Central Administrative Tribunal - Delhi
Constable Raghu Raj vs Govt. Of Nct Of Delhi on 7 May, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1696/2008 With O.A.No.1312/2008 Friday, this the 7th day of May 2010 Honble Shri Shanker Raju, Member (J) Honble Shri N D Dayal, Member (A) OA 1696/2008 Constable Rajeev Tyagi PIS No.28980958 R/o 1/4 Harsaon Police Line Ghaziabad, UP OA 1312/2008 Constable Raghu Raj PIS No.28980417 R/o A-28, Police Colony Bhajan Pura, Delhi-53 ..Applicants (By Advocate: Shri Anil Singal) Versus 1. Govt. of NCT of Delhi through Commissioner of Police PHQ, IP Estate, New Delhi 2. Addl. C.P. (Security) Security Main Lines Vinay Marg, New Delhi 3. Shri D S Norawat (DANIPS Cadre Group B) Addl. DCP, HQ (Security) Security Main Lines Vinay marg, New Delhi 4. Jt. Commissioner of Police Traffic, PHQ, IP Estate, New Delhi 5. DCP (Traffic/HQ) PHQ, IP Estate, New Delhi ..Respondents (By Advocate: Ms. Jyoti Singh) O R D E R (ORAL)
Shri Shanker Raju:
As these OAs are grounded on same set of facts and founded on identical question of law, the same are being disposed of by this common order.
2. Applicants, in both the OAs, who are working as Constables in Delhi Police, have been proceeded against in a major penalty proceeding under Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980 (for short Rules) on intervention by PRG team on the allegations of accepting bribe from truck driver one Shri Rathinam M to the extent of Rs.150/-. Thereafter during personal search of applicant in OA-1696/2008, Rs.1470/- was recovered from his purse and Rs.1110/- was recovered from applicant in OA-1312/2008 from his purse. Both the applicants led to inquiry where the statements of PRG team as well as complainant were recorded. The truck driver while deposing in the inquiry has denied and has not authenticated the earlier statement recorded. He has also stated that the witnesses have given the statement without any fear and in good sense before the inquiry officer and has categorically denied that the applicants had demanded or accepted money. PW-4, who is the Inspector leading the PRG team, deposed as under:-
PW-4 statement of Inspr. Ganpat Ram TI/PTC, New Delhi He stated that he was now posted as TI/PTC and on 24/25-6-2004, he was posted in PRG and that night he had accompanied Inspr. Hira Lal, to Kapashera Border, on having received complaints of malpractice by traffic staff there at about 12-30 AM there, they observed that two traffic constables were roaming in between the trucks. The driver of truck No.KA-3666 had told them on asking that the traffic constables had taken Rs.150 as entry money, even when told that he was going to Delhi only. Both the drivers were found present and their name were later known as Rajiv Tyagi and Raghu Raj. Rs.150/- were recovered from the pocket of Const. Rajiv Tyagi, on recognition by the driver. Also Rs.150/- were similarly recovered from the pant pocket of Const. Raghu Raj. The money thus recovered from both the constables was taken into possession through seizure memo. The constables, besides above money, had also more then Rs.1100/- each. Inspector Hira Lal recorded the statement of truck driver and his also. His previous statement is already marked as PW-3/B and seizure memo as PW-3/A. During cross, he admitted that Rs.1100/- were recovered from Const. Rajiv Tyagi. He denied that they had not made departure report in Roznamcha, as PRG is not maintaing any Roznamcha. He admitted that, on asking from driver, he came to know that money was taken by traffic constables. He had earlier also given statement to Inspector Hira Lal, which is on record. He did not hear anything between the constables and driver, but say them from a distance.
He admitted that driver had said that money recovered from one constable was taken from him. The statement of the driver was recorded by Inspr. Hira Lal.
3. In the above backdrop, the inquiry officer with the following observations, held the applicants guilty of the charge:
DISCUSSION OF EVIDENCE The main allegation against the defaulters that is that while performing duty at Kapashera Border during night checking duty for destined/non-destined vehicle for Delhi they were found indulging in accepting illegal money. At about 12.55 AM truck bearing registration number KA-01-AD-3666 arrived and its driver namely Shri Rathinam M S/o Mutusamy Pundeyachi R/o Abimavam P.O.-Yethapur, Tehsil-Attur Distt. Salem (Tamilnadu) having driving license No. 2/TN/272/001620/204 issued from Attur (T.N.), was questioned by these Traffic constables and later by PRG Inspector who stated that he was coming from Tamilnadu to deliver goods in Delhi. When he reached at Kapashera Border before Toll Tax Booth at about 12.50, he was stopped by traffic Constables. One Constable demanded entry money from him. When he told him that he is going to Delhi only but the said Constable did not listen to his request. The driver wanted to pay Rs.50/- to avoid harassment but the Constable asked for more. Then the driver paid him Rs.100/- as entry money. He further told that his fellow constable was also present there near his truck. He further could identify both the traffic Constables. The PRG Team also recovered Rs.150/- each from both the defaulters, which were seized as per seizure memo by Inspr. Hira Lal, TI/Traffic.
During the course of departmental enquiry 6 PWs were examined out of which PW-1, PW-2 & PW-6 were formal in nature and have proved the posting/duties and records of money deposited with the L.O. PW-3 Inspr. Hira Lal was the Incharge of the PRG Surveillance Team and has fully supported the prosecution theory. He had also proved the recovery of illegal entry money from the defaulters. PW-4 Inspr. Ganpat Ram was also the member of the PRG surveillance Team and had made an identical statement as of PW-3. He was also a witness to recovery of entry money from the defaulters. PW-5 who was the main and material witness on whose statement this DE was initiated had resiled from his earlier statement made to PRG Team and had stated that the PRG Team had written something on a paper in Hindi and got his signature. He does not understand Hindi and not aware what was written on that paper.
I have carefully considered the defence of the defaulter and found no weight as the recovery of entry money was effected from the defaulters and proved by the PRG Staff.
The enquiry before me is quasi judicial proceedings in nature and I have to evaluate the evidence as per preponderance of probability and have come to conclusion that since the recovery part of the allegation is proved which is thus a resultant of the first part of the allegation, meaning thereby that the charge against the defaulters stands proved.
CONCLUSION The charge against the Const. Raghuraj No.2659/T (now 1769/Sec) and Const. Rajeev Tyagi No.4060/T (now 1625/Sec) stands proved.
4. The disciplinary authority, on the basis of the inquiry report and on the basis that the allegation of demand and acceptance has not been proved and when the recovery part of the allegation is proved the first part of the allegation is deemed proved, imposed a major penalty upon the applicants vide order dated 26.7.2004. This order was appealed against by the applicants. By an order dated 31.5.2007 passed by the appellate authority, the appeal was turned down. These orders have been assailed by the applicants in these OAs.
5. At the outset, learned counsel for applicants states that once admittedly the inquiry officer has recorded a categorical finding as to non-proof of first part of the charge of demand and acceptance of money, the second part of the charge of mere recovery would not be sufficient to hold the applicants guilty of the charge and also involvement in corruption.
6. It is stated that as a consequent of proven of second part of charge, i.e., recovery, the first part cannot be automatically proved unless there is a direct evidence on the same.
7. To buttress his plea, learned counsel for applicants has relied upon plethora of decisions of the coordinate Benches of this Tribunal, including the decision in Satyavir Singh v. Govt. of NCT of Delhi & others (OA-1779/2004) decided on 3.8.2005. He also relies upon the decision in Ex. Constable Subhash v. L.G. of Delhi & others (OA-102/2006) decided on 15.2.2007.
8. Learned counsel has further relied upon the decision of High Court of Delhi in Ex. Constable Tika Ram v. Union of India & others (WP (C) No.5080/2001) decided on 22.2.2008. Lastly, the decision of High Court of Delhi in Dhujender Pal Singh v. Govt. of NCT of Delhi & others, 2002 V AD (Delhi) 485 has been relied upon.
9. Learned counsel has also referred to the decision of Apex Court in Union of India & others v. Gyan Chand Chattar, (2009) 12 SCC 78 to contend that even in course of departmental proceedings where preponderance of probability is the rule, the Apex Court has ruled that in such view of the matter, there must be a clear proof of the misconduct and the charge is to be proved beyond any shadow of doubt to its hilt and cannot be sustained on mere probability.
10. On the other hand, Ms. Jyoti Singh, learned counsel appearing for the respondents vehemently opposed the contentions and stated that a sanctity has been accorded to the PRG team and even a single testimony to establish the charge is sufficient to held the applicants guilty. It is also stated that the truck driver has already recorded the statement before the PRG team against the applicants and also admitted the same before the PRG Inspector.
11. It is further stated that the witness has turned hostile, yet the other testimony in the form of other evidence is there to hold the applicants guilty, which stands proved and for which the penalty imposed is after following the due process of law and rules and is proportionate to the charges leveled against the applicants. Though learned counsel for respondents relied upon plethora of decisions but not even a single judgment has been provided to us.
12. We have carefully considered the rival contentions of the parties and perused the records.
13. In the matter of disciplinary proceedings and more particularly the judicial review of the judicial fora, what is allowed is to examine the evidence to ascertain as to whether the case is of no misconduct and no perverse finding? If a government servant is punished on suspicion and surmises without any evidence on record to connect him from the alleged misconduct, probability, suspicion and conjectures would not take place as proof to hold one guilty of the charges. However, what is precluded is re-appreciation of evidence and substitution of our own views in place of the departmental authorities.
14. Corruption cannot be condoned or pardoned. Courts would not give premium to a person against whom charges of corruption are proved to the hilt but the condition precedent is that before a government servant is declared corrupt, there has to be some legally admissible evidence and proof to establish it and thereafter he deserves whatever penalty is found apt in the domain of the departmental authorities within their right to the doctrine of proportionality, as settled by the Apex Court in plethora of cases.
15. In departmental proceedings, we cannot apply a straight jacket formula to apply the rules and law and to declare anything illegal or upheld the validity and legality of an action by the departmental authorities. It depends upon the facts and circumstances of each case but what is universally or uniformly applied is the ratio delivered in the cases either by the High Court or by the Apex Court or by the coordinate Benches where a proposition of law since being settled would have application not only with the backdrop of the rule discussed and the proposition held but also the impact on the facts and circumstances of each case, of which examination is entrusted to us in an adjudication process.
16. Keeping in light the facts and circumstances of these cases, we find that the complainant against whom it is alleged that the applicants have demanded and accepted money, whatever statement he has recorded to the PRG team, at best, we have to consider as their statement during the course of preliminary inquiry under Rule 15 (1) of the Rules. However, this has to be borne in mind that all the statements recorded during the PRG raid and preliminary inquiry are the statements, which are recorded behind the back of the concerned officials and without giving them an opportunity to rebut or confront the witnesses. However, these statements in an exception carved out under Rule 16 (iii) of the Rules are admissible only when the maker of these statements are not available or his presence could not be secured by their convenience on expenses and the statements should have been recorded during the course of trial, inquiry or investigation. It is trite that when a witness comes in the departmental inquiry, the statement, which has to be read to record a finding by the inquiry officer, is the statement recorded during the course of departmental inquiry, as such the preliminary inquiry statement looses its significance and is only helpful to the inquiry officer in the matter of examining or testing the sanctity of witnesses or confronting them to the extent. In the above view of the matter, the Apex Court in Kuldeep Singh v. Commissioner of Police & others, JT 1998 (8) SC 603 clearly laid down that such statements are inadmissible when a witness deposes directly in the course of departmental inquiry.
17. From the statement of PW-5, i.e., the truck driver of the vehicle, it appears that he denies any statement recorded and rather states that his signatures were taken on a piece of paper. This shows that he has never authenticated and verified as to earlier statement. He further goes to depose that applicants had neither demanded nor received any money from him while posted as Constables. However, this statement is sought to have been confronted and prevailed over by the inquiry officer basing on the statement of PW-4, the in-charge of the PRG team. According to him also, he has neither seen the applicants taking bribe nor he heard what transpired between the Constables and truck driver. The only evidence, which has come forth, is the statement got recorded by him where the witness had admitted that applicants have demanded and accepted the money but he states that he saw them from a distance. It has not come on evidence that what he had seen from a distance is demand or acceptance of the money. In such view of the matter, when this statement allegedly proved by Inspector of PRG team is contracted by the maker of the statement, applying the ratio of Apex Court in Gyan Chand Chattars case (supra), the statement on probability not beyond the shadow of doubt is based on surmises. The PRG team is a special body constituted over and above the police officials to detect on conduct of raid allegations of corruption or to check corrupt activities of the police officials, including the truck driver and Constables. Their statements are not gospel truth and in peculiarity of circumstances of any case where the raid failed, they had the tendency to implicate the police officials in a false accusation. However, the fact remains that the Inspector of PRG team had neither witnessed nor heard the conversation that what is going around at a distance. An inference to demand and acceptance is only on probability, surmises and conjectures. This has been established from the testimony of PW-4.
18. Moreover, in the matter of precedent, as we are in the scrutiny jurisdiction of High Court under Rule 226 of the Constitution of India, the order passed by the High Court is binding over and above the case laws decided by the coordinate Benches of this Tribunal, especially when we do not disagree with the decision of the coordinate Benches. As such, the decision is squarely covered in Shri Kundan Lal v. The Delhi Administration & others, 1976 (1) SLR 133, which applies to the extent that recovery of money cannot establish either demand or acceptance and mere recovery is not a proof of corruption charge against the concerned. In Dhujender Pal Singh (supra), when a similar plea of demand and acceptance of money raised by the PRG team has not been established, mere recovery of money has not been found apt to either hold the applicant therein guilty or to punish him in any manner. Moreover, in the instant cases, even if we go by the statement that money was recovered, this has not been proved that out of the recovered amount, an amount given by the truck driver was inclusive of this or not. As the truck driver has clearly deposed that he has not given any money to the Constables, in such view of the matter, mere recovery of the money may draw a presumption or one of the probabilities that this money could have belonged to the applicants, which when not proved, is not the proof of the allegations and on this score also, applicants cannot be held guilty of the charges.
19. Now coming to the inquiry report, the Apex Court from time to time stressed upon the role of inquiry officer while conducting inquiries. No doubt the inquiry officer is a quasi judicial officer. He is duty bound to act independently without any bias, as he is only inquiring into the case of prosecution but unfortunately unlike CCS (CCA) Rules, 1965, there is no concept of appointment of presenting officer in Delhi Police and it is the inquiry officer, who presents evidence on behalf of the prosecution but it does not absolve him from his role to act independently and not to act as a judge and prosecutor. This proposition has been fortified by us on the basis of ruling of the Apex Court in State of Uttar Pradesh & others v. Saroj Kumar Sinha, 2010 (2) SCC 772 where it has been ruled that on mere suspicion and surmises, one cannot be held guilty of the charge.
20. In the above view of the mater, as per Rule 16 (ix) of the Rules, it is incumbent upon the inquiry officer on the conclusion of the inquiry not only to take into consideration the prosecution evidence but also to consider the discussion and record reasons on the defence advanced by the delinquent officials in their defence statement. From the discussion in the present cases, we do not find any whisper about the defence of the applicants what to talk of the discussion and recording of reasons by the inquiry officer. As such the inquiry report is vague, indefinite and inconclusive, and being violative of Rule 16 (ix) of the Rules is not legally tenable to hold the applicants guilty of the charges.
21. In the matter of inquiry, there has to be a sufficient evidence even going by the standard of preponderance of probability to connect the delinquent officials from the alleged charge, as ruled by the Apex Court in Sher Bahadur v. Union of India & others, 2002 SCC (L&S) 1028 where it has been held that a mere statement with the evidence adduced is not sufficient to hold guilty. As we find that the inquiry officer himself in his report, which is reiterated by the disciplinary authority, had not established the charge of demand and acceptance of money against the applicants but merely on the basis of recovery, of which amount has not been proved to be the bribe money, he has deemed the charge of demand and acceptance proved on the basis of resultant recovery, which, to our considered view, is a finding recorded perversely and does not pass the twin test of a common reasonable prudent man. This is only on surmises, conjectures and suspicion, which is based on conclusion of the inquiry officer and as we are satisfied that there is absolutely no evidence against the applicants to hold them guilty of the charges, holding of guilty by the inquiry officer, which is subsequently agreed by the disciplinary authority and upheld by the appellate authority cannot be sustained in law.
22. Resultantly, both the OAs are allowed. Impugned orders are set aside. Applicants shall be entitled to all the consequences, as admissible in law, which shall be disbursed to them within a period of three months from the date of receipt of a copy of this order. No costs.
Let a copy of this order be placed in each file.
(N D Dayal ) ( Shanker Raju ) Member (A) Member (J) /sunil/