted. In this personal hearing, he had submitted before the Disciplinary Authority that the department has simultaneously launched departmental proceedings against him, even though the criminal Court has exonerated him from all the charges, holding that no case has been made out against him, as there is no corroborative and collateral evidence against him. He had also filed a copy of the order dated 01.06.2010 passed by the Additional Chief Metropolitan Magistrate, New Delhi, whereby the criminal proceedings against him had been dropped, and he had submitted that as the charges against him have not been proved in the criminal case, the departmental proceedings against him cannot be proceeded on the same set of evidences, and the allegations contained in the Memorandum and Articles of Charges deserve to be quashed.
5. It is seen that the Disciplinary Authority had discussed the facts of the case, and thereafter passed the orders (pages 44 & 45 of the OA) on the basis of the evidence available before him. The Disciplinary Authority had concluded that the applicant had assisted 5 firms who had over invoiced their exports, and had actually exported sub standard/cheap quality of ready made garments in the total of 24 consignments, with the declared Free on Board value of Rs.9,65,42,371/-, involving Duty Drawback benefit to the 5 firms concerned amounting to Rs.1,04,62,396/-, though the firms were operating at fictitious addresses, and did not have garment manufacturing facility and stuffing feasibility at the factory premises, which had been wrongly certified to be true by the applicant in the shipping bills of these five firms concerned.
6. Concurring with the report of the Enquiry Officer, the Disciplinary Authority had held that this act of the applicant had resulted in the concerned firms defrauding the public exchequer by claiming Duty Drawback to the tune of Rs.1.04 crore, because of which he had held that the applicant had failed to maintain absolute integrity, and discharge his duty with devotion, and had contravened the provisions of Rule 3 of the CCS (Conduct) Rules, 1964, and had thereafter imposed a major penalty under Rule-11 (vi) of CCS (CCA) Rules, 1965, upon the applicant, by way of reduction in the pay scale of the applicant to a lower grade with cumulative effect for a period of 5 years w.e.f. 01.01.2011, with which he was to earn his next increment w.e.f. 01.07.2011, after the penalty period had elapsed, and that the reduction of his pay till the expiry of the said period shall postpone his future increments of pay, but this shall, however, do not have any effect on his seniority.
7. The applicant filed an appeal dated 28.01.2011 against this order of the Disciplinary Authority before his Appellate Authority, the Chief Commissioner, Central Excise, Delhi Zone, New Delhi, complaining that the departmental enquiry was conducted without complying with the provisions relating to Rule 14 of CCS (CCA) Rules, 1965, as no witness had been called upon to prove the documents on the basis of the charges that had been levelled against him. However, through the impugned order dated 24.10.2011 (Annexure P-1), the applicants appeal was also rejected, forcing him to approach this Tribunal through this OA. The applicant has, therefore, prayed for the reliefs to quash and set aside the impugned order dated 14.12.2010 (Annexure P-2) passed by the Disciplinary Authority, and the order dated 24.10.2011 (Annexure P-1) passed by the Appellate Authority, and had prayed for the OA to be allowed with cost, and for passing any such orders as this Tribunal may deem fit and proper in the facts and circumstances of the case.
8. In filing this O.A., the applicant had taken the ground that the Disciplinary Authority had failed to appreciate that no witness was produced by the prosecution during the disciplinary enquiry, and that there being no witness, and no document proved by a witness in support of the prosecution of the case, it was a case of no evidence. He had further taken the ground that even though documents had been mentioned in the charge sheet, but the same had not been proved in the enquiry through any witness, and, therefore, the same could not be used against him. He had further submitted that placing reliance on Section 36A of the Central Excise Act, 1944, for proving the documents as admissible evidence, is erroneous, as the provisions of the said Section cannot be made applicable to the proceedings held under Rule 14 of the CCS (CCA) Rules, 1965.
9. He had further taken the ground that the Inquiry Officer himself has noted in the enquiry report that no witness was either mentioned in the charge sheet or produced, and, therefore, the applicant has taken the ground that the facts which have not been proved by any witness cannot be relied upon while passing the impugned order. He had taken the further ground that the Honble Calcutta High Court has in the case of A.R. Mukherji vs. Dy. Chief Medical Engineer (AIR -1961-Cal-40) held that the evidence of witnesses examined at the fact findings stage cannot be relied upon, without producing the witnesses during the formal enquiry, and letting the charged officer to cross examine them. He had taken the further ground that out of the 7 charges, only 3 charges have been held to be proved against him, and those three also were without any basis. He had thereafter gone into the facts regarding those three Articles of Charges, which this Tribunal cannot re-appreciate in its powers of judicial review, and, therefore, the details of the submissions are not being cited here.
10. It was submitted that the Disciplinary Authority has failed to appreciate that the Inquiry Officer has conducted the enquiry without applying the principles of natural justice, and without complying with the procedure prescribed under Rule-14 of the CCS (CCA) Rules, 1965, as no witness was called upon to prove the relied upon documents, which had resulted in denial of adequate opportunity to him to put forward the defence, and that he had incorrectly relied upon the statement of the applicant dated 05.03.2003 given under Section 108 of the Customs Act, 1962, before the Directorate of Revenue Intelligence (DRI, in short) for the purpose of investigation, while it was a settled law that the statement given under Section 108 of the Customs Act, 1962, cannot be relied upon as evidence under the departmental enquiry without the person being subjected to cross examination.
11. He had further raised the ground that the Disciplinary Authority had failed to appreciate that the charge sheet was issued 4 years after the examination of the goods was undertaken by him, and after the adjudication order was passed by the Commissioner, Central Excise, Faridabad, on 25.08.2006, even though it was in respect of the show cause notice dated 18.08.2003, as mentioned in the charge sheet. He had, therefore, submitted that the decision of the Disciplinary Authority in the disciplinary enquiry matter was actually influenced by the adjudication order passed by the Commissioner, Central Excise, and that the Articles of Charges against him were merely framed on the basis of conjectures and surmises, and not based upon the actual facts, as they were never proved and established, and there was no witness in the entirety of the case to depose independently, and it was wrongly taken to have been established that all the relied upon documents were correct. He had also taken the ground that even the DRI officers who had conducted the Preliminary Enquiry into the relied upon documents had not been produced as witnesses, as they were neither cited as witnesses, nor called during the enquiry proceedings, and, therefore, he was not accorded a reasonable opportunity to cross examine them. He had admitted that in the criminal case he had been discharged by the Trial Court on 1.6.2010, but, thereafter, the respondent-authorities had filed an appeal against the said order, and the Honble High Court was pleased to set aside the order of his acquittal. The applicant had submitted that aggrieved by the said order, he had filed an SLP before the Honble Apex Court, which was pleased to grant stay of the orders of the Honble High Court, and was still seized of the matter.
12. The applicant had tried to take shelter and state that the Honble Apex Court has in a catena of judgments held that if an enquiry has been initiated after a prolonged delay, which was a period of four years in the instant case, the same is liable to be set aside on this ground alone. He had also submitted that in the light of the Honble Apex Court judgment in the case of Roop Singh Negi v. Punjab National Bank, [(2009) 2 SCC 570] merely because the documents had been listed they cannot be said to have proved the case of the prosecution, as the Honble Apex Court had held that mere production of document is not enough, but the document produced in the evidence has to be proved by examining witnesses, and on this ground alone the impugned orders need to be set aside.
13. The applicant has taken the further ground that he cannot be held guilty of the charges on the basis of the statement recorded by DRI officials under Section 108 of the Customs Act, as it is contrary to law, as laid down in the case of State Bank of Bikaner and Jaipur v. Srinath Gupta [(1996) 6 SCC 486], wherein it has been held that the statement earlier recorded by the CBI under Section 161 of Cr. P.C. cannot be admissible as evidence in the departmental enquiry, unless the delinquent has been granted full opportunity of cross-examining the said witnesses in the departmental enquiry. Lastly, he has taken the ground that he had certified the feasibility of the factory stuffing of substandard export goods four years before the date when the enquiry took place after inspection of the building at that relevant point of time, and that even as on date the building premises do exist over there, and all the requirements as were required to be verified regarding the existence of the location were completed by him, and, therefore, the charges levelled against had been held to be proved on an incorrect premise.
14. The respondents filed their counter-reply on 03.09.2012. In this they had submitted that the applicant had in fact categorically reported that the parties concerned had manufacturing arrangements and the machinery required in place in the concerned building premises, and had also certified the existence of the factory, along with manufacturing arrangements, while the investigations carried out by the DRI had revealed that the said premises were owned by M/s AGI Switches Pvt. Ltd., and had never been used for garment manufacturing and exporting activities from there. It was further reiterated that the applicant had certified to have supervised factory stuffing of containers with export goods pertaining to the firm, for which no permission was obtained by him from the relevant Customs Authorities, and that he took on record prime quality garments, purchased from local market by the exporters, and same were sent to the International Container Depot, Ballabhgarh, and that he had later destroyed that evidence relating to the fraud, which had resulted in a loss to the exchequer to the tune of Rs.1.04 crore, due to false report given by the applicant regarding existence of garment manufacturing, stuffing and exporting facilities at the premises of the claimed exporting firms. It was further noted that the DRI had issued a show cause notice, and the adjudicating authority had even imposed a fine of Rs.10 lakhs. It was further submitted that the enquiry officer had concluded his report only after affording ample opportunities to the applicant for inspection of documents, all of which were of his own creation, and the Disciplinary Authority had thereafter arrived at his finding on various articles of charges after duly considering the evidence submitted by the charged official, and the enquiry officer. It was also submitted that the applicant was given an opportunity of personal hearing at every stage of the departmental enquiry proceedings against him.
15. In reply to the grounds raised by the applicant, it was submitted by the respondents that it is not necessary for a witness to be there in all cases, as charge-sheet was being supported by the documentary proof, on the basis of the copies of the documents, all of which had been created by the applicant himself, and not on the basis of oral evidence. It was submitted that the originals of the RUDs had already been filed in the criminal court in connection with the prosecution case filed by the DRI, and, therefore, the Court attested copies of documents were produced by the presenting officer for inspection before the enquiry officer. It was submitted that the purpose of inspection of original documents is only to confirm regarding the veracity of documents, which had been attested by the criminal court.
16. It was further submitted that the statements of the charged officer recorded under Section 108 of the Customs Act, 1962, by the DRI officials, are admissible evidence in all judicial and quasi-judicial proceedings, and since the applicant had admitted during the course of the enquiry that the shipping bills had been dealt with by him, and, therefore, the existence and admissibility of the documents cannot be questioned by him in the present departmental enquiry proceedings. It was further submitted that Section 36-A of the Central Excise Act, 1944, has also been correctly relied upon in regard to the acceptability of the documents as evidence.
17. It was further submitted that the applicant himself had in his statement dated 5.3.2003 stated that when he had visited the premises of one of the firms concerned, he had not found the said premises at Faridabad to be functional, but he was told by the party concerned that the machines were coming, and that he had believed the party, and thus it was submitted that the applicant had himself admitted that the report given by him relating to the manufacturing activities at the premises concerned was not factual.
18. In respect of the others two firms also, it was mentioned that the only construction was at the ground floor, and there was no construction at 1st and 2nd floor, as had been wrongly mentioned by the applicant in the shipping bills certified by him, which he had himself admitted before the DRI, when he had stated that he had only seen 4-5 sewing machines, packed in cardboard cartons, kept in the big hall at one of the premises, and, therefore, it was clear that the applicant had not seen any manufacturing activity for manufacture of garments for export purposes at the said premises.
