Union of India & Ors. v. Sumit

8. Report No. CX-13/2017 of the Central Forensic Science Laboratory, Shimla issued vide letter No. CX-13/2017/664 dated 31.01.2017.

9. Preliminary enquiry report dated 28.03.2017 of Sh. B.S. Panchal ASP Bahadurgarh.

10. Attestation Form of Sh. Sumit.

11. Letter addressed to Civil Surgeon Hissar for Health Certificate and Health Certificate issued by Civil Surgeon Hissar in r/o Sh. Sumit.

12. Charge Report dated 24.02.2014 in r/o Sh. Sumit.

13. Circle Office Ambala letter no. APS/Con-28/2013 dated 01.11.2013 & 18.12.2013.

14. SPOs Hissar letter no. B-2/4 Rectt/2011 & 2012 dated 01.11.2013.

15. SPOs Hissar letter no. B-2/4 Rectt/2011 & 2012 dated 11.02.2014.

16. Statement of Sh. Sumit dated 28.08.2017 containing 2 pages obtained by Sh. B.S. Panchal, the then ASP Bahadurgarh.

17. Letter dated 01.11.2013.”

9. An Inquiry Officer was appointed. It is not in dispute that, from the aforesaid list, documents at serial nos. 6, 7, 8, 10, 12, 13, 14 and 15 were not provided to the respondent, despite the respondent having sought the said documents.

10. Mr. Pathak, learned SPC for the petitioners, submits that the said documents were not provided as, in the perception of the IO, they were not relevant. He also submits that the inquiry report which ultimately came to be issued by the IO on 17 August 2019, was passed essentially on the CFSL report dated 25 January 2017. Inasmuch as the said report had been provided to the said respondent, Mr. Pathak submits that the decision not to provide the respondent the aforesaid documents at serial nos. 6, 7, 8, 10, 12, 13, 14 and 15 of the list of documents annexed with the chargesheet, was not fatal to the proceedings. He also points out, in this regard, that Rule 14 (3)(ii) (b) of the CCS(CCA) Rules requires the DA to draw only a list of the documents by which the articles of charge was proposed to be sustained and Rule 14(4)(a) requires the DA to provide the government servant/charged officer the said list of documents and witnesses along with the articles of charge and statement of imputations of misconduct. Inasmuch as these documents have been provided to the respondent, and the petitioner has also provided the documents which according to the IO were relevant to the case and on which the IO ultimately relied while passing the inquiry report, he submits that there was no violation of Rule 14 or breach of the principles of natural justice.

11. Besides, Annexure-4 to the chargesheet enlisted the witnesses, by whom the articles of charge were proposed to be proved, and reads thus: “List of witnesses by whom the article of Charges framed against Sh Sumit P.A Jhajjar MDG are proposed to be sustained.

1. Dr. Ravindra Sharma, M.sc. Ph.D (Asstt. Director.& Scientist C) Central Forensic Science Laboratory, Shimla

2. Sh. Ranjit Singh the then APMG (Staff) o/o CPMG Haryana Circle Ambala.

3. Sh. S.R Sharma the then SSPOs Hissar

4. Sh. B.S Panchal the then ASP Bahadurgarh

5. Sh. S K Jain O.A. O/o SPOs Hissar” Sr. Superintendent of Post Offices Rohtak Division Rohtak-124001”

12. It is not in dispute that the petitioner did not produce any of the witnesses enumerated in Annexure-4 to the Articles of Charge and, therefore, the respondent could not cross examine any of the said witnesses. This, according to us, is a serious breach of procedure, especially as the first witness named in the list of witnesses, i.e. Dr. Ravindra Sharma, was the Assistant Director & Scientist ‘C’, CFSL, who was obviously cited as a witness to prove the CFSL report. By not producing him in the witness box, the CFSL report went unproved.

13. We may also rely, in this context, on the judgment of the Supreme Court in Roop Singh Negi v Punjab National Bank[3], in which the Supreme Court has observed that the provisions of the Indian Evidence Act may not be strictly applicable in departmental proceedings, nonetheless, if the IO or the DA intends to rely on certain documents against the charged officer, those documents have to be proved in the matter known to law. If the documents are not proved, they cannot be relied upon in the inquiry proceedings.

14. The relevant paragraphs from Roop Singh Negi may be reproduced thus:

15. It was in such circumstances that the IO came to pass the inquiry report, relying on the CFSL report and holding the charges against the respondent to stand proved.

16. Following the aforesaid inquiry report, the Disciplinary Authority, by order dated 31 October 2019, removed the respondent from service.

17. An appeal, preferred by the respondent, against the decision of the DA was also dismissed by the Appellate Authority on 17 July

2020.

18. Aggrieved thereby, the respondent approached the Central Administrative Tribunal[4] by way of OA 1133/2022.

19. By the judgment dated 29 May 2024, the Tribunal has allowed the OA in the following terms:

20. The Tribunal has, in allowing the OA, relied on its earlier decision in Jagmohan v UOI[5], rendered by the Tribunal on 20 May

2024.

21. The decision of the Tribunal in Jagmohan was carried by the department to this Court, and stands affirmed by us[6]. We may reproduce, from the said decision, the relevant paragraphs, thus:

“the Tribunal” hereinafter OA No 20/2023 Refer UOI v Jagmohan, 2024 SCC Online Del 9099

Joginder was not, however, provided with any of the documents at

10. With respect to the request for documents by Sukhvinder, for his defence, the inquiry Report dated 21 December 2021, of the IO, records thus: “Accordingly CO has supplied list dated 07.09.2020 of documents and witnesses to be produced during inquiry for his defence. The list was carefully scrutinised by the IO and relevant documents and witnesses were allowed. The letter to supply the same was addressed by letter dated 21.09.2020. The custody of the said documents were reported to be ‘SP Gondal/CPMG Ahmedabad/DOP’ by the CO. The letter was addressed to PO but a copy of the same was also addressed to the authority having custody of the same as mentioned by CO in his demand letter i.e. SP Gondal. Custodian of the documents i.e. SP Gondal has also intimated vide letter dated 01.12.2020 that these (defence) documents were called from CO Ahmedabad and will be supplied after receipt of the same. Custodian of the documents i.e. SP Gondal has been sent non-availability letter vide B2/Rule-14/01/Sukhvinder/2020 dated 22.01.2021 as per CO Ahmedabad letter No. R & E/1- 1/DR/2013 & 2014-III dated 05.10.2020 additional documents demanded by CO was not available of the said information which was sent to Charge on 28.01.2021 by IO.” *****

14. The factual and legal position which obtained in the case of the respondents before the High Court of Gujarat in Anil Kumar[7] are identical to those which obtained in the case of the present respondents, inasmuch as the respondents in Anil Kumar were also among those who participated in the examination conducted for the posts of Postal Assistant and Sorting Assistant pursuant to the advertisement dated 21 February 2014 and who, after initially having been appointed, were terminated by cancellation of their appointment, based on the report of the CFSL. In their case, too, fresh appointment orders were issued, an inquiry conducted, pursuant to the directions of the Supreme Court in its order dated 13 July 2017 in Civil Appeal 10513/2016 and connected cases. In their case, too, documents, which were sought by the respondents for their defence were permitted by the IO but not provided. Among other reasons, the High Court of Gujarat, in its judgment in Anil Kumar, has affirmed the decision of the Ahmedabad Bench of the Tribunal to set aside the termination of the respondents (before the High Court) from service and directed reinstatement, on the ground that there was clear violation of the principles of natural justice in not providing the documents sought by the respondents, especially as the only evidence against them was the CFSL report. *****

16. The default, on the petitioner's part, in supplying the documents sought by the respondents Jagmohan and Sukhvinder, and allowed by the IO has relevant for the defence is, in our opinion, fatal to the inquiry proceedings. It signals complete breach of the principles of natural justice and fair play. It is elementary UOI v Anil Kumar, MANU/GJ/1221/2024 that, in any quasi-judicial proceedings, the person charged is entitled to be provided material relevant for his defence. The finding of the IO that the documents were relevant ipso facto render their non-supply to the respondents fatal to the inquiry. In fact, no reasonable purpose would be served even in permitting the petitioners to recommence the inquiry against the respondents, if the documents are essential for the defence are not forthcoming. In this context, we find it difficult to believe that the documents are not available, as the inquiry was conducted in reasonable proximity to the order passed by the Supreme Court.

17. It is, further, well settled in evidence that handwriting comparison constitutes evidence of an extremely weak character, and cannot, in any event, be treated as conclusive. We may reproduce, in this context, the following passages from the judgments of the Supreme Court in S.P.S. Rathore v. CBI[8] and Padum Kumar v. State of UP[9]: From S.P.S. Rathore:

47. With regard to the contention of the learned Senior Counsel for the appellant-accused that the signatures of Ms. Ruchika on the memorandum were forged though she signed the same in front of Shri. Anand Prakash, Shri S.C. Girhotra, Ms. Aradhana and Mrs. Madhu Prakash and they have admitted the same, we are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.

49. In Bhagwan Kaur v Maharaj Krishan Sharma10 this Court held as under: “26. It is no doubt true that the prosecution led evidence of handwriting expert to show the similarity of handwriting between (PW 1/A) and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, not much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat11 this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.”

50. It is thus clear that uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.” (Emphasis supplied) From Padum Kumar “14. The learned counsel for the appellant has submitted that without independent and reliable corroboration, the opinion of the handwriting experts cannot be relied upon to base the conviction. In support of his contention, the learned counsel for the appellant has placed reliance upon S. Gopal Reddy v. State of A.P12., wherein the Supreme Court held as under:

AIR 1957 SC 381 AIR 1963 SC 1728 Banerjee16 where it was pointed out by this Court that an expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P.17 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.’”

