1. The applicant filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a) Quash order dated 30-07-2017 vide Ref. No.F.II (63)/CC/CST/2005/348-357 issued by the office of Commissioner VAT, Department of Trade and Taxes, Vyapar Bahwan, (VIG), IP Estate, New Delhi-110002 thereby terminating service of the applicant.
b) Quash order dated 25-08-2017 passed by the Respondent no.2 against the appeal filed by the applicant vide Ref. No.F 11(63)/CC/CST/2005/Pt. File/1376-86.
c) Direct the respondents to reinstate the services of applicant with all consequential benefits which he was enjoining the day when he was removed/suspended from the services.
d) Any other relief, which this Hon'ble Tribunal may deem fit and proper, in the facts and circumstances narrated hereinabove, may also be awarded to the applicant."
2. The case, in brief, is that the applicant was appointed in the Department of Sales Tax, GNCTD on 15.12.2000. He was transferred and posted in the Department of Sales Tax, Bikri Kar Bhawan, New Delhi vide order dated 02.07.2003 as Stenographer at Sales Tax Department, Bikri Kar Bhawan, New Delhi in P.R. Branch at Addl. Commissioner III. On 28.03.2005 and 09.03.2005, the Aaj Tak Channel telecasted recordings tough its reporter Sh. Dheeraj Pundhir who allegedly reportedly containing video recordings of acceptance of bribe of money by the officials of Sales Tax Department at Bikari Bhawan, New Delhi with titled as "GHOOSE MEHAL" while applicant was performing his duty diligently, honestly and sincerely at another place which is P.R. Bach of Addl. Commissioner CST-II vide order no. F.VI/3/CST/2000/Estt/ dated 02.07.2003 instead of the place mentioned by the reporter and cameraman in alleged CD.
3. The Anti-Corruption Branch registered an F.I.R bearing no. 12/08 dated 09/03/2008 u/s 7,12,13 of P.O.C Act read with Section 120B IPC against all the persons shown in the reportedly telecasted recordings and applicant was also arrested by the Anti-Corruption Branch officials. On the basis of the telecast and registration of the FIR, the applicant was dismissed by the Respondent No. 3 without affording any opportunity to the applicant or conducting any enquiry in the matter. The applicant filed an appeal before the Respondent No. 2 against his arbitrary and illegal dismissal. However, the appeal was dismissed.
4. Aggrieved by the aforesaid, the applicant moved O.A. No. 2556/2006 before this Tribunal challenging the termination order issued by Respondent No. 3 and affirmation of the same by Respondent No. 2. This Tribunal vide its judgment dated 31.08.2009 directed the department to remain the applicant under suspension and may be, at the most, entitled to subsistence allowance from the date they were dismissed. The respondents then approached the Hon'ble High Court of Delhi and Supreme Court against the said impugned orders/judgments. However, the appeal of the respondents was dismissed. On 09.03.2005, the applicant was placed under suspension vide Tribunal's order. In the year 2011, the applicant was again terminated from the services and thus he filed a Contempt Petition before this Tribunal vide CP No. 81/2011 in O.A. No. 2556/2006 and due to the effect of this CP Respondent No. 1 vide it's order dated 22.02.2011 placed again the applicant under suspension.
5. Respondent No. 3 initiated departmental proceeding by issuing Charge Memorandum dated 05.08.2011 under Rule-14 of the CCS (CCA) Rules, 1965 for imposition of major penalty. As per the charge memorandum, the following Article of Charge was framed against the applicant:
"Sh. Sanjay Dawar, while functioning as Steno in Ward - 71 in the erstwhile Sales Tax Department (Now Trade & Taxes Department) during the relevant period of posting committed gross misconduct in as much as he accepted illegal gratification offered by a bribe giver who approached him in office to seek favour from him. The transaction of offer and acceptance was secretly video-graphed and recorded by the New Channel "Aaj Tak and was also telecast which tarnished the image of Sales tax Department, Govt. of NCT of Delhi.
Thus, Sh. Sanjay Dawar, the then Steno, Ward-7 71 by the above mentioned deliberate act failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. Servant thereby violated Rule 3 of CCS (Conduct) Rules, 1964."
