Govt of NCT of Delhi and Ors Through Commissioner, Trade and Taxes v. Shashi Singh

PRADEEP NANDRAJOG,J WP(C) 87/2010 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. =i-- . DIM THE HIGH COUD^T OF,DELHI AT HEW DELHI + W P.(C) 51/20.10 % GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus JAI BHAGWAN ' Respondent, Through Nemo , W P.iC) 58/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, . TRADE AND TAXES c Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SANJAY DAWAR, STENOGRAPHER Respondent Through Mr. S.P.Mehta, Advocate W P.fC) 67/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus DJ GUPTA Respondent Through Mr.Shyam Babu, Advocate + w P.fC^ 77/2010 ' , GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, • TRADE AMD TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh 1/1/ P./C.i 5]Omo & CnnnecLed matters Paoe 1 of 37 o Kr.Singh, Advocates vers us GEETA MALHOTRA Respondent Through Mr.S.P.Mehta, Advocate +

W.P.fO 78/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES - Petitioner Through Mrs.Avnish Ahalvyat with Mrs.Simran, Mrs.Latlka Choudhary and Mr.Nitesh Kr.Singh, Advocates' versus A K JAIN Respondent Through Mlr.S.P.MIehta, Advocate w P.(C) 81/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, n TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh n Kr.Singh, Advocates n versus " SOHAN LAL L.D.C Respondent Through Mr.Sachin Chauhan, Advocate WBTH W.P.fC) 83/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AMD TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates vers us RAJESFI SINGH STENO Respondent Through Mr.Sachin Chauhan, Advocate + \M.P.(C) 87/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner W.PJO 51/2n in connected matters Paqe 2 of 3.7 o Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SHASHI SINGH Respondent Through Mr.Sachin Chauhan, Advocate -I-W.P.CC) 88/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh ^ Kr.Singh, Advocates versus KARAN SINGH YADAV ASTO Respondent . Through Mr. Sachin Chauhan, Advocate n WITH +

W.P.fC) 90/2010' GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ' Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mlrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SATWANT KAUR Respondent Through Mr. Sachin Chauhan, Advocate m'/iTH +

W.P.(C) 92/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus AMAR SINGH PEON ' Respondent Through Mr.Sachin Chauhan, Advocate W.P.(C) 51/2010 & Connected matters n W P fO 112/2010 . GOVT OF NOT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika ChoLidhary and Mr.Nitesh Kr.Singh, Advocates versus PRABHAJOSHI Respondent Through Mr.S.P.Mehta, Advocate VA/ P.(0 113/2010 GOVT OF NOT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ' Petitioner n Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus n n MUSHTAQ AHMED, PEON Respondent Through Mr.Sachin Chauhan, Advocate n + W P.fC) 114/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus YAD RAM YADAV ..... Respondent , Through Mr.Sachin Chauhan, Advocate + W PRC) 115/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES .....Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh W.P.(C) 51/?mn & Connected matters Paqe 4 of 37 Kr.Singh, Advocates vers us KIRAM VERMA PEON Respondent Through Mr.Sachin Chauhan, Advocate WITH + W P.(C) 116/2010 GOVTOF NCTQF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus RANJIT CHOUDHARY, STENO Respondent Through Mr.S.P.Mehta, Advocate W P.fC) 117/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates . versus ! SHAMSHER SINGH UDC Respondent i Through Mr.Sachin Chauhan, Advocate WITH i n + \M.P.(C) 118/2010 ' ' GOVT OF NCT OF DELHI THROUGH COMMISSIONER, ; TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, I Mrs.Latika Choudhary and Mr.Nitesh ' Kr.Singh, Advocates versus n RAlvj E5HAJAN, PEON Respondent Through Mlr. Sachin Chauhan, Advocate -I- \A/.P.(C) 119/2010 W.P.(C) 51/2010 & Connected matters Paqe 5 of 37 GOVTOh NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus GANPAT SINGH Respondent Through Mr.S.P. Mehta, Advocate I

WITH -I-W P (C) 123/2010 I GOVT OF NOT OF DELHI THROUGH COMMISSIONER, trade and taxes Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simian, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates j j versus C P YADAV PEON Respondent Through Nemo -I-W P fCI 124/2010 I GOVT OF NOT OF DELHI THROUGH COMMISSIONER, : TRADE AND TAXES Petitioner J n Through Mrs.Avnish Ahalwat with Mrs.Siimran, i Mrs Latika Choudhary and Mr.Nitesh i O Kr.Singh, Advocates , versus : AJAY KUMAR STENOGRAPHER Respondent , Through Nemo j

