Central Administrative Tribunal - Delhi
D.V. Gautam S/O Shri R.D. Gautam vs Government Of Nct Of Delhi Through Its ... on 28 March, 2008
ORDER Meera Chhibber, Member (J)
1. By this O.A. applicant has challenged enquiry report dated 12.2.2000 (at page 125), order dated 13.4.2005 whereby punishment of forfeiture of two years of approved service has been imposed on the applicant permanently, entailing proportionate reduction in his pay. His suspension period from 23.9.1997 to 5.10.1997 has also been held as period not spent on duty for all intent and purposes as well as order dated 29.06.2006 whereby his appeal has been rejected (page 54 and 57 respectively). He has also sought all consequential benefits to which he may be entitled to in law.
2. Applicant has challenged these orders on the following grounds:
(i) copy of the preliminary enquiry report or the statements recorded therein were not supplied to him even though he had specifically requested for supplying him those documents vide his application dated 2.2.1999 (page 61). The same was rejected by order dated 4.8.1998 (page 70). As a result of which, applicant has been seriously prejudiced as he has not been able to cross-examine the prosecution witnesses effectively. He has also submitted that PW-7 Inspector Jagdev singh has been examined in the departmental enquiry as witness but copy of his preliminary enquiry report has not been supplied to the applicant, therefore, it has vitiated the enquiry as well as the orders passed by the authorities. To buttress this argument, he relied on the judgment in the case of Antony Mathew v. U.O.I. decided on 26.7.2007 in OA No. 2385/2006 and also Randhir Singh v. U.O.I. reported in 1991 (5) SLR 731.
(ii) Rule 15 (2) of the Delhi Police (Punishment and Appeal) Rules, 1980 has been violated inasmuch as neither any reference has been made to Rule 15 (2) by the Joint Commissioner of Police nor he has given any reasons as to why he has ordered departmental enquiry and not criminal case which shows non-application of mind. To further buttress his argument, he has relied on the judgment given by the Hon'ble Supreme Court in the case of Vijay Singh v. U.O.I. and Ors. reported in 2007 (3) SCALE 58.1
(iii) The Joint Commissioner of Police was biased against the applicant as he had assured Shri R.S. Chaudhary that his case would be cancelled as is evident from the order passed by Shri Prithvi Raj (page 71). Moreover, Inspector Jagdev Singh, PW-7, had stated that complaint was addressed to Shri Y.S. Dadwal, Additional C.P. (page 107). On the basis of these facts, counsel for the applicant submitted that Joint Commissioner of Police was personally interested in the matter and was biased, therefore, order dated 17.3.1998 whereby he initiated departmental enquiry against the applicant is liable to be quashed and set aside.
(iv) Coming to the evidence which has come on record, counsel for the applicant has submitted that there are lot of contradictions inasmuch as in the charge itself, it is mentioned that applicant had extorted Rs. 15,000/- from Alka whereas Inquiry Officer states that money was extorted from Lata. Similarly, even though Sukhmal Jain nowhere stated that applicant had extorted any money from him, yet Inquiry Officer framed the charge against applicant stating that he had extorted money from Sukhmal Jain. He also submitted that the charge was to the effect that applicant had caused damage to the car to the tune of Rs. 1 lakh, but there was no evidence to this effect.
3. On the basis of above, counsel for the applicant submitted that the findings given by Inquiry Officer and the orders passed by the authorities are not sustainable in law. The same may accordingly be quashed and set aside.
4. Respondents on the other hand have opposed this OA. They have submitted that preliminary enquiry report was not a relied upon document nor any reliance has been placed on the statement or the preliminary enquiry report, as such applicant has no right to ask for the said documents nor has it caused any prejudice to him because all the witnesses, whose statements have been relied upon, have come into witness box in departmental enquiry and full opportunity was given to the applicant to cross-examine them. Final orders have been passed on the basis of evidence, which has come on record, therefore, this case calls for no interference. Counsel for respondents submitted that even if statement of PW-7 is excluded, there is still sufficient evidence on record to prove the charge against the applicant. Law is well settled that so long, there is some evidence in the departmental enquiry, courts cannot interfere with the orders passed by the authorities. He also submitted that no prejudice can be said to have been caused to the applicant because he has cross-examined PW-7.
5. As far as rejection of his request for providing him the documents is concerned, he submitted that letter dated 4.8.1998 cannot be said to be reply to applicant's request because his request was dated 2.2.1999 whereas this rejection letter was dated 4.8.1998 and was addressed to another person.
