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WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 1 of 70
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND,MEGHALAYA,
MANIPUR,TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
(1) WP(C) NO.4569 OF 2010
1. The President, Indian Council of Agricultural Research, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 2. Indian Council of Agricultural Research, Represented by its Director General, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 3. Indian Council of Agricultural Research, Represented by its Secretary, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001.
……..… Petitioners. -Vs – Dr. Sarveshwar Dayal, S/O Dr. R.D. Gupta, Central Potato Research Station, Peak View Road, Shilling, Meghalaya-793009. ……..… Respondent
(2) WP(C) NO.5248 OF 2010
1. The President, Indian Council of Agricultural Research (ICAR), Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 2. The Secretary, Indian Council of Agricultural Research (ICAR), Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 3. Director General,
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 2 of 70
Indian Council of Agricultural Research (ICAR), Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001.
……..… Petitioners. -Vs – Dr. Yash Gupta, Ex. Senior Scientist, Central Potato Research Station, Peak View Road, Shilling, Meghalaya-793009. (presently residing at Banarasi Dass Building, The Mail Solan, Shimla, Himachal Pradesh, Pin Code-173212). ……..… Respondent
BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI
THE HON’BLE MR. JUSTICE S.C. DAS
For the petitioners : Mr. D. Majumdar, Advocate Mr. S. Saikia, Advocate
Mr. R. Sarma, Advocate Mr. B. Deori, Advocate.
For the respondents : Mr. A. Ahmed, Advocate
Mr. P. Gogoi, Advocate.
Date of hearing : 13.12.2012 Date of delivery of judgment & order : 22.01.2013
JUDGMENT & ORDER
(S.C. Das, J)
The genesis of both the writ petitions, is an incident,
which occurred on 23.09.2003 at about 5.00 pm in the office
premises of National Research Centre for Mushroom(for short,
‘NRCM’), at Chambaghat, Solan, Himachal Pradesh. Both the
respondents, Dr. Sarveswar Dayal(hereinafter referred to as Dr.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 3 of 70
Dayal) and Dr. Yash Gupta(hereinafter referred to as Dr. Gupta) are
husband and wife and they were on their official duty, while working
as Scientist(Senior Scale) under Indian Council of Agricultural
Research(for short, ICAR).
2. Having considered the submissions, made by learned
counsel of both side, both the writ cases are taken up together for
hearing and disposal, since the cases arose out of same incident and
identical question of law and fact, involved in both the cases for
decision by this Court. Therefore, this common judgment shall
govern both the cases.
3. NRCM is an organization having its office/establishment
at Solan, Himachal Pradesh under ICAR. The petitioners, herein, are
the superior authorities/disciplinary authorities of the respondents in
the ICAR. Dr. Dayal, respondent of WP(C) No.4569 of 2010 and Dr.
Gupta, respondent of WP(C) No.5248 of 2010, were found guilty of
gross misconduct in the disciplinary proceedings drawn against them
separately for the same incident occurred on 23.09.2003 and the
disciplinary authorities inflicted punishment of compulsory retirement
against both the respondents and, they, by filing separate Original
Applications(in short, O.A.) before the Central Administrative
Tribunal(in short, CAT), Guwahati Bench, challenged the orders of
the disciplinary authority and, the CAT, by impugned order dated,
04.09.2009, passed in O.A. No.299 of 2007, filed by Dr. Dayal, and
by order dated, 06.04.2010, passed in O.A. No.218 of 2008, filed by
Dr. Gupta, set aside and quashed the order of the disciplinary
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 4 of 70
authority, and, hence, the disciplinary authorities, i.e., the present
petitioners, by filing the aforenoted writ petitions, challenged the
orders of the CAT on various grounds.
4. We have heard learned counsel, Mr. D. Majumdar and
learned counsel, Mr. R. Sarma for the petitioners and learned
counsel, Mr. A. Ahmed and learned counsel, Mr. P. Gogoi for the
respondents, in both the cases.
5. Fact of the case, in short, is that, on 23.09.2003, Dr.
R.N. Verma, Ex-Director of NRCM and incumbent President of
Mushroom Society of India (in short, MSI), while visiting Solan, was
invited by the Director of NRCM to participate in a discussions in the
seminar of the Executive Committee meeting of MSI and,
accordingly, Dr. Verma attended the institute of NRCM at about 3.00
pm and had discussions with the Centre Director about the activities
of the NRCM and, thereafter, at about 4.00 pm, he was invited by Dr.
R.C. Upadhyay of MSI to preside over the meeting of MSI and,
accordingly, he participated in the meeting and was presiding over it.
At about 5.00 pm, Dr. Verma went to the toilet, and while he was
returning from the toilet to the meeting room Dr. Robin Gogoi, a
scientist of the institute, met him in the corridor and was exchanging
pleasantries with him. At that time, Dr. Dayal waylaid Dr. Verma
saying “Adab arj hain Doctor sahib” and, immediately, attacked Dr.
Verma and slapped him on his face. Dr. Gupta also arrived there and
insisted Dr. Dayal to beat Dr. Verma. Dr. Shwet Kamal, another
scientist of the institute, who was in the door of the meeting room,
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 5 of 70
rushed there and both Dr. Kamal and Dr. Gogoi disengaged Dr. Dayal
from further assaulting Dr. Verma. In the meantime, hearing noise
the trainees and executive members of the MSI, all came out and
learnt about the occurrence. Dr. Verma got perturbed and extremely
shocked in the incident and in the meantime, Dr. Dayal and Dr.
Gupta went away from the spot. Director of the institute was
reported about the incident and an FIR was lodged to the police. A
police case was accordingly registered and investigation was taken
up. The matter was reported to the superior authority i.e. the ICAR
and, accordingly, disciplinary proceedings were initiated separately
for the same incident against the respondents.
PROCEEDING AGAINST DR. DAYAL
5.1 Issuing Memo. No.F.3(2)/2004-Vig(D), dated 01.06.2004
ICAR initiated disciplinary proceeding against Dr. Dayal with specific
Article of Charge, which reads thus:
“ARTICLE OF CHARGE-I While working as Scientist(SS), National Research
Centre for Mushroom, Solan, Dr. Sarvershwar Dayal
created an embarrassing and intolerable situation by
indulging himself in an act of gross indiscipline and
violence by physically assaulting Dr. R.N. Verma, Ex-
Director of NRCM on 23.9.2003 in the NRCM Office
premises when Dr. Verma was on short visit there and
was presiding over the meeting of Mushroom Society of
India as its President.
By his above act, Dr. Sarvershwar Dayal has
indulged in gross indiscipline and violent acts and
behaved in a manner unbecoming of an ICAR employee
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 6 of 70
and thereby contravened the provision of Rule 3(1)(iii) of
CCS(Conduct) rules, 1964 as extended to Indian Council
of Agricultural Research employees.”
5.2 The Statement of Imputation of misconduct annexed with
the Article of Charge reads thus:
“STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR. SARVESHWAR DAYAL, SCIENTIST(SS). Dr. Sarveshwar Dayal, Scientist (SS) is presently
posted at CPRI, Shimla. Prior to this he was working as
Scientist at NRCM, Solan in TOT Section.
Dr. R.N. Verma, Ex-Director of NRCM, Solan while
on a short visit to Solan was invited to visit the Centre on
23.9.2003 in the afternoon. Accordingly, Dr. R.N. Verma
came to the Centre at 3.00 p.m. in the staff car and had
discussions regarding the activities and progress of the
NRCM with the Director, in his Chamber upto 4.00 p.m.
Thereafter Dr. R.C. Upadhyay, Secretary Mushroom
Society of India, taking the benefit of his presence at the
Centre, requested Dr. R.N. Verma(who is also the
President of MSI) to preside over the meeting of MSI. Dr.
Verma agreed readily to request for presiding over the
meeting which was being held in the room of Dr. R.C.
Upadhyay. Also present in the meeting were Dr. R.C.
Upadhyay, Secretary, Dr. B. Vijay, Vice-President, Dr.
S.K. Singh, Joint Secretary, Dr. M.C. Yadav, Treasurer
and Shri Deep Kumar, dealing assistant, MSI. During the
course of meeting at about 5.00 p.m., Dr. Verma went to
the toilet. While returning to the meeting room he met a
Winter School Trainee, Dr. Robin Gogoi, (Scientist,
Assam Agricultural University, Jorhat) in the corridor and
started exchanging pleasantries with him. All of sudden
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 7 of 70
Dr. Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta waylaid
Dr. Verma in the corridor and Dr. Sarveshwar Dayal
started beating him with his hands and Dr.(Mrs.) Yash
Gupta provoked him further to beat and manhandle him
further and said that “this is not enough and beat him
more”. Meanwhile, Dr. Gogoi (trainee from Assam)
disengaged Dr. Dayal from Dr. Verma and Dr. Shwet
Kamal(Research Associate) who was present nearby
prevented Dr. Sarveshwar Dayal from further injury to
Dr. Verma. Meanwhile Dr. Verma returned shivering with
the shock to the meeting and ended the MSI meeting
abruptly.
The above incident created by Dr. Sarveshwar
Dayal and Dr.(Mrs.) Yash Gupta, Scientist(SS) not only
disrupted the meeting of Mushroom Society of India in
midway but also hampered the training of the Winter
School and research work going on at the Centre. This
also gave a bad impression to the trainees assembled at
the Centre from all over the Country.
Dr. Sarveshwar Dayal, Scientist (SS) is in the habit
of misbehaving with seniors in the past and disciplinary
proceedings were issued vide OM. No.3(11)/98-Vig.D
dated 13.11.98 against him for his arrogant and
indisciplined behaviour and a penalty of “withholding of
one increment of pay for one year without cumulative
effect” was imposed on him vide order No.3-11/98-
Vig.(D) dated 14.6.2003. In spite of this, no
improvement in his conduct has been noticed.
By this above act, Dr. Sarveshwar Dayal,
Scientist(SS) has indulged himself in gross indiscipline
and violent acts and behaved in a manner unbecoming of
an ICAR employee and thereby contravened the
provisions of the Rule 3(1)(iii) and (iii) of CCS(Conduct)
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 8 of 70
Rules, 1964 as extended to Indian Council of Agricultural
Research employees.”
5.3 List of documents(in 11 items) as Annexure-III and the
list of witnesses(7 witnesses) as Annexure-IV were also annexed with
the Article of Charge.
