Central Administrative Tribunal - Delhi
Si Anant Kiran vs Govt. Of Nct Of Delhi on 14 October, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No. 3342/2010 This the 14th day of October,2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) SI Anant Kiran PIS No.16950255, R/o C-5, Police Colony, Saraswati Vihar, N.D.-34. Applicant (By Advocate: Sh. Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Addl. Commissioner of Police, (Operations), PHQ, IP Estate, New Delhi. 3. Sh. M.R Gothwal, The Enquiry Officer, DCP (DE Cell) Police Bhawan, Asaf Ali Road, Delhi. Respondents (By Advocate: Ms. Rashmi Chopra) O R D E R
Honble Shri George Paracken:
Applicant is aggrieved by the Annexure A-1 findings of the enquiry officer dated NIL, Annexure A-2 order of the disciplinary authority dated 12.9.2008 and Annexure A-2A order of the appellate authority dated 21.12.2009. According to the Annexure A-1 findings, the charge against the applicant has been proved. By Annexure A-2 order, the disciplinary authority has imposed the punishment of forfeiture of one years approved service permanently for a period of one year entailing proportionate reduction in his pay. By the Annexure A-2 order, the appellate authority has reduced the punishment to that of censure.
2. The charge against the applicant and other co-delinquents, namely, Inspector Suresh Dabas, ASI Dharam Pal and HC Dilbagh Singh is as under:
I, M.R. Gothwal, Deputy Commissioner of Police, DE Cell,Delhi, the Enquiry Officer, charge you Inspr. Suresh Dabas, No.D-I/958, the then SHO/Rohini, SI Anant Kiran No.D-3108, ASI Dharampal No.4569/D and HC Dilbagh Singh No.303/NW that on 20.12.2000, while you all were posted at PS Rohini, North-West District, Delhi. The team headed by you, SI Anant Kiran apprehended one Keshar Singh while in possession of 1.800 Kg. Charas like contraband substance. In the meantime, you, Inspr. Suresh Dabas, the then SHO Rohini reached the spot and the recovered case property alongwith FSL form was seized and took the possession of case property. You, SI Anand Kiran prepared a Rukka and sent it to Duty Officer PS Rohini for registration of FIR. Subseqsuently, a case vide FIR No. 886 dated 20.12.2000 u/s 20/61/85 NDPS Act was registered and case was handed over to you, ASI Dharampal for further investigation. It is further alleged that you, HC Dilbagh Singh, Duty Officer had made endorsement on two Rukkas. It is also revealed from the scrutiny of record that you, Inspr. Suresh Dabas had taken over the possession of case property with FSL from the spot and deposited the case property with FSL form in PS Malkhana vide DD No.24A dated 20.12.2000 but register No.19 as well as 21 is silent and as per register No.19, you , SI Anand Kiran I/C PP Vijay Vihar had deposited the case property vide Mud No.2124/2000 of register No.19 PS Malkhana. You, Inspr. Suresh Dabas the then SHO Rohini failed to check the entry made by MHC (M) in register No.19 of PS Malkhana. MHC(M) handed over only the sample of the case for depositing with FSL Malviya Nagar to Const. Rajender Singh No.717/NW vide RC No.40/21/2001 dated 4.3.2001. But at the time of deposition in the Ld. Court, Const. Rajender Singh confronted with his statement recorded u/s 161 Cr.P.C. as Road Certificate No.40/21 dated 4.3.2001 was also silent about FSL form. Apart from this, both the investigating officers did not comply with the provision of section 57 NDPS Act in this case and also failed to record the statement of Const. Rajender property. Later, challan of this case was sent to court of judicial verdict but the Ld. Court of Shri N.K. Sharma, ASJ has adversely commented upon the above noted shortcomings and the case was acquitted with the recommendations for taking appropriate action against the erring police officers, which has defamed the image of Delhi Police.