6. On non-compliance of Rule 15 (2), he submitted that Rule 15 (2) comes into play only when departmental enquiry is to be initiated by the DCP that he has to take prior approval of the Additional Commissioner of Police concerned. In the instant case since departmental enquiry itself was initiated by the Joint Commissioner of Police, Rule 15 (2) is not attracted. He further submitted that in this case Vigilance Enquiry was held which has been held by the Full Bench to be not a preliminary enquiry. He also submitted the case of Vijay Singh v. U.O.I. and Ors. is distinguishable.
7. As far as question of Shri Y.S. Dadwal's being biased is concerned, learned Counsel for the respondents submitted that if applicant felt Joint Commissioner was biased, applicant should have made him as a party by name. He cannot be allowed to say things against the Joint Commissioner of Police without impleading him as a party. In any case, penalty order has been passed by a different officer, namely, Shri R.K. Nayogi and appeal was rejected by Shri R.S. Gupta, the then Commissioner of Police, therefore, this contention is absolutely wrong and is liable to be rejected.
8. As far as contradictions in the statements are concerned, counsel for the respondents submitted that there is sufficient evidence on record to show that applicant had demanded and extorted money, had used the car of the complainant and caused loss to it. Simply because there are some variations in the amount or the names here and there, that would not vitiate the orders passed against the applicant. He relied on the statement made by PW-3 Shri Raghubir Singh, Alka PW-9 and Smt. Lata, PW-10.
9. Applicant's counsel in rejoinder reiterated his submissions and relied on another judgment given in the case of Vijay Singh v. Government of NCT of Delhi reported in 2000 (3) SLJ page 40.
10. We have heard both the counsel and perused the pleadings.
11. Before we start with the contentions of the learned Counsel for the applicant it would be necessary to note that departmental enquiry in this case, was initiated by Shri Y.S. Dadwal, the then Joint Commissioner of Police himself. As per Rule 15 (1) of the Delhi Police (Punishment and Appeal) Rules, 1980, in normal course, a departmental enquiry can be ordered straightaway by the disciplinary authority where specific information is available with regard to nature of default and identity of defaulter. Preliminary enquiry need not even be held in such cases. However, in Rule 15 (2) it is stipulated that if a preliminary enquiry is held which discloses the commission of a cognizable offence by the police officer of subordinate rank, in his official relations with the public, then departmental enquiry shall be ordered, after obtaining prior approval of the Additional Commissioner of Police concerned.
12. It has already been held by Hon'ble High Court in the case of Jt. Commissioner of Police v. Subey Singh and Ors. reported in SLJ 2003 (1) HC 399 that the post of Joint Commissioner of Police has been upgraded and carved out from the total strength of Additional Commissioner of Police, therefore, what Additional Commissioner of Police can do, the same power can be exercised by Joint Commissioner of Police also. In the instant case since Joint Commissioner of Police had himself initiated the departmental enquiry, it cannot be said that he should have taken prior approval from his own self. This would be ridiculous. Moreover, rule nowhere states that if Joint Commissioner of Police or Additional Commissioner of Police himself initiates the departmental enquiry, he has to take prior approval from some other authority. Similarly Rule 15 (2) nowhere stipulates that while ordering a departmental enquiry, reasons are to be recorded as to why departmental enquiry is being initiated and not a criminal case. In fact, there is no bar and both can be ordered. The very fact that departmental enquiry has been initiated by the Joint Commissioner of Police by a detailed order dated 17.3.1998, it shows that a conscious decision has been taken by the Joint Commissioner of Police to initiate a departmental enquiry in this case, therefore, it cannot be said that Rule 15 (2) of the Delhi Police (Punishment and Appeal) Rules, 1980 has been violated. Contention of the counsel for the applicant that he should have referred to Rule 15 (2) and then passed the order is absolutely without any merit. The same is accordingly rejected.
13. As far as the judgment in the case of Vijay Singh (Supra) is concerned, that was a case where departmental enquiry was initiated by the Dy. Commissioner of Police after a preliminary enquiry was held but no prior approval had been obtained from the Additional Commissioner of Police. It was in those circumstances that Hon'ble Supreme Court held that since prior approval of Additional Commissioner of Police was not taken and Rule 15 (2) is mandatory, it would vitiate the enquiry and also the consequential orders passed by the authorities. However, in the instant case, since departmental enquiry itself is initiated by the Joint Commissioner of Police, the facts of his case are different as such that judgment would not advance the case of the applicant.
