Central Administrative Tribunal - Delhi
Asi Jai Raj Singh vs Govt. Of Nct Of Delhi on 21 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 523/2006 MA 405/2006 With OA 2425/2006 New Delhi this the 21st day of December, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) OA 523/2006 1. ASI Jai Raj Singh, S/o Shri Gaj Raj Singh, R/o 240 PTS (Police Colony), Malviya Nagar New Delhi 2. HC Desh Raj S/o late Shri Kishan Lal, R/o house no. 140 D Block Gali No.5 Prem Nagar Najafgarh, Delhi 3. Co Kishan Kumar S/o late Shri Zile Singh 117 B IInd Floor Gali No. 8, Lajwanti Gali Delhi 46 Applicants (Through Mr. Sachin Chauhan, Advocate) VERSUS 1. Govt. of NCT of Delhi, Through the Commissioner of Police, PHQ, MSO Building, IP Estate, New Delhi 2. Joint Commissioner of Police, Armed Police New Police Lines, Kingsway Camp, Delhi 3. Dy. Commissioner of Police, VI Bn, D.A.P., Through PHQ MSO Building, I.P. Estate, New Delhi Respondents (Through Mr. Padma Kumar S. for Ms. Jyoti Singh, Advocate) OA 2425/2006 Constable Gyanender 3701/T S/o Shri Raj Pal Singh, Age 38 yrs R/o Village Kutub Pur, Post-Jheekheeta District Bulandsher, Uttar Pradesh Applicant (Through Mr. Sachin Chauhan, Advocate) VERSUS 1. Govt. of N.C.T.D., Through the Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi 2. Joint Commissioner of Police, Delhi Armed Police, Through Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi 3. Deputy Commissioner of Police, VI Bn., Through Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi Respondents (Through Mr. Ram Kawar, Advocate) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
We are dealing with both the OAs in this common order as identical issues are involved in both the cases.
OA number 523 of 2006
2. A joint departmental enquiry was initiated against the three Applicants, ASI Jai Raj Singh, HC Desh Raj and Constable Kishan Kumar and the summary of allegations was issued against them on 18.03.2005, which reads as follows:
Following a secret information regarding demand and acceptance of illegal money from commercial vehicles by the traffic staff of inner and outer circles of North District, on 08-09-2003, PRG team consisting of Inspr. Sumer Singh, Inspr. Kapoor Singh, SI Ravinder Kumar and SI Sunil Kumar was constituted as ascertain the authenticity of the secret information.
The PRG team started surveillance on Rajghat Ring road. At about 11-15 AM PRG team reached at Hanuman Mandir Nigham Both Ghat point and noticed that some LGVs/HTVs were standing on roadside where the traffic staff from Civil Lines. Traffic Circle were deployed for prosecuting the drivers of commercial vehicles. Smelling some foul play on the part of Traffic staff, the PRG team took position about = K.M. ahead towards Rajghat. Inspr.Kapoor Singh was left near the traffic staff to keep a close watch over the activities of the Traffic staff and to note down the registration numbers of vehicles which are stopped by the checking staff and to inform the PRG team accordingly on telephone.
At about 11-45 AM one Truck bearing registration No. HR-55-A 3757 was intercepted, its driver Subeddin @ Jabru S/o Shri Wazir R/O village Bandapur, P.O. Joria Tehsil Tijarat, Distt. Alwar, Rajasthan on being enquired stated that he was going from ISBT to Ashram. At about 11-35 while he reached at Nigham Both Ghat Hanuman Mandir his truck was stopped by the traffic staff and one of them took him to the Z.O. The ZO had demanded Rs.200/- as entry money else he threatened him to impound his vehicle. After some discussion the Z.O. had issued a cash challan of Rs.100/- and another Rs.100/- was taken as illegal entry money from the driver. His statement was recorded and allowed to go.
