(2) WP(C) NO.5248 OF 2010 - Gauhati High Courtghconline.gov.in/Judgment/WPC45692010.pdfDr. Sarveshwar Dayal, S/O Dr. R.D. Gupta, Central Potato Research Station, Peak View Road, Shilling,

WP(C) NO.4569 OF 2010 and WP(C) No.5248 of 2010 Page 1 of 70

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND,MEGHALAYA,

MANIPUR,TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

(1) WP(C) NO.4569 OF 2010

1. The President, Indian Council of Agricultural Research, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 2. Indian Council of Agricultural Research, Represented by its Director General, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 3. Indian Council of Agricultural Research, Represented by its Secretary, Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001.

……..… Petitioners. -Vs – Dr. Sarveshwar Dayal, S/O Dr. R.D. Gupta, Central Potato Research Station, Peak View Road, Shilling, Meghalaya-793009. ……..… Respondent

(2) WP(C) NO.5248 OF 2010

1. The President, Indian Council of Agricultural Research (ICAR), Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 2. The Secretary, Indian Council of Agricultural Research (ICAR), Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001. 3. Director General,


Indian Council of Agricultural Research (ICAR), Krishi Bhavan, Dr. Rajendra Prasad Road, New Delhi-110001.

……..… Petitioners. -Vs – Dr. Yash Gupta, Ex. Senior Scientist, Central Potato Research Station, Peak View Road, Shilling, Meghalaya-793009. (presently residing at Banarasi Dass Building, The Mail Solan, Shimla, Himachal Pradesh, Pin Code-173212). ……..… Respondent

BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI

THE HON’BLE MR. JUSTICE S.C. DAS

For the petitioners : Mr. D. Majumdar, Advocate Mr. S. Saikia, Advocate

Mr. R. Sarma, Advocate Mr. B. Deori, Advocate.

For the respondents : Mr. A. Ahmed, Advocate

Mr. P. Gogoi, Advocate.

Date of hearing : 13.12.2012 Date of delivery of judgment & order : 22.01.2013

JUDGMENT & ORDER

(S.C. Das, J)

The genesis of both the writ petitions, is an incident,

which occurred on 23.09.2003 at about 5.00 pm in the office

premises of National Research Centre for Mushroom(for short,

‘NRCM’), at Chambaghat, Solan, Himachal Pradesh. Both the

respondents, Dr. Sarveswar Dayal(hereinafter referred to as Dr.


Dayal) and Dr. Yash Gupta(hereinafter referred to as Dr. Gupta) are

husband and wife and they were on their official duty, while working

as Scientist(Senior Scale) under Indian Council of Agricultural

Research(for short, ICAR).

2. Having considered the submissions, made by learned

counsel of both side, both the writ cases are taken up together for

hearing and disposal, since the cases arose out of same incident and

identical question of law and fact, involved in both the cases for

decision by this Court. Therefore, this common judgment shall

govern both the cases.

3. NRCM is an organization having its office/establishment

at Solan, Himachal Pradesh under ICAR. The petitioners, herein, are

the superior authorities/disciplinary authorities of the respondents in

the ICAR. Dr. Dayal, respondent of WP(C) No.4569 of 2010 and Dr.

Gupta, respondent of WP(C) No.5248 of 2010, were found guilty of

gross misconduct in the disciplinary proceedings drawn against them

separately for the same incident occurred on 23.09.2003 and the

disciplinary authorities inflicted punishment of compulsory retirement

against both the respondents and, they, by filing separate Original

Applications(in short, O.A.) before the Central Administrative

Tribunal(in short, CAT), Guwahati Bench, challenged the orders of

the disciplinary authority and, the CAT, by impugned order dated,

04.09.2009, passed in O.A. No.299 of 2007, filed by Dr. Dayal, and

by order dated, 06.04.2010, passed in O.A. No.218 of 2008, filed by

Dr. Gupta, set aside and quashed the order of the disciplinary


authority, and, hence, the disciplinary authorities, i.e., the present

petitioners, by filing the aforenoted writ petitions, challenged the

orders of the CAT on various grounds.

4. We have heard learned counsel, Mr. D. Majumdar and

learned counsel, Mr. R. Sarma for the petitioners and learned

counsel, Mr. A. Ahmed and learned counsel, Mr. P. Gogoi for the

respondents, in both the cases.

5. Fact of the case, in short, is that, on 23.09.2003, Dr.

R.N. Verma, Ex-Director of NRCM and incumbent President of

Mushroom Society of India (in short, MSI), while visiting Solan, was

invited by the Director of NRCM to participate in a discussions in the

seminar of the Executive Committee meeting of MSI and,

accordingly, Dr. Verma attended the institute of NRCM at about 3.00

pm and had discussions with the Centre Director about the activities

of the NRCM and, thereafter, at about 4.00 pm, he was invited by Dr.

R.C. Upadhyay of MSI to preside over the meeting of MSI and,

accordingly, he participated in the meeting and was presiding over it.

At about 5.00 pm, Dr. Verma went to the toilet, and while he was

returning from the toilet to the meeting room Dr. Robin Gogoi, a

scientist of the institute, met him in the corridor and was exchanging

pleasantries with him. At that time, Dr. Dayal waylaid Dr. Verma

saying “Adab arj hain Doctor sahib” and, immediately, attacked Dr.

Verma and slapped him on his face. Dr. Gupta also arrived there and

insisted Dr. Dayal to beat Dr. Verma. Dr. Shwet Kamal, another

scientist of the institute, who was in the door of the meeting room,


rushed there and both Dr. Kamal and Dr. Gogoi disengaged Dr. Dayal

from further assaulting Dr. Verma. In the meantime, hearing noise

the trainees and executive members of the MSI, all came out and

learnt about the occurrence. Dr. Verma got perturbed and extremely

shocked in the incident and in the meantime, Dr. Dayal and Dr.

Gupta went away from the spot. Director of the institute was

reported about the incident and an FIR was lodged to the police. A

police case was accordingly registered and investigation was taken

up. The matter was reported to the superior authority i.e. the ICAR

and, accordingly, disciplinary proceedings were initiated separately

for the same incident against the respondents.

PROCEEDING AGAINST DR. DAYAL

5.1 Issuing Memo. No.F.3(2)/2004-Vig(D), dated 01.06.2004

ICAR initiated disciplinary proceeding against Dr. Dayal with specific

Article of Charge, which reads thus:

“ARTICLE OF CHARGE-I While working as Scientist(SS), National Research

Centre for Mushroom, Solan, Dr. Sarvershwar Dayal

created an embarrassing and intolerable situation by

indulging himself in an act of gross indiscipline and

violence by physically assaulting Dr. R.N. Verma, Ex-

Director of NRCM on 23.9.2003 in the NRCM Office

premises when Dr. Verma was on short visit there and

was presiding over the meeting of Mushroom Society of

India as its President.

By his above act, Dr. Sarvershwar Dayal has

indulged in gross indiscipline and violent acts and

behaved in a manner unbecoming of an ICAR employee


and thereby contravened the provision of Rule 3(1)(iii) of

CCS(Conduct) rules, 1964 as extended to Indian Council

of Agricultural Research employees.”

5.2 The Statement of Imputation of misconduct annexed with

the Article of Charge reads thus:

“STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR. SARVESHWAR DAYAL, SCIENTIST(SS). Dr. Sarveshwar Dayal, Scientist (SS) is presently

posted at CPRI, Shimla. Prior to this he was working as

Scientist at NRCM, Solan in TOT Section.

Dr. R.N. Verma, Ex-Director of NRCM, Solan while

on a short visit to Solan was invited to visit the Centre on

23.9.2003 in the afternoon. Accordingly, Dr. R.N. Verma

came to the Centre at 3.00 p.m. in the staff car and had

discussions regarding the activities and progress of the

NRCM with the Director, in his Chamber upto 4.00 p.m.

Thereafter Dr. R.C. Upadhyay, Secretary Mushroom

Society of India, taking the benefit of his presence at the

Centre, requested Dr. R.N. Verma(who is also the

President of MSI) to preside over the meeting of MSI. Dr.

Verma agreed readily to request for presiding over the

meeting which was being held in the room of Dr. R.C.

Upadhyay. Also present in the meeting were Dr. R.C.

Upadhyay, Secretary, Dr. B. Vijay, Vice-President, Dr.

S.K. Singh, Joint Secretary, Dr. M.C. Yadav, Treasurer

and Shri Deep Kumar, dealing assistant, MSI. During the

course of meeting at about 5.00 p.m., Dr. Verma went to

the toilet. While returning to the meeting room he met a

Winter School Trainee, Dr. Robin Gogoi, (Scientist,

Assam Agricultural University, Jorhat) in the corridor and

started exchanging pleasantries with him. All of sudden


Dr. Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta waylaid

Dr. Verma in the corridor and Dr. Sarveshwar Dayal

started beating him with his hands and Dr.(Mrs.) Yash

Gupta provoked him further to beat and manhandle him

further and said that “this is not enough and beat him

more”. Meanwhile, Dr. Gogoi (trainee from Assam)

disengaged Dr. Dayal from Dr. Verma and Dr. Shwet

Kamal(Research Associate) who was present nearby

prevented Dr. Sarveshwar Dayal from further injury to

Dr. Verma. Meanwhile Dr. Verma returned shivering with

the shock to the meeting and ended the MSI meeting

abruptly.

The above incident created by Dr. Sarveshwar

Dayal and Dr.(Mrs.) Yash Gupta, Scientist(SS) not only

disrupted the meeting of Mushroom Society of India in

midway but also hampered the training of the Winter

School and research work going on at the Centre. This

also gave a bad impression to the trainees assembled at

the Centre from all over the Country.

Dr. Sarveshwar Dayal, Scientist (SS) is in the habit

of misbehaving with seniors in the past and disciplinary

proceedings were issued vide OM. No.3(11)/98-Vig.D

dated 13.11.98 against him for his arrogant and

indisciplined behaviour and a penalty of “withholding of

one increment of pay for one year without cumulative

effect” was imposed on him vide order No.3-11/98-

Vig.(D) dated 14.6.2003. In spite of this, no

improvement in his conduct has been noticed.

By this above act, Dr. Sarveshwar Dayal,

Scientist(SS) has indulged himself in gross indiscipline

and violent acts and behaved in a manner unbecoming of

an ICAR employee and thereby contravened the

provisions of the Rule 3(1)(iii) and (iii) of CCS(Conduct)


Rules, 1964 as extended to Indian Council of Agricultural

Research employees.”

5.3 List of documents(in 11 items) as Annexure-III and the

list of witnesses(7 witnesses) as Annexure-IV were also annexed with

the Article of Charge.

