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HIGH COURT OF DELHI
W.P.(C) 6983/2017
ALL INDIA INSTITUTE OF MEDICAL SCIENCES .....Petitioner
Through: Mr. V.S. R. Krishna and Mr. V.
Shashank Kumar, Advs.
Through: Ms. Nidhi Mohan Parashar and Mr. Deepak Yadav, Advs.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT
18.11.2024 C. HARI SHANKAR, J.
1. On the ground that, while employed as Lower Divisional Clerk in the All India Institute of Medical Sciences[1], he had demanded and accepted a bribe of ₹ 40000/- for treatment of Ashok Kumar Dash, a patient, the respondent was issued a Memorandum dated 31 October 2007, proposing to initiate disciplinary proceedings against him under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rule, 1965[2]. The charge was based on a sting operation allegedly conducted by India TV, which was claimed to have been “AIIMS” hereinafter “the CCS (CCA) Rules” hereinafter aired on national network. The sole Article of Charge, in the chargesheet, read as under: “That Shri Gopal Chandra Sahoo while working as L.D.C. in C.T.V.S. Department, AIIMS, has demanded bribe of ₹ 40,000/- (Rupee forty thousand only) for the treatment of one patient Shri Ashok Kumar Dash, aged 43 years, Male at the C.N. Centre, AIIMS and accepted the bribe. While accepting bribe of Rs 39,500/- from patient’s relatives namely S/Shri Ashok Kumar Pani,
2. The charge sheet contained, as the Annexures thereto,
(i) the complaint dated 22 May 2007 of Ashok Kumar Pani,
(ii) letter dated nil of S. Ranjan Pati, stated to be corroborating the complaint dated 22 May 2007 of Ashok Kumar Pani, and
(iii) letter dated 12 June 2007 forwarding the CD of the sting operation, stated to have been conducted by Jasleen Singh, Manager Corporate Officer, India TV, besides a copy of the purported CD. Ashok Kumar Pani, S. Ranjan Pati and Jasleen Singh were cited as the witnesses, from whose evidence AIIMS intended to prove the charges against the respondent.
3. The respondent denied the charge against him. An Inquiry Officer[3] was accordingly appointed who inquired into the charge against the respondent.
4. Despite summons, none of the three witnesses cited by the AIIMS with the charge-sheet appeared before the IO.
5. Significantly, however, Jasleen Singh of India TV, whom AIIMS cited as its third witness, forwarded an undated letter to the IO on 15 June 2010, categorically denying having ever undertaken any sting operations, which were not part of her duties as Manager, Corporate Office, India TV, and disowning all knowledge of the alleged receipt of bribe by the respondent. She also disclaimed all knowledge of the respondent, or of Ashok Kumar Pani or S Ranjan Pati.
6. The IO, after inquiring into the charge against the respondent, held the charge not to have been proved. The concluding paragraph of the Inquiry Report, dated 10 May 2011, read thus: “During the course of inquiry, listed documents and the CD were examined by the inquiry officer. On the basis of the documents and the CD attached with the charge sheet, it appears that some money transaction has taken place between Shri Gopal Sahu and the people shown in the CD. The authenticity of the CD could not be established due to the absence of the witness. Also, the motive of the money transaction could not be established due to the absence of all the witness mentioned in the charge sheet. Since none of the witness mentioned in the charge sheet personally appeared or the authenticity of the written complaint and the CD submitted with the chargesheet could not be established, the charges framed against Shri Gopal Sahu could not be established.” “IO” hereinafter
7. AIIMS, unhappy with the Inquiry Report, appointed a second Inquiry Officer on 25 August 2011, to examine the charge against the respondent de novo. This action was challenged by the respondent before the Tribunal by way of OA 4355/2011, which was allowed on 28 May 2013, holding that there could be no second inquiry into the charge against the respondent, but reserving liberty with the Disciplinary Authority[4] in the AIIMS to issue a note of disagreement with the report dated 10 May 2011 of the IO, if he so chose.
8. The Chief Vigilance Officer of the AIIMS therefore issued Memorandum dated 12 October 2013, communicating the DA’s decision to disagree with the findings of the IO and seeking a response from the respondent. The respondent submitted his reply to the Disagreement Memo on 29 October 2013, and was also extended an opportunity of personal hearing, by the DA, on 18 November 2013.
9. Vide Order dated 18 December 2013, the DA held the charge against the respondent to have been proved and the IO to have erred in holding otherwise. In so holding, the DA primarily observed that the CD recorded receipt of money by the respondent, which “unequivocally established incident of illegal gratification”. It was observed that the DA had extended an opportunity to the respondent to explain the CD, but that he was unable to do so. Following these observations and findings, the DA imposed, on the respondent, the penalty of compulsory retirement, under Rule 15 of the CCS (CCA) Rules read with Regulation 33(2) of the AIIMS Regulations, 1999. “DA” hereinafter
10. The respondent appealed against the said Order dated 18 December 2013 to the appellate authority. Vide Order dated 7 March 2014, the appellate authority rejected the appeal.
11. The respondent moved the Tribunal, challenging the disciplinary proceedings initiated against him, culminating in the Order dated 18 December 2013 of the DA and the appellate order dated 7 March 2014. It was prayed that the said proceedings and orders be quashed and set aside, and that AIIMS be directed to take the respondent back in service.
12. Vide order dated 17 January 2017, the Tribunal has allowed the OA filed by the respondent, quashed the proceedings against him and directed that he reinstated in service, on the ground that, as none of the cited witnesses could be produced in the enquiry, and none of the documents on which AIIMS chose to place reliance was proved by any of the cited witnesses, the case was one of no evidence. The exact reasoning of the Tribunal reads thus:
13.