At about 11-55 another Tempo bearing registration No. HR-38-A 9038 was stopped. Its driver Sikander Singh @ Billa S/0 Shri Gurbax Singh r/o Shop No.203, Capital Tempo Transport, Kalma Market, New Delhi stated that he was coming from Ludhiana and going to Container Depot Tuglakabad, New Delhi. At about 11-45 while he reached at Nigam Bodh Ghat Hanuman Mandir his tempo was stopped by the traffic staff and one constable took him to the ZO where ZO demanded Rs.100/- as illegal entry money else he threatened him to impound the vehicle. The driver paid Rs.50/- extra alongwith cash challan of Rs.100/- to the Z.O. His statement was recorded and allowed to go.
Later PRG team reached at Nigam Bodh Hanuman Mandir point where the ZO was not found present at that time and traffic staff HC Deshraj No. 425/T and Const. Sri Niwas No. 1869/T were present at the point. PRG team directed traffic staff to call the Z.O. at the point. ZO/ASI Jai Raj Singh No. 2200/T reached at the spot, he was asked to produce his challan book. On checking the chllan book it was found that the ZO/ASI had challaned 14 vehicles from Sl.No.AF-948659 to 948672 in challan book. The Z.O. has also stated that HC Deshraj No. 425/T and Const. Krishan Kumar No. 2729/T were with him during prosecution of the vehicles. His statement was recorded.
It was confirmed from civil Lines Traffic Circle that ZO/ASI Jai Raj Singh No.2200/T, HC Deshraj, No. 425/T, Const. Sri Niwas No. 1869/T, Const. Krishan Kumar No. 2729/T, Const. Lala Ram No. 2893/T and Const. Prabhu Lal No.1716/T had departed for their duty point i.e. Nigham Bodh Ghat Hanuman Mandir vide DD No. 4 at 7-48 AM.
During PRG surveillance ZO/ASI Jai Raj Singh No. 2200/T, HC Deshraj No. 425/T and Const. Krishan Kumar No. 2729/T were found prosecuting the vehicles and indulging in malpractice by way of collecting illegal entry money from the commercial vehicles. As per statement of the ZO, Const. Lala Ram No.2893/T and Const. Prabu Lal No.1716/T were regulating the traffic.
From the above facts it is crystal clear that ZO/ASI Jai Raj Singh No.2200/T, HC Deshraj No.425/T and Const. Krishan Kumar No.2729/T were indulging in malpractice by collection of illegal entry money from the commercial vehicles at their duty point. ASI/ZO Jai Raj Singh No. 2200/T instead of restraining his subordinates was himself actively involved in his malpractice.
The above act on the part of ZO/ASI Jai Raj Singh No.2200/T, HC Deshraj No. 425/T and Const. Krishan Kumar No. 2729/T amounts gross misconduct, malafide, negligence and dereliction in discharge of their official duties which render them liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules-1980. In his report dated 19.04.2005, the enquiry authority returned a finding of guilt. By order dated 13.05.2005 the disciplinary authority imposed a punishment of forfeiture of three years of service permanently on all the charged officers in the joint departmental proceedings. The joint appeal of the Applicants did not find favour with the appellate authority and was rejected by order dated 25.08.2005. The order dated 24.01.2004, the report of the Inquiring authority dated 19.04.2005, the order dated 13.05.2005 of the disciplinary authority and the order dated 25.08.2005 of the appellate authority have been assailed in this OA.
OA number 2425 of 2006
3. The Applicant was a Constable in Delhi Police at the relevant time. A departmental enquiry was initiated against him by order dated 12.11.2005 of the disciplinary authority. The following summary of allegations was served on the Applicant by the enquiry authority:
It is alleged against Ct. Pramod Kumar No. 3588-T and Const. Gyanender 3701-T that while posted in Delhi Cantt, Traffic Circle during the intervening night of 27/28.09.2005, were detailed for duty at Dhaula Kuan flyover for the diversion of heavy trucks for not allowing them to ply on the Upper Ridge Road a prohibited area/Road for HTVs for 24 hours were found indulging in malpractices like demanding and accepting illegal entry money from HTVs for facilitating there entry on the restricted ridge road during PRG surveillance.
