Central Administrative Tribunal - Delhi
Ram Niwas vs Comm. Of Police on 6 May, 2016
1 OA No.111/2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.111/2012
Reserved On:21.04.2016
Pronounced on:06.05.2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. K. N. Shrivastava, Member (A)
Ram Niwas
SI in Delhi Police
PIS No.2881225
R/o C-9, Type-III,
New Police Lines,
Kingsway Camp,
Delhi-110009. .. Applicant
(Argued by: Shri Anil Singhal)
Versus
1. Govt. of NCTD through
Commissioner of Police,
Police Head Quarters, I.P. Estate,
New Delhi.
2. Additional Commissioner of Police,
Crime,
Police Head Quarters, I.P. Estate,
New Delhi.
3. Deputy Commissioner of Police,
Crime and Railway,
PHQ, I.P. Estate,
New Delhi.
3. Assistant Commissioner of Police.
Enquiry Officer,
D.E. Cell, Asaf Ali Road,
Police Bhawan,
Delhi. ..Respondents
(By Advocate: Mrs. Rashmi Chopra)
ORDER
Justice M.S. Sullar, Member (J) The challenge in this Original Applicant (OA) filed by the Applicant, Sub Inspector, Ram Niwas, is to the impugned 2 OA No.111/2012 order dated 30.05.2006 (Annexure A-1) initiating departmental enquiry against him, summary of allegation dated 19.06.2006 (Annexure A-2), findings of the Enquiry Officer (EO) dated 15.09.2006 (Annexure A-3) and order of punishment dated 18/20.01.2010 (Annexure A-4). He has also assailed the impugned order dated 02.02.2011 (Annexure A-5) whereby his appeal was dismissed by the Appellate Authority.
2. The matrix of the facts, material and evidence, which needs a necessary mention for the limited purpose of deciding the core controversy involved in this OA and emanating from the record is that applicant was posted as SI at Anti Forgery Section (AFS)/EOW Wing of Crime Branch, Delhi. He was associated with Inspector Hanuman Dan of AFS. A criminal case was registered against the accused, including Abhishek Mittal S/o Shri Vinod Mittal, on accusation of having committed the offences punishable under Sections 408, 409, 420, 380, 120B IPC (paper leak) vide FIR No.124 dated 06.09.2004 by the police of Police Station, New Ashok Nagar, New Delhi. After obtaining the requisite permission to go outstation from senior officer, applicant was sent to PGI Rohtak on 23.10.2004 to collect the evidence/information regarding the activities of Mr. Abishek Mittal accused who was also involved in the case and remained to be arrested. However, without obtaining 3 OA No.111/2012 any requisite permission from his senior, the applicant visited Ballabhgarh.
3. Sequelly, when confronted with the situation, he could not give any satisfactory reply. Enquiries made in the matter, revealed that applicant had visited Ballabhgarh with ulterior motive to make a deal with the relatives of Abhishek Mittal for removing his name from the array of the accused in the criminal case. He, in fact made a deal with his relatives for Rs.1 lakh and accepted Rs.50,000/- as an advance payment. Thus, he was stated to have committed a grave misconduct while performing his official duties.
4. As a consequences thereof, after obtaining the approval of Additional C.P. (Crime), Delhi, a departmental enquiry was ordered to be initiated by Deputy Commissioner of Police (DCP) vide impugned order dated 30.05.2006 (Annexure A-1). He was served with the following impugned summary of allegations dated 19.06.2006 (Annexure A-2):-
"It is alleged against SI Ram Niwas No.D-3777 (PIS No.28821225) that while he was posted at Anti-Forgery Section/EOW, Crime Branch, Delhi and associated with Inspector Hanuman Dan of Anti-Forgery Section, E.O.W,, Crime Branch, New Delhi in case FIR No.124/04 U/s 408/409/420/380/120-B IPC P.S. New Ashok Nagar, New Delhi vide order No.19754-900/Estt.(C&R) dated 6.9.2004. On 23,.10.2004, after obtaining permission for going outstation of senior officers, the SI was sent to PGI Rohtak, to collect the evidence/information regarding the activities of one Abhishek Mittal who was also involved in the said case and remained to be arrested. But it came to notice from the case diary submitted by the SI before the Inspector that besides Rohtak, the SI had also visited Ballabgarh without any direction of senior officers. When questioned about his visit to Ballabhgarh, he could not give any satisfactory reply.
Enquiries made in the matter revealed that SI Ram Niwas had visited Ballabhgarh with ulterior motive to remove 4 OA No.111/2012 the name of accused Abhishek Mittal from the case. On 23/24.10.2004 the SI contacted one Trilok Chand Mittal S/o Shri Jainti Prasad R/o 248, Ward No.23, Braham Waru Ballabhgarh District Faridabad (Haryana) on telephone regarding his nephew Abhishek Mittal and told him that he would come on 25.10.2004 to Ballabhgarh for investigation. On 25.10.2004 he went to Ballabhgarh by his Maruti Car and made a telephonic call at the residence of Trilok Chand Mittal asking him to send someone to receive him at the bus stand. Punit Kumar S/o Trilok Chand went to the bus stand and took SI Ram Niwas to the residence of Vinod Mittal brother of Trilok Chand. The SI told Trilok Chand and his brother Vinod Mittal father of accused Abhishek Mittal that he was the new IO of the case and that it was within his powers to include/exclude someone in the case. He demanded Rs. 1 lac to remove the name of Abhishek Mittalfrom the case, and took Rs.50,000/- as bribe from Vinod Mittal as an advance money and remaining balance of Rs.50,000/- was to be paid after completion of the work.
The above act on the part of SI Ram Niwas No.D-3777 amounts to gross misconduct, moral turpitude and unbecoming of a responsible police officer in the discharge of his official duties, which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980".
