High Court · 2012

ARTICLE OF CHARGE That SISF No. 943400097 Constable Jiten Borah of Field Sector, CISF Unit OIL Dul iajan while he was deployed in Dog Squad as a Dog handler for the period of Mar’ 2004 to May’2008. During the said period he was sent threatening letter separate ly to Srhi D.S. Rawat, Dy. Inspector General, Shri C.L. Chakroborty, Asstt. Comd t. (Now Dy. Comdt.), Shri S.K. Mishra, Asstt. Comdt. And Shri Rama Oraon, Asstt. Comdt. From Duliajan Post Office on 31.01.2008 which were received by the conce rned officer on 2.2.08 in the false name of sender Pranab Das, ULFA Propaganda S ecretary Duliajan that non-Assamies Gazetted officer shall leave Assam within on e month otherwise they will kill by ULFA Candidate by using Car Bomb or human Bo mb at their office or residence and Dog Handlers will leave Assam or otherwise they will also kill for disturbing the activities of ULFA candidates by the CISF personnel particularly CIW Staff and Dog Squad personnel. After deep study of t he all letters by the senior officers, it is revealed that the letters were wrot ten by the Disatisfy CISF personnel rather than ULFA Candidate as contained in t he letter threat to Dog Handlar and also papers were used which was supplied by the OIL Management to the office of the CISF. After verification of the availabl e documents in the CISF Unit OIL Duliajan at Dog Squad the handwriting as writte n as address on the four envalopes are similar of handwriting as Constable Jiten Bora which are found from Dog Training Practice Register, writting semple of Co nst. Jiten Bora dated 06.04.2008, as he filled up Details of Family Form dated 31.08.1998, DCRG Form dated 31.08.1998, RMS Fund Form, CGEGIS Form, CL Applicati on dated 19.01.2007, Note Sheet dated 03.09.07, Dated 3.10.07, dated 3.10.07 and dated 3.9.07, written on question papers during Rotation Course dt. 31.07.2007 and dated 03.10.2008 and as semple Dog Handler Biodata Form written by Const. J iten Bora and handwriting the above four threaten letters are verified from the Government Examiner of Questioned Documents, Directorate of Forensic Science, Ko lkata vide CISF Unit OIL Duliajan letter No. IC-17013/CISF/INT/OIL(D)/08/11070 d ated 18-7-2008 and their letter No. DXC/131/2008/1237 dated 07.08.2008 that it i s proved that the all above documents and four threaten letters were wrote by th e one person Const. Jiten Bora. Being a member of Armed Force of Union, the act committed by CISF No. 943400097 Constable Jiten Borah is not only amounts to gro ss misconduct, indiscipline and irresponsible attitude but also to give bad affe ct on other member of the Force and furnishing the image of Force. (cid:29)

4. The petitioner by his annexure-4 written statement-cum-show cause reply dated 22.5.2009 denied the charge levelled against him as baseless and fabricate d. He denied that he had done any act of gross misconduct, indiscipline and irre sponsibility.

5. In due course, the disciplinary authority, being not satisfied with the explanation furnished by the petitioner conducted an enquiry by appointing an En quiry Officer who in his report held the petitioner guilty of the charge.

6. The copy of the enquiry report was furnished to the petitioner enabling him to make representation against the same. Thereafter the petitioner having be en dismissed from service by the impugned final order dated 31.12.2009 (Annexure -7), the petitioner preferred the departmental appeal urging various grounds tow ards assailing the order of dismissal. The departmental appeal having been dismi ssed by the impugned Anneuxre-9 order dated 15.3.2010, the petitioner invoked th e writ jurisdiction of this Court by filing the instant writ petition.

7. Various grounds have been urged towards assailing the order of dismissal , such as non-maintainability of the departmental proceeding, procedural irregul arity in conducting the enquiry, denial of reasonable opportunity of being heard , etc. According to the petitioner, the disciplinary authority measurably failed to establish the charge against the petitioner. It has been contended that the whole basis of the findings recorded by the Enquiry Officer and the disciplinary authority being based on the report furnished by the Examiner of Documents in q uestion ought to have been examined in the enquiry and that he having not been e xamined, the opinion formed on the basis of the said report towards dismissal of the petitioner from service, is not sustainable in law. It has also been conten ded that in absence of any specimen handwritings of the petitioner examined by t he purported handwriting expert, the enquiry Officer could not have recorded the finding of guilt against the petitioner on the basis of the expert’s report pre pared in reference to some other documents purportedly containing the handwritin gs of the petitioner.