A detailed report is that this office had received complaints and also a PCR call about the above mentioned malpractices. And for its surveillance/check a PRG team reached Dhaula Kuan, on the intervening night of 27/28.09.05 and noticed two uniformed traffic Constable standing near a barricadre on Dhaula Kuan Flyover in the area of DelhiCantt. Traffic circle at about 11.30 P.M. it was observed that these Constable had stopped a truck bearing registration No. HR 66 (Applied for) and some negotiations were going on with its driver. Smelling some suspicion on the part of the traffic Police men the PRG team positioned itself on the Upper Ridge Road, after crossing the flyover and waited for the vehicles to be released by the traffic Police men. After a short while, the traffic police men released the truck and when the same reached near the PRG team it was followed and intercepted after travelling a distance of 100 meters and made enquiries from the driver.
The driver namely Bhom Singh s/o Suraj Bhan r/o Village Sighari Tehsil & Distt. Mahendergarh (HR) on enquiries revealed that when he reached Dhaula Kuan Flyover two uniformed Constable of Delhi Traffic Police stopped his vehicle with the help of barricade and demanded entry money from him. They allowed him to go towards Karol Bagh only after he paid Rs.40/- to one of them. In the meantime, two other trucks bearing registration Nos.RJ-14-2G-7444 and HR-38-E-9903 also reached near the PRG team. These trucks were also stopped to ascertain whether entry money was also taken from them by the traffic constables or otherwise. The driver namely Surjeet Sharma s/o Shri Vasudev Sharma r/o V & P.O. Mehrauli Distt. Sikar Rajasthan and helper of another HTV namely Balram s/o Jai Singh r/o Village Kasola The & Distt Rewari Haryana of truck numbers RJ-14-2G-7444 and HR-38-E 9903 respectively also revealed that these traffic constables have taken Rs. 20/- and 50/- respectively from them as an entry money. These three driver/helper were brought back to the place where they were charged entry money. Bhom Singh, the driver of truck no. HR 66 (applied for) Surjeet Sharma the driver of truck No.RJ-14-2G-7444 and Balram, helper of truck number HR 38 E-9903 identified these two traffic police constables whose names were later known as Constable Parmod No. 3588-T and Consable Gyanender No. 3701-T as the constable who demanded entry money from them. Bhom Singh the driver of truck No. HR 66 (applied for) and Surjeet Sharma, the driver of truck No. RJ-14-2G-7444 identified Constable Parmod No. 3588-T as the constable who accepted entry money of Rs.40/- and Rs.20/- respectively from them. Balram, helper of truck number HR-38-E-9903 identified Ct. Gyanender No. 3701-T as the Constable who accepted Rs.50/- as entry money from him. Both the Constables were asked to hand over the illegal entry money to the undersigned, which they took from these drivers/helper but they refused for the same. The statements of above three drivers/ helper were recorded.
The above act on the parts of Ct. Parmod Kumar No. 3588-T and Const. Gyanender 3701-T amounts to grave misconduct, lack of integrity, indulgence in corruption and dereliction in discharge of their official duties which render them liable for departmental action under the provision of Delhi Police (Punishment & Appeal) Rules 1980. The enquiry authority held that the allegations against the Applicant had not been proved in the enquiry. The disciplinary authority, however, did not agree with the report of the enquiry authority and recorded a note of disagreement dated 26.05.2006. The note of disagreement along with a copy of the report of the enquiry authority was sent to the Applicant for his representation against the note of disagreement. After consideration of the representation of the Applicant, the disciplinary authority imposed a punishment of forfeiture of one year of service temporarily for a period of one year. The statutory appeal preferred by the Applicant was rejected by order dated 18.09.2006 of the appellate authority. The note of disagreement dated 26.05.2006, orders of the disciplinary authority dated 14.07.2006 and the order of the appellate authority dated 18.04.2006 and order dated 19.12.2005 whereby the name of the Applicant has been brought on the secret list of persons of doubtful integrity have been challenged in this OA.
