Govt of NCT of Delhi and Ors Through Commissioner, Trade and Taxes v. A K Jain

PRADEEP NANDRAJOG,J 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. S' * m THE HBGH COURT OF DELHI AT S\iEW DELHI + W.P.(C) 51/2010 o/o Date of [Reserve Date of Declsnon :0i6.0s-20il0 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus JAI BHAGWAN Respondent Through Nemo + W.P.(C) 58/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Sirnran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SANJAY DAWAR, STENOGRAPHER Respondent Through Mr. S.P.Mehta, Advocate + W.P.(C) 67/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Sirnran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus DJ GUPTA Respondent Through Mr.Shyam Babu, Advocate + W.P.(C) 77/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs.Latika Choudhary and Mr.Nitesh W.P.(a 51/2010 &Connected matters Paqe 1 of37 Kr.Singh, Advocates versus GEETA MALHOTRA Respondent Through Mr.S.P.Mehta, Advocate + W.P.(C) 78/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus A KJAIN Respondent Through Mr.S.P.Mehta, Advocate WITH + W.P.(C) 81/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwatwith Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SOHAN LAL LD.C Respondent Through Mr.Sachin Chauhan, Advocate r + W.P.(C) .83/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus RAJESH SINGH STENO Respondent Through Mr.Sachin Chauhan, Advocate WITH + W.P.fC) 87/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner W.P.(C)51/2010 &Connected matters Page 2 of37 % 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 + W.P.(C) 88/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish AhaJwat with Mrs.Simran, Mrs.Latilo Choudhary and Mr.Nitesh Kr.Singh, Advocates versus KARAN SINGH YADAV ASTO Respondent Through Mr. Sachin Chauhan, Advocate + W.P.(C) 90/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus r M SATWANT KAUR Respondent ^ Through Mr. Sachin Chauhan, Advocate + W.P.(C) 92/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus AMAR SINGH PEON Respondent Through Mr.Sachi.n Chauhan, Advocate \N.P.(C)51/2010 &Connected matters Page_l_o[37 + W.P.(C) 112/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Tlirougli Mrs.AvnislnAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus PRABHAJOSHI Respondent Through Mr.S.P.Mehta, Advocate + W.P.(C) 113/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latilo Choudhary and Mr.Nitesh Kr.Singh, Advocates versus MUSHTAQ AHMED, PEON Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 114/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus YAD RAM YADAV Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 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) 51/2010 &Connected matters • EmeAs?!!! Kr.Singh, Advocates versus KIRAN VERMA PEON Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 116/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latil<a Choudhary and Mr.Nitesh Kr.Singh, Advocates versus A RANJIT CHOUDHARY,STENO Respondent Through Mr.S.P.Mehta, Advocate £ + W.P.(C) 117/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Sinnran, Mrs.Latilo Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SHAMSHERSINGH UDC Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 118/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latil<a Choudhary and Mr.Nitesh Kr.Singh, Advocates versus RAM BHAJAN, PEON Respondent Through Mr. Sachin Chauhan, Advocate + W.P.(C) 119/2010 W.P.(C) 51/2010 &Connected matters Paqe 5 of37 !> % f' % 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 GANPAT SINGH Respondent Through Mr.S.P. Mehta, Advocate + W.P.fC) 123/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latil<a Choudhary and Mr.Nitesh Kr.Singh, Advocates versus C P YADAV PEON Respondent Through Nemo + W.P.fC) 124/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwatwith Mrs.Simran, Mrs.Latika Choudhary and IMr.Nitesh Kr.Singh, Advocates versus AJAY KUMAR STENOGRAPHER Respondent Through Nemo + W.P.fO 129/2010 • GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus W.P.(C)51/POlO&Connectedmatters Paqe 6 of37 SHRl CHAND Respondent Through Mr. S.P. Mehta, Advocate + W.P.(C) 130/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwatwith Mrs.Sinnran, Mrs.Latil<a Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SWARAN GUJRAL Respondent Through Mr.S.P.Mehta, Advocate + W.P.(C) 131/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.AvnishAhalwatwith Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus BRAHAM SINGH PEON Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 265/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES Petitioner Through Mrs.Avnish Ahalwatwith Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus VEENAANAND Respondent Through Mr.Ajay K.Sharma, Advocate W.P.(C) 51/2010 & Connected matters + W.P.(C) 1084/2010 ' GOVT.OF NCT OF DELHI & ORS.THROUGH COMMISSIONER,TRADE TAXES Petitioner Through Mrs.AvnishAhalwat with Mrs.bimran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus ANIL KUMAR Respondent Through Mr.Abhay Kumar and Mr.Tenzing Tsering, Advocate + W.P.(C) 1172/2010 GOVT. OF NCT OF DELHI & ORS.THROUGH COMMISSIONER,TRADE& TAXES Petitioner ' Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latil<a Choudhary and Mr.Nitesh Kr.Singh, Advocates versus SMT.VIMLASEHGAL Respondent Through Mr.Arvind Nayar, Advocate WITH + W.P.(C) 1857/2010 GOVT.OF NCT OF DELHI & OTHERS • Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latil<a Choudhary and Mir.Nitesh Kr.Singh, Advocates versus PHOOL SINGH Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 1858/2010 GOVT.OF NCT OF DELHI & ORS. Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, W.P.(C)51/2010 &Connected matters Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus BRAHAM SINGH,LDC Respondent Through Mr.S.P.Mehta, Advocate + W.P.fC) 3644/2010 GOVT.OF NCT OF DELHI & ORS. Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus ASHWANI KUMARI Respondent Through Nemo + W.P.fC) 4437/2010 GNCT OF DELHI AND ORS Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus rSJEPH Respondent Through Nemo WITH + W.P.fC) 3056/2010 GOVT.OF NCT OF DELHI & ORS THROUGH PRINCIPALSECRETARY(HOME) Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus W.P.(C) 51/2010 & Connected matters Page_9j3L37 RAJ KUMAR Respondent Through Mr.Sachin Chauhan, Advocate + W P.fC) 13806/2009 GOVT OF NCT OF DELFil AND ORS TFIROUGFI PRINCIPAL SECRETARY(HOME) Petitioner Through Mrs.AvnishAhalwat with Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus DIGAMBERSINGH Respondent Through Mr.G.D.Gupta,Sr.Advocatewith Mr.S.K.Sinha, Advocate + W.P.(C) 49/2010 GOVT OF NCT OF DEKHI & ORS THROUGH PRINCIPALSECRETARY Petitioner Through Mrs.AvnishAhalwatwith Mrs.Sin-iran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus KRISHAN KUMAR Respondent Through Nemo + W.P.fC) 50/2010 GOVT OF NCT OF DELHI AND ORS THROUGH PRINCIPALSECRETARY(HOME) Petitioner Through Mrs.AvnishAhalwatwith Mrs.Simran, Mrs.Latika Choudhary and Mr.Nitesh Kr.Singh, Advocates versus VINOD KASHYAP Respondent Through Mr.Sachin Chauhan, Advocate ]N.P.(C)51/2010&Connectedmatters ' Paqe 10 of37 (h 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. I know what's legal, not what's right. And I'll stick to what's legal ... 1am 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?" Roper: "I'd cut down every law in Englandto do that!" More: "Oh?....And when the last was down, and the Devil 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 benefit of law, for my owo 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 'reasonabSy practscable' to hold an enquiry before dismissingthe respondentsfrom their services by invoking second proviso to sub clause (b) of Article 311(2) of the Constitution of India in the prevailingcircumstances at the relevant time was justifiedor 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)51/2010 &Connected matters + W.P.(C) 721/2007 GOVT OF NCT OF DELHI AND ORS Petitioner Through Mr.Rajesh Kapoorwith Mr.Mitesh, Singh, Advocates versus R.D. BOHET Respondent Through Mr.A.K.Behra,Mr.K.C.Baliasingh, Advocate CORAH: HOSSl'BLE NR. jySTBCE PIRADEEP MAMDRAJOG HOSM'BLE JUSTICE WOOL CHAEMD GARG