5.4 It is alleged that Dr. Dayal, from the very beginning, was

non-cooperative and had taken dilatory tactics to frustrate the

smooth inquiry. He was served with the charge sheet on 28.07.2004

and was asked to submit his statement of defence but even after

reminders issued on 14.09.2004, 07.10.2004, 10.11.2004,

23.02.2005, he did not submit his written statement in respect of the

charges framed against him, on the contrary, he brought some

baseless allegations against the inquiry officer and those allegations

were referred to the ICAR and it was found totally unfounded and

baseless and, therefore, the disciplinary authority turned down the

allegation of bias raised against the inquiry officer. He was requested

by the inquiry officer to submit the name of his defence assistant but

he insisted for appointing a legal practitioner, which was rejected,

since legal practitioner was not representing the disciplinary

authority. The inquiry officer asked the Charged Officer, Dr. Dayal, to

furnish the details of his defence assistant in writing on 20.03.2006,

19.05.2006, 14.08.2006 and 20.10.2006 but the charged officer did

not take any effective step. It is also alleged that charged officer

submitted a list of fifty six numbers of documents, out of which four

documents were found to be relevant and those were supplied to the

charged officer but, still, he did not submit his response and did not


participate effectively in the proceedings. On the issue of

appointment of defence assistant he took abnormal time and,

ultimately, submitted a tour programme and demanded travelling

allowance for finding out his defence assistant. He, ultimately, named

the Director General of ICAR, Dr. Mangal Rai as his defence

assistant. Since he neither submitted his defence statement nor was

effectively participating in the proceedings, the inquiry officer, after

exhausting the formalities and affording all reasonable opportunities

to the charged officer, fixed the case for recording evidence of the

disciplinary authority. But the charged officer was absent on

12.04.2007 sending a medical certificate of illness from a private

doctor and, therefore, the inquiry officer asked the charged officer to

take a second medical opinion from a Govt./authorized medical

attendant and to submit the same by fax within 14.04.2007, but that

was never submitted by the charged officer. Again the proceeding

was fixed for recording evidence of the witnesses of disciplinary

authority from 09.07.2007 to 11.07.2007 and by a notice, dated

25.05.2007, the charged officer was duly informed and, thereafter,

was also reminded on 14.06.2007, but on that date again by sending

a medical certificate from a private doctor, the charged officer

remained absent and, under such circumstances, the inquiry officer

recorded the evidence of disciplinary authority ex parte on

10.07.2007 and 11.07.2007. The charged officer, thereafter also, did

not participate in the proceeding and did not adduce any defence

evidence. On 28.08.2007, the inquiry officer submitted his report ex

parte against the charged officer holding that the charge framed


against the charged officer has been proved and sent the report to

the disciplinary authority. The disciplinary authority, by sending a

copy of the report, asked the charged officer to submit his reply and,

accordingly, the charged officer submitted his reply. In the

meantime, the criminal case instituted against the respondents, on

the basis of the FIR lodged immediately after the occurrence, which

was registered as Criminal Case No.245/2 of 2003 in the Court of

Chief Judicial Magistrate, Solan, was ended by an order, dated

2206.2007, and both the accused, i.e., the respondents were

acquitted on benefit of doubt. After that judgment, the respondents

applied for dropping the disciplinary proceedings in view of their

acquittal from the criminal case. The disciplinary authority,

considering the enquiry report, the reply submitted by the

respondent and also considering the evidence and materials on

record, including that of the judgment passed by the criminal court,

found the respondent guilty of misconduct and imposed the penalty

of ‘compulsory retirement’ by order, dated 05.11.2007. The relevant

order passed by the disciplinary authority, dated 05.11.2007, reads

thus:

“ O R D E R

WHERES an inquiry under Rule 14 of CCS(CCA)

Rules, 1965(as extended to ICAR employees) was

initiated against Dr. Sarveshwar Dayal, Scientist(SS),

Central Potato Research Institute, Shimla(now posted at

CPRS, Shillong, Meghalaya) vide Council’s Memorandum

No.3(2)/2004-Vig.(D) dated 01.06.2004 containing the

following articles of charge:-


Article of Charge

While working as Scientist(SS), National Research

Centre for Mushroom, Solan, Dr. Sarveshwar Dayal


indulging himself in an act of gross indiscipline and

violence by physically assaulting Dr. R.N. Verma, Ex-

Director of NRCM on 23.09.2003 in the NRCM Office

premises when Dr. Verma was on short visit there and

was presiding over the meeting of Mushroom Society of

India as its President.

By his above act, Dr. Sarveshwar Dayal has

indulged in gross indiscipline and violent acts and

behaved in a manner unbecoming of an ICAR employee

and thereby contravened the provision of Rule 3(1)(iii) of

CCS(Conduct) Rules, 1964 as extended to Indian Council

of Agricultural Research employees.

WHEREAS Dr. Sarveshwar Dayal, Scientist(SS) did

not submit any reply to the charge sheet issued to him

vide memo. dated 01.06.2004. Subsequently, reminders

dated 14.09.2004, 07.10.2004, 10.11.2004 and

23.02.2005 were also sent to the Charged Officer to

submit his reply but even then he neither admitted nor

denied the charge.

WHEREAS Dr. P.S. Naik, Principal Scientist, CPRI,

Shimla was appointed as the Inquiry Officer vide Order

dated 03.05.2005 to inquire into the charges framed

against the Charged Officer.

WHEREAS the Inquiry Officer after holding the

inquiry submitted his report dated 27.08.2007 to the

Disciplinary Authority wherein he has held the charge

against Dr. Sarveshwar Dayal, Scientist(SS) as proved.

WHEREAS after considering the inquiry report, the

Disciplinary Authority observed that the inquiry has been


held as per prescribed procedure and he tentatively

accepted the findings of the Inquiry Officer.

WHEREAS, a copy of the Inquiry Report was sent to

Dr. Sarveshwar Dayal, Scientist(SS) vide Memo. dated

12.09.2007 giving him an opportunity of making his

submissions, if any, with reference to the findings of the

Inquiry Officer.

WHEREAS Dr. Sarveshwar Dayal, Scientist(SS) in

his submissions dated 27.09.2007 in response to Inquiry

Report has raised the points given hereunder(in brief):

(i) Inquiry Officer has acted in a biased manner as he

has held the inquiry ex-parte.

(ii) Inquiry Officer conducted the inquiry when

he(Charged Officer) was sick.

(iii) Inquiry Officer did not give him any opportunity to

present his witnesses.

(iv) Inquiry Officer denied him the opportunity to

engage a Defence Assistant.

(v) Witnesses have been planted against him.

(vi) The inquiry report is in contradiction to the findings

of the Criminal Court of Law.

WHEREAS, the points raised by Dr. Sarveshwar Dayal,

Scientist(SS) in his submissions have been examined

with reference to relevant records of the case, as given

below:

i) Dilatory tactics adopted by the Charged Officer and

his non-cooperation has led to the ex-parte inquiry

against him in the disciplinary proceedings. The

Charged Officer stalled the inquiry proceedings for

almost two years on one pretext or the other. The

representations of Dr. Sarveshwar Dayal,

Scientist(SS) making allegations of bias against the

Inquiry Officer were rejected twice by the

Disciplinary Authority vide Memorandums dated


14.11.2005 & 16.10.2006 as there was no merit in

the submissions of Dr. Sarveshwar Dayal against

the Inquiry Officer.

ii) In April, 2007, when the Charged Officer sought

the postponement of regular inquiry in the nick of

the time of the Regular Hearing on the ground of ill

health, the Inquiry Officer called for a Second

Medical Opinion but the Charged Officer evaded the

said notice. Under these circumstances, Inquiry

Officer adjourned the regular hearing in order to

provide adequate opportunity to the Charged

Officer for defending his case. However, Charged

Officer again exhibited his dilatory tactics on the

eve of next hearing(09.07.2007 to 11.07.2007) by

sending medical certificate from a Private Doctor

and a telegram from New Delhi requesting therein

to postpone the inquiry. Having exercised the

option of Second Medical Opinion at the time of

Regular Hearing in April, 2007 and the reported

non-cooperation of the Charged Officer by evading

the same, the Inquiry Officer was left with no

option but to conduct ex-parte proceedings during

the period from 10.07.2007 to 11.07.2007 as the

Charged Officer had been putting impediments in

the holding of the proceedings for almost two

years.

iii) The Charged Officer on his own volition did not

participate in the inquiry, therefore question of

allowing or disallowing the defence witnesses by

the Inquiry Officer does not arise. Thus, the

submission of the Charged Officer is not based on

facts of the case.

iv) At least on 4 occasions,(vide letters dated

20.03.2006, 19.05.2006, 14.08.2006 and


20.10.2006) Inquiry Officer asked the Charged

Officer to furnish the details of the Defence

Assistant. But the Charged Officer was very casual

in his approach as on one occasion he demanded

traveling allowance to undertake journey in search

of the Defence Assistant and on another occasion

he named Dr. Mangala Rai, Director General, ICAR

as his Defence Assistant. Thus, the contention of

the Charged Officer is contrary to the facts of the

case.

v) All the witnesses mentioned in Annexure-IV of

charge sheet and who also subsequently deposed

during the inquiry have been relevant to the case

and were present in the NRCM Office premises on

the day of incident i.e. 23.09.2003. Thus there is

no truth in the contention of the Charged Officer.

vi) In the criminal case, the Charged Officer has been

acquitted by giving him benefit of doubt and not on

merits. The standard of proof in a criminal case is

different than in a departmental proceeding. Both

are on a different footing. While in a criminal case,

it is proof beyond doubt which is required to

establish a case, in a departmental proceeding it is

the ‘preponderance of probability’. In this case,

based on the statement of witnesses, the Inquiry

Officer has rightly held the charge as ‘proved’.

AND WHEREAS, the report of the inquiry and the

submissions made by Dr. Sarveshwar Dayal,

Scientist(SS) have been considered by the Disciplinary

Authority( i.e. President, ICAR) along with the facts and

records of the case and having regard to the findings of

the Inquiry Officer and submissions made by Dr.

Sarveshwar Dayal, Scientist(SS), the President, ICAR has

decided to accept the findings of the Inquiry Officer.


NOW THEREFORE, after considering the records of

the inquiry and the facts and circumstances of the case,

the President, ICAR being the Disciplinary Authority in

this case, is of the opinion that Dr. Sarveshwar Dayal,

Scientist(SS) indulged himself in an act of gross

indiscipline and violence by physically assaulting Dr. R.N.

Verma, Ex-Director of NRCM on 23.09.2003 in the NRCM

Office premises and ends of justice will be met imposing

the penalty of “Compulsory Retirement” on him.

ACCORDINGLY, the penalty of “Compulsory Retirement”

is hereby imposed on Dr. Sarveshwar Dayal,

Scientist(SS) with immediate effect.

(Rajiv Mangotra) Under Secretary(Vigilance)

For and on behalf of the President, ICAR”

5.5 Being aggrieved, the respondent, Dr. Dayal, approached

the CAT, Guwahati Bench, by filing O.A. No.299 of 2007, assailing

the charge sheet, dated 01.06.2004, and the order of the disciplinary

authority, dated 05.11.2007. The Tribunal, by impugned order, dated

04.09.2009, set aside and quashed the order of penalty, dated

05.11.2007, on the ground that the principles of natural justice was

violated, for non-supply of the documents as demanded by the

respondent and for not giving adjournment as prayed for by the

respondent and that ex parte hearing has caused prejudice to the

respondent. The Tribunal also held that in view of the acquittal of the

respondent from the criminal case on the same bundle of fact, the

charge framed against the respondent would not stand.


6. PROCEEDINGS AGAINT DR.(MRS.) YASH GUPTA:

6.1 Vide Memo. No.F.3(28)/2003-Vig(D), dated 27.05.2004

ICAR initiated disciplinary proceedings against the respondent,

Dr.(Mrs.) Yash Gupta on the following Article of Charge:

“ARTICLE OF CHARGE-I While working as Scientist(SS), NRCM, Solan,

Dr.(Mrs.) Yash Gupta created an embarrassing and

intolerable situation by indulging himself in an act of

gross indiscipline and violence by instigating and

provoking Dr. Sarveshwar Dayal, Scientist(SS), who had

physically assaulted Dr. R.N. Verma, Ex-Director of NRCM

on 23.9.2003 in the NRCM Office when Dr. Verma was

presiding over the meeting of Mushroom Society of India

as its President.

By her above act, Dr.(Mrs.) Yash Gupta

demonstrated gross misconduct by way of her violent

and rude behaviour with Dr. R.N. Verma and acted in a

manner unbecoming of an ICAR employee and thereby

contravened the provision of Rule 3(1)(iii) of

CCS(Conduct) rules, 1964 as extended to ICAR

employees.”

6.2 The Statement of Imputation of misconduct annexed with

the Article of Charge reads thus:

“STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST DR.(MRS.) YASH GUPTA, SCIENTIST(SS). Dr. (Mrs.) Yash Gupta is presently working as

Scientist(SS) at CPRI, Shimla. Prior to this she was

posted at National Research Centre for Mushroom, Solan.

Dr. R.N. Verma, Ex-Director of NRCM, Solan while

on a short visit to Solan was invited to visit the Centre on


23.9.2003 in the afternoon. Accordingly, Dr. R.N. Verma

came to the Centre at 3.00 p.m. and had discussions

regarding the activities and progress of the Centre with

the Director, in his Chamber upto 4.00 p.m. Thereafter

Dr. R.C. Upadhyay, Secretary Mushroom Society of India,

taking the benefit of his presence at the Centre,

requested Dr. R.N. Verma(who is also the President of

MSI) to preside over the meeting of MSI. Dr. Verma

agreed to request for presiding over the meeting which

was being held in the room of Dr. R.C. Upadhyay. Also

present in the meeting were Dr. R.C. Upadhyay,

Secretary, Dr. B. Vijay, Vice-President, Dr. S.K. Singh,

Joint Secretary, Dr. M.C. Yadav, Treasurer and Shri Deep

Kumar, dealing assistant, MSI. During the course of

meeting at about 5.00 p.m., Dr. Verma went to the toilet.