14. As far as the allegation of bias is concerned, though applicant is leveling allegations against Shri Y.S. Dadwal, the then Joint Commissioner of Police but without impleading him as a party by name. The law is well settled that unless a person is impleaded by name, allegations made against him cannot even be looked into by any court of law as he gets no chance to rebut them. Even otherwise in E.P. Royappa v. State of Tamil Nadu and Anr. Hon'ble Supreme Court held as under:
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
The basic principle of mala fides is that the person against whom malice is alleged, must be impleaded by name, so that he may get a chance to rebut the allegations. Mere bald allegations without laying down any foundation do not inspire any confidence as such it cannot be held that the other person was biased against the applicant or interested in a third party.
15. In the instant case, the only ground taken by the counsel for the applicant for suggesting that Shri Dadwal was personally interested in the case, is the statement made by Shri Raghubir Singh, PW-3 in revision petition to the effect that Shri Y.S. Dadwal, ACP had assured him that his case would be cancelled (page 71). It is relevant to note that even at that stage, a bald statement was made by PW-3. Whether the said statement was correct or not, has not been looked into by any court of law nor any finding has been returned by the court of law. Simply because some person made a statement at the back of Shri Dadwal, we find no justification to come to the conclusion that Shri Y.S. Dadwal was interested in the said case. After all, as an officer, so many persons would have approached him with their grievances. In the process even if the officer says that the case against such a person is not valid and it would be dropped, it would not necessarily mean that the said officer is interested in the case.
16. In any case, at the time of initiation of the departmental enquiry, no prejudice can be said to have been caused to the applicant because after a departmental enquiry is initiated, evidence is led by the prosecution witnesses, wherein full opportunity is given to the delinquent officer to defend himself and he is also given right to lead his own defence witness. It is only thereafter, that the orders are passed on the basis of evidence which comes on record in the departmental enquiry. It is also relevant to note here that the final order in the case of applicant was not passed by Shri Y.S. Dadwal but by another officer, namely, Shri B.S. Brar (page 54 at 56) and his appeal was rejected by yet another officer viz. Shri K.K. Paul, the then Commissioner of Police, therefore, Shri Y.S. Dadwal was nowhere in the scene when order of penalty was passed, therefore, allegations made against Shri Y.S. Dadwal in this case are not only misplaced but without any justification. Accordingly, this contention is rejected.
17. As far as the contention of learned Counsel for the applicant, that preliminary enquiry report or the statements recorded therein have not been supplied to him, one has to see whether he has any right to ask for those documents in law or not. Perusal of Rule 15 (3) shows that file of the preliminary enquiry shall not form part of formal departmental record, therefore, unless preliminary enquiry report or the statements recorded during the preliminary enquiry are to be used as relied upon documents, the same need not be given to the delinquent officer. After all, preliminary enquiry is only a fact finding enquiry as described under Rule 15 (1) of the Delhi Police (Punishment and Appeal) Rules, 1980. Its purpose is (i) to establish the nature of default and identity of defaulter (s), (ii) to collect prosecution evidence, (iii) to judge quantum of default and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. It is now well settled that once departmental enquiry is initiated, preliminary enquiry loses its meaning. In the case of Narayan Dattatraya Ramterthakar v. State of Maharashtra and Ors. reported in 1996 (9) SCALE, it was held as under:
It is contended that the preliminary enquiry was not property conducted and, therefore, the enquiry is vitiated by principles of natural justice. We find no force in the contention. The preliminary enquiry has nothing to do with the enquiry conducted after the issue of the charge-sheet. The former action would be to find whether disciplinary enquiry should be initiated against the delinquent. After full-fledged enquiry was held, the preliminary enquiry had lost its importance.
18. The law is that if any statement recorded during the preliminary enquiry is to be relied upon in a departmental enquiry, then the same must be served on the delinquent officer. But if no reliance is placed on the statements recorded in the preliminary enquiry or the preliminary enquiry report, then it is not necessary to supply the same to the delinquent officer. At this juncture, it would be relevant to refer to the judgment in the case of Syndicate Bank and Ors. v. Venkatesh Gururao Kurati wherein it was held as under:
Non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the Enquiry Officer to arrive at his conclusion, the non-supply of which would cause prejudice being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of delinquent officer must be established by the delinquent officer. It is well settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a straitjacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice. It is not possible to countenance the submission at all that the documents which do not form part of the charges or are relied upon by the prosecution during the course of enquiry, non-supply thereof would cause any prejudice to the delinquent officer.