In the same sequence, the EO and Presenting Officer were appointed and regular departmental enquiry was initiated against the applicant.
5. Taking into consideration the entire prosecution, defence evidence and other relatable factors, the EO concluded in his report that charges against the applicant stand proved. The enquiry report was submitted on 15.09.2006 (Annexure A-3). Concurring with the findings of EO and after following the statutory provisions, the Disciplinary Authority imposed a penalty of forfeiture of 3 years approved service permanently on the applicant and also ordered that his suspension period w.e.f. 03.12.2004 to 08.09.2005 be treated as "not spent on duty" vide earlier 5 OA No.111/2012 order dated 15.11.2006. His appeal too was dismissed on 31.10.2007 by the Appellate Authority.
6. What cannot possibly be disputed here is that the applicant had challenged the disciplinary proceedings and previous punishment orders in OA No.107/2008. The OA was partly allowed on 27.05.2009 by this Tribunal. It was observed that the impugned orders (therein) were non- speaking and cryptic. The case was remanded back to the Disciplinary Authority to pass a fresh order after considering the defence projected by the applicant vide Annexure A-11.
7. Thereafter, in the wake of the remand of the case, again agreeing with the findings of the EO, copy of the enquiry report was served upon the delinquent (applicant) to enable him to make representation. He submitted his representation in response to the findings. He filed another representation during his personal hearing in Orderly Room (OR). The competent authority considered the entire material, evidence and relevant factors on record, awarded a penalty of stoppage of increment for a period of one year with non-cumulative effect to the applicant vide impugned order dated 18/20.1.2010 (Annexure A-4). Similarly, appeal filed by him was dismissed as well vide order dated 02.02.2011 (Annexure A-5) by the Appellate Authority.
8. Aggrieved thereby, the applicant has preferred the instant OA to challenge the impugned orders, invoking the 6 OA No.111/2012 provisions of Section 19 of the Administrative Tribunals Act, 1985.
9. Sequelly, the applicant has claimed that as per direction of his superior officer, he went to Rohtak and came to know that the accused Abhishek Mittal was not available there. When he did not find Abhishek Mittal there, he left his contact number with the warden of the hostel at PGI Rohtak. When the applicant was at Meerut for the investigation of another case on 24.1.2004, the accused Abhishek Mittal contacted him in the night on his mobile and asked about his purpose of visit to Rohtak. The applicant disclosed the purpose of his visit and asked Abhishek Mittal to provide all information along with the admission card of his sister. During this conversation only, the applicant came to know about the residence of Abhishek Mittal who told him that he could meet him at Ballabhgarh in the morning on 25.10.2004 as he had to go to Rohtak the same day. To avoid the long journey to Rohtak from Meerut, the applicant informed Inspector Hanuman Dan on his residential phone about the information received from Mittal.
10. The applicant claims that to know about the whereabouts of accused Abhishek Mittal and to collect the evidence it was very essential for him to go to Ballabhgarh to carry out the work entrusted to him. The applicant was straightforward and honest in his approach and he had 7 OA No.111/2012 mentioned the factum of his visit to Ballabhgarh in his case diary. Even the respondents came to know about his visit to Ballabhgarh from the case diary submitted by the applicant. If the applicant would have had any other motive, as suggested, he would not have made a mention of his Ballabhgarh - visit in the case diary.
11. According to the applicant, the whole enquiry is vitiated on the ground of violation of Rule 15 and 16 of the Delhi Police (Punishment and Appeal) Rules, 1980 [hereinafter referred to as "D.P. Rules"] as well the principles of natural justice, inasmuch as the copy of the preliminary enquiry report and statements recorded therein were not supplied to him despite his written applications. His request for supplying the documents which were essential for his defence were wrongly declined, which has caused a great prejudice to his case.
12. It was also pleaded that no number and date have been mentioned in the order of approval for initiating the departmental enquiry against the applicant by the competent authority under Rule 15(2) of the D.P. Rules. Even the competent authority has not applied its mind while initiating departmental enquiry against the applicant.
13. The case of the applicant further proceeds that the order dated 30.05.2006 initiating the departmental enquiry against the applicant amounts to double jeopardy as it is hit 8 OA No.111/2012 by the principles of double jeopardy and is also against the principles of natural justice. The EO acted as a prosecutor during the entire departmental proceedings and cross examined the witnesses against the applicant. He has wrongly placed reliance on prosecution witnesses and illegally ignored the defence evidence. Moreover, he did not provide any opportunity to the applicant to cross-examine the witnesses. Therefore, the whole enquiry was stated to be illegal and liable to be quashed. The EO as well as Disciplinary Authority were stated to have considered the entire proceedings on record, ipse dixit decision that charges against the applicant were proved without assigning any cogent reasons.
14. Levelling a variety of allegations and narrating the sequence of events in detail, the applicant has claimed that the entire enquiry proceedings are vitiated inasmuch as it is a case of no evidence. The enquiry report and impugned orders passed on its basis were termed to be illegal, arbitrary, against the statutory rules, principles of natural justice and without jurisdiction.
