Central Administrative Tribunal - Delhi
Mahender Singh vs Govt. Of Nct Of Delhi on 4 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA-1719/2010
New Delhi, this the 4th day of July, 2011
HONBLE SHRI GEORGE PARACKEN, MEMBER (J)
HONBLE DR. VEENA CHHOTRAY, MEMBER (A)
Mahender Singh
Ex HC of Delhi Police
PIS No.28800831
R/o VPO: Dalan Was,
Distt. Mehender Garh,
Haryana. Applicant.
(By Advocate:Shri Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi.
2. Special C.P
Armed Police, PHQ,
IP Estate, New Delhi.
3. DCP (Ist Bn. DAP)
Kingsway Camp, Delhi. Respondents.
(By Advocate : Shri Amit Anand)
ORDER (ORAL)
Shri G.George Paracken:
The applicant has challenged the impugned orders of the disciplinary proceedings initiated against him on the ground that they are illegal, arbitrary, mala fide, unjustified, unreasonable, in violation of principles of natural justice, based on misleading of evidence and vindictive.
2. Brief facts of the case: The respondents vide Annexure A-1 order dated 16.06.2008 decided to initiate departmental proceedings against the applicant under Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980 for the misconduct alleged to have been committed by him and thereby rendered himself unbecoming of a member of police force. As per the aforesaid order, the applicant while posted at Aaya Nagar Police Picket under the Mehrauli Police Station on 19.02.2008, stopped a Van in which a Vigilance Team comprising of SI Sanjay Gupta, HC Ranbir and Inspector Raj Singh were travelling. The applicant pointed out that the SI Sanjay Gupta and the co-passenger Ranbir did not put on their seat belt. He has also asked SI Sanjay Gupta to show his driving license. He has further told them that they were liable for paying Rs.1200/- as Traffic Challan. Then, SI Sanjay Gupta talked to the applicant to settle the matter without issuing the challan and the applicant told him that the matter can be settled on payment of Rs.200/- and to pay the amount to Constable Jagdish who was standing nearby. Then, Inspector Raj Singh switched on the video camera and took the photograph of the scene when Jagdish accepted the tainted Rs.200/- (two currency notes of denomination of Rs.100/- each) from SI Sanjay Gupta and putting it in his trouser pocket. Thereafter, the Vigilance Team overpowered Constable Jagdish and recovered the notes for Rs.200/- from the right side pocket of his trouser. The team also caught hold the applicant but in the scuffle Constable Jagdish pushed Inspr. Raj Singh aside and fled away from the spot. Both the aforesaid applicant and Constable Jagdish were in the uniform. Thereafter, Inspr. Raj Singh prepared the seizure memo of the recovered currency notes of Rs.100/- each No. 8BH948882 and 4PE-711600 at the spot and took them in possession.
3. The Inquiry Officer conducted a common detailed inquiry in the matter and held that the aforesaid charge against the applicant and Constable Jagdish was proved. The discussion of evidence and the conclusion contained in the aforesaid inquiry report is as under:
DISCUSSION OF EVIDENCE The main allegation against the delinquent HC Mahender Singh No.197/SD and Ct. Jagdish No.3022/SD that while they were posted at Aaya Nagar police picket, Police Station Mehrauli, Delhi on 19.02.2008, a Vigilance Team while checking reached Aaya Nagar Border Police Picket at 03.15 p.m., SI Sanjay Gupta was driving the Maruti Van and Hc Rambir was sitting beside him. Insp. Raj Singh was sitting on the back seat of the van. The van of Vigilance Team was stopped at Aaya Nagar Border Police Picket by HC Mahender Singh No. 197/SD and Ct. Jagdish No. 3022/SD. HC Mahender Singh pointed out that the driver and passenger had not put on their seat belt and also asked SI Sanjay Gupta to show his driving license. HC Mahender Singh was having plane papers in his and further told them that both are liable for the traffic challans of Rs.1200/-. On as SI Sanjay Gupta talked with HC Mahender Singh to settle the matter without issuing challans. On this HC Mahender Singh told that the matter will be settled for Rs.200/- and told SI Sanjay Gupta to pay the bribe money to Ct. Jagdish who was standing nearby. At Inspr. Raj Singh switched on the video camera. After some haggling Ct. Jagdish accepted money and put in your trouser pocket. After this the Vigilance team overpowered Ct. Jagdish No. 3022/SD and recovered the paid amount Rs.200/- from the right pocket of your trouser. The team also caught hold HC Mahender Singh, in this scuffle Ct. Jagdish pushed Insp. Raj Singh away and flet from the spot. Both were in uniform. Inspr. Raj Singh prepared seizure memo of the recovered currency notes of Rs.100/- each No. 8BH 948882 and 4 PE711600 at the spot and took currency note into possession. The video recording of the recovery was also prepared.
5 PWs were examined in support of the prosecution theory the delinquents HC Mahender Singh No. 197/SD and Ct. Jagdish No. 3022/SAD did not produce any defence witness and submitted their final written defence witness. On the basis of the deposition of PWs the exhibits and written defence statement of the delinquent with the other relevant documents and other evidence on file the discussion is as under:-
PW-1 Ct. Ram Lal No. 1984/SD has produced the duty roster vide which both the delinquents were detailed for duty at Aaya Nagar Police Picket the copy has been proved vide Ex. PW-1/A, PW-2 HC Anupam Gautam posting clerk SIP Branch, South Distt. Has produced the posting record and proved vide Ex. PW-2/A the posting of HC Mahender Singh No. 197/SD and vide Ex. PW-2/E the posting of Ct. Jagdish No. 3022/SD at P.S. Mehrauli PW-3 HC Rambir singh No. 538/SD proved that he was on temporary duty with PRG vigilance and was part of the surveillance team which trapped HC Mahender Singh who was negotiating the matter and saw Ct. Jagdish taking money. He also proved his statement vide Ex. PW-3/A PW-4 Inspr. Sanjay Gupta (Then SI), who was also member of the PRG team is the main and material witness and was driving the Maruti Van and he was stopped by HC Mahender Singh for no wearing the seat belt, negotiated the matter with HC Mahender Singh for settling the matter without getting challaned. He gave Rs.200/- to Ct. Jagdish. He has also corroborated the earlier statement recorded on 19.02.2008 vide Ex.PW-4/A, PW-5 Inspr. Raj Singh No. D-1/854 was the Incharge of the PRG Vigilance who carried surveillance on the activity of HC Mahender Singh and Ct. Jagdish on 19.02.2008 at Aaya Nagar Border picket. He also proved the seizure memo prepared by him having recovered currency notes vide Ex. PW-5/A and the video CD vide Ex.PW-5/B. During the cross examination of all the three members of the PRG Team i.e. PWs-3,4 & 5 the delinquents have put up same question repeatedly that the departure/arrival of the surveillance team was not made, which can be overlooked being mere a procedural lapse and being a part of the secret duty.
On the basis of the DE deposition of PWs and documents produced by PW by way of exhibits it has been established that delinquent HC Mahender Singh No. 197/SD and Ct. Jagdish No. 3022/SD while on duty at Aaya Nagar Border picket were found indulged in corrupt practices by the PRG Vigilance Team. It has been substantiated that HC Mahender singh No. 197/SD had stopped the vehicle and settled the matter for Rs.200/- in lieu of not challaning the SI Sanjay Gupta for putting on seat belt while driving, earlier he asked for Rs.1200/- and Ct. Jagdish No. 3022/SD on instruction from HC Mahender had accepted Rs.200/-, which were recovered by the team. It is also a fact that Ct. Jagdish No. 3022/SD Singh had fled away from the spot.
4. The disciplinary authority served the aforesaid copy of the inquiry report to the applicant and co-delinquent to enable them to make their representations. Accordingly, they made their representations in which they have taken the main plea that the Inquiry Officer proved the charge against them without any basis and he has not considered their submissions made in the defence statement. However, the disciplinary authority found the aforesaid plea put forth by the delinquent officers not justified as the inquiry officer has completed the inquiry as per the rules and guidelines and imposed the punishment of removal from service on both of them vide Annexure A-4 order dated 16.11.2009. Justifications for awarding the aforesaid punishment given by the disciplinary authority in its aforesaid order are as under:
I have carefully gone through the entire gamut of evidence, statements and other relevant documents available on DE file and visuals on record. For the natural justice they were heard in O.R. by the undersigned on 9.10.2009. During the O.R. they have nothing to say except what they have already submitted in their written statement. The defaulters were given ample opportunity but they could not produce any DW in their support to rebut the charge. During DE proceedings 5 PWs were examined. Out of them PWs 1&2 were formal PWs who produced only the record of posting and duty roaster in respect of defaulters. PW-3 HC Rambir Singh No. 538/SD proved that he was on temporary duty with PRG vigilance and was part of the surveillance team, which trapped HC Mahender Singh who ws negotiating the matter and saw Ct. Jagdish taking money. He also proved his statement vide Ex PW-3/A. PW-4 Inspr. Sanjay Gupta (then SI) who was also member of the PRG team is the main and material witness and was driving the Maruti Van and he was stopped by HC Mahender Singh for settling the matter without getting challaned. He gave Rs.200/- to Ct. Jagdish. He has also corroborated the earlier statement recorded on 19.2.2008 vide Ex. PW-4/A. PW-5 Inspr. Raj Singh No. D-1/854 was the incharge of the PRG Vigilance who carried surveillance on the activity of HC Mahender Singh and Ct. Jagdish on 19.2.2008 at Aya Nagar Border picket. He also proved the seizure memo prepared by him having recovered currency notes vide Ex.PW-5/A and the video CD vide Ex.PW-5/B. During the cross examination of all the three members of the PRG team i.e. PWs-3, 4&5 the delinquents have put up same question repeatedly that the departure/arrival of the surveillance team was not made, which can be overlooked being mere a procedural lapse and being a part of the secret duty.
Assessing the facts and circumstances of the case on its totality, I found that the enquiry officer has rightly held both the defaulters guilty of the charge and I do not find any reason to disagree with the findings. It has been established that both the defaulters has demanded and accepted money from the PRG/Vigilance team for not challaning them for violation of traffic rules, which were recovered by the team. A policeman is expected to uphold the law and act in an extremely honest and impartial manner, but here this act of misdeed committed by the very persons who have sworn to protect the law, erodes the faith of the common man in the police department. Indulgence of a public servant in such activities is a scourge that has to be dealt with heavy hands, lest it eats into the vitals of our society. In view of above, I am of the considered view that the misdemeanor committed by the defaulters is such a grave in nature that their further retention in police service is prima facie undesirable and not warranted in the public interest.
5. Both the delinquents have made their statutory appeals against the aforesaid order of the disciplinary authority imposing the penalty of removal from service upon them. But the appellate authority did not find favour with their pleas and rejected their appeals. The relevant part of the aforesaid order of the appellate authority is as under:
I have carefully gone through the appeals, impugned order and all the relevant material on record. During the DE proceedings, PW-4 SI Sanjay Gupta (now Inspr.) material witness has proved that the appellant HC had stopped the vehicle for checking and pointed out that driver and front seat holder were without seat belt and thus liable for traffic challans of Rs.1200/-. After some haggling, the appellant HC agreed to settle the matter in Rs.200/- and also directed his co-defaulter (the appellant Constable Jagdish) to collect the same from this PW. PW-3 HC Rambir also corroborated the statement of PW-4. PRG official in their statement stated that the appellant Ct. Jagdish fled away from the spot. If he was right on his part, he should have stayed there, faced the questions of PRG team but he did not do so. There was no reason to disbelieve the statements of material witnesses PW-3, HC Rambir, PW-4 SI Sanjay (now Inspr.) and PW-5 Inspr. Raj Singh as they had no personal enmity with the appellants. Being the departmental in house vigilance over the staff, no public witness was required in the case. The PRG official submitted their report to senior officer what they saw during surveillance. There was no reason for the PRG officials to give such a statement against the appellants. The contention of the appellants that PRG team did not lodge DD entry in the roznamcha about the raid does not crry any weight. The PRG Team worked on secret information and on the directions of senior officers. Their plea that copy of CD were not provided carries no weight because the same was shown on screen to them by the EO during the DE proceedings. Seizure memo duly signed by PRG members and recovery of tainted money from the accomplice of appellant with videography cannot be overlooked. There was no need to obtain permission under rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980 as the DE was initiated against the appellants for their misconduct by the order of C.P., Delhi, which was conveyed by DCP/Vigilance vide TPM No. 63/PRG/Vig. Dated 21.02.2008. The findings of the EO are not tainted with prejudice, as pleaded. The EO conducted the enquiry within the ambit of the Delhi Police (Punishment and Appeal) Rules, 1980. The charge was proved on the basis of documentary evidence adduced during the DE proceedings. The disciplinary authority has passed punishment order after carefully going through the DE file, statement of PWs/DWs, defence statement and representation of the appellants, which is legal, fair and justified.
I have also heard both the appellants in O.R. on 09.03.2010. During O.R., appellant HC Mahender has stated that he has been falsely implicated by PRG team. He further stated that neither he demanded nor accepted alleged money and it was Ct. Jagdish Chander with whom Rs.200/- was recovered. That he is not in CD prepared by PRG team. The appellant Ct. Jagdish Chander has also stated that he did not accept money. I also watched the C.D. prepared by PRG team and found nothing is audible, however, I find that at one place an uniformed person is clearly accepting money, which goes to corroborate the delinquency of the appellants. Keeping in view the facts of the case and the material available on file, I find no reason to interfere with the punishment order of the disciplinary authority. Hence, the appeal is rejected.
