Vikas Budhwar, J
1. Heard Sri Ashok Khare learned Senior Counsel assisted by Sri Siddharth Khare learned counsel for the petitioner and Sri Anand Tiwari learned counsel for the respondents.
2. Briefly stated facts shorn of unnecessary details as worded in the writ petition are that pursuant to the selections conducted by the Indian Oil Corporation Ltd., Indian Oil Bhawan G-9 Ali Yavar Jung Marg, Bandra (East), Mumbai, Maharatna (in short respondent Corporation) under the financial aegis of the Union of India, Ministry of Petroleum and Natural Gas, the petitioner was selected as a Steno/Typist and was accorded appointment on 15.03.1999. It is further the case of the writ petitioner that the writ petitioner was promoted on 30.07.2012 as Sales Officer and was posted at Azamgarh and subsequently on 05.05.2014 he was transferred from Azamgarh to Mathura Terminal “A” as Operation Officer and he assumed the charge on the said date in Bitumen Plant in Mathura.
3. According to the writ petitioner while he was posted as Operation Officer BDFP, Mathura Emp. No. 30090 on “B” shift duty in the plant on 13.02.2015 from 2:00 P.M. To 10:00 P.M., he after completing his duty hours on the said date at 10:00 P.M. along with the Security Supervisor sealed the locks of the gates as per the rules, however, it is alleged that a theft took place of 184 drums containing Bitumen and the matter was reported in the morning on 14.02.2015.
4. It is further the case of the writ petitioner that on 17.02.2015 the writ petitioner along with Amrit Lal Gupta, Operation Officer, Dipanjan Barai, Plant Incharge and Girija Shankar, Deputy General Manager were called at Police Station, Mathura Refinery , Mathura and the writ petitioner was put to third degree torture and signatures of the writ petitioner were taken on a blank sheet against his wishes and he was arrested formally on 18.02.2015 in Case Crime No. 110 of 2015 under Section 380, 381, 411, 120B I.P.C. P.S. Refinery Mathura and thereafter the writ petitioner was languished in jail. Ultimately the Courts came in his rescue and he was released from judicial custody on 04.08.2015. The criminal trial is going on before the Judicial Magistrate, Mathura in Case Crime No. 667 of 2015.
5. Alleging, indulging in an act which led to theft of corporation's property from the premises entailing financial loss and tarnishing the image of the corporation, in exercise of the provisions under Rule 26, sub-rule 1(a) of the Conduct, Discipline and Appeal Rules, 1980 of the Indian Oil Corporation the writ petitioner was placed under suspension on 18.02.2015 by the third respondent, General Manager, Incharge, U.P.S.O. II, Indian Oil Corporation Ltd, Indian Oil Bhawan, E-8, Sector 1, NOIDA, Gautam Buddh Nagar. As per the records on 07.08.2015 the ED U.P. SO-II Competent and Disciplinary Authority thereafter reviewed the suspension while continuing the suspension which has already been made with effect from 18.02.2015. A charge sheet was issued to the writ petitioner on 31.08.2015 containing as many as two charges relatable to the allegation that while he was posted as Operation Officer from May, 2014 till February, 2015 at BDFP, Mathura on “B” shift duty at the plant on 13.02.2015 as per the standard procedure upon closure of “B” shift, required to close the gates with key under his custody and also seal the gate with unique number plastic seals and paper seal under signature is required to be posted on the key-whole over the locks containing signature of “B” shift officer as well as security supervisor on duty and keys of the locks was supposed to be retained with the outgoing officer and in the morning “A” shift officer is required to check lock paper seal lock and unique number, plastic seal on the gate with record of provision of the same by night shift officer and open the lock with the key available with him but the writ petitioner violated the said standard procedure and handed over the main gate key to Sri Bhagwan Singh Security Supervisor after conclusion of “B” shift duty on 13.02.2015 and he collected the keys from Bhagwan Singh afterwards. As regard the second statement of imputation in the shape of the charge No. 2 it is alleged that CCTV footage of Cam 05 located near CRMB zone shows unwarranted entry and exit of two trucks on 14.02.2015 morning hours between 00:18 hours and 2:18:19 hours establishing unwarranted movement of trucks within the plant premises on the early morning hours of 14.02.2015 and it was also observed that other CCTV cameras were also disturbed with their direction facing upward to ensure that no recording of ground movement could have seen. On account of the said acts and omissions 184 numbers of filled drums containing Bitumen were stolen. The said charge also depicts that the writ petitioner made a confession to the Police on 17.02.2015 in the presence of Sri Girja Shankar DGM (RC), Mathura, Sri Dipanjan Barai, Plant Incharge, BDFP, Mathura and Sri Amrit Lal Gupta AM (RC) of handing over the keys to Sri Bhagwan Singh Security Supervisor BDFP, Mathura and collecting the same from him, which even otherwise shows that the petitioner had admitted his guilt by means of the confession.
6. In order to bring home the charges as many as 9 documents were exhibited and the prosecution produced (a) Sri Girija Shankar, DGM (RC), Mathura; (b) Sri Amrit Lal Gupta, AM (RC), BDFP, Mathura; (c) Sri Dipanjan Barai Deputy MGR (ENGG), Durgapur DO; (d) any other witness considered necessary during the inquiry proceedings.
7. Petitioner claims to have been shocked and surprised to receive for charge memo, tendered his reply/objection on the same on 27.09.2015 denying the allegations contained in the charge sheet dated 31.08.2015 coming up with stand that the writ petitioner is innocent and the charges so sought to be levelled upon him had no leg to stand and he has not committed misconduct. In the said reply it was also stated that the writ petitioner at no point of time had handed over the keys to Sri Bhagwan Singh, Security Supervisor and since other employees of the corporation were also having keys of the depot in question, thus, the theft, if any, might have been occurred due to their fault and he had not manipulated the CCTV Camera so as to mask the alleged activity of commission of theft and also specifically denied that he had at no point of time made a confession before the Police Authorities in the presence of prosecution witness that he handed over the key and he was negligent and he had committed the said misconduct.
8. Consequent to the service of charge sheet and submission of the reply by the writ petitioner denying the charges the Competent Disciplinary Authority appointed one Sri Shailesh Kumar Singh, the then Chief Terminal Manager, Agra (TOP) as Inquiry Officer (IO) and Sri Gaurav Gupta Deputy Mgr (P), Mathura BP as presenting officer.
9. The inquiry officer proceeded with the inquiry while fixing number of dates. The Inquiry Officer after conducting the inquiry tendered his report before the competent disciplinary authority on 20.05.2016 holding that charge Nos. 1 and 2 being partly proved.
10. On 13.06.2016 the General Manager/IC U.P.S.O. II Competent Disciplinary Authority, third respondent issued a disagreement note containing the reasons for disagreement putting the writ petitioner to notice to submit its objection against the same. The writ petitioner claims to have submitted his writing representation/objection against disagreement note dated 13.06.2016 on 20.07.2016.
11. The third respondent General Manager, Incharge, U.P.S.O. II, Indian Oil Corporation Ltd, Indian Oil Bhawan, E-8, Sector 1, NOIDA, Gautam Buddh Nagar thereafter proceeded to pass an order dated 01.08.2016, whereby the punishment of dismissal was imposed upon the writ petitioner.
12. The writ petitioner being aggrieved against the same preferred a statutory appeal on 04.10.2016 before the Appellate Authority, second respondent Executive Director Incharge (Supplies), Indian Oil Corporation Ltd., Indian Oil Bhawan G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai which came to be rejected by the second respondent, Executive Director Incharge (Supplies), Indian Oil Corporation Ltd., Indian Oil Bhawan G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai on 02.12.2016.
13. Questioning the orders dated 01.08.2016 passed by the third respondent General Manager, Incharge, U.P.S.O. II, Indian Oil Corporation Ltd, Indian Oil Bhawan, E-8, Sector 1, NOIDA, Gautam Buddh Nagar, dismissing the writ petitioner from service as well as the order dated 02.12.2016 passed by the second respondent Executive Director Incharge (Supplies), Indian Oil Corporation Ltd., Indian Oil Bhawan G-9, Ali Yavar Jung Marg, Bandra (East) rejecting the appeal the writ petitioner has filed the present writ petition and has further sought a direction to the respondents to permit the writ petitioner to continue in service while reinstating with full benefits.
14. This Court entertained the writ petitioner on 22.12.2016 requiring the respondents herein to file their response.
15. A counter affidavit has been filed on behalf of respondents No. 1 to 4 sworn on 07.10.2021 by the Senior Manager (Employee Relations) Indian Oil Corporation Ltd. to which the writ petitioner has filed his rejoinder affidavit also. A supplementary affidavit has also been filed by the writ petitioner which is on record.
16. Before embarking an inquiry upon the arguments advanced by the rival parties with relation to the legality and validity of the orders impugned in the writ petition it would be apposite to notice not only the statutory provisions but also the contents of charge memorandum, reply as well as finding recorded by the Disciplinary and the Appellate Authorities (Relevant Extracts).-
Statement of the imputation of charges against Sri Ram Krishna Yadav (petitioner) dated 31.08.2015:
Ref. No.: IR/R(30090)
Statement of the imputation in support of the Articles of Charge framed in respect of Shri Ram Krishna Yadav, Emp No. 30090, Operations Officer, BDFP, Mathura (under suspension).
It is alleged that Shri Ram Krishna Yadav, Emp No. 30090 while posted as Operations Officer, from May 2014 till February 2015 at BDFP, Mathura, committed the following acts of omission and commission. The imputations are narrated below:
1. That Shri Ram Krishna Yadav, Emp No. 30090, Operations Officer, BDFP Mathura was on 'B' shift duty at the plant on 13.02.2015. As per standard procedure upon closure of 'B' shift the officer on duty is required to close the gates with key under his custody and also seal the gate with unique number plastic seals. Paper seal under signature is also required to be pasted on the keyhole cover of the locks, containing signature of "B" shift officer as well as the Security Supervisor on duty. Keys of the locks were supposed to be retained with the outgoing officer. In the morning 'A' shift officer is required to check lock, paper seal on lock, and unique no. plastic seal on gate with record of provision of the same by night shift officer and open the lock with the key available with him.
However, Shri Ram Krishna Yadav violated the standard procedure and handed over the keys of the main gate to the Shri Bhagwan Singh, Security Supervisor after conclusion of his "B" shift duty on 13.02.2015. He collected the keys from Shri Bhagwan Singh afterwards.
Thus Shri Ram Krishna Yadav had violated the standard procedure in handling the keys of the main gate of the plant.
2. That CCTV footage of CAM 05 located near CRMB shows unwarranted entry and exit of two trucks on 14.02.2015 morning hours between 00.18 hours and 02:18:19 hrs establishing unwarranted movement of trucks within the plant premises on the early morning hours of 14.02.2015. It was also observed that the other CCTV cameras of the plant were also disturbed with their directions facing upwards to ensure that no recording of the ground movement could be seen. Upon taking inventory of the plant on the evening of 14.02.2015 it was observed that there was a shortage of 184 nos. of drums.
The sequence of events establishes the fact that the act of handing over the keys by Shri Ram Krishna Yadav to the Security Supervisor before leaving the plant on the closure of 'B' shift had resulted in the theft of around 184 nos of filled bitumen drums from the plant on the night of 13.02.2015/14.02.2015. It also points to involvement of Shri Ram Krishna Yadav in the alleged theft of 184 nos of filled drums from the BDFP Plant on the night of 13/14.02.2015. The news clippings appearing in the news daily also points out to the fact that Shri Ram Krishna Yadav was also involved in the alleged theft.
Further, Shri Ram Krishna Yadav had made a confession to the police on 17.02.2015 in presence of Shri Girija Shankar, DGM(RC),Mathura, Shri Dipanajan Barai, Plant Manager, BDFP Mathura and Shri Amrit Lal Gupta, AM(RC), Mathura of handing over the keys to Shri Bhagwan Singh, Security Supervisor before leaving BDFP Mathura and collecting the same from him afterwards.
The confession made by Shri Rám Krishna Yadav of handing over the keys without following due procedure coupled with the sequence of events which includes tampering with the CCTV cameras, unwarranted movement of trucks within the premises in the night/morning of 13/14.02.2015 indicates connivance of Shri Ram Krishna Yadav in the alleged theft of around 184 filled bitumen drums from the plant thereby resulting in loss to the property of the Corporation.
Thus Shri Ram Krishna Yadav handed over the keys which are in violation of the standard procedure with an ulterior motive thereby resulting in theft of around 184 nos of filled bitumen drums from the plant on the night of 13.02.2015 which has led to loss to the property of the Corporation. Further, the CCTV cameras of the plant were also disturbed to ensure that no recording of the ground movement could be seen.”
List of documents in the form of the exhibit proposed to be relied upon by the prosecution:
1. Report on physical inventory of Drums done on 14.02.2015.
2.Statement dated 11.08.2015 of Sri Girija Shankar, DGM (RC), Mathura.
3. Statement dated 11.08.2015 of Sri Amrit Lal Gupta, AM (RC), BDFP, Mathura.
4. Investigation Report ref. MRT/Theft dated 16.02.2015.
5. Attendance Register for the month of February, 2015.
6. Letter ref. Nil dated 15.02.2015 addressed to Police Incharge, Police Station, Mathura Refinery.
7. Police charge sheet No. 80/2015 dated 12.04.2015.
8.CCTV footage from CAM 5.
9. Any other document/s considered necessary during the course of departmental inquiry proceedings.
List of witnesses relied upon by the prosecution:
(a) Sri Girija Shankar, DGM (RC), Mathura;
(b) Sri Amrit Lal Gupta, AM (RC), BDFP, Mathura;
(c) Sri Dipanjan Barai Deputy MGR (ENGG), Durgapur DO;
(d) any other witness considered necessary during the inquiry proceedings.
Reply of the petitioner dated 27.09.2015 to the charge sheet dated 31.08.2015:
REPLY OF ALLEGATION NO. 1
This is to confirm you that I had ensured proper locking of both the Main Gates (In/Out) which was properly recorded in the Seal Book and seals bearing unique plastic Seal No. 5401662 (Big/Main Gate No.1) and seal No. 5401695 (Big/Main Gate No.2) as well as Paper Seal was properly done on both the Gates before I had left the premises on 13/02/2015. This is to further confirm that I did not hand over the keys available with me to Shri Bhagwan Singh, Security Supervisor and I also did not have any relationship to him. It may also kindly be noted that keys were available with other officers also in addition to the copy of Master Keys for opening and closing these locks.
REPLY OF ALLEGATION NO. 2
I was deployed in “B” shift and my duty was 22:00 hours only on 12.02.2015 therefore, I am not in a position to comments on the movements of Trucks between 00:18 hours and 2:18:19 hours. Sir, the BDF Plant is having a provision of CCTV Cameras so it can be clearly seen with the help of footage of other Cameras that I did not indulge in disturbing the position of the Cameras.
This is to also confirm that I do not have any knowledge of disturbing the position of the Cameras at all and how the same was done. I did participate in the physical Inventory of the drums but theoretical availability was recorded based on the inventory available with other officers of the Plant. Physical Inventory commenced at about 23:00 hours on 14.02.2015 and continued till next day early morning i.e. 15.02.2015 at 2:00 hours.
I have already mentioned that I have not handed over the keys to the Security Supervisor, It is further stated that I have no contribution towards news clippings.
I was badly beaten by the Police including application of electric shock to ensure forceful confession from me. I shall be reiterating the truth of not handing over the keys before the Hon'ble Court in due course including torture by the Police to get confession under extreme torture, threat and electric shock.
I have already confirmed that I did not give the keys to Security Supervisor and did not indulge in tampering with CCTV cameras and I am not in a position to comments of the Trucks in the night/morning of 13/14.02.2015 as because I had already left the Bitumen Plant at 22:00 hours.
It is also to convey you that BDFP was under watch and ward of security personnel under "C" shift i.e. 22:00 hours to 06:00 hours am. No employee of the Corporation was available during night/"C" shift of the Plant. I was not on the duty at that time and hence all the charges served upon me are based on speculation, make me a scape-goat and forceful confession obtained by Police.
Sir, I would like to inform you that I have never been involved/indulged in any unlawful activities for more than 15 years of my service in the Corporation. I have always followed the highest level of moral standards along with Integrity, Dignity and devotion to the duties, followed orders/instructions word by word with responsibilities and accountabilities. Sir, I have also worked with highest level of authorities at State Office level and keeping the records of very sensitive nature/confidential along with keys of Almirah but there has not been any single such instance of allegation.
I may humbly request you to be exonerate from all the charges and kindly may also revoke my suspension.
Relevant extract of the inquiry proceedings dated 15.12.2015:
Examination-in-chief of P.W. 1 Sri Giriji Shankar, DGM (CR), Mathura by Presenting Officer:
Q 10: Were you called at Mathura Refinery Police Station on 17.02.2015? what happened there?
A10: Four persons from BDFP Plant/DGM (RC), Mathura office were called in Mathura Police Station Refinery on 17.02.2015. Myself, Sh. Dipanjan Barai then PM BDFP, Mathura, Sh. Girija Shankar DGM (RC), Mathura and Sh. Ram Krishna Yadav (CSE) Ops Officer, BDFP, Mathura, SSP Mathura was present in Mathura Refinery Police Station at that time Sh. Bhagwan Singh security supervisor was already present there, SSP Mathura asked us to introduce ourselves, CSE and Security Supervisor were taken for questioning by Police.
When CSE returned he accepted in front of DGM (RC), Mathura, myself and Sri Dipanjan Barai gave the key of main gate to security supervisor on 13.02.2015 night.
Q 11: Did CSE accept his involvement in front of the Police regarding the theft that took place of 184 number of bitumen drums that took place at BDFP, Mathura in the night of 13.02.2015 and morning of 14.02.2015?
A 11: Yes, he confessed he was involved in the theft in BDFP, Mathura on 13.02.2015 night and that he had handed over the keys of the main gate to security supervisor Sh. Bhagwan Singh on 13.02.2015 night in front of Police, myself Sh. Dipanjan Barai and Girija Shankar.
Cross examination of P.W. 1, Girja Shankar DGM (RC), Mathura dated 15.12.2015.
Q 5: Was any manhandling done of Police while questioning CSE in front of you?
A5: No man handling was done but CSE was questioned in threatening language.
Q 6: Do you remember what Police asked the CSE?
A 6: No, I don’t remember exactly.
Q 7: When CSE was taken away by the Police for some time and when he returned did he appear to you he had been man handled?
A 7: I do not know exactly what happened inside but he came out weeping.
Q 8: When verbal confession was obtained from CSE Police in front of you after CSE came out from inside was any manhandling done?
A 8: No manhandling was done but in order to threatening language was used.
Examination-in-chief of P.W. 2 Sri Amrit Lal Gupta AM (RC) BDFP, Mathura dated 18.01.2016.
Q 7: Were you called at Mathura Refinery Police Station on 17.02.2015? What happened there?
A 7: Yes, I received a call from DGM (RC) on 17.02.2015 morning to report to Mathura Refinery Police Station as he received a call from Mathura Refinery Police Station. I along with DGM (RC) Mathura and Amrit Lal Gupta, AM (RC) reported at Mathura Refinery Police Station around 11:00 hours CSE reached there after 10-15 mins.
P.W. 2: Examination-in-chief of P.W. 2 dated 18.01.2016
Q 4: Did any Police official other than SSP also interrogated CSE inside Police Station?
A 4: Other senior officials were also present but mainly SSP, Mathura was interrogating with us.
Q 5: Was CSE taken away for some time for interrogation within the Police Station?
A 5: Yes, he was taken away out of the cabin of 2-3 minutes.
Relevant extract of the inquiry report dated 20.05.2016.-
“Indian Oil Corporation Limited
(Marketing Division)
Ref: EO/SKS/2015-16/RKY/30090
Subject: Enquiry Officer's Report on Disciplinary Enquiry against shri Ram Krishna, Employee No. 30090, 00 U/S, Mathura Terminal A, Charge sheet reference: IR/R(30090) dtd 31.08.2015.
DE in his summing up report has also submitted that CSE was tortured and confession was extracted from him by police under duress which has been denied by CSE, which is yet to pass the judicial scrutiny, does not prove the involvement of CSE.
All the witnesses presented by the PO confirmed confession by the CSE in Mathura Refinery Police Station in their presence of handing over the keys to the Security Supervisor, Shri Bhagwan Singh on 13.02.205 by the CSE. They also confirmed in their deposition that the CSE was taken away from the room, where they were sitting together in front of Police officials, for some time and after returning the CSE confessed the handing over of the keys. PW1 in his deposition has confirmed in cross examination that the CSE came out weeping. The question and answer is reproduced below:
Q7: When CSE was taken away by the police for some time and when he returned did it appear to you he was manhandled?
A7: I don't know exactly what happened inside but he came out weeping.
Hence after examining the exhibits and deposition by the witnesses the charge is only partially” proved.”
Charge No. 2:
“Tilting of camera was done in the night of 13-14.02.2015 is also conclusively proved through the recordings and analysis of CCTV footage. At least two of them (CAM 27 and CAM 31) were tilted when the SCE was present in the BDFP plant. Since theft took place on the same night hence the position of cameras was disturbed so that ground movement could not be recorded. Hence this charge no. 2 is also partially proved.
Conclusion: In view of the facts presented through exhibits, deposition of witnesses and findings and conclusion against each charge, it is concluded that both the charges leveled against the CSE has been partially established.”
Relevant extract of the disagreement note dated 13.06.2016:
“1. Shri Amrit Lal Gupta, AM(T), Mathura Terminal(PW-1), Shri Dipankan Barai, the then BDFP. incharge now Dy.Manager(Engg), Durgapur BP(PW-2) and Shri Girija Shankar, DGM(RC), Mathura (PW-3) have clearly stated that they were present in the police station when Shri Ram Krishna Yadav had admitted of handing over the keys to Shri Bhagwan Singh, Security Supervisor on 13.02.2015. All three have confirmed that Shri Ram Krishna was taken away from the room and after returning he had confessed to handing over the keys of the main gate to the security supervisor Shri Bhagwan Singh on 13.02.2015.
Shri Ram Krishna in his defense has said that he was tortured and confession was extracted from him by police under duress. In his deposition dated 21.03.2016 be has inter alia stated that "The SSP told me that he is not saying correct and asked the SHO and other policeman to take me inside another room. When I reached there they removed my clothes and started beating me with stick and "patta"(a type of belt), they continued to beat me for 15-20 mins. When I got unconscious they sprinkled water on. my face and then gave me tea to drink. After drinking tea they asked me to tell correct version of the incident, when I repeatedly told that I am not involved in the incident and I do not know who is involved then they used electric shock on my private parts. After that they took me back to SSP. SSP again asked me to tell the correct version. SSP Mathura also told me that other officials of Indian Oil sitting in the room are not lying and you tell the truth/correct version. After that SHO and CO started to beat me in front of everyone. After that I told SSP that I am not involved in the theft but in order to avoid further torture I told her to write whatever she wants. Then one policeman came with a piece of blank paper and took my signature on it.
The version of Shri Ram Krishna Yadav that he was tortured has not been corroborated by the prosecution witnesses. In this regard PW1 in his deposition has confirmed that when CSE returned to the room he was weeping. In response to Q8 whether any manhandling was done PW-1 had deposed that "no manhandling was done but threatening language was used".
Representation of the writ petitioner dated 20.07.2016 to the disagreement note dated 20.05.2016:
“This particular fact/alleged confession cannot be treated true due to the following reasons:-
(a) the CSE denied any such purporting confession of handing over keys to Security Supervisor, Shri Bhagwan Singh.
(b) The CSE was tortured by the Police, it is a well proved fact.
(c) The alleged purporting confession in Mathura Refinery Police Station is nothing but a concocted story of PW-1, PW-2 and PW-3 and other management officials of RC/BDFP, Mathura Refinery which has no factual or legal footing as per Evidence Act.”
Order dated 01.08.2016 dismissing the writ petitioner from service passed by the Competent Disciplinary Authority:
“Having applied my mind, and taking into consideration the fact and circumstances as brought out on records, I agree with the findings of the Enquiry Officer and find you guilty of the following acts of misconduct:-
7(1) Theft, fraud or dishonesty in connection with the business or property of the Corporation
7(5) Acting in a manner prejudicial to the interests of the Corporation
7(9) Neglect of work or negligence in the performance of duty
7(10) Causing damage to any property of the Corporation either willfully or through negligence
Taking into consideration the gravity of the act of misconduct proved against you, I hereby inflict upon you the penalty of “Dismissal” as a measure of disciplinary action.
You are further informed that as per provision contained in Rule 38 of the Conduct, Discipline & Appeal Rules, 1980 of the Corporation, you may, if you so desires, prefer an appeal against the order of penalty within 60 days from the date of receipt of this order. The appeal may be addressed to the Appellate Authority through the undersigned.”
Memo of Appeal dated 04.10.2016:
ARGUMENTS IN APPEAL:-
A (I) That I (CSE/Appellant) denied any such purporting confession of handing over the keys to Security Supervisor, Shri Bhagwan Singh or any other security persons.
ii) That I (CSE/Appellant) was tortured by the Police, it is a well proved fact.
Iii) That I (CSE/Appellant) denied all the Charges fully during proceedings.
D (ii) As the prosecution/management witnesses are also telling a lie and fabricated statements that alleged confession was made by me (CSE/Appellant). Whereas, P.W.-3 in his cross examination on 02.03.2016 Q2 & A2: said “……. but Security Supervisor Sh. Bhagwan Singh confessed in the Police Station in front of all officers of IOCL present there...”
(iii) Moverover, the alleged confession by these witnesses was concocted story and against the documentary evidence. The PO/management was bound to produce recorded alleged/purported confessional statement during the proceedings but failed to produce the same and hence, no penalty/punishment can be awarded on the basis of any such oral evidence/statements against the documentary evidence.
(iv) It means and proves that on 17.02.2015 no confession/alleged confession/confession statements was made as alleged by above three prosecution/management witnesses.
M (i) Unauthentic and selective video footage of only two/three cameras were shown by PO out of 34 CCTV cameras installed in Bitumen Plant as per PE-7. But only two or three video footage contains CD shown in proceedings and other footage categorically had not been shown during enquiry as more footage had been hidden due to some vested interest of said witnesses. No officer who was monitoring CCTV cameras/their maintenance was produced for his observation/cross examination, which itself a doubtful/suspicion. No conclusion could be drawn on the basis of such CCTV footage nor may it be treated as evidence in the proceedings.
(ii) CCTV footage which was presented as evidence has not been compared with the original nor a certificate of original/authenticity has been produced by PO/Management during departmental inquiry. Moreover, such footage neither could prove anything nor did it have any evidentiary value.
(iii) It is not possible for a prudent person that when he was present in a room then he could not see the activities outside any away from the room. Neither a person can see behind his back nor can do anything.”
Appellate Order dated 02.12.2016:
“8) With regard to your contentions in your appeal, I find that :
i Inquiry proceedings were held on 02.11.2015, 26.11.2015, 15.12.2015, 18.01.2016, 02.03.2016 and 21.03.2016.
ii 3 Management Witnesses and 11 prosecution exhibits i.e. PW 1 to PW 3 and PE 1 to PE 11 were produced during the Inquiry proceedings.
Iii Defense has presented DW1 as witness and DE1 as defense exhibit.
iv The inquiry has been held as per Rule 31 of the CDA Rules, 1980 and in compliance to natural justice.
v. After denial of the charges by you, the facility of defending was provided to you and you chose Shri Asim Tiwari, CM (RS), UPSO II as your Defending Employee.
vi. Inquiry was held in your presence and in the presence of DE including submission of evidences and adducing witnesses. Examination and cross examination of all witnesses were held.
