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Judgment
A programme based on a sting operation conducted upon the petitioner and other employees of the Forensic Science Laboratory, Agra1, was telecast on 9 August 2007 on the news channel Star News under the caption "Kanoon Ke Killer". The petitioner, who was holding the post of Deputy Director, Forensic Science Laboratory, Agra at the relevant time, was shown demanding illegal gratification for giving a favourable forensic report. 2. On 18 September 2007, the petitioner was placed under suspension, pending disciplinary enquiry into the incident. It was followed by a charge sheet dated 3 December 2007. It is stated in the charge sheet that in a preliminary enquiry conducted by Superintendent of Police (Technical Services), U.P. Lucknow and Director, Forensic Laboratory, U.P. Lucknow, the petitioner was found, prima facie, involved in corruption. It further contains a recital that the act and conduct of the petitioner, as portrayed in the programme aired on the T.V. Channel on 9 August 2007, was objectionable and unbecoming of the post held by him. It has resulted in lowering the image of the 1 FSL, Agra Department and causing irreparable injury to it. 3. The petitioner contested the proceedings, emphatically denying having asked any illegal gratification. He took a specific plea that the programme, as aired, wrongly portrayed him demanding bribe, though he never asked for it. In fact, he emphatically rejected the offer when made to him. The entire episode was stage-managed by one of his colleagues Santosh Kumar Kuril, Senior Scientific Assistant, against whom the petitioner had been a witness in a criminal case. The reporters of the news channel, who carried out the sting operation, had continuously been in touch with him, as is evident from the CDR. The entire programme aired on the channel was based on doctored and manipulated video footages. The alleged original footage handed over by the news channel to the Department, the investigating agencies and the petitioner, had been fabricated and morphed, the relevant parts of the conversation had been omitted or the seriatum changed. The original memory card, in which the recording was done, had not been produced. The transcript of the Programme was prepared by omitting relevant portions of the conversation, by morphing the faces, by changing the contexts, only to enhance the TRP of the Programme. Totally false aspersions have been cast on the petitioner, who has to his credit an unblemished service record. 4. During the course of enquiry the petitioner as well as several other witnesses were examined. The Inquiry Officer thereafter submitted report dated 5th September 2012 recommending action being taken against the petitioner under Rule 3 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 19992 and for withholding his integrity. It was followed by impugned order dated 29 August 2014 by the first respondent imposing penalty of removal from service which does not disqualify from future employment. Aggrieved thereby, the instant writ petition has been filed. 5. Shri Udayan Nandan, counsel for the petitioner submitted that the original recording, which is contained in the memory chip of the two cameras used by the reporters of the T.V. Channel, had not been made available to the investigating agencies or to the petitioner, albeit a specific plea by the petitioner that the C.D. containing the footage of the episode, had been doctored, manipulated and morphed. It is submitted that seriatum of the conversation had been manipulated so as to convey a different meaning altogether than what it was intended to. The petitioner had repeatedly demanded the original recording, but the said request was brushed aside in a casual manner. The authenticity of the CD having not been proved, the entire proceedings stand vitiated. Sri Jameer Ahmad Khan, the cameraman, who conducted the sting operation, was not cross-examined, although the petitioner made a specific request in that regard. The petitioner has established that the cameraman Sri Jameer Ahmad Khan was in continuous touch with Santosh Kumar Kuril, the colleague of the petitioner, who had conspired in getting the sting operation 2 Rules 1999 conducted. The petitioner had submitted a list of witnesses for his defence, but they were not called during the enquiry. There was no credible evidence led by the Department to identify the voice of the petitioner. The Anti Corruption Unit, Agra, which was entrusted with the enquiry, submitted a report on 16 May 2009 opining that the sting operation, which was telecast on 9 August 2007, was a result of manipulation and an outcome of collusion between Santosh Kumar Kuril and the reporters. The Inquiry Officer in his report dated 5 September 2012 has totally omitted from consideration the reports dated 16 May 2009 and 17 November 2009 submitted by the Anti Corruption Unit, Agra and Meerut respectively, both of which were in favour of the petitioner. The Inquiry Officer had recommended for a minor penalty, but without issuing any show cause notice to the petitioner, he had been awarded a major penalty i.e. dismissal from service. 