19. It was submitted that when no corroborative evidence was found in respect of Articles of Charges IV, V & VI, and the Article of charge VII is only a summation of the charges in Articles I to VI, Articles IV, V, VI & VII were held as not proved beyond reasonable doubt, but the preponderance of probability of truth in these charges also cannot still be ruled out.
20. The respondents have denied that non-production of witnesses by the presenting officer during the course of enquiry was fatal to the disciplinary proceedings conducted and it was submitted that the contention of the applicant even today that the premises concerned exist or do not exist is not under dispute, because what is under dispute is the existence of manufacturing facility of the exporter on the said premises, as has been wrongly and mischievously certified by the applicant, in collusion with the concerned parties, which had led to the exchequer being defrauded to the extent of Duty Drawback of Rs.1.04 crores.
21. The applicant filed a rejoinder on 25.09.2012, more or less reiterating his contentions as made out in the O.A., and denying the contents of the counter-affidavit filed by the respondents.
22. Heard. The main issues to be decided by us in this O.A. are (a) as to the admissibility and acceptability of the documents as evidence, as provided for under Section 36-A of the Central Excise Act, 1944, and (b) the statement recorded under Section 108 of the Customs Act, 1962, and (c) as to whether such documentary evidence and oral admission of the applicant, can be used in the disciplinary enquiry conducted against him under Rule 14 of the CCS (CCA) Rules, 1965. During his arguments, the learned counsel for the applicant read out the concerned Sections in the Court, and emphasized that these Sections could only be used in respect of the proceedings in connection with the Central Excise Act, 1944, and the Customs Act, 1962, and could not be imported to be made applicable under the CCS (CCA) Rules. The rejoinder of the applicant also had reiterated his contentions that these could not have been relied upon by the respondents in the disciplinary enquiry. One more issue to be decided by us today is as to (d) when on the basis of the same set of documents, the applicant was first acquitted by the Criminal Court, which acquittal was later set aside by the Honble High Court, but against which order of the Honble High Court the applicant has moved Honble Apex Court in SLP, and obtained a stay order, whether the same set of documents can be relied upon by the disciplinary authority for the purpose of the disciplinary enquiry, as had been done in the instant case. We also have to examine (e) as to what is evidence and what can be taken as an evidence for the purpose of a criminal case, as different from being taken as an evidence for the purpose of a disciplinary enquiry under Rule 14 of the CCS (CCA) Rules, 1965. We shall call these issues as 22 (a) to 22 (e).
23. Section-36-A of the Central Excise Act, 1944, and Section 108 of the Customs Act, 1962 state as follows:-
SECTION 36-A. Presumption as to documents in certain cases. Where any document is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall,
(a) unless the contrary is proved by such person, presume
(i) the truth of the contents of such document;
(ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that persons handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.
(Emphasis supplied) Section 108 of the Customs Act, 1962- Power to summon persons to give evidence and produce documents.
(1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.
(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908 ), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860 ).
(Emphasis supplied)
24. The learned counsel for the applicant has during his oral submissions relied upon the judgment of this Bench in OA No 1690/2007 with MA No. 1733/2007 dated 19.11.2008 Shri J.P. Singh v. Union of India and Ors. delivered by the Bench of the then Chairman Honble Mr. Justice V.K. Bali, and the then Vice-Chairman (A) Honble Mr. L.K. Joshi. Paragraph-18 onwards in that judgment, the Bench had observed as follows:-
18. It is also observed that the case against the Applicant is founded largely on statements of various persons whose statements in previous enquiries, recorded in the absence of the Applicant, have been listed as relied upon documents. The list of documents by which the Articles of Charge are proposed to be proved, as appended at page 45 of the paper book is reproduced below:
1. Copies of 100 Shipping Bills (as per list in Annexure-A).
2. Panchnama relating to examination/seizure of goods by DRI.
3. Statement of Shri Satish Gupta dated 12.02.1999, 16.02.1999, 04.03.1999, 12.03.1999 and 26.03.1999 made before Shri M.N. Mhatre, SIO, DRI.
4. Statement of Shri Satish Gupta dated 11.05.1999 made before Shri A.L. Vartak, SIO, DRI.
5. Statement of Shri Zaki Anwar dated 09.02.1999, 10.02.1999 made before Shri M.N. Mhatre, SIO, DRI.
6. Statement of Shri Zaki Anwar dated 04.05.1999 made before Shri A.L. Vartak, SIO, DRI.
7. Statement of Shri Zaki Anwar dated 14.09.1999 made before Shri R.K. Pardeshi, SIO, DRI.
8. Statement of Shri Lovkesh Sharma dated 09.03.1999, 12.03.1999 and 15.03.1999 made before Shri M.N. Mhatre, SIO, DRI.
9. Statement of Shri Joseph Kuok dated 16.02.1999, 17.02.1999 and 26.03.1999 made before Shri M.N. Mhatre, SIO, DRI.
10. Statement of Shri Joseph Kuok dated 26.08.1999 made before Shri R.K. Pardeshi, SIO, DRI.
11. Statement of Shri S.N. Ojha dated 19.02.1999. 07.04.1999 and 08.04.1999 made before Shri H.R. Garg, A.D., DRI.
12. Statement of Shri S.N. Ojha dated 25.08.1999, 30.10.1999 made before Shri Anurag Bakshi, AD, DRI.
13. Statement of Shri J.P. Singh dated 20.10.1999 made before Shri Anurag Bakshi, AD, DRI.
14. Statement of Shri J.P. Singh dated 21.04.1999 made before Shri H.R. Garg, AD, DRI.
15. Statement of Shri J.P. Singh dated 15.09.1999 and 16.09.1999 made before Shri Anurag Bakshi, AD, DRI.
16. Statement of Shri Rakesh Swarup Tandon dated 09.02.1999 made before Shri M.N. Mhatre, SIO, DRI.
17. Statement of Shri Rajesh Bhasin dated 21.09.1999, 22.09.1999, 23.09.1999, 24.09.1999, 25.09.1999, 27.09.1999, 28.09.1999, 29.09.1999, 01.10.1999, 04.10.1999, 05.10.1999, 09.10.1999 and 29.10.1999 made before Shri R.K. Pardeshi, SIO, DRI.
18. Public Notice No.8/97 dated 13.8.97.
19. SCN of DRI issued vide F.No.DRI/BZU/F/10/98 dated 02.12.1999.
20. Mobile print-outs of Shri Rajesh Bhasin.
21. Mobile Print-outs of Shri J.P. Singh.
The list of witnesses is also reproduced:
1. Shri M.N. Mhatre, Senior Intelligence Officer, DRI.
2. Shri A.L. Vartak, Senior Intelligence Officer, DRI.
3. Shri R.K. Pardeshi, Senior Intelligence Officer, DRI.
4. Shri H.R. Garg, Assistant Director, DRI.
5. Shri Anurag Bakshi, Assistant Director, DRI.
The enormity of the Respondents fallacy is clear from the above documents. Only the statements of seven material witnesses in the departmental enquiry are proposed to be produced as documents. These statements have been recorded in 1999 by the officers mentioned in the list of witnesses. These officers cited in the list of witnesses do not have any knowledge of the incident for which the Applicant is being proceeded against departmentally. They would only prove that they recorded the statements, which are cited as relied upon documents. The Applicant would have no opportunity to confront the persons who made the statements. In our considered opinion this procedure is illegal. The persons whose statements are cited in the list of documents have to be examined in the departmental enquiry in the presence of the Applicant. Although, they have not been called as witnesses in the departmental enquiry, yet we are unable to agree with the learned counsel for the Respondents that the statements recorded under Section 108 of the Customs Act, 1962 can be taken into evidence in the departmental enquiry without giving the Applicant any opportunity to cross-examine them. It would militate against the ratio laid down by the Honourable Supreme Court in Kuldeep Singh Vs. Commissioner of Police & Ors., (1992) 2 SCC 10; Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983; and Ministry of Finance and Anr. Vs. S.B. Ramesh, SLJ 1998 (2) SC 67.
19. In Kuldeep Singh (cited supra) Honourable Supreme Court has held as follows:
31. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
In Central Bank of India Vs. Prakash Chand Jain (cited supra) the following ratio was laid down:
The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and the statement made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles, which cannot be ignored.
In S.B.Ramesh (cited supra) also the Honourable Supreme Court quoted with approval the order of the Tribunal, which gave the reasons to come to the conclusion that the order of the disciplinary authority was based on no evidence and that the findings were perverse. One of the grounds on which this order of the Tribunal was based was that the applicant in that case was not given an opportunity to cross examine the witness in support of the charge. The Tribunal had held thus in this case.
Further, it is settled law that any statement recorded behind the back of a person can be make use of against him in a proceeding unless the person who is said to have made that statement is made available for cross-examination, to prove his or her veracity.
The Department of Personnel and Training (DoP&T) has also prescribed in its OM No. 134/7/75-AVD.I dated 11.06.1976 (quoted in Swamys Compilation of CCS CCA Rules, Swamy Publishers (P) Ltd., Thirty First Edition, 2007, page 63) as follows:
Statement of witness recorded at the preliminary inquiry/ investigation to be read out to him and got admitted as evidence. The present procedure followed in departmental inquiries held under the CCS (CCA) Rules, 1965, and other corresponding Disciplinary Rules is to disregard statements made by witnesses during the preliminary inquiry / investigation except for the purpose of contradicting the witnesses and to record the evidence of the witnesses de novo as examination-in-chief by the Inquiry Authority. The question whether statements made by the witnesses during the preliminary inquiry / investigation can be straightaway taken on record as evidence in examination-in-chief at oral inquiries has been examined in consultation with the Department of Legal Affairs, the Central Vigilance Commission and the Central Bureau of Investigation.
2. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accord with the principles of natural justice to take on record the statements made by witnesses during the preliminary inquiry/ investigation at oral inquiries, if the statement is admitted by the witness on its being read out to him. It is felt that by adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. It has, therefore, been decided that in future, instead of recoding the evidence of the prosecution witnesses de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/ investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance, i.e., at least three days before the date on which it is it come up at the inquiry.
20. It is clear, therefore, that the witnesses have to be examined in the presence of the Applicant, who would be given an opportunity for cross examining them. We cannot accept the argument of the learned counsel for the Respondents that a statement recorded under Section 108 of Customs Act, 1962 could be produced in the enquiry without examining the witnesses.
21. The case against the Applicant under the Customs Act, 1962 was based on circumstantial evidence and on the statements of witnesses recorded at different times. It is because of the tenuous nature of proof against him, the Applicant succeeded before the CESTAT. Memory does not have a very long shelf life. Witnesses cannot be expected to remember details of events which are nearly a decade old. Their statements were recorded in 1999. It is certain that they cannot recall the events with any certitude after a passage of so many years. It seems to us, therefore, that it would be seriously prejudicial to the cause of the Applicant to tread on such slippery ground, after a lapse of nearly ten years now. The Respondents have further caused a delay of one-and-half-years in appointing the enquiry officer and the Presenting Officer. Prejudice is writ large in this case against the interests of the Applicant and justice.
22. In the above circumstances, the OA is allowed. The Memorandum dated 19.05.2006 declaring the intention of the appointing authority to hold disciplinary enquiry against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965 (Annex A-1) is quashed and set aside. There will be no orders as to costs.