The same view has been reiterated in a latest judgment given by the Hon'ble Supreme Court in the case of Pandit D. Aher v. State of Mahatrashtra .
19. In the above case applicant was imposed the penalty of forfeiture of entire pension and gratuity permanently. One of the grounds to challenge the said order was that copy of preliminary enquiry had not been furnished to him as a result whereof he was prejudiced in raising a proper defence in the departmental enquiry. Hon'ble High Court rejected the said contentions stating that the preliminary inquiry report having not been relied upon nor having been referred to in the report of the Inquiry Officer. It was found that a copy of the departmental enquiry report in fact had been supplied to him and he also cross-examined the witnesses on the basis thereof. It was, therefore, held that the appellant was not prejudiced by reason of non-supply of the preliminary inquiry report as alleged or otherwise. Matter was carried to Hon'ble Supreme Court and Hon'ble Supreme Court upheld the view taken by Hon'ble High Court by observing as follows:
It is also not in dispute that a departmental proceeding was initiated and the appellant was found guilty of commission of the alleged misconduct therein. A finding of fact has been arrived at that a copy of the inquiry report was supplied to him. A copy of the document which has not been relied upon, is not required to be supplied to a delinquent officer. The documents which are required to be supplied are only those whereupon reliance has been placed by the Department.
20. In view of above, now the latest view of Hon'ble Supreme Court is that a document which has not been relied upon need not be given nor it vitiates the enquiry. In view of above judgments, any other view taken in Shri Vijay Singh's case (Supra) by the Tribunal is of no relevance.
21. In above backdrop, it is relevant to note that in the instant case neither statements recorded during preliminary enquiry nor the preliminary enquiry report has been relied upon by the disciplinary authority or appellate authority. It is correct that PW-7 Shri Jagdev Singh conducted the vigilance enquiry but he appeared in the departmental enquiry and gave his statement in the presence of applicant in the departmental enquiry and applicant was given full opportunity to cross-examine this witness. He only proved certain documents in the presence of applicant. Moreover, applicant cross-examined PW-7 at length, therefore, no prejudice can be said to have been caused to the applicant. In view of settled position as held in above judgments, contention of the counsel for applicant that he has been denied preliminary enquiry report and statements recorded during preliminary enquiry and prejudiced is, therefore, without any merit. The same is accordingly rejected.
22. We would be failing in our duty, if we do not refer to the judgments relied upon by the counsel for the applicant.
23. In the case of Antony Mathew (Supra), it was specifically observed as follows:
It is quite evident from the pleadings of the parties that the report given by the ACP, PRG Cell who first held the preliminary enquiry was not in tune with the case of the department. It would be unreasonable to presume on the basis of statements of the same witnesses whose statements were recorded in the regular departmental enquiry. If the applicant was supplied with the statements of the same very witnesses as also the copy of the report of the Inquiry Officer, surely, he would have been in a better position to cross-examine the witnesses.
24. From the above, it is absolutely clear that in the case of Antony Mathew (Supra), there was a specific pleading in the OA that in the report given by the ACP, PRG Cell, the same was not in conformity with the prosecution's case, therefore, naturally in those circumstances the applicant therein could have used those statements or the preliminary enquiry report for confronting the same witnesses, who had appeared in the departmental enquiry for defending himself. The said judgment was given in the facts of that case. However, in the present case, there is no such averment made by the applicant, therefore, the facts of this case are distinguishable. As such, the judgment given in case of Antony Mathew (Supra) would not advance the case of the applicant. It is settled law that prejudice, if any, has to be shown by the applicant in his pleadings. No roving enquiry can be held by the court to find out whether there was something favourable for applicant in the preliminary enquiry. Since no specific averments are made, his contention that applicant has been prejudiced, is without any basis and merit....
