Central Administrative Tribunal - Delhi
Dayanand vs Comm. Of Police on 20 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 69/2013
Reserved on 13.09.2018
Pronounced on 20.09.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N.Terdal, Member (J)
Constable Dayanand,
S/o Shri Khem Chand, age 51 years,
R/o Village & PO Rajokri,
New Delhi-110038. ... Applicant
(By Advocate: Mr. Sachin Chauhan )
VERSUS
1. Govt. of GNCTD through the
Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi.
2. The Addl. Commissioner of Police,
PCR, Delhi through the
Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi.
3. The Addl. Dy. Commissioner of Police,
PCR, Delhi through the
Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi. ... Respondents
(By Advocate Mrs. P.K.Gupta)
ORDER
Hon'ble Mr. S.N. Terdal, Member (J):
We have heard Mr. Sachin Chauhan, counsel for applicant and Mrs. P.K.Gupta, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
2. In this OA, the applicant has prayed for the following reliefs: 2 OA 69/2013
(i) To quash and set aside the impugned order dt. 7.4.2010 of initiation of D.E., Order dated 26.9.11 of Disciplinary Authority at A-1, Order dated 25.9.12 of Appellate Authority whereby the appeal of the applicant has been rejected at A-2 to further direct the respondents that the forfeited years of service be restored as it was never forfeited with all consequential benefits including seniority and promotion and pay and allowances and further the period of dismissal period from 11.7.2006 to 4.2.2010 and Suspension period from 5.2.2011 to 26.9.2011 be decided as 'Spent on Duty' with all intent and purpose.
(ii) To set aside the Enquiry officer report.
Or/and
(iii) Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant."
3. The relevant facts of the case are that an enquiry was initiated against the applicant by issuing a summary of allegations for having taken the gold ornaments from the accused persons and for allowing the accused persons to run away and later on having recovered the said gold ornaments from the possession of the applicant. The summary of allegation is extracted below:
"It is alleged against Const.(Dvr) Daya Nand No.4696/PCR now 4185/PCR (PIS No.28970052) that an incident of robbery took place on 03.07.2006 in the house of Ms. Priti at C-33 H.No.Din and the accused persons took away cash and gold ornaments from her house. In this regards, case FIR No. 473/2006 u/s 392/397/34 IPC P.S. H.N.Din was registered. While the accused persons were fleeing away from the spot in a TSR, it developed some defect near the base of PCR Van E-07 stationed near CTC Plaza. Const.(Dvr.) Daya Nand 4696/PCR approached the TSR and searched the accused persons and recovered some of the looted gold ornaments and allowed all the criminals to run away. He concealed this fact of recovery of ornaments from his colleagues of MPV and kept those ornaments with himself. Later on, the above said gold ornaments were recovered from the possession of Const.(Dvr.)Daya Nand No.4696/P|CR by the IO of the above mentioned case.
The above act on the part of Const.(Dvr) Daya Nand No.4606/PCR has resulted in erosion of faith of common people in the police force and amounts to grave misconduct involving moral turpitude, dereliction of duty and an act of unbecoming of a member of a discipline force 3 OA 69/2013 which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980."
Following the relevant procedural rules along with summary of allegation, list of documents and list of witnesses were served on the applicant and Inquiry Officer was appointed. The Inquiry Officer following the procedural rules and principles of natural justice examining 6 PWs, 3 DWs and 1 CW and narrating the deposition of each of the witnesses came to the conclusion that the charge alleged against the applicant was proved. Thereafter the enquiry report was furnished to the applicant. Considering his written representation, enquiry report and evidence on record, the disciplinary authority after hearing the applicant in orderly room by order dated 26.09.2011 imposed a penalty of forfeiture of two years approved service permanently in the time scale of pay with cumulative effect entailing reduction in his pay from Rs.9060/-PM (including grade pay) to Rs. 8530/-PM (including grade pay). Appeal filed by the applicant was also dismissed by the appellate authority after considering his appeal and hearing him in orderly room vide order dated 25.09.2012.
4. The counsel for the applicant vehemently submitted that Rule 15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980 is not followed inasmuch as no prior permission of the Additional Commissioner of police was taken in terms of the above said rules. But from the perusal of the counter affidavit, it is clear that the present departmental enquiry was initiated in pursuance of this Tribunal's order dated 3.10.2007 passed in OA No. 837/2007 filed by the applicant in his earlier round of litigation, as such the submission 4 OA 69/2013 of the counsel for the applicant regarding violation of Rule 15(2) is not substantiated.
5. He has further submitted that the inquiry officer has not discussed in the enquiry report about the evidence given by DWs. In this regard, the counsel for the applicant and counsel for respondents took us through the inquiry report, from the perusal of the inquiry report. From the perusal of the inquiry report, it is crystal clear that the inquiry officer has brought on record the deposition of the witnesses in detail. From the deposition of PW-4 and PW 5 it is crystal clear that the gold ornaments, namely, ear ring, golden pendal & one golden ring with white stone were recovered from the possession of the applicant. The Inquiry Officer has also recorded the deposition of the DWs and a court witness. But, however in view of the entire evidence of all the witnesses, we are of the opinion that the conclusion arrived at by the inquiry officer cannot be interfered with. The submission of learned counsel for applicant that the inquiry report and the orders of the disciplinary authority and the appellate authority are not speaking order is not substantiated from the perusal of the said orders. The counsel for the applicant further submitted that in a criminal case the accused is acquitted. On the perusal of the acquittal order it is clear that it is not a honourable acquittal but the criminal court acquitted the accused giving benefit of doubt. Further it is submitted at the Bar that the said acquittal has been challenged before the Hon'ble High Court and the Hon'ble High Court admitted the appeal. In support of his contentions, the counsel for the applicant relied upon the judgment of Hon'ble High Court in Writ Petition (C) 5 OA 69/2013 7680/2010, titled GNCT of Delhi and Ors Vs. ASI Rambir Singh and Anr. The relevant portion of the judgment is extracted below:
"13............ If one were to examine the deposition of DW1 Dinesh Kumar Tomar, it is apparent that he has stated that the motorcycle belonged to him and that he had parked it on the Ghaziabad border and that the sum of Rs.6,350/- that was kept in the motorcycle, was his. Since this testimony has gone unchallenged, there is no alternative but to accept the same. If that is done, then the petitioners have no case."
But however, in view of the peculiar facts of the present case, particularly in view of the fact that as many as 6 PWs were examined and there is sufficient evidence and the allegation is regarding recovery of the ornaments from the "possession of the applicant" and nowhere in the summary of allegation it is stated that the recovery is made "from the house of the applicant" and DWs denying any recovery of the said gold ornaments "from the house of the applicant", the conclusion of the inquiry officer cannot be faulted. The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the 6 OA 69/2013 enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada- bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an 7 OA 69/2013 opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC
484) at para 12 and 13, the Hon'ble Supreme Court observed 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 eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of 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.8 OA 69/2013
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate 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 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), 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".
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;9 OA 69/2013
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
6. In view of the peculiar facts of the case and in view of the law laid down by the Hon'ble Supreme Court and having found that there is no violation of any procedural provision or principles of natural justice, the OA is devoid of merit.
7. Accordingly, OA is dismissed. No order as to costs.
( S.N.Terdal) ( Nita Chowdhury) Member (J) Member (A) 'sk'