( L.K. Joshi ) (V.K. Bali )
Vice Chairman (A) Chairman
(Emphasis supplied)
25. It is seen that the Bench had that day accepted the contention of the applicant before it that the statements of other witnesses recorded under Section-108 of the Customs Act, 1962, could not be produced against him in the departmental enquiry without his being able to cross-examine the concerned witnesses. However, even though the Bench had cited in detail the DOP&T OM No.134/7/75-AVD.I dated 11.06.1976, that in view of the observations made by the Honble Apex Court in certain cases, it may be legally permissible, and in accordance with the principles of natural justice to take on record the statements made by witness during preliminary enquiry/investigation at oral enquiries, if the statement is admitted by the witness on its being read out to him, and that it had been decided by DOP&T that in future, while conducting the disciplinary enquiries, instead of recording the evidence of prosecution witnesses de novo, wherever it is possible, the statement of witness already recorded at the preliminary enquiry/investigation may be read out to him at the departmental enquiry, and if it is admitted by him, the cross-examination of the concerned witness may commence thereafter straightaway, without once again recording the statement of that witness before the I.O., & a copy of the said statement has to be made available to the delinquent officer at least 3 days before the date on which it has to come up at the enquiry, which prescription of the DoP&T Circular appears to be flowing out of the ratio of the Honble Apex Courts judgment in M/s Kesoram Cotton Mills Ltd. vs. Gangadhar : AIR 1964 SC 708=1964 (2) SCR 809, the Bench had chosen not to follow that ratio.
26. Learned counsel for the applicant had also relied heavily upon the case of Roop Singh Negi (supra), in which case the Honble Apex Court had held as follows:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
16. In Union of India vs. H.S. Goel [(1964) 4 SCR 718, it was held:
"22....The two infirmities are separate and distinct though, conceivably, in some cases, both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides, but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issued without further proof of mala fides. That is why we are not prepared to accept the learned Attorney-General's argument that sine no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent.
23. That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charged framed against the respondent has been proved, is based on no evidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him? In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which dealt with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question is proved against the respondent ? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the respondent's grievance is well-founded because, in our opinion, the finding which is implicit in the appellant's order dismissing the respondent that charge number 3 is proved against him is based on no evidence.
17. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court 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."
18. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. (supra), whereupon both the learned counsel relied upon, this Court held:
"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following:
(1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775].
(3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State of Bank of India and Ors. (1984) 1 SCC 43].
(4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan (1986) 3 SCC 454] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344.
(6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain (1969) 1 SCR 735, Kuldeep Singh v. Commissioner of Police and Ors. (1999) 2 SCC 10]."
19. The judgment and decree passed against the respondent in Narinder Mohan Arya case (2006) 4 SCC 713: 2006 SCC (L&S) 840 had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. Appellant therein in the aforementioned situation filed a Writ Petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on an evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasized that a finding can be arrived at by the Enquiry Officer if there is some evidence on record. It was furthermore found that the order of the appellate authority suffered from non application of mind.
20. This Court referred to its earlier decision in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679] to opine:
"41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. (2004) 8 SCC 200 and Manager, Reserve Bank of India Bangalore v. S. Mani and Ors. (2005) 5 SCC 100. Each case is, therefore, required to be considered on its own facts.
42. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India, Bangalore (supra) this Court observed:
39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out."
In that case also, the learned single judge proceeded on the basis that the disadvantages of an employer is that such acts are committed in secrecy and in conspiracy with the person affected by the accident, stating: (Narinder Mohan Arya case.
"44....No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence.
45. The findings of the learned Single Judge to the effect that 'it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality' may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error."
21. Yet again in M.V. Bijlani vs. Union of India & ors. (2006) 5 SCC 88, this Court held:
"25.....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
22. Yet again in Jasbir Singh vs. Punjab & Sind Bank & ors. [(2007) 1 SCC 566], this court followed Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. (supra), stating:
"12. In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed so to do."
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
24. For the aforementioned reasons, the judgment of the High Court is set aside. The appeal is allowed with costs and appellant is directed to be reinstated with full back wages. Counsel's fee assessed at Rs.25,000/-.
(Emphasis supplied).
27. The Learned counsel for the applicant, therefore, emphasized that even an FIR filed before the Court is no evidence without proof of the facts stated therein under the Criminal Procedure Code 1973, and, similarly, in a departmental enquiry, an admission or confession before the DRI itself was not sufficient, and some independent evidence ought to have been brought on record to prove that the appellant was involved in defrauding the exchequer to the tune of more than Rs.1 Crore, as charged.
28. The learned counsel for the applicant also emphasized upon the case of State Bank of Bikaner and Jaipur (supra), in which the Honble Apex Court has held as follows:-
11. As regards the statements under Section 161, Cr.P.C. are concerned, we find that the said statements were supplied to the respondent on 1-11-1976. The evidence of these persons, we are informed, was recorded on 5-4-1977. The procedure which was followed by the Inquiry Officer, relating to the taking on record of these statements under Section 161, Cr.P.C. would be evident from the proceedings of the Inquiry Officer which are as follows.
"The bank representative produced his witness Sri Dhannalal s/o Mangilal residence of Sunel for evidence. At this moment Sri S. L. Gupta, employees representative raised his objection to the procedure of reading the statement of the witnesses by bank representative previously recorded.
With a view to offer equal opportunity to both the sides and to enable the bank to present the case in the proper manner, as a norm of the domestic enquiry, I allow this procedure to continue and proceed further in the case.
The Statement of Dhannalal s/o Mangilal previously recorded by the CBI Inspector was read over to him by the bank representative. Sri Dhannalal admitted the contents of the statement.
Cross examination by defence.....'' 12. According to the appellant in respect of Ashraf Ali also a similar procedure was followed. It is now well-settled that strict rules of evidence are not applicable and are not required to be followed in domestic inquiry [e.g. see State of Haryana v. Rattan Singh, (1982) 1 Lab LJ 46 : (AIR 1977 SC 1512] . What has to be ensured is that the principles of natural justice are complied with and the delinquent workman has the opportunity of defending himself.
13. The statements under Section 161 Cr.P.C. may not be admissible in the criminal trial, but the said statements can be produced in a disciplinary inquiry like the present. The person who made the statement has been examined before the inquiry officer. It was open to the witness to have stated orally the entire contents of what was recorded in his statement under Section 161, Cr.P.C. Instead of following this time consuming procedure, the said statement recorded under Section 161.Cr.P.C. was read over to the witness who admitted the contents thereof. In this way the earlier statement under Section 161, Cr.P.C. became a part of the examination-in-chief of the witness before the Inquiry Officer. It is not in dispute that the said statements had been given to the respondent in advance and full opportunity was granted to the respondent to cross-examine the said witnesses. This being the case, it is difficult to appreciate as to how the High Court could have come to the conclusion that the inquiry proceedings stood vitiated.
14. In coming to the aforesaid conclusion, we are fortified by the decision of a Constitution Bench of this Court in the case of State of Mysore v. S. S. Makapur, (1963) 2 SCR 943 : (AIR 1963 SC 375). In that case also, statements of witnesses which had been recorded behind the back of the delinquent officer were taken on record and an opportunity of cross-examination was given. The High Court had come to the conclusion that the principles of natural justice had not been followed because of the admission in evidence of such statements. While allowing the appeal and rejecting the contention of the respondent therein, this Court in S. S. Makapur's case (supra) ( 1963 (2) SCR 943) at page 951: (AIR 1963 SC 375 at pp. 378-79) observed as follows :
"When the evidence is oral, normally the examination of the witness will in its entirely take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities, and rules of natural justice are matters not of from but of substance. In our opinion they are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross-examine them.'' 15. The aforesaid observations apply in the present case as well. In Kartri v. State of Bihar, (1981) 3 SCR 145 : (AIR 1981 SC 1068) dealing with petition under Article 32 of the Constitution, the question arose whether the statements made before the police officer in the course of investigation could be directed to be produced and whether the bar of Section 162 Cr.P.C. applied or not. In this connection, it was observed, at page 152, (of SCR) : (at p. 1070 of AIR) as follows :
"It bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but by the express terms of the Section this bar is applicable only where such statement is sought, to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. If the statement made before a police officer in the course of an investigation under chapter in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted.
16. Mr. Tarkunde, learned counsel for the respondent, however, placed strong reliance on the following observations of this Court in M/s. Kesoram Cotton Mills Ltd. v. Gangadhar, (1964) 2 SCR 809 at page 827 : (AIR 1964 SC 708 at pp. 715-16) "Further we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of Labour union may not be present to defend them. In such a case to read over a prepared statement in a few minutes and then ask the workmen to cross-examine would make a mockery of the opportunity that the unless of natural justice require that the workmen should have to defend themselves. It seems to us therefore that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witness from the beginning to the end in the presence of the workman at the enquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and brings home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking therefore we should expect a domestic inquiry by the management to be of this kind.'' 17. The aforesaid observations do imply that oral examination should take place and reading of a prepared statement may cause prejudice but the Court did not hold that the procedure which has referred to in Shivabasappa's Case, (AIR 1963 SC 375) (supra) was illegal. In fact in the very next sentence, it was observed in the said case as follows : [AIR 1964 SC 708 at P. 716, Para 15] "Even so, we recognise the force of the argument on behalf of the appellant that the main principles of natural justice cannot change from tribunal to tribunal and therefore, it may be possible to have another method of conducting a domestic inquiry (though we again repeat that this should not be the rule but the exception) and that is in the manner laid down in Shivabasappa's case, (AIR 1963 SC 375). The minimum that we shall expect where witnesses are not examined from the very beginning at the enquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the copy of the statements should be given well in advance we mean that it should be given at least two days before the inquiry is to begin.'' 18. In the present case, statements under Section 161, Cr.P.C. had been given to respondent No. 1 a number of months before the witnesses were examined. Therefore, even the minimum requirement which is referred to in Keshoram Cotton Mills Ltd. case, (AIR 1964 SC 708) (supra) was complied with.
19. From the aforesaid discussion the only conclusion which could be arrived at is that in the present case no illegality had been committed by taking on record the statements which had been made under Section 161 Cr. P.C. and the conclusion of the High Court which has held that the disciplinary proceedings stood vitiated, is not correct.
(Emphasis supplied).
29. Thus, the conclusion arrived at in Para-19 of the Honble Apex Courts judgment in State Bank of Bikaner & Jaipur (supra) does not support the case of the applicant, as the Honble Apex Court had held that no illegality had been committed by taking on record the statements which had been made by the applicant under Section-161 of the Cr. P.C., and had, therefore, held that the Honble High Courts finding that the disciplinary proceedings stood vitiated, is not correct. Similarly, the applicant cannot be allowed to derive any benefit out of the judgment in the case of Roop Singh Negi (supra), as the applicant before us was confronted with his confessional statement, which was not before a Police Officer, but in another departmental proceedings under the relevant Central Excise Act, 1944, read with the Customs Act, 1962, and it did not require to be proved as per the provisions of those laws itself. Also, there was direct evidence in the form of the documents authored or created by the applicant himself, which he never denied during the present departmental enquiry. In the case of Union of India vs. H.S. Goel (supra) the Honble Apex Court had accepted the viewpoint that determination to root out corruption was an absolutely sound contention, if there is at least some evidence on which a finding in respect of the charge can be arrived at. It had only applied the test that if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question are proved or not. To our mind, even this test laid down by the Honble Apex Court gets satisfied in the instant case.