8. The respondents have filed their counter affidavit denying the contentio ns raised in the writ petition. It has been stated that certain letters in Assam ese having been received by some of the Officers of the CISF Unit OIL, Duliajan, a doubt had arisen as to whether the act of writing such letter was the product of any malafide design on the part of its Officers. In due course, it was found that the handwritings on the envelopes of those letters resembled with that of the handwritings of the petitioner appearing in the official documents and accor dingly the expert opinion was obtained. In the said opinion, the handwriting exp ert having conclusively opined that the questioned handwritings vis-à-vis the ha ndwritings contained in the documents in which the handwritings of the petitione r appeared belonged to one and the same person, the same had given finality to t he matter. According to the respondents, the witnesses examined by the disciplin ary authority having also stated in their evidence that the questioned handwriti ngs resembled with that of the handwritings of the petitioner, there was no esca pe from the conclusion arrived at, both by the Enquiry Officer and the Disciplin ary Authority that the charge levelled against the petitioner stood established in the enquiry.

9. ell as Mrs. B. Das, learned CGC appearing for the respondents. I have heard Mr. S. K. Talukdar, learned counsel for the petitioner as w

10. Mr. Talukdar, learned counsel for the petitioner in his submissions emph asized on the need for strict compliance of the established procedure in conduct ing the departmental proceeding. According to him, the procedure adopted by the Enquiry Officer in conducting the enquiry was wrong by its very nature. He also submits that the whole basis of the order of penalty of dismissal from service b eing the handwriting expert’s opinion, non-examination of the said expert was fa tal. He further submits that the opinion rendered by the handwriting expert with out any objectivity attached to it cannot be accepted as expert opinion. Elabora ting his argument, he also submits that in case of any doubt requiring expert op inion, specimen handwriting of the petitioner ought to have been obtained for pr oduction before the expert to arrive at a definite finding in respect of the que stioned handwritings. According to him, it being not a case of the respondents t hat the particular letters written in Assamese contained in the questioned envel opes were the letters written by the petitioner, solely on the basis of the Engl ish handwritings over the envelope vis-à-vis the purported handwritings of the p etitioner on some official documents could not have led to conclusive establishm ent of the charge against the petitioner.

11. In support of the aforesaid submissions made by Mr. Talukdar, learned co unsel for the petitioner, he has placed reliance on certain decisions of the Ape x Court, which are as reported in AIR 1964 SC 529 (Shashi Kumar Banerjee and oth ers Vs. Subodh Kumar Banerjee) ; AIR 1977 SC 109 (Magan Bihari Lal Vs. The State of Punjab) ; AIR 1986 SC 995 (Sawai Singh Vs. State of rajasthan) ; (1997) 7 SC C 280 (State of HP Vs. Jail Lal and others) ; (2008) 13 SCC 133 (Babloo Pasi Vs. State of Jharkhand and another) and (1981) 1SCC 80 (Ramji Dayawala and Sons (P) Ltd Vs. Invest Import).

12. Countering the above argument, Mrs. B. Das, learned CGC justifying the i mpugned orders submits that when the handwriting expert has conclusively opined that the questioned handwritings are the handwritings of the petitioner in refe rence to his handwritings appearing in other official documents, this Court exer cising its power of judicial review under Article 226 of the Constitution of Ind ia will not sit on appeal over such findings of the handwriting expert. She subm its that the said opinion of the handwriting expert having been corroborated by the witnesses examined on behalf of the disciplinary authority, the findings arr ived at by the Enquiry Officer is legally sustainable and not liable to be inter fered with. Referring to the impugned orders, she has also submitted that both t he authorities i.e. the disciplinary authority and appellate authority having di scussed the entire materials on record towards recording their findings, the sai d findings cannot be set at naught re-appreciating the materials on records exer cising writ jurisdiction like an appellate authority.

13. As regards the decisions on which the learned counsel for the petitioner has placed reliance, she submits that the ratio laid down in the said decisions will have to be understood in the background of the fact situation involved in the instant proceeding. According to her, none of the decisions renders any supp ort to the case of the petitioner.

14. I have considered the submissions made by the learned counsel for the pa rties and have also perused the entire materials on record including the departm ental proceeding files produced by Mrs. B. Das, learned CGC.

15. As to what is the charge that was levelled against the petitioner along with the statement of imputation of misconduct and indiscipline has been noted a bove. The charge against the petitioner is that he had written the threatening l etters to 4 (four) senior officers of the CISF directing them to leave Assam ; t o kill in office and residence by human bomb or car bomb etc. It is on record th at all the letters (total 4) had been written in Assamese. However, the envelope s containing the said letters contained the address of the addressees in English . Although the charge against the petitioner is that it was he who had written t he threatening letters (in Assamese) but what has been established in the enquir y is that the handwritings appearing on the envelopes containing the said letter s are handwritings of the petitioner. The same has purportedly been established in reference to the official documents containing the handwritings of the petit ioner and exhibited in the enquiry proceeding.

