Govt of NCT of Delhi and Ors Through Commissioner, Trade and Taxes v. Sanjay Dawar, Stenographer

MOOL CHAND GARG, J. * For orders see W.P.(C) No.51/2010 ~44 AUGUST 06, 2010 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. * ~ff\!1 1"~-~IE ~-~BGIHl COlURT Of IDliElHB AT NIIEW IDIEliHIB ... + W.P.(C) 51/2010 % Date o1f !Reserve :28.07 .2(Q)l0 !Date of IDedsuon :06.08.2010 GOVT OF NCT QF DELI-II 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 JAI BHAGWAN + W.P.(C) 58/2010 ..... Respondent Through Nemo W~TIHI 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.l\litesh Kr.Singh, Advocates versus SANJAY DAWAR, STENOGRAPHER ..... Respondent Through MI-. S.P.Mehta, Advocate WITIHI + W.P.(C) 67/2010 - 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.l\litesh Kr.Singh, Advocates versus D J GUPTA ..... Respondent Through Mr.Shyam Babu, Advocate W~TB-!1 + . w. p. (c) 7 7/2 010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Througl1 Mrs.Avnish Al1alwat witl1 Mrs.Simran, M·rs.Latika Cl1oudhary and.-Mr.l\litesh . ~ W.l'.(Cl....2lilOID & Connected matters Paqe·l of37 . . ... . -~- ·-----------.-- ----------·-· l<r.Singh, Advocates Vei"SUS GEETA MALHOTRA ..... Respondent Througl~ Mr.S.P.Mehta, Advocate W~TH. + 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 Clloudhary and Mr.Nitesll l<r.Singh, Advocates· versus A I<JAII\1 . . .... Respondent Tl1rough Mr.S.P.Mehta, Advocate WITJHl + W.P.(C) 81/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, · TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Si111ran, Mrs.Latika Cl1oudhary and Mr.l\litesh l<r.Singh, Advocates -versus SOHAN LAL L.D.C · .. ~ .. Respondent - Through Mr.Sachin Cl1aul1an, Advocate WITD-11 + W.P.(C) 83/2010 GOVT OF NCT OF DELHI AND ORS TH8-0UGH 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 Ch~uhan, Advocate W~TIHI + W.P.(C) 87/2010 GO\/T OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE AI\ID TAXES ..... Petitioner W.P.(C) 51!2010 & Connected matters Page 2 of37 )o Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Cl1oudhary and Mr.Nitesh Kr;Singh, Advocates versus SHASHI SINGH ..... Respondent . Through Mr.Sachin Chaul1an, Advocate WITH -1-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 Cl1oudhary and Mr.Nitesh Kr.Singh, Advocates versus KARAN SINGH YADAV ASTO ..... Respondent Through Mr. Sachin Chaul1an, Advocate W~TD-R + W.P.(C) 90/2010 GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, TRADE: A.ND TAXES ..... Petitioner . Through Mrs.Avnish Abalwat with Mrs.Sim1·an, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus SATWANT KAUR · ..... Respondent Through Mr. Sachin Chauhan, Advocate . , V\f~TH + 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 M1·.Nitesh Kr.Singh, Advocates versus - AMAR SINGH PEON ..... Respondent . Through Mr.Sachin Chauhan, .Advocate W.P.(C) 5112010 & Connected matters J } + WRTH .. W.P.(C) 112/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES · ..... Petitioner PRABHAJqSHI Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs.Latika ·Chaudhary and Mr.Nitesh l<r.Singh, Advocates · · versus ..... Respondent Through Mr.S.P.Mehta, Advocate + W.P.(C) 113/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES . .. ... Petitioner · versus Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs.Latika Choudl1ary and Mr.Nitesh l<r.Singh, Advocates MUSHTAQ AHMED, PEON ..... Respondent Through Mr.Sachin Chaul1an, Advocate '\1\UITIHI + W.P.(C) 114/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner . Through Mrs.Avnish Ahalwat with Mrs.Sirnran, !VII-s.Latika Chaudhary and Mr.Nitesh l<r.Singll, Advocates versus YAD RAM YADAV ..... Respondent Through Mr.Sachin Chauhan, Advocate \/VITIHI · + W.P.(C) 115/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with M1·s.Sirnran, Mrs.Latika Chaudhary and Mr.l\litesh Ytf.P.(C) 51!2010 & Connec:ted matters ------ -------- - .- Kr.Singh, Advoc_atE7s versus KIRAN VERMA PEON ..... Resp.ondent : . Through Mr.Sachin Cl1auhan, Advocate WBTIHI + _W.P.(C) 116/2010 GO\/T OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner . Through Mrs.Avnish Al1alwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus RANJIT CHOUDHARY, STENO . . .... Resr:>ondent Through Mr.S.P.Mehta, Advocate WITIHl + W.P.( C) 117/2010 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 SHAfVISHER SINGH UDC ..... Respondent Through Mr.Sachin Chauhan, Advocate W\IITII-0 + W.P.(C) 118/2010 . GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat witl1 Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus RAM BHAJAI\1, PEON ..... Respondent Tl1rough Mr. Sachin Chauhan, Advocate WBTII-0 + W.P.(C) 119/2010 )LV.P.(CJ 51/2010 &, Co!mected matters GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.AvnJsh Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus GANPATSINGH ..... Respondent Tl1rough Mr.S.P. Mehta, Advocate WBTHI + W:P.(C) 123/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES . ~ .... Petitioner · Througll Mrs.f.vnisll Ahalwat with Mrs.Sim,·an, versus Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates C P YADAV PEON ..... Respondent Through Nemo + W.P.(C) 124/2910 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner . Througl1 Mrs.Avnisll Allalwat with Mrs.Sim~an, Mrs.Latika Chaudhary and .Mi-.Nitesh Kr.Singll, Advocates versus AJAY KUMAR STENOGRAPHER Thrqugh Nemo ..... Respondent W~TIH + W.P.(C) 129/2010 GOVT OF NCT OF DELHI TH-ROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chouclhary and Mr.Nitesh Kr.Singh, Adv.ocates versus W.P.(C) 51!20.10 r;, Connected matters SHRICHAND ..... Respondent Through Mr. S.P. Mehta, Advocate . W~TIHI + W.P.(C) 130/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Cl1ouclhary and M1·.Nitesh Kr.Singh, Advocates versus SWARAI\I GUJRAL . ...:.Respondent Through Mr.S.P.Mehta, Advocate WBTIHI + W.P.(C) 131/2010 GOVT OF NCT OF DELHI THROUGH COMMISSIONER, TRADE AND TAXES ..... Petitioner • Througll ·Mrs.Avnish Ahalwat with Mrs.Simran, versus Mrs.Latika Chaudhary and Mr.Nitesh Kr.Sing h, ·Advocates BRAHAM SINGH PEON ..... Respondent Through Mr.Sachin Chauhan, Advocate + W.P.(C) 265/2010 . . GOVT OF NCT OF DELHI AND ORS THROUGH COMMISSIONER, T~ADE AND TAXES ..... Petitioner .: T.hrough Mrs.Avnish Ahalwat with Mrs.Simran, versus · Mrs.Latil<a Chaudhary and Mr.Nitesh Kr.Singh, Advocates · VEENA ANAND ..... Respondent Through Mr.Ajay K.Sharma, Adv~cate WITIHI Jf\/.f'.(CJ 51!2010 & Connected matters r ·I~ ---- - ----- ------- ----· ---------- + _ W.P.(C) 1084/2010 GOVT.OF NCT OF DELHI & ORS.THROUGH COMMISSIONER,TRADE & TAXES ..... Petitioner ANIL KUMAR Through Mrs.Avnish Ahalwat with Mrs.Sirnran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singll, Advocates versus ..... Respondent Tl1rough Mr.Abhay Kumar and Mr.Tenzing Tsering, Advocate \/\VBTft-11 + W.P.(C) 1172/2010 GOVT. OF NCT OF DELHI & ORS.THROUGH . COMMISSIONER,TRADE & TAXES ..... Petitione1· Tl1rougl1 Mrs.Avnish Allalwat with Mrs.Sirnran, Mrs.Latika Choudl1ary and M1·.Nitesh Kr.Singh, Advocates versus SMT.VIMLA SEHGAL ..... Respondent Through Mr.Arvind Nayar, Advocate WITH + W.P.(C) 1857/2010 GOVT.OF NCT OF DELHI & OTHERS ..... Petitioner PHOOL SINGH Through Mrs.Avnish Ahalwat with Mrs.Sirnran, · Mrs.Latika Cl1oudhary and Mr.Nitesh Kr.Singh, Advocates versus ..... Respondent Through Mr.Sachin Chauhan, Advocate V\U~TIHI + 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 Page 8 of37 )b .. ------------ . ------ -------------------- versus Mrs.Latika Chaudhary and Mr.Nitesll l<r.Singll, Advocates BRAHAM SINGH,LDC ..... Respondent Through Mr.S.P.Mehta, Advocate + W.P.(C) 3644/2010 GOVT.OF NCT OF DELHI & ORS. .. ... Petitioner Througll Mrs.Avnish.Ailalwat witll Mrs.Simran, Mr"s.Latika Chaudhary and Mr.Nitesh l<r.Singh, Advocates versus ASHWANI KUMAR! ..... Respondent Through Nemo WBT~-0 + W.P.(C) 4437/2010 GNCT OF DELHI AND ORS ..... Petitioner . RS JEPH · Through Mrs.Avnish Ahalwat with Mrs.Siillran, Mrs.Latika .Ciloudhary and Mr·.Nitesh Kr.Singh, Advocates versus ..... Respondent Through N~mo · WITH + W.P.(C) 3056/2010 GOVT.OF NCT OF DELHI & ORS THROUGH PRINCIPAL SECRETARY (HOME) ..... Petitioner Through Mrs.Avnish Allalwat with Mrs.Simr·an, ·Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Adyocates versus W.P.(C) 51!2010 & Connected matters I .1 RAJ KUMAR ..... Respondent Tl1rougl1 Mr.Sachin Chauhan, Advocate + W.P.(C) 13806/2009 + GOVT OF NCT OF DELHI AND ORS THROUGH PRINCIPAL SECRETARY (HOME) ..... Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus DIGAMBER SINGH ..... Respondent W.P.(C) 49/2010 Through MI-.G.D .Gupta,. Sr.Advocate with· Mr.S.I<.Sinha, Advocate WITII-0 GOVT OF NCT OF DEI<HI & ORS THROUGH PRINCIPAL SECRETARY .... .'Petitioner Through Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocat~s versus KRISHAN KUMAR ..... Respondent Through Nemo ' vvrn-11 + W.P.(C) 50/2010 GOVT OF NCT OF DELHI AND ORS THROUGH PRII\ICIPAL SECRETARY(HOME) . . ..... Petitioner ThroLigh Mrs.Avnish Ahalwat with Mrs.Simran, Mrs.Latika Chaudhary and Mr.Nitesh Kr.Singh, Advocates versus Vll\100 I<ASHYAP ..... Respondent Tl1rough Mr.Sachin Cllauhan, Advocate W.P.(C) 51/2010 & Connected matters f(J --------------------- + W.P.(C) 721/2007 GOVT OF NCT OF DELHI AND ORS ..... ·Petitioner R.D. BOHET <CO~tAM: Til rough Mr.Rajesh· Kapoor with Mr.Nitesh, Singh, Advocates versus ..... Respondent Through Mr.A.I<.Behra, Mr.K.C.Baliasingh, Advocate U-UOINI'IBliE MIR •. jUSTHCIE I?IRADEIEI? NANDRAJO<G U-OOIN'!aliE MIR • .JillDST~CIE MOOl CHAND GARG