Vii. The requested documents were made available to you during the inquiry held on 15.12.2015.
viii All 3 Management Witnesses adduced in the inquiry proceedings have mentioned that you had confessed to the Investigation Officer in the Police Station in front of them that after closure of B shift on 13.02.2015, you handed over the keys of the Main Gate of BDFP Mathura to Shri Bhagwan Singh, the Security Supervisor and that Shri Bahgwan Singh returned the keys to you next day early morning somewhere near Mathura Refinery Township.
ix During cross examination of the 3 Management Witnesses nothing has come on record to refute the evidence adduced by the said witnesses.
x. During the inquiry held on 21.03.2016, to a question of Inquiry Officer (IO) to Defending Employee (DE), DE has mentioned that "I do not have any other witnesses and with above I conclude my presentation".
xi. Further to a question of IO to you, you have mentioned that “I would like to say that I am not involved in this incidence and the charges against me are not correct. Hence I request you for justice". Thereafter IO advised to submit Summing Up and accordingly PO and you/DE submitted Summing UP.
Xii. CDA while taking a view on the findings of the Inquiry Officer by a detailed order has differed with the findings of the Inquiry Officer which was furnished to you for submitting your written representation.
Xiii. The CDA vide final order dated 01.08.2016 has passed a reasoned speaking order and inflicted the penalty of 'Dismissal' upon you.
I have applied my mind and I find that you have not brought out any new facts/ circumstances in your Appeal dated 04.10.2016, which may warrant my interference with the Final Order of the CDA dated 01.08.2016. Further the penalty of "Dismissal" is found to be just and proportionate to the proved acts of misconduct committed by you. Accordingly, I hereby reject your appeal.”
Rule 26 of the Conduct, Discipline and Appeal Rules, 1980:
Rule 26 Suspension
(1) The Disciplinary Authority or any other authority empowered in that behalf by the Management by general or special order may place an employee under suspension.-
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(b) where a case against him in respect of any criminal offence is under investigation or trial.
(2) An employee who is detained in police custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Disciplinary Authority, and shall remain under suspension until further orders.
(3) Where a penalty of dismissal or removal from service imposed upon an employee under suspension is set aside on appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders.
(4) Where a penalty of dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequences of or by a decision of a Court of law and the disciplinary authority, on consideration of the circumstances of the case, decides to hold a further enquiry against him on the allegation on which the penalty of dismissal or removal was originally imposed, the employee shall be deemed to have been placed under suspension by the Disciplinary Authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders.”
17. Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare appearing for the writ petitioner submits that the orders dated 01.08.2016 passed by the third respondent as well as the order dated 01.12.2016 passed by the second respondent imposing the punishment of dismissal and rejecting the appeal are un-sustainable in the eyes of law. Elaborating the said submission it has been sought to be argued that the entire chain of events disclosed that an allegation has been levelled that on account of the certain acts and omissions being the alleged to have done on 13.02.2015 while the writ petitioner was posted as Operation Officer, BDFP, Mathura on 13.02.2015 when he was on “B” shift duty he against the prevalent norms handed over the key of the main gate to Sri Bhagwan Singh Security Supervisor and collected the same even otherwise on account whereof 184 numbers of drums of bitumen were stolen which not only caused financial loss but also tarnished the image of the corporation. According to the learned counsel for the writ petitioner the said theft was reported in the morning of 14.02.2015 and on 17.02.2015 the petitioner along with P.W. 1 Sri Girja Shankar DGM (CR), P.W. 2 Sri Amrit Lal Gupta AM (CR) BDFP, Mathura and P.W. 3 Deputy Manager were called at Police Station, Mathura Refinery Mathura wherein the writ petitioner was put to third degree torture and signatures were taken on blank sheet and he was formally arrested on 18.02.2015 and he was accorded bail on 31.07.2015 released from judicial custody on 04.08.2015.
18. The submission is that the entire charge sheet proceeds upon the alleged confession made by the writ petitioner before the police authorities in the concerned Police Station in the presence of P.W. 1, P.W. 2 and P.W. 3, however, the truth is that he has not confessed his guilt of committing the said misconduct or offences and the entire story was cooked up is nothing but bundle of lies just in order to slap the writ petitioner with criminal and disciplinary proceedings while ousting him from duty.
19. In a nutshell, learned Senior Counsel for the writ petitioner submits that had the writ petitioner made any confession about the handing over the keys against the norms as prevalent therein to Sri Bhagwan Singh, Security Supervisor and manipulated with the CCTV then it ought to be reduced in writing as confession cannot partake the character of an admissible evidence or give a hand to the prosecution to hold the writ petitioner guilty until and unless it is not only corroborated but surrounding circumstances also clearly point out towards the same.
20. Sri Khare further submits that the very basis of framing of the charges against the writ petitioner is the confessional statement and the three prosecution witnesses have come up with the case that the writ petitioner confessed his crime on 17.02.2015 with relation to any incident dated 13.02.2015 in the Police Station in the presence of the Police Officers and the prosecution witness. Sri Khare has further invited the attention of the Court towards the examination-in-chief of P.W. 1 Girja Shankar DGM (RC), Mathura dated 15.12.2015 being question No. 10 in which the P.W. 1 had deposed that the writ petitioner had accepted in front of the prosecution witness that he had given key of the main gate to Security Supervisor on 13.02.2015, he further submits that in the cross examination of the P.W. 1 (Girja Shankar) in reply to question No. 5 the P.W. 1 had replied that though no manhandling was done but the writ petitioner was questioned in threatening language. Even the said stand has come in the deposition of P.W. 1 in reply to question No. 8. Sri Khare has also invited the attention of the Court towards the cross examination of P.W. 1 Girja Shankar in relation to the answer of question No. 7 wherein the P.W. 1 had deposed that though he did not exactly know what happened inside the cabin where interrogation was done but the charge sheeted employee (writ petitioner) came out weeping.
21. The argument advanced by the learned counsel for the writ petitioner is that had there been a confessional statement then it ought to have been made one of the exhibits and the part and parcel of the charge sheet so as to bring home the charges and once the basic document on whose base the entire allegations have been levelled and structured is non-existent then the charges cannot be said to be proved against the writ petitioner.
22. It has also been emphasized by Sri Khare that even once the prosecution witnesses have come up with stand that threat had been administered to the charge sheeted employee and he came out weeping and the interrogation was done by the Senior Superintendent of Police in the presence of the prosecution witness and other Police officials then the said circumstances clearly show that the confession, if any, could not be a voluntary confession as the same by all probabilities and possibilities is a force confession under duress and the same cannot be a ground to hold the writ petitioner guilty.
23. As regards the manipulation of the CCTV camera so as to mask the said incident is concerned the writ petitioner submits that he had been right from the very beginning asking for the original CCTV footage which is to be verified and certified but in absence of any certification it cannot be said that the writ petitioner is guilty particularly when the keys of the depot in question was with other employee or staff of the corporation.