While returning to the meeting room he met a Winter

School Trainee, Dr. Robin Gogoi, (Scientist, Assam

Agricultural University, Jorhat) in the corridor and started

exchanging pleasantries with him. All of sudden Dr.

Sarveshwar Dayal and Dr.(Mrs.) Yash Gupta waylaid Dr.

Verma in the corridor and Dr. Dayal started beating him

with his hands and Dr.(Mrs.) Yash Gupta instigated and

provoked him further to beat and manhandle Dr. Verma

further and said that “this is not enough and beat him

more”. Meanwhile, Dr. Gogoi(trainee from Assam)

disengaged Dr. Dayal from Dr. Verma and Dr. Shwet

Kamal (Research Associate) who was present nearby

prevented Dr. Dayal from further injury to Dr. Verma.

Meanwhile Dr. Verma returned shivering with the shock

to the meeting and ended the MSI meeting abruptly.

The above incident created by Dr. S. Dayal and

Dr.(Mrs.) Yash Gupta, Scientist(SS) not only disrupted

the meeting of Mushroom Society of India in midway but

also hampered the training of the Winter School and


research work going on at the Centre. This also gave a

bad impression of the happenings to the trainees

assembled at the Centre from all over the Country.

Dr.(Mrs.) Yash Gupta, Scientist (SS) is in the habit

of disobeying the Senior Officers of the Institute and lack

of devotion to duty and a charge sheet No.3(12)/98-

Vig(D) dated 16.11.98 was issued to her for her

misbehaviour. The disciplinary Authority while dropping

the charges against her, had warned her to be careful in

future vide order dated 9.4.2003. In spite of the warning

Dr.(Mrs.) Yash Gupta indulged in such misconduct/

offence.


demonstrated gross indiscipline/violent behaviour and

thereby contravened the provision of Rule 3(1)(iii) of

CCS(Conduct) rules, 1964 as extended to Indian Council

of Agricultural Research employees.”

6.3 Along with the Article of Charge, in Annexure-III, list of

eleven items of documents and in Annexure-IV, a list of seven

witnesses were enclosed to prove the charge.

6.4 The respondent, Dr. Gupta, initially after show cause

notice, submitted her written statement denying the allegations and

after the charge sheet was served on her, she asked for supply of

copy of documents and the relevant documents were supplied to her

including that of the statements of the witnesses recorded during

preliminary inquiry. She also made a prayer for keeping the

disciplinary proceeding in abeyance till the criminal case was

disposed of but her prayer was rejected. She, thereafter, asked for

supplying twenty two items of documents but after considering the


prayer, seven documents were found relevant and those were

supplied to her on 25.06.2005. She applied to the disciplinary

authority for permitting her to engage a legal practitioner to defend

her case but her prayer was rejected since the presenting officer was

not a legal practitioner. She named different defence assistants at

different point of time but could not secure attendance of those

defence assistants as named by her, which is reflected in the inquiry

report. Ultimately, she gave an undertaking that if she fail to engage

her defence assistant by the next date, she will conduct her case of

her own and, thereafter, the inquiry officer fixed the case for

recording evidence of the disciplinary authority and in course of

inquiry the Presenting Officer, on behalf of the disciplinary authority,

examined all the witnesses listed in the Annexure-IV to the charge

sheet and they were cross-examined by the respondent. On her

behalf, she also examined two witnesses to prove her innocence. The

inquiry officer on conclusion of the inquiry submitted report on

06.10.2007. Before the enquiry report was submitted she was

acquitted from the criminal case and, thereafter, she made a prayer

to the disciplinary authority praying for dropping the disciplinary

proceeding in view of her acquittal from the criminal case. While the

inquiry officer submitted the inquiry report to the disciplinary

authority, copy of the same was supplied to the respondent, and she

submitted her representation against the report. The disciplinary

authority considering all the materials placed before it, by order

dated 17.01.2008 imposed the penalty of ‘compulsory retirement’ on


the respondent. The relevant order passed by the disciplinary

authority, imposing penalty, reads thus:

“ O R D E R

WHERES, an inquiry under Rule 14 of CCS(CCA)

Rules, 1965(as extended to ICAR employees) was

initiated against Dr.(Mrs.) Yash Gupta, Scientist(SS)[now

Sr. Scientist), Central Potato Research Institute, Shimla

vide memorandum dated 27.05.2004 containing the

following article of charge:-

Article of Charge

While working as Scientist(SS), National Research

Centre for Mushroom, Solan, Dr.(Mrs.) Yash Gupta


indulging herself in an act of gross indiscipline and

violence by instigating and provoking Dr. Sarveshwar

Dayal, Scientist(SS), who had physically assaulted Dr.

R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the

NRCM Office when Dr. Verma was presiding over the

meeting of Mushroom Society of India as its President.


demonstrated gross misconduct by way of her violent

and rude behaviour with Dr. R.N. Verma and acted in a

manner unbecoming of an ICAR employee and thereby

contravened the provision of Rule 3(1)(iii) of

CCS(Conduct) Rules, 1964 as extended to Indian Council

of Agricultural Research employees.

WHEREAS Dr.(Mrs.) Yash Gupta, Sr. Scientist did

not reply to the charge sheet. Subsequently, reminders

dated 14.09.2004, 07.10.2004 and 08.11.2004 were sent

to the Charged Officer to submit her reply but even then

she neither admitted nor denied the charge.

WHEREAS Dr. P.S. Naik, Principal Scientist, CPRI,

Shimla was appointed as the Inquiry Officer vide Order


dated 28.03.2005 to inquire into the charges framed

against the Charged Officer.

WHEREAS the Inquiry Officer after holding the

inquiry submitted his report dated 6th October, 2007 to

the Disciplinary Authority wherein he has held the charge

against Dr.(Mrs.) Yash Gupta, Sr. Scientist as proved.

WHEREAS after considering the inquiry report, the

Disciplinary Authority observed that the inquiry has been

held as per the prescribed procedure and he tentatively

accepted the findings of the Inquiry Officer.

WHEREAS, a copy of the Inquiry Report was sent to

Dr.(Mrs.) Yash Gupta, Sr. Scientist vide Memo. dated

18.10.2007 giving her an opportunity of making her

submissions, if any, on the findings of the Inquiry Officer.

WHEREAS Dr.(Mrs.) Yash Gupta, Sr. Scientist vide

her letter dated 28.11.2007 in response to Inquiry Report

has made the following submissions(in brief):

i) She has been acquitted in the Criminal case

ii) Dr. R.N. Verma i.e. the complainant had malafide

intentions:

iii) Inquiry Officer denied her the opportunity to

engage a Defence Assistant.

iv) Inquiry Officer denied supply of the documents

listed by her.

v) Inquiry Officer denied opportunity to present

witnesses from defence side.

vi) Witnesses have been planted in the case and telling

different story.

vii) Inquiry Officer has used assumption and

suppositions to prove the charge.

viii) Presenting Officer is an interested person.

ix) Inquiry Officer was biased.


WHEREAS, the points raised by Dr.(Mrs.) Yash Gupta, Sr.

Scientist in her submissions have been examined with

reference to relevant records of the case, as given below:

i) In the criminal case, the Charged Officer has been

acquitted by the CJM, Solan by giving her benefit of

doubt and not on merits. Further, the standard of

proof in a criminal case is different than that in a

departmental proceeding. While in a criminal case,

it is proof beyond doubt which is required to

establish a case, in a departmental proceeding it is

the ‘preponderance of probability’. In this case,

based on the statement of witnesses, the Inquiry

Officer has rightly held the charge as ‘proved’.

Furthermore, her contention that she has been

acquitted in the criminal case is also not relevant.

There have been numerous Court judgments

including of Hon’ble Supreme court and High Court

wherein it has been held that if an employee has

been acquitted of a criminal charge, the same by

itself would not be a ground not to initiate a

departmental proceeding against her or to drop the

same in the event of an order of acquittal is

passed.[Suresh Pathrella v. Oriental Bank of

Commerce AIR 2007 SC 199, Raj Kumar v.

Presiding Officer & others 2007(5) SLR 592(Pb. &

Hry), State of Gujrat and others v. Dattu Raghu

Vanzari 2007(3) SLR 675(Gujrat)].

ii) While alleging malafide intention of Dr. R.N. Verma,

the Charged Officer has referred to some

acts/orders dated back to the period when Dr. R.N.

Verma was functioning as Director, National

Research Centre for Mushroom, Solan, Himachal

Pradesh. The fact that a Director takes certain

disciplinary action against a recalcitrant employee


does not imply that he is biased against that

employee. Rather, her own submission itself makes

it quite clear that she was having a grudge against

Dr. Verma for something which he(Dr. Verma) had

done in the past in the normal discharge of his

duties. Thus the contention of Charged Officer is

devoid of merit.

iii) The Charged Officer requested the Disciplinary

Authority vide representation dated 10.06.2005 to

allow a legal practitioner to present the case on her

behalf. As in this case the Presenting Officer was

not a legal practitioner, the Disciplinary Authority

vide Memo. dated 14.07.2005 turned down her

request. Subsequently, she proposed the name of

Shri G.C. Thakur, Superintendent, Court of Session

Judge, Distt. & Session Court, Solan(later on

transferred to Bilaspur) as her Defence Assistant in

September, 2005. But Shri G.C. Thakur was not

relieved by his office. Later on in April 2007, the

Charged Officer proposed the name of some Shri

D.N. Verma, Retired Senior Accounts Officer,

Saproon as her Defence Assistant. This time too

the Inquiry Officer agreed to the request of the

Charged Officer. While agreeing to her request of

engaging Shri D.N. Verma as her Defence

Assistant, the Inquiry Officer made it clear to the

Charged Officer that in future he would not allow

any further delay in the proceedings on the pretext

of non-availability of Defence Assistant. But

despite this, after a lapse of two months, the

Charged Officer once again made a request for

engaging another person namely Shri R.K. Gupta,

Sr. Audit Officer, Officer of AG(Audit) Shimla as her

Defence Assistant. At this juncture, the Inquiry


Officer reminded her about the decision taken in

the previous hearing dated 19.04.2007 in which

she had given an undertaking not to change the

Defence Assistant any more and to put her defence

herself in the case of non-availability of Shri D.N.

Verma i.e. her Defence Assistant. As evident from

the Daily Order Sheet dated 12.07.2007, the

Charged Officer herself agreed to defend her case

and therefore the submission now made by her

that Inquiry Officer denied her the opportunity to

engage a defence assistant is false and devoid of

merit.

iv) The Inquiry Officer allowed 7 additional defence

documents out of a long list submitted by the

Charged Officer after discussing the matter to the

satisfaction of the Charged Officer as evident from

the Daily Order Sheet dated 13.06.2005. But

subsequently, the Charged Officer made a

representation to Disciplinary Authority i.e.

President, ICAR alleging bias on the part of Inquiry

Officer citing denial of some documents as one of

the acts of biasness on the part of the Inquiry

Officer. The President, ICAR did not find any merit

in the submission of the Charged Officer. Thus

there is no merit in the submission of the Charged

Officer.

v) The Charged Officer submitted a lengthy list of 20

defence witnesses. At this stage, the Inquiry Officer

observed that he would not like to use his

discretion to refuse defence witnesses but would

like that the Charged Officer should select 5-6 most

relevant and most appropriate witnesses from the

list. The Charged Officer herself selected 7 defence

witnesses. Even out of these 7 witnesses she


produced just two, during the inquiry. Thus her

submission that Inquiry Officer denied her defence

witnesses is contrary to the facts of case.

vi) The submission of the Charged Officer that

“Witnesses have been planted in the case and

telling different story” is itself contradictory. Had

this been the case of planted witnesses, then they

would have recited exactly the same miniscule

details of the events. There is no merit in the

submission of the Charged Officer. As per the

record of the disciplinary inquiry the witnesses

have described the events of the case from the

stage they appeared during the fateful incident and

the witnesses have not made contradictory

statements during the inquiry. Even in case of the

one specific witness pointed out by the Charged

Officer in her submission i.e. Dr. Robin Gogoi, he

has categorically confirmed, in his statement, the

presence of the Charged Officer at the site of the

assault and the fact of her misconduct regarding

provoking Dr. Sarveshwar Dayal to assault Dr. R.N.

Verma. In all, there were two eyewitnesses of the

misconduct of the Charged Officer of provoking her

husband Dr. Sarveshwar Dayal and both of

them(Dr. Shwet Kamal and Dr. Robin Gogoi) have

confirmed the misconduct of Dr.(Mrs.) Yash Gupta

leaving no iota of doubt about the whole incident.

vii) The conclusion reached by the Inquiry Officer is

based on the evidence which came up during the

inquiry. The sentences referred by the Charged

Officer in this point are part of the logical analysis.

His conclusion about the misconduct has come out

logically out of the evidences and while arriving at

his conclusion, the Inquiry officer has remained


confined to the records of the case presented

during the course of inquiry. Thus, the contention

of the Charged Officer, that Inquiry Officer has

used assumption and supposition to prove the

charge is devoid of merit.

viii) The Charged Officer, herself, has not been able to

cite even one ulterior motive of the Presenting

Officer. Further, presenting the facts of the case by

the Presenting Officer cannot be termed as biased

exercise. Thus the contention of the Charged

Officer is devoid of merit.

ix) The Charged Officer has attributed motives to each

and every action of the Inquiry Officer. Her

submission that the Inquiry Officer deliberately

selected NRC-M, Solan as the venue for inquiry is

one such example. In fact, the Inquiry Officer has

selected the National Research Centre for

Mushroom, Chambaghat, Solan, Himachal Pradesh

as venue for inquiry as most of the witnesses were

based at that place. Further, while considering the

representation of the Charged Officer alleging bias

on the part of Inquiry Officer, the Disciplinary

Authority i.e. President, ICAR did not find any merit

in her submissions and the same was conveyed to

the Charged Officer vide Memorandum dated

14.11.2005.

WHEREAS, the submission of the charged officer itself is

convoluted, verbose and in a round about manner on

several extraneous issues and makes it very clear that

there is truth in that the incident actually happened and

she has no real defence.

AND WHEREAS, the report of the inquiry and the

submissions made by Dr.(Mrs.) Yash Gupta, Sr. Scientist

have been considered by the Disciplinary Authority i.e.


President, ICAR along with the facts and records of the

case and having regard to the findings of the Inquiry

Officer and submissions made by Dr.(Mrs.) Yash Gupta,

Sr. Scientist, the President, ICAR has decided to accept

the findings of the Inquiry Officer.

NOW THEREFORE, after considering the records of

the inquiry and the facts and circumstances of the case,

the President, ICAR being the Disciplinary Authority in

this case, is of the opinion that Dr.(Mrs.) Yash Gupta, Sr.

Scientist indulged herself in an act of gross indiscipline

and violence by instigating and provoking Dr. Sarveshwar

Dayal, Scientist(SS), who had physically assaulted Dr.

R.N. Verma, Ex-Director of NRCM on 23.09.2003 in the

NRCM Office premises and ends of justice will be met by

imposing the penalty of “Compulsory Retirement” on her

as the offence is grave and her continuance in the service

would be harmful to the system.

ACCORDINGLY, the penalty of “Compulsory Retirement”

is hereby imposed on Dr.(Mrs.) Yash Gupta, Sr. Scientist

with immediate effect.

(Rajiv Mangotra) Under Secretary(Vigilance)

For and on behalf of the President, ICAR”

6.5 Being aggrieved, the respondent, Dr.(Mrs.) Gupta

approached the CAT, Guwahati Bench, by filing O.A. No.218 of 2008,

and by impugned order, dated 06.04.2010, the CAT set aside and

quashed the order of the disciplinary authority simply on the ground

that the order passed by the CAT in OA No.299 of 2007(case of Dr.

Dayal) was not challenged in the meantime and further drawing

attention to some particular line of the deposition of Dr. Rabin Gogoi


and Dr. Shwet Kamal, the Tribunal allowed the O.A. and set aside the

order of disciplinary authority in a cryptic order.

7. Learned counsel, Mr. Majumdar, drawing our attention to

the inquiry proceeding and the reports submitted by the inquiry

officer, severely criticized the order passed by CAT in both the OAs

and has submitted that the respondents, being responsible officers of

ICAR committed gross misconduct by physically assaulting the Ex-

Director of the institute intentionally and willfully and when the

disciplinary proceeding was initiated, they have taken hostile stand

and were non-cooperative from the very beginning. They were

creating hindrance in the proceeding by taking imaginary and

unfounded pleas to stall the proceeding. Dr. Dayal even did not

submit his statement of defence though several opportunities were

given to him. He was insisting for 56 items of documents but he

could not show relevancy of those documents and the inquiry officer

found four of the documents relevant and those documents were

supplied to him, which is evident in the inquiry report. Dr. Dayal also

consumed abnormal time for engaging his defence assistant and he

submitted tour programme claiming dearness allowance for

searching out his defence assistant.

Mr. Majumdar also submitted that when all reasonable

opportunity was given to him, he cannot blame the disciplinary

authority and the Tribunal was wrong in holding that principle of

natural justice was violated and that reasonable opportunity was not

given to the respondents.


Learned counsel, Mr. Majumdar has also submitted that

acquittal in the criminal case is not by itself be a ground to drop a

disciplinary proceeding.

Drawing our attention to the deposition of seven

witnesses recorded during the inquiry, learned counsel, Mr.

Majumdar has submitted that all the witnesses made consistent

statements about the occurrence and simply based on the evidence

of the victim, Dr. R.N. Verma, which is fully supported by the

statements of Dr. Rabin Gogoi and Dr. Shwet Kamal, the charges

against the respondents have been well established. He has assailed

the orders of the Tribunal submitting that the Tribunal did not at all

apply its mind and has violated the settled position of law that the

Courts and Administrative Tribunals should not interfere in the order

of domestic Tribunals unless there is gross violation of the principles

of natural justice and that the order of punishment is based on no

evidence and further that the conclusion of the disciplinary authority

is shocking to conscience of the Court. The criminal Court, submitted

by Mr. Majumder, acquitted the accused persons on benefit of doubt

after critical analysis of the evidence in the criminal case, which is

not binding on the disciplinary authority.

Finally, learned counsel Mr. Majumdar, has contended

that in both the disciplinary proceedings, depositions of all the listed

witnesses of the disciplinary authority (seven witnesses), who all are

responsible Govt. officers of ICAR and are colleagues of the

respondents, substantially corroborated the statements of the victim,


who was Ex-Director of the institute and, there is no reason to

disbelieve them. PWs, Dr. Rabin Gogoi and Dr. Shwet Kamal, were

the direct eyewitnesses and other witnesses were inside the office

room/meeting room and they came out hearing the noise and all of

them corroborated the incident, who were reported by the victim and

the eyewitnesses. It has also been transpired in the evidence of the

eyewitnesses, submits Mr. Majumdar, that the respondents, while

working under the victim, Dr. Verma, were not happy with some of

his action and, therefore, were nurturing hostile attitude towards Dr.

Verma and executed it after his retirement by assaulting him

physically in the office premises, and such conduct of respondents,

being the senior officers of the Department is highly detrimental to

the interest of the Department and, therefore, their departure from

the Department, by way of ‘compulsory retirement’ is a minimum

punishment in the facts and circumstances of the case, which

deserves no interference.

In course of hearing, learned counsel, Mr. Majumdar has

submitted that the deposition of seven witnesses recorded in the

disciplinary proceeding of Dr. Gupta has been enclosed in both the

writ cases, and that, inadvertently, evidence recorded in the case of

Dr. Dayal has not been enclosed in the writ petition and prayed for

submitting the same later on, which was allowed since not objected,

most fairly, by learned counsel of the other side and, accordingly, the

copy of the deposition of all the seven witnesses recorded in the

disciplinary proceeding of Dr. Dayal has been placed on record.


In support of his argument, learned counsel, Mr.

Majumdar, relied on the following case laws:

(1) State of U.P. & Ors. v. Ramesh Chandra

Mangalik : (2002) 3 SCC 443(para 11 and 12).

(2) Pepsu Road Transport Corporation v. Rawel

Singh : (2008) 4 SCC 42( para 15).

(3) R.P. Kapur v. Union of India & Anr. : AIR 1964

SC 787(para 9).

(4) K. Venkateshwarlu v. State of Andhra Pradesh :

(2012) 8 SCC 73(para 13).

8. Per contra, learned counsel Mr. Ahmed, while supporting

the judgment and order passed by the CAT, argued that the FIR was

lodged just immediately after the occurrence and a criminal case was

instituted, which has been ended by judgment, dated 22.06.2007,

passed by learned Chief Judicial Magistrate, Solan. Since, on the

same bundle of fact, i.e. the alleged assault of Dr. R.N. Verma,

criminal case was tried by a competent Court of jurisdiction, and,

same set of witnesses were examined in the disciplinary proceeding

as well as in the criminal trial, so, the judgment passed by the

Criminal Court must have a bearing on the fate of the disciplinary

proceeding. The disciplinary authority would drop the proceeding

after the criminal case has ended in acquittal. According to Mr.

Ahmed, while a criminal case was pending for trial and disposal, the

disciplinary authority would keep the proceeding in abeyance but in

the case of the respondents, the disciplinary proceeding was allowed

to continue simultaneously and that has caused injustice on the

respondents. It has also been submitted that a meticulous reading


of the deposition of witnesses, examined on behalf of the disciplinary

authority would reveal that except the eyewitnesses, Dr. Rabin Gogoi

and Dr. Shwet Kamal, other witnesses did not corroborate the

alleged victim, Dr. R.N. Verma and out of the alleged two

eyewitnesses, Dr. Shwet Kamal is a relative of the victim and, so, he

cannot be relied. He has also submitted that the alleged victim, Dr.

Verma earlier worked as a Director of NRCM and he tried to spoil the

service career of the respondents and, therefore, he might have

grudge against the respondents for which he has made a false

allegation against the respondents, which is not supported by the

other witnesses of the disciplinary authority.

The allegation against Dr. Gupta is that of provoking

and/or instigating her husband, Dr. Dayal, in assaulting Dr. Verma,

whereas, there is no evidence of provocation, submits learned

counsel Mr. Ahmed, on record, at least, to show that Dr. Dayal

alleged to have assaulted because of the provocation or instigation

by Dr. Gupta and, under such circumstances of the case, the Tribunal

rightly interfered in the order of punishment of Dr. Gupta, which

cannot legally sustain.

In support of his contention, learned counsel has referred

the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. &

Anr. reported in (1999) 3 SCC 679.

9. Both the respondents(husband and wife) were gazetted

officers, working in highly responsible posts as Senior Scientist under

ICAR. While on duty, Dr. Dayal, in the office premises, manhandled


Dr. Verma, their Ex-Director and, assaulted him physically, while Dr.

Gupta, having been present there in the scene, uttered that Dr.

Verma ought to have been beaten more and instigated Dr. Dayal to

assault Dr. Verma.

10. Let us first see whether the alleged act of the

respondents constitutes “misconduct”. In Black’s Law Dictionary, the

word, “misconduct” is defined as a transgression of some established

and definite rule of action, a forbidden act, a dereliction from duty,

unlawful behaviour, willful in character, improper or wrong

behaviour, a misdemeanor, misdeed, misbehaviour, delinquency,

impropriety, mismanagement, offence, but not negligence or

carelessness. The very word, “misconduct” has not been defined in

the CCS(Conduct) Rules, which is applicable to the respondents. CCS

(Conduct) Rules requires that every Government servant shall all

times—

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant.

10.1 “Misconduct” is wide expression, which is not defined in

any enactment. But it can be inferred, where there are gross

intentional violation of law, and, acts which are prohibited by law.

What amounts to ‘misconduct’ is a matter, which depends on the

circumstances of each and every case.