WITH j I + W PYO 129/2010 I . I GOVT OF NOT OF DELHI THROUGH COMMISSIONER, j TRADE AND TAXES Petitioner ! ' Through Mrs.Avnish Ahalwat with Mrs.Simran, j Mrs.Latika Choudhary and Mr.Nitesh ! Kr.Singh, Advocates W.P.(C) 5117.010 & Connected matters versus SHRl CHAND Respondent Through Mr. S.P. Mehta, Advocate WITH ' ' \M P fO 130/2010 GOVT OF NOT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates ' . versus SWARAN GUJRAL ■■■.. Respondent Through Mr.S.P.Mehta, Advocate W P.(C) 131/2010 . GOVT OF NOT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus BRAFIAM SINGH PEON ■■... Respondent Through Mr.Sachin Chauhan, Advocate W P (C) 265/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, ■Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus VEENAANAND Respondent Through Mr.Ajay K.Sharma, Advocate w p.(a 51/7010 & Connected matters . PaaeJ of 37 Q n H-W P (C) 1857/2010 H- . \/\/ P (r.1 1084/2010 GOVT.OF NCT OF DELFil St ORS.TFIROUGFI COMMISSIONER,TRADE 5( TAXES Petitioner n Through Mrs.Avnish Ahalwat with Mrs.Sum an, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates vers us ANIL KUMAR Respondent Through Mr.Abhay Kumar and Mr.Tenzmg Tsering, Advocate \A/ P (C.) 1172/2010 GOVT,, OF NCT OF DELHI St ORS.THROUGH C0MMISS10NER,TRADE St TAXES Petitionei Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mi .Nitesh Kr.Singh, Advocates versus SMIT.VIMLA SEHGAL Respondent Through Mr.Arvind Nayar, Advocate GOVT.OF NCT OF DELHI St OTHERS Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus PHOOL SINGH Respondent Through Mr.Sachin Chauhan, Advocate + W P.fC) 1858/2010 GOVT.OF NCT OF DELHI St ORS. Petitioner Through Mlrs.Avnish Ahalwat with Mrs.Simran, W.P.(C) 51/2010 & Connected matters PaQe 8 of 37. , h Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus BRAHAM SINGH,LDC Respondent Through Mr.S.P.Mehta, Advocate -I- \A/ P (C\ B644/201Q rnxAT OF NCT OF DELHI & ORS. • nnn n Petitionei Through Mrs.Avnish.Ahaiwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus ASHVVANl KUMAR! Respondent Through Nemo W P.(C) 4437/2010 GNCT OF DELHI AND ORS . Through Mrs.Avnish Ahalwat with Mi s.Simi an, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh,Advocates V G1 S LI S RS )EPH Respondent Through Nemo W P.(C) 3056/2010 GOVT OF NCT OF DELHI & ORS THROUGH PRINCIPAL SECRETARY (HOME) ' • n nnn Pf itionei Through Mrs.Avnish Ahalwat with Mrs.Simian, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus , , W.P.(C) 5TOOIO & Connected matters RA| KUMAR Respondent Through Mr.Sachin Chauhan, Advocate -I-W P.(C) 13806/2009 GOVT OF NOT OF DELHI AND ORS THROUGH PRINCIPAL SECRETARY (HOME) n Petitioner Through Mrs.Avnish Ahalwat with Mrs.SiiTiran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus DIGAMBER SINGH Respondent - Through Mr.G.D.Gupta, Sr.Advocate with Mr.S.K.Sinha, Advocate W P fCO 49/2010 GOVT OF NOT OF DEKH! ORS THROUGH PRINCIPAL SECRETARY Petitioner Through Mrs.Avnish Ahalwat with Mrs.SiiTiran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus KRISHAN KUMAR Respondent Through Nemo W P.fC) 50/2010 GOVT OF NOT OF DELHI AND ORS THROUGH PRINCIPAL SECRETARY(HOME) Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mlr.Nitesh Kr.Singh, Advocates n versus VINOD KASHYAP Respondent Through Mr.Sachin Chauhan, Advocate W.P.(C) 51/?010 & Crinnsrtecf matters PageJ^O^f^ WDTH xN.p.ic) iziam-GOVT OF NOT OF Kapoor with Mr.Nitesh, Singh, Advocates versus R.D. BOHET n Respondent Through Mr.A.K.Behra, Mr.K.C.Baliasingh, Advocate 'OLC JUSTICE PflADEEP NANDRAJOG 'BLE MR. JUSTICE WOOL CIHAiMD GARG Whether reporters of Local papers may be allowed to see the judgment? To be referred to the reporter or not? Whether the judgment should be reported in the Digest? Yes Yes Yes ] we preface our decision by noting the argument pf iearned counsel for the petitioners, being that so reprehensible is the conduct of the respondents, who have been caught literally with their pants down of accepting bribe that this Court ought to extend no benefit to the respondents, it was urged that law has to be interpreted, in the instant case, keeping in view the grave misdemeanour of the respondents'. In other words, the counsel for the petitioners urge that the respondents are not entitled to any hearing. The argument is emotional and is rejected at the outset for the reason a system n governed by the rule of law requires dispute resolution as per law. The submission made by iearned couns'el for the-petitioners can be best repelled^ by noting a dialogue between Sir Thomas More on the one side and his daughter Margret and his son-in-law Roper in the play "A Man For Ail Seasons" by Robert Bolt. It refers to an incident 'when Sir Thomas More was urged by his daughter. Margaret, and his son-in-law Roper, to arrest a man they regarded as evil. The dialogue is as under:- P^npll0f37 w p (D .-Sl/pnin & Connerlecl matters 1 ^ ! Margaret; "Father, that man's bad." More: "There is no law against that." Roper: "There is! God's law!" More: "Then God can arrest him. 1 know what's legal, not what's right. And I'll stick to what's legal ... 1 am not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm not a voyager. But in the thickets of the law, Oh, there I'm a forester." Roper would not be appeased and he levelled the charge that More would give even the Devil the benefit oflaw. More: "Yes. What would you do? Cut a great road through the law to get after the Devil?" , • . n .Roper; "I'd cut down every law in England to do that! More: "Oh?....And when the last was down, and the Devi l turned round on you, where would you hide. Roper, the laws from coast to coast - man's law, not God's - and if you cut them down -...D'you really think ,you could stand upright in the winds that would blow then?...Yes" I'd give the Devil the beoefit of lamn for my own safety's sake." The very question which confronts us in this matter is as to whether the reasoning of the respondents concluding that it was not ■reasonably practicable' to hold an enquiry before dismissing the respondents from their services by invoking second proviso to sub clause (b) of Article 311(2) of the Constitution of India in the prevailing circumstances at the relevant time was justified or not.

¶3The circumstances in which enquiry can be dispensed with now stands explained in the guidelines forming part of Rule 19 of the CCS(CCA) Rules after the pronouncement of the judgment in the case of Union of India Us Tulslram Patel (1985) 3 SCC 398 by the tfon ble Supreme Court of India. Paryp 12 of 37 W.PJC) 57/?fnQ & rnnnecLecl matters

¶4In the aforesaid matters petitioners after telecast of news item captioned Programme 'VisheslV with caption 'Ghoos Mahal' on

08.03.2005 at about 9:30 p.m. by T.V. news channel 'Aaj Tak' wherein respondents posted in Tihar Jail were shown accepting money from the persons lodged in jai l and from those coming to meet them; respondents posted in Trade and Tax Department were shown negotiating and accepting money from public for doing undue favours, as a kneejerk reaction suspended al l the respondents. The petitioners also lodged an FIR against al l the respondents under Sections 7, 12, and 13 of the Prevention of Corruption Act on • 09 03.2005 itself. Q n 5. Later on, vide separate orders dated 27.09.2005 passed in the case of respondents working In Tihar Jail and vide orders dated

08.09.2006 passed in the case of employees working in Trade and Tax Department of the said State Government the petitioners dismissed their services without holding any domestic enquiry on the pretext that the owners of the T.V. News Channel 'Aaj Tak' refused to associate themselves with any enquiry/investigation as may be conducted in the matter.

¶6These orders were challenged by the respondents by filing appeals and supplementary appeals before the Appellate Authoi ity which were dismissed with the only modification of converting ' 'dismissal' to 'removal .