6. On denial of charges by the applicant, Respondent No. 3 appointed Ms. Manju Handa, Deputy Secretary, H & FW Department, GNCTD as the Inquiry Officer with direction to enquire into the charges framed against the applicant. The trial of the criminal case was commenced before the Special Judge (P.O.C.), ACB, Tis Hazari Court, Delhi the the Court vide its order dated 11.03.2015 discharged the applicant as well as all the other accused persons on grounds that the prosecution has failed to even remotely raise suspicion to put accused persons on trial. It was further held by the court that in view of the legal position regarding admissibility of electronic record, the CD and Video Cassette seized by the Investigating Officer with respect to the programme 'Ghoose Mehel' are totally inadmissible. It was also held by the court that the contents of the CDs and the Video Cassette and the transcript prepared on the basis of the said audio-video recording are totally inadmissible evidence on which no reliance can be placed. The court further observed that it is the Chip or Memory Card that should only be considered as "Primary Evidence" in such cases. In this case, primary evidences are not made available and secondary evidence has been thoroughly rejected. In this case, the said CD was sealed by the ACP, Anti-Corruption Branch and handed over to the Reporter of Aaj Tak for future purposes, instead of taking the same into the possession.
7. The Inquiry Officer duly appointed in case of the applicant enquired in this matter. After completing the inquiry and evaluating the evidence she concluded in her final report that the charges framed vide charge memo dated 05.08.2011 against the applicant have not been proved. The Respondent No. 3 disagreed from the findings of the Inquiry Officer's report and on 10.11.2016 vide his Disagreement Note communicated the same and gave liberty to the applicant to file his representation, if any, to the Disagreement Note within 15 days. Thereafter, the applicant filed his representation with reference to the Disagreement Note on 20.12.2016. Thereafter, on 03-03- 2017 the Respondent No. 3 vide order and (71)CC/CST/2005/128 imposed the penalty of "removal of service" which shall not be a disqualification from the further employment under the Govt. upon the applicant. Thereafter, the applicant filed an appeal before the Principal Secretary (Finance)/Respondent No. 2 against the said order of the Disciplinary Authority on 05.04.2017 under Rule 23 of CCS (CCA) Rules 1965 which was rejected by Respondent No. 2 without dealing with the submissions of the applicant in proper and judicious manner.
8. The respondents in their counter reply have refuted the claim made in the OA and contended that a memorandum dated 05.08.2011 was issued to the applicant under Rule 14 of CCS (CCA) Rules, 1965 and an enquiry against the applicant was held by an Enquiry Officer appointed by the competent authority, who submitted his report, which report is annexed by the applicant. The disciplinary authority disagreed with the finding of the enquiry officer and issued a disagreement note. The disciplinary authority passed an order dated 03.03.2017 imposing a punishment of removal of service. The appellate authority upon consideration of the appeal filed by the applicant has also, after giving personal hearing to the applicant, rejected the appeal upholding the punishment of removal of service passed by the disciplinary authority.
9. The learned counsel for the respondents contends that the evidence in disciplinary proceeding cases is based on the principle of preponderance of evidence and not on strict basis as is required under the criminal trial. It is also stated that there are catena of decisions of the Hon'ble Courts which have clearly held that the scope of evidence required in a disciplinary proceeding is not the same as that of a criminal trial and also that both disciplinary proceedings and criminal trials can go on side by side simultaneously. Both are mutually exclusive in that even if there is acquittal in criminal trial the disciplinary proceedings can go on and a decision taken thereon. It is also stated that in Govt. Service what is expected of a Govt. Servant is a conduct which in any manner does not violate the provision of Rule 3 of the Conduct Rules, in other words the employee is expected to be diligent, sincere, not open to any allurement from any party and his integrity has to be beyond doubt. It is further submitted that in the present case, the applicant has been found to be indulging in activities which violate Rule 3 of CCA Conducts Rules, 1965 as the integrity of the employee, the applicant was in doubt. It is further stated that in Govt. Service, a person whose integrity is doubtful cannot be retained in service.
10. The learned counsel for the applicant based on the OA and the rejoinder submits that the charge leveled in FIR bearing No. 12/05 dated 09.03.2005 under Section 7,12,13 of POC Act read with Sec-120B of IPC has already been nullified by discharging the applicant from the said case vide order dated 11.03.2015 passed by the Special Judge, Tis Hazari Court, Delhi at the stage of framing of charge. Reiterating the decision of the competent court, the learned counsel states that the Hon'ble Court specifically held in the said order that the prosecution has failed to even remotely raise suspicion to put accused persons on trial. It was further held that in view of the legal position regarding admissibility of electronic record, the CD and Video Cassette seized by the Investigating Officer with respect to the Program 'Ghoose Mehel' are totally inadmissible in the eye of law. It was also held that the contents of the CDs and the Video Cassette and the transcript prepared on the basis of the said audio-video recording are totally inadmissible in evidence on which no reliance can be placed. The court further observed that it is the Chip or Memory Card that should only be considered as "Primary Evidence" in such cases. In this case, primary evidences were not made available and secondary evidence has been thoroughly rejected by the Court. In this case, the said CD was sealed by the ACP, Anti- Corruption Branch and handed over to the Reporter of Aaj Tak for future purposes instead of taking into their possession. It is emphasized by the learned counsel that during the departmental inquiry neither the Reporter nor the Cameraman of Aaj Tak News Channel appeared to prove the veracity of the sting operation or the CDs relied upon by the prosecution. Hence, the order of removal from service is liable to be set-aside.
