Central Administrative Tribunal - Delhi
Ct.Sunil Kumar vs Gnct Of Delhi on 10 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2074/2010 New Delhi this the 10th day of September, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) Ct.Sunil Kumar ( 1654/T (Now 3758/DAP), PIS no.28901589 S/o Shri Dharamvir Singh, r/o Vilge Bhiraouti, Post Siadpur, Distt. Bulandsher (UP). Applicant (By Advocate Mr. Sourabh Ahuja ) VERSUS 1. GNCT of Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 2. Special Commissioner of Police, Armed Police, Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, 4th Bn. DAP, Delhi Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police, Traffic, Delhi. Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 5. Deputy Commissioner of Police, (Vigilance/Delhi) Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate Ms. Rashmi Chopra ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J) :
As has been captioned in the counter reply under the head brief facts of the case a joint departmental enquiry was initiated against the applicant and Constable Ajay Kumar, 3100/DAP vide order No.XVI/287/07/11580-11594/HAP/T (D-1) (NDR) dated 10.09.2007 for his alleged misdemeanor of indulging in malpractices of demanding and accepting Rs.200/- illegally in the form of entry money from the owner of vehicle number Dl-IV-7941.
2. On 18.07.2007, a team comprising of Inspector Dinesh Keshav TI/ PRG, Inspector Hanuman Dan, SI Shailendra Singh and SI Pankaj Malik of PRG Cell was formed on the direction of ACP/T-PRG. The PRG team started moving in a private car arranged by Inspector Dinesh Keshav, TI/PRG, in North-East-District and checked the traffic staff at various points. At about 10.45AM, the team reached near eastern side of old iron bridge in Shahdara Traffic Circle and observed that the RTV bearing registration number DL-IV-7941 (ibid) was parked on the left side of GT road after crossing the bridge on the carriage way going towards Shahdara and one head constable along with two constables present at the eastern end of old iron bridge were negotiating something with a person, presumably the driver of the RTV. The PRG team positioned itself outside Shastri Park Metro Station parking at some distance ahead of the above RTV and started watching the activities of traffic staff. After some time, the driver of the above RTV was let off by the traffic staff. The PRG team followed the RTV, which turned left towards Shastri Park and intercepted it at the Red light signal, Shastri park. Enquiry was made from its driver who revealed his name as Ram Bilas. On enquiry, the driver confided that the staff stationed at iron bridge had asked him to pay Rs.1000/- as entry money for the month but he told them that the same would be paid by the RTV owner Gajender Singh. The driver was advised by the PRG team to call his owner and meet PRG outside Shastri Park Metro Station. At about 11.15AM, a motorcycle came and its rider approached PRG team and introduced himself as Gajender Singh, owner of the RTV number DL-IV-7941. According to his driver, the traffic staff deployed at eastern side of old iron bridge had asked for Rs.1000/- as entry money. The PRG team asked the owner of the RTV to ply the RTV normally and if the same was stopped by the traffic staff and entry money was demanded again, he should negotiate and pay it. Accordingly, the RTV plied from Yamuna bazaar towards Shahdara on old iron bridge and PRG team followed the same. It was again stopped by the traffic staff deployed at the road side immediately after coming out of the eastern edge of old iron bridge at about 12.45 PM. The PRG team positioned itself on GT road near the fruit vendor at about a distance of 100 meters ahead of the place where the RTV was stopped by traffic staff and started watching the activities of traffic staff. They could observe that both the constables deployed at the point, in the presence of Head Constable, started negotiation with Gajender Singh, the owner of RTV. After some time, one of the constables moved away and the other constable continued talking to Shri Gajender. Ultimately Shri Gajender took out something from his shirt pocket and handed over the same to constable talking to him and returned to his RTV and resumed onward journey. The RTV was intercepted underneath the metro bridge on GT road and enquiry was made from Gajender Singh. Mr. Gajender Singh informed the PRG team that he was the owner of RTV No.DL-IV-7941 and was plying his RTV on route No.F-250 from Loni No. 2 to Jheel via Pushta Shastri Park and whenever needed, he himself also used to drive the RTV. He could reveal that the two constables who signaled to stop RTV were Sunil Kumar (Applicant) and Ajay Sharma. Ajay Sharma asked him about the entry money and said that it was 18th of the month and money had not been paid. Ajay Sharma demanded Rs.1000/- as entry money and said that anything less than that would not be accepted. After negotiations, Ct. Ajay Sharma agreed to accept a sum of Rs.500/- and asked Ct. Sunil (applicant) to collect the same and went away to one side. According to Shri Gajender Singh, he requested the applicant to accept Rs.200/- only at the moment and gave an assurance to pay the remaining amount later on. He finally gave two notes of Rs.100/- denomination each (total Rs.200/-) to Ct.Sunil (applicant) and returned to his RTV. Shri Gajinder Singh, owner of the vehicle was brought back at the spot where Rs.200/- was taken from him as entry money. Seeing the PRG team coming towards them alongwith the owner of RTV, the applicant fled away from the spot on a silver colour M/cycle towards Gandhi Nagar even taking wrong side of the road. The other constable Ajay Sharma was identified by Mr. Gajender Singh, the Constable who had first demanded Rs.1000/- from him and later asked to Constable Sunil to accept Rs.500/-. The owner of the vehicle also identified HC Iqbal Hussain who was standing under the bridge at the time when the constables Ajay and Sunil had demanded entry money of Rs.1000/- and accepted Rs.200/- from him. The PRG team enquired about the name and numbers of the constables from the Head Constable who revealed their names as Ct.Sunil Kumar (applicant) and Ct. Ajay Sharma, No.3369/T.
3. The DE was marked to DE cell and the same was conducted by Shri Radhey Shyam, ACP/DE cell who concluded that the charge of indulging in malpractices by demanding and accepting of Rs.200/- illegally in the form of entry money from the owner of vehicle No.DL-IV-7941 was found proved against the applicant and constable Ajay Sharma. A copy of findings of the Enquiry Officer was served upon both the applicant and Constable Ajay Sharma vide U.O.No.521/HAP/4th Bn.DAP dated 25.02.2009 with a direction to submit their representation against the same within a period of 15 days. The delinquents, including the applicant, were also issued show cause as to why their suspension period should not be decided as period not spent on duty. Both the delinquents submitted joint representation on 24.03.2009. The same was considered. The delinquents were also given the personal hearing in OR on 31.03.2009 and punishment of forfeiture of two years approved service was imposed upon both of them. The appeal preferred by both the delinquents against the punishment order of forfeiture of two years approved service permanently was considered and rejected by the appellate authority in terms of order No.711-14/P.Sec/Spl.C.P (AP) dated 27.11.2009 on merits of the case. Challenging the aforementioned order, the applicant filed OA No. 2074/2010 before this Tribunal and sought issuance of direction to respondents to treat the period of suspension as on duty for all intents and purposes, which was dismissed in terms of the order dated 28.07.2011. The aforementioned order was challenged before Honble Delhi High Court by way of WP (C) No. 5847/2012. The writ petition was disposed of in terms of order dated 5.04.2013. For easy reference, the order is extracted hereinbelow:-
1. Since we are remanding the matter to the Tribunal, we do not discuss the merits of the rival versions.
2. We give our reasons for the matter to be remanded.
3. The statement of allegations against the petitioner and co-delinquent Ct.Ajay Kumar was of illegally extracting money while on duty at Shahdara traffic circle from owners of motor vehicles. Pertaining to motor vehicle No.DI-IV-7941, indictment was of illegally extracting Rs.200/- from the driver of the vehicle.
4. PW 1 and PW 3 examined at the inquiry petitioner and co-delinquent on duty and suffice would it be to state their evidence simply established that petitioner and co-delinquent were on duty at the place alleged as per the indictment.
