Central Administrative Tribunal - Delhi
Satbir Singh S/O Mr. Tek Chand vs Commissioner Of Police on 31 July, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3012/2011 Order reserved on 16th July 2015 Order pronounced on 31st July 2015 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Satbir Singh s/o Mr. Tek Chand r/o. H.No.111, Nizam Pur Delhi-81, Thana Kanjhawala ..Applicant (Mr. Ajesh Luthra, Advocate) Versus 1. Commissioner of Police PHQ, MSO Building IP Estate, New Delhi 2. Jt. Commissioner of Police (Southern Range) PHQ, MSO Building IP Estate, New Delhi 3. Addln. DCP (South-East District) P.S. Sarita Vihar New Delhi ..Respondents (Mrs. P.K. Gupta, Advocate) O R D E R
Mr. A.K. Bhardwaj:
Vide summary of allegations dated 31.8.2009 (Annexure A/5), the applicant herein was charged with the misconduct that he was identified by the truck driver Iqbal Singh as Constable, who took `100/- from him at Vinoba Puri Picket. The summary of allegations along with the list of documents as also the list of witnesses were to be relied upon and led in the departmental inquiry was served upon the applicant as well as other delinquent on 31.8.2009. The applicant did not admit the allegations and opted to face the departmental proceedings. Thus as many as seven witnesses were examined in the inquiry held under Rule 16 (iii) of Delhi Police (Punishment & Appeal) Rules, 1980. On the basis of testimony of the PWs the inquiry officer framed the charge against the applicant as follows:-
I, Harish Chander, Inspector Police Station Pul Prahladpur hereby charge upon Const. Satbir, No.1550/SE that during night patrolling on the night intervening 24/25.06.2009, Inspr. Hans Ram, ATO, PS Lajpat Nagar reached at Rubina Chowk, Central Market, Lajpat Nagar at about 3.45 AM and found one Truck No. HR-55F-6201 parked in front of Diwan Automobiles. A Govt. Motor Cycle No.DL-1SN-8304 was parked near the truck and its Rider Const. Vinod, no.1582/SE and pillion Rider HC Ram Pal, No.202/SE were taking to the truck driver Iqbal S/o Ali Mohd. R/o Village Kathole, PS Pahadi, Distt. Bharatpur, Rajasthan. Inspr. called the truck driver and enquired into the matter. The truck driver informed that he got loaded the motorcycle in his truck on 22.06.2009 from Puna and came to Diwan Automobiles to give delivery. As he parked his truck in front of showroom of Diwan Automobiles, the policemen riding on above mentioned motorcycle came there and demanded entry money. The truck driver offered them Rs.30/- but they demanded Rs.100/-. When Inspr. Hans Ram questioned the above mentioned police personnel, they could not reply satisfactorily.
In the meantime, the then ACP/Lajpat Nagar, Shri Ranbir Singh, who was the night GO also reached there and inquiries were conducted from truck driver Iqbal. The truck driver reiterated his earlier version and further informed that he had also paid Rs.100/- to policemen at Vinoba Puri Picket. ACP/Lajpat Nagar accompanied the truck driver Iqbal and his service mechanic Nitesh More S/o Shri Basant More R/o VPO Shivtar, PS Khed Laxmi Narayan Badi, Distt. Ratnagiri, Maharasthra to Vinoba Puri Picket, where they identified HC Sri Chand, No.197/SE and Const. Satbir, No.1550/SE who took Rs.100/- from the truck driver. Thus Const. Satbir, No.1550/SE demanded illegal gratification from the truck driver Iqbal Singh.
The above act on the part of Const. Satbir, No.1550/SE amounts to gross misconduct and dereliction in the discharge of his official duty and unbecoming of a police officer which renders him liable for punishment under the provisions envisaged in Delhi Police (Punishment & Appeal) Rules, 1980.