The above act on the part of you, Inspr. Suresh Dabas No.D-I/958, the then SHO/Rohini, SI Anant Kiran No. D/3108, ASI Dharampal No.4569/D(now SI) and HC Dilbagh Singh No.303/NW (now No.698/Sec.) amounts to gross misconduct, negligence and carelessness in the discharge of your official duties which you are liable for punishment under the provisions of Delhi Police (Punishment and Appeal)Rules-1980.
3. The background of issuing the aforesaid charge is that while the applicant was posted on 20.10.2000 at P.S. Rohini on patrolling duty, he made recovery of 1.8 kg charas from one Keshar Singh and he prepared rukka based on which FIR No.886/2000 P.S. Rohini u/s 20 NDPS Act was registered. Since there was some cutting/overwriting in the rukka, under the instructions of SHO Suresh Dabas, the applicant prepared a fair copy of the rukka. In the Crl. M (M) No.1275/2001 filed in the matter, while the High Court of Delhi was considering the bail application of the accused Shri Keshar Singh, one of the arguments on his behalf was that he was falsely implicated and two rukkas were prepared in the case. An enquiry in the matter was conducted by the ACP concerned and in his Annexure-3 report dated 13.8.2001 it was, however, concluded that only one rukka was prepared and sent to PS for the registration of the case and that the other document was the fair copy of the rukka. Hence there is no manipulation in the matter. The relevant part of the said report is as under:-
The undersigned has gone through the relevant papers/documents of case FIR No.886/2000. The Honble court has pointed out towards the preparation of two rukkas out of which appears fabricated. SI Anant Kiran who had prepared the rukka submits that only one rukka was prepared and sent to PS for the registration of the case and that the other one is the fair copy of the first rukka hence there is no manipulation, illwill on fabrication.
It will be pertinent to mention here that the contents of rukka, FIR and seizer memo are same which shows that the I.O. didnt had any malafide intention. As has been mentioned above, I.O. himself admits that he had prepared the fair copy and only this fair copy was supplied to the accused.
The Honble court has also pointed out the I.O. SI Anant Kiran was changed on the day when the case was registered. Since in this case Charas was seized by SI Anant Kiran, as is procedure, the investigation was handed over to ASI Dharam Pal.
4. Based on the aforesaid report, the then DCP Sh. R.P.Upadhyay has filed the Annexure A-4 affidavit before the High Court denying the allegation that there were two rukkas in the case. The said affidavit reads as under:
That it is respectfully submitted that the contention of the petitioner that two rukkas were prepared by I.O. S.I. Anant Kiranthe recovery of 1 Kg. and 800 Grams respectively is absolutely wrong and ill founded. It is submitted that in the first rukkas as there was some cuttings/overwriting the I.O. S.I. Anant Kumar prepared a fair rukka and the first rukka was never made part of the police file and the same was never supplied to the petitioner, the contents of both the rukkas are same.
That it is pertinent to mention here that in his bail application filed before the Ld. Lower court, the petitioner has raised this issue but the same was rejected that the alleged fabricated rukka on which the accused it relying was never supplied to him as it was not the part of the police/judicial record. Moreover, as per the record the first page of Annexure P-1 clearly shows that the recovery written is 1 Kg.800 gms. Though there is some cutting/overwriting on the back page of Annexure P-1 but a close scrutiny of the same reveals that the figure of kilogram has been changed/cut. A copy of the order dated 28.3.2001 passed by Ms. Bimla Makin, ASJ, Delhi is also filed herewith an Annexure R-2 for the kind perusal of this Honble Court.
That during the course of enquiry, the explanation of S.I. Anant Kiran was also obtained which is incorporated in the enquiry report.
That with regard to the changing of the I.O. on the date of registration of FIR, it is submitted that since the S.I. Anant Kiran was the complainant in this case, the investigation of the case was entrusted to ASJ Dhram Pal as a matter of procedure to ensure fair and independent investigation into the matter.
5. Thereafter, the High Court dismissed the bail application of the accused vide Annexure A-5 order dated 4.10.2001 and its relevant part is as under:
This is a petition under Section 439, Cr. P.C. for grant of bail in case FIR No.886/2009, under Section 20/61/85 NDPS Act, P.S. Rohini.