5.4 It is alleged that Dr. Dayal, from the very beginning, was
non-cooperative and had taken dilatory tactics to frustrate the
smooth inquiry. He was served with the charge sheet on 28.07.2004
and was asked to submit his statement of defence but even after
reminders issued on 14.09.2004, 07.10.2004, 10.11.2004,
23.02.2005, he did not submit his written statement in respect of the
charges framed against him, on the contrary, he brought some
baseless allegations against the inquiry officer and those allegations
were referred to the ICAR and it was found totally unfounded and
baseless and, therefore, the disciplinary authority turned down the
allegation of bias raised against the inquiry officer. He was requested
by the inquiry officer to submit the name of his defence assistant but
he insisted for appointing a legal practitioner, which was rejected,
since legal practitioner was not representing the disciplinary
authority. The inquiry officer asked the Charged Officer, Dr. Dayal, to
furnish the details of his defence assistant in writing on 20.03.2006,
19.05.2006, 14.08.2006 and 20.10.2006 but the charged officer did
not take any effective step. It is also alleged that charged officer
submitted a list of fifty six numbers of documents, out of which four
documents were found to be relevant and those were supplied to the
charged officer but, still, he did not submit his response and did not
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 9 of 70
participate effectively in the proceedings. On the issue of
appointment of defence assistant he took abnormal time and,
ultimately, submitted a tour programme and demanded travelling
allowance for finding out his defence assistant. He, ultimately, named
the Director General of ICAR, Dr. Mangal Rai as his defence
assistant. Since he neither submitted his defence statement nor was
effectively participating in the proceedings, the inquiry officer, after
exhausting the formalities and affording all reasonable opportunities
to the charged officer, fixed the case for recording evidence of the
disciplinary authority. But the charged officer was absent on
12.04.2007 sending a medical certificate of illness from a private
doctor and, therefore, the inquiry officer asked the charged officer to
take a second medical opinion from a Govt./authorized medical
attendant and to submit the same by fax within 14.04.2007, but that
was never submitted by the charged officer. Again the proceeding
was fixed for recording evidence of the witnesses of disciplinary
authority from 09.07.2007 to 11.07.2007 and by a notice, dated
25.05.2007, the charged officer was duly informed and, thereafter,
was also reminded on 14.06.2007, but on that date again by sending
a medical certificate from a private doctor, the charged officer
remained absent and, under such circumstances, the inquiry officer
recorded the evidence of disciplinary authority ex parte on
10.07.2007 and 11.07.2007. The charged officer, thereafter also, did
not participate in the proceeding and did not adduce any defence
evidence. On 28.08.2007, the inquiry officer submitted his report ex
parte against the charged officer holding that the charge framed
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 10 of 70
against the charged officer has been proved and sent the report to
the disciplinary authority. The disciplinary authority, by sending a
copy of the report, asked the charged officer to submit his reply and,
accordingly, the charged officer submitted his reply. In the
meantime, the criminal case instituted against the respondents, on
the basis of the FIR lodged immediately after the occurrence, which
was registered as Criminal Case No.245/2 of 2003 in the Court of
Chief Judicial Magistrate, Solan, was ended by an order, dated
2206.2007, and both the accused, i.e., the respondents were
acquitted on benefit of doubt. After that judgment, the respondents
applied for dropping the disciplinary proceedings in view of their
acquittal from the criminal case. The disciplinary authority,
considering the enquiry report, the reply submitted by the
respondent and also considering the evidence and materials on
record, including that of the judgment passed by the criminal court,
found the respondent guilty of misconduct and imposed the penalty
of ‘compulsory retirement’ by order, dated 05.11.2007. The relevant
order passed by the disciplinary authority, dated 05.11.2007, reads
thus:
“ O R D E R
WHERES an inquiry under Rule 14 of CCS(CCA)
Rules, 1965(as extended to ICAR employees) was
initiated against Dr. Sarveshwar Dayal, Scientist(SS),
Central Potato Research Institute, Shimla(now posted at
CPRS, Shillong, Meghalaya) vide Council’s Memorandum
No.3(2)/2004-Vig.(D) dated 01.06.2004 containing the
following articles of charge:-
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 11 of 70
Article of Charge
While working as Scientist(SS), National Research
Centre for Mushroom, Solan, Dr. Sarveshwar Dayal
created an embarrassing and intolerable situation by
indulging himself in an act of gross indiscipline and
violence by physically assaulting Dr. R.N. Verma, Ex-
Director of NRCM on 23.09.2003 in the NRCM Office
premises when Dr. Verma was on short visit there and
was presiding over the meeting of Mushroom Society of
India as its President.
By his above act, Dr. Sarveshwar Dayal has
indulged in gross indiscipline and violent acts and
behaved in a manner unbecoming of an ICAR employee
and thereby contravened the provision of Rule 3(1)(iii) of
CCS(Conduct) Rules, 1964 as extended to Indian Council
of Agricultural Research employees.
WHEREAS Dr. Sarveshwar Dayal, Scientist(SS) did
not submit any reply to the charge sheet issued to him
vide memo. dated 01.06.2004. Subsequently, reminders
dated 14.09.2004, 07.10.2004, 10.11.2004 and
23.02.2005 were also sent to the Charged Officer to
submit his reply but even then he neither admitted nor
denied the charge.
WHEREAS Dr. P.S. Naik, Principal Scientist, CPRI,
Shimla was appointed as the Inquiry Officer vide Order
dated 03.05.2005 to inquire into the charges framed
against the Charged Officer.
WHEREAS the Inquiry Officer after holding the
inquiry submitted his report dated 27.08.2007 to the
Disciplinary Authority wherein he has held the charge
against Dr. Sarveshwar Dayal, Scientist(SS) as proved.
WHEREAS after considering the inquiry report, the
Disciplinary Authority observed that the inquiry has been
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 12 of 70
held as per prescribed procedure and he tentatively
accepted the findings of the Inquiry Officer.
WHEREAS, a copy of the Inquiry Report was sent to
Dr. Sarveshwar Dayal, Scientist(SS) vide Memo. dated
12.09.2007 giving him an opportunity of making his
submissions, if any, with reference to the findings of the
Inquiry Officer.
WHEREAS Dr. Sarveshwar Dayal, Scientist(SS) in
his submissions dated 27.09.2007 in response to Inquiry
Report has raised the points given hereunder(in brief):
(i) Inquiry Officer has acted in a biased manner as he
has held the inquiry ex-parte.
(ii) Inquiry Officer conducted the inquiry when
he(Charged Officer) was sick.
(iii) Inquiry Officer did not give him any opportunity to
present his witnesses.
(iv) Inquiry Officer denied him the opportunity to
engage a Defence Assistant.
(v) Witnesses have been planted against him.
(vi) The inquiry report is in contradiction to the findings
of the Criminal Court of Law.
WHEREAS, the points raised by Dr. Sarveshwar Dayal,
Scientist(SS) in his submissions have been examined
with reference to relevant records of the case, as given
below:
i) Dilatory tactics adopted by the Charged Officer and
his non-cooperation has led to the ex-parte inquiry
against him in the disciplinary proceedings. The
Charged Officer stalled the inquiry proceedings for
almost two years on one pretext or the other. The
representations of Dr. Sarveshwar Dayal,
Scientist(SS) making allegations of bias against the
Inquiry Officer were rejected twice by the
Disciplinary Authority vide Memorandums dated
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 13 of 70
14.11.2005 & 16.10.2006 as there was no merit in
the submissions of Dr. Sarveshwar Dayal against
the Inquiry Officer.
ii) In April, 2007, when the Charged Officer sought
the postponement of regular inquiry in the nick of
the time of the Regular Hearing on the ground of ill
health, the Inquiry Officer called for a Second
Medical Opinion but the Charged Officer evaded the
said notice. Under these circumstances, Inquiry
Officer adjourned the regular hearing in order to
provide adequate opportunity to the Charged
Officer for defending his case. However, Charged
Officer again exhibited his dilatory tactics on the
eve of next hearing(09.07.2007 to 11.07.2007) by
sending medical certificate from a Private Doctor
and a telegram from New Delhi requesting therein
to postpone the inquiry. Having exercised the
option of Second Medical Opinion at the time of
Regular Hearing in April, 2007 and the reported
non-cooperation of the Charged Officer by evading
the same, the Inquiry Officer was left with no
option but to conduct ex-parte proceedings during
the period from 10.07.2007 to 11.07.2007 as the
Charged Officer had been putting impediments in
the holding of the proceedings for almost two
years.
iii) The Charged Officer on his own volition did not
participate in the inquiry, therefore question of
allowing or disallowing the defence witnesses by
the Inquiry Officer does not arise. Thus, the
submission of the Charged Officer is not based on
facts of the case.
iv) At least on 4 occasions,(vide letters dated
20.03.2006, 19.05.2006, 14.08.2006 and
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 14 of 70
20.10.2006) Inquiry Officer asked the Charged
Officer to furnish the details of the Defence
Assistant. But the Charged Officer was very casual
in his approach as on one occasion he demanded
traveling allowance to undertake journey in search
of the Defence Assistant and on another occasion
he named Dr. Mangala Rai, Director General, ICAR
as his Defence Assistant. Thus, the contention of
the Charged Officer is contrary to the facts of the
case.
v) All the witnesses mentioned in Annexure-IV of
charge sheet and who also subsequently deposed
during the inquiry have been relevant to the case
and were present in the NRCM Office premises on
the day of incident i.e. 23.09.2003. Thus there is
no truth in the contention of the Charged Officer.
vi) In the criminal case, the Charged Officer has been
acquitted by giving him benefit of doubt and not on
merits. The standard of proof in a criminal case is
different than in a departmental proceeding. Both
are on a different footing. While in a criminal case,
it is proof beyond doubt which is required to
establish a case, in a departmental proceeding it is
the ‘preponderance of probability’. In this case,
based on the statement of witnesses, the Inquiry
Officer has rightly held the charge as ‘proved’.
AND WHEREAS, the report of the inquiry and the
submissions made by Dr. Sarveshwar Dayal,
Scientist(SS) have been considered by the Disciplinary
Authority( i.e. President, ICAR) along with the facts and
records of the case and having regard to the findings of
the Inquiry Officer and submissions made by Dr.
Sarveshwar Dayal, Scientist(SS), the President, ICAR has
decided to accept the findings of the Inquiry Officer.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 15 of 70
NOW THEREFORE, after considering the records of
the inquiry and the facts and circumstances of the case,
the President, ICAR being the Disciplinary Authority in
this case, is of the opinion that Dr. Sarveshwar Dayal,
Scientist(SS) indulged himself in an act of gross
indiscipline and violence by physically assaulting Dr. R.N.
Verma, Ex-Director of NRCM on 23.09.2003 in the NRCM
Office premises and ends of justice will be met imposing
the penalty of “Compulsory Retirement” on him.
ACCORDINGLY, the penalty of “Compulsory Retirement”
is hereby imposed on Dr. Sarveshwar Dayal,
Scientist(SS) with immediate effect.
(Rajiv Mangotra) Under Secretary(Vigilance)
For and on behalf of the President, ICAR”
5.5 Being aggrieved, the respondent, Dr. Dayal, approached
the CAT, Guwahati Bench, by filing O.A. No.299 of 2007, assailing
the charge sheet, dated 01.06.2004, and the order of the disciplinary
authority, dated 05.11.2007. The Tribunal, by impugned order, dated
04.09.2009, set aside and quashed the order of penalty, dated
05.11.2007, on the ground that the principles of natural justice was
violated, for non-supply of the documents as demanded by the
respondent and for not giving adjournment as prayed for by the
respondent and that ex parte hearing has caused prejudice to the
respondent. The Tribunal also held that in view of the acquittal of the
respondent from the criminal case on the same bundle of fact, the
charge framed against the respondent would not stand.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 16 of 70
6. PROCEEDINGS AGAINT DR.(MRS.) YASH GUPTA:
6.1 Vide Memo. No.F.3(28)/2003-Vig(D), dated 27.05.2004
ICAR initiated disciplinary proceedings against the respondent,
Dr.(Mrs.) Yash Gupta on the following Article of Charge:
“ARTICLE OF CHARGE-I While working as Scientist(SS), NRCM, Solan,
Dr.(Mrs.) Yash Gupta created an embarrassing and
intolerable situation by indulging himself in an act of
gross indiscipline and violence by instigating and
provoking Dr. Sarveshwar Dayal, Scientist(SS), who had
physically assaulted Dr. R.N. Verma, Ex-Director of NRCM
on 23.9.2003 in the NRCM Office when Dr. Verma was
presiding over the meeting of Mushroom Society of India
as its President.
By her above act, Dr.(Mrs.) Yash Gupta
demonstrated gross misconduct by way of her violent
and rude behaviour with Dr. R.N. Verma and acted in a
manner unbecoming of an ICAR employee and thereby
contravened the provision of Rule 3(1)(iii) of
CCS(Conduct) rules, 1964 as extended to ICAR
employees.”
6.2 The Statement of Imputation of misconduct annexed with
the Article of Charge reads thus:
“STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR.(MRS.) YASH GUPTA, SCIENTIST(SS). Dr. (Mrs.) Yash Gupta is presently working as
Scientist(SS) at CPRI, Shimla. Prior to this she was
posted at National Research Centre for Mushroom, Solan.
Dr. R.N. Verma, Ex-Director of NRCM, Solan while
on a short visit to Solan was invited to visit the Centre on
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 17 of 70
23.9.2003 in the afternoon. Accordingly, Dr. R.N. Verma
came to the Centre at 3.00 p.m. and had discussions
regarding the activities and progress of the Centre with
the Director, in his Chamber upto 4.00 p.m. Thereafter
Dr. R.C. Upadhyay, Secretary Mushroom Society of India,
taking the benefit of his presence at the Centre,
requested Dr. R.N. Verma(who is also the President of
MSI) to preside over the meeting of MSI. Dr. Verma
agreed to request for presiding over the meeting which
was being held in the room of Dr. R.C. Upadhyay. Also
present in the meeting were Dr. R.C. Upadhyay,
Secretary, Dr. B. Vijay, Vice-President, Dr. S.K. Singh,
Joint Secretary, Dr. M.C. Yadav, Treasurer and Shri Deep
Kumar, dealing assistant, MSI. During the course of
meeting at about 5.00 p.m., Dr. Verma went to the toilet.