2. A copy of the charge was delivered to the applicant. He did not admit the charge and sought an opportunity to submit the list of his defence witnesses. On 12.7.2010, he submitted an application stating therein that he did not want to produce defence witnesses and would submit defence statement on 20.7.2010. In the defence statement submitted jointly by the applicant as well as other delinquents in the matter, they discussed the statement of all the seven PWs. After discussing the evidence available on record, the inquiry officer found the charges framed against the applicant as well as HC Rampal No.202/SE, HC Sri Chander No.197/SE and Constable Satbir No.1550/SE as proved. The discussion of evidence and conclusion recorded by the inquiry officer reads thus:-
Discussion of evidence Out of 07 PWs so examined in this DE, PWs one and five are Public/Star Witnesses, but both of them turned hostile. PWs 3, 4 & 7 are formal witnesses who disposed above the duties of all the four delinquents. PW-2 i.e. Inspr. Hans Raj who initially visited Rubina Chowk Central Market on that night confirmed that Const. Vinod, No.1581/SE & HC Ram Pal, No.202/SE were demanded illegal gratification as Entry. This PW further confirmed that the said Nitesh More PW-1 pointed towards HC Shri Chand and Const. Satveer who accepted Rs.100/- as illegal gratification from the said Nitesh More. He also confirmed his report which has been testified as Ex PW2A. Further PW-6 i.e. Sh. Ranbir Singh, ACP (now retired/the then ACP/Lajpat Nagar) also corroborated the version of PW-2. Remaining three PWs i.e. PWs 3, 4 & 7 stated about the duties of all the 04 delinquents which is not disputed.
Conclusion On the basis of testimony of all the 07 PWs, Exhibits and other material evidence on record, the charged framed upon (1) HC Ram Pal, No.202/SE, (2) HC Sri Chand, No.197/SE, (3) Const. Vinod Kumar, No.1582/SE and (4) Const. Satbir, No.1550/SE stands proved.
3. Accepting the inquiry report, the disciplinary authority awarded the penalty of withholding of their next increment for a period of five years with cumulative effect upon the applicant (HC Satbir No.1550/SE), HC Rampal No.202/SE, HC Sri Chander No.197/SE and Constable Vinod Kumar No.1582/SE. Relevant excerpt of the penalty order dated 21.12.2010 reads thus:-
I have carefully gone through the testimony of PWs and other material evidence on record with reference to the findings of the EO as well as their written representations. No doubt that PW-1 & 5, who were the star witnesses are turned hostile. PWs-3, 4 & 7 are formal witness who deposed about the duties of all the four delinquents. PW-2 i.e. Inspr. Hans Raj who initially visited Rubina Chowk Central Market on that night confirmed that Const. Vinod, No.1581/SE & HC Ram Pal, No.202/SE were demanded illegal gratification as Entry. This PW further confirmed that the said Nitesh More PW-1 pointed towards HC Sri Chander and Const. Satbir who accepted Rs.100/- as illegal gratification from the said Nitesh More. He also confirmed his report which has been testified as Ex. PW/2A. Further PW-6 i.e. Sh. Ranbir Singh, ACP (now retired/the then ACP/Lajpat Nagar) also corroborated the version of PW-2. Remaining three PWs i.e. PWs 3, 4 & 7 stated about the duties of all the 04 delinquents which is not disputed. It is correct that Rs.100/- which was paid to HC Sri Chander and Const. Satbir was not seized either by Shri Ranbir Singh, the then ACP/Lajpat Nagar (now retired-PW-6) or Inspr. Hans Raj (PW-2). But this discrepancy cannot mitigate their misconduct.
After evaluating the overall issue as well as circumstances of the case, it has been established that all the 04 Lower Subordinates were indulged in malpractices while performing government duty. They have misused their official position. HC Sri Chander, No.197/SE and Const. Satbir, No.1550/SE accepted Rs.100/- from the truck driver. Whereas HC Rampal, No.202/SE and Const. Vinod No.1582/SE demanded Rs.100/- as illegal gratification from the truck driver Iqbal S/o Ali Mohd. Thus this is fit case for awarding major penalty appropriate to the quantum of guilt. Therefore, having regard to the facts and circumstances of the case as mentioned above, I, P.K. Mishra, Addl. Dy. Commissioner of Police, South West District, New Delhi, hereby award a penalty of withholding of their next increment for a period of five years with cumulative effect to (1) HC Rampal, No.202/SE (PIS No.28823460) (2) HC Sri Chander, No.197/SE (PIS No.28883539) (3) HC Satbir, No.1550/SE (PIS No.28860508) & (4) Const. Vinod Kumar, No.1582/SE (PIS No.28893593).
Let6 a copy of this order be given to (1) HC Rampal, No.202/SE (PIS No.28823460) (2) HC Sri Chander, No.197/SE (PIS No.28883539) (3) HC Satbir, No.1550/SE (PIS No.28860508) & (4) Const. Vinod Kumar, No.1582/SE (PIS No.28893593) free of cost. They can file appeals against this order to the Joint Commissioner of Police, Southern Range, Delhi, within 30 days from the date of receipt of this order, on a non-judicial stamp paper, worth 00.75 Paise, by enclosing a copy of this order, if they so desire.