5. Inspector Dinesh Keshav (PW-2) and Inspector Hanuman Dan (PW 4) deposed about the indictment, but not with respect to being witnesses to actual exchange of money. As per them, they were told by the driver and the owner of the vehicle that money was extracted.
6. Gajender Singh, PW-5 owner of the vehicle turned hostile and did not support the case of the prosecution, but admitted his signatures on Ex.PW-5/B, the alleged statement made by him and as recorded by Sub Inspector Pankaj Malik, not examined at the Inquiry.
7. DW-1 HC Iqbal Hussain deposed that he was posted at Shahdara traffic circle and was present at the place where the alleged extortion took place along with the petitioner and Ct.Ajay Kumar. He deposed that two guests of Ct.Ajay Kumar came and the petitioner went to bring food. He deposed that some officers of PRG came to the place and asked him about the staff. He replied that one of them have gone to take gone to take tea and the other to bring food. Presumably, the person who had gone to take tea was Ct. Ajay Kumar.
8. DW-2 Rajesh Rawat has deposed similar to DW-1 pertaining to Ct. Ajay Kumar not being present at the place alleged. DW-3 Sanjay Kumar has deposed to corroborate DW-2.
9. We note that neither defence witnesses have been cross-examined.
10. Vide impugned decision dated July 28, 2011, the Tribunal has cursorily summarized the indictment and has briefly referred to the testimonies of PW-2 and PW-4. We find no discussion in the impugned decision to the defence witnesses. We find no discussion in the impugned decision with respect to the evidentiary worth of Ex.PW-5/A keeping in view the fact that the maker thereof had not supported its contents. The Tribunal has not discussed the hearsay nature of the testimonies of PW-2 and PW-4 in so far it related to facts allegedly told to them by the driver and owner of the vehicle:
11. We do not want to comment upon the incriminating worth of evidence at a domestic inquiry for the reason this would prejudice either party.
12. We would simply highlight that it is the duty of the Tribunal to refer to the evidence and thereupon opine whether there is any incriminating evidence. Whatever is find to be incriminating by the Tribunal has to be highlighted. Its creditworthiness has to be discussed with reference to the standard of proof at domestic inquiry. More often than once we are finding the summarily written decisions from the Tribunal require in depth analysis at the writ level. It is the duty of first For a of adjudication to identify the factual aspects of the matter and not leave it to the writ court.
13. Accordingly, the writ petition stands disposed of setting aside the impugned order dated July 28,2011, but limited to the writ petitioner Ct. Sunil Kumar for the reason it is only he who has challenged the same. Co-delinquent Ct.Ajay Kumar, whose OA No.749/2010 has been dismissed by the impugned judgment has not appreciated this Court
14. Accordingly, only OA No.2074/2010, filed by the present petitioner is restored for adjudication on merits afresh.
15. Parties shall appear before the Registrar of the Tribunal on May 01, 2013, who shall thereafter list the Original Application before the Roster Bench.
16. Parties need not be served with any notice by the Tribunal since the date before the Registrar of the Tribunal is being fixed in their presence.
17. The Registrar of the Tribunal would ensure that the matter is shown in the cause list on May 01, 2013 and for which we direct the Registry of this Court to forthwith send a copy of this decision to the Registrar of the Central Administrative Tribunal.
4. Shri Sourabh Ahuja, learned counsel for the applicant contended:-
(i) There was no incriminating evidence available on record to prove the charges on the deposition made by PW-5, DW 4 and DW -1 during the course of enquiry.
(ii) This Tribunal being the Court of first instance, needs to appreciate the evidence available on record.
(iii) In the absence of prior approval of Additional Commissioner of Police as required under Rule 15 (2) of Delhi Police (Punishment and Appeal) Rules, 1980, the disciplinary proceedings initiated against the applicant were vitiated.
(iv) The respondents concocted false charges against the applicant.
(v) The applicant had not fled from the spot when the PRG surveillance was conducted. He had taken oral permission from Head Constable Iqbal Hussain ( DW-1) to have a lunch at his residence.
(vi) The Enquiry officer arrived at its conclusion in disregard of the evidence available on record. The charges against the applicant are held proved on the basis of conjectures and surmises.
(vii) As has been viewed by Honble Supreme Court in the case of Ram Prakash Arora Vs. State of Punjab (AIR 1973 SC 498), the officers who conducted the raid are interested and partisan witnesses because they were concerned in the success of trap and their evidence must be treated in the same way as that of any interested witness and the deciding authority must look for independent corroboration before holding the accused officer guilty. No credence could have been given to the statement of members of PRG team as they were interested witnesses.
(viii) The disciplinary authority could have relied upon the statement made by PW-5 during the preliminary enquiry.
(ix) While deciding the appeal of the applicant, the appellate authority did not apply its mind.
He also placed reliance on the following judgments of Honble Supreme Court/High Court:-
Central Bank of India Ltd., New Delhi Vs Shri Prakash Chand Jain (1969 ) 1 SCR 735) Nand Kishore Prasad Vs. State of Bihar and Ors (1978 (3) SCR 708 Ram Prakash Arora Vs The State of Punjab (AIR 1973 SC 498) GNCT of Delhi and ors Vs. ASI Rambir Singh and Anr ( WP ( C ) No. 7680/2010) Hari Singh Vs. Govt. of NCT of Delhi and Ors ( WP ( C ) 6503/2008 decided on 5.09.2008) A.E.G. Carapiet Vs. A.Y.Derderian ( AIR 1961 Calcutta 359)
5. On the other hand, Ms. Rashmi Chopra, counsel for respondents submitted:-
(i) As has been mentioned in the disciplinary enquiry order dated 10.09.2007, the prior approval of Joint Commissioner of Police/Traffic, Delhi as required under Rule 15 (2) of the Delhi Police (Punishment and Appeal) Rules, 1980 had been taken for initiating regular departmental enquiry against the applicant. The Enquiry Officer conducted the enquiry as per norms, i.e. according to Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980 in a just, fair and reasonable manner. The fault of the applicant was proved in DE on the basis of incriminatory evidence and conclusion arrived at is not based on surmises and conjectures as alleged in the Original Application.
(ii) The Enquiry Officer had recorded the statement of all PWs in the presence of applicant by giving him ample opportunity for cross-examination.
(iii) In the disciplinary proceedings, the charges can be proved on the basis of preponderance of probability and the proof beyond reasonable doubt is not required.
6. Learned counsel for the applicant submitted with aplomb that being the Court of first instance, this Tribunal needs to enter into the correctness of the charges and re-appreciate the evidence. To buttress his argument, he referred to para 12 of the order of Honble High Court dated 5.04.2013 whereby the order passed by this Tribunal in OA No.2074/2010 has been reversed and the matter is remitted back to us for fresh adjudication. The stand taken by the counsel for the applicant is taken very often in most of the similar cases, thus need to be addressed to at length. The disciplinary proceedings against all the officers and men of subordinate ranks i.e, Constable to Inspector in Delhi Police is regulated in terms of the Delhi Police (Punishment and Appeal) Rules, 1980 made by the Administrator of Delhi in exercise of the powers conferred by Section 147 (1) and (2) of the Delhi Police Act, 1971. The procedure in departmental enquiry is laid down in Rule 16 of the said Rules. Rule 16 (iii) provides for examination of the witnesses directly and in the presence of accused who is required to be given an opportunity to take notes of their statements and cross-examine them. The said rule, however, empowers the enquiry officer 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 police officer senior in rank to the accused officer, by Magistrate and is signed by the person making it and has been recorded by such officer during an investigation. When the evidence in support of the allegations is recorded, the Enquiry officer decides regarding framing a formal charge or charges in writing against the accused or to discharge him. On framing of charges, the accused officer is required to state the defence witnesses whom he wishes to call and may be given time to prepare a list of witnesses together with summary of the facts he wishes to testify and to produce at his expense. After recording of defence witnesses, submissions of final statement of the charged officer and examination of court witness, if any, the enquiry officer proceeds to record his finding and forward the case with his findings on each of the charges together with the reasons therefor, to the officer having the necessary powers to pass the order of acquittal or punishment. After following the due procedure, disciplinary authority passes the order of penalty. Rule 25 of the aforementioned rule provides for appeal against the order of disciplinary authority and rule 24 provides for disposal of the appeal. In terms of Rule 25-A, a Government servant whose appeal is rejected, may file a revision within one month from the date of receipt of copy of the order by him to the authority superior to the appellate authority on grounds of material irregularity or illegality in the proceedings provided that no application for revision of an order of the Lt. Governor lies. Rule 25-B of the Rules provide for review of the penalty order.