¶1Wile tiler reporters-of Local papers may be Yes allowed to see the judgment?

¶2To be ~~eferred· to the reporter or not? Yes

¶3Whether the judgment should be repo1·ted in Yes tile Digest? .MQOIL CII-IAND GAIR.G, )J. *

¶1We preface our decision by noting the argument' of learned counsel fo1~ the petitioners, being that so reprehensible is the conduct of the 1~espondents, who have been caugllt literally with their pants clown of accepting bribe that this Court ought to extend no-be[lefit to the respondents. It was u1~ged that law has to be interpreted, in the instant case, keeping in view the grave misdemeanour of the respondents. In other words, the counsel for the petitioners urged that the responclents are not entitled to any hearing. The argument is emotional and is rejected at the outset for the reason a system gove·rned b)t the 1·u1e of law requires dispute resolution as per law. The submission made by learned counsel for the petitioners can be best repe_lled by noting a dialogue between Sir Tllomas rylor~ on the one side ancl his daughter Margret and his son-in-law Roper in tile . . play "A IVIan For All Seasons" by Robert Bolt. It refers to an incident Wilen Sir Tllomas More was urged by his daughter, Margaret, and his son-in-law, Roper, to an·est a man they regarded as evil. The dialogue is as undN:- W.P.(C) 51/2010 &, Connected matters /9 Marga,·et: "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 ... I am not Gael. 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 wou(d not be appeased and he levelled the charge that JV/ore would give even the Devil the benefit of Jaw. IVIore: "Yes. What would .you do? Cut a great road through tile law to get after the Devil?" Roper:· ''I'd cut down every law in England to do that!" More: "Oh? .... Ancl when the last was clown, and the Devil turned round on you, where would you hide, Roper, tile laws from coast to coast - man's law, not Gael's-and if you ~ut them down -... D'you really think yoi.1 could stand upright in the winds that would blow tllen? ... Yes, ~·dl give 'll:ll'ue IDevi~ the benefit OJif ~aw, 1f0J1r my own safety's sake."' ) .

¶2The very question which confronts us -in this matter is as to wheth~r tl1e reasoning of the respondents concluding. that it was not •reas{])l!l/ZJIJJOy practffcai!J8e' to hold an enquiry before dismissing the ,-esponclents from their services by invoking second proviso to sub clause (IJ) of Article 311(2) of tile Constitution of India in the prevailing circumstances at the relevant time was justified 01-not.

¶3The circumstances in which enquiry can be dispensed with now stands explained in the guidelines forming part of Rule 19 ·of tl1e CCS(CCA) Rules after tile pronouncement of tile judgment in tile case of Union of India Vs. Tulsirarn Patel (1985) 3 SCC 398 by the .Hon'ble Supreme Court of India. W.P.(CI 51!2010 &, ConnecLed matters Page 12 of37 ,.

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

08.03.2005 at about 9:30p.m. by T.V. news channei.'Aaj Tal<' wherein respondents posted 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 Ta)( Department were shown . . negotiating and accepting money from public for doing undue. favours, as a l<:neejerk 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 orcle1·s elated 27.09.2005 passed in the case of 1·espondents working in Tillar Jail and vide· orders dated

08.09.2006 passed in the case of employees working in. Trade and Ta)(. Department of the said State Government the petitioners dismissed their serv.ices without holding any domestic enquiry on tl1e. pretext tl1at the owners of the T.V. News Channel 'Aaj Tak' refused to associate themselves . with any enquiry/investigation as may be conducted in tl1e 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 conve1ting 'dismissal' to 'removal'.

¶7Tl1~ respondents than approached the Central Ad.ministl·ative Tribunal Principal Bench New Delhi. A strange situation arose before the Tribunal, in as much as O.A. No.2884/2005, 200512005, 2897/2005, 2899/2005 and 2898/2005 were dismisseq vi9e order elated 13.04.2006; while a petiti.on filed by One R:D.Bohet being . O.A.No.778/2006 was .allowed by a coordinate bench of t~e Tribunal . ·vide order dated 24.11.2006 without referring the matter to·larger' l)ench. A writ. petition bearing No.721/2007 was.also filed before this Court against the order passed on 24.11.2006 which stands admitted ancl is now being taken for disposal with otl1er connected matters ~y l:l1is common orcle1·. W.P.(C) 51/2010 & Connecl'ed matters Paqe 13 of37 J) . 8. Tile Original Applications (O.As.) filed by the ,-espondents we1-e 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 clie in view of the 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 mattel-s and. disposed all ·of them vide order da·ted

31.08.2009 wl1icl1 is the common order impugned before us and is sul)ject matter of the writ petitioils. V?rious questions were.framed. by tile full bench including the propriety of the late I-co-ordinate bench of the ·triiJLIIlal deciding the matter contrary to the earlier view _of the Tribunal witl1out refe1-ring the matter to a larger Bench. W.e are however concerned with the following question giving rise to the 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 orcler sustained.

¶9The common ground taken by the respqndents in the _appeals filed before the Appellate Autllority as also before the Tribunal was, that the 1-eason given in the two orders dismissing the respondent." "that the News of Aaj Tak news channel declined in writing to all.ovv tl1eir reporters and journalists to join in any investigatio.n into the conduct of the applicant and consequently the case of tile clepal-tment become weak" for dispensing with the enquiry was contra1-y to Rule of Law not sufficient" fo"r reaching to the Conclusion that it was not pl-acticable to hold the enquiry. It is also. stated t.hat the decision was also in accordance with tile guidelines issued by the Government of India itself for invoking clause (b) of 2nd Proviso to Article 311 (2) of the Constitution of India.

¶10The thl-ee conditions mentioned in sub-clause. (6) to Rule 19 of the CCS (CCA), relevant fo1-invoking of sub-clause (b) qf the second pmviso to Article 311(2) provides that; W.P,(CJ 51!2010 & Connected matters

(a) Where a civil servant, alone or together with his associates terrorizes, . thre·atens or intimidates witnesses who are likely to give evidence against him with fear or reprisal in ·order to prevent them from cloing so; or

(b) Whe1·e the civil servant by himself or though others tllreatens, intimidates and terrorizes the officer wllo is tile disciplinary authority or members of his family so that the officer is afraid to hold the enquiry o1· direct it to be held; or

(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at tile time . of the a~tempt to hole! the enquiry is made

¶11The disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior l.llotives or merely in order to avoid the holding of an enquiry or because the ' Oepal·tment's case against the civil servant is weak and is, therefo1·e·, bound to fall.

¶12Before tlie Appellate Authority, respondents submitted that"the Orders passed by tile disciplinary Authority in these cases clo not meet the afo1·esaicl test and thus the orders impugned in appeal we1·e liable to be set aside. Further the respondents denied the allegations such as acceptance of money, allegation of existence of compact disc sl1owing . alleged persecution and corresponding with persons or ,-elatives of persons and receiving money not owned by tile . . . res1)onclents, etc. They also questioned tile authenticity of the compact discs. It was also stated that in tile order it was not even alleged tl1at tile respondent in any manner tried to contact the n·ews channel or tried to influence or terrorize witnesses .. It was·~also suiJmitted 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 ,-espondents. However the appeals we1·e dismissed vide common order dated

21.12.2005 · and

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

¶13It is thereafter tile respondents approached the Tribunal where . . also similar issues were raised. The Tribunal allowed the applications vide common order .elated 31.9.2009 holding that. the orders W.P.(C) 51!20.10 & Connectecl matters .· clismissing tile_ respondents after concluding that it was not reasonably 1xacticable to hold a departmental enqui1-y in these cases were not sustainable in law. The petitioners aggrieved from the aforesaid circler filed tile aforesaicl writ petitions.

¶14The order of dismissal passed in the case of Digambar Singh, an employee of Tillar jail, (CWP No.13806/2009) wllicll is ?imilar to all otl1er ca:;es of Tillar Jail Employees setting out the reason for adopti!lg the prQceclure as per tile proviso of Sub. clause 2 (b) of Al-ticle 311 o·f tile Constitution of India is reproduced for the sake of reference: "Office of the Director General (Prisons) Pl-isons Headquarters: Tillar: New Delhi F11( 65 9) :.CJ :Vig ilance:2005 :2187 OIR.DIEIR Dated 27 /9)05 WHEREAS onthe4th May, 2005 at about 9.30 PM, a. 'news item was telecast on tile AAj Tak news channel over Television with the caption, "Tillar jail bana Ghoos mahal'; AND . WHEREAS Shri Digambar Singh, Warder-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 loc;lged in jails or to those intending to meet them· in contravention of the provisions of tile" Dellli Prisons Act, 2000 (Dellli Act 2 of 2002) and the rules made thereundel-reacl witll the Delhi jail Manual; AND WHEREAS the said Shri Digambar · Singh, Wardel--599 was placed under suspension vide this office order no. F-11(Misc.)/C.J/Vig./2005/998-1011 dated 4t 11 May, 2005 and furtl1er a case FIR No .. 25/2005 dated the 5t 11 May, 2005 was registered, amongst others, against the said Shri Digambar Singh, Warder-599 under Sections 7,12 and 13 of tile· Prevention of Corruption Act, (49 of 1988) with tile Police Station, Anti Corruption Banch, Old Secetariat: Delhi; AND WHEREAS the above misconduct on the part of the said Sh1-i Digambar Singh, Warder-599 is in violation of the following provisions of the Delhi Prisons Act 2000 (Delhi Act 2 of 2002) ancl 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) Officers not to have business dealing with prisoners ancl otllers:- ,W.P.(C) 51/2010 & Connected matters

