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Witnesses should be examined by investigating officers before the magistrate : High Court Of New Delhi

The present petition has been filed against the Issue of a writ,  direction in the nature of Certiorari to reverse and set aside and quash the Penalty Order dated 16 July 2020 and few more issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE V. KAMESWAR RAO, in the matter MR. PEEYUSH TIWARI V. FOOD CORPORATION OF INDIA dealt with an issue mentioned above

In this case wherein the petitioner or The Charged Officer (‘CO’) was the Area Manager of the respondent’s District Office at Moga, Punjab. The respondent is an organization created and run by the Government of India. The petitioner filed this writ petition against the Order dated November 03, 2020, passed by the Board of Directors of the respondent by which the respondent rejected the appeal filed against the Order dated July 16, 2020, passed by the Disciplinary Authority (‘DA’).  Order dated November 03, 2020, confirms the Order of penalty of ‘Removal from Service’ dated July 16, 2020, passed under Regulation 58 of the Food Corporation of India (Staff) Regulations, 1971 by the DA of the Food Corporation of India (‘FCI’,).

Ms. Rashmi Gogoi, learned counsel of the petitioner that the Impugned Order dated November 03, 2020, which affirms the earlier order dated July 16, 2020, is without reliable evidence which could connect the petitioner with the Government Currency (‘GC’) notes recovered from the petitioner’s office and therefore the Impugned Orders amounts to a gross miscarriage of justice. It was  further mentioned by her that the respondent has erred in passing the impugned orders as the order of removal from service as well as the appellate order, are based on no evidence or proof.

According to the aforementioned investigation conducted at the office chamber of the petitioner, GC notes were obtained from the flush tank of the toilet and from the right-side drawer of the table amounting to a sum of Rs. 2,52,000/-.

In the present case, the CBI filed its Final Report dated October 11, 2018, wherein the petitioner was not named as an accused.Meanwhile Ms. Gogoi also stated that since the CBI officials in the Final Report could not link the petitioner to the GC notes apprehended in his office, the essentials of ‘Demand’ and ‘Acceptance’ of illegal gratification as required to be established under the Prevention of Corruption Act, 1988 (‘PC Act’) could not be established in the present case.

The petitioner aggrieved by the Penalty Order dated July 16, 2020, filed an appeal before the Board of Directors of the respondent under Regulation 68(ii) of the Regulations of 1971. However, the said appeal was rejected by the Board of Directors vide Order dated November 03, 2020. All submissions made by the petitioner in the said appeal were rejected, without ascribing proper reasons thereto.

Where in Ms. Gogoi submitted that the Impugned Order affirming the Penalty Order is patently incorrect because there is a clear reversing of the burden of proof and invoking incorrect presumption which is not justifiable in law and the petitioner was not caught red-handed demanding or accepting a bribe.

Mr. Manoj  that there is a prima facie case against the petitioner. In this regard, he drew the attention of this Court to the fact that GC notes aggregating to a sum of Rs. 2.52 lakhs were recovered from the flush tank of the toilet attached to his exclusive chamber and from the drawer of his table. The petitioner, as the Area Manager, was the head of the FCI District W.P.(C) 966/2021 Page 13 of 34 Office situated at Moga, Punjab. He also dealt with the issue of shifting of onus / burden of proof. In this regard, he submitted that in criminal proceedings, the burden is always on the prosecution to prove that the accused has committed the offence beyond reasonable doubt.

The court perused the facts and argument’s  presented, it was of the opinion that- “The charge against the petitioner, in this case, is not demanding / accepting the money as bribe, but the same is that the petitioner could not satisfactorily give any reasonable ground of the recovery of money from his office / toilet and from the table drawers and in the absence of any evidence that someone has planted the money to trap the petitioner of serious charges against him, the charges have been held to be proved. 59. Similarly, the case of Dnyaneshwar Laxman Rao Wankhede (supra) shall also be not applicable in the facts of this case as the said Judgment arises from criminal proceeding initiated against the respondent therein. In view of my aforesaid conclusion, I do not see any merit in the petition. The same is dismissed. No costs”.

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Judgment Reviewed by: Mandira BS 

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