10.2 Each and every person is governed under the Rule of law

irrespective of his status, rank and position in the society. It is well


recognized principle and proposition of law that the concept of

employment involves three basic components i.e. the Employer,

Employee and contract of employment. The relationship between

employer and employee as master and servant is the product and

creation of a contract. Both the master and servant are governed

under definite terms and conditions of contract. Besides, terms and

conditions of employment, there is a Code of Conduct and principles

of natural justice implied on specific for both master and servant. The

expression ‘conduct’ has a significant meaning which includes his

character, discipline, integrity, decency, efficiency to duty, a conduct

befitting to the position and morality etc. in the matter of private and

public employment. In the case of Union of India v. J. Ahmed

reported in 1978 SC 1028, the apex Court, while summarizing the

meaning of “misconduct”, held—

“(a) Blameworthy conduct of Government servant;

(b) Lack of efficiency, lack of intelligence and

farsightedness and indecisiveness of the Government

servant;

(c) Lack of devotion of duty;

(d) Gross or habitual negligence in performance of

duties.”

10.3 In the case of Probodh Kumar Bhowmick v.

University of Calcutta reported in 1994(2) CLJ 456 : (1994) 8

SLR 300(Cal), his Lordship Hon’ble Justice S.B. Sinha, while relying

on the principles laid down by the Apex Court in the case of

Mahendra Singh Dhantwal v. Hindustan Motors Ltd., reported in

(1976) III LLJ 259(264) SC, Delhi Cloth & General Mills Co.


Ltd. V. Its Workmen, reported in (1969) 2 LLJ 755, State of

Punjab & Ors. V. Ram Singh Ex. Constable, reported in 1992(4)

SCC 54, has held:-

“14. Misconduct, inter alia, envisages breach of discipline,

although it would not be possible to lay down

exhaustively as to what would constitute conduct and

indiscipline, which, however is wide enough to include

wrongful omission or commission whether done or

omitted to be done intentionally or unintentionally. It

means, "improper behavior; intentional wrong doing on

deliberate violation of a rule of standard or behaviour".

“Misconduct is a transgression of some established

and definite rule of action, where no discretion is

left except what necessity may demand; it is a

violation of definite law, a forbidden act. It differs

from carelessness. Misconduct even if it is an

offence under the Indian Penal Code is equally a

misconduct.”

Further, referring to P. Ramanath Aiyar's Law

Lexicon, Reprint Edition 1987 at Page 821 His Lordship, Hon’ble

Justice Sinha in paragraph 21 of the judgment quoted thus:-

“21. P. Ramanath Aiyar's Law Lexicon, Reprint

Edition 1987 at Page 821 defines 'misconduct'

thus:

“The term misconduct implies a wrongful

intention, and not a mere error of judgment,

Misconduct is not necessarily the same thing as

conduct involving moral turpitude. The word

misconduct is a relative term, and has to be


construed with reference to the subject-matter

and the context wherein the term occurs,

having regard to the scope of the Act or statute

which is construed. Misconduct literally means

wrong conduct or improper conduct. In usual

parlance, misconduct means a transgression of

some established and definite rule of action,

where no discretion is left, except what

necessity may demand and carelessness,

negligence and unskilfulness are transgressions

of some established, but indefinite, rule of

action, where some discretion is necessarily left

to the actor. Misconduct is a violation of definite

law; carelessness or abuse of discretion under

an indefinite law. Misconduct is a forbidden act;

carelessness, a forbidden quality of an act and

is necessarily indefinite. Misconduct in office

may be defined as unlawful behaviour of

neglect by a public official, by which the rights

of a party have been affected.”

Thus it could be seen that the word

'misconduct' though not capable of precise of

definition, on reflection receives its connotation

from the context, the delinquency in its

performance and its effect on the discipline and

the nature of the duty. It may involve moral

turpitude, it must be improper or wrong

behaviour; unlawful behaviour, wilful in

character; forbidden act a transgression of

established and definite rule of action or code of

conduct but not mere error of judgment,

carelessness or negligence in performance of

the duty; the act complained of bears forbidden

quality or character. Its ambit has to be

construed with reference to the subject-matter

and the context wherein the term occurs,


regard being had to the scope of the statute

and the public purpose it seeks to serve. The

police service is a disciplined service and it

requires to maintain strict discipline. Laxity in

this behalf erodes discipline in the service

causing serious effect in the maintenance of law

and order.”

11. In the case at hand, the allegation is that the

respondent, Dr. Dayal, while was on official duty, physically

assaulted Dr. Verma, Ex-Director of the Institute and, Dr. Gupta

uttered remarks to assault Dr. Verma more and, thereby insisted her

husband, Dr. Dayal, which, definitely, amounts to a gross misconduct

on the part of the respondents.

12. Admittedly, an FIR was lodged immediately after the

occurrence, which has resulted in Criminal Case No.245/2 of 2003 in

the Court of Chief Judicial Magistrate, Solan. Before the disciplinary

proceeding ended in punishment of the respondents, the judgment in

the criminal case was passed on 22.06.2007, with an order of

acquittal of the respondents. The operative portion of the judgment

reads thus:

“16. After going through the entire prosecution evidence,

as discussed above, it has to be held that prosecution

has failed to prove its case against the accused beyond

reasonable doubt. Hence, my findings on point No.1 is in

the negative and against the prosecution.


FINAL ORDER

17. In view of my findings on point No.1 above, accused

are given benefit of doubt and acquitted of the charge

under section 341, 323, 506 read with section 34 IPC.

File after completion be consigned to record room.

Announced in the open court of this 22nd day of June,

2007 in the presence of Sh. Yashpal Singh APP for State

and accused with Sh. D.K. Thakur, Adv.”

12.1 It is, therefore, evident that the respondents were

acquitted from the criminal case after critical appreciation of the

evidence recorded in the criminal trial. We do not like to make a

comment on the judgment passed by the learned CJM, Solan in the

criminal case. Simply the fact, which is placed before us renders that

the respondents were acquitted on benefit of doubt from the criminal

case.

12.2 In a case of acquittal with benefit of reasonable doubt, it

is quite permissible to initiate departmental proceedings on the same

set of facts, for it is still a point to be decided by the employer as to

whether a person whose character or action is of doubtful nature

should or should not be allowed to continue in service. But in the

case of honourable acquittal with a finding that the charge was false

or that no case was at all made out, and the accused was completely

exonerated of the charges, it would be wrong to draw up a

disciplinary proceeding on the same set of facts.


12.3 It is a well settled proposition of law that for the same

bundle of fact a criminal proceeding and a departmental proceeding

may be initiated simultaneously but where the factual aspect of the

disciplinary proceeding is completely dependent on the fact of the

criminal proceeding, simultaneous disciplinary proceeding before end

of the criminal proceeding is not desirable. In cases of the present

nature, there is no impediment in simultaneous disciplinary

proceedings as well the criminal proceedings.

12.4 Obviously, no principle can be stated in any absolute or

unqualified form, but a general proposition may be laid down as that

where the acquittal is on a technical ground or the facts are held

established which would justify disciplinary action, but the criminal

trial ends in an acquittal, because some necessary ingredient has not

been proved beyond reasonable doubt, there might, as well, be a

case for contending that the departmental authorities could

nevertheless punish. But if for instance, a man is acquitted of a grave

offence like criminal misappropriation on the ground that dishonest

conversion is not at all made out it is certainly anomalous that a

departmental authority be permitted to differ and to hold that there

was a dishonest conversation and further, to inflict punishment on

that basis.

12.5 Acquittal of the accused from criminal case cannot take

away the power of the concerned authority to continue the

departmental enquiry in an appropriate case. In the case of

Corporation of City of Nagpur v. Ramachandra G. Madak,


1981(2) SCC 744 : 1981(3) SCR 22, the Apex Court has held that

normally where the accused is acquitted honourably and completely

exonerated of the charges it would not be expedient to continue a

departmental inquiry on the very same charges or grounds or

evidence, but the fact remains, however, that merely because the

accused is acquitted, the power of the authority concerned to

continue the departmental inquiry is not taken away nor is its

discretion in any way fettered.

12.6 Where a delinquent has been tried in a Criminal court

and acquitted, a departmental enquiry may be held by the

department. Indeed the department has got to follow the norms of

fairness and justice while instituting a departmental enquiry against

him. It is difficult to accept the proposition that a departmental

enquiry cannot be held if the case falls in one straight jacket formula

or another. Whether a departmental enquiry should be held or not

depends upon the facts and circumstances of each case. It is wrong

to fetter the judgment of the disciplinary authority by specifying

circumstances for holding a departmental enquiry and observing that

a case must fall under one or the other circumstances. It is difficult

to imagine innumerable situations which may develop in a dynamic

society consisting of innumerable patterns of unpredictable human

behaviour.

12.7 The departmental proceedings and the criminal

proceedings are entirely different in nature. They operate in different

fields and they have different objectives. The materials or the


evidence in the two proceedings may or may not be the same and in

some cases, at least, material or evidence which would be relevant

or open for consideration in the departmental proceeding if, may

absolutely be tabooed in the criminal proceedings. The rules relating

to the appreciation of evidence in the two enquiries may also be

different. The scope of an enquiry in a criminal trial is to determine

whether an offence against the law of the land has taken place and if

so, to punish the person who has been guilty of that offence. The

scope of a departmental enquiry is to determine whether a public

servant has committed a misconduct or delinquency and even if the

same constitutes, from one point of view, a crime, to consider the

question whether the delinquent deserves to be retained in public

service or to be reverted or to be reduced in rank or otherwise

suitable with for the delinquency concerned. In criminal trial, an

incriminating statement made by an accused, in certain

circumstances or before certain individuals is totally inadmissible

evidence. In a departmental proceeding, the enquiry officer is not

bound by any such technical rule. The degree of proof which is

necessary to record an order of conviction is different from the

degree of proof which is necessary to record the commission of the

delinquency. The rule relating to the appreciation of evidence in the

two proceedings is also not identical. For example, in a criminal trial,

the Court invariably proceeds on the presumption that accomplice

evidence is suspect and shall not be acted upon without an

independent corroboration in material particulars. An enquiry officer

is not bound by any such rule.


In a criminal proceeding, proof is required beyond

reasonable doubt, whereas in a departmental proceedings, it is only

preponderance of probability, as required in civil suit and practically

much else than that.

13. In the case at hand, the respondents were acquitted from

the criminal proceeding on benefit of doubt, while there was evidence

on record that there was an incident as alleged but on some technical

aspect of appreciation of evidence, learned Magistrate has given the

benefit of doubt. In the facts and circumstances of the case, the

disciplinary authority was supposed to consider the evidence on

record in the proceeding and, while there was sufficient evidence on

record to hold the charge, in our considered opinion, there was

nothing wrong in imposing punishment by the disciplinary authority.

14. In the case of Capt. M. Paul Anthony(supra), which is

relied by the respondents, we find that the case stands on a quite

distinguishable fact. In that reported case the appellant was working

as a security officer of Bharat Gold Mines Ltd. and a raid was

conducted by the police in his house, wherefrom mining sponge gold

ball weighing 4.5 grams and 1276 grams of 'gold bearing sand' were

recovered from his house. A criminal case was instituted against him

and a disciplinary proceeding was also initiated. The appellant was

acquitted in the criminal case with a categorical finding that the

prosecution failed to establish its case and that there was no

evidence of any raid by police in the house of the appellant and

recovery of such incriminating articles. In the disciplinary


proceedings drawn against the appellant, he was, however, found

guilty and was dismissed from service. He challenged the order

before the High Court and the High Court directed his reinstatement

with a further direction giving opportunity to the respondents to

initiate fresh proceeding against the appellant. The Apex Court, while

allowing the appeal in paragraph 13 and 22 of the judgment

observed thus—

“13. As we shall presently see, there is a consensus of

judicial opinion amongst the High Courts whose decisions

we do not intend to refer to in this case, and the various

pronouncements of this Court, which shall be copiously

referred to, on the basic principle that proceedings in a

criminal case and the departmental proceedings can

proceed simultaneously with a little exception. As we

understand, the basis for this proposition is that

proceedings in a criminal case and the departmental

proceedings operate in distinct and different jurisdictional

areas. Whereas in the departmental proceedings, where

a charge relating to misconduct is being investigated, the

factors operating in the mind of the disciplinary authority

may be many such as enforcement of discipline or to

investigate the level of integrity of the delinquent or the

other staff, the standard of proof required in the those

proceedings is also different than that required in a

criminal case. While in the departmental proceedings the

standard of proof is one of preponderance of the

probabilities, in a criminal case, the charge has to be

proved by the prosecution beyond reasonable doubt. The

little exception may be where the departmental

proceedings and the criminal case are based on the same

set of facts and the evidence in both the proceedings is

common without there being a variance.


