Central Administrative Tribunal - Delhi
Sub-Inspector Baljit Singh vs The Commissioner Of Police on 3 November, 2012
Central Administrative Tribunal
Principal Bench
O.A.No.3416/2011
New Delhi, this the 3rd day of November, 2012
Honble Shri G. George Paracken, Member (J)
Honble Mrs. Manjulika Gautam, Member (A)
Sub-Inspector Baljit Singh
s/o Shri Hoshiyar Singh
age 42 years
R/o WZ 37, Agalat pur
Janakpuri
Delhi 110 058. Applicant
(By Advocate: Sh. Sachin Chauhan)
Versus
The Commissioner of Police
PHQ, I.P.Estate
New Delhi.
The Joint Commissioner of Police
EoW, Crime Branch
Through Commissioner of Police
PHQ, I.P.Estate
New Delhi.
The Dy. Commissioner of Police
Economic Offence Wing
Crime Branch
Through Commissioner of Police
PHQ, I.P.Estate
New Delhi. Respondents
(By Advocate: Sh. N.K.Singh proxy for Mrs. Avinish Ahlwat)
O R D E R (Oral)
By G.George Paracken, Member (J):
By this Original Application, the applicant has called in question the order dated 18.05.2010 whereby the disciplinary has initiated a departmental inquiry proceedings against him, the order of the disciplinary authority dated 17.03.2011 whereby, by way of punishment, his one year approved service was forfeited temporarily entailing proportionate reduction in his pay, and the order of the Appellate Authority dated 01.09.2011 rejecting his appeal.
2. The charge against the applicant was as under:
I S.K.Singh, ACP.EOW, Enquiry Officer, hereby charge you S.I. Baljit Singh No.D/3646 and Const. Yogesh No.12722/DAP while investigating a case FIR No.04/09 U/s 406/420/120B IPC & 3/4/5/6 P.C.M.C. Scheme (Banning) Act had proceeded to Mumbai to trace and arrest the accused persons. The main accused Rakesh Kesharwani S/o Jai Ram R/o Village Shivgarh, Distt. Allahabad, UP, was traced and arrested on 15.01.2010. After the arrest, the accused was produced before the Court at Thane, Maharastra on 16.01.2010. The Honble Court issued Transit Remand for producing the accused on or before 18.01.2010 before Ld. ACMM, Delhi. SI Baljit Singh and Const. Yogesh along with accused Rakesh Kesharwani in custody, boarded the Mumbai-Delhi Rajdhani Express on 16.01.2010. In the intervening night of 16/17.01.2010 while traveling in the train, the accused Rakesh Kesharwani escaped from the custody of police team which shows that adequate steps and appropriate precaution were not taken by the police team lead by you SI Baljit Singh to ensure safe custody of accused while on the way back to Delhi. There is nothing on record to establish that matter was taken seriously. Upon reaching Delhi, a FIR No.09/10 u/s 224 IPC, P.S., New Delhi Railway Station was lodged on the complaint of SI Baljeet Singh.
The above act on the part of SI Baljit Singh No.D-3646 and Const. Yogesh, 12722/DAP amounts to gross misconduct, negligence and dereliction of duty which renders them liable for departmental action under Delhi Police (Punishment and Appeal) Rules 1980.
3. There were four Prosecution Witnesses who have deposed during the inquiry proceedings. The PW-1 - HC Bhupender Singh deposed that he was working as MHC (M) and he issued the railway warrants to the applicant and the co-accused Constable Yogesh in this case. PW-2 - Bijender Singh deposed that he was working as MHC (R). He proved that the applicant SI Baljeet Singh and the co-accused have departed from Delhi for conducting investigation in FIR No.04/09 and 89/09 and they arrived back in Delhi after conducting the investigation of the said case on 13.01.2010. PW-3 Constable Mukesh Kumar deposed that he was posted as Munshi of MHC (M), PS, NDRS and proved the copy of FIR No.09/10 under Section 224 of IPC, P.S. NDRS dated 17.01.2010. PW-4 Shri P.K.Mishra, Additional DCP/EOW deposed that on 15.02.2010 a preliminary enquiry was entrusted to him by DCP/EOW vide order No.561-64/HAP/Crime & Rly., dated 15.02.2010 in connection with escaping of one Mr. Rakesh Keserwani who was an accused in FIR No.04/09 under Section 406/420/120-B of IPC and 3/4/5/6/P.C.M.C.Scheme (Banning) Act, from the police custody on the intervening night of 16/17-01/2010 while on his way to Delhi from Mumbai. According to the said PW, he was the Inquiry Officer of the case and on 20.02.2010 he completed the preliminary enquiry and submitted his report to the disciplinary authority which has been exhibited as PW-4/A. In the cross examination, he submitted that there were very little chance for an accused to escape from the custody of the police officials, if the police officials concerned were performing their duty sincerely. He has also stated that negligence is much lesser a misconduct than a mistake committed with ill motive.
