Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.02.2020
Date of decision: 18.05.2020
+ W.P.(C) 3215/2018 & CM Nos. 11594/2019 & 11595/2019
CAPT. RAJESH SINGH SEHGAL .... Petitioner
Through Mr. Arvind Nigam, Sr. Adv. with
Ms.Amita Sehgal, Mr.S.S.Mathur,
Mr.S.Singh Malik, Mr.Sidhant,
Advs.
versus
MINISTRY OF CIVIL AVIATION AND ORS. .... Respondents
Through Ms.Anjana Gosain, Ms.Shalini
Nair, Ms.Himanshi, Advs. along
with Mr. Anand Pandey, ADRI,
DGCA and Mr.Shiv Tripathi,
DD(OPS), DGCA.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. This petition has been filed by the petitioner challenging the order
dated 27.03.2018 passed by the respondent no. 1 -Ministry of Civil
Aviation, Government of India, dismissing the appeal filed by the
petitioner challenging the order dated 07.11.2017 passed by the
respondent no.2- Director General of Civil Aviation, cancelling
petitioner‟s Airline Transport Pilot License (hereinafter referred to as
“ATPL”) as also debarring him from appearing in the Pilot License
Examination for a period of three years.
2. The petitioner had appeared for October 2010 session of the Pilot
License Examination conducted by the Directorate General of Civil
W.P.(C) 3215/2018 Page 1
Aviation (DGCA) for subjects/courses – Air Navigation, Aviation
Meteorology and Radio Aids and Instruments. The petitioner cleared the
written as also the oral examination.
3. On a complaint dated 24.11.2011 received by the DGCA alleging
that the petitioner had in fact not appeared in the said examination but
had made someone else appear for him, an enquiry was initiated by the
DGCA. The Central Examination Organisation of the DGCA was
requested to check petitioner‟s examination sheets and submit a report.
4. The Central Examination Organisation, in its report dated
24.04.2012, opined that there was a mismatch of petitioner‟s signatures in
the written examination attendance sheet and oral examination attendance
sheet for the October 2010 examination. It was also reported that there
was a mismatch in petitioner‟s signatures between January 2010
attendance sheet and October 2010 attendance sheet/OMR answer sheets,
though his signatures in the January 2010 Written Examination
Attendance Sheet were tallying with the October, 2010 Oral Examination
Attendance Sheet.
5. Based on the above report, the signatures of the petitioner were
referred to the Central Forensic Science Laboratory (CFSL), CBI, which
by its report dated 24.07.2012 opined that the petitioner‟s
initials/signatures in the OMR and the written examination attendance
sheet compared with the petitioner‟s standard signature reveal that
execution of the letters as well as model and design of letters comprising
the initials are different from the standard signatures and hence are not
comparable.
W.P.(C) 3215/2018 Page 2
6. Armed with the above reports, a Show Cause Notice dated
07.08.2013 was issued to the petitioner as to why action be not taken
against him in accordance with the Aircraft Rules, 1937.
7. As no reply to the show cause was received from the petitioner,
respondent no. 2 passed the order dated 19.09.2013 finding the petitioner
guilty of having adopted unfair means in the Pilot‟s License Examination
conducted during October 2010 session and held the result of petitioner
passing the said examination as invalid.
8. The petitioner claims that neither the Show Cause Notice nor this
order was served on the petitioner.
9. On becoming aware of the same, the petitioner preferred an appeal
challenging the said order before the respondent no. 1.
10. The respondent no. 1, vide order dated 31.12.2013, was pleased to
set-aside the order dated 19.09.2013 finding that the Show Cause Notice
had not been served on the petitioner. The enquiry was remanded back to
the DGCA with a direction to grant an opportunity of hearing to the
petitioner, while keeping the order dated 19.09.2013 in abeyance.
11. Instead of taking up the said proceedings on remand, the
respondent no. 2 issued a fresh Show Cause Notice dated 05.02.2014 to
the petitioner. The petitioner duly replied to the same.
12. During the course of the said proceedings, specimen signatures and
initials of the petitioner were obtained by CFSL, Shimla for its report.
CFSL by its report dated 16.08.2017 opined that the specimen signatures
W.P.(C) 3215/2018 Page 3
and initials did not match with the initials that appeared on the attendance
sheet and the OMR sheet of the petitioner for his written examination in
the October 2010 session.
13. Based on the CFSL report, the respondent no.2 passed the order
dated 07.11.2017 debarring the petitioner for a period of three years from
appearing in the Pilot License Examination as also invalidating the result
of his October 2010 session examination. The Directorate of Training and
Licensing was also directed to take necessary criminal action and for
suspension/cancellation of petitioner‟s license. It is important to note here
that the CFSL report relied upon by the respondent no. 2 was not
supplied to the petitioner before the passing of the said order. It was
supplied only thereafter.
14. The petitioner feeling aggrieved of the above order, filed an
appeal, which has been dismissed by the respondent no.1 by the
Impugned Order.
15. The learned senior counsel for the petitioner submits that the
Impugned Order as also the order dated 07.11.2017 passed by the
respondent no.2 are liable to be set aside as having been passed in
violation of principles of natural justice. He submits that in matters such
as the present one, the respondents are required to act justly and fairly
and not arbitrarily or capriciously. Principles of natural justice have to be
rigorously followed and complied with. Any order passed in breach
thereof would be void. The order passed by the respondent no.2, being
the first authority, in violation of principles of natural justice cannot
remedied by the Appellate Authority, that is the respondent no.1,
W.P.(C) 3215/2018 Page 4
purportedly following the principles of natural justice. The illegality in
the order passed by the respondent no.2 cannot be rectified or remedied
by the respondent no.1. He relies upon the judgment of the Supreme
Court in Mohd Yunus Khan vs. State of UP , (2011) 1 SCC (L&S) 180
and Administrative Law by H.W.R. Wade (Sixth Edition) , pg. 550 .
16. The learned senior counsel for the petitioner submits that the
respondent no.2 passed the order based solely on the report received from
CFSL, Shimla. The CFSL report was, however, not shared with the
petitioner prior to passing of the order dated 07.11.2017 thereby clearly
violating the principles of natural justice. In this regard he places reliance
on the judgments of the Supreme Court in Natwar Singh vs. Director of
Enforcement & Anr . (2010) 13 SCC 255; K. Vijaylakshmi vs. Union of
India & Ors. (1998) 4 SCC 37; and S.N. Narula vs. Union of India &
Ors . (2011) 4 SCC 591; and of this Court in B.S.N.L. & Ors. vs. Ram
Pratap & Anr . , 2018 (8) AD (Delhi) 120.
17. The learned senior counsel for the petitioner further submits that
not only the report was not shared with the petitioner, no opportunity of
cross-examination was granted either. Placing reliance on the judgments
of the Supreme Court in Sawai Singh vs. State of Rajasthan,
MANU/SC/0340/1986; and Bhupinder Pal Singh vs. Director General
of Civil Aviation & Ors., (2003) 3 SCC 633, he submits that in absence
of an opportunity to cross examine the handwriting expert being granted
to the petitioner, the report could not have been taken into consideration
in passing the order dated 07.11.2017.
W.P.(C) 3215/2018 Page 5
18. The learned senior counsel for the petitioner further submits that
there was a violation of principles of natural justice not only at the stage
of the decision taken by the respondent no.2, but also by the respondent
no.1. He submits that the petitioner was not afforded a reasonable
opportunity to prove his case. He submits that in case the respondent no.1
was not to rely upon the e-mail sent by the officers who had also given
the examination along with the petitioner, on the ground that they had
only stated that they had seen the petitioner outside the examination
centre and not while giving the examination, the petitioner should have
been granted an opportunity to either cross-examine such officers or to
lead further evidence in form of their statements to prove his case. He
submits that in absence of such an opportunity, the petitioner was clearly
denied his right to a fair defence.