30. In the Honble Apex Court judgment in Moni Shankar (supra), the test laid down was that while exercising power of judicial review, the Courts and Tribunals 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 meets the requirements of legal principles. In the instant case before us, all the facts, with which the applicant was confronted with as the delinquent Government official, were all of his own creation and authorship, and could thus have been used by the Respondents both for the purposes of his conviction, and in the departmental proceedings, under the relevant Acts, in which he could have been so questioned, and disciplinary proceedings can proceed on the basis of documents which were authored and created by the applicant himself, and which he did not deny at any stage during the course of the disciplinary proceedings. Therefore, to our mind, the test laid down in Moni Shankar (supra) is also satisfied in the instant case, as only the relevant pieces of evidence, not denied but rather admitted by the applicant, have been taken into consideration, and no irrelevant and unproven documents or facts have been brought to bear consequences upon the applicant. It is also seen that the interferences thereon on the facts are also based on the admitted evidence, which was never retracted, and which meets the requirements of the legal principles of proving the case against the applicant at least on the principle of preponderance of probability, if not also beyond reasonable doubt, which latter is not required in the case of a departmental proceeding.
31. It is also seen that the test as laid down in State of Assam and Another vs. Mahendra Kumar Das and others (supra) is also satisfied, as the enquiry officer has not collected any material from outside sources during the conduct of the enquiry, and all the material on which reliance was placed was authored and created by him, and not denied by the applicant. It is also seen that the tests as laid down in Narinder Mohan Arya vs. United India Insurance Co.Ltd. & Ors.(supra) and in Khem Chand vs. Union of India and Others(supra) and State of Uttar Pradesh vs. Om Prakash Gupta (supra) are also satisfied in the instant case. In a domestic enquiry, fairness of the procedure has to be followed to prove the guilt of the delinquent official, which satisfies the principles of natural justice. It is also seen that the impugned proceedings satisfy the condition of concept of fair play in action, which is the basis of the departmental enquiry, as laid down by the Apex Court in Sawai Singh vs. State of Rajasthan (supra).
32. In the next test prescribed in Narinder Mohan Arya vs. United India Insurance Co.Ltd. & Ors.(supra), the Courts and Tribunals have to see that the enquiry officer is not permitted to travel beyond the charges, and no punishment should be imposed on the basis of a finding, which was not the subject matter of the charges, is duly satisfied, as was laid down by the Apex Court initially in Director (Inspection & Quality Control) and Others vs.Kalyan Kumar Mitra and Ors(supra). In that case, the Apex Court had further held that suspicion or presumption cannot take the place of proof even in a domestic enquiry, flowing from the earlier judgment of the Apex Court in Central Bank of India Ltd. Vs. Prakash Chand Jain (supra) and Kuldeep Singh vs. Commissioner of Police and Ors (supra). It is seen that the conclusions arrived at by the Disciplinary Authorities in the instant case are not at all based on suspicion or presumption, as the applicant has at no stage of the departmental enquiry denied the fact that he had created and authored the documents concerned relating to the 24 containers, which were exported with rags and sub standard materials, and were certified by him to be readymade garments manufactured by the non-existent factories. This much of un-controverted evidence would pass the test of there being some evidence on record for the enquiry officer to conclude his enquiry, which also is one of the tests laid down by the Honble Apex Court.
33. It cannot also be said here that in the instant case, the onus of proof had been shifted from the prosecution to the delinquent government servant, the applicant before us. The Presenting Officer has relied upon the documents created and authored by the applicant himself, and the applicant did not deny that he had authored and created those documents. Therefore, by no stretch of imagination, it could be said that the onus of proof had been shifted on to the applicant, which was the test as laid down by the Honble Apex Court in Manager, Reserve Bank of India, Bangalore vs. S.Mani and Ors.(supra) . It cannot also be anybodys case that the documentary evidence adduced on behalf of departmental authorities did not have any nexus with the charges, which was also one of the tests as laid down in para 44 of the case in Narinder Mohan Arya vs. United India Insurance Co.Ltd. & Ors.(supra), as well as in the case of M.V.Bijlani vs. Union of India & Ors (supra). As was clearly stated by the Honble Apex Court in para-23 of Roop Singh Negis case, as reproduced in para 26/above, in a disciplinary enquiry the material brought on record pointing out the guilt of the delinquent official are required to be proved, and a decision must be arrived at on some evidence, which is legally admissible. It cannot be anybodys case that in the instant case the documents created and authored by the applicant himself, which he never denied, were required to be independently proved by any outside witness, and therefore the documentary evidence, along with oral evidence, which is admissible as evidence as per the provisions of the respective Sections under the Central Excise Act, 1944, and the Customs Act, 1962, were correctly relied upon, and was rightly treated as legally admissible evidence.
34. It may be submitted here that the statements made under Central Excise Act, 1944, and the Customs Act, 1962, cannot at all be equated with the statements made under Section 161 of the CrPC before a Police Officer. It is also submitted that the tests, as laid down by the Honble Apex Court in the case of State of Mysore vs. S.S.Manakpur (supra) have not been satisfied. In the instant case, when the applicant was neither retracting from his confession recorded earlier under the relevant case, nor did he deny having authored and created the documents produced as evidence against him, the rules of natural justice were obviously followed in substance, though they may not have been followed in form, by calling outside/external witnesses, who may have known nothing about the circumstances or the ground level conditions under which the applicant had created and authored the documents, and then the Enquiry Officer could not have relied upon those witnesses in respect of those documents.
35. The applicant himself was the best witness available/admissible in law in respect of those documents, and he never denied them. It is further submitted that as the statement made under the Customs Act, 1962, and the Central Excise Act, 1944, stand on an entirely different footing than the statements made under the Sections 161 and 162 of the CrPC, as was mentioned above also, the procedure as followed in the present Departmental Enquiry fulfils the tests as laid down by the Apex Court in Kartri vs. State of Bihar (supra). In the context of Shivabasappas case (AIR 1963 SC 375) and in the case M/s Kesoram Cotton Mills Ltd. Vs. Gangadhar (supra), as stated in paras 16 and 17 of the Honble Apex Courts judgment in the case of State of Bikaner & Jaipur (supra), the person charged should be given a copy of the statement made by the witnesses, which are to be used in the enquiry against him, well in advance, before the enquiry date, and at least two days before the enquiry is begun. Here, in the instant case, this test is also fully satisfied in the sense that in the departmental enquiry, the statement made and the documents furnished to the applicant were created by him only, under the relevant Exports related rules, and were made available to him, and he cannot now therefore claim that he had no notice of such documents, and that such a statement could not have been used against him. In fact, in the case of State of Bikaner & Jaipur (supra) the Honble Apex Court had gone to the extent of allowing taking on record even the statements which have been made by witnesses under Section 161 of the CrPC, before a Police Officer, which stands at a much lower footing in the hierarchy of admissible evidence, as against the statement made and documents created under above cited and reproduced Sections of the Central Excise Act, 1944 and the Customs Act, 1962 are concerned.
36. In the case of State Bank of Bikaner and Jaipur and Others vs. Prabhu Dayal Grover (1995) 6 SCC 279, the Honble Apex Court has held as follows:-
State Bank Of Bikaner And Jaipur Officers Service Regulations, 1979 Reguation.68(2)(Iii); Regulations.8(3)L; Regulation.70(2)-1. Regulation 68(2)(iii) provides that where it is proposed to hold an enquiry the Disciplinary Authority shall frame definite and distinctive charges on the basis of the allegations against the officer and the articles of charge, together with a statement of the allegations on which they are based, shall be communicated in writing to the Officer. Needless to say, the above Regulation seeks to fulfil one of the basic postulates of the rules of natural justice that a fair, adequate and reasonable opportunity of being heard should be given to the person arraigned which, obviously, would not be possible unless he is specifically told of the accusations levelled against him. Judged in that light, we are unable to hold, in the facts of the instant case, that Grover was not so told. Of course, it may be said that the letter communicating the accusation made against Grover which we have reproduced above does not answer the description of a `formal chargesheet' but then the contents thereof specifically disclose the charge levelled against him, namely, that of accepting a bribe of Rs.300/- from Sri Maniram in the year 1978 for issuing a demand draft in favour of him and his father. It may also be said that the exact date of acceptance of bribe was not disclosed therein but then along with the letter was enclosed a copy of the complaint received from Maniram which not only discloses that date but also satisfied the requirement of a `statement of allegations' envisaged in Regulation 68 in that all the details regarding the demand and acceptance of the bribe have been stated. It cannot, therefore, be said that Grover was not fully apprised of the accusation levelled against him to enable him to effectively reply thereto. In other words, the provisions of the Regulation have been substantially complied with, though not formally. This conclusion of ours is strengthened by Grover's reply to the chargesheet which clearly indicates that he fully understood the charge levelled against him. It reads as under : containing the material facts and particulars not having been supplied to him. In this situation, for the above reason alone, the trial Judge was fully justified in decreeing the suit".
(Emphasis supplied).
37. Therefore, in the case of a disciplinary enquiry, it is not the form and the content, and the manner of proving a set of documents or evidence against the delinquent Government official that is important, but what is important is that the delinquent Government official must be fully in the know of the exact charge against him, should be provided ample opportunities to effectively reply thereto, and so long as the requirements of the delinquent Government official having been made known and aware of the exact charge against him, and his having been provided all opportunities to put up his defence thereto, have been met, and he has been provided the opportunities of hearing at every stage, even by the Disciplinary Authority himself personally, after the submission of the report of the Enquiry officer, and his reply thereto, it cannot be said that there was any procedural irregularity in the conduct of the disciplinary enquiry against the applicant.
38. Section 108 of the Customs Act, 1962, and Section 36-A of the Central Excise Act, 1944, as reproduced earlier, are parts of the enactments which reflect the intention of the legislature with a force greater than can be reflected in the Central Civil Services (Classification, Control & Appeal), Rules, 1965, as a provision of an act is superior to any piece of subordinate legislation in the form of a rule. It is true that the CCS (CCA) Rules, 1965, have been framed in order to give effect to the Constitutional mandate flowing from Article 311 of the Constitution of India. However, the fact remains that they are only a piece of subordinate legislation, and they do not and cannot have the same force as a law enacted by the Parliament, and they are, after all, only rules notified by the Executive under its powers to promulgate General Statutory Regulations, under its residual powers under the Constitution, though in furtherance of the Constitutional mandate flowing from Article 311 of the Constitution.
39. Therefore, when Section 36-A of the Central Excise Act, 1944, clearly lays down that where any document is produced by any person, or has been seized from the custody or control of any person, in either case, under that Act, or under any other law, and such document is tendered by the prosecution in evidence against him, or against him along with any other person who is being tried jointly with him, the Court shall, unless the contrary is proved by such person, presume the truth of the contents of such document, and must also presume that the signature and every other part of such document which purports to be in the handwriting of such person, or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that persons handwriting, and that the Court shall admit such document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence, this prescription is applicable in regard to all types of the legal proceedings, and certainly overrides the general principles of evidence, as laid down under the Evidence Act, 1872. Therefore, this prescription of law enacted by the Parliament would also certainly prevail over and above any other prescription made in a subordinate legislation, made for production of evidence, as provided for in CCS (CCA) Rules, 1965. Similarly Section-108 allows the Custom officers power to summon persons to given evidence, and produce documents in an enquiry, which has been laid down under sub-section-4 of the said Section to be deemed to be a judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860). Therefore, it is obvious that any evidence given and documents produced under Section-108 of the Customs Act, 1962, would have the same force as if they were produced, and proved before a Criminal Trial Court, judicial notice of which had been taken by such Criminal Trial Court. This answers the issues as framed at para 22 (a) and 22 (b)/ante.