7. In sum and substance, the Delhi Police (Punishment and Appeal) Rules are self sufficient to regulate disciplinary action against the officers and men of subordinate rank i.e., Constable to Inspector. The powers of different authorities, i.e, Enquiry Officer, Disciplinary Authority, Appellate Authority, Revisional Authority and Reviewing Authority are specifically demarcated and described. In other words, there are sufficient provisions made in the rules for appreciation and re-appreciation of the evidence. Since quite often, the parties refer to appreciation of evidence in many context, like in the present case, the contents of para 12 of the order passed by Honble High Court are referred to as a mandate to this Tribunal to appreciate the evidence, we need to describe what the appreciation of evidence is. Generally, it is very difficult to find a witness who has not made any embellishment or exaggeration, therefore, Court would be justified in separating the chaff from the grain and then act upon the grain. Such exercise of separating may be called appreciation of evidence. Where the evidence consists of only chaff, the question of separating the chaff from the grain would not arise. The Court has to decide on the basis of the evidence adduced before it by the party whether the guilt of the accused is made out beyond reasonable doubt and in a civil case, whether on preponderance of probability, the plaintiff has made out a case for relief. The governing principle is known as that of standard of proof. Appreciation of evidence is a very difficult and delicate task. A testimony without a fringe or embroidery of untruth is rare. The Court can reject it only when it is tainted to the core, i.e. where falsehood and truth are inextricably interweaved. If it is not so, the Court must separate the grain from the chaff. The Courts needs to judge the evidence before them by applying the test of human probability. Law does not make any distinction in the matter of appreciation of evidence in a case under TADA or under normal criminal law. Witnesses are expected to depose what they have seen and heard and not to draw inference from what they saw. Witnesses can be believed in part and disbelieved in part. Evidence may be accepted partially or in the whole and where there are certain infirmities, the evidence would be of restrictive use. In a criminal trial, the whole of the statement in chief and cross-examination has to be read together to find out the truth therefrom.
8. In order to comprehend the term appreciation of evidence, we may refer to the various stages in a criminal case, viz:-
(i) First information Report;
Inquest report;
Evidentiary value of statement recorded under Sections 161 and 164 of Criminal Procedure Code;
Confession;
Extra judicial confession;
Information received and documents recovered;
Dying declaration;
Case diary;
Common intention and common object;
Conspiracy;
Test identification parade;
Expert Opinion;
D.N.A. test;
Circumstantial evidence;
Conduct of witness and conduct of accused;
Non explanation of injury;
Witnesses. The appreciation of evidence is the heart and soul of the dispensation of justice delivery system in criminal law. Criminal cases involve life and death question of a citizen and the destiny of the citizens are to be decided by carefully analyzing and scrutinizing the evidence adduced by the prosecution. FIR is not an encyclopedia. It is only to set the law in motion. It need not be elaborate but should contain necessary allegation to constitute cognizable offences. It is not a substantial piece of evidence. It can only be used for corroboration or contradicting its maker. It cannot be used to corroborate or contradict other witnesses. The inquest report is merely to ascertain whether a person has died under suspicious circumstances or unnatural death and if so, what is the apparent cause of death. Details of the attack on the deceased are not necessary to be mentioned. The scope and object of the inquest report has been elaborately discussed in Radha Mohan Singh Vs. State of UP (2006) 2 SCC 450). The statement recorded under Section 161 Cr.P.C. shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162 (1). A confession must either be an express acknowledgement of guilt of the offence charged, certain and complete in itself, or it must admit substantially the facts which constitute the offence. Confession can be treated as relevant against the person making the confession unless it appears to the Court that it is rendered irrelevant on account of any of the factors, namely, threat, inducements, promises etc. mentioned therein. Confession of accused has to be taken as a whole and the exculpatory part cannot be thrown aside. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya vs. Emperor (AIR 1947 PC 67) in the following words:-
It is fallacious to treat the fact discovered within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to the fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce the concealed knife from the roof of my house does not lead to discovery of knife: knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which stabbed A, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. The various requirements of relevance of information received and document recovered can be appreciated with reference to the following conditions:-
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accuseds own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
There is no bar in basing conviction solely on the Dying Declaration but the same should be tested about it being voluntary and truthful. A person can be convicted for his vicarious liability if he is found to be a member of the unlawful assembly sharing the common object in spite of the fact whether he had actually participated in the commission of offence. Conspiracy must be conceived and hatched in complete secrecy and it is impossible or very rare to get direct evidence. It is also well settled that it is not necessary that each member involved in conspiracy must know all the details of conspiracy. Identification of accused by the witnesses in the identification parade is not considered safe to be relied upon. The evidence of an expert is not considered as conclusive. In the event of there being conflict between medial and ocular testimony, the ocular testimony is considered as preferable (State of Punjab Vs. Hakam Singh) (2005 (7) SCC 408). The evidence of an expert is considered a weak type of evidence and the Courts do not generally consider it as opening and conclusive proof and, therefore, it is not safe to rely upon the same without seeking independent and reliable corroboration (Mangan Bihari Lal Vs. State of Punjab ( AIR 1977 SC 1091). Circumstantial evidence can be relied upon, subject to fulfillment of the following conditions:
1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established;
II. All the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one subject to be proved;
III. The circumstances should be of a conclusive nature;
IV. The chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.
Mere consistent version of the witness is not considered sufficient to show the truthfulness and the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of prosecution doubtful or incredible, or if their presence at the place of occurrence as eye-witness is suspect, the Court may reject their evidence. The conduct of the accused would be relevant under Section 8 of the Evidence Act if his immediate reactions to the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there are immediately thereafter words or gestures reliably established (Maha Singh Vs. State (Delhi Administration) (AIR 1976 SC 449). An inferential conclusion without any evidence to show participation of the accused cannot be sustained (Suresh @ Hakla Vs. State of Haryana ) (2008 (3) Supreme 182). It is well settled that the Court can place reliance on a solitary witness provided the same inspires confidence. If such evidence of a single witness is clear, cogent and consistent and there is no other infirmity, there is absolutely no impediment in placing reliance on such evidence and the Court need not seek for corroboration. The evidence of interested witnesses cannot be thrown out and the only requirement for the Court is to consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility, then the Court can disbelieve the same (Mallanna Vs. State of Karnataka reported in ( 2007) 8 SCC 523).
9. In Kulesh Mondal Vs. State of West Bengal ( 2007) 8 SCC 578), the Honble Supreme Court has held that:-
"10. We may also observe that the ground that the (witnesses being close relatives and consequently being partisan witnesses,) should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh V. State of Punjab (AIR 1953 SC 364) in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose. It was observed: ( AIR p.366 para 25) '25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses required corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fact that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to dispel in Rameshwar V. State of Rajasthan (AIR 1952 SC 54). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.' 10 Again in Masalti V. State of U.P. (AIR 1965 SC 202), Honble Supreme Court observed:-
14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence ; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
The witnesses cannot be expected to state the scenario with surgical precision. In State of A.P. Vs. Kandagopaludu (2005) 13 SCC 116) it was inter- alia observed as under:-
We have been taken through the evidence of PWs 1, 2 and 3 before whom extra-judicial confession has been made by the accused. The testimony of PWs 1, 2 and 3 is consistent. The learned counsel for the respondent pointed out that in the evidence of PWs 1 and 2 there is contradiction that the accused did not state before them that he came seeking protection from them. In our view, this discrepancy cannot be termed as a contradiction which would be fatal to the prosecution case. Every discrepancy in the statement of a witness cannot be treated as fatal to the prosecution case. A discrepancy which is not fatal to the prosecution does not create any infirmity. The incident had taken place on 24-1-1992 and PW 2 was examined on 22-1-1996 after almost four years. Human memories are apt to blur with the passage of time. After lapse of almost four years, it cannot be expected that a witness can depose with mathematical precision.
11. In B.K. Channappa vs. State of Karnataka [2006 (12) SCC 57] it was inter alia observed as follows:
We have independently scrutinized the evidence of the material witnesses in the teeth of the rival contentions of the parties. On reappraisal and scrutiny of the evidence of the injured witnesses Shekharappa (PW 2), B.G. Shivamurthaiah (PW3) and B.G. Prakashaiah (PW 4), they have fully established the case of the prosecution against A-2, A-3, A-17,A-19and A-20, although there were certain discrepancies in their testimony and in comparison to the versions of Prosecution witnesses, the eye-witnesses, in regard to the weapons of the offence individually used by A-1, A-3, A-17, A-19 and A-20 for inflicting injury on the person of each of the injured witnesses as also on the person of the deceased.
The discrepancies, as pointed out by the learned counsel for the appellants, are minor and insignificant. The occurrence took place on 5-7-1995 and the witnesses were examined in the court after about a gap of almost five years. The evidence on record further shows that the injured witnesses had been subjected to lengthy and searching cross- examination and in such type of cross- examination, some improvements, contradictions, and omissions are bound to occur in their evidence, which cannot be treated as very serious, vital and significant so as to disbelieve and discard the substratum of the prosecution case. The evidence of the injured witnesses and other eye witnesses has been rightly re appreciated and accepted by the High Court and we find no cogent and sound reason to differ from the well- reasoned judgment upholding the order of the trial Court. There is, therefore, no merit in the argument of the learned counsel for the appellants that the evidence of the injured witnesses and other eyewitnesses should be labelled as the evidence of the interested witnesses. On the other hand, we find that the evidence of all the eye witnesses including injured persons is quite natural, convincing and trustworthy. There is no material on record from which an inference can be drawn that the material witnesses have implicated the appellants. Evidence cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him but can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. The inimical witness cannot be considered un-reliable in certain circumstances, particularly when such witness is victim or injured of the offence. Thus the consideration of admissible/ inadmissible, relevant/irrelevant, trustworthy/untrustworthy and reliable/unreliable analysis of circumstances etc. are considered as appreciation of evidence. The appreciation is much more indigent in criminal cases than in civil cases. As has been noted hereinabove, in a criminal case, the guilt of the accused needs to be established beyond reasonable doubt and in civil case, relief can be granted on preponderance of probability. Broadly speaking, civil procedure consists of rules by which courts conduct civil trials. Civil trials concern the judicial resolution of claims by one individual or group against another and are to be distinguished from criminal trials, in which the state prosecutes an individual for violation of criminal law. The disciplinary proceedings against a government employee are often called quasi judicial/ quasi criminal. These proceedings are so called because the complex procedure followed in the Court in adjudication of civil and criminal matters are not applicable to these proceedings. The proceedings are considered quasi-judicial in nature because the outcome of the same results in imposition of penalty, which entails civil consequences only. In proceedings before the Tribunal or in departmental proceedings, strict rule of evidence may not apply because usually the inquiring officer is a person not acquiesced with the rule of evidence. In such proceedings, the principle of natural justice is observed.
12. In High Court of Judicature at Bombay through its Registrar Vs. Uday Singh V/s Ganpatrao Naik Nim Balkar and Ors ( JT 1997 (5) 298)/ AIR 1997 SC 2286, 1997 (5) SCC 129), the Honble Supreme Court categorically ruled that the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. Preponderance of probability and some material on record would be necessary to reach to a conclusion whether or not the delinquent has committed misconduct. Relevant excerpts of the judgment read as under:-
12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the Disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see what there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is; whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved ? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statement to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises; whether their evidence is acceptable or not? In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When the evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified..
From the aforementioned it is clear that in a disciplinary enquiry, the applicant could not have expected the Disciplinary authority to satisfy itself regarding correctness of the charges with same standard of evidence as is required in a criminal trial. It is misconception that this Tribunal being Court of first instance needs to appreciate the evidence like the enquiry officer in a departmental enquiry or the trial Court in a criminal trial. Even the civil Court considering a suit for declaration against the penalty order may have to determine the civil rights of the party with reference to the probability only. It may not be open even to the Civil Court to assume the role of enquiry officer and to record the evidence or to re-appreciate the evidence regarding correctness of the charges. In the departmental enquiry matter, the civil Court would also examine whether:-
(i) The rules of procedure are followed The principle of natural justice is adhered to or not.
The conclusion arrived at by the EO is founded on material on record or not The assessment of the evidence by Enquiry Officer is proper or not.
There were sufficient evidences available before the enquiry officer/disciplinary authority to have the charges proved.
There were sufficient materials available on record to have the charges proved or not.
Normally such factors are looked into by this Tribunal also, may be by not following the strict procedure laid down in the Code of Civil Procedure. In Rai Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh and Others (JT 1997 (3) 717, the Honble Supreme Court viewed that the High Court under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Paras 5 and 6 of the judgment read as under:-
5. Having regard to the respective contentions, the only question that arises for consideration is : whether the conclusion reached by the High Court is correct in law? It is not in dispute that the procedural steps under the disciplinary rules, required by the appellant, have been followed. After the enquiry was concluded and report was submitted, the disciplinary authority had given him a show-cause notice to the proposed punishment and the respondent also submitted his explanation. After consideration of the report and the reply, the punishment of dismissal was imposed by the disciplinary authority against which an appeal was filed. At that stage, he made an application for summoning the witnesses afresh. That application was dismissed by the appellate authority. That order also was allowed to become final. The appeal was dismissed by the Board.
6. Under these circumstances, the question arises : whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence as examined and to record a finding in that behalf? The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, on such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a Court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by the disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate Court, is wholly illegal and cannot be sustained. In Union of India and Another Vs. B.C.Chaturvedi, the Honble Supreme Court viewed as under:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to re appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
In terms of the order dated 4.05.2013, their Lordships of the Honble High Court expected this Tribunal to refer to the evidence and thereupon opine whether there is any incriminating evidence and to highlight the same. In para 12 of the order, their Lordships specifically indicated that the creditworthiness of the incriminating evidence has to be discussed with reference to standard of proof in a domestic enquiry. In other words, the Honble High Court has only viewed that the Tribunal should satisfy itself regarding the availability of material/incriminating evidence on record against the charged officer while examining the correctness of the order passed by the authority in disciplinary proceedings.