(1) No officer of a prison shall sell or let, nor shall any pe1·son in trust or employee! by l1im sell or let, or derive any benefit from selling or letting, any article to any prisoner o have any money or other business dealings,· directly o,- indirectly with any prisoner. ·

(2) No offic~r of. a prison shall accept any gift from a prisoner or a person having any dealings with prison acl ministration. Rule 145 of Delhi P1·isons (Inspection, Meetings and Duties of Officers) Rules 1988

(1) No subordinate officer shall, otherwise than with the special pem1ission of the Superintendent, at any time:-

(a) Correspond or hold any intercourse of communication of any kincl whatever with ·any relative o,- friend of any prisoners:

(IJ) hold any unauthorized communication of any ki1id .whatsoever with any p1·isoner:

(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 qua1ters

(2) No subordinate officer shall at any time:- ( a) hold any uncessary converse witl1 any prisoner:

(b) treat any prisoner with familiarity; or (c ) discuss any matter ,-elating to the discipline or regulations of the jail with or within the 11earing of any prisoner: The conduct clearly establishes that the said Shri Digambar Singh, Warder-599 had expressed his ready willingness to extend undue facilities and conveniences in lieu of monetary consideration and this amounted to grave misconduct unbecoming of a govemment servant a·nd ·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 Digambar Singh, Warder-599 has also been established by a Committee of three jail officers cor')stituted by the Di1·ector-General (Prisons) vide ol·del-1\lo. F. :n/Misc./CJ/Vig./2005/12/2 dated 26t 11 May, 2005. On W.P.(C} 51!20.10 & Connected matters . . the 2nd June, 2005 vide Cornrnittee report diary No. 1643/SCJ(HQ) dated 2nd June, 2005;· AND WHEREAS the videotape footage indicated that the rnoney thus paid for extending undue facilities and conveniences to persons visiting on prisoners was in violation of tile Dellli Prisons Act, 2000 (Dellli Act 2 of 2002) and the rules rnade thereunder read w.ith the provisions of Delhi Jail Manual; AND WHEREAS it is clear that the said Shri Digambar Singh, Warder-599 was not receiving money genuinely owec/ by him and the overwhelming presumption that 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 ancl illegal requests which could not have been by way of (a) payment of his salary, (b) his receiving loans, (c). his receiving back loans/other money owed to him anc! (d) due to any other genuine or reasonable ground; AND WHEREAS the owners of AAj Tal< news channel have categorically cleclined in writing to allow their· reporters and journalists to join in any investigation into the conduct of the said Shri Digambar Singh, Warder-599 in respect of news telecast made' on 4t 11 f\/lay, 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 enquiry been ordered, such crucial witnesses. as the reporters/journalists of the Aaj Tal< 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 ancl honesty, but he did not do so; AND WHEREAS in the Tillar jail 'there is a wide . variety of prisoners housed, many of whom are undertrials with previous convictions, convicts involvr=d in murder/rape and other heinous offence.s, 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. 13u 1 December, 2001 and other death sentence convicts and dangerous criminals transferred from other States, to mention a few. In these circumstances, ·given the propensity of the said Shri Digambar Singh,· Warder-599 to · accept favours and give information in lieu of illegal gratification, the very security of Tihar itself could be .. W.P.(C/ 5112010 & Connected matters . . { jeopardized. Also, officials involved in such acts of misconduct can be instrumental in doing anything, ranging from fostering disaffection among prisoners .facil.jtating 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 exercjse 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, \/\/arder-599 shall stand dismissed from service with immediate effect. It is ful-ther directed that Shri Digambar Singh, . \/\/arciE;r-5991< shall deposit all government properties given to him. i.e., identity card, uniform articl~s with the Prison Department immediately on the receipt of tl1is orclel-. (R P SINGH) ·•. DIRECTOR GENERAL (PRISONS)" ·

¶15Similar orders of dismissal were also passed in the cases · pertaining to the employees of Trade and Tax department vide orders elated 08.07.2006.

¶16A perusal of tile orders would show that the basic reason fo,- clispensing to l1olcl tl1at the· enquiry in the aforesaid matters was that the TV Channel "Aaj Tal<" vide their letter dated April, 19, 2005 acldressecl to the Adell. Secretary, Directorate of Vigilance, GNCTD has infom1ed that as a p_olicy, the company does not allovy any of its personnel including reporters, journalists etc. to join investigation 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 Tal<", being a 24X7 channel, tl1ey cannot afford any of their joumalist;,-eporters to join any investigation as they are busy in news and current affairs matters.

¶17In tile case of jail employees additional ground was that in the Tillar jail "there is a wide variety of prisoners housed, many of whom are unclertrials with previous convictions, convicts involved in rnurder/rape and other heinous offences, convicts involved in offences under the Arms Act. Explosive Act as also the NDPS Act· and W.P.(CI 5112010 & Connected matters Page 19 of37 further TADA and POTA undertrials, dangerous. prisoners like those involved in the attack on Parliament on 13t 11 December, 2001 and ot-her death sentence convicts and dangerous criminals transfe1.:rec! from other States, to mention a few".

¶18Vide common order dated 31.08.2009 the Tribunal has allowed all the petitions C)nd gave the following d,irections to the petitioners: "30. In view of tile discussion made above, whereas we appmve 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 rriay be in acldition to the view taken by the Division Bench, we do not appmve ancl thus overrule the view taken by the co-ordinate Bench of this Tdbunal in OA Nos.2884/2005; 2005/2005, 2897/2005, 2899/2005 and 2898/2005.

¶31All tl1ese Applications are accordingly allowed. Impugned orders passed by the concerned authorities, be it the disciplinary or the appellate authorities, are set aside ancl quashed. The respondents would be, however, at· libet-ty to pmceed against the applicants departmentally. We are conscious that there can be only zero tolerance for c.orruption, but before a person is tl1rown 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 foliowing tl1e clue procedure. While, however, setting aside tl1e orders, as mentioned above, we pass no orders of reinstatement of the employees/applicants. It may be recalled tl1at b~fore the orders terminating set-vices 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 clismissecl. It will .be exclusively up to the authot-ities to continue their suspension during the . pendency of depattmental enqujry against them. Consiclering the nature of the case, we direct the ·authorities to conduct the enquiry on day-to-clay basis and pass final orders, insofar as, at !east the clisciplinal-y authority is concerned, as expeditiously as possible and preferably witl1in a period of six months from today. If the ' employees may not cooperate, then for reasons to be 1;ecorded the respondents may even proceed ex parte against tl1em, ~Jr seek 01-clers on tl1at behalf from this Tribunal. In view of the peculiar facts and circumstances of tl1is case, costs of this litigation are made easy." W.I'.(C) 51/2010 & Connected matters