6. One of the grounds taken by the Applicant in this OA is that both the delinquents were not identically placed and he was nothing to do with Constable Jagdish and he was falsely implicated in not agreeing to be a witness against him. The other ground taken to challenge the impugned orders is that the respondents have not complied with Rule 15 (2) of the Delhi Police (Punishment and Appeal) Rules, 1980 before the inquiry proceedings were initiated against the applicant.
7. In this regard, he has relied upon an order of this Tribunal dated 06.10.2003 in Review Application No. 13/2008 in OA 624/2005. In the said order, this Tribunal has observed as under:
What clearly transpires is that even though, there may have been a mention of rule 15(2), permission sought for and granted was only for departmental enquiry. It was neither mentioned in the notes as mentioned above nor anywhere else as to which course of action, i.e., departmental enquiry or criminal prosecution, would be required in the facts and circumstances of the case. Insofar as, Joint CP/SR is concerned, he has only signed underneath the note as mentioned above
8. He has also relied upon the order of this Tribunal in OA 1772/2008 Ravinder Singh Vs. Govt. of NCT and Ors., decided on 23.02.2010 wherein the violation of Rule 15 (2) ibid has been discussed. The relevant part of the said order is as under:
6. Yet another argument on behalf of the Applicant is that the Rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980 has not been followed in its true sense. The Rule reads thus:
15 (2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held. It is argued that the Rule 15 (2) ibid envisages application of mind by the Additional Commissioner to decide whether a criminal case should be instituted against a delinquent officer or he should be proceeded against departmentally. A copy of the note sheet has been placed at Annex A-1. A note was put up to the Additional Commissioner by the office, which reads thus:
The Honble High Court while allowing the C.W.P. has observed that the matter shall now be placed before the Addl. C.P. for taking a decision in terms of rule 15 (2) of the Rules and should take the necessary decision within a period of two months from the receipt of this order. In case, a decision is taken by the petitioners to initiate or hold a departmental enquiry, the same shall be initiated and conducted in accordance with law giving all opportunities to the respondent.
Since the CWP has been allowed on technical ground, necessary approval under rule 15(2) of Delhi Police (Punishment & Appeal) Rules, 1980 is solicited to deal Const. Ravinder Singh, No.11193/DAP with departmentally please. The Additional Commissioner has merely signed underneath this order. The argument is that there has been no consideration whether criminal or departmental proceedings should be instituted against the Applicant. This cannot be called proper application of mind because there is no consideration regarding decision in favour of one option (institution of criminal proceedings) over the other (institution of departmental proceedings) because only one option (institution of departmental proceedings) was suggested and that was approved.
x x x x x
10. We also agree that there has been a violation of Rule 15 (2) ibid in as much as the Additional Commissioner has perfunctorily signed the note sheet suggesting that the Applicant be proceeded against departmentally. The Honourable Delhi High Court had specifically directed in its judgement dated 25.03.2005 in W.P. (C) 2964/2005, Deputy Commissioner of Police Vs. Ravinder Singh to take necessary decision under Rule 15 (2) within a period of two months. The precise direction was:
with a further direction that the matter shall now be placed before the Additional Commissioner of Police for taking a decision in terms of Rule 15 (2). As already adverted to in the preceding paragraphs, the matter came up before the Additional Commissioner only to approve the proposal for proceeding against the Applicant departmentally. The other option of instituting criminal proceedings was not there at all. We have no hesitation in holding that the Rule 15 (2) has not been followed in instituting the departmental proceedings.
11. To sum up, the Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980 has been violated; there has been violation of Rules 15 (3) and 16 (iii) of the Rules ibid in as much as Narender Kumar has not been produced as a witness for the prosecution and the Applicant has not been given any opportunity to confront him regarding his disclosure statement; the statement of Narender Kumar as defence witness has not been given any credence and, ironically, while his disclosure statement has been illegally taken into account, his defence statement has been brushed aside as Applicants collusion with anti social elements; and the reasoned findings of the inquiry officer that charges have not been proved has not at all been rebutted, ridicule is heaped on the inquiry officer by observing that he is trying to divert attention. The orders of the disciplinary and appellate authorities are riddled with serious flaws. It is evidently a case of no evidence.
9. The other contention of the applicant is that the video CD allegedly prepared during the preliminary inquiry was relied upon during the departmental inquiry but neither copy of the CD nor the preliminary enquiry report was supplied to him along with the summary of allegations though it is mandatory to supply all the relied upon documents. Since the inquiry officer of the preliminary inquiry is cited as a prosecution witness, the Respondents have to furnish the copy of the preliminary inquiry report. In this regard, he has relied upon the order of a co-ordinate Bench of this Tribunal in Vijay Singh Vs. Govt. of NCT, Delhi & Ors. (2000 (3) AISLJ 40) wherein the issue of non-supply of the preliminary inquiry report was considered. The relevant part of the said order is as under:
16. The question whether the non-supply of a copy of the PE report to the delinquent, where the author of that report was examined as a PW in the P.E. was sufficient to vitiate the departmental proceedings, was examined by a Division Bench of this Tribunal in O.A. 874/ 96 Prem Pal Singh v. Union of India and Ors. in which one us (Shri S.R. Adige, Member (A) as he then was) was a member. In its order dated 5.3.97 while allowing that O.A., the Bench noticed that Respondents' own instructions dated 1.5.80, Para (ii) of which ran as follows:
"The officer who had conducted the preliminary enquiry was cited and examined as P. W., but copy of his preliminary enquiry report was not furnished by the E.O. to the defaulter denying him an opportunity to cross-examine the witness. This has affected a proper cross-examination of such witness and goes against the principles of natural justice vitiating the departmental enquiry ab initio. Copy of P.E. Report in such cases should have been supplied suo-moto at the initial stage along with the summary of allegations even if no specific request is made by the defaulter.
In the present case we have noticed that in spite of a specific request made by applicant for a copy of the P.E. the same was not supplied to him.
17. Relying upon several other rulings the Bench in Prem Pal Singh's case (supra) held that non-supply of the PE Report to the delinquent when Respondents' own circular dated 1.5.80 required it to be supplied, was an infirmity grave enough to vitiate the entire D.E. Nothing has been shown to us to establish that the aforesaid order in Prem Pal Singh's case (supra) has been stayed, modified or set aside.
10. He has also relied upon the judgment of the Delhi High Court in CWP No.11147/89 Ex. Constable Randhir Singh, decided on 01.05.1991 wherein it has been held as under:
4. We find great force in the contention of the learned counsel for the petitioner. In order to negate the charge levied against a delinquent, it is necessary that he should be furnished with the material on the basis of which the action is proposed against him. As held by the Supreme Court in Kashinath Dikshita v. Union of India & Other (supra) when a government servant is facing a disciplinary proceedings he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner, and no one facing departmental inquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses and point out their inconsistencies with a view to show that the allegations are incredible. Admittedly, the respondents had not furnished to the petitioner the report of the preliminary inquiry preceding the commencement of the inquiry. Thus, though he was present at the time of examination of the witnesses and had also been afforded an opportunity to cross examine, he did so without having the opportunity of seeing all the material. Thus adequate opportunity, as required under the law, was not afforded to the petitioner. In our view, failure to supply preliminary inquiry report itself vitiated the inquiry. On the second question regarding supply of inquiry report submitted by the Inquiry Officer is concerned, the question raised is fully covered by the judgment of the Supreme Court in Union of India and Others v. Mohd. Ramzan Khans case (supra). The Supreme Court has considered the question of supply of inquiry report to a delinquent government employee even after the amendment of Article 311 by way of 42nd amendments. The Supreme Court has held as follows:
Deletion of the second opportunity from the scheme of Article 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to supply a copy thereof. The Forty-Second Amendment has not brought about any change in this position.
5. From the above observations of the Supreme Court, it is clear that even if Sub-rule 7 of Rule 27 of Central Reserve Police Rules, 1955 stood deleted by way of amendment made in the year 1980 the position did not change, and the petitioner was entitled to get a copy of the inquiry report. No doubt, Sub-rule 7 of Rule 27 of Central Reserve Police Rules, 1955, which provides for issuance of second show cause notice before imposition of penalty specifically stated that the report of the Inquiry shall also be furnished and that rule stands deleted by way of an amendment made in the year 1980. However, this does not mean that the petitioner is not entitled to the inquiry report. The delinquent government employee is entitled to know the reasons given by the Inquiry Officer while finding him guilty of the charges levelled against him, more so because denial of the inquiry report deprives the delinquent employee of the opportunity of making an effective appeal and revision provided under the Rules itself.
11. He has also relied upon the judgment of the Apex Court in Kuldeep Singh Vs. Commissioner of Police & Ors. (1999 (2) SCC 10) and the relevant part of the said order is as under:
39. From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs.1,000/- to Rajpal Singh, one of the labourers, on 8th of February, 1990. This document was not mentioned in the charge-sheet in which only two documents were proposed to be relied upon against the appellant, namely, copy of the report of S. H.O., Lajpat Nagar, dated 5th of March, 1990 against the appellant and the copy of the labourers' statement. This document has, therefore, to be excluded from consideration as it would not have been relied upon or even referred to by the Dy. Commissioner of Police. Moreover, according to the charge framed against the appellant, payment was made on 22-2-90 and not on 8-2-90 as indicated in the voucher and, therefore, voucher, for this reason also, has to be excluded.
12. Further, he has relied upon the judgment of the Apex Court in State of U.P and Ors. Vs. Saroj Kumar Sinha (2010 (2) SCC 772) wherein it has been held as under:
32. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows: "If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked." In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of principles natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge sheet.
34. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.
35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows:
"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question:
"What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
36. On an examination of the facts in that case, the submission on the behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations:
"Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross- examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."
13. Learned counsel for the respondents Shri Amit Anand has submitted that before the departmental inquiry has proceeded, the applicant was asked to state whether he has received all the relevant documents and he had admitted that he has received all of them. He has also submitted that the CD has been shown to him and no prejudice has been caused to him by not-supplying a copy of the same to him along with list of documents. Further, he has submitted that all the prosecution witnesses have supported the charge against the applicant and purposely he did not bring any defence witness.
14. We have heard the learned counsel for the parties. We have also perused the entire documents available on record. We have also called for the departmental records and perused the same. It is an undisputed fact that the Applicant and Ct. Jagdish were posted at Aaya Nagar Police Picket as a team to check the traffic violations. The charge was that the Vigilance team caught them while accepting Rs.200/- as bribe for settling the alleged violation for which a challan was required to be issued. Constable Jagdish has accepted the bribe money on the instructions of the Applicant and the vigilance team caught the Constable Jagdish red handed and prepared the seizure memo. The act of accepting the bribe money was also captured in the video camera. PW-2 HC Anupam Gautam who was on temporary duty with the vigilance team was an eyewitness of the act of accepting the bribe money by Ct. Jagdish. PW-4 Inspector Sanjay Gupta (then SI) who was the material witness proved that he negotiated with the Applicant for settling the matter without issuing challan and he has given Rs.200/- to Constable Jagdish. He has also corroborated his earlier statement recorded on 19.02.2009 which was also exhibited as Ex. PW-4/A. Shri Raj Singh who was in-charge of the Vigilance team has proved that he has prepared Seizure Memo. The only issue raised by the delinquent during the enquiry proceedings was that the member of the Vigilance team has not recorded the arrival/departure time. The enquiry Officer has proved the charge against both the Applicant and Constable Jagdish who worked as a team at the Aaya Nagar Police Picket. In the above circumstance, the argument of the Applicant that he has nothing to do with Constable Jagdish cannot be accepted.
15. As regards the argument of the learned counsel for the Applicant that non-supply of the copy of the CD along with the list of documents was a violation of the Rule 16(1) of Delhi Police (Punishment and Appeal) Rules, 1980 is concerned, it is the admitted position that the enquiry officer has played the CD before the Applicant during the enquiry proceedings and he has not disputed it. Neither the Applicant has asked for a copy of the same nor the enquiry officer/disciplinary authority has refused to supply the same. Further, before starting the enquiry proceedings the Applicant himself has admitted before the enquiry officer that he received copies of all the documents and he did not consider that the copy of CD was necessary for him to defend his case. As regards the other argument of the learned counsel that the charge was issued in violation of Rule 15(2) of Delhi Police (Punishment and Appeal) Rules, 1980, the charge against him is purely a matter of internal checking by the Vigilance team and it cannot be compared with other crimes committed by police officials. Therefore, the compliance of the aforesaid section need not be insisted upon in such cases. The Appellate Authority has also considered this aspect raised by the Applicant in his appeal and rejected the same. We, therefore, do not consider that the judgments relied upon by the learned counsel for the Applicant will apply in the present case.
16. In the above facts and circumstances of the case, we dismiss this O.A. There shall be no order as to costs.
(Dr.Veena Chhotray ) (G.George Paracken)
Member(A) Member(J)
`SRD