24. Sri Khare has relied upon the judgment in the case of Roop Singh Negi Vs. PNB & Another 2009 (2) SCC 570 and the judgment of Bombay High Court in Yaswant Redkar Vs. Hindustan Petroleum Ltd. reported in 1998(3) Bom. CR 743 The learned Senior Counsel for the writ petitioner further submits that the inquiry report dated 28.05.2016 though it holds the writ petitioner partially guilty of both the charges, however, the said inquiry is bereft of any reasons in coming to the conclusion as to how the charges stood partially proved against the writ petitioner. Consequent to the receipt of disagreement note on 13.06.2016 of the Disciplinary Authority, the writ petitioner tendered his objection on 20.07.2016 point by point on each issues while giving not only detailed reasons that the charges were not proved but the Disciplinary Authority by virtue of order dated 01.08.2016 has rejected the objection of the writ petitioner and has proceeded to pass the dismissal order without recording any reasons in coming to the conclusion while passing a cryptic order. Against the order of dismissal the writ petitioner preferred a statutory appeal on 14.10.2016 taking all the grounds demonstrating that none of the charges stood proved, the same has been rejected by totally a non-speaking and reasoned order and, thus, according to the learned Senior Counsel the presence of the word “to consider” implies that the Appellate Authorities are enjoined to pass a reasoned and speaking order while applying his mind. Reliance has been placed upon the judgments of R.P. Bhatt Vs. Union of India (1986) 2 SCC 651 & Ram Chander Vs. Union of India & Others (1986) 3 SCC 103.
25. Further reliance has been placed upon the decision in the case of Divisional Forest Officer Kathgudem & Others Vs. Madhusudhan Rao (2008) 3 SCC 469 so as to contend that even the order of affirmation in the matter of departmental proceedings at the stage of Appellate and Revisional Authorities must be speaking and reasoned order.
26. Sri Khare learned Senior Counsel has also relied upon the judgment in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Others, reported in (2020) 7 SCC 1 & Ravindra Singh alias Kaku Vs. State of Punjab, reported in (2022) 7 SCC 581 so as to contend that under Sections 65A and 65B of the Evidence Act, 1872 with regard to the admissibility of electronic records, compliance of the said provisions are mandatory.
27. Countering the said submission, Sri Anand Tiwari who appears for the respondent corporation submits that the orders passed by the disciplinary authority as well as the appellate authority are perfectly justified and no exception can be carved out particularly in view of the fact that the writ petitioner herein was entrusted with the duty to keep the keys with him and not to hand over the same to anybody else and he being the Operation Officer had committed acts and omissions on account whereof not only financial loss was sustained by the corporation but image was tarnished.
28. According to Sri Tiwari there have been no violation of principles of natural justice as the writ petitioner has been issued a charge sheet, he submitted his reply and in accordance with the rules in question inquiry proceedings were conducted, though the charges were found to be partially proved by the Inquiry Officer but disagreement note was issued and after considering the objections ultimately order of dismissal was passed which was carried in appeal and the same was also affirmed.
29. The submission is that principles of natural justice is not a strait jacket formula but doctrine of prejudice also plays a role and further there has been no prejudice caused to the writ petitioner so as to warrant any interference.
30. As regards the allegation of the writ petitioner that he has not confessed his misconduct is concerned the same is patently misconceived besides being false particularly in view of the fact that the writ petitioner on 17.02.2015 in the presence of the prosecution witnesses who are three in number made confessional statement before the Police Authorities, however, as an afterthought after commencement of disciplinary proceedings a new story is being sought to be cooked up. The submission of the counsel for the respondents is that might be from the records available with him the confessional statement is not on record but that does not in any manner whatsoever exonerate the writ petitioner from the charges as the corroboration and surrounding circumstances by way of the statement of the prosecution witness itself points out that the writ petitioner had confessed the misconduct. Reliance has been placed upon by Sri Anand Tiwari upon various judgments including the judgments in the case of K.L. Sinha Vs. State of Mysore 1976 (3) SCC 766, State of Haryana Vs. Ratan Singh 1977 (2) SCC 491, J.D. Jain Vs. Management of State Bank of India 1992 (1) SCC 143 & Workmen of Balmadi States 2008 (4) SCC 517 so as to contend that the Evidence Act is not applicable in the departmental proceedings and further principles of natural justice cannot be applied in abstract and this Court under Article 226 would not come to the rescue of delinquent employee where charges of misconduct are explicit and proved. Sri Tiwari, thus, prayed that the writ petition be dismissed in to to.
31. I have heard the learned counsel for the parties and perused the record which has been placed before this Court pursuant to the order dated 04.07.2023 on 20.07.2023.
32. Undisputedly, the writ petitioner while posted as officer in-charge of the BDFP, Mathura is stated to have committed certain acts and omissions whereby on 13.02.2015, he while violating the standard procedure upon closure of “B” shift handed over the keys to Sri Bhagwan Singh Security Officer which was to be retained by him and thereafter took it from Sri Bhagwan Singh afterwards creating a situation whereby 184 numbers of Bitumem drums were stolen causing financial loss to the corporation and tarnishing its image. Charges further reveal that the writ petitioner in order to cover up the mis-deeds manipulated with CCTV camera while turning it on a different direction so that the acts and omissions committed by him are not recorded. Further the writ petitioner also made a voluntary confession on 17.02.2015 before the SSP, Mathura at the Police Station, Mathura Refinery in the presence of the prosecution witness that he handed over the key to Sri Bhagwan Singh on account whereof theft took place and he pleaded guilty and recorded is misconduct. It is also not in dispute that the said alleged confession is dated 17.02.2015 after four days of the incident which is stated to be 13.02.2015.
33. Parties are also in agreement that the writ petitioner was arrested on 18.02.2015 and by the order of the Court dated 31.07.2015 the writ petitioner was granted bail and he was released on 04.08.2015 from the judicial custody. Thereafter on 31.08.2015 a charge sheet was issued to the writ petitioner which has been extracted in the earlier part of the judgment. In order to prove the charges as many as 9 exhibits were taken into account to bring home the charges. Importantly, though the letter dated 15.02.2015 addressed to Police in-charge of the Police Station, Mathura Refinery and Police charge sheet No. 80 of 2015 dated 12.04.2015 were made the exhibit but the alleged confessional statement of the writ petitioner dated 17.02.2015 was not made the part and parcel of the charge sheet though, the charge sheet itself contains the allegation based on the alleged confession of the writ petitioner. Further in the list of witnesses, the 3 witnesses being the officials of the Indian Oil Corporation were marked as the prosecution witnesses but the Senior Superintendent of Police as well as the Police officials who were present during the course of making of confessional statement were not marked as witnesses. The petitioner in its reply to the charge sheet dated 27.09.2015 specifically denied the said charges while coming up with a stand that he had not given keys to Sri Bhagwan Singh and further in the third page of the reply the writ petitioner came up with stand that he was badly beaten by Police including application of electric shock to ensure forceful confession from him.
