IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 163 of 2009 Reserved on 7.4.2011. Decided on: April 21, 2011. K.P.Singh Vrs. High Court of H.P. & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes. For the petitioner: M/S R.S.Gautam and J.L.Bhardwaj, Advocates. For the Respondents: Ms. Jyotsna Rewal Dua, Advocate, for respondent No.1. Mr. R.K. Bawa, AG with Mr. Ankush Dass Sood, Addl. AG for respondent No.2. Ms. Vidushi Sharma, Advocate, for respondent No.3. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. Integrity according to Oxford dictionary is moral uprightness; honesty. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short it depicts sterling character with firm adherence to a code of moral values. ‘Judiciary is an integrity institution’. Therefore, Judicial Officers should possess the sterling quality of integrity. Integrity is the hallmark of judicial discipline apart from others as reminded by the Apex Court in Tarak Singh Vrs. Jyoti Basu, reported in (2005)1 SCC 201. To quote: “ Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the judicial-delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside.” Under The Bar Council of India Rules, An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the court, a 2 privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. These attributes apply with equal force, nay, with stronger vigor to Judicial Officers. In High Court of Judicature for Rajasthan vrs. Ramesh Chand Paliwal and another, reported in (1998) 2 SCC 72, Judges have been described as ‘hermits’, further reminding that, “they have to live and behave like hermits, who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat”. In Tarak Singh’s case (supra), having regard to the plain truth that the judiciary is also manned by human beings and yet in view of their privileged position, it was cautioned as follows: “There is nothing wrong in a Judge having an ambition to achieve something, but if the ambition to achieve is likely to cause a compromise with his divine judicial duty, better not to pursue it. Because, if a Judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be a tendency to make a compromise between his divine duty and his personal interest. There will be a conflict between interest and duty. In High Court of Judicature at Bombay vrs. Uday Singh, reported in (1997) 5 SCC 129, in the matter of maintenance of discipline, the Apex Court stated as follows: ………..“Maintenance of discipline in the judicial service is a paramount matter. Acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the officer. The confidence of the litigating public gets affected or shaken by lack of integrity and character of Judicial Officer.”…… In Daya Shankar vrs. High Court of Allahabad and others, reported in (1987) 3 SCC 1, the Supreme Court set the following standard: “Judicial officers cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy.” In High Court of Judicature at Bombay vrs. Shashikant S. Patil, reported in (2000) 1 SCC 416, in more emphatic words, it was stated that dishonesty is the stark antithesis of judicial probity, and 3 …….“ A dishonest judicial personage is an oxymoron”…………. Having regard to certain sporadic instances of lack of probity and integrity among some of the personnel who man this high office, it is high time that specific standards are set with regard to value system to be adopted and followed by the members serving in the temple of justice. No doubt, they are more self imposed than imposed. While dispensing justice, the messenger is also important as the message itself. A judge is judged not only by the quality of his judgments, but also by the quality and purity of his character and the measurable standard of that character is impeccable integrity reflected transparently in his personal life as well. One who corrects corruption should be incorruptible. That is the high standard, the public has set in such high offices of institutional integrity. Therefore, any departure from the pristine codes and values of discipline and disciplined conduct on the part of the judicial officers will have to be viewed very seriously lest the very foundation of the system would be shaken and, if so, that will be the death knell of democracy. Having prologued on such disturbing notes, we may now turn to deal with the issues as raised in the present appeal. 2. The appellant is the Writ Petitioner. He joined the Himachal Pradesh Judicial Service in the year 1988. While he was posted as Judicial Officer at Dalhousie and Jawali between 1996 to 2002, the allegation is that he developed illicit relationship with a lady lawyer Mrs. Deepa Singh, who was practising as an Advocate at Dalhousie. It was further alleged that he travelled in her company to Thailand between 10.12.2002 to 22.12.2002. There was no previous permission from the competent authority either for leave or for leaving the country. However, on return to India, he applied for leave on medical grounds between 9.12.2002 to 22.12.2002. The delinquent officer flatly denied the allegations and attempted to present a story of some people making an attempt to tarnish his name. In the process, he got a medical officer to lead evidence to the effect that he had seen him on 18.12.2002 and another advocate practising in his Court to speak that they had met him on or around 15.12.2002. These two 4 persons we have specially mentioned because one belongs to the medical profession and other belongs to the legal fraternity. The Inquiry Officer having regard to the materials available on record found that the charges of misconduct as alleged with regard to the illicit relationship of the delinquent officer with Advocate Ms. Deepa Singh, travel without permission abroad, willful absence from duty were proved. The High Court having considered the representation filed by the delinquent officer resolved to impose a punishment of removal from service. The recommendation was accepted by the State Government and as per the impugned P-18 Order, the delinquent officer was removed from service. The Writ Petition was filed challenging the inquiry report and also the order of termination. Before the Learned Single Judge, it was contended that the inquiry report is biased, it is based on no evidence, the inquiry was conducted in violation of the procedure as prescribed under the Rules, the officer was not given an opportunity for personal hearing and that the disciplinary authority namely the High Court has not considered his representation on merits and recorded its findings. The Learned Single Judge dismissed the Writ Petition and hence the appeal. 