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penalty of removal from service which was not to be a disqualification for future employment under the Government. The appellate authority (AA) imposed the penalty of reduction of five stages in the time scale of pay for a period of three years. The unemployment period from the date of removal from service and reinstatement was to be treated as non-duty for all purposes. Reduction in penalty was done on the ground that Shri Jai Bhagwan, being a Class-IV employee, was unable to influence the decision of the department in terms of affecting the interest of the government, because the Class-IV employees are not dealing with the files of the department.

4. Still aggrieved by the order of the AA, the applicant has sought the following reliefs:

"8.1 To quash and set-aside the order dated 22.07.2015 whereby the extreme punishment i.e. removal from service is imposed upon the applicant and order dated 15.12.2015 whereby the applicant has been reinstated back in service to an extent that it imposes a penalty of reduction of five stages in the time scale of pay for a period of three years and further will not earn increment of pay during the said period and the reduction will have the effect of postponing the future increments of pay and further the suspension period w.e.f. 9.5.05 to 22.7.15 and the unemployment period from the date of removal from service and reinstatement of applicant shall be treated as „non-duty" and to further direct the respondent that reduced time scale of pay be restored as it was never reduced and future increment will not be stopped with all consequential benefits including seniority & promotion and pay & allowances.

8.2 To direct the respondent that the suspension period of applicant w.e.f. 9.5.05 to 22.7.15 be decided as period „spent on duty" for all intents and purposes.

8.3 To quash and set aside the finding of Enquiry Officer dated

17.03.2015.

8.4 To quash and set aside the order of initiation of D.E. dated 15.7.2011 alongwith Article of Charge and imputation of midconduct.

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Or/and Any other relief which this Hon"ble Court deems fit and proper may also be awarded to the applicant."

5. The respondents have filed their reply to the OA. They have not disputed the basic facts but have submitted that the IO, having examined the oral and documentary evidence, submitted his report holding the charge against the applicant as proved. The reply filed by the applicant to the inquiry report was meticulously considered by the disciplinary authority but was not found satisfactory. Hence, punishment of dismissal from service was imposed upon the applicant. On the appeal filed by the applicant his penalty was reduced by the AA by passing a reasoned order. Hence, the respondents pray for its dismissal stating that the OA is devoid of merit.

6. The applicant has filed rejoinder denying the averments made in the reply filed by the respondents and reiterated the stand taken by him in the OA.

7. We have heard Shri Sachin Chauhan, learned counsel for the applicant and Shri Rohit Bhagat for Shri Saurabh Chadda, learned counsel for the respondents and perused the pleadings and relevant records.

8. Learned counsel for the applicant argues that Sh. Dhirendra Singh, Reporter, and Sh. Jalaj Kathuria, Cameraman, T.V. Today Network Ltd., who were in the list of witnesses were the only independent witnesses, who are said

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to have secretly video-graphed and recorded the alleged news item, which was the basis of the charge levelled against the applicant, and telecast with the caption "Ghoos Mahal" in the Aaj Tak News Channel on 08.03.2005. However, the respondents did not examine the said PWs in the inquiry, and non-examination of the said witnesses is stated to be fatal to the prosecution case and on this ground alone, the disciplinary proceedings initiated against the applicant are liable to be quashed.

9. Learned counsel for the applicant contends that the foundation of the charge levelled against the applicant was only the CD whereunder a video recording was done allegedly showing that the applicant demanded/accepted illegal gratification for official favour or work.

10. It is further argued that neither in the memorandum of charge nor in the orders passed by the disciplinary/appellate authorities, following points have been considered- - The alleged bribe giver has not been identified; - The alleged favour which the applicant being Stenographer Grade-III could extend, has not been identified;

- The demand of bribe has not been proved, consequently the amount of alleged bribe money has not been specified;

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- No amount of bribe has ever been recovered from the applicants;

- The denomination of the bribe money and quantum of bribe money has not either been specified or proved; - The date on which the alleged demand/ acceptance of bribe took place has neither been specified nor proved; and

- The place where the alleged demand and acceptance of bribe took place has neither been specified nor proved. Since the findings of the enquiry officer are not supported by any piece of evidence, basically it is a case of no evidence which the IO failed to consider as the entire testimony of all the witnesses in the present DE is based on an edited CD which is not admissible evidence as per law. The deposition of the PW in the departmental enquiry on the basis of the edited CD as per law cannot be relied for the reasons stated above.

