Central Administrative Tribunal - Delhi
Constable Brijbeer Singh vs Government Of Nct Of Delhi Through Chief ... on 6 March, 2007
ORDER N.D. Dayal, Member (A)
1. A departmental enquiry was instituted against the applicant by order dated 4.1.2005 and the summary of allegations was drawn up as under:
On 10.5.98 at about 8.30 PM Maruti Van No. DL-6C-D-3224 was being driven by one Charanjeet Singh S/o Sh. Gian Chand Baba r/o 132, H-3, Antriksh Apartment Vikas Puri, New Delhi in a rash and negligent manner so as to endanger human life and personal safety of others at E-Block Security Line, New Delhi and struck Const. Rohtash Singh who was standing at the gate. Const. Brijbeer No. 8554/DAP (Now 840/NE) had seen the accident and stopped the Maruti Van No. DL-6C-D-3224 and taken the injured Constable to R.M.L. Hospital in the same Maruti Van and produced Charanjeet Singh alongwith vehicle to SI Subhash. During the trial Constable Brijbeer No. 8554/DAP (Now 840/NE) deposed before the Court and he did not support his earlier statement recorded Under Section 161 Cr.P.C. in case FIR No. 116/98 Under Section 279/337/304-A IPC, P.S. Tughlak Road. Constable Brijbeer Singh No. 8554/DAP (Now 840/NE) being a material witness did not identify the accused. The accused was acquitted by giving him benefit of doubt.
2. It is seen that after having examined two PWs the enquiry officer framed charges on the same lines as the summary of allegation. One DW was produced by the applicant who also submitted his defence statement. The enquiry officer in his findings dated 9.3.2005 held the charges as proved and the disciplinary authority having considered the representation of the applicant against show cause notice, by his order dated 14.6.2005 imposed the penalty of forfeiture of three years' approved service permanently entailing proportionate reduction in his pay from Rs. 4220/- to Rs. 3965/-.
3. The appeal of the applicant was rejected vide appellate authority's order dated 23.2.2006. The applicant is, therefore, before us seeking that order dated 4.1.2005 initiating the DE, findings of the enquiry officer dated 9.3.2005, punishment order dated 14.6.2005 and appellate order dated 23.2.2006 be set aside and the respondents directed to restore the applicant's forfeited service and reduced pay with all consequential benefits including promotion/seniority and arrears of pay.
4. It has been argued that the applicant has been held responsible for not identifying the accused as per his earlier statement under Section 161 Cr.P.C. during the trial in the learned court of Metropolitan Magistrate, New Delhi even though the court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C. Even Rule 13 of the Delhi Police (Punishment & Appeal) Rules, 1980 is not attracted since no strictures were passed by the court against the applicant. The enquiry officer has exceeded his brief by acting as a prosecutor with a biased attitude to elicit answers to leading questions by cross examining the witnesses without giving opportunity to the applicant to re-cross examine them thereafter. The findings of the enquiry officer are based on no evidence and the disciplinary authority has not considered the representation/defence of the applicant. Even the appellate authority has not applied its mind and mechanically endorsed the reasoning given by the disciplinary authority in a non-speaking and cryptic order. The allegations against the applicant do not attribute any motive to him because of which it was incorrect for the disciplinary authority to hold that if he failed to identify the accused in the court, it means that he did it intentionally.
5. In their counter reply, the respondents have stated that the accused was acquitted by the learned court by giving benefit of doubt because the applicant even though he was a material witness did not identify the accused contrary to his earlier statement. The disciplinary authority had gone through the evidence and records and issued a detailed, speaking and reasoned order. The applicant was heard in person as well. The applicant has admitted that he had seen the accident, stopped the Maruti Van and taken the injured constable in the same van as well as produced the accused driver Charanjeet Singh along with the van to SI Subhash, IO, in the Police Station. The applicant has pleaded that during the trial he did not support his earlier statement because it was his first evidence before court. The respondents have, therefore, asserted that as per the enquiry proceedings it could not be believed that the applicant did not know the driver of the Maruti Van who caused the accident. It cannot be said with certainty why he resiled from his earlier statement but in spite of cross examination by the learned APP in the court the applicant only said that the Maruti Van was being driven by the Sikh who was not present in the court. The punishment order as well as the appellate order have been issued after due application of mind to the material on record and penalty has been rightly imposed upon him.
6. In his rejoinder, the applicant has largely reiterated the contents of the application while denying the stand taken by the respondents in their reply.