3. Before us, the main contentions are: i) The inquiry is conducted in violation of the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, in particular Rule 14(15); ii) The report is based on no evidence; iii) The inquiry officer was biased in the sense also that his version of the absence was not taken into consideration; iv) The disciplinary authority, namely the High Court has not considered the comments offered by the delinquent officer to the inquiry report and recorded its findings and that such findings have not been communicated to the petitioner whereby the whole proceedings are vitiated; and v) There is violation of the principles of natural justice in not granting an opportunity for personal hearing. 4. The main allegation is that after closing the evidence, new evidence has been permitted to be adduced. Whether it is permissible is the 5 question. Rule 14 of the Central Civil Services ( Classification, Control and Appeal ) Rules, 1965, provides for procedure for imposing major penalties. Sub Rule 15 of Rule 14 reads as follows: “(15) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice. Note.-- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.” 5. A perusal of the Rule would clearly show that there is no absolute bar under the Rules in production of new evidence at the stage of closing the case on behalf of the disciplinary authority. It is permissible at the discretion of the Inquiry Officer. It is the duty of the Inquiring Authority to make every possible and permissible attempt to find out the truth and that is why it is sometimes termed as fact finding enquiry. In the event of the Inquiry Officer allowing the production of such new evidence, the delinquent government servant shall be entitled to have, if he deems, a copy of the list of further evidence proposed to be produced and an adjournment by clear three days before the production of such new evidence. The delinquent shall also be entitled to inspect such documents and he may also seek for an opportunity to produce new evidence on his part. 6 The note under Sub Rule 15 bars the production of new evidence to fill up any gap in the evidence; however, such evidence is permitted when there is an inherent lacuna or defect in the evidence which has been produced originally. The documents Exhibits P-2A, P-4A to P-7A, P-11A to P-13A, P-42 to P-48, P- 49 and P-50, are the documents which according to the petitioner have been permitted to be produced after closure of evidence by both the sides. Exhibit P- 2A is the certified copy of the passenger manifest of Flight No. TG 316 on 10.12.2002, Delhi to Bangkok and that of Flight No. TG 315 from Bangkok to Delhi on 22.12.2002. Exhibit P-2 originally produced was the computer print out. Likewise, Exhibit P-4A to P-7A are the details of embarkation of the delinquent officer and Smt. Deepa Singh. In the place of those certified copies, computer print outs had already been produced. Exhibit P-11A to P-13A are again the certified copies of the embarkation and dis-embarkation cards, the computer print outs of which had already been produced. Exhibit P-42 to P-48 are the applications of the delinquent officer for visa on arrival, his clear photograph, embarkation form, embarkation form of Ms. Deepa Singh, application for duplicate Passport of delinquent officer, visa application form, the flight manifest of the return flight from Bangkok to Delhi and letter of Royal Thai Embassy, New Delhi, regarding the travel of delinquent officer. Going through the proceedings of inquiry, we find that these documents have been produced with clear three days notice to the delinquent officer and on 27.12.2003, the appellant has acknowledged the receipt of the documents. On 3.1.2004, the statement of the delinquent officer as counter signed by him reads as follows: “I do not want to lead any evidence in rebuttal to rebut the documents, Exhibits P-2A, P-4A, P-5A, P-6A, P-7A, P-11A, P- 12A, P-12A, P-13A, P-41, P-42, P-43, P-44, P-45, P-46, P-47 and P-48, which have been introduced by the presenting side after closure of their evidence. I shall only argue orally with regard to admissibility of these documents and production at a late stage.” ( emphasis supplied) 7 6. As we have already discussed above, Rule 14(15) does not in any way bar the recalling of any witness or production of new evidence. If such a process is adopted, certain safeguards are prescribed under the Rule so as not to cause any prejudice to the delinquent officer. He is to be given the list of documents, he is to be granted three clear days time, he is to be granted an opportunity to inspect the documents and he is also to be given an opportunity to lead fresh evidence if it is required in the interest of justice. The only restriction is that the evidence thus led shall not be to fill the gaps in the evidence already tendered. But such evidence is permissible to fill up any inherent lacuna or defect in the evidence which has already been tendered. Filling up any gap in the evidence and filling up an inherent lacuna or defect in the evidence are provided in the Rule in contradistinction to each other. The very purpose of inquiry is to find out the facts on the best available evidence. But, in the process the course of justice shall not be deflected. Sharpening the evidence is different and distinct from filling up any gap or in-consistency in the evidence. Curing any defect in the evidence already tendered so as to make it legally perfect is different from filling up the gap in evidence. What has been done in the instant case is only production of the certified copies of the travel documents on which evidence had already been tendered by producing the un-certified computer print outs. With the leave of the Inquiry Officer, certain documents which have been obtained belatedly from the Thai Embassy also were produced. On an application for producing Exhibits P-49 and P-50 filed on 3.1.2004 by the presenting officer, the delinquent officer stated that: “ I do not want to file any reply to the application produced by the presenting side today. However, I orally oppose the tendering of the documents in evidence at this stage because the evidence of the presenting side has already been closed and the documents cannot be now tendered to fill in a lacuna in the evidence of the presenting side.” 7. In this context, we may also extract the statement of the delinquent officer with regard to Exhibits P-49 and P-50 on 3.1.2004. 8 “ I do not want to lead any evidence to rebut the documents Exhibit P-49 and P-50, which have been produced by the presenting side in the evidence today. I shall, however, rebut these documents in the course of my arguments with regard to their admissibility and late production etc.” Thus, the only objection of the delinquent officer is with regard to admissibility of the documents and not on the contents of the documents. Exhibit P-49 is a letter from the Royal Thai Embassy, New Delhi addressed to the Registrar of the High Court of Himachal Pradesh. The letter reads as follows: “ The Royal Thai Embassy presents its compliments to the High Court of Himachal Pradesh, Shimla and would like to refer to the latter’s letter No. HHC/VIG/PS/2003-3585 dated 26th December 2003 requesting the Embassy to certify the copies of documents of Shri Kiran Pal Singh. In this connection, the Embassy has the honour to inform the High Court that it has attested a copy of Shri Kiran Pal Singh’s visa application form as herewith enclosed. In addition the Embassy has the honour to further inform the latter that the Shri Kiran Pal Singh has obtained the visa No. 17908 issued on December 10, 2002 by the immigration office at Chiangmai International Airport, Thailand. The Royal Thai Embassy avails itself of this opportunity to renew to the High Court of Himachal Pradesh, Shimla the assurances of its highest consideration.” 8. Exhibit P-50 is the application for visa on arrival at Bangkok. There is no dispute with regard to the Passport and the details with regard to the address of the applicant and the date on which the application has been filed at Thailand. Having stated before the inquiry officer that the delinquent employee does not have anything to rebut on the evidence thus produced, it is absolutely futile to contend that the documents have been admitted in evidence in violation 9 of the procedure under Rule 14(15). The production being legally permissible, it cannot be said that the inquiry has been conducted in violation of the Rules. 9. PW-1, Shri Promod Sood, Manager, Liaison and Customer Services of Thai Airways International, PCL, New Delhi, has clearly stated before the Inquiry Officer that ……….“as per the passengers manifest, which I have brought today (Ext. P-2), a person named Singh K.P. had travelled by our flight No. TG 316, dated 10th December, 2002 from Indira Gandhi International Airport, Delhi to Bangkok. ………… As per the passengers manifest, Singh Deepa has also travelled by this flight from New Delhi to Bangkok. As per the passengers manifest, Singh Deepa Ms and Singh K.P. Mr. returned from Bangkok to New Delhi by Flight No. TG 315 on 22nd December, 2002.”……… 10. PW-2 Shri Sandeep Goel, I.P.S., Foreigners Regional Registration Officer, Delhi, referring to the passenger name recorded as retrieved from the computer system and passenger manifest, Exhibits P-3 to P-7 stated that ………. “ Sh. Kiran Pal Singh holder of Passport No. R-489789 and Deepa Singh holder of Passport No. E-3033381 have departed from Indira Gandhi International Airport Delhi on 10.12.2002 by flight No. TG 316 of Thai Airways. Both of these passengers have returned to India at I.G.I.A. Delhi on 22.12.2002 by flight No. TG 315 of the airways.”…… 11. The delinquent appellant does not have, even according to his own statement, any evidence to lead in rebuttal to the documentary evidence referred to above. Thus, it is not a case of evidence adduced in violation of the Rules or it is not a case of no evidence. It is a fact and it has been also established that the delinquent was in Thailand between 10th December, 2002 to 22nd December, 2002, for which period he later submitted an application for earned leave on medical grounds. As far as the illicit relationship of Advocate Deepa Singh with the delinquent officer is concerned, the husband of Smt. Deepa Singh and also the son of Smt. Deepa Singh have stated in detail before the inquiry authority. Though it was not necessary for us to extensively refer to facts as above, in view of the vehement contention advanced by the petitioner that it is a 10 report on no evidence and that it is a report on evidence otherwise impermissible and that the version of the delinquent has not been taken into consideration, we have referred to the same. It is settled law that the High Court is not a Court of appeal under Article 226 of the Constitution of India on the decision of the authorities holding departmental inquiry. The Court is concerned to determine whether the inquiry held by a competent authority is done in accordance with the procedure prescribed in that behalf, whether principles of natural justice have been applied, whether there is some evidence for the inquiry officer to reasonably support the conclusion that the delinquent officer is guilty of charge and whether there is overall fairness in the procedure. The Court may also examine whether the conclusion ex-facie is wholly arbitrary or capacious that no reasonable person could ever have arrived at that conclusion. The law is well settled in that regard. In State of Andhra Pradesh and others vrs. Chitra Venkata Rao, reported in (1975) 2 SCC 557, at paragraph 21, it has been held as follows: “ 21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function 11 of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.” 12. It has been further held in the said decision that ……… “ A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said findings is within the exclusive jurisdiction of the Tribunal.” 13. To quote Krishna Iyer, J in State of Haryana and another vrs. Rattan Singh reported in (1977) 2 SCC 491: “ In a domestic enquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative