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

MOOL CHAND GARG, J. * For orders see W.P.(C) No.51/2010 AUGUST 06, 2010 PRADEEP NANDRAJOG,J WP(C) 92!201 0 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. * TIHIE HIIGH COURT Of Alr NIEW + W.P.( C) 51/2010 % Date of !Reserve :28.07.2 0110 Date of Decision :06.08.2 [))H1l GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER , TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran , Mrs.Latika Chaudhary and Mr.Nit es h Kr.Singh, Advocat es versus JAI BHAGWAN + W.P.(C) 58/2010 ..... Respo nd ent Tl1rough Nemo WBTIHI GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER , TRADE AND TAXES ..... Petition er Through Mrs.Avnish Ah alw at with Mr-s.Simran , Mrs.Latika Chaudhary and Mr.N ites h Kr.Singh, Advo ca tes versus SAN JAY DAWAR, STENOGRAPHER .. ... Respondent Through Mr. S.P.Mehta, Advocat e WITIH + W.P.( C) 67/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONE R, TRADE AND TAXES ..... Petition er Through Mrs .Avnish Ahalwat with Mrs.S imran, Mrs.Latika Chaudhary and Mr.l\lit esh Kr.Singh, Advo ca tes versu s D J GUPTA ..... Respondent Through Mr.Shyam Babu, Advocate + W.P.(C) 77/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER , TRADE AND TAXES .... . Petition er Through Mrs.Avnish Ahalwat witl1 Mrs .Sim ran, Mrs .Latika Chaudhary an d Mr.Nit es h W.P.(C! 51!2010 & Connected matters g Kr.Singh, Advo cates versus GEETA MALHOTRA ..... Respondent Through Mr.S.P .Mehta, Advocate WITH + W.P.(C) 78/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simr an, Mrs.Latika Chaudhary and Mr.Nitesh l<r.Singh, Advocates versus A K JAIN ..... Respondent Through Mr.S.P.Mehta, Advocate V\HTIHI + W.P.(C) 81/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMM ISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs .Avnish Ahalwat with Mrs .Simran, Mrs .Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus SO HAN LAL L.D.C ..... Respondent Through Mr-.Sachin Chauhan, Advo cate WITIHJ + W.P.(C) 83/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs .Avnish Ahalwat with Mrs .Simran, Mrs .Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus RAJESH SINGH STENO ..... Respondent Through Mr.Sachin Chauhan, Advoc ate + W.P.( C) 87/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner W.P.(C) 51!2010 & Connected matters Through Mr·s.Avnish Ahalwat with Mrs.Simra n, Mrs.Latika Chaudhary and Mr.Nitesh Kr-.Singh, Advocates versus SHASHI SINGH .... . Respondent Through Mr.Sachin Chauhan, Advoc ate + W.P.(C) 88/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES .: ... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs .Latika Chaudhary and Mr.Nitesh l<r.Singh, Advocates KARAN SINGH YADAV ASTO ..... Respondent Through Mr. Sachin Chauhan, Advo cate WITIH + W.P.(C) 90/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs .Avnish Ahalwat with Mrs .Simran, Mrs .Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus SATWANT I<AUR ..... Respondent Through Mr. Sachin Chauhan, Advo cate + W.P.(C) 92/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh l<r.Singh, Advocates versus AMAR SINGH PEON ..... Respondent Through Mr.Sachin Chauhan, Advo cate W.P.(CJ 51/2010 & Conne cted matters /0 WiTH + W.P.(C) 112/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE: AND TAXES .. ... Petitioner PRABHA JOSHI + W.P.(C) 113/2010 Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs .Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus ..... Respondent Through Mr.S.P.Mehta, Advocate WITH GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner versus Through Mrs.Avnish Al1alw at with Mrs.Sirnran, Mrs.Latika Choudl1ary and Mr.Nitesh Kr.Singh, Advocates MUSHTAQ AHMED, PEON ..... Respondent Througl1 Mr.Sachin Chauhan, Advocate WITH + W.P.(C) 114/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalw at with Mrs.Sirnran, Mr·s.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocat es versus YAD RAM YADAV .. ... Respondent Through Mr.Sachin Chau han , Advocate WITH + W.P.(C) 115/2010 GOVT OF NCT OF DELHf THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mr·s.Simran, Mrs.Latika Chaudhary and Mr.Nitesh W.P.(CJ 51!20 10 & Conne cted matter s Page 4 of 3 7 J I Kr.Singh, Advocat es versus KIRAN VERMA PEON ..... Respondent Through Mr.Sachin Chauhan, Advocate WITIHI + W.P.(C) 116/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES .. ... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Sirn ra n, Mrs.Latika Chaudhary and Mr.Nit esh Kr.Singh, Advocates versus RANJIT CHOUDHARY, STENO ..... Respondent Through Mr-.S.P.Mehta, Advocate WITIH + W.P.(C) 117/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE: AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Sirnran , Mrs.Latika Chaudhary and Mr.Ni tes h Kr.Singh, Advocates versus SHAMSHER SINGH UDC ..... Respondent Through Mr.Sachin Chauhan, Advocat e + W.P.( C) 118/2010 GOVT OF NCT OF DELHJ THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Sirn ra n, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus RAM BHAJAN, PEON ..... Respondent Through Mr. Sachin Chauhan, Advoc ate WITH + W.P.(C) 119/2010 W.P.(C) 51!20 10 & Conne cted matt·ers GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Al1alwat with Mrs.Simr an, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus GANPAT SINGH ..... Respondent Through Mr.S.P. Mehta, Advocate WITH + W.P.(C) 123/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nit esh Kr.Singh, Advocates versus C P YADAV PEON ..... Respondent Tl1rough Nemo WiTIHI + W.P.(C) 124/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs. Simran, Mrs.Latika Chaudhary and Mr-.Nitesh Kr.Singh, Advocates versus AJAY KUMAR STENOGRAPHER Through Nemo ..... Respondent WITIH + W.P.(C) 129/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs .Latika Chaudhary and Mr.Nit esh Kr.S ingh, Advocates versus W.P.(C} 5112010 & Connected matters SHRICHAND .. ... Respondent Through Mr. S.P. Mehta, Advocate WITH + W.P.(C) 130(2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Througll Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advo cates versus SWARAN GUJRAL ..... Respondent Through Mr.S.P.Mehta, Advocate WITH + W.P.(C) 131/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs .Latika Chaudhary and Mr.Nit esh Kr.Singh, Advocates versus BRAHAM SINGH PEON ..... Respondent Through Mr.Sachin Chauhan, Advo cate WiTH + W.P.(C) 265/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMM ISSIONER, TRADE AND TAXES .. ... Petition er Through Mrs .Avnish Ah alwat with Mrs.Simran, versus · Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocat es VEENA ANAND ..... Respondent Through Mr.Ajay K.Sharma, Advocat e W.P.CC) 51!2010 & Connected matters + W.P.(C) 1084/2010 GOVT.OF NCT OF DELHI & ORS.THROUGH COMMISSIONER,TRADE & TAXES ..... Petitioner ANIL KUMAR Through Mrs .Avnish Al1alwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus ..... Respondent Through Mr.Abhay Kumar and Mr.Tenzing Tsering, Advocate + W.P.(C) 1172/2010 GOVT. OF NCT OF DELHI & ORS.THROUGH COMJVIISSIONER,TRADE & TAXES ..... Petitione1 · Throug ·h Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus SMT.VIMLA SEHGAL .... . Respondent Through Mr.Arvind Nayar, Advocate WiTH + W.P.(C) 185 7/2010 GOVT.OF NCT OF DELHI & OTHERS ... .. Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and MI-.Nitesh Kr.Singh, Advocates PHOOL SINGH versus ..... Respondent Through Mr.Sachin Chauhan, Advocate WDTIHI + W.P.(C) 1858/2010 GOVT.OF NCT OF DELHI & ORS. .. ... Petitioner Through Mrs.Avnish Ahalwat with Mrs.S.imran, ' W.P.(C) 51 /2 010 & Conne cted matters Pag e 8 of 37 versus Mrs.Latika Chaudhary and Mr.Nite sh Kr.Singh, Advocates BRAHAM SINGH,LDC ..... Respondent Through Mr.S.P.Mehta, Advocate WITH + W.P.(C) 3644/2010 GOVT.OF NCT OF DELHI & ORS. . .... PetitiGner Through Mrs.Avnish Ahalw at with Mrs.Sirnran, Mrs.Latika Chaudhary and Mr.Nit es h Kr.Singh, Advoc ates versus ASHWANI KUMARI ..... Respondent Through Nerno WITD-11 + W.P.(C) 4437/2010 GNCT OF DELHI AND 08.5 ..... Petition er RSJEPH Through Mrs .Avnish Ahalwat with Mrs.Sirn ra n, Mrs.Latika Chaudhary and Mi-.Nitesh Kr.Singh, Advocates versus ..... Respondent Through Nerno WITIH + W.P.(C) 3056/2010 GOVT.OF NCT OF DELHI & ORS THROUGH PRINCIPAL SECRETARY (HOME) ..... Petition er Through Mrs.Avnish Ahalwat with Mrs .Sirnran, Mrs.Latika Chaudhary and Mr.Nit esh Kr.Singh, Advocates versus W.P.(CJ 51!2010 & Conne cted matters )0 RAJ KUMAR ..... Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 13806/2009 GOVT OF NCT OF DELHI AND ORS THROUGH PRINCIPAL SECRETARY (HOME) .... . Petitioner Through Mrs.Avnish Ahalw at with Mrs.Sirnran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus DIGAMBER SINGH ..... Respondent + W.P.(C) 49/2010 Through Mr.G.D.Gupta, Sr.Advocate with Mr.S.K.Sinha, Advocate WITIH GOVT OF NCT OF DEKHI & ORS THROUGH PRINCIPAL SECRETARY ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs .Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus KRISHAN KUMAR ..... Respondent Through Nerno W!TH + W.P.(C) 50/2010 GOVT OF NCT OF DELHI AND ORS THROUGH PRINCIPAL SECRETARY(HOME) ..... Petitioner Through Mrs.Avnish Ahalwat with Mr-s.Sim ran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus VINOD KASHYAP .... . Respondent Through Mr.Sachin Chauhan, Advoc ate W.P.(CJ 51!2010 & Connected matters Jr WITH + W.P.(C) 721/2007 GOVT OF NCT OF DELHI AND ORS ..... Petition e,- R.D. BOHET CORAM: Through Mr.Rajesh Kapoor with Mr.Nitesh, Singh, Advocates versus . . .... Resp ondent Through Mr.A.K.Behra, Mr.I<.C.Balia singh, Advocate IHJON'IBliE MIR. JUSTICE IPRADEEP NANDRAjOG IHJON'IBLE MIR. jUSTICE MOOl CHAND GARG 1 . Wh ether reporters of Local papers may be Yes allowed to see the judgment?