¶7The respondents than approached the Central Administrative Tribunal Principal Bench New Delhi. A strange situation arose befote - tne Tribunal, In as much as O.A, No.2884/2005, 2005/2005, 2897/2005, 2899/2005 and 2898/2005 were dismissed vide order dated 13.04.2006; while a petition filed by One R.D.Bohet being O.A.No.778/2006 was allowed by a coordinate bench of the Tribunal vide order dated 24.11.2006 without referring the matter to larger bench A writ petition bearing No.721/2007 was also filed.before this Court against the order passed oh 24.11.2006 which stands admitted and Is now being taken for disposal with other connected matters by n this common order. Pf^qp 1.3 of 37 w P.(C.) 51/^^Tn Connected matters inAc- \ filed bv the respondents were 3^ -e ~ ,e« ome conf,:. of opinions referred howeve, to a in the two coordina Toinnn? Later on, on an . . , -,fi-hp nendency of W.P.(C) No. 721/2007. La , die in view of the penae y ^ 2561/2006, larger Bench application filed by the app ican i the tribunal deciding the matter contrary Tribunal without referring the matter o however concerned with the following question giving of the petitions before us. n Whether in the facts and circumstances of the case, the power conferred by clause (b) of the second Article 311(2) o f the Constitution read with Rule central Chrii Services (Classification. Control and Appeal) Rules. 1985 can be justifiably invoked and the impugne order sustained. h. The cominon ground taicen by the News of Aai Tai< news channel declined in writing to allow t o'rs and iournalists to Join in any investigation ,mo onduct of the applicant and consequently the case of the ctU" fnr dispensing with the enquiry was Government of India itself for invoking clause (b) of 2 Article 311 (2) of the Constitution of India. R.|e 19 of in The three conditions mentioned in sub-clause ( ) ^ Ihe CcT, "a>, televant oking of sub-Cause ,b, of the second proviso to Article 311(2) provides that; I Prtqp 14 of 37 . W p (r) S I/2010 &cmim£isdjmtters

(a) Where a civi l servant, alone or together with his associates terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear or reprisal in order to prevent them from doing so; or , u +-i

(b) Where the civil servant by himself or though others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that the officer is afraid to hold the enquiry or direct it to be held; or

(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time of the attempt to hold the enquiry is made

¶11The disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department's case against the civil servant is weak and is, therefoie, bound to fal l.

¶12Before the Appellate Authority, respondents submitted thatThe Orders passed by the disciplinary Authority in these cases do not meet the aforesaid test and thus the orders impugned in appeai were liable to be set aside. Further the respondents denied the allegations such as acceptance of money, allegation of existence of compact disc showing alleged persecution and corresponding with persons or relatives of persons and receiving money not owned by the respondents, etc. They also questioned the authenticity of the compact discs. It was also stated that in the order it was not even alleged that the respondent in any manner tried to contact the news channel or tried to influence or terrorize witnesses. It was also submitted that when regular departmental enquiry was ordered in case of similarly situated person i.e. one Dr.A.K.Bachawat there was no reason to discriminate with the respondents. However the appeals were dismissed vide common order dated 21.12.2005 and

24.10.2007 except that the decision to dismiss was converted in 'Removal'.

¶13It is thereafter the respondents approached the Tribunal where also similar issues were raised. The Tribunal allowed the applications vide common order .dated 31.9.2009 holding that the orders PdOG 15 of 37 W.P.(C) 51/POT'n & Cnnnp.ctecl maCters — ^ dismissing the respondents after conciuding that if was not ' -H Varripf filpd the afoi'Bsaicl wi it petitions. 14 " The order of dismissal passed in the case of Digambar Singh, an "™,oyee of Tihar Jail, (CWP No.13806/2009) which is similar to a,i rLses of Tiharjal, hmpiovees setting opt the the procedure as per the proviso of Sub clause 2 (b of Aitid the constitution of India is reproduced for the sake of reference, "Office of the Director General (Pi isons Prisons Headquarters; Tihar; New Dell Fll(659):Ci:Vigilancei2005:2187 ' Dated 27/9/05 WHEREAS onthe4th May, .^"efoie'r ?:;:fiLTo:wT'h%h(fcap«on, Tihar jail bana Ghoos mahak; and whereas .pfn^Dlgarnbar Singh wart TiTS iSTin JaHs o°r t^ intending to m^ TToTS(hiTT2°T 2002)"-," the rules made thereunder read with the Delhi Jail Manual; and whereas the said Shi-i Digambar Singrt Warder-599 was dated 4* May, order no. 5» Ma(, 2005 and further a case FIR No. 25/4Uu;d "irl Shri 2005 was registered, amongst others against the s D?gambar Singh, Warder-599 under Se9tjy ,12 nd U TTisTaTorAT^rpraa^nT,^ AMP) WHFREAS the above misconduct on the part of and WMtKtA^ \A/ardpr-599 is in violation of the said Shri Digambar Sinj , , npcons Act 2000 (Delhi - the foiiowing provisions of the Delhi Pnsons yt 20U J Art 2 of 2002) and the rules made tneieuiiuei tine provisions of the Delhi jail Manai, namely; Q nf the Delhi PrJimn^Art.^tmiD^^ 7002) Officers not to have business dealing with prisoners and others;- p^qp 1 6 of 37 p (D s7/?niO & Connectedrnmsrs indirectly with any prisoner. 'p^jsone" -th 'prSon administration. P^l/m nf nplhi Prisons (|ii5|3edlimiJ^^Iee^^ nf Officers) Rli 165,1988 ■clmunicauCof any Kini'^^aatever "ith"^ny° el'alve or |lJ'"\?o,d"'Bn';—orized communication of any Kind I^T'cmye^pr o^ S":,; intercourse wPatever with quarters

(2) Mo subordinate officer shall at any time.-

(a) hold any uncessary converse with any prisoner. fh) treat any prisoner with familiarity; or

