Rakesh Mehra vs Union Of India And Ors

We have heard Mr. S.C.Sagar, counsel for applicant and Dr. Swati Jindal Garg for Ms. Preeti Singh, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"i) set aside the impugned order dated 20.7.2013 (Annexure-A) passed by the Respondents/Appellate Authority;

ii) set aside the impugned order dated 9.3.2013 (Annexure-B) passed by Respondents/Disciplinary Authority;

iii) set aside the impugned order dated 14.3.2013 (Annexure-C) passed by Administrative Officer/Respondents;

iv) grant the all consequential relief i.e. salary and other service benefits etc. to the Applicant;

v) direct the Respondents to restore the Govt. accommodation No. B-241, A.V. Nagar, New Delhi in the name of the Applicant;

vi) pass any order/relief/direction(s) may deem fit and proper in the interest of justice in favour of the Applicant."

The relevant facts of the case are that a departmental enquiry was initiated against the applicant under Rule 14 of the CCS (CCA) Rules, 1965 for major penalty proceedings on the charge that while working as a Hospital Attendant Grade-II in the respondent Institution he was instrumental in embezzlement of nearly Rs.five lakhs with respect to pensionary benefit of other employees. The detailed charge is extracted below:-

Article of charge

That the said Rakesh Mehra while working as Hospital Attendant Grade-II at the institute has acted as an instrument in embezzlement of funds of Rs.1,75,000/- (Rupees one lakh seventy five thousand only) and Rs. 3,16,354/- (Rupees three lakh sixteen thousand three hundred and fifty four only) fraudulently in connivance with Shri Rajesh Rastogi, Ex-LDC of Pension Cell by manipulation the case of payment of pensionary benefits in respect of Late Shri Om Prakash, Lab Technician, C.N.Centre and received the payment of Rs.1,75,000/- & Rs.3,16,354/- vide cheques Noo. 762109 dated 1.4.2008 and 006485 dated 18.5.2009 for PPO Nos. 2407/2007-08 & 2548/2009-10 respectively in this account A/C No. 10874698970. This act of Rakesh Mehra is in violation of CCS( Conduct) Rules, 1964 and he is responsible for gross misconduct on his part.

Shri Rakesh Mehra, Hospital Attendant Grade-II (under suspension) is, thus responsible for gross misconduct, has failed to maintain absolute integrity, devotion to duty and has acted in a manner which is unbecoming of an employee of the Institute thereby contravening Rule 3(1) (i)(ii) & (iii) of the CCS (Conduct) Rules, 1964, which is applicable to the employees of the Institute."

Alongwith the article of charge, statement of imputation of article of charge, list of witnesses and list of documents were served on the applicant by an order dated 14.02.2011. As the applicant did not admit the charge, an Inquiry Officer was appointed to hold the departmental enquiry. The Inquiry Officer following the principles of natural justice and also the relevant rules regarding holding of departmental enquiry examined SW-1 to SW-4 and taken on record exhibited S1 to S7 and taken on record the defence statement of the applicant and discussed and analyzed the evidence brought on record and split the charge into three portions and after detailed discussion held that all the three parts are established and, therefore, he came to over all findings that the charge leveled against the applicant was proved vide his inquiry report dated 30.1.2012. The relevant portion of the discussion is extracted below:

"42. Article of Charge can be split into three elements in order to appreciate role of the CO in this fraudulent withdrawal of amount of death gratuity of Shri Om Prakash and then laundering of money by Shri Rajesh Rastogi :-

(a) Whether Shri Rakesh Kehra has acted as an instrument in embezzlement of funds in question?

(b) Whether Shri Rakesh Mehra connived with Shri Rajesh Rastogi in manipulating the case of payment of pensionary benefits to Shri Rastogi through his account?

(c) Whether Shri Rakesh Mehra received payment of Rs.1,75,000/- and Rs.3,16,354/- vide cheques No.762109 dated 1/4/2008 and 006485 dated 18.5.2009 for PPO Nos.2407/2007-08 & 2548/2009-10 respectively in his account A/C No.10874698970 and later passed on the money to Shri Rastogi.

As regards (a) above, it is necessary, first, to define word 'Instrument' Instrument means by which something is done; and agency or One used by another to accomplish a purpose; a dupe i.e. victim of deception. It is undeniable fact that CO never worked either in Establishment Section or Pension Cell or Cheque Writing Section as he was working in Hospital as Technician. Therefore, he has no direct role in manipulation of documents as explained above. It has been established that two cheques were deposited in his personal accounts and money was laundered by Shri Rajesh Rastogi by using CO's account. CO has thus allowed use of his personal account for this purpose by someone else, which is highly irregular and unlawful. Thus element of charge at (a) above stands proved.

As regards (b) above, PO has not adduced any evidence to prove that at what stage CO and Shri Rastogi entered into connivance, CO cannot be held responsible for direct manipulation of the case as explained above. No clue are forthcoming as to whether Shri Rastogi contacted CO to seek his nod to use his name in preparation of bills for drawing money and thereafter depositing the same in his account. Only evidence which has come on record is that Shri Rastogi contacted CO after cheques were in the hands of Shri Rastogi who approached CO to deposit the cheques in his personal account. Fact that CO allowed his personal account to launder the money which did not belong to Shri Rastogi has established as discussed above. Connivance between CO and Shri Rastogi from this stage stands proved.

As regards (c) above, fact of deposition of cheques in personal account of CO and drawal of money in question has also been proved as discussed above................................

xx xxx

Keeping the totality of facts and circumstances of the case duly supported by the evidence on record and the fact that CO could not adduce any acceptable evidence to support his plea that he is not guilty into consideration. Articles of charge in para 10 supra is held as proved subject to findings/considered comments given in para 42 above onward."

The inquiry report was served on the applicant. The applicant submitted his representation against the inquiry report. The disciplinary authority after going through the entire evidence and also recording all the grounds raised by the applicant in his representation against the inquiry report came to the conclusion by a reasoned and speaking order that charges leveled against the applicant were proved and imposed a penalty of removal from service vide order dated 9.03.2013. Consequent upon the removal from service, the respondents passed an order dated 14.03.2013 directing the applicant to vacate the official residential accommodation within a period of one month. The applicant filed an appeal. The appellate authority, namely, the President of AIIMS after considering the appeal rejected the appeal vide order dated 20.07.2013. Challenging the said orders, by medium of this OA, the counsel for the applicant vehemently and strenuously contended that before holding the departmental enquiry there was a preliminary enquiry and despite his request the preliminary inquiry report was not furnished to the applicant as such he was grossly pre-judiced in his defence. He further submitted that it is a case of no evidence and that the punishment imposed on the applicant is shockingly disproportionate.

The counsel for the respondents equally vehemently and strenuously contended that there is sufficient evidence on record to hold that the charge leveled against the applicant was established and she further submitted that in view of the embezzlement of huge pension amount and in view of the charges established against the applicant being very serious in nature the punishment imposed on the applicant is not at all shockingly disproportionate in nature. In support of her contention, the counsel for the respondents relied upon the law laid by the Hon'ble Supreme Court in the case of Union of India Vs. Permananda (Civil Appeal No. 1709/1988) with Special Leave Petition (Civil) No. 6998 of 1988- Perma Nanda Vs. State of Haryana and Others, particularly she referred to para 27 of the said judgment, which is extracted below:

"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are n ot arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts of the case narrated above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice, as such there is no ground for interfering with the impugned orders.

Accordingly, OA is dismissed. No order as to costs.