TaxTMI 
TaxTMI 
2024 (3) TMI 274
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....India in Writ Petition No. 11229 of 2013. 2. Since the subject matter of these two Writ Petitions and the issues which arise for our consideration are intertwined, these petitions are being decided by the following common judgment and order: CHALLENGE AND FACTS OF THE CASE: (A) Facts as pleaded in Writ Petition No. 11229 Of 2013: 3. Petitioner - Yashwant Balu Lotale has questioned the validity of the judgment dated 13th June 2013 passed by the Bombay Bench of Central Administrative Tribunal (hereinafter referred to as the Tribunal) in Original Application No. 465 of 2010 whereby the Tribunal has declined to interfere with the order of penalty dated 31st January 2008 and has accordingly dismissed the Original Application. By the order of penalty dated 31st January 2008, the Petitioner was inflicted with the penalty of compulsory retirement from Government service in terms of Rule 11(vii) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as the CCS (CCA) Rules 1965). Said order further provides that the Petitioner shall be entitled to only 65% of the full compensation of pension and gratuity under Rule 40 of the Central ....
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....ith the report of the Inquiry officer and finding the charges against the Petitioner to be proved. As observed earlier, the Petitioner, by means of punishment order dated 31st January 2008, was inflicted with the punishment of compulsory retirement from Government service and it was also ordered by the Appointing Authority that he shall be entitled to only 65% of full compensation of pension and gratuity. 7. The Petitioner preferred a statutory appeal under Rule 24 of the CCS (CCA) Rules 1965 against the order of punishment before the Appellate Authority which however, rejected the appeal by means of order dated 22nd April 2010. Taking exception to the order of punishment and the order passed in the statutory appeal preferred by the Petitioners against the order of punishment, the Petitioners instituted the proceedings of Original Application No. 465 of 2010 which too has been dismissed by means of impugned judgment and order dated 13th June 2013 passed by the Tribunal. 8. Feeling aggrieved by the judgment dated 13th June 2013 the Petitioner has now invoked our jurisdiction under Article 226 of the Constitution of India, by instituting the proceedings of Writ Petition No. 112....
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....smuggler who was owner of the contraband goods, paid illegal gratification of Rs. 3,00,000/- to the Officials viz. the Superintendent Shri Sayyed and Inspector Shri Padwal i.e. the Petitioner. 11. As per Article II of the Charges, the Petitioner received a sum of Rs. 25,000/- by way of illegal gratification for permitting landing of smuggled goods and that he further received an amount of Rs. 25,000/- for landing of smuggled goods belonging to the said smuggler. The Article of Charge further stated that such acts on the part of the Petitioner showed that he did not maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant contravening the provisions of Rule 3(1), (i), (ii) and (iii) of the Central Civil Services (Conduct) Rules 1964. 12. The Petitioner, however, denied the charges vide his letter dated 12th July 1996 and accordingly, an inquiry was conducted into the allegations levelled against the Petitioner by the Inquiry officer who submitted the inquiry report on 14th May 2004. The Petitioner submitted his written representation challenging the findings recorded by the Inquiry officer in the inquiry report dated 14th May 20....
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....rth by the employees that any confessional statement made to the Police Officer during the course of investigation, by the accused persons in the criminal case could though be admissible in trial of the criminal case in terms of the provisions contained in Section 15 of the TADA Act, however, such confessional statement is only admissible against the co-accused or an abettor or conspirator, if such co accused is charged and tried in the same criminal case together with the accused making the confessional statement. It has been argued, thus, that so far as the disciplinary proceedings against the employees drawn and conducted by the Department is concerned, the employees were never either made accused in the criminal case nor were they ever tried by the criminal Courts together with the accused persons in the criminal case, hence, in terms of Section 15 of the TADA Act, if such confessional statement was not admissible in evidence in the criminal trial, the same could not have been taken aid of to prove the charges against the employees in the disciplinary proceedings. 16. It is further argued on behalf of the employees that in the criminal case the Petitioner - Yashwant Balu Lot....
