Central Administrative Tribunal - Delhi
Inspector Ranbir Singh vs The Commissioner Of Police on 3 February, 2010
Central Administrative Tribunal Principal Bench OA No.300/2009 With OA No.404/2009 New Delhi, this the 3rd day of February, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) OA No.300/2009 Inspector Ranbir Singh 52 years of age S/o Sh. Daryav Singh R/o Flat No.232, Swastik Kunj, Sector-13, Rohini, Delhi 110 085. . Applicant. (By Advocate : Shri Rao Ranjit Singh with Sh. Ajesh Luthra) Versus 1. The Commissioner of Police Police Head Quarters, M. S. O. Building, I. P. Estate, New Delhi. 2. The Joint Commissioner of Police Northern Range Police Head Quarters, M. S. O. Building, I. P. Estate, New Delhi. 3. The D. C. P. (Vigilance) Police Head Quarters, M. S. O. Building, I. P. Estate, New Delhi. Respondents. (By Advocate : Mrs. Renu George) OA No.404/2009 ASI Sube Singh, 59 years of age, S/o Sh. Hardev Singh Vill/PO Salimsar Majra Distt., Sonepat, Haryana R/o Flat No.232, Swastik KUnj, Sector-13, Rohini, Delhi-110 085. Applicant. (By Advocate : Shri Rao Ranjit Singh with Sh. Ajesh Luthra) Versus 1. The Commissioner of Police Police Head Quarters, M. S. O. Building, I. P. Estate, New Delhi. 2. The Joint Commissioner of Police Northern Range Police Head Quarters, M. S. O. Building, I. P. Estate, New Delhi. 3. The D. C. P. (Vigilance) Police Head Quarters, M. S. O. Building, I. P. Estate, New Delhi. Respondents. (By Advocate : Sh. Rishi Prakash) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
As the facts of the case and the issues involved in both OAs are same, the Applicants having been jointly proceeded in the enquiry by the same Enquiry Officer (EO) and the disciplinary case was decided by the same Disciplinary and Appellate Authorities, we are disposing of both the OAs with the consent of counsel for the parties by this common order.
2. Shri Ranbir Singh, the Applicant in OA No.300/2009, is an Inspector in Delhi Police. Shri Sube Singh, the Applicant in OA NO.404/2009 is Assistant Sub Inspector in Delhi Police. The brief facts of the case would reveal that while both the Applicants were working at Police Station, Ashok Vihar a joint departmental inquiry against both of them along with Constable Jai Bhagwan was initiated by the Respondents vide order dated 14.02.2007. Prior to the initiation of the joint departmental inquiry they were placed under suspension and subsequently the suspension was revoked by the Respondents in the order dated 20th March, 2008 (page 54). The scope of the departmental inquiry was that while they were posted at PS, Ashok Vihar, Delhi Shri Jitesh Kapoor filed a complaint on 23.10.2006 against them alleging that on the night of 20/21.10.2006 at about 11:30 pm they visited the office of the complainants friend Shri Anirudh Joshi at Flat No.2/D BA Block Phase-1, Ashok Vihar to wish him Diwali greetings. There were large number of people enjoying drinks in a party and some of them playing cards. Suddenly five to six policemen led by the Applicants raided the premises and threatened and accused Mr. Joshi of running gambling in the place. It is alleged that they collected approximately Rs.3 lacs from the persons present there and confiscated their mobile phones and made a list of entire money recovered from them and took all of them to Police Station around 12:30 am. All those persons were released at about 2:00 am after handing them over their mobile phones only. It is the Applicants case that on the night of 20/21.10.2006 a call was received at the Police Station, Ashok Vihar about the assembling of certain bad elements at the said house in Ashok Vihar. The caller neither disclosed his name nor the phone number from which the call was made and as such the complaint was recorded in the DD entry. This fact of DD entry was supported by production of a copy of the same by the counsel for the Applicants, during the hearing and the same was not disputed by the counsel for Respondents. It is stated that no case whatsoever was registered despite the facts that some people were playing cards there. Shri M. R. Gothwal, DCP, D.E. Cell, Delhi was appointed as Enquiry Officer to examine the allegations who after examining PWs framed identical charges after the approval by the Disciplinary Authority against both the Applicants and ultimately held that though the allegations and the charge against Constable Jai Bhagwan could not be proved but the charge against Inspector Ranbir Singh and Assistant Sub Inspector Sube Singh, both the Applicants in these 2 OAs, stood proved partly to the extent as discussed in the Inquiry Report. The Enquiry Officer submitted his Enquiry Report and the copy of the E.Os finding and report was served upon the Applicants on 14.02.2008 directing them to submit their representations. A Show Cause Notice was issued as to why their suspension period from 27.10.2006 till the final decision of their D.E. should not been treated as period not spent on duty for all intents and purposes. The Applicants submitted their representations. The Disciplinary Authority (Joint Commissioner of Police, Northern Range) heard the Applicants on 14.03.2008 where they submitted that there was no malafide on their part and no harassment was done to the complainants. They also submitted that the requisite entries were made in the Daily Diary. The Disciplinary Authority having gone through the DE proceedings, EOs findings, records on file and representations submitted by the Applicants, considered the request and passed his final order imposing a penalty of forfeiture of four years of approved service permanently for the purpose of his further promotion and seniority, and also treated the suspension period as not spent on duty vide his order dated 11.04.2008 (Annexure-A2). Being aggrieved by the said order, the Applicants filed their appeals before the Appellate Authority (Commissioner of Police, Delhi), who granted a personal hearing to the Applicants on 10.10.2008 and after considering the facts of the case decided not to interfere in the punishment awarded by the Disciplinary Authority and accordingly he rejected the appeal vide his order dated 19.11.2008 (Annexure A1). Both the Applicants, having been aggrieved by the orders of the Disciplinary and Appellate Authorities, have filed both the OAs under Section 19 of the Administrative Tribunals Act, 1985 with the following identical prayers :-
(a) set aside and quash the impugned orders and
(b) direct the respondents to restore the forfeited service with all consequential benefits including monetary, seniority and promotion etc. and
(c) direct the respondents to remove the name of the applicant from secret list of doubtful integrity from the date of its inception.