40. In the case of Sawai Singh vs. State of Rajasthan 1986(3) SCC 454, it was held by the Honble Apex Court that in the concept of departmental enquiry, it is not possible to lay down any rigid rules of the principles of natural justice to be followed, which would depend on the facts and circumstances of each case, but the concept of a fair play in-action is the basis. Here in the instant case, since the applicant himself was the author and creator of all the concerned documents, he cannot be allowed to allege that the respondents have not acted in a fair play manner, by having failed to prove the documents authored and created by him from some other independent witnesses. The applicant himself was the best possible witness, and he has nowhere denied the existence, veracity, and the authenticity of those documents. Therefore, those documents did not need any other witness to authenticate them.
41. In the case of State of Haryana and Another vs. Rattan Singh (supra), the Honble Apex Court held that all materials which are logically probative for a prudent mind are permissible to be produced in a domestic enquiry, since the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. It went on to state that there is no allergy to even hearsay evidence being provided, if it has reasonable nexus and credibility. It however cautioned the departmental authorities and Administrative Tribunals to be careful in evaluating such material, and held that they should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. It was held that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. However, the Honble Apex Court went on to hold that sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny, and what can be looked into is only the absence of any evidence in support of a finding, because it amounts to an error of law apparent on the face of the record. In that particular case, the Honble Apex Court noted that there were some evidence which has relevance to the charge levelled against the respondent, and therefore, it was not possible to hold that the order is invalid on that ground. The relevant paragraph-4 of the said judgment of the Honble Apex Court may be reproduced by us as below:-
4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamenlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order in invalid on that ground.
42. Here, in the instant case, it is not a case of no evidence, but evidence is there, which has been authored by the applicant himself, and even admitted and accepted by the Honble Delhi High Court in setting aside his acquittal by the trial Court, but the only lacuna which the applicant seeks to derive benefit from was that those documents authored by him were not proved in the Departmental Enquiry through independent external witnesses.
43. The case of State of Rajasthan vs. B.K. Meena and Others AIR 1997 SC 13 = (1996) 6 SCC 417 related to the charges against the respondents which pertained to misappropriation of public funds to the tune of more than Rs. one crore, and the Honble Apex Court was considering as to whether the mere pendency of a criminal case in regard to the same charges ought to stop the respondents from disclosing his defence in the disciplinary proceedings, which would prejudice him in a criminal case. The Honble Apex Court disagreed with the submission, and stated that the interests of administration cannot brook any delay in disciplinary proceedings, as the respondent is continuing in office, and it is in his interest, and in the interest of good administration, that the truth or falsity of the charges against him is determined promptly. It then went on to observe that staying of disciplinary proceedings pending criminal proceedings should not be a matter of course, but a considered decision, and even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed. The Honble Apex Court then went on to state that interests of administration demand that undesirable elements are thrown out, and that any charge of misdemeanor is enquired into promptly, and that the disciplinary proceedings are meant not really to punish the guilty, but to keep the administrative machinery unsullied, by getting rid of bad elements. In this context, the Honble Apex Court examined the law on this point in Paragraphs 12 to 15 of the said judgment as follows:-
12. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan, (1960) 3 SCR 227 : (AIR 1960 SC 806), it was held that the principles of natural justice do not require that the employer should wait for the decision of the criminal court before taking disciplinary action against the employee. At the same time, the Court observed : "We may however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced."In Tata Oil Mills Company Ltd. v. Workmen, (1964)7 SCR 555: (AIR 1965 SC 155), it was observed, following D.C.M. (AIR 1960 SC 806) that (at p. 160, para 9 of AIR) :
"it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to disclose the defence which he may take before the criminal court. But to say, that domestic enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or mala fide."
13. In Jang Bahadur Singh v. Baid Nath Tiwari (1969) 1 SCR 134 : (AIR 1969 SC 30), the contention that initiation of disciplinary proceedings during the pendency of criminal proceedings on the same facts amounts to contempt of court was rejected. After considering the ratio of these three decisions, this Court held in Kusheshwar Dubey, (AIR 1988 SC 2118 at p. 2120) :
"The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline.
In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial Court's order of injunction which had been affirmed in appeal."
14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced. "This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover. 'advisability', 'desirability' or ,`propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D. C. M. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending, consideration is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high official, or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advise and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.
15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges ; some of them may he unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him.
44. In the case of State of Andhra Pradesh v. S. Sree Rama Rao AIR 1963 SC 1723, the Honble Apex Court had held that the departmental authorities are the sole judges of facts, and if there be some legally admissible evidence, on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a Writ under Article 226 of the Constitution, if the enquiry has otherwise been properly held. Here, in the instant case, no document which has been created behind the back of the applicant, has been relied upon by the Enquiry officer, and all the documents relied upon were the creation of the applicant himself, under his own handwriting. This aspect has been appreciated by the Honble High Court also while setting aside his acquittal by the trial Court. Therefore, it cannot be held by any stretch of imagination that the findings of the Enquiry officer, Disciplinary Authority and the Appellate Authority, are not based on legally admissible evidence, and that no reasonable person could have arrived at on those findings on the basis of the material available. It is not as if any deposition of a witness had been recorded by the Enquiry Officer in the absence of the delinquent public servant, who is the applicant before us, or a copy thereof has not been given to him or a witness has been produced, and an opportunity has not been given to him, to cross examine that witness.
45. As was observed by the Honble Apex Court in M/s. Kesoram Cotton Mills Ltd. v. Gangadhar (supra), an extract of which has already been reproduced above, the purpose of rules of natural justice is only to safeguard the position of a person against whom an inquiry is being conducted, so as to ensure that he has been able to meet the charges laid against him properly. That was a case relating to Industrial workers, where the Court took notice of the fact that many of the Industrial workers are illiterate, and sometimes even the representatives of Labour Unions may also not be present to defend them, and, therefore, the Honble Apex Court had held that even if witnesses are produced on the basis of earlier Preliminary Enquiry, and the witnesses are not examined from the very beginning at the departmental enquiry, in the presence of the person charged, it is expected that the person charged should be given a copy of the statements made by those witnesses earlier, which are to be used at the enquiry, well in advance, at least two days before the enquiry is to begin, before the enquiry begins, which would enable the charged person to have an adequate opportunity of defending himself. As was mentioned by us in para 25/above, this ratio has been adopted since then in the DoP&T Circular dated 11.07.1976 on this subject. Here, in the instant case, the applicant is a well educated person holding responsibility of a senior Government Officer, and nothing has been done during the Departmental Enquiry behind his back, because of which he can claim that his interests have been prejudiced.
46. Once again in a Full Bench Three-Judges Bench decision of the Honble Apex Court in B.C. Chaturvedi vs. Union of India and others AIR 1996 SC 484 = (1995) 6 SCC 749, in Paragraphs 12 to 14 the Honble Apex Court held as follows:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
14. In Union of India v. S. L. Abbas (1993) 4 SCC 357 : (1993 AIR SCW 1753), when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with order of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551 : (1992 AIR SCW 2830), it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant, recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court to which two of us (B. P. Jeevan Reddy & B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
(Emphasis supplied).
47. In the above cited case, once again it was reiterated by a Full Bench three-Judges Bench of the Honble Apex Court that the disciplinary authority is the sole judge of facts, and that where appeal is presented, the Appellate Authority also has co-extensive power to re-appreciate the evidence or the nature of punishment, as is available to the Disciplinary Authority on the basis of the enquiry report, which is submitted by the Enquiry Officer, who is a nominee of the Disciplinary Authority. It is clear that when the Disciplinary Authority and the Appellate Authority accept that evidence, and the conclusion receives support from the enquiry as conducted, the authorities are entitled to hold that the delinquent officer is guilty of charge, and the Court and Tribunal, in its power of judicial review, does not act as an Appellate Authority to re-appreciate the evidence and to arrive at its own different conclusion, on the basis of very same evidence.
48. In the case of State Bank of India vs. Samarendra Kishore Endow (1994) 2 SCC 537= JT 1994 (1) SC 217, the Division Bench of the Honble Apex Court had followed its 1963 judgment in State of A.P. v. S. Sree Rama Rao (supra) to reiterate as follows:-
"The High court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High court in a proceeding ... under Article 226 of the Constitution." (Emphasis supplied).
49. In the instant case, we do not find that the Disciplinary or Appellate Authorities of the applicant had disabled themselves from reaching at a fair decision, by taking into consideration matters extraneous to the evidence already available, and extraneous to the merits of the case, or by allowing themselves to be influenced by irrelevant considerations, or where the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, on similar grounds. The very same evidence has already found favour with the Honble High Court also, when it set aside his acquittal by the trial Court. Therefore, following the ratio and the dictum of the Honble Apex Courts decision in these two cases in State Bank of India vs. Samarendra Kishore Endow (supra), which has cited with approval its 1963 findings in State of A.P. v. S. Sree Rama Rao (supra), we find no infirmity with the Disciplinary Enquiry conducted against the applicant.
50. Many more case law citations can be cited in support of the above propositions of law, but we need not go into any more details. The question now remains to be decided by us is as to whether the respondent can be faulted for having relied upon the evidence available before them under the Indian Customs Act and Indian Central Excise Act as cited above.
51. In the instant case, the disciplinary proceedings were based upon more or less proven and admitted charges. The applicant had certified the stuffing of rags into containers as export of stitched clothes, and had then admittedly bought from the Sarojini Nagar Market locally manufactured clothes, and attached them as samples of the type of manufactured stuff, which he had certified to have seen and witnessed to be stuffed into the containers. It is also undisputed that some of the containers ultimately remained unclaimed at Dubai Port, and when they were ultimately opened, and the contents thereafter auctioned, it was discovered by Dubai Port Authorities that contents of those containers were only rags, and nothing else. Therefore, the action of the applicant had not only resulted in having defrauded the exchequer of this country to the extent of Rs. 1.04 crores by way of duty draw back having been claimed by fictitious exporters, but also brought shame upon the nation in a foreign country, when the containers were opened at Dubai Port, and were found to contain only rags, contrary to the declarations attached to those containers by way of shipping documents. Therefore, the applicant cannot now be allowed to hide behind the technicalities of law, and plead that the department had failed to prove against him the documents authored by him, through independent witnesses, or had wrongly relied upon the legally admissible evidence as available before them under the Indian Customs Act, and the Indian Central Excise Act, which evidence was found sufficient by the Honble High Court also while setting aside the order of his acquittal by the trial Court.