¶2To be referred to the reporter 01-not? Yes

¶3Whether the judgment should be reported in Yes the Digest? MOOl CHAIND GARG, j. *

¶1We preface our decision by noting the argument of learned counsel for the petitioners, being that so reprehensible is the con duct 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 respon dents. It was urged that law has to be interpreted, in th e instant cas e, keeping in view the grave misdemeanour of th e ,-espondents . In other words, the counsel for th e petitioners urged that the respondents are not entitled to any hearing. The argum ent is emotional and is rejected at the outset for the reason a syst em governed by the rule of law requires dispute resolution as per law. Th e submission made by learned counsel for the petition ers can be best repelled by noting a dialogue between Sir Tllomas More on the one side and his daughter Margret and his son -in-law Roper in t he play "A Man For All 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:- W.P.(C} 51!2010 & Connected matter s Margaret: "Father, that man's bad." More: "There is no law against that." Roper: "Ther -e is! God's law!" More: "Then God can arrest him. I know what's lega l, not what's right. And I'll stick to what's legal ... I 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 charge that More would give even the Devil the benefit of law . More: "Yes. What would you do? Cut a great road through the law to get after the Devil?" Roper: ''I'd cut down every law in England to do that!" More: "Oh? .... And when the last was down, and the Devil turned round on you, where would you hide, Roper, tl1e laws from coast to coast - man's law, not God's-and if you cut them down -... D'you really think you cou ld stand upright in the winds that would blow then? ... Yes, give 'lthe IDevii the benefit o1f 1for my own safety's sake."

¶2The very quest ion which confronts us -in this matter is as to whether the reasoning of the respondents concluding that it was not 'reasonabDy practicable' to hold an enquiry before dismissing the respondents from their services by invoking second proviso to sub clause

(b) of Arti cle 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 Vs. Tulsiram Patel (1985) 3 SCC 398 by the Hon 'ble Supreme Court of India. W.P.(C) 51!20 10 & Conne cted matters

¶4In the aforesaid matters petitioners after telecast of news item capt ioned Programme 'Vishesh' with caption 'G hoos Mahal ' on 08 .03 .2005 at about 9:30p.m. by T.V. news channel 'Aaj Tak' wherein respondents posted in Tihar jail were shown accepting money from the persons lodg ed in jail and from those coming to meet them; respondents posted in Trade and Tax Department were shown negot iating and accept ing money from public for doing undu e favours, as a kneejerk reaction suspended all the respondents. The petitioners also lodged an FIR aga inst all the respondents under Sections 7, 12, and 13 of the Prevention of Corruption Act on 09 .03.2005 itself.