(d) award costs of the proceedings.
(e) pass any other order/relief in favour of the applicant and against the respondents which this Honble Tribunal deems fit and proper in the facts and circumstances of the case.
3. The learned counsel for the Applicants, Shri Rao Ranjit Singh assisted by Sh. Ajesh Luthra in both the OAs, highlighting background of the case anchored his contentions on following points. (i) This is a case of no evidence since the evidence gathered during the inquiry clearly reveal that no misconduct has been committed by the Applicants, (ii) the charge sheet framed after the examination of PWs by the Enquiry Officer, does not disclose as to what type of misconduct the Applicants have committed, (iii) the Disciplinary and Appellate Authorities referred to the Preliminary Enquiry while passing the respective orders against the Applicant. This, he contended, was not as per the Rules of the Delhi Police. He took us through the evidence and cross examination of various witnesses in support of his contention that the charges were vague which did not amount to misconduct and there were no evidence against the Applicants. The Disciplinary Authority relied on the presumptions and extraneous materials which revealed his non-application of mind. Therefore, he termed the orders passed by the Disciplinary and Appellate Authorities as arbitrary and perverse and argued that both the OAs should be allowed. Learned Counsel for the Applicant laid his reliance on the judgment of Honble Supreme Court in the case of Kuldeep Singh Versus Commissioner of Police and Others [(1999) 2 SCC 10] decided on 17.12.1998 and the Writ Petition (Civil) No.3591/2001 between Jai Bhagwan Versus Commissioner of Police & Ors. decided by the Honble High Court of Delhi on 20.01.2010.
4. On the contrary, Mrs. Renu George, learned Counsel appearing on behalf of the Respondents in OA No.300/2009 and Shri Rishi Prakash, learned Counsel representing the Respondents in OA No.404/2009 very strongly contested the contentions raised by the learned Counsel for the Applicants. It was contended that there was no seizure memo of cash and mobile phones. The Applicants under pressure of the complainant returned the cash and won over the witnesses. The ACP/DCP were kept in dark about the call and subsequent raid by the police team led by the Applicants. Mrs. Geroge further submitted that there was no violation of principle of natural justice and the process of taking decision in both disciplinary cases.
5. The Applicants were given the following charges after the examination of the prosecution witnesses, examination of the evidence on record and after duly approved by the Disciplinary Authority. The charge against the Applicants being common, we extract the same below :-
Charge:-
Inspr. Ranbir Singh No.D-I/897, ASI Sube Singh No.977/D and Ct. Jai Bhagwan No.2683/NW that while they were posted at PS Ashok Vihar, Delhi on dated 23.10.2006 one Sh. Jitesh Kapoor filed a complaint against them alleging there-in that on the night of 20/21.10.2006 at around 11.30 P.M. he had visited the office of his friend Anirudh Joshi at flat No.2D BA Block Phase-I Ashok Vihar to wish him Diwali. There were around 20/25 people enjoying drinks in a party and some of them playing cards. Suddenly five to six policemen led by them raided the premises and threatened Mr. Joshi and accused him of running a gambling place. They collected approximately Rs.3 lacs from the persons present there and also confiscated their mobile phones and then made a list of entire money recovered from them and took all of them to Police Station around 12:30 A.M. where they were released at about 2 A.M. after returning only their mobile phones.
