JUDGMENT
S.B. Sinha, C.J.
1. These writ petitions involving common questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.
2. The petitioners were at the relevant time working as Constables. Disciplinary proceedings were initiated against them. The Inquiry Officer exonerated them from the charges in terms of his report dated 15th June 1997. The disciplinary authority disagreed with the finding of the Inquiry Officer. Upon recording his conclusion, the disciplinary authority issued a show cause notice. Upon receipt of the show cause from the petitioner, he imposed a major punishment for permanent forfeiture of five years of approved service with cumulative effect and left the period of suspension to be decided by an order dated 6th October 1997 which was, by a subsequent order dated 1st December 1997 held as not spent on duty. Questioning the said order, the appeals were preferred which were rejected. The said orders were the subject matter of the afore-mentioned Original Application. The respondent,s inter ali, in their Original Application submitted that at they were on casual leave, the question of harassing the complaint by demanding any illegal gratification by them would not arise.
3. In its notice to show cause, however, the appellate authority arrived at a final conclusion and the same was not a tentative one.
4. The learned Tribunal relying on or on the basis of a decision of Yoginath D. Bagade v. State of Maharashtra and Anr. agreed with the contention of the respondents and allowed the said application.
5. Mr. Paracken,the learned counsel for the petitioner would submit that the learned Tribunal committed an error in relying upon the decision in Yoginath D. Bagade v. State of Maharashtra and Anr. (supra), inasmuch as therein, without any show cause notice, the services of the delinquent officer were terminated. According to the learned counsel, in the instant case, not only an opportunity to show cause was given, an opportunity of being heard personally had also been accorded.
6. The learned counsel appearing on behalf of the respondents would support the judgment of the learned Tribunal.
7. The inquiry report submitted by the Inquiry Officer is a detailed one. He considered all the materials on record and arrived at a finding of fact that the delinquent officers are not guilty. The disciplinary authority, however, recorded his positive finding to the effect that upon notice of the entire material on record the respondents are guilty. The said findings are contained in about six and a half pages. Nowhere in the findings did he suggest that such findings are tentative ones. His findings begin with the following”
“I have carefully considered the evidence on record and the findings submitted by the Enquiry Officer. I do not agree with the conclusion of the E.O. that the charge does not stand proved against defaulters Inspr. Dal Chand No. D/1865, Consts. Jag Parvesh No. 1573 /E and Parmod No. 1394/ E. From the evidence on record, the sequence of events, which took place related to the charge is quite clear. The testimony of PW-3, DW-2, DE-3 and DW-5, all electrical Contractors, clearly indicates that the electrical engineers were operating as a matter of routine outside the DESU Office, Karkardooma. This activity continued unchecked by the local police. It is evident from the statement of PW-3 which has not been disputed, that in Dec. 1995, a scheme was launched by DESU, which permitted additional load, which resulted in increased activity at and outside DESU office. This again does not seem to have resulted in any police action. If what the electrical engineers were doing was illegal or if the manner in which they were doing their duties was illegal, then appropriate action should have been taken as prescribed under the law. More so, since Inspr. Dal Chand was alleged at point – 5/K of his written defense statement that PW-3 was in a habit of making complaints against DESU /Police Officers when “his illegal activities are checked”. If, indeed, the activities of PW-3 were illegal, the, what prevented the police from taking appropriate legal action against him? Since no action was taken against PW-3 and the other electrical engineers operating outside DESU Office, it is evident that they were nothing illegal about their activities.”
8. He concluded:
“The totality of the facts and circumstances of the case and evidence on record lends credence to the allegations made. This aspect of the charge, therefore, also stand proved against the Inspr.”
9. The respondents filed their respective show causes. In his final order dated 6th October 1997, he copied that factual matrix of the matter from the notice to show cause. He thereafter observed:
“I carefully considered the evidence on record the findings submitted by the Enquiry Officer and recorded my conclusions as follows:-
“Quote “I do not agree with the conclusion of the Enquiry Officer that the charge does not stand proved against defaulters Inspr. Dal Chand No. D-1865, Consts. Jag Parvesh No. 1573 / E and Parmod No. 1394 /E. From the evidence on record, the sequence of events, which took place related to the charge is quite clear. The testimony of PW-3, DW-2, DW-3 and DW-5, all electrical contractors, clearly indicate that the electrical contractors were operating as a matter of routine outside the DESU office, Karkadooma. This activity continue unchecked by the local police. It is evident from the statement of PW-3 which has not been dispute, that in December, 1995, a scheme was launched by DESU which permitted additional load which resulted in increased activity at and outside the DESU office. This again doe snot seem to have resulted in any police action. If what the electrical contractors were doing was illegal or if the manner ni which they were doing their duties was illegal, then appropriate action should have been taken as prescribed under the law. More so, since Inspr. Dal Chand had alleged at point – 5K of his written defense statement that PW-3 was in habit of making complaints against DESU / Police officers when “his illegal activities are checked”. If, indeed, the activities of PW-3 were illegal, then what prevented the police from taking appropriate legal action against him? Since no action was taken against PW-3 and the other electrical contractors operating outside DESU office, it is evident that there was nothing illegal about their activities.