34. In the examination-in-chief of P.W. 1 Sri Girja Shankar DGM (RC), Mathura dated 15.12.2015 question Nos. 10 and 11 relating to confessional statement being given by the writ petitioner was taken note of, however, in the cross examination of P.W. 1 in reply to question Nos. 5 and 8 it is an admission on the part of P.W. 1 that though no manhandling was done but threatening language was used against the writ petitioner and in reply to question No. 7 it has been further stated that P.W. 1 was not aware as to what happened inside but the writ petitioner came outside weeping. The same is also the statement of P.W. 2. Though the Inquiry Officer in his inquiry report as discussed above has held the charges to be partly proved but the basic premise on which the charges were found to be partly proved also does not inspire the confidence of this Court particularly as there is no discussion with regard to the reasons in coming to the said conclusion but the disciplinary authority issued a disagreement note dated 13.06.2016 wherein in the second page of the same the charges have been shown to be proved against the writ petitioner on the ground that the writ petitioner had confessed the misconduct and offence in the presence of the prosecution witnesses in the Police Station itself, thus, the charges stood proved against the writ petitioner. The writ petitioner after receipt of the disagreement note tendered his reply on 20.07.2016 specifically denied the same also demonstrating that he had not confessed the said misconduct alleged to have been committed by him by giving instances and details but the disciplinary authority by virtue of its order dated 01.08.2016 rejected the objection and imposed the punishment of dismissal against which an appeal was filed on 14.10.2016 which were also rejected by a totally non-speaking order.
35. Notably, the entire charges stems from the alleged confessional statement. The confessional statement is stated to be made by the writ petitioner in the Police Station of Mathura Refinery, Mathura in the presence of the Police officials including SSP and the prosecution witness. In the list of the witnesses appended to the charge sheet neither the SSP before whom the said confession has been stated to be made nor the other Police officials who were present are the part and parcel of the same which even in fact does also not inspire confidence of the Court particularly when the confessional statement is not on record. On a repeated query being made from Sri Anand Tiwari, who appears for the respondent corporation as to whether there is any confessional statement or not, to which Sri Anand Tiwari had made a specific statement at bar that confessional statement is not a part of the Police record and it is also not available in the record. He submits that the confessional statement is oral and not reduced in writing and, thus, on the said basis the charges have been framed against the writ petitioner.
36. The Courts of law would in appropriate cases would rely upon the oral confessional statement but here, in the present case there are some redeeming features which would not by application of abstract principle impel the Court to rely upon the confessional statement without corroboration and evaluation of the circumstantial evidence; (a) the confessional statement has been recorded on 17.02.2015 whereas the incident took place on 13.02.2015; (b) the Senior Superintendent of Police or the Police officials before whom the confessional statement was orally recorded in the Police Station are neither marked as prosecution witness nor produced to prove the prosecution story; (c) as per the prosecution witnesses threat was administered though manhandling was not done and the charge sheeted employee came out weeping. Sri Ashok Khare learned Senior Counsel has relied upon a judgment in the case of Roop Singh Negi (supra) in order to contend that the confessional statement cannot be made a basis for holding charges against the charge sheeted employee. In the case of Roop Singh Negi (supra) the confessional statement was pressed into service to hold the charge sheeted employee guilty, however, the confession was not proved though the same was made before the Police Authorities.
37. The Hon’ble Apex Court in paras 4, 5, 14 and 15 observed as under.-
4. After five years of the said incidence, a disciplinary proceeding was initiated against the appellant stating that during the period 18.11.1991 and 09.10.1993, he had taken away one blank draft issue book bearing Nos. 626401 to 62645. A show-cause notice was issued. Cause was shown by him. He was found guilty by the inquiry officer. In the said proceeding, reliance was placed on the purported confession of the appellant before the police authorities in the year 1993. It was marked as Exhibit PE-3.
5. Indisputably, the forms and other important books and documents belonging to a bank never remain in the custody of a peon. It was accepted that documentary evidences were collected by the police officers. Those documents were simply produced; they were not proved. The purported confession by the appellant was also not proved. Only because the said confession was made before the police authorities, the enquiry officer inferred on the basis thereof that the appellant had connection with those persons who had used those bank drafts, stating:
“… Therefore, the undersigned is of the opinion that Exhibit PE-4 proves that Shri Roop Singh Negi has connections with the said culprits. On examination of witness MDW 1 on 20.07.1999, he has said that according to the statement of Shri Roop Singh Negi, he has confessed that on the instructions/saying of Rajbir, Devinder alias Mental, Asif and Brahmpal, who are the residents of trans-Yamuna area he had stolen the draft book….”
It was, inter alia, concluded:
“In view of the above details/proceedings it is proved that the delinquent employee has admitted that drafts being No. QWA-626401 to 626425 have been stolen from Branch Office, Mall Road, Delhi Branch vide Page No. 25057 and has caused financial loss to the Bank but he has not admitted that he has stolen the said drafts.
As the main charge on the delinquent employee is of stealing the draft books and other documents, therefore, in such matters direct proof/evidence are not available generally and the conclusion has been arrived at on the basis of assumption….”
14. Indisputably, a departmental procedure is a quasi-judicial proceeding. The inquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the sai documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the inquiry officer on the FIR which could not have been treated as evidence;
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the inquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.”
38. Insofar as the judgment in the case of Yaswant Redkar (supra) is concerned that was a case where the entire proceedings were initiated pursuant to hearsay evidence, the Bombay High Court opined that it would not be justified to hold the delinquent employee guilty only on the basis of hearsay evidence without there being any direct or circumstantial evidence in support of the finding.
39. Here, in the present case the entire charges so levelled upon the writ petition is based upon the confessional statement though sought to be supported by the prosecution witnesses. However, in order to find out as to whether the same was a statement made or not the only thing which would be relevant at least for the sake of knowledge is the written document bearing signature of the person who had made confessional statement. In this case though on one hand the delinquent is denying the confessional statement but, on the other hand, the prosecution is coming up with opposite stand. Since the entire imputation of the charges are based upon the confessional statement but the confessional statement has neither been made the part and parcel of the charge sheet nor the police officials before whom the confessional statement alleged to have been made by the writ petitioner has been put to cross examination, thus, in the opinion of the Court the sole reliance placed upon the confessional statement vitiates the entire proceedings particularly when the prosecution witnesses have not disputed the fact and have deposed that threat was administered upon the writ petitioner and he came weeping out, thus, in the circumstances to hold the writ petitioner guilty on the basis of confessional statement is neither justified nor proper.
40. With regard to the handing over the keys by the writ petitioner to Sri Bhagwan Singh, Security Supervisor is concerned he has not been marked as one of the witness. Once the writ petitioner denied the charges then in order to prove the said fact it was the duty of the prosecution to have produced Sri Bhagwan Singh, Security Supervisor before the inquiry proceedings and the same not being done which is also a crucial factor vitiating the inquiry.