4. The appeal preferred against the aforesaid penalty order was rejected by the appellate authority in terms of the order dated 22.6.2011, thus the applicant herein filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985, praying therein:-
(a) quash the impugned actions/orders of penalty further directing complete exoneration of the applicant.
(b) award all consequential benefits.
(c) award costs of the proceedings and
(d) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
5. The grounds mentioned in the Original Application to buttress the prayer read thus:-
A. Because the impugned actions/orders are illegal, arbitrary, based on extraneous materials and issued without due application of mind.
B. Because for the submissions made hereinabove the applicant is entitled to a complete exoneration.
C. Because the findings are perverse.
D. Because it is a case of no evidence. There is no evidence of misconduct alleged against the innocent applicant.
E. Because denial of due consideration is denial of justice and vitiates and penalty.
F. Because the authorities have failed to apply their mind and inflicted penalty in a mechanical manner.
G. Because the impugned actions are otherwise also illegal and liable to be set aside.
6. At the time of final arguments, Mr. Ajesh Luthra, learned counsel for applicant espoused the only ground that there was no evidence against the applicant. To fortify his plea, he relied upon the following judicial precedents:
Tribunal
1. Ct. Jai Bhawan s/o Mr. Sube Singh v. Govt. of NCT of Delhi & others (MANU/CA/0228/2010).
2. Constable Rajeev Tyagi v. Govt. of NCT of Delhi & others (O.A. No.1696/2008 with connected case) decided on 7.5.2010
3. Constable Neeraj Kumar v. Govt. of NCT of Delhi & others (O.A.No.277/2010) decided on 2.6.2010 High Court
4. Ram Phal v. Govt. of Haryana & others, 1996 (6) SLR 801.
Apex Court
5. Union of India & others v. Gyan Chand Chattar, (Civil Appeal No.4174/2003) decided on 28.5.2009.
7. To further strengthen his plea, Mr. Luthra submitted that both the driver and mechanic did not support the charge and the ACP, who could depose in support of the charge, was not in fact present at the site where the applicant was identified as the Constable, who accepted `100/- as bribe. To fortify his plea of ACP being not present at the place of identification, he made reference to the entry in DD and report of the Inspector.
8. On the other hand, Mrs. P.K. Gupta, learned counsel for respondents brought to the fore the view taken by the inquiry officer and the disciplinary as also the appellate authorities. She further submitted that PW-2 Inspector Hans Ram, ATO, PS Lajpat Nagar, during the night of the incident, confirmed that PW-1 pointed towards HC Sri Chander No.197/SE and the applicant, who accepted `100/- as illegal gratification from him and PW-6, i.e., Ranbir Singh, ACP, Sub Division, Lajpat Nagar also corroborated the version of PW-2. She read out their statements, as reflected in the inquiry report.
9. We heard the learned counsels for the parties and perused the record.
10. As has been noted hereinabove, the only plea raised by Mr. Ajesh Luthra, learned counsel for applicant is that both the PW-1, i.e., mechanic of the vehicle and PW-5, i.e., the driver of the vehicle, did not support the charge. As can be seen from the statement of said witnesses, when they admitted the fact of parking the truck in front of Diwan Automobiles and their interaction with the senior police officers, in the cross examination, they answered all the questions in negative. Nevertheless, PW-2, i.e., Inspector Hans Ram ATO, PS Lajpat Nagar, i.e., the key witness in the matter, categorically deposed that Nitesh More, i.e., PW-1 had pointed towards HC Sri Chander and the applicant herein and told that they had also taken `100/- as entry. The relevant excerpt of the statement of PW-2 (Inspector Hans Ram ATO, PS Lajpat Nagar) as reflected in the report of inquiry reads thus:-
After that ACP/Lajpat Nagar has ordered to prepare report and sent to his office. Sh. Nitish More pointed towards HC Shri Chand, No.197/SE and Const. Satbir, No.1550/SE and told that they have also taken Rs.100/- as entry. On asking from both these police personnel they have not given any satisfactory reply. After reaching the PS he recorded DD No.37-A dated 24/25.06.09 PS Lajpat Nagar at about 5.10 Am in which the situation has mentioned. He has seen this report which has been exhibited as EX-PW-2/A. xx xx xx xx
04. Whether the Truck Driver had told the name of police personnel or identified who had demanded Rs.100/- from the Truck Driver?
