Central Administrative Tribunal - Delhi
H C Mukesh Chand No.938/Pcr vs Govt. Of Nct Of Delhi Through on 5 February, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2755/2009 Friday, this the 5th day of February 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. H C Mukesh Chand No.938/PCR s/o late Shri Mohan Lal Shastri Aged about 47 years r/o H No.28-K Pocket II Mix Housing MIG Complex Mayur Vihar Phase II, Delhi-96 2. Cons. Devender Kumar No.3493/PCR S/o Shri Sardar Singh Aged about 38 years r/o Village & Post Phatehpur Puthi Distt Bagpat (UP) ..Applicants (By Advocate: Shri T D Yadav) Versus 1. Govt. of NCT of Delhi through Commissioner of Police Police Headquarters I P Estate, New Delhi 2. Joint Commissioner of Police Operation, PHQ IP Estate New Delhi 3. Deputy Commissioner of Police Police Control Room IP Estate, New Delhi ..Respondents (By Advocate: Shri Padma Kumar S for Ms. Jyoti Singh) O R D E R (ORAL)
Shri Shanker Raju:
Heard the learned counsel for the parties.
2. Applicants, who are Head Constable and Constable respectively in Delhi Police, by virtue of this OA, have challenged an order passed by the respondents dated 15.12.2008 whereby pursuant upon a departmental inquiry under Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980 (for short Rules of 1980), punishment of forfeiture of three years approved service permanently with proportionate reduction in pay and treatment of suspension period as not spent on duty has been imposed. Also assailed is a common order passed in appeal dated 16.6.2008 whereby order passed by the disciplinary authority is upheld.
3. Applicants have been proceeded against in a joint departmental inquiry on the allegation that while posted in Hauz Khas Traffic Circle and detailed for night duty at Aya Nagar Border, they were found indulging in malpractice by demanding and accepting Rs.50/- as entry money from the driver of vehicle bearing registration No.HR-46B-2828 during the PRG surveillance. During the course of inquiry, respondents have examined five PWs, including Inspector Raj Singh, Constable Ashok Kumar, HC Raj Kumar, Shri Sunil Kumar, who was driving the vehicle and SI Shailandra Singh. The driver of the vehicle has denied his earlier statement and stated that he had not given any amount to either Constable Devender Kumar and also that he was not stopped at Aya Nagar. All other PWs have since in their testimony accepted that they had taken position about 40/50 meters ahead from the spot and had not seen or heard the conversation regarding alleged transaction of accepting Rs.50/- but on the basis of what has been divulged by the driver are deposing against the applicant in the departmental inquiry. Two DWs were examined, who were in the vicinity of the spot where the alleged misconduct has been imputed against the applicants, denied to have seen either the applicants demanding or accepting any money. However, the inquiry officer instead of correctly translating in English the statements of DW 1, has stated that he was present at a spot where he could easily see these two Constables and further stated that he had not been seen either demanding or accepting the money from any of them, rather this has been translated that he did see both of them demanding and accepting money from the driver.
4. Learned counsel states that as there is no misconduct made out and no evidence against the applicants in the light of the decision of this Tribunal in Ct. Gyanender Singh v. Govt. of NCT of Delhi & others (OA-2264/2008) decided on 11.5.2009, impugned orders are illegal.
5. Learned counsel also states that in all fours the is covered by the above ratio. He also relies upon the decision of this Tribunal in Satyavir Singh v. Govt. of NCT of Delhi & others (OA-1779/2004) decided on 3.8.2005.
6. On the other hand, learned counsel for respondents contends that the misconduct of the applicants is amply proved from the fact that DW-1, who is the witness of the applicant, had not supported the applicants rather he proved their misconduct. It is also stated that when there is some evidence, interference in judicial review is not permissible.
7. Learned counsel would further contend that the procedure adopted is in consonance with Rule 16 of Rules 1980 and on the basis of evidence, the charge of the applicants has been proved, for which penalty imposed by the disciplinary authority, as affirmed by the appellate authority in appeal, is commensurate with the misconduct.
8. We have heard the rival contentions of the learned counsel and perused the records.
9. As a Court, it is the duty casts upon us not to promote the corruption or to reward those who are held guilty of any corruption charge, as the corruption has proved to be a termite eating our country. However, before a person is held guilty of a charge of corruption and suitably punished the condition precedent is in consonance with principles of natural justice and laid down departmental proceeding rules that the charge must be brought against on some evidence and material adduced during the course of inquiry but not on mere suspicion and surmises. One cannot be punished without evidence even in a departmental inquiry following the rule of preponderance of probability.
10. In the light of above, as per rule 15 (3) and 16 (iii) of Rules 1980, the earlier statement of a witness is admissible only when the witness is no longer available or his presence cannot be secured. The condition precedent is that this statement should be recorded during the course of an investigation, trial or inquiry. However, as a juxtaposition when a witness appears in the inquiry and makes a statement under Rule 16 (iii) of Rules 1980, then his earlier statement, except to confront him is of no consequence and it cannot be relied upon to hold the police official guilty of the charge.
11. In the earlier statement of Shri Sunil Kumar, the driver of the vehicle and who has complained of demand and acceptance of Rs.50/- by the applicants has denied to have stated before the PRG officers as to demand and acceptance Rs.50/- by the applicants. He, in the course of inquiry, specifically deposed that the neither any one had demanded it nor had he paid it. In this view of the matter, the rest of the testimony is clear to the effect that the other police officers had not witnessed the incident and also not heard the conversation allegedly taken place between the driver and the complainant. In such view of the matter, having not seen the applicants demanding or accepting bribe or even heard the conversation, their testimony even applying the strict rules of evidence is not sufficient on the touchstone of the test of a common reasonable prudent man to hold them guilty as proved by the inquiry officer. The aforesaid finding is reiterated on acceptance by the disciplinary authority to punish the applicants and further upheld by the appellate authority. It appears the departmental authorities, specially appellate authority has not paid any heed to the statutory rules, which mandates while exercising appellate jurisdiction under Section 23 of Rules of 1980 to examine illegality of procedure. Non-application of the mind lies writ large on the face of it. We are in respectful agreement with the decision in Ct. Gyanender Singh and Satyavir Singh (supra), which, in all fours, cover the issue in this OA. Applicants have been punished without any misconduct and without any evidence on record merely on suspicion, surmises and conjectures, which cannot be countenanced in the light of the decision of Apex Court in H.C. Goel v. Union of India, AIR 1964 SC 364.
13. As we find that the inquiry officer, who is in the rank of Inspector, has translated the statement of DW-1 in a manner to indicate that he is deposing against the delinquent officials and later on his conclusion as to DW-1 and DW-2 could not be relied as they cannot be spectator for the whole time, shows that there has been non-application of mind by the inquiry officer, who has been conducting inquiries as a ritual oblivious of the rules. Any statement or evidence in departmental inquiry is when misinterpreted or wrongly translated can cost a police official his job, which amounts to a capital punishment. Accordingly, we direct Commissioner of Police, Delhi to ensure that in future only well trained, educated and intelligent officers are deputed as inquiry officer to conduct departmental inquiries against police officials.
14. Resultantly, OA is allowed. Impugned orders are set aside. Consequence to follow. No costs.
Let a copy of this order be sent to the Commissioner of Police, Delhi.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/