Learned counsel for the petitioner argued that petitioner was falsely implicated in the case; that copies of documents supplied show that two ruqqas were prepared; that there are cuttings on figures at 5.40 and at 1.0 kg. It is further argued that there is no corresponding entry in Registrar No.19 for sending the CFSL form to the Laboratory; that recovery was effected on 20th December, 2000 and samples were sent on 4th March, 2001; there is no independent witness, therefore, the petitioner is entitled to be released and bail. Learned APP for State, relying upon the affidavit of Mr. R.P. Upadhyaya, DCP explained that ruqqa had to be rewritten because there was some overwriting and cutting on the figures noticed above, otherwise it is verbatim the same and that there was no other ruqqa . The circumstances under which the second ruqqa came to be prepared would necessarily requisite appreciations on evidence which is not permitted at this stage. Whether the explanation given is right or wrong would have considered at the end of the trial. Similarly, other issues raised by the learned counsel for the petitioner can be no help to him at this stage.
Taking into consideration the fact, the petitioner was found in possession of 1.8 kg. Of charas from the bag which was carried by him, no case for grant of bail is made out.
Petitioner stands disposed of.
Any observation made herein would not affect in the merits of the case.
6. However, the trial court, [the Court of Special Judge, (NDPS Act)] acquitted the accused, Sh. Keshar Singh, giving him the benefit of doubt vide Annexure A-6 judgment dated 7.4.2005. The judge has also observed it that there was collusion among the co-delinquents and the tampering in the rukka was the genesis the FIR and it strengthened the defence version of the accused that he was lifted from his residence by the applicant and was falsely implicated by planting the contraband in question. The relevant part of the said judgment is as under:
When the I.O. SI Anant Kiran was cross examined by the accused, he deposed that he prepared only one rukka and when he was confronted with Ex.PW3/DB, he admitted that it is in his hand writing and it also bears, the endorsement of the Duty Officer at point A and it is a photocopy of the rukka prepared by him. In his further cross examination, he admitted that original of Ex.PW3/DB which bears the endorsement of the Duty Officer was torn out after preparing rukka Ex.PW7/a. He further admitted that after registration of the FIR, further investigation was given to ASI Dharampal and original rukka (photocopy of which is Ex.PW3/DB) was taken back from ASI Dharampal and thereafter it was changed to rukka Ex.PW7/A and this rukka Ex.PW7/A was not sent to the Duty Officer for registration of the FIR and later on he got the endorsement of the Duty Officer on Ex.PW7/A and at that time the investigation of this case was not with him.
15. The above tempering in the rukka which is the genesis of the FIR by SI Anant Kumar in collusion with Duty Officer PW3 HC Dilbagh Singh and the 2nd I.O. PW6 ASI Dharampal is very unhealthy affairs on the part of the investigating agency which can not be ignored and this tempering with the rukka clearly strenghthen the defence version of the accused that he was lifted from his house by SI Anant Kiran and was brought to the police station where he was falsely implicated by planting the contraband in question.
16. Furthermore, the provisions of section 57 of the NDPS Act has not been complied with by both the investigating officers, as no such report has been placed and proved on record for the reasons best known to them.
17. In the light of the above discussion and for the reasons given therein, I am of the considered view that the prosecution has failed to prove its case against the accused beyond the shadow of reasonable doubt. Accordingly, accused is acquitted of the charge u/s 20 NDPS Act by giving him due benefit of doubt. Since, he is in custody, the Jail Superintendent is directed to release him forthwith, if not required in any other case. Case property be disposed of in accordance with law after the expiry of the period of revision/appeal, if any. A copy of this judgment be sent to the Commissioner of Police for taking appropriate action against both the I.O.s and the Duty Officer named above. File be consigned to RR.
7. On receipt of the aforesaid judgment dated 7.4.2005, the respondents, vide Order dated 5.3.2007, have initiated the present departmental enquiry against the applicant along with SHO Suresh Dabas, ASI Dharampal and HC Dilbagh Singh.