11. It is further submitted that the person who video- graphed and the alleged bribe giver were never examined in the present case and the senior officers who identified the applicant from alleged video footage are also not cross- examined nor they appeared before the officer enquiring the Investigation. They even did not filed their affidavits in the departmental proceedings by accepting that they identified the applicant in footages who accepting bribe from bribe giver in monetary benefits. Thus, all the allegations in the present submissions are wrong, false, incorrect and baseless hence denied as the applicant completely leave upon the mercy of the senior officers instead of law and provisions. The dismissal of the applicant from the Government service vide order dated 03.03.2017 is needed to be quashed. It is further submitted that the applicant in the instant case is heavily relying on the acquittal order dated 11.03.2015 passed by the Court of P.O.C. ACB, Tis Hazari whereby all of the accused who were caught in the sting operation were discharged. It is specifically denied that in case the applicant can be seen very clearly accepting the illegal monetary benefits from the bribe giver for which no satisfactory explanation have been ever given by him. Even his presence in the said video footage as well as her capacity to extend unauthorized and illegal benefits to traders has not been proved.
12. We have perused the pleadings on record and also heard Shri Deepak Saini, learned counsel for the applicant and Shri Amit Anand and Shri H.D. Sharma, learned counsel for the respondents.
13. The learned counsel for the applicant draws our attention to the judgments passed by this Tribunal in OA No. 444/2014 with OA No. 4302/2014 (Ranjit Kumar Chaudhary vs. Govt. of NCT of Delhi & Others with connected OA decided on 30.03.2022) wherein an identical case was considered and the Tribunal held as under :
"28. We also notice that the primary defence taken by the applicant is that the edited CD/chip is inadmissible in evidence. This issue has been decided by this Tribunal in Constable Sanjay Kumar Dubey (supra) holding that even in departmental proceedings, the general principles of the Evidence Act cannot be dispensed with and when the CD itself was not admissible as an evidence, mere tertiary evidence of a PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. Similarly, in the present case also, the alleged CD has neither been proved nor got compared with original CD/chip, therefore, the same cannot be taken as admissible evidence. Resultantly, holding the charge against the applicant as proved based on such a CD, in our view, is not tenable in the eyes of law. Even the Full Bench of this Tribunal, as stated above, was of the view that the genuineness of the video film would be the first test.
29. In view of the above discussion, we are of the considered opinion that the inquiry officer has proved the charge against the applicant on surmises and conjectures without there being any concrete and firm evidence. "
14. He also cites the subsequent judgments passed by this very Bench of the Tribunal in OA No. 503/2016 dated 01.05.2023 as under :-
"The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"8.1 To quash and set aside the disagreement note dated 25.8.2014, order dated 14.11.2014 whereby the extreme punishment i.e. dismissal from service is being imposed upon the applicant, order dated 15.12.2015 whereby the statutory appeal of the applicant has been rejected and to further direct the respondent that applicant be reinstated back in service forthwith with all consequential benefits including seniority & promotion and pay & allowances.
8.2 To quash and set aside the order of initiation of D.E. dated 05.08.2011 including Article of Charge and imputation of misconduct.
Or/ and
Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
2. Brief facts of the case are that the applicant was a Stenographer with the Government of National Capital Territory of Delhi (GNCTD). She was placed under suspension, vide order dated 09.03.2005 and dismissed w.e.f. 08.09.2006 in pursuance of a sting operation. She approached the Tribunal and her case was allowed and the said order of the Tribunal was further upheld by the Hon'ble Delhi High Court on 6.08.2010. In pursuance of directions of the Tribunal, the respondents passed order dated 31.08.2009 quashing the dismissal of the applicant with effect from 8.09.2006 and again placing her under suspension retrospectively with effect from 8.09.2006 itself. Vide order dated 5.08.2011, a departmental inquiry was initiated against the applicant under Rule 14 of the CCS (CCA) Rules 1965, on the following allegation:
"Smt. Satwant Kaur, while functioning as Stenographer, Ward-82, in the erstwhile Sales Tax Department (Now, Department of Trade & Taxes) during the relevant period of posting committed gross misconduct in as much as she accepted illegal gratification offered by a bribe giver who approached her in her office to seek favour from her. The transaction of offer and acceptance was secretly video-graphed and recorded by a News Channel 'Aaj Tax' and was also telecast which tarnished the image of Sales Tax Department, Government of NCT of Delhi.