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.... to prove the charge in the departmental proceedings. 17. Learned Counsel representing Yashwant Lotale, the Petitioner in Writ Petition No. 11229 of 2013, has also drawn our attention to the order of punishment of compulsory retirement dated 31st January 2008 passed by the Disciplinary Authority, wherein he has observed, "there is no direct evidence of CO taking such money directly from smugglers. In the facts and circumstances, it is obvious that the CO was in the know of happenings. The only point of doubt can be whether he was an active player or a passive accomplice. From the evidence before me I conclude that he was a passive accomplice. Thus I agree with the report of the IO that the charges are proved." 18. According to the learned Counsel representing Yashwant Lotale, despite arriving at a conclusion that there was no evidence establishing the charge of having accepted illegal gratification from the smugglers and also despite doubting whether this employee was an active player or passive accomplice, the Disciplinary Authority has concluded that he was a passive accomplice. Thus, the reasoning given by the Disciplinary Authority is not based on any definitive conclusio....
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....ion of India that no illegality was committed by the Disciplinary Authority while placing reliance the confessional statements made by the accused persons during the course of investigation of the criminal case under the TADA Act for the reason that such confessional statements were recorded strictly following the procedure for recording such statements and the Police Officers, before whom such statements were recorded, were examined on behalf of the Department during disciplinary proceedings, who proved such statements. 22. The Union of India has further pleaded that the submission that the confessional statement made during the course of investigation of the criminal case was inadmissible in evidence in the departmental proceedings, is erroneous, for the reason that Section 15 of the TADA Act or any other Rule of evidence either emanating from the Indian Evidence Act, 1872 or the Cr.P.C. whatsoever, has no application so far as conducting the departmental inquiry is concerned. It has also been argued that the strict rule of evidence for bringing home the criminal charge against the accused persons in criminal trial, is not applicable for the purpose of establishing charges aga....
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....ucted by way of a departmental proceedings is entirely different. In a criminal case, onus of establishing the guilt is on the prosecution and if the prosecution fails to establish the guilt beyond reasonable doubt, the accused will be presumed to be innocent, however, strict burden of proof required to establish guilt in a criminal case is not required in departmental proceedings and it is preponderance of probabilities which is sufficient to bring home a charge in the departmental matters. We may, in this regard, refer to the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan and Ors. Vs. Heem Singh (2021) 12 SCC 569, wherein certain observations made by the Hon'ble Supreme Court in the case of State Vs. S. Samuthiram (2013) 1 SCC 598 have been quoted with approval. Though Heem Singh (supra) was a case where the question for consideration of the Hon'ble Supreme Court was as to whether acquittal in criminal proceedings shall affect the decision in the disciplinary proceedings and lead to automatic reinstatement of such employee, nevertheless, the distinction between the standard of proof has been outlined in Heem Singh (supra) relying upon S. Samuthiram (su....
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....spondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury 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." (Emphasis supplied) 54. In view of this unequivocal and clear proposition of law set out in Rattan Singh (supra), it could be said that there was no legal bar on the Central Complaints Committee to look into the allegations levelled in the second complaint dated 18.09.2012. Since strict and technical rule of evidence and procedure does not apply to departmental enquiry the connotation "evidence" cannot be understood in a narrow technical sense as to include only that evidence adduced in a regular cou....
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....ded in disciplinary proceedings can be judicially reviewed. The Court may interfere where the proceedings against the delinquent officer are found to have been held in a manner inconsistent to the rules of natural justice or in violation of statutory rules prescribed for the mode of inquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. We may further note that the Court may also interfere in such matters if the conclusion or the finding is such that no reasonable person would have ever reached. Interference is also permissible when findings are clearly perverse and the test to determine perversity in such matters is to see whether the authority concerned acting reasonably could have arrived at such conclusion or finding on the basis of material on record. We may, at this juncture, refer to the judgment of the Hon'ble Supreme Court in the case of United Bank of India Vs. Biswanath Bhattacharjee (2022) 13 SCC 329. Paragraphs 17, 18, 19 and 20 thereof are apposite to quote, which are as under: 17. In one of the earliest decisions of Union of India v. H.C. Goel [Union of India v. H.C. Goel, 1963 SCC OnLine SC 16 : (1964) 4 SC....
