Central Administrative Tribunal - Delhi
Constable Neeraj Kumar vs Govt. Of Nctd Through Commissioner Of ... on 2 June, 2010
Central Administrative Tribunal Principal Bench OA No.277/2010 New Delhi this the 2nd day of June, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Constable Neeraj Kumar, S/o Sh. Karan Singh, age 28 years, R/o Village Ballab P.O. Garhi, the Kalanaur Distt. Rohtak, Haryana. -Applicant (By Advocate Ms. Ritika Chawla) -Versus- 1. Govt. of NCTD through Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 2. The SPL Commissioner of Police, Armed Police, Delhi, Headquarters, I.P. Estate, MSO Building, New Delhi. 3. The Deputy Commissioner of Police, Traffic (SR) Delhi, Headquarters, I.P. Estate, MSO Building, New Delhi. -Respondents (By Advocate Shri Padma Kumar S. for Ms. Jyoti Singh) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, a Constable in Delhi Police, by virtue of this OA, has impugned respondents order dated 16.7.2008, whereby pursuant upon a departmental enquiry (DE), a penalty of permanent forfeiture of two years approved service with proportionate reduction in pay and treatment of suspension period from 17.5.2007 to 7.6.2007 has been inflicted. Also assailed is an order passed in appeal on 13.10.2009 where the penalty imposed is upheld.
2. On an allegation that while posted at Defence Colony Traffic Circle and detailed on crane duty on a PRG raid a privately hired crane when moved out of the pit and stopped ahead of delivery van in service lane a person wearing red cap and driver of the delivery van called the person in red cap, who, after talking, handed over something to applicant. On enquiries, it is alleged that Rs.100/- have been accepted by the applicant as entry money. During the course of enquiry, PW-4, a person, who has been alleged to have given bribe to the applicant as delivery boy-cum-driver denied the allegation and stated that his signatures were taken by the PRG team and also categorically stated that he neither recognized traffic police constable and they had not either demanded money or accepted the same. PW-3 SI Pankaj Malik in the PRG Team clearly stated that he had not heard the conversation between the applicant and the driver and also not sure as to the thing given to the applicant. PW-5, Inspector has also deposed that something was given to the applicant but he had denied hearing the conversation and also denied preparation and identification memo, refusal memo as well as DD entry and recording of any independent witness. It is also denied that he took signature of Constable Neeraj Kumar.
3. DWs, who were in the Van, were examined by the applicant. They have denied any such incident. In the discussion of evidence, the enquiry officer (EO) clearly observed that the version of applicant and testimony of DW-4 not proving the allegation against the applicant were supported by DWs who were present there, being helper and driver of delivery van and admitted that the version of PWs 3 and 5 had no force. It is also admitted that the entire prosecution story is based on PWs 3 and 5, and PW-4 has nowhere supported his statement. The testimony of PWs-3 and 5 being senior officers when not discredited and having more preponderance the applicant was held guilty. This has been relied upon by the disciplinary authority (DA) on preponderance of probability and upheld by the appellate authority on the same ground.
4. Learned counsel of applicant states that the present is a case of no evidence, having not supported the prosecution the statement of PW-4 cannot be relied upon and PWs 3 & 5 having not seen the applicant demanding or accepting the money where even recovery has not been made. Relying upon a coordinate Bench decision of this Tribunal in Const. Raj Karan v. Govt. of NCT of Delhi & Ors., OA NO.1613/2004, decided on 13.1.2006, where the decision of the Apex Court in Sita Ram v. State of Rajasthan, AIR 1975 SC 1432, Suraj Mal v. the State (Delhi Admn.), AIR 1979 SC 1408 have been relied upon in identical circumstances, where the following observations have been made:-
16. It is trite law that in a disciplinary proceeding and specially in a judicial review by the Tribunal the sufficiency and re-appreciation of evidence is not permissible. But in the light of the decision of the Apex Court in Kuldeep Singh v. Commissioner of Police, JT 1998 (8) SC 603 what is permissible is interference in case of no evidence, finding based on suspicion and surmises and inadmissible evidence and also when the findings and conclusions arrived at by the departmental authorities do not pass the test of a common reasonable prudent man, the findings can be set aside. In a recent decision the Andhra Pradesh High Court in Union of India v. G.Krishna, 2005 (3) ATJ 359 made the following observations:
11. Whereas Shri Anil Singhal relied upon the decision of the Madhya Pradesh High Court in Union of India v. Mohd. Naseem Siddique, 2005 (1) ATJ 147 to contend that in a disciplinary proceeding the EO apart from seeking clarification cannot, by way of cross-examination, put leading question to the witnesses which will be in the form of filling up the gaps and the enquiry is not fair as EO had assumed the role of a prosecutor.