25. As far as the judgment given by the Hon'ble Supreme Court in the case of Jagpal Singh v. Delhi Administration is concerned, that is also clearly distinguishable. In the said case allegation against appellate was that he unauthorisedly released certain bad characters on bail, when they were ordered to be detained in the police station. Complaint to this effect was made by Assistant Superintendent of Police Shri S.K. Sharma. It was in this context that appellant therein had demanded copy of the complaint and statement of Shri S.K. Sharma in order to cross-examine Shri S.K. Sharma who had appeared as a prosecution witness in the departmental enquiry, but neither complaint nor his statement recorded during the departmental enquiry was supplied to the appellant. It is also relevant to note that Hon'ble Supreme Court was dealing with Punjab Police Rules in the said case. Hon'ble Supreme Court held, appellant would have required complete statement to cross-examine the said Shri S.K. Sharma, therefore, this judgment is also distinguishable. Apart from above, this judgment was given in 1970 when Delhi Police Act and Rules were not even in existence. In 1978 Delhi Police Act came into being and in 1980 Delhi Police (Punishment and Appeal) Rules came into being. Rule 15 (3) of Delhi Police (Punishment and Appeal) Rules, 1980 specifically states that file of preliminary enquiry shall not form part of the formal departmental record. The Inquiry Officer can bring on record any other documents from the file of preliminary enquiry. In such an event, such copies would have to be supplied to the accused officer. It is also clearly explained in Rule 15 (1) that preliminary enquiry is only a fact finding enquiry, therefore, unless those documents are relied upon cannot be demanded by the applicant. The documents were proved by PW-7 in the presence of applicant therefore, it cannot be held that any prejudice has been caused to him. D.D. entries were proved by other witnesses as well. In the instant case from the statement of PW-7 it is clear that he, in fact, conducted a vigilance enquiry. At this juncture, it would be relevant to refer to the Full Bench Judgment in OA No. 340/2004 in the case on Ranvir Singh v. Govt. of NCT of Delhi and Ors., wherein it was held as under:
(c) Anti-Corruption raids, investigation or vigilance inquiries, per-se would not be preliminary inquiries contemplated under Rule 15 (1) of the Delhi Police (Punishment & Appeal) Rules, 1980.
26. PW-7 Inspector Jagdev Singh has stated (page 107) that the complaint was marked to him by the DCP (Vigilance) as he was posted as Inspector (Vigilance) at PHQ. This PW had only stated that he had conducted the vigilance enquiry and produced some of the documents, namely, photocopy of the Rukka, copy of the FIR No. 260/96, D.D. entries and copy of Notification of the Government of India, MHA and Amendment to Section 13 of ITP Act including S.O. No. 116 etc. This PW was duly cross-examined by the applicant. No objection was taken by the applicant at the time when PW-7 was examined in the departmental enquiry, therefore, simply because Inspector Jagdev Singh, PW-7 was examined in the departmental enquiry, it would not vitiate the enquiry, especially when applicant herein was given full opportunity to cross-examine him. In the case of State Bank of Patiala and Ors. v. S.K. Sharma reported in 1996 (3) SCC 364 at 366, it was held violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. It was further held whenever there is ontention of violation of procedural rule, the complainant should be examined on the touch stone of prejudice. The test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. It was further held justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise, therefore, these principles cannot be put in a straight-jacket and their applicability would depend on the facts and circumstances of each case.
27. In the above judgment, the theory of prejudice was propounded, therefore, now the Courts have to see whether any prejudice has been caused to the applicant on account of violation of principles of natural justice, as alleged by applicant.
28. The same view was reiterated in the case of State of Tamil Nadu v. Thiru K.V. Perumal and Ors. reported in JT 1996 (6) SC 604 by Hon'ble Supreme Court, wherein it was held that the court has to see whether non-supply of documents has prejudiced the case of the delinquent and it was the duty of the respondents to point out how each and every document was relevant to the charges. Similarly, a duty was cast upon the Tribunal to record a finding whether any relevant documents were not supplied and whether such non-supply has prejudiced the case of the delinquent employee. Since we have already noted above that no prejudice can be said to have been caused to the applicant as neither the statements recorded in the preliminary enquiry nor the preliminary enquiry report was relied upon by the authorities while imposing the punishment nor applicant has been able to demonstrate how he has been prejudiced, therefore, applicant's case would be fully covered by the above said judgments....
29. As far as contradictions in the evidence is concerned, law is now too well settled that courts are not expected to re-appreciate the evidence nor substitute their own decision with that of the authorities as if courts are sitting in appeal over the orders passed by the authorities. Hon'ble Supreme Court has held that even if there is some evidence on record, courts should not interfere with the orders passed by the authorities as it is to be decided by the authorities as to what order is required to be passed. It has also been held that decision itself cannot be questioned in a judicial review but only the process of reaching the said decision can be looked into. Even sufficiency or insufficiency of evidence cannot be looked into by the courts. Hon'ble Supreme Court has gone to the extent of saying that even if there is some extraneous material, that would not vitiate the order, so long as there is some evidence to prove the guilt of the delinquent. It is only in those cases where it is a case of no evidence or findings are perverse that courts can interfere in a disciplinary case.
