Central Administrative Tribunal - Delhi
Radhey Shyam vs Govt. Of Nct Of Delhi on 22 May, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1125/2012
Order reserved on 25.04.2013
Order pronounced on 22.05.2013
Honble Shri George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Radhey Shyam
Sub-Inspector No.D/1700,
S/o Late Shri Jagdish Prasad
R/o H.No.45 Metro Apartment,
DDA Flat, Delhi. .Applicant
(By Advocate: Shri K.K. Kaushik).
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police
MSO Building, I.P. Estate (PHQ),
New Delhi-110002.
2. Special Commissioner of Police,
Armed Police, Delhi, M.S.O. Building (PHQ),
I.P. Estate,
New Delhi-110002.
3. The Dy. Commissioner of Police,
3rd Bn. Vikas Puri,
Police Complex,
New Delhi-110018.
4. The Dy. Commissioner of Police,
North District, Delhi
Through Commissioner of Police,
MSO Building (PHQ),
I.P. Estate,
New Delhi-110 0002. Respondents
(By Advocate: Shri N.K. Singh proxy for Mrs. Avnish
Ahlawat).
O R D E R
Honble Sh. G. George Paracken:
In this Original Application, the Applicant has challenged the order dated 17.01.2011 pass by the Respondent No.3 whereby he has been awarded a major penalty of forfeiture of 3 years of approved service permanently entailing proportionate reduction in his pay and also for deciding his suspension period from 27.09.2007 to 15.11.2007 as period not spent on duty for all intents and purposes. He has also challenged the Appellate Authoritys order dated 08.04.2011 rejecting his appeal.
2. The brief background of the case is that a departmental enquiry was initiated against the Applicant vide order dated 05.11.2007 on the following allegations:-
It is alleged against SI Radhey Shayam No. D-1700 that on 18.8.2007 a Complaint by Balvinder Singh S/o Sh. Gyan Singh R/o H. NO. 9568, Library Road, Prashant Gali, Azad Market, Delhi against SI Lajja Ram No. D-658 and Const. Hemant Kumar No. 1282/N was marked to him for enquiry and submitting report. In the complaint it was alleged that SI Lajja Ram No. D-658 and Const. Hemant Kumar No. 1282/N harassed the complainant and his aged parents and asked him to be false witness against Mukesh Kumar R/o Tokri Walan, Azad Market, Delhi (BC of Police Station Bara Hindu Rao) in fabricating a false case against him. Due to above harassment, the complainant filed an application in the court for seeking anticipatory bail.
On verification of the facts by Inspr. PG.Cell /North Inspr. Samar Pal Singh the report was found false and contrary to the actual facts. The allegations against the staff of Police Station Bara Hindu Rao were not found substantiated and it was found that the anticipatory bail was moved not because of harassment, but because of apprehension of arrest by local Police of Station Bara Hindu Rao. On 6.7.2007 the complainant fled away from the spot and his associate Rahul was arrested u/s 41(2), 109 Cr. PC during the raid by SHO /Bara Hindu Rao, on a secret information of possessing illegal arms with them. Complainant was found associated with the criminal activities of Mukesh Kumar (BC of Police Station Bara Hindu Rao). On 25.9.07 he was found named in the FIR No. 423/07 u/s 395, 398, 307, 34 IPC/27 Arms Act Police Station Subzi Mand along with his associates Mukesh Kumar and Rahul Etc. Earlier in the enquiries of three complaints i.e. (1) Complaint of Shri Gyan Chand s/o Sh. Bal Govind Yadav R/o H. No. T-7, Gur Mandi, Delhi vide diary No. 405 RACP PG Cell dated 14.11.06 (2) Complaint of Shri Parveen Sachdeva R/o 98 UB Jawahar Nagar, Delhi vide diary No. 461/RACP PG Cell/North dated 5.7.07 and (3) Complaint of Sh. Vinod Kumar R/o 202, New Sarvodaya Colony Meerut (UP) vide diary No. 551/R ACP PG Cell North dated 3.8.07, which were marked to him , he did not substantiate the allegations in his enquiry reports. Whereas Inspr. PG. Samar Pal Singh, on verification of facts found these reports contrary to the facts and the allegations found substantiated in all these complaints. In first and second case regular departmental enquiries were initiated against staff of local Police on report of Inspr. PG.