8. The enquiry officer in his Annexure A-1 report dated NIL has held that the aforesaid charge against the applicant and other co-defaulters, Inspector Suresh Dabas, ASI Dharampal and HC Dilbagh Singh has been proved. The relevant part of the said report is as under:
The perusal of the judgment of the Learned Trial Court vide exhibit PW-4/A the acquittal has been given mainly on the following grounds:-
1. No independent witness has been joined in the raid.
2. There is contradiction in the statements of Constable Rajender Singh recorded U/s 161 Cr.PC. by the delinquent ASI Dharam Pal and what he has deposed during the trial so far as the taking away of the FSL Form is concerned i.e. there is no mention of the FSL Form in the statement U/s 161 Cr.P.C.
Two Rukkas have been prepared by the IO/DO and Compliance of Section 57 NDPS Act has not been made.
Section 57 NDPS Act reads as under:-
Whenever any person makes any arrest or seizures under this Act, he shall within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his official superior.
During the trial proceedings there is no evidence to the effect that the intimation about the arrest and seizure of the Charas has been given to the senior officers. No such evidence has been brought during the DE proceedings by the defaulters that they have given any information to the ACP/DCP on this issue as such they have failed to comply the mandatory provisions of Section 57 NDPS Act. The delinquent IOs SI Anant Kiran and ASI Dharam Pal have tried to shift the responsibility of sending the intimation U/s 57 NDPS Act on each other. SI Anant Kiran was the first IO whereas ASI Dharam Pal was the second IO of the case in question. The record shows that none of the two IOs and the delinquent Inspector sent any intimation as required U/s 57 NDPS Act, and accordingly, the charge on this count stands substantiated against them.
Another charge that defaulter HC Dilbagh Singh who was the DO at the relevant time has made endorsement on two Rukkas. Vide exhibit 5/C and 5/D, the two Rukkas have been exhibited and the same have been confirmed by PW-5 and PW-6. The explanation given by the defaulters is that there was some cutting/overwriting in the original Rukkas and they prepared the second Rukka to correct the mistake and the plea that there is no difference between the two Rukkas. Though the perusal of the two Rukkas revealed that except cutting on one pointed that the FIR was lodged on the basis of the original Rukka sent by the delinquent SI Anant Kiran, the first IO, and the endorsement was made regarding registration of the FIR by defaulter HC Dilbagh Singh the then DO. It is not understood as to what was made regarding registration of the FIR by the defaulter HC Dilbagh requirement of preparing the second Rukka and bringing both Rukka on the police file/in the notice of the Trial Court. Defaulters have put forth the plea that the issue was raised by the accused before the Learned High Court and the same was rejected by the Learned High Court. The perusal of the order of the High Court as submitted reveals that the Issue which was decided by the Learned High Court was regarding the grant of bail U/s 439 Cr.P.C. and the other issues were left for the decision of the Learned Trial Court. So the plea that Learned High Court did not given any weightage to the issue of two Rukkas has no weight and Learned Trial Court has taken very adverse view of the existence of two Rukkas. Though there appears to be no malafide on the part of the delinquents in preparing the two Rukkas but it is highly unprofessional that two Rukkas existed in the case file which is a gross violation of the basis principle of the law and procedures in the criminal jurisprudence. The existence of the two Rukkas casts doubt and suspicion about the authenticity and reliability of the IOs. This was one of the greatest mistakes which the defaulters have committed regarding the preparation of the two Rukkas and this proved fatal for the case. The plea of the defaulters that the enquiry was conducted and a report was submitted by the then DCP/North-West vide exhibit DW-1/A in the Honble High Court also does not come to their rescue as there is no denial of the preparation of the two Rukkas vide this report. Defaulter SI Anant Kiran, in his written defence statement has made contradictory clarification on the matter which goes to prove the charge against defaulters.