Ans. Yes, the Truck Driver had identified.
xx xx xx xx
06. Had Iqbal told the name of those police personnel?
Ans. He only pointed towards them remaining detail I had not remembered.
xx xx xx xx
08. Has the ACP Sahib attested these statements?
Ans. Yes, he did.
xx xx xx xx
13. Has there is any disclosure of cognizable offence on the statement of Iqbal?
Ans. ACP/Lajpat Nagar was present on the spot and action was taken as per direction of ACP.
11. Besides PW-2, also PW-6, i.e., Ranbir Singh, ACP, Sub-Division, Lajpat Nagar categorically deposed that the driver identified the applicant as Constable, who accepted the money. Relevant excerpt of his statement reads thus:-
He (ACP) alongwith Inspr. Hans Ram, driver Iqbal and helper Nitesh Morey reached police picket Vinobapuri and both driver and helper identified the police personnel as HC Sri Chand, No.197/SE and Const. Satbir, No.1550/SE. On enquiry from these police personnel about the allegation, they didnt have any satisfactory reply. He (ACP) directed ATO/Lajpat Nagar, Inspr. Hans Ram to record the statement of driver and helper of the Trolla and sent a detail report regarding the incident. He (ACP) forwarded the detail report submitted by SHO/Lajpat Nagar to senior officers. He (ACP) seen the said report in D.E. file which bears his (ACP) signature at Point A (Ex. PW-2A).
xx xx xx xx
03. Had truck driver identified any police official and clarified that he had demanded Rs.100/- and this matter is in the report of Inspr. Hans Ram?
Ans. Yes, the truck driver identified Const. Vinod Kumar and HC Ram Pal.
xx xx xx xx
05. Whether it was clarified in your presence that who were (police personnel on motor cycle duty) demanded Rs.100/-, if yes, from whom statement?
Ans. Yes, in the answering statement of the driver. From the aforementioned, it is clear that there was sufficient evidence on record to establish that the applicant herein was identified as Police Constable, who accepted `100/- from the truck driver.
12. As far as the plea of learned counsel for applicant that in his report and DD the Inspector did not mention the fact of visit of ACP to Vinobhapuri is concerned, in the DD No.37-A dated 24/25.6.2009, PS Lajpat Nagar, New Delhi, it has specifically been mentioned that when he had called the driver and inquired about the situation, the ACP also reached there. In the DD, Inspector had no where mentioned that the ACP did not accompany him and in his deposition during inquiry, he specifically authenticated the presence of ACP at the spot where the truck driver identified the applicant as Constable, who accepted `100/-. Likewise in his report also, the Inspector could mention that both the driver and the mechanic reached police picket Vinobhapuri and identified the applicant herein as Constable whom they had given `100/- as entry on his demand. In the said report also, it is nowhere indicated that the ACP was not present at the police picket, thus mere omission of specific mention that the ACP was not present cannot lead to a presumption that he (ACP) did not reach at the spot of identification.
13. It is not the case of the applicant that either in the DD or the report the Inspector mentioned that he alone went there and ACP was not present at the spot. Moreover, it is the plea of learned counsel for applicant himself that no other document but the deposition during inquiry has been given the credence. Learned counsel for applicant raised the plea that while deposing, the deposition made by the driver and the cleaner before the Inspector could not have been given any credence and their deposition made during the inquiry should be taken into account. In terms of Rule 16 (iv) of Delhi Police (Punishment & Appeal) Rules, if after recording the evidence in terms of Rule 16 (iii) of the Rules, the inquiry officer considers that such allegations are not substantiated, he may either discharge the accused himself if he is empowered to punish him or recommend his discharge to the Deputy Commissioner of Police or other officer, who may be so empowered. In the present case after recording the evidence the inquiry officer proceeded to frame formal charge against the applicant. In his defence statement to the charge, the applicant did not give his version at all and analyzed the ramification of deposition of the PWs only. If it was the case of the applicant that the evidence recorded under Rule 16 (iii) was not sufficient to substantiate the allegation, he could have questioned the framing of charge itself. Once the charge had been framed, it was for him to give his defence. In the entire record, we do not find the version of either of the delinquents. They could not put-forth any stand why the concerned Inspector and the ACP framed them in the case. A part of the incident indicated in the summary of allegations and the charge is also supported by the driver and the cleaner, i.e., PW-5 and PW-1 respectively.
14. As far as the reliance placed by learned counsel for applicant on the judgment of the Apex Court in the case of Union of India & others v. Gyan Chand Chattar (supra) is concerned, in the said case, it was viewed that a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the concerned employee. Paragraph 16 of the said judgment reads thus:-
16. So far as charge No. 6 i.e. asking for 1% commission for making the payment of pay allowances is concerned, the learned Single Judge has appreciated the evidence of all the witnesses examined in this regard and came to the conclusion that not a single person had deposed before the Enquiry Officer that the respondent employee had asked any person to pay 1% commission for making payment of their allowances. It was based on hearsay statements. All the witnesses stated that this could be the motive/reason for not making the payment. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the concerned employee. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities. Witnesses were examined before the Enquiry Officer that they have heard that the said respondent was asking but none of them was able to point out who was that person who had been asked to pay 1% commission. One of such witnesses deposed that some unknown person had told him. Learned Single Judge came to the conclusion that the knowledge of the witnesses in this regard was based on "hearsay statement of some unknown persons whom they did not know". This was certainly not legal evidence to sustain such a serious charge of corruption against an employee.
15. In the present case, the misconduct leveled against the applicant is that he was identified as Constable (applicant), who had joined the Head Constable Sri Chander to accept `100/- as entry fee. The applicant did not make any effort to establish that his such identification was incorrect or wrong. The two witnesses, i.e., Inspector and ACP could support such identification during the inquiry proceedings, thus it cannot be said that the charge against the applicant was not proved. Had the charge against the applicant been of accepting bribe, the penalty imposed upon him could be of higher degree.
16. In Constable Rajeev Tyagis case (supra) the view taken by this Tribunal was that there has to be sufficient evidence to prove the charge. Paragraph 21 of the said Order reads thus:-
21. In the matter of inquiry, there has to be a sufficient evidence even going by the standard of preponderance of probability to connect the delinquent officials from the alleged charge, as ruled by the Apex Court in Sher Bahadur v. Union of India & others, 2002 SCC (L&S) 1028 where it has been held that a mere statement with the evidence adduced is not sufficient to hold guilty. As we find that the inquiry officer himself in his report, which is reiterated by the disciplinary authority, had not established the charge of demand and acceptance of money against the applicants but merely on the basis of recovery, of which amount has not been proved to be the bribe money, he has deemed the charge of demand and acceptance proved on the basis of resultant recovery, which, to our considered view, is a finding recorded perversely and does not pass the twin test of a common reasonable prudent man. This is only on surmises, conjectures and suspicion, which is based on conclusion of the inquiry officer and as we are satisfied that there is absolutely no evidence against the applicants to hold them guilty of the charges, holding of guilty by the inquiry officer, which is subsequently agreed by the disciplinary authority and upheld by the appellate authority cannot be sustained in law.
17. In the present case, the deposition by ACP and Inspector was sufficient evidence to establish that the applicant was identified as Constable who joined the Head Constable in accepting `100/-. Also in Constable Neeraj Kumars case (supra), the view taken was that the preponderance of probability may be the rule in the departmental inquiry but a person cannot be held guilty on suspicion and surmises. Paragraph 7 of the said Order reads thus:-
7. No doubt, preponderance of probability is the rule in the departmental enquiry but taking the test of a reasonable prudent man, as ruled by the Apex Court in Kuldeep Singh v. Commissioner of Police & Ors., JT 1998 (8) SC 603 and Union of India v. H.C. Goyal, AIR 1964 SC 264 on suspicion and surmises one cannot be held guilty of the charges. In the due enquiry, which is a quasi-judicial, there has to be sufficient evidence to hold the person guilty, as the evidence would point out towards guilt. On mere suspicion and surmises one cannot establish the charge. As ruled in State of U.P. v. Saroj Kumar Sinha, 2010 (2) SCC 772.
18. As has been noticed hereinabove, in the present case, the conclusion arrived at in the inquiry was based not on conjecture and surmises but on the statements of PW-2 and PW-6, i.e., Inspector and ACP, in whose presence the applicant was identified as Constable, who joined the Head Constable at Vinobhapuri Police Picket, while accepting `100/-. At the cost of repetition, it is again viewed that the charge against the applicant was that he was identified by the truck driver and mechanic as Constable, who joined the Head Constable in accepting money and not that he was found or seen demanding money. There is difference between two charges. In such situation, the plea of non-recovery of `100/- from the applicant can be of no help to him.
19. The Original Application is found bereft of any merit and is accordingly dismissed. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/