¶5Later on, vid e separate orders dated 27.09.2005 passed in the case of respondents working in Tillar 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 petitioners dismissed their services without holding any domestic enqu iry on the pretext that the owners of the T.V. News Channel 'Aaj Tak' refused to associate themselves with any enqu iry/inv estigation as may be conducted in the matter.

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

¶7The respondents than approached the Central Administrative Tl"ibunal Principal Bench New Delhi. A strange situat ion arose before 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 ol-der 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 on 24.11.2006 which stands admitted and is now being taken for disposal with other connected matters by this common order. W.P.(C) 51/2010 & Connected matters

¶8The Original Applications (O.As.) filed by the respondents were referred how ever-to a larger Bench in view of the conflict of opinions in the two coordinate Bench of the Tribunal and were adjourned sine die in view of tile pendency of W.P.(C) No. 721/2007 . Later on, on an application filed by the applicant in OA No. 2561/2006, larger Bench revived the matters and disposed all of them vide order dated

31.08.2009 which is tile common order impugned before us and is subject matter of the writ petitions. Various questions were framed by the full bench including the propriety of the later co-ord inate bench of tile tribunal deciding the matter contrary to the ear lier view of the Tr-ibunal without referring the matter to a larger Bench. We are however concerned with the fol lowin g question giving rise to th e filing of tile petitions before us:

i) Whether in the facts and circumstances of the case, the power conferred by clause (b) of the second proviso to Article 311(2) of the Constitution read with Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1985 can be justifiably invoked and the impugned order sustained.

¶9The common ground taken by the respondents in the appeals filed before the Appellate Authority as also before the Tribunal was, that the reason given in the two orders dismissing the re5.pondent " "that the News of Aaj Tak news channel declined in writing to allow their reporters and journalists to join in any investigation into th e conduct of the app licant and consequently case of the department become weak" for dispensing with the enquiry was contrary to Rule of Law not sufficient for reaching to the Conclusion that it was not practicable to hold the enquiry. It is also stated that the decision was also in accordance with the guidelines issued by the Government of India itself for invoking clause (b) of 2 nd Provi so to Article 311 (2) of the Constitution of India.

¶10The three cond iti ons mentioned in sub-clause (6) to Rule 19 of the CCS (CCA), relevant for invoking of sub-clause (b) of the second pr-oviso to Article 311(2) provides that; W.P.(C) 51!2010 & Connected matters Jl

(a) Where a civil servant, alone or together with his associates terrorizes, threatens or intimidat es witnesses who are likely to give evidence against him with fear or reprisal in order to prevent them from doing so; or

(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 indis cipline and insubordination prevails at the time of the attempt to hold the enquiry is made 1L The disciplinary author-ity 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, ther efore, bound to fall.

¶12Before the Appellate Authority, respondents submitted that the Orders passed by the disciplinary Authority in these cases do not meet the aforesaid test and thus tile orders impugned in appeal wer-e liable to be set aside. Further the respondents denied the allegations such as acceptance of money, allegation of existence of compact disc show ing 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 wa s not even alleged that tile respondent in any manner tried to contact the news channe l or tr·ied to influence or terrorize witnesses. It was also subm itte d 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 ther-eafter the respondents approached the Tribunal where also simil ar issues wer·e raised. The Tribunal allowed the applications vide common order dated

31.9.2009 holding that or-ders W.P.(CJ 51!2010 & Connected matters dismissing the_ respondents after concluding that it wa s not reasonably practicable to hold a departmental enquiry in these cases were not sustainable in law. The petitioners aggrieved from th e aforesaid order fi led the aforesaid writ petitions .

¶14The Ol'der of dismissal passed in the case of Digambar Singh, an employee of Tihar Jail, (CWP No.13806/2009) which is similar to all other cases of Tihar jail Employees sett ing out the reason for adoptirlg the procedure as per the proviso of Sub clause 2 (b) of Al-ticle 311 of the Constitution of India is reproduced for the sake of reference : "Office of the Director General (Prisons) Prisons Headquarters: Tihar: New Delhi F11( 65 9) :CJ :Vig ila nce:2 005:2187 ORDER Dated 27/9 /05 WHEREAS onthe4th May, 2005 at about 9.30 PM, a news item was telecast on the AAj Tak news channel ov er Television with the caption, "Tillar Jail bana Ghoos m ahal'; AND WHEREAS Shri Digambar Singh, Ward er-599 posted at Central jail No.2,Tihar jail, New Delhi was shown accepting money in lieu of favours to be extended either to prisoners lodged in Jails or to those intending to meet them in contravention of the provisions of the Delhi Prisons Act, 2000 (De lhi Act 2 of 2002) and the rules made thereunde r read with the Delhi jail Manual; AND WHEREAS the said Shri Digambar Singh , Ward er-599 was placed under suspension vide thi s offic e order no . F-11(Misc.)/CJ/Vig./2005/998 -1011 dated 4t,, May , 2005 and further a case FIR No. 25/2005 dated the 5 th May, 2005 was registered, amongst others, against the said Shri Digambar Singh, Warder-599 under Sections 7,12 and 13 of the Prevention of Corruption Act, ( 49 of 1988) with the Police Station, Anti Con·uption Banch, Old Seceta1·iat: Delhi; AND WHEREAS tile above misconduct on the part of the said Shri Digambar Singh, Warder-599 is in violation of the following provisions of the Delhi Prisons Act 2000 (Delhi Act 2 of 2002) and the rules made thereunder read with the provisions of the Delhi jail Mana I, namely; "Section 9 of the Delhi Prisons Act, 2000 (Delhi Act 2 of 2002) Officer -s not to have business dealing with pr-ison el-s and oth ers:- W.P.(CJ 51!20 10 & Conn ected matte rs Pag e 16 of 37

(1) No officer of a prison shall sell or let nor shall any person in trust or employed by him sell or let, or derive any benefit from selling or letting, any artic le to any prisoner o have any money or other business dealings, · directly or indire ct ly with any prisoner.

(2) No officer of a prison shall accept any gift from a prisoner or a person having any dealings with prison administration. · Rule 145 of Delhi Prisons (Insp ectio n, Meetings and Duties of Officers) Rules 1988

(1) No subordinate officer shall, otherwise than with the spec ial permission of the Superintendent, at any time: -

(a) Correspond or hold any intercourse of commun ication of any kind whatever - witll any relative or friend of any prisoners:

(b) hold any unauthorized communication of any kind whatsoever with any prisoner: ·

(C) correspond or hold any intercourse whatev er with any discharged prisoner; or

(d) permit any discllarge prisoner or any re lative or · intend of any such prisoner to visit or remain at his quarters

(2) No subordinate officer shall at any time:-

(a) hold any uncessary converse with any prisoner:

(b) treat any prisoner-with familiarity; or

(c) discuss any matter relating to the disc ipl ine or regulations of the jail with or within the hearing of any prisoner : The conduct clearly establishes that the said Shri Digambar Singh, Warder-599 had expressed his reacly willingness to extend undue faci liti es and conveniences in lieu of monetary consideration and this amounted to grave misconduct unbecoming of a government servant and in violation of the Rule 3 of the Central Civil Services (Conduct) Ru les, 1964; AND WHEREAS the relevant compact disc has also been seen by me; AND WHEREAS further the identity of the said Shri Digambar Singh , Warder-599 has also been established by a Committee of three jail officers constituted by the Dir-ector -General ·(Prisons) vide order No. F .11/Misc./CJ/Vig./2005/12/2 dated 26t 11 May, 2005. On W.P.(C) 51!2010 & Connected matters Paqe17of 37 2nd June, 2005 vide Committee report diary No. 1643/SCJ(HQ) dated 2nd june, 2005; AND WHEREAS the videotape footage indicated that the money thus paid for extending undue facilities and conveniences to persons visiting on prisoners was in violation of the Delhi Prisons Act, 2000 (Delhi Act 2 of 2002) and the rules made thereunder read with tile provisions of Del11i jail Manual; AND WHEREAS it is clear that the said Shri Digambar Singh, Warder-599 was not receiving money genuinely owed by him and the overwhelming presumption that can be drawn from this is that the said Shri Digambar Singh, Warder-599 was rece1vmg illegal gratification as consideration in lieu of assurance to carry out various unauthorized and illegal requests which could not have been by way of (a) payment of his salary, (b) his receiving loan s, (c) his receiving back loans/other money owed to him and (d) due to any other genuine or reasonable ground; AND WHEREAS the owners of AAj Tak news channel have categor ically declined in writing to allow their reporters and journalists to join in any investigation into the conduct of the said Shri Digambar Singh, Warder-59 9 in respect of news telecast made on 4 111 f\1/ay, 2005. In view of this, I am satisfied that it has not been reasonably practicable to hold any departmental enquiry. In view of this, during any such departmental proceedings, had such enqui ry been ordered, such crucial witnesses as the reporters/journalists of the Aaj Tak TV network would not have appeared for tendering evidence during the enquiry; AND WHEREAS further the said Shri Digabar Singh, Warder-599 is an employee of a particularly sensitive department like Tihar jail, and, therefore, it was expected of him to conduct himself with a high standard of integrity and honesty, but he did not do so; AND WHEREAS in the Tihar jail 'there is a wide variety of prisoners housed, many of whom are undertrials 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 further TADA and POTA undertrials, dangerous prisoners like those involved in the attack on Parliament on 13t 11 December, 2001 and other death sentence convicts and dangerous criminals transferred from other States, to mention a few . In these circumstances, given propensity of the said Shri Digambar Singh,· Warder-599 to accept favours and give information in lieu of illeg al gratification, the very security of Tihar itself could be W.P.(CJ 51/2010 & Connected matters jeopardized . Also, officials involved in such acts of misconduct can be instrumental in doing anything, ranging from fostering disaffection among prisoners facilitating their escape, to even facilitating an attack on the prison from external sources. NOW, THEREFORE,. in view of the above narrated facts and keeping in view the overall circumstances of the case I, R.P.Singh, Director General (Prisons), in exercise of the powers conferred by clause (b) of tile second proviso to Article 311 (2) of the Constitution of India read with rule 19 of Central Civil Services (Classification Control and Appeal) Rules, 1965, hereby order that Shri Digambar Singh, Ward er-599 shall stand dismissed from service with immediate effect. It is further directed that Shri Digambar Singh, Warder-599k shall deposit all government properties given to him, i.e., identity card, uniform articles with the Prison Department immediately on the receipt of this order. (R P SINGH) DIRECTOR GENERAL (PRISONS)" 15 . Similar orders of dismissal were also passed in the cases pertaining to the employees of Trade and Ta x department vide orders dated 08.07 .2006.

¶16A perusal of the orders would show that the basic reason for dispensing to l1old that the enquiry in the aforesaid matters wa s that the TV Channel "Aaj Tak" vide their letter dated April, 19, 2005 addressed to the Addl. Secre tary, Directorate of Vigilance, GNCTD has informed that as a policy, the company does not allow any of its personnel including reporters, journalists etc. to join inves t igation of any kind of who have performed their onerous duty in the public interest to inform the public the ill-wills in the society. Moreover, Channel "Aaj Tak", be ing a 24X7 channel, they cannot affor-d any of their journali st/reporters to join any investigation as they are busy in news and current affairs matters .

¶17In the case of jail employees additional ground was that in the Tihar jail "there is a wide variety of prisoners housed, many of whom are undertrials 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 W.P.(C) 51/2010 & Connect'ed matters '. ,, further TADA and POTA undertrials, dangerous prisoners like those involved in the attack on Parliament on 13t 11 December, 2001 and other death sentence convicts and dangerous criminals transferred from other States, to mention a few".

¶18Vide common order dated 31.08.2009 the Tribunal has allowed all the petitions and gave the following directions to the petitioners: "30. In view of the discussion made above, where as we approve the view taken by the Division Bench of this Tribunal in OA No. 778/2006 for some reasons which may be the same and for some reasons which may be in addition to the view taken by the Division Bench, we do not approve and thus overrule the view taken by the co-ordinate Bench of this Tribunal in OA Nos.2884 /2005, · 2005/2005, 2897/2005, 2899/2005 and 2898/2005.

¶31All these Applications are accordingly allowed. Impugned orders passed by the concerned authoritie s, be · it the disciplinary or the appellate authorities, are set aside and quashed. The respondents would be, howev er, at lib erty to proceed against tile applicants departmentally. We are conscious that there can be only zero tolerance for corrupt ion, but before a person is thrown away by suc h a stigma whi ch may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure . While, however, setting aside the orders, as mentioned above, we pass no orde r-s of reinstatement of the employees/applicants. It may be recalled tllat before the orders terminating services of the applicants were passed, they were under suspension. They would thus remain under suspension and may be, at the most, entitled to subsistence allowance from the date they were dismissed. It will be exclusively up to tile authorities to continue their suspension during pendency of departmental enquir -y against them. Considering nature of the case , we direct ·authorities to conduct the enquiry on day-to-day basis and pass final orders, insofar as, at least the disciplinar -y authority is co ncer-ned, as expeditiously as possible and preferably within a period of six months from today. If the employees may not cooperate, then for r-easons to be recorded the respondents may even proceed ex parte aga inst them, or seek orders on that behalf from this Tribunal. In view of the peculiar facts and circumstances of this case, costs of this litigation are made easy." W.P.(C) 51!2010 & Conn ected matters 19 . Some ot her observations made by the Tribunal which reflects the reasoning in com ing to the aforesaid decision are also reproduced hereunder: "24. We have no doubt in our mind that the jud gments re lied upon by th e learn ed counsel rep r-esenting respondents (Petitioners herein) , have no par-ity wh atsoe ver with the facts of the case in hand . We have already mentioned that by and large, reasons dispensing with th e enq uiry , wh ether good or not, woul d depend upon facts and circum stances of each case. The judicial decisions wherein it was proved to the hilt that the witnesses who could prove the charge were intim idated, terr-orized and threatened with their lives, would have no parity with the facts of the present case, where witn esses have expressed their inab ility to join inv est iga t ions, being busy, and wh ere their atte ndance cou ld be enforced through not on ly persuasion but also by process of law.

¶25Shri Rakesh Khanna, learne d co uns el representing the responde nts, while referring to the order of dismissal , the order passed by the appell ate authority, the role of th e emp loyees clear ly shown or seen accepting bribe at thei r-workp lace, no denial by the employee s of the allegations of misconduct shown in the vi deo footage, as also in th e plead ings, and by their condu ct, would co ntend that there was no need whatso ever to hold an enquiry aga inst th e employees . Elaborating the contention as noted above, the counse l would contend that the order of dismissal came to be passed after tile TV telecast, which th e emp loyees also must have see n. Electronic media had highlighted the incident for several days. If it wa s the case of t he emp loyees that the sting operat ion was bogu s, they ought to have proceeded aga inst the TV channe l Aaj Tak for defamation and also by filing criminal case aga inst them. The very fact that they kept quiet over the issue would be an impli ed admission on their be half of the misconduct alleged against them. When the order of terminat ion came about, the app licants would still take no step to proceed against the news channel . They have done nothing in that regard till date. Wh en the appeals were dealt with and the employees were sho wn the video footage, they would yet not deny their ro le in the episode, or that they were not th e persons shown accepting bribe . The co uns el 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 giv en our thoughtfu l cons ideration to tile contentions of the learned coun sel as noted above, but do not find any merit th erein. We may obse rve at the ve ry outset th at the co ncerned W.P.(C) 51 /2010 & Connected matters Page;21 of 37 authorities had such evidence in their possession which may substantially prove the guilt of the employees, does not appear to be a ground to dispense with the enquiry. If that was to be so, no enquiry may be held in any sting operat ion . Such course to be adopted would be fl-aught with dangerous propositions and ev il propens ities. The . media, and in particular the electronic med ia, would then assume the ro le of compla inant, prosecutor and ju dge, all rolled in one. The basic or fundamenta l governance, be it adm ini strati ve or judi cia l, in our country is based upon checks and balances. If the media is to be made so powerful without any checks and balances, some t imes, if not always, most innocent citizens may suffer having been framed up. We may not illustrate, but there is no deart ll of cases where sting operations have been found to be docto ,-ed or morphed. There is· no dearth of cases as well which may appear to be open and shut cases, but when put to trial, they end up in a ·smoke. It is not unknown that in trap cases where an employee may have accepted bribe and ca ught on spot, the courts in the consequent trials . have held the money to llave been thrust upon th e employee out of sheer grudge, vindictiveness or mala fides. In our cons idered vi ew, no one in this country can be condemned without being heard. No doubt, insofar as the emp loyees are concerned, enqu iry against them can be dispensed with, but that has to be based upon cogent grounds to be mentioned in writing, and we do not accept the contention raised by Slll-i Khanna that if the evidence available with the prosecution or the department may clearly sho w it to be a case of delinquency of an employee, it would be a good ground to dispense with the enquiry.

¶26In a given · set of circumstances, avai lability of overwhe lming evidence may be one of the grounds to dispense with the enquiry, but in no case, it can be the sole ground . In the present case also, at the most, avai lability of evidence, overwhelming according to respondents, but disputed by tile applicants, is also one of the grounds for dispensing with the enquiry. The first and the foremost reason is that the employees of the news channel Aaj Tak would not appear. If the first and the primary reason for dispensing with the enquiry is to be rejected, the second with regard to availability of clear evidence with the respondents against the employees, cannot sustain. We may also mention that even though, Shri Khanna may state the present case to be one where authentic and unrebutted evidence was avai lable with the respondents to pin down employees with allegations of corruption against them, but so is not even said by the respondent authorities. It may be recalled that while referring to the video footage indicating that the money was pa id for extend ing unauthorised and illegal W.P.(C) 51/2010 & Connected matters favours, concerned authorities observed that overwhelming presumption could be drawn . The authorities had also thus not gone beyond drawing an overwhe lming presumption." (Emphasis added)

¶20Before us, It is the submissions of the petitioners that the orde1· passed by the Tribunal is liable to be set aside inter al ia for the following amongst other reasons:

i) That under Article 311(2) (b) of the Constitution of India, enq uiry can be dispensed with when it is not reasonab ly practicab le to hold an enquiry. Since the New s channe l ,-efused to send their reporters for evidence, Discip linary authority terminated services of those who were clear ly visible in CD accepting money from an outside, - 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 th eir OA or Appeal have denied their presence nor have initiat ed any proceedings against the Aaj Tak News .Channel, in case the telecast was false reporting. Moreso, even in the forensic report, vo ice 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.l<. Bachawat in whose case regular enquiry is being held, because he had already retired by the time action was initiated against said officers; hence proceedings had to be initiat ed 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 involv ed in accepting bribes. It is also stated that when la1·ge sca le of officials starting from Group IV to Gazetted Officer are W.P.(C) 51!2010 & Connected matters ]V caught on a camera taking bribe, there is no need to hold a full fledged enquiry. It was thus submitted that dispensing with the services of those employees by invoking provisions of Article 3ll(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 difficu lt to construe that there is any technical fabr ication involved in recording just to put the charged official down. The committee of three jail officers had seen the concerned COs and had identified persons. In fact the Tribunal also watched the COs and video tape. The Court even wanted production of cllip 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 82 officials of Sales Tax Department accepting bribe from the bribe givers in their office without any fea1· and llesitation. The sting operation was shot by Shri Jalal l<athuriya, 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 digital storage in the Video Room which was absolutely unedited and nothing llad been added or deleted/altered/added in the cassette. All the gadgets instruments used in the sting operation 'Ghoos IVIahal' 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 casse tte was sent to the CFSL for voice comparison which gave positive results.

(vi) It has been submitted that the material which was available with authorities and which wa s also W.P.(C) 51/2010 & Connecl"ed matters Jl produced before appellate authority where respo·ndents were also made aware to what is the mater -ial against them and even before the Tribun al and therefore there was no necessity to set aside the orders passed by the petitioner-s 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 enq uiry in case it was so said institu ted was suff ice for-concluding th at 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 comm itted by them which involves accepting br-ibe on the face of it shows that the respondents who wer e dealt with only afte r the satisfaction of their identity by the three members of the Committee who saw the cassettes and on ly 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 act ion against the respondent which is fully justified. It is thus submitted that the order-s passed by the Tribun al is liab le to be quashed. Taking into consideration the legal provisions enshrined in Article 311(2)(b) of Constitution of India and the facts of this case .

¶21The petitioners have relied upon the following judgments: 1 . A.I<.Sen & Ors . Vs. UOI & Ors., 1983 (4) SCC 641

¶2l( uldip Singll Vs. State of Punjab & Ors., 1996 (10) SCC 659

¶3Sahadeo Singh & Ors. Vs. Union of India & Ors., (2003) 9 SCC

75.

¶4Ajit Kr. Nag Vs. Gen. Manager, Indian Oil Corporation Ltd . (2005) 1 sec 764.

¶5Director - Town Planning Maharashtra & Anr. Bhalchandra V Kukkarni, (2006) 5 sec 464.

¶6Romesh l<r. Sharma Vs. UOI & Ors. (2006) 6 SCC 510.

¶7Southern Railway Officer s Association & Anr. Vs. UOI (2009) 9 sec 24

¶22On the other lland, the respondents while supporting the order W.P.(CJ 51!2010 & Connected matters Page 25 of 3 7 J) passed by the Tribunal have urged that the order terminating se1·vices of the respondents without holding an enquiry proceeds primarily on the ground that the news chann el who was instrumental in conducting the sting operation declined to send their employees for leading evidence befo1·e any authority. This is despite the fact that those very witnesses stand included in the list of witnesses in a departmenta l enqu iry instituted by the petitioners against one Dr.A.I<.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 regula 1· enquiry for im posing 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 Governmen t of India after the decision was given in Tulsi Ram Patel's case (Supra). As regards plea that there is overwhelming ev idence is also not sufficient to dispense with the enqu iry inasmuch as if evidence is available with the petitione1 ·s there is no reason as to why enqu iry be not held. 23 . Respondents besides relying upon the judgment deliver ed by the Supreme Court in the case of Tulsi Ram Patel (Supra) have also relied upon the following judgments:

i) Chief Security Officer & Ors. Vs. Singhasan Rabi Das, AIR 1991 Supreme Court 1043

ii) Satyavir Singh Vs. UOI, 1986 SCC (L&S) 1

iii) jagdish Vs. UOI, O.A. dated 1515/2001 decided on 07.02.2003

iv) Mehant Ram Das Prakash Vs. Ramesh Cahnder & Ors. (1999)

(IX) sec 420. 24 . We have hea1·d the submissions made on behalf of the parties and have perused the ,-ecords .

¶25In the present case as stated above, the basic reason for dispensing witl1 the enquiry is that TV channel Aaj Tak vide thei1· letter dated

19.04.2005 addressed to Additional Secr etary, Directorate of Vigilance, GNCTD inform ed that as a policy, tile 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 ill-W.P.CC) 51!2010 & Connected matters wills in the society, and that, the channel Aaj Tak being a 24x7 channel, they could not afford any of their journalists to join any inv estigat ion as they are busy in news and current affairs matters. It is only on the basis of the aforesaid the disciplinary authority r-ecorded its satisfaction that it was not reasonably practicable to hold a departmental enqu iry and that had such enquir -y been ordered, such cruc ial witnesses as the reporters/journalist s of f-aj Tak TV Network would not have appeared for tendering evidence, and without their active assistance in the matter of conduct of enqu iry, no meaningful enqu iry could have been held. In add ition to that they have also referred to overwhelming presumption drawn from the video footage.

¶26The Tribunal has not agreed with the aforesaid reason s in view of the Departmental Inquiries (Enforcement of attendance of Witnesses and Production of Documents) Act, 1972 which perm its the disciplinary authority or the enquiry authority as the case may be to summon and compel attendance of witn ess and . production of documents necessary for holding an enquiry in departmental proceedings. In fact, tllis act was framed in vi ew of the recommendations of Santhanam Committee and as per the provisions contained in Section 2 of the Act, whi ch applies to every departmental enqu iry, Inquir -ing 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 afo r-esaid Act. The Act of 1972 has been added as a separate chapt er. The Central Vigilance Commission has also emphas ized that he provisions of the aforesaid act can be taken r-ecourse to in cases recourse to in cases wh ere there is possibility of private witnesses, who are required to provide crucial evidence, evading before the enqu iring authority, and that the Act is applicable to all enq uiry proceedings where lack of integrity is a charg e or part of a charge, and furtller that the enquir-ing authority authorized under the Act is conferred with powers of a trial court to summon witnesses/documents, and such summons shall be ser ved througll a District jud ge. Accordingly the reasoning of the disciplinary authority W.P.(C) 51 /2010 & Connected matters to dispense with the enquiry only on the aforesaid ground was held to be incorrect fallacious and arrived at in ignorance of law.

¶27In the impugned order-the Tribunal further observed th at the two sting operations which were carried out by the TV new s channe l Aaj Tak on 08.03.2005 and 04.05.2005 and the news was telecast on the same day when the sting operations were carried out. It is, however, of importance to note that while the orders dismissing the emp loyees of Tr-ade and Tax Department were passed on 08.09.2006 and the appea ls filed by them was dismissed on 23.11.2007; with r-espect to the sting operations perta inin g to Tillar Jail the same was carr ied out on 04.05.2005 and the telecast was done on the same day. The employees were suspended and crim inal cases registered against tl1em on the next day itself. They were dismissed from ser-vice on

29.09 .2005 and their appeals were dismissed on

02.02.2006. In these circumstances the Tribunal has observed that it was not a case of any emergent situation and sufficient time had lapsed which would have enab led the disciplinary authority to hold an enquiry in this matter .

¶28The Tribunal relying upon the case of Constable jagdish l<umar in OA No.2353/2006, 5.10/07; Raja Ram Vs. Speaker Lok Sabha and Ors. 2007 (3) SCC 184; Sudesh Kumar Vs. State of Hary ana and Ors . 2005 (11) sec 525 has also observed that when allegations made aga inst an employee are based upon video footage, dispensation of enquiry has not been found favour by the Apex Court.

¶29Some observation made by the Tribunal in para 12 of th e impugned order which highlights discr-imination qua the present respondents in the matter of holding a departmental enquiry vi z-a-vi z one Sub-Inspector of Police on whom also sting operation was undertaken by the same news channel and where enquiry was held is also reproduced: "I n OA l\lo.265/2006 in the matter of Krishan Kumar V. Govt . of NCT of Delhi & Others, a misc. application beari ng MA No.2317 /2006 came to be filed during pendency of the OA. The prayer in the misc. application is to permit the applicant to place on records additional affidavit. In the additional affidavit it has inter alia been pleaded that the same news channel had carried out a sting operation in W.P.(CJ 51!2010 & Connected matters Pag e 28 of 37 respect of some officials of Delhi Police. In that connection 51 (Ex e.) Sobhen Ba rik was cha rgesheeted on 14.07.2005 . He had made demand of Rs. 50,000/- and the incident of demanding money was recorded by the channel Aaj Tak, which was so mentioned in the chargesheet issued against him. It is further mentioned in the chargesheet issued against him. It is further mentioned that the charge against the 51 was not only of asking for money but also of running fmm camera afte1· he realized that conversation was being recorded. It was subsequently telecast by the TV channel and watched by public. Even though, the incident of demanding and accepting bribe was of 03.11.2004, 51 Sobhen Bal-ik was charges heet ed on

14.07.2005, far before at least the employees of the Trade 5( Taxes department were dismissed fmm service, and far before the appeals of the employees of the jail departm ent were dismissed. The disciplinary or the appellate authority knew or were at least supposed to know that by the t ime they passed their respective orders, an employee of the police department was being proceeded departmentally on the allegations which could be proved only by those who carried out the sting operation and who were from the same TV channel Aaj Tak only. It is then pleaded n the additional affidavit tl1at the correspondent who conducted the sting operation was Shri Dhirender Pundir, and his name was listed in the list of witnesses dated 14.07 .2005 as PW-10. On 07 .11.2005, Shri Pundir appeared and deposed in the departmenta l enquiry."

¶30The Tribunal also noticed about the case of Head Constable Ramesh of CRPF who was on duty in Central jail Tihar on the date of sting operation and who allowed the car of the reporter inside the jail and was seen in the CD opening main gate for allowing the car to enter after accept ing the money but he was not dismissed from serv ice by invoking Arti cles of 311 sub-Clause (2).

¶31The Tribunal also observed that in ,-espect of the incident criminal cases under Section 7, 12 and 13 of the P1·event ion of Corruption Act read with Section 1208 of the IPC stood registered. The respondents placed on record the list of witnesses who have to be exam ined in Court seized of the criminal trial. Admitt edly, thos e who carr ied out the sting operations were cited as witnesses. The statements of all these witnesses were recorded under Section 161 Cr.PC. They fully cooperated with the prosecution not only in making statement unde1· Section 161 Cr.PC, but in supplying the materia l W.P.(C) 51!2010 & Connected matters J{, available with them as well. Even though, we are conscious that the provisions co ntained in Cr.PC are such that a person cannot refuse to be a witness if his evidence may be relevant in a uiminal trial, and if he may refuse, he can be prosecuted as well, but the fact that those who carr ied out the sting operation were cooperating and despite the letter dated 19.4.2005 of the news channel Aaj Tak, had willing ly made their statements and supplied the material. ought to hav e been a factor for cons ideration 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 th is Court to the news channel Aaj Tak, they supplied unedited and comp lete version of the telecast (audio and visual) before this Court by the learned counse l who appeared for the TV Today Netwo1'k. The COs were ordered to be kept in safe custody subject to further di,-ect ion s. Even though these directions were given by this Court in con nect ion 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 this Court in the case of Surinder Kumar who fi led W.P.(C) 1758/2008 against ol-der 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 departmentally wher e 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, tile dismissal of ASI Surinder Kumar was based upon the recordings shown to NDTV yet this Court made tile following observations: "In our opinion, it is reasonably practicable to conduct the departmental enquiry in present case of sting operation. The department could have proved the charge against the respondent by examining the witnesses from NDTV who carr ied out the sti ng operation . We are further of the view that conducting of the departmental enquiry in sting operation is all the more necessary in order to rule 51!2010 & Conne cted matters out the possibility of any motivated action in sting operation. Whether such a sting operation was genuine or not has to be proved by cogent eviden ce and for this, it is not difficult to produce the material witnesses."

¶34Tribunal has also observed that neither - the employees we r-e given any opportunity to explain the allegations levelled against them before the order of dismissal was passed nor a show cause notice was given to them in this regard nor they wer-e associated witll 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 the same. There is nothing on record to show that the emp loyees wer e specifically asked to about allegat ions of accepting th e brib e allegedly shown in the video footage. Mer-e acceptance of money by the emp loyees 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.

¶35The Tribunal has further observed that from the affidavit filed by the News channe l it could not be inferred that the CD pmduced 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 furtller observed that from the transcription r-elied 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 citat ions relied upon by the respondents we find that in the case of Sudesh Kumar Vs. State of Harvana and Ors. 2005 (1) sec 525 pursuant to pre liminary enquiry a dea lin g clerk was dism issed fmm service without regular departmenta l enq uiry on being satisfied that it was not reasonably practical to hold an enquiry . 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 delinquent official during departmental proceedings. Here also, reliance was placed upon a W.P.(CJ 51/2010 & Connected matters news item appearing in Hindi Daily on 01.12.1999 where reference was place upon a compla int made by japanese national, after a pre lim inary enqu ir-y D.S.P. Yogender Nehra , taking note that the japanese national may have to leave the country and lle was also not willing to name the delinquent officer as lle feared harassment , but the statement of ASI Shiv Dutt, in-charge, security branch, and ASI Lal Singh clear ly revealed that it was HC Sudesh Kumar who was posted as foreign registration cler k in the district police office on 1.10.1999, and he had processed the visa extension case of the foreign nation al, and that he had also deposited the extension fee of Rs.2 160/ - in State Bank of Patiala, having satisfied that there was no doubt whatsoever about the identity of Sudesh Kumar who accepted illegal gratification, dispensed with the enquiry. It was also mentioned in the order that the Japanese national was likely to leave tile country. Despit e the facts as mentioned above, wllere the for-eign national felt thr-eatened and was leaving the country and thus, may not be avai lable for mak ing statement, the order of dismissal of the appellant was set aside by holding that dispensing with a regular departmental enquiry was improper.