11. The learned counsel has also cited various judgements specifically MS Mohiddin AIR 1952 Madras 561 and Hon"ble High Court in WP No. 796/2007 in the case of RK Anand to draw the conclusion that sting operations conducted by private person are illegal acts and cannot be relied by the enquiry officer. He has also brought on record an affidavit filed by the then Commissioner (Trade & Taxes) wherein it was stated that all the gadgets/instruments used for the sting operation "Ghoos Mahal" have been re-used and as such

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news channel does not have any record of the sting operation except the video Cassette which is the true copy of the sting operation prepared by the mechanical device. The original chip of the said sting operation was not provided by the news channel Aaj Tak to the investigation officer due to the reasons as mentioned above. Thus the averments made in the affidavit clearly establishes that original chip and original recording of the so called sting operation is not available with Aaj Tak. Since authenticity and quantity of the CD cannot be checked scientifically, hence the present CD is an inadmissible evidence which cannot be relied in giving any finding of guilt. Therefore the impugned orders are liable to be set aside as the same are non-speaking and mechanical in nature and do not deal with the specific submissions made by the applicant that are well supported by the case laws on the subject.

12. It is also argued that electronic evidence has to be proved in the manner as it is provided in the Information Technology Act. To buttress, he relies upon the decision of Coordinate Bench of this Tribunal in Sanjay Kumar Dubey

(supra), relevant portion whereof reads as under:-

"9. The legal position is well settled that the standard of proof required in a criminal proceeding is of much higher order than in the departmental proceedings. The preponderance of probability is sufficient to come to a conclusion with regard to the guilt of the delinquent. The general principles of the Evidence Act cannot be dispensed with. The involvement of the applicant has been proved by the EO only on the basis of the statement of prosecution witness who had allegedly seen the CD and identified the applicant demanding the bribe. The CD itself ws never

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proved, which is the conclusion arrived at by the Special Judge (PC Act), Tis Hazari Courts, Delhi vide order dated 12.08.2015. Relying on the Hon'ble Supreme Court judgment in the case of Anwar P.V. versus P.K. Basheer

reported as Manu/SC/0834/2014, the learned Special Judge concluded that the CD was inadmissible as a secondary evidence as well….

10. In such a situation, when the CD itself was not admissible as an evidence, a tertiary evidence of the PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty.

11. In the circumstances and for the reasons stated, the OA is allowed. The report of the EO and the orders of Disciplinary Authority and Appellate Authority are quashed. The applicant will be entitled to all consequential benefits including the treatment of the period of suspension from 27.12.2005 to 23.12.2010, as a period spent on duty, but without back wages…"

13. Learned counsel submits that this case is similar to the aforementioned case and law in regard to the electronic evidence has not been followed in the present case. Therefore, the findings of the IO only based upon the unapproved/edited CD, being not an admissible evidence, the present case is one of „no evidence". Moreover, during the entire proceedings, the respondents have not disclosed that the voice sample of the applicant had been sent to the CFSL for comparison with the voice in the CD telecast on Aaj Tak Channel. He further argued that a perusal of the CFSL report dated 09.02.2007, which was in possession of the respondents, would reveal that the voice could not be conclusively identified as that of the applicant. It is stated that the said report was suppressed from the applicant.

14. The grounds taken by the applicant have been refuted by the learned counsel for the respondent who contends that

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the charge was proved during the enquiry proceedings which was duly conducted as per the established rules and procedure and penalty was imposed by the competent disciplinary authority after considering his representation and following the prescribed procedure. His appeal was also duly considered and there was no question of any prejudice against the applicant. Moreover the findings of the enquiry officer are based upon the evidence which came on record during enquiry proceedings and after considering all the facts and evidences and record of the case a reasoned and speaking order was passed.

15. It is also argued that sting operation CD was received from concerned agency through official channels and through anti corruption department and charge officer was identified by the officers/officials of the department in the CD taking bribe and therefore authenticity of the CD is not in doubt.

16. Also the charge sheet issued along with statement of imputation of charges of misconduct does not contain the name of any bribe giver nor does it speak of the quantum of money or the motive of the bribe but it only speaks of the petitioner accepting illegal gratification by a bribe giver who approached him in his office. This was video graphed and telecast on a news channel which tarnished the image of the department. Further senior officers of the department have

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identified the petitioner before the enquiry officer during the proceeding which was also recorded by the IO.

17. While justifying the penalty imposed the respondents have also taken the plea that the Hon"ble Supreme Court of India in BC Chaturvedi Vs. Union of India and ors., 1995 SCC (6) 749 held that the High Court/Administrative Tribunal cannot interfere in the punishment imposed after holding Enquiry and further held that the judicial review is restricted to the manner in which the administrative authority exercise power. Moreover it is well settled law that disciplinary proceedings are not criminal proceedings and the standard of proof required is preponderance of probability and not proof beyond reasonable doubt. Further strict rules of procedures and proof do not apply to a departmental enquiry as laid down in Union of India Vs. A Nagamalleshwar Rao, AIR 1998 SC 111. Therefore, there is no cogent reason for the Tribunal to interfere in the instant matter.

18. The applicant in his rejoinder has refuted the grounds taken by the respondents stating that submission raised by the respondent in the counter affidavit are wrong and do not apply to the present case and the judgements relied by the respondents are also distinguishable on facts and do not apply to the present facts and circumstances.