(r) I CLis any matter relating to the discipline o legulatlons of the jaii with or within the hearing of any prisoner The conduct clearly establishes nimmbar Sincjh \A/arder-599 had expressed his y ir-yrrrc; r-s,ryfs"'s,"?c; (Conduct) Rules, 1964; and whereas the relevant compact disc has also been seen by me; and whereas further the identity of the said Shn 'icrrs? :sr ?=r" cT s"K'SiSSi»i«j2t,oi;;fB«..«2»- 2005 o. \N. P^qp 17 of 37 p (C) 51/201 n ti Conneci^ matters o the 2"" June, 2005 vide Committee report diary No. 1643/SCJ(HQ) dated 2""^ June, 2005; and whereas the videotape the money thus paid for extending undue conveniences to persons visiting o" 2 of provisions of Delhi jail Manual; AND WHEREAS it is dear that the said Shri Digambar rd wdrlA-599 was not receiving money genuinely li'hv him and the overwhelming presumption that can SsFr %ss- '«r ssrs ii'ifH"iS ground; and whereas the owners of AAj Tak hpj/p categoricaily declined in writing to allow then So,,."a »!..!«. to lorn « "7 "'f Si"," s.oT ».... nf thH I am satisfied that it has not been reasonably have appeared for tendering evidence during the enquiiy, and whereas further the said Shri Digabar Singh WardeTssg is an employee of a particularly sensitwe rlenartment like Tihar jail, and, therefore, it was expect of him to conduct himself with a high standard of iniegri y and honesty, but he did not do so; AND WHEREAS in the Tihar Jail 'there variety of prisoners housed, many of whom are with previous convictions, convicts involved and oZ heinous offences, convicts nnrHf the Arms Act. Explosive Act as also the NDPS Act 'L f^irther TADA and ROTA-undertrials, dangerous ZopTnsity of the sold Shri Digambar Smgh.hfVarder-Sghto accept favours and give information in lieu of lilegal graZcatfon. the very security of Tihar itself couid be Psiqp 18 of 37 w p fC) 5ipmn & Connpctecl matters r'- w /• ri Alcin 'officisis in\/ol\/Gd in such nets of S on t.e pn.on from external sources. Mn\A/ therefore, in view of the above narrated '""e '"r plh'gh® D^'rtor imiTiediate effect. 11-ic; further directed that Shri Digambar Singh, to'wm fe®'denlitfart unifoTm'artides'wifh t J pTson Department immediately on the receipt of this orde,. (R P SINGH) director GENERAL (PRISONS)" Similar orders of dismissal were n also-passed m ihe cases pertaining to the employees of Trade ahd Tax departmeht vide orders dated 08.07.2006.

¶16A perusal of the orders would show that the basic reason oi dispensing to hold that the enquiry in the aforesaid matters was that the TV Channel "Aaj Tak" vide their letter dated Api ll, , addressed to the Addl, Secretary, Directorate of Vigiiance, GfJCTD^ as O informed that as a policy, the company does not allow any or its personnel including reporters, journalists etc. to join investigation o-any kind of who have performed their onerous duty In the public interest to inform the public the I ll-wills in the society. Moreover, Channel "Aaj Tak", being a 24X7 channel, they cannot afford any of their journalist/reporters to join any Investigation as they are busy in news and cuiTent affairs matfers.

¶17in the case of jail employees additional ground was that ,n the Tiharjsil "there is a wide variety of prisoners housed, many of whom are undertriais with previous convictions, convicts involved in murder/rape and other heinous offences, convicts involved in offences under the Arms Act Explosive Act as also the NDPS Act and Pahp 19 of 37 14/ P fC) ■fl/iniO & Conn^ectedjmmrs involved in the attack on Parliament on 13 Decem o«,er death sentence con.icts and dangerous cnminais from other States, to ® ^ ^ ^,35 allowed n 1 R Vide common order dated dl.08.zuuy me all the petitions and gave the following directions to the pet,t,one, s. 'r'r viftar tvr^rvir^Be:^irf rs n ^ddmolSTe view co' U^pug'^ll orders pLpVtheJon^ it the disciplinary or the ^PPe^ howeven at tssstxi ::* ss^Srrsjr.- Thef^oSd Th^s rrm'ait under suspension and may^be, at, TeXcr 0? «e^r^ng|y^ ^'"direcf'th; aul'c^idrs^to colduS el^ ="H¥'Hi:E xi'ss? » Pnqp 20 of 37 w P.(C) 5ipoiO & Connerl'ffd matters

¶19Some other observations made by the Tribunal which reflects the reasoning in coming to the aforesaid decision are also reproduced hereLincler; "24 We have no doubt in our mind that the-judgments relied upon by the learned 2® moi-irinnprq herein), have no pai ity ■espondents (Petitioners herein), w a hatsoever with the facts of the case in hand... We have ready mentioned that by and large, reasons dispensing with the enquiry, whether good or not, would ^ facts and circumstances of each casm The judicial ■ decisions-wherein it was proved, to the hilL that the. witnesses who could prove the charge were intirnidatech terrorized and threatened with their lives, would have pad?) with the facts of the present case, where he witnesses have expressed their inability to jom rniestigations, being busy, and where their attendance could be enforced through not only persuasion but also by process of law. Shri Rakesh Khanna, learned counsel representing the respondents, while referring to the order of dismissal - the order passed by the appellate authority, ™ ° • enapl'oyees clearly shown or seen accepting bi ibe at tl workplace, no denial by the employees of the of misconduct shown in the video footage, as also in the pleadings, and by their conduct, would contend that there was no need whatsoever to hold an enquiry ^^ainst the employees Elaborating the contention as noted above the counsel would contend that the order of dismissal came to be passed after the TV telecast, whi^ch the employees also must have seen. Electronic media had highlighted the incident for several days. If it was the case of the employees that the sting operation was bogus, they ought to have proceeded against the TV channel Aaj Tak for defamation and also by filing criminal case against, them. The very fact that they kept quiet over the issue would be an implied admission on their behalf of the misconduct alleged against them. When the order of termination came about, the applicants would still take no step to proceed against the news channel. They have done nothing in that regard till date. When the appeals, were dealt with and the employees were shown the video-footage, they would yet not deny their role in the episode, or that they were not the persons shown accepting bi ibe. The counsel has placed reliance upon some observations made by the Honble Supreme Court-in a recent decision in the matter of R. K. Anand (supra). We have given, our thoLiqhtful consideration to the contentions of the learne counsel as noted above, but do not find any merit theieii-L We may observe at the very outset that the concerne - Pane. 21 of 37 w p (C) ^T/2010 & Connected matteis Tssume the role of complainant, prosecutoi and judge all irS£f most fnmed up We may not Illustrate, but there is no health a^r'Xre sting' operations have been ound to be doctored or morphed. There Ismo h . which, may appear to be open and f K;'tra°p otrJneTe'armp'loyTe may have accepted bribe t^e =nerto"-e';e'^n rult-^n^ ref^rou"contldl'm"vlirn^o"on™nrsS condemned without being heard. No doubt '"^^ 35 pmnlovees are concerned, enquiry against them can D dtoCTser with, but that has to be based upon cogen ciroLinds to be mentioned in writing, and we do not a^cep H rcontent^i raised by Shri Khanna that if the evidence available with the prosecution or the department may clearly show it to b^a case of delinquency of an employee, n it wo£d be a good ground to dispense with the enquiry. In a given set of circumstances, availabi lity of overwhelming evidence may be one riisnense with the enquiry, but in no case, it can be tbe so grormd m the present Lse also, at the most, avadabi ty of the evidence, overwhelming according to the respondents, but disputed by the applicants, a^°, ° ^ the grounds for dispensing with the enqti iiy. the iremost reason is that the employees ' channel Aaj Tak would not appear. If the fir nrimarv reason for dispensing with the enquiry is to re ected the second with regard to availability of dear evidence with the respondents against the employees cannot sustain. We may also mention that even thoug , Shrl Khanna may state the present case to ^ authentic and unrebutted evidence was available with the . r£s onc/ents to pin down the employees with the alle^aatlons of corruption against them, but so is sa/d dyTe respondent authorities. It whL referring to the video footage indicating fhat the money was paid for extending unauthorised and illeg ^ Pnqp 22 of 37 w p (C.) ■'51/20 7 0 & ConnecterLmMt^ f,.ours. the concerned authorit/es^ obs^ved that aS^esTad To"Z,s not gone beyond drawing an overwhelming presumption. (Emphasis added) 20 Before us, It is the submissions of the petitioners that the order passed by the Tribunal is liable to be set aside inter al.a for the following amongst other reasons; . . .