22. The conclusions which are deducible from various

decisions of this Court referred to above are :

(i) Departmental proceedings and proceedings in a

criminal case can proceed simultaneously as there is no

bar in their being conducted simultaneously, though

separately.

(ii) If the departmental proceedings and the criminal case

are based on identical and similar set of facts and the

charge in the criminal case against the delinquent

employee is of a grave nature which involves complicated

questions of law and fact, it would be desirable to stay

the departmental proceedings till the conclusion of the

criminal case.

(iii) Whether the nature of a charge in a criminal case is

grave and whether complicated questions of fact and law

are involved in that case, will depend upon the nature of

offence, the nature of the case launched against the

employee on the basis of evidence and material collected

against him during investigation or as reflected in the

charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot

be considered in isolation to stay the departmental

proceedings but due regard has to be given to the fact

that the departmental proceedings cannot be unduly

delayed.

(v) If the criminal case does not proceed or its disposal is

being unduly delayed, the departmental proceedings,

even if they were stayed on account of the pendency of

the criminal case, can be resumed and proceeded with so

as to conclude them at an early date, so that if the

employee is found not guilty his honour may be


vindicated and in case he is found guilty, administration

may get rid of him at the earliest.”

This decision is in no way in aid of the respondents,

rather the principles laid down therein is fairly against the case of the

respondents.

15. The case of R.P. Kapur(supra), as referred by the

learned counsel of the petitioners, in the facts and circumstances of

the present case, is quite distinguishable and, we find no relevance.

16. In the case of K. Venkateshwarlu(supra), the Apex

Court reiterated that an acquittal in criminal case, not on merit but

on insufficiency of evidence, disciplinary proceedings, if pending

against the appellant, authority concerned may proceed with the

same independently uninfluenced by the judgment in accordance

with law and arrived at an independent decision. The ratio of that

decision may be gainfully applied in the facts and circumstances of

the present case.

17. In the case of Chairman and Managing Director,

United Commercial Bank & Ors. v. P.C. Kakkar reported in

(2003) 4 SCC 364, the Apex Court has held that acquittal in

criminal case is not determinative of the commission of misconduct

or otherwise, and it is open to the authorities to proceed with the

disciplinary proceedings, notwithstanding acquittal in criminal case. It

per se would not entitle the employee to claim immunity from the

proceedings. At the most the factum of acquittal may be a

circumstance to be considered while awarding punishment. It would


depend upon facts of each case and even that cannot have universal

application.

18. Let us now have a glimpse to the evidence recorded

during enquiry. In the case of Dr. Dayal, as already stated earlier, all

the seven listed witnesses, namely, (1) Dr. R.N. Verma, (2) Dr.

Robin Gogoi, (3) Dr. R.C. Upadhyay, (4) Dr. B. Vijay, (5) Dr. S.K.

Singh, (6) Dr. M.C. Yadav, (7) Dr. Shwet Kamal, have been

examined in ‘question answer’ form.

18.1 Dr. R.N. Verma is the victim, who was the Ex-Director of

Dr. Dayal. For fair appreciation, we may reproduce here the

statement of Dr. Verma as recorded by the inquiry officer thus—

“Statement of Dr. R.N. Verma S/o Late Dr. P.N. Verma;

Aged: 65 years, R/o: “Ashirwad”, Rabindra Nagar,

Phase-II, Morabadi University PO, Ranchi-

834008(Jharkhand), Ex-Director, NRCM, Solan witness

at Sr. No.4 of Annexure-IV in the charges framed

against Dr. S. Dayal vide Memorandum F.No.3(2)/2004-

vig(D) dated 01.06.2004.

PO: Will you please narrate the details of the

incidence which took place in NRCM campus on

23.09.2003 against which you made a

complaint to the Authorities in the Council?

Dr. R.N. Verma:

Sir, I came on 23rd September, 2003 on a

personal visit to my son Mr. Sushant Bharati in

the morning. In the afternoon Director, NRCM,

Solan invited me to visit the Centre and I came


to NRCM in the office vehicle and participated in

a discussion with Director, AO and AFACO for

about 45 minutes. After which the Director took

me a round in some of the laboratories to show

their functions. Later I went to Dr. R.C.

Upadhyay’s room to preside over the meeting

of the Mushroom Society of India of which I

was the out-going President. The meeting was

being attended by other office bearers of the

Society namely Dr. R.C. Upadhyay, Dr. B. Vijay,

Dr. S.K. Singh etc. After sometime I went out

on nature’s call and when I was coming back I

happen to meet Dr. Rabin Gogoi who was then

participating in a training programme at NRCM.

We were knowing each other for quite some

time when I was serving in the North Eastern

Complex. When I was exchanging pleasantry

with Dr. Gogoi in the Corridor Dr. Sarveshwar

Dayal alongwith his wife Dr. Yash Gupta came

towards us shouting from a distance that “Adab

Arj hai R.N. Verma” and after reaching me he

slapped on my left side of the face. His wife

from behind was shouting to hit more and

instigating him by saying more is required.

After hearing the noise Members of MSI namely

Dr. Upadhyay, Dr. Vijay, Dr. S.K. Singh, Dr.

Yadav and Dr. Shwet Kamal came out from the

meeting room and the nearby laboratory. Dr.

Shwet Kamal and Dr. Gogoi attempted to save

me from further assault by Dr. Dayal. The

Director along with some other staff also

reached the spot after few minutes. Although I

wanted to continue with the meeting of MSI but

since the atmosphere was vitiated and all the


members were feeling tense and disturbed, the

meeting was postponed and I was taken to the

Director’s Chamber and consoled by one and

all. The matter was officially reported to the

Police and the Police party arrived at the scene

within a few minutes. After visiting the scene of

the incidence the police recorded my statement

and got my signature on the same.

On going back to Ranchi I though it proper to

put a written complaint to the Higher

Authorities of the ICAR namely Director General

and Deputy Director General(Hort.) separately

by fax on 01.10.2003.

IO: Can you please have a look at documents at

SE-3 and SE-9 and verify their correctness?

Dr. R.N. Verma:

I verify documents at SE-3 and SE-9, which

were written and signed by me. I am not at all

aware of SE-4(FIR). I never lodged any

complaint of this incidence with the police.

When the Police Party arrived at NRCM after

official intimation they took my statement at

NRCM itself and got it signed from me.

IO: At what time the incident took place?

Dr. R.N. Verma: It was between 4.30—5.00 P.M. I don’t

remember the exact time.

IO: What is the approximate distance between the

site of incident and venue of the MSI meeting?

Dr. R.N. Verma: It should be about 10 to 15 feet.


IO: Who were the eye witnesses to the incidence?

Dr. R.N. Verma: Dr. S. Dayal, Dr. Yash Gupta and Dr.

Gogoi were eye witnesses at the time of beating

but later when he was trying to further assault

and shout Dr. Shwet Kamal, Dr. Upadhyay, Dr.

Vijay and Dr. S.K. Singh came at the scene.

IO: As a Director, NRCM, Solan what differences

you had with Dr. Dayal and Dr. Yash Gupta

which culminated in such a incidence?

Dr. R.N. Verma: I had no personal differences either

with Dr. Dayal or Dr. Yash Gupta but while

following the official procedures and general

discipline as well as performing duties and work

of the Centre Dr. Dayal and possibly Dr. Yash

Gupta might have mistaken my actions wrongly

due to which they took the law in their own

hand and performed this ghastly incident and

failed to observe the discipline and decorum of

a Scientist particularly in the office premises.

IO: Can you please indicate few instances of official

differences and did you try to amicably sort out

them?

Dr. R.N. Verma: To cite only a few, the most important

is that Dr. Dayal did not undertake a single

research project at the Centre despite repeated

requests and pursuations. He failed to attend

several training programme for which he was

nominated as a trainee. He flouted Office

Orders on various occasions and refused to lead

Sports Team as Chief-de-Mission at the last

moment. As far as I remember he also failed to

submit his Annual Confidential Reports on


certain occasions. I may point it out that such

indifferent and disobedient attitude of Dr. Dayal

was despite the fact that I tried my level best

to motivate and encourage him to indulge in

scientific and development activities of the

Centre by giving both oral and written advises

and suggestions. Even on one occasion I had

gone out of way to provide him the required

facilities to carryout his past experiments on

low temperature cabbage and raise a crop at

NRCM, Chambaghat although it was not a

mandate crop of the Centre, only to keep his

scientific pursuit alive, so that he may involve

himself fully in research.

In case of Dr. Yash Gupta also I was positive in

my approach in helping her in all her endeavour

and even recommended her name for Young

Scientist Award and award for writing Hindi

Book on Button Mushroom. Besides she was

given various assignments such as Organizing

Hindi Week, Staff Welfare Association etc.

On the other hand, Dr. Dayal and his wife

Dr.(Mrs) Yash Gupta seem to nurse personal

enmity and hatred against me and wanted to

harm me as is evident from their various

actions, besides the one under investigation.

For example, just before my retirement, Dr.

Dayal sent false complaints to ICAR as admitted

by them in their submissions to the Hon’ble

CAT, Chandigarh in an OA filed around

November, 2003, which were all found baseless

and false by the ICAR. Also, in the same OA

they alleged my direct role and malafide in their


transfer to CPRS, Shillong, which was also

rejected by the Hon’ble CAT. Dr. Dayal had

been highly aggressive and rough in behaviour

as evident from several complaints lodged

against him from various staff members of

NRCM, Solan and has faced charges of

indiscipline etc. earlier also, which I do not

remember in details today.”

18.2 We may also reproduce here the deposition of two other

eyewitnesses, i.e. Dr. Robin Gogoi and Dr. Shwet Kamal.

The statement of Dr. Robin Gogoi reads thus:

Statement of Dr. Robin Gogoi, AAU, Jorhat presently at

IARI, New Delhi; S/o Late Sh. Bhuban Chandra Gogoi,

Aged: 43 years, R/o: Scientist Apartment, III-D, IARI,

Pusa Campus, New Delhi—12 witness at Sr. No.2 of

Annexure-IV in the charges framed against Dr. S. Dayal

vide Memorandum F.No.3(2)/2004-vig(D) dated

01.06.2004.



23.09.2003 in your presence and what were

you doing there and what exactly happened

immediately after that?

Dr. Robin Gogoi: I was attending a Winter school

training programme of ten days at NRCM,

Chambaghat, Solan(H.P.). On 23th September

2003 at around 4.30 P.M. I was engaged in

one practical class. At that time I saw from the

classroom that Dr. R.N. Verma was walking in

the corridor of that Classroom. As I knew him

for the last several years, I immediately came


out of the classroom and wished him. He

stopped and started talking with me. At that

moment suddenly I heard a voice of Dr. S.

Dayal from my backside who was loudly

wishing some words to Dr. Verma and came

near to us. He shook hand with Dr. Verma and

then embraced him and very quickly Dr. Dayal

slapped on the face of Dr. Verma. Another

trainee of the Winter School Dr.(Mrs) Yash

Gupta was instigating Dr. Dayal to beat more.

There was some noise at the site listening to

which Dr. Shwet Kamal who was working in

nearby laboratory also came to us.

Immediately after the incidence I was

surprised and shocked to see the behaviour of

Dr. Dayal and myself and Dr. Shwet Kamal

tried to rescue Dr. Verma. Immediately after

committing the incidence Dr. Dayal and Dr.

Yash Gupta left the place hurriedly.

IO: Can you please have a look at document SE-7

and verifying its correctness?

Dr. Robin Gogoi: I verify document SE-7 that had also

been signed by me.

IO: As per SE-7, seven trainees have lodged the

complaint with the Director, NRCM. How did

they know about the incidence?

Dr. Robin Gogoi: In fact I was the only person present at

the time of incidence. I informed the incidence

to other trainees who felt that the matter

needs to be brought in the notice of the

Director.

IO: Did Dr. Yash Gupta come along with Dr. Dayal?