30. In Government of T.N. v. A. Rajapandian reported in AIR 1995 SC 561 Hon'ble Supreme Court held as under:
4. The Administrative Tribunal set aside the order of dismissal solely on re-appreciation of the evidence recorded by the inquiring authority and reaching the conclusion that the evidence was not sufficient to prove the charges against the respondent. We have no hesitation in holding at the outset that the Administrative Tribunal fell into patent error in reappreciating and going into the sufficiency of evidence. It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a Court of Appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably support the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by reappreciating the evidence and reaching a finding different than that of the inquiring authority.
8. ...The Tribunal fell into patent error and acted wholly beyond its jurisdiction. It is not necessary for us to go into the merits of appreciation of evidence by the two authorities because we are of the view that the Administrative Tribunal had no jurisdiction to sit as an appellate authority over the findings of the inquiring authority.
31. In AIR 1989 SC 1185 Government of India v. Parmananda Hon'ble Supreme Court had held as under:
A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which reasonable person would draw from the proved facts of the case. the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty. it is not the function of the High Court exercising its jurisdiction under Art. 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.
...if the order of a punishing authority can supported on any finding its to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the charge proved alone would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed, provided it is justified by the rules, is appropriate having regard to the misdemeanour established.
...the order of the Tribunal imposing a lesser penalty on the respondent cannot, therefore, be sustained. He was found guilty of the charge framed against him. He was a party to the fraudulent act for self aggrandisement. He prepared bogus documents for withdrawal of salary in the name of Ashok Kumar who was not working in his Division. He has thus proved himself unbecoming and unworthy to hold any post. Any sympathy or charitable view on such officials will not be conducive to keep the streams of administration pure which is so vital for the success of our democracy.
32. Similarly, in the case of Chairman & Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar reported in 2003 (2) SCALE 42, it was held as under:
that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision - making process and not the decision.
33. In this backdrop, if we look at the evidence which has come on record, we find statement of Shri Raghubir Singh who had appeared as PW-3 in the departmental enquiry is most relevant. He had stated as follows:
PW-3 Statement of Sh. Raghubir Singh S/o Sh. Rishal Singh R/o H. No. 309, Ram Nagar, Krishan Nagar, Delhi stated that he has been residing all the above address & has been engaged in the business of property dealing at B-1/1, Krishna Nagar, Delhi. On 31.12.96, M/s. Khosla Builders called three ladies from Bombay for stage show who were staying in some hotel at Pahar Ganj. Their show got cancelled and they asked him to send them to Bombay but no ticket could be made available on that day. Therefore they were made to stay in Kashish Banquet Hall Delhi. They were to depart at about 12/1.00 P.M. as their tickets were got booked. All the three ladies called the PW & Sukhmal Jain near the gate & told them that they were going and they may be dropped at Rly. Station by vehicle. They brought their luggage & vacated the room. Half of the luggage had been put in the vehicle and the payment of the bill was being made but in the meanwhile police came there & took all of them inside the Kashish Banquet Hotel, interrogated them & took their search. Thereafter police took them to PS Kalyan Puri in their own car. They reached there at about 13.30 Hours. SI D.V. Gautam told them that ACP/Inspr will come & they will be let off. The girls were kept in a separate room & the P.Ws. & others were kept in other room. SI D.V. Gautam came around at 8/8.30 P.M. and told him that if they give some money only then they will be released. The PW gave Rs. 25,000/- to SI D.V. Gautam but the SI told that this was too less as he will have to pay Rs. 20,000/- to Inspr and demanded more money & also threatened that if the P.Ws. make any complaint in this regard, he will be involved some case and he will also be given physical beatings. The PWs refused saying that he will not pay more money. The P.W. told that he had paid that amount and he has also not been released hence he will make a complaint. On this his clothes were taken off, one diamond ring and Rs. 25,000/- was also taken. He was put behind the bar. After some time SI D.V. Gautam & one HC came & demanded the key of the car to bring food for them but they did not bring meal in the morning. Inspr. Tyagi came & gave them tea etc. & produced them in the court at 1.00 PM. They were sent to J.C. for 14 days. After days SI Gautam & Rakesh came in the jail and asked them to give money. They will help get them released on bail. The PW told the SI & Rakesh that he had no money & asked them to go to his shop A-116, Jagat Puri where the owner of house sardarji will give them Rs. 20000/-. SI Gautam went to sardarji, who told them to call Khurana & Ram Chander. The SI called Khurana, Ram Chander & Mool Chand & took Rs. 95,000/- from Sardarji and also took with them one fan, one A.C. & Rs. 5,000/- from the drawer of the table of P.W. Thereafter the PW was got released on bail by his sister-in-law, who is serving in Irwin Hospital. After coming out of jail he alongwith his wife met C.P., Delhi, who forwarded their complaint to Sh. Dadwal, who in turn marked their complaint for Vigilance enquiry, who after enquiry ordered for the cancellation of the case and brought the concerned file for discharging them in the case. The car of the P.W. was retained by SI D.V. Gautam far about fourteen days and Rs. 150,000 was spent on the repair of the car on account of its misuse by SI D.V. Gautam.
