Mahesh Ram v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/28/2023 Mahesh Ram Vs.

The Union of India and others Mr. Gopala Binnu Kumar ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents September 19, 2023 [SR] Item No.4 The seminal point involved in the instant writ petition is founded upon the interpretation of the judgment and order dated 12.04.2021 passed by the Central Administrative Tribunal in OA/189/2018 by which the matter was remanded to the Disciplinary Authority to apply his mind on the facts, evidence and the manner in which the allegation should be proved at least on the basis of preponderance of probability to arrive on the guilt of the writ petitioner.

It was further observed that while discharging such onerous duty cast upon them in terms of the order, the Disciplinary Authority shall keep in mind that without corroboration by the independent witnesses, the applicant cannot be proved guilty of demanding or accepting bribe money and mere recovery of the tainted note/currency is not sufficient to prove the charge leveled against the writ petitioner. The narration of facts is required to be adumbrated, before we proceed to decide the writ petition on the point raised before us as indicated in the preceding paragraph of the judgment.

The Disciplinary Proceeding was initiated against the petitioner, who was posted as a Assistant Sub Inspector, allegedly caught red handed while accepting the bribe by a trap team. The preliminary enquiry was conducted and ultimately an Inquiry Office was appointed, who recorded the evidence of the several witnesses and ultimately submitted the report holding that the writ petitioner is guilty of the

charges leveled against him as depicted in the article of charges. Simultaneously FIR was also lodged against the petitioner which culminated into an order of acquittal as the prosecution could not prove the case against the petitioner. Since both the proceedings can run simultaneously as the consideration require therein are distinct separate and different, the disciplinary proceeding continued and the Disciplinary Authority accepted the enquiry report and also did not find any cogent explanation offered by the petitioner on the second show cause issued upon him and imposed the major penalty by dismissing him from service. The said order was assailed before the Appellate Authority but the petitioner could not emerged successful therefrom as the appeal was dismissed meaning thereby the order of the Disciplinary Authority was affirmed. The petitioner challenged the order of the Disciplinary Authority as well as the Appellate Authority before the Tribunal in OA/189/2018.

Several issues were raised before the Tribunal including the one that mere recovery of the tainted money without any further corroboration as to the demand and acceptance thereof is not sufficient to held a person guilty of such serious offence. The petitioner further took a point that there was no application of mind by the Disciplinary Authority as well as the Appellate Authority as they proceeded on the ipse dixit of the enquiry report and, therefore, the aforesaid act is contrary to the judgment of the Supreme Court rendered in the case of the Chairman, Life Insurance Corporation of India and others vs. A. Masilamani reported in (2013) 6 SCC 530.

A further plea was taken that no independent witnesses have been examined to corroborate the charges leveled against the writ petitioner and, therefore, the authorities could not arrived at the decision that the charges have been proved.

On the backdrop of the aforesaid submission having advanced before the Tribunal and on the judgment rendered by the different Courts including the Supreme Court having noticed, the Tribunal quashed the penalty order as well as the Appellate Order and remanded the matter to the authority in the following:- "In view of the forgoing enumerations and discussions, we feel it appropriate to quash the penalty order as well as Appellate Order and remand the matter back to the Disciplinary Authority to apply his mind on the facts,

evidence and the manner in which the allegation should be proved at least on the basis of preponderance of probability, to arrive on the guilty of the applicant and, while doing so, the Disciplinary Authority should keep in mind that without corroboration by the independent witnesses, the applicant cannot be proved guilty of "demanding" and "accepting" bribe money and mere recovery of tainted note/currency cannot be sufficient to prove the charge leveled against the applicant. Ordered accordingly."

Apropos the aforesaid direction passed by the Tribunal, the Disciplinary Authority reopened the proceeding by appointing Inquiry Officer and summoning the so called independent witnesses and upon recording the same, a fresh inquiry report was submitted holding the petitioner guilty of charges.