¶19Some other observations made by the Tribunal whicll reflects the reasoning in coriling to the aforesaid decision are also reproduced 11 er-e uncle r: "24. We 11ave no doubt in our mind that the· judgments relied upon by the learned counsel representing tile respondents (Petitioners herein), l1ave no parity whatsoever with the facts of th~ case in hand. We have already mentioned that by and large, reasons. dispensing with the enquiry, whether good or not,. would depend upon facts ancl circumstances of each case. The judi~ial decisions wherein it was proved to the hilt that tile witnesses who could prove the charge were intimidated, terTorized and threatened with their lives, would have no parity witl1 tile facts of the present case, where tile witnesses hav~ expressed their inability to join tile investigations, being busy, and where tl1eir 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 tile order of dis.missal, the order passed by the appellate authority, the role of the· empl'oyees clearly sl1own or seen accepting bribe at their workplace, no clenial by the employees of the alle.gations of misconduct shown in the video footage, as also in tile pleadings, ancl by their conduct, would contend tl1at 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 s'een. Electronic media had' highlighted the incident for several days. If it was the case of the employees that the sting operation was bogus, they ougl1t to l1ave proceeded against the TV channel Aaj Tal< for-defamation· and also by filing criminal case against tl1em. Tile very fact that they kept quiet over the issue would be an implied admission on their behalf of the misconduct alleged against them. Wilen the order of ter-mination came about, the applicants would still take no step to proceed against the news cl1annel. They. have clone nothing in tl1at regard till date. When the appeals were dealt with and the employees were shown the video footage, tl1ey would yet not deny their role in the episode, or that they were not the persons sl1own accepting br-ibe. Tile counsel has placed reliance upon some observations made by the Honble Supreme Court in a recent decision in the matter of R. I<. Anand (supra). We have given our thoughtful consideration to the contentions of tile learned counsel as noted above, but do not find any merit ther-ein. We may observe at the ver-y outset that the ·concerned lf\I.P.(C) 51/2010 & Connected matters .. authorities llad such evidence in their possession which may substantially prove the guilt of the employees,· does not appea1· to be a ground to dispense with the enquiry. If tllat was to be so, no enquiry may be held in any sting operation. Such course to be adopted would be fl·aught witll dangerous propositions and evil propensities. The media, and in pa1·ticular the electronic media, would then assume the role of complainant, prosecutor a1id judge, all rolled in one. The basic or fundamental governance, be it administrative or judicial, in o~1r 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 cloctored or morphed. There is· no deartll of cases as well wllich may ap.pear 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 caught on spot, the courts in the consequent trials !lave held tile 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 condemnecl witl1out being lleard. No doubt, insofar as the employees an~ concerned, enquiry against them can be dispensed witll, but tl1at has to be based upon cogent grounds to be mentioned in writing, and we do not accept · the contention raised by Sh1·i Khanna that if the evidence available witll the prosecution or tile department may clearly show 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, availability of ove1·whelming 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, ava'ilability of the evidence, overwhelming according to tile ,-esponclents, but disputed by the 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 Tal< 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 available with the respondents to pin down the; employees with the ' 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 foqtage indicating that the money was paid for extending unauthorised and illegal )!1/.P.(C) 5112010 & Connected matters Jo favours, the concerned authorities observed that overwhelming presumption could be drawn. The authorities had also thus not gone beyond drC}wing an overwhelming presumption." (Emphasis added)

¶20Before ~IS, It is the submissions of the petitioners tl1at the orde1· passed by the Tribunal is liable to be set aside inter alia for the following amongst other reasons:

i) That u11der Article 311(2) (b) of the Constitution of India, enquiry can be dispensed wi.th when it is not reasonably 1xacticable to hold an enquiry. Since tile News channel refused to send their reporters for evidence, Disciplinary authol·ity terminated services of those who were clea1·1y visible in CD accepting money from an outside,- and before taking . such action disciplinary authority constituted a committee of office1·s to identify those who w~,-e clearly caught on the camera accepting money.

ii) That 1ione of the Respondents in their OA or Appeal have denied tl1eir pres~nce nor have initiated any proceedings against the Aaj Tak News Channel, (n case the telecast was false reporting. 1\/foreso, even in the forensic report, voice l1as been matched and hence the authe!lticity of the CD also stands proved. ~ ·

iii) Tl1at tl1e case of the Respondent is distinguis~able f1·om · 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 du1·ing 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 we1·e shown in the disc as the person involved in accepting bribes. It is also stated that when la1·ge scale of officials starting from Group IV to Gazetted. Officer. are W.P.(CJ 51/2010 & Connectecl matters ~) ·. caugllt on a camera taking bribe, there is no need to hold a full fledged enquiry. It was thus submitted tl~at dispensing with the services of those employees by invoking provisions of Article 31.1(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 tl1at before the Tribunal it was argued by the petitioners that it is difficult to construe that there is any tecllnical.fabrication involved in recording just to put the . . . charged official down. The committee of three jail officers had seen the concerned COs and had identified the pe1·sons. In fact the Tribunal also watched the COs and video tape. The CoLil·t even wanted prodLiction of chip as a primary evidence but it could not be made available. Though an additional affidavit was filed on behalf of the petitioners wherein it was pointed out that the video cassette of the sting operation contains recording of all ' . the 82 officials of Sales Tax Department accepting bribe fmm tile 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 tl1at, the recording was transferreq in .a digital shape. The produced video G:assette was prepared from ' . the digital storage in· the Video Room which was absolutely unedited and_ nothing had been lddded or cleleted/altered/added in the cassette. All tile 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 de.vise. The video cassette wa·s sent to the CFSL for voice comparison w·hich ' ' gave positive results.

(vi) It l1as been submitted that the material which· was available with the authorities . and which was also W.P.(CJ 51/2010 & Connected matters J) -~----------~------ ----- .. pmcluced before the appellate authority where the respondents were also made aware to what is the mate1·ial against them and even before the Tribunal and therefore there was no necessity to set aside the o1·ders passed by the petitioners which in the 'facts o'f the case we1·e 'fully justified 'for taking recourse to provisions o'f A1~ticle 311(2}(b) inasmuch as in yiew o'f the overwl}elming _ ·evidence available with the authorities and the refusal of tile news channel officials to come and participate in the enquiry in case it was so said instituted was su-Ffice 'for concluding that it was a fit case to dispense with the enquiry and to pass the orders whereby the-respondents were dismissecl on account o'f serious misconduct committed by tllem which involves accepting bribe on the ,_ 'face o'f it shows that the respondents who were dealt with only after the satisfaction of their identity by tile tllree membe1·s o'f the Committee who saw the cassettes i=lllcl only a'fter satisfaction of the identity of _the persons concerned, gave their report to. the Government and it was on tllat basis the disciplinary authority has tak~n action against the respondent which is fully justified. It is tllus submitted that the orders passed by the Tribunal is liable to be quashed. Taking into consideration the legal pr-ovisions enshrined in Article 311(2)(b) of the Constitution o'f India and the facts of this case.

¶21The petitioners have relied upon the following juclgme'nts:

¶1A.I<.Sen G( Ors. Vs. UOI & Ors., 1983 (4) SCC 641 ·

¶2l<uldip Singll Vs. State o'f 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) 7 sec 764.

¶5Di1·ecto1· Town Planning Maharashtra & Anr . .Bhalcharidra V Kukkami, (2006) 5 sec 464.