52. In the case of Bhaurao Dagdu Paralkar vs. State of Maharashtra and Ors. Civil Appeal No.5162-5167 of 2005, the Honble Apex Court had gone into the question of fraud. It is clear in the instant case that the applicant has been a party to a fraud played upon the exchequer, and since the jura fiscalia, have to be upheld as against jura personarum, we have to take into account as to whether the applicant can be allowed in the instant case to plead on the basis of technicalities not having been strictly adhered to in the departmental enquiry conducted by the respondents against him properly, while he himself has acted improperly, and has been a party to defraud the national exchequer of duty draw back claimed on the basis of over-invoiced export of rags, wrongfully shown to be readymade and stitched garments. In Bhaurao Dagdu Paralkar vs. State of Maharashtra and Ors. (supra), the Honble Apex Court had examined the effects of fraud by stating as follows:-
By "fraud" is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. (See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR 585) and Indian Bank v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).
A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1). "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. (2003 (8) SCC 319). "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, "fraud" is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines "fraud" as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes "fraud" was described thus: (All ER p. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false". But "fraud" in public law is not the same as "fraud" in private law. Nor can the ingredients, which establish "fraud" in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765, that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation of statutory law. "Fraud" in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (See Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers, (1992 (1) SCC 534).
In that case it was observed as follows:
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representation about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry v. Peek [(1886-90) ALL ER Rep 1: (1889) 14 AC 337 (HL)] what constitutes fraud was described thus: (All Er p. 22 B-C) 'Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false'."
This aspect of the matter has been considered recently by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC 100) Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 (8) SCC 311), Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another (2004 (3) SCC 1).
Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust (1996 (3) SCC 310) and S.P. Chengalvaraya Naidu's case (supra).
"Fraud" is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav's case (supra).
In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 & 713, "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. (page 722) These aspects were recently highlighted in the State of Andhra Pradesh and Anr. v. T. Suryachandr Rao (2005 (5) SCALE 621) (Emphasis supplied).
53. The observations of the Honble Apex Court that the "fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence would squarely apply in the instant case. When the applicant has been a party to a fraud, he cannot now turn around and state that the proceedings against him have been vitiated merely because the documents authored by him, with the objective of perpetrating of such fraud, were not proved, in the absence of independent witnesses being brought to prove those documents against him. As per the observations of Lord Denning and Lord Parker LJ in the case of Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702 cited by the Honble Apex Court, fraud vitiates all transactions known to the law, of however high a degree of solemnity. Therefore, once the involvement of the applicant in perpetration of a fraud on the Exchequer, the Consolidated Fund of India, has been established, the subsequent transaction of a very high degree of solemnity otherwise attached to it, of providing him full protection of principles of natural justice in a disciplinary enquiry under Article 311 of the Constitution of India, would also get vitiated, and he cannot now claim that while he was free to perpetrate such a fraud by virtue of his misuse of an official position of trust, the respondents should have bound themselves, and all the principles of natural justice ought to have necessarily followed to corroborate/examine each and every document, through independent witnesses, even though they were authored by the applicant himself.
54. The Honble Apex Court has cited the earlier Apex Court judgment in the case of New India Assurance Co., Shimla vs. Kamla and Others AIR 2001 SC 1419= (2001) 4 SCC 342, in the context of an Insurance claim. In that case, in Paragraphs 12,13, & 14 of its judgment, the Honble Apex Court has observed as follows:-
12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any licensing authority to "renew a driving licnce issued under the provisions of this Act with effect from the date of its expiry." No licensing authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine.
13. The observation of the Division Bench of the Punjab and Haryana High Court in National Insurance Co. Ltd. v. Sucha Singh (1994 (1) Acc CJ 374) (supra) that renewal of a document which purports to be a driving licence, will robe even a forged document with validity on account of S. 15 of the Act, propound a very dangerous proposition. If that proposition is allowed to stand as a legal principle, it may, no doubt, thrill counterfeiters the words over as they would be encouraged to manufacture fake documents in a legion. What was originally a forgery would remain null and void for ever and it would not acquire legal validity at any time by whatever process of sanctification subsequently done on it. Forgery is antithesis to legality and law cannot afford to validate a forgery.
14. We are not considering the question whether the insured exhausted the enquiry expected of him for satisfying himself about the genuineness of the document produced by the 8th respondent as his driving licence. The Insurance Company must have, under law, the opportunity to substantiate its contention that the document is a fabricated one. The Claims Tribunal went wrong in denying such an opportunity to the appellant-Insurance Company.
55. Here in the instant case, the applicant participated in creating a fraudulent document for export of readymade garments, which was believed to be true by the relevant authorities, who, on the basis of those documents, released the duty draw-back amounting to more than Rs.1.04 crores, but just because the document authored by the applicant was, with or without knowing it to be forged, acted upon by some other authorities while releasing the duty draw-back, such document cannot get its forgery outfit stripped off, as was observed by the Honble Apex Court in New India Assurance Co., Shimla (supra). Therefore, the applicant cannot be allowed to escape from his liability from the consequences of his having authored those fraudulent certificates in respect of stuffing of the readymade garments, which he knew were rags, and he had issued a bogus or false and fraudulent certificate, by attaching locally purchased garments as proof of his having witnessed the stuffing. This discussion answers the issue as framed at para 22 (c) /ante.
56. In regard to the issue framed at 22(d)/ante, when on the basis of the same set of documents, the applicant was first acquitted by the Criminal Court, which acquittal was later set aside by the Honble High Court, which order of the Honble High Court has since been stayed by the Honble Apex Court on a SLP moved by the applicant before the Honble Apex Court, the issue framed was as to whether the same set of documents could be relied upon by the disciplinary authority for the purpose of the disciplinary enquiry, as had been done in the instant case. It is clear that the stay of a judicial order does not take away the sting of the operation of that order. The acquittal of the applicant by the lower Court has already been set aside by the Honble High Court. The Honble High Courts order setting aside the acquittal has not yet been set aside by the Honble Apex Court, and has only been stayed by the Honble Apex Court for the time being. Therefore, under the law, the operation of the Honble High Courts order as on today cannot be denied, and the applicant continues to be liable to be punished for the criminal offence, with which he was charged, on the same set of documents.
57. There is no bar in administrative and service law, which prevents the disciplinary enquiry also being held by the departmental authorities on the same set of documents on the basis of which a criminal case has been filed. Therefore, it is held that the same set of documents could have been relied upon by the disciplinary authority for the purpose of the disciplinary enquiry, as has been done in the instant case.
58. The sum and substance of all the judgments on this subject still remains that even if a person gets acquitted in the criminal proceedings, which the present applicant has not yet been acquitted, the same set of events and documents can be relied upon by the disciplinary authority also, to proceed against the delinquent government official in a departmental enquiry. In the case of High Court of Judicature at Bombay through its Registrar vs. Udai Singh S/o Ganpat Rao Naik Nimbalkar & Others 1997(5) SCC 129, the Honble Apex Court went to the extent of saying that even if only some material is available, which is sufficient to hold the charges of disciplinary proceedings as proved, the delinquent government servant can be proceeded against on the basis of that available material. In the instant case, all the documents, with which the applicant was confronted with during the disciplinary enquiry, were created and authored by the applicant himself, and he could not deny the veracity of any of the documents. Therefore, the issue framed at paragraph 22(d)/ante is also answered accordingly.
59. Lastly, we have to deal with the issue as framed at para 22 (e)/ante. For doing this, we may draw upon the definitions of Evidence from the book of Law Lexicon 3rd Edition by P. Ramanatha Aiyars in which the words Evidence, Admitted in Evidence, Evidence and Admission, Competent Evidence, Material Evidence, Primary and Secondary Evidence, and Relevant Evidence have been described as follows:-
EVIDENCE is the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writings or records. (Tomlins Law Dic.) The word evidence signifies only the instruments by means of which relevant facts are brought before the Court, viz, witnesses and documents, and by means of which the Court is convinced of these facts. [26 N.L.R.229=125 I.C. 673=31 Cr. L.J.881= A.I.R. 1930 Nag.242 (F.B.).] EVIDENCE means and includes- all documents produced for the inspection of the Court; such documents are called documentary evidence. [Act I of 1872 (Evidence), S.3.] Evidence, thus understood, has been well-defined, any matter of fact, the effect, tendency, or design of which is, to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. (Best Ev.II).
EVIDENCE is that which makes a matter in dispute clear, evident.
All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact the truth of which is submitted to judicial investigation. (Taylor Ev.I).
Any matter of fact which is furnished to a legal tribunal.. otherwise than by reasoning of a reference to what is noticed without proof as the basis of inference in ascertaining some other matter of fact. (3 Harv.L.Rev.142,147).
The wisdom and goodness of our law appear in nothing more remarkably, than in the perspicuity, certainly, and clearness of the evidence it requires to fix a crime upon any man, whereby his life, his liberty, or his property may be concerned : herein we glory and pride ourselves, and are justly the envy of all our neighbour nations. Our law, in such cases, requires evidence so clear and convincing, that every by-stander, the instant he hears it, must be fully satisfied of the truth of it; it admits of no surmises, innuendos, forced consequences, or harsh constructions, nor anything else to be offered as evidence, but what is real and substantial, according to the rules of natural justice and equity. [Lord Cowper, & New Pari. Hist. 338 ; Proceedings against Bishap Atterbury, (1723) 16 How. St. Tr. 323; id. Vol. 20, p.1328.] There is no difference, in point of evidence, whether the case be a criminal or civil case; the same rules must apply to both. [Hotham B., King v. Cator (1802) 14 Esq. 143.] ADMITTED IN EVIDENCE The words admitted in evidence in S. 35 mean admitted after a conscious application of the mind to the question of admissibility and not merely mechanically allowing a document to be tentatively marked, as an exhibit subject to its admission or rejection at the end of the trial. [(12 Bom. L.R. 466 Foll.). 4 Mys. L.J. 193.] EVIDENCE AND ADMISSION. Admission, in the law of evidence, have been defined as being concessions or voluntary acknowledgments made by a party of the existence of certain facts, and have been said to be direct or express, implied or indirect, or incidental and either judicial or extrajudicial, the former being such admissions as appear of record in the proceedings of a Court. (Black. L.Dict.) EVIDENCE : judicial notice. Judicial notice or knowledge may be defined as the cognizance of certain facts which Judges and jurors may, under the rules of legal procedure or otherwise, properly take and act upon without proof, because they already know them.
Facts as to the existence or truth of which no evidence need be .adduced. (Rapalja and Law Dict.} Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts it is therefore superior to evidence. In its appropriate field it displaces evidence, since, as it stands for proof, it fulfils the object which evidence is designed to fulfil, and makes evidence unnecessary. (State v. Main, 61 Am. St.Rep. 30) COMPETENT EVIDENCE. By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case, such as the production of the writing where its contents are the subject of enquiry. The term has also been sued and construed as synonymous with admissible, with relevant and with sufficient or adequate. MATERIAL EVIDENCE. Evidence offered in a cause, or a question propounded, is material when it is relevant and goes to the substantial matters in dispute or has a legitimate and effective influence or bearing on the decision of the case.
RELEVANT EVIDENCE. Evidence is relevant when it touches upon the issues which the parties have raised by their pleadings, so as to assist in getting at the truth of the facts disputed. Any matter of fact, the effect or tendency of which, when presented to the mind, is to produce a persuasion concerning the existence of some other matter of fact; a persuasion either affirmative or disaffirmative of its existence. (1 Bentham Rationale Jud. Ev. 17.)