¶1Whether reporters of Local papers may be Yes allowed to see the judgment?

¶2To be referred to the reporter or not? Yes

¶3Whetherthe judgmentshould be reported in Yes the Digest? MOOL CHAMP GARG. I- *

¶1We preface our decision by noting the argument of learned counselfor the petitioners,being that so reprehensibleis the conduct of the respondents,who have been caught literally with their pants down of acceptingbribe that this Court ought to extend no benefitto 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 petitionersurged that the respondentsare not entitledto any hearing.The aigumentis emotional and is rejected at the outset for the reason a system governed by the rule of law requires dispute resolution as per law. The submission made by learned counsel 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 All Seasons" by Robert Bolt. It refers to an incident when SirThomas More was urged by his daughter, Margaret, and his son-in-law, Roper, to arresta man they regardedas evil. The dialogueis as under:- W.P.fO 51/2010&Connectedmatters Paqe11 of37 /

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

08.03.2005 at about 9:30 p.m. by T.V. news channel 'Aaj Tak' wherein respondentsposted in Tihar Jail were shown accepting money from the persons lodged in jail 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 all the respondents. The petitioners also lodged an FIR against all the respondents under Sections 7, 12, and 13 of the Prevention of Corruption Act on

09.03.2005 itself.

¶5Later 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 dismissedtheir services without holding any domestic enquiry on the pretextthat the owners of the T.V. News Channel 'Aaj Tak' refused to associate themselves with any enquiry/investigationas may be conducted in the matter.

¶6These orders were challenged by the respondents by filing appeals and supplementaryappeals before the Appellate Authority which were dismissed with the only modification of conveiting 'dismissal' to 'removal'. 7he respondents than approached the Central Administrative Tribunal Principal Bench New Delhi. Astrange situationarose before the 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.778/2006was allowed by a coordinate bench of the Tribunal vide order dated 24.11.2006 without referring the matter to larger bench. Awrit petition bearing No.721/2007was 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 however 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 the pendency of W.P.(C) No. 721/2007. Later on, on an applicationfiled by the applicantin OA No. 2561/2006,larger Bench revived the matters and disposed all of them vide order dated

31.08.2009 which is the common order impugned before us and is subjectmatterof the writ petitions.Variousquestionswere framed by the full bench includingthe proprietyof the later co-ordinatebench of the tribunal deciding the matter contrary to the earlier view of the Tribunal without referring the matter to a larger Bench. We are howeverconcerned with the followingquestion giving rise to the filing of the petitions before us;

i) Whetherin the facts and circumstancesof the case, the power conferredby clause (b) of the second proviso to Article311(2) of the Constitutionread with Rule 19 of the Central Civil Services (Classification,Control and Appeal) Rules, 1985 can be justifiablyinvokedand the impugned order sustained. •9. The common ground taken by the respondentsin the appeals filed before the AppellateAuthorityas also before the Tribunal was, that the reason given in the two orders dismissingthe respondent "that the News of Aaj Tak news channel declined in writing to allow their reporters and journaliststo join in any investigation into the conduct of the applicant and consequently the case of the department become weak" for dispensing with the enquiry was contraryto Rule of Law not sufficientfor reaching to the Conclusion that it was not practicableto 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"^ Proviso to Article 311 (2) of the Constitution of India.

¶10The three conditions mentioned in sub-clause (6) to Flule 19 of the CCS (CCA), relevant for invoking of sub-clause (b) of the second proviso to Article 311(2) provides that; W.P.fC) 51/2010 &Connectedmatters Paqe 14 of37

(a) Where a civil 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

(b) Where the civil servant by himself or though others threatens, intimidates and terrorizes the officer who is the disciplinaryauthority 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 indisciplineand insubordinationprevails at the lime of the attempt to hold the enquiry is made

¶11The disciplinaryauthority is not expected to dispense with a disciplinaryenquiry lightly or arbitrarilyor out of ulteriormotives or merely in order to avoid the holding of an enquiry or because the Department'scase againstthe civil servantis weak and is, therefore, bound to fall.

¶12Before the AppellateAuthority,respondentssubmittedthat the Orders passed by the disciplinaryAuthority in these cases do not meet the aforesaidtest and thus the orders impugned in appeal were .liable to be set aside. Furtherthe respondentsdenied the allegations such as acceptanceof money, allegationof existenceof compactdisc 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 compactdiscs. It was also stated that in the order it was not even alleged that the respondentin any mannertried to contactthe news channel or tried to influence or terrorize witnesses. It was also submitted that when regular departmental enquiry was ordered in case of similarlysituated person i.e. one Dr.A.K.Bachawatthere was no reason to discriminatewith the respondents. Howeverthe appeals were dismissed vide common order dated

21.Iz.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 W.P.(C)5112010 Connectedmatters Paqe I-b of37 dismissing the respondents after concluding that it was not reasonably practicable.to hold a departmental enquiry in these cases were not sustainable in law. The petitioners aggrieved from the aforesaid order filed the aforesaid writ petitions.

¶14The order 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 ofTiharJail Employeessetting out the reason for adopting the procedureas per the proviso of Sub clause 2 (b) of Article 311 of the Constitution of India is reproduced for the sake of reference: "Office of the Director General (Prisons) Prisons Headquarters: Tihar: New Delhi Fll(659):CJ:Vigilance:2005:2187 Dated 27/9/015 WHEREAS onthe4th May, 2005 at about 9.30 PM, a news item was telecast on the AAj Tak news channel over Televisionwith the caption,"TiharJail bana Ghoos maha! ; AND WHEREAS Shri Digambar Singh, Warder-599 posted at CentralJail No.2,TiharJail, New Delhi was shown acceptingmoney in lieu of favoursto be extendedeitherto prisonerslodged in Jails or to those intendingto meet them in contravention of the provisionsof the Delhi Prisons Act, 2000 (Delhi Act 2 of 2002) and the rules made thereunder read with the Delhi Jail Manual; AND WHEREAS the said Shri Digambar Singh, Warder-599 was placed under suspension vide this office order no. F-ll(Misc.)/CJ/Vig./2005/998-1011dated 4^^ May, 2005 and furthera case FIR No. 25/2005dated the 5^; M^ay, 2005 was registered,amongstothers, againstthe said Shri DigambarSingh, Warder-599 under Sections 7,12 and 13 of the Prevention of CorruptionAct, (49 of 1988) with the Police Station, Anti Corruption Banch, Old Secetariat; Delhi; AND WHEREAS the above misconduct on the part of the said Shri DigambarSingh, Warder-599 is in violationof the following provisionsofthe Delhi PrisonsAct 2000 (Delhi Act 2 of 2002) and the rules made thereunder read with the provisions of the DelhiJail Manal, namely; "Section 9 of the Delhi Prisons Act. 2000 (Delhi Act 2 of 2002) Officers not to have business dealing with prisoners and others:- W.P.fC) 51/2010 &Connectedmatters Paqe 16 of37

(1) No officer of a prison shall sell or let, nor shall any person in trust oremployedby him sell or let, orderive any benefit from selling or letting, any article to any prisoner o have any money or other business dealings, directly or indirectly 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. I Rule 145 of Delhi Prisons (Inspection. Meetings and Diite. of Officers) Rules 1988

(1) No subordinateofficershall, otherwisethan with the special permissionof the Superintendent,at any time;-

(a) Correspond or hold any intercourse oP communication of any kind whatever with any relatr^/e or ^ friend of any prisoners: mfk

(b) hold any unauthorized communicationof any kind whatsoever with any prisoner; (C ) correspond or hold any intercourse whatever with any discharged prisoner; or

(d) permit any discharge prisoner or any relative or intend of any such prisoner to visit or remain at his quarters

(2) No subordinate officershall at any time;-

(a) hold any uncessaryconversewith any prisoner:

(b) treat any prisoner with familiarity; or (c ) discuss any matter relating to the discipline 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 ready willingnessto extend undue facilitiesand conveniencesin 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) Rules, 1964; AND WHEREAS the relevant compact disc has also been seen by me; AND WHEREAS further the identity of the said Shri DigambarSingh, Warder-599has also been established by a Committee of three jail officers constituted by the Director-General (Prisons) vide order No.F.ll/Misc./CJ/Vig./2005/12/2dated 26^'' May, 2005. On W.P.(C)51/2010&Connectedmatters Pag^U of37 the 2"'' June, 2005 vide Comnnittee report diary No. 1643/SCJ(HQ)dated 2"^ 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 the provisions of DelhiJail Manual; AND WHEREASit is clear that the said Shri Diganibar Singh, Warder-599 was not receiving money genuinely owed'byhim and the overwhelmingpresumptionthat can be drawn from this is that the said Shri Digambar Singh, Warder-599 was receiving 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) paymentofhis salary, (b) his receiving loans, (c) his receiving back loans/othermoney owed to him and (d) due to any other genuine or reasonable ground; AND WHEREAS the owners of AAj Tak news channel have •categorically declined in writing to allow their reporters and journaliststo join in any investigationinto the conduct of the said Shri DigambarSingh, Warder-599 in respectofnews telecastmade on 4"^ May, 2005. In view of this, I am satisfied that it has not been reasonably practicableto hold any departmentalenquiry. In view of this, during any such departmentalproceedings,had such enquiry been ordered, such crucial witnesses as the reporters/journalistsof the Aaj Tak TV network would not have appearedfor tenderingevidenceduring the enquiry; AND WHEREAS further the said Shri Digabar Singh, Warder-599 is an employee of a particularly sensitive departmentlike TiharJail, and, therefore,it was expected of him to conduct himselfwith a high standard of integrity and honesty, but he did not do so; AND WHEREAS in the Tihar Jail 'there is a wide varietyofprisonershoused, many of whom are undertrials with previousconvictions,convictsinvolvedin 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 prisonerslike those involvedin the attack on Pailiameiiton 13^" December, 2001 and other death sentence convicts and dangerous criminals transferred from other States, to mention a few. In these circumstances, given the propensityof the said Shri DigambarSingh, Warder-599to accept favours and give information in lieu of illegal gratification, the very security of Tihar itself could be W.P-JC)51/2Q1Q&Connectedmatters Paoe18 of37 jeopardized. Also, officials involved in such acts 0/ misconduct can be instrumental in doing anything, ranging from fostering disaffection among prisoners facilitating their escape, to even facilitatingan attacl< 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, DirectorGeneral (Prisons), in exercise of the powers conferredby clause (b) ofthe second provisoto 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, Warder-599 shall stand dismissed from service with immediate effect. It is further directed that Shri Digambar Singh, Warder-599l<shall deposit all government properties given to him, i.e., identity card, uniform articles with the Prison ' Departmentimmediatelyon the receiptofthis order. (R P SIMGH) DIRECTOR GENERAL (PRISONS)"

¶15Similar orders of dismissal were also passed in the cases pertainingto the employeesof Trade and Tax departmentvide ordeis dated 08.07.2006.

¶16Aperusal of the orders would show that the basic reason for dispensingto hold that the enquiry in the aforesaidmatters was that the TV Channel "Aaj Tak" vide their letter dated April, 19, 2005 addressed to the Addl. Secretary,DirectorateofVigilance,GNCTD has informed that as a policy, the company does not allow any of its personnel including reporters,journalistsetc. to join investigationof 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", being a 24X7 channel, they cannot afford any of their journalist/reporters to join any investigation as they are busy m news and current affairs matters.

¶17In the case of jail employees additional ground was that in the TiharJail "there is a wide varietyofprisoners 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. ExplosiveAct as also the NDP5 Act and W.P.(C) 51/2010 &Connectedmatters Paqe 19 of37 further TADA and POTA undertrials, dangerous prisoners lil<e those involved in the attack on Parliament on 13'^" 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 iias allowed all the petitions and gave the followingdirections to the petitioners: "30. In view of the discussion made above, whereas 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. . 31. All these Applications are accordingly allowed. Impugned orders passed by the concerned authorities,be it the disciplinaryor the appellateauthorities,are set aside and quashed. The respondents would be, however, at liberty to proceed against the applicants departmentally. We are conscious that there can be only zero tolerance for corruption,but before a person is thrown away by such a stigma which 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 orders of reinstatement of the employees/applicants. It may be recalled that before the orders terminating services of the applicants were passed, they were under suspension. They would thus remain under suspensionand may be, at the most, entitled to subsistence allowance from the date they were dismissed. It will be exclusively up to the authorities to continue their suspension during the pendency of departmental enquiry against them. Considering the nature of the case, we direct the authorities to conduct the enquiry on day-to-day basis and pass final orders, insofar as, at least the disciplinary authority is concerned, as expeditiouslyas possible and preferablywithin a period of six months from today. If the employees may not cooperate, then for reasons to be recorded the respondents may even proceed ex parte against 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&Connectedmatters Paqe20 of37

¶19Some other observations made by the Tribunal which reflects the reasoningin coming to the aforesaiddecisionare also reproduced hereunder: "24. We have no doubt in our mind that the judgments relied upon by the learned counsel representing the respondents (Petitioners herein), have no parity whatsoever with the facts of the case in hand. We have already mentioned that by and large, reasons dispensing with the enquiry, whether good or not, would depend upon facts and circumstances of each case. The judicial decisions wherein it was proved to the hilt that the witnesses who could prove the charge were intimidated, terrorized and threatened with their lives, would have no parity with the facts of the present case, where the witnesses have expressed their inability to join the investigations, being busy, and where their attendance could be enforced through not only persuasion but also by process of law.

¶25Shri Rakesh Khanna, learned counsel representing the respondents,while referring to the order of dismissal, the order passed by the appellateauthority,the role of the employeesclearly shown or seen accepting bribe at their workplace,no denial by the employeesof the allegationsof 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 against 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, which the employees also must have seen. Electronic media had highlightedthe incidentfor severaldays. If it was the case of the employeesthat the sting operationwas bogus, they ought to have proceeded against the TV channel Aai 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 bribe. The counsel has placed reliance upon some observations made by the Honble SupremeCourt in a recent decision in the matter of R. K. Anand (supra). We have given our thoughtfulconsiderationto the contentionsof the learned counsel as noted above, but do not find any merit therein. We may observe at the very outset that the concerned W.P.(C)51/2010&Connectedmatters Pag^2_loflZ 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 operation. Such course to be adopted would be fraught with dangerous propositions and evil propensities. The media, and in particular the electronic media, would then assume the role of complainant, prosecutor and judge, all rolled in one. The basic or fundamental governance, be it administrative or judicial, in our country is based upon checks and balances. If the media is to be made so powerful without any checks and balances,some times, if not always, most innocent citizens may suffer having been framed up. We may not illustrate,but there is no dearth of cases where sting operations have been found to be doctored 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 employeemay have acceptedbribe and caught on spot, the courts in the consequent trials have held the money to have been thrust upon the employee out of sheer grudge, vindictiveness or mala fides. In our considered view, no one in this country can be condemned without being heard. No doubt, insofar as the employees are concerned, enquiry against them can be dispensed with, but that has to be based upon cogent groundsto be mentioned in writing, and we do not accept the contention raised by Shri Khanna that if the evidence available with the prosecution or the department may clearlyshow itto be a case of delinquencyof an employee, it would be a good ground to dispense with the enquiry.

¶26In a given set of circumstances, availability of overwhelming evidence may be one of the grounds to dispensewith the enquiry,but in no case, it can be the sole ground. In the presentcase also, at the most, availability of the evidence, overwhelming according to the respondents,but disputed by the applicants,is also one of the groundsfor dispensingwith 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 availabilityof clear evidence with the respondents against the employees, cannot sustain. 1/1/e may also mention that even though, Shri Khanna may state the present case to be one where authentic and unrebutted evidence was available with the respondents to pin down the employees with the allegationsof corruptionagainst them, but so is not even^ said by the respondentauthorities. It may be recalledthat while referring to the video footage indicating that the money was paid for extending unauthorised and illegal W.P.fO 51/?ni0 &Connectedmatters Paqe 22 of37 favours, the concerned authorities observed that overwhelming presumption could be drawn. Ihe authorities had also thus not gone beyond drawing an overwhelming presumption." (Emphasis added)

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

i) That under Article 311(2) (b) of the Constitutionof india, enquiry can be dispensed with when it is not reasonably practicableto hold an enquiry. Since the News channel refused to send their reporters for evidence, Disciplinary authorityterminated 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 clearlycaught on the camera accepting money.

ii) That none of the Respondentsin their OA or /Appeal have denied their presence nor have initiatedany 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 Respondentis distinguishablefrom one Dr A.K. Bachawat in whose case regular enquiry is 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 AppellateAuthority 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 acceptingbribes. It is also statedthat when large scale of officials starting from Group IV to Gazetted Officer are l/l/.p.rc)51/2010&Connectedmatters Paqe 23of37 5) 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 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 petitionersthat it is difficultto construe that there is any technical fabrication involved in recording just to put the charged officialdown. The committeeofthree jai! 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 productionoP chip as a primary evidence but it could not be made available. Though an additional affidavitwas 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 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. All the gadgets instruments used in the sting operation Ghoos Mahal 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 preparedby the above-saidmechanicaldevise. 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 \A/as also-W.P.(C)51/2010&Connectedmatters Paqe24 of37_ 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 petitionerswhich in the facts of the case were fully justified for taking recourse to provisions of Article311(2)(b)inasmuch as in view of the overwhelming evidence available with the authorities and the refusal of the news channel officialsto come and participate in the enquiry in case it was so said instituted was suffice for concluding 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 committedby them which involvesacceptingbribe on the face of it shows that the respondents who were dealt with only after the satisfactionof 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 Governmentand it was on that basis the disciplinary authority has taken action againstthe respondentwhich is fully justified. It is thus submitted that the orders passed by the Tribunal is liable to be quashed. Taking into considerationthe legal provisions enshrined in Article 311(2)(b) of the Constitution of India and the facts of this case.

¶21The petitioners have relied upon the followingjudgments: /\ y c;Qn f:, nrQ \/c; i iQi R, Ors.. 1983 (4) 5CC 641

¶2Kuldip Singh Vs. State of Punjab &Ors., 1996 (10) SCC 659

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

¶4Ajit Kr. Nag Vs. Gen. Manager,Indian Oil CorporationLtd. (2005) 7 SCC 764. , , Director Town Planning Maharashtra & Anr. Bhalchandra V Kukkarni,

(2006) 5 SCC 464.

¶6Romesh Kr. Sharma Vs. UOI & Ors. (2006) 6 SCC 510.

¶7Southern Railway Officers Association & Anr. Vs. UOI (2009)_9 SCC 24

¶22On the other hand, the respondents while supporting the order W.P.(C)51/2010 &Cnnnected matters Paqe 25 of37 passed by the Tribunal have urged that the order terminating the services of the respondents without holding an enquiry proceeds primarilyon the ground that the news channel who was instrumental in conductingthe sting operationdeclinedto send theiremployeesfor 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.Bachawatand 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 enquiryfor imposing major penaltysuch as dismissalfrom service, is not in accordance with the scheme of Article 311(2)(b) of the Constitutionof India. It is contrary to the guidelines issued by the Governmentof India after the decisionwas given in Tuisi Ram Patel's case (Supra). As regards the plea that there is overwhelming evidence is also not sufficientto dispensewith the enquiry inasmuch as if evidenceis availablewith the petitionersthere is no 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) ChiefSecurityOfficer&Ors. Vs. SinghasanRabi Das, AIR 1991 Supreme Court 1043

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

iii) jagdishVs. UOI, O.A. dated 1515/2001decidedon 07.02.2003

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

(IX) see 420.

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

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

19.04.2005 addressed to Additional Secretary, Directorate of Vigilance, GNCTD informed that as a policy, the company would not allow any of its personnel including reporters, journalistsetc. to join investigationof any kind, as they performed their onerous duty in the public interest to inform the public the ill- \N.P.(C)51/2010&Connectedmatters Paqe26 of37 3^1 wills in the society, and that, the channel Aaj Tal< being a 24x7 channel, they could not afford any of their journaliststo join any investigationas they are busy in news and currentaffairs matters. It is only on the basis of the aforesaid the disciplinary authority " recorded its satisfactionthat it was not reasonablypracticableto hold a departmentalenquiry and that had such enquiry been ordered, such crucial witnesses as the reporters/journalistsof Aaj Tai< TV Network would not have appeared for tendering evidence, and withouttheir active assistance in the matter of conduct of enquiry, no meaningful enquiry could have been held. In addition to that they have also referred to overwhelming presumption drawn from the video footage.

¶26The Tribunal has not agreed with the aforesaid reasons in view of the Departmental Inquiries (Enforcement of attendance of Witnessesand Productionof Documents)Act, 1972 which permitsthe disciplinaryauthorityor the enquiry authorityas the case may be to summon and compel attendance of witness and production of documents necessary for holding an enquiry in departmental proceedings. In fact, this act was framed in view of the recommendationsof SanthanamCommitteeand as per the provisions containedin Section2 of the Act, which appliesto every departmental enquiry. InquiringAuthorityis empoweredto 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 CentralVigilanceCommissionhas also emphasizedthat he provisionsof the aforesaidact can be taken recourseto in cases recourse to in cases where there is possibilityof private witnesses, who are required to provide crucial evidence, evading appearance before the enquiring authority, and that the Act is applicable to all enquiry proceedingswhere lack of integrity is a charge or part of a charge, and furtherthat the enquiringauthorityauthorizedunder the Act is conferred with the powers of a trial court to summon witnesses/documents,and such summons shall be served through a DistrictJudge. Accordinglythe reasoningof the disciplinaryauthority W.PJC) 51/PniO&Connectedmatters Paqe 27of37, to dispensewith the enquiryonly on the aforesaidground was held to be incorrect fallacious and arrived at in ignorance of law.

¶27In the impugned order the Tribunal further observed that the two sting operationswhich were carried out by the TV news channel Aaj Tal< on 08.03.2005and 04.05.2005and the news was telecaston the same day when the sting operations were carried out. It is, however, of importanceto note that while the orders dismissingthe employeesof Trade and Tax Departmentwere passed on 08.09.2006 and the appeals filed by them was dismissed on 23.11.2007; with respectto the sting operationspertainingto TiharJail the same was carried out on 04.05.2005 and the telecast was done on the same day. The employeeswere suspended and criminal cases legistered against them on the next day itself. They were dismissed from service on 29.09.2005 and their appeals were dismissed on

02.02.2005. In these circumstancesthe Tribunalhas observedthat it was not a case of any emergentsituation and sufficienttime had lapsedwhich would have enabledthe disciplinaryauthorityto hold an enquiry in this matter.

¶28The Tribunal relying upon the case of ConstableJagdish Kumar 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 Haryana and Ors. 2005 (11) see 525 has also observed that when allegations made againstan employee are based upon video footage, dispensationof enquiryhas not been found favour by the Apex Court.

¶29Some observation made by the Tribunal in para 12 of the impugned order which highlights discrimination qua the present respondentsin the matterof holdinga departmentalenquiryviz-a-viz one Sub-Inspector of Police on whom also sting operation was undertakenby the same news channeland where enquirywas held is also reproduced: "In OA No.265/2006 in the matter of Krishan Kumar V. Govt. of NCT of Delhi &Others, a misc. application bearing MA No.2317/2006 came to be filed during pendency of the OA. The prayer in the misc. application is to permit the applicantto 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./C)51/PniO&Connpctedmatters Paqe ^'8 of37 •3^ respectof some officialsof Delhi Police. In that connection SI (Exe.) Sobhen Barik was chargesheeted 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 againstthe SI was not only of asking for money but also of running from the camera after he realized that the conversation was being recorded. It was subsequently telecast by the TV channel and watched by public, hven though,the incidentof demandingand acceptingbribe was of 03.11.2004, SI Sobhen Barik was chargesheeted on

14.07.2005,far before at least the employees of the Trade &Taxes departmentwere dismissedfrom service, and far beforethe appealsof the employeesof the jail department were dismissed. The disciplinaryor the appellate authority . - knew or were at least supposed to know that by the time they passed their respective orders, an employee of the _ police departmentwas being proceededdepartmentallyon the allegationswhich 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 additionalaffidavitthat 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 departmental enquiry."

¶30The Tribunal also noticed about the case of Head Lonstable Ramesh of CRPF who was on duty in CentralJail Tihar on the date of sting operationand who allowedthe car of the reporterinsidethe jail and was seen in the CD opening main gate for allowing the car to enter after accepting the money but he was not dismissed from service by invokingArticlesof 311 sub-Clause(2).

¶31The Tribunal also observed that in respect of the incident criminal cases under Section 7, 12 and 13 of the Pievention of Corruption Act read with Section 120B of the IPC stood registered. The respondentsplaced on record the list of witnesseswho have to be examined in Court seized of the criminal trial. Admittedly,those who carried out the sting operations were cited as witnesses. The statements of all these witnesses were recorded under Section 151 Cr.PC. They fully cooperatedwith the prosecutionnot only in making statement under Section 161 Cr.PC, but in supplying the material W.P.(C)51/PniO&Connectedmatters . Paqe 29of37 availablewith them as well. Even though, we are consciousthat the provisionscontainedin Cr.PC are such that a person cannotlefuse to be a witness if his evidence may be relevant in a criminaltrial, and if he may refuse, he can be prosecutedas 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 willingly 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 Tribunalfurther noticed that in terms of a notice issued by this Court to the news channel Aaj Tak, they supplied unedited and completeversion of the telecast(audio and visual) befoie this Court _ f by the learnedcounselwho appearedfor the TV Today Network. The CDs were ordered to be kept in safe custody subject to fuithei directions. Even though these directionswere 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 judgmentgiven by this Court in the case of Surinder Kumar who filed W.P.(C) 1758/2008 against the order passed by the Tribunal in O.A.No..2.352/2006 whereby he challenged a decision of his dismissal from seivice by invoking provisions of Article 311 (2) (b) of the Constitution the ' departmentallywhere the enquiry against him was dispensed with and order dismissinghim from service was passed. The writ petition against the order of the Tribunal was assailed before this Court by way of W.P.(C).1758/2008which was also dismissed by this Court on

24.04.2008. In the said case, the dismissal of ASI Surinder Kumar was based upon the recordingsshown to NDTV yet this Court made the following observations: "In our opinion, it is reasonably practicable to conduct the departmental enquiry in the present case of sting operation. The department could have proved the charge against the respondent by examining the witnesses from NDTV who carried out the sting operation. We are further of the view that conducting of the departmental enquiry in sting operation is ail the more necessary in order to rule W.P.(C) 51/2010 &Connected matters Paqe 30 of 37 out the possibility of any motivated action in sting operation. Whethersuch a sting operationwas genuineor not has to be provedby cogent evidenceand for this, it is not difficult to produce the material witnesses."

¶34Tribunal has also observed that neither the employees were given any opportunityto explainthe allegationslevelledagainstthem before the order of dismissal was passed nor a show cause notice was given to them in this regard nor they were associatedwith any fact finding enquiry. Even before the AppellateAuthoritythe record does not show that in every case the LieutenantGovernorhas seen the CD himself or the employees got a chance to see the same. There is nothing on record to show that the employees were specificallyasked to respond about allegationsof acceptingthe bribe allegedlyshown in the video footage. Mere acceptanceof money by the employeeshimselfdoes not pin down them with accepting bribe or illegal gratificationunless and until the person who allegedlygave bribe comes in the witness box and says so.

¶35The Tribunal has further observed that from the affidavitfiled 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 Tribuncil 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 citationsrelied upon by the respondentswe find that, in the case of Sudesh Kumar Vs. 5t;^te nf Harvana and Ors. 2005 (1) see 525 pursuantto preliminaryenquirya dealing clerk was dismissed from service without regular departmental enquiry on being satisfiedthat it was not reasonablypracticalto hold an enquiry. Reason recorded for such satisfaction was that the complainant being a foreignermay leave the countryin the midstof the enquiryand that he was not likely to name the delinquent official during the departmentalproceedings. Here also, reliance was placed upon a W.P.(C)51/2010&Connectedmatters Paqe31 of37 3^ news item appearing in Hindi Daily on 01.12.1999where reference was place upon a complaint made by Japanese national after a preliminary enquiry D.S.P. Yogender Nehra , taking note that the Japanesenational may have to leave the countryand he was also not willing to name the delinquentofficeras he feared harassment , but the statement of AS! Shiv Dutt, in-charge,security branch, and ASI Lai Singh clearly revealedthat it was HC Sudesh Kumar who was posted as foreign registrationclerk in the districtpolice office on 1.10.1999, and he had processedthe visa extensioncase of the foreign national, and that he had also depositedthe extensionfee of Rs.2150/-in State Bank of Patiala, having satisfied that there was no doubt whatsoever aboutthe identityof Sudesh Kumar who acceptedillegal gratification, dispensed with the enquiry. It was also mentioned in the order that the Japanese national was likely to leave the country. Despite the facts as mentionedabove, where the foreign nationalfelt threatened and was leaving the country and thus, may not be available for making statement,the order of dismissal of the appellant was set aside by holdingttiatdispensingwith a regulardepartmentalenquiry was innproper.

¶37The view taken by the Tribunal that raw footage of video film seen by someone who is to appreciatethe evidence may have some evidentiaryvalue, 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 referencewas to a judgmentdeliveredby the Apex Court in fia/a Ram Pal Vs Speaker. Lok Sabha & Others [(2007) 3 SCC 184],

¶38In the case of Fx. Constable Chotev Lai Vs. Union of India 2000

(10) SCC 196 and Ors. also relied upon by the respondentsdealing 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 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 &Connectedmatters Paqe 32 of37 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 Choudhary, 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 departmentalauthoritiesapprehended that the enquiry would not be reasonable and fair, the conclusion cannot be interfered with. Having examined the rival contentionsof the parties and bearing in mind the law laid down by this Court indicating the circumstances under which the enquiry under Article 311(2), second proviso, clause

(b) of the Constitution can be dispensed with and applying the same to the facts and circumstances and the reasons advanced by the authoritiesin arriving at the decision, we have no hesitation to come to the conclusion that the orderdispensing with the departmentalenquiry is not in accordance with law and necessarily the order of dismissal cannot be sustained. We accordinglyset aside the order of dismissal passed against the appellant and permit the departmentalauthorityto hold an enquiryifso desired, in accordance with law and come to the conclusionin 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 pleasedto hold: "Although Clause (3) of that article makes the decision of the disciplinaryauthorityin this behalf final such finality can certainlybe tested in a courtoflaw and interfeied wiih if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse 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 peculiarfacts ofthis case inasmuch as: a) In the case of A/CSen(Supra) 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 recognitionfor the ground on several demands which escalated into a full scale battle, it was held that no W.P.(C) 51/2010 &Connected matters Paqe 33 of 37 person with any reason/senseof responsibilitycan say that in such a situation holding of enquiry was reasonably practical b) The case of Kuldio Sinah (supra) pertains to dismissal of the appellantin that case who was found indulging in activities prejudicialto effectivefunctioningof the policeforce, 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. DO! & Ors. no independent evidence was available. d) In the case of Romesh Kr. Sharma (supra), the appellant was dismissed from service under Section 20(1) r/w Rule 17 dispensingwith enquiry, which was challengedas being illegal and the enquiry was abandoned midway. The Court observed that under proviso to rule 17, Chief of Army Staff & Other officersare competentto order removal withoutcomplyingwith the procedure set out in the main part of the rule after certifyingthat it was not reasonablypracticableto comply with the provisionsset out and the fact that the enquirywas not qua the appellantbut 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 Officers Association&Anr. Vs. UOI was also given in peculiarfacts and . circumstances of that case. 41, Taking into considerationthe judgmentscited before us by the partiesand also taking note of the observationmade by the Tribunal, we agree that reasons dispensingwith the enquiry 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 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 investigationbeing busy, cannot be a reason for dispensingwith the i/i/.PYD51/2010 &Connected matters Paqe 34 of 37 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 constrainedto opine that the way the Governmenthas proceeded in dismissingthe 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 governanceand constitutionalobligationimposed upon the Government. It is true that prevailing corruption in the Government offices has been exposed by the news channel and everybodywould commend their effort in doing so and also ask for forthwith dismissal 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 dispensingwith 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 principleembodied in Rule of Law is to abide by Principlesof Natural Justice which imbibes inherentprinciplesof audi alterampartem,that is to say, nobody is condemned unheard.

¶43As observed by the Apex Court the rule of audi alteram partem requires an opportunityof hearing to a person who is likely to be affected in a decision to be taken by a disciplinary authority. He or she is certainlyentitledto hearing may be only by issuanceof a show cause notice even if the situation is urgent. We can make reference to the case of K.I. Sheohard &Ors Vs. Union of India and Ors (1987) 4 see 431.

¶44It would be relevant to take note of para 13 of the judgment in this case, which reads as under: "13. Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was reguired to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banl<s is grounded upon a set of facts the correctness whereof they deny, if an opportunity to l<now the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil consequences and could obviously W.P.(C) 51/2010 &Connected matters Paqe 35 of 37 not be taken on the ipse dixit of RBI officers without verification effects. It is quite possible that a maneuvering officer of the banl<ing company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quicldy 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 the employees without complying 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 opportunityto 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 have seen the recordingsand, 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 AppellateAuthoritywould 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 should be equivalent 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 enquiry file, supply a copy of the cassette as telecast to the employee, give the employee opportunity to explain, though not necessarily record all 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 m 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 disciplinaryauthority/enquiryofficer to determine, 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 with the conclusion reached by the Tribunal, though for somewhat different reasons, as we have noted above.

¶49In view of the aforesaid, the writ petitions are dismissed with no orders as to costs. anb/ag W.P.(C) 51/2010 & Connected matters

r^- * IN THE HIGH COURT 01= DELHI AT NEW DELHI % Date of Reserve :28.07.2010 Date of Decision :06.08.2010 + W.P.(C) 78/2010 GOVT OF NCT 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 A KJAIN Respondent Through Mr.S.P.Mehta, 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? MOOL CHAND GARG. I. * For orders see W.P.(C) No.51/2010 CHAND GARG> AUGUST 06, 2010