16. It is on this count, Mr. S.K. Talukdar, learned counsel for the petition er has strenuously argued that since the charge of writing the threatening lette rs cannot be said to have been established solely on the basis of resemblance of the handwritings of the petitioner appearing in the official documents vis-à-vi s the handwritings appearing in the envelopes containing those letters, the whol e approach of the authorities, namely, Enquiry, Disciplinary and Appellate was w rong, inasmuch as, the charge of writing the threatening letters cannot be said to have been established on the basis of the purported identity of the petitione r’s handwriting over those envelopes written in English. On a close scrutiny of the charge that was levelled against the petition 17. er what is found is that the definite and distinct charge against the petitioner was that of writing threatening letters to four senior officers with the threat ening notes. In the statement of imputation of misconduct and indiscipline, it w as indicated that after deep study of all the letters by the senior officers, it was revealed that the letters were written by the dis-satisfied CISF personnel rather than members of the militant organisation as indicted in the letters. It was also indicated that upon verification of available documents in the CISF Uni t, OIL, Duliajan at Dog Squad, the handwriting of the addresses on the four enve lopes were found similar to that of the handwritings of the petitioner found on various official documents. Thus, although the basic charge is that of writing t he threatening letters by the petitioner, which are all in Assamese but the ulti mate verification confined only to the handwritings in English appearing in the envelopes containing those letters vis-à-vis the handwritings of the petitioner appearing in the official documents.

18. The question that necessarily arises for consideration is as to whether even if the same is accepted, whether that by itself will go to show that it is the petitioner who had written those letters in Assamese as contained in the que stioned envelopes. The charge of writing those letters had been attributed to th e petitioner solely on the basis of the verification made in respect of the Engl ish handwritings appearing in the envelopes vis-à-vis the handwritings appearing in various official documents pertaining to the petitioner. In the process, no endeavour was made to find out as to whether, in fact, the letters had been writ ten by the petitioner and whether the handwriting appearing on those letters are that of the petitioner.

19. In the enquiry, the disciplinary authority examined 8(eight) witnesses. PW-1 could not be examined as inspite of service of notice, he did not appear in the enquiry. PW-2,3 and 4 in their depositions have stated that the handwritin gs appearing in the envelopes tallied /matched with the handwritings of the peti tioner. PW-5 in his deposition stated about the exercise that was carried out t owards conducting and obtaining the expert opinion. This witness in his depositi on stated about the letter written by the Govt. Examiner on the questioned docum ents (Q2, Q2/1, Q3, Q3/1, Q4 and Q5) vis-à-vis specimen handwritings of the peti tioner contained in the documents (S1 to S3 and A1 to A27). PW-6 and 7 identifie d the official documents containing the handwritings of the petitioner. PW-8 in his deposition produced the prosecution exhibits as indicated in his deposition. PW-9 in his deposition stated about his working with the petitioner as Dog Hand ler of the CISF Unit. He also stated in his deposition that the petitioner had t old him that one Shri D.S. Rawat, DIG, had been threatened by someone, but the a llegation was made against the petitioner. From the above discussion of the evidence on record and adduced on behal 20. f of the disciplinary authority, what is seen is that only indication against th e petitioner in respect of the charge is that the questioned handwritings over t he envelopes had tallied / matched with that of the other exhibited handwritings belonging to the petitioner. As noted above, the PW-5 and PW-8 in their deposit ions stated about the communications made with the handwriting expert and also e xhibited the documents in question. There is no independent testimony of the sai d witnesses and naturally so in absence of any expertise with the questioned han dwritings. The said witnesses could not prove that the said handwritings are the handwritings of the petitioner. They only stated that the said handwritings tal lied / matched with that of the other handwritings of the petitioner appearing i n other official documents. Merely because in their opinion, the handwritings ha d tallied / matched, that by itself cannot lead to the irresistible inference an d / or conclusion that the questioned handwritings are the handwritings of the p etitioner.

21. This now leads us to most important aspect of the matter which is as to whether in the test of preponderance of probability, the impugned order of dismi ssal from service could be sustained solely on the basis of the opinion rendered by the handwriting expert. For a ready reference, the opinion furnished by the office of the Government Examiner of Questioned Documents, Directorate of Forens ic Science, Ministry of Home Affairs, Govt. of India vide its letter dated 7.8.2 008 is quoted below :- (cid:28)Office of the Government Examiner of Questioned Documents DIRECTORATE OF FORENSIC SCIENCE Ministry of Home Affairs, Govt. of India 30, Gorachand Road, Kolkata-700 014. OPINION No. EDXC-131/2008 DY. INSPECTOR GENERAL CISF UNIT OIL DULIAJAN POST : DULIAJAN DIST-. DIBRUGARH ASSAM. The documents of this case have been carefully and thoroughly examined.