14. We have heard Mr. Shashank Kumar, on behalf of Mr V.S.R. Krishna, for AIIMS. None appeared for the respondent.
15. Mr. Shashank Kumar submits that the Tribunal[5] has erred in its approach as it applied strict rules of evidence whereas, in disciplinary proceedings, preponderance of probability is what counts. According to him, all the facts, when seen holistically, make out a case of preponderance of probability of the respondent having accepted bribe as alleged in the chargesheet.
16. Mr. Shashank Kumar submits that the acceptance of money, by the respondent, was disclosed in a sting operation conducted by the India TV news channel, and was visible in the CD. The fact that the respondent having accepted the money was also proved by the statements of Ashok Kumar Pani and S.R. Pati, who allegedly paid the said amount to the respondent. He further submits that the IO, too, in his Inquiry Report, found the fact of some money having been exchanged between the complainant and the respondent had been proved. These facts, submits Mr. Shashank Kumar, are sufficient to prove the charge against the respondent, applying the principle of preponderance of probability.
17. Mr. Shashank Kumar further submits that all efforts had been made to requisition the witnesses, to corroborate their statements, but, probably because they were poor people staying far away, they did not come to depose. Relying on the judgment of a learned Single Judge of this Court in Delhi Transport Corporation v Shree Kumar[6].
18. We are unable to agree with Mr. Shashank Kumar that any case exists for interference with the judgment of the Tribunal.
19. The petitioner was unable to produce any evidence to support the case that it sought to set up. The persons from the news channel, who had allegedly conducted the sting operation, never came forward to depose. Rather, Jasleen Singh, from India TV, who had supposedly conducted the sting operation and had forwarded the CD to AIIMS, in her undated letter, posted to AIIMS on 15 June 2010, disclaimed ever having known Ashok Kumar Pani, S.R. Pati, or the respondent, and categorically averred that conducting of sting operations did not even fall within the province of her duties in India TV. As already noted, neither Ashok Kumar Pani nor S.R. Pati came forward to prove their statements.
20. While Mr. Shashank Kumar is right in his contention that the principles applicable to disciplinary proceedings is one of preponderance of probabilities, the operative word in the said expression is “preponderance”. The mere existence of one or the other circumstance does not make out a case of preponderance of “the Tribunal”, hereinafter 2004 (76) DRJ 252 probabilities. Preponderance of probability requires that degree of proof which convinces the Court that the fact alleged is true, rather than the reverse. It must, therefore, carry conviction to the mind of the Court, and dispel doubt.[7]
21. In the present case, in fact, we are in agreement with the Tribunal that the case was one of no evidence. None of the three witnesses who were cited by the petitioner, come forward to substantiate the charges against the respondent. Insofar as the inquiry report is concerned, the penultimate paragraph of the report makes it clear that, even while observing that the CD seemed to indicate some money having been exchanged, the IO, in the very next breath, went on to observe that the authenticity of the CD itself was in doubt.
22. Thus, AIIMS had, with it, and against the respondent, communications from the persons who alleged to have paid illegal gratification to the respondent, but they never came forward to vouchsafe their communications. Also, the CD stated to have been prepared and forwarded by Jasleen Singh of India TV, could not be proved and conduct of such a sting operation was disclaimed.
23. Corroboration can only be of evidence which itself has probative value. In Director of Public Prosecutions v Hester[8], it was observed:
Edn (1972) 3 All ER 1056 (HL) “The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible…” Relying on this dictum, the Supreme Court, in Sitaram Sao v State of Jharkhand[9], held that “corroboration means not mere evidence tending to confirm other evidence”. The corroborated evidence had itself to be shown to be “sufficient and satisfactory and credible”.
24. Evidence, lacking in credibility cannot, therefore, be said to corroborate other evidence also lacking in credibility, to make out a case of plenitude of evidence probabilizing the allegation. Zero, in all its multiples, is zero.
25. Besides, this Court has to be conscious of the fact that it is sitting in writ jurisdiction, and not in appeal over the decision of the Tribunal. We exercise certiorari jurisdiction, the peripheries of which are classically defined in the following passage from Syed Yakoob v K.S. Radhakrishnan10:
AIR 1964 SC 477 or Tribunal acts illegally or in properly, as for instance, it decides a question without giving an opportunity to be heard, to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconducted or contravened." (Emphasis supplied) It is only, therefore, where the decision of the Tribunal is found to establish legal principles or is found to suffer from perversity, that the Court would interfere.
26. The decision in Shree Kumar, on which Mr. Shashank Kumar placed reliance, is clearly distinguishable. In that case, the allegation of the conductor of the bus having accepted bribe was proved by independent evidence of the checking staff who had checked the bus, who testified not only before the IO but also before the Industrial Tribunal. In that view of the matter, this Court held that the failure of the DTC to obtain statements of the passengers in the vehicle was not fatal to its case. The case was not, therefore, unlike the present, one of no evidence.
27. It may be noted, here, that, in the present writ petition, the main burden of the song of the petitioner is on an entirely different aspect. The case that the petitioner had sought to make out the writ petition is that, as sufficient evidence was existed at the time of conducting of the preliminary fact-finding inquiry before a chargesheet was issued, that would suffice to make out the charges against the respondent. Mr. Shashank Kumar has not chosen to raise the said contention during arguments. We may however, note that this contention is clearly incorrect in view of the judgment of the Supreme Court in Amalendu Ghosh v District Traffic Superintendent11, in which it is held thus:
Thus, a preliminary fact-finding inquiry cannot be a basis for confirming allegations in a disciplinary proceeding. AIR 1960 SC 992
28. For all the aforesaid reasons, no case is made out to interfere with the impugned order of the Tribunal.
29. The petition is dismissed.
C. HARI SHANKAR, J.