15. On the basis of aforesaid grounds, the applicant has sought quashing of the impugned disciplinary proceedings and orders in the manner indicated hereinabove. 9 OA No.111/2012
16. The contesting respondents refuted the allegations contained in the OA and filed the reply in which it was pleaded as under:-
"That a departmental enquiry with the prior approval of the then Addl.C.P./Crime was initiated against SI (Exe.) Ram Niwas, No.D/3777 (PIS No.28821225) (applicant) vide this office order No.1831-52/HAP/C&R dated 30.05.2006 on the allegations that the applicant was transferred from Computer Centre to Anti-Forgery Section/EOW, Crime Branch, Delhi, and associated with Inspector Hanuman Dan of Anti Forgery Section/EOW, New Delhi in connection with the investigation of case FIR No.124/04 u/s 408/409/420/380/120-B IPC PS New Ashok Nagar, New Delhi vide order No.19754- 900/Estt./C&R dated 06.09.2004. After obtaining outstation permission from senior officer, the applicant was sent to PGI Rohtak on 23.10.2004 to collect the evidence/information regarding the activities of Mr. Abhishek Mittal, who was involved in the said case and remained to be arrested. But it came to notice from the case diary submitted by the applicant before the Inspector that besides Rohtak, applicant had also visited Ballabhgarh without any direction of senior officers. When questioned about his visit to Ballabhgarh, the applicant could not give any satisfactory reply. Enquiries made in the matter revealed that applicant had visited Ballabhgarh with ulterior motive to remove the name of accused Abhishek Mittal from the case and made a deal with the relative of accused for Rs.1 lac and accepted Rs.50,000/- as advance part payment of the settled deal.
During the course of fact finding enquiry, Shri Trilok Chand Mittal S/o Shri Jainti Prashad R/o 248, Ward No.23, Braham Waru, Ballabgarh District Faridabad, Haryana was contacted by Inspector Hanuman Dan, EOW, Crime Branch. Shri Trilok Chand Mittal confirmed that the applicant had contacted him on 23/24.10.2004 on telephone regarding his nephew Abhishek Mittal and had told him that he would come on 25.10.2004 to Ballabhgarh for investigation. On 25.10.2004, the applicant went to Ballabhgarh in his Maruti Car and made a telephone call at the residence of Shri Trilok 10 OA No.111/2012 Chand Mittal asking him to send someone to receive him at the bus stand. Shri Punit Kumar S/o Shri Trilok Chand went to the bus stand and brought the applicant to the residence of Shri Vinod Mittal, brother of Trilok Chand. The applicant told Shri Trilok Chand and his brother Shri Vinod Mittal, father of accused Abhishek Mittal that he was the new IO of the case and that it was within his powers to include/exclude someone in the case. The applicant demanded Rs.1 lac to remove the name from the case and took Rs.50,000/- from Shri Vinod Mittal, brother of Shri Trilok Chand as advance money with remaining balance of Rs.50,000/- to be paid after completion of the work. Thus, the allegations against the applicant were proved during the fact finding enquiry".
17. Instead of reproducing the contents of the entire reply and in order to avoid repetition, suffice it to say that virtually reiterating the validity of the disciplinary proceedings and impugned orders, it was pleaded that the enquiry was conducted in accordance with the D.P. Rules. The principles of natural justice were duly observed and proper opportunities were granted to the applicant at different stages of the enquiry by the Disciplinary Authority. It will not be out of place to mention here that the contesting respondents have stoutly denied all the allegations contained in the OA and prayed for its dismissal.
18. Controverting the pleadings in the reply and reiterating the grounds contained in the OA, the applicant filed the rejoinder. That is how we are seized of the matter.
19. Having heard the learned counsel for the parties at quite some length and after going through the record with their 11 OA No.111/2012 valuable assistance and after bestowal of thoughts over the entire matter, we are of the firm view that there is no merit in the instant OA.
20. As is evident from the record that the EO completed the enquiry proceedings. Having completed all the codal formalities, concurring with the report of the EO, and taking into consideration the prosecution and defence evidence, the Disciplinary Authority has dealt with all the points raised by the applicant and passed the detailed impugned order dated 18/20.01.2010 (Annexure A-4) which, in substance, is as follows:-
" XX XX
XX XX
During the course of fact finding enquiry, Shri Trilok Chand Mittal S/o Shri Jainti Prashad R/o 248, Ward No.23, Braham Waru, Ballabhgarh District Faridabad, Haryana was contacted by Inspr. Hanuman Dan, DEO Crime Branch. Shri Trilok Chand Mittal confirmed that the defaulter SI had contacted him on 23/24.10.2004 on telephone regarding his nephew Abhishek Mittall and had told him that he would come on 25.10.2004 to Ballabhgarh for investigation. On 25.10.2004, the defaulter went to Ballabhgarh in his Maruti Car and made a telephone call at the residence of Shri Trilok Chand Mittal asking him to send someone to receive him at the bus stand. Shri Punit Kumar S/o Shri Trilok Chand went to the bus stand and brought the defaulter SI to the residence of Sh. Vinod Mittal, brother of Sh. Trilok Chand. The defaulter SI told Sh. Trilok Chand Mittal and his brother Sh. Vinod Mittal, father of accused Abhishek Mittal that he was the new I.O. of the case and that it was within his powers to include/exclude someone in the case. The defaulter SI demanded Rs. 1 lac to remove the name from the case and took Rs.50,000/- from Sh. Vinod Mittal, brother of Shri Trilok Chand as advance money with remaining balance of Rs.50,000/- to be paid after completion of the wrok. Thus, the allegations against the defaulter SI were proved during fact finding enquiry.
For the above said misconduct, the defaulter SI was placed under suspension vide this office order No.3573-3610/ HAP/C&R dated 03.12.2004 without prejudice to the departmental enquiry pending against him.
The DE was entrusted to Shri H.V.S. Rathi, ACP/DE Cell, Delhi for conducting the same on day-to-day basis. The EO prepared the summary of allegations, list of witnesses and list of documents to be relied upon and served the same upon the defaulter on 19.6.2006. The enquiry officer after examining all 07 PWs, framed the charge, got it approved from the competent 12 OA No.111/2012 authority and served the same upon defaulter on 21.8.2006 against his proper receipt. The defaulter SI also produced his DW and submitted his defence statement. The EO completed the DE proceedings and submitted his findings concluding therein that the charge served upon the defaulter SI Ram Niwas, No.D/3777 stands proved.