During the course of inquiry, it has been revealed that Inspr. Ranbir Singh No.D-I/897, ASI Sube Singh No.977/D, Ct. Jai Bhagwan No.2683/NW have visited the alleged place on the night of 20/21.10.2006 and brought 13 persons from there to the police station on the allegation that they were gambling with playing cards. After having their personal search, in which mobile phones and cash were seized, all the persons were released later on. On checking of Roznamcha and DD entry related to this call, it was found that this call was not a PCR call but a call received in PS. The number from which the call was made and the person who made the call was not disclosed. Contrary to the statement made by all of them that search was made, money (from these persons) and mobile phones were taken and later on returned to everyone but there is no mention of such seizure and search in the DD NO.13B dated 21.10.2006. It was also observed that as to why these seizures were necessitated. No case whatsoever was registered despite the facts that Saurabh Bhardwaj had disclosed that some people were playing cards there. The list produced by ASI Sube Singh bearing signatures of the persons who had received theirmoney back also indicate that money was taken and on a later stage the list was managed under duress as an alibi. They had also tried to cover up the matter by showing that the money of the complainant Sh. Jitesh Kapoor was returned by you ASI Sube Singh to Vinay Chawla due to the pressure of the complainant Sh. Jitesh Kapoor himself. Further, it was ascertained that if there was any personal search (Jama Talashi) the seizure should have found an entry in register No.19 but there was no mention of this kind. From the above said facts it has been proved that the raid was conducted by all of you on the basis of some secret information, probably with some evil design, which were not brought into the notice of ACP/Ashok Vihar. Raid was conducted and alleged persons were brought to the Police Station and there after no action was taken against them and they were let free after conniving with them.
6. Since the Applicants did not admit the allegations and the charges framed as extracted above, they produced three defence witnesses who were examined during the inquiry and the final report was given by the Enquiry Officer. The same is at Annexure A-3. The Disciplinary Authority communicated the report of the Enquiry Officer and sought for the remarks of the Applicants to which the Applicants submitted their detailed representations to the Disciplinary Authority. The Disciplinary Authority granted personal hearing on 14.03.2008 to the Applicants. Having considered the Inquiry Officers report and representations of the Applicants the Disciplinary Authority carefully went through the departmental inquiry proceedings and passed the following vide his order dated 11.04.2008 (Annexure-A2) :-
I have carefully gone through the D.E. proceedings, record on file, personal representations submitted by the defaulters and also carefully considered personal request made in O.R. on 14.03.08. On seeing and going thoroughly entire record it is evident that both defaulters had bad intention to let off persons involved in a case of gambling. It is amply proved from the circumstances that matter was kept under carpet & hidden from senior officers. ACP & DCP were not informed with the reasons best known to the defaulter Inspector who is to suppose to brief his ACP during morning report or night itself. Calling 13 persons in P.S. and letting them off without registering case and pressurizing them amounts to gross misconduct and directly reflects on the integrity of both the defaulters. Prosecution witnesses retraced for their statement made during PE also goes to suggest that defaulters had clear and definite bad intention to eat away money. No law gives permission to seize articles without registering a proper case. Hence, I am fully convinced that defaulters were responsible for this misconduct and dishonest act. Inspr. Ranbir Singh No.D-I/897 and ASI Sube Singh No.977/D have been reinstated from suspension w.e.f. 14.03.08, date on which they were heard in O.R., vide order No.1794-1814/HAP/NWD (P-I) dated 20.03.2008. I am constrained to order that their suspension period be treated as period not spent on duty for all intents and purposes. I further, order that their 04 years approved service is forfeited permanently for purpose of their further promotion or seniority. Const. Jai Bhagwan No.2683/NW is exonerated in the DE and his suspension period is decided as period spent on duty for all intents and purposes.
7. The Applicants submitted their appeals against the above order to the Commissioner of Police, the Appellate Authority who also granted personal hearing to the Applicants and passed its order dated 19.11.2008 (Annexure-A1). The relevant part of the order reads as follows :-
Against the award of punishment by the disciplinary authority, the appellant has preferred an appeal before the undersigned and has taken the following main pleas:-
1. That Inspr. Banwari Lal (Inspr. Vigilance), who conducted vigilance enquiry has specifically admitted during clarification by the EO during the DE that no money was retained and all the money was returned on the same night;
2. That the disciplinary authority inflicted penalty on the basis of findings of the EO, which does not prove the charge but merely proves the justified acts in discharge of duty;
3. That Shri Vinay Chawla has admitted that he had collected the money of Shri Jitesh Kapoor.
4. That it is wrong on the part of the disciplinary authority to observe that the appellant had sought pardon during O.R. I have carefully considered the appeal in light of the facts and circumstances of the case and evidence on record. The appellant has also been heard in O.R. No.10.10.2008. The entire action taken by the appellant was shady in nature. The appellant has admitted that on the night of 20/21.10.2006, a group of persons were brought in the police station on the allegations that they were playing cards which is gambling. I dont see how gambling per-se is an offence. The appellant ahs further admitted that these persons were engaging drinks and food on the occasion of Diwali. The police action ab-initio was incorrect and malafide. I see no reason to interfere in the punishment awarded by the disciplinary authority. Under the circumstances, the appeal of the appellant is rejected.
8. The main legal issue raised by the counsel for the Applicants is that this is a case of no evidence. It is trite that this Tribunal can examine the evidence to find out whether there is any evidence against the Applicant in the case. At this stage, we examine the settled legal position on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We note our power is limited. We went through many judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we kept in our mind while deciding the present OAs, are as follows:-
* The Tribunal cannot interfere with the findings of the Inquiry Officer which is based on evidence and substitute its own independent findings.
