Central Administrative Tribunal - Delhi
Raj Kumar S/O Sh. Raghu Nath Singh vs Govt. Of Nct Of Delhi Through The ... on 24 September, 2009
Central Administrative Tribunal Principal Bench OA No.1527/2006 MA No.1856/2009 New Delhi this the 24th day of September, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Ramesh Chandra Panda, Member (A) Raj Kumar S/o Sh. Raghu Nath Singh, R/o H. No.51, Village Nithari, P.O. Nangloi, New Delhi. -Applicant (By Advocate Shri S.C. Luthra) -Versus- 1. Govt. of NCT of Delhi through the Principal Secretary (Home), Govt. of NCT of Delhi, Delhi Sachivalaya, New Delhi-110002. 2. The Director General (Prisons), Prisons Head Quarters, Near Lajwanti Chowk, New Delhi-110064. -Respondents (By Advocate Shri Vijay Pandita) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicant, an Assistant Superintendent in Central Jail pursuant upon a sting operation carried out by Aaj Tak network after dispensation of enquiry, was dismissed from service under Article 311 (2) (b) of the Constitution of India as well as under Rule 19 of the CCS (CCA) Rules, 1965 by an order dated 27.7.2005. Also assailed is an order passed in appeal on 21.12.2005, whereby the penalty has been upheld.
2. A Division Bench of the Tribunal in OA No.778/2006 in the matter of R.D. Bohet v. Lt. Governor of Delhi & others, decided on 24.11.2006, set aside the order in an identically circumstanced officer of the District Jail. However, later on several decisions of the Coordinate Bench in OA No.2884/2005 and OA No.2897/2005 etc. took a contrary view. As a result thereof, a Full Bench was constituted and an order passed on 13.7.2007, whereby the request of the applicant to tag the matter with the Full Bench, it was not felt expedient to do so. However, the matter was directed to be listed after the decision of the Full Bench. The Full Bench on 31.8.2009 after meticulously dealing with the issue of dispensation with the enquiry without giving an opportunity to the concerned, in the wake of principles of natural justice and laid down departmental rules came to rely upon the decision of the Apex Court in Criminal Appeal No.1393 and 1451 of 2008 decided on 29.7.2009 in the matter of R.K. Anand & Another v. Registrar, Delhi High Court and disposed of the OAs with the following observations:
29. We may refer to a recent decision of the Honble Supreme Court in R. K. Anand (supra), on which both parties have placed strong reliance. A well known English language news channel called NDTV telecast a programme on May 30, 2007 in which one Sunil Kulkarni was shown meeting with I.U.Khan, Special Public Prosecutor, and R.K.Anand, senior defence counsel, and two others, and negotiating for his sell out in favour of the defence for a very high price. According to NDTV, the programme was based on a clandestine operation carried out by means of a concealed camera with Kulkarni acting as a mole. What appeared in the telecast was outrageous and tended to confirm the cynical but widely held belief that in this country the rich and the mighty enjoyed some kind of corrupt and extra-constitutional immunity that put them beyond the reach of the criminal justice system. Shocked by the programme, the Delhi High Court suo moto initiated criminal proceedings for contempt against R.K.Anand, I.U.Khan and Bhagwan Sharma, an associate of Anand. Notice was issued to those against whom criminal proceedings for contempt were initiated. They were given full opportunity to defend themselves. According to NDTV, in all these operations a total of five microchips were used. Four out of those five microchips were available with them in completely untouched and unaltered condition, and only one chip was reformatted after its contents were transferred onto a CD. When the High Court took suo moto notice of the matter, it directed the Registrar to collect all materials that may be available in respect of the telecast including copies of CDs/Video and transcript and submit the same for consideration within ten days. The Court also directed NDTV to preserve the original material including the CDs/Video pertaining to the aforesaid sting operation, and as mentioned above, four out of five microchips were available and were taken into possession. The Court recorded statement of the counsel appearing for NDTV that its order had been fully complied with. The Court required a further affidavit regarding the telecast based on the sting operation, and accordingly directed NDTV to file an affidavit concerning the sting operation from the stage it was conceived and the attendant circumstances, details of the recording done, i.e., the time and place etc. and other relevant circumstances. In compliance of the aforesaid directions, Poonam Agarwal, programme incharge, NDTV, filed an affidavit as required. On the material that came before the Court, prima facie action for contempt was deemed appropriate, and, therefore, notices were issued. Registry was directed to supply copies of the order passed by the Court dated 7.8.2007, affidavit of Ms. Poonam Agarwal dated 23.7.2007 together with annexures including the four copies of CDs filed along with the affidavit, copy of the corrected transcripts filed on 6.8.2007, and copies of 6 CDs, including one edited and five unedited, containing the original footage which were produced on 