Agreeing with the findings of the EO, a copy of the same was served upon the defaulter SI vide this office u.o. No.3413/HAP/C&R dated 25.9.2006 for making his representation, if any. He was also called upon to show cause as to why his suspension period should not be decided as period not spent on duty. The defaulter SI received the copy of findings on 25.9.2006 and submitted his representation in response to the findings.
During re-examination, I have also heard the defaulter in O.R. on 25.9.2009. During OR, he submitted his fresh representation. I have gone through the DE file, findings of the EO, defence statement, earlier and fresh representations of the defaulter and other relevant material available on record. The pleas taken by the defaulter SI are discussed as under:-
i) The first point submitted by the defaulter is that the points raised by him in his written defence statement submitted in response of findings have not been dealt with properly. Therefore, the finding is unjustified. This plea of the defaulter is not proper.
The points of the defence statement submitted by the defaulter SI were discussed by the EO after assessing and evaluating the evidence. However, some points raised by the defaulter SI in his representation are being considered in the subsequent paras.
ii) In next plea, he mentioned that the request submitted by the defaulter for the additional documents was turned down without assigning any reason and saying that demanded documents are not relevant from defence point of view which is unjustified. This plea of the defaulter is not acceptable as the request of the delinquent to supply the additional documents was considered by the EO. Since, the additional documents asked for by the defaulter were not found relevant by the EO, his request was not acceded to and the defaulter was informed accordingly.
iii) He further mentioned that the charge has been framed without any evidentiary material on the file. It contains the material which had not come up during recording of the evidence. This plea of the defaulter carriers no weight. The EO framed and served the charge based on the evidence available on record either primary or secondary evidence.
iv) The next plea advanced by him is that Inspector Hanuman Dan nowhere mentioned it in his statement recorded the activities of Abhishek. It has however been incorporated in the charge. It has been extracted from summary of allegations. This plea is not admitted. PW-6, Inspector Hanuman Dan has very clearly deposed in his statement recorded by EO during DE that defaulter was sent to Rohtak, Haryana for investigation of case FIR No.123/04 PS New Ashok Nagar, Delhi and as per Ex. PW-1/A, defaulter SI was permitted for outstation journey only for Rohtak, Haryana and Meerut, UP. The visit of the defaulter SI to Ballabhgarh was without permission. It is further corroborated by a fact that on arrival from outstation, he did not mention his visit of Ballabhgarh in arrival DD 13 OA No.111/2012 No.6, dated 25.10.2004, EO, Crime Branch marked as Ex.PW-3/B and concealed the facts for reasons best known to him. However, on perusal of case diary it was learnt that the defaulter SI had gone to Ballabhgarh for reasons best known to him as he was not permitted to visit there.
v) In further submission, the defaulter mentioned that there is contradiction on the part of prosecution and statement of Inspr. Hanuman Dan, PW-6. He mentioned that during cross-examination, Inspr. Hanuman Dan in reply to the question No.22 mentioned that the defaulter was sent to Rohtak on 8, 9 and 10th November, 2004. This reply of Inspr. Hanuman Dan was totally irrelevant as attendance of Abhishek Mittal in PGI Rohtak for the month of November, 2004 was not at all relevant from investigation point of view as the defaulter was sent there in the month of October, 2004 and not in November, 2004. This plea is not tenable. Inspector Hanuman Dan, PW-6, clearly and categorically stated that he had sent the defaulter SI to Rohtak, Haryana for the investigation of case FIR No.124/04 PS New Ashok Nagar, Delhi. On perusal of case diary by Inspr. Hanuman Dan, it was learnt that the defaulter SI had gone to Ballabhgarh for the reasons best know to him as he was permitted to go only to Rohtak, Haryana in connection with the investigation of the said case. Though Inspector Hanuman Dan, PW-6, during reply of question No.22 admitted that the defaulter SI was sent for the verification of record of Abhishek Mittal but during cross-examination, month has been mentioned as 11 in place of 10 by PW which is not a material contradiction, as there was only one visit by the defaulter SI to PGI Rohtak and the said visit has not been disputed either by the Prosecution or by the defence.
vi) The next plea put-froth by the defaulter is that Inspr. Hanuman Dan himself raised the issue of going of defaulter SI to Ballabhgarh, Haryana without any permission from senior officials. However, in reply to question No.18 during cross-examination, Inspr. himself admitted that there is no such order or circular that restricts an investigating officer from one place to another while conducting investigation in outstation. This plea is not correct as the status of the defaulter SI was not the IO of the case. He was only assisting to Inspector Hanuman Dan, IO of the case, Thus, the status of the defaulter SI was Assisting I.O. The Assisting IO was not required to do investigation beyond the work assigned to him by the IO. In case, he wanted to go beyond the brief of IO, he was to take prior permission of IO to do so. Therefore, his visit to Ballabhgarh was without permission and knowledge of the IO and can be termed as with malafide.