Dr. Robin Gogoi: Dr. Dayal came from somewhere else,

whereas, Dr. Mrs. Yash Gupta joined him after

coming from the class.

IO: When Dr. Dayal embraced Dr. Verma and

slapped him what was the reaction of Dr.

Verma?

Dr. Robin Gogoi: He was shocked and shivering too

much.

IO: How did you and Dr. Shwet Kamal rescued Dr.

Verma?

Dr. Robin Gogoi: We both tried to hold Dr. Dayal and

prevented him from beating Dr. R.N. Verma.

PO: Did the Police come after the incidence and

whether the Police took your statements?

Dr. Robin Gogoi: The Police did come to campus but

they did not take my statement.”

18.3 The statement of Dr. Shwet Kamal reads thus:

Statement of Dr. Shwet Kamal, S/o Dr. Nagendra

Kumar; Aged: 37 years, R/o: 7-B, Express view

Apartment, Sector-93, Noida(U.P.) witness at Sr. No.3 of

Annexure-IV in the charges framed against Dr. S. Dayal

vide Memorandum F.No.3(2)/2004-vig(D) dated

01.06.2004.



23.09.2003 in your presence, what were you

doing there and what exactly happened

immediately after Dr. Sarveshwar Dayal

manhandled Dr. R.N. Verma?


Dr. Shwet Kamal: At that time it was about 4.45 P.M.

and I was guiding a practical to winter school

trainees. I heard that Dr. Verma was talking to

Dr. Robin Gogoi outside the lab. I just came

out and was standing 6-7 ft away from Dr.

Verma in the corridor. Just before that Dr.

Yash Gupta had left the practical and gone

down. I was in the corridor. Dr. Dayal came

saying “Adab Arj Dr. Sahid” Dr. Yash Gupta

was following Dr. Dayal. I thought Dr. Dayal

wanted to greet Dr. Verma. Dr. Dayal

embraced Dr. Verma and suddenly slapped on

the left side of Dr. Verma’s face. Dr. Robin

Gogoi and I tried to disengage Dr. Dayal but

Dr. Yash Gupta has pulled me from behind

saying “Yeh to kuch bhi nahi hai isko aur mar

padni chhahiye” in the meantime other

trainees came out and Dr. Dayal ran away

from the spot. After that MSI meeting was

adjourned Dr. Upadhyay, Dr. Vijay, Dr. Singh

and Dr. Yadav came out. We all went to

Director’s Office from where Local Police was

called and FIR was lodged against Dr. S.

Dayal.

IO: You are signatory to document SE-8. Would

you please verify correctness of this

document?

Dr. Shwet Kamal: I verify above document.

IO: From your above statement it appears that the

incidence occurred in your presence. Is it true

that Dr. Sarveshwar Dayal actually

manhandled Dr. R.N. Verma and Dr. (Mrs.)

Yash Gupta instigated him?


Dr. Shwet Kamal: Yes I have seen Dr. Sarveshwar Dayal

slapping Dr. R.N. Verma and Dr.(Mrs.) Yash

Gupta instigating Dr. Dayal to beat more. In

fact it was me and Dr. Robin Gogoi who

separated Dr. Sarveshwar Dayal from Dr. R.N.

Verma.

IO: How much was the distance between the

laboratory you were guiding practical and the

site of incidence?

Dr. Shwet Kamal: The incidence took place just outside

the laboratory.

IO: Did you ever work with Dr. Sarveshwar Dayal?

Dr. Shwet Kamal: When I was SRF, we both were

working in the same laboratory although I was

not directly working under him.

IO: Did you have any problems working with Dr.

Sarveshwar Dayal in the same laboratory?

Dr. Shwet Kamal: No I did not have any problem

working with Dr. S. Dayal.

PO: Who others were present at the site when the

incident took place?

Dr. Shwet Kamal: Myself, Dr. Robin Gogoi, Dr. R.N.

Verma, Dr. S. Dayal and (Dr.) Mrs. Yash Gupta

were present at the time of incidence in the

corridor. After listening to the noise the

trainees of Winter School as well as Executive

Members of MSI came out to the corridor.

IO: How did you disengage Dr. S. Dayal from Dr.

R.N. Verma?


Dr. Shwet Kamal: I pulled Dr. Dayal away from Dr. R.N.

Verma. While doing so Dr.(Mrs.) Yash Gupta

was pulling me back saying that “Yeh to kuch

bhi nahi hai isko aur mar padni chhahiye.”

18.4 The other witnesses, Dr. R.C. Upadhyay, Dr. V. Vijay, Dr.

SK. Singh and Dr. M.C. Yadav, all came out hearing the noise in the

corridor and saw the respondents as well as Dr. Verma and the

eyewitnesses, Dr. Gogoi and Dr. Kamal. They all came to know about

the occurrence from Dr. Verma and what they learnt from Dr. Verma

they stated the same fact before the inquiry officer, who recorded

the same in ‘question answer’ form. The respondent, Dr. Dayal,

neither cross-examined those witnesses nor adduced any evidence to

controvert the evidence of those witnesses. The deposition of the

witnesses remained completely un-rebutted and, there is nothing to

hold that Dr. Dayal did not manhandle and/or did not physically

assault Dr. Verma in the corridor of the office. His wife, the other

respondent was also present there and directly instigated Dr. Dayal

that Dr. Verma was rightly beaten up and that he should have been

beaten more.

19. In the proceedings of Dr. Gupta also, all those seven

witnesses have been examined and they were cross-examined by Dr.

Gupta. The victim, Dr. R.N. Verma in his statement narrated the

entire incident.


For fair appreciation, we may reproduce here the

statement of Dr. Verma, recorded by inquiry officer in ‘question

answer’ form, which reads thus:

“Statement of Dr. R.N. Verma S/o Late Dr. P.N. Verma;

Aged: 65 years, R/O: “Ashirwad”, Rabindra Nagar,

Phase-II, Morabadi, University PO, Ranchi-

834008(Jharkhand), Ex-Director, NRCM, Solan witness

at Sr. No.4 of Annexure-IV in the charges framed

against Dr.(Mrs.) Yash Gupta vide Memorandum

F.No.3(28)/2004-Vig(D) dated 27.05.2004 held at NRC

for Mushroom, Chambaghat, Solan(H.P.) on 12.07.2007.

Dated: July 12, 2007


manhandling incidence, which took place in the

NRCM Campus on 23.09.2003 for which you

made a complaint(P-3) against Dr.(Mrs.) Yash

Gupta?

Dr. R.N. Verma: Actually on 23.09.2003 I visited Solan

on a private visit to my. In the afternoon the

Director, NRCM, Solan invited me to visit the

Centre. After participating at a discussion in the

Director’s Chamber I was taken around in some

of the laboratories showing their facilities and

working. Later I went to Dr. R.C. Upadhyay’s

room to preside over the meeting of the MSI

Executive committee since I was the President

of the Society. The meeting was attended by

Dr. R.C. Upadhyay, Dr. B. Vijay, Dr. S.K. Singh

and Dr. M.C. Yadav. After sometime I had to go

out on nature’s call and when I was coming

back I met Dr. Rabin Gogoi whom I knew for


several years. Dr. Gogoi and myself were

exchanging pleasantries in the corridor.

Suddenly I saw Sarveshwar Dayal who was

coming to me and from a distance he loudly

“Adab Araj hai R.N. Verma”. Within a few

seconds he reached me, shook hands with me

and suddenly slapped me on left part of the

face. From behind Dr. Dayal, Dr.(Mrs.) Yash

Gupta was shouting and instigating him to

make further assault saying ‘give him more,

give him more this is not enough’. I was taken

aback and fortunately Dr. Gogoi and Dr. Shwet

Kamal who were standing on the door of the

lab. Rushed and saved me from further assault

by holding him and pulling him away.

Simultaneously all the MSI Executive Members

had also came out. I along with them went

back to Dr. Upadhyay’s room and tried to come

to normal state of mind. But all decided to

postpone the meeting and they took me to

Director’s Chamber. One and all consoled me.

The matter was officially reported to the Police

immediately and a FIR was lodged by the A.O.

After few minutes a Police party arrived at

NRCM Office campus and reported to the

Director from where the officer-In-Charge went

to visit the site of the incidence. Coming back

from there they took my statement and

obtained my signature on the same. The Police

looked for Dr. Dayal and Dr. Gupta in the NRCM

premises but by then perhaps they had left.

After going to Ranchi I thought it appropriate to

send a written complaint to the Higher


Authorities of the ICAR namely DDG(Hort.),

ICAR. I verify the same(P-3).

PO: At what time the incident took place?

Dr. R.N. Verma: It was around 4.45-5.00 P.M. on

23.09.2003.

PO: What is the approximate distance between the

site of incident and venue of the MSI meeting?

Dr. R.N. Verma: I think it should be around 15 fts.

PO: Whether Dr. S. Dayal and Dr. Yash Gupta were

indifferent to you as a Director?

Dr. R.N. Verma: I think the work indifferent is too

inadequate. When they had gone to the extent

of taking the law in their hands and indulged in

assaulting me, their attitude towards me is very

much obvious. I had been in this Centre for

more than seven and half years and I had all

the cooperation and support from the entire

staff of the Centre through which only the

Centre could win the “Best Institution Award

from the ICAR”. I don’t know why Dr. Dayal and

Dr.(Mrs.) Yash Gupta could not cooperate like

others and involve in the mandated programme

of the Centre in the constructive manner. Had

they followed the normal office procedures,

discipline, decorum and the routine work of the

Centre such nasty incidence in which they

involved themselves did not have occurred. It

was unfortunate that Dr. Yash Gupta instead of

giving good counseling and sane advice to her

husband, herself indulged in instigating and

encouraging her husband to go to such hostile


and aggressive activity to assault me that too

one and half years after my retirement and

leaving Solan forever.

PO: What may be the reasons, which culminated

into such an incident where Dr. Yash Gupta

provoked her husband, to beat yourself?

Dr. R.N. Verma: First of all I think indulging in such a

violent and wild activities was not at all

necessary and hence why did she(Dr. Mrs. Yash

Gupta) advise and instigate her husband to go

for the same may better be answered by

herself. I can only guess that they might have

gone to this extreme step with a revengeful

mind and attitude.

PO: What is your view for such an act of Dr.(Mrs.)

Yash Gupta being a women scientist who

instigated her husband to beat a Director at the

work place?

Dr. R.N. Verma: I think it may not be possible for me to

comment more than what I have said earlier

and it will probably depend on the personal

relations between Dr. Dayal and Dr. Gupta.

PO: Did you actually see that Dr. Gupta came to the

site of the incident?

Dr. R.N. Verma: Yes I very much saw Dr. Yash Gupta

instigating Dr. S. Dayal to beat more and more.

Cross-examination:

CO: Did you give your statement to the Police when

they came to the NRCM? Does this


document(D-4) contain the statement given by

you to the Police?

Dr. R.N. Verma: Yes, when the Police Party came and

visited the site of the incident they asked and

took my statement and got my signature done

on the same. The D-4 document shown to me

here only is not the statement given by me to

the Police party on 23.09.2003 evening at

NRCM. It seems to be copy of a Police Diary

and contains the contents recorded in my

statement given on 23.09.2003 besides other

details noted by the Office of the Police Station.

CO: At what time the meeting of the MSI Executives

started?

Dr. R.N. Verma: The MSI meeting started around 4.30

P.M. as far as I remember.

CO: Did you transact some business before going to

urinal?

Dr. R.N. Verma: Because I had come to the meeting

venue after visiting the Director and the

laboratories, I had to leave the meeting mid

way itself.

CO: After how much time of starting the meeting

did you leave for urinal?

Dr. R.N. Verma: Obviously I don’t remember these finer

details after so many years.

CO: Exactly at what location you were talking with

Dr. Gogoi in the corridor and for how long you

were talking with him?


Dr. R.N. Verma: It was nearest to the Crop

Improvement Laboratory were training was

going on. It must be a few minutes only when

we were talking. I don’t remember the finer

details.

CO: How did Dr. Dayal assault you?

Dr. R.N. Verma: He came rushing to me saying ‘Adab

Araj hai R.N. Verma’, held me and within

moments slapped me before I could know

anything.