19. The learned senior counsel for the petitioner further submits that
the Show Cause Notice issued to the petitioner was vague and, in fact,
gave a final conclusion, thereby vitiating the entire proceedings. He
places reliance on the judgment of the Supreme Court in Oryx Fisheries
Pvt. Ltd. vs. Union of India , (2010) 13 SCC 427.
20. On merits of the decision, the learned senior counsel for the
petitioner submits that the only material against the petitioner is the
CFSL report. He submits that the same cannot be held to be sufficient to
prove the case against the petitioner. He submits that for entering the
examination center, candidates were to download their Admit Card from
the website of the respondent no. 2 and thereafter paste their photograph
on the same and have them verified from the DGCA Regional/ Sub-
W.P.(C) 3215/2018 Page 6
Regional Offices prior to the examination. Candidates were not allowed
to enter the examination centre without the duly authenticated admit
cards. He further submits that in the examination centre, the invigilators
were required to check the admit cards and compare the photographs
thereon with the candidates appearing for the examination. He submits
that in such strict atmosphere, the possibility of any candidate being
impersonated by another was next to impossible. He submits that the
respondent no.1 and respondent no.2 had failed to take into consideration
these circumstances. Further, the invigilators were not examined by the
respondent no.2 or the respondent no.1. On the other hand, the petitioner
was able to produce witnesses who had at least vouched on petitioner‟s
presence outside the examination centre. He submits that in such
circumstances, the respondents had failed to prove their case against the
petitioner and merely because of the mismatch in the signatures, it could
not be assumed that someone had impersonated for the petitioner in the
examination. Placing reliance on the judgments of the Supreme Court in
Hanumat Govind Nargundkar & Anr. vs. State of Madhya Pradesh,
AIR 1952 SC 343; Sharad Birhichand Sarda vs. State of Maharashtra,
1984 SCC (Cri.) 487; Sachin Kumar Singhraha vs. State of Madhya
Pradesh , AIR 2019 SC 1416; and Maharashtra State Board of
Secondary and Higher Secondary Education vs. K.S. Gandhi & Ors.,
(1991) 2 SCC 716, he submits that the present case can at best be stated
to be based on the circumstantial evidence of the mismatch in the
signatures of the petitioner. In such cases it must be remembered that
inference from the evidence and circumstances must be carefully
distinguished from conjectures or speculation. There must be evidence
W.P.(C) 3215/2018 Page 7
direct or circumstantial to deduce necessary inferences in proof of the
facts in issue. There can be no inferences unless there are objective facts,
direct or circumstantial, which infer the other fact which is sought to be
established. The circumstances should be of a conclusive nature and
tendency. They should exclude every possible hypothesis except the one
to be proved. He submits that tested on the above standard, the finding
against the petitioner is based on mere conjectures and surmises and only
one circumstance of his signature not matching. The same certainly is not
enough to visit the petitioner with the penalty which has an effect on his
livelihood and reputation.
21. The learned senior counsel for the petitioner further submits that
the respondent no.1, in its Impugned Order, has in fact put the burden of
proof on the petitioner. He submits that merely because two of the
officers named by the petitioner had not taken the examination along with
the petitioner, an adverse inference could not have been drawn against
the petitioner to hold him guilty of the charge. He submits that mere
falsity of defence cannot prove the case of the prosecution. He places
reliance on the judgment dated 05.03.2019 of the Supreme Court in
Criminal Appeal Nos. 428-430 of 2019 titled Digamber Vaishnav &
Anr. vs. State of Chhatisgarh.
22. On the other hand, the learned counsel for the respondents submits
that in the present case there was enough evidence against the petitioner
showing that he had in fact not given the examination. Placing reliance
on the CFSL report, she submits that the report was categorical that the
person signing the attendance sheet and the OMR sheet was not the
W.P.(C) 3215/2018 Page 8
petitioner. She has also produced before this Court copies of petitioner‟s
signatures on the OMR sheet as also the Attendance Sheet for the written
and oral examination of January 2010 and October 2010 sessions to show
that the petitioner‟s signatures on the OMR sheet and the attendance
sheet for the written examination of October 2010 session differ from the
other signatures. Relying upon Lalit Popli vs. Canara Bank , (2003) 3
SCC 583, she submits that it is also open to this Court to compare the
signatures to arrive at its own finding on this issue.
23. The learned counsel for the respondents further submits that on
previous ten occasions the petitioner had given the ATPL examination
from Delhi. This was the first occasion when the petitioner had chosen
Mumbai as the examination centre. On all previous 10 occasions, the
petitioner had failed to pass the examination. She submits that in this
form there was enough evidence against the petitioner.
24. Further, placing reliance on the judgment of the Supreme Court in
K.S. Gandhi (Supra) and Union of India vs. Sardar Bahadur , (1972) 4
SCC 61, she submits that the standard of proof in a disciplinary enquiry
or departmental proceedings is not of proof beyond reasonable doubt but
of preponderance of probabilities tending to draw an inference that the
fact must be more probable. She submits that the test of a criminal trial
cannot be applied to such proceedings.
25. As far as compliance with the principles of natural justice is
concerned, she submits that the respondent no.2 had complied with the
principles of natural justice in passing the order dated 07.11.2017. The
petitioner was well aware of the allegations against him and submitted a
W.P.(C) 3215/2018 Page 9
detailed reply to the second Show Cause Notice. The only objection
raised by him was that there was no clear source of his standard
signatures. In the reply, there was no request made by the petitioner
seeking copy of the fact-finding report or any other report or document or
that the allegations against him were unclear. Keeping in view the
submissions made by the petitioner, specimen signatures of the petitioner
were taken. CFSL, Shimla gave its report on such signatures. The
respondent no.2 passed its order dated 07.11.2017 based on such report.
26. As far as the appellate stage is concerned, she submits that under
Rule 3B of the Aircraft Rules, 1937, the Secretary, as an Appellate
Authority, has not been conferred with the powers of a Civil Court. He
therefore has no power to summon any witness. In spite of this, in due
compliance with the principles of natural justice and to give a fair hearing
to the petitioner, the respondent no.1 directed the DGCA to call upon the
witnesses as submitted by the petitioner, to give their view. He further
directed the DGCA to seek response from the invigilators/supervisors
who were present in the examination. He also granted three personal
hearings to the petitioner. As noted in the Impugned Order, the witnesses
submitted by the petitioner could not corroborate his presence in the
examination centre. Based on the evidence before the respondent no.1,
the respondent no.1 passed the Impugned Order. She submits that this
Court cannot act as a Court of appeal on such findings.
27. She further submits that the petitioner, in fact, does not deserve
any relief from this Court. She submits that the petitioner before the
respondent no.1 as also before this Court had placed reliance on an email
W.P.(C) 3215/2018 Page 10
received from Capt Geetanjali Parelkar stating that she saw the petitioner
outside the examination complex and that the petitioner had gone inside
the premises to appear in the examination and after the examination was
over, she and the petitioner discussed the question paper. However, this
email was completely false as she had, in fact, not given the said
examination at all. On this plea of the respondents, this Court, vide its
order dated 27.09.2018, directed the respondent no.2 to file an affidavit
stating its case. Such affidavit was duly filed by the respondent no.2. It is
only thereafter that the petitioner filed an application, being CM no.