15. Of course, it is not safe to base the conviction solely on the evidence of the handwriting expert. As held by the Supreme Court in Magan Bihari Lal v State of Punjab that:

16. It is fairly well settled that before acting upon the opinion of the handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence. In Murari Lal v State of M.P.18, the Supreme Court held as under:

AIR 1964 SC 529 AIR 1967 SC 1326 unreliable witnesses — the quality of credibility or incredibility being one which an expert shares with all other witnesses — but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty “is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence” [Vide Lord President Cooper in Davis v. Edinburgh Magistrate19, quoted by Professor Cross in his evidence]. *****

6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person “specially skilled” “in questions as to identity of handwriting” is expressly made a relevant fact.… So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no 1953 SC 34 hard-and-fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.”

18. Keeping in view the above legal position, we find no error in the impugned judgment of the Tribunal, as the petitioners have, in their arsenal, the handwriting opinion of the CFSL and no other evidence, and the respondents were, moreover, not provided with the documents which were found, even by the IO, to be necessary for their defence.”

22. The principle enunciated in the aforesaid paragraphs from Jagmohan, in our view, apply mutatis mutandis to the case at hand.

23. Mr. Pathak, learned SPC for the petitioner, sought to distinguish the judgment in Jagmohan rendered by this Court on the ground that the specimen handwriting of the candidate in that case had been taken considerably anterior in point in time from the date when the candidate had attempted the examination.

24. That, in our considered opinion, cannot constitute a ground to distinguish Jagmohan. We may note that the Supreme Court in Magan Bihari Lal v State of Punjab, held that handwriting opinion is evidence of an extremely weak nature and cannot constitute the sole basis for determining the identity of the person whose handwriting is subjected to examination. The relevant paragraphs from Magan Bihari Lal may be reproduced thus: “7. … we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v State of U.P.20, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v Mohd. Isa21 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v Subodh Kumar Banerjee22 where it was pointed out by this Court that an expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v State of M.P.23 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands24 and Matter of Alfred Foster's Will25. The Supreme Court of Michigan pointed out in the last-mentioned case: “Everyone knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship — Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil.””

25. Apart from the fact that, in the present case, therefore the only AIR 1957 SC 381 AIR 1963 SC 1728 AIR 1964 SC 529 AIR 1967 SC 1326 1822 5 B and Ald 330 34 Mich 21 basis to remove the respondent from service was the opinion of the handwriting expert, which may not constitute sufficient basis to do so, we are additionally inclined to uphold the order of the Tribunal because of the flagrant breach of Rule 14 of the CCS (CCA) Rules in the manner in which the inquiry was conducted.

26. Rule 14(6) of the CCS(CCA) Rules reads thus:

27. When one travels through Rule 14 of the CCS(CCA) Rules, one finds that sub-rule 3 thereof deals with what the disciplinary authority is required to draw up. It stipulates that the DA shall draw up or cause to draw up the substance of imputation of misconduct in support of each article of charge and among other things, the list of documents and the list of witnesses by which the articles of charge are proposed to be sustained. Thereafter, Rule 14(4)(a) requires the DA to deliver to the government servant the copy of the articles of charges along with the statement of imputation of misconduct and the list of documents and witnesses. Proceeding further, Rule 14(6) specifically requires the DA, where it is not the IO, to forward, to the IO, among other things, “evidence proving the delivery of the documents referred to in subrule (3) to the government servant”. The documents referred to in sub-rule (3) are all the documents contained in the list of documents annexed to the chargesheet.

28. Thus, the IO acquires jurisdiction to proceed with the inquiry only after the DA has forwarded to the IO evidence to indicate that all the documents which are enlisted in the list of documents annexed to the chargesheet have been provided to the charged officer.

29. The IO, therefore, has no liberty to consider, suo motu, that some of the documents are not relevant and, therefore, refused to provide them to the charged officer.

30. Indeed, such a decision may be perilously open to an inference that the documents of which copies have not been provided may be adverse to the interests of the department. Else, there can be no explanation as to why, at the time of drawing up of the chargesheet, the documents were felt to be relevant and, during inquiry, the documents were not provided to the charged officer on the ground that they were not relevant.

31. That apart, we find that another fatal infirmity in the enquiry proceedings in the present case is the omission, on the part of the petitioner, to make available the witnesses enlisted in the list of witnesses annexed to the charge sheet, to support the case that the petitioner was seeking to make out. Most prominently, even the scientist from the CFSL, who was the first witness cited in the list of witnesses annexed to the charge sheet, was never made available. The obvious sequitur is that the CFSL report went unproved. We are fortified, in this view, by the passages from the judgment in Roop Singh Negi which already stand extracted supra.

32. As a consequence of the said witness not being produced in the enquiry proceedings, the respondent was also denied an opportunity to cross examine him or disapprove or contest the correctness of the CFSL report. This was especially so, in view of the legal position that a handwriting report is, as we have already noted, a very weak form of evidence and at the very least, the charged officer had to be afforded an opportunity to disprove the report.

33. For all these reasons, we are in agreement with the Tribunal that the removal of the respondent from service, after he had been appointed, on the sole basis of the CFSL Report, cannot sustain in law.

34. We therefore, find no cause to interfere with the impugned judgment of the Tribunal which is affirmed in its entirety.

35. The writ petition is accordingly dismissed, with no orders as to costs.

C. HARI SHANKAR, J.