Thus the SI Radhey Shyam No. D-1700 in above said four cases, had submitted unfair, partial and non factual reports and head tried to misguide the seniors officers.
3. A detailed enquiry was held in the matter and Enquiry Officer submitted his report on 23.09.2008. According to the said report, the aforesaid allegations made against the Applicant have been proved. The operative part of the said order reads as under:-
Discussion of Evidence PW1 Inspr. Rajender Singh No. D/750 proved that on 6.7.07 while he was posted as SHO PS B.H.Rao he received an information that near Khari Kaun Library Road Rahul & Pinki Sardar are having Deshi Katta. Raid was got conducted but only Rahul was apprehended whereas Pinki managed to escape away. Later Pinki Sardar move complaints against Division Officer SI Lazza Ram & Ct Hement of harassment which were false & baseless complaints.
PW2 Inspr. Samar Pal No. D1/334 PG Cell North Distt. Proved that complaint of Balvinder was received in which it was alleged that on 6.7.2007 he was stopped by SI Lazza Ram & Ct. Hement of PS BH Rao. They asked to become witness against BC Mukesh, otherwise he will be implicated in a false case. The compliant was marked to defaulter SI Radhey Shyam who sustained the allegation. Later on the enquiry was conducted by the PW & it was found that Balvinder Singh is an associate of BC Mukesh Kumar and there was an information with SHO PS BH Rao on 6.7.2007 that Rahul and Pinki are having country made Katta. Later on 25.9.2007 vide FIR No. 423/07 u/s 395/308/307 IPC and 27-A Act PS Sabji Mandi was registered in which complainant Balvinder, his associate Rahul and BC Mukesh were named in FIR. On the enquiry of the PW, the allegations against SI Lazza Ram and Ct. Hement could not be substantiated. Similarly, the complaints of Sh. Gayanchand and Parveen Sachdeva were marked to the defaulter in which the allegations could not be substantiated where on the enquiry of PW the allegations were substantiated and regular DE was ordered against IO. ASI Ramniwas against whom the complainant Gayan had alleged. The PW proved that in this way SI Radhey Shyam submitted a report against the defaulter to senior officers.
PW3 ASI Mahender Singh No. 157/D proved that he was the IO of case FIR No. 423/074/S 395 /398/307 IPC & 27-A. Act PS Sabji Mandi. During the course of investigations accused person i.e. Sanjeev @ Deepu (2) Rajesh @ Rajan (3) Kuldeep Nagar @ Kuku were arrested and their disclosure statement were recorded in which they disclosed about Mukesh Kumar (2) Sardar Pinki @ Balvinder S/o Gayan Singh (3) Rahul Taili to be involved in the case. PW proved his earlier statement dated 26.9.2007 which was marked as Ex PW 3/E. PW-4 SI Lazza Ram No. D658 PS BH Rao Proved that on 5.7.07 SHO PB BH Rao directed him to conduct a raid on the boys near Khari Kaun Tokriwalan who are in suspicious condition. Rahul out of the boys was arrested u/s 41.2(109) Cr.PC. The PW further told that Pinki moved the complaint against police so that they will remain under pressure. Later on Mukesh BC Deepu @ Sanjeev BC , Rajesh Kuku, Rahul @ Pinki fired on one Laxman Deepu @ Sanjeev, Rajesh etc. were apprehended.
PW-5 SI Sher Singh No. D773 HAC North Distt.