Further recourses as available under the statute were exhausted and ultimately the matter reached to the Tribunal. By the impugned order, the Tribunal declined to interfere with the ultimate order passed by the Disciplinary Authority and did not accept the contention of the petitioner that the authorities have misconstrued and misread the order of the Tribunal which never suggest a de novo or in other words reopening the disciplinary proceeding by appointing a fresh Inquiry Officer, Presenting Officer and calling so called independent witnesses.

The Tribunal did not accept the aforesaid contention as the petitioner being an officer in a disciplined organization is not supposed to act or behave in such manner which would tarnish the reputation of such organization. The same point is raised before us and the pivotal issue raised in this writ petition is whether the Tribunal while disposing of the earlier tribunal application intended the reopening of the disciplinary proceedings and adoptation of the recourses as taken by the authorities. We have succinctly narrated the excerpts from the judgment and order dated 12th April, 2021 passed in OA/189/2018 to understand its real purport in order to sustain the course of action adopted by the Administration in calling the so called independent witnesses on appointing the Inquiry Officer and the Presenting Officer. In no longer re integra that the judgment pronounced by the Court cannot be read as statute. Furthermore, in order to understand the ultimate decision taken by the Court or Tribunal, it would not be safe to squeeze the consideration

on the penultimate paragraph of the said judgment but has to be read in conjunction with the findings returned in the preceding paragraph.

The ultimate order has to be understood in the parlance of context in which it is used and should not be segregated and/or isolated as it may sometime create ambiguity and/or confusion.

In paragraph 1 of the said judgment and order dated 12th April, 2021, the Tribunal succinctly jotted down the facts emerged from the pleadings as well as the respective submissions of the parties in the following:- "11. We discern the following:

(i) Disciplinary Authority having already rejected the prayer of stay of proceedings, pending criminal trial, was free to proceed in departmental proceedings. But that did not allow the Disciplinary Authority to conclude the proceedings even without examining the independent witnesses of the Trap Team that lead to initiation of the departmental proceedings."

It is discerned from the aforesaid observations recorded by the Tribunal that the Disciplinary Authority proceeded to conclude the proceedings without examining the independent witnesses of the trap team and, therefore, such non-examination is fatal vitiating the entire disciplinary proceedings.

The judgment of the Apex Court in the case of Moni Shankar vs. Union of India and others reported in 2009 (3) SCC 484 was relied upon that the scope of judicial intervention is very limited in relation to a disciplinary proceedings to which the Evidence Act does not apply with the strict rigidity but is founded upon the principle of natural justice.

The judicial intervention can further be made in the event the finding is arrived on an evidence which is nonexistent or no prudent man would arrived at such conclusions on the basis of evidence available on the record. The Tribunal also found that the formation of an independent opinion by the statutory authority is sine quo non and cannot be whittled down by the statutory authorities. Ultimately it was observed by the Tribunal that mere recovery of the tainted money is not sufficient unless cogent evidence with regard to demand and the acceptance are also proved.

In the aforesaid perspective what we culled out from the finding recorded in the said judgment and order, the Tribunal remitted the matter to the Disciplinary Authority to take a fresh decision. The ultimate order passed by the Tribunal would evince that the entire proceeding was not quashed but the penalty order which is affirmed by the Appellate Authority was quashed and set aside and the matter was remitted to the disciplinary authority to take a decision by applying its mind on the facts, evidence and the manner in which such charges are to be proved.

There is no fetter on the part of the Court while setting aside the order passed by the Disciplinary Authority in directing to proceeding to be initiated de novo; equally there is no fetter on the part of the Court to direct the Disciplinary Authority to continue with the proceeding from the point where such proceeding was vitiated. In all such cases it depends upon the nature of the directions passed by the Court and incase of an unambiguous expressions neither any party nor the Court faces any difficulty in understanding the same but the difficulty often arises when the language used in the order creates a confusion and susceptible to be interpreted in more than one ways.