i) That under Article 311(2) (b) of the Constitution of India, enquiry can be dispensed with when it is not/easonabiy practicable to hold an enquiry. Since the IMews channel refused to send their reporters for evidence. Disciplinary authority terminated services of those who were clearly visible in CD accepting money from an outsider and before taking such action disciplinary authority constituted a committee of officers to identify those who were clearly caught on the camera accepting money.

ii) That none of the Respondents in their OA or Appeal .have denied their presence nor have initiated any proceedings against the Aaj Tak News Channel, in case the telecast was false reporting. Moreso, even in the forensic report, voice has been matched and hence the authenticity of the CD also stands proved.

iii) That the case of the Respondent is distinguishable from one Dr-A.K. Bachawat in whose case regular enquiry |s being held, because he had already retired by the time action was initiated against the said officers: hence proceedings had to be initiated under Rule 9 of CCS (Pension) Rules, 1972.

iv) It has also been argued that during the proceedings undertaken by the Appellate Authority respondents have also seen the video take. Even in appeal the respondents have not taken a stand that they were not the persons who were shown in the disc as the person involved in accepting bribes, it is also stated that when large scale of officials starting frgm Group iV.to Gazetted Officer are P^qp 73 of 37 lY P fr) B7/707 0 & Connectec/ matters F caught on a camera taking bribe, there is no need to hoicl^ a fui i fledged enquiry, it was thus submitted that dispensing with the services of those employees by invoking provisions of Article 311(2)(b) of the Constitution of India was fully justified for also sending a message that corrupt officers will not be tolerated.

(V) it is stated that before the Tribunal it was argued by the petitioners that it is difficult.to construe that there is any technical fabrication involved in recording just to put the n charged official down. The committee of three jail officers had seen the concerned CDs and had identified the persons. In fact the Tribunal also watched the CDs and video tape. The Court even wanted production of chip as a primary evidence but it could not be made available. Though an additional affidavit was filed on behalf ,of the petitioners wherein it was pointed out that the video cassette of the sting operation contains recording of all the S2 officials of Sales Tax Department accepting bribe from the bribe givers in their office without any fear and hesitation. The sting operation was shot by Shri jalal Kathuriya, Cameraman by Spy Camera in A-S-F format. After that,, the recording was transferred in a digital shape. The produced video cassette was prepared from the digital storage in the Video Room which was absolutely unedited and nothing had been added or deleted/altered/added in the cassette. Ail the gadgets instruments used in the sting operation- 'GhooS iviahai' have been re-used and as such news channels do not have any record of the sting operation except the video cassette which is the true copy of the sting operation prepared by the above-said mechanical devise. The video cassette was sent to the CFSL for voice comparison which gave positive results.

(vi) It has been submitted that the material which was available with the authorities and which: was also PRqp. 24 of 37 w P (C) 51/20 W & ConneaiecLmatters o produced before the appellate authority where the respondents were also made aware to what is the material against them and even before the Tribunal and therefore there was no necessity to set aside the orders passed by the petitioners which in the facts of the case were fully justified for taking recourse to provisions of Article 311(2)(b) Inasmuch as In view of the overwhelming evidence available with the authorities and the refusal of the news channel officials to come and participate in the , enquiry in case it was .so said instituted was suffice for conclLiding that it was a fit case to dispense with the enquiry and to pass the orders whereby the respondents were dismissed on account of serious misconduct committed by them which involves.accepting bribe on the face of it shows that the respondents who were dealt with only after the satisfaction of their identity by the three members of the Committee who saw the cassettes and only after satisfaction of the identity of the persons concerned, gave their report to the Government and it was on that basis the disciplinary authority has taken action against the respondent which is fully justified. It is thus submitted that the orders passed by the Tribunal is liable to be quashed. Taking into consideration the legal provisions enshrined in Article 311(2)(b) of the Constitution of India and the facts of this case. 21 The petitioners have relied upon the following judgments. I A K.Sen G Ors. Vs. UOI & Ors., 1983J4LSCCM1

¶2Kuldip Singh Vs. State of Punjab S. Ors. 19SM1QLS£C^

¶3Sahadeo Singh & Ors. Vs. Union of India & Ors., [2003) 9 5CC

¶4^t Kr. Nag Vs. Gen. Manager, Indian Oil Corporation Ltd. (20051

¶5DirectoTrown Planning Maharashtra Anr. Bhalchandra V Kukkarni, [2006) 5 SCC 464. ^ Kin

¶6Romesh Kr. Sharma Vs. UOI Sc Ors. (2006) 6 ^pnOQ) 9

¶7Southern Railway Officers Association & Anr. Vs. UOI [2009) 9 SCC 24

¶22On the other hand, the respondents while supporting.the oider ' , Prop 25 of 37 w P (C.) 5ipmn & Connpcted matteis I . e passed by the Tribunal have urged that the order terminating the services of the respondents without holding an enquiry proceeds primarily on the ground that the news channel who was instrumental in conducting the sting operation declined to send their employees for leading evidence before any authority. This is despite the fact that, those very witnesses stand included in the list of witnesses in a departmental enquiry instituted by the petitioners against one Dr.A.K.Bachawat and the said enquiry is .going ahead without any difficulty. it is submitted that this ground alone urged by the respondents does not satisfy the test for dispensing with regular enquiry for imposing major penalty such as dismissal from service, is not in accordance with the scheme of Article 311(2)(b) of the Constitution of India, it is contrary to'the guidelines issued by the Government of India after the decision was given in Tuisi Ram Patei s case (Supra). As regards the plea that there is' overwhelming evidence is also not sufficient to dispense with the enquiry inasmuch • as if evidence'is available with the petitioners there is mo reason as to why enquiry be not held.

