IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P No. 966 of 2000 Reserved on : 22.03.2010 Decided on : 30.06.2010. ___________________________________________________________ Smt. Urmil Mahajan and others … Petitioners. Versus Union of India and others … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Rajnish Maniktala, Advocate. For respondents No. 1 & 2 : Mr. Sandeep Sharma, Asstt. Solicitor General of India. For respondent No.3. : Mr. L.C. Sood, Advocate. ___________________________________________________________ V.K. Sharma, Judge. The present petition under Article 226 and 227 of the Constitution of India, was filed by the original petitioner (in short ‘the petitioner’) late Shri K.K. Mahajan, who is survived by his legal representatives Smt. Urmil Mahajan and others mentioned in the amended memo of parties, for grant of the following substantive reliefs as at Sr. Nos. (i) to (vi) of the prayer clause:- “(i) That the order dated 14.11.1995 (Annexure P-13) i.e. the order of imposing of penalty of dismissal from service, may be quashed and set aside. (ii) That the appellate order dated 12.8.1996 (Annexure P-15) may be quashed and set aside. (iii) That the revisionary order dated 9.10.2000 (Annexure P-17) may be quashed and set aside. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 (iv) That the inquiry report dated 1.11.95 (Annexure P- 11) may be quashed and set aside being arrived at without following the principles of law. (v) That the respondents may be directed that the petitioner may be granted all consequential benefits from the date of imposition of penalty till date of final payment. (vi) That the respondents may be directed to grant pensionary benefits to the petitioner from the date of his retirement from active service.” 2. Brief facts of the case may be stated thus. At the relevant time, that is, on or about 11.2.1994, the petitioner was working as Superintendent-cum-Accountant in the office of Cantonment Board, Dagshai. At the same time, one Surjeet Singh, was also working in that office as ‘Daftri’. One Shri Palak Ram father of Deepti Kumar, a Gardener in the Cantonment Board, Dagshai, had died during harness. A sum of Rs. 4,597/- was sanctioned as gratuity in respect of said Shri Palak Ram to be paid to the said Deepti Kumar. On 11.2.1994, the petitioner handed over a cheque in the sum of Rs. 1656/- to Deepti Kumar towards part payment of the gratuity amount. It is alleged that the petitioner demanded illegal gratification of Rs. 750/- from Deepti Kumar for the release of balance amount of gratuity. However, since Deepti Kumar, who shall here-in-after be called as ‘the complainant’ did not want to oblige the petitioner, the matter was reported to the Anti Corruption Unit, Solan. Consequently, a trap was laid, during which the petitioner was allegedly caught red handed while accepting illegal gratification of Rs. 750/- from 3 the complainant. After receiving the tainted money and counting the same, the petitioner is alleged to have handed it over to the aforementioned Surjeet Singh, Daftri, who shall here-in-after be referred to as ‘co-accused’ saying that he would take it back from him in the evening after office hours and the latter kept the same in his pocket. On receiving the secret signal from the shadow witness, namely, Chet Ram, the raiding party headed by Dy. S.P. Jasbir Singh, arrived at the scene and a sum of Rs. 750/- in the form of currency notes treated with phenolphthalein powder was recovered from the pocket of the co-accused and taken into possession by the police. Accordingly, a case under Section 7 read with Section 13(1((a) and 13(2) of the Prevention of Corruption Act, 1988 ( in short ‘P.C. Act’), was registered against the petitioner and his co-accused, vide F.I.R No. 1 of 1994, dated 11.2.1994, at Police Station A.C. Zone, Solan. On completion of investigation they were sent up for trial to the court of the learned Special Judge, Solan, H.P. 3. However, in the meantime, disciplinary proceedings were also initiated against the petitioner vide charge-sheet dated 31st May, 1994, Annexure P-4, on the following article of charge:- “ARTICLE-I That the said Shri K.K. Mahajan while functioning as Office Supdt cum-Accountant (Supernumerary) in Cantt. Board Dagshai misconducted and committed an offence relating to accepting illegal gratification on 11.2.1994 from Shri Deputy Kumar Mali, Cantt. Board, Dagshai of Rs. 750/- in consideration for releasing the gratuity of his 4 deceased father, Shri Palak Ram, an ex-employee of Cantt. Board, Dagshai as per official report of Deputy Supdt. Police, Vigilance, A.C. Zone, Solan dated 14-2-1994.” 4. The petitioner submitted a detailed reply dated 5.6.1994, Annexure P-5, pleading innocence and denying the charge as “baseless, false and frivolous” besides raising various other defences as set up in the reply. 5. The departmental inquiry held against the petitioner on the above charge culminated into his indictment vide inquiry report dated 1.1.1995, Annexure P-11, on the following findings:- “On the basis of the statements and documentary and oral evidences adduced before me (written copies attached) and in view of the analysis given above I hold that charge against Sh. K.K. Mahajan to be valid and the charged employee is guilty of accepting illegal gratification as alleged in the charge sheet.” 6. The representation dated 13.11.1995, Annexure P-12, submitted by the petitioner to respondent No.3, Cantonment Board, Dagshai (H.P.), did not find favour with the disciplinary authority and as a consequence he was imposed major penalty of dismissal from service vide resolution dated 14.11.1995, Annexure P-13. The appeal (Annexure P-14) preferred by the petitioner before the appellate authority, that is, respondent No.3, General Officer Commanding in Chief, Western Command, Chandi Mandir, Haryana, was dismissed vide order dated 12.8. 1996, Annexure P-15. The revision petition dated 4.9.1996, Annexure P-16, filed by the petitioner before the Secretary to the 5 Government of India, was also dismissed vide order dated 9.10.2000, Annexure P-17. 7. In the meanwhile, the petitioner and his co-accused were acquitted in the criminal case arising out of the incident in question, by the learned Special Judge, Solan, H.P, vide judgment dated 22.10.1997, Annexure P-3. 8. It shall be pertinent to notice at this stage that thereafter the aforementioned judgment dated 22.10.1997, Annexure P-3, acquitting the petitioner and his co-accused of the criminal charge, rendered by the learned Special Judge, Solan, H.P., was affirmed by this court vide judgment dated 4.7.2002, Annexure P-67, passed in Criminal Appeal No. 250 of 1998, titled State of H.P. v. K.K. Mahajan and another, brought on record by the petitioner by way of CMP No. 740 of 2003, vide order dated 9.5.2003. 9. According to the petitioner, he was deputed by the Executive Officer, Cantonment Board, Dagshai, for certain investigations, during which number of irregularities were unearthed. 10. Against the above backdrop, the petitioner has filed the present petition mainly on the following grounds:- (i) The persons who were found responsible by the petitioner for the aforesaid irregularities were either the complainant or witnesses in the F.I.R and criminal proceedings initiated against him. 6 (ii) Criminal proceedings and departmental action against the petitioner could not have legally proceeded simultaneously. Alternatively in the event of acquittal of the petitioner and his co-accused in the criminal case as upheld by this court, the findings returned by the Inquiry Officer that the charge against the petitioner stood proved could not have been returned on the same set of evidence. (iii) The Inquiry Officer who was the initiator of the criminal and departmental proceedings against the petitioner, could not have acted as such. (iv) The defence of the petitioner was prejudiced owing to non supply of certain documents asked for by him during the course of the inquiry. Copies of the proceedings were asked on day to day basis, but supplied only at the final stage. (v) Statements of witnesses examined during inquiry were changed. (vi) Two employees, that is, the petitioner and his co- accused were charge-sheeted on the aforementioned allegations. However, whereas the co-accused was awarded minor penalty and let of with all consequential financial benefits, the petitioner also ought to have been similarly treated. (vii) The penalty imposed upon the petitioner is highly disproportionate to the misconduct, if any, alleged to have been established against him. 11. Though all the respondents are represented, yet reply has been filed only by respondent No.3. While admitting the factual matrix about initiation of criminal proceedings and departmental action against the petitioner and outcome thereof, the grounds laying challenge against the imposition of major 7 penalty of dismissal from service have been denied and disputed. It is submitted that the petitioner and his co-accused were acquitted by the learned Special Judge on the basis of benefit of doubt and technical ground of sanction to prosecute being not valid. Thus, the case was not decided on merits. Initiation of criminal proceedings and departmental action simultaneously is defended. It was alleged that the petitioner is guilty of suppression of the factum of the State having filed appeal against the acquittal before this Court being Criminal Appeal No. 250 of 1998, which was still pending. However, as noticed above, the said appeal has already been dismissed vide judgment dated 26.6.2002, Annexure P-67. 12. The petitioner has filed a detailed rejoinder along with supporting documents refuting the stand on behalf of the sole replying respondent No.3, and reiterating the averments set up in the petition. 13. I have heard the learned counsel/Asstt. Solicitor General of India for the parties and perused the record. 14. It shall be appropriate to deal with the above grounds raised by the petitioner one by one and I proceed to undertake the exercise. However, before that, the following observations with regard to interference by the Supreme Court or High Court under Article 32 and 226 of the Constitution against the findings of the Domestic Tribunals made by the Hon’ble Apex Court in Yoginath D. Bagde v. State of Maharashtra & Anr., JT 1999 (6) SC 62, vide para 53 of the report may be noticed:- 8 “53. It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinized by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. salve is in very broad terms and cannot be accepted. The law is well settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh v. The Commissioner of Police & Ors., JT 1998 (8) SC 603, this Court, relying upon the earlier decisions in Nand Kishore v. State of Bihar AIR 1978 SC 1277 = (1978) 3 SCC 366 = (1978) 3 SCR 708; State of Andhra Pradesh v. Sree Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25; Central Bank of India v. Prakash Chand Jain AIR 1969 SC 983; Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors. AIR 1976 SC 98 = (1976) 2 SCR 280 = (1976) 1 SCC 518 as also Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) & Ors. AIR 1984 SC 1805 = (1985) 1 SCR 866 = (1984) 4 SCC 635, laid down that although the court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed 9 that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse.” Points No (i) and (iii) 15. Both these points being inter connected, requiring common appreciation of law and evidence are taken up together for discussion and decision. 16. Admittedly, the inquiry against the petitioner and his co- accused was conducted by Shri S.S. Chahal, Executive Officer, Cantonment Board. 17. The petitioner has averred vide para 2 of the rejoinder at page 288 of the paper book that he was placed under suspension by the Cantonment Board vide resolution No. 95, dated 12.3.1994. Shri S.S. Chahal participated in the meeting of the board as its Secretary. He was primarily responsible for initiation of the proceedings that led to the inquiry against the petitioner. The petitioner was instrumental in unearthing embezzlement and mis-appropriation cases. Because of this conduct, the petitioner developed inimical relations with the employees of Cantonment Board. Shri N.D. Attri, Office Superintendent-cum- Accountant working with respondent No.3 Cantonment Board Dagshai, was allegedly creating anarchy and corruption in the office of Cantonment Board. The petitioner while working 10 in the office of the Cantonment Board, Kasauli, was detailed to the office of respondent No. 3 Cantonment Board, Dagshai, to check accounts of the said Board vide various office orders dated 13.3.1992, Annexure P-28; 24.7.1992,Annexure P-29; 24.7.1992,Annexure P-30 and 19.9.1992, Annexure P-31. A perusal of these orders would prima facie go to show that detailment of the petitioner was to look into various administrative and financial irregularities prevailing in the Cantonment Board, Dagshai. It is further manifest from the copy of Cantonment Board Resolution No. 61, dated 20.3.1993, Annexure P-32, that such irregularities were alleged to have been committed by or in respect of aforesaid Mr. N.D. Attri, Shri Surjit Singh (co-accused of the petitioner), Mrs. Nirmal Chandel, Shri Jagdish Ram, Shri Gurdiyal, Dr. N.K. Arya, Shri Om Parkash, Shri Chaman Lal, Shri Chet Ram and Shri Paras Ram. Consequently, disciplinary action was initiated against Shri N.D. Attri and he was placed under suspension with immediate effect vide Resolution dated 12.3.1994, Annexure P-33. Similarly, memo. Dated 24.7.1992, Annexure P- 34, was issued to the aforementioned Shri Chet Ram for sub- letting his official residence to one Mrs. Nirmal Chandel of Cantonment Board, Dagshai. A show cause dated 24.12.1993, Ex.P-38, was also issued to the complainant Shri Deputy Kumar vide Annexure P-38, for overstaying leave. 18. List of witnesses (Annexure IV) relied upon in the inquiry held against the petitioner would go to show that Mr. Deputy Kumar, Mr. Chet Ram, Mrs. Nirmal Chandel and Mr. N.D. 11 Atrri, were cited as witnesses against him in the said inquiry. Apart from it, the co-accused of the petitioner Shri Surjit Singh, Daftri, who was an accomplice, was also examined as a witness in the inquiry against the petitioner. 19. In view of the above, it can be safely concluded that all the witnesses who were examined in the inquiry against the petitioner cannot be said to be independent witnesses in the strict meaning of the word. Thus, it shall not be unsafe to hold that this aspect of the matter could have very well influenced the independent character and impartiality of the witnesses and thus outcome of the inquiry this way or that way. This aspect of the matter goes to the very root of the case and cannot be lightly over looked. Point No. (ii) 20. True it is that by now it is clearly settled that criminal proceedings and departmental action can be initiated and continued simultaneously and no fault can be found with the same in law. However, the position would be entirely different, if both the proceedings are based on same set of facts, charges, evidence/witnesses, as has been held by the Hon’ble Supreme Court in G.M. TANK V. STATE OF GUJARAT AND OTHERS, (2006) 5 Supreme Court Cases 446, vide paras 30 and 31 of the report, which read as under:- “30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and 12 the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the 13 basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 21. To the similar effect is the law laid down by the Hon’ble Supreme Court in CAPT. M. PAUL ANTHONY v. BHARAT GOLD MINES LTD. AND ANOTHER, (1999) 3 Supreme Court Cases CC 679. 22. There is no denying the fact that the charge against the petitioner in the criminal proceedings and the departmental action was the same. These charges were sought to be proved by the same set of evidence/witnesses. A perusal of judgment dated 22.10.1997, Annexure P-3, of the learned Special Judge, Solan (H.P.), whereby the petitioner and his co-accused were acquitted of the respective charges in the criminal case arising out of the incident under reference would go to show that though it is mentioned there at the end that both the accused, that is, the petitioner and his co-accused Surjit Singh were acquitted by extending benefit of doubt in their favour, yet a combined and harmonious reading of the judgment would go to show that in fact the case has been decided on merits and neither demand nor acceptance of illegal gratification of Rs. 750/- by the petitioner from the complainant, Deepti Kumar could be proved 14 by the prosecution. This inference is deducible from the reasoning adopted by the learned Special Judge vide paras 13 and 14 of the judgment. The findings to this effect have been upheld by this Court vide judgment dated 26.6.2002, Annexure P-67. It is further apparent from paras 15 and 16 of the trial court judgment that even the Executive Officer of the Cantonment Board had protested in writing to the Deputy Commissioner and Superintendent of Police, Solan, against harassment and man- handling of the employees of the Cantonment Board by the officers of the Vigilance Department at the time of the alleged raid. It is another matter that apart from on merits the prosecution case also failed on account of faulty prosecution sanction. Point No. (iv) 23. Vide application dated 26.9.1994, Annexure P-26, the petitioner requested for supply of the documents mentioned therein to enable him to cross examine the witnesses effectively and defend him adequately. However, per reply dated 1.10.1994, Annexure P-27, the Presenting Officer informed the petitioner that the documents asked for by him as at Sr. Nos. (g), (i), (j), (m), (l), (n) and (o) are not relevant. The document at Sr. No. (g) of Annexure P-26, was regarding the alleged sub-letting of official residence by the said Shri Chet Ram to Smt. Nirmal Chandel aforesaid and was thus relevant. 24. The petitioner also applied for supply of copies of day to day proceedings in the inquiry vide application dated 23.9.1994,Annexure P-23. The record reveals that the first witness 15 on behalf of the department was examined on 1.10.1994. Thereafter, three other witnesses were examined on 10.10.1994 and lastly the fourth on 24.10.1994. However, the copies of their statements were supplied to the petitioner only on 25.10.1994, as is apparent from Annexure P-24. In this regard, it is stated on behalf of respondent No.3 in its reply vide para (vii) at page 280 of the paper book, that the petitioner was supplied copies of day to day proceedings and the rules were complied with as far as possible in the circumstances. 25. Taking into consideration the above aspect of the matter, it shall not be unsafe to conclude that some prejudice appears to have been caused to the petitioner in making effective defence during the inquiry due to non supply/delayed supply of documents and statements of witnesses, as has been held by the Hon’ble Supreme Court in STATE OF U.P. V. SHATRUGHAN LAL AND ANOTHER, (1998) 6 Supreme Court Cases 651; STATE OF T.N. V. THIRU K. V. PERUMAL AND OTHERS, (1996) 5 Supreme Court Cases 474 and CHANDRAMA TEWARI V. UNION OF INDIA (THROUGH GENERAL MANAGER, EASTERN RAILWAYS) 1987 (Supp) Supreme Court Cases 518. Point No. (v) 26. It is contended that the statements of the departmental witnesses examined during the inquiry against the petitioner and his co-accused other than that of the complainant Sh. Deepti Kumar and Shri N.D. Attri, were changed. In order to buttress this statement, it is pointed out that the statements of Mr. Deepti 16 Kumar as SW-1 at page 215-222 of the paper book, bears his signatures both at the end of chief examination and cross examination and the statement of Shri N.D. Attrri ( pages 242- 245) is also signed at the end. Similarly, the statements of the defence witnesses PW-1 Shri Babu Lal Sood (pages 247-253) and the petitioner (pages 254-264) contain their signatures on each page. However, the statements of other departmental witnesses, namely, Shri Chet Ram, Mrs. Nirmal Chandel and Shri Surjeet Kumar, do not contain their signatures, meaning thereby that these statements have been changed. However, this being a mere assertion on behalf of the petitioner there being no other supporting evidence, I am not inclined to lend any credence to the same for the reasons that on the one hand technical rules of evidence are not applicable to disciplinary proceedings and on the other, non obtaining of the signatures of some of the witnesses on their statements appears to be an inadvertent omission. Points No. (vi) and (vii) 27. It is proposed to take up both these points together