Central Administrative Tribunal - Delhi
Randhir Singh vs Comm. Of Police on 15 November, 2017
1 OA 2506/14
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.2506 OF 2014
New Delhi, this the 15th day of November, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON'BLE MS.PRAVEEN MAHAJAN, ADMINISTRATIVE MEMBER
..............
Randhir Singh, aged 55 years,
s/o Sh.Mange Ram,
r/o H.No.D-59, Amar Colony,
Mundka, Nangloi, Delhi,
ASI in Delhi Police No.2006-D,
7th Bn., DAP,
PTS Malvia Nagar, New Delhi ........ Applicant
(By Advocate:Dr.Kanwal Sapra)
Vs.
1. The Chief Secretary,
GNCT of Delhi,
I.P.Estate, New Delhi.
2. The Joint Commissioner of Police,
South Western Range,
Police Headquarters, I.P.Estate,
Delhi.
3. Dy.Commissioner of Police,
West District, Rajouri Garden,
New Delhi ............. Respondents
(By Advocate: Ms.Sangeeta Tomar)
............
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
This Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of the order dated 26.9.2011 (Annexure-A) by which the Disciplinary Authority (DA) has initiated the departmental proceedings against him under the Delhi Police (Punishment & Appeal) Rules, 1980; the order dated Page 1 of 15 2 OA 2506/14 7.11.2012(Annexure B) by which the DA has imposed upon him the punishment of "withholding of one increment temporarily for a period of one year"; and the order dated 1.7.2013 (Annexure C) by which the his appeal against the said punishment order passed by the DA has been rejected by the Appellate Authority (AA).
2. Resisting the OA, the respondents have filed a counter reply. The applicant has also filed a rejoinder reply thereto.
3. We have carefully perused the records, and have heard Dr.Kanwal Sapra, the learned counsel appearing for the applicant, and Ms.Sangeeta Tomar, the learned counsel appearing for the respondents.
4. The accusations against the applicant are that while he was posted as ASI at PS Vikas Puri, Delhi, a case FIR No.43 dated 3.2.2011 under Sections 325 and 506 read with Section 34 IPC, PS Paschim Vihar, was registered against him on the statement of Shri Yogender Prasad, s/o Jagdish Prasad, R/o A-3/68, Police Colony, Paschim Vihar. It was alleged by Shri Yogender Prasad that while he, along with his mother, was going to market and he reached near main gate of Police Colony, Smt. Raj Pati Devi, wife of the applicant uttered filthy language at his mother on the issue of money transaction. This led to exchange of heated arguments between them. In the meantime, the applicant came out of his house with a stick and started beating Shri Yogender Prasad. The local residents gathered there and tried to save Shri Yogender, but the applicant beat him mercilessly. It was also alleged by Shri Yogender that son of the applicant also came out with an Page 2 of 15 3 OA 2506/14 axe, and the applicant came back to the spot with a rifle and threatened to kill him. After medical examination of Shri Yogender, the FIR was registered against the applicant and others. The applicant was arrested and released on bail. The applicant was also placed under suspension. The DA, vide his order dated 26.9.2011, initiated the departmental proceedings against the applicant. The summary of above allegations/charge, and the lists of documents by which, and of witnesses by whom the charge was proposed to be sustained, were served on the applicant. The enquiry was conducted by the Inquiry Officer (IO). The applicant engaged Shri Rohtash Singh, retired ACP as his defence assistant. Seven witnesses were examined on behalf of the prosecution. Six witnesses were examined on behalf of the defence/applicant. After analyzing the evidence and other documentary evidence led by the prosecution and defence, the IO submitted his report finding the charge as proved against the applicant. Copy of the enquiry report was supplied to the applicant. The applicant submitted his representation against the enquiry report. After considering the findings of the IO, the materials available on record of enquiry, and the pleas raised by the applicant in his representation against the findings of the IO, the DA held the applicant guilty of the charge and imposed upon applicant the punishment of "withholding of one increment temporarily for a period of one year", vide order dated 7.11.2012. Being aggrieved, the applicant made an appeal against the DA's order dated 7.11.2012. After considering the materials available on record and the pleas raised by the applicant in the Page 3 of 15 4 OA 2506/14 appeal petition, the AA, vide order dated 1.3.2013, rejected the applicant's appeal.