CO: How many slaps did he give?

Dr. R.N. Verma: As far as I remember he gave only one

slap on my face and a few thrashes(Dhakka-

Mukka) to my body.

CO: Did you fall when he was assaulting you?

Dr. R.N. Verma: I stepped back as a natural response

before Dr. Shwet Kamal and Dr. Robin Gogoi

disengage Dr. Dayal and helped to save me

from further assault.

CO: Did Drs. R.C. Upadhyay, B. Vijay, Dr. S.K.

Singh, M.C. Yadav, Dr. Shwet Kamal and Dr.

Robin Gogoi all of them save you?

Dr. R.N. Verma: No. I have told that they came out

hearing the noise but Dr. Upadhyay’s room was

about 15 feet away and they were simply mute

spectators since by the time they could reach

the spot of the incident was over. Dr. Robin

Gogoi and Dr. Shwet Kamal saved me from

further assault my disengaging Dr. Dayal.


CO: Did you depose in the court of CJM in the

similar case?

Dr. R.N. Verma: Yes, I deposed in the CJM’s court but

unfortunately CJM was not in his seat till more

than three-fourth of my statement was

recorded.

CO wanted to put certain questions related to her

previous case in the year 1997(D-5). PO

Objected to this saying that this is not relevant

to the deposition by the witness. IO sustained

the objection.

Re-examination:

PO: Do you think that Dr. Sarveshwar Dayal had

beaten yourself only because Dr.(Mrs.) Yash

Gupta provoked and instigated him to do so?

Dr. R.N. Verma: I can’t say that it was solely the result

of provocation by Dr.(Mrs.) Yash Gupta that led

to my assault by Dr. S. Dayal, but definitely her

provocation and instigation must have played

major role in the same?

IO: Dr. S. Dayal and Dr.(Mrs.) Yash Gupta were not

actively involved in research and Institute

building activities. Did you try to motivate them

and bring them in the mainstream of NRCM?

Dr. R.N. Verma: Yes, I tried my level best to bring both

of them to the main stream of the Scientific

team of the Centre by providing facilities, giving

suggestions and advises and when inquired. I

was particularly paying more attention to Dr.

Dayal since he was comparatively newer to

mushroom. To keep his research pursuit alive


once I even went out of the way to provide him

all facilities to lay field experiments on his

cabbage breeding material which he brought

from his previous place of posting, although the

cabbage was not the mandatory crop of the

CRCM. Similarly to encourage Dr.(Mrs.) Yash

Gupta, I even recommended her name for

Young Women Scientist Award and Hindi writing

Book Award besides nominating both of them

for various training programmes, Seminars

etc.”

20. If we see the statement carefully, particularly, the

cross-examination of Dr. Verma, it would be evident that in cross-

examination, the incriminating statement as against the respondents

has rather been confirmed. Further, Dr. Robin Gogoi and Dr. Shwet

Kamal also made the same statement. In cross-examination of Dr.

Shwet Kamal, he has admitted that Dr. Verma is his maternal uncle.

There is nothing to disbelieve or to doubt the statement of Dr. Kamal

for the only reason that he is a relative of Dr. Verma, while we find

corroboration from the statements of other witnesses that Dr. Kamal

was working as a scientist in the said institute at that relevant point

of time and was present there at the time of occurrence. Relationship

cannot be a factor for drawing an adverse inference against his

otherwise cogent statement. Dr. Gogoi is an independent witness, a

scientist working in the establishment and he made a consistent

statement that when Dr. Verma was in conversation with him, Dr.

Dayal manhandled and assaulted Dr. Verma. The evidence of this

witness has not been shaken in any manner in cross-examination.


The Tribunal has singled out one line from the statement of Dr. Gogoi

in his re-examination, where a specific question asked by the PO, to

which Dr. Gogoi made the statement. Both the question and answer

read thus:

“PO: Do you think Dr. Verma was beaten by Dr. Dayal

because he was provoked and instigated by Dr.

Yash Gupta?

Dr. Robin Gogoi: It is sure that Dr. Dayal had beaten Dr.

Verma. But I am not sure that Dr. R.N. Verma

was beaten on provocation and instigation from

Dr.(Mrs.) Gupta.”

The above statement can in no way be interpreted or

construed that Dr. Gogoi intended to mean thereby that there was no

instigation by Dr. Gupta to her husband in the alleged assault. What

was in the mind of Dr. Dayal cannot be adjudged or read as to

whether he assaulted Dr. Verma at the instance of his wife or not,

but fact remains, when Dr. Dayal assaulted Dr. Verma, at that time

Dr. Gupta was also there and she uttered saying to beat Dr. Verma

and that he should have been beaten more. Therefore, irrespective of

the fact whether Dr. Dayal had beaten Dr. Verma at such instigation

or not is not at all a factor, what she uttered itself is a misconduct on

her part for which she deserved punishment.

We have also gone through the statements of defence

witnesses examined by Dr. Gupta in her proceeding. DW Ajeet

Kumar stated that on 23.09.2003, at 4.30/5.00 pm, he was in the

lab of Crop Improvement Section, headed by Dr. Upadhyay and that


he did not hear any quarrel or noise. DW Dr. S.R. Sarma stated

about some previous inquiry in the name of Dr. Gupta, which is not

relevant. He further stated that on 23.09.2003, he was not present in

the office of NRCM. The statement of defence witnesses, therefore, is

in no help of Dr. Gupta, to discredit the evidence of disciplinary

authority.

21. Regarding ex parte hearing of the proceeding against Dr.

Dayal, we find enough material on record clearly supporting the case

of disciplinary authority that Dr. Dayal from the very inception was

non-cooperative and by hook or crook was trying to delay and

frustrate the disciplinary proceedings drawn against him. He did not

participate in the proceedings taking this and that plea. He did not

even submit his statement of defence on receipt of show cause notice

and the charge sheet. He cannot claim advantage of his own wrong.

Since he did not participate in the proceeding regularly, the inquiry

officer was compelled to have the ex parte hearing. The observation

of CAT that reasonable opportunity was not given to the charged

officer in the circumstances of the disciplinary proceedings is

unfounded and unfortunate. The Tribunal would go into details of the

inquiry proceedings and then was supposed to observe about the

denial of principles of natural justice.

22. Respondents also contended that the documents claimed

by them were not supplied. The Tribunal entertained such plea of the

respondents without meticulously examining the materials on record

and without recording a finding as to whether those documents,


which the respondents asked for, were at all relevant or not for just

decision of the disciplinary proceedings. If a delinquent demands a

bunch of documents, the yardstick for such demand on the part of

the delinquent is to show that those were material and in absence of

those documents, they would be prevented from taking an effective

defence. In the cases at hand, unfortunately, the respondents failed

to put up a cogent case that they were deprived of their rights for

denying the supply of any particular document. As we find on record,

Dr. Dayal demanded fifty six items of documents, wherefrom the

inquiry officer found only four as relevant. Dr. Gupta also demanded

fifteen items of documents initially and then demanded twenty two

items of documents but she has also failed to make out any case that

those documents were relevant for just decision of the disciplinary

proceedings. On the ground of non-supply of all documents, we find

no injustice caused to the respondents.

We may gainfully refer here the observation of the Apex

Court in the case of Ramesh Chandra Mangalik(supra) in

paragraphs 11 and 12, which read thus:

“11. Learned counsel for the appellant has further submitted that particular documents copies of which are said to have not been supplied are not indicated by the respondent much less in the order of the High Court nor has their relevance been pointed out. The submission is that the delinquent will also have to show as to in what manner any particular document was relevant in connection with the inquiry and what prejudice was caused to him by non furnishing of a copy of the document. In support of this contention, reliance has been placed upon a case reported in Chandrama Tewari v. Union of India reported in 1997


Supp. SCC 518. It has been observed in this case that the obligation to supply copies of documents is confined only to material and relevant documents which may have been relied upon in support of the charges. It is further observed that if a document even though mentioned in the memo of charges, has no bearing on the charges or if it is not relied upon or it may not be necessary for cross-examination of any witness, non-supply of such a document will not cause any prejudice to the delinquent. The inquiry would not be vitiated in such circumstance. In State of Tamil Nadu v. Thiru K.V. Perumal : (1996) 5 SCC 474 relied upon by the appellant, it is held that it is for the delinquent to show the relevance of a document a copy of which he insists to be supplied to him. Prejudice caused by non-supply of document has also to be seen. In yet another case relied upon by the learned counsel for the appellant, reported in (2001) 6 S.C.C. 392 State of U.P. v. Harendra Arora and Anr., it has been held that a delinquent must show the prejudice caused to him by non-supply of copy of document where order of punishment is challenged on that ground.

12. Learned counsel for the appellant submitted that no material or document has been relied upon by the inquiry officer, copy of which or inspection thereof may not have been allowed to the respondent. No material has been obtained after the date of hearing nor has any such material been made use of by the inquiry officer. It is further submitted that in the judgment of the High Court it has nowhere been indicated that any material or document, copy of which has not been supplied to the respondent, was used much less any prejudice, if caused to the respondent. Learned counsel for the respondent could not pinpoint any particular document which may have been made use of by the inquiry officer for establishing the charges leveled against the respondent, copies of which or inspection thereof may not have been allowed to the delinquent by the Department. No submission has been advanced on behalf of the respondent on the point of prejudice which may have been caused to the respondent by non-supply of document, if any. The high Court has also not gone into the question of the relevance of the documents, copies of which are said to have not been supplied to the respondent and consequent prejudice, if caused. We therefore find that the finding of the High


Court that the principles of natural justice have been violated for non-supply of documents to the respondent is sustainable. The cross-examination of a witness which was sought for, had unfortunately died which fact was also brought to the notice of the respondent.”

In the case of Pepsu Road Transport

Corporation(Supra), the respondents even after notice did not turn

up and allowed the proceeding to go ex perte so that he may take

the plea of violation of the principles of natural justice. Considering

the facts and circumstances of that case, the Apex Court observed—

We are not entering into correctness or otherwise of the allegations

of the Corporation. One thing, however, is certain that in spite of

service of show cause notice, the respondent failed to appear at the

enquiry and the Enquiry Officer had to proceed with the enquiry in

absence of the respondent.

In the present case, the respondent, Dr. Dayal was well

informed by notice about the hearing of the proceedings but he

remained absent simply sending letter of illness with a medical

certificate from a private doctor. His conduct from the inception

shows that he did so deliberately with a view to take a future plea of

denial of natural justice. Inquiry report, clearly depicting the picture

of non-cooperation extended by Dr. Dayal throughout the course of

inquiry, he cannot take the advantage of his own wrong, while he is

guilty of non-cooperation.

23. The plea of the respondents that the principles of natural

justice was violated, in our considered opinion, is absolutely


mechanical, having no materials to support the plea and the

Tribunal, we are constrained to hold, failed to apply its judicial

conscience and superficially arrived at a decision and wrongly

interfered in the finding of the disciplinary authority.

24. The power of judicial review of the decision of a domestic

Tribunal is very limited. Such judicial review is possible only when

the principles of natural justice has been violated i.e. the

opportunities, which ought to be given to the delinquent, as per

rules, were not given or that the decision of the domestic Tribunal

was based on no evidence and that the punishment inflicted is

shocking to the judicial conscience. If there is no glaring violation of

principles of natural justice and there is some evidence to support

the decision taken by the disciplinary authority, the Court or Tribunal

cannot sit as a matter of appeal to re-appreciate the evidence and to

substitute the finding of the disciplinary authority with its own

findings.

25. In view of the discussions made above, we are of the

opinion that the Tribunal has wrongly interfered in the orders passed

by the disciplinary authority, and, hence, those are liable to be set

aside and quashed. Accordingly, order, dated, 04.09.2009, passed in

O.A. No.299 of 2007 and order, dated 06.04.2010, passed in OA

No.218 of 2008, by the Central Administrative Tribunal, Guwahati

Bench, are set aside and quashed. No costs.

JUDGE JUDGE

nihar/rk

Documents

(2) WP(C) NO.5248 OF 2010 - Gauhati High Courtghconline.gov.in/Judgment/WPC45692010.pdfDr. Sarveshwar Dayal, S/O Dr. R.D. Gupta, Central Potato Research Station, Peak View Road, Shilling,