An information was received at PS Anand Vihar recorded vide DD No.6f-A dated 30.12.95 that one Shri R.K. Verma, DESU officer had informed on telephone that some touts including V.K.Diwan were sitting outside the DESU office and were misguiding the public. On this, SI Erush Tigga went to the spot Along with Cosnt. Jagidsh. There, with the help of Const. Jag Parvesh and Parmod he brought PW-3 to the Police Station. Interestingly, the information pertains to the activities of “KUCH DALAL” i.e. “some touts especially PW-3″. It has been established that other electrical contractors were also operating on the relevant date and time, some of whom have been cited as DWs-2, 3 and 5. How is it that the police zeroed in only on PW-3 and not on other touts? Obviously, therefore touting was not the issue. Inspr. Dal Chand has stated that PW- 3 was charging more money than the other contractors and the public were not satisfied which caused ” a security risk”. Hence, PW- 3 was asked to leave. He also said that there was traffic jam. Finally, this defaulter has stated that the PW-3 misbehaved with the police staff. Inspr. Dal Chand has no explanation, and there can obviously be none, as to how a security risk is caused by an electrical contractor charging more than others. If this were so, the public would go to the other who were present there. Further, obviously the traffic jam could not have been caused by the PW-3 if he was over charging as then he would have a paucity of clients. Finally, Inspr. Dal Chand has not explained why action for obstructing the police staff in the discharge of their official duties under section 186 IPC was not taken against PW-3. The statement of defaulters SI Erush Tigga, Const. Jag Parvesh and Parmod are almost identical in this regard. None of them has been able to link PW-3 with the alleged traffic jam. While SI Erush Tigga states that PW-3 was asked to shift his place and following which he misbehaved with the police, Const. Jag Parvesh and Parmod have stated that PW-3 was asked to leave the place after which he misbehaved. Why the police asked PW-3 to leave the place and not the other electrical contractors, has not been explained by anybody. Thereafter, PW-3, was brought to the police station. This has been admitted by Inspr. Dal Chand. SI Erush Tigga, Consts. Jag Parvesh and Parmod. It is obvious, that there was no justification whatsoever for singling out PW-3 and removing him to the Police Station been e had not committed any offence. It is obvious that no illegal touting was going on because if this was happening, then DWs-2, 3 and 5 and the other electrical contractors who have not been cited as DWs, if any, should also have been rounded up.
In the police station, PW-3 was produced before Inspr. Dal Chand as has been admitted by the latter and, thereafter, on Inspr. Dal Chand’s directions was dealt with by SI Erush Tigga who also has himself admitted this. DW-1 has also stated that PW-3 was produced SI Erush Tigga to enquire into the matter. Inspr. Dal Chand has stated that PW-3 was detained for 2/3 hours byu SI Erush Tigga to verify his papers. SI Erush Tiggi has himself admitted that he took 2/3 hours to make enquiries in the police station from PW-3. DW-2 has submitted that defaulters SI Erush Tigga, Const. Jag Parvesh and Parmod took PW-3 to the police station and after 30/40 minutes the said Const. Returned. Following this, DW-2 went to the police station where he found PW-3 in the room of SI Erush Tigga where PW-3 was freed after some time. DWs-3, 4, 5, 6 & DW-7 have also stated that PW-3 was taken to the police station DW-7 has clarified that PW-3 returned after about 3.00/3.30 hours. Thereafter, it is quite clear that PW-3 was detained illegally in the police station. Inspr. Dal Chand and SI Erush Tigga themselves have admitted that PW-3 was detained illegally in the police station. Inspr. Dal Chand and SI Erush Tigga themselves have admitted that PW-3 was detained for couple of hours, I am, therefore quite inclined to believe the testimony of PW-3 that he was detained from 11.30 A.M. to 4.00 P.M. in the police station in an unauthorised and illegal manner.
What is interesting is no efforts were made by the police to identify Sh. R.K. Verma who allegedly made the Police Control Room Call which indicates that police was quite convinced that the call was bogus in nature.