* When the findings of the disciplinary authority or the appellate authority are based on some evidence, the Tribunal cannot re appreciate the evidence and substitute its own findings.
* Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made.
* When an inquiry is conducted on the charge(s) of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered to determine -Whether the inquiry was conducted by the competent officer? Or -Whether rules of natural justice have been complied with? Or -Whether the findings/conclusions are based on some evidence or no evidence to reach a finding/conclusion? Or -Whether the mode of inquiry is in violation of statutory rules? Or -Whether the findings are arbitrary or utterly perverse?
* Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings including the notes of disagreement.
* When the Inquiry Officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty or otherwise of the charge.
* The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding is based on the same.
* In case of an appeal, the Appellate Authority has co-extensive power to re appreciate the evidence and the nature of punishment and the Appellate Order is to be passed as expeditiously as possible.
* The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards.
* The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
* The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets or does not meet the requirement of burden of proof, namely preponderance of probability.
9. In the background of the above settled legal positions, we have very carefully and closely gone through the contentions raised by the rival parties and with their assistance also perused the pleadings. We analyse below whether this is a case of no evidence or the principle of probability of preponderance would be applicable. Before, we dwell on this issues on the evidence, we would like to take here the extract of EOs Report dealing with Discussion of Evidence and Conclusion:-
Discussion of Evidence:
The charge against the delinquents is that Inspr. Ranbir Singh No. D-I/897, ASI Sube Singh No.977/D and Ct. Jai Bhagwan No.2683/NW that while they were posted at PS Ashok Vihar, Delhi on dated 23.10.2006 one Shri Jitesh Kapoor filed a complaint against you alleging therein that on the night of 20/21.10.2006 at around 11.30 P.M. he had visited the office of his friend Anirudh Joshi a flat No.2D BA Block Phase-I, Ashok Vihar to wish him on Diwali. There were around 20/25 people enjoying drinks in a party and some of them playing cards. Suddenly five to six policemen led by you raided the premises and threatened Mr. Joshi and accused him of running a gambling place. You collected approximately Rs.3 lacs from the persons present there and also confiscated their mobile phones and then made a list of entire money recovered from them and took all of them to Police Station around 12.30 A.M. where they were released at about 2 P.M. after returning only their mobile phones.
During the course of inquiry, it has been reveled that Inspr. Ranbir Singh No.D-I/897, ASI Sube Singh No.977/DS, Ct. Jai Bhagwan No.2683/NW have visited1 the alleged place on the nilght of 20/21.10.2006 and brought 13 persons from there to the police station on the allegation that they were gambling with playing cards. After having their personal search, in which mobile phones and cash were seized, all the persons were released later on. On checking of Roznamcha and DD entry related to this call, it was found that this call was not a PCR call but a call received in PS. The number from which the call was made and the person who made the call was not disclosed. Contrary to the statement made by all of them that search was made, money (from these persons) and mobile phones were taken and later on returned to everyone but there is no mention of such seizure and search in the DD No.13-B dated 21.10.2006. It was also observed that as to why these seizures were necessitated. No case whatsoever was registered despite the facts that Saurabh Bhardwaj had disclosed that some people were playing cards there. The list produced by ASI Sube Singh bearing signatures of the persons who had received their money back also indicate that money was taken and on a later stage the list was managed under duress as an alibi. They had also tried to cover up the matter by showing that the money of the complainant Shri Jitesh Kumar was returned by ASI Sube Singh to Vinay Chawla due to the pressure of the complainant Shri Jitesh Kapoor himself. Further, it was ascertained that if there was any personal search (Jama Talashi) the seizure should have found an entry in register No.19 but there was no mention of this kind. From the above said facts it has been proved that the said was conducted by all of you on the basis of some secret information, probably with some evil design, which were not brought into the notice of ACP/Ashok Vihar. Raid was conducted and alleged persons were brought to the Police Station and there after no action was taken against them and they were let free after conniving with them.