4. The only argument raised before us in the case of Jai Raj Singh and others, OA number 523 of 2006, was that there was no evidence against the Applicants in as much as the official witnesses had neither heard the Applicants demanding illegal gratification nor had seen them accepting the bribe. SI Sunil Kumar, who was the fourth witness for the prosecution had stated in his deposition that he had not seen anyone taking money from the drivers. The fifth witness for the prosecution, Inspector Kapoor Singh, also denied that any one of the delinquents had accepted money from the truck drivers in his presence. The seventh witness for the prosecution, Inspector Sumer Singh, had also similarly denied that he had seen the delinquents accepting the illegal gratification. The learned counsel would further point to the statement of Sh. Subedin, one of the truck drivers, who denied that he gave any statement implicating the Applicants in acceptance of illegal gratification. He has stated in his deposition that he was challaned for having defective number plate and an amount of rupees one hundred was taken from him as compounding fee, for which a receipt was given. After travelling about one kilometre or so his truck was stopped by some persons travelling in a car, who took the challan receipt from him and noted its details and took his signatures on three different plain papers. During his cross-examination he stated that he had not given any statement that although the receipt was given for Rs.100/-, yet he was charged Rs.200/- by the police persons. He also denied that he had met any of the Applicants after the incident. The other driver could not be examined by the enquiry authority as the address given by him was wrong and he could not be traced. The learned counsel for the Applicant would contend that in view of the fact that the official witnesses had not seen the alleged transaction and the driver of the truck had denied having made the statement that he had been charged Rs.200/- and receipt for only rupees hundred was given to him. The learned counsel would contend that the enquiry authority had reached the conclusion that the Applicants were indulging in malpractices merely on surmise. He takes exception to the conclusion of the enquiry authority that the driver resiled from his earlier statement because drivers have a tendency to change their stance as they do not want to take confrontation with the traffic police for fear of malicious prosecution. The learned counsel would place reliance on the judgement of this Tribunal in OA No.1064/2008, Ct. Krishan Kumar V. Government of NCT of Delhi & ors, decided on 25.02.2010. In this case also the charge was that the applicant had accepted illegal gratification from two drivers, both of whom had denied paying any money to the charged officer. The official witnesses for the prosecution had also stated that they had not seen either the acceptance of illegal gratification or heard the applicant demanding the same. In this case the Tribunal had held that it was not sufficient for the disciplinary authority to get over this dilemma by merely stating that the witnesses had been won over. The OA was allowed on the ground that there was no evidence of any wrongdoing.
5. The learned counsel for the Respondents, on the other hand, pointed out that the argument of the Applicant had been dealt with by the appellate authority by noting that the second driver had not been examined because he was untraceable. However, the members of the PRG team had remained unshaken and stated that the driver had given the statement before them regarding acceptance of illegal gratification. The appellate authority has mentioned that there was no reason for the PRG team to make a false case against the Applicants. The appellate authority has noted that the enquiry authority has the power to bring on record the earlier statement of any witness whose presence, in the opinion of the enquiry authority, cannot be procured without undue delay, inconvenience or expense, under Rule 16 (iii) of the Delhi Police (Punishment and Appeal) Rules, 1980. The learned counsel for the Applicants, however, tried to argue that the Rule 16 (iii) ibid would not apply in this case as it was not the case in which the presence of the witness could not be procured without undue delay, inconvenience or expenses, but it was a case in which the witness was untraceable.