¶6Romesll Kr. Shanlla Vs. UOI & Ors. (2006) 6 SCC 510. · 7. Soutl1ern Railway Officers Association G( Anr. Vs. UOI (2009) 9 sec 24

¶22On tile otller lland, the respondents while supporting the order J!YJ:J.CI SlaOIO & Connected matters Page 25 of37 passed l)y tl1e Tril)unal have urged that the order terminating the services of tile respondents without holding an enquiry pmceeds 1xirnarily on the gmund that the news channel who was instrumental in conducting tile sting operation declined· to send their en:ploy~es for leading evidence before any authority. This is despite the fact that . ' . . . tl1ose ver-y witnesses stand included in the list of witnesses rn a departmental enquiry instituted . by the petitioners against one or-.A.K.Baclla\1\iat and tl1e said enquiry is going al1ead without any difficulty. It is submitted that tl1is gmund alone urged by the respondents does not s·atisfy the test for dispensi~g with regular enquiry for-imposing major penalty such as dismissal fmm.service, is not in accor-dance with the scheme of Article 311(2)(b) of the Constitution of India. It is contrary to· the guidelines issued by the Government of India after the decision was given in Tulsi Ram Patel's case (Supra). As regards the plea that tl1ere is overwhelming evidence is also not sufficient to dispense with tile enquiry inasmuch . as if evidence is available with the petitioners there is no reason as to why enquiry be not l1eld.

¶23Respondents besides relying upon the judgment delivered by tile Supreme Court in the cas~ of Tulsi Ram Patel (Supra) have also relied upon tile following juclg mer:ts:

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

ii) Satyavir Singl1 Vs. UOI, 1986 SCC (L5{5) 1

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

iv) Mehant Ram Das Prakash Vs. Ramesl1 Cal1nder & Ors. (1999)

(IX) sec 420.

¶24We l1ave heard tile submissions made on behalf of the pacties and have p~r-used the records.

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

19.04.2005 addressed to Additional · Secretary, Directorate ·of Vigilance, GNCTD informed tl1at as a ·policy, tile company would not allow any of its personnel including reporters, jour-nalists etc. to join investigation of any kind, as tl1ey ·performed their-onemus duty in the public interest to inform the public; the ill- .W.P.(CJ 5.1/2010 & Connected matters I wills in the society, and that, tile channel Aaj Tal< being a 24x7 chclllnel, they could not afford any of their journalists t<? join any investigation as they are busy in news ancl current affairs matters. It is only on tl1e basis of the aforesaid the disciplinary authority recorded its satisfaction that it was not reasonably practicable to hold . a departmental enquiry ancl that had such enquiry been ordered, such crucial witnesses as the reporters/journalists of Aaj Tal< TV Network woulcl not have appeared for tendering evidence, and without tl1eir active assistance in tl1e matter of conduct of enquiry, no meaningful enquiry could have been held. In adclition to that they have also referred to overwhelming pr-esumption drawn from the vi cleo footage.

¶26Tile Tr-ibunal has not agreed with the aforesaid reasons in view of the Departmental Inquiries (Enforcement of. attendance of Witnesses and Procluction of Documents) Act, 1972 w~ich per-mits the cli~ciplinary authority or the enquiry authority as the case may be to summon and compel attendance of witness and. production of documents necessary for holding an en.quiry in departmental proceedings. In ·fact, tl1is act was framed in view of the ·recommendations of Santhanam Committee and as per tile provisions contained in Section 2 o.f the Act, which ap1:flies to every departmental enquir-y, Inquiring Authority is empowered to enforce the attendanc;:e of witnesses and pmquction of documents in accordance with the powers conferred on the said authority ~rnder Section 5 of the a~oresaid Act. Tile Act of 1972 has been added as a separate chapter. The Central Vigilance Commission 11as also emphasized that he provisions of tl1e aforesaid, act can be taken recourse to in cases recourse to in cases where tl1ere is possibility of private witnesses, who ·are required to provide crucial evidence, evading appearance before the enquiring authority, and that the Act is applicable to all en.quir·y proceedings where lack of integrity is ·a <;:harge. or part of a cl1arge, and furtl1er that the enquiring authority autllor·ized under the Act is conferred with the powers of a trial court to summon witnesses/documents, ·and such summons shall be served tl1rougl1 a Distr·ict judge. Accordingly the reasoning of tl1e disciplinary authority. W.I~C} 51/2010 ,s, Connected matters 1 to dispense witl1 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 fu1<ther observed that the two sting operations which were ca1Tied out by tile TV news channel Aaj Tak on 08.03.2005 and 04.05.2005 and the news was telecast on the same day when the sting oper·ations were carri~d out. It is, however, of importance to note that while the orders dismissing the employees of Tracie and Tax Department were passed on 08.09.2006 ancl the appeals Filed by them was dismissed on 23.11.2007; with 1·espect to tile sting operations pertaining to Tillar jail the same was ·carried out on 04.05.2005 and the telecast was done on the same ~lay. The employees were suspended and criminal cases registered against tl1em on the next day itself. They were dismissed fmm se1·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 ancl sufficient time had lapsed which would have enabled the disciplinary authority to hold an enquiry in this matter.

¶28The Tribunal r·elying upon tl1e case of ·constable Jagdish Kumar·. in OA No.2353/2006, 5.10/07; R.aja R.atn Vs. Speaker Lok Sabha and 01·s. 2007 (3) SCC 184; Sudesh Kumar Vs. State of Haryana and 01·s. 2005 (11) sec 525 has also obser·ved that when allegations made .:J ... against an employee are based upon video footage, dispensation of enquiry llas not been found favour by the Apex Court.

¶29Some observation made by the Trib.u.nal in para 12 of the impugned order which l1ighlights discrimination qua the pr·esent respondents in tl1e· matter of holding a departmental enquiry viz-a-viz one Sub-Inspector of Police on whom also sting operation was . . .unde1·taken by the same news channel and where enquiry l!l(as held is also reproclucecl: "In OA No.265/2006 in the matter of Krisl1an Kumar V. Govt. of NCT of Delhi & Others, a misc. application bearing MA l\lo.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.(CI 5112010 61 Connectecl matters ....

¶30respect of some officials of Dell]i Police. In that connection 51 (Exe.) Sobhen Baril< was chargesheeted on 14.07.2005. He 11acl made demand of Rs. 50,000/- and the incident of demancling money was recorded by the channel Aaj Tal<, wlliCil was so mentioned in the chargesheet issued against l1im. It is further mentioned in the chargesl1eet issued . against him. It is further mentioned that t.he cha1·ge against tile 51 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 subs'equently telecast by the TV channel and watched by public. Even though, the incident of demanding and accepting bribe was · of 03.11.2004, 51 Sot>hen Baril< was chargesheeted on

14.07.2005, far before at least the employees of the Trade bt Taxes department were dismissed from service, and far before the appeals of the employees of the jail department we1·e dismissed. The disciplinary or the appellate authority knew or were at least supposed to know that by the time they passed tl1eir respective orders, an employee of the police department was being proceeded clepartmentally on the allegations which could be proved only by those, wl1o can·ied out tl1e sting operation and who were from the same TV channel Aaj Tak only. ·1t is then pleaded n the aclclitional 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 tl1e departmental enquiry." · The Tribunal also noticed about the case of Head Constable Ramesl1 of CRPF wl1o was on duty in Central jail Tihar on the date of sting operation and who allowed the car of the reporter inside the jail ancl 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 IJy invoking Al-ticles of 311 sub-Clause (2).