I have carefully gone through the charge, deposition of PWs, DWs, CW, Exhibits and Written Defence Statements submitted by the defaulters. During the course of the DE proceedings, 19 prosecution witnesses were examined. PW-1 and PW-2 are formal witness, who have proved the posting of all the three defaulters, they were posted at PS Ashok Vihar on 20 and 21.10.2006. PW-3 ASI/HC Abdul Barkat, MHC (R), PS Ashok Vihar exhibited the DD NO.4 and DD No.13/B, PW-4 HC Rajesh MHC(M) PS Ashok Vihar has proved that on that day no case property was deposited in the Malkhana of the PS. PW-5 to PW-17 all the prosecution witnesses have proved that before the day of Diwali-2006, they were brought in PS Ashok Vihar by the defaulters Inspr. Ranbir Singh, ASI Sube Singh and Const. Jai Bhagwan. In the Police Station, police made enquiries and took their money and articles i.e. mobile phones etc. were taken in their possession and a list of these articles was prepared by ASI Sube Singh. Besides, PW-6, Shri Prayavart has deposed that his statement which was given by in Vigilance is correct while is Ex.PW-6/B. PW-18-Inspr. Banwari Lal has also fully supported his enquiry reported which is Ex.PW-18/A. In his statement, this PW deposed that he did not identify Const. Jai Bhagwan of his specific role in this support. PW-19 Sfmt. Veer Mati, ACP is formal witness who only that she had forwarded the report submitted by Inspr. PG Cell. After examining all the PWs/DWs it was not cleared as to whether the instant matter was brought in the knowledge of the then ACP Ashok Vihar Shri Rajender Singh. Hence, Shri Rajender Singh, ACP was cited as CW who also supported the prosecution and deposed that the instant matter was not brought in his knowledge. As regard, that the delinquent ASI Sube Singh has lodged DD No.13-B dated 21.10.2006 under 65 DP Act vide which police officer cannot take theearch of these person before lodging any FIR in this regard, which shows their malafide. All the defaulters produced 3 DWs in their defence. DWs-2 & 3 also supported the prosecution and proved that these persons were brought in the PS Ashok Vihar and police had taken their search and prepared a seizure Memo.
In the present DE, 13 PWs i.e. PW-5 to 17 are the material witnesses who were the witnesses of the incident. During the course of DE proceedings, none of them have supported the allegations that they were harassed or misbehaved by the delinquents during the course of raid proceedings at the spot and also while their custody in the police station. Though some of them had alleged so during the PE stage during statements recorded by PW-18 Inspr. Banwari Lal of PG Cell/North West Distt. As reflected from the statements exhibited at PW-5-A to PW-17-A. In their PE statements, PW-6,7,10,11,12,16 AND 17, had admitted that some of the persons available on the spot were playing cards and PW-16, as per statement exhibit 16-B, had also admitted that some of the persons were playing cards with money/bets. Though PW-14 in his statement (exhibit 14-A) during the course of PE had admitted having been slapped by the defaulter Inspector but all the PWs during the course of DE proceedings have resiled from their earlier statements i.e. exhibit PW-5-A to 17-A and they have totally denied any kind of harassment, misbehaviour, beating and ill-treatment etc. All of them have also denied thaty any consideration money was taken for release of the 13 persons taken to the police station have not been substantiated in view of the depositions o the PWs during the course of DE proceedings.
However, it would not be out of place to mention here that the men may lie but the circumstances do not. This maximum holds good in the present DE very well. PW-16 Jitesh Kapor who was the one on whose complaint (exhibit 16-A) an enquiry was initiated and in his complaint he had specifically alleged that his money of Rs.39,500/- has not been returned by the police and to his knowledge the money of all other persons has also not been returned. As per exhibit 16-A, this complaint was given to DCP/NW Distt. In person by the complainant and the same was marked for enquiry to Inspector PG Cell through ACP/PG Cell. In his statement dated 24.10.2006 before Inspector PG Cell (PW-18) he had admitted that his money of Rs.39,500/- has not been returned by the police and no FIR has been lodged in this context as per statement exhibit PW-16B. Though the PW has identified his signatures on complaint exhibit 16-A and also confirmed having written the contents, but during the course of DE proceedings, the PW has resiled from his earlier statement and narrated that he had given the complaint on behest of some police person, when he went to police station Ashok Vihar and his money was received by one Vinay Chawla (PW-7) his friend and he was not aware of the same. It seems that the PW has turned hostile for the reasons best known to him.