Thus Smt. Satwant Kaur, the then Stenographer, Ward-82 by the above mentioned deliberate act failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. Servant thereby violated Rule 3 of CCS (Conduct) Rules, 1964."
3. The inquiry officer (IO) exonerated the applicant of the charges leveled in the inquiry by recording:
"Ms. Satwant Kaur, the then Steno, Ward-82 Sales Tax Deptt. was not in position to do any favour to any body being a stenographer and it is also not clear for what purpose and for what favour this amount was provided to her and what she gave to bribe giver in return. Hence, charge(s) leveled against Ms. Satwant Kuar, the then Steno, stands not proved."
4. The disciplinary authority (DA) expressed his disagreement vide note dated 25.08.2014, with the report of the inquiry as follows:
"And whereas I have gone through the entire inquiry report submitted by the Inquiry Officer as analysed and made assessment of evidence of the inquiry report.
Whereas on close perusal of the inquiry report made by Inquiry officer Smt. Rekha Rani Sharma Inquiry Officer/VATO9 (CRC)/Administrative officer (DHS), the following point are evident:-
1. Smt. Indira Bahal, the then STO Confidential Cell appeared as PW-4. She recognized the documents and contents therein of the exhibit P- 5. She stated that exhibit P-5 statement was recorded by officer of ACB, Anti-Corruption Branch, Delhi in the presence of Sh. Mohan Lal, the then Joint Commissioner (Sales Tax). She also stated that she had merely identified the officers/officials working in Sales Tax Deptt. and did not confirm anything about taking bribe/illegal gratification etc. She did not know them personally and identified them with the help of their colleagues and other officials. She also added that the original clip/video was not provided and the department take action on the basis of edited video footage only. She had clearly stated that she was not able to identify Ms. Satwant Kaur in exhibit P-18 (CD-X) and not her ward of posting. The statement is marked as S-1.
2. Sh. Yashpal Garg, the then DC Zone-VIII appeared as PW-1 in context of exhibit P-9 and recognized the signature on P-9. He further stated that the person giving money was not identifiable. The identification was made on the basis of the program telecast on television on the previous day and after discussion with some of the officers of zone. Regarding the confirmation of facts, whether the five (05) officers mentioned in the second para including the C.O. Ms. Satwant Kaur were shown accepting money or just figured in the news while reporting about others. He said, "The said report was submitted on the very following day of the telecast. Since the Vigilance Branch was trying to get a CD at that time. The subsequent confirmation may be available with the Vigilance Branch and the undersigned is not aware about it. The statement of PW-1 is marked as S-2.
3. Sh. R.K. Singh, the then ACP Anti-Corruption Branch appeared as PW-5 and P-13/1 respectively. He has stated, "I received a complaint from Sales Tax Department, GNCT Delhi that some of the officers/officials were show in AAJ TAK" channel under the title "GHOOS Mahal" telecast on 08.03.2005 taking bribe from someone while on duty. The complaint was registered vide FIR No. 12/2005 dated 09.03.2005. He further stated "the statement given by Smt. Indira Bahal, the then STO (CC), Sales Tax Department u/s Cr PC, 1973 and production and seizure memo of CD (Exhibit P-5 and Exhibit P-13/1 respectively) was given in my presence." He recognized his signature on the aforesaid statement. On further question whether there is original CD available on record, he stated that they have given me the original CD as told by the reporter. The statement is marked as S-7.
From the statements of above three witnesses as recorded by I.O., it is revealed that the charged officer was very well identified by the witnesses, however they do not know the charged officer personally and identified the charged officer through their colleagues.
Smt. Satwant Kaur, the then Stenographer, Ward-82, is one of the official, who was found involved in the TV sting operation secretly video- graphed news footage in News Channel 'Aaj Tax', telecast on 08.03.2005 and duly identified. It is therefore authentication of CD is beyond any doubt. The Charged Officer had taken money has been proved beyond doubt. The Inquiry Officer has not looked into the facts that money and indeed changed hand for which no apparent reasonable explanation has been given by the charged officer. The Charged Officer was a stenographer and is in a position to give information about orders being framed, movement of file etc. and the reasonable assumption is that the money was provided for the same. Therefore, as provided under sub rule (2) of Rule 15 of the CCS (CCA) Rules, 1965, I hold that the charges against the charged officer Smt. Satwant Kaur, the then Stenographer, Ward-82, proved beyond any doubt."