vii) The defaulter SI further mentioned that he was sent to PGI/Rohtak not only to collect the record of attendance of Abhishek Mittal but also to verify his home address after getting the same from the Hostel and to collect the Admission Card of the Ms. Shweta Mittal, sister of Abhishek Mittal which was required in the case as evidence to fix the role of Abhishek and the same was collected also later on in this case. As such he was sent there for three jobs. It was Dussehra on 22nd October, 2004 and Saturday/ Sunday on 23rd and 24th October, 04 and all such Institutes were closed even then Inspector Hanuman Dan sent him there. He further mentioned that during his visit to PGI/Rohtak, he had left the contact number of his office/personal mobile number with the Warden of PGI Rohtak during his visit on 23.10.04 as the residential address of Abhishek was not revealed till then. When the defaulter was in 14 OA No.111/2012 Meerut in connection with the investigation of another case on 24.10.04, accused Abhishek Mittal contacted the defaulter on his mobile in night and asked about defaulters visit to Rohtak which the accused came to know from his Hostel Warden. The defaulter asked him to provide the information alongwith the admission card of his sister. When the defaulter came to know about the residential address of accused abhishek who told the defaulter SI that he can meet him in Ballabhgarh in the morning of 25.10.2004 as he has to go to Rohtak on the same day after that. To avoid the long journey again from Meerut to Rohtak, possibility of availability of admission card of sister of Abhishek at his home and for the verification of residential address of the accused, the defaulter SI informed Inspr. Hanuman Dan on his residential phone as it was Sunday and the Inspr. used not to talk on mobile on Sunday, regarding the information received from Abhishek Mittal and sought his direction in this regard who directed the defaulter to go to Ballabhgarh next day straight from the Meerut. This plea of the defaulter SI is not tenable as neither he has taken the same in his defence during DE proceedings nor made any question on this point to PW-6 in his cross-examination. It is further corroborated with the fact that he has not mentioned this fact in his arrival DD No.6, exhibit PW/3-B. Therefore, this plea of the defaulter SI is after thought. As far as, the Sunday, it is not understood as to why he had not pointed out the fact to the notice of I.O./Senior Officers that his visit on Holidays would not serve any purpose as the Hostels and office would remain closed during that period.
viii) The further contention of the defaulter is that his visit to Ballabhgarh was the part of instructions given by the Inspector before his visit to Rohtak, Haryana. He has mentioned the same in the CD No.165-A dated 25.10.2004. The paper on which the directions noted by him was taken from the note book of Inspr. Hanuman Dan in the presence of DW-I. The piece of paper was shown to DW-I who admitted that the paper was taken from the note book of Inspr. Hanuman Dan. This contention of the defaulter is not acceptable on the grounds that PW-6 Inspr. Hanuman Dan during his cross examination was not questioned on the said paper and the directions written thereon. Moreover, the facts that he had gone to Ballabhgarh as per the direction of Inspr. Hanuman Dan has not been mentioned either in the CD No.165-A dated 25.10.2004 or in DD No.6, dated 25.10.04, EOW, Crime & Railways, marked as EX.PW-3/B, lodged by the defaulter SI on arrival from outstation investigation.
ix) The next plea advanced by the defaulter is that he was not the independent investigating officer in the said case and therefore had no authority to help some one to the extent of removing his name from the case. EO has believed arbitrarily, Inspr. Hanuman Dan on the point that defaulter had allegedly told Shri Trilok Chand and Vinod Chand that he can remove the name of Abhishek from the case whereas in DE proceedings both the PWs did not support the prosecution version. This plea is not tenable. Generally, an accused and his relatives have no knowledge about the powers of a police officer associated with the investigation of a case being IO or Assisting IO etc. can help the victim or otherwise. They can be easily deceived by the police officer associated with the investigation on being shown a ray of hope to the accused.
x) The further claim of the defaulter SI that he has been charged that he had visited Ballabhgarh with ulterior motive to remove the 15 OA No.111/2012 name of accused Abhishek Mittal from the case, contacted Shri Trilok Chand Mittal on phone regarding his nephew Abhishek Mittal and told him that the defaulter SI will reach Ballabhgarh for investigation on 25.10.04. It is not known that from where this sentence has been imported. This part of the charge is highly unreasonable and unjustified because it does not rest on any recorded evidence. No body including Shri Trilok Chand has deposed in statement recorded during DE that defaulter had made a phone call at the residence of Trilok Chand Mittal, told him about his proposed visit to Ballabhgarh on 25.10.04 asking him to send some one to receive him at the bus stand and to accompany him to the residence of Shri Vinod Mittal. Also, Puneet has no where said in his statement that SI Ram Niwas had called him to Ballabhgarh Bus Stand. This plea is not fully correct. During departmental proceedings both PW-4 Shri Trilok Chand and PW-7 Shri Vinod Kumar have admitted that defaulter had visited the shop of Shri Vinod Kumar at City Gate, Ballabhgarh. The defaulter had travelled by his car to Ballabhgarh. This has been categorically stated by PW- 5, Shri Puneet Kumar in his statement. It clearly proves that the defaulter had visited Ballabhgarh. Regarding contacting on phone, PW-5 Shri Punit has stated that he was asked by his father and was given a Maruti Car No. to accompany the car owner/driver to the shop of his uncle Shri Vinod Mittal. Accordingly, he went to bus stop Ballabhgarh where he found the car having same registration No. which was given to him by his father and in the car, the defaulter was found present. This PW took the defaulter to the shop of his uncle. This clearly proves that the defaulter SI had visited Ballabhgarh after contacting the relatives of accused Abhishek Mittal. Therefore, the unauthorized visit of the defaulter SI has been proved.