4. On completion of the aforesaid prosecution evidence, the inquiry officer prepared the aforesaid charge against the applicant and the co-delinquent Constable Yogesh and served on them. Both of them did not admit the charge. Therefore, the inquiry continued. The applicant produced one Defence Witness, namely, SI Anuj Nautiyal who deposed that on 17.02.2010 he was posted at Police Station, New Delhi Railway Station and the applicant along with Constable Yogesh came there and the applicant filed a complaint alleging that in the intervening night of 16/17.01.2010, while they were bringing the accused Rakesh Kesarwani on transit remand in FIR NO.04/09 under Section 409/420/120-B of IPC, P.S., EOW, Delhi from Mumbai by Mumbai Rajdhani train, he escaped from their custody between Kota and Delhi. He further stated that as per the said complaint, on the request of the accused, he was taken to the toilet by Ct. Yogesh under the supervision of SI Baljit Singh and after few minutes, the accused came out of the toilet by rubbing soap on his hands and as soon as the Constable Yogesh tried to catch him, he escaped as his hands were slippery. Both the applicant and Constable Yogesh tried to apprehend the accused but since it was very dark, the accused managed to hide himself. Further, according to the aforesaid Defence Witness, a case vide FIR No.9/10 under Section 224 of IPC was registered at PS NDRS after discussing the facts with senior officers and investigation of the case was marked to him. During the course of investigation, he recorded the statement of the applicant and Constable Yogesh and obtained photocopies of the documents pertaining to the case FIR No.04/09. On 28.01.2010 the accused Rakesh Kesarwani was re-arrested by SI Baljit Singh and his team from Sarannath, Banaras (UP) and with the permission of Court, he was sent to judicial custody. Further, according to him, the accused Rakesh Kesarwani has also narrated the same facts as told by the applicant. However, during the investigation, no criminal liability was found on the part of the applicant and the co-delinquent from whose custody the accused escaped. The he has also stated that he filed the chargesheet against the accused Rakesh Kesarwani in the Court of Sh. Deepak Dabas, MM, Tis Hazari Court, Delhi and the case is pending trial.
5. The applicant has also made his defence statement. According to him, the dispute in the matter is that whether the accused has escaped due to the negligence of the applicant or his co-delinquent or it was simply an incident due to the reasons beyond their control. He has also stated that not a single prosecution witness has stated during their depositions that the escape of the accused was due to their negligence. Even the PW-4 (DCP Sh. P.K.Mishra) who conducted the preliminary has also not stated that there was any negligence on their part. On the other hand, he stated that there was no motive, whatsoever, was attributable against the applicant and there was no evidence or allegation that escape has taken place due to the ill motive on the part of the applicant. Further, according to him, while the PWs were only proforma witnesses and they had nothing to say about the allegations made against him, the defence witness Shri Anuj Nautial has clearly submitted that he did not find any lapse either on the part of the applicant or Constable Yogesh Kumar during his investigation. Had the I.O. found any criminal negligence on the part of delinquents, he would have added section 223 IPC against them and they would have been charge-sheeted accordingly. On the contrary it was proved that applicants were not found wanting in the discharge of their duties. Further, according to the applicant, if the evidence of the defence witness was taken into consideration, the hypothetical allegations mentioned in the Charge would not have been sustained. Moreover, his evidence was very crucial and it has a direct bearing on the allegations levelled against the applicants. The applicant has also referred to S.O. No.125 issued by the respondent wherein it has been stated that the conclusion must rest on evidence and not on matters out side the record.