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.... 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 charge 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 3 is proved against him is based on no evidence." 18. Apart from cases of "no evidence", this Court has also indicated that judicial review can be resorted to. However, the scope of judicial review in such cases is limited [T.N.C.S. Corpn. Ltd. v. K. Meerabai, (2006) 2 SCC 255 : 2006 SCC (L&S) 265] . In B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] a three-Judge Bench of this Court ruled that judicial review is not an appeal from a decision but a review of the manner in which the decis....
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....ere 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 [Union of India v. H.C. Goel, 1963 SCC OnLine SC 16 : (1964) 4 SCR 718 : AIR 1964 SC 364], this Court held at p. 728 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." 19. Other decisions have ruled that being a proceeding before a domestic tribunal, strict rules of evidence, or adherence to the provisions of the Evidence Act, 1872 are inessential. However, the procedure has to be fair and reasonable, and the charged employee has to be given reasonable opportunity to defend himself (ref : Bank of India v. Degala Suryanarayana [Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762 : 1999 SCC (L&S) 1036] a decision f....
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....atter of departmental proceedings cannot be allowed to take the place of proof and that the Disciplinary Authority should arrive at its conclusion of guilt of the employee concerned on the basis of some evidence with some degree of definiteness establishing the guilt of delinquent for which he is charged. 29. It is also to be seen that departmental proceedings are quasi-judicial in nature and though the provisions of the Evidence Act are not applicable strictly in such proceedings, however, broadly speaking, there are two safeguards while conducting departmental proceedings against the charged employee which are to be borne in mind by the Courts and these safeguards are; (i) that principles of natural justice are complied with, and (ii) the Courts exercising powers of judicial review are entitled to consider as to whether while inferring misconduct on the part of the charged officer, relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom and further that inference in such matter on facts must be based on evidence which meets the requirements of legal principles. In Heem Singh (supra), the Hon'ble Supreme C....
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....not be permitted to assume the mantle of the Disciplinary Authority, nor does the Judge wear the hat of an employer. Further observation made in the Heem Singh (supra) is that the Disciplinary Authorities are required to follow the rules of natural justice, however, the strict rules of evidence which apply to the judicial proceedings are not applied in departmental inquiries and that the standard of proof is not the strict standard governing a criminal trial i.e. of proof beyond reasonable doubt but standard is governed by the preponderance of probabilities. 31. Hon'ble Supreme Court, in the said case, has further observed that the other end of the spectrum is the principle that the Court has jurisdiction to interfere when the findings in the domestic inquiry are based on no evidence or where such findings suffer from perversity and that failure to consider vital evidence amounts to perverse determination of fact. It is also observed by the Hon'ble Supreme Court that service jurisprudence recognizes proportionality as a legal principle in allowing the authority of the Court to interfere when the finding or the penalty are disproportionate to the weight of evidence or misconduct.....
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....ence has recognised it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to reappreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the Judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the Judges' craft is in vain." 32. From the aforesaid discussion, we conclude that the power of judicial review of this Court under Article 226 of the Co....
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....icer during the course of investigation where the employee against whom the departmental proceedings are drawn is not an accused. In both the departmental proceedings which are subject matter of these Writ Petitions, admittedly, the employees were not tried as accused persons in the criminal case, where the CBI had investigated and prosecuted certain departmental officers as also private individuals. It is also not in dispute rather it is even otherwise abundantly clear from a perusal of the record available before us that both, the Inquiry Officer as also the Disciplinary Authority have heavily relied upon the confessional statements made by the accused persons during the course of the criminal case before the Investigating Officers. As to whether such confessional statements can be made basis for bringing home the charge in the departmental proceedings is, thus, an issue which assumes relevance for deciding these Writ Petitions. 34. It is not in dispute that a criminal case was registered and investigated in relation to the blasts which shook the city of Bombay in the year 1993. One of the employees herein viz. S.M. Padwal was though suspended initially on account of his alleg....