6. On consideration of the rival contentions and perusal of the record, we are of the opinion that there is substantial force in the arguments of the Respondents. Rule 16 (iii) ibid has been extracted below:
{ Rule 16.(iii) If the accused police officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to elucidating the facts referred to in the statements of documents thus brought on record. (emphasis added) We do not agree with the learned counsel for the Applicant that this rule would not apply in the instant case. The driver has given a wrong address because of which he is untraceable. It would certainly be difficult to produce him before the enquiry authority without considerable effort and expense. The official witnesses for the prosecution have testified before the enquiry authority that the driver, who could not be produced before the enquiry authority, had stated that the delinquents had taken Rs.200/- from him and gave him a receipt for only Rs 100/-. The appellate authority has correctly noted that the persons manning the PRG team had no prejudice against the Applicants. It is also not the case of the Applicants that the action of the PRG team was malafide. This case is distinguishable from OA number 1064 of 2008 because in that OA both the drivers had testified before the enquiry authority that they had not given any illegal gratification to the applicant therein, whereas in the instant OA one of the drivers had not appeared before the enquiry authority and the official witnesses had stated that the driver, who did not appear before the enquiry authority, had made the statement that he had given illegal gratification to the Applicants. It cannot be said that the statement has been made by the official witnesses out of malice. Credence has, therefore, to be put on the statement of the official witnesses. The enquiry authority was well within the rules to bring the testimony of the untraced driver on record under Rule 16(iii) ibid. No other argument was pressed before us by the learned counsel for the parties. Considering all the circumstances, it cannot be said that there was no evidence against the Applicants.
7. In view of the above discussion we find no reason to interfere with the orders of the disciplinary and appellate authorities. The OA is dismissed. No costs.
OA number 2425 of 2006
8. The departmental enquiry in this case is also on similar grounds as in the OA number 523 of 2006. The distinguishing factor in this case is that the three persons whose statements had been recorded by the PRG team have resiled from their statements made before the PRG team, while deposing before the enquiry authority. The fifth witness for the prosecution, Balram, helper in one of the trucks, which were intercepted by the PRG team, had stated in his deposition that on being asked by the officials of the PRG team whether he had given any money to the Applicant, he had denied the same. He also stated that a search of the person of the Applicant was made by the PRG team but no money was recovered from him. The sixth and the seventh witnesses for the prosecution, Bhom Singh and Surjeet Sharma respectively, have also made statements on the same lines as the fifth witness. The official witnesses have also deposed that they had not heard the demand of money by the delinquent and did not see the alleged transaction also. The enquiry authority recorded thus in his conclusions:
During the proceedings of this DE, 7 prosecution witnesses have been examined in all. PW-1 & PW-4 are the formal witnesses who have stated about the posting and departure on duty of the defaulters. PWs-2 & 3 are the material witnesses and members of the PRG raiding party team. All these 3-witnesses have supported the prosecution story. PWs-5 6 & 7 are the helper and drivers of the alleged commercial vehicles. All these 3 witnesses have not supported the statement of PRG team. Rather they had stated entirely different story and demolished the prosecution story totally. They had further stated that their signatures were taken on the paper by the PRG under intimidation and their statements were written afterwards and they are not aware about the contents of the statements.
There is not material on record on the basis of which the prosecution story can be accepted as creditable. The PRG members who were standing at a distance of 100-150 yards did not see the driver paying money to the defaulters nor any recovery was made of the money from the defaulters i.e. Constable Pramod No. 3588/T and Constable Gyanender No. 3701/T. It is unfair to suspect someone without any basis if everything was happening in the presence of PRG team then why the said money was not recovered from the Constables. The PRG team were bent to suspect others rather than believing in them. The PRG team has failed to prove their version to be true by not affecting the recovery of the money from the spot inspite of their presence. Mere suspicion and speculation has no place in such type of charge. In a case of bribe, the three major ingredients demand, acceptance and recovery must be fulfilled in order to meet the end of justice. In this prosecution case, without proof having paid the money to the defaulter nor recovery of the same and ore so when no substantive evidence relating to the payment as well as recovery or demand has come forward the credentials of PRG team are highly doubtfully/suspicions.