All the material PWs i.e. PWs 5 to 17 have admitted the fact to the extent that 5/6 policemen headed by the delinquent Inspector who was SHO of PS Ashok Vihar and raided the premises in question who had alleged that they were gambling and a list of 13 persons was prepared and the money recovered was shown in the list so prepared and their money and mobile phones taken into their possession on the spot. Thereafter, they were taken to the police station and were kept there. They were released from the police station after about 2 hours. The PWs during their statements in the DE proceedings have deposed that their money and the mobiles were returned in the police station at the same time when they were released. Though the complainant PW-16 had alleged otherwise in his statement exhibit 16-B. What made into the change of hearts on the part of police is a mystery which can be understood in the light of the facts knitting the threads from the start of the incident to the closure of the matter. It has been established that the information vide DD NO.4-A (exhilbit PW 3-A) which was received in the police station at 1210 hrs. admittedly was a anonymous call in police station as confirmed by PW-3 MHCR and DW-1 ASI, Duty Officer and not a PCR call. However, it is not important whether the call was a PCR call or directly received in the police station, but the conduct in totality connected with the issue as to why there was a need for conducting personal search of all the persons available on the spot when nothing illegal was being done is not understood has not been explained satisfactorily by the defaulters. The circumstances speak that some activity like gambling was going on at the spot which prompted the defaulters to prepare a list of the money recovered and they were taken to the police station presumably on the grounds that they are to be booked under the offence of gambling. But what made into the change of their hearts that no offence of gambling has been registered and they have been released without showing the proper records of their action/transactions has not been explained properly by the defaulters. Further, suspicion which raises finger on their conduct is that they have not shown the money so recovered and the money so returned to the 13 persons in their records/DD entry and the same remains unexplained on their part. It is anadmitted fact as proved by MHCM PW-4 and also admitted by the defaulters that no money so recovered has been deposited in the Malkhana. PW-18 Inspector PG Cell who had conducted the enquiry and as per the deposition of the witnesses, has rightly concluded thata the conduct of the delinquents does not repose confidence. CW-1 ACP/Ahok Vihar has also categorically deposed that he was not taken into confidence rather not informed at all before the raid or after the raid and even till he was enquired by the DCP/NW Distt. He was not at all informed about the whole episode. Though the call in question (exhibit 3-A) was shown as that of somebody informed them to go on the place of incident but the circumstances from the beginning till the end show and reflect it to be an important matter which was certainly required to be brought into the notice of the senior officers but it was not brought into the notice of any senior officer including the ACP/SDPO CW-1. Defaulters have also exhilbited DD No.5 dated 21.10.2006 PS Ashok Vihar (exhibit DW-1/A0 regarding visit of ACP/Narela who was the night GO on that particular time. This DD entry also does not go to their rescue because they have not informed him also regarding the raid and bringing 13 persons to the police station. The DD entry made by ACP/Narela is a routine DD entry of two sentences which only marked by him to show his visit in the police station at about 1.30 a.m. Even ACP/Narela was not taken into confidence and if the defaulters had any sincerity in their approach, they should have involved him before the release of the 13 persons . PW-18 Inspector PG Cell has also admitted in his deposition that the so called list prepared and submitted by the defaulter ASI regarding list of money collected and returned (exhibit PW-6/B) has been submitted by the defaulter after asking him again and again and at the last stage of enquiry as the list was reportedly not readily available with him when he was called for enquiry by PW-18 and which goes to further prove that the list has been prepared at the 11th hour when an enquiry was ordered by DCP/NW Distt. However, even if we go by the deposition of the 13 material PWs, it is a proved/admitted fact that the so called list was prepared which proved/reflected that he money was collected/seized from them and the same was returned by the local police. But the same falsifies the claim of the defaulters as they failed to reflect the same in the DD No.13-B (exhibit 3-B). Had their intentions been clear and honest they would have made correct record of the proceedings. This further raised the finger on the conduct of the defaulters.
This conduct of the defaulters in the whole episode have not been transparent and above board. As such, the charge that they confiscated the money as per the exhibit 6-B, took the 13 persons to the police station at about 12.30 a.m. and released them at about 2 a.m., defaulters visited the spot and brought the 13 persons accordingly to the police station has been proved. Further the charge of making personal search of mobiles and cash seized and released later on has also been proved. Further charge that it was not a PCR call but an information received in the PS and the identity of the caller was not disclosed and no mention of the personal search/money and mobile was made in DD No.13-B has been proved. Further, the necessity as to why the search/seizure was conducted, defaulters have not been able to explain satisfactorily. The same is also proved applying the principle of preponderance of probability . However, the charge of list being prepared under duress have not been proved as none of the PWs have supported this allegation. Though the charge that the money of Jitesh Kapoor which they did not return initially and returned later on to one Vinay Chawla has not been substantiated by any of the PWs but the circumstances make it a case of circumstantial evidence which goes to prove the charge against the defaulters in the light of the facts that the complainant when was taken to police station alongwith 12 persons does not show that it is possible that he will not talk to the other persons before making complaint to the DCP/NW Distt that his money was not returned. It seems that he has been won over and turned hostile. It would be desirable to point out that most of the material PWs were those connected with the sale-purchase of second hand cars and it suited them also to turn hostile because otherwise it would have spoiled their reputation as well as may be under the impression that they will also land in soup for the offence of gambling.
However, the evidence has not pin-pointed the fault of the defaulter Constable Jai Bhagwan as he had simply accompanied the IO when the call was received. Three other constables (un-named/unspecified) have also assisted the call along with the defaulters. He simply was a member of the raiding party and simply whatever he has done, he has done under the instructions of his SHO/IO and none of the PWs have alleged specifically and directly/indirectly against him. Therefore, the charge against the defaulter constable does not stand proved.
Conclusion :
Therefore, the charge against defaulter Constable does not stand proved but the charge against defaulter Inspector and defaulter ASI stands proved partly to the extent as discussed above.