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19. Through MA-1145/2022 dated 20.04.2022, the learned counsel for the applicant has drawn our attention to judgement dated 22.03.2022 (pronounced on 30.03.2022) in OA No.444/2014 titled Ranjit Kumar Chaudhary Vs. GNCTD

and contended that the case of the applicant is squarely covered by the judgement of the Tribunal in case of co- delinquent Ranjit Kumar Chaudhary. Since the facts in the present case are identical, the judgement in the aforementioned case applies to the present case as well in totality.

20. We have carefully gone through the inquiry report. On „Analysis and Assessment of Evidence", the inquiry officer after summarising the statements of witnesses observed as under:-

"On going through the CD it is confirmed that C.O. is accepting Money/something/sewa from a person (bribe giver) but no witness identified the bribe giver motice behind the money given the bribe and the amount given. All the witnesses gave their statement on basis of the CD. No eyewitness (PW11 PW 12) gave any statement. All the produced witnesses confirmed their statement."

21. From the analysis of evidence, it appears that the witnesses produced, who were from the respondent department, have identified that the person shown in the CD was the applicant. However, none of the witnesses, as has been mentioned in the inquiry report itself, has confirmed as to who was the bribe giver; what was the denomination and quantum of amount of bribe; the motive of the bribe giver

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behind giving the bribe and whether bribe amount was recovered from the applicant or not.

22. It is also not in dispute that witnesses, namely, Dhirendra Singh, Reporter, and Jalaj Kathuria, Cameraman of T.V. Today Network Ltd., who were in the list of witnesses were not examined in the inquiry. These witnesses were the persons who had reportedly video-graphed and recorded the alleged incident secretly based on which the charges were levelled against the applicant.

23. As has been clear from the submission made by the applicant, the main defence taken is that the edited CD/chip is inadmissible in evidence. This issue has been addressed at length by this Tribunal in Constable Sanjay Kumar Dubey

(supra) holding that even in departmental proceedings, the general principles of the Evidence Act cannot be ignored and when the CD itself was not admissible as an evidence, peripheral evidence of a PW to the effect that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. In the present case also, the alleged CD has neither been proved nor got compared with original CD/chip, therefore, the same cannot be taken as admissible evidence. Consequently, holding the charge against the applicant as proved based on such a CD, in our view, is not tenable in the eyes of law.

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24. In view of the above discussion, we are of the considered opinion that the IO has proved the charge without any concrete and firm evidence. We are conscious of the fact that in disciplinary proceedings the Tribunal should not act as a court of appeal, but there is definitely a ground for interference if the DA has erroneously admitted inadmissible evidence which influenced the findings.

25. We also find that this Tribunal has already dealt with an identical issue in OA No.444/2014 in Ranjit Kumar Chaudhary Vs. Govt. of NCT of Delhi vide its order dated 30.03.2022, decided as under:

"28. We also notice that the primary defence taken by the applicant is that the edited CD/chip is inadmissible in evidence. This issue has been decided by this Tribunal in

Constable Sanjay Kumar Dubey (supra) holding that even in departmental proceedings, the general principles of the Evidence Act cannot be dispensed with and when the CD itself was not admissible as an evidence, mere tertiary evidence of a PW that he had seen the applicant accepting bribe in one of the scenes of the CD, cannot be the basis for concluding that the applicant was guilty. Similarly, in the present case also, the alleged CD has neither been proved nor got compared with original CD/chip, therefore, the same cannot be taken as admissible evidence. Resusltantly, holding the charge against the applicant as proved based on such a CD, in our view, is not tenable in the eyes of law. Even the Full Bench of this Tribunal, as stated above, was of the view that the genuiness of the video film would be the first test.

xxxx xxxx xxxx

30. In these circumstances and for the reasons stated, both these OAs are allowed. Consequently, the Charge Memorandum, report of the IO, and the orders of the disciplinary authority and appellate authority are quashed. The applicants will be entitlted to all consequential benefits including the treatment of the period of suspension, as spent on duty, but without back wages. The respondents are directed to complete the exercise, as ordained above, within a period of three months from the date of a copy of this order. There shall be no order as to costs."

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26. The learned counsel for the respondents has drawn our attention to the fact that the Hon"ble High Court of Delhi in WP (C) 10732/2022, Govt. of NCT of Delhi & ors. Vs. Ranjit Chaudhary has stayed the operation of the above order till the next date of hearing. However, nothing has been brought to our notice to suggest that the said order of the Tribunal has been quashed. Therefore, there is no reason for us to not follow the judgment of the Coordinate Bench of this Tribunal.

27. In the circumstances, the OA is partly allowed and since the impugned orders cannot be sustained the same are hereby set aside. The applicant will be entitled to all consequential benefits in accordance with law. The respondents shall comply with the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. (Sanjeeva Kumar) (R.N. Singh)

Member (A) Member(J)

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