ORDER
V.K. Bali, J. (Chairman)
1. By this common order, we propose to decide two connected Original Applications bearing Nos. 2479/2006 and 2482/2006 as common questions of law and facts arise therein. The Learned Counselrepresenting the parties also suggest likewise. The bare minimum facts that need to be noted have, however, been extracted from OA No. 2482/2006 in the matter of Bashisth Singh.
2. Applicant, Bashisth Singh, Welfare Officer-II, was departmentally tried on the charge that he was on anti-begging squad duty on 20.1.2000 to nab beggars; that he along with other members of the team extorted/robbed Rs. 9000/- from one Gian Chand Gupta, a retired DESU employee and after thrashing him badly threw him from running vehicle No. DL-IV-1892 near village Kapashera, New Delhi; that he misused the intervening period between 12.00 noon and 4.00 pm of the officials hours and enticed the driver, Mohan, to manipulate the route from Azadpur to Bijwasan in log book pertaining to the vehicle in their use, to cover-up the illegal, unlawful and criminal action taken to arrest Gian Chand Gupta from Sarai Rohilla as beggar, with mala fide intention; and that he along with squad member on persuasion of Superintendent, RCC, Kingsway Camp, when pursued vigorously by the relatives of the victim decided unanimously, and after returning an amount of Rs. 9000/- to his son-in-law, also apologized. Applicant Mohan was also departmentally charged on the same charges.
3. It appears that even though, the applicants were charged separately, the same enquiry officer was appointed who conducted simultaneous proceedings, and vide his separate reports communicated to the applicants through memo dated 26.10.2004, concluded that the charges stood partially proved insofar as applicant Bashisth Singh is concerned, whereas charges against applicant Mohan were held not proved. On 7.3.2005 Joint Director (Vig.) issued disagreement note, and it is the case of the applicants, without considering their representation, held the charges against them as proved. The disciplinary authority vide order dated 12.5.2005 imposed the penalty of stoppage of two increments for two years with cumulative effect upon both the applicants. Against the order aforesaid, appeal was filed but inasmuch as, the same was not decided, the applicants filed two separate Original Applications bearing Nos. 2585/2005 and 2586/2005, wherein direction was issued to the respondents on 24.11.2005 to dispose of the appeal within three months. Pursuant to the orders passed by this Tribunal, the appellate authority decided the appeal and dismissed the same vide order dated 19.9.2006. It is against these orders that the present two Applications have been filed.
4. This matter came up for hearing on 13.7.2007. The primary contention of the Learned Counselrepresenting the applicants has been noted in the order aforesaid. It was urged on behalf of the applicants that the disciplinary authority while disagreeing with the findings of the enquiry officer had relied upon the statements recorded in the preliminary enquiry, and the said authority could not disagree with the report of the enquiry officer, based upon the evidence led in the said enquiry. For the contention as mentioned above, the Learned Counselhad relied upon the decisions of the Hon’ble Supreme Court in Union of India and Ors. v. Mohd. Ibrahim [2001 Supreme Court Service Rulings 484] and Narayan Dattatraya Ramteerthankhar v. State of Maharashtra and Ors. [Supreme Court Service Rulings Vol.16, 389], and some other judgments passed by this Tribunal. The relevant part of the disagreement note recorded by the disciplinary authority reads as follows:
In the preliminary Inquiry Report Sh. A.K. Sinha District Officer has concluded that the raid party headed by Sh. Vashist Singh Welfare Officer and assisted by Sh. Hari Singh Meena, Constable in the Vehicle DL-IV-1892 driven by driver Sh. Mohan indulged in malpractice by snatching money from Sh. Gian Chand Gupta combtanant by fabricating the route of the vehicle in the log book. The Inquiry Officer has also failed to take cognizance of the original statement of Sh. Adish Jain a relative of the complainant, dated 18.2.2000 and his statement dated 8.6.2004 before the Inquiry Officer categorically stating that the money was returned to them in the office of the Supdt. (RCC) Kingsway Camp. Delhi by Sh. Vashist Singh and Ors.. Moreover, Sh. Virender Singh the then Supdt. Of RCC Kingsway Camp has also stated on 24.2.2000 that the money was returned in his presence. Inquiry Officer has also failed to take cognizance of the statement of Sh. Mohinder Singh witness who has categorical stated that vehicle No. DL-IV-1892 was there at Vivekanand Colony Sarai Rohila Delhi at 12 PM to 1 PM on 20.1.2000 the day of incident whereas no mention has been made about this place in the log book.