41521/2018, stating that he would not rely on the statement of Capt
Geetanjali. The said application, however, was dismissed by this Court
vide order dated 01.11.2018, observing as under:-
“ It is apparent from the plain reading of this application that
certain statements which are apparently untrue have been
made. This court was inclined to refer the matter to the
Registrar (Vigilance) for conducting an enquiry, however, Mr.
Chandhiok, learned Senior Counsel appearing for the petitioner
tenders an apology on behalf of the petitioner and seeks to
withdraw this application to file an application after deleting
certain statements (which are false).
4. The application is dismissed as withdrawn with the
aforesaid liberty.”
28. The learned counsel for the respondents further submits that even
the copy of the appeal filed by the petitioner before the respondent no.1
in this Court is not the true copy. In the appeal filed before the respondent
no.1, the petitioner in Ground S had listed the names of the witnesses that
the petitioner wished to rely on, including that of Ms. Geetanjali Parelkar.
W.P.(C) 3215/2018 Page 11
However, in the copy of the appeal filed before this Court, the list of
witnesses mentioned in Ground S have been omitted. Further, the
petitioner has stated that he had produced the admit card at the
examination centre before the Director, Air Worthiness, who stamped the
same after comparing it with his photo ID card. This is also untrue as the
Instructions for the October 2010 session required such attestation to take
place prior to the examination at the DGCA Regional/Sub-Regional
offices only. She submits that the petitioner having made false statements
and filed false documents before this Court, is even otherwise not entitled
to seek any relief from this Court.
29. I have considered the submissions made by the learned counsels
for the parties.
30. At the outset, I would reiterate the scope of jurisdiction of the
Court under Article 226 of the Constitution of India in dealing with a
challenge to the order passed by the Disciplinary Authority. Under
Article 226 of the Constitution of India, the High Court does not act as a
Court of Appeal over the decision of the Authorities. The scope of
inquiry before the High Court is restricted to considering whether the
Authorities have followed the prescribed procedure and Principles of
Natural Justice. As far as the evidence is concerned, the Court can only
interfere in cases of “no evidence”. Where there is some evidence which
the Authority entrusted with the duty to hold inquiry has accepted and
where such evidence may reasonably support the conclusion arrived at by
such Authority, the Court cannot re-evaluate such evidence to arrive at an
independent finding on the same. The Authorities are the sole judge of
W.P.(C) 3215/2018 Page 12
facts. The High Court in exercise of its power under Article 226 of the
Constitution of India only exercises Supervisory Jurisdiction and not
Appellate Jurisdiction over such Authorities. The findings of fact cannot
be re-opened and questioned under Writ jurisdiction of the Court. A
finding of fact recorded by the Tribunal cannot be challenged on grounds
of evidence being insufficient or inadequate to sustain a finding. The
issue of adequacy or sufficiency of evidence led on a particular point and
the inference of what fact is to be drawn on the said finding are within the
exclusive jurisdiction of the Tribunal. Reference in this regard may be
drawn to the judgments of the Supreme Court in State of Andhra
Pradesh and Ors. vs. Chitra Venkata Rao, MANU/SC/0475/1975 and
State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya , (2011) 4
SCC 584.
31. In General Manager (Operations), State Bank of India and Anr.
vs. R.Periyasamy, (2015) 3 SCC 101, the Supreme Court observed that
the standard of proof that must be employed in domestic enquiries is in
fact that of the preponderance of probabilities.
32. Recently, in State of Bihar and Ors vs. Phulpari Kumari, (2020) 2
SCC 130, the Supreme Court reiterated as under:
“6.1 It is settled law that interference with the orders passed
pursuant to a departmental inquiry can be only in case of “no
evidence”. Sufficiency of evidence is not within the realm of
judicial review. The standard of proof as required in a criminal
trial is not the same in a departmental inquiry. Strict rules of
evidence are to be followed by the criminal court where the
guilt of the accused has to be proved beyond reasonable doubt.
W.P.(C) 3215/2018 Page 13
On the other hand, preponderance of probabilities is the test
adopted in finding the delinquent guilty of the charge.”
33. In Collector of Customs, Madras and Ors. v. D.Bhoormall,
MANU/SC/0237/1974, the Supreme Court observed as under:
“31. It cannot be disputed that in proceeding for imposing
penalties under Clause (8) of Section 167 to which Section 178-
A does not apply, the burden of proving that the goods are
smuggled goods, is on the Department. This is a fundamental
rule relating to proof in all criminal or quasi-criminal
proceedings, where there is no statutory provision to the
contrary. But in appreciating its scope and the nature of the
onus cast by it, we must pay due regard to other kindred
principles, no less fundamental, of universal application. One of
them is that the prosecution or the Department is not required
to prove its case with mathematical precision to a demonstrable
degree; for, in all human affairs absolute certainty is a myth,
and as Prof. Brett felicitously puts it ''all exactness is a fake". El
Dorado of absolute proof being unattainable, the law accepts
for it, probability as a working substitute in this work-a-day
world. The law does not require the prosecution to prove the
impossible. All that it requires is the establishment of such a
degree of probability that a prudent man may, on its basis,
believe in the existence of the fact in issue. Thus, legal proof is
not necessarily perfect proof; often it is nothing more than a
prudent man's estimate as to the probabilities of the case.
32. The other cardinal principle having an important bearing
on the incidence of burden of proof is that sufficiency and
weight of the evidence is to be considered to use the words of
Lord Mansfield in Batch v. Archer (1774) 1 Cowp. 63
"according to the proof which it was in the power of one side to
prove, and in the power of the other to have contradicted".
Since it is exceedingly difficult, if not absolutely impossible for
the prosecution to prove facts which are especially within the
knowledge of the opponent or the accused, it is not obliged to
prove them as parts of its primary burden.
W.P.(C) 3215/2018 Page 14
33. Smuggling is clandestine conveying of goods to avoid legal
duties. Secrecy and stealth being its covering guards, it is
impossible for the Preventive Department to unravel every link
of the process. Many facts relating to this illicit business remain
in the special or peculiar knowledge of the person concerned in
it. On the principle underlying Section 106, Evidence Act, the
burden to establish those facts is cast on the person concerned;
and if he falls to establish or explain those facts, an adverse
inference of facts may arise against him, which coupled with the
presumptive evidence adduced by the prosecution or the
Department would rebut the initial presumption of innocence in
favour of that person, and in the result prove him guilty. As
pointed out by Best in 'Law of Evidence', (12th Edn. Article 320,
page 291), the "presumption of innocence is, no doubt,
presumption juris; but every day's practice shows that it may be
successfully encountered by the presumption of guilt arising
from the recent (unexplained) possession of stolen property",
though the latter is only a presumption of fact. Thus the burden
on the prosecution or the Department may be considerably
lightened even by such presumption of fact arising in their
favour. However, this does not mean that the special or peculiar
knowledge of the person proceeded against will relieve the
prosecution or the Department altogether of the burden of
producing some evidence in respect of that fact in issue. It will
only alleviate that border to incharge which very slight
evidence may suffice.
xxx
38. Even if the Division Bench of the High Court felt that this
circumstantial evidence was not adequate enough to establish
the smuggled character of the goods, beyond doubt, then also,
in our opinion, that was not a good ground to justify
interference, with the Collector's order in the exercise of the
writ jurisdiction under Article 226 of the Constitution. The
function of weighing the evidence or considering its sufficiency
was the business of the Collector or the appellate authority
which was the final tribunal of fact. "For weighing evidence
and drawing inferences from it", said Birch J. in R. Madhub
W.P.(C) 3215/2018 Page 15
Chander (1874) 21 W.R. Cr. 13 "there can be no canon. Each
case presents its own peculiarities and in each common sense
and shrewdness must be brought to bear upon the facts
elicited." It follows from this observation that so long as the
Collector's appreciation of the circumstantial evidence before
him was not illegal, perverse or devoid of common sense, or
contrary to rules of natural justice there would be no warrant
for disturbing his finding under Article 226. The collector's
order was not of this kind.”