¶31The Tl"ibunal also observed that in respect of the incident uiminal cases uncle!- Section 7, 12 and 13 of the Prevention of Co1Tuption Act read witl1 Section 120B of the IPC stood registered. The respondents placed on record the list of witnesses who l1a~e to IJe examinee! in Court seizecl of the criminal trial. ,Admittedly, those who carried out the sting operations were cited as witnesses. The stC~tements of all these witnesses we1~e recor.cled under Section 161 Cr.PC. They fully cooperated with the prosecution not only in making statement under Section 161 Cr.PC, but in supplying the material )[IIYJCJ SlaO.LO & Connectec/ matters •. available with them as well. Even though, we are conscious tl1at the provisions contained in Cr.PC are such that a person.cannot refuse to be a witness if l1is evidence may be relevant in a criminal trial, and if l1e may refuse, he can be prosecuted as well, but tile fact that those who carried out the sting operation were cooperating and despite the letl:er elated 19.4.2005 of the news channel Aaj Tak·, had willingly made tl1ei1· statements and supplied the material, ougllt to have been a factor for consicleration by the concerned autho1·ities bl;lt no such change l1as been shoVI(n in their attitude.

¶32The Tribunal further noticed that in terms of a notice issued by tl1is Cou1·t ·to tile news channel Aaj Tak, they supplied unedited ancl complete ve1·sion of tile telecast (audio and visual) before .this Court by the learned counsel who appeared for the TV Today Network. The COs were ordered to be kept il} safe custody subject to further directions. Even though these directions were given by this Court .in connection witll the secu1·ity in jail but it shows that the material which is available .can be procluced and if not -produced can be summoned. 33 .. The Tribunal has also taken note of the judgment given by this Court in tile case of Surinder Kumar who filed W.P.(C) 1758/2008 against tile orcler passed by the Tribunal in O.A.No.2362/2006 whereby he challenged a clecision of his dismissal from service by invoking provisions of Article 311 (2) (b) of the ·c-onstitution .the clepal·tmentally wllere the enquiry against him. was dispensed with I and orde1· dismissing him from service was passed. The writ petition· against t:l1e order of tile Tribunal was assail~d before this Court by · way of W.P.(C).l758/2008 yvhich was also dismissed by this Court on . 24.04.2008. In the said case, the dismissal of ASI S~rinder Kumar was based upon the recordings shown to NDTV yet this Court made tl1e following obse1·vations: "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 responclent by examining the w,itnesses from NDTV who carried out the sting 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 W.P.(C) 51!2010 & Connected 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 evidence and for this, it is not difficult to procluce the material witnesses. "

¶34Tribunal has also observed that neither the employees were given any opportunity to explai~ the allegations levelled against them before the Ol-der of dismissal was passed nor a show cause notice was given to tl1em in this regard nor they·were associated witll any Fact finding enquiry. Even before the Appellate Authority the record cloes not show tl1at in every case tl1e Lieutenant Governor has seen tl1e CD l1imself or the employees got a chance to see the same. . . Tllere is nothing on record to sl:tow that the employees were specifically asked to resp?nd about allegations of accepting the bribe allegedly shown in the v_ideo footage. Mere accept.ance of money by tile employees himself does not pin down them with accepting bi-ibe or illegal gratification unless and until the person who allegedly gave bribe comes in tl1e witness box and says so. · ·

¶35The Tribunal has further observed that from the affidavit filed ·by the News ch·annel it could not be inferred that the CD prod_ucecl was a tl-ue version of its original as it was prepared from digital storage in the video room of tile News Channel. The Tribunal has Further observed tl1at from tl1e transcription relied upon it is not possible to make o~1t as to whethe·r the employees had dema1!decl nwney and if so fo,- what purpose. In some of tile cases the,-e is no ' . lTanscription of dialogue between the employees and those who concluctecl tile sting operation.

¶36Now, coming to the citations relied upon .by the responde~ts .we fine! tl1at in the case of Sudesh Kumar Vs. State of Harvana and Ors. 2005 (1) sec 525 pul-suant to preliminary enquiry a dealing clerk was dismissed from service without ,-egular departmental enquiry on being satisfied tl1at it was not reasonably practical to hold 9n enq~1il'y. . . Reason ,-ecorcled fo,- such satisfaction was tl1at the complainant being a Fol-eigner may leave the country in the midst of the enquiry and t'hat . . he was not likely to name the delinquent official during the departmental proceedings. Here also, reliance was placed upon a ytt.P.(C) 51/2010 ,ru Connected mal'ters news item appearing in Hindi Daily on 01.12.1999 where refereilCe was place upon a <;:omplaint made by Japanese national, after a preliminary enquiry D.S.P. Yogencler Nehra , taking note that the Jnpanese national may have to leave the country and he was also not willing to name the delinquent officer as l1e feared harassment , but the statement of ASI Shiv Dutt, in-charg~, security branch, and ASI Lal Singl1 clearly revealed that it was HC Sudesh Kumar who was posted . as foreign ,-egistration clerk in the district police office on 1.10.1999, ancl l1e hac! processed the visa extension case .of the foreign national, ancl that he l1ad also deposited the extension fee of Rs.2160/- in State Bank of Patiala, having satisfied that there was no doubt whatsoever about the identity of Sudesl1 Kumar who accepted illegal gratification, clispensecl with the enquiry. It was also mentioned in the order that the japanese national was likely to leave tile country. Despite the facts as mentioned above, where the foreign national felt th1·eatened ancl was leaving the country and tl1us, may not be available for making statement, tl1e order of dismissal of the appellant was set asicle by holcling t!1at dispensing with a regular departmental enquiry was improper.

¶37The view taken by the Tribunal that raw footage of video film seen by someone who is tb app1·eciate the evidence may have some evidentiary value, but, the edited version of the video film cannot be mC~de the sole basis for returning a finding. Unless, there-fore_, corroborated, it would have no evidentiary ·value. In ·this -regard reference was to a judgment delivered by the Apex Court in Raja Ram Pal Vs Sg_eal<er, Lol< Sabha & Others [(2007) 3 SCC 184]. ·