6. It is further submitted that under Rule 16, before any order is passed by the Government, the Public Service Commission is required to be consulted. It is urged that the copy of the advice given by U.P.S.C. was not made available to the petitioner, resulting in serious prejudice to him. In this regard, reliance has been placed on the decision of the Supreme Court in Union of India and others v. R.P. Singh, (2014) 7 SCC 340. It has further been submitted that a charge sheet was issued on 13 August 2010 to Santosh Kumar Kuril, Senior Scientific Assistant for his involvement in hatching the conspiracy and for misconducting himself in discharge of his official duties. It was admitted to the department that the sting operation was a result of conspiracy hatched by Santosh Kumar Kuril in collusion with the reporters. Thus, the sting operation was conducted not for public good, but to cause undue gain to him, and undue loss to the petitioner. It is also contended that the other colleagues of the petitioner upon whom separate sting operations were conducted and which formed part of the same programme that was aired on 9 August 2007 had been subjected to minor penalty or censure entry or warning but the petitioner has been discriminated against by imposing a major penalty. 7. On the other hand, learned standing counsel urged that the petitioner, who held a high post, had been found involved in corruption and his activities has lowered the esteem of the department. He further submitted that the disciplinary enquiry was conducted by ensuring due compliance of the procedure as well as principles of natural justice. The petitioner was given full opportunity to defend himself. The Inquiry Officer has given a detailed report and the order passed by the disciplinary authority based on such report does not warrant any interference by this Court. He further pointed out that the Director General of Police did not agree with the reports of the Anti Corruption Unit, Agra dated 16 May 2009 and Anti Corruption Unit, Meerut dated 17 November 2009 and therefore, got the matter re-investigated by the Anti Corruption Unit, Lucknow. It submitted a report on 6 April 2010 recommending for a major penalty against the petitioner. It is further submitted that investigation by Anti Corruption Unit of the State was to find out whether criminal prosecution should be launched against the petitioner or not and these reports had no relevance in the disciplinary proceedings. It is further urged that having regard to the nature of the duties of the petitioner, he was rightly awarded a major penalty. He cannot be put at par with the other officers to whom minor penalty had been awarded. It is also specifically contended that the CD containing the original recording (raw footage) was made available to the petitioner and thus, the contention of the petitioner that any prejudice has been caused to him, is without any basis. 8. These rival contentions fall for consideration. 9. The advent of spy cameras and other hidden devices in past few decades saw a sudden spurt in sting operations. The press as a fifth pillar of democracy has been playing a proactive role in unearthing corruption in public offices and other high places. In the famous case of R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106 the Supreme Court upheld the punishment awarded under the Contempt of Courts Act to the defence lawyer R.K. Anand. It was based on a sting operation conducted by N.D.T.V., wherein R.K. Anand, defence lawyer in the famous BMW hitand- run case was seen negotiating with the prosecution lawyer and witnesses for their sell out in favour of the defence. In a later decision in Rajat Prasad v. C.B.I, (2014) 6 SCC 495, where one Dalip Singh Ju Dev, the then Union Minister of State for Environment and Forest, was seen receiving illegal gratification in a sting operation, the Supreme Court expressed doubts in accepting the ratio of the judgment in R.K. Anand as an approval of sting operation as acceptable principle of law enforcement valid in all cases. The Supreme Court traced the history of the law prevailing in advanced countries on sting operations in the following words:- 12. The expression ''sting operation'' seems to have emerged from the title of a popular movie called "The Sting" which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act. 13. Unlike U.S. and certain other countries where a sting operation is recognised as a legal method of law enforcement, though in a limited manner as will be noticed hereinafter, the same is not the position in India which makes the issues arising in the present case somewhat unique. A sting operation carried out in public interest has had the approval of this Court in R.K. Anand v. High Court of Delhi [(2009) 8 SCC 106] though it will be difficult to understand the ratio in the said case as an approval of such a method as an acceptable principle of law enforcement valid in all cases. Even in countries like the United States of America where sting operations are used by the law-enforcement agencies to apprehend suspected offenders involved in different offences like drug trafficking, political and judicial corruption, prostitution, property theft, traffic violations etc., the criminal jurisprudence differentiates between "the trap for the unwary innocent and the trap for the unwary criminal" (per Warren, C. J. in Sherman v. United States (2 L Ed 2d 848 : 356 US 369 (1958) approving situations where government agents "merely afford opportunities or facilities for the commission of the offense" and censuring situations where the crime is the "product of the creative activity" of law-enforcement officials (Sorrells v. United States (77 L Ed 413 : 287 US 287 435 (1932). In the latter type of cases the defence of entrapment is recognised as a valid defence in USA. If properly founded such a defence could defeat the prosecution. 