6.6.2007. NDTV was also asked to make available to the Registry sufficient number of copies of the CDs and transcripts, which the Registry had to supply to the notices. The contemnors were given full fledged hearing, their replies obtained and they were heard by adhering to all principles of natural justice. The contemnors were held guilty by the High Court, and, but for one contemnor, the order of the High Court was upheld by the Supreme Court. Whereas, counsel representing the respondents would rely upon this judgment to say that sting operations can be relied upon to return a finding of guilt, the counsel representing the applicants, without joining any issue on the contention of the learned counsel as noted above, would, however, state that to place reliance upon sting operations emanating from CDs, the first and the foremost requirement is to find out the authenticity of the material recorded in the CD, and further that before returning a finding of guilt, the concerned person has to be heard. Whereas, the counsel representing the respondents may be right to state that sting operations can be relied upon to return a finding of guilt, counsel for the applicants is also equally right to contend that the verdict of guilt cannot be returned unless a finding be given with regard to authenticity of the recorded version of the CD and a proper opportunity having been granted to the accused or the delinquent, as the case may be. In the present case, we find that there is no finding returned by the concerned authorities that the CD that they had watched was genuine and there was no scope of it being tampered, altered or morphed. No material has been placed on records of the present case as well from where such a finding can be returned. No opportunity whatsoever has been given to the employees to prove that the CD produced by the authorities was a made-up affair simply with a view to gain popularity by the news channel Aaj Tak. We are not commenting anything with regard to genuineness of the CDs produced before the authorities, as that is a matter that shall have to be decided by the concerned authorities. All that we are saying is that on the basis of unedited and edited versions of CDs produced before the authorities and without there being a finding with regard to its genuineness, no finding of availability of overwhelming evidence against the employees could be returned. Having said so, we may still refer to some salient features of the case decided by the Honble Supreme Court. Cross examination of Poonam Agarwal was declined, but while doing so the High Court had observed that what transpired between R. K. Anand and Kulmarni in the sting meetings was there on the microchips and the CDs, copied from those chips, for anyone to see and no statement by Poonam Agarwal in his cross examination would alter that even slightly. The High Court also recorded the finding that the microchips were not subjected to any tampering etc. and, therefore, rejected the petition for proceeding against NDTV for perjury. A firm finding of fact thus came to be recorded that what transpired between Anand and Kulmarni in the sting meetings was there on the microchips which were genuine and not subjected to any tampering etc. The High Court had spent a full day viewing all the sting recordings, the recording of the programmes telecast by NDTV on May 30, 2007 and the eight-minute CD prepared by R. K. Anand. Present at the viewing were all the counsel as also R. K. Anand. The transcription of the talk between Kulkarni and Anand and others was audible and absolutely clear. The same was not even in dispute. The same has been reproduced in the judgment and clearly makes out a case constituting contempt against R. K. Anand and I. U. Khan. The contention raised on behalf of the appellant before the Honble Supreme Court that a proceeding under Contempt of Courts Act was quasi judicial in nature and it demanded the same standard of proof as required in a criminal trial to hold a person guilty of criminal contempt, was accepted by observing that there cannot be any disagreement with the proposition advanced by the appellant. It was, however, further noted that if the sting recordings are true and correct, no more evidence is required to see that R. K. Anand was trying to suborn a witness. It is significant to note that one of the appellants before the Honble Supreme Court was let off. The reason therefor was that the transcript of the sting recording submitted to the Court by the TV channel was confined only to the exchange between I.U.Khan and Kulkarni, and that in the absence of full transcript it became difficult and cumbersome to see what transpired between Kulkarni and Deepak Verma immediately before and after the meeting with their subject. In view of the Honble Supreme Court, that part of the recording was also highly relevant and important for judging the true import of the exchange that took place between Kulkarni and Khan. The salient features of the case as referred to above, have no parity with the facts of the case in hand. As mentioned above, there is no proof of authenticity of the edited and unedited CDs. No such finding was returned. No comparison with the original chip was done. The transcription, even as relied upon by the respondents and mentioned in the impugned orders, does