¶37The view taken by the Tribunal that raw footage of video fi lm seen by someone who is to appreciate the ev idence may have some ev ident iary va lu e, but, the edited version of the video film cannot be made the so le basis for retur -ning a finding. Unless, therefore, corroborated, it would have no evident iary value. In this regard reference was to a judgment delivered by the Apex Court in Raja Ram Pal Vs Speaker, Lok Sabha & Others [ (2007) 3 SCC 184].

¶38In tile case of Ex. Constable Chotev La/ Vs. Union of India 2000

(10) sec 196 and Ors. also relied upon by the respondents dealing with the opinion that it was not r-easonab ly practical to hold the enqu iry in the facts of that case the Apex Court has been pleased to observe as fo llows: "3 . fV!r Yadav, learned counse l appearing for appellant contends that though the employer has the power to dispense with an enquiry under Article 311 (2), second proviso, clause (b) of the Constitution but the conditions precedent for exercising that power W.P.(C} 51!2010 & Connected matters have now been indicated in several decisions of this Court and in the present case, those conditions precedent cannot be said to have been satisfied. Mr Chaudhary, the learned 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 ground 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 circumstances under which enquiry under Article 311 (2}, second proviso, clause

(b) ·of 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 conclusion that order dispensing with the departmental enquiry is not in accordance with law and necessarily the order of dismissal cannot be sustained. We accordingly set aside the order of dismissal passed against the appellant and permit th e departmental authority to hold an enquiry if so desired, 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 India Vs. Tulsiram Patel (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 finality can certainly be tested in a court of law and interfered with if the act-ion is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the enquiry." 40 . Now 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.Sen(Supra) 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} 51!2010 & Connected matters Pag e 33 of 37 ho person with any reason/sense of responsibility can say that in such a situa tion holdin9 of enqu iry was reasonably pr-actica l b) The case of Kuldip Singh (supra) pertains to dismissal of the appe llant 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 5( Ors. no independent evidence was available. d) In the case of Romesh Kr. Sharma (supra), the appe llant was dismiss ed from service under Section 20(1) r/w Rule 17 dispensing with enquiry, which was challenged as being illegal and the enquiry was abandoned midway. The Court observed that under proviso to rule 17, Chief of Ar-my Staff 5( Other officer -s are competent to or-der· rernova I without corn plying with the procedure set out in the main part of tile rule after certifying that it was not r·easo nably practicable to comply with the provisions set out and the fact that the enquiry was not qua the appe llant 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 par-ity with that case. e) Similarly, the judgment in Southern Railway Officers Association & Anr. Vs. UOI was also given in peculiar facts and circumstances of that case .

¶41Taking into consideration the judgments cited before us by the parties and also taking note of the observation made by the Tribunal, we agree that reasons dispensing .with the enquir-y whether good or not would depend upon facts and circumstances of each case. In a case where it is proved to the hilt that the witnesses who cou ld prove the charge were intimidated, harassed and threatened with their liv es, would certa inly have no parity with the facts of tl1e present case only because tl1e witnesses have expressed their inability to join investigation being busy, cannot be a reason for dispensing with the W.P.(C) 51 /2010 & Connected matters 4! enquiry 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 sei'Vices of the respondents by dispensing with the enquii'Y for the reasons stated in the orders as quoted is contl 'ary to ru le of law which is the basis of good governance and constitutional obligation imp osed upon the Government. It is true that prevailing corruption in the Government offices llas been exposed by the news channel and everybody would commend t heir effort in doing so and also ask for fOI'thwith dismissa l. of the corrupt officials who were exposed. As a means for curbing the menace, they may also opine that a short cut has been adopted by the petitioners (of dispen sing 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 bas ic principle embod ied in Rule of Law is to abide by Princip les of Natmal ju stice 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 requires 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 certai nly entitled to hearing may be only by issuance of a show cause notice even if the situation is urgent. We can make l'eference to the case of K.l. Ors Vs. Union of India and Ors ( 1987) 4 sec 431.

¶44It would be relevant to take note of para 13 of the judgment in this case, which ,,eads as under: "13. Natura l justice has various facets and acting fairly is one of them. RBI which monitored three amalgamations was required to act fairly in the fact s of the case. The situation necessitated a partic ipatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their liv elihood and brings adverse civil consequences and could obviou sly W.P.(C) 5112010 & Connected matters 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 could make a report against such emp loyee and have him exc lude d from further service under the transferee bank. The possibility of exc lusion on the basis of some mistake such as to identity cannot also be ruled out. There is all more apprehension of this type as the process has to be comp leted quick ly and very often the records of a large 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 exclude a section of employees without comp lying 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 wher-e a regular department enqu iry 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 th is case. Tile ar-guments subm itt ed on behalf of learned counsel for the petitioners that during the course of hearing of the appeal th e respondents l1ave seen the recordings and, ther-efore, they ar·e aware of their ro le in the episode and non e of them disputed their pr-esence at the location or their appearance in the cassettes which were telecast is of no consequence as playing of such cassettes befor-e 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 wrong, we should not be understood as saying that the depth of the enquiry shou ld be equi val ent to that of a trial before a criminal court. The least which could have been done was to initiate an enquiry, place a copy of the cassette on the enqu iry file, supply a copy of the cassette as telecast to the emp loye e, give the emp loye e opportunity to exp lain, though not necessarily record all exp lan ations 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!20 10 & Connected matters view and come to their conclusion as to whether it would be in the inter ests of justice to prematurely terminate the services or take some other action as may be thought proper. 47 . A modicum of depth at the enquir-y would have sufficed. We shou ld also not be understood as saying that the witnesses from the channe l would be required for such enquir -y. We need not go into further details of what ought to be done at the enquiry as it is for-the discip linar-y authority/enquiry officer to deter -mine, and rest content with noting that in our view the dispensing with the enquiry was not justified.

¶48Taking all these facts into consideration, we find ourselves in agreement witll the conclusion rea ched by the Tribunal, though for somewhat different reasons, as we have noted above.

¶49In view of the aforesa id, the writ petitions are dismissed with no order-s as to costs. AUGUST 06, 2010 anb/ag W.P.CCJ 51!2010 & Connected matters MOOl CHIAN!D GAIRG,

* IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Date of Reserve :28.07.2010 Date of Decision :06.08.2010 + W.P.(C) 92/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus AMAR SINGH PEON ..... Respondent Through Mr.Sachin Chauhan, Advocate CORAM: 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?