xi) The next plea put-forth by him is that it has been mentioned in the charge that the defaulter told Shri Trilok Chand and his brother Shri Vinod Mittal that he was the new IO of the case and it was within his hands to include/ exclude some one in the case. The defaulter demanded Rs.1 Lac to remove the name of Abhishek from the case and took Rs.50,000/- and remaining Rs.50,000/- was to be paid after completion of the work. No such evidence has come up on record during PE proceedings. Moreover, simply saying that the witnesses have been won over is not sufficient. The statement of Inspr. Hanuman Dan has been given extra weight-age specially that Shri Trilok Chand Mittal had refused to make and sign on any statement before Shri Hanuman Dan. Though Shri Trilok Chand Mittal did not want to follow the directions of Inspr. Hanuman Dan and refused to sign any statement. There is no question of his being won over. The EO is not entitled to accept the so called unwritten earlier statement. This plea is not tenable. On enquiry, it was found that the family members of Abhishek, a wanted accused in the case were living at Ballabhgarh. The defaulter SI had gone there unauthorisedly and demanded Rs. One Lac from the family members of accused to exclude his name from the said case and he received Rs.50,000/- as advance part payment. Shri Trilok Chand Mittal had told Inspr. Hanuman Dan, PW-6 that the defaulter had contacted him on telephone on 24.10.04, gone to Ballabhgarh on 25.10.2004 and told that he weas the IO of case. If Rs. One Lac were paid to him, he would exclude Abhishek Mittal from the case and they paid Rs.50,000/- (part payment) as bribe to the defaulter SI. PW-6, Inspector Hanuman Dan in his deposition has clearly stated that Shri Trilok Chand Mittal has refused to give signed statement which clearly proves that PWs namely S/Sh. Trilok 16 OA No.111/2012 Chand, Vinod Mittal and Punieet Kumar were not interested to depose against the defaulter SI. In this regard PW-6 has submitted his two reports dated 11.11.2004 and 30.11.2004 which have been marked as Exs.PW-6/A and 6/B respectively wherein he had categorically stated that the PWs though admitted the demand of Rs. One lac by defaulter SI and accepted part payment of Rs.50,000/- as new IO of the case to exclude the name of Abhishek Mittal but also refused to give their written statement. In these circumstances, the allegation of demand of bribe and acceptance of part payment of defaulter SI is proved on the basis of secondary evidence of Inspr. Hanuman Dan, PW-6 in absence of primary evidence of PW-4 Shri Trilok Chand Mittal, PW-5 Shri Puneet Kumar and PW-7 Shri Vinod Kumar to the facts in issue.
On examination, assessing and evaluating the records on file viz. charge, statement of PWs/DW, exhibits, written statement of defence, findings, earlier and fresh representations of defaulter and defaulter SI's personal appearance before me on 25.9.2009, it is proved that defaulter SI was asked to work as assisting IO with Inspr. Hanuman Dan, IO of case FIR No.124/04 u/s 408/ 409/420/380/120-B IPC PS New Ashok Nagar. Defaulter SI was asked to perform outstation journey to Rohtak and Meerut for investigation and permission for the same was granted as per exhibits PW-1/A. Accordingly, he made departure for outstation journey vide DD No.10, dated 23.10.2004, EOW Crime Branch, New Delhi (exhibits PW-3/A). He visited Ballabhgarh in case FIR No.124/04 u/s 409/420/380/120-B IPC PS New Ashok Nagar for which he was not permitted to go there and met the family members of accused Abhishek Mittal there. This fact of his unauthorized visit to Ballabhgarh is proved by the deposition of PW-4, Shri Trilok Chand Mittal, PW-5, Shri Punit Mittal, PW-6, Inspr. Hanuman Dan and PW-7, Sh. Vinod Kumar Mittal duly corroborated by CD 165, dated 25.10.2004, the admission of defaulter SI. The fact of unauthorized visit is further corroborated by the written permission of his outstation journey vide exhibit PW-I/A and non-mentioning of his visit to Ballabhgarh in his arrival DD No.6, dated 25.10.2004 (exhibits PW-3/B). As far as allegations of demand of Rs.1 lac and acceptance of part payment of Rs.50,000/-by the defaulter SI from the family members of wanted accused Abhishek Mittal is concerned, the same has been proved by secondary evidence of Inspr. Hanuman Dan PW-6 duly corroborated by his written report dated 30.11.2004 (Ex. PW-6/B). The PW-6 had categorically mentioned in his above said report Ex. PW-6/B that though PW-4, Sh. Trilok Chand admitted the demand of Rs. One lac by defaulter SI and acceptance of part payment of Rs.50,000/- as new IO of the case to exclude the name of Abhishek Mittal but also refused to give written statement. In these circumstances, it can be safely said that the unauthorized visit of defaulter SI to Ballabhgarh in case FIR No.124/04 u/s 408/409/420/380/ 120-B IPC PS New Ashok Nagar being assisting IO without the knowledge of IO of the case and/or without the permission of senior officers, was malafide on his part for reasons best known to him. Though, PW-6, Inspr. Hanuman Dan, the IO of the case in his deposition during the DE proceedings categorically stated that the defaulter SI demanded Rs. One lac and accepted Rs.50,000/- from the family member of wanted accused Abhished Mittal to favour him in a criminal but the primary witnesses PW-4, Shri Trilok Chand and PW-7, Shri Vinod Kumar did not corroborate this in their deposition during the DE proceedings. In these circumstances, the said unauthorized visit of 17 OA No.111/2012 defaulter SI to Ballabhgarh can be said to be with ulterior motive even if it was not for demanding of Rs. One lac and the acceptance of Rs.50,000/- from the family member of the accused Abhishek Mittal.
Keeping in view the above discussion, overall facts and circumstances of the case and assessing all the evidences, I, Neeraj Thakur, Addl. Commissioner of Police, Crime, Delhi do hereby impose the punishment of stoppage of increment for a period of one year with non cumulative effect on SI Ram Niwas No.D/3777 which will meet the ends of justice and order accordingly. His suspension period from 03.12.2004 to 08.09.2005 is decided as period not spent on duty for all intents and purposes.
Let a copy of this order be given to defaulter SI (Exe.) Ram Niwas No.D/3777, free of cost. He can file an appeal against this order to the Jt. Commissioner of Police, Delhi on a non-judicial stamp paper worth Rs.00-75 Paise by enclosing a copy of this order within 30 days from the date of receipt of this order, if he so desires."
21. The punishment order has been upheld by the Appellate Authority vide impugned 02.02.2011 (Annexure A-5) whereby the appeal filed by the applicant was dismissed.
22. At the very outset, the learned counsel for the applicant has contended with some amount of vehemence that the entire enquiry proceedings and impugned orders are vitiated on the ground of violation of 16(1) of D.P. Rules, and principles of natural justice, as the report of the preliminary enquiry, statements recorded therein and other material relating to criminal case in FIR No.124/2004 were not supplied to the applicant by the EO. In this regard he has placed reliance on the judgment of Hon'ble Apex Court in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others AIR 1986 SC 180. It was a case of eviction of pavement dwellers from the illegally encroached 18 OA No.111/2012 area of Municipal Corporation of Bombay. It was observed that although Section 314 of Bombay Municipal Corporation Act empowers the Municipal Commissioner to dispense with the previous notice in special circumstances, but it is an enabling provision and discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable and issuance of previous notice to give opportunity of hearing to them was held to be essential.