10. The main component of the charge is that the Applicants led police team, raided the gambling place, harassed and misbehaved with 13 persons, playing cards and demanded money for their release. The complainant in this case is one Shri Jitesh Kapoor who was examined by EO as PW 16. The summary of allegations would reveal that the Applicants alongwith other policemen raided the premises at Flat No.2D BA Block Phase-I, Ashok Vihar and threatened Shri Anirudh Joshi and accused him of running a gambling place where they were gambling with playing cards. These allegations have been verbatim formed the foundation of the charge against the Applicants. The EO has analysed the evidence/statement gathered in the preliminary enquiry (PE) and found that there was no evidence about them in the Departmental Enquiry (DE). The EOs finding in this regard reads As such I am constrained to conclude that the charge regarding playing cards, harassment, misbehaviour, demand of money for the release of the 13 persons taken to the Police Station have not been substantiated in view of the depositions of the PWs during the course of DE proceedings.-- The Complainant PW 16 in his statement before the EO has stated that He told the Police that there is no bad element present there. They all are friends and had gathered for a get together. Police told them to come to Police Station, Ashok Vihar, where they were enquired into. Their money and other articles were returned to them which were taken away during enquiry They were not misbehaved anywhere in Police Station or in flat at Ashok Vihar. In the cross examination by the Defence Assistant (DA), he had stated that Police had taken them to Police Station for enquiry/verify only whether any bad element is amongst them or not. No one was gambling/playing cards. PW16 being the Complainant is the star witness for the prosecution but in the DE he did not support the charge. Further, PW 18 (Inspector Banwari Lal of Vigilance Branch) who conducted the preliminary enquiry states in the DE that In his complaint Jitesh Kapoor did not mention regarding gambling nor he deposed in his statement and raises the question if nothing adverse was found there then why they all were taken to Police Station and searched. We find PW 18 has stated that his enquiry revealed that there was no gambling and stated that Drinking and playing cards in the house is no offence. The evidence gathered by the EO go to prove that this part of the charge does not stand against the Applicants. We also find that the conclusion arrived by the Disciplinary Authority - On seeing and going thoroughly entire record, it is evident that both defaulters had bad intention to let off persons involved in a case of gambling - is based on conjectures and surmises and not on any evidence led before E.O. in DE.
11. The next part of the charge held as proved by the Disciplinary Authority is It is amply proved from the circumstances that matter was kept under carpet and hidden from senior officers. ACP and DCP were not informed with reasons best known to the defaulter Inspector who is suppose to brief his ACP during morning report or night itself. The charge in this regard states that From the above said facts it has been proved that the raid was conducted by all of you on the basis of some secret information, probably with some evil design, which were not brought into the notice of ACP/Ashok Vihar. We have carefully scanned the evidence gathered during DE by the EO. The ACP Ashok Vihar, North West District of Delhi (CW-I) was enquired into by the EO to clarify the fact as to whether the matter was brought to the knowledge of the concerned ACP/SDPO and CWI (ACP) deposed that he read the DD No.4-A dated 20/21.10.2006 and also DD No.13-B dated 21.10.2006 and he came to know these DD only on the next day i.e. on the eve of Diwali. He also saw the DDs when he was enquired by the DCP on his part when he checked the SHO Inspector Ranbir Singh informed him the details of the DDs. CWI on cross examination by the DA stated that Inspector Ranbir Singh had been working with him for 1 < years and he did not receive any complaint of corruption and he had no doubt over his integrity. We notice that incident took place in the midnight of 20/21.10.2006, and both DDs were with ACP on 21.10.2006 and on that day on a query from the ACP, the Applicant Ranbir Singh informed the ACP in detail about both DDs. This information was given at the verification made by the ACP within less than 24 hours. We do not understand how the EO and Disciplinary Authority came to the conclusion that matter was kept under carpet & hidden from senior officers. The matter was known to the ACP within a day. We wonder how the statement like the above could be recorded. This colourable expression of the charge, in our considered view, is contrary to the evidence on record.
12. The Disciplinary Authority has taken another component in the charge against the Applicants: Calling 13 persons in Police Station and letting them off without registering case and pressurizing them amounts to gross misconduct and directly reflects on the integrity of both defaulters. The EO in his discussion of evidence in this regard has stated that the Applicants and constable Jai Bhagwan visited the place, brought 13 persons to Police Station on the alleged gambling and playing cards, searched them, seized the cash and mobile phones and they were released lateron with articles without registering a case and without mentioning the seized and returning of the items in Register-19. As already discussed in previous paragraphs that at the alleged place there was no gambling. It was stated that those persons were drinking and playing cards. As the Inspector Vigilance (PW 18) has stated that drinking and playing cards is not an offence, how the Applicants would have registered a case against those 13 persons and on what grounds. Even if law abiding citizens are called to the Police Station for any enquiry, it is not necessary to register a case against them if they have not committed any offence. Let us presume a case would have been registered, there would have been allegation from those 13 persons. Law abiding citizens playing cards and drinking in their places, cannot be an offence and as such a case could not have been registered. Hence, we find that this part of the charge has not been supported through any evidence.
13. Another contention raised during the hearing by the counsel for the Respondents that the complainant (PW 6) informed in his complaint that he did not receive his cash amounting to Rs.39500/- as the same was returned to him by police. This was also informed during the PE. We find that in DE, PW 16 narrated that he gave the complaint on the behest of some Police Men when he went to Police Station, Ashok Vihar but on the same night (20/21.10.2006) his money was received by Shri Vinay Chawla (PW-7) his friend and he was not aware of the same, since he was in an inebriated condition. PW-7 has also corroborated the same evidence in his deposition. We also note that the EO has not returned any finding on this except to state that PW 16 has turned hostile. Since Disciplinary Authority has taken this contention into account while imposing punishment, we conclude that the said contention of the counsel for Respondents has no relevance in the case.