The dispute at that stage was as to whether reference to the statement made by Shri Adish Jain dated 8.6.2004 was already prepared and just taken on record by the enquiry officer, or that he actually appeared before the enquiry officer and got his statement recorded. Prima facie, it appeared that the statement of Adish Jain was not recorded before the enquiry officer and an already prepared statement was just let in as evidence. However, inasmuch as, from the available records a clear or definite finding could not be recorded, we directed the parties to file their respective affidavits confirming or denying as to whether the statement of Adish Jain dated 8.6.2004 was recorded in the presence of parties by the enquiry officer or that his statement was already recorded and just put on records. Respective affidavits of the parties have been filed. During the course of arguments, it is now absolutely clear that the statement of Adish Jain was recorded by the enquiry officer himself. We need not give reasons for arriving at such a conclusion, as during the course of arguments it was not seriously disputed by the Counsel representing the applicants that the statement of Adish Jain may have been recorded by the enquiry officer himself. We may, however, hasten to add that the aforesaid conclusion is arrived primarily on the basis that on the date when the statement of Adish Jain was recorded, the statement of other witness, namely, Gian Chand Gupta, was also recorded. It is not in dispute that insofar as the statement of Gian Chand Gupta is concerned, the same was recorded by the enquiry officer himself. The statement of Adish Jain is in the same handwriting as that of Gian Chand Gupta.
5. Learned Counsel representing the applicants, however, still contends that the disagreement note of the disciplinary authority came to be recorded on the basis of entire evidence recorded during the course of preliminary enquiry, but for the statement of Adish Jain, and if the disciplinary authority was to consider the statement of Adish Jain only, there was no question that it would have taken opinion other than the one taken by the enquiry officer. He also contends that the Joint Director who made the disagreement note dated 7.3.2005 was not the disciplinary authority of the applicants.
6. Shri Luthra, Learned Counselrepresenting the respondents, per contra, would, however, join issues on the points raised by the Learned Counselrepresenting the applicants, as noted above. We have already reproduced the relevant part of the disagreement note made by the disciplinary authority. Reading of the same would leave no manner of doubt that the disciplinary authority based its opinion on the entire evidence, but for the statement of Adish Jain which was recorded during preliminary enquiry. We would not take upon ourselves the task of determining as to whether on the basis of the statement of Adish Jain alone a view different than the one taken by the enquiry officer could be taken. This exercise, necessarily, is in the realm of appreciating evidence, which, in our view, should be left to be taken by the concerned authorities in the first instance. Inasmuch as, the disciplinary authority has taken into consideration extraneous material, as surely, and as per settled proposition of law, the evidence recorded during the preliminary enquiry could not be taken into consideration for returning a finding of guilt against a delinquent, there is no choice with this Tribunal but for setting aside the disagreement note dated 7.3.2005 made by the disciplinary authority. Inasmuch as, the orders passed by the appellate authority are also based upon the findings returned by the disciplinary authority and upon the same evidence as relied upon by him, the said orders also have to be set aside. We also find considerable merit in the contention of the Learned Counselrepresenting the applicants that the disciplinary authority of the applicants was Director, Social Welfare, whereas disagreement note has been prepared by Joint Director (Vig.). All that Shri Luthra, Learned Counselfor the respondents, has urged during the course of arguments is that the reading of the order would show that the Joint Director (Vig.) was asked to prepare the disagreement note on the asking or instructions of the disciplinary authority, i.e., Director, Social Welfare, who was indeed the competent authority. This course, in our view, is not permissible. If the disagreement note had to be prepared by Director, Social Welfare, he could not authorize Joint Director (Vig.) to do the same.
7. For the reasons as mentioned above, we set aside the disagreement note dated 7.3.2005 prepared by Joint Director (Vig.), order dated 12.5.2005 passed by the disciplinary authority punishing the applicants, as also the order of the appellate authority dated 19.9.2006, and remit the matter to the disciplinary authority for proceeding in the matter from the stage of submission of report by the enquiry officer. We are sanguine that inasmuch as, the disciplinary proceedings commenced against the applicants way back in 2001, the exercise as ordained by us shall be taken to its logical ends as expeditiously as possible and preferably within a period of six months from today. There shall, however, be no order as to costs.