23. Similarly, in the case of Government of A.P. and Others Vs. A. Venkata Raidu (2007) 1 SCC 338, it was observed by the Hon'ble Apex Court that if any material is sought to be used in an enquiry by the department, copy thereof should be supplied to the party against whom such enquiry is being held and charge-sheet should not be vague but it should be specific.
24. Likewise, in R.S. Sehgal Vs. Director General, Posts and Telegraphs and Others 1983(2) SLR 473, the Hon'ble Delhi High Court ruled that a speaking order dealing with the point raised, should be passed before compulsory retirement of Government servant. In the case of Gadadhar Rambin Vs. Food Corporation of India 1989 (4) SLR 721, the Hon'ble Calcutta High Court has observed that "since this report formed basis of initiation of the proceedings against 19 OA No.111/2012 several officers including the petitioner (therein), it was incumbent on the part of the Enquiring Authority to allow inspection of the said report and it was obligatory on the part of the Disciplinary Authority to allow the documents asked for by the Charged Officer. Although such documents may not have been relied on by the prosecution or by the EO, the refusal on the ground that it was not listed by the prosecution is not proper".
25. Further, in the case of Ex.Constable Randhir Singh, CRPF Vs. U.O.I. and Others 1991 (5) SLR 731 , the Hon'ble Delhi High Court has observed that in order to negate the charge levied against a delinquent, it is necessary that he should be furnished with the material on the basis of which action is proposed against him. When a Government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in a effective manner and no one facing departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him and delinquent official is entitled to fair opportunity of being heard.
26. Likewise, the crux of law laid down by the Hon'ble Apex Court in the case of The State of Punjab Vs. Bhagat Ram AIR 1974 SC 2335, the Hon'ble Punjab and Haryana High Court in the case of Dhian Singh Vs. State of Punjab and 20 OA No.111/2012 Others 2007 (4) SCT 275 and of this Tribunal in the case of Shri Vijay Singh Vs. Government of NCT of Delhi and Others 2000 (3) AISLJ is that if an employee proceeded against for charges of misconduct is not supplied the documents, list of witnesses, statement of witnesses to be examined in the preliminary enquiry and report, he cannot effectively prepare his defence nor can cross-examine the prosecution witnesses. There can hardly be any dispute with regard to the aforesaid observations.
27. At the first instance, the argument appeared to be somewhat attractive but when the same were scrutinized in relation to the material on record, then we cannot help observing that neither the contentions are tenable nor the above said observation would come to the rescue of the applicant in the present controversy for the reasons mentioned herein below.
28. As is evident from the record that the department has relied upon the following documents:-
"(1) Report submitted by Inspector Hanuman Dan to senior officer dated 11.11.2004 and 30.11.2004 about the conduct of Shri Ram Niwas in case FIR No.124/04 u/s 408/409/420/380/120-B IPC PS New Ashok Nagar, Delhi.
(2) Copy of order 19754-900/Estt.(C&R) dated 06.09.2004.
(3) Copies of DD No.10 dated 23-10-2004 & DD No.5 dated 25.10.2004.
(4) Copy of outstation permission of SI Ram Niwas No.D-
3777.
21 OA No.111/2012(5) Copy of C.D. No.165-A dated 25.10.2004 written by SI Ram Niwas No.D-3777 in case FIR No.124/04 PS New Ashok Nagar, Delhi".
29. It is not a matter of dispute that the list of witnesses, the copies of reports dated 11.11.2004 and 30.11.2004 submitted by Inspector Hanuman Dan to senior officers and other relevant documents relied upon by the prosecution mentioned therein, were duly supplied to the applicant at the appropriate stage.
30. As regards the non-supply of statements of Trilok Chand Mittal, Vinod Mittal and Puneet Mittal recorded during the course of preliminary enquiry are concerned, neither these statements were relied upon by the EO in the regular departmental enquiry nor their previous statements recorded in preliminary enquiry were at all relevant, because Trilok Chand Mittal appeared as PW-4, whereas his son, Puneet Mittal appeared as PW-5 and Vinod Kumar Mittal appeared as PW-7 during the course of the regular departmental enquiry.
31. Therefore, once they have appeared in the regular departmental enquiry, their previous statements recorded in the preliminary enquiry pale into insignificance, specially when the department is not relying upon their previous statements. It is reiterated that list of witnesses and the copies of all the relied upon documents by the prosecution were duly supplied and thus no prejudice has been caused to the applicant. If such application for 22 OA No.111/2012 supplying the irrelevant documents which are not at all remotely related to the core issue and filed only to delay the matter are accepted, then there will be no end to it. No EO would be able to complete the enquiry promptly and delinquent official would then claim the benefit of delayed enquiry. In this case occurrence is of the year 2004 and applicant has considerably delayed the matter on one pretext or the other. Hence, question of violation of Rule 16 or principle of natural justice did not arise at all. Moreover, the EO and DA have duly dealt with this aspect of the matter in right perspective.