This prosecution witness was cross-examined by the applicant in detail. Similarly PW-9 Ms. Alka Devi had clearly stated that applicant took Rs. 15, 000/- from her purse. She had also stated that applicant, Shri D.V. Gautam tried to misbehave with them and without any enquiry, they were put in the lock up (page 109). Similarly PW-10 Smt. Lata Anant Phondekar also stated that she was arrested from the Lobby of Kashish Banquet Hall by police consisting of Shri Gautam and Shri Rakesh. S/Shri Gautam and Rakesh behaved rudely and locked them in the hawalat. They asked as to how much money she was having with her and took away Rs. 15,000/- from Alka (page 110). They came at night in drunken condition and tried to rape her but due to presence of Woman Constable Raj Kumar, she was saved. Similary Statement of PW-12 Smt. Madhu Bala clearly shows that the car was taken away, which was not parked in the police station, when she went there. When she again went to the police station, the car was parked behind the Police Station but it was in very bad condition. The axle was broken and the car was parked at their house in the broken condition.
34. From the above statements definitely the charge of extortion is corroborated, therefore, it cannot be stated to be a case of no evidence. The evidence has come on record that the applicant did extort money from Alka and Raghubir Singh etc. and had damaged his car. It is definitely a serious charge.
35. It is correct that as far as PW-6 Shri Sukhmal Jain is concerned, he did not state, money was taken by the police and he had only stated that Raghubir Singh had asked for money and he gave it to Raghubir Singh, but from his statement also, one thing is clear that he was also arrested without any reason by the police, therefore, as far as the incident is concerned, that was corroborated by him also. Simply because one of the witnesses did not say money was extorted from him by the applicant, it cannot absolve the applicant of the charge levelled against him because other witnesses have stated so, in definite terms in their statement as quoted above. Similarly simply because the name of Lata or Alka has been used wrongly in the charge, it would not vitiate the orders passed by the respondents. It is quite possible that at the time of framing of charge, the name might have been used wrongly, but the fact remains, it has come on record that the applicant had taken away Rs. 15,000/- from Alka. It is definitely a serious charge, therefore, if Inquiry Officer gave his findings as follows:
Mr. Raghubir Choudhary, Sukhmal Jain and Lata have alleged money being extorted by SI D V Gautam when they were arrested in the PS and under these circumstances independent witnesses can not be expected to be present but circumstances certainly indicate that SI D V Gautam has indulged in extortion of money from these people. It has also been alleged during course of enquiry that SI D V Gautam took the Maruti Zen Car of Raghubir Choudhary in his possession but he neither made any seizure memo nor deposited the car in Polic Station (Malkhana) and used the car for his personal gain for around 14 days and returned it to the wife of the owner after persistent efforts. Though the records are not available as the same was not prepared by SI D V Gautam but the recovery of his scooter from the parking at ISBT and attendant circumstances indicate that SI D V Gautam has been using the car of the complainant without making any record in the police station (malkhana) for his personal gain for almost 14 days.
we do not think it calls for any interference.
36. Since authority imposed a penalty of forfeiture of 2 years of approved service permanently entailing proportionate reduction in his pay on the basis of evidence, which had come on record, we do not think this case calls for any interference.
37. In view of above discussion, OA is found to be devoid of any merit. The same is accordingly dismissed. No order as to costs.