5. Dr.Kanwal Sapra, the learned counsel appearing for the applicant, submitted that both the IO and DA have failed to appreciate the evidence and materials available on record in their proper perspective. The inconsistencies in the statements made by the prosecution witnesses have not been taken into account by the IO and DA, while assessing the prosecution evidence and returning the finding of guilt against the applicant. Therefore, the findings arrived at by the IO and DA are perverse, and the impugned orders are liable to be quashed.
6. On the other hand, Ms.Sangeeta Tomar, the learned counsel appearing for the respondents submitted that there was sufficient evidence to prove the charge against the applicant. The IO and DA have taken into account the inconsistencies in the statements of P.Ws., as pointed out by the applicant, while evaluating the evidence led by the prosecution and defence, and have recorded their findings in fair manner. The pleas raised by the applicant have been duly considered and findings thereon have been arrived at by the IO and DA. The procedure established by law has been duly followed. Thus, there is no infirmity in the orders passed by the authorities. Therefore, the O.A. is liable to be dismissed.
7. It is no more res integra that the power of judicial review does not authorize the Tribunal to sit as a court of appeal either to reappraise the evidence/materials and the basis for imposition of penalty, nor is the Page 4 of 15 5 OA 2506/14 Tribunal entitled to substitute its own opinion even if a different view is possible. Judicial intervention in conduct of disciplinary proceedings and the consequential orders is permissible only where (i) the disciplinary proceedings are initiated and held by an incompetent authority, (ii) such proceedings are in violation of the statutory rule or law, (iii) there has been gross violation of the principles of natural justice, (iv) there is proven bias and mala fide, (v) the conclusion or finding reached by the disciplinary authority is based on no evidence and/or perverse, and (vi) the conclusion or finding be such as no reasonable person would have ever reached.
8. In State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 375, it has been held thus:
"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 whom 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 Page 5 of 15 6 OA 2506/14 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 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."
9. The Hon'ble Apex Court in the case of K.L. Shinde v. State of Mysore, (1976) 3 SCC 76, having considered the scope of jurisdiction of this Tribunal in appreciation of evidence, has ruled 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 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 Page 6 of 15 7 OA 2506/14 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 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."Page 7 of 15 8 OA 2506/14
10. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805, it has been laid down by the Hon'ble Supreme Court that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It has also been laid down that where a quasi judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
11. In B.C. Chaturvedi v. Union of India, AIR 1996 SC 484, reiterating the principles of judicial review in disciplinary proceedings, the Hon'ble Apex Court has held 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 Page 8 of 15 9 OA 2506/14 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.
12. In R.S. Saini v. State of Punjab and ors, (1999) 8 SCC 90, the Hon'ble Apex Court has observed as follows:
"We will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."
13. The above view has been followed by the Hon'ble Apex Court in High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil, (2000) 1 SCC 416, wherein it has been held as under:
"...Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal Page 9 of 15 10 OA 2506/14 position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution."
14. In Syed Rahimuddin v. Director General, CSIR and others, ( 2001) 9 SCC 575, the Hon'ble Apex Court has observed as under:
"...It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man...."
15. In Sher Bahadur v. Union of India, (2002) 7 SCC 142, the order of punishment was challenged on the ground of lack of sufficiency of the evidence. The Hon'ble Apex Court observed that the expression "sufficiency of evidence" postulates "existence of some evidence" which links the charged officer with the misconduct alleged against him and it is not the "adequacy of the evidence".
16. In Government of Andhra Pradesh v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, the Hon'ble Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if it results in manifest miscarriage of justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:
"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority....."Page 10 of 15 11 OA 2506/14
17. Keeping in mind the principles laid down by the Hon'ble Supreme Court in the above decisions, we have to examine the rival contentions of the parties.