Proved that SI Radhey Shyam not substantiated the allegations of the complaint moved by Gayan Chand whereas the allegations were later proved and a DE was initiated on the complaint. Similarly complaint of Parveen Sachdeva was enquired by SI Radhey Shyam but allegation were not substantiated & later on the allegation were proved. The PW produced original complaint with enquiry report which were after comparison marked as EX- PW 5/A & 5/B. DW-1 Sh. Balvinder Singh S/o Gyan Singh R/o H. No. 9668 Library road Parsant Gali Azad Market.
He claimed that he was harassed by SI Lazza Ram and Ct. Hement to be witness against BC Mukesh & his father got moved anticipatory bail in the court where it was approved that there is no case/complaint against him. He also told that he moved a complaint to DCP North Distt. Delhi. Later on he was arrested at PS Sabji Mandi.
The defaulter submitted his written defence statement who took pleas:
That he had submitted his report on 21.9.2007 whereas the complainant was found involved vide FIR No. 423/2007 u/s 395/07 u/s 395/398/307/34 IPC & A. Act PS Sabji Mandi after his repot.
That defaulter SI contended that he had submitted his report dated 21.9.2007 on the available facts.
That PW 4 SI Lazza Ram PS BH Rao had already been admitted in the Honble Court that there was no case pending against the complainant i.e. Balvinder & Pinki & the PW reported to be elusive and non committal to the facts and figures and his statement is reported to be full of contradiction.
PW -2 Inspr. Samar Pal is reported not to have conducted a through re-verification as admitted.
In the defence statement the defaulter SI did not speak anything as regards to complaints of Gyanchand and Parveen Sachdeva which were enquired by him and he was submitted his reports which were later on found to be non factual, hence his defence statement carry no weight.
As the enquiries conducted by defaulter SI Radhey Shyam are found to be non factual on the complaints of Balvinder S/o Gyan Singh R/o Street No. 956/8 Library Road, Prasant Gali Azad Market, Delhi. Similarly complaints of Sh. Gyanchand S/o Bal Govind, R/o Street No. T-7, Gur Mandi vide Dy. No. 405 R/ACP PG dated 14.11.2006 (2) Sh. Parveen Sachdeva R/o 9841B Jawahar Nagar Delhi (3) Sh. Vinod Kumar R/o 202 New Sarvodaya Colony Meerut UP which were marked to him and he did not substantiate the allegations in his reports whereas Inspr. Samar Pal on verification of facts found those reports contrary to the facts and allegations found substantiated in all these complaints.
Conclusion:-
From the deposition of PW s/ DW and circumstances of the case, charge served upon the SI Radhey Shyam No.D-1700 is proved.
4. According to the applicant he has not committed any misconduct, therefore, the impugned Enquiry Officers report, orders of the Disciplinary Authority and the Appellate Authority are liable to be quashed and set aside. According to him, he submitted a report on 21.09.2007 itself based on the information and facts brought to his notice during the course of enquiry. However, the Disciplinary Authority has agreed with the findings of the Enquiry Officer and imposed upon him the punishment of forfeiture of 3 years approved service permanently entailing proportionate reduction in his pay. His suspension period from 27.09.2007 to 15.11.2007 was also decided as period not spent on duty for all intents and purposes and the said period is not to be regularized in any manner. The relevant part of the Disciplinary Authoritys order is as under:-
I have carefully gone through the findings of the E.O. and other relevant records available on D.E. file. He was also heard in O.R. on 6.1.2011, where he put forth the same things as narrated in his written representation. During O.R., he also stated that in complaint of Balwinder Singh, he gave correct facts, and Insp. Samar Pal asked him to involve name of Mukesh, he did not do this thing. In case of Gyan Chand, he gave correct report and department al action was taken against ASI Ram Niwas as ASI committed fault in injury case of Gyan Chands son. In Praveen Sachdevas complaint against HC and Constable, DE was dropped as no fault was on their part, but Inspr. Samarpal reported their fault. In compliant of Vinod Kumars case ASI was issued S.C.N. for wrong investigation as he reported against him. He further stated that there is no fault on his part. He was asked to give documentary evidence in support of his version, but he declined.