6. However, the inquiry officer submitted his findings on 17.02.2011 holding that the charge against the applicant and the co-delinquent was partly substantiated as there was negligent act and dereliction of duty on their part. However, there was no criminal liability found on the part of the applicant and the co-delinquent during investigation of FIR No.09/10. In the discussion of evidence, the inquiry officer held that the basic contention of the case was that while investigating the FIR No.04/09, the applicant and co-delinquent Constable Sh. Yogesh had proceeded to Mumbai to trace and arrest the main accused person Mr. Rakesh Kesharwani. The main accused was traced and arrested on 15.01.2010. After the arrest, the accused was produced before the concerned Court at Thane, Maharashtra on 16.01.2010 and the Court issued Transit Remand for producing the accused on or before 18.01.2010 before the Ld. ACMM, Delhi. However, in the intervening night of 16/17.01.2010, while traveling in the train, the accused Rakesh Kesharwani escaped from the lawful custody of police team which shows that adequate steps and appropriate precaution were not taken by the police team lead by the applicant and upon reaching Delhi, he lodged an FIR No.09/10 under Section 224 of IPC. Therefore, the applicant and the co-delinquent did not take adequate steps and appropriate precautions.
7. The relevant part of the inquiry officers report dated 17.02.2011 is as under:
DISCUSSION OF EVIDENCE:
The basic contention of the case is that while investigating a case FIR No.04/09 U/s 406/420/120B IPC & 3/4/5/6 P.C.M.C. Scheme (Banning) Act S.I. Baljit Singh No.D/3646 and Const. Yogesh No.367/DRP had proceeded to Mumbai to trace and arrest the accused persons. The main accused Rakesh Kesharwani S/o Jai Ram R/o Village Shivgarh, Distt. Allahabad, UP, was traced and arrested by the I.O. on 15.01.2010. After the arrest, the accused was produced before the concerned Court at Thane, Maharastra on 16.01.2010. The Honble Court issued Transit Remand for producing the accused on or before 18.01.2010 before Ld. ACMM, Delhi. In the intervening night of 16/17.01.2010 while traveling in the train, the accused Rakesh Kesharwani escaped from the lawful custody of police team which shows that adequate steps and appropriate precaution were not taken by the police team lead by SI Baljit Singh. Upon reaching Delhi, a FIR vide No.09/10 u/s 224 IPC, P.S.New Delhi Railway Station was lodged on the complaint of SI Baljit Singh.
CONCLUSION:- After going through the statement of all PWs, DW and above discussion in the light of material available on file, I reached the conclusion that charge served upon the delinquents is partly substantiated as there was negligent act and dereliction of duty on their part. However no criminal liability was found during investigation of case FIR No.09/10 u/s 224 IPC, P.S. NDRS against them.
8. The applicant submitted a representation on 28.02.2011 reiterating his submissions made in his defence statement submitted earlier. He has also stated that he and the co-delinquent were badly tired as the journey from Delhi to Ahamdabad, Ahamdabad to Mumbai and then to Delhi and the hectic schedule of investigation had not allowed the applicant and the constable to have complete rest. Further the burden had increased after the accused had come in their custody. Even then they accepted the challenge. As already stated, they submitted that it was a foggy night due to which train was just crawling. Nothing was visible out side. It virtually was a fight of wits in which Rakesh Kesharwani, a shrewd criminal, succeeded to out wit the applicant and the Constable. He took advantage of the hostile atmosphere, the dark night and the risk that he chose to take. He suddenly emerged from the toilet and unexpectedly gave a severe push to the Constable and rushed through the compartment. Both of them also rushed after him but by the time they could consolidate their senses, he had gone ahead to disappear. Probably he got down from the train and disappeared in the fog. They though searched him in train boggys but could not succeed to find him. He has also submitted that incidents of similar nature need to be looked into similar manner and with similar approach. Some sort of equity deserves be maintained while evaluating to different matters. In EOW Unit itself accused Pal Singh S/o Jagjit Singh was arrested by S.I. Sudhir Kumar in case FIR No.62/07 P.S.Tuglak Road N. Delhi. The accused had escaped from the custody of police team comprising of S.I. Sudhir Kumar, H.C. Sam Raj Singh and H.C. Rambir Singh from Ambala Haryana and case FIR No.16/09 dated 17.01.2009 u/s 223/224 IPC was registered at Ambala city, Ambala, Haryana. Though in that case Section 223 IPC was also applied pointing towards criminal liability of the police team and all these police officials would have been granted bail in the criminal case, but action against the police team was limited to show cause notice only and the show cause notice too was filed. The other plea taken by him was that they had re-arrested the accused after a very short period and that too from Varnasi in Uttarpradesh in very difficult situations.
9. However, the disciplinary authority held that there was no distinct line between the negligence attributed on their part. Further, according to the disciplinary authority, it was crystal clear that the accused Rakesh Kesharwani escaped from the lawful police custody when he was on transit remand which means the police team comprising the applicant and the Constable Yogesh did not pay heed and due attention while they were traveling in train. He has also stated that in order to find out the veracity of the allegations, the PWs/DW were examined and on the basis of the facts during the DE proceedings, the EO reached the conclusion that the charge levelled against the defaulters [the applicant and the co-delinquent] has been partly substantiated as there was negligent act and dereliction of duty on their part. He has also stated that the applicant and other co-delinquent were heard in Orderly Room on 04.03.2011 in consonance with the principles of natural justice. According to the conclusions arrived at by the disciplinary authority, the accused Rakesh Kesharwani escaped from the custody of the police team because adequate/proper steps are not taken by the police team to ensure safe custody of the accused as he was not handcuffed at that time while on the way back to Delhi. The disciplinary authority has, therefore, agreeing with the findings of the inquiry officer imposed upon the punishment of forfeiture of one years approved service entailing proportionate reduction in their pay. The relevant part of its order is as under:
I have carefully gone through the findings of the E.O. defence statement/representation of the defaulters, statements of PWs/DW and other material/record brought on the DE file. In order to find out the veracity of allegations, total 4 PWs and one DW were examined. On the basis of the facts during the DE proceedings the EO reached at the conclusion that the charge levelled against the defaulters SI & Constable is partly substantiated as there was negligent act and dereliction of duty on their part. For the sake of natural justice and fairness, the defaulters were heard in O.R. on 4.3.2011. The oral depositions made by the defaulters in OR were not found satisfactory. It is a fact that in the intervening night of 16/17.01.2010 while traveling in the train, the accused Rakesh Kesharwani escaped from the lawful custody of police team. This shows that adequate steps and appropriate precaution were not taken by the police team led by SI Baljit Singh to ensure safe custody of accused as he was not handcuffed at that time, while on the way back to Delhi. Therefore, I K.K.Vyas, Dy. Commissioner of Police, EOW, Crime Branch, New Delhi, order that one year approved service of SI Baljeet Singh, No.D/3646 and Const. Yogesh, No.367/DRP be forfeited temporarily entailing proportionate reduction in their pay.
10. The appellate authority, vide its order dated 0.09.2011, stated that he had gone through the appeal filed by the applicant and the para-wise comments of the disciplinary authority. According to the appellate authority, the applicant did not submit any thing new during the Orderly Room in which he was heard on 12.08.2011, except requesting to take a lenient view in the matter as he was due for promotion in the near future. The appellate authority has, therefore, held that the lapse on the part of the applicant is gross and cannot be ignored as it was his primary duty to ensure safe transfer of the accused on the transit remand but he failed to do so and he has acted in an unprofessional manner. He has also failed to properly brief the staff accompanying him for the safety of the accused and he has also filed to obtain permission from the Court of Thane for handcuffing the accused, in such a long journey, during transit remand. The appellate authority, therefore, came to the view that the punishment awarded to the applicant by the disciplinary authority is justified and there was no reason for his interference.