12. Shri Singhal stated that decision of the Division Bench in OA-2827/2003 ASI Sher Singh v. Govt. of NCT of Delhi & Ors., decided by the Tribunal on 7.7.2004, covers the aforesaid issue.
13. Learned counsel by placing reliance on a decision in OA-1779/2004 - Satyavir Singh v. Govt. of NCT of Delhi through Commissioner of Police & Ors. by a Division Bench of this Tribunal decided on 3.8.2005 contended that mere recovery of money would not be a legal evidence to indicate it to be a bribe money, as such placing reliance on a decision of the Delhi High Court in Kundan Lal v. Delhi Administration, Delhi & Ors., 1976 (1) SLR 133, it is stated that applicant Sohanbir has been punished on surmises.
14. Shri Singhal stated that whereas the EO without any charge framed as to presence of applicant at different place from his duty place has not been alleged, yet the same has been established against applicant. Moreover, mere presence of applicant without any over-tact as to either demand or acceptance of bribe merely on common intention cannot form the basis of either finding of guilt or punishment. As such, in nut shell what has been reflected is that applicant has been punished on no evidence merely on suspicion and surmises, which is not correct in the light of the decision of the High Court of Andhra Pradesh in Union of India v. G.Krishna, 2005 (3) ATJ 359.
17. In the above context and a clear concept of law the mere recovery in a trap case uncorroborated with any evidence directly on the issue of either demand or acceptance would not be sufficient to hold the guilt.
18. The Apex Court in Sita Rams case held as follows:
9. On the point of payment of money by complainant Mohan Lal to the appellant the evidence of the former was of no help to the prosecution. The High Court found this fact established, as stated above, on the evidence of P.W. 2 Mukundsingh and P.W. 9 Sugansingh. Learned counsel for the appellant rightly pointed out that the former on being further cross-examined had stated "When Mohan Lal gave currency notes to Sitaram I did not see it. The attention of the High Court does not seem to have been drawn to the above statement of P.W. 2 in cross-examination. That makes his evidence hearsay on the point of acceptance of gratification by the appellant from Mohan Lal. So many jerks and jolts seem to have been given to the prosecution case by contradictory and hostile statements of the witnesses that a good part of it had to be rejected by the High Court. In the background of the High Court's findings that it had not been proved that the appellant had demanded any bribe from Mohan Lal, we do not consider it safe to sustain its finding on the point of payment of the bribe by the complainant to the appellant on the testimony of P.W. 9 alone when the evidence of P.W. 2 is not admissible on the point. The result is that not only the story of demand of bribe by appellant from the complainant is not proved but even the story of payment of the money by the complainant is not established beyond reasonable doubt. That being so the rule of presumption engrafted in Section 4 (1) cannot be made use of for convicting the appellant.
19. In Suraj Mals case (supra) the following is the observation of the Apex Court:
In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under S. 342 has denied the recovery of the money and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement under S. 342 Cr. P. C. Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal set aside the conviction and sentences passed against the appellant. The appellant will now be discharged from his bail bonds.
20. A Division Bench of this Tribunal in S.K.Jain v. Union of India & Ors., 1989 (4) SLJ CAT 953 by relying upon the decision in Suraj Mals case (supra) held that the evidence of the trap witnesses when does not corroborate the charge of acceptance of bribe, mere recovery itself cannot prove the charge and would not be a legally admissible evidence against the defaulter.