Another charge against defaulter Inspector who was the SHO of the Police Station Rohini at the relevant time that the deposited the case property along with the FSL Form as mentioned vide DD No. 24-A dt. 20.12.2000 (exhibit PW-5/B) whereas the same has been shown deposited by the delinquent SI Anant Kiran as per register No.19 of the Malkhana of the MHCR and defaulter Inspector has failed to check the entry made by MHCR in register No.19. Column No.3 of register N019 as per exhibit PW-1/A the date of deposit and name of depositor has been mentioned as SI Anant Kiran which shows that the case property has been deposited in the Malkhana by SI Anant Kiran whereas vide exhibit 5-B DD No.24-A the same have been deposited by SHO. This has led to contradiction and the Learned Trial Court has taken cognizance of this fact. Though as per Malkhana register the case property has been deposited by defaulter SI Anant Kiran. Evidence and explanations in written defence statement go against the defaulter and charge is accordingly proved.
Another contradiction noticed by the Trial Court is that in the Road Certificate vide exhibit PW-1/C there is no mention about the FSL Form and only case property has been shown to have been sent to the FSL Laboratory through Constable Rejender. There is no mentioned of the FSL Laboratory through the Malkhana register at exhibit 1/A and court has placed great reliance on non showing of the FSL Form either in the Malkhana register or in the Road Certificate and concluded that no FSL Form was deposited with the Malkhana and possibility of tempering with the FSL Form cannot be rules out and have given the benefit to the accused. This proves that the defaulter Inspector failed to ensure that his subordinates make correct entries in the Malkhana register and in the Road Certificate. However, it may be added that there appears to be no malafide on the part of the delinquents in committing the irregularities as mentioned above. This appears to be a result of inexperience and casual attitude. But they certainly failed to appreciate the importance of the requirements of procedure envisaged under NDPS Act or any procedural lapse or any inconsistency in the records which is not strictly as per the procedure proves fatal to the successful prosecution of the case.
It would be worthwhile to mention here that the accused was arrested on 20.12.2000 and the judgment/acquittal was delivered on 7.4.05 and till that time the accused remained in judicial custody and also the fact that the bail was rejected by the Court of Sessions as well as the High Court which goes to the credit of the delinquents. The plea taken by the delinquent Inspector that there was no recommendation by the Trial Court for taking action against him and it was only against the two IOs and the DO is correct as shown on the last page of the judgment as per exhibit PW-4/A. But being the SHO and Supervisory Officer and the fact that he had been actively involved in this case, he cannot escape from his responsibility being not only the overall supervisor of the police station but also failed to check and ensure that correct action is taken by MHCM and failed to take action U/s 57 NDPC Act and also failed to ensure correct recording of statements U/s 161 Cr.P.C. by the IO as the challan was prepared under his signatures, he too is certainly responsible for the lapses committed by his subordinate staff and failed to comply with the requirements of the NDPS Act.
CONCLUSION:
In view of the above discussion, the charge against the defaulters Inspr. Suresh Dabas, No.D-1/958, SI Anant Kiran No.D-1308, ASI (now SI ) Dharampal No. 4569/D and HC Dilbagh Singh No.303/NW stands proved.