The PRG team watched the activities of the traffic staff but could not see acceptance of the money by the traffic staff from the drivers & Conductor. Strangely enough no recovery was made at the spot. At the same time PWs-5 6 & 7 did not support the prosecution story. There is no sufficient evidence to prove the charge. Hence keeping in view the totality of the circumstances, the charge against them is dropped in the interest of justice and fairness please. The disciplinary authority did not agree with the conclusion of the enquiry authority and recorded his note of disagreement. He has recorded in his note of disagreement that the drivers and helper of the trucks were won over by the Applicant. He recorded further in his note that there was no reason to disbelieve the members of the PRG team as they had no reason to make a false case against the Applicant. It has further been recorded that there is no reason to believe that the signatures of the fifth, sixth and the seventh witnesses for the prosecution have been taken on plain paper because their statements have been written in a regular flow without squeezing the words. The above said witnesses have put their signatures just below the last word of their statements. It was recorded that the last word of the statements of the sixth and the seventh witnesses ends at the right side on the reverse of the papers on which the statements were written and the witnesses have put their signatures just below the last word. In case of the statement of the third witness for the prosecution, helper Balram, the last word of the statement ends at the left side, on the reverse of the paper, where he has put his signatures just below the last word. From this the disciplinary authority concludes that the witnesses for the prosecution have given their statements to the PRG team and have signed underneath their statements. These statements have not been written later on after obtaining their signatures on plain paper, as would be clear from the above reasoning. Their statement before the enquiry authority that the signatures are obtained by intimidating them is an afterthought because otherwise they would have made complaints to the local police. The disciplinary authority has also recorded that the conclusion of the enquiry authority that the members of PRG team had not seen the transaction of money being demanded and accepted by the Applicant is also not well founded because the drivers were brought back to the place where the Applicant was standing and they identified the delinquent. Both the constables were asked to hand over the money they had taken illegally from the drivers to the PRG team, but they refused to do so. The statement of the prosecution witnesses that on search of the constables no money was found in their pockets does not sound credible because it is not possible that they would not have any money at all on their person. The statement of the witnesses that the PRG team took personal search of the delinquent constables is belied by the fact that even pocket money was not recovered from them. The disciplinary authority would conclude that for this reason the statement is not believable that no money was recovered from the delinquent constables, including the Applicant, on the PRG team searching their persons. The Applicant in his reply reiterated that the PRG team had not heard the demand of money and not seen the acceptance of illegal gratification and that no money was recovered from him. The disciplinary authority has on the basis of the above reasoning repelled these arguments.
9. The arguments of the learned counsel for the Applicant are that there is no evidence against him because the witnesses have denied having given any money to the Applicant and have also stated that no money was recovered from him when he was searched by the PRG team. It has also been argued that the PRG team has been standing at a distance of more than hundred yards and was unable to hear the demand of money or see the acceptance thereof. The learned counsel for the Respondents has contended that the reasoning given by the disciplinary authority in his note of disagreement is logical and has to be accepted.
10. We have given our utmost consideration to the arguments of the opposing parties. From the reasoning given by the disciplinary authority in his note of disagreement it is clear that the deposition of the drivers that their statements were recorded by the PRG team on plain paper cannot be accepted. We also find it a reasonable inference that normally no person would go out on the street on duty without having any money on his person. It seems quite logical for the disciplinary authority to infer that this reasoning gives the lie to the statement of the witnesses that on conducting the personal search of the Applicant no money was found on his person. There is no reason to disbelieve the official witnesses that the Applicant and the other delinquent at the spot were asked to refund the money to the drivers, but they refused. We are also in entire agreement with the conclusion of the disciplinary authority that the drivers had been brought back to the place where the Applicant was performing his duty and he was identified by the drivers. The standard of proof in disciplinary proceeding is not as rigorous as in a criminal proceeding and it is the preponderance of probability, which would weigh with the disciplinary authority. We are of the considered opinion that in the present circumstances the disciplinary authority has been able to logically prove that there is strong preponderance of probability that the Applicant is guilty of demanding and accepting illegal gratification. The judgement in Ct. Krishan Kumar (supra) would not apply in this case, as each case depends on its peculiar facts and circumstances and the disciplinary authority had not logically repelled the arguments of the delinquent constable on the basis of the documents.
11. In view of the above, we find no merit in the OA, which is dismissed. There'll be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali) Vice Chairman (A) Chairman /dkm/