21. In Satyavir Singhs case (supra) this Tribunal made the following observations:
10. Admittedly, the bus conductor and the passengers of the bus were not examined at all. The enquiry officer has himself stated that the prosecution story appeared to be vague. The witnesses had neither heard applicant demanding money nor had then seen him accepting the money. The bus conductor in his statement denied the prosecution story. According to the enquiry officer he had only accepted that he had signed on the blank papers on the request of the traffic staff. The enquiry officer had stated that the prosecution story is doubtful. The statement of PW-9, i.e., the conductor of the bus, was not recorded before the raid and that the raid was full of lacunae. While in a departmental enquiry sufficiency of evidence is not the criterion to bring home the charge, some evidence must be there in support of the charge. In the present case even the enquiry officer has stated that the prosecution story is vague; witnesses had neither heard about the demand nor seen the acceptance of money as bribe. According to the enquiry officer the bus conductor has denied the prosecution story and he had only accepted that he had only signed blank papers on the request of the traffic staff. Such a statement recorded at a later stage over the signatures obtained on a blank paper cannot be relied upon at all in preference to the statement made by the witness before the enquiry officer. This is absolutely prohibited in terms of rule 16(iii) ibid. The earlier statement could be taken on record by the enquiry officer in case the presence of such a witness could not be procured without undue delay, inconvenience or expense. Such has not been the case presently. The bus conductor Shri Jai Bhagwan had appeared before the enquiry officer. His statement had been recorded by the enquiry officer. The earlier statement of this witness was inadmissible in terms of rule 16(iii). The contention of the learned counsel of respondents is that even if earlier statement of this witness is not taken into account, there is evidence to establish the charge against applicant. No such evidence has been pointed out by the learned counsel of respondents. Mere recovery of a sum of Rs.1150/- from the possession of applicant without a little supporting evidence cannot be said to have established that applicant had received a bribe. Stopping a vehicle or recovery of money from the possession of applicant without linking it with the money paid in bribe would not suffice to bring home the charge against applicant. There must be overt act to the act of stopping the vehicle or recovery of money from the possession of applicant. For this view we draw support from the case of Kundan Lal (supra). In our view, there is no iota of evidence in the present case regarding demand/acceptance of money on the part of applicant.
22. If one has regard to the above, in the present case the driver Jagdish had not supported the prosecution and he has stated categorically that neither his truck was stopped nor anybody demanded or accepted the amount. He went on saying that the policeman when insisted he returned the signed currency notes to them, though he was cross-examined by the EO but nothing fruitful has come-forth.
23. As regards other witnesses, PW-2 Inspector Jagat Singh had deposed only to the effect that driver was handed over signed currency notes but it is stated that driver had gone to applicant and thereafter on his signal they recovered the amount from applicant. Accordingly, SI Sikandar Rai, PW-4 and Inspector Y.S. Negi have deposed the same. The statement of Naveen Kumar also re-iterated the same.
24. It is clear from the aforesaid testimony that nobody had in fact seen applicant either demanding or accepting the money. Merely because the currency notes were signed and found allegedly from his possession would not be sufficient to hold his guilt, as there is no other evidence to connect the applicant. The EO discarded the testimony of PW-10 holding that the driver has been won over by the PW but the EO had offered no suggestions to this effect to the witness and on his ipsi dixit the aforesaid conclusion has been arrived at. Moreover, discarding the evidence probably as not trustworthy is a surmise. The charge is concluded in a very slip shot manner without a credible conclusion, after weighing the defence evidence and the explanation tendered by applicant. As per Rule 16 (9) the EO has recorded reasons after meticulously evaluating the prosecution and defence evidence. Calling the defence witness as tutored one without any basis when the EO had all the opportunities to test the demeanor of the witnesses is also a presumptive conclusion. Be that as it may, the fact that the only evidence against applicant is recovery of signed currency notes and this has not been established that applicant had demanded and accepted the same amount as an illegal entry fee. As such, relying upon a decision of the Apex Court this piece of evidence cannot be sustained to establish the charge and form basis of punishment against applicant.
25. No doubt, corruption among the disciplined force is a menace and has to be rooted out of the system, yet before awarding the punishment of dismissal upon a police officer, which is just like a death sentence in a criminal trial, at least opportunity to rebut, in consonance with the principles of natural justice, is to be accorded and it is to be seen that whether the charge has been established on legally admissible evidence and is not an outcome of suspicion, surmises and conjectures. In order to sustain a clean image of Delhi Police among the society and before the public it is not legally permissible to make a delinquent a scapegoat. Ones guilt has to be brought and proved in a DE but not the surmise and no evidence and assumption connecting the delinquent with the charge.
26. Hear-say evidence, circumstantial evidence forming a chain is admissible in DE, where the rule is of preponderance of probabilities, but in order to ascertain as a case of no evidence and perverse finding the test of a common reasonable prudent man is always intrinsically applicable. Applying the aforesaid test when the driver has not deposed anything against applicant and other witnesses have not deposed as to witness the demand and acceptance of the alleged illegal entry fee, yet recovery of the amount, i.e., the signed currency notes is not such an evidence to conclusively point towards guilt of applicant. In our considered view, the evidence brought against applicant in the enquiry and relied upon by the disciplinary authority is not legally admissible and rather the present is a case of no evidence and the punishment is rested on suspicion against applicant established on surmises and conjectures, which cannot be countenanced in law.
5. On the other hand, learned counsel of respondents would vehemently oppose the contentions and stated that preponderance of probability is the rule in disciplinary proceedings. To root out the corruption PRG officials conduct a raid but they do not have enmity with the applicant. DWs who were working under the applicant could not have deposed against him. It is contended that there was information that the traffic staff performing duties on crane in South District were collecting money from towed away vehicles without prosecuting them. The applicant denied everything without cogent reasons notwithstanding the fact that the said delivery van was present on the spot on the day of PRG Surveillance and was let off by the applicant without getting it prosecuted or towed away by the crane. PW-3 and PW-5 who were the members of PRG team had supported the prosecution charge by deposing that the red capped men was seen talking to the applicant and giving something to him. They recorded the statement of PW-4 the delivery boy who stated that he had given Rs.100/- to the applicant. Testimony of 3 and 5 could not be discarded as these PWs were senior officers detailed to conduct the surveillance to check the corruption. As such, it is stated that applicant on the basis of evidence once has been held guilty and the penalty is commensurate, no infirmity can be found with the orders passed by the respondents.
6. We have carefully considered the rival contentions of the parties and perused the material on record.
7. No doubt, preponderance of probability is the rule in the departmental enquiry but taking the test of a reasonable prudent man, as ruled by the Apex Court in Kuldeep Singh v. Commissioner of Police & Ors., JT 1998 (8) SC 603 and Union of India v. H.C. Goyal, AIR 1964 SC 264 on suspicion and surmises one cannot be held guilty of the charges. In the due enquiry, which is a quasi-judicial, there has to be sufficient evidence to hold the person guilty, as the evidence would point out towards guilt. On mere suspicion and surmises one cannot establish the charge. As ruled in State of U.P. v. Saroj Kumar Sinha, 2010 (2) SCC 772.
8. In the instant case, the driver having clearly refuted the allegation and had not authenticated his earlier statement as per Rule 15 (3) of the Delhi Police (Punishment & Appeal) Rules, 1980 his statement in the departmental enquiry has to be placed reliance and this does not support the allegation of prosecution story.
9. Insofar as PWs 3 and 5 are concerned, being the members of the raiding party they have not witnessed exactly or heard conversation as to demand or acceptance of money. We also find from the record that Inspector had on surmises assumed admission of demand and acceptance and bribe against the applicant and had not even bothered to record the information in writing. The DD entries regarding statement of crane driver etc. and also the other witness was also not sure as to what has been given to the applicant and also had not heard the conversation. It has not been proved that applicant has demanded bribe or whatever has been given to him is a bribe money, as no memo etc. has been prepared and refusal as alleged by the respondents has not been reduced in writing or by way of DD entry. If these steps are not taken, there is no credibility to the testimony and moreover, without going into the reappraisal or substitution of the views from the evidence recorded it is clear that the allegation of demand and acceptance against the applicant is not proved. The decision of the Tribunal in Const. Raj Karan (supra) on all fours covers the issue. We also find that under Rule 16 (ix) of the Rules it is mandated upon the EO to discuss the finding and record reasons. We do not find any reasons recorded or the submissions of the applicant being considered. However, it appears that upto the last paragraph when testimonies of senior officers PWs 3 and 5 were made basis of holding applicant guilty of the charge the evidence has been found favoured with in favour of applicant. The contradictory finding and the abrupt conclusion EO being a quasi-judicial officer cannot be countenanced in law in the wake of the decision of the Apex Court in Saroj Kumar Sinhas case (supra).
10. In the result, for the foregoing reasons, we find that the aforesaid finding once reiterated by the DA and the appellate authority the orders are vitiated. Accordingly, OA is allowed and the impugned orders are set aside. Applicant shall be entitled to all consequential benefits, as admissible in law. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.