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....r shall be proved against such person unless it is made in immediate presence of a Magistrate. Section 27 of the Evidence Act, however, carves an exception to the principle of evidence available in Section 26, that too, to a limited extent. According to this provision when any fact is deposed to as discovered in consequence of information received from a person accused of any offence who is in the custody of a police officer, only that much of such information, which relates to the fact discovered, may be proved. Meaning thereby, a fact so discovered may be proved even if deposition is made in the custody of a Police Officer. 39. Thus, the legal principle which emerges as per cumulative reading of Sections 25 and 26 of the Indian Evidence Act and Sections 161 and 162 of the Cr.P.C. is that any statement made before a Police Officer cannot be proved during the course of a criminal trial and accordingly no confession made by any person in custody of Police Officer shall be proved against such person. The statement recorded under Section 161 of the Cr.P.C. can, during the course of trial, be used only for the purpose of contradiction. 40. Since in the instant matters, the Discip....
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.... 43. Analyzing the evidence available on record of the disciplinary proceedings, we find that the department has relied upon the confessional statements made by four accused persons during the course of investigation of criminal case and these accused persons are (i) Uttam Potdar (smuggler) (ii) Mohd. Sultan Sayyed, Superintendent, Customs Officer (iii) R. K. Singh, Assistant Commissioner and (iv) Dawood M. Phanse (smuggler). These persons were not examined during the course of departmental proceedings; rather, to prove the confessional statement Police Officers were examined. Smt. Meeran Chadha Borwankar, Superintendent of Police was examined before the Inquiry Officer as witness in the departmental proceedings. This witness in the departmental proceedings has only stated she had recorded the confessional statement of Uttam Potdar during the course of investigation of the criminal case conducted by her and that the confessional statement was made by Uttam Potdar without any duress. 44. Similarly, so far as the confessional statement made by Dawood M. Phanse during the course of investigation of the criminal case is concerned, he was never examined during the course of departmen....
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....he charge in the criminal case. It may also be noticed that the employees were never tried in the criminal case along with these persons and, as concluded by us above, since such a confessional statement cannot be relied upon even against the co-accused in the criminal case if the co- accused persons are not tried in the same criminal case, the question of placing reliance on such confessional statements in the departmental proceedings against the employees does not arise at all. 47. As regards the evidence of the Police Officers deposed by them during the course of departmental proceedings, one may only observe that these Police Officers are not the witnesses of the charge on the basis of which the employees are said to have been found guilty of misconduct in the departmental proceedings; rather they are the witnesses of the fact that they had allegedly recorded the confessional statements of the accused persons during the course of investigation of the criminal case. Accordingly, the depositions made by the Police Officers during the course of departmental proceedings, in our opinion, do not assume character of evidence sufficient for bringing home the charge against the emplo....
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.... also not relied upon. 50. Apart from the aforesaid evidence, the only other evidence which was produced during disciplinary proceedings is the alert circular of the Commissioner of Customs dated 25th January 1993. Existence of the said alert circular on the record of the disciplinary proceedings only establishes that such circular was issued. The Disciplinary Authority himself has recorded in the order of punishment that this circular is not relevant to prove any commission of mischief by the employee; rather it is relevant only to prove his omission to do his duty in spite of specific alert. There is no other evidence on record of the disciplinary proceedings other than what has been discussed above. We have already concluded that on the basis of the alleged evidence available on record as discussed above, the charge against the employees did not stand proved and accordingly, from the over-all view of the evidence available on record of the disciplinary proceedings, our indefeasible conclusion is that it is a case where there was no evidence at all and accordingly, the conclusion arrived at by the Disciplinary Authority while passing the punishment orders is erroneous. 51. ....