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2010 DIGILAW 426 (RAJ)

Union of India v. Rajendra Prasad Sharma Anr.

2010-02-22

K.S.RATHORE, MAHESH BHAGWATI

body2010
JUDGMENT 1. - This writ petition is directed against the order dated 02.09.2009 passed by the Central Administrative Tribunal, Jaipur in Original Application No. 532/2004, whereby the Original Application filed by the respondent No. 1 Rajendra Prasad Sharma was allowed. 2. Heard learned counsel for the petitioner. 3. The petitioner being aggrieved and dissatisfied with the impugned judgment dated 02.09.2009 passed by the Learned Central Administrative Tribunal, challenged the same on the ground that the question which has been framed by the learned Tribunal for its decision is that the complainant Smt. Prem Devi was not called for examination in the departmental enquiry and therefore, because of this irregularity, the entire enquiry was illegal and against the principles of natural justice in view of the various judgments pronounced by the Hon'ble Supreme Court. Further the learned counsel for the petitioner has submitted that the ratio decided in the judgments delivered by the Hon'ble Apex Court in the Kuldeep Singh v. Commissioner of Police reported in AIR 1999 SC 677 ; State of Punjab v. Dewan Chuni lal reported in AIR 1970 SC 2086 ; and Central Bank of India Ltd. v. Prakash Chand Jain reported in AIR 1969 SCC 983 is not applicable and has wrongly been applied in the facts and circumstances of the present case, as ample opportunities have been provided to the respondent-applicant to examine the witnesses. Learned counsel for the petitioner has further submitted that the Appellate Authority has rightly considered the fact that PW-1 Harbeer Singh and PW-2 Eepon Chako, produced as witnesses, verified this fact that statements of Smt. Prem Bai was recorded and the same was equivalent to secondary evidence. 4. Learned Tribunal after thoroughly considering the Appellate order passed by the Appellant Authority observed that the statements of PW-1 and PW2 only verified the factum of the statement of the Smt. Prem Bai which was recorded during the investigation. Such statement cannot be considered as secondary evidence. 5. 4. Learned Tribunal after thoroughly considering the Appellate order passed by the Appellant Authority observed that the statements of PW-1 and PW2 only verified the factum of the statement of the Smt. Prem Bai which was recorded during the investigation. Such statement cannot be considered as secondary evidence. 5. Further learned Tribunal considered the judgment rendered by the Hon'ble Apex Court in the case of Kuldeep Singh (supra) wherein it has been held that reasonable opportunity contemplated by Article 311(2) means 'hearing' in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross examine them. Where a statement preciously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by the Supreme Court is that a copy of the statement should first be supplied to the delinquent who should thereafter be given an opportunity to cross examine the witness. 6. Having considered the submissions made on behalf of the applicant-respondent Rajendra Prasad Sharma, the O.A. was allowed as under: "Thus in view of law laid down above, we are of the view that the applicant has made out a case for our interference. According to us, it was necessary for the respondents to produce Smt. Prem Bai as witness in order to clarify the position as to how she has stated that factum of delivery of the cheque at her residence in her statement, which statement was also recorded by the Investigating Team, especially when the grievance in her earlier complaint was taking money by Gajendra Singh and not regarding delivery of cheques at her residence. Further respondents have not also produced independent witness Shri Rakesh Kumar, who has recorded the statement of complainant. We are of the view that in case the said witnesses were examined during the course of the inquiry, they could have thrown light on this aspect and in that contingency, the report might have been different. Thus according to us, the applicant has been denied reasonable opportunity to prove his case. We are of the view that in case the said witnesses were examined during the course of the inquiry, they could have thrown light on this aspect and in that contingency, the report might have been different. Thus according to us, the applicant has been denied reasonable opportunity to prove his case. Besides it, there was other legally admissible material available on record that the cheques were delivered to the applicant on the relevant date at the local office which has been completely ignored by the authorities. Accordingly, impugned order dated 25.04.2003 (Annexure A/1) and order dated 22.09.2004 (Annexure A/1(a) are quashed and set aside." 7. We have given our thoughtful consideration to the submissions advanced by the learned counsel for the petitioner and have carefully gone through the orders passed by the Appellate Authority as well as learned Tribunal. The learned Tribunal having considered the relief claimed by the respondent-applicant has rightly allowed the Original Application and observed that the applicant had been denied reasonable opportunity to prove his case, besides it, there was other legally admissible material available on record that the cheques were delivered to the applicant on the relevant date at the local office which has been completely ignored by the authorities. In our considered opinion, no illegality and irregularity is found on the face of record and impugned order dated 02.09.2009 passed by the learned Tribunal does not require interference. 8. Consequently, the writ petition fails and hereby stands dismissed in limine.Writ Petition Dismissed. *******