While returning to the meeting room he met a Winter
School Trainee, Dr. Robin Gogoi, (Scientist, Assam
Agricultural University, Jorhat) in the corridor and started
exchanging pleasantries with him. All of sudden Dr.
Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta waylaid Dr.
Verma in the corridor and Dr. Dayal started beating him
with his hands and Dr.(Mrs.) Yash Gupta instigated and
provoked him further to beat and manhandle Dr. Verma
further and said that “this is not enough and beat him
more”. Meanwhile, Dr. Gogoi(trainee from Assam)
disengaged Dr. Dayal from Dr. Verma and Dr. Shwet
Kamal (Research Associate) who was present nearby
prevented Dr. Dayal from further injury to Dr. Verma.
Meanwhile Dr. Verma returned shivering with the shock
to the meeting and ended the MSI meeting abruptly.
The above incident created by Dr. S. Dayal and
Dr.(Mrs.) Yash Gupta, Scientist(SS) not only disrupted
the meeting of Mushroom Society of India in midway but
also hampered the training of the Winter School and
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 18 of 70
research work going on at the Centre. This also gave a
bad impression of the happenings to the trainees
assembled at the Centre from all over the Country.
Dr.(Mrs.) Yash Gupta, Scientist (SS) is in the habit
of disobeying the Senior Officers of the Institute and lack
of devotion to duty and a charge sheet No.3(12)/98-
Vig(D) dated 16.11.98 was issued to her for her
misbehaviour. The disciplinary Authority while dropping
the charges against her, had warned her to be careful in
future vide order dated 9.4.2003. In spite of the warning
Dr.(Mrs.) Yash Gupta indulged in such misconduct/
offence.
By her above act, Dr.(Mrs.) Yash Gupta
demonstrated gross indiscipline/violent behaviour and
thereby contravened the provision of Rule 3(1)(iii) of
CCS(Conduct) rules, 1964 as extended to Indian Council
of Agricultural Research employees.”
6.3 Along with the Article of Charge, in Annexure-III, list of
eleven items of documents and in Annexure-IV, a list of seven
witnesses were enclosed to prove the charge.
6.4 The respondent, Dr. Gupta, initially after show cause
notice, submitted her written statement denying the allegations and
after the charge sheet was served on her, she asked for supply of
copy of documents and the relevant documents were supplied to her
including that of the statements of the witnesses recorded during
preliminary inquiry. She also made a prayer for keeping the
disciplinary proceeding in abeyance till the criminal case was
disposed of but her prayer was rejected. She, thereafter, asked for
supplying twenty two items of documents but after considering the
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 19 of 70
prayer, seven documents were found relevant and those were
supplied to her on 25.06.2005. She applied to the disciplinary
authority for permitting her to engage a legal practitioner to defend
her case but her prayer was rejected since the presenting officer was
not a legal practitioner. She named different defence assistants at
different point of time but could not secure attendance of those
defence assistants as named by her, which is reflected in the inquiry
report. Ultimately, she gave an undertaking that if she fail to engage
her defence assistant by the next date, she will conduct her case of
her own and, thereafter, the inquiry officer fixed the case for
recording evidence of the disciplinary authority and in course of
inquiry the Presenting Officer, on behalf of the disciplinary authority,
examined all the witnesses listed in the Annexure-IV to the charge
sheet and they were cross-examined by the respondent. On her
behalf, she also examined two witnesses to prove her innocence. The
inquiry officer on conclusion of the inquiry submitted report on
06.10.2007. Before the enquiry report was submitted she was
acquitted from the criminal case and, thereafter, she made a prayer
to the disciplinary authority praying for dropping the disciplinary
proceeding in view of her acquittal from the criminal case. While the
inquiry officer submitted the inquiry report to the disciplinary
authority, copy of the same was supplied to the respondent, and she
submitted her representation against the report. The disciplinary
authority considering all the materials placed before it, by order
dated 17.01.2008 imposed the penalty of ‘compulsory retirement’ on
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 20 of 70
the respondent. The relevant order passed by the disciplinary
authority, imposing penalty, reads thus:
“ O R D E R
WHERES, an inquiry under Rule 14 of CCS(CCA)
Rules, 1965(as extended to ICAR employees) was
initiated against Dr.(Mrs.) Yash Gupta, Scientist(SS)[now
Sr. Scientist), Central Potato Research Institute, Shimla
vide memorandum dated 27.05.2004 containing the
following article of charge:-
Article of Charge
While working as Scientist(SS), National Research
Centre for Mushroom, Solan, Dr.(Mrs.) Yash Gupta
created an embarrassing and intolerable situation by
indulging herself in an act of gross indiscipline and
violence by instigating and provoking Dr. Sarveshwar
Dayal, Scientist(SS), who had physically assaulted Dr.
R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the
NRCM Office when Dr. Verma was presiding over the
meeting of Mushroom Society of India as its President.
By her above act, Dr.(Mrs.) Yash Gupta
demonstrated gross misconduct by way of her violent
and rude behaviour with Dr. R.N. Verma and acted in a
manner unbecoming of an ICAR employee and thereby
contravened the provision of Rule 3(1)(iii) of
CCS(Conduct) Rules, 1964 as extended to Indian Council
of Agricultural Research employees.
WHEREAS Dr.(Mrs.) Yash Gupta, Sr. Scientist did
not reply to the charge sheet. Subsequently, reminders
dated 14.09.2004, 07.10.2004 and 08.11.2004 were sent
to the Charged Officer to submit her reply but even then
she neither admitted nor denied the charge.
WHEREAS Dr. P.S. Naik, Principal Scientist, CPRI,
Shimla was appointed as the Inquiry Officer vide Order
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 21 of 70
dated 28.03.2005 to inquire into the charges framed
against the Charged Officer.
WHEREAS the Inquiry Officer after holding the
inquiry submitted his report dated 6th October, 2007 to
the Disciplinary Authority wherein he has held the charge
against Dr.(Mrs.) Yash Gupta, Sr. Scientist as proved.
WHEREAS after considering the inquiry report, the
Disciplinary Authority observed that the inquiry has been
held as per the prescribed procedure and he tentatively
accepted the findings of the Inquiry Officer.
WHEREAS, a copy of the Inquiry Report was sent to
Dr.(Mrs.) Yash Gupta, Sr. Scientist vide Memo. dated
18.10.2007 giving her an opportunity of making her
submissions, if any, on the findings of the Inquiry Officer.
WHEREAS Dr.(Mrs.) Yash Gupta, Sr. Scientist vide
her letter dated 28.11.2007 in response to Inquiry Report
has made the following submissions(in brief):
i) She has been acquitted in the Criminal case
ii) Dr. R.N. Verma i.e. the complainant had malafide
intentions:
iii) Inquiry Officer denied her the opportunity to
engage a Defence Assistant.
iv) Inquiry Officer denied supply of the documents
listed by her.
v) Inquiry Officer denied opportunity to present
witnesses from defence side.
vi) Witnesses have been planted in the case and telling
different story.
vii) Inquiry Officer has used assumption and
suppositions to prove the charge.
viii) Presenting Officer is an interested person.
ix) Inquiry Officer was biased.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 22 of 70
WHEREAS, the points raised by Dr.(Mrs.) Yash Gupta, Sr.
Scientist in her submissions have been examined with
reference to relevant records of the case, as given below:
i) In the criminal case, the Charged Officer has been
acquitted by the CJM, Solan by giving her benefit of
doubt and not on merits. Further, the standard of
proof in a criminal case is different than that in a
departmental proceeding. While in a criminal case,
it is proof beyond doubt which is required to
establish a case, in a departmental proceeding it is
the ‘preponderance of probability’. In this case,
based on the statement of witnesses, the Inquiry
Officer has rightly held the charge as ‘proved’.
Furthermore, her contention that she has been
acquitted in the criminal case is also not relevant.
There have been numerous Court judgments
including of Hon’ble Supreme court and High Court
wherein it has been held that if an employee has
been acquitted of a criminal charge, the same by
itself would not be a ground not to initiate a
departmental proceeding against her or to drop the
same in the event of an order of acquittal is
passed.[Suresh Pathrella v. Oriental Bank of
Commerce AIR 2007 SC 199, Raj Kumar v.
Presiding Officer & others 2007(5) SLR 592(Pb. &
Hry), State of Gujrat and others v. Dattu Raghu
Vanzari 2007(3) SLR 675(Gujrat)].
ii) While alleging malafide intention of Dr. R.N. Verma,
the Charged Officer has referred to some
acts/orders dated back to the period when Dr. R.N.
Verma was functioning as Director, National
Research Centre for Mushroom, Solan, Himachal
Pradesh. The fact that a Director takes certain
disciplinary action against a recalcitrant employee
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 23 of 70
does not imply that he is biased against that
employee. Rather, her own submission itself makes
it quite clear that she was having a grudge against
Dr. Verma for something which he(Dr. Verma) had
done in the past in the normal discharge of his
duties. Thus the contention of Charged Officer is
devoid of merit.
iii) The Charged Officer requested the Disciplinary
Authority vide representation dated 10.06.2005 to
allow a legal practitioner to present the case on her
behalf. As in this case the Presenting Officer was
not a legal practitioner, the Disciplinary Authority
vide Memo. dated 14.07.2005 turned down her
request. Subsequently, she proposed the name of
Shri G.C. Thakur, Superintendent, Court of Session
Judge, Distt. & Session Court, Solan(later on
transferred to Bilaspur) as her Defence Assistant in
September, 2005. But Shri G.C. Thakur was not
relieved by his office. Later on in April 2007, the
Charged Officer proposed the name of some Shri
D.N. Verma, Retired Senior Accounts Officer,
Saproon as her Defence Assistant. This time too
the Inquiry Officer agreed to the request of the
Charged Officer. While agreeing to her request of
engaging Shri D.N. Verma as her Defence
Assistant, the Inquiry Officer made it clear to the
Charged Officer that in future he would not allow
any further delay in the proceedings on the pretext
of non-availability of Defence Assistant. But
despite this, after a lapse of two months, the
Charged Officer once again made a request for
engaging another person namely Shri R.K. Gupta,
Sr. Audit Officer, Officer of AG(Audit) Shimla as her
Defence Assistant. At this juncture, the Inquiry
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 24 of 70
Officer reminded her about the decision taken in
the previous hearing dated 19.04.2007 in which
she had given an undertaking not to change the
Defence Assistant any more and to put her defence
herself in the case of non-availability of Shri D.N.
Verma i.e. her Defence Assistant. As evident from
the Daily Order Sheet dated 12.07.2007, the
Charged Officer herself agreed to defend her case
and therefore the submission now made by her
that Inquiry Officer denied her the opportunity to
engage a defence assistant is false and devoid of
merit.
iv) The Inquiry Officer allowed 7 additional defence
documents out of a long list submitted by the
Charged Officer after discussing the matter to the
satisfaction of the Charged Officer as evident from
the Daily Order Sheet dated 13.06.2005. But
subsequently, the Charged Officer made a
representation to Disciplinary Authority i.e.
President, ICAR alleging bias on the part of Inquiry
Officer citing denial of some documents as one of
the acts of biasness on the part of the Inquiry
Officer. The President, ICAR did not find any merit
in the submission of the Charged Officer. Thus
there is no merit in the submission of the Charged
Officer.
v) The Charged Officer submitted a lengthy list of 20
defence witnesses. At this stage, the Inquiry Officer
observed that he would not like to use his
discretion to refuse defence witnesses but would
like that the Charged Officer should select 5-6 most
relevant and most appropriate witnesses from the
list. The Charged Officer herself selected 7 defence
witnesses. Even out of these 7 witnesses she
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 25 of 70
produced just two, during the inquiry. Thus her
submission that Inquiry Officer denied her defence
witnesses is contrary to the facts of case.
vi) The submission of the Charged Officer that
“Witnesses have been planted in the case and
telling different story” is itself contradictory. Had
this been the case of planted witnesses, then they
would have recited exactly the same miniscule
details of the events. There is no merit in the
submission of the Charged Officer. As per the
record of the disciplinary inquiry the witnesses
have described the events of the case from the
stage they appeared during the fateful incident and
the witnesses have not made contradictory
statements during the inquiry. Even in case of the
one specific witness pointed out by the Charged
Officer in her submission i.e. Dr. Robin Gogoi, he
has categorically confirmed, in his statement, the
presence of the Charged Officer at the site of the
assault and the fact of her misconduct regarding
provoking Dr. Sarveshwar Dayal to assault Dr. R.N.