The applicant made a reply to the disagreement note. However, the DA passed an order on 14.11.2014 imposing the penalty of dismissal from service which was to be a disqualification for future employment under the Government. The Appellate Authority (AA) rejected the appeal of the applicant vide order dated 15.12.2015.
5. We have perused the pleadings on record and heard Shri Sachin Chauhan, learned counsel for the applicant and Shri Rohit Bhagat for Shri Saurabh Chadda, learned counsel for the respondents.
6. The learned counsel for the applicant has argued that Sh. Dhirendra Singh, Reporter, and Sh. Jalaj Kathuria, Cameraman, T.V. Today Network Ltd., who were added in the list of witnesses by issuing addendum dated 02.03.2012, as PW 11 & 12, and Sh. R.N. Singh (PW-8) were the only independent witnesses, who are said to have secretly video-graphed and recorded the alleged news item, which was the basis of the sole charge levelled against the applicant, and telecast with the caption "Ghoos Mahal" in the Aaj Tak News Channel on 08.03.2005. However, the respondents did not examine the said PWs in the inquiry, and non-examination of the said witnesses is stated to be fatal to the prosecution case and on this ground alone, the disciplinary proceedings initiated against the applicant are liable to be quashed.
7. Learned counsel for the applicant has also contended that neither in the memorandum of charge nor in the orders passed by the disciplinary/appellate authorities, following points have been considered-
• The alleged bribe giver has not been identified;
• The alleged favour which the applicant being Stenographer Grade-III could extend, has not been identified;
• The demand of bribe has not been proved, consequently the amount of alleged bribe money has not been specified;
• No amount of bribe has ever been recovered from the applicants;
• The denomination of the bribe money and quantum of bribe money has not either been specified or proved;
• The date on which the alleged demand/ acceptance of bribe took place has neither been specified nor proved; and
• The place where the alleged demand and acceptance of bribe took place has neither been specified nor proved.
Therefore, it has been contended that the charge of demand and acceptance of bribe levelled against the applicant is totally vague.
8. Besides the argument regarding the vagueness of charge, it is reiterated by the learned counsel that since findings of the IO are only based upon the unapproved/edited CD, which is not an admissible evidence, the present case is one of 'no evidence'. It is also submitted that during the entire proceedings, the respondents have not disclosed that the voice sample of the applicant had been sent to the CFSL for comparison with the voice in the CD telecast on Aaj Tak Channel. He further argues that a perusal of the CFSL report dated 09.02.2007, which was in possession of the respondents, would reveal that the voice could not be conclusively identified as that of the applicant.
9. The learned counsel has also brought on record an affidavit filed by Sh. Jalaj Srivastva, Commissioner (Trade & Taxes) before the Hon'ble Tribunal in the OA No. 2546 of 2006 (connected OA of applicant) as under:-
"He also stated that all the gadgets/instruments used for the sting operation "Ghoose Mahal" have been reused and as such News Channel does not have any record of the sting operation except the Video Cassette which is the true copy of the sting operation prepared by the above stated mechanical device.
The original chip of the said sting operation was not provided by the News Channel "Aaj Tak" to the investigation officer due to reasons as mentioned above."
The learned counsel rests his argument stating that these averments in the affidavit clearly bring out that original chip and original recording of the so called sting operation (raw footage) are not available with 'Aaj Tak' and thus the authenticity and genuinity of the CD cannot be checked scientifically. Hence the present CD is an inadmissible evidence and cannot be relied in giving any finding of guilt.
10. Mr. Rohit Bhagat, learned counsel for the respondents, on the other hand, in order to substantiate the fact of demand and acceptance of bribe, draws our attention to the statement of imputation of misconduct, which reads as under:-
"Ms. Satwant Kaur while functioning as Steno in Ward-82 of Salex Tax Department during the relevant period of posting committed gross misconduct in as much as she accepted illegal gratification offered to her by a bribe giver who approached her in her office to seek some favour. The transaction of offer and acceptance was secretly video-graphed by a News Channel 'Aaj Tak'. Thus, Ms. Satwant Kaur, the then Steno was caught unaware. Later, the episode was telecast on the News Channel 'Aaj Tak'.