34. In Lalit Popli (Supra), the Supreme Court reiterated that:-
“ 16. It is fairly well settled that the approach and objective in
criminal proceedings and the disciplinary proceedings are
altogether distinct and different. In the disciplinary proceedings
the preliminary question is whether the employee is guilty of
such conduct as would merit action against him, whereas in
criminal proceedings the question is whether the offences
registered against him are established and if established what
sentence should be imposed upon him. The standard of proof,
the mode of enquiry and the rules governing the enquiry and
trial are conceptually different. (See State of Rajasthan v. B.K.
Meena.) In case of disciplinary enquiry the technical rules of
evidence have no application. The doctrine of “proof beyond
doubt” has no application. Preponderance of probabilities and
some material on record are necessary to arrive at the
conclusion whether or not the delinquent has committed
misconduct.
17. While exercising jurisdiction under Article 226 of the
Constitution the High Court does not act as an appellate
authority. Its jurisdiction is circumscribed by limits of judicial
review to correct errors of law or procedural errors leading to
manifest injustice or violation of principles of natural justice.
Judicial review is not akin to adjudication of the case on merits
as an appellate authority.”
W.P.(C) 3215/2018 Page 16
35. Even though the principles of criminal law are not applicable to
Departmental Inquiries and to the order impugned herein, even in
criminal law, the guilt of an accused can be established through
circumstantial evidence.
36. As far as the affect and sufficiency of circumstantial evidence, the
Supreme Court in State of Andhra Pradesh vs. IBS Prasada Rao and
Others , (1969) 3 SCC 896, held as under:-
“7. In regard to the question of the effect and sufficiency of
circumstantial evidence for the purpose of conviction, it is now
settled law that before conviction based solely on such evidence
can be sustained, it must be such as to be conclusive of the guilt
of the accused and must be incapable of explanation on any
hypothesis consistent with the innocence of the accused. But this
does not mean that before the prosecution can succeed in a case
resting upon circumstantial evidence alone, it must meet any
and every hypothesis suggested by the accused, however
extravagant and fanciful it might be. Before an accused can
contend that a particular hypothesis pointing to his innocence
has remained unexcluded by the facts proved against him, the
Court must be satisfied that the suggested hypothesis is
reasonable and not farfetched. Further, it is not necessary that
every one of the proved facts must in itself be decisive of the
complicity of the accused or point conclusively to his guilt. It
may be that a particular fact relied upon by the prosecution
may not be decisive in itself, and yet if that fact, along with
other facts which have been proved, tends to strengthen the
conclusion of his guilt, it is relevant and has to be considered.
In other words, when deciding the question of sufficiency, what
the Court has to consider is the total cumulative effect of all the
proved facts each one of which reinforces the conclusion of
guilt, and if the combined effect of all those facts taken together
is conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that any one
or more of those facts by itself is not decisive.”
W.P.(C) 3215/2018 Page 17
37. In G.Parshwanath vs. State of Karnataka, (2010) 8 SCC 593, the
Supreme Court reiterated that:-
“….In deciding the sufficiency of the circumstantial evidence
for the purpose of conviction, the court has to consider the total
cumulative effect of all the proved facts, each one of which
reinforces the conclusion of guilt and if the combined effect of
all these facts taken together is conclusive in establishing the
guilt of the accused, the conviction would be justified even
though it may be that one or more of these facts by itself or
themselves is/are not decisive”.
38. In the present case, the finding of the CFSL and report is of prime
consideration and relevant excerpts thereof are reproduced herein below:
“RESULT OF EXAMINATION OPINION/REPORT
The documents of this case have been carefully and
thoroughly examined in the Govt. of India laboratory at Shimla
with the available scientific aids such as: Angle poise lamp,
Stereo-Zoom Microscope, Hand Magnifier, Lenses of different
magnifications etc.
1. The person who wrote the signatures in the
enclosed portions stamped and marked S1 to S4
and B1 to B9 did not write the signatures in the
enclosed portions similarly stamped and marked
A1 to A6.
REASONS FOR OPINION NO. CX-167/2017, DATED:
16.08.2017.
I have carefully and thoroughly examined the documents
of this case in all aspects of handwriting identification and
forgery detection with scientific aids in the Government of India
Laboratory at Shimla.
REASONS FOR OPINION AS IN PARA 1:
W.P.(C) 3215/2018 Page 18
My opinion that “The person who wrote the signatures in
the enclosed portions stamped and marked S1 to S4 and B1 to
B9 did not write the signatures in the enclosed portions
similarly stamped and marked A1 to A6”, is based upon the
following considerations:-
Inter-se comparison of the standard signatures- short
signatures as well as full signatures marked S1 to S4 and B1 to
B9 although executed on different dates during the period 2007,
2010 and 2016 reveals characteristic similarities in writing
habits; as such they constitute suitable & sufficient standards
for the purpose of comparison. On the other hand, the disputed
signatures marked A1 to A6 when compared with standard
signatures similarly marked S1 to S4 and B1 to B9 show
differences in general writing habits, such as: movement, skill,
speed, slant, spacing, alignment, relative size, proportion of
strokes and their combination etc.
In addition to above, the questioned signatures also show
differences in individual writing habits with the standard
signatures. Some of such differences observed in the signatures
are: different manner of execution of first character „R‟ nature
and location of its start, its execution in multi pen operations in
disputed signatures marked A1, A3, A4 and A5, nature of
curvature of the curved stroke in its upper body part, nature of
angularity at the junction of aforesaid curved stroke and
succeeding rightward stroke, nature and location of its staff and
finish as observed in one variety, its other variety as observed
in disputed signature marked A2 and A6 is also found to be
different in the formation of its upper curved body part, nature
of angularity in its medial part together with nature and
direction of its finish; different manner of execution of
succeeding character appearing as letter „a‟ in the disputed
signatures marked A1, A3, A4 and A5 its execution in multi pen
operations in A1, A3 etc. nature of its oval, formation of
additional horizontal stroke at the base of its oval and finish as
observed in one variety of signatures, its other variety with its
execution as letter appearing as „u‟ as observed ins disputed
signatures marked A2 and A6 is also found to be different w.r.t.
W.P.(C) 3215/2018 Page 19
nature and location of its start, nature of curvature of its curved
body part, nature of its bifurcation and finish; different manner
of execution of the letter appearing as „e‟. In the disputed
signatures marked A2 and A6 completely different nature of its
eyelet, nature of curvature of its body curve and finish; different
nature, location and extent of the sign of under scoring in the
disputed signatures marked A1 to A5.
The above mentioned differences are fundamental in
nature and are beyond the range of natural variations and
intended disguise and when considered collectively lead me to
the aforesaid opinion of different authorship.
39. The report of the CFSL conclusively holds that the signatures on
the attendance sheet and the OMR sheet for the written examination in
October 2010 session were not that of the petitioner. I have also
compared the said signatures/initials with the signatures of the petitioner
in the oral examination for October 2010 session as also for the January
2010 session. They appear to be totally different.
40. The submission of the petitioner that he was not provided with the
report of the CFSL or an opportunity to cross-examine the author of the
said report prior to the passing of the order dated 07.11.2017 by the
respondent no.2, though extremely relevant and would in normal
circumstances have led me to conclude that such order, being in violation
of principles of natural justice, cannot be sustained, in the present case,
cannot come to the aid of the petitioner. It is relevant to note that in spite
of supply of a copy of the said report, though belatedly, the petitioner did
not lead any evidence to show that the said report was incorrect. No
independent handwriting report was produced by the petitioner. He did
W.P.(C) 3215/2018 Page 20
not seek a right to such cross examination before the Appellate Authority.
In fact, there seems to be a tacit admission to the fact that the signatures
do not match.
41. In K.L. Tripathi Vs. State Bank of India and Ors ,
MANU/SC/0334/1983, the Supreme Court held that:
“33. The basic concept is fair play in action administrative,
judicial or quasi-judicial. The concept fair play in action must
depend upon the particular lis, if there be any, between the parties.
If the credibility of a person who has testified or given some
information is in doubt, or if the version or the statement of the
person who has testified, is, in dispute, right of cross-examination
must inevitably form part of fair play in action but where there is
no lis regarding the facts but certain explanation of the
circumstances there is no requirement of cross-examination to be
fulfilled to justify fair play in action. When on the question of facts
there was no dispute, no real prejudice has been caused to a party
aggrieved by an order, by absence of any formal opportunity of
cross-examination per se does not invalidate or vitiate the decision
arrived at fairly. This is more so when the party against whom an
order has been passed does not dispute the facts and does not
demand to test the veracity of the version or the credibility of the
statement.
34. The party who does not want to controvert the veracity of the
evidence from or testimony gathered behind his back cannot expect
to succeed in any subsequent demand that there was no
opportunity of cross-examination specially when it was not asked
for and there was no dispute about the veracity of the statements.
Where there is no dispute as to the facts, or the weight to be
attached an disputed facts but only an explanation of the acts,
absence of opportunity to cross-examination does not create any
prejudice in such cases.
35. The principles of natural justice will, therefore, depend upon
the facts and circumstances of each particular case. We have set
W.P.(C) 3215/2018 Page 21
out hereinbefore the actual facts and circumstances of the case.
The appellant was associated with the preliminary investigation
that was conducted against him. He does not deny or dispute that.
Information and materials undoubtedly were gathered not in his
presence but whatever information was there and gathered
namely, the versions of the persons, the particular entries which
required examination were shown to him. He was conveyed the
informations given and his explanation was asked for. He
participated in that investigation. He gave his explanation but he
did not dispute any of the facts nor did he ask for any opportunity
to call any evidence to rebut these facts. He did ask for a personal
hearing, as we have mentioned hereinbefore and he was given
such opportunity or personal hearing His explanations were duly
recorded. He does not allege that his version has been improperly
recorded nor did he question the veracity of the witnesses or the
entries or the letters or documents shown to him upon which the
charges were framed and upon which he was found guilty. Indeed
it may be mentioned that he was really consulted at every stage of
preliminary investigation upon which the charges were based and
upon which proposed action against him has been taken, In that
view of the matter, we are of the opinion, that it cannot be said that
in conducting the enquiry or framing of the charges or arriving at
the decision, the authorities concerned have acted in violation of
the principles of natural justice merely because the evidence was
not recorded in his presence or that the materials, the gist of which
was communicated to him, were not gathered in his presence. As
we have set out hereinbefore, indeed he had accepted the factual
basis of the allegations. We have set out hereinbefore in extenso
the portions where he had actually admitted the factual basis of
these allegations against him, where he has not questioned the
veracity of the witness of the facts or credibility of the witnesses or
credibility of the entries on records. Indeed he has given
explanation namely, he was over-worked, he had consulted his
superiors and sought their guidance, his conduct has not actually,
according to him caused any financial risk or damage to the Bank
concerned. therefore, in our opinion, in the manner in which the
investigation was carried out as a result of which action has been
taken against him cannot be condemned as bad being in violation
W.P.(C) 3215/2018 Page 22
of the principles of natural justice. Had he, however, denied any of
the facts or had questioned the credibility of the persons who had
given information against him, then different considerations would
have applied and in those circumstances, refusal to give an
opportunity to cross-examine the persons giving information
against him or to lead evidence on his own part to rebut the facts
would have been necessary and denial of such opportunity would
have been fatal. But such is not the case here as we have
mentioned hereinbefore.
xxxxxx
42. It is true that all actions against a party which involve penal or
adverse consequences must be in accordance with the principles of
natural justice but whether any particular principle of natural
justice would be applicable to a particular situation or the
question whether there has been any infraction of the application
of that principle, has to be judged, in the light of facts and
circumstances of each particular case. The basic requirement is
that there must be fair play in action and the decision must be
arrived at in a just and objective manner with regard to the
relevance of the materials and reasons. We must reiterate again
that the rules of natural justice are flexible and cannot be put on
any rigid formula. In order to sustain a complaint of violation of
principles of natural justice on the ground of absence of
opportunity of cross-examination, it has to be established that
prejudice has been caused to the appellant by the procedure
followed. See in this connection the observations of this Court in
the case of Jankinath Sarangi v. State of Orissa.
MANU/SC/0502/1969 : (1970)ILLJ356SC Hidayatullah, C J.",
observed there at page 394 of the report "there is no doubt that if
the principles of natural justice are violated and there is a gross
case this Court would interfere by striking down the order of
dismissal; but there are cases and cases. We have to look to what
actual prejudice has been caused to a person by the supposed
denial to him of a particular right." Judged by this principle, in the
background of the facts and circumstances mentioned before, we
are of the opinion that there has been no real prejudice caused by
infraction of any particular rule of natural justice of which
W.P.(C) 3215/2018 Page 23
appellant before us complained in this case. See in this connection
observations of this Court in the case of Union of India and Anr. v.
P.K. Roy and Ors. MANU/SC/0049/1967 : (1970)ILLJ633SC
where this Court reiterated that "the doctrine of natural justice
cannot be imprisoned within the strait-jacket of a rigid formula
and its application depends upon the nature of the jurisdiction
conferred on the administrative authority, upon the character of
the rights of the persons affected, the scheme and policy of the
statute and Ors. relevant circumstances disclosed in a particular
case". See also in this connection the observations of Hidayatullah,
C.J., in the case of Channabasappa Basappa Happali v. State of
Mysore. MANU/SC/0476/1970 : [1971]2SCR645 In our opinion,
in the background of facts and circumstances of this case, the
nature of investigation conducted in which the appellant was
associated, there has been no infraction of that principle. In the
premises, for the reasons aforesaid, there has been in the facts and
circumstances of the case, no infraction of any principle of natural
justice by the absence of a formal opportunity of cross-
examination Neither cross examination nor the opportunity to lead
evidence by the delinquent is an integral part of all quasi judicial
adjudications.”
42. In State Bank of Patiala & Ors. vs. S.K. Sharma , (1996) 3 SCC
364, the Supreme Court summarized the principles applicable to a
domestic inquiry as under:-
“ 33. We may summarise the principles emerging from the
above discussion. (These are by no means intended to be
exhaustive and are evolved keeping in view the context of
disciplinary enquiries and orders of punishment imposed by an
employer upon the employee):
(1) An order passed imposing a punishment on an
employee consequent upon a disciplinary/departmental
enquiry in violation of the rules/regulations/statutory
provisions governing such enquiries should not be set
aside automatically. The Court or the Tribunal should
enquire whether (a) the provision violated is of a
W.P.(C) 3215/2018 Page 24
substantive nature or (b) whether it is procedural in
character.
(2) A substantive provision has normally to be complied
with as explained hereinbefore and the theory of
substantial compliance or the test of prejudice would not
be applicable in such a case.
(3) In the case of violation of a procedural provision, the
position is this: procedural provisions are generally
meant for affording a reasonable and adequate
opportunity to the delinquent officer/employee. They are,
generally speaking, conceived in his interest. Violation of
any and every procedural provision cannot be said to
automatically vitiate the enquiry held or order passed.
Except cases falling under — “no notice”, “no
opportunity” and “no hearing” categories, the complaint
of violation of procedural provision should be examined
from the point of view of prejudice, viz., whether such
violation has prejudiced the delinquent officer/employee
in defending himself properly and effectively. If it is
found that he has been so prejudiced, appropriate orders
have to be made to repair and remedy the prejudice
including setting aside the enquiry and/or the order of
punishment. If no prejudice is established to have
resulted therefrom, it is obvious, no interference is called
for. In this connection, it may be remembered that there
may be certain procedural provisions which are of a
fundamental character, whose violation is by itself proof
of prejudice. The Court may not insist on proof of
prejudice in such cases. As explained in the body of the
judgment, take a case where there is a provision
expressly providing that after the evidence of the
employer/government is over, the employee shall be
given an opportunity to lead defence in his evidence, and
in a given case, the enquiry officer does not give that
opportunity in spite of the delinquent officer/employee
asking for it. The prejudice is self-evident. No proof of
prejudice as such need be called for in such a case. To
W.P.(C) 3215/2018 Page 25
repeat, the test is one of prejudice, i.e., whether the
person has received a fair hearing considering all things.
Now, this very aspect can also be looked at from the
point of view of directory and mandatory provisions, if
one is so inclined. The principle stated under (4)
hereinbelow is only another way of looking at the same
aspect as is dealt with herein and not a different or
distinct principle.
(4)(a) In the case of a procedural provision which is not
of a mandatory character, the complaint of violation has
to be examined from the standpoint of substantial
compliance. Be that as it may, the order passed in
violation of such a provision can be set aside only where
such violation has occasioned prejudice to the delinquent
employee.
(b) In the case of violation of a procedural provision,
which is of a mandatory character, it has to be
ascertained whether the provision is conceived in the
interest of the person proceeded against or in public
interest. If it is found to be the former, then it must be
seen whether the delinquent officer has waived the said
requirement, either expressly or by his conduct. If he is
found to have waived it, then the order of punishment
cannot be set aside on the ground of the said violation. If,
on the other hand, it is found that the delinquent
officer/employee has not waived it or that the provision
could not be waived by him, then the Court or Tribunal
should make appropriate directions (include the setting
aside of the order of punishment), keeping in mind the
approach adopted by the Constitution Bench in B.
Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] . The ultimate test is always the
same, viz., test of prejudice or the test of fair hearing, as
it may be called.
(5) Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only
obligation is to observe the principles of natural justice
W.P.(C) 3215/2018 Page 26
— or, for that matter, wherever such principles are held
to be implied by the very nature and impact of the
order/action — the Court or the Tribunal should make a
distinction between a total violation of natural justice
(rule of audi alteram partem) and violation of a facet of
the said rule, as explained in the body of the judgment. In
other words, a distinction must be made between “no
opportunity” and no adequate opportunity, i.e., between
“no notice”/“no hearing” and “no fair hearing”. (a) In
the case of former, the order passed would undoubtedly
be invalid (one may call it „void‟ or a nullity if one
chooses to). In such cases, normally, liberty will be
reserved for the Authority to take proceedings afresh
according to law, i.e., in accordance with the said rule
(audi alteram partem). (b) But in the latter case, the
effect of violation (of a facet of the rule of audi alteram
partem) has to be examined from the standpoint of
prejudice; in other words, what the Court or Tribunal
has to see is whether in the totality of the circumstances,
the delinquent officer/employee did or did not have a fair
hearing and the orders to be made shall depend upon the
answer to the said query. [It is made clear that this
principle (No. 5) does not apply in the case of rule
against bias, the test in which behalf are laid down
elsewhere.]
(6) While applying the rule of audi alteram partem (the
primary principle of natural justice) the
Court/Tribunal/Authority must always bear in mind the
ultimate and overriding objective underlying the said
rule, viz., to ensure a fair hearing and to ensure that
there is no failure of justice. It is this objective which
should guide them in applying the rule to varying
situations that arise before them.
(7) There may be situations where the interests of State
or public interest may call for a curtailing of the rule of
audi alteram partem. In such situations, the Court may
W.P.(C) 3215/2018 Page 27
have to balance public/State interest with the requirement
of natural justice and arrive at an appropriate decision.”
43. Tested on the above principles, the Impugned Order cannot be set-
aside merely because the petitioner was not supplied a copy of the CFSL
report or a right to cross-examine the author thereof prior to the passing
of the order. It is important to note here that the Show Cause Notice itself
alleges that petitioner‟s signatures were not matching and therefore, the
petitioner was aware of the precise nature of allegation against him. The
petitioner made no endeavor to dispel such allegation by producing or
seeking to produce any evidence to the contrary even before the
respondent no.1, that is, at the appellate stage as well.
44. As far as the appellate stage is concerned, though this Court again
would normally not agree to the procedure followed by the respondent
no. 1 in considering the appeal of the petitioner, the fact remains that on
the asking of the petitioner (petitioner filed a list of witnesses before the
respondent no.1), the respondent no.1 by a letter dated 07.02.2018
directed the respondent no.2 to check with the six other candidates who
were mentioned by the petitioner as his co-examinees as to whether they
had indeed appeared in the same examination alongwith him and whether
they were willing to testify the factual position in this regard. It was
further directed that the invigilator and/other staff of DGCA who were
present or had conducted the examination may also be asked to appear
before the Appellate Authority. DGCA, in turn, vide email dated
08.02.2018 addressed to the witnesses mentioned by the petitioner,
sought willingness of such witnesses to testify on behalf of the petitioner.
W.P.(C) 3215/2018 Page 28
45. In response thereto, DGCA received an email from Mr. Sandeep
Shetty, one of the witness cited by the petitioner, stating as under:
“I would like to Quote that I have seen Capt Rajesh at the
venue where we used to gather before entering the exam hall
and there is no way for me to verify or testify his presence
inside the exam hall and whether he has actually taken the
exam which I am sure your good office would be able to easily
verify with the attendant sheet or other means.”
46. Mr. Neeraj Sahae, another witness cited by the petitioner, stated in
his email dated 08.02.2018 that the petitioner had stayed with him in
Bombay when he appeared for the exams, however, he had not appeared
alongwith the petitioner for the ATPL exams .
47. Capt. Rajesh Kumar Singh, another witness cited by the petitioner,
expressed his inability to appear on 15.02.2018, the date fixed by
respondent no.1. He, however, did not state anything about him
appearing alongwith the petitioner for the examination or having
witnessed him giving such exam.
48. Mr. Shivdas Shetty, another co-examinee cited by the petitioner,
vide his email dated 12.02.2018, first stated that he had seen the
petitioner during the examination, however, vide his subsequent email
dated 15.02.2018, stated that he had met the petitioner outside the exam
hall.
49. The Impugned Order records that in the hearing held on
15.02.2018, the DGCA produced before the respondent no. 1 the
responses received from the above named witnesses in a tabulated form.
W.P.(C) 3215/2018 Page 29
The same was also supplied to the petitioner. It was stated that out of six
witnesses cited by the petitioner, two had not appeared in the
examination alongwith the petitioner.
50. The petitioner produced Capt. Rajesh Kumar as his witness before
the respondent no. 1. His testimony has however, been disregarded by the
respondent no. 1 on the ground that he had tried to influence him. The
petitioner does not dispute this fact, but only states that his testimony
should not have been discarded on this ground.
51. As far as the invigilator is concerned, DGCA addressed email
dated 09.02.2018 to him requesting him to confirm whether the signature
appended in the „Signature of Invigilator‟ column of the OMR sheet were
his or not and whether he was willing to testify the adherence to the
procedure for admitting/verifying the credentials of the candidates during
the exam.
52. Mr. Prasen Mehta, the invigilator, expressed his inability to appear
on the date fixed by the respondent no. 1 due to his preoccupation. No
further endeavor was made to secure his presence or verify facts from
him.
53. The petitioner, in the hearing held on 15.02.2018, requested for an
adjournment so that he may personally request the other pilots, who had
not attended the hearing, to attend the same. The respondent no.1,
allowed such opportunity to the petitioner. The respondent no.1 further
directed DGCA to call upon the DGCA officials who had worked as
W.P.(C) 3215/2018 Page 30
supervisor/superintendent/invigilator for conducting the examination
under consideration.
54. The Impugned Order records that on 21.02.2018 the petitioner
produced Capt. Harleen Kaur Sarna, one of the witness cited by him, and
she stated that she had seen the petitioner at the examination
venue/complex but she cannot testify/verify whether he did actually
appear in the exam in person or not.
55. As far as the Supervisors for the examination are concerned, the
Impugned Order records as under:-
“9. The officers/officials of DGCA, who acted as Supervisor
/superintendent in the said examination, stated that it was not
their responsibility to check the ID proofs of the candidates who
had appeared for the examination. Their duty instead was to
ensure that all the candidates present in the examination hall
have signed their presence in the attendance sheet and all the
particulars have been filled up in the relevant columns of
question paper and OMR/answer sheets by the candidates and
the same has also been duly signed by them. Shri.S. Dutta,
DGCA who had acted as superintendent during the
examination, stated that his responsibility was to allocate roles
to invigilators and reconcile the number of copies of
examination documents etc, and not check the ID proofs etc.
Shri Ravi Krishna, DGCA confirmed that no official record is
made/preserved, specifying the name of
supervisor(s)/invigilator(s), room/hall wise.
10. Captain Sehgal stated that he recognizes Sh. James George,
Dy. Director, DGCA as one of the invigilator during the exam.
However Sh. George, who attended the hearing denied
remembering anything of that time period.”
W.P.(C) 3215/2018 Page 31
56. It is important to note here that the respondent no.1 did not
formally record the statements made by the abovementioned witnesses
nor the Impugned Order reflects whether an opportunity of cross-
examination was afforded to the petitioner and if so, what was the result
of such cross-examination. It is for this reason that I have earlier
observed that the procedure followed by respondent no.2 was clearly
flawed and cannot be countenanced. However, at the same time, in my
view, the flaw in the procedure does not vitiate the Impugned Order to an
extent to be set-aside.
57. The only challenge to the narration of the statements of the
witnesses is to the statement of Capt. Harleen Kaur Sarna, where the
petitioner alleges that she testified to the presence of the petitioner inside
the examination venue. However, such assertion is not backed by any
affidavit of the witness and is infact, vaguely made in the following
words:
“R. For that the Respondent No. 1 failed to appreciate that
Captain Harleen Sarna could have only testified to the
Petitioner presence inside the examination centre/venue
and not to the extent of whether she had seen the
Petitioner inside his examination hall.
S. For the Respondent no. 1 failed to appreciate that there
were several halls inside the examination centre and that
Captain Harleen Sarna and that the Petitioner were
seated in separate halls.
T. For that the Respondent No. 1 failed to appreciate that
the original purpose of Captain Harleen Sarna‟s
presence at the examination hall was to enable her to
write own examination papers and not to check and
W.P.(C) 3215/2018 Page 32
remember others presence as also check whether others
were writing their respective papers.”
58. The Impugned Order, while confirming the order passed by the
respondent no.2, gives the following reasons:
“11. After perusing the records of the case and hearing the
Appellant, representatives of DGCA and the Pilots who
appeared as witnesses, I order as follows:-
“As requested by Capt. Rajesh S. Sehgal, he was given an
opportunity to request the pilots who were indicated by
him as his co-examinee in the exam under consideration,
to attend the hearing in person to testify his presence
during the said examination. Only 2 out of 6 pilots
mentioned by him as witnesses attended the personal
hearings. It was also observed that another 2 out of 6 had
in fact not appeared in the said exam at all. The 4 pilots
who appeared in the exam have stated(on email on in
person during hearing) to have seen/met Capt. Rajesh
Singh Sehgal at examination venue/campus/outside the
exam hall but they categorically refrained from testifying
about Capt. Rajesh Singh Sehgal‟s presence inside the
exam hall and whether he actually wrote the exam in
person. Mere presence in/around the building premises
does not imply that he has actually written the
examination.
One of the pilots called by Sh. Sehgal as a witness, Capt.
Rajesh Kumar, also tried to influence me during the
hearing stating that he knew my younger brother.
The report of C.F.S.L. lab regarding the signature also
indicates that the signature of Sh. R.S. Sehgal does not
match with the signature on the examination documents.
In 2010, the system of conducting examination was that
the examination centre would have a superintendent
along with few supervisors and invigilators. Some of the
invigilators were private employees of Thakur Institute of
W.P.(C) 3215/2018 Page 33
Aviation Technology, Mumbai, where the examination
was conducted. DGCA has confirmed that the records
are not available as to who was the invigilator in the hall
where Capt. Sehgal(appellant) wrote the exam. The
DGCA officials who were examined stated that checking
the identity proof was the responsibility of the invigilator
assigned to the room. None of the
superintendent/supervisor who were examined, could
confirm that it was indeed Capt. R.S. Sehgal who wrote
the exam. It was shocking that two the six pilots cited as
witnesses by the appellant on the ground that they had
appeared in the exam with him, had in fact not appeared
in the said exam at all.
It is understood that DGCA has now put greater check at
the examination centres including CCTV cameras to
prevent impersonation.
Therefore, in my considered opinion there is no reason to
differ from the findings and decision of DGCA.”
59. The Impugned Order, therefore, is passed after appreciating the
statements made by the witnesses, both the ones cited by the petitioner as
also the ones who are officials of the DGCA. As noted hereinabove, this
Court in exercise of its powers of judicial review, cannot enter into an
arena of re-appreciation of such evidence to form its own conclusion
thereon. In the present case, the respondent no.1 has placed reliance on
the report of the CFSL and the fact that the petitioner had cited two
witnesses as officers who had attended the examination alongwith him,
however, this plea was found to be incorrect. As noted hereinabove, the
CFSL report was categorical in nature stating that the petitioner had
indeed not signed the OMR sheet or the Attendance Sheet for the written
examination. Whether such evidence was enough to hold against the
W.P.(C) 3215/2018 Page 34
petitioner is not for this Court to decide as it would not be a case of “no
evidence” but appreciation of quantum and quality of evidence, which
this Court is not authorized to do while exercising its power of judicial
review. Equally, the fact that there should have been a scrutiny of the
Admit Card at the entrance of the examination centre and during the
examination, though important, is a fact to weighed against the
overwhelming evidence of the petitioner‟s signatures not matching. This
exercise of re-appreciating the evidence and counter-weighing the same
is not permitted to the court exercising its powers of judicial review.