9. The disciplinary authority agreeing with the aforesaid findings of the enquiry officer imposed the punishment of forfeiture of one year approved service upon the applicant and other two co-delinquents ASI Dharam Pal and HC Dilbagh Singh permanently for a period of one year entailing proportionate reduction in their pay, Inspector Suresh Dabas was, however, imposed with the same punishments but temporarily. The relevant part of the said order is as under:
I have carefully gone through the findings of the P.O. representations of the defaulters. For the sake of natural justice and fairness, the defaulters Inspr. Suresh Dabas, SI Anand Kiran, ASI Dharampal and HC Dilbag Singh were heard in Orderly Room on 05/09/08 and they reiterated the pleas already mentioned in their representations. From the perusal of DE file, it is revealedl that PW2 and 3 were the formal witnesses, while all other 4 PWs have supported the allegations leveled against the defaulters. During the oral submission only Inspr. Suresh Dabas has reiterated that being SHO of the Police station, due to heavy burden of work and other law and order duties he could not cross check the DD entry with regard to the deposit of the case property in Register No.19 but all the other defaulters did not say any thing more other than already mentioned by them in their representations. All the defaulters have been found at fault as they had acted in a very negligent and casual manner in the registration and investigation of case FIR No.886 dated 20/12/2000 U/S 20/61/85 NDPS Act P.S. Rohini resulting in that the acquittal of the case. This is a serious lapse on their part. Keeping in view of the facts and circumstances of the case, I found little force in the versions of Inspr. Suresh Dabas but I did not find any justification in the representations/submissions of all other three defaulters. Agreeing with the findings of the Enquiry Officer. I, hereby award the punishment of forfeiture of one year approved service temporarily for a period of one year to Inspr.Suresh Dabas No.D-1/958 entailing proportionate reduction in his pay and to award the punishment of forfeiture of one year approved service each to SI Anand Kiran No.D-1308, ASI Dharampal (Now SI) No.4569-D and HC Dilbag Singh No.303/NW (Now 8847/PCR) permamently for a period of one year entailing proportionate reduction in his pay which will meet the ends of the justice.
10. The appellate authority, vide its order dated 21.12.2009 has, however, reduced the punishment to that of Censure in respect of all the persons including the applicant. The relevant part of the said order reads as under:
The DE was entrusted to Shri M.R. Gothwal, DCP/DE Cell, who completed the same and submitted his findings concluding therein that the service temporarily entailing proportionate reduction in pay upon Inspr. Suresh Dabas and the punishment of forfeiture of one year approved service permanently entailing proportionate reduction in pay upon SI Anant Kiran, No.D/308, SI Dharam Pal, No.4589/D and HC Dilbagh Singh, No.8847/PCR vide order dated 12.09.2008.
I have examined the appeal, DE file, the relevant documents available on record and also heard the appellants in O.R. who have stated that since the copy of the FIR was sent, this would serve as information u/s 57 NDPS Act. This was upheld by the Honble Apex Court in Crl. Appeal No.1022 of 1997 in Sajan Abraham Vs. State of Kerala dated August 7, 2001. The crux of the misconduct is the preparation of two rukkas both of which were in the handwriting of I.O. and were endorsed by the Duty Officer and placed on record and the copy of one conveniently reaching the accused so as to give him easy benefit during the trail. However, on the other hand, the fact that the police did effect the arrest and the individual was sent into the custody where he spent three and half years indicates that they may not have been any pre-conspiracy to this effect. Further, since the second rukka was verbatim copy of the first rukka it cannot be said there were mlafide intents or any effort to make improvements. As far as the FSL from is concerned, the same is mentioned in the RUKKA, DD entry No.24-A dated 20.12.2000 and also entered in register No.19. It is a fact that FSL would not have accepted the exhibits for analysis without FSL Form. Under the circumstances, I feel that the award of major punishment would be on the excessive side. Therefore, I hereby reduce the punishment of forfeiture of one year approved service to that of censure.
11. Applicant has challenged the aforesaid impugned orders on the ground that the charge was not at all against the applicant but it was against HC Dilbagh Singh. Further, he has submitted that there was only one rooka and not two, as stated in the charge. While one document was the original and the other was its fair copy. The fair copy was prepared by the applicant on the directions of SHO Suresh Dabas as there was some over writing/cutting in the original rukka. He has also submitted that the fair copy of the rukka was supplied to the accused. The other contention of the applicant was that in the Annexure A-4 affidavit filed by Sh. R.P.Upadhyay, the then Dy. Commissioner of Police, North-West District, Delhi in Criminal Misc (M) No.275/2001 has clearly stated that the applicant was the complainant in the case and investigation in the case was entrusted to HC Dharampal as a matter of procedure to ensure fair and independent investigation into the matter. In the Annexure A-3 preliminary enquiry report dated 13.8.2001 also, the Asstt. Commissioner of Police, Sub Division Rohini has stated that the contents of rooka and FIR and seizure memo were same and further stated that the IO did not have any malafide intention. It was also stated that only the fair copy of the rukka was supplied to the accused. Further, the applicant was changed of his duty on the day when the case was registered and the investigation was handed over to ASI Dharampal. According to him, the disciplinary authority himself has absolved him from the charge of preparation of two rukkas and it was HC Dilbagh Singh who had made endorsement on two rukkas. For the said lapse, he cannot be held responsible.