14. We would not have gone into such detailed analysis but for the fact that Police Officers discharge very onerous and difficult responsibilities. On receipt of an erroneous/pseudonymous complaint over phone if the police officers do not act and wait to get a message from the PCR, and something goes wrong, they will be held responsible and face departmental action. On the other hand if they act on such a call, they are being questioned. The message that some bad elements had gathered at a place was received on the eve of Diwali an important Indian festival of light and gaiety the police are responsible to ensure perfect law and order and nothing should go wrong in their jurisdiction. Action of the SHO to visit the spot alongwith some more Policemen to find out whether bad elements have gathered is the right step. The Applicants have gone in a group to check the information and finding 13 persons in the place, they have been brought to Police Station (they were not arrested), searched and the cash, mobile phones and articles found during the search were returned on the same night. The facts from the enquiry reveal that at about 11.30 p.m. the Police moved from the Police Station, 13 persons came to the Police Station at about 12:30 am, they were searched and recovered articles were returned and they were released at about 2.00 p.m., which means in about two and half hour, the police did their job. To say that the Applicants had evil design may not be appropriate. The ACP has stated that he had no doubt about the Applicant Inspectors integrity. We wonder what better certificate is needed in support of the Applicants?
15. One more contention raised by the counsel for the Applicant relates to the referring of the statements recorded during the Preliminary Enquiry (PE) by the EO and Disciplinary Authority to reach conclusion, which he termed as illegal as per the Delhi Police (Punishment & Appeal) Rules, 1980. We referred in this regard Rule 15(3) of the said Rules, which inter alia envisages that PE Report should not be part of the detailed departmental proceedings and only the records of those witnesses in the PE, who are no longer available could be brought on record of the departmental proceeding and the EO can also bring on record any other document from the file of the PE if he considers it necessary after supplying copies to the accused officer. In this context, all the witnesses who were examined in the PE were also examined and cross examined in the DE. Therefore, the reference to the preliminary enquiry by the Disciplinary Authority in the order imposing penalty would directly violate the statutory provision in Rule 15 (3) of Delhi Police (Punishment & Appeal) Rules, 1980.
16. We have analysed in the preceding paragraphs that this Tribunal would normally not go into the details of evidence gathered by the Enquiry Officer during the inquiry, but since this is a case where the counsel for the Applicants contended very clearly a case of no evidence, we examined above the evidence of relevant witnesses. It is very clear that there is no witness who has deposed against the Applicants. We also find that the Constable Jai Bhagwan who along with team of Police Officers including Inspector Ranbir Singh and ASI Sube Singh (the Applicants herein) involved in the alleged incident, no action was proposed. The Enquiry Officer found him (Constable Jai Bhagwan) not guilty of the alleged misconduct but concluded the senior Police Officers (the Applicants) as guilty. In our considered opinion, the Respondents have not made out a case against the Applicants and they have rather relied upon irrelevant matters and have not taken into account the relevant facts like making DD entries on receipt of the phone call which has been turned against the Applicants. On the pre Diwali day when the Applicants have raided the premises where some persons were drinking and playing cards and on search and enquiry finding them very respectable group of people they not only returned the mobile phones and cash but also released them. The payment of cash to the complainant through his friend available during the said incident has not been properly appreciated by the Enquiry Officer. He has relied more on the statements recorded by the Police during the PE and not on the evidence adduced by the witnesses in the DE. Therefore, we find that the relevant evidence has not been taken into account but irrelevant and inadmissible part of the inquiry have been taken into account by assessing and finally reaching the conclusion that the charge framed against the Applicants are partly proved. The Disciplinary Authority has reached his conclusion on assumptions and presumptions, which are not supported by evidence in the DE. It is said that presumptions are like bats in the night and they disappear when the light of facts emerge. Facts emerging from the DE reveal that this is a case of no evidence and our search of the EOs report to establish some part of the charge against the Applicants even to invoke the principle of Probability of Preponderance could not yield any convincing result. We conclude accordingly.
17. Considering the above facts and circumstances of the case; settled legal position on the issues, and our above detailed analysis, we, therefore, come to the considered conclusion that this is a case of no evidence against the Applicants. Therefore, the orders passed by the Disciplinary Authority dated 11.04.2008 (Annexure A-2) and the Appellate Authority dated 19.11.2008 (Annexure A-1) are quashed and set aside. Resultantly, the entry of their names in the Secret List of doubtful integrity is also quashed and set aside and they should be free from the said Secret List. Consequent to the above orders passed by us, the necessary consequential benefits as admissible under law would accrue to the Applicants.
18. Thus, both Original Applications having merits are allowed, leaving the parties to bear their own costs. Let a copy of this order be placed in both OA files.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/