32. The learned counsel for the applicant then argued that the charges are not at all proved against the applicant as there is no cogent evidence on record with regard to the demand and acceptance of Rs.50,000/- from the relatives of the accused Abhishek Mittal by the applicant. The argument has no force. A bare perusal of the record would reveal that Trilok Chand Mittal father of accused Abhishek Mittal, appeared as PW-4 in regular enquiry and has corroborated the case of the department on all vital counts. No doubt, he feigned ignorance about the name of the EO who conducted the preliminary enquiry, but has categorically maintained a demand of Rs.1 lakh was made by the SI (applicant) and a part payment of Rs.50,000/- was made to him earlier. 23 OA No.111/2012
33. Not only that the EO has also relied upon the statement of PW-6, Inspector, Hanuman Dan in this connection wherein he has, inter alia, stated that "on enquiry it was found that the family members of Abhishek, a wanted accused in this case, were living in Ballabhgarh. SI Ram Niwas had gone there with ulterior motive and demanded Rs.1 lakh from the family members of accused Abhishek to exclude his name from the said case and he received Rs.50,000/- as advance part payment. He had submitted his report Mark "X" in this regard to ACP. It bears his signature on the file. The report has been marked as Ex.PW-6/A". It was further mentioned in the report that "Trilok Chand Mittal had told him that SI Ram Niwas had contacted him on telephone on 24.10.2004 and on 25.10.2004 SI Ram Niwas had gone to his residence at Ballabgarh and told them that he was the IO of the case in case Rs.1 lakh paid to him he will exclude Abhishek Mittal from this case and they paid Rs.50,000/- as bribe to the SI (part payment). He had sent his report to superior officer, copy of which is in the file and his signatures is there at mark "X". The report has been duly marked as Ex.PW-6B".
34. The submission of the learned counsel that the reports of PW-6 exhibit PW-6A & B cannot be relied upon being secondary evidence, is not only devoid of merit, but misplaced as well. In the instant case, PW-6 has duly proved his reports exhibit PW-6A&B in accordance with law which indeed is a 24 OA No.111/2012 primary evidence and is admissible in evidence as contemplated under Section 64 of the Evidence Act. Thus, we are of the firm view that this argument has also no legal force.
35. The next argument of the learned counsel that since the departmental enquiry was initiated by Additional C.P. so there is a clear violation of Rule 15(2) of D.P. Rules, is neither tenable nor the observation of the Hon'ble Delhi High Court in the case of Dy. Commissioner of Police Vs. Hakim Khan in W.P. ( C) 10281/2009 and of this Tribunal in RA No.38/2008 In OA No.624/2005 titled U.O.I. and Others Vs. Rajbir Singh decided on 06.01.2010 are applicable to the facts of the present case, wherein it was observed that as per Rule 15(2) of the D.P. Rules, the departmental enquiry shall be ordered only after obtaining prior permission of the Additional C.P. concerned, as to whether a criminal case should be registered and investigated or a departmental enquiry should be held. Possibly no one can dispute with regard to aforesaid observation but the same will not advance the cause of the applicant in any manner. A glance at impugned order dated 30.05.2006 (Annexure A-1) would indicate that the enquiry was ordered by the Deputy Commissioner of Police with the prior approval of Additional C.P. (Crime), Delhi which is substantial compliance of Rule 15(2) of D.P. Rules.
25 OA No.111/2012
36. Moreover, it has been specifically mentioned in the counter reply that a departmental enquiry was initiated against the applicant with the prior approval of the then Additional C.P. (Crime) vide order No.183/52/HAP/C&R dated 30.05.2006.
37. Lastly, ex-facie, the arguments of the learned counsel that since the authorities have wrongly placed reliance on interested prosecution witnesses by ignoring their cross- examination and that unchallenged statements of Defence Witnesses were not considered and hence the impugned disciplinary proceedings and orders are liable to be set aside are again meritless. As described above, the EO and Disciplinary Authority have decided the matter on the basis of oral as well as documentary evidence produced on record by the parties including the defence witnesses. Similarly, certain insignificant contradictions in the statement of the prosecution witnesses pointed out by the learned counsel for the applicant are not at all sufficient to discard the cogent evidence of the department.
38. In the instant case, the EO has appreciated the evidence of the parties in the right perspective and discussed the evidence in detail. He has considered the cross-examination of the prosecution witnesses and came to the definite conclusion that the questions put to them (PWs) in cross- examination are not directly relatable to the subject matter of 26 OA No.111/2012 the charges. He has also considered the statement of defence witnesses. As reproduced above, the Disciplinary Authority has dealt with each and every aspect of matter and passed a very detailed and reasoned impugned punishment order.
39. Further, it is now well settled principle of law that one line here and there in cross-examination of witnesses which is irrelevant and foreign to the crux of the charge, ipso facto, is not sufficient to ignore the entire cogent evidence produced on record by the prosecution. Above all, neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedings. This matter is no more res integra.
40. An identical issue came to be decided by the Hon'ble Apex Court while considering the jurisdiction of judicial review and rule of evidence in the case of B.C. Chaturvedi Vs. U.O.I. & Others AIR 1996 SC 484 has ruled as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the 27 OA No.111/2012 proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
41. Moreover, the jurisdiction of this Tribunal to interfere with disciplinary matters or punishment awarded in DE proceedings cannot be equated with appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authorities unless they are arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice, the Tribunal has no power to substitute its own discretion for that of the authority.
42. Therefore, if the epitome of the evidence produced by the parties during the enquiry is put together, then 28 OA No.111/2012 conclusion is inescapable that charges framed against the delinquent stand proved during the course of enquiry.
43. Finally, the Disciplinary Authority has recorded cogent reasons dealing with the relevant evidence of the parties, provided adequate opportunities at appropriate stages to the applicant. The Appellate Authority again considered the matter and confirmed the punishment order. Therefore, we hold that both the Disciplinary as well as Appellate Authority have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. As such, no interference is warranted by this Tribunal in the obtaining circumstances of the case.
44. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
45. In the light of the aforesaid reason, we find that there is no merit in the OA and it deserves to be and is hereby dismissed, as such. No costs.
(K.N. SHRIVASTAVA) (JUSTICE M.S. SULLAR) MEMBER (A) MEMBER (J) Rakesh