2. The person who wrote the blue enclosed writings stamped and marked S1 to S3 and A 1 to A27 also wrote the red enclosed writings similarly stamped and ma rked Q2, Q2/1, Q3, Q3/1, Q4 and Q5. It has not been possible to express any opinion on rest of the items on

3. the basis of the material at hand. Sd/- ( I.K. Arora), M.Sc., GOVT. EXAMINER OF QUESTIONED DOCUMENTS. (cid:28)

22. From the above, what is seen is that the person who wrote the supplied d ocuments to the experts had also written the questioned envelopes. Apart from th e fact that no reason for arriving at such a conclusion is discernible from the said report, it also does not say anything about the letters written in Assamese as the same were not sent for examination. The opinion further states that it w as not possible to express any opinion on rest of the items on the basis of the materials supplied. Apart from the fact that the opinion does not disclose the b asis of formation of opinion or any reason therefor. Solely on the basis of the said opinion, the Enquiry Officer could not have held the charge against the pet itioner to have been established.

23. In Shashi Kumar Banerjee (supra), in reference to the provisions of the Evidence Act and dealing with the evidential value of the expert’s evidence, it was held that the expert’s evidence as to handwriting is only opinion evidence a nd it can rarely, if ever, take the place of substantive evidence. It has furthe r been held that before acting on such evidence, it is usual to see if it is cor roborated either by clear direct evidence or by circumstantial evidence. In para graph 23 of the judgement, it has been observed thus :- Finally we may point out that the expert admitted in his evidence that i (cid:28)23. t was only by a chemical test that it could be definitely stated whether a parti cular writing was of a particular year or period. He also admitted that he appli ed no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides w e may add that Osborn on (cid:28)Questioned Documents (cid:29) at p.464 says even with respect to chemical tests that (cid:28)the chemical tests to determine age also, a sa rule, are a mere excuse to make a guess and furnish no reliable data upon which a definit e opinion can be based:. In these circumstances the mere opinion of tdhe expert cannot override the position evidence of the attesting witnesses in a case like this where there are no suspicious circumstances. (cid:28)

24. In Sawai Singh (Supra), it has been held that in case of placing relianc e on the opinion tendered by the handwriting expert, he is required to be examin ed in the enquiry giving the opportunity to cross examination by the delinquent officer. As in the instant case, in the said case also, the charge against the d elinquent official was sought to be established on the basis of the opinion give n by the handwriting expert. However, the handwriting expert was not available f or cross examination on the ground that that at that time he was died. Irrespect ive of the said position, it was held that if evidence of handwriting expert was necessary to prove the guilt of the appellant then it was necessary on the part of the department to adduce evidence to call another handwriting expert to corr oborate the charge. In paragraph 18 of the said judgement, it has been observed thus :- Having regard to the consequences with which the delinquent officer was (cid:28)18. charged and having regard to the nature of charge and the evidence of hand-writi ng expert and the absence of opportunity for cross-examination and the conflicti ng nature of evidence of Chaturbhuj and nature of evidence given by Jiwan Das, w e are of the opinion that the report of the enquiry officer finding the appellan t guilty should not have been sustained and the government should not have acted upon it. The High Court, in our opinion, with great respect, was in error in no t bearing in mind these aspects which have been indicated hereinbefore. (cid:28)

25. The decision in Magan Bihari Lal (Supra) has been pressed into service t o buttress the argument that expert opinion must always be received with great c aution and perhaps none so with more caution more than the opinion of a handwrit ing expert. Reiterating the settled position of law, the Apex Court observed tha t there is a profusion of precedential authority holding that it is unsafe to b ase a conviction solely on expert opinion without substantial corroboration. Alt hough, the said case was in respect of a criminal proceeding but even in the tou ch stone of (cid:28)Pre-ponderance of probability (cid:29), in a departmental proceeding it wil l be unsafe to impose the extreme penalty of dismissal from service solely on th e basis of the expert opinion quoted above to which no objectivity or reason is attached coupled with the fact that there is also no corroborative evidence. In Jai Lal (Supra), the Apex Court held that an expert is not a witness 26. of fact. His evidence is really of advisory character. It has been held in the said case, the report submitted by an expert does not go in evidence automatical ly. He is to be examined as witness and has to face cross examination.