18. We have carefully gone through the enquiry report submitted by the IO and the orders passed by the DA and AA.
19. In his report, the IO has discussed and analyzed the statements made by the prosecution and defence witnesses examined during the enquiry and recorded the following findings:
"I have carefully gone through the depositions of P.Ws., D.Ws. and documents exhibited during enquiry. I have also carefully considered the defence submission of delinquent ASI Randhir Singh No.2006/D. In this DE: 07 P.Ws. and 06 DWs have been examined. P.W.01 has proved the posting of ASI Randhir Singh. PW-02 has proved that the case was registered and entrusted to SI Bhawani Shankar for investigation. PW-03 has proved that defaulter ASI Randhir Singh having a license NPB rifle and the same was deposited in the malkhana of PS Paschim Vihar on 11.9.2011. P.W-04 has proved that a quarrel had taken place and ASI Randhir Singh beat them and also threatened to kill. He also showed his licensed rifle. PW-05 also proved that a quarrel had taken place between defaulter ASI Randhir Singh and Yonginder Pd. PW-04 and the defaulter ASI Randhir Singh also showed his licensed rifle. PW-06 has deposed that on the complaint of Yoginder Pd. A case FIR No.43/11 u/s 325/34 IPC was registered and later during investigation the facts regarding threatened came into notice section 506 IPC also added in this case. PW-07 deposed that a quarrel between defaulter ASI Randhir Sigh and Yoginder Pd. Took place and Yoginder told him that ASI Randhir Singh beaten him and also threatened to kill Yoginder Pd. And his family.
xx xx He has taken plea that incident had taken place on 21.11.2010. Shri Yoginder Pd. Was taken to Sanjay Gandhi Hospital where MLC was prepared. On the MLC no injury of Yoginder Pd. Was kept under observation and no injury was stated to be grievous......Page 11 of 15 12 OA 2506/14
The plea taken by the defaulter ASI have no weight as PW-06 SI Bhawani Shankar has clearly stated that the MLC of Yoginder Pd. Was kept under observation and later result was opined as grievous and as such a case u/s 325/34 IPC was registered which is legal and justified.
He further stated that it was a planned thing to first commit the forgery on MLC to show that Yoginder Pd. Was advised three weeks medical rest and then to give result as grievous that a case u/s 325 IPC is registered. It is well established by the statement of Dr.M.Dass on the oath before the court that the report of Dr.Dhingra who has stated that he had categorized the injury as grievous just because the patient had been advised rest for three weeks. This plea need not be discussed as a criminal case is pending in the court and it is for court to decide whether there is forgery on MLC or otherwise. We have no concern in this regard.
He has further taken the plea that H.C.Omprakash is a maneuvered witness as he had not witnessed the incident being away from the scene. As per details of his mobile phone No.9868674275 his position at the time of so called quarrel was within the range of MHA North Block tower. H.C.Om Prakash was using this phone on the day of incident which finds mention in his statement recorded u/s 161 Cr.P.C. Therefore, it stands established through scientific evidence that H.C.Om Prakash was not present at the spot. Further he has stated that applicant was seen holding a 12 Bore gun while standing behind the Jaligate of the house. Applicant did not have any 12 Bore double barrel gun. Applicant had the license of 315 rifle. The question would arise if applicant was holding a double barrel gun why the police got applicant's license of 315 cancelled?
The plea taken by the defaulter ASI is also not tenable. PW-05 Shri Om Prakash clearly stated in his statement that when he reached in front of Qr.No.68 he saw that ASI Randhir Singh was beating Yoginder Pd. And his mother and also saw that defaulter ASI Randhir Sigh also having double barrel gun and threatened them. This is no concern whether the gun is 123 bore and 315 rifle.
SI Bhawani Shankar has claimed in his examination in chief that result of injuries of Yoginder was kept under observation by the doctor however on being confronted with MLC of Yogender he could not find any such thing on the MLC.There is no such remark on the MLC that injuries are kept under observation. IO has thus made a false claim.
The plea taken by the defaulter ASI have no weight as PW-06 SI Bhawani Shankar categorically stated that the MLC Page 12 of 15 13 OA 2506/14 of Yogender Pd. Was kept under observation and after obtaining the result of MLC where doctor opined as grievous as such a case u/s 325/34 IPC was registered which is legal and justified.
He further stated that HC Randhir Singh has admitted that he had reached the spot on hearing the commotion and had not witnessed any marpeet as no beating had taken place after he reached at the spot. In his statement u/s 161 Cr.PC he has claimed to have witnessed the marpeet with the lady. Just see how contradictory his two statements are. He further pleaded that HC Ranbir Singh admitted that once he had an altercation with ASI Randhir Singh over the children. HC Ranbir Singh has claimed that Yoginder Pd. Father had reached at the spot before he reached there.
In this regard it is stated that Shri Ranbir Singh has deposed I his statement that he reached at the spot and heard that ASI Randhir Singh gave beating to Yoginder Pd. And also stated that later ASI Randhir Singh came out from his house and threatened to kill the family of Yoginder Pd. He admitted that an altercation between the children had taken place but he has stated in the DE proceedings what he has heard/seen at the spot.
The defaulter ASI further stated that the main cause of this quarrel/dispute is exchange of money between my relatives and Yoginder Prashad. Yoginder is not returning money, resulting in four cases were filed by relatives in the Hon'ble Court at Hissar, High Court, Chandigarh, Samana, Patiala, Punjab and Tis Hazari Court due to bounce of cheques. First two cases are pending whereas last two cases have been decided. Since Yoginder Prasad has returned the money of my relatives I have been involved in the present case intentionally so that Yoginder Prasad may not return the money of my relatives.
The contention submitted by the defaulter ASI is not admitted as criminal cases are pending in the various courts has no concern in the DE proceedings. It is the court to decide. In view of the above detail discussion and evidence on record I conclude that charge framed against delinquent ASI Randhir Singh No.2006/D is proved during the course of enquiry.
CONCLUSION After going thoroughly and carefully the statements of PWs, DWs, documents on record, the defence statement of the delinquent ASI and the above detail discussion the charge against ASI Randhir Singh No.2006/D is proved during the course of enquiry.Page 13 of 15 14 OA 2506/14
20. A perusal of the impugned order dated 7.11.2012 reveals that the DA has duly taken note of and considered all the pleas raised by the applicant in his representation against the findings of the IO. After hearing the applicant in O.R, and considering the entire materials available on record of enquiry, the DA has passed the impugned order, dated 7.11.2012, imposing upon applicant the punishment of "withholding of one increment temporarily for a period of one year". It also transpires from the impugned order dated 7.11.2012 that the DA did not accede to the request of the applicant made during the O.R. for taking a lenient view in the matter.
21. The AA, in his order dated 1.3.2013, while upholding the findings recorded by the IO and DA, has observed as follows:
"I have perused the appeal, punishment order as well as DE file. I have also heard him in OR. During OR, he repeated the same plea that he has raised in his appeal. He requested for taking a lenient view.
In his appeal, the appellant has stressed upon inconsistencies in the statements of PWs. But the fact remains that he indulged in the quarrel with Sh.Yogender Prasad and his mother on 21.11.2010, consequently a case FIR No.43/11 dated 3.2.2011 u/s 325/506/34 IPC PS Paschim Vihar was registered against the appellant. The appellant is a Govt. servant and is governed by CCS (Conduct) Rules, 1964. It is stipulated by rule 3(1)(iii) of CCS (Conduct) Rules, 1964 that every Govt. servant shall at all times do nothing, which is unbecoming of a Govt. servant. Thus the ASI was supposed to stay away from the quarrel, but as per evidence on record during the DE proceedings, he quarreled and inflicted injuries to Yogender Prashad with the stick and also threatened them with a gun. During DE proceeding the charge has been fully substantiated against him.
Thus showing any leniency in this matter will not only send a wrong signal of misplaced sympathy, but will also be Page 14 of 15 15 OA 2506/14 grossly detrimental to the norms of conduct that is expected from a police officer. Keeping in view the evidence came on record, I find that the disciplinary authority has rightly weighed the punishment on the strength of his misconduct and find no reason to interfere with the punishment order under appeal. The appeal is rejected being devoid of merit."
22. Taking into consideration the material and evidence on record and the legal position, as discussed herein above, we are of the considered opinion that the IO has correctly evaluated the evidence led by the prosecution and defence. The DA and AA have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, or irregularity, or perversity in the impugned orders. Hence, no interference therewith is warranted by this Tribunal.
23. No other point worth consideration has been urged or pressed by the learned counsel appearing for the parties.
24. In the light of our above discussions, we hold that the O.A. is devoid of merit and liable to be dismissed. Accordingly, the O.A. is dismissed. No costs.
(PRAVEEN MAHAJAN) (RAJ VIR SHARMA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
AN
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