60. It would also be important to remember that under Rule 38 of the
Aircraft Rules, 1937, the Central Government has been charged with the
function of granting the Pilots‟ licence. Under Rule 41A of the Rules, the
DGCA has been statutorily charged with the function of conducting
examination for grant of such licenses. Sub-rule (4) of Rule 41A of the
Rules authorizes the Director-General to debar permanently or
temporarily a candidate from any flying test or examination where such
applicant has, in the opinion of the Director-General, adopted unfair
means during the test or examination. Therefore, the duty of not only
conducting the examination but also its sanctity is of the Director-
General. In a pilots‟ hand is not only the aircraft but also the lives of the
passengers and the crew. Therefore, the opinion of the Director-General
on the sanctity of any such examination, should not be easily interfered
with by the court. In such matters, the courts must show restraint and
grant more latitude to the authority.
W.P.(C) 3215/2018 Page 35
61. For the above reasons, reliance of the petitioner on the judgments
of the Supreme Court in Hanumant Govind Nargundkar (Supra),
Sharad Birdhichand Sarda (Supra), K.S. Gandhi (Supra), and Sachin
Kumar Singhraha (Supra) cannot be accepted. It must be noted that
Hanumant Govind Nargundkar (Supra), Sharad Birdhichand Sarda
(Supra), and Sachin Kumar Singhraha (Supra) were cases dealing with
criminal prosecution. As observed herein above, the case of a
departmental inquiry, like the present, is to be decided on preponderance
of probabilities and not beyond reasonable doubt. This was also so
decided in K.S. Gandhi (Supra).Tested on this anvil, it cannot be said
that the inference drawn by the respondents from the evidence on record
is of such a nature that no reasonable person could have arrived at such a
conclusion.
62. Digamber Vaishnav (Supra) was also a case dealing with a
criminal prosecution and therefore, cannot have an application to the
facts of the present case.
63. The submission of the learned senior counsel for the petitioner that
the Show Cause Notice showed predetermination of the findings against
the petitioner, holds no water. The show cause notice merely refers to the
investigation report and cannot be said to have predetermined the inquiry
against the petitioner.
64. The submission of the petitioner that the respondent no.1 could not
have transformed itself into an enquiry authority thereby seeking to
remedy the defect in the enquiry conducted by the respondent no.2,
cannot come to any aid to the petitioner in the present case. It is evident
W.P.(C) 3215/2018 Page 36
from the reading of the Impugned Order that the witnesses were
summoned at the request of the petitioner. The petitioner participated in
such proceedings without any protest and in fact, sought an adjournment
to produce further witnesses. Hence, the conduct of the petitioner clearly
establishes petitioner‟s assent to the procedure adopted in the
adjudication of the appeal filed by the petitioner before the respondent
no.1.
65. This court in Aneuser Busch Inbev India Limitied Vs.
Commissioner (Excise, Entertainment And Luxury Tax) & Ors ,
MANU/DE/4352/2019 , has held that in such cases, the conduct of the
party complaining about breach of principles of natural justice would also
have to be considered. Having participated in such proceedings without
protest, the petitioner cannot be now allowed to challenge the procedure
adopted by the Appellate Authority merely because the result is not to his
liking. Law does not permit a party to both approbate and reprobate.
66. In Joint Action Committee of Airline Pilots’ Association of India
(ALPAI) & Ors. v. Director General of Civil Aviation & Ors., 2011(5)
SCC 435, the Supreme Court explained the doctrine of election as under:-
“ 12. The doctrine of election is based on the rule of estoppel- the
principle that one cannot approbate and reprobate inheres in it. The
doctrine of estoppel by election is one of the species of estoppels in pais
(or equitable estoppel), which is a rule in equity. By that law, a person
may be precluded by his actions or conduct or silence when it is his duty
to speak, from asserting a right which he otherwise would have had.
Taking inconsistent pleas by a party makes its conduct far from
satisfactory. Further, the parties should not blow hot and cold by taking
inconsistent stands and prolong proceedings unnecessarily .”
W.P.(C) 3215/2018 Page 37
67. In view of the above, the submission of the petitioner that the
Appellate Authority could not have held inquiry itself, cannot be
accepted in the facts of the present case.
68. This, however, leaves me with a submission of the learned counsel
for the respondents that even otherwise, the petitioner is not entitled to
any relief from this Court on account of his placing reliance on the email
of N. Geetanjali P. Parelkar, one of the witness cited by the petitioner as
having attended the examination alongwith the petitioner. She submits
that Ms. Geetanjali had, in fact, not attended the examination alongwith
the petitioner and was absent. In spite of the same, she first tried to
mislead the respondent no.1 by sending an email stating that the
petitioner had gone inside the examination centre alongwith her and on
finishing the papers, they both had discussed the same with each other.
The respondent no.1 ignored such email as it was shown that she was not
present in the subject examination. In spite of the same, the petitioner
again relied upon her email before this Court. This Court in its order
dated 27.09.2018 recorded as under:
“6. During the course of arguments, Mr. Balbir Singh, learned
Senior Counsel appearing for the petitioner relied upon an
email dated 15.02.2018 sent by N. Geetanjalee P. Parelkar
confirming that she had entered the examination hall on 24th
and 25th November, 2010 along with the petitioner. The
petitioner relies heavily on the said email as evidence of the
petitioner having taken the examination on 24th and 25th
November 2010 along with Ms Parelkar.
7. Ms. Anjana Gosain, learned counsel appearing for
respondent nos.1 & 2 states, on instructions, that Ms N.
W.P.(C) 3215/2018 Page 38
Geetanjalee P. Parelkar did not take the examination on that
dates as indicated and was absent.
8. Let an affidavit to that effect be filed within a period of two
weeks from today.”
69. The respondent no.2, in compliance with the above order filed an
affidavit submitting that Ms. Geetanjali did not even appear from the
Mumbai Centre and had applied for appearing in the examination at the
New Delhi Centre but was absent in all the three written examinations. It
was only after the filing of the said affidavit, that the petitioner sought to
withdraw his reliance placed on the email of Ms. Geetanjali. This Court,
however, by an order dated 01.11.2018 denied such permission to the
petitioner by dismissing his application seeking amendment to the Writ
Petition.
70. The learned counsel for the respondents has further stated that the
petitioner has also filed a false copy of the appeal that was filed by him
before the respondent no.1, before this court. She has placed on record
the copy of the appeal as filed by the petitioner before the respondent
no.1. There is clearly a distinction between the two inasmuch as in the
appeal filed by the petitioner before the respondent no.1, the petitioner
had named the six witnesses, however, in the copy filed before this Court,
the said paragraph has been changed and the reference to the witnesses
by petitioner has been removed. This was clearly done to mislead this
Court to believe that the petitioner had not named the said witnesses.
71. I find that the above conduct of the petitioner itself is sufficient to
disentitle the petitioner from claiming any relief from this Court. As held
W.P.(C) 3215/2018 Page 39
by the Supreme Court in K.D. Sharma Vs. Steel Authority Of India Ltd.
and Ors. , MANU/SC/3371/2008 and Kishore Samrite Vs. State of U.P.
and Ors . MANU/SC/0892/2012 , where a person approaches a Court with
unclean hands, making mis-statement or filing false documents, that itself
is a ground disentitling him to any relief from the Court in exercise of its
discretionary jurisdiction under Article 226 of the Constitution of India.
72. For the reasons stated above, I find no merit in the present petition.
The same is dismissed. The parties shall bear their own costs.
NAVIN CHAWLA, J
MAY 18, 2020
rv
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