On the 8th March, 2005 at about 9.30 P.M., a news item was telecast on the "Aaj Tak" News Channel with the caption "Ghoos Mahal". In the news clippings Ms. Satwant Kaur, the then Steno was shown negotiating and accepting money from the bribe giver by her left hand and then put the money in left side pocket of her sweater. The conversation between Ms. Satwant Kaur and the bribe giver was also recorded as under:
Satwant Kaur Bada nahin hai....bada nahin hai
Bribe giver Bada nahin hai
Satwant Kuar Bilkul nahin hai bada
Above said Video footage wherein Ms. Satwant Kaur, the then Steno was shown accepting bribe from bribe giver, proves that Ms. Satwant Kaur, the then Steno, had accepted money as bribe offered to her, to do some favour for her work.
As the telecast tarnished the image of the department and a video-graphic evidence against Ms. Satwant Kaur, the then Steno, prima facie indicated her involvement in accepting bribe, Ms. Satwant Kaur, the then Steno, was placed under suspension vide Office Order No.F.II(55)/CC/CST/04-05/175 dated 09.03.2005. In the said telecast, Ms. Satwant Kaur, then then Steno was identified by Sh. Yash Pal Garg, the then Dy. Commissioner (Zone-VIII), vide his report dated 09.03.2005. An FIR No. 12/2005 was registered against the said Ms. Satwant Kaur, the then Steno alongwith others under Section 7, 12 &13 of Prevention of Corruption Act, 1988 (49 of 1988) read with Section 120 B of the Indian Penal Code, at the Police Station, Anti Corruption Branch, GNCT of Delhi, Old Sectt. Delhi. Ms. Satwant Kaur, the then Steno was arrested on 27.02.06 in connection with the said FIR as per Arrest Report dated 27.02.2006 received from ACP, Anti Corruption Branch, GNCT of Delhi.
In the said FIR, Sh. Jai Bhagwan, the then Peon was arrested on 19.11.2005 alongwith others in the above said FIR as per letter No. 4547/OK(12/05)/ACB/ dated 14.05.2007 received from ACP, Anti Corruption Branch, GNCT of Delhi.
Smt. Indira Bahl, the then STO, Confidential Cell also indentified Ms. Satwant Kaur, the then Steno in her identification statement which was recorded by Sh. R.K. Singh, the then ACP, Anti Corruption Branch, Delhi.
The identification made by Sh. Yash Pal Garg, the then Dy. Commissioner (Zone-VIII) and Smt. Indira Bahl, the then STO, Confidential Cell, Sales Tax Department as shown in the video footage of Ms. Satwant Kaur, the then Steno, established the fact beyond doubt that the person shown in the said video footage accepting illegal gratification offered by a bribe giver was Ms. Satwant Kaur, the then Steno, Ward-82 Sales Tax Department, who had indulged herself deliberately in accepting money as bribe.
Thus, Ms. Satwant Kaur, the then Steno by the above mentioned acts of omission and commission, exhibited lack of absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant thereby violated Rule 3 of CCS (Conduct) Rules, 1964."
11. He also argues that it is well settled law that disciplinary proceedings are not criminal proceeding. The standard of proof required is that of pre-ponderance of the probability and not proof beyond reasonable doubt vide Union of India Vs. Sardar Bahadur 1972 Vol.2 Supreme Court reports page 225, it is further submitted that strict Rules of procedures and proof do not apply to a departmental enquiry vide Union of India Vs. A Nagamalleshwara Rao, reported in 1997:INSC:735 : A.I.R. 1998 Supreme Court page 111.
The Hon'ble Supreme Court of India in B.C. Chaturvedi's case report in 1995:INSC:661 : (1995) 6 SCC 749, has held that the High Court/Administrative Tribunal cannot interfere if the punishment has been imposed after holding enquiry and further held that the judicial review is restricted to the manner in which the administrative authority exercised power - the decision of the authority need not be correct according to the opinion of the court.
The learned counsel also contends that the Hon'ble Court cannot re-appreciate the evidence and come to its own conclusion vide:-
State of Tamil Nadu Vs. S. Subramanyan 1996:INSC:123 : 1996 Vol.7 SCC page 509
State of Tamil Nadu Vs. K.V. Perumal 1996 Vol.5 SCC page 474
B.C. Chaturvedi 1995:INSC:661 : 1995 Vol.6 SCC page 749
State Bank of India Vs. S.K. Endow 1994:INSC:14 : 1994 Vol.2 SCC page 537
That the Hon'ble Apex Court in Administrator, Union Territory of Dadra & Nagar and Haveli Vs. Gulabhia M. Lab 2010:INSC:248 : (2010) 5 SCC 775, wherein it was held as under:-
"13. The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts .... "
12. We have carefully gone through the inquiry report where the IO exonerated the applicant of the charges. However, the DA, in his disagreement note, after summarising the statements of witnesses, observed that the charge(s) leveled against Ms. Satwant Kuar, the then Steno, stood proved.