¶23Respondents besides relying upon the judgment delivered by the Supreme Court in the case of TuIsi Ram Patel (Supra) have also relied upon the following judgments: . -

i) Chief Security Officer & Ors. Vs. Singhasan Rabi Das, AIR 1991 Supreme Court 1043 j) Satyavir Singh Vs. UOi, 1986 SCC (L&S) 1 onnn

ii) laqclish Vs. UOi, O.A. dated 1515/2001 decided on 07T2.2003

v) Mehant Ram Das Prakash Vs. Ramesh Cahndei & Ors. (1 )

(iX) SCC 420.

¶24We have heard the submissions made on behalf of the parcies and have perused the records.

¶25in the present case as stated above, the basic-reason , foi dispensing with the enquiry is that TV channel Aaj Tak vide-their letter dated 19.04.2005 addressed to Additional - Secretary, Directorate of Vigilance, GiMCTD informed that as a policy, the company would not allow any of its personnel including reporters, journalists etc. to join investigation of any kind, as they performed their onerous duty in the public interest to inform the public the il l-W.P.(C) 5ipmn & Co'inpriecl matters Q wi lls in the society, and that, the channel Aaj Tak being a x channel, they could not afford any of their journalists to join any investigation as they are busy in news and current affairs matters, is only on the' basis of the aforesaid the disciplinary authori y recorded its satisfaction that it was not reasonably practicable to hold a departmental enquiry and that had such enquiry been ordered such crucial witnesses as the reporters/journaiists of Aaj Ta< ^ Network would not have appeared for tendering evidence, and without their active assistance in the matter of conduct of enquiiy, no meaningful enquiry could have been held. In addition to that t ey have also referred to overwhelming presumption drawn fiom ie . video footage. n . 26 The Tribunal has not agreed with the aforesaid reasons in v of the Departmental Inquiries (Enforcement of attendance of Witnesses and Production of Documents) Act, 1972 which permits the disciplinary authority or the enquiry authority as the case may be to summon and compei attendance of witness and production of documents necessary for holding an enquiry in departmentai proceedings. In fact, this act was framed in view of the recommendations of Santhanam Committee and as per the provisions contained in Section 2 of the Act, which applies to every departmental enquiry. Inquiring Authority is empowered to enforce the attendance of witnesses and production of documents in accordance with the powers conferred on the said authority under Section 5 of the aforesaid Act. The Act of 1972 has been added as a . separate chapter. The Central Vigilance Commission has also emphasized that he provisions of the aforesaid act can be taken recourse to in cases recourse to in cases where there is possibility of private witnesses, " who are required to provide crucial evidence, evading appearance before the enquiring authority, and that the Act is applicable to all enquiry proceedings where lack of integrity is a charge or part of a charge and further that the enquiring authority authorized under the Act is'conferred with the powers of a trial court to summon witnesses/documents, and such summons shal l be served through a District Judge. Accordingly the reasoning of the d'sciplmm^ on y 1/1/ p in ^rnrnn ConnecCedjvaMa to dispense with the enc,ui,-y only on the aforesaid ground was held to .1-Fp,ii.,rioLis and arrived at in ignorance ot law. ^ "To"1 o...» »■' " howevei , oi iinpoiLdnL ^ onn n« nQ 9006 FTrarip end Tax Department were passed employees ofTrade and lax uep ^ and the appeals filed by them was dismissed on 23.11.2007, w and tne api ^ ^ -rihar lail the same was respect to the sting operations pertaining to Tih "ded out on 04.05,2005 and the telecast was done on ^t^ s m Fay. The employees were suspended an-nrm^l cases ::;:;oToor" nd"t:eir appeals were dismissed on 02 02 2006 /n these drcumstances the Tribuna, has observed that ,t "o a case of any emergent situation and sufficient t,me had rid IthiCh wouid haye enabied the discipiinary authority to hoid an ^"'''TheTribrarmiying upon the case of Constable Jagdish Kumar n OA NO 2353/2006, 5.10/07; Raja Ram Vs. Speaker LoK Sabha a d om 2007 (3) see 184; Sudesh Kumar Vs. State of Haryana and Oi. 2005 (11) see 525 has also observed that when allegahons ma ag'nst an employee are based upon video footage, dispensation of enquiry has not been found favour by the Apex court. . some observation made by the Tribunal in para 12 impugned order which highlights discrimination qua the present e po tdents in the matter of hoidihg a departmental enquiry v,z-a-vi also reproclucecl: ^ \/ ■ ^^'.^i^nTls'chaT^e'hl^^d Lrried out a' sting ope^n ,4/ P (D 57720JO & ConqecmLjrmem respect of some officials °®'g'^]'^g®eted o^n\4°07?005.: SI (Exe.) Sobhen Bank anj the incident of n , He had made demand of channel Aaj Tak, demanding l-rnesheet issued against - which was so mentioned ,n the ®harg®sh®et ,ss I' k isTXT m^nti'one^Thit the charge S/ainst t'he S, w s 'not oniV of a^or running from o^tjed it was subsequently conversation was being ^ public. Even n iiiiiiiHi fd?iL^ai~vit th'at ^-^,co-P-^,®r;:"°dir°ar his 1-he stinq operation was Shri Dbirenaer runui _ arTw"m'''on'S7.llMV5!™s'lm^^ deposed in the departmental enquiry. 30 The Tribunai also noticed about the case of Head Constable Rannesh of CRPF who was on duty in central jaii Tihar on the date q sting operation and who allowed the car of the reporter ins.de the jai and was seen in the CD opening main gate for allowing the car-enter after accepting the money buf he was not dismissed lom service by invoking Articles of 311 sub-Clause (2). • 3-1 The Tribunal also observed that in respect of the incident criminal cases under Section 7, 12 and 13 of the Preverition oT corruption Act read with Section 1208 of the IPG stood registered. The respondents placed on record the list of witnesses who have to be examined in Court seized of the criminal trial. Admittedly, those who carried out the sting operations were cited as witnesses, le statements of ail these witnesses were recorded under Section Cr PC They fully cooperated with the prosecution not only in making statement under Section 161 Cr.PC, but in supplying the materia , Paiqp 79 of 37 1/1/ p rr) '^1/2010 & ConnedMLmmsrs Q> available with them as well. Even though, we are conscious that the provisions contained in Cr.PC are such that a person.cannot refuse to be a witness if his evidence may be relevant in a cnminal trial, and if he may refuse, he can be prosecuted as well, but the fact that those who carried out the sting operation were cooperating and despite the letter dated 19.4.2005 of the news channel Aaj TaK, had wi iiingiy made their statements and supplied the material, ought to have been a factor for consideration by the concerned authorities but no such change has been shown in their attitude.