12. In short, the applicants contention is that after he had prepared the rukkas, his role in the entire criminal case was over. He has prepared the fair copy of the rukka only on the direction of the SHO. The challan/charge sheet has been filed in the Court with the approval of the SHO/ACP/DCP, and therefore, he was not responsible for lapses, if any, in the matter.
13. Respondents in their reply have submitted that the applicant and his team have apprehended one Keshar Singh and recovered 1.8 kg charas like contraband substance from his possession. In the meantime, Inspector Suresh Dabas, the then SHO/Rohini reached the spot and recovered case property alongwith FSL form was seized and the Inspr., took the possession of case property. The applicant prepared a rukka and sent to Duty Officer PS Rohini for registration of FIR. Subsequently, a case vide FIR No.886 dated 20.12.2000 u/s 20/61/85 NDPS Act was registered and it was entrusted to SI Dharam Pal for further investigation. HC Dilbagh Singh has made endorsements on two rukkas. Inspector Suresh Dabas had taken over the possession of case property with FSL form from the spot and deposited the same in PS Malkhana vide DD No.24-A dated 20.12.2000. As per Register No.19 the applicant, the then incharge of PP Vijay Vihar had deposited the case property, vide mud No.2124/2000 of Register No.19 PS Malkhana. The MHC (M) has handed over only sample of the case for depositing with the FSL, Malviya Nagar to Const. Rajinder Singh vide RC No.40/21/2001 on 4.3.2001 but at the time of deposition before the Court, Const. Rajender Singh was confronted with his statement recorded u/s 161 Cr. P.C. as Road Certificate No.40/21 dated 4.3.2001 was also silent about FSL form. Apart from this both the investigation officers i.e. the applicant and SI Dharam Pal did not comply with the provisions of Section 57 of NDPS Act and also failed to record the statement of Const. Rajender Singh properly. Later on, challan of the case was sent to court for judicial verdict but the learned Court of Sh. N.K.Sharma, ASJ has adversely commented upon the shortcomings and recommended for taking appropriate action against the erring police officials who defamed the image of Delhi Police.
14. The learned counsel for the respondents Mrs. Rashmi Chopra has relied upon the judgment of State of Haryana Vs. Rattan Singh, (1977) 2 SCC 491 and South Bengal State Transport Corporation Vs. Swapan Kumar Mitra & Ors., 2006 (2) AISLJ 411.
15. In Rattan Singhs case (supra), the Apex Court has held as under:
4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamenlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order in invalid on that ground.
16. In the case of Swapan Kumar Mitra (supra), the Apex Court held as under:
9. We have heard the learned counsel for the parties and also examined the relevant records of this case. Although the Division Bench had not categorically said that the departmental proceeding could not be continued and punishment could not be imposed on the delinquent employee when the criminal case ended in acquittal, even then the learned counsel for the , respondents sought to argue this ground before us. In our view, this ground is no longer res integra. In Nelson Motis v. Union of India and Ors., 1992 (4) SCC 711 = 1992 (3) SLJ 65 (SC) a three-Judge Bench of this Court observed at Paragraph 5, as follows:
"5. So far the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance 1 whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the (subject-matter of the criminal case." (emphasis supplied)
10. Similarly in Senior Supdt. of Post Offices v. A. Gopalan, (1997) 11 SCC 239, the view expressed in Nelson Motis v. Union of India1 was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and the order of acquittal in the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case, departmental proceedings could not be continued and the order of removal could not be passed.
17. We have heard the learned counsel for the parties. The enquiry officer himself has summarized the charge into 4 points as under:-
A) HC Dilbagh Singh, Duty Officer had made endorsement on two Rukkas.