14. A somewhat similar jurisprudence recognizing the defence of entrapment in sting operations has developed in Canada where the defence available under specified conditions, if established, may result in "stay" of judicial proceedings against the accused the effect of which in the said jurisdiction is a termination of the prosecution. [R v. Regan (2002) 1 SCR 297 (Can SC) (para2)]. 15. In R v. Mack (1988) 2 SCR 903 (Can SC), it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and, (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. The following factors determine whether the police have done more than provide an opportunity to commit a crime : (1) the type of crime being investigated and the availability of other techniques for the police detection of its commission. (2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime; (3) the persistence and number of attempts made by the police before the accused agreed to committing the offence; (4) the type of inducement used by the police including : deceit, fraud, trickery or reward; (5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity; (6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship; (7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; (8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves; (9) the existence of any threats, implied or express, made to the accused by the police or their agents; (10) whether the police conduct is directed at undermining other constitutional values. 16. In United Kingdom the defence of entrapment is not a substantive defence as observed in R v. Sang (1980 AC 402) by the House of Lords (AC p. 268):- "...............The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence; but under the English system of criminal justice, it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence." 17. However, a shift in judicial reaction appears to be emerging which is clearly discernable in R v. Loosely (2001) 1 WLR 2060 wherein the House of Lords found that ( WLR pp. 2067-68, paras 16, 17:- "16.........A prosecution founded on entrapment would be an abuse of the court''s process. The court will not permit the prosecutorial arm of the state to behave in this way." "17....... entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the State''s involvement in the circumstance in which it was committed." 10. The Supreme Court noted that the recent trend is that a prosecution based on entrapment is considered abuse of the Courts'' process. Although in our country, the law as it stands, does not recognise entrapment as a valid defence but there is no doubt regarding unequivocal legal position that the electronic material or other evidence relating to such operation should be of unimpeachable character, not that should be doubted, questioned or critisized. While considering the admissibility of the tape recorded statement, the Supreme Court in Ram Singh v. Col. Ram Singh, (1985) (Suppl.) SCC 611 laid down the following principles:- "(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that in the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of the Evidence Act. (5) The recorded cassette must be carefully sealed and kept in a safe or official custody. (6) The voice of the speaker should be clearly audible and not a lost or distorted by other sounds or disturbances." (emphasis supplied) 11. In R.K. Anand, the Supreme Court in para 134 of the judgment quoted a passage from an Article in the Indian Police Journal, July- September 2014 under the title "Detection Techniques of Videotape Alteration on the Basis of Sound Track Analysis", which is as under:- "The acceptance of recorded evidence in the court of law depends solely on the establishment of its integrity. In other words, the recorded evidence should be free from intentional alteration. Generally, examination of recorded evidence for establishing the integrity/ authenticity is performed to find out whether it is a one-time recording or an edited version or copy of the original." And further: "Alteration on an audio recording can be of addition, deletion, obscuration, transformation and synthesis. In video recordings the alteration may be with the intention to change either on the audio track or on the video track. In both the ways there is always disturbance on both the tracks. Alterations in a video track are usually made by adding or removing some frames, by rearranging few frames, by distorting certain frames and lastly by introducing artificially generated frames. Alteration on a video recording (sic)" 12. Having noticed the legal position that proof of integrity and correctness of the electronic material is of paramount importance, the Supreme Court in R.K. Anand did not accept the contention that merely because the original micro chip was not taken in its custody by the High Court, but was permitted to be preserved in the custody of the T.V. Channel, it would vitiate the action taken on the basis of the sting operation. The Supreme Court held that the contents of the sting recordings being admitted, there was no need of proof of integrity and correctness of the electronic media. However, it hastened to add that had it been under challenge, the T.V. channel would have been "subjected to strictest proof of the electronic materials on which its programmes were based and, in case it failed to establish their genuineness and correctness, it would have been equally guilty, if not more, of serious contempt of court and other criminal offences." 13. The rational behind the aforesaid proposition laid down by the Supreme Court is not difficult to understand. There had been instances where sting operations were found to be tutored, based on half truths, to gain popularity and thus, help increase the TRP of the programme or to confer benefit to some other individual or body. One such instance was a sting operation conducted on Ms. Khurana, a teacher in a school run by Delhi Government. On 30 August 2007, a television news channel called ''Live India'' aired a programme based on sting operation, wherein the teacher was shown forcing a girl student into prostitution. In the wake of the said telecast and the mayhem that followed some persons physically attacked the teacher and even tore her clothes. The Directorate of Education, Delhi came into action and suspended Ms. Khurana and later, dismissed her from service. In police investigation that followed, it transpired that there was no evidence to show that Ms. Khurana was involved in any prostitution racket. The girl, who has been shown as a student, was a journalist, eager to make a name in the media world. On 11 September 2007, the Ministry of Information and Broadcasting issued a show cause notice to the T.V. Channel under Section 5 of the Cable Television Networks (Regulation) Act, 1995 read with the provisions of the Cable Television Networks Rules, 1994 stating that the sting operation was based on a false story containing half truths and levelling false innuendos. On 19 September 2007, the Ministry of Information and Broadcasting passed an order imposing ban on transmission by the said channel. The Delhi High Court took suo motu cognizance of the media reportings and examined the issue how the re-occurrence of such incident could be stopped, so that innocent persons are not victimized. After examining the law on the subject prevailing in European countries and placing reliance on the decision of the Supreme Court of the United States in Keith Jacobson v. United States, 503 US 540 it was observed that where an individual is induced to break law and the accused person sets up the defence of entrapment, the prosecution must answer by establishing beyond reasonable doubt that the accused was predisposed to committing such criminal act prior to his entrapment by the sting operation. It has been held that "while artifice and stratagem may be employed to catch those who are engaged in criminal enterprises, there would be a need to prove that the person in question had a predisposition to commit the said criminal act prior to being approached by the enforcement agencies". It has been observed as under:- "18. Giving inducement to a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be deprecated by all concerned including the media. Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person." It has been further observed as under:- "19. ..... However, it is not permissible for the media to entice and try to actively induce an individual into committing an offence which otherwise he is not known and likely to commit. In such cases there is no predisposition. If one were to look into our mythology even a sage like Vishwamitra succumbed to the enchantment of "Maneka". It would be stating the obvious that the Media is not to test individuals by putting them through what one might call the "inducement test" and portray it as a scoop that has uncovered a hidden or concealed truth. In such cases the individual may as well claim that the person offering inducement is equally guilty and a party to the crime, that he/she is being accused of. This would infringe upon the individual''s right to privacy. We believe and trust that all TV channels/Media shall take steps and prohibit its reporters from producing or airing any programme which is based on entrapment and which are fabricated, intrusive and sensitive. We also believe that responsible and senior TV journalists/ reporters and editors who are involved in production and airing of programmes through electronic media should take steps for drawing up a self-regulatory code of conduct. The Press Council of India should also examine and can take initiative in this regard." 14. Though it was observed that media should itself draw up a self-regulatory code of conduct while conducting a sting operation and should act with great responsibility and objectivity, and the Press Council of India should take steps in this regard, but none of the Counsel for the parties have placed before us any guidelines issued in this regard. Thus the guiding principles in regard to sting operation, as of date, are those which have been laid down by the Apex Court. 15. Having noticed these principles, we now proceed to examine the submissions advanced by learned counsel for the parties. The first and foremost contention of learned counsel for the petitioner, as noted above, is that the programme, which was shown on the T.V. Channel, was based on an edited and doctored video/audio recording and does not reflect the true and correct state of affairs. It presents a distorted picture of reality by overemphasizing or underplaying certain aspects that trivialize or sensationalise the contents. Some of the very important and relevant part of the video and audio film have been deleted/omitted, resulting in long dark pauses; there had been alteration in the sequence of the video audio frames resulting in an out of context display of events, different from what really transpired. The original micro chip of the two cameras, which were used for recording the incident had not been handed over to the investigating agencies, nor to the petitioner, lest the correct facts would have surfaced. 16. The sting operation was conducted at the house of the petitioner. Two cameraman had approached the petitioner at his house on 5 August 2007 and what followed thereafter, was shown on the T.V. programme aired on 9 August 2007 under the caption "Kanoon Ke Killer". The cameramen posed themselves as cousin of a woman, who had died in suspicious circumstances. The family of the girl had lodged a criminal case against her in-laws alleging that she died because of poison. The reporters told the petitioner that they want a favourable forensic report of the viscera examination mentioning that she died of poison and for which, they were ready to pay any sum. The petitioner is stated to have demanded two plus for doing the needful, which according to the TV channel referred to a demand of Rs.2 lakhs and plus. The T.V. channel claims to have furnished the recording of the T.V. programme as well as the unedited foot-ages of the incident in two separate CDs. The transcript from the alleged unedited foot-ages, as also duly recorded in the inquiry report of Anti Corruption Unit, Lucknow dated 6 April 2010, is as under:-
"VERNACULAR MATTER OMITTED" 17. At first blush, it seems that what the T.V. channel claimed regarding demand of illegal gratification by the petitioner was correct but as we navigated through the statement of the witnesses, the transcript of the episode which is on record and the other attending circumstances, we felt it was necessary to give a deeper thought. 18. It is borne out from the record that the petitioner in his reply to the charge sheet as well as during course of his cross-examination specifically stated that he did not call these persons but they themselves approached him. They first came to his house on 31 July 2007 but since he had gone out, they could not meet him on that day. They again approached him on 5 August 2007. His daughter saw them from a window and told them that the petitioner is there in the house. The said scene is visible in the recording. Thereafter, the petitioner opened the door, but after having come to know about the purpose for which they had approached him, he scolded them and turned them out of his house. The specific case of the petitioner is that the said part has been deleted from the video footage and there is a dark pause before the next video frame. It was also his specific case that both the persons fell on his legs and compelled him to hear their story. The petitioner then permitted them to sit in his drawing room. The petitioner posed a specific query in this regard to Harish Sharma, Editor, Cobra Post, Star News Channel, who had conducted the sting operation. He did not explain as to why there are gaps and dark spaces in the recordings but only stated that the unedited original CD has been handed over to the Inquiry Officer and the same could be looked into. The questions asked in this regard and their reply, which assumes significance, are as under:-
"VERNACULAR MATTER OMITTED" 19. The specific case of the petitioner was that in the entire conversation he did not demand any money, expense or illegal gratification. There was a discussion regarding certain diseases and while discussing the level of sugar and albumin in urine, he spoke in terms of 1 plus, 2 plus and 3 plus. A part of the said conversation, where the word ''2 plus'' was used, was picked up and was inserted at another place in a different context, leading to an entirely different meaning. In reply to these specific and repeated questions, Harish Sharma, Editor, did not deny that there was discussion about certain tests but only reiterated that the CD handed over to the Inquiry Officer had not been tinkered with. The said part of the cross-examination which makes an interesting reading and is of great significance in determining the controversy is as under:-
"VERNACULAR MATTER OMITTED" 22. In the entire sting operation, there had been no actual giving or taking of the money or other form of gratification. A close reading of the conversation that took place further reveals that there was also no demand of money or any form of gratification in express words. The use of the word ''two plus'' in two of the sentences has been linked to a demand of two lakh plus. Such a conclusion has been deduced from the sentence allegedly spoken by the reporter conducting sting operation, wherein the words ''two lakh'' had been used. The specific case of the petitioner is that by editing the original, the seriatum of the conversation has been changed, audio/video frames added/altered to convey an entirely different meaning. It is for the said reason that there is no continuity in conversation. 23. In order to ascertain whether there is any force in the stand taken by the petitioner that the reference to the words two plus was in context of certain tests relating to sugar and albumin in urine, we consulted some of the books on the subject. We came across a book by the name of ''Diagnosis and Management by Laboratory Methods'' (17th edition by John Bernard Henry), which states as under:- "Tests are based on the principle of protein-error of pH indicators. This is the ability of proteins to alter the color reaction without alerting the pH. The test area is buffered to a constant low pH so that color changes reflect the presence and concentration of proteins. Results may be read in a "plus" system with any plus value indicating significant proteinuria. In concentrated specimens from healthy persons, a "trace" result may be seen with physiological normal excretion of protein." 24. We searched on the Google what the word ''2 plus'' means in medical terms. We came across a website https://www.kidney.org where this specific question has been answered thus : "Two plus protein mean that you have protein in your urine. This can be a sign of kidney disease. The 2 plus mean that this was not qualitative. It mean that there is ''some protein in your urine but does not tell us how much." 25. Thus, we find that in medical parlance the percentage of albumin in urine above the normal level is denoted in terms of +2, +3 and so on. The explanation furnished by the petitioner, in our opinion, could not be out rightly rejected and needs further examination. 26. This leads us to a more basic issue i.e. when the petitioner has since the very beginning i.e. from the stage of preliminary enquiry, and thereafter in his reply to the charge sheet as well as during course of disciplinary proceedings disputed the veracity and authenticity of the alleged raw foot-ages contained in the CD, what was the course which should have been followed by the Inquiry Officer. Should he not have examined as to whether the alleged raw foot-ages contained in the CD, was in fact the original recording or only edited/abridged/modified copy thereof. This needed an enquiry into the issue as to whether the recording was done on the CD which was handed over to the Inquiry Officer or on some other device. 27. An examination of the statements of the two Editors of the TV channel reveals that initially in reply to at least more than one dozen questions put to them, they insisted that CD, which they had handed over to the Inquiry Officer, contained unedited raw footages of the episode. The relevant part of the testimony in this regard is as under:-
"VERNACULAR MATTER OMITTED" 28. It is evident from the statement of Harish Sharma that the sting operation was conducted at five different places, upon five different persons, including the petitioner, but a single CD supposedly containing raw foot-ages was given to the Inquiry Officer. Thus, it was a compilation of the recording that had taken place at five different places upon five different persons. After Harish Sharma was put to rigorous cross-examination, in the end, he admitted that the original recording was done in the memory card of the camera and the same had not been handed over to the Inquiry Officer. Thus, it was clear that the alleged original footages contained in the CD, which was handed over to the Inquiry Officer, was not the original recording but a copy of the recording from the memory card in which the original operation was recorded. The same is evident from the following statement of Harish Sharma :-
"VERNACULAR MATTER OMITTED"
It is thus clear beyond any iota of doubt that while conducting sting operation upon the petitioner, two cameras were used, each camera contained a memory card, in which the original recording was done. The two memory cards, which contained the original recording, were not handed over to the Inquiry Officer or the investigating agencies, despite persistent demand by the petitioner at every stage of the proceedings. Thus, the CD which had been handed over to the Inquiry Officer supposedly containing raw footages, was a recording from the memory cards. It is a compilation of the recording which had taken place at five different places upon five different persons, one of them being the petitioner. 31. We are conscious of the fact that the provisions of the Evidence Act are not applicable to disciplinary proceedings and the standard of proof in a disciplinary enquiry is not the same as in criminal prosecution, but nonetheless where the material relied upon has its genesis from a foreign agency like in the instant case where the entire action is based on the alleged operation conducted by a private T.V. channel, it was absolutely necessary to ensure that the material relied upon is of unimpeachable character. It has not been altered, erased, edited or morphed. It would have been an entirely different matter, if the allegation of misconduct were based on documents or material which formed part of the official record. In that event, the standard of proof may not be of that level, as in the instant case. In the words of the Supreme Court in R.K. Anand, it is a case where the T.V. channel should have been "subjected to strictest proof of the electronic materials on which its programmes were based". 32. It is noticeable that the department itself got the matter enquired by Anti Corruption Unit, Agra, which in its report dated 16 May 2009 opined that the DVD containing the raw footages is an edited one and there is evidence to establish that various scenes have been omitted. It has further been noted that sequence of questions and answers lack coherence and consistency. Thereafter, the matter was got enquired by the Anti Corruption Unit, Meerut, which in its report dated 17 November 2009 again expressed doubt on the integrity and genuineness of the electronic material provided by the T.V. channel. In the said report, it has also been specifically noted that every direct question offering money had been replied in negative. In this context, an interesting aspect of the conversation, which deserves to be taken note of, is that after the petitioner had allegedly demanded gratification in terms of code words i.e. two plus, he was again asked by the reporters " "VERNACULAR MATTER OMITTED". The petitioner replied to the said question in negative by emphatically saying " "VERNACULAR MATTER OMITTED"". The reporter insisted on the offer while stating that even if the petitioner does not accept illegal gratification, he is ready to offer the same for the subordinate staff in following terms:-
"VERNACULAR MATTER OMITTED" (emphasis supplied ) 33. The petitioner again responded with an emphatic denial by saying "VERNACULAR MATTER OMITTED" . The conversation ended with : "VERNACULAR MATTER OMITTED". The incoherence in the statements is writ large. Once illegal gratification was offered and was accepted, there was no occasion to again ask the question as to what amount is to be paid. Again, there was no occasion for the reporter to say that even if he does not accept illegal gratification, it may be accepted for the subordinates working under him. It is for these reasons that the Anti Corruption Unit, Agra in its report dated 16 May 2009 and Anti Corruption Unit, Meerut in its report dated 17 November 2009 found discontinuity in the seriatum of the conversation. A perusal of the record further reveals that Director General of Police, Uttar Pradesh got the episode re-investigated by the Superintendent of Police, Anti Corruption, Unit, U.P., Lucknow, which in its report dated 6 April 2010 also found that the DVD supposedly containing the unedited footages, was in fact an edited version. The original recording was not supplied by the channel. In reference to a letter dated 29 March 2010 by Anti Corruption Unit, Lucknow requiring the channel to furnish the original recording, the channel took shelter behind certain guidelines issue by Ministry of Information and Broadcasting by stating that the same was preserved only for 90 days and thus, at that juncture, the channel was not in possession of the same. The letter dated 29 March 2010 reads as under:- "We are in receipt of your mentioned letter wherein you have asked us to furnish CD of sting operation titled "Cobra Post" telecast on 9th August 2007. In this regard we would like to inform you that an entity engaged in uplinking is required to comply with Uplinking Guidelines issued by Ministry of Information and Broadcasting under Government of India and is required to retain the record of uplinked content for a period of 90 days from the date of uplinking of the content. Therefore in compliance with the Uplinking Guidelines, we are not in possession of the said CD with us. However, we assure you of our full cooperation in this regard." 34. The Anti Corruption Unit, Lucknow conducting the enquiry, therefore, opined that there was no chance of success in case a criminal prosecution is launched against the petitioner. However, it recommended for the petitioner being dealt with departmentally. 35. These reports were submitted, while the disciplinary proceedings were in progress. However, the Inquiry Officer in his report dated 5.9.2012 has not at all accorded consideration to these aspects, nor has even referred to these reports. 36. The Inquiry Officer recommended for award of major penalty under clause (ii) of Rule 3 i.e., reduction to a lower post or grade or time scale or to a lower scale in a time scale and for withholding the integrity of the petitioner. The petitioner was issued a show cause notice to which he responded by filing detailed objections mentioning in detail various lacunae in the enquiry. He specifically took a plea that serious prejudice has been caused to him by not supplying him with the original recording. He specifically contended that the CD containing the raw footages being an edited version and a doctored one, could not be made basis for bringing home the charges of misconduct levelled against him. He also placed reliance upon the reports given by the Anti Corruption Unit, Agra and Meerut. However, the first respondent, without adverting to these aspects of the matter, by merely stating that the Inquiry Officer has found him guilty of the charges levelled against him, and the petitioner has not been able to place any fact on basis of which he could be absolved of the charges, proceeded to impose the penalty of removal from service. 37. Rule 9 (4) makes it imperative for the disciplinary authority to accord consideration to all relevant records relating to the enquiry as well as the representation of the charged government servant and thereafter pass a reasoned order imposing one or more penalties. Thus, the disciplinary authority is under mandate of law to have regard to all relevant records relating to the enquiry as well the representation of the charged government servant. He is also under obligation to pass a reasoned order. However, what we find from the impugned order is that it does not even refer to the pleas taken by the petitioner in his representation. Apart from it, the only reasoning given for not accepting the representation of the petitioner is that no fact has been stated on the basis of which he could be absolved of the charges levelled against him. Apart from it, there is absolutely no other consideration, though a large number of pleas, which were germane to the controversy, were raised by the petitioner. This, in our opinion, does not fulfil the mandate of law. 38. In view of the foregoing discussion, we are of the considered opinion that the TV channel which conducted the sting operation had miserably failed in proving the genuineness and authenticity of the video/audio footages which it had made available to the Inquiry Officer. Since the charge of corruption levelled against the petitioner was solely based upon the same, we are of the firm opinion that it does not stand established. 39. We however feel that there is considerable evidence to sustain the other charge levelled against the petitioner in regard to the manner in which he conducted himself upon being approached by the reporters, resulting in lowering the esteem of the department. The petitioner having come to know their intention even before they were permitted entry into his house, it was expected from him that he should not have involved himself into a long drawn conversation with them, especially in relation to a matter which was under investigation by the laboratory. The petitioner has his own explanation as regards the circumstances which persuaded him to allow the reporters to have entry into his house, but in any event, that should not have resulted in such a long drawn conversation where despite the reporters having offered illegal gratification, the petitioner did not respond in the manner expected of him. In fact, as soon as their intention became explicit, he should have ended the conversation and turned them out from his house. The manner in which the petitioner conducted himself before the reporters was really unbecoming of the high office held by him. Thus, the other charge levelled against the petitioner that he had conducted himself in a manner which was unbecoming of the post held by him and it had resulted in lowering the image of the department, stands established. 40. It has been the specific case of the petitioner that Raghvendra Yadav, Scientific Officer of Forensic Lab, Agra, upon whom a separate sting operation was conducted and was made part of the same programme aired on 9 August 2007, had only been imposed a minor penalty. Likewise, Amrit Lal, who was subjected to sting operation, working as peon in Forensic Lab, Agra, has been imposed penalty of withholding of one increment for specified period. Sri Ramesh Chandra, Gasman also involved in the sting operation, had been given minor punishment. The Inquiry Officer though recommended imposition of the penalty of reduction to a lower post or grade or time scale or to a lower stage in a time scale but the petitioner has been removed from service. In this regard, reliance has also been placed upon the decisions of the Supreme Court in State of Uttar Pradesh and others v. Raj Pal Singh, (2010) 5 SCC 783, Anand Regional Co-operative Oil Seed Growers Union Ltd. v. Shailesh Kumar, 2006 (6) SCC 548 and a Division Bench judgment of this Court dated 15.5.2015 in Ram Hira Nandani v. Central Administrative Tribunal, Alld. Bench, Alld. and others, Writ-A No.16265 of 2012, wherein it has been held that there has to be a parity in punishment in case two persons are identically situated. 41. There is no doubt about the proposition of law that in case the punishment awarded is strikingly discriminatory, the courts can exercise the power of judicial review. However, while examining such an issue, it has to be seen as to what exactly was the charge, the nature of duties/responsibilities of the incumbents as well as any other distinguishing feature, which may warrant a different penalty altogether. Since we have held that the charge of corruption does not stand established, but at the same time, the other charges stand proved, it would be in the fitness of the things that the matter is remitted to the disciplinary authority for considering the issue relating to quantum of punishment, having regard to the charge which stands proved as well as all attending facts and circumstances including the issue as to parity in punishment which is claimed by the petitioner. The other issues raised by learned counsel for the petitioner need not to be dwelt upon, as we have already held that the impugned order cannot be sustained on account of the foregoing reasons. 42. In consequence and as a result of the above discussion, the impugned order dated 29 August 2014 is quashed. The writ petition is allowed in part. The matter is remitted to the disciplinary authority for reconsidering the issue relating to imposition of penalty in the light of the observations made above. 43. In view of partial success and partial failure, both the parties are directed to bear their own costs. Petition Allowed Party.