Verma. In all, there were two eyewitnesses of the
misconduct of the Charged Officer of provoking her
husband Dr. Sarveshwar Dayal and both of
them(Dr. Shwet Kamal and Dr. Robin Gogoi) have
confirmed the misconduct of Dr.(Mrs.) Yash Gupta
leaving no iota of doubt about the whole incident.
vii) The conclusion reached by the Inquiry Officer is
based on the evidence which came up during the
inquiry. The sentences referred by the Charged
Officer in this point are part of the logical analysis.
His conclusion about the misconduct has come out
logically out of the evidences and while arriving at
his conclusion, the Inquiry officer has remained
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 26 of 70
confined to the records of the case presented
during the course of inquiry. Thus, the contention
of the Charged Officer, that Inquiry Officer has
used assumption and supposition to prove the
charge is devoid of merit.
viii) The Charged Officer, herself, has not been able to
cite even one ulterior motive of the Presenting
Officer. Further, presenting the facts of the case by
the Presenting Officer cannot be termed as biased
exercise. Thus the contention of the Charged
Officer is devoid of merit.
ix) The Charged Officer has attributed motives to each
and every action of the Inquiry Officer. Her
submission that the Inquiry Officer deliberately
selected NRC-M, Solan as the venue for inquiry is
one such example. In fact, the Inquiry Officer has
selected the National Research Centre for
Mushroom, Chambaghat, Solan, Himachal Pradesh
as venue for inquiry as most of the witnesses were
based at that place. Further, while considering the
representation of the Charged Officer alleging bias
on the part of Inquiry Officer, the Disciplinary
Authority i.e. President, ICAR did not find any merit
in her submissions and the same was conveyed to
the Charged Officer vide Memorandum dated
14.11.2005.
WHEREAS, the submission of the charged officer itself is
convoluted, verbose and in a round about manner on
several extraneous issues and makes it very clear that
there is truth in that the incident actually happened and
she has no real defence.
AND WHEREAS, the report of the inquiry and the
submissions made by Dr.(Mrs.) Yash Gupta, Sr. Scientist
have been considered by the Disciplinary Authority i.e.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 27 of 70
President, ICAR along with the facts and records of the
case and having regard to the findings of the Inquiry
Officer and submissions made by Dr.(Mrs.) Yash Gupta,
Sr. Scientist, the President, ICAR has decided to accept
the findings of the Inquiry Officer.
NOW THEREFORE, after considering the records of
the inquiry and the facts and circumstances of the case,
the President, ICAR being the Disciplinary Authority in
this case, is of the opinion that Dr.(Mrs.) Yash Gupta, Sr.
Scientist indulged herself in an act of gross indiscipline
and violence by instigating and provoking Dr. Sarveshwar
Dayal, Scientist(SS), who had physically assaulted Dr.
R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the
NRCM Office premises and ends of justice will be met by
imposing the penalty of “Compulsory Retirement” on her
as the offence is grave and her continuance in the service
would be harmful to the system.
ACCORDINGLY, the penalty of “Compulsory Retirement”
is hereby imposed on Dr.(Mrs.) Yash Gupta, Sr. Scientist
with immediate effect.
(Rajiv Mangotra) Under Secretary(Vigilance)
For and on behalf of the President, ICAR”
6.5 Being aggrieved, the respondent, Dr.(Mrs.) Gupta
approached the CAT, Guwahati Bench, by filing O.A. No.218 of 2008,
and by impugned order, dated 06.04.2010, the CAT set aside and
quashed the order of the disciplinary authority simply on the ground
that the order passed by the CAT in OA No.299 of 2007(case of Dr.
Dayal) was not challenged in the meantime and further drawing
attention to some particular line of the deposition of Dr. Rabin Gogoi
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 28 of 70
and Dr. Shwet Kamal, the Tribunal allowed the O.A. and set aside the
order of disciplinary authority in a cryptic order.
7. Learned counsel, Mr. Majumdar, drawing our attention to
the inquiry proceeding and the reports submitted by the inquiry
officer, severely criticized the order passed by CAT in both the OAs
and has submitted that the respondents, being responsible officers of
ICAR committed gross misconduct by physically assaulting the Ex-
Director of the institute intentionally and willfully and when the
disciplinary proceeding was initiated, they have taken hostile stand
and were non-cooperative from the very beginning. They were
creating hindrance in the proceeding by taking imaginary and
unfounded pleas to stall the proceeding. Dr. Dayal even did not
submit his statement of defence though several opportunities were
given to him. He was insisting for 56 items of documents but he
could not show relevancy of those documents and the inquiry officer
found four of the documents relevant and those documents were
supplied to him, which is evident in the inquiry report. Dr. Dayal also
consumed abnormal time for engaging his defence assistant and he
submitted tour programme claiming dearness allowance for
searching out his defence assistant.
Mr. Majumdar also submitted that when all reasonable
opportunity was given to him, he cannot blame the disciplinary
authority and the Tribunal was wrong in holding that principle of
natural justice was violated and that reasonable opportunity was not
given to the respondents.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 29 of 70
Learned counsel, Mr. Majumdar has also submitted that
acquittal in the criminal case is not by itself be a ground to drop a
disciplinary proceeding.
Drawing our attention to the deposition of seven
witnesses recorded during the inquiry, learned counsel, Mr.
Majumdar has submitted that all the witnesses made consistent
statements about the occurrence and simply based on the evidence
of the victim, Dr. R.N. Verma, which is fully supported by the
statements of Dr. Rabin Gogoi and Dr. Shwet Kamal, the charges
against the respondents have been well established. He has assailed
the orders of the Tribunal submitting that the Tribunal did not at all
apply its mind and has violated the settled position of law that the
Courts and Administrative Tribunals should not interfere in the order
of domestic Tribunals unless there is gross violation of the principles
of natural justice and that the order of punishment is based on no
evidence and further that the conclusion of the disciplinary authority
is shocking to conscience of the Court. The criminal Court, submitted
by Mr. Majumder, acquitted the accused persons on benefit of doubt
after critical analysis of the evidence in the criminal case, which is
not binding on the disciplinary authority.
Finally, learned counsel Mr. Majumdar, has contended
that in both the disciplinary proceedings, depositions of all the listed
witnesses of the disciplinary authority (seven witnesses), who all are
responsible Govt. officers of ICAR and are colleagues of the
respondents, substantially corroborated the statements of the victim,
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 30 of 70
who was Ex-Director of the institute and, there is no reason to
disbelieve them. PWs, Dr. Rabin Gogoi and Dr. Shwet Kamal, were
the direct eyewitnesses and other witnesses were inside the office
room/meeting room and they came out hearing the noise and all of
them corroborated the incident, who were reported by the victim and
the eyewitnesses. It has also been transpired in the evidence of the
eyewitnesses, submits Mr. Majumdar, that the respondents, while
working under the victim, Dr. Verma, were not happy with some of
his action and, therefore, were nurturing hostile attitude towards Dr.
Verma and executed it after his retirement by assaulting him
physically in the office premises, and such conduct of respondents,
being the senior officers of the Department is highly detrimental to
the interest of the Department and, therefore, their departure from
the Department, by way of ‘compulsory retirement’ is a minimum
punishment in the facts and circumstances of the case, which
deserves no interference.
In course of hearing, learned counsel, Mr. Majumdar has
submitted that the deposition of seven witnesses recorded in the
disciplinary proceeding of Dr. Gupta has been enclosed in both the
writ cases, and that, inadvertently, evidence recorded in the case of
Dr. Dayal has not been enclosed in the writ petition and prayed for
submitting the same later on, which was allowed since not objected,
most fairly, by learned counsel of the other side and, accordingly, the
copy of the deposition of all the seven witnesses recorded in the
disciplinary proceeding of Dr. Dayal has been placed on record.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 31 of 70
In support of his argument, learned counsel, Mr.
Majumdar, relied on the following case laws:
(1) State of U.P. & Ors. v. Ramesh Chandra
Mangalik : (2002) 3 SCC 443(para 11 and 12).
(2) Pepsu Road Transport Corporation v. Rawel
Singh : (2008) 4 SCC 42( para 15).
(3) R.P. Kapur v. Union of India & Anr. : AIR 1964
SC 787(para 9).
(4) K. Venkateshwarlu v. State of Andhra Pradesh :
(2012) 8 SCC 73(para 13).
8. Per contra, learned counsel Mr. Ahmed, while supporting
the judgment and order passed by the CAT, argued that the FIR was
lodged just immediately after the occurrence and a criminal case was
instituted, which has been ended by judgment, dated 22.06.2007,
passed by learned Chief Judicial Magistrate, Solan. Since, on the
same bundle of fact, i.e. the alleged assault of Dr. R.N. Verma,
criminal case was tried by a competent Court of jurisdiction, and,
same set of witnesses were examined in the disciplinary proceeding
as well as in the criminal trial, so, the judgment passed by the
Criminal Court must have a bearing on the fate of the disciplinary
proceeding. The disciplinary authority would drop the proceeding
after the criminal case has ended in acquittal. According to Mr.
Ahmed, while a criminal case was pending for trial and disposal, the
disciplinary authority would keep the proceeding in abeyance but in
the case of the respondents, the disciplinary proceeding was allowed
to continue simultaneously and that has caused injustice on the
respondents. It has also been submitted that a meticulous reading
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 32 of 70
of the deposition of witnesses, examined on behalf of the disciplinary
authority would reveal that except the eyewitnesses, Dr. Rabin Gogoi
and Dr. Shwet Kamal, other witnesses did not corroborate the
alleged victim, Dr. R.N. Verma and out of the alleged two
eyewitnesses, Dr. Shwet Kamal is a relative of the victim and, so, he
cannot be relied. He has also submitted that the alleged victim, Dr.
Verma earlier worked as a Director of NRCM and he tried to spoil the
service career of the respondents and, therefore, he might have
grudge against the respondents for which he has made a false
allegation against the respondents, which is not supported by the
other witnesses of the disciplinary authority.
The allegation against Dr. Gupta is that of provoking
and/or instigating her husband, Dr. Dayal, in assaulting Dr. Verma,
whereas, there is no evidence of provocation, submits learned
counsel Mr. Ahmed, on record, at least, to show that Dr. Dayal
alleged to have assaulted because of the provocation or instigation
by Dr. Gupta and, under such circumstances of the case, the Tribunal
rightly interfered in the order of punishment of Dr. Gupta, which
cannot legally sustain.
In support of his contention, learned counsel has referred
the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. &
Anr. reported in (1999) 3 SCC 679.
9. Both the respondents(husband and wife) were gazetted
officers, working in highly responsible posts as Senior Scientist under
ICAR. While on duty, Dr. Dayal, in the office premises, manhandled
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 33 of 70
Dr. Verma, their Ex-Director and, assaulted him physically, while Dr.
Gupta, having been present there in the scene, uttered that Dr.
Verma ought to have been beaten more and instigated Dr. Dayal to
assault Dr. Verma.
10. Let us first see whether the alleged act of the
respondents constitutes “misconduct”. In Black’s Law Dictionary, the
word, “misconduct” is defined as a transgression of some established
and definite rule of action, a forbidden act, a dereliction from duty,
unlawful behaviour, willful in character, improper or wrong
behaviour, a misdemeanor, misdeed, misbehaviour, delinquency,
impropriety, mismanagement, offence, but not negligence or
carelessness. The very word, “misconduct” has not been defined in
the CCS(Conduct) Rules, which is applicable to the respondents. CCS
(Conduct) Rules requires that every Government servant shall all
times—
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
10.1 “Misconduct” is wide expression, which is not defined in
any enactment. But it can be inferred, where there are gross
intentional violation of law, and, acts which are prohibited by law.
What amounts to ‘misconduct’ is a matter, which depends on the
circumstances of each and every case.