13. Now we may proceed to see whether there is incriminating material against the applicant sufficient enough to find the charges against him as proved. HC Rajpal Singh examined as PW-1 in the enquiry proceeding deposed that on 18.07.2007, Constable Sunil No.1658/T was on duty at iron bridge (Lohai ka pul), Shahdara. PW-2 supported the charges and specifically stated that PW-5, Gajender Singh took out some papers appearing like currency notes from his pocket and handed over to one of the two constables. In his cross examination in answer to question No.14, he confirmed the aforementioned step. PW-4 also specifically deposed during the enquiry that Gajender Singh, owner of RTV informed the PRG team that the traffic staff demanded Rs.1000/- from his driver and he could witness the spotting of RTV by the traffic staff. The said witness could also confirm that owner of RTV informed that traffic staff demanded Rs.1000/-, the amount was negotiated as Rs.500 and finally Rs.200 was paid to the traffic staff. PW-5 resiled from his earlier statement and gave a different version. HC Iqbal Hussan, though examine as DW, confirmed the fact that on 18.07.2007, he was on duty at Old Yamuna bridge (lohai ka pul) between 8AM morning to 9.00PM along with the applicant and Constable Ajay Kumar. The DW-2 narrated that on 18.07.2007 at about 12/12.30, he was going to take petrol for Government vehicle and when reached at old Yamuna bridge ( lohai ka pul), he met Ajay and on his request went to Metro Station to take tea. Even the said DW also confirmed the fact of duty of the applicant at the spot. From the statement of witnesses, it is factually established that the applicant was on duty at the spot mentioned in the charge sheet. PWs 2 and 4 supported the charges. PW 5 also did not deny his meeting with PRG team. There is no explanation of the fact either by the said PW or by the applicant that why the said witness could not report the interception by the PRG team to the superior authorities. In the discussion of evidence by the enquiry officer, he could conclude that PWs 2 and 4 supported the charge and PW 1 and 3 authenticated the posting of both the constables in traffic unit near iron bridge Shahdara. It is the finding of enquiry officer that DW-1 to 4 did not support the charge. Of course, such finding of the enquiry officer is absurd. Defence witnesses led by the applicant were examined not to support the charge but to support the defence of the applicant. Nevertheless, the enquiry officer viewed that the deposition of DW-1 was self contradictory as he stated that both the defaulter constables were not present at the time of PRG surveillance. The Enquiry Officer was satisfied that both the defaulter constables were detailed for duty with HC Iqbal Hussain No. 393/T near old iron bridge where RTV bearing No. DL-IV-7941 driven by DW 4 reached. It is not gainsaid that the standard of evidence available on record in the disciplinary enquiry was not such as could prove the allegation against the applicant beyond reasonable doubt. It is also worth mentioning that in the summary of allegation, it is alleged that seeing the PRG team coming towards them along with the owner of RTV, one Constable who was identified by Shri Gajender Singh as Ct. Sunil Kumar (Applicant) and the one who had taken Rs.200/- as entry money from him, fled from the spot in a silver colour motor cycle towards Gandhi Nagar taking wrong side of the road. The DW-1 supported the said factual position by deposing that Constable Sunil Kumar (applicant) proceeded to take food on a silver colour motor cycle. The fact of absence/missing of the applicant and the other Constable from the spot of duty would sufficiently lead to inference that the two Constables, including the applicant were involved in the misconduct. Had it not been so, there could be no reason for both of them to remain absent from duty at the same time. It cannot be a co-incident that at the same point of time, one of the Constables had to entertain his guests and the other one had to go for lunch. Had the applicant been innocent, he could have faced the PRG team with confidence. When the DW-2 narrated the apparent embellished story, he also accepted the factual position that the PRG team had visited the site. DW-3 reiterated the story narrated by DW-2. Indisputably, both DW-2 and DW-3 are drivers in Karkardooma Court. It is not understood how two drivers were required to go together for filling of petrol in single Government vehicle. The vehicle number is not mentioned by either of the defence witnesses. DW-4 i.e. the diver of RTV also confirmed the factual position narrated in summary of allegation that his vehicle was stopped by the Police Team (PRG). In other words, he supported the narration of incidence mentioned in the summary of allegation and denied only the fact of demanding money by stopping the vehicle by the charged official and demand of money. In other words, the DW-4, i.e. driver of the vehicle accepted the factual position that it was he who had been first intercepted by the PRG team and the said team had obtained the signature of the owner of the vehicle. The owner of the vehicle, who was examined as PW-5 had resiled from his earlier stand and deposed that the PRG team directly addressed him. From the statement of PW-5 who resiled from his earlier stand, it appears that the PRG team directly addressed him. From the statement of DW-4, it appears that the PRG team first addressed him and it was he who could point towards the owner of the vehicle. There is no reliable resemblance in the story narrated by PW-5 and DW-4. As has been noticed hereinabove, once the PW-4 deposed that the applicant fled on his motor cycle and the said fact was also confirmed by DW-1, it is established that the applicant had fled only after seeing the PRG team. Had he been innocent, on arrival of PRG team, he could have ensured his presence on duty at least till departure of the PRG team. It is also not understood that when the two drivers posted in Karkardooma Court preferred to take another Constable, namely Ajay Kumar Sharma No.3369/T for tea, how the DW-1 who was HC, did not accompany them. We are satisfied that there was sufficient circumstantial evidence to hold the charges against the applicant proved. Nevertheless, in view of the factual circumstances, there was preponderance of probability that the charges alleged against the applicant were correct. Probably it was for this reason only that the disciplinary authority did not impose very severe penalty upon the applicant and only imposed the penalty of forfeiture of two years approved service upon him. The disciplinary authority passed a detailed, speaking and reasoned order while imposing the aforementioned penalty. Relevant excerpts of the order passed by the disciplinary authority read as under:-
This is the final order of joint departmental enquiry initiated against Ct. Ajay Sharma, 3369/T, 3100/DAP (PIS No.28910312) and Ct.Sunil, 1658/T, 3758/DAP (PIS No.28901598) ( hereinafter called the defaulters) by DCP/Traffic (NDR) vide No XVI/287/07/11580-11594/HAP-T (D-1/NDR) dated 10.9.07, on the allegations that on 18.07.07 PRG team was formed for surveillance in Shahdara Traffic circle and both the above mentioned constables, detailed for duty at SHD-7 i.e., Old Iron Bridge, were found indulging in malpractices by demanding and accepting Rs.200/- illegally in the form of Entry Money from owner of vehicle number DL-IV-7941, during PRG surveillance.
On 18.7.07, a team comprising of Inspr. Dinesh Keshav TI/PRG, Inspr Hanuman Dan, SI Shailendra Singh and SI Pankaj Malik of PRG cell was formed on the directions of ACP/T-PRG. The PRG team started moving in a private car, arranged by Inspr. Dinesh Keshav, TI/PRG, in the area of North-East Distt., and checked the traffic staff at various points discreetly. At about 10.45 AM, the PRG team reached near eastern side of old Iron Bridge in the area of Shahdara Traffic Circle and observed that an RTC bearing registration number DL=IV-7941 was parked on the left side of GT Road after crossing the bridge, n the carriage way going towards Shahdara and one head constable along with two constables were present on the eastern end of the old iron bridge and were negotiating something with a person, presumably the driver of the above RTV. The PRG team positioned itself outside Shastri Park Metro Station parking, some distance ahead of the above RTV and started watching the activities of traffic staff. After some time the driver of the above RTV was let off by the traffic staff. The PRG team followed the above RTV, which turned left towards Shastri Park and intercepted it at Red Light Signal, Shastri Park. Enquiries were made from its driver who revealed his name as Ram Vilas.
On enquiry, the driver confided that the staff stationed at iron bridge had asked him to pay Rs.1000/- as Entry Money for this month but he told them that the same would be paid by the RTV owner Gajender Singh. The driver was advised by PRG team to call his owner and meet PRG team at outside Shastri Park Metro Station.
At about 11.15 AM a motorcycle rider came and approached the PRG team and introduced himself as Gajender Singh, owner of the RTV number DL-IV-7941. He apprised that he was informed by his driver that the traffic staff deployed at eastern side of Old iron bridge had asked for Rs.1000/- as Entry Money.