A false Daily Diary entry was recorded by SI Erush Tigga No. 2873/D vide DD No. 13-A dated 30-12-95 where in he had indicated that he had gone to the spot vide DD No. 6-A dated 30-12-95 and had returned at 3.30 PM to the police station after enquiries in which he found that the papers of PW-3 were in order. The evidence on record, including the testimony of the defaulters, themselves and DWs 1 to 8 has established that PW-3 was brought to the police station and illegally detained there. it is obvious that the SI recorded a false Daily Diary entry. Recording of a false Daily Dairy entry is an extremely serious matter and vide Rule 22.50 PPR, this ordinarily should merit dismissal from service. Finally, the question arises whether illegal gratification was demanded and paid as alleged by PW-3. I am inclined to believe the testimony of PW-3 because there is no other reason to justify his having been brought to the police station and being detained for 3-4 hours. This portion of the charge is established as far as SI Erush Tigga No. 2873/D is concerned. As far as Consts. Jag Parvesh and Parmod are concerned, I am again inclined to go Along with PW-3 that they were also present in the police station and a party to the illegal detention. Otherwise, the Consts. Should have recorded their return and departure from police station which they obviously, did not do to cover their illegal activities. Further, these constables were on duty at the sport and in fact information which led to the entire gamut of events must have originated from them. PW-3 has clearly stated that both he and the other contractors reportedly paid regularly to the two constables and others. However, their demands increased, obviously due to the rush at the DESU office due to reasons above mentioned. They were clearly involved in the extortion which took place and this aspect of the charge also stands proved against them. As far as Inspr. Dal Chand is concerned, PW-3 was produced before him and he directed SI Erush Tigga to make enquiries. He has himself admitted that PW-3 was detained in the police station for 2/3 hours. Inspr. Dal Chand is clearly a party to the illegal detention. PW-3 has stated that Inspr. Cal Chand has specifically asked for his cut from the PW’s earnings. The totality of the facts and circumstances of the case and evidence on record lends credence to the allegations made. This aspect of the charge, therefore, also stands proved against the Inspr. “unquote”.”
10. He referred to his conclusions as recorded in his show cause notice stating “Quote” and “Unquote”. Having so recorded, he purported to consider the representation of the defaulter. He referred to the relevant rules and then again observed:
“I have in my show cause notice dated 9-7-97 recorded detailed reasons for my disagreeing with the conclusions of the Enquiry Officer and this show cause notice has been provided to the defaulter Along with a copy of the findings of the Enquiry Officer. This meets the requirements of Rule 16 (XII) (a) of the Delhi Police (Punishment and Appeal) Rules, 1980 in entirety and Rule 16(X) of the Delhi Police (Punishment and Appeal) Rules, 1980 is irrelevant in this context.”
11. He referred to his other findings which were there already existing in the show cause notice.
12. it is true that a disciplinary authority is entitled to disagree with the findings of the Inquiry Officer.
13. However, the while disagreeing with such findings, he must arrive at a decision in good faith. He, while disagreeing with the findings of the Inquiry Officer, was required to state his reason for such disagreement but such a decision was required to be tentative one and not a final one. A disciplinary authority a that stage could not have pre- determined the issue nor could arrive at a final finding. The records clearly suggest that he had arrived at a final conclusion and not a tentative one. He proceeded in the matter with a closed mind. An authority which proceeds in the matter of this nature with a pre-determined mind, cannot be expected to act fairly and impartially.
14. The learned tribunal in no uncertain terms has held that the disciplinary authority while imposing the punishment and while disagreeing with the findings took into consideration extraneous matters to come to the conclusion of guilt against the respondents herein. It has further been held that explanation of the respondents has not been taken into consideration.
15. In Yoginath D. Bagde (supra), it was held:
“33. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favor of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “Right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.”
16. Even otherwise, the Apex Court in K.I. Shephard and Ors. etc. etc. v. Union of India and Ors., had observed:
“16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to thin of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.”
(Emphasis supplied)
17. The disciplinary authority and the appellate authority applied the wrong legal tests in arriving at the impugned decision.
18. There was no statutory rule that the disciplinary authority was required to record his own findings on each charge, except only in case where the regulations specifically say so. As was the case in Punjab National Bank and Ors. v. Kunj Behari Misra, , it was necessary to take recourse to such proceedings. It is also not a case where the decision of Apex Court in R.R. Gabhane v. State of M.P. and Ors., could be taken recourse to wherein as regard the question of the obligation for the disciplinary authority to communicate reasons for disagreeing with the report, it was held that it was unfair to proceed against appellant without supplying him a copy.
19. Yet again, in State of Rajasthan v. M.C. Saxena, it was held that the order of imposing minor penalty cannot be faulted on the ground that before imposing penalty further opportunity of hearing should be given to the delinquent.
20. Bias or pre-judgment of guilt, it is well known, may be a ground for even quashing a charge-sheet.
21. In Khem Chand v. Union of India and Ors., , it was held:
“If the competent authority were to determine, before the chares were proved, that a particular punishment would be meted out to the Government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject-matter of the charge or, at any rate, as regards the punishment itself.”
22. It is also well known that if the expressions used in the order indicate that the competent authority had already made up its mind on the guilt of the charge framed, that would clearly vitiate the charge-sheet (See ARS Choudhury v. Union of India, and Hans Ran Gupta v. State of Punjab, 1992(1) SLR 146).
22. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors., AIR 2001 SC 24, the Apex Court, inter alia, held that a closed mind in the statements made in the charge-sheet can be inferred.
23. Furthermore, having regard to the limited jurisdiction of judicial review that this court possesses, we are of the opinion that there does not exist any illegality, irrationality or procedural impropriety in the impugned judgment of the Tribunal, and, thus, no case has been made out to interfere therewith.
24. These writ petitions are, therefore, dismissed, without any order as to costs.