10.2 Each and every person is governed under the Rule of law
irrespective of his status, rank and position in the society. It is well
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 34 of 70
recognized principle and proposition of law that the concept of
employment involves three basic components i.e. the Employer,
Employee and contract of employment. The relationship between
employer and employee as master and servant is the product and
creation of a contract. Both the master and servant are governed
under definite terms and conditions of contract. Besides, terms and
conditions of employment, there is a Code of Conduct and principles
of natural justice implied on specific for both master and servant. The
expression ‘conduct’ has a significant meaning which includes his
character, discipline, integrity, decency, efficiency to duty, a conduct
befitting to the position and morality etc. in the matter of private and
public employment. In the case of Union of India v. J. Ahmed
reported in 1978 SC 1028, the apex Court, while summarizing the
meaning of “misconduct”, held—
“(a) Blameworthy conduct of Government servant;
(b) Lack of efficiency, lack of intelligence and
farsightedness and indecisiveness of the Government
servant;
(c) Lack of devotion of duty;
(d) Gross or habitual negligence in performance of
duties.”
10.3 In the case of Probodh Kumar Bhowmick v.
University of Calcutta reported in 1994(2) CLJ 456 : (1994) 8
SLR 300(Cal), his Lordship Hon’ble Justice S.B. Sinha, while relying
on the principles laid down by the Apex Court in the case of
Mahendra Singh Dhantwal v. Hindustan Motors Ltd., reported in
(1976) III LLJ 259(264) SC, Delhi Cloth & General Mills Co.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 35 of 70
Ltd. V. Its Workmen, reported in (1969) 2 LLJ 755, State of
Punjab & Ors. V. Ram Singh Ex. Constable, reported in 1992(4)
SCC 54, has held:-
“14. Misconduct, inter alia, envisages breach of discipline,
although it would not be possible to lay down
exhaustively as to what would constitute conduct and
indiscipline, which, however is wide enough to include
wrongful omission or commission whether done or
omitted to be done intentionally or unintentionally. It
means, "improper behavior; intentional wrong doing on
deliberate violation of a rule of standard or behaviour".
“Misconduct is a transgression of some established
and definite rule of action, where no discretion is
left except what necessity may demand; it is a
violation of definite law, a forbidden act. It differs
from carelessness. Misconduct even if it is an
offence under the Indian Penal Code is equally a
misconduct.”
Further, referring to P. Ramanath Aiyar's Law
Lexicon, Reprint Edition 1987 at Page 821 His Lordship, Hon’ble
Justice Sinha in paragraph 21 of the judgment quoted thus:-
“21. P. Ramanath Aiyar's Law Lexicon, Reprint
Edition 1987 at Page 821 defines 'misconduct'
thus:
“The term misconduct implies a wrongful
intention, and not a mere error of judgment,
Misconduct is not necessarily the same thing as
conduct involving moral turpitude. The word
misconduct is a relative term, and has to be
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 36 of 70
construed with reference to the subject-matter
and the context wherein the term occurs,
having regard to the scope of the Act or statute
which is construed. Misconduct literally means
wrong conduct or improper conduct. In usual
parlance, misconduct means a transgression of
some established and definite rule of action,
where no discretion is left, except what
necessity may demand and carelessness,
negligence and unskilfulness are transgressions
of some established, but indefinite, rule of
action, where some discretion is necessarily left
to the actor. Misconduct is a violation of definite
law; carelessness or abuse of discretion under
an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act and
is necessarily indefinite. Misconduct in office
may be defined as unlawful behaviour of
neglect by a public official, by which the rights
of a party have been affected.”
Thus it could be seen that the word
'misconduct' though not capable of precise of
definition, on reflection receives its connotation
from the context, the delinquency in its
performance and its effect on the discipline and
the nature of the duty. It may involve moral
turpitude, it must be improper or wrong
behaviour; unlawful behaviour, wilful in
character; forbidden act a transgression of
established and definite rule of action or code of
conduct but not mere error of judgment,
carelessness or negligence in performance of
the duty; the act complained of bears forbidden
quality or character. Its ambit has to be
construed with reference to the subject-matter
and the context wherein the term occurs,
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 37 of 70
regard being had to the scope of the statute
and the public purpose it seeks to serve. The
police service is a disciplined service and it
requires to maintain strict discipline. Laxity in
this behalf erodes discipline in the service
causing serious effect in the maintenance of law
and order.”
11. In the case at hand, the allegation is that the
respondent, Dr. Dayal, while was on official duty, physically
assaulted Dr. Verma, Ex-Director of the Institute and, Dr. Gupta
uttered remarks to assault Dr. Verma more and, thereby insisted her
husband, Dr. Dayal, which, definitely, amounts to a gross misconduct
on the part of the respondents.
12. Admittedly, an FIR was lodged immediately after the
occurrence, which has resulted in Criminal Case No.245/2 of 2003 in
the Court of Chief Judicial Magistrate, Solan. Before the disciplinary
proceeding ended in punishment of the respondents, the judgment in
the criminal case was passed on 22.06.2007, with an order of
acquittal of the respondents. The operative portion of the judgment
reads thus:
“16. After going through the entire prosecution evidence,
as discussed above, it has to be held that prosecution
has failed to prove its case against the accused beyond
reasonable doubt. Hence, my findings on point No.1 is in
the negative and against the prosecution.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 38 of 70
FINAL ORDER
17. In view of my findings on point No.1 above, accused
are given benefit of doubt and acquitted of the charge
under section 341, 323, 506 read with section 34 IPC.
File after completion be consigned to record room.
Announced in the open court of this 22nd day of June,
2007 in the presence of Sh. Yashpal Singh APP for State
and accused with Sh. D.K. Thakur, Adv.”
12.1 It is, therefore, evident that the respondents were
acquitted from the criminal case after critical appreciation of the
evidence recorded in the criminal trial. We do not like to make a
comment on the judgment passed by the learned CJM, Solan in the
criminal case. Simply the fact, which is placed before us renders that
the respondents were acquitted on benefit of doubt from the criminal
case.
12.2 In a case of acquittal with benefit of reasonable doubt, it
is quite permissible to initiate departmental proceedings on the same
set of facts, for it is still a point to be decided by the employer as to
whether a person whose character or action is of doubtful nature
should or should not be allowed to continue in service. But in the
case of honourable acquittal with a finding that the charge was false
or that no case was at all made out, and the accused was completely
exonerated of the charges, it would be wrong to draw up a
disciplinary proceeding on the same set of facts.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 39 of 70
12.3 It is a well settled proposition of law that for the same
bundle of fact a criminal proceeding and a departmental proceeding
may be initiated simultaneously but where the factual aspect of the
disciplinary proceeding is completely dependent on the fact of the
criminal proceeding, simultaneous disciplinary proceeding before end
of the criminal proceeding is not desirable. In cases of the present
nature, there is no impediment in simultaneous disciplinary
proceedings as well the criminal proceedings.
12.4 Obviously, no principle can be stated in any absolute or
unqualified form, but a general proposition may be laid down as that
where the acquittal is on a technical ground or the facts are held
established which would justify disciplinary action, but the criminal
trial ends in an acquittal, because some necessary ingredient has not
been proved beyond reasonable doubt, there might, as well, be a
case for contending that the departmental authorities could
nevertheless punish. But if for instance, a man is acquitted of a grave
offence like criminal misappropriation on the ground that dishonest
conversion is not at all made out it is certainly anomalous that a
departmental authority be permitted to differ and to hold that there
was a dishonest conversation and further, to inflict punishment on
that basis.
12.5 Acquittal of the accused from criminal case cannot take
away the power of the concerned authority to continue the
departmental enquiry in an appropriate case. In the case of
Corporation of City of Nagpur v. Ramachandra G. Madak,
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 40 of 70
1981(2) SCC 744 : 1981(3) SCR 22, the Apex Court has held that
normally where the accused is acquitted honourably and completely
exonerated of the charges it would not be expedient to continue a
departmental inquiry on the very same charges or grounds or
evidence, but the fact remains, however, that merely because the
accused is acquitted, the power of the authority concerned to
continue the departmental inquiry is not taken away nor is its
discretion in any way fettered.
12.6 Where a delinquent has been tried in a Criminal court
and acquitted, a departmental enquiry may be held by the
department. Indeed the department has got to follow the norms of
fairness and justice while instituting a departmental enquiry against
him. It is difficult to accept the proposition that a departmental
enquiry cannot be held if the case falls in one straight jacket formula
or another. Whether a departmental enquiry should be held or not
depends upon the facts and circumstances of each case. It is wrong
to fetter the judgment of the disciplinary authority by specifying
circumstances for holding a departmental enquiry and observing that
a case must fall under one or the other circumstances. It is difficult
to imagine innumerable situations which may develop in a dynamic
society consisting of innumerable patterns of unpredictable human
behaviour.
12.7 The departmental proceedings and the criminal
proceedings are entirely different in nature. They operate in different
fields and they have different objectives. The materials or the
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 41 of 70
evidence in the two proceedings may or may not be the same and in
some cases, at least, material or evidence which would be relevant
or open for consideration in the departmental proceeding if, may
absolutely be tabooed in the criminal proceedings. The rules relating
to the appreciation of evidence in the two enquiries may also be
different. The scope of an enquiry in a criminal trial is to determine
whether an offence against the law of the land has taken place and if
so, to punish the person who has been guilty of that offence. The
scope of a departmental enquiry is to determine whether a public
servant has committed a misconduct or delinquency and even if the
same constitutes, from one point of view, a crime, to consider the
question whether the delinquent deserves to be retained in public
service or to be reverted or to be reduced in rank or otherwise
suitable with for the delinquency concerned. In criminal trial, an
incriminating statement made by an accused, in certain
circumstances or before certain individuals is totally inadmissible
evidence. In a departmental proceeding, the enquiry officer is not
bound by any such technical rule. The degree of proof which is
necessary to record an order of conviction is different from the
degree of proof which is necessary to record the commission of the
delinquency. The rule relating to the appreciation of evidence in the
two proceedings is also not identical. For example, in a criminal trial,
the Court invariably proceeds on the presumption that accomplice
evidence is suspect and shall not be acted upon without an
independent corroboration in material particulars. An enquiry officer
is not bound by any such rule.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 42 of 70
In a criminal proceeding, proof is required beyond
reasonable doubt, whereas in a departmental proceedings, it is only
preponderance of probability, as required in civil suit and practically
much else than that.
13. In the case at hand, the respondents were acquitted from
the criminal proceeding on benefit of doubt, while there was evidence
on record that there was an incident as alleged but on some technical
aspect of appreciation of evidence, learned Magistrate has given the
benefit of doubt. In the facts and circumstances of the case, the
disciplinary authority was supposed to consider the evidence on
record in the proceeding and, while there was sufficient evidence on
record to hold the charge, in our considered opinion, there was
nothing wrong in imposing punishment by the disciplinary authority.
14. In the case of Capt. M. Paul Anthony(supra), which is
relied by the respondents, we find that the case stands on a quite
distinguishable fact. In that reported case the appellant was working
as a security officer of Bharat Gold Mines Ltd. and a raid was
conducted by the police in his house, wherefrom mining sponge gold
ball weighing 4.5 grams and 1276 grams of 'gold bearing sand' were
recovered from his house. A criminal case was instituted against him
and a disciplinary proceeding was also initiated. The appellant was
acquitted in the criminal case with a categorical finding that the
prosecution failed to establish its case and that there was no
evidence of any raid by police in the house of the appellant and
recovery of such incriminating articles. In the disciplinary
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 43 of 70
proceedings drawn against the appellant, he was, however, found
guilty and was dismissed from service. He challenged the order
before the High Court and the High Court directed his reinstatement
with a further direction giving opportunity to the respondents to
initiate fresh proceeding against the appellant. The Apex Court, while
allowing the appeal in paragraph 13 and 22 of the judgment
observed thus—
“13. As we shall presently see, there is a consensus of
judicial opinion amongst the High Courts whose decisions
we do not intend to refer to in this case, and the various
pronouncements of this Court, which shall be copiously
referred to, on the basic principle that proceedings in a
criminal case and the departmental proceedings can
proceed simultaneously with a little exception. As we
understand, the basis for this proposition is that
proceedings in a criminal case and the departmental
proceedings operate in distinct and different jurisdictional
areas. Whereas in the departmental proceedings, where
a charge relating to misconduct is being investigated, the
factors operating in the mind of the disciplinary authority
may be many such as enforcement of discipline or to
investigate the level of integrity of the delinquent or the
other staff, the standard of proof required in the those
proceedings is also different than that required in a
criminal case. While in the departmental proceedings the
standard of proof is one of preponderance of the
probabilities, in a criminal case, the charge has to be
proved by the prosecution beyond reasonable doubt. The
little exception may be where the departmental
proceedings and the criminal case are based on the same
set of facts and the evidence in both the proceedings is
common without there being a variance.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 44 of 70
22. The conclusions which are deducible from various
decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no
bar in their being conducted simultaneously, though
separately.