27. The decision in Babloo Passi(Supra) has also been pressed into service t o buttress the said arguments. In paragraph 28 and 29, it has been observed thus :- (cid:28)28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely ; (i) entry that is relied on must be o ne in a public or other official book, register or record ; (ii) it must be an e ntry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his dut y especially enjoined by law. An entry relating to date of birth made in the sch ool register is relevant and admissible under Section 35 of the Act but the entr y regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which th e age was recorded.

29. Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the voters’ list in the name of the accused was made, a me re production of a copy of the voters’ list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, th ough a reference to the report of the Medical Board, showing the age of the accu sed as 17-18 years, has been made but there is no indication in the order whethe r the Board had summoned any of the members of the Medical Board and recorded th eir statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the aforenoted conclusion, which again may n ot be a decisive factor to determine the age of a delinquent. (cid:28)

28. The decision in Invest Import (Supra), has been cited to emphasis the ne ed for examining the author of expert opinion. In paragraph 16 of the said judge ment, it has been observed thus :- (cid:28)16. & & & & & & & & & & & & &Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document . If the truth of the facts stated in a document is in issue mere proof of the h andwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts o r contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue . (cid:29)

29. In the instant case, the fact of the matter is that the handwriting expe rt was not even cited as a witness, not to speak of examining him as one of the witnesses of the disciplinary authority. If an opinion of the said expert was so ught to be relied upon by the disciplinary authority, the said expert must have been examined for non-examination of the said witness, on whose opinion, miscond uct on the part of the petitioner was sought to be established, denied the petit ioner the reasonability of being heard, which resulted in failure of justice. Ap art from the fact that no reason has been assigned in the opinion for coming to the said conclusion, in the event of examining the handwriting expert in support of the expert opinion, the petitioner could have got the opportunity to cross e xamine him to prove the opinion otherwise. It will be too dangerous to return th e finding of established misconduct against the petitioner solely on the basis o f the said opinion rendered by the handwriting expert.

30. Although, Mrs. B. Das, learned CGC, during the course of argument emphat ically submitted that the said opinion is supported by the corroborative evidenc e of the PWs but when the expert opinion itself is not acceptable for the reason s stated above, there is no question of corroborating the said opinion by the PW s. As to what they have deposed in the enquiry has been noted above. Some of the witnesses have only stated about the similarity of the handwritings with the ex pressions tallied / matched, which by itself cannot lead to the irresistible con clusion that it is the petitioner who was instrumental in writing the letters.

31. Even if it is accepted for argument sake that the handwritings appearing in the questioned envelopes resemble with that of the handwritings appearing in the other official documents pertaining to the petitioner, it cannot be said th at the threatening letters had been written by the petitioner as the said letter s have never been examined to establish that the said letters, in fact, written by the petitioner. It is solely on the basis of the questioned handwritings appe aring in the envelopes, the misconduct of writing the threatening letters was so ught to be attributed to the petitioner, in my opinion, such a course of action towards establishing the particular charge did not conform to the requirement of establishing the basic charge against the petitioner even in the touch stone of preponderance of probability.

32. As has been observed by the Apex Court in LIC of India Vs. Ram Pal Singh reported in (2010) 4 SCC 491, mere admission of documents in evidence does not amount to its proof. In other words, mere making of exhibit on a document does n ot dispense with its proof, which is required to be done in accordance with law. As noted above, the documents including the expert opinion were only exhibited without proving the same as required. At the most, the said documents may amount to admission if its contents but not its truth. Mere fact that the documents we re exhibited in the enquiry did not mean that their contents stood proved.

33. As to what was the evidence led in the enquiry has been discussed above. It is not a case of careful consideration of the handwriting expert’s opinion v is-à-vis the other documents containing the handwritings of the petitioner by th e Enquiry Officer and the disciplinary authority to arrive at their own conclusi ons. The whole basis of holding the charge as established against the petitioner was the handwriting expert’s report, without however, examining him as a witnes s giving the opportunity of cross-examination to the petitioner to prove the rep ort otherwise.

34. For all the aforesaid reasons, the writ petition deserves to be allowed, which I accordingly do by setting aside and quashing the impugned orders dated 31.12.2009 (Annexure-7) and 15.3.2010 (Annexure-9). The petitioner shall be rein stated in service with continuity in service, without however, any back wages, o n the principle of no work no pay, coupled with the fact that the disciplinary p roceeding was initiated against him on certain facts which were very disturbing and thus cannot be said to be without any basis.

35. ver, any order as to costs. The writ petition is allowed to the extent indicated above, without howe