B) Inspr. Suresh Dabas had taken over the possession of case property with FSL form from the spot and deposted the case property and FSL form in PS Malkhana vide DD No.24A dated 20.12.2000 but register No.19 as well as 21 is silent and SI Anant Kiran I/C PP Vijay Vihar had deposited the case property vide Mud No.2124/2000 of register No.19 PS Malkhana.
C) Inspr. Suresh Dabas the then SHO Rohini failed to check the entry made by MHC (M) in register No.19 of PS Malkhana, MHC (M) handed over only the sample of the case for depositing with FSL Malviya Nagar to Const. Rajender Singh No.717/NW vide RC No. 40/21/2001 dated 4.3.2001.
D) Both the Investigating officers did not comply with the provision of section 57 NDPS Act in this case and also failed to record the statement of Const. Rajender properly. Later, challan of this case was sent to court of judicial verdict but the Ld. Court of Shri N.K.Sharma, ASJ has adversely commented upon the above noted shortcomings and the case was acquitted. The reference about the Applicant appears in the 2nd and the 4th points. As regards the first point is concerned it says that the Applicant has deposited the case property vide Mud No. 2124/2000 of register No. 19 PS Malkhana. The Enquiry Officer in his discussion of evidence has stated that it was because of the default of the SHO Sh. Suresh Dabas, the co-delinquent in the case, contradictory statements were made before the learned Trial Court about the person who had deposited the case property along with the FSL form. The Enquiry Officer further stated that though as per Malkhana register, the case property has been deposited by the Applicant, evidence and explanations in the written defence go against the SHO Suresh Dabas. In other words, there is nothing against the Applicant. Another charge against the Applicant stated to have been proved by the Enquiry Officer is that he has not followed the provisions of such 57 of the NDPS Act inasmuch as the defaulters have not given any information to ACP/DCP about the arrest and seizure of charas. According to the Enquiry Officer both the IOs Anant Karan (Applicant) and ASI Dharam Pal have been trying to shift the responsibility of sending intimation u/s 57 of NDPS Act or each other. The Enquiry Officer has not given his finding as to who was responsible for sending the intimation, leaving it to the Disciplinary Authority to guess. We, therefore, do not find any specific charge against the Applicant. Even though the Enquiry Officer has stated vaguely in his report that the charge against the defaulter stands proved, there is absolutely no clarity as to what part of charge has been proved against whom. In any case, we do not find any part of charge has been proved against the Applicant and therefore the findings of the Enquiry Officer is perverse.
18. The Disciplinary Authority has passed the order imposing the punishment of forfeiture of one year approved service on all the defaulter uniformly without specifying the gravity of the proved misconduct on the part of each of them. We have seen that the Disciplinary Authority has not applied its mind at all while passing its order. The Appellate Authoritys order is in fact against the findings of the Enquiry Officer. According to the Appellate Authority, the crux of the misconduct is the preparation of two rukkas whereas according to the findings of the enquiry officer, misconduct was endorsement on two rukkas by HC Dilbagh Singh, Duty Officer. The Appellate Authority, however, goes on to say that the second rukka is verbatim copy of the first rukka and there was no malafide intention or any effort to make any improvements. Though the Appellate Authority did not agree with the punishment imposed by the Disciplinary Authority, still it has awarded the punishment of censure upon all the delinquents including the Applicant without any reason.
19. In view of the aforesaid facts and circumstances, it is our considered view that no misconduct has been made out against the applicant. The finding of the enquiry officer is bereft of any evidence and therefore, it is perverse. Both the Disciplinary Authority and the Appellate Authority have also not applied their mind in imposing the punishment. Even though, ultimately the punishment imposed upon the Applicant is Censure which is very minor one, it has its adverse impact on the career of the Applicant. No punishment can be imposed upon the employee just for sake of awarding same punishment and such punishments even if it is the mildest one, it cannot be justified. Resultantly, this OA is allowed. The impugned orders are set aside with all consequential benefits. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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