(ii) If the departmental proceedings and the criminal case
are based on identical and similar set of facts and the
charge in the criminal case against the delinquent
employee is of a grave nature which involves complicated
questions of law and fact, it would be desirable to stay
the departmental proceedings till the conclusion of the
criminal case.
(iii) Whether the nature of a charge in a criminal case is
grave and whether complicated questions of fact and law
are involved in that case, will depend upon the nature of
offence, the nature of the case launched against the
employee on the basis of evidence and material collected
against him during investigation or as reflected in the
charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot
be considered in isolation to stay the departmental
proceedings but due regard has to be given to the fact
that the departmental proceedings cannot be unduly
delayed.
(v) If the criminal case does not proceed or its disposal is
being unduly delayed, the departmental proceedings,
even if they were stayed on account of the pendency of
the criminal case, can be resumed and proceeded with so
as to conclude them at an early date, so that if the
employee is found not guilty his honour may be
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 45 of 70
vindicated and in case he is found guilty, administration
may get rid of him at the earliest.”
This decision is in no way in aid of the respondents,
rather the principles laid down therein is fairly against the case of the
respondents.
15. The case of R.P. Kapur(supra), as referred by the
learned counsel of the petitioners, in the facts and circumstances of
the present case, is quite distinguishable and, we find no relevance.
16. In the case of K. Venkateshwarlu(supra), the Apex
Court reiterated that an acquittal in criminal case, not on merit but
on insufficiency of evidence, disciplinary proceedings, if pending
against the appellant, authority concerned may proceed with the
same independently uninfluenced by the judgment in accordance
with law and arrived at an independent decision. The ratio of that
decision may be gainfully applied in the facts and circumstances of
the present case.
17. In the case of Chairman and Managing Director,
United Commercial Bank & Ors. v. P.C. Kakkar reported in
(2003) 4 SCC 364, the Apex Court has held that acquittal in
criminal case is not determinative of the commission of misconduct
or otherwise, and it is open to the authorities to proceed with the
disciplinary proceedings, notwithstanding acquittal in criminal case. It
per se would not entitle the employee to claim immunity from the
proceedings. At the most the factum of acquittal may be a
circumstance to be considered while awarding punishment. It would
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 46 of 70
depend upon facts of each case and even that cannot have universal
application.
18. Let us now have a glimpse to the evidence recorded
during enquiry. In the case of Dr. Dayal, as already stated earlier, all
the seven listed witnesses, namely, (1) Dr. R.N. Verma, (2) Dr.
Robin Gogoi, (3) Dr. R.C. Upadhyay, (4) Dr. B. Vijay, (5) Dr. S.K.
Singh, (6) Dr. M.C. Yadav, (7) Dr. Shwet Kamal, have been
examined in ‘question answer’ form.
18.1 Dr. R.N. Verma is the victim, who was the Ex-Director of
Dr. Dayal. For fair appreciation, we may reproduce here the
statement of Dr. Verma as recorded by the inquiry officer thus—
“Statement of Dr. R.N. Verma S/o Late Dr. P.N. Verma;
Aged: 65 years, R/o: “Ashirwad”, Rabindra Nagar,
Phase-II, Morabadi University PO, Ranchi-
834008(Jharkhand), Ex-Director, NRCM, Solan witness
at Sr. No.4 of Annexure-IV in the charges framed
against Dr. S. Dayal vide Memorandum F.No.3(2)/2004-
vig(D) dated 01.06.2004.
PO: Will you please narrate the details of the
incidence which took place in NRCM campus on
23.09.2003 against which you made a
complaint to the Authorities in the Council?
Dr. R.N. Verma:
Sir, I came on 23rd September, 2003 on a
personal visit to my son Mr. Sushant Bharati in
the morning. In the afternoon Director, NRCM,
Solan invited me to visit the Centre and I came
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 47 of 70
to NRCM in the office vehicle and participated in
a discussion with Director, AO and AFACO for
about 45 minutes. After which the Director took
me a round in some of the laboratories to show
their functions. Later I went to Dr. R.C.
Upadhyay’s room to preside over the meeting
of the Mushroom Society of India of which I
was the out-going President. The meeting was
being attended by other office bearers of the
Society namely Dr. R.C. Upadhyay, Dr. B. Vijay,
Dr. S.K. Singh etc. After sometime I went out
on nature’s call and when I was coming back I
happen to meet Dr. Rabin Gogoi who was then
participating in a training programme at NRCM.
We were knowing each other for quite some
time when I was serving in the North Eastern
Complex. When I was exchanging pleasantry
with Dr. Gogoi in the Corridor Dr. Sarveshwar
Dayal alongwith his wife Dr. Yash Gupta came
towards us shouting from a distance that “Adab
Arj hai R.N. Verma” and after reaching me he
slapped on my left side of the face. His wife
from behind was shouting to hit more and
instigating him by saying more is required.
After hearing the noise Members of MSI namely
Dr. Upadhyay, Dr. Vijay, Dr. S.K. Singh, Dr.
Yadav and Dr. Shwet Kamal came out from the
meeting room and the nearby laboratory. Dr.
Shwet Kamal and Dr. Gogoi attempted to save
me from further assault by Dr. Dayal. The
Director along with some other staff also
reached the spot after few minutes. Although I
wanted to continue with the meeting of MSI but
since the atmosphere was vitiated and all the
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 48 of 70
members were feeling tense and disturbed, the
meeting was postponed and I was taken to the
Director’s Chamber and consoled by one and
all. The matter was officially reported to the
Police and the Police party arrived at the scene
within a few minutes. After visiting the scene of
the incidence the police recorded my statement
and got my signature on the same.
On going back to Ranchi I though it proper to
put a written complaint to the Higher
Authorities of the ICAR namely Director General
and Deputy Director General(Hort.) separately
by fax on 01.10.2003.
IO: Can you please have a look at documents at
SE-3 and SE-9 and verify their correctness?
Dr. R.N. Verma:
I verify documents at SE-3 and SE-9, which
were written and signed by me. I am not at all
aware of SE-4(FIR). I never lodged any
complaint of this incidence with the police.
When the Police Party arrived at NRCM after
official intimation they took my statement at
NRCM itself and got it signed from me.
IO: At what time the incident took place?
Dr. R.N. Verma: It was between 4.30—5.00 P.M. I don’t
remember the exact time.
IO: What is the approximate distance between the
site of incident and venue of the MSI meeting?
Dr. R.N. Verma: It should be about 10 to 15 feet.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 49 of 70
IO: Who were the eye witnesses to the incidence?
Dr. R.N. Verma: Dr. S. Dayal, Dr. Yash Gupta and Dr.
Gogoi were eye witnesses at the time of beating
but later when he was trying to further assault
and shout Dr. Shwet Kamal, Dr. Upadhyay, Dr.
Vijay and Dr. S.K. Singh came at the scene.
IO: As a Director, NRCM, Solan what differences
you had with Dr. Dayal and Dr. Yash Gupta
which culminated in such a incidence?
Dr. R.N. Verma: I had no personal differences either
with Dr. Dayal or Dr. Yash Gupta but while
following the official procedures and general
discipline as well as performing duties and work
of the Centre Dr. Dayal and possibly Dr. Yash
Gupta might have mistaken my actions wrongly
due to which they took the law in their own
hand and performed this ghastly incident and
failed to observe the discipline and decorum of
a Scientist particularly in the office premises.
IO: Can you please indicate few instances of official
differences and did you try to amicably sort out
them?
Dr. R.N. Verma: To cite only a few, the most important
is that Dr. Dayal did not undertake a single
research project at the Centre despite repeated
requests and pursuations. He failed to attend
several training programme for which he was
nominated as a trainee. He flouted Office
Orders on various occasions and refused to lead
Sports Team as Chief-de-Mission at the last
moment. As far as I remember he also failed to
submit his Annual Confidential Reports on
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 50 of 70
certain occasions. I may point it out that such
indifferent and disobedient attitude of Dr. Dayal
was despite the fact that I tried my level best
to motivate and encourage him to indulge in
scientific and development activities of the
Centre by giving both oral and written advises
and suggestions. Even on one occasion I had
gone out of way to provide him the required
facilities to carryout his past experiments on
low temperature cabbage and raise a crop at
NRCM, Chambaghat although it was not a
mandate crop of the Centre, only to keep his
scientific pursuit alive, so that he may involve
himself fully in research.
In case of Dr. Yash Gupta also I was positive in
my approach in helping her in all her endeavour
and even recommended her name for Young
Scientist Award and award for writing Hindi
Book on Button Mushroom. Besides she was
given various assignments such as Organizing
Hindi Week, Staff Welfare Association etc.
On the other hand, Dr. Dayal and his wife
Dr.(Mrs) Yash Gupta seem to nurse personal
enmity and hatred against me and wanted to
harm me as is evident from their various
actions, besides the one under investigation.
For example, just before my retirement, Dr.
Dayal sent false complaints to ICAR as admitted
by them in their submissions to the Hon’ble
CAT, Chandigarh in an OA filed around
November, 2003, which were all found baseless
and false by the ICAR. Also, in the same OA
they alleged my direct role and malafide in their
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 51 of 70
transfer to CPRS, Shillong, which was also
rejected by the Hon’ble CAT. Dr. Dayal had
been highly aggressive and rough in behaviour
as evident from several complaints lodged
against him from various staff members of
NRCM, Solan and has faced charges of
indiscipline etc. earlier also, which I do not
remember in details today.”
18.2 We may also reproduce here the deposition of two other
eyewitnesses, i.e. Dr. Robin Gogoi and Dr. Shwet Kamal.
The statement of Dr. Robin Gogoi reads thus:
Statement of Dr. Robin Gogoi, AAU, Jorhat presently at
IARI, New Delhi; S/o Late Sh. Bhuban Chandra Gogoi,
Aged: 43 years, R/o: Scientist Apartment, III-D, IARI,
Pusa Campus, New Delhi—12 witness at Sr. No.2 of
Annexure-IV in the charges framed against Dr. S. Dayal
vide Memorandum F.No.3(2)/2004-vig(D) dated
01.06.2004.
PO: Will you please narrate the details of the
incidence which took place in NRCM campus on
23.09.2003 in your presence and what were
you doing there and what exactly happened
immediately after that?
Dr. Robin Gogoi: I was attending a Winter school
training programme of ten days at NRCM,
Chambaghat, Solan(H.P.). On 23th September
2003 at around 4.30 P.M. I was engaged in
one practical class. At that time I saw from the
classroom that Dr. R.N. Verma was walking in
the corridor of that Classroom. As I knew him
for the last several years, I immediately came
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 52 of 70
out of the classroom and wished him. He
stopped and started talking with me. At that
moment suddenly I heard a voice of Dr. S.
Dayal from my backside who was loudly
wishing some words to Dr. Verma and came
near to us. He shook hand with Dr. Verma and
then embraced him and very quickly Dr. Dayal
slapped on the face of Dr. Verma. Another
trainee of the Winter School Dr.(Mrs) Yash
Gupta was instigating Dr. Dayal to beat more.
There was some noise at the site listening to
which Dr. Shwet Kamal who was working in
nearby laboratory also came to us.
Immediately after the incidence I was
surprised and shocked to see the behaviour of
Dr. Dayal and myself and Dr. Shwet Kamal
tried to rescue Dr. Verma. Immediately after
committing the incidence Dr. Dayal and Dr.
Yash Gupta left the place hurriedly.
IO: Can you please have a look at document SE-7
and verifying its correctness?
Dr. Robin Gogoi: I verify document SE-7 that had also
been signed by me.
IO: As per SE-7, seven trainees have lodged the
complaint with the Director, NRCM. How did
they know about the incidence?
Dr. Robin Gogoi: In fact I was the only person present at
the time of incidence. I informed the incidence
to other trainees who felt that the matter
needs to be brought in the notice of the
Director.
IO: Did Dr. Yash Gupta come along with Dr. Dayal?
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 53 of 70
Dr. Robin Gogoi: Dr. Dayal came from somewhere else,
whereas, Dr. Mrs. Yash Gupta joined him after
coming from the class.
IO: When Dr. Dayal embraced Dr. Verma and
slapped him what was the reaction of Dr.
Verma?
Dr. Robin Gogoi: He was shocked and shivering too
much.
IO: How did you and Dr. Shwet Kamal rescued Dr.
Verma?
Dr. Robin Gogoi: We both tried to hold Dr. Dayal and
prevented him from beating Dr. R.N. Verma.
PO: Did the Police come after the incidence and
whether the Police took your statements?
Dr. Robin Gogoi: The Police did come to campus but
they did not take my statement.”
18.3 The statement of Dr. Shwet Kamal reads thus:
Statement of Dr. Shwet Kamal, S/o Dr. Nagendra
Kumar; Aged: 37 years, R/o: 7-B, Express view
Apartment, Sector-93, Noida(U.P.) witness at Sr. No.3 of
Annexure-IV in the charges framed against Dr. S. Dayal
vide Memorandum F.No.3(2)/2004-vig(D) dated
01.06.2004.
PO: Will you please narrate the details of the
incidence which took place in NRCM campus on
23.09.2003 in your presence, what were you
doing there and what exactly happened
immediately after Dr. Sarveshwar Dayal
manhandled Dr. R.N. Verma?
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 54 of 70
Dr. Shwet Kamal: At that time it was about 4.45 P.M.
and I was guiding a practical to winter school
trainees. I heard that Dr. Verma was talking to
Dr. Robin Gogoi outside the lab. I just came
out and was standing 6-7 ft away from Dr.
Verma in the corridor. Just before that Dr.
Yash Gupta had left the practical and gone
down. I was in the corridor. Dr. Dayal came
saying “Adab Arj Dr. Sahid” Dr. Yash Gupta
was following Dr. Dayal. I thought Dr. Dayal
wanted to greet Dr. Verma. Dr. Dayal
embraced Dr. Verma and suddenly slapped on
the left side of Dr. Verma’s face. Dr. Robin
Gogoi and I tried to disengage Dr. Dayal but
Dr. Yash Gupta has pulled me from behind
saying “Yeh to kuch bhi nahi hai isko aur mar
padni chhahiye” in the meantime other
trainees came out and Dr. Dayal ran away
from the spot. After that MSI meeting was
adjourned Dr. Upadhyay, Dr. Vijay, Dr. Singh
and Dr. Yadav came out. We all went to
Director’s Office from where Local Police was
called and FIR was lodged against Dr. S.
Dayal.
IO: You are signatory to document SE-8. Would
you please verify correctness of this
document?
Dr. Shwet Kamal: I verify above document.
IO: From your above statement it appears that the
incidence occurred in your presence. Is it true
that Dr. Sarveshwar Dayal actually
manhandled Dr. R.N. Verma and Dr. (Mrs.)
Yash Gupta instigated him?
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 55 of 70
Dr. Shwet Kamal: Yes I have seen Dr. Sarveshwar Dayal
slapping Dr. R.N. Verma and Dr.(Mrs.) Yash
Gupta instigating Dr. Dayal to beat more. In
fact it was me and Dr. Robin Gogoi who
separated Dr. Sarveshwar Dayal from Dr. R.N.
Verma.
IO: How much was the distance between the
laboratory you were guiding practical and the
site of incidence?
Dr. Shwet Kamal: The incidence took place just outside
the laboratory.
IO: Did you ever work with Dr. Sarveshwar Dayal?
Dr. Shwet Kamal: When I was SRF, we both were
working in the same laboratory although I was
not directly working under him.
IO: Did you have any problems working with Dr.
Sarveshwar Dayal in the same laboratory?
Dr. Shwet Kamal: No I did not have any problem
working with Dr. S. Dayal.
PO: Who others were present at the site when the
incident took place?
Dr. Shwet Kamal: Myself, Dr. Robin Gogoi, Dr. R.N.
Verma, Dr. S. Dayal and (Dr.) Mrs. Yash Gupta
were present at the time of incidence in the
corridor. After listening to the noise the
trainees of Winter School as well as Executive
Members of MSI came out to the corridor.
IO: How did you disengage Dr. S. Dayal from Dr.
R.N. Verma?
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 56 of 70
Dr. Shwet Kamal: I pulled Dr. Dayal away from Dr. R.N.
Verma. While doing so Dr.(Mrs.) Yash Gupta
was pulling me back saying that “Yeh to kuch
bhi nahi hai isko aur mar padni chhahiye.”
18.4 The other witnesses, Dr. R.C. Upadhyay, Dr. V. Vijay, Dr.
SK. Singh and Dr. M.C. Yadav, all came out hearing the noise in the
corridor and saw the respondents as well as Dr. Verma and the
eyewitnesses, Dr. Gogoi and Dr. Kamal. They all came to know about
the occurrence from Dr. Verma and what they learnt from Dr. Verma
they stated the same fact before the inquiry officer, who recorded
the same in ‘question answer’ form. The respondent, Dr. Dayal,
neither cross-examined those witnesses nor adduced any evidence to
controvert the evidence of those witnesses. The deposition of the
witnesses remained completely un-rebutted and, there is nothing to
hold that Dr. Dayal did not manhandle and/or did not physically
assault Dr. Verma in the corridor of the office. His wife, the other
respondent was also present there and directly instigated Dr. Dayal
that Dr. Verma was rightly beaten up and that he should have been
beaten more.
19. In the proceedings of Dr. Gupta also, all those seven
witnesses have been examined and they were cross-examined by Dr.
Gupta. The victim, Dr. R.N. Verma in his statement narrated the
entire incident.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 57 of 70
For fair appreciation, we may reproduce here the
statement of Dr. Verma, recorded by inquiry officer in ‘question
answer’ form, which reads thus:
“Statement of Dr. R.N. Verma S/o Late Dr. P.N. Verma;
Aged: 65 years, R/O: “Ashirwad”, Rabindra Nagar,
Phase-II, Morabadi, University PO, Ranchi-
834008(Jharkhand), Ex-Director, NRCM, Solan witness
at Sr. No.4 of Annexure-IV in the charges framed
against Dr.(Mrs.) Yash Gupta vide Memorandum
F.No.3(28)/2004-Vig(D) dated 27.05.2004 held at NRC
for Mushroom, Chambaghat, Solan(H.P.) on 12.07.2007.
Dated: July 12, 2007
PO: Will you please narrate the details of the
manhandling incidence, which took place in the
NRCM Campus on 23.09.2003 for which you
made a complaint(P-3) against Dr.(Mrs.) Yash
Gupta?
Dr. R.N. Verma: Actually on 23.09.2003 I visited Solan
on a private visit to my. In the afternoon the
Director, NRCM, Solan invited me to visit the
Centre. After participating at a discussion in the
Director’s Chamber I was taken around in some
of the laboratories showing their facilities and
working. Later I went to Dr. R.C. Upadhyay’s
room to preside over the meeting of the MSI
Executive committee since I was the President
of the Society. The meeting was attended by
Dr. R.C. Upadhyay, Dr. B. Vijay, Dr. S.K. Singh
and Dr. M.C. Yadav. After sometime I had to go
out on nature’s call and when I was coming
back I met Dr. Rabin Gogoi whom I knew for
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 58 of 70
several years. Dr. Gogoi and myself were
exchanging pleasantries in the corridor.
Suddenly I saw Sarveshwar Dayal who was
coming to me and from a distance he loudly
“Adab Araj hai R.N. Verma”. Within a few
seconds he reached me, shook hands with me
and suddenly slapped me on left part of the
face. From behind Dr. Dayal, Dr.(Mrs.) Yash
Gupta was shouting and instigating him to
make further assault saying ‘give him more,
give him more this is not enough’. I was taken
aback and fortunately Dr. Gogoi and Dr. Shwet
Kamal who were standing on the door of the
lab. Rushed and saved me from further assault
by holding him and pulling him away.
Simultaneously all the MSI Executive Members
had also came out. I along with them went
back to Dr. Upadhyay’s room and tried to come
to normal state of mind. But all decided to
postpone the meeting and they took me to
Director’s Chamber. One and all consoled me.
The matter was officially reported to the Police
immediately and a FIR was lodged by the A.O.
After few minutes a Police party arrived at
NRCM Office campus and reported to the
Director from where the officer-In-Charge went
to visit the site of the incidence. Coming back
from there they took my statement and
obtained my signature on the same. The Police
looked for Dr. Dayal and Dr. Gupta in the NRCM
premises but by then perhaps they had left.
After going to Ranchi I thought it appropriate to
send a written complaint to the Higher
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 59 of 70
Authorities of the ICAR namely DDG(Hort.),
ICAR. I verify the same(P-3).
PO: At what time the incident took place?
Dr. R.N. Verma: It was around 4.45-5.00 P.M. on
23.09.2003.
PO: What is the approximate distance between the
site of incident and venue of the MSI meeting?
Dr. R.N. Verma: I think it should be around 15 fts.
PO: Whether Dr. S. Dayal and Dr. Yash Gupta were
indifferent to you as a Director?
Dr. R.N. Verma: I think the work indifferent is too
inadequate. When they had gone to the extent
of taking the law in their hands and indulged in
assaulting me, their attitude towards me is very
much obvious. I had been in this Centre for
more than seven and half years and I had all
the cooperation and support from the entire
staff of the Centre through which only the
Centre could win the “Best Institution Award
from the ICAR”. I don’t know why Dr. Dayal and
Dr.(Mrs.) Yash Gupta could not cooperate like
others and involve in the mandated programme
of the Centre in the constructive manner. Had
they followed the normal office procedures,
discipline, decorum and the routine work of the
Centre such nasty incidence in which they
involved themselves did not have occurred. It
was unfortunate that Dr. Yash Gupta instead of
giving good counseling and sane advice to her
husband, herself indulged in instigating and
encouraging her husband to go to such hostile
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 60 of 70
and aggressive activity to assault me that too
one and half years after my retirement and
leaving Solan forever.
PO: What may be the reasons, which culminated
into such an incident where Dr. Yash Gupta
provoked her husband, to beat yourself?
Dr. R.N. Verma: First of all I think indulging in such a
violent and wild activities was not at all
necessary and hence why did she(Dr. Mrs. Yash
Gupta) advise and instigate her husband to go
for the same may better be answered by
herself. I can only guess that they might have
gone to this extreme step with a revengeful
mind and attitude.
PO: What is your view for such an act of Dr.(Mrs.)
Yash Gupta being a women scientist who
instigated her husband to beat a Director at the
work place?
Dr. R.N. Verma: I think it may not be possible for me to
comment more than what I have said earlier
and it will probably depend on the personal
relations between Dr. Dayal and Dr. Gupta.
PO: Did you actually see that Dr. Gupta came to the
site of the incident?
Dr. R.N. Verma: Yes I very much saw Dr. Yash Gupta
instigating Dr. S. Dayal to beat more and more.
Cross-examination:
CO: Did you give your statement to the Police when
they came to the NRCM? Does this
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 61 of 70
document(D-4) contain the statement given by
you to the Police?
Dr. R.N. Verma: Yes, when the Police Party came and
visited the site of the incident they asked and
took my statement and got my signature done
on the same. The D-4 document shown to me
here only is not the statement given by me to
the Police party on 23.09.2003 evening at
NRCM. It seems to be copy of a Police Diary
and contains the contents recorded in my
statement given on 23.09.2003 besides other
details noted by the Office of the Police Station.
CO: At what time the meeting of the MSI Executives
started?
Dr. R.N. Verma: The MSI meeting started around 4.30
P.M. as far as I remember.
CO: Did you transact some business before going to
urinal?
Dr. R.N. Verma: Because I had come to the meeting
venue after visiting the Director and the
laboratories, I had to leave the meeting mid
way itself.
CO: After how much time of starting the meeting
did you leave for urinal?
Dr. R.N. Verma: Obviously I don’t remember these finer
details after so many years.
CO: Exactly at what location you were talking with
Dr. Gogoi in the corridor and for how long you
were talking with him?
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 62 of 70
Dr. R.N. Verma: It was nearest to the Crop
Improvement Laboratory were training was
going on. It must be a few minutes only when
we were talking. I don’t remember the finer
details.