13. From the analysis of evidence, it appears that the witnesses produced, who were from the respondent department, have identified that the person shown in the CD was the applicant. However, none of the witnesses, as has been mentioned in the inquiry report itself, has confirmed as to who was the bribe giver; what was the denomination and quantum of amount of bribe; the motive of the bribe giver behind giving the bribe; whether bribe amount was recovered from the applicant or not, etc. etc. Even the key witnesses, namely, Dhirendra Singh, Reporter, and Jalaj Kathuria, Cameraman of T.V. Today Network Ltd., who had been added in the list of witnesses vide addendum dated 02.03.2012, as PW 11 & 12, have not been examined in the inquiry. These witnesses were the persons who are stated to have secretly video-graphed and recorded the alleged incident, which was the basis and foundation of the sole charge levelled against the applicant, and telecast with the caption "Ghoos Mahal" in the Aaj Tak News Channel on 08.03.2005, and as such their examination was crucial.
14. We also take note that the primary defence taken by the applicant is that the edited CD/chip is inadmissible in evidence. This issue has been decided by this Tribunal in Constable Sanjay Kumar Dubey vs. Commissioner of Police (OA No. 2802/2013 decided on 02.08.2016) holding that even in departmental proceedings, the general principles of the Evidence Act cannot be dispensed with and when the CD itself was not admissible as an evidence, mere evidence of a PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. Similarly, in the present case also, the alleged CD has neither been proved nor got compared with original CD/chip, therefore, the same cannot be taken as admissible evidence. Therefore, holding the charge against the applicant as proved based on such a CD, in our view, is not tenable in the eyes of law.
15. Regarding the various judgments cited by the respondents to drive home the points that preponderance of probability is enough in departmental proceedings and the powers of judicial review by the court are limited and restricted to manner in which administrative authority excises such power, we are of the view that these issues have been settled in the light of the broad parameters laid down for exercise of jurisdiction of judicial review in the case of Union of India & Ors. vs. P. Gunasekaran decided on 3rd November, 2014 SLP (Civil) No. 23631 of 2008, which clearly mentions that the power of judicial review includes examination of fact and the court has to see if the disciplinary authority has erroneously admitted inadmissible evidence, which influenced the findings. In the instant case, as has been elaborately discussed above, inadmissible evidence has been taken into account by the IO resulting into erroneous findings.
16. We also observe that in the same matter and similar facts wherein the delinquent was also a Stenographer in OA No. 444/2014, the following order was passed on 30.03.2022 by the Tribunal:-
"27. From the above analysis of evidence, it appears that the witnesses produced, who were from the respondent department, have identified that the person shown in the CD was the applicant. However, none of the witnesses, as has been mentioned in the inquiry report itself, have confirmed as to who was the bribe giver; what was the denomination and quantum of amount of bribe; the motive of the bribe giver behind giving the bribe; whether bribe amount was recovered from the applicant or not, etc. etc. Even the key witnesses, namely, Dhirendra Singh, Reporter, and Jalaj Kathuria, Cameraman of T.V. Today Network Ltd., who had been added in the list of witnesses vide addendum dated 02.03.2012, as PW 11 & 12, have not been examined in the inquiry. These witnesses were the persons who are stated to have secretly video-graphed and recorded the alleged incident, which was the basis and foundation of the sole charge levelled against the applicant, and telecast with the caption "Ghoos Mahal" in the Aaj Tak News Channel on 08.03.2005, and whose non- examination is fatal to the proceedings.
28. We also notice that the primary defence taken by the applicant is that the edited CD/chip is inadmissible in evidence. This issue has been decided by this Tribunal in Constable Sanjay Kumar Dubey (supra) holding that even in departmental proceedings, the general principles of the Evidence Act cannot be dispensed with and when the CD itself was not admissible as an evidence, mere tertiary evidence of a PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. Similarly, in the present case also, the alleged CD has neither been proved nor got compared with original CD/chip, therefore, the same cannot be taken as admissible evidence. Resultantly, holding the charge against the applicant as proved based on such a CD, in our view, is not tenable in the eyes of law. Even the Full Bench of this Tribunal, as stated above, was of the view that the genuineness of the video film would be the first test.
29. In view of the above discussion, we are of the considered opinion that the inquiry officer has proved the charge against the applicant on surmises and conjectures without there being any concrete and firm evidence.
30. In these circumstances and for the reasons stated, both these OAs are allowed. Consequently, the Charge Memorandum, report of the IO, and the orders of the disciplinary authority and appellate authority are quashed. The applicants will be entitled to all consequential benefits including the treatment of the period of suspension, as spent on duty, but without back wages. The respondents are directed to complete the exercise, as ordained above, within a period of three months from the date of a copy of this order. There shall be no order as to costs."
The only difference between the two cases as, we see, is that while in the OA No. 444/2014 the IO had proved the charges, in the instant case the IO had returned its finding as charges not proved. Therefore, the applicant in the present case is in fact on better footing. However, the learned counsel for the respondents during the course of hearing submits that the said impugned order in OA No. 444/2014 has been stayed by the Hon'ble High Court in WP (C) 10732/2022, Govt. of NCT of Delhi & ors. Vs. Ranjit Chaudhary but it is admitted that the order has not been set aside.
17. In view of the aforesaid facts and circumstances, we have no hesitation in applying the ratio of the OA No. 444/2014 herein and in the light of above discussion, we are of the considered opinion that the DA, in his disagreement, has proved the charge against the applicant without there being any concrete and firm evidence.
18. In these circumstances and for the reasons stated, this OA is allowed. Consequently, the order of initiation of DE including article of charge, disagreement note, and the orders of the DA and AA are quashed. The applicant will be entitled to all consequential benefits, as spent on duty. The respondents are directed to complete the above exercise within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs."
15. The learned counsel for the respondents, on the other hand, has reiterated the claims in the counter and has contended that each case is to be seen in the context of its unique facts, circumstances and issues and cannot be dealt with on the basis of preceding orders, even if on the face of it, they are identical. Further, it is a well settled legal position that the standard of proof required in a criminal proceeding is of much higher order than in the departmental proceedings.
16. While there is no doubt that the welter of facts and circumstances surrounding each case may be different and it has to be dealt with accordingly and one cannot ignore the well settled legal position that the standard of proof required in a criminal proceeding is of much higher order than in the departmental proceedings, but it is also an agreed position that the general principles of the Evidence Act cannot be dispensed with. The involvement of the applicant has been proved by the EO only on the basis of the statement of prosecution witness who had allegedly seen the CD and identified the applicant demanding the bribe. The CD itself was never proved. In such a situation, when the CD itself was not admissible as an evidence, a tertiary evidence of the PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. More important, the applicant stands discharged from the said FIR vide judgment dated 11.03.2015 wherein learned trial court recorded that prosecution has failed to even remotely raise suspicion sufficient to put accused persons to trial and the evidence relied up cannot in any manner be sufficient for conviction. It was further held by the trial court that the CD ceased by the IO in the present case were totally inadmissible and the CD prepared on the basis of said audio video was also inadmissible evidence on which no reliance could be placed.
17. We also find that the issue raised in the instant case is squarely covered by a recent decision of the Division Bench of this Tribunal in the aforesaid OA, as well as in OA No. 453/2016 (Jai Bhagwan vs. Govt. of NCTD & Others decided on 21.04.2023) in an identical matter, wherein impugned orders were set aside and where both of us (Hon'ble Shri R.N. Singh, Judicial Member and undersigned were constituting the Bench and wherein order of the Tribunal in Ranjit Chaudhary vs. Govt. of NCT of Delhi (supra) was also considered. We therefore take a similar view in the matter. Though learned counsel for the respondents submits that the identical WP(C) was pending before the Hon'ble High Court of Delhi and in one such case impugned order in OA No. 444/2014 has been stayed by the Hon'ble Delhi High Court in WP(C) No. 10732/2022 (Govt. of NCT of Delhi and Others vs. Ranjit Chaudhary), it is admitted that the order of the Tribunal has not been set aside. Therefore, we are of the view that it should not be a reason for us not to follow the various judgments of the coordinate bench of this Tribunal. So far as the issue of limited jurisdiction of the Tribunal in the matter is concerned, our considered opinion is that the judgment in B.C. Chaturvedi (supra) cited by the respondents is distinguishable on facts and hence are no help to the respondents as we find that the competent authorities have erroneously admitted inadmissible evidence which has influenced the findings.
18. In light of above, this OA is allowed. Consequently, the order of initiation of DE including article of charge and the orders of the disciplinary authority and the appellate authority are quashed. The applicant will be entitled to all consequential benefits, as spent on duty. The respondents are directed to complete the above exercise as expeditiously as possible and preferably within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