The PRG team asked the owner of the RTV to ply the RTV normally and if the same is stopped by the traffic staff and Entry Money is demanded again, he should negotiate and pay it. Accordingly, as planned the RTV was plied from Yamuna Bazar side towards Shahdara on old iron bridge and PRG team followed the same at a safe distance of about 100 meters in its vehicle.
The RTV was stopped by the same traffic staff deployed at the road side immediately after coming out of the eastern edge of old iron bridge at about 12.45 PM. The PRG team positioned itself on GT Road near the fruit rehris at about a distance of 100 meters ahead of the place where the RTV was stopped by traffic staff and started watching the activities of traffic staff. It was observed that both the constables deployed at the point in the presence of the Head Constable were negotiating something with Gajender, owner of the RTV. After some time, one of the constables went to one side and the other constable continued talking to Gajender. Ultimately Gajender took out something from his shirts pocket and handed over the same to the constable talking to him and returned to his RTV and resumed its onward journey. The RTV was intercepted underneath the Metro bridge on GT rod and enquiries were made from Gajender.
Gajender Singh s/0 Shri Sukhbir Singh r/o A-6/36, Bhajan Pura, Delhi-53 apprised that he is the owner of RTV No.DL-IV-7941 and plying on Route No.F-250 from Loni No.2 to Jeel via Pushta Shastri Park and whenever needed, he himself drives his RTV. On 18.7.2007, as planned he had plied his RTV from Yamuna Bazar side to Shahdara on old iron bridge. At about 12.45 PM when he reached the eastern end of the iron bridge, two traffic constables signaled to stop RTV. He stopped his RTV on the left side of the road after coming out of the old iron bridge, and went towards them and asked a constable whose name plate read as Sunil Kumar about the matter. The traffic constable asked for Entry Money and also asked him to speak to other constable whose name plate read as Ajay Sharma. Ct. Ajay Sharma asked him about the Entry and said that it was 18th of the month and entry money has not been paid. Ct. Ajaj Sharma demanded Rs.1000/- as entry money and said that anything less then that would not be accepted. After negotiations, Ct. Ajay Sharma greed to accept a sum of Rs.500/- and asked Ct.Sunil to collect the same and went away to one side. Gajender Singh further told that he had also pleaded to Ct. Sunil and said that he has Rs.200/- only at the moment and would pay the rest amount later on. He finally gave to notes of Rs.100/- denomination each ( total Rs.200/-) to Ct. Sunil and returned to his RTV.
Sh.Gajender Singh, owner of the vehicle was brought back at the spot where Rs.200/- was taken from him as Entry Money. Seeing the PRG team coming towards them along with the owner of RTV, one constable who was identified by Gajender Singh as Ct. Sunil Kumar who had taken Rs.200/- as entry money from him, fled away from there on a silver colour M/Cycle towards Gandhi Nagar even taking wrong side of the road. The other constable identified by Gajender Singh as Ajay Sharma, who had first demanded Rs.1000/- from the owner of the vehicle and later on asked to give Rs.500/- to Ct. Sunil stopped a car and ran away in it. Gajender Singh also identified one HC Iqbal Hussain who was standing under the bridge at that time when the constables Ajay and Sunil had demanded entry money of Rs.1000/- and accepted Rs.200/- from him. The PRG team enquired about the name and numbers of the constables from the Head Constable who revealed their names as Ct. Sunil Kumar, 1658/T and Ct. Ajay Sharma No.3369/T. Photocopy of the R/C of the RTV duly signed by Gajender was obtained and his statement was also recorded.
The DE was marked to Shri Radhey Shyam, ACP/DE Cell who conducted the enquiry as per norms of Delhi Police (P&A) Rules, 1980 and submitted his findings concluding therein that the charge served upon the delinquents stands proved.
Tentatively agreeing with the finding of E.O a copy of the same was served upon both the delinquents on 03.03.09 and 14.03.09 vide this office U.O.No.521/HAP/4th Bn. DAP dated 25.02.09 as both the delinquents were transferred to this Bn. Both were directed to submit their representation in 15 days, if ay, and it was also asked as to why their suspension period be not decided as period not spent on duty.
Both the delinquents submitted their joint representation on 24.03.09 raising various pleas. I have perused the DE file, findings of E.O. statements of PWs/DWs, representation and other relevant record available on file. For the sake of justice, I have also heard the delinquents in OR on 31.03.09 in which they could not produce anything new whatever they had already mentioned in their written representation. I have gone through the written reply and found that the defaulters have advanced the following pleas in their defence.
The prima plea is that Shri Gajender Singh (PW-5) owner of RTV No.DL-IV-7941 has stated in his statement that neither the money was paid nor he met any police personnel. The members of PRG team had obtained his signatures on blank paper and later on recorded the statement at his own.
The plea put forth by the defaulters is not tenable. Resiling of drivers/owners in such cases is not a new theory. It is one of the old tactics of defaulters to escape punishment or hide their misconduct. PRG team, before submitting report, had recorded the statement of Gajender Singh and he had categorically stated the sequence of events in detail and put his signatures as a token of his concurrence. Hence the plea is not acceptable.
PRG team has neither heard the conversation regarding demand and acceptance of money nor witnesses the scene and has dragged them in a false case with some ulterior motives, as no recovery has been effect.
This pleas is also baseless. The defaulters have nowhere disclosed any concrete reason to establish ulterior motive on the part of members of PRG team. As far as hearing the conversation is concerned, the PRG team was stationed at a suitable distance and these conditions cannot be met out under the circumstances. Moreover, so far the practice being adopted for in-house vigilance over public staff, the whole exercise is based on observations and reporting unlike investigation of a criminal case where I.O. has to comply with provisions of Cr.P.C.
They were not present at the spot and E.O. has concluded on the basis of presumption & surmises by including extraneous material. The E.O. has also not recorded the statement of Sh. Ram Bilas, the driver of RTV. The plea has no weight. The E.O. while submitting his findings has also supplied sufficient evidences which are well enough to substantiate the charge. His findings is based on merits and not on assumptions as pointed out. The E.O. has recorded the statement of all witnesses and conducted the enquiry as per laid down procedure. As regards the statement of Ram Bilas, he has been produced by defaulters as DW and his version as well as the statements of other DWs have also been accounted for, before conclusion.
4. The PRG Team has used private car, instead of using Govt.vehicle and also not lodged any information in the daily diary. It has also not been disclosed from where funds are being arranged to run private vehicle.
The plea is irrelevant and has no concern with the instant case. Hence no comments. The defaulters have been found indulging in malpractices and accordingly they are being dealt with. It was not necessary to lodge information in the daily diary before proceeding for the sake of secrecy.
5. They were not present at spot and the entire story is concocted. Their past clean report is witness of their innocence.
The plea is not plausible. PW-1 HC Pal Singh 443/T has established the point of defaulters on the basis of record which cannot be ignored. As regards the question of clean record, it does not give a certificate of honesty forever.
On evaluation of entire record, it has become clear that the defaulters had indulged in malpractice and misused their official position by collecting money in such a manner. On seeing PRG team, they preferred to flee instead of staying at the point which abundantly establishes their ill intention. If they were right on their part, they should have stayed there, faced the questions of PRG team but they did not do so. Corruption is one of disgusting acts and it is the need of hour to uproots it to the extent possible, as it eats the vitals of departments and give wrong signal to the others who are serving the department with sincerity & loyalty. The enquiry officer has conducted the enquiry according to norms and proved the charge on merits and there is no reason to disagree with it. The defaulters have tarnished the image of department in the eyes of public by committing such reprehensible acts and it is necessary to punish them at least with major penalty to give a lesson.