This is what has happened in the instant case and it is contended by the learned advocate for the Administration that the moment the matter is remitted back to the authorities it presupposes that the same has to be proceeded de novo and in fact it has been done in the instant case and placed reliance upon the judgment in the case of Chairman, LIC (supra).

In the above noted decision, a plea was taken that in course of inquiry, certain witnesses have not been examined in presence of the delinquent respondent and therefore no proper opportunity was given to cross-examine such witnesses. A further plea was taken by the delinquent that the documents relied upon by the Inquiry Officer were not properly proved by any witness and therefore, the findings of the Inquiry Officer stood vitiated for non compliance of mandatory requirement of the regulations. Regulation 46 (2) which is quoted in paragraph 12 of the said judgment indicates that the Appellate Authority while imposing any penalty shall consider whether procedure prescribed in this regulations have been duly followed and/or complied with as the noncompliance may result in failure of justice. What can be seen from the aforesaid provisions that a duty was cast upon the Appellate Authority to return the independent

findings and not to give a seal to the order of the Disciplinary Authority.

On the conspectus of the aforesaid facts, the Apex Court held that the word "consider" is of the great significance and leads no ambiguity that it requires a conscious application of mind in following.

"19. The word "consider" is of great significance. The dictionary meaning of the same is. "to think over", "to regards as" or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order."

Ultimately the Apex Court remitted the matter to the Disciplinary Authority to take a fresh decision bearing in mind the gravity of the charges involved and the Apex Court left it open to the Disciplinary Authority to take a decision as to whether a de novo inquiry is required from the stage when the inquiry proceeding becomes vitiated.

In the event, there is a clarity in the ultimate decision and no obscurity can be seen but the problem becomes difficult when the language is somewhat abstruse or does not inexorably leads to clarity of thoughts. The moment the Tribunal interfered with the penalty order obviously taking into account the deposition of the independent witnesses recorded in the criminal proceeding and remitted the matter to the Disciplinary Authority to apply its mind on the facts, evidences and the manner in which the allegation is required to be proved, it can be reasonably inferred that the Tribunal wanted the Disciplinary Authority to apply its conscious mind and record its independent finding on the basis of material available on the record.

Had it been the intentions of the Tribunal to reopen the entire disciplinary proceeding, there was no fetter on its part to record the same with clarity. The expression "to arrive on the guilty of the applicant" has to be understood in the perspective of the facts, evidence and the manner in which the allegations are required to be proved already on

record otherwise the further observation "while doing so, the Disciplinary Authority shall keep in mind that without corroboration by the independent witness, the applicant cannot be proved guilty of demanding or accepting bribe money" has to be rendered redundant and/or cautious. The Tribunal was conscious that mere recovery of the tainted currency is not sufficient to prove the charges of bribery unless there is a convincing evidence on the demand and the acceptance as held by the Apex Court in C.M. Girish Babu vs. CBI reported in (2009) 3 SCC 779. Furthermore, the interference was made to a penalty order and the appellate order not touching upon the other proceedings as the Tribunal was of the view that the Disciplinary Authority has not returned the independent finding on the basis of the materials placed before it and therefore, in our view the ultimate direction passed by the Tribunal has to be understood in such perspective.

We, thus, do not countenance the stand of the Administration that a fresh evidence is required to be taken nor we could concur with the findings of the Tribunal in this regard. The order of the Disciplinary Authority is hereby quashed and set aside.

The impugned judgment and order of the Tribunal is hereby quashed and set aside.

The matter is remitted to the Disciplinary Authority to take informed decisions on the imposition of the penalty against the petitioner on the basis of facts, evidence and the manner in which such charges have been proved and it goes without saying that the Disciplinary Authority is free to take a decision thereupon, irrespective of fact that this Court has interfered with the order, by recording proper reasons. It is expected that the entire exercise shall be completed within three months from the date of communication of this order. Accordingly, WP.CT/28/2023 is disposed of.

No order as to costs.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )