TMI Blog2024 (3) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of investigation of a criminal case where the employees were not tried as co-accused and the accused persons retracted from the confessional statements in their deposition during the course of trial, forms sufficient evidence to bring home the charges in departmental proceedings? - Whether there is any evidence on record of the departmental proceedings drawn and conducted against the employees in these cases other than the confessional statements made by certain co-accused persons in the criminal case during the course of investigation before the Investigating Agency/Officer, on the basis of which the charges leveled against them can be said to be proved or it is a case of no evidence? HELD THAT:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussions, it is apparent and well established that it is a case where despite existence of no evidence to prove the charge in the departmental proceedings, the employees have been punished by the Disciplinary Authority. The evidence available on record is only the confessional statements made by the accused persons during the course of investigation of the criminal case which, for the reasons already stated, could not be made basis of inflicting the punishment upon the employees in this case. In absence of any evidence, it is not even a case where guilt of the employees in the departmental proceedings can be said to have been proved even on preponderance of probabilities. There are no hesitation to hold that the Tribunal, while passing the impugned judgment and order dated 13th June 2013 in Original Application No. 465 of 2010 was in error in dismissing the said Original Application - petition allowed. - DEVENDRA KUMAR UPADHYAYA, CJ. ARIF S. DOCTOR, J. Writ Petition No. 9062 of 2011 For the Petitioners Union of India : Smt. Neeta U. Masurkar with Mr. D. A. Dube. For the Respondents : Ms. Neeta Karnik i/b. Sangharsh V. Waghmare. Writ Petition No. 11229 of 2013 For the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obilizing and controlling his team of officers. As per the Article of Charge No. 1, the Petitioner was charged with laxity shown by him which contributed to landing of smuggled explosives, arms and ammunitions which were used in conducting bomb blast in Mumbai during the year 1993, as a result of which loss to innocent human lives as also several buildings was caused. In view of these imputations, the Petitioner was, thus, charged for having contravened the provisions of Rule 3(1), (i), (ii) and (iii) of the Central Civil Services (Conduct) Rules 1964. 5. As per Article of Charge No. 2, the Petitioner was charged with having received illegal gratification for turning a blind eye towards landing of contraband consisting of explosives, arms and ammunitions and by such acts of omission and commission, the Petitioner was further charged for failure to maintain integrity 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. 6. The Petitioner submitted his reply to the Charge Memorandum on 14th July 1998 denying all the charges and further requesting to conduct an open de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of Superintendent, Central Excise, was placed under suspension on 14th June 1993 on account of a criminal case against him which was under investigation. In connection with the investigation of the said criminal case, a raid was also conducted by the Central Bureau of Investigation (CBI) at the Petitioner s residence on 2nd April 1993. However, it appears that since nothing incriminating against him was found, criminal prosecution pursuant to the investigation of the said criminal case was not lodged against the Petitioner; neither was the Petitioner placed under detention either by the local police or by the CBI. Suspension of the Petitioner was thereafter revoked on 27th July 1996 whereupon he was reinstated in service, however, a Memorandum of Charges dated 28th June 1996 was issued to the Petitioner containing two Articles of Charge. As per the first Article of Charge, the allegation against the Petitioner was that while posted at Alibag Division of M P Wing, he was involved in conspiracy which resulted in landing of arms and explosives at village Dighi in Shrivardhan Taluqa on 3rd December 1992 and 9th January 1993 and further that the Petitioner, along with other officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chor of the arguments made on behalf of the employees in these cases is that the Department, to bring home the charges against the employees, has mainly relied on the confessional statements made by certain accused persons during the course of investigation of criminal case before the Investigating Agency in respect of the charges under the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA Act), which in absence of any deposition of these accused persons before the Inquiry Officer during the course of disciplinary proceedings, could not be relied upon to prove the charges against the employees. Further contention raised on behalf of the employees is that it is a case where there is no evidence worth the name which was gathered during the course of disciplinary proceedings and in absence of any evidence to prove the charges available on record of the disciplinary proceedings, the punishment either of dismissal from service or compulsory retirement could not have been inflicted by the Disciplinary Authority. 14. Further submission made on behalf of the employees to impeach the order of punishment is that mere statement of Police Officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, wherein it is clearly stated that there was no evidence which was brought on record against the persons named in the Application (which included Yashwant Balu Lotale) to conclude that they had committed any offence. Thus, as far as Yashwant Balu Lotale is concerned, he was never made an accused in the criminal case; nor did he face the trial and accordingly, the submission is that any confessional statement made during the course of investigation of the criminal case could not have been relied upon by the Disciplinary Authority to inflict the punishment against him for the reason that if such confessional statement could not be admissible in evidence in criminal trial for the reason that Yashwant Balu Lotale was not a co-accused, placing reliance on such confessional statement made during the course of investigation of the criminal case, to prove the charge in the disciplinary proceedings is not legally permissible. It has also been argued on behalf of the employees that as far as S. M. Padwal, the other employee who is the Respondent in Writ Petition No. 9062 of 2013 filed by the Union of India, though he was placed under suspension on the ground that a criminal case against hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court, whereas, the order dated 13th June 2013 passed by the Tribunal which is assailed in Writ Petition No. 11229 of 2013 is liable to be set aside. Learned Counsel for the Petitioner in Writ Petition No. 11229 of 2013 has taken an additional ground for impeaching the order passed by the Tribunal, dated 13th June 2013 by stating that the Tribunal, after noticing the respective pleas of the parties without any analysis worth the name, has suddenly concluded that the disciplinary authority and the appellate authority have dealt with all the points fairly which were raised by the employee and hence the Original Application was dismissed without giving any reasons therefor. Case set-up by the Union of India: 20. Defending the orders of punishment inflicted upon the employees in these two cases, learned Counsel representing the Union of India has urged that the orders of punishment do not suffer from any illegality or irregularity so as to call for any interference by this Court in these Writ Petitions. The submission on behalf of the Union of India in Writ Petition No. 9062 of 2011 is that the Tribunal, while passing the impugned order dated 25th November 2010 has completely erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been urged on behalf of the Union of India that Writ Petition No. 9062 of 2011 deserves to be allowed, whereas Writ Petition No. 11229 of 2013 is liable to be dismissed. ISSUES: 24. On the basis of the pleadings available on record and the respective submissions made by the learned Counsel for the parties, one issue which emerges for our consideration and decision is as to whether the confessional statements made by accused persons during the course of investigation of a criminal case where the employees were not tried as co-accused and the accused persons retracted from the confessional statements in their deposition during the course of trial, forms sufficient evidence to bring home the charges in departmental proceedings. Another issue which falls for our consideration is as to whether there is any evidence on record of the departmental proceedings drawn and conducted against the employees in these cases other than the confessional statements made by certain co-accused persons in the criminal case during the course of investigation before the Investigating Agency/Officer, on the basis of which the charges leveled against them can be said to be proved or it is a case of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 491 , wherein the Court held that all material that are logically probative to a prudent mind ought to be permissible in disciplinary proceedings keeping in mind the principles of fair play. The relevant observations are reproduced below: 4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a coin or consult an astrologer, but that he must take into account any material which, as a matter of reason, has some probative value. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his. (Emphasis supplied) 27. It is true that in disciplinary proceedings, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply and the materials which are logically probative for a prudent mind is permissible to be taken aid of to bring home the charge in domestic inquiries and in a case where charges in the disciplinary proceedings are proved on the basis of preponderance of probabilities, interference of this Court will not be warranted, however, there are certain circumstances in which this Court, in exercise of its power of judicial review under Article 226 of the Constitution of India, can interfere with the order of punishment awarded in departmental inquiries. One such situation where order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of mala fides. That is why we are not prepared to accept the learned Attorney General's argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent. 23. That takes us to the merits of the respondent's contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondent's case is, is there any evidence on which a finding can be made against the respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. 20. This Court struck a similar note, in State Bank of Bikaner Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC (L S) 721], where it was observed that : (SCC p. 587, para 7) 7. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal . The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. ( See State of U.P. v. Sheo Shanker Lal Srivastava [State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 : 2006 SCC (L S) 521] and Coimbatore District Central Coop. Bank v. Employees Assn. [Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SCC 669. (emphasis supplied) 30. The Apex Court in Heem Singh (supra) has further observed that there are two facets of judicial review in departmental matters. First is the rule of restraint and the second is when interference is permissible. It has further been obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disciplinary authority. Nor does the Judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy deference to the position of the disciplinary authority as a fact-finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence Act which is applicable to bring home a criminal charge in a criminal trial i.e. proof of guilt beyond reasonable doubt is not applicable to the departmental proceedings and the charge in department proceedings has to be proved on preponderance of probabilities, however, if there is a case of no evidence or perversity in findings or the findings arrived at by the Disciplinary Authority are such which is difficult for a person of common prudence to arrive at, interference in departmental matters is permissible by the Courts or Tribunals. DISCUSSION AND CONCLUSION: 33. We shall now proceed to consider the findings recorded by the Disciplinary Authority against the employees qua the evidence available on record of disciplinary proceedings to prove the charge in the light of the afore-discussed principles of law. If we find that it is a case of no evidence or that the findings in the departmental proceedings against the employees are perverse in the sense that no person of common prudence would have arrived at the same, the order of punishment will be difficult to be sustained. However, before undertaking the said exercise, we may also reflect upon the evidentiary value in departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 37. Section 162 of the Cr.P.C., however, clearly provides that no statement made by any person before Police Officer in the course of an investigation, shall be signed by the person making it. Section 162 further provides that any such statement cannot be used for any purpose at any inquiry or trial except that such a statement may be used by the accused to contradict such witness and also by prosecution with the permission of the Court, to contradict a witness. Thus, the statements made during the course of investigation under Section 161 can be used only for contradiction during the course of trial, however, the same cannot be used for any other purpose at any inquiry or trial as mandated by Section 162 of the Cr.P.C. In other words statement recorded under Section 161 of Cr.P.C. is not admissible in evidence in criminal trial. 38. Certain provisions of Indian Evidence Act may also be noted though only in the context of evidence required to be adduced during the course of trial and not in the departmental proceedings. Section 25 of the Indian Evidence Act provides that a confession made to a Police officer shall not be proved against a person accused of any offence. Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co-accused. 41. Accordingly, even in a criminal trial, confessional statement made before the Investigating Officer is admissible as evidence against co-accused only in a situation where the co-accused is charged and tried in the same case along with the accused. In other words, confessional statement made by an accused during the course of investigation of a criminal case concerning offence(s) under TADA will not be admissible in evidence against a co-accused if the co-accused is not charged in the same case or if he is not tried in the same case, that too, together with the accused whose statement is sought to be relied upon against the co-accused. 42. Thus, if in a criminal trial, the confessional statement made by an accused is not admissible in evidence against co-accused, where co-accused is not charged or not tried in the same case together with the accused, in our opinion, the question of admissibility of such confessional statement in departmental proceedings where the charged employee is not an accused in the criminal case, does not arise at all, especially when in the departmental proceedings accused in the criminal case has not been examined and he later, during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal statement of another accused in the criminal case, Shri R. K. Singh, Assistant Collector Customs has also been relied upon by the Disciplinary Authority but he was never examined as a witness and in respect of his confessional statement, one Shri T. S. Bhal, Superintendent of Police made a deposition during the course of the departmental proceedings that he had recorded confessional statement of R.K. Singh without any duress during the course of investigation of the criminal case. One also notices that R. K. Singh, accused in the criminal case also retracted from his confessional statement during the course of trial of the criminal case. 46. Thus, what we find is that the confessional statements made by Uttam Potdar, Mohd. Sultan Sayyed, R. K Singh and Dawood M. Phanse during the course of investigation of the criminal case have been relied upon to bring home the charges against the employees in the departmental proceedings, however, as observed above such statements cannot be the basis of proving the charge in departmental proceedings for two reasons. Firstly, because these persons were not the witnesses of the charge against the employees in the departmental proceedings; rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts made by them before the Investigating Officer during the course of the criminal case. These witnesses are not the witnesses of charge against the employees in the departmental proceedings; rather they had only made confessional statements during the course of investigation of the criminal case. These persons were also not examined during the course of departmental proceedings. As already discussed above, merely because some of the Police Officers, who recorded these confessional statements, were examined during the course of the departmental proceedings, it cannot be said that such confessional statements can be read in evidence for proving the charge against the employees in the departmental proceedings. The reason as to why these confessional statements do not assume character of evidence in the departmental proceedings has already been discussed above. 49. As far as the statement of wife of Shri Uttam Potdar is concerned, the Disciplinary Authority himself has stated in the order of punishment that this statement was not being relied upon. In respect of the statement made by Salim Mirah Shaikh also the disciplinary authority has clearly recorded that since said statement was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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