Central Administrative Tribunal - Delhi
Radhey Shyam vs Govt. Of Nct on 5 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 17/2008 New Delhi this the 5th day of November, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Radhey Shyam, S/o late Sh. Sudama Nath Tiwari, R/o Qr. No.9-G, Police Colony, Model Town, Delhi-110009. Applicant. (By Advocate Pt. Sama Singh) Versus 1. Govt. of NCT, Delhi Through its Chief Secretary, Delhi Secretariat, New Delhi. 2. The Commissioner of Police, Delhi Police Headquarters, MSO Building, IP Estate, New Delhi-110002. 3. The Joint Commissioner of Police, R.P. Bhawan, New Delhi-110011. 4. The Dy. Commissioner of Police, R.P. Bhawan, New Delhi-110011. 5. Inspector O.D. Yadav, (Enquiry Officers), D.E. Cell, New Delhi. Respondents. (By Advocate Ms. Simran proxy for Mrs. Avnish Ahlawat) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
A regular departmental inquiry had been ordered by the Deputy Commissioner (Traffic), Delhi Police by Annexure `C on 19.05.2004 against the applicant, an ASI, as well as a police constable. The Inquiry Officer had framed charges after the preliminary inquiry, as envisaged by the rules, and charges of 16.09.2005 indicated that applicant was answerable of lapses amounting to gross misconduct, mala fides, negligence and dereliction of duties. Ultimately, as could be seen from the proceedings, it had been held that charges were substantiated only against the applicant but the police constable had been acquitted. By Annexure A dated 29.06.2006, a penalty of forfeiture of one years approved service had been imposed as punishment. Vide Annexure B dated 09.03.2007, the appellate authority had confirmed the orders as above. Original Application is filed challenging these proceedings.
2. Counsel Pt. Sama Singh appearing on behalf of the applicant submits that it was a case where punishment has been imposed for whimsical reasons and most arbitrarily. According to him, there was no evidence worth the name to come to a finding that the applicant was guilty of any overt acts. No witnesses, in any certain manner, had spoken about his delinquency. There was no recovery so as to substantiate the allegations and there has been total violation of rules while dealing with the issue. Cumulative circumstances, according to the learned counsel, should naturally lead to a situation where the impugned orders are to be set aside.
3. The submissions as above could be taken notice of with reference to the facts of the case to the extent they might be relevant to be noted, and the stand adopted by the respondents.
4. According to the respondents, there was secret information of acceptance of `illegal money by traffic staff of North, Central and New Delhi districts from commercial vehicles. A PRG Team had been specifically constituted to look into the matter. On 03.04.2004, the team had got sufficient evidence to doubt involvement of the applicant, as also police constable working with him. After obtaining statements from the Lorry Drivers, who had confrontation with them, which was being watched by the officers from a distance, the matter had been taken up for appropriate action. The conduct was that money had been received from the concerned drivers. It had been suggested that although a larger amount had been demanded, on threat of prosecution through court, accepting money, receipts had been made for lesser amount. Suggestion was that the balance amount had been appropriated. Allegations thus were that citizens were intimidated, money was received from them but it had not been fully accounted for. Moreover, the applicants had been carrying out these exercises in a different place than to which he had been deputed for work. These constituted, according to the respondents, serious misconduct.
5. The Inquiry Officer had examined six witnesses as produced by the prosecution and had also relied on documents, to come to the prima facie conclusion that the allegations were substantiated. The witnesses had been cross-examined. It appears that no witnesses were produced on behalf of the applicant in the inquiry. Annexure B-1 is the findings of the inquiry officer.
6. As referred to earlier, counsel Pt. Sama Singh, submits that the report although refers to certain materials which had forth come in the inquiry, hardly they were sufficient to help to form a definite conclusion that the allegations were substantiated. According to him, there were two vehicles involved, as alleged, DL-1LD 5229 and DL-1LB-7844. The prosecution had only produced Ganesh Kumar, driver, and Vijay Kumar, the helper of the first vehicle. The driver had stated that there was demand for money, but there is no claim as coming from him that he had paid any money, to the applicant. His version was that a businessman sitting beside him had paid cash. So long as the identity of the businessman had not been disclosed, and there was no examination of the person, who actually is stated to have made the payment, the evidence was of no value. He points out that the helper of the vehicles had flatly refuted the suggestion that any amount had been paid in excess than that was challaned. Counsel also points out that although it was the case of the prosecution that the driver of the vehicle had been asked to identify the officers and he had, in fact, identified the officer at a later point on the day, the driver had, in categorical terms, stated that there was no such identification. As far as the helper was concerned, he had totally disowned the prosecution case. Counsel further submits that it will be dangerous to rely on the evidence of police alone since they would be interested to see that a case charged by them ultimately ended in punishment. Therefore, as long as there are no independent witnesses whose evidence had been at least corroborated, there was no justification in coming to a conclusion that the charge had been proved. In respect of the second vehicle, the statements given by the driver and the helper had been accepted as gospel truth. They had neither been produced or examined in the inquiry and an opportunity to cross examine them, has thereby been lost to the applicant. When such evidence is relied on, it practically vitiates the finding, as essentially principles of natural justice stand violated.