41. Now so far as the second charge with regard to manipulating the CCTV Camera is concerned the writ petitioner had disputed doing any manipulation with the CCTV Camera to mask the activity in that regard. Further in the reply dated 20.07.2016 to the disagreement note dated 13.06.2016 the writ petitioner in para 24 (c)(d) and (e) has specifically sought comparing of the original CCTV footage and questioned the authenticity of the same. The said ground was also taken in the memo of appeal dated 14.10.2016, however, the same was ignored and not considered. Though the provisions of Evidence Act 1872 not be applicable, however, it was a duty of the Disciplinary Authority to have addressed the said issued in order to find out as to whether the CCTV footage was doctored, manipulated or not. The legislature was quite conscious about the improvisation of technology with the advent of present times and accordingly, Sections 65A and 65B have been inserted in the Evidence Act, 1872 and it has been held to be mandatory that a certificate is to be obtained under Section 65B(4) of the Evidence Act, 1872 as held in Arjun Panditrao Khotkar (supra) and Ravindra Singh (supra) by the Hon'ble Apex Court.
42. The rule-making authority was conscious while employing the word “consider” in Rule 38 of the Conduct, Discipline and Appeal Rules, 1980 dealing with the manner in which the appeals are to be considered against the punishment order. The word “consider” has been taken note in series of judgments and dealing with the same in R.P. Bhatt (supra), the Hon'ble Supreme Court in para 4 and 5 observed as under:
“4. The word 'consider' in Rule 27 (2) implies 'due application of mind'. It is clear upon the terms of Rule 27 (2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;
(2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27 (2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27 (2) of the Rules, the impugned order passed by the Director General is liable to be set aside.”
43. Following Judgment in the case of R.P. Bhatt (supra) the Hon’ble Apex Court in the case of Ram Chander (supra) observed as under:
“5. To say the least, this is just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshal the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh punishment. There being non-compliance with the requirements of Rule 22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside.”
44. Further in the case of Divisional Forest Officer (supra) the Apex Court in para 19 and 20 held as under:
“19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service.
20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.”
45. A close scanning of the provisions of the Conduct, Discipline and Appeal Rules, 1980 as amended upto 23.12.2014 of the respondent corporation goes to show that Rule 29 deals with two types of penalties namely minor penalty and major penalty. Separate procedure has been laid down for imposition of minor or major penalty. So far as the controversy in hand is concerned the same relates to major penalty, thus, Rule 31 of the 1980 Rules would apply. In principle, Rule 31 of the 1980 Rules lays down the procedure which has to be adhered to, step by step for holding inquiry.
46. A charge sheet containing the memorandum of charges is to be served upon the delinquent containing not only the imputation of charges but also the documents and the witnesses on the basis of which the charges are to be proved, in case, the delinquent denies the charges then after appointment of an inquiry officer, he has to fix date, time and venue for oral inquiry, and submit its report to the Disciplinary Authority who in case of disagreement is to issue a disagreement note along with the show cause notice disagreeing with the reasons of the inquiry officer and after submission of the objection/reply by the delinquent a final order is to be passed. Practically the principles of natural justice are to be followed step by step. In order to hold the charges proved against the delinquent the inquiry officer is to conduct inquiry and the prosecution is not only to produce the material witnesses but also prove the documents which are material exhibit in that regard. As noticed above here in the present case the Inquiry itself was defective as neither the prosecution produced nor proved the confessional statement.
47. Now a question arises that once a conclusion is drawn that the inquiry proceedings was defective and not in conformity with the rules then what would be the next course of action. There are two options available before the Court of law either to set aside the order impugned and foreclose the right of the Discipline Authority to conduct inquiry and award reinstatement to the delinquent or to remit the matter back to the Competent Disciplinary Authority to hold a fresh inquiry from stage where the defect occurred while placing the delinquent under suspension for the purposes of holding of fresh inquiry and payment of consequential benefit be made subject to the outcome of the fresh inquiry.
48. In order to determine as to whether which course is to be adopted and the courts of law has to bear in mind the gravity of the charges and the nature of the defect in the inquiry proceedings.
49. Rule 26(4) of the 1980 Rules itself gives light on the said subject as according to it where a penalty of dismissal or removal from service is imposed upon an employee is set aside or declared or rendered void in consequence of or by a decision of the Court of law and the disciplinary authority on consideration of the circumstances of the case decides to hold further inquiry against the delinquent on the allegations on which penalty of dismissal or removal was originally imposed the delinquent shall be deemed to be placed under suspension by the Disciplinary Authority from the date of the original order of dismissal or removal and shall continue to remain under suspension till further orders.
50. Since, there is a defect in holding of departmental inquiry culminating into passing of the punishment order, thus, in the facts of the present case looking into the nature of allegations levelled upon the delinquent, this Court is of the opinion that the orders impugned be set aside and a direction be issued to the Disciplinary Authority to conduct the inquiry and conclude the same within the time stipulated by the Court. At this juncture, Sri Anand Tiwari, learned counsel for the respondent corporation submits that in case the matter is remitted back for holding fresh inquiry then it should be from the stage when there was defect occurred in the inquiry and according to him it should be from the stage of submission of reply by the delinquent to the charge sheet. Sri Ashok Khare learned Senior Counsel appearing on behalf of the writ petitioner submits that since the writ petitioner has submitted his reply to the charge sheet dated 31.08.2015 on 27.09.2015, thus, the inquiry be directed to be concluded within the time stipulated by this Court from that stage.
51. Accordingly, in view of the foregoing discussion, the writ petition is decided on the following terms; (a) the orders dated 01.08.2016 passed by the third respondent, General Manager, Incharge, U.P.S.O. II, Indian Oil Corporation Ltd, Indian Oil Bhawan, E-8, Sector 1, NOIDA, Gautam Buddh Nagar, dismissing the writ petitioner from service as well as the order dated 02.12.2016 rejecting the appeal of the writ petitioner dated 04.10.2016 passed by the second respondent Executive Director Incharge (Supplies), Indian Oil Corporation Ltd., Indian Oil Bhawan G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai are set aside; (b) consequent to the setting aside of the orders dated 01.08.2016 and 02.12.2016 the writ petitioner shall be placed under suspension; (c) the writ petitioner shall prefer an application/representation before the third respondent seeking arrears, subsistence allowance and for payment of subsistence allowance on month to month basis and on the receipt of the same the third respondent shall ensure payment of arrears, if any, and pay current subsistence allowance as per rules; (d) since the order dated 01.08.2016 passed by the Disciplinary Authority has been set aside, thus, the matter stands remitted to the Disciplinary Authority for conducting inquiry against the writ petitioner from the stage of submission of the reply dated 27.09.2015 to the charge sheet dated 31.08.2015; (e) the inquiry shall be conducted and concluded within a period of four months from the date of production of the certified copy of the order by either of the parties strictly in accordance with law, as per the rules governing the field and after affording opportunity to the delinquent employee; (f) the writ petitioner shall render full cooperation in the inquiry proceedings; (g) the grant of consequential benefits including arrears of salary, and other allied benefits shall be subject to the outcome and the fate of the inquiry proceedings.
52. With the aforesaid observations, the writ petition stands partly allowed.