60. The issue framed was as to what is evidence, and as to that evidence which can be taken as evidence for the purpose of a criminal case is different from what can be taken as evidence for the purpose of disciplinary enquiry under Rule 14 of the CCS (CCA) Rules, 1965. Apart from the ratio, as laid down by the Honble Apex Court in the above cited cases in the cases High Court of Judicature of Bombay through its Registrar vs. Udai Singh (supra), and the case Ganpat Rao Naik Nimbalkar & Others (supra), it may be further pointed out that the above textbook definition of evidence, what can be admitted in evidence and what is the evidence judicial notice of which has been taken, and what is competent evidence, material evidence or relevant evidence do not distinguish between the force of the types of evidence produced in a judicial or a quasi judicial proceedings. The only rider in the case of criminal proceedings is that the evidence must be proved against the accused beyond any reasonable doubt, and in the case of a departmental enquiry the evidence must be proved against the delinquent government official on the basis of preponderance of probability and not on the basis of beyond any reasonable doubt.
61. In both cases, however, as held by the Honble Apex Court in State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan AIR 1961 SC 1623, cross examination of the witnesses if and when produced by the prosecution is very valuable right, and the charged employee must be provided every opportunity to do so, whether it is in a criminal matter, or in a departmental enquiry case. In the instant case, since all the documents relied upon against the applicant were authored and created by the applicant himself, ostensibly the Presenting Officer and Inquiry Officer did not consider it necessary for those documents to be got proved by any independent witnesses, who would not have known about the circumstances in which these relied upon documents were created or authored by the applicant, and the applicant himself was the best available witness, and he was given full opportunity, and he could have even subjected himself to examination by the Presenting Officer, if he wanted to deny his having created or authored any of these documents, which he did not choose to do so. Therefore, the issue as framed at 22(e) is also answered by holding that whatever qualifies as evidence, can be taken as evidence, either for the purposes of the criminal proceedings, or for the purpose of the disciplinary enquiry under Rule 14 of the CCS (CCA) Rules, 1965, and that the only necessary condition in both these cases is that if the source of that evidence is someone or some incident or act other than the delinquent official himself, or the act/incident of creation of that document by the delinquent official himself, then the charged officer/delinquent official should be given full opportunity of defending himself against that outside evidence, of which he is not the author or creator. We observe that in this case the applicant has been given full opportunity of defending himself against the evidence of the documents of which he himself was the creator/author, such as, having been given personal hearing by the disciplinary authority also. Therefore, the applicant cannot be allowed to claim that the departmental enquiry against him got vitiated in any manner whatsoever.
62. The Honble Apex Court judgments in the cases of Chandrama Tewari vs. Union of India (Through General Manager, Eastern Railway) 1987 (supp.) SCC 518 and Syndicate Bank vs. Venkatesh Gururao Kurati 2006 (3) SCC 150, have held that non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create any prejudice to the delinquent, and the non-supply of only those documents, which are relied upon by the Enquiry Officer to arrive at his conclusion, would cause prejudice, being violative of the principles of natural justice. The respondents had also relied upon similar findings arrived at by the Apex Court in Secretary to Government and others vs. ACJ Britto (1997) 3 2011 387 and State Bank of India & others vs. Bidyut Kumar Mitra & Others 2011 (1) SCALE 390.
63. As has been held by the Honble Apex Court in the case of Chandrama Tewari (supra), it is not necessary that each and every document must be supplied to the delinquent Government servant facing the charges, but instead only the material and relevant documents are necessary to be supplied to him. This judgment has been reiterated by the Honble Delhi High Court also in Delhi Transport Corporation vs. Jaipal Singh in its judgment in W.P. (C ) No.15794/2004 decided on 06.11.2006, by stating as follows:-
A domestic inquiry is not required to be held in an adversarial manner. A domestic inquiry is in the nature of investigation and not in the nature of adjudication. An inquiry officer has every right to ask questions to the witnesses in order to get clear and whole picture of the incident and asking questions does not amount to cross examination. Even if it amounts to cross examination, it is not illegal. Even a trial judge has a right and obligation to ask such questions to the witness as he considers necessary to bring out the truth. Asking a question, does not convert a judge into a prosecutor. Neither asking of questions to witnesses converts an Enquiry Officer into a prosecutor. There is no requirement of law that in an enquiry there should be a presenting officer. An inquiry can be conducted by an enquiry officer without the help of a presenting officer. A privilege is given to the delinquent employee to appoint his defence assistance because it is considered that the delinquent may not be in a proper state of mind to ask questions to the witnesses of the management or to present his case properly. But a delinquent can always refuse to take help of defence assistance and conduct the case himself. Similarly, management witnesses can depose before the inquiry officer of their own without the help of any presenting officer. An inquiry officer can always ask all relevant questions to the witnesses of both sides in order to know the truth. The Tribunal wrongly concluded that asking of questions by the inquiry officer was contrary to the principles of natural justice. It is now settled law that principles of natural justice cannot be put into a straitjacket formulae. In each case, where it is alleged that there was violation of principles of natural justice, the employee has to show as to how such alleged violation prejudiced his defence. There is no allegations made in this case that any prejudice was caused to the respondent. In 1987 (Supp) SCC 518 Chandrama Tewari vs. Union of India(Through General Manager, Eastern Railways), Supreme Court held:
We have given our anxious consideration to the submissions made on behalf of the appellant and we have further considered the aforesaid authorities referred to by the learned counsel for the appellant but we do not find any merit in the appellant's submissions to justify interference with the High Court's judgment. Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a government servant before he is awarded major punishment of dismissal. It further contemplates that disciplinary enquiry must be held in accordance with the rules in a just and fair manner. The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if its is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the orders. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him. On a careful consideration of the authorities cited on behalf of the appellant, we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry would be vitiated only if the non supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer. (para 4) (Emphasis supplied).
64. As per the law laid down by the Honble Apex Court in Union of India & Ors. vs. Upendra Singh: (1994) 3 SCC 356, this Tribunal cannot undertake the process of re-appreciating the evidence adduced in a disciplinary enquiry, and cannot go into the correctness or the truth of the charges, by putting itself in the shoes of either the Enquiry Officer, or of the Disciplinary Authority, or of the Appellate Authority. In his book on Administrative Law, at page 339, Sir William Wade has summarized the powers of judicial review as follows:-
The doctrine that the powers must be exercised reasonably has to be reconciled with no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must, therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion..If the decision is within the confines of reasonableness, it is no part of the Courts function to look further into its merits.
65. In M/s Apparel Export Promotion Council Vs. A.K. Chopra : AIR 1999 SC 625, the Honble Apex Court has held that the adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court (and, by extrapolation, before this Tribunal), since the High Court (or this Tribunal) does not sit as an Appellate Authority over the factual findings recorded during the departmental proceedings, while exercising the power of judicial review. It was further laid down by the Honble Apex Court that the High Court cannot normally speaking substitute its own conclusion with regard to the guilt of the delinquent, for that of the departmental authorities. It was further laid down that judicial review is not directed against the decision of the administrative authorities, but is confined to the examination of the decision-making process only.
66. In the case of Chief Constable of the North Wales Police vs. Evans : (1982) 3 ALL E.R. 141, Lord Haltom observed as follows:-
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court.
67. In the case of Union of India vs. Sardar Bahadur : (1972) 4 SCC 618, it was held by the Honble Apex Court that it was not the function of the High court to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court (and, by extrapolation, before this Tribunal also).
68. In the case of Union of India vs. Parma Nanda (1989) 2 SCC 177, the Honble Apex Court held to the effect that The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that. the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority..
(Emphasis supplied)
69. In the case State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya : (2011) 4 SCC 584 the Honble Apex Court has once again summarized its ratio in various cases as follows:-
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: 1996 SCC (L&S) 80: (1996) 32 ATC 44, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463: 1997 SCC (L&S) 1806, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762: 1999 SCC (L&S) 1036, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416: 2000 SCC (L&S) 144.
(Emphasis supplied).
70. The same view has also been reiterated by the Honble Apex Court in the State Bank of India vs. Ram Lal Bhaskar & Anr. : 2012 (1) AISLJ 108 Full Bench judgment, stating in Para-8 as follows:-
8. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct.
(Emphasis supplied).
71. In the case of punishment meted out to a Conductor for non-issuance of tickets, U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal : JT 2006 (12) SC 412, the Honble Apex Court has held as follows :-
7. Short question for our consideration in the present case is whether the punishment which has been modified by the learned Single Judge is justified or not? The learned Single Judge found that the punishment awarded in the present case is disproportionate to the guilt of the delinquent. So far as, the guilt of the petitioner is concerned, in the domestic enquiry it has been found that the petitioner is guilty of not issuing tickets to the twenty passengers and the same finding of the domestic enquiry has been upheld by the Labour Court & High Court. The petitioner was a conductor and holding the position of trust. If incumbent like the petitioner starts misappropriating the money by not issuing a ticket and pocketing the money thereby causing loss to the Corporation then this is a serious misconduct. It is unfortunate that the petitioner was appointed in 1988 and in the first year of service he started indulging in practice then what can be expected from him in the future. If this is the state of affair in the first year of service and if such persons are allowed to let off to the light punishment then this will be a wrong signal to the other persons similarly situated. Therefore, in such cases the incumbent should be weeded out as fast as possible and same has been upheld by the Labour Court. We are firmly of the view that such instances should not be dealt with lightly so as to pollute the atmosphere in the Corporation and other co-workers.
8. Normally, courts do not substitute the punishment unless they are shockingly disproportionate. If the punishment is interfered or substituted lightly in the punishment in exercise of their extraordinary jurisdiction then it will amount to abuse of the process of court. If such kind of misconduct is dealt with lightly and courts start substituting the lighter punishment in exercising the jurisdiction under Article 226 of the Constitution then it will give a wrong signal in the Society. All the State Road Transport Corporations in .the country have gone in red because of the misconduct of such kind of incumbents, therefore, it is the time that misconduct should be dealt with iron hands and not leniently.
(Emphasis supplied)
9. Learned counsel for the appellant invited our attention to a decision of this Court in the case of Regional Manager, U.P.S.R.T.C., Etawah & Ors. v. Hoti Lal & Anr., reported in [2003] 3 SCC 605 wherein, this Court has very categorically held that a mere statement that it is disproportionate would not suffice to substitute a lighter punishment. This Court held as under:
"The court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper."
10. In view of the above observation made by this Court there remains nothing more to be added.
11. Learned counsel tor the respondent has invited attention to a decision of this Court in the case of U.P. S.R.T.C.. & Ors. v. Manesh Kumar Mishra & Ors., reported in [2000] 3 SCC 450. In that case this Court in peculiar facts took lenient view of the matter and upheld the order of the High Court whereby the punishment of dismissal was found to be shockingly disproportionate and justified in interfering with the quantum of punishment and directing reinstatement as against dismissal. It was also a case of U.P. State Road Transport Corporation. Be that as it may, each case has its own peculiar facts but in the present case we are satisfied that the petitioner has been found squarely guilty of misconduct of not issuing tickets to the passengers as found in the domestic enquiry. The High Court also found that the inquiry is correct and the petitioner has been rightly found to be guilty but the learned Single Judge has substituted a lighter punishment. (Emphasis supplied)
72. The Honble Delhi High Court also has in the case Ct. Arvind Kumar v. GNCT of Delhi & Ors., 2010 (175) DLT 511 held on 01.11.2010 as follows:
19. Suffice would it be to state that even at a criminal trial, deficiencies during investigation are rendered meaningless, if otherwise the prosecution is able to sustain the indictment. Thus, even at a domestic inquiry, deficiencies in the investigation have to be ignored. We clarify that unless it is established that the deficiencies pertained to matters of serious consequences and if evidence relatable thereto was brought on record the innocence of the accused could have surfaced, only then the deficiencies have to be used for the benefit of the defence. This principle of law at a criminal trial is based on the requirement of law that at a criminal trial the prosecution must bring on record not only evidence which points towards the guilt of the accused but even rules out the innocence.