11. The applicant has challenged the aforesaid orders on various grounds. According to him, the inquiry officer failed to consider the defence of the applicant in the departmental inquiry as substantiated by the defence witness SI Anuj Nautiyal who was the investigating officer who filed FIR No.09/2010 against the applicant under Section 224 of the IPC. He deposed during the inquiry but at no point of time, he found any negligence on the conduct of the applicant. It was for that reason only he was charged under Section 224 IPC instead of Section 223 IPC. The said defence witness further deposed clearly that because of the special efforts of the applicant and his team, the main accused Rakesh Kesharwani was re-arrested on 28.01.2010 from Varanasi in Uttar Pradesh which proves that the conduct of the applicant in the entire investigation in the criminal case, there was no negligence. Further, the effort of the applicant to re-arrest the main accused within a span of 15 days was not at all considered by the inquiry officer while proving the charge of negligence against him thus causing great prejudice to the applicant. Accordingly, he argued that although the applicant submitted his defence during the inquiry proceedings, the inquiry officer failed to fulfil his obligation to consider the same. As a result, according to him, the inquiry itself got vitiated. He has also stated that the inquiry officer was not fair in his recording of the evidence brought before him. His contention in this regard was that even though there was no evidence recorded whereby any evidence on the specific negligent act on the part of the applicant was brought on record but still the inquiry officer concluded that the charge against the applicant was proved. He has, therefore, argued that the findings of the inquiry officer have not been supported by any evidence but it was merely on suspicion and surmises. Thus his contention is that the present case is one of `No evidence.
12. The learned counsel for the applicant has also argued that the respondents themselves have not attributed any ill motive against him in the charge and the escape of the accused from the custody of himself and the Co-delinquent, at best can only be an act of negligence or an innocent mistake which are not acts of misconduct. In this regard, the learned counsel for the applicant has relied upon the Judgement of the Honble Apex Court in Union of India & Others v. J. Ahmed, AIR 1979 SC 1022 = (1979) 2 SCC 286 wherein it has been held as under:-
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In the aforesaid Judgement, the Honble Apex Court further held as under:
A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct. Further, in the aforesaid Judgement, the Honble Apex Court held as under:
11 .. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high
13. The learned counsel for the applicant has also referred to the Judgement of the Honble Apex Court in Roop Singh Negi v. Punjab National Bank & Others, 2009(1) Scale 284 in support of his submissions that the inquiry officer failed to prove the charge levelled against him, taking into consideration of the material brought on record by the parties.
10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
14. The learned counsel for the applicant has also relied upon the judgement of the Apex Court in Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484] wherein it has been held that the Court exercising power of judicial review is entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration or not. The relevant part of the said Judgement is as under:
17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
15. Again, with regard to the importance of functioning as an independent authority and not as the representative of the department or the disciplinary authority, the learned counsel has relied upon the Judgement of the Honble Apex Court in State of Uttar Pradesh & Others v. Saroj Kumar Sinha, (2010) 2 SCC 772 wherein it was held as under:
28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In the case of Shaughnessy v. United States, 1 97 L Ed 956 : 345 US 206 (1952) (Jackson J), a judge of the United States Supreme Court has said (L Ed p. 969) "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
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.
16. Lastly, the applicants counsel concluded his arguments stating that the inquiry officer did not take into consideration of the defence statement submitted by the applicant or recorded the reasons for his conclusion on each of the article of charge. Therefore, according to the learned counsel, the report of the inquiry officer is in violation of the provisions contained in Sub-rule (ix) of Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980, which is as under:
(ix) The Enquiry Officer shall then proceed to record the findings. He shall pass orders of acquittal or punishment if himself empowered to do so, on the basis of evaluation of evidence. If the propose to punish the defaulter he shall follow the procedure as laid down in Rule 16(xii). If not so empowered he shall forward the case with his findings (in duplicate) on each of the charges together with the reasons therefor, to the officer having the necessary powers. If the enquiry establishes charges different from those originally framed, he may record finding on such charges, provided that findings on such charges shall be recorded only if the accused officer has admitted the facts constituting them or has had an opportunity of defending himself, against them. In support of the aforesaid submissions, he has relied upon the Order of a Coordinate Bench of this Tribunal in OA No.271/2009 Head Constable Munshi Ram v. Govt. of NCT Delhi & Others (decided on 09.09.2010), wherein it has been held as under:
6. In the light of above, Rule 16 (ix) of the Delhi Police (Punishment & Appeal) Rules, 1980, which is substantive in nature and is to be followed, entrusts the inquiry officer with an obligation to not only consider the defence statement or evidence produced by the delinquent official but also to record reasons on each article of charges.
7. In the light of above, the ground raised by the applicants counsel is that the inquiry report has prejudiced him being indefinite against Rule 16 (ix) of the Rules where neither applicants written statement was considered nor has any reasoning been recorded.
8. This has been vehemently opposed by learned counsel for respondents, who states that the evidence, which had come forth in the inquiry, establishes the charge against the applicant on the ground that he was under the influence of liquor and also making quarrel with fellow Head Constable. It is also stated that this Court is precluded from re-appreciating the evidence or substituting its views to interpret in any manner the inquiry proceedings where the disciplinary as well as appellate authorities recorded reasoned orders.
9. We have carefully considered the rival contentions of the parties and perused the records.
10. On first blush and ex facie the inquiry report does not show consideration of the defence produced by the applicant and the contentions raised. The inquiry officer in his conclusion has not whispered about this what to talk of recorded reasons as to how the charge against the applicant has been proved. As this is not in consonance with Rule 16 (ix) of Delhi Police (Punishment & Appeal) Rules, 1980 and being a quasi-judicial authority having failed to render the responsibility, the inquiry report cannot be sustained in law as also the consequent orders.
11. Resultantly, OA is allowed to the extent that impugned orders are quashed. Applicant shall be entitled to all consequential benefits, as admissible in law. However, if so advised, respondents are at liberty to take up the proceedings from the stage of recording evidence as per Rule 16 (ix) of Delhi Police (Punishment & Appeal) Rules, 1980. In such an event, law shall take its own course. No costs.
17. The respondents in their reply have stated that the inquiry officer has conduced the disciplinary proceedings as per the mandatory provisions of Delhi Police (Punishment & Appeal) Rules, 1980 and concluded that the charge of negligence against the applicant was proved only, after considering the evidence on record. The disciplinary authority also, after taking into consideration of the facts and circumstances of the case and material placed on record, vide its order dated 17.03.2011, imposed the punishment of forfeiture of one years approved service of the applicant and Constable Yogesh temporarily, entailing proportionate reduction in their pay. They have further stated that the appellate authority, after taking into consideration of the para-wise comments of the disciplinary authority and hearing the applicant in the Orderly Room rightly rejected the appeal of the applicant vide impugned order dated 01.09.2011 and it is just, legal, fair and in accordance with the provisions of the aforesaid Rules.
18. We have heard the learned counsel for the applicant Shri Sachin Chauhan and the learned counsel for the respondents Sh. N.K.Singh proxy counsel for Mrs. Avnish Ahlawat. We have also perused the evidence adduced and documents produced in the disciplinary proceedings available on record. We have also considered the various judgements of the Apex Court and the Orders of this Tribunal relied upon by the applicant. First of all, we shall say that the inquiry officers report is not based on any evidence against the applicant. None of the prosecution witnesses have given any evidence to support the case of the disciplinary authority that it was due to the absence of inadequate steps or appropriate precaution taken by the applicant and the co-delinquent Constable Yogesh, the accused Shri Rakesh Keshwani could escape from their custody. None of these were witnesses to the escape of the said accused.
19. The inquiry officer is a quasi judicial authority who is expected to be fair and also wholly unbiased. His duty is to come to a conclusion whether the charge levelled against delinquent official have been proved or not, based on evidence produced during the inquiry proceedings. Of course, at least, if some evidence is available on record against the applicant, this Tribunal may not go into its sufficiency. But if there are no evidence, the inquiry officer has to say so in his report without any fear and favour. On the contrary, if the inquiry officer still holds that the charges have been proved, it would amounts to perversity. A case of `No evidence deserves to be rejected. On the other hand, the Defence Witness has stated very clearly in his preliminary report as well as during his deposition before the inquiry officer that there was nothing to prove that the applicant and his co-delinquent were guilty. Sub rule (ix) of Rule 16 is mandatory that the inquiry officer should consider the deposition of the Defence Witness with all its seriousness. Both the disciplinary authority and the appellate authority have also passed orders without proper application of mind. A perusal of the appellate order would also show that it has been passed on the basis of the para-wise comments of the disciplinary authority and not by independent application of mind.
20. We, therefore, allow this OA. Consequently, we quashed and set aside the inquiry officers report and the orders of the disciplinary authority and the appellate authority based on the said report as unsustainable. Resultantly, the respondents shall restore the benefits, if any, withheld from the applicant or he has been deprived of, by passing appropriate orders within a period of two months from the date of receipt of a copy of this order. No costs.
(Mrs. Manjulika Gautam) (G.George Paracken) Member (A) Member (J) /nsnrgp/