¶38In the case of Ex. Constable Chotev La/ Vs. Union of India ~000

(10) sec 196 and Ors~ also relied upon by the respondents _dealing wil:l1 the opinion that it was not 1·eas_onably practical to liold the enqui1·y in the facts of tl1at case the Apex Court has been pleased to obse1·ve as follows: u3 .. /VIr Yaclav, 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) 5.1120 W & 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. flllr 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 mine/ the law laid down by this Court indicating the circumstances under which tile enquiry under Article 311 {2), second proviso,· · clause {b) ·of the Constitution can be dispensed with and applying the same to the facts ancl circumstances and the reasons advanced by the authorities in arriving at the decision, we have no hesitation to come to the · conclusion that the order dispensing with the ·departmental enquiry is not in accordance with law and necessarily the order of dismissal cannot be sustained. We accordingly set aside the order of dismissal passed against the· appellant and permit the departmental. authority to hotel 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 tl1is nature this Apex Court had been pleased to · l1old: "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 Jaw and interfered with if ,the action is found to be arbitrary or mala fide or motivated by extranequs considerat~ons or merely a. ruse to dispense with the enquiry." fi.O. 1\low coming to the judgments relied upon by the petitioners we fincl that tl1ose jL1dgments do not come to the rescue of the petitioners in the peculiar facts of this case inasmuch as: a) In tile case of A./<.Sen(Supra) the Apex Court was concerned with maintenance of discipline as of vital importance for armed force in the -case, when members of tl1e force began an agitation for recognition for the ground on several demands whicll escalated into a full scale battle, it was held that no W.P,{C) 51!2010 & Connected matters j ---- ·-· -·····- person with any reason/sense of responsibility can say that in sucll a situation holding of enquiry was reasonably p1·actical b) The case of Kuldip Singh (supra) pertains to dismissal of the appellant in that case wllo was found indulging in activities . . ' : prejudicial to effective 'functioning of the police force, as lle llacl close links with extremists and was fou.nd helping them by providing. infonnation of tile Police Department. c) In case of Sahacleo Singh &{ Ors. Vs. UOI & 01·s. no independent evidence was available. cl) In the case of Romesh Kr. Sharma (supra), the appellant was dismissed fro11l service under Section 20( 1) r/w Rule 17 dispensing with enquiry, which was challenged as being illegal ancl the enqui1·y was abandoned midway. The Court observed J tl1at uncle1· proviso to rule 17, Chief of Army Staff & Other . officers a1·e competent to order removal witl1out complying with tile procedure set out in the main part o'f the rule after certifying that it was not reasonably practicable to comply with the provisions set out and tile f<;:1ct that the enquiry was not qua . . tile appellant but it related to the incident held that there was nothing wron~ with~the orde1· of dismissal. Thus, it was a case of defence services, the petitione1·s can'not derive any parity witll that case. e) Similarly, the judgment in Southern Railway Officers Association &{ An( Vs. UOI was also given in peculiar facts and circumstances of that case.

¶41Taking into consideration the judgments cited befo1·e us by the ., parties and plso taking note of the observation made by ~he Tribuna_!, we ag,·ee tllat ,-easons dispensing with the enquiry whetller good or not, woulcl depend upon facts and circumstances of each case: In a ' case whe1·e (t is proved to the hilt that the witnesses who could prove tile cllarge were intimidated, harassed and threatened with their lives, would certainly have no parity with the facts of the p1·esent case only because tile witnesses have expressed their inability to join investigation being busy, cannot be a reason for dispensing with the .. .WJ'.(.C) 51(2010 & Connectecl matters enquiry as their presence can be secured by application of law availaiJie in tile Statute Books for their appearance.

¶42Having gone through the entire material we are constrained to opine that the way the Govemrnent has proceeded in dismissing the sel-vices of tile respondents by dispensing with tile enqui1-y for tile .. reasons stated in the orders as quoted is contrary to rule of law wllicll is tile basis of good governarice and constitutional obligatioli imposed upon tile Government. It is true that prevailing corruption in the Government offices has been exposed· by the news channel and everybody would cornmend their effort in doin_g so and also a~k for forthwith dismissal of tile corrupt officials who were exposed. As a means for cui-bing tile menace, they may also opine tl1at a short cut has been adopted by tile petitioners (of dispensing with the enquiry) was justified. However difference between tile perception of an. indiviclual is then to be guided by th~ rule of law. One' of the 9asic principle embodied in' Rule of Law is to abide by Principles of NatUI-al justice wl1icll imbibes inherent principles of audi alteram partem, that is to say, nobody is condemned unheard.

¶43As observed by the Apex Court tile rule of audi a/teram partem ,-equires an opportunity of hearing to a. person who is likely to be affected in a decision to be taken by a disciplinary authority. He or she is certainly entitled to hearing may be only by issuance of a show cause notice even if tile situation is urgent. We can make reference to til~ case of I( I. Shephard 6{ Ors Vs. Union of India and Ots ( 1987) 4 sec 431. ~ .

¶44It would IJe 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 required to act fairly in the facts o'f 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 banks is grounc/ecl upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have · their say hac/ been affordecl, they could have no gr,ievance on this score. The action deprives them of their livelihood ancl brings advers~ civil consequences and could obviously J!Y.J:.}C) 51!2010 & 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 6ank could make a report against such employee and have him excl~tded 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 quickly ancf very oft.-en the records of C! 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 b~ held by issuing show caLrse notice and giving a copy of the telecast to the delinquent employees and give them an opportunity to explain before taki~g a final vi_ew as to whetller. it.is a case where a regular-department enquiry under Rule 14 of the CCS(CCA) Rules sl1oulcl be held or further enquiry be dispensed with. However· this also has not been done by the petitioners in this case. . ' Tile arguments submitted on behalf of leari1ed counsel for the . . petitioners that during the course of hearing of the appeal the respondents have seen tl1e recordings and, therefore, they are aware of their mle in the episode and none of them disputed their presence ' . . at tl1e location or tlleir appearance in the cassettes whicll were telecast is of no consequence as playing of such cassettes before the Appellate Autllority would not meet the requirement of tile principles of natural justice at the Enquiry Officer level.

¶46Wh!le we ar·e of the opinion that to dispense with the enquiry was wrong, we should not be understood as saying that the depth of the ...... enquiry sho'ulcl IJe equivalent to that of ·a trial before a criminal court. The least wl1ich could l1ave been done was to initiate an enqwiry, . . place a copy of the cassette on the enquiry file, supply a copy of tile cassette .as telecast 'to the employee, give the employee opportunity t:o explain, thougll not necessar-ily record all explanations that l1e gives. Evidence of someone like a committee of officers wl1o have . :1 seen tl1e telecast and/oc of those who carried out the telecast could be recorded. Thereafter, the committee or the enquiry officer· can )!1/.P.(CJ 51!20.10 & Connected matters view ancl come to their conclusion as to whether it ·would be if! the interests of justice to prematurely terminate tile services or take some· other action as may be thougl1t proper.

¶47A modicum of depth at the enquiry would have sufficed. \1\/e should also not be understood as saying that the witnesses from the channel would be required for such enquiry. We need not go into further details of what ought to be done at the enquiry as it is for the disciplinary authority/enquiry office,- to determine, and rest,· content with noting that in our view the dispensing witll tl1e enquiry was not justi fiecl.

¶48Taking all t11ese facts into consideration, we find ourselves in agreement witl1. the conclusion reached b·y the Tribunal, though for somewl1at different reasons, as we have noted above.

¶49In view of tile aforesaid, the writ petitions are dismissed with no orders as to costs. All.Jl<GlUIST ((})6, 2((J)l((J) anb/ag W.P.(C) 51/20.10 & Connectec/ matters MOOl CO-liAINliD> GAIRG, j · '•

* 0/o + IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 58/2010 Date of Reserve :28.07.2010 Date of Decision :06.08.2010 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 SANJAY DAWAR, STENOGRAPHER ..... 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?