On analyzing the totality of the case, I have reached the conclusion that the defaulters are guilty of the charge and they must be punished with major punishment as it will not only give them a lesson but shall also work as deterrent to curb such malpractices in future.
Therefore, I, B.K.Singh, DCP/4th Bn.DAP award the punishment forfeiture of two years approved service permanently upon both the defaulters entailing proportionate reduction in their pay. Their suspension period from 31.7.2007 to 11.10.2007 is also treated as period not spent on Duty for all intents & purposes.
Let a copy of this order be given to Ct.Ajay Sharma, 3369/T, 3100/DAP& Ct. Sunil, 1658/T, 3758/DAP free of cost. They can file an appeal against the order to the Addl. Commissioner of Police/AP, Delhi by affixing non-judicial stamp worth Rs.00.75 paisa, within 30 days of receipt of this order by enclosing a copy of this order, if they so desire. While concurring with the order of disciplinary authority, the appellate authority passed the following orders:-
This is an order in the appeals submitted by Const. Sunil Kumar, No.3758/DAP and Const.Ajay Kumar, No.3100/DAP (hereinafter called the appellants) against the punishment of forfeiture of two years approved service permanently awarded to them by DCP/4th Bn.DAP vide order No.776-820/HAP/4th Bn. DAP dated 08.04.2009.
The brief facts of the case are that a joint departmental enquiry was initiated against both the appellants on the allegations that while they were posted in Shahdara Traffic Circle and performing their duty at SHD-7 i.e. Old Iron Bridge, on 18.07.2007 during PRG surveillance, they were found indulging in malpractices by demanding and accepting.200/-illegally in the form of Entry Money from owner of vehicle number DL-IV-7941.
On 18.07.2007, a team comprising of Inspr.,Dinesh Keshav, TI/PRG, Inspr.Hanuman Dan, SI Shalindra Singh and SI Pankaj Malik of PRG Cell was formed on the directions of ACP/T-PRG. The PRG team started moving in a private car, arranged by Inspr Dinesh Keshav, TI/PRG, in the area of North East District and checked the traffic staff at various points discreetly. At about 10.45AM, the PRG team reached near Eastern side of Old Iron Bridge in the area of Shahdara Traffic Circle and observed that an RTV bearing registration number DL-IV-7941 was parked on the left side of G.T.Road after crossing the bridge, on the carriage way going towards Shahdara and one Head Constable along with two Constables were present on the Eastern end of the Old Iron Bridge and were negotiating something with a person, presumably the driver of the above RTV. The PRG team positioned itself outside Shastri Park Metro Station parking, some distance ahead of the above RTV and started watching the activities of traffic staff. The PRG team followed the above RTV, which turned left towards Shastri Park and intercepted it at Red Light Signal Shastri Park. Enquiries were made from its driver who revealed his name as Ram Vilas.
On enquiry, the driver confided that the staff stationed at Iron Bridge had asked him to pay Rs.1,000/- as Entry Money for this month but he told them that the same would be paid by the RTV owner Mr.Gajender Singh. The driver was advised by PRG Team to call his owner and meet PRG Team at outside Shastri Park Metro Station. At about 11.15 AM, a motorcycle came and its rider approached PRG team and introduced himself as Gajender Singh, owner of the RTV number DL-IV-7941. He apprised that he was informed by his driver that the traffic staff deployed at Eastern side of Old Iron Bridge had asked for Rs.1000/- as Entry Money.
The PRG team asked the owner of the RTV to ply the RTV normally and if the same is stopped by the traffic staff and entry money is demanded again, he should negotiate and pay it. Accordingly, as planned the RTV was plied from Yamuna Bazar side towards Shahdara on Old Ion Bridge and PRG team followed the same at a safe distance of about 100 meters in its vehicle.
The RTV was stopped by the same traffic, staff deployed at the road side immediately after coming out of the Eastern edge of Old Iron Bridge at about 12.45 PM. The PRG team positioned itself on GT road near the fruit rehris at about a distance of 100 meters ahead of the place where the RTV was stopped by traffic and started watching the activities of traffic staff. It was observed that both the Constables deployed at the point in the presence of the Head Constable were negotiating something with Gajender, owner of the RTV. After sometime, one of the Constables went to one side and other Constable continued talking to Shri Gajender. Ultimately Shri Gajender took out something from his shirts pocket and handed over the same to the Constable talking to him and returned to his RTV and resumed its onwards journey. The RTV was intercepted underneath the Metro Bridge on GT Road and enquiries were made from Shri Gajender.
Shri Gajender Singh s/o Shri Sukhbir Singh r/o A-636, Bhajan Pura, Delhi-110053 apprised that he is the owner of RTV No.DL-IV-7941 annd plying his RTV on Route No.F-250 from Loni No. 2 to Jheel via Pushta, Shastri Park and whenever needed he also himself drives his RTV. On 18.07.2007, as planned, he had plied his RTV from Yamuna Bazar side to Shahdara on Old Iron Bridge. At about 12.45 PM when he reached the Eastern end of the Iron Bridge, two traffic Constables signaled to stop RTV. He stopped his RTV on the left side of the road after coming out of the Old Iron Bridge and went towards them and asked a Constable whose nameplate read as SUNIL KUMAR about the matter. The traffic Constable asked for Entry Money and also asked him to speak to other Constable whose nameplate read as AJAY SHARMA. Constable Ajay Sharma asked him about the Entry and said that it was 18th of the month and entry money has not been paid. Constable Ajay Sharma demanded Rs.1000/- as entry money and said that anything less then that would not be accepted. After negotiations, Constable Ajay Sharma agreed to accept a sum of Rs.500/- and asked Constable Sunil Kumar to collect the same and went away to one side. Shri Gajender Singh further told that he had also pleaded to Const. Sunil Kumar and said that he has Rs.200/- only at the moment and would pay the rest amount later on. He finally gave two notes of Rs.100/- denomination each (Total Rs.200/-) to Const. Sunil Kumar and returned to his RTV.
Shri Gajender Singh, owner of the vehicle was brought back at the spot where Rs.200/- was taken from him as Entry Money. Seeing the PRG team coming towards them along with the owner of RTV, one Constable who was identified by Shri Gajender Singh as Constable Sunil Kumar and had taken Rs.200/- as Entry Money from him, fled away from there on a silver colour motorcycle towards Gandhi Nagar even taking wrong side of the road. The other Constable identified by Shri Gajender Singh as Ajay Sharma, who had first demanded Rs. 1,000/- from the owner of the vehicle and later on asked to give Rs.500/ to Constable Sunil Kumar, stopped a car and ran away in it. Shri Gajender Singh also identified one Head Constable Iqbal Hussain who was standing under the bridge at that time when the Constables Ajay Sharma and Sunil Kumar had demanded Entry Money of Rs.1,000/- and accepted Rs.200/- from him. The PRG team enquired about the name and numbers of both the Constables from the Head Constable who revealed their names as Constable Sunil Kumar No.1658/T and Ajay Sharma No.3369/T. Photocopy of the R/C of the RTV duly signed by Shri Gajender Singh was obtained and his statement was also recorded.
The instant DE was entrusted to Shri Radhey Shyam, ACP/DE Cell for conducting the same on day to day basis and submit the findings expeditiously. The EO completed the DE and submitted his findings concluding therein that the charge served upon the both the Constable stand proved. Tentatively agreeing with the findings of the EO, a copy of the findings was served upon both the appellants directing them to submit their written representations/replies, if any against the findings within 15 days, from the date of its receipt. Both the appellants have submitted their joint representation in response to the said findings on 24.03.2009. Both the appellant were also heard in orderly room on 31.03.2009. The disciplinary authority after going through the findings of the EO, statement of PWs, defence statements, their joint representations and other documents available on record and awarded them punishment of forfeiture of two years approved service permanently vide order dated 08.04.2008. Hence, this appeals submitted by the appellants.
Both the appellants have submitted same pleas in their appeal. Their main contentions are that (i) the EO has not conducted the DE in accordance of rules, (ii) there is no evidence to support the charges leveled against them, (iii) the charge framed by the EO is based on material outside the recorded evidence, (iv) the EO did not consider the depositions of DWs and PW-5. Gajender Singh, owner of the vehicle did not support the allegations leveled against the appellants. PW-5 clearly denied any demanding/accepting money from him by the appellants, (v) they were not marked absent from duty, therefore, the theory that policemen had run away from the spot is mallcious and ill founded, (vi) the disciplinary authority did not analysis the facts of the case while deciding the DE and awarded harsh punishment.
I have carefully gone through the appeals, impugned order and all the relevant material on record. The contentions of the appellants have no force. The EO has conducted the enquiry with the ambit of rules and according to due procedure as specified in Delhi Police (Punishment & Appeal) Rules, 1980. The role of EO in the instant DE is unambiguous and there is no violation of any rules. The EO has framed he charge against the appellants on the basis of evidence and served upon them after obtaining approval from the competent authority. The EO proved the charge on the basis of evidence and documentary evidence adduced during the DE proceedings. The EO had considered the defence statement and DW produced by the appellants. As far as the statement of PW-5 during the DE proceedings is concerned, it is very common especially in such cases that witnesses are won over by the delinquents. There was no need to mark the appellants absent. The PRG official submitted their report to senior officer what they saw during surveillance. There was no reason for the PRG officials to give such a statement against the appellants. PRG official in their statement clearly mentioned that on seeing PRG team, the appellants fled away from the spot. If the appellants were right on their part, they should have stayed there ..the questions of PRG team but they did not do so. The disciplinary authority has passed punishment order after carefully going through the DE file, statement of PWs/DWs, defence statement and representation of the appellants, which is legal, fair and justified.
I have also heard both the appellants in OR. They could not come out with anything new except repeating their pleas already available on record. They are denying everything without giving any cogent reason. I have discussed the pleas raised by them in the preceding paragraphs. Keeping in view the facts of case, I see no reason to interfere with the orders of the disciplinary authority. Hence, the appeals are rejected.
14. As far as reliance placed by counsel for applicant on the judgment of Honble Supreme Court on Ram Prakash Arora Vs. The State of Punjab (AIR 1973 SC 498) is concerned, it is sufficient to say that the judgment delivered by Honble Supreme Court was in a criminal case. In the said case, appellant Shri Ram Prakash Arora was charged under Section 5 (2) read with Section 5 (1)(d) of the Prevention of Corruption Act and Sections 161 and 165 of the Indian Penal Code. It is settled law that standard of proof in criminal trial is substantially different from domestic enquiry. In Hari Singh Vs. Govt. of NCT of Delhi and Ors ( WP (C) No.6503/2008 dated 05.09.2008), the members of the inspection team had stated that they had not seen what had transpired between the drivers of the tempo and the petitioner. That being the position, it could be viewed by Honble High Court that there was no evidence at all against the petitioner. In the present case, it is not so as one of the members of PRG team could depose that he had seen Shri Gajender Singh, owner of the RTV DL-IV-7941 taking out something like currency notes from his pocket and giving to one of the two constables. Thus the order is distinguishable on facts.
15. In Nand Kishore Prasad Vs. State of Bihar and Ors (1978 3 SCR 708) relied upon by the counsel for applicant, the Honble Supreme Court viewed that though it was not so that there was no evidence but the evidence was not adequate enough to carry conviction at a criminal trial. In the said case, the Honble High Court uphold the order of the Industrial Tribunals. The Honble Supreme Court upheld the order of the High Court. Relevant excerpts of the judgment read as under:-
24. The desirability of writing a self-contained speaking order in disciplinary proceeding, culminating in an order of removal of the delinquent from service, cannot be over-emphasised. It is true that the impugned orders do not fully measure upto this devoutly desired standard. Nevertheless, they do contain a bald and general allusion to the primary facts, and a cryptic inference therefrom. There is no specific reference to or discussion of the evidence. The High Court, therefore, examined the record of the disciplinary tribunal, not with a view to make out or reconstruct a new case, but only to see whether there was some evidence of the primary facts relied upon by the domestic tribunal in support of its conclusion. We do not see any impropriety in the course adopted by the High Court.
25. On examination of the Tribunal's record, the High Court found that there was oral and documentary evidence before the disciplinary tribunal, that at all times material to the imposition, realisation and receipt of the fine amounts in question, all the five records in the Court of the Magistrate, Sasaram, used to remain with Bench Clerk, i.e., the appellant. The Inquiry Officer had examined three witnesses, namely: Triloki Prasad Sinha, Rang Bahadur Singh and Kalka Prasad. The evidence of Triloki Prasad Sinha was certainly of an accomplice character, but the evidence of Rang Bahadur Singh, who was the Fines Clerk before Triloki Prasad Sinha, and of the Head Clerk Kalka Prasad, did not suffer from such a flaw. From their evidence, it was clear that in actual practice all the fine records were being maintained by the Bench Clerk, and it was he who used to take all necessary steps, including the preparation and issue of distress warrants for realisation of outstanding fine. The Fines Clerk made entries in the Fines Register in accordance with the intimation sent by the Bench Clerk. This practice continued till March 1951, when Mr. Gorden, the then District Magistrate directed that all fine records must be made over to the Fines Clerk by May 14, 1951. The fine amounts in question, were evidently recovered in execution of a distress-warrant, issued by the Magistrate.
26. In view of what has been said above, it is clear that this was not a case of no evidence, but of evidence which was not adequate enough to carry conviction at a criminal trial. The High Court was, therefore, right in holding that the impugned orders did not suffer from any error of law which may warrant an interference in proceedings under Article 226 of the Constitution.
27. In the result, the appeal meets with failure, and is dismissed without any order as to costs. We are unable to see how the judgment supports the plea of the applicant in this case. In Central Bank of India Ltd., New Delhi Vs. Shri Prakash Chand Jain ( 1969 1 SCR 735), the Honble Supreme Court viewed that domestic tribunals like an enquiry officer are not bound by the technical rules about evidence contained in the Indian Evidence Act. Relevant excerpts of said judgment read as under:-
..It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant Bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings.. If the said judgment, at all can be relied upon in the present case, it can be relied against applicant. We are satisfied that there was sufficient material on record to hold the charges against the applicant proved in a domestic enquiry. As far as the plea of the applicant regarding disregard of Rule 15 (2) of Delhi Police (Punishment and Appeal) Rules, 1980 is concerned, the reply filed by the respondents specifically stated that such approval was there before commencement of domestic enquiry against the applicant. For easy reference, relevant excerpts of the counter reply read as under:-
4.3 That the contents of para 4.3 are wrong and denied. However, it is submitted that it has already been mentioned in DE order dated 10.09.2007 that the prior approval of Jt. C.P./Trafffic, Delhi as required under Rule 15 (2) of D.P.(P&A) Rules, 1980 has been taken for initiating regular departmental enquiry. The E.O. has conducted the enquiry as per norms i.e according to Rule 16 of Delhi Police (P&A) Rules, 1980 in a just, fair and reasonable manner. The fault of the applicant has been proved in DE on the basis of incriminatory evidence and is not based on surmises and conjecture alleged in the corresponding para of the OA. The plea that Jt. C.P./Traffic is not the competent authority is no longer res-integra, thus cannot vitiated the entire enquiry as alleged.
16. In the circumstances, we decline to interfere with the impugned order. Accordingly Original Application is dismissed. No costs.
( A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) sk