On scrutiny of record, it is revealed that the action of SI Lajja Ram was correct, whereas defaulter SI Radhey Shyam had proved the allegation against Lajja Ram in the complaint of Balwinder Singh. This indicates that enquiry conducted by SI Radhey Shyam was incorrect, which was given by Balwinder Singh to save himself from the action of local police. Similarly the complaints of Shri Gyanchand, Shri Parveen Sachdeva and Sh. Vinod Kumar, which were marked to defaulter SI Radhey Shyam and he gave wrong report in these three complaints also in addition to first one. I agree with the finding of EO in which charge has been proved against the defaulter SI. Hence, I, Brahm Singh, Deputy Commissioner of Police, III Bn., DAP, Delhi hereby order to forfeit 03 (three) years approved service of SI Radhey Shyam No. D-1700 permanently, entailing proportionate reduction in his pay. His suspension period from 27/9/2007 to 15/11/2007 is also decided as period Not spent on duty for all intends and purposes which may not be regularized in any manner.
Let a copy of this order be given to him free of cost. He can file an appeal against this order to the Special Commissioner of Police, Armed Police, Delhi within 30 days from the date of its receipt on a non-judicial stamp paper valued 0.75 paise by enclosing a copy of this order, if he , so desires.
5. Applicant has made the appeal on 15.02.2011 against the aforesaid order of the Disciplinary Authority. He has stated in the said appeal that even though a number of grounds were advanced in his defence statement, none of them were discussed in both the enquiry report as well as the order of the disciplinary authority. Further, he has submitted that both enquiry report and the order of the disciplinary authority do not contain reasons and there is no nexus between the facts considered and the conclusion reached. The disciplinary authority took the enquiry report for granted and passed the impugned order ignoring the factual position of all the four complaints. However, the Appellate Authority vide its order dated 08.04.2011 rejected his appeal. The relevant part of the said order is as under:-
The appellant in his appeal has mainly pleaded that (i) he had not committed any lapse in conducting all the four enquiries. In complaint of Gyan Chand dated 14.11.2006, he had submitted correct report and departmental action was taken against ASI Ram Niwas as ASI committed fault in injury case of Gyan Chands son. In Praveen Sachdevas complaints against HC and Constable, DE was dropped against them as no fault was found on their part, but Inspr. Samarpal, PG Cell reported their fault. In complaint of Vinod Kumar, the appellant submitted report against the I.O. as such he was issued SCN for wrong investigation. In complaint of Balwinder Singh against SI Lajja Ram and Ct. Hemant Kumar, he had not concealed that fact in his report dated 21.09.2007 as alleged. If Balwinder was found involved in case FIR No. 423/07 dated 25.09.2007 u/s 395/398/397 IPC of PS Subzi Mandi other than Bara Hindu Rao, the appellant cannot be hanged for the same as he had already submitted his enquiry report on 21.09.2007. Besides, PW-4 SI Lajja Ram admitted that on the anticipatory bail application in the court, he apprised the concerned court that there was neither any FIR nor any complaint against Balwinder Singh @ Pinki, (ii) his defence statement has not been considered, (iii) there was no fault on the part of the appellant. He has been victimized due to misguide and misrepresentation of Inspr. PG Cell to senior officer, (iv) he has requested to set aside the punishment order.
I have carefully gone through the appeal, impugned order dated 17.01.2011 and all the relevant material on record. The pleas of the appellant are devoid of any merit. During the DE proceedings, the charge leveled against him was proved. The witnesses examined in the DE have supported the Prosecution case. From the statement of PWs and evidence on record, it has been established that the appellant had conducted enquiry into the complaints and submitted non factual report which was further enquired through Sh. Samar Pal, Inspector P.G. Cell/North Disttt. and found that the report submitted by the appellant in all the four complaints were contrary to the facts. The report of Inspr. Samar Pal Singh (PW-2) is based on facts of the case. He has no reason to misrepresent the facts against his own fellow (appellant). The appellant, being a responsible officer, was supposed to make indepth enquiry based on available evidence and his own independent assessment and submit factual report to senior officer. The E.O. conducted the DE within the ambit of rules and proved the charge on the basis of documentary evidence. The disciplinary authority has passed punishment order after carefully going through the DE file, statement of PWs/DWs, defence statement and representation of the appellant, which is justified.