¶32The Tribunal further noticed that in terms of a notice issued by this Court to the news channel Aaj Tak, they supplied unedited and complete version of the telecast (audio and visual) before this Court by the learned counsel who appeared for the TV Today Network. The CDs were ordered to be kept ih safe custody subject to. furthei directions. Even though these directions were given by this Court in connection with the security in jail but it shows that the material which is available can be produced and if not produced can be summoned.

¶33The Tribunal has also taken note of the judgment given by rhis Court in the case of Surinder Kumar who filed \A/.P.(C) 1758/2008 against the order passed by the Tribunal in O.A.No.2362/2006 whereby he challenged a decision of his dismissal from service by invoking provisions of Article 311 (2) (b) of the Constitution the . departmentally where the enquiry against him'was dispensed with and order dismissing him from service was passed. The writ petition against the order of the Tribunal was assailed before this Court by way of W.P.(C).1758/2008 which was also dismissed by this Court on

24.04.2008. in the said case, the dismissal of ASI Surinder Kumar was based upon the recordings shown to NDTV yet this Court made the following observations: in our opinion, it is reasonably practicable to departmental enquiry in the present case of s g operation. The department could have proved the charge against the respondent by examining the NDTV who carried out the sting operation. We are fo' ther of the view that conducting of the departmental enquiiy stinq operation is all the more necessary in order P^nf 30 of 37 W.P.fC) 51/POlO & Connprlp.cl matters / / out the possibility of any motivated action - in sting ooeration. Whether such a sting operation was genuine or not has to be proved by cogent evidence and for this, it is not difficLiit to produce the materiai witnesses."

¶34Tribunal has also observed that neither the employees were given any opportunity to explain the allegations leveiled against them before the order of dismissal was passed nor a show cause notice was given to them in this regard nor they were associated with any fact finding enquiry. Even before the Appellate Authority the record does not show that in every case the Lieutenant Governor has seen the CD himself or the employees got a chance to see ihe same. There is nothing on record to show that the employees were specifically asked to respond about allegations of accepting the bribe allegedly shown in the video footage. Mere acceptance of money by the employees himself does not pin down them with accepting bribe or illegal gratification unless and until the person who allegedly gave bribe comes in the witness box and says so. 35 The Tribunal has further observed-that from the affidavit filed n by the News channel it could not be inferred that the CD produced was a true-version of its original as it was prepared from digital storage in the video room of the News Channel. The Tribunal has further observed that from the transcription relied upon it is not possible to make out as to whether the employees had demanded money and if so for what purpose. In some of the cases there is no transcription'of dialogue between the employees and those who conducted the sting operation.

¶36Now, coming to the citations relied upon by the respondents we find that in the case of hudesh Kumar Vs. Stale of Haryana and Ors. 2005 (1) see 525 pursuant to preliminary enquiry a dealing clerk was dismissed from service without regular departmental enquiry on being satisfied that it was not reasonably practical to hold .an enquiiy. Reason recorded for such satisfaction was that the complainant being a foreigner may leave the country in the midst of the enquiry and that he was not likely to name the delinquent official during the departmental proceedings. Here also, reliance was placed upon a , Pane .11 of 37 n W P.fO & Connected matteis news item appearing in Hindi Daily on 01.12.1999 where reference was place upon a complaint made by Japanese national, after a preliminary enquiry D.5.P. Yogender Nehra , taking note that the Japanese national may have to leave the country and he was also not willing to name the delinquent officer as he feared harassment , but n the statement of ASi Shiv Dutt, in-charge, security branch, and ASi Lai Singh clearly revealed that it was HC Sudesh Kumar who was posted as foreign registration clerk in the district police office on 1.10.1999, and he had processed the visa extension case of the foreign national, and that he had also deposited the extension fee of Rs.2160/- m State Bank of Patiala; having satisfied that there was no doubt whatsoevei about the identity of Sudesh Kumar who accepted i llegal gratification, dispensed with the enquiry. It was also mentioned in the order that the Japanese national was likely to leave the country. Despite tie facts as mentioned above, where the foreign national felt threatene and was leaving the couhtiir and thus, may not be available for making statement, the order of dismissal of the appellant was set aside by holding that dispensing with a regular departmental enquiry was improper. n • , r-, 37 The view taken by the Tribunal that raw footage of video film seen by someone who is to appreciate the evidence may have some evidentiary value, but, the edited version of the video film cannot be made the sole basis for returning a finding. Unless, therefore, corroborated, it would have no evidentiary value. In this regard reference was to a judgment delivered by,the Apex Court in Rm.mm psti uc CpPmiker. Lok Sabh^Qthers [(2007) 3 SCC 184]. •38. In 1-h" Fx. Constable Chote\LLalVsJMmofJl^

(10) SCC 196 and Ors. also relied upon by the respondents dealing with the opinion that it was not reasonably practical to hold the enquiry in the facts of that case the Apex Court has been pleased to • observe as follows; '3 Mr Yadav, learned counsel appearing for the appellant contends that though the employer the power to dispense with an enquiry under 311(2), second proviso, clause (b) of the Constitution^ but the conditions precedent for exercising that power 1/1/ P.(C) Sipnin ^ Connected matters have now been indicated in severai decisions of this Court and in the present case, those conditions precedent cannot be said to have been satisfied. Mr Choudhary, the iearned^ Senior Counsel appearing for the respondents, on the other . hand, contended that the appellant himself being a Police Constable could have influenced the witnesses who would have come in the departmental enquiry and if on that around the departmental authorities apprehended that the , enquiry would not be reasonable and fair, the conclusion cannot be interfered with. Having examined the rival contentions of the parties and bearing in mind the law laid down by this Court indicating^ the circumstances under which the enquiry undei Article 311(2), second proviso, clause (b) or. tne Constitution can be dispensed with and applying the same to the facts and circumstances and the reasons advanced by the authorities in arriving at the decision, we have no hesitation to come to the conclusion that the order dispensing with the departmental enquiry is not in accordance with law and necessarily the order of disrniss ^ cannot be sustained. We accordingly set aside the ordei or dismissal passed against the appellant arid peimit the departmental authority to hold an enquiry if so desiied, in accordance with law and come to the conclusion in the said proceeding."

¶39At this stage we may also observe that in the case of Union of 1/. TnMmm Patef(1985) 3 SCC 398 which is a landmark in dealing with cases of this nature this Apex Court had been pleased to hold: "Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finaii y can certainly be tested in a court of law and interfei ed with if the action is found to be arbitrary or mala fide^ or motivated by extraneous considerations or merely an use to dispense with the enquiry."