7. Counsel further submits that when there is allegation that the money accepted from the driver had been not wholly accounted for, it should have naturally been followed up with a search and seizure but no recovery had been made. Therefore, the assumption of the inquiry officer that the charges had been proved, could not be accepted by any reasonable person and the punishment on such a finding ought to be considered as shaky.
8. Counsel further submits that the provisions of Rule 15 (2) of Delhi Police (Punishment and Appeal) Rules also had been violated. When the alleged actions constituted a crime, under Rule 15 (2), the competent authority should have passed an order as to whether prosecutions were to be initiated or a departmental inquiry would alone might have been necessary. Such an exercise, counsel submits, is mandatory and he relies on a decision of this Tribunal dated 03.08.2005 in OA 1779/2004. According to him, Rule 16 (3) also had been violated, in effect. Statements of persons have been relied on, by adopting a shelter that the witnesses were not available to be examined. But the efforts taken for securing their presence, were not disclosed. The suggestion was that if any of the witnesses were produced, their statements already claimed as on record would not have been supported by them, as they were factually incorrect. The harsh steps had been taken by the prosecution so as to ensure that the applicant is subjected to prejudice, and the issue had been predetermined against him.
9. We had heard Ms. Simran appearing on behalf of the respondents. With reference to the counter reply filed, it is submitted that the arguments advanced on behalf of the applicant would not at all have been sustainable. There was no violation of Rule 15 (2), counsel submits, since it was a case where the competent authority as early as on 07.04.2004 had decided to initiate a regular departmental inquiry and it was also decided not to register a criminal case against him. She points out that such disclosure made in the counter reply has not been specifically controverted. According to her, the driver of DL-I LB 7844 and its helper had given statements and there were efforts to ensure their presence but they were not traceable. The rules permit the statements to be relied on, in such circumstances and there was no irregularity as alleged and the allegation is just guesswork. Of course, in respect of the preliminary inquiry, counsel for the applicant, had invited our attention to decision of the Supreme Court in Narayan Dattatraya Ram Teerthakhar Vs. State of Maharashtra & Ors. (1997 (2) SLJ SC 91) but Ms. Simran points out that on the facts of the case, the above decision has no application. Even if the statements of such persons are eschewed, counsel submits that there was sufficient evidence at least forth coming from the driver of DL 1LD 5229 Shri Ganesh, who was examined as PW-4 to support the case of the prosecution that the applicant had been acting dishonestly and this should have been sufficient for the inquiry officer to come to a conclusion that the applicant had been behaving, as a dishonest person.
10. In the above background, we had taken notice of the deposition of PW-4 Ganesh for our satisfaction as to whether there was evidence tendered by him so as to implicate the applicant. He was examined as PW-4 (See page 127 of the paper book). He has, in clear terms, indicated that there was a demand for money. Applicant had given receipt for a lower figure. Of course, Pt. Sama Singh, has pointed out that the person who actually paid the money had not been examined, but there appears to be clear evidence as coming from the driver that the money was paid on the said date on his behalf and this is significant evidence which cannot be discarded.
11. The circumstances corroborating the evidence come from the official witnesses. They were present on the occasion, and it may not be possible for applicant to allege that the whole incidents were concocted. The sequence of the events narrated, and the manner in which the incidents had been tracked show that the circumstances as alleged had indeed taken place. Minor discrepancies viz with regard to the description of the car, in which the party was traveling; absence of search etc. cannot be sufficient to come to a conclusion that the incidents were fabricated. In domestic enquiry strict rules of hearsay are also not to be insisted.
12. The applicant has also not been able to show as to why he was standing in a different place than to which he had been authorized to go. The enmity of the team of Inspection also is a story, evidently invented to get out of a difficult spot. The enquiry officer had found that there was no direct link for the constable in the transaction and he has been let off.
13. We are, therefore, of the view that the impugned orders on the basis of the report are acceptable. The O.A. is dismissed. No costs.
( N.D. DAYAL ) ( M. RAMACHANDRAN ) MEMBER (A) VICE CHAIRMAN (J) SRD