I have also heard the appellant in O.R. on 25.03.2011. During O.R., he did not come out with anything new and repeated his plea. The appellant has not produced any evidence in support of his defence pleas. Keeping in view the above discussion, I see no reason to interfere with the orders of the disciplinary authority. Hence, the appeal is rejected.
Let the appellant be informed accordingly.
6. The Applicant challenged the aforesaid Enquiry Officers report, Disciplinary Authoritys order and Appellate Authoritys order in this OA on various grounds: As far as the Enquiry Officers report is concerned, according to the Applicant, the EO did not record his findings on each article but simply stated that those articles have been proved. Even though a number of plea were raised in the defense statement but none of them was responded or discussed in the findings. The Enquiry Officer failed to make correct assessment of evidence based on objective analysis. He has also submitted that as held by the Apex Court in the case of Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another 1970 (2) SCC 530, the prosecution has not led any reliable evidence to prove the allegations made against the appellant. Rather, the Enquiry Officer has proved the charge on irrelevant considerations, conjectures, surmises and suspicion although his conclusion should have been based on legal evidence and also must flow logically out of the evidence on record prepared during the enquiry. He has also stated that the complainant Shri Balvinder Singh has alleged that his aged parents were being unnecessarily harassed by SI Lajja Ram and Constable Hemant Kumar of PS Bara Hindu Rao, Delhi and was/were asked to be false witness(s) against one Shri B.C. Mukesh in fabricating false case against him. Finding no way out, he filed anticipatory bail application in the concerned court where SI Lajja Ram, as division officer appeared and apprised the court that neither was there any case nor complaint against complainant and obviously his anticipatory bail application was rejected. The said fact was also fully endorsed by SI Lajja Ram, when examined during the enquiry as PW-4. Shri Lajja Ram neither apprised the court nor the Applicant during the enquiry of said Shri Balvinder Singhs complaint about what happened on 06.07.2007 when the complainants associate Rahul was arrested u/s 41 (2), 109 Cr.PC and he himself fled away, as alleged. Had SI Lajja Ram apprised the court properly, the situation could have been avoided on the one hand the complainant and his aged parents were chased and harassed and on the other hand court was informed there was no case and complaint against Shri Balvinder Singh. According to the Applicant, he had informed during the enquiry by SI Lajja Ram that there was neither any case nor complaint against complainant Balvinder Singh and apparently the Applicant on the basis of what SI Lajja Ram told, submitted his report on 21.09.2007. Further, he has stated that once he has submitted his report on 21.09.2007, there was no reason for inclusion of his name in the incident dated 25.09.2007 PS Subzi Mani in anticipation wherein complainant Balvinder Singh was alleged found name along with his associates Mukesh and Rahul.
7. Further, according to the Applicant, the enquiry report dated 21.09.2007 submitted by him was based on the factual position emanating from the information given by SI Lajja Ram both in the court and to him as he was nowhere at fault, as alleged and he has been penalized for the lapse committed by SI Lajja Ram. Again, Inspector PG Cell Samarpal Singh when examined and cross-examined PW-2 could not even explain the factual position inasmuch as he in response to a question could not tell the names of witnesses he examined during the course of his re-verification of the matter in question. The aforesaid fact has found its place in findings and this face per se renders the report of Inspector PG Cell as false and concocted and based on extraneous consideration and should not have been relied upon by the Enquiry Officer and the Disciplinary Authority also took it for granted the final report of the Enquiry Report without having his own and independent decision objectively with due application of mind. During the course of enquiry of Shri Gyan Chand, the Applicant found that ASI Ram Niwas, IO of the case kept the MLC with him without obtaining result thereof. On persuasion of applicant, another IO obtained the same and a formal FIR was lodged. A number of lapses were detected against ASI Ram Niwas and he had to face a regular departmental enquiry and was penalized. Obviously, there was no lapse on the part of the Applicant to be taken up in departmental enquiry proceedings as has been done on misleading report of Inspector PG Cell.
8. Similarly, in the complaint of Praveen Sachdeva, the allegations were that beat staff Head Constable and Constable Jagbir challenged his shop and had demanded illegal gratification. On enquiry by the Applicant, no evidence could lay on hand in support of the allegations but Inspector PG Cell in his re-verification report concluded that challan had been torn and hence departmental proceedings against the above police staff, who dared to appear before DCP North District apprised that Inspector PG Cell had submitted false re-verification report. When the matter was dug, factual and real position came out and departmental enquiry was dropped. Therefore, the Applicant was nowhere at fault and it was Inspector PG Cell who submitted wrong report and Applicant had to face the music and despite clearing the position non one including the Enquiry Officer, the Disciplinary Authority and the Appellate Authority appreciated the matter. It was also stated that re-verification report submitted by Inspector PG Cell was totally and entirely against the factual position as was found not less than DCP North District and hence departmental action should have been initiated against him instead of Applicant which is travesty of justice and as such the very departmental enquiry orders are illegal, ultra vires, unreasonable and non-application of mind.
9. As regards complaint of Shri Vinod Kumarm, the allegation was that his case was taken away without his consent by a person who intended to go to IG Airport, but entered a guest house at Kashmere Gate. Meanwhile the complainant fell asleep and that person after taking key from complainants pocket, ran away with the car and on enquiry by the Applicant it was found that IO registered a wrong case u/s 420 IPC instead of 379 IPC and all that was highlighted in the enquiry report by the Applicant and forwarded by Inspector PG Cell to the seniors for which lapse the IO was issued show cause notice and as such there was no misconduct on the part of the Applicant for a departmental enquiry culminating awarding a major penalty without any reason whatsoever.
10. He has also stated that the order passed by the Disciplinary Authority inasmuch as his suspension period has also been treated as period not spent on duty amounts to violation of constitutional provisions.
11. Respondents have filed their reply stating that a departmental enquiry was initiated against the Applicant SI Radhey Shyam by Addl. DC/North District vide order dated 05.11.2007 under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 on the allegations that on 18.8.2007 a complaint of Balwinder Singh alleging therein harassment by SI Lajja Ram and Constable Hemant Kumar for tendering false evidence against one Mukesh Kumar R/o Tokri Walan, Azad Market, Delhi (BC of PS Bara Hindu Rao) constraining complainant to move to the court for anticipatory bail, was marked to the Applicant for enquiry and submit the report. On 21.09.2007 after completion of enquiry, the Applicant submitted the report substantiating the allegation of harassment for pressurizing for false evidence by building pressure of arrest and implication in false case with mala fide intention against SI Lajja Ram and Constable Hemant Kumar. They have further stated that on verification of the facts, the report was found false and contrary to the facts. The allegations against the staff of PS Bara Hindu Rao were not found to be substantiated and it was found that the anticipatory bail application was not moved because of harassment, but because of apprehension of arrest by local police of Bara Hindu Rao as on 06.07.2007 the complainant fled from the spot and his associate Rahul was arrested u/s 41(2), 109 Cr.PC on the raid of SHO/PS Bara Hindu Rao, on secret information of arms with them. Complainant was found associated with the criminal activities of Mukesh Kumar (BC of PS Hindu Rao) and on 25.09.2007 he was found named in FIR No.423/07 u/s 395/398/307/34 IPC r/w 27 Arms Act PS Subzi Mandi along with his associates Mukesh Kumar and Rahul etc. Further, in the three cases, i.e., (i) complaint of Shri Gyan Chand dated 14.11.2006 (ii) complaint of Shri Pareveen Sachdeva dated 05.07.2007 and (iii) complaint of Shri Vinod Kumar dated 03.0-8.2007 was marked to the applicant but he did not substantiate the allegations in his enquiry reports earlier while Shri Samar Plal, Inspector, PG Cell/North on verification of facts, found these reports contrary to the fact and the allegations substantiated in all these cases/complaints. In the aforesaid three cases Applicant had submitted unfair, partial and non-factual reports and had tried to misguide the senior officers and for the said lapse he was placed under suspension by Addl. DCP/North District vide order dated 27.09.2007 and was later on reinstated from suspension vide order dated 16.11.2007.
12. They have further stated that the charge leveled against the Applicant stood proved during the enquiry and the disciplinary authority tentatively agreeing with the findings of the Enquiry Officer, served a copy of the same upon the Applicant who submitted his written representation on 14.11.2008. Thereafter, the Disciplinary Authority has gone through the findings of the Enquiry Officer and other relevant records available on DE file. The applicant was also heard in OR on 6.1.2011 where he put forth the same thing as narrated in his written representation. Thereafter, the Disciplinary Authority awarded the punishment of forfeiture of 3 years approved service of the Applicant permanently, entailing proportionate reduction in his pay. His suspension period from 27.09.2007 to 15.11.2007 was also decided as period not spent on duty for all intents and purposes which was not to be regularized in any manner, vide order dated 17.01.2011. Against the aforesaid order of the Disciplinary Authority Applicant preferred an appeal which was duly considered by the Appellate Authority and the same was rejected vide order dated 08.04.2011. They have thus prayed that the OA id devoid of any merit and the same be dismissed.
13. We have heard the learned counsel for the Applicant, Shri K.K. Kaushik and the learned counsel for the Respondents, Shri N.K. Singh proxy counsel for Mrs. Avnish Ahlawat. We have also gone through the departmental record submitted by the respondents. The Applicants main contention in this OA is that the Enquiry Officer did not give any reasons for the findings arrived at by him and he did not make correct assessment of evidence on an objective analysis based on cast iron logic as held by the Apex Court in Girdhari Lal Guptas case (supra). On merits his submission was that there was no fault on his part and, therefore, the charge against him cannot be sustained. Further, according to him, in the final orders passed by the authorities, there were no proper discussion of the departments case, the petitioners defence, the evidence of both the parties, the reason why departments evidence is more acceptable than that of delinquent etc. He has also argued that the impugned order passed by the disciplinary authority amounts to double jeopardy inasmuch as the suspension period of the applicant has also been treated as period spent on duty which amounts to violation of constitutional provisions.
14. In our considered view there is no merit in the contentions of the Applicant. It is a settled principle of law that in a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence also cannot be permitted to be canvassed before the Court/Tribunal. In the case of Bank of India and Another Vs. Degala Suryanarayana JT 1999 (4) SC 489 the Apex Court has held that interference in enquiry proceedings are allowed only in cases of mala fides and perversity. The relevant part of the said judgment reads as under:-
Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.
XXX XXX XXX The finding so recorded by the Disciplinary Authority was immune from interference within the limited scope of power of judicial review available to the Court. We are therefore of the opinion that the learned single Judge as well as the Division Bench of the High Court were not right in setting aside the finding of the Disciplinary Authority and restoring that of the Enquiry Officer. The High Court has clearly exceeded the bounds of power of judicial review available to it while exercising writ jurisdiction over a departmental disciplinary enquiry proceeding
15. As regards the Applicants contention that he was subjected to double jeopardy by awarding the major penalty of forfeiture of 3 years of approved service permanently entailing proportionate reduction in his pay as well as deciding his suspension period from 27.09.2007 to 15.11.2007 as period not spent on duty for all intents and purposes also there is no merit as suspension is not a punishment. As the Applicant has already been punished in the departmental proceedings, it cannot be said that the order of suspension was unjustified. Further, under FR 54-B(1)(b) the competent authority, considering the facts and circumstances of the case, has the discretion to decide whether or not period of suspension shall be treated as period spent on duty or not. The said rule is reproduced as under:-
FR 54-B (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
16. We, therefore, dismiss this case. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh