Central Administrative Tribunal - Delhi
Hc Lekh Raj (8090/Dap vs Govt. Of Nct Of Delhi Through Chief ... on 28 May, 2010
Central Administrative Tribunal Principal Bench OA No.2387/2008 New Delhi this the 28th day of May, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) HC Lekh Raj (8090/DAP, PIS No.28884126) presently posted in 7th Bn. DAP, S/o late Shri Durgadas, R/o House No.248, Police Colony, Near Kela Godown, Shalimar Bagh, Delhi. -Applicant (By Advocate Shri Sourabh Ahuja) -Versus- 1. Govt. of NCT of Delhi through Chief Secretary, Delhi Sachivalaya, ITO, New Delhi. 2. Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Joint Commissioner of Police, Armed Police, Delhi through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police, 7th Bn., DAP, Delhi through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 5. Deputy Commissioner of Police (Vigilance), through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. -Respondents (By Advocate- Shri H.K. Gangwani) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, a Head Constable in Delhi Police, by virtue of this OA has challenged an order dated 11.02.2008, whereby a major penalty of forfeiture of five years of approved service with proportionate reduction in pay has been imposed, as well as an order passed in appeal on 26.5.2008, upholding the punishment. Also assailed is an order dated 23.5.2006, whereby the name of the applicant has been brought on the list of officers having doubtful integrity w.e.f. 3.5.2006 for a period of three years.
2. Applicant was proceeded against in a major penalty under Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980 on the ground that while posted at PS Karol Bagh applicant along with SI Deep Chand was found indulged in corrupt activities. One Vipin Kumar, whose matter was sub judice before the High Court, where SHO had already filed a status report, on contacting applicant, who was working as Reader to SHO, assured him to facilitate registration of FIR and also demanded money and accepted it along with SI Deep Chand to favour the complainant. This transaction was recorded in the sting operation conducted by NDTV telecasted on the night of 23.11.2005. PW-5, i.e., SHO having clearly ruled that he has not seen/heard applicant taking bribe but stated that on being confronted, applicant admitted having received the money for which a report has been sent to the senior officers. Rest of the witnesses, including the complainant supported the charge. The CD was not proved by examination of the witness from the NDTV, who though was summoned, but had not turned up. The enquiry officer (EO) held applicant guilty of the charge on the basis of his statement of PW-6 Vipin Kumar, complainant and also the admission as to their guilt, which led to finality and confirmation of it in appeal, giving rise to the present OA.
3. Learned counsel of applicant while relying upon the decision of the Tribunal in Sheoraj Singh Dhama v. Govt. of NCT of Delhi & Ors., OA No.1902/2007, decided on 6.5.2008, contended that when the testimony of complainant, who has not been an interested person has not corroborated the same, would not lead to any punishment. Also relied upon is the decision of the Apex Court in Ministry of Finance and Another v. S.B. Ramesh, (1998) 3 SCC 227, to contend that once the CD was taken into consideration as a proof, not being exhibited and the maker of it having not been examined, it cannot be treated as an admissible evidence. Reliance has been placed on a decision of the Apex Court in LIC of India v. Ram Pal Singh Bisen, 2010 (3) SCALE 121 to contend that admission of document in evidence does amount to proof only when it is being exhibited and maker is produced for examination. It is contended that as this has not been done, enquiry against the applicant and the consequent orders are not sustainable in law.
4. On the other hand, learned counsel of respondents would vehemently oppose the contentions. Learned counsel of respondents states that the applicant has admitted his guilt before the SHO for which information was given to the higher authorities. It is further stated that Rule 15 (2) was complied with, as permission was accorded on 12.12.2005. It is also stated that the complainant has supported the complaint in a statement made by him. As such, the present is not a case of no evidence and as the documents have been provided to the applicant he has been given all due opportunities during the course of enquiry. As holding of guilt by the EO does not suffer from any infirmity, it is stated that the punishment is commensurate with the misconduct alleged and proved.
5. We have carefully considered the rival contentions of the parties and perused the material on record. An admission in the enquiry or earlier can be a valid piece of evidence, if the condition precedent of its being proved during the course of hearing is satisfied. In the instant case, the SHO, PW-5 had sent a report to the officers in which he has described that the applicant has admitted his guilt before him but there is no documentary proof as to admission of the guilt and merely on verbal assertion admission cannot be sustained, as in order to be admissible in law, even applying the test of preponderance of probability, the same has to be in writing. As such, no legal credence can be based on such an admission.
6. The present is a case where apart from the testimony of Vipin Kumar, complainant, no other evidence has come-forth to show that applicant has demanded or accepted the money. The testimony of complainant being tentative and interested and held without corroboration it cannot be made admissible, as held in Sheoraj Singh Dhamas case (supra).
7. As regards the sting operation, the same has admissibility but after its proof. It is admitted by the departmental authorities that the reporter who had taken this version in CD has not been examined, which has deprived applicant a reasonable opportunity to rebut his defence by way of cross-examination. Interpolation and fabrication with the CD has also not been tested by examining the witnesses.
8. Insofar as role of Media is concerned, once on the drop of hat is agreeable to bring to the limelight in public interest the corruption prevalent in Delhi Police by telecasting it live, yet when the persons are called to vouch for their telecast and recording, non-cooperation speaks volume about their conduct, as being law abiding citizens they have a foremost fundamental duty towards Nation to bring their investigation to a logical conclusion by establishing it. CD is not to be treated as a document, unless the maker of it is examined and this has not been proved either by primary or secondary evidence. The decision of the Apex Court in Ram Pal Singh Bisen (supra) clearly mentions such evidence as not admissible even in disciplinary proceedings. As we are left with no evidence to connect applicant with the misconduct, the penalty imposed, in view of the decision of the Tribunal in Sheoraj Singh Dhamma (supra), cannot be sustained. These aspects have not been taken into consideration either by the disciplinary or the appellate authorities.
9. In the result, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Consequences to follow in accordance with law. However, this shall not preclude the respondents to resume the proceedings, if so advised, from the stage of examination of reporters of NDTV to prove the recording as telecasted by them. In such an event, law shall take its own course. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.