CO: How did Dr. Dayal assault you?
Dr. R.N. Verma: He came rushing to me saying ‘Adab
Araj hai R.N. Verma’, held me and within
moments slapped me before I could know
anything.
CO: How many slaps did he give?
Dr. R.N. Verma: As far as I remember he gave only one
slap on my face and a few thrashes(Dhakka-
Mukka) to my body.
CO: Did you fall when he was assaulting you?
Dr. R.N. Verma: I stepped back as a natural response
before Dr. Shwet Kamal and Dr. Robin Gogoi
disengage Dr. Dayal and helped to save me
from further assault.
CO: Did Drs. R.C. Upadhyay, B. Vijay, Dr. S.K.
Singh, M.C. Yadav, Dr. Shwet Kamal and Dr.
Robin Gogoi all of them save you?
Dr. R.N. Verma: No. I have told that they came out
hearing the noise but Dr. Upadhyay’s room was
about 15 feet away and they were simply mute
spectators since by the time they could reach
the spot of the incident was over. Dr. Robin
Gogoi and Dr. Shwet Kamal saved me from
further assault my disengaging Dr. Dayal.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 63 of 70
CO: Did you depose in the court of CJM in the
similar case?
Dr. R.N. Verma: Yes, I deposed in the CJM’s court but
unfortunately CJM was not in his seat till more
than three-fourth of my statement was
recorded.
CO wanted to put certain questions related to her
previous case in the year 1997(D-5). PO
Objected to this saying that this is not relevant
to the deposition by the witness. IO sustained
the objection.
Re-examination:
PO: Do you think that Dr. Sarveshwar Dayal had
beaten yourself only because Dr.(Mrs.) Yash
Gupta provoked and instigated him to do so?
Dr. R.N. Verma: I can’t say that it was solely the result
of provocation by Dr.(Mrs.) Yash Gupta that led
to my assault by Dr. S. Dayal, but definitely her
provocation and instigation must have played
major role in the same?
IO: Dr. S. Dayal and Dr.(Mrs.) Yash Gupta were not
actively involved in research and Institute
building activities. Did you try to motivate them
and bring them in the mainstream of NRCM?
Dr. R.N. Verma: Yes, I tried my level best to bring both
of them to the main stream of the Scientific
team of the Centre by providing facilities, giving
suggestions and advises and when inquired. I
was particularly paying more attention to Dr.
Dayal since he was comparatively newer to
mushroom. To keep his research pursuit alive
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 64 of 70
once I even went out of the way to provide him
all facilities to lay field experiments on his
cabbage breeding material which he brought
from his previous place of posting, although the
cabbage was not the mandatory crop of the
CRCM. Similarly to encourage Dr.(Mrs.) Yash
Gupta, I even recommended her name for
Young Women Scientist Award and Hindi writing
Book Award besides nominating both of them
for various training programmes, Seminars
etc.”
20. If we see the statement carefully, particularly, the
cross-examination of Dr. Verma, it would be evident that in cross-
examination, the incriminating statement as against the respondents
has rather been confirmed. Further, Dr. Robin Gogoi and Dr. Shwet
Kamal also made the same statement. In cross-examination of Dr.
Shwet Kamal, he has admitted that Dr. Verma is his maternal uncle.
There is nothing to disbelieve or to doubt the statement of Dr. Kamal
for the only reason that he is a relative of Dr. Verma, while we find
corroboration from the statements of other witnesses that Dr. Kamal
was working as a scientist in the said institute at that relevant point
of time and was present there at the time of occurrence. Relationship
cannot be a factor for drawing an adverse inference against his
otherwise cogent statement. Dr. Gogoi is an independent witness, a
scientist working in the establishment and he made a consistent
statement that when Dr. Verma was in conversation with him, Dr.
Dayal manhandled and assaulted Dr. Verma. The evidence of this
witness has not been shaken in any manner in cross-examination.
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 65 of 70
The Tribunal has singled out one line from the statement of Dr. Gogoi
in his re-examination, where a specific question asked by the PO, to
which Dr. Gogoi made the statement. Both the question and answer
read thus:
“PO: Do you think Dr. Verma was beaten by Dr. Dayal
because he was provoked and instigated by Dr.
Yash Gupta?
Dr. Robin Gogoi: It is sure that Dr. Dayal had beaten Dr.
Verma. But I am not sure that Dr. R.N. Verma
was beaten on provocation and instigation from
Dr.(Mrs.) Gupta.”
The above statement can in no way be interpreted or
construed that Dr. Gogoi intended to mean thereby that there was no
instigation by Dr. Gupta to her husband in the alleged assault. What
was in the mind of Dr. Dayal cannot be adjudged or read as to
whether he assaulted Dr. Verma at the instance of his wife or not,
but fact remains, when Dr. Dayal assaulted Dr. Verma, at that time
Dr. Gupta was also there and she uttered saying to beat Dr. Verma
and that he should have been beaten more. Therefore, irrespective of
the fact whether Dr. Dayal had beaten Dr. Verma at such instigation
or not is not at all a factor, what she uttered itself is a misconduct on
her part for which she deserved punishment.
We have also gone through the statements of defence
witnesses examined by Dr. Gupta in her proceeding. DW Ajeet
Kumar stated that on 23.09.2003, at 4.30/5.00 pm, he was in the
lab of Crop Improvement Section, headed by Dr. Upadhyay and that
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 66 of 70
he did not hear any quarrel or noise. DW Dr. S.R. Sarma stated
about some previous inquiry in the name of Dr. Gupta, which is not
relevant. He further stated that on 23.09.2003, he was not present in
the office of NRCM. The statement of defence witnesses, therefore, is
in no help of Dr. Gupta, to discredit the evidence of disciplinary
authority.
21. Regarding ex parte hearing of the proceeding against Dr.
Dayal, we find enough material on record clearly supporting the case
of disciplinary authority that Dr. Dayal from the very inception was
non-cooperative and by hook or crook was trying to delay and
frustrate the disciplinary proceedings drawn against him. He did not
participate in the proceedings taking this and that plea. He did not
even submit his statement of defence on receipt of show cause notice
and the charge sheet. He cannot claim advantage of his own wrong.
Since he did not participate in the proceeding regularly, the inquiry
officer was compelled to have the ex parte hearing. The observation
of CAT that reasonable opportunity was not given to the charged
officer in the circumstances of the disciplinary proceedings is
unfounded and unfortunate. The Tribunal would go into details of the
inquiry proceedings and then was supposed to observe about the
denial of principles of natural justice.
22. Respondents also contended that the documents claimed
by them were not supplied. The Tribunal entertained such plea of the
respondents without meticulously examining the materials on record
and without recording a finding as to whether those documents,
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 67 of 70
which the respondents asked for, were at all relevant or not for just
decision of the disciplinary proceedings. If a delinquent demands a
bunch of documents, the yardstick for such demand on the part of
the delinquent is to show that those were material and in absence of
those documents, they would be prevented from taking an effective
defence. In the cases at hand, unfortunately, the respondents failed
to put up a cogent case that they were deprived of their rights for
denying the supply of any particular document. As we find on record,
Dr. Dayal demanded fifty six items of documents, wherefrom the
inquiry officer found only four as relevant. Dr. Gupta also demanded
fifteen items of documents initially and then demanded twenty two
items of documents but she has also failed to make out any case that
those documents were relevant for just decision of the disciplinary
proceedings. On the ground of non-supply of all documents, we find
no injustice caused to the respondents.
We may gainfully refer here the observation of the Apex
Court in the case of Ramesh Chandra Mangalik(supra) in
paragraphs 11 and 12, which read thus:
“11. Learned counsel for the appellant has further submitted that particular documents copies of which are said to have not been supplied are not indicated by the respondent much less in the order of the High Court nor has their relevance been pointed out. The submission is that the delinquent will also have to show as to in what manner any particular document was relevant in connection with the inquiry and what prejudice was caused to him by non furnishing of a copy of the document. In support of this contention, reliance has been placed upon a case reported in Chandrama Tewari v. Union of India reported in 1997
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 68 of 70
Supp. SCC 518. It has been observed in this case that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges. It is further observed that if a document even though mentioned in the memo of charges, has no bearing on the charges or if it is not relied upon or it may not be necessary for cross-examination of any witness, non-supply of such a document will not cause any prejudice to the delinquent. The inquiry would not be vitiated in such circumstance. In State of Tamil Nadu v. Thiru K.V. Perumal : (1996) 5 SCC 474 relied upon by the appellant, it is held that it is for the delinquent to show the relevance of a document a copy of which he insists to be supplied to him. Prejudice caused by non-supply of document has also to be seen. In yet another case relied upon by the learned counsel for the appellant, reported in (2001) 6 S.C.C. 392 State of U.P. v. Harendra Arora and Anr., it has been held that a delinquent must show the prejudice caused to him by non-supply of copy of document where order of punishment is challenged on that ground.
12. Learned counsel for the appellant submitted that no material or document has been relied upon by the inquiry officer, copy of which or inspection thereof may not have been allowed to the respondent. No material has been obtained after the date of hearing nor has any such material been made use of by the inquiry officer. It is further submitted that in the judgment of the High Court it has nowhere been indicated that any material or document, copy of which has not been supplied to the respondent, was used much less any prejudice, if caused to the respondent. Learned counsel for the respondent could not pinpoint any particular document which may have been made use of by the inquiry officer for establishing the charges leveled against the respondent, copies of which or inspection thereof may not have been allowed to the delinquent by the Department. No submission has been advanced on behalf of the respondent on the point of prejudice which may have been caused to the respondent by non-supply of document, if any. The high Court has also not gone into the question of the relevance of the documents, copies of which are said to have not been supplied to the respondent and consequent prejudice, if caused. We therefore find that the finding of the High
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 69 of 70
Court that the principles of natural justice have been violated for non-supply of documents to the respondent is sustainable. The cross-examination of a witness which was sought for, had unfortunately died which fact was also brought to the notice of the respondent.”
In the case of Pepsu Road Transport
Corporation(Supra), the respondents even after notice did not turn
up and allowed the proceeding to go ex perte so that he may take
the plea of violation of the principles of natural justice. Considering
the facts and circumstances of that case, the Apex Court observed—
We are not entering into correctness or otherwise of the allegations
of the Corporation. One thing, however, is certain that in spite of
service of show cause notice, the respondent failed to appear at the
enquiry and the Enquiry Officer had to proceed with the enquiry in
absence of the respondent.
In the present case, the respondent, Dr. Dayal was well
informed by notice about the hearing of the proceedings but he
remained absent simply sending letter of illness with a medical
certificate from a private doctor. His conduct from the inception
shows that he did so deliberately with a view to take a future plea of
denial of natural justice. Inquiry report, clearly depicting the picture
of non-cooperation extended by Dr. Dayal throughout the course of
inquiry, he cannot take the advantage of his own wrong, while he is
guilty of non-cooperation.
23. The plea of the respondents that the principles of natural
justice was violated, in our considered opinion, is absolutely
WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 70 of 70
mechanical, having no materials to support the plea and the
Tribunal, we are constrained to hold, failed to apply its judicial
conscience and superficially arrived at a decision and wrongly
interfered in the finding of the disciplinary authority.
24. The power of judicial review of the decision of a domestic
Tribunal is very limited. Such judicial review is possible only when
the principles of natural justice has been violated i.e. the
opportunities, which ought to be given to the delinquent, as per
rules, were not given or that the decision of the domestic Tribunal
was based on no evidence and that the punishment inflicted is
shocking to the judicial conscience. If there is no glaring violation of
principles of natural justice and there is some evidence to support
the decision taken by the disciplinary authority, the Court or Tribunal
cannot sit as a matter of appeal to re-appreciate the evidence and to
substitute the finding of the disciplinary authority with its own
findings.
25. In view of the discussions made above, we are of the
opinion that the Tribunal has wrongly interfered in the orders passed
by the disciplinary authority, and, hence, those are liable to be set
aside and quashed. Accordingly, order, dated, 04.09.2009, passed in
O.A. No.299 of 2007 and order, dated 06.04.2010, passed in OA
No.218 of 2008, by the Central Administrative Tribunal, Guwahati
Bench, are set aside and quashed. No costs.
JUDGE JUDGE
nihar/rk