20. We have noted herein above that the Tribunal has relied upon the decision of the Supreme Court in Ratan Singh's case (supra). In said case it was observed by the Supreme Court that at a domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act have no application and that all evidence which have a logical probative value for a prudent mind are admissible evidence and that there is no allergy to admitting hearsay evidence at a domestic inquiry provided it has reasonable nexus with the incident and is credible. The only caution is that one must be careful in evaluating such material and should not lead oneself into gullibly swallowing what is strictly speaking not rel evant and admissible evidence under the Indian Evidence Act.
21. Thus, we may say that fair-play is the basis at a domestic inquiry and only bias or surrender of independence of judgment vitiates the conclusions reached. The simple point would be whether there is enough material where from a logical and a prudent mind, dealing with the probative weight of evidence, conclude one way or the other.
73. In the instant case, we have to see as to whether there was some evidence on which the Enquiry Officer and the Disciplinary Authority could have relied upon, or there was no evidence at all. It is seen that we cannot but hold that there was some evidence for the departmental authorities to have proceeded against the applicant, and that it was not a case of no evidence at all. Therefore, the tests as laid down by the Honble Apex Court in State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya (supra), & State Bank of India vs. Ram Lal Bhaskar & Anr. (supra) are fully satisfied in the instant case.
74. It is also not a case of non-supply of any of the existing documents to the applicant, and, therefore, he cannot say that the enquiry proceedings had become bad, illegal, or had got vitiated on account of non-supply of any of the documents to him. As has been held by the Honble Apex Court in the above cited cases, and many others also, it is no more res integra that the adequacy and reliability of the evidence, as led before the domestic enquiry proceedings, is not to be deeply probed into by the Tribunal, and the case before the enquiry Officer is also not to be proved beyond reasonable doubt, like any criminal case. It is only the question of charges, or at least one charge, being proved on the touchstone of the principle of preponderance of probabilities, and some admissible evidence brought on record may be sufficient to prove the charge(s) against the delinquent employee. Further it has been clearly held by the Honble Apex Court that it is well settled law that the Enquiry Officer and Disciplinary Authority are the sole Judges of facts, and that this Tribunal cannot substitute its judgment regarding facts, and re-appraise the evidence as adduced during the proceedings of the disciplinary enquiry, and, therefore, due weightage has to be given by us to the findings arrived at by the Enquiry Officer and the Disciplinary Authority. The only issue which could have vitiated the disciplinary enquiry was a denial of an opportunity of a hearing to the delinquent employee, and thereby a violation of principles of natural justice at any stage, but we do not find it to have so happened in the instant case.
75. In the case of Delhi Transport Corporation vs. Shree Kumar and Another (supra), the Delhi High Court has held that if there was some independent evidence to link the delinquent Government official with the charged levelled against him, the Tribunal has to appreciate the issues in the right perspective. From the law as laid down by the Honble Apex Court in the case of M/s Apparel Export Promotion Council Vs. A.K. Chopra (supra), it is clear that this Tribunal cannot substitute its own conclusions with regard to the guilt of the delinquent, for that of the departmental authorities. As per the law as laid down by the Honble Apex Court in Union of India vs. Sardar Bahadur (supra), it is not a function of this Tribunal to review the material before the Disciplinary Authority or the Enquiry Officer, or to arrive at an independent finding on that material. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before this Tribunal, unless the Disciplinary Authorities have acted in an arbitrary and mala fide or utterly perverse manner, which the applicant before us has failed to prove. As held by the Honble Apex Court in State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao (supra), when the authority entrusted with the duty to hold the enquiry has accepted and allowed some evidence, which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of this Tribunal to review that evidence, and to arrive at an independent finding on that evidence, unless the departmental authorities have allowed themselves to be influenced by irrelevant considerations, or where the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the applicant has failed to prove any such arbitrariness and capriciousness on the part of the Departmental Authorities in conducting the departmental enquiry against him.
76. In the case of State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya (supra) also, the test was laid down to find out the perversity, as seeing as to whether a tribunal acting reasonably could have arrived at such a conclusion or finding, on the material on record. We do not find that the disciplinary enquiry conducted in this case has not passed the test as laid down in the above judgment of the Honble Apex Court.
77. In U.P. State Road Transport Corporation, Dehradun Vs. Suresh Pal (supra), it was held by the Honble Apex Court that instances of Corruption should not be dealt with lightly, so as to pollute the atmosphere and encourage other co-workers to commit similar mischief. In that judgment itself, the case in Regional Manager, U.P.S.R.T.C., Etawah & Ors. v. Hoti Lal & Anr. (supra) was cited, in which it was held by the Honble Apex Court that it is not only the amount involved, but the mental set-up, the type of duty performed, and similar relevant circumstances, which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust, where honesty and integrity are inbuilt requirements of his functioning, it would not be proper to deal with the matter leniently, and misconduct in such cases has to be dealt with iron hands. The Honble Apex Court had further held that where the person deals with public money, and was engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must, and unexceptionable.
78. We find that the applicant before us was indeed in a position of trust, where honesty and integrity were inbuilt requirements of his functioning, and therefore, as held by the Honble Apex Court, it would not be proper to deal with the case of the applicant leniently, and his misconduct has to be dealt with iron hands, since he was dealing with public money, and was engaged in certifying the correctness of financial transactions, while acting in a fiduciary capacity, and the highest degree of integrity and trustworthiness was expected from him, which the applicant has obviously failed to display.
79. Further, it has been held by the Honble Apex Court in the case of Biswa Ranjan Sahoo & Ors. vs. Sushanta Kumar Dinda & Ors.: AIR 1996 SC 2552, that judicial review is normally not concerned with correctness of the decisions, but if the decision making process is held in such unusual or suspect circumstances which so warranted such an interference, the decision itself will form the subject matter of consideration. To our mind, there appear to have been no such unusual or suspect circumstances, other than those created by the applicant himself, on account of which it can be said that the process of disciplinary enquiry had been affected and vitiated in any manner whatsoever, due to non-production of witnesses for authentication of the documents, since the applicant had himself had created/authored all the documents which were produced against him as evidence in the disciplinary enquiry.
80. Therefore, when a set of documents has been proved, both under the Customs Act, 1962, and under the Central Excise Act, 1944, to have been created or authored, or manufactured, in order to defraud the exchequer, and to create bogus claims of eligibility of Duty Drawback of Rs.1.04 crores in favour of 5 firms, which were either not in existence at all, or, were not carrying out the manufacturing activity of readymade garments at all, and did not even have the machinery for manufacture of readymade garments at all, and when it is proven that the exchequer, and the Consolidated Fund of India, had been cheated on this account of the Duty Drawback of nearly Rs. 1.04 crores, by the applicant himself having procured readymade clothes from the local markets, and supplying them as proof of the items which he had certified to have seen to have been manufactured and stuffed in the 24 containers, which has not been denied as being untruth, and when the applicant has at no stage categorically denied having been the author, and the signatory upon the fraudulent documents, which created a bogus record of over-invoiced exports, in which rags and other useless clothes were shown to be readymade garments, stitched by the 5 concerned firms, it does not appear to our mind that this evidence or fact, which had been proved, or has to be taken to be proved under Section-36A of the Central Excise Act, or Section 108 of the Customs Act, required to be once again proved before the Enquiry Officer, when the applicant himself was the author of those documents, and never denied their veracity during the disciplinary proceedings. The applicant, therefore, cannot now be allowed to plead that during the disciplinary enquiry conducted, the respondents should have brought independent witnesses to prove the authenticity of those documents, when he himself was the author and creator of the documents, and was available throughout, during the disciplinary enquiry, and could not disprove that he was not a party to the creation of such bogus certificates of the exports, which were over-invoiced in order to defraud the Nation.
81. We see that a Concurrent Bench of this Tribunal, consisting of the then Chairman of the Tribunal Honble Mr. Justice V.K. Bali, and the then Vice-Chairman Honble Mr. L.K. Joshi, had in its order in OA No.1690/2007 on 19.11.2008, not accepted the arguments of the counsel for the respondents that the statement recorded under Section-108 of the Customs Act could be produced in the disciplinary enquiry, without examining the witnesses to prove the authenticity of the documents. But, in the instant case, we find that the facts are totally different. In this case when the statement relied upon during the enquiry was made by the delinquent official himself, and the documents relied upon were also created by the applicant himself, which he did not deny, it did not require to be proven by any independent witnesses other than the applicant delinquent official himself. Therefore, we are of the view that the applicant cannot be allowed to claim any protection from the judgment of the Concurrent Bench in OA No.1690/2007 dated 19.11.2008, since the facts of the two cases are not on all fours with each other.
82. We also see that the cited case of Roop Singh Negi (supra) would also not inure any benefit to the applicant before us, because in Para-23 of the said Apex Court judgment, it has been clearly mentioned that a decision regarding the guilt of a delinquent official must be made on the basis of some evidence, which is legally permissible. Therefore, when once the applicant was confronted with some evidence, which was fully admissible as proper and sufficient evidence in all judicial and quasi-judicial proceedings under the provisions of Section-36A of the Central Excise Act, 1944, read with provisions of Section 108 of the Customs Act, 1962, the applicant cannot be allowed to derive any benefit from the judgment in the case of Roop Singh Negi (supra). We would rather go by the Latin Maxim Lex non requirit verificari quod apparet curiae- that the law does not require that to be proved which is apparent to the Court.
83. In the case of Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors., (2012) 8 SCC 417, the Honble Apex Court has upheld the principle behind the Latin Maxim Jura publica anteferenda privatis juribus- meaning that public rights are to be preferred to private rights. In that very judgment, the Honble Apex Court has also upheld the Maxim Lex Citius tolerare vult privatum damnum quam publicum malum that the law would rather tolerate a private injury than a public evil. It has also, certainly not for the first time, but perhaps most firmly ever, recognized in that judgment Jura fiscalia, the rights of the exchequer, and has upheld them as being superior to the jura personarum, the rights of individual persons.
84. The applicant had, at one stage of enquiry proceedings, pleaded that he was not only the party involved in the whole process of fabrication of such fraudulent documents of over-pricing of the exported rags, and showing them to be goods manufactured in India. From the enquiry proceedings records as produced by the applicant in the present O.A., we have not been able to discern the authorities concerned having proceeded departmentally against anybody else also in the chain of the people who were in the know of, or could have been in the know of such fraudulent documents being authored by the applicant before us, and still such fraudulent documents were duly processed and passed, enablish the parties concerned to draw duty draw-back of Rs.1.04 crores. The least we can expect, therefore, from the respondent-authorities is that they have to go deep into this matter, find out the names of all the persons concerned, of all the levels of seniority who could, or would, or ought to even known about the creation of such fraudulent documents at the hands of the applicant, and to start disciplinary proceedings against them also, as it is clear that the applicant alone could not have perpetrated such a fraud on the strength of his own official standing alone.
85. Therefore, we decline to interfere with the findings of the Disciplinary Authority and the Appellate Authority. The O.A., therefore, fails but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.