not make any sense. It is not possible to make out from the said transcription as to whether the employees had demanded money, and if so, for what purpose. In some of the cases, there is no transcription of the dialogue between the employees and those who conducted the sting operation. The employees were given no opportunity to defend themselves. Even the edited and unedited versions of the CDs were not supplied to them. Insofar as, the contention of the learned counsel representing the respondents that the applicants had taken no action against the TV channel Aaj Tak by not filing any defamation or damages proceedings is concerned, we are of the view that no parallel can be drawn from the facts as available before the Honble High Court and Supreme Court in the case of R. K. Anand with the facts of the present case. The contemnors before the Court were highly established lawyers knowing their rights under law. Even if they had not proceeded against the TV channel NDTV, a presumption of guilt may arise because of their conduct. The same, however, cannot be said with regard to the employees whose only anxiety would be to save their jobs. They have no financial resources nor expertise in law, as the contemnors before the Honble High Court and Supreme Court may have had. Further, the conduct of the contemnors came to be commented in the context of the proof or evidence available against them. We have already mentioned that the conduct of a person alone may not be a sole determining factor in returning a finding of guilt, be it a criminal case or a departmental proceeding. The same has to be seen and assessed in the context of evidence available. Before we may part with this aspect of the case, we may only mention that one of the persons who carried out the sting operation in Tihar Jail happened to be Ravi Sharma, who was himself an under trial prisoner in a murder case, and had remained in Tihar Jail for some time.
30. In view of the discussion made above, whereas we approve the view taken by the Division Bench of this Tribunal in OA No.778/2006 for some reasons which may be the same and for some reasons which may be in addition to the view taken by the Division Bench, we do not approve and thus overrule the view taken by the co-ordinate Bench of this Tribunal in OA Nos.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005.
31. All these Applications are accordingly allowed. Impugned orders passed by the concerned authorities, be it the disciplinary or the appellate authorities, are set aside and quashed. The respondents would be, however, at liberty to proceed against the applicants departmentally. We are conscious that there can be only zero tolerance for corruption, but before a person is thrown away by such a stigma which may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure. While, however, setting aside the orders, as mentioned above, we pass no orders of reinstatement of the employees/applicants. It may be recalled that before the orders terminating services of the applicants were passed, they were under suspension. They would thus remain under suspension and may be, at the most, entitled to subsistence allowance from the date they were dismissed. It will be exclusively up to the authorities to continue their suspension during the pendency of departmental enquiry against them. Considering the nature of the case, we direct the authorities to conduct the enquiry on day-to-day basis and pass final orders, insofar as, at least the disciplinary authority is concerned, as expeditiously as possible and preferably within a period of six months from today. If the employees may not cooperate, then for reasons to be recorded the respondents may even proceed ex parte against them, or seek orders on that behalf from this Tribunal. In view of the peculiar facts and circumstances of this case, costs of this litigation are made easy.
3. In the light of the above, learned counsel of applicant states that his case on all fours is covered by the ratio of the Full Bench, which is binding.
4. On the other hand, learned counsel of respondents, vehemently opposed the contentions and also opposed the MA on the ground that the benefit of decision has not been sought here. However, Shri Vijay Pandita states that applicant has been rightly punished after dispensation of enquiry, which was not found to be reasonably practicable in the circumstances.
5. We have carefully considered the rival contentions of the parties and perused the material on record.
6. The objection put-forth regarding no prayer for claiming the benefit of the decision is liable to be rejected, as the order passed by the Bench on 13.7.2007subjected the outcome of this OA with that of the decision in Full Bench. As the Full Bench has rightly pointed out, to which we respectfully agree and binding on us, that such a procedure adopted is not in accordance with law, OA is allowed. Impugned order is set aside. Applicant, who was under suspension, would remain under deemed suspension and entitled to subsistence allowance from the date of dismissal. However, if so advised, respondents are at liberty to hold disciplinary proceedings on day-to-day basis and pass final orders as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order. No costs.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
San.