¶40Now coming to the judgments relied upon by the petitioners we ' find that those judgments do not come to the rescue of the petitioners in the peculiar facts of this case inasmuch as: a) In the case of A.K.SeniSuqra) the Apex .Court .was concerned with maintenance of discipline as of vital importance for armed force in the case, when members of the force began an agitation for recognition for the ground on several demands which escalated into a full scale battle, it was held that no w.P.(C) 5J/?(yiO & Connected matters / person with any reason/sense of responsibility can say that in such a situation holding of enquiry was reasonably practical b) The case of Kuldio Singh (supra) pertains to dismissal of the appellant in that case who was found indulging in activities prejudicial to effective functioning of the police force, as he had close links with extremists and was found helping them by providing information of the Police Department, c) in case of Sahadeo Singh & Ors. Vs. UOi Ors. no independent evidence was available. d) in the case of Rnme.sh Kr. Sharnia (supra), the appellant was dismissed from service under Section 20(1) r/w Rule 17 dispensing with enquiry, .which was challenged as being i llegal and the enquiry was abandoned midway. The Court observed ' that -under proviso to rule 17, Chief of Army Staff Sh Other' officers are competent to order removal without complying with the procedure set out in the main part of the rule artei n certifying that it was not reasonably practicable to comply with the provisions set out and the fact that the enquiry was not qua the appellant but it related to the incident, held that there was nothing wrong with the order of dismissal. Thus, it was a case of defence services, the petitioners cannot derive any parity with that case. ^ ' e) Similarly, the judgment in Southern Railway Officeis Association S. Ann Vs. UOI was also given in peculiar facts and circumstances of that case.

¶41Taking into consideration the judgments cited befoie us by the parties and also taking note of the observation made by the Tribunal, we agree that reasons dispensing with the enquiry whether good or not, would depend-upon facts and circumstances of each case, in a case where it is proved to the hiit that the witnesses who could prove the charge were intimidated, harassed and threatened with their lives, would certainly have no parity with the facts of the present case only because the witnesses have expressed their inability to join investigation being busy, cannot be a reason for dispensing with the Page. 34 of 37 w.p.fC) 5ipn in & Connected matters enquiiy as their presence can be secured by application of law available In the Statute Books for their appearance.

¶42Having gone through the entire material we are constrained to opine that the way the Government has proceeded in dismissing the n services of the respondents by dispensing with the enquiry for the reasons stated-in the orders as quoted is contrary to rule of law which IS the basis of good governance and constitutional obligation imposed upon the Government. It is true that prevailing corruption in the Government offices has been exposed by the news channel and everybody would commend their effort in doing so and also ask for forthwith dismissal of the corrupt officials who were exposed. As'a means foi curbing the menace, they may also opine that a-short cut has been adopted by the petitioners (of dispensing with the enquiry) was justified. However difference between the perception of an. individual is then to be guided by the rule of law. One of the basic principle embodied in Rule of Law is to abide by Principles of Natural Justice which imbibes Inherent principles of audi alteram partem, that is to say, nobody Is condemned, unheard.

¶43As observed by the Apex Court the rule of audi alteram partem lequiies an opportunity of hearing to a.person who is likely to be affected in a decision to be taken by a disciplinary authority. He or she is certainly entitled to hearing may be only by Issuance of a show cause notice even if the situation is urgent. We can make reference to the case of K.I. Sliephaid Ors Ks. Union of India and Or<; (1987) 4 see 431.

¶44It would be relevant to take note of para .13 of the judgmenbin this case, which reads as under: n one no^ various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the ' eat,J to nTe°'] ' Participatory enquirZ exdude thorn t'' employees. Since the decision to f / service under the transferee banks is g Lindeci upon a set of facts the correctness whereof they- ' eny, if an opportunity to know the allegations and to have o^cbfcf c could have no grievance onri hr-w depdves them of their livelihood nd brings adveise civil consequences and could obviously W,P.(€) 51/2010 fii Connected maifprc Page 35 of.17 not be taken on, the ipse dixit of RBI officers without verification effects, it is quite possible that a maneuvering officer'of the banking company adversely disposed of towards a particular employee of such bank^ouid make a report against such employee and have him excluded from further service under the transferee bank. The possibiiity of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is ail the more. ,apprehenSion of this type as the process has to be compieted quickiy and very often the records of a iarge number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exciude a section of the empioyees without compiying with requirement of natural justice was.bad."

¶45An enquiry can be held by Issuing show cause notice and giving a copy of the telecast to the delinquent employees and give them an opportunity to explain before taking a final view as to whether it is a case where a regular department enquiry under Rule 14 of the CCS(CCA) Rules should be held or further enquiry be dispensed with. However this also has not been done by the petitioners in this case. The arguments submitted on behalf of learned counsel for the petitioners that during the course of hearing of the appeal the respondents haye seen the recordings and, therefore, they are aware of their role in the episode and none of them disputed their presence at the location or their appearance in the cassettes which were telecast is of no consequence as playing of such cassettes before the Appellate Authority would not meet the requirement of the principles of natural justice at the Enquiry Officer level.

¶46While we are of the opinion that to dispense with the enquiry was v\/rong, we should not be understood as saying that the depth of the enquiry should be equivalent to that of a trial before a criminal court. 1 he least which could have been done was to initiate an enquiry, place a copy of the cassette on the enquiry file, supply a copy of the cassette as telecast to the employee, give the employee opportunity to explain, though not necessarily record al l explanations that, he gives. Evidence of someone like a committee of officers who' have seen the telecast and/or of those who carried out the telecast could be recorded. Thereafter, the committee or the enquiry officer can W.P.(C) 51/2010 & Connected matters 'r- \ view and come to their conclusion as to whether it would be in the interests of justice to prematurely terminate the services or take some other action as may be thought proper.

¶47A modicum of depth at the; enquiry would have sufficed. We should also not be understood as saying that the witnesses from the channel would be required for such enquiry. We need not go into further details of what ought to be done at the, enquiry as it is for the disciplinary authority/enquiry officer to determine, and rest, content with noting that in our view the dispensing with the enquiry was not justified. n

48., Taking al l these facts into consideration, we find ourselves in agreement with the conclusion reached by the Tribunal, though for somewhat different reasons, as we have noted above.

¶49In view of the a:foresaid, the writ petitioris are dismissed with no orders n as to costs. X W T'"") AOGOST 06" 2010 . , PBiADEEP NAMDRAJOGJ Q n D/3Q MM.P.(0-51/2010 & Connected matters

A O IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Reserve :28.07.2010 Date of Decision :06.08.2010 + W.P.(C) 87/2010 GOVT OF NOT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SHASHI SINGH Respondent Through Mr.Sachin Chauhan, Advocate CORAM: Q HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest? MOOL CHAND GARG. I. * For orders see W.P.(C) No.51/2010 ARG MOOL CH AUGUST 06, 2010