7. We have heard the learned Counsel for both the parties and perused the pleadings as well as the original records produced. From the enquiry report it is noted that SI Subhash, PW-2, who was posted on 10.5.1998 in PS Tughlak Road stated that the applicant reached there along with driver of the Maruti Van. It is also stated, 'He told me that when he was present in Hospital, he was making telephone call to the relatives of injured that is why he could not meet him. Ct. Brijbeer told that when this accident happened, he was 100 meter far. Driver of Maruti Van was running, he stopped him, took back him at Gate of E-Block, told Munshi that Constable who met with accident belongs to our unit and Munshi after detailing him as caretaker sent him in the same Maruti Van with injured Ct. Rohtash to R.M.L. Hospital. Then Ct. Brijbeer went after leaving driver of Maruti Van Sh. Charanjeet Singh and Maruti Van at the Police Station. He recorded the statement of Ct. Brijbeer in Under Section 161 Cr.P.C. which is marked as Ex. PW-2/A.' PW-2 during cross examination by the defence assistant of the applicant, has admitted that he recorded the statement of the applicant Under Section 161 Cr.P.C. which is Ex.PW-2/A on 10.5.1998 as well as the supplementary statement on 11.5.1998. PW-1 Constable Yogesh has stated that he was an eye witness of the accident and further during questioning replied in the affirmative when confronted with his statement dated 11.5.1998 before the I.O. that when after committing the accident the Sikh driver of the Maruti Van ran towards Vijay Chowk, the applicant who was posted in his uniform and was on duty stopped the said van and thereafter Constable Rohtash was rushed to R.M.L. Hospital in the same Maruti Van and the same Sikh driver was driving the van which was marked as Ex.PW-1/B. It is noticeable that DW-1, Constable Yogender Singh, who was the only defence witness, made a statement that at about 8.30 p.m. on the night of 10/11.5.1998 when he and the applicant were standing near the Duty Officer, the latter told the applicant that an accident had occurred outside on the road and that he should know the facts and come back. The applicant went outside and on return said that Constable Rohtash had met with an accident, after which the applicant was ordered to take Constable Rohtash to the Hospital and he went away. Thereafter against question No. 5, the DW replied in the negative when asked whether the road on which accident occurred was in the view of the Duty Officer where he was sitting in the DO Room. In his defence statement the applicant has contended that Const. Yogesh who was PW-1 was the main eye witness but had not been examined by the learned court of Metropolitan Magistrate. Even SI Subhash who was PW-2 was not called by the learned court. Since no TIP was done he could not have identified the Sikh driver.
8. It is noticed that the enquiry officer has discussed the evidence before him in detail and inter alia recorded that:
It is crystal clear from the perusal of judgement and deposition of Ct. Brijbeer in the Hon'ble Court on 20.8.99 that during his cross examination he resiled from his previous statement. The Ld. APP made a request to the Court to cross examine him. The request was heard and allowed. Ct. Brijbeer did not support the case of prosecution and stated that M/Van was being driven by one sikh and he was not present in the Court. However, the same sikh driver who was driving the M/Van and hit Ct. Rohtash and subsequently was stopped by Ct. Brijbeer and injured Ct. Rohtash was taken to R.M.L. Hospital in the same M/Van being driven by the same sikh driver who had caused the accident on 10.5.98 was present in the Court. The sole denial of Ct. Brijbeer to identify the sikh driver of M/Van demolished the prosecution story and led to the acquittal.
It is correct that Case FIR No. 116/98 Under Section 279/337/304-A IPC was registered on the statement of Ct. Yogesh No. 2020/W. The contention of defaulter Ct. Brijbeer that Ct.Yogesh No. 2020/W was main eye witness does not carry any weight. Defaulter Ct. Brijbeer was in better position to see the sikh driver because he stopped M/Van and took injured Ct. Rohtash in the same M/Van being driven by same sikh driver who caused the accident to hospital and subsequently produced M/Van and sikh driver in P.S. Tughlak Road to I.O. SI Subhash.
xxx xxx xxx xxx xxx M/Van and its sikh driver was produced to I.O. SI Subhash by Ct. Brijbeer in P.S. Tuglak Road after getting injured Ct. Rohtash admitted in R.M.L. Hospital. The sikh driver did not run away from the spot. Under these circumstances no TIP was required to be got conducted.
It is concluded that the charge against the applicant stood proved.
9. In the penalty order the disciplinary authority has noticed the evidence recorded during the enquiry and found that there was nothing to believe that the applicant did not know the driver of the Maruti Van. It was further opined that the plea taken by the applicant that this was his first evidence is not acceptable as there is a provision in law to refresh the memory and he should have adopted the same. His contention that he was not an eye witness indicates that he had made up his mind to retract from his earlier statement, which is why he was cross examined by the learned APP in the court. We find that the appellate authority has also rejected the appeal of the applicant on similar grounds.
10. We also find that as per Rule 16(iii) of the Delhi Police (Punishment & Appeal) Rules, 1980 the accused is bound to answer any questions put by the enquiry officer to elucidate facts in statements or documents brought on record. Rule 16(v) empowers the enquiry officer to frame questions which he wishes to put to the witnesses to clear ambiguities or to test their veracity. Rule 16(vii) authorizes him to put questions as deemed fit after the accused submits his own version. By Rule 16(viii) after the defence evidence has been recorded and the accused officer has submitted his final statement, the enquiry officer can examine other witnesses whose testimony is considered necessary for clarifying certain facts not already covered by the evidence brought on record in the presence of the accused officer who shall be permitted to cross examine all such witnesses and then to make supplementary final defence statement, if any, in case he so desires. It is noticeable that these Rules do not specifically provide for a presenting officer which appears to be the reason why the enquiry officer has been suitably empowered. There appears to be no material on record to show that the applicant had raised a grievance during the enquiry against the manner of questioning by the enquiry officer. Rather, in the defence statement it seems the applicant has referred to the questions by the enquiry officer as clarifications. On the other hand, the enquiry report clearly indicates that the PWs were examined in the presence of the applicant and his defence assistant. Noticeably the defence assistant has questioned both the PWs and the applicant had submitted his defence statement. Our attention has not been drawn to any material on record to show that the applicant had asked to re-cross examine the witnesses but his request was denied. We are, therefore, not persuaded that the applicant could successfully claim prejudice on this ground, as per the judgment of the Hon'ble Supreme Court in State Bank of Patiala and Ors. v S.K.Sharma [JT 1996 (3) SC 722].
11. We are of the view that the conclusion arrived at by the enquiry officer cannot be faulted as based upon no evidence. If no strictures were passed by the learned court of the Metropolitan Magistrate or any other adverse comment/action taken in terms of Sections 340 or 344, Cr.P.C., it would not render the evidence that has come on record during the departmental enquiry proceedings as irrelevant to the charge levelled against the applicant. Besides, the proceedings in a departmental enquiry are initiated and conducted on the basis of specific and distinct rules.
12. Both the punishment order and the appellate order cannot be said to be non-speaking or cryptic but show due application of mind to the facts and circumstances of the case. If the disciplinary authority has opined that the applicant's failure to identify the accused was intentional, it cannot be successfully countered by a mere denial of the same. It is well settled that if there is some evidence that has a link to the charge against the applicant, the penalty awarded could not be said to be questionable or be interfered with. The Hon'ble Supreme court in B. C. Chaturvedi v Union of India [(1995) 6 SCC 749] has observed:
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.
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 , 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.
13. The applicant has relied upon the following judgments in support of his case:
1. N. R. Dhananjayan v Management of Indian Overseas Bank and Anr. 2006 (6) SLR 485 (Karnataka High Court);
2. Union of India and Ors. v Mohd. Naseem Siddique 2005 (1) ATJ 147 (MP High Court);
3. ASI Sher Singh v Government of NCT of Delhi and Ors. [Order dated 7.7.2004 of CAT Principal Bench in OA No. 2827/2003].
4. Sugan Chand and Ors. v Government of NCT of Delhi and Ors. [Order dated 1.9.2005 of CAT Principal Bench in OA No. 1913/2004]; and In Dhananjayan (supra) the petitioner was a Bank employee and evidently not governed by the rules of the Delhi Police relating to punishment and appeal. Similarly in the case of Mohd. Naseem Siddique (supra), the Railway Servants (Discipline & Appeal) Rules, 1968 applied to the proceedings whereas in the case of ASI Sher Singh (supra) the order passed by the Tribunal seems to indicate that the applicant therein was not permitted by the enquiry officer to further cross examine the witnesses. In Sugan Chand (supra) the issue related to violation of principles of natural justice wherein it was held that non-supply of PW statements of witnesses to the applicants which were examined is deprivation of applicant's right to effective cross examination, which is a breach of natural justice and vitiates the enquiry and punishment. We are, therefore, of the opinion that these judgments would not advance the case of the applicant.
14. In the aforesaid situation, we are not inclined to accede to the relief sought by the applicant and the OA is dismissed. There shall be no order as to costs.