Central Administrative Tribunal - Delhi
Shri Mithan Lal vs Commissioner Of Police on 24 November, 2011
Central Administrative Tribunal Principal Bench, New Delhi OA No. 402/2010 New Delhi this the 24th day of November, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Shri Mithan Lal S/o Shri Badri Prasad R/o Village Kakrali Jat, Post Kheralisayud, Tehsil & Disttt. Alwar, Rajasthan. ..Applicant By Advocate: Shri Ajesh Luthra. Versus 1. Commissioner of Police, PHQ MSO Building, I.P. Estate, New Delhi. 2. Additional Commissioner of Police (Traffic) PHQ MSO Building, I.P. Estate, New Delhi. 3. Dy. Commissioner of Police (Traffic) (SR) Sadiq Nagar, Delhi. ..Respondents By Advocate: Shri B.N.P. Pathak. O R D E R
Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 5.9.2008 passed by the disciplinary authority, order dated 5.8.2009 passed by the appellate authority and the findings recorded by the Inquiry Officer.
2. The brief facts, as stated by the applicant are that a regular departmental enquiry was initiated by the DCP against ASI Ramesh Yadav No.4495/D (PIS No.28790141), Constable Mitthan Lal, No.926/T (PIS No.28010918), Ct. Nirmal No.1486/T (PIS No.28010407) and Ct. Subhash Chand No.1184/T (PIS No.28880714) vide order dated 9.8.2007 on the ground that they on 5.7.2007 were found indulging in malpractices by demanding and accepting Rs.100/- illegally in the form of Entry Money from driver of vehicle No.DL-1LF-6783. The Inquiry Officer held common proceedings and gave his findings that the charge is proved against all the delinquents (page 19 at 28). All the delinquents including the applicant gave their representations stating therein that (i) the main witness, namely, Shri Lalu Rai, driver of the delivery van from whom alleged demand and acceptance of bribe money was made did not support the prosecution story, therefore, the findings recorded are vitiated. (ii) The PRG had made a concocted story. (iii) The IO did not provide them any opportunity to cross examine the prosecution witness. As per Rule 15 (3) of Delhi Police (Punishment & Appeal) Rules, 1980 only the statement recorded during departmental enquiry is to be considered.
3. It is submitted by the counsel for the applicant that the Disciplinary authority in its order dated 5.9.2008 recorded that the Inquiry Officer has rightly proved the charges on the basis of statement of PWs against all the delinquents yet exonerated 3 delinquents, namely, ASI Ramesh Chand, Constable Subhash and Constable Nirmal on the ground that the main and material witness Shri Lalu Rai, driver of the delivery van No.DL-1LF-6783 has denied the alleged story of PRG official regarding demand and acceptance of the bribe money. With regard to the applicant, he observed that the main and material witness had resiled from his earlier statement in which he had stated that he was stopped by Constable Mitthan Lal and was let off only after accepting Rs.100/- from him. Moreover, the testimony of PRG official cannot be disbelieved. Accordingly, penalty of forfeiture of 2 years service temporarily entailing reduction in his pay from Rs.3500/- to Rs.3350/- was imposed on the applicant and his period of suspension from 25.7.2007 to 8.8.2007 was also decided to be treated as not spent on duty for all intents and purposes (page 13 at 15). Being aggrieved, applicant filed a detailed appeal (page 40) taking therein number of grounds but his appeal was rejected without considering the contentions raised by him simply by reiterating the order of the disciplinary authority which shows total non application of mind so the order is liable to be quashed on this ground alone.
4. It is further submitted by the counsel for the applicant that if the statement of material witnesses in the departmental enquiry was held good for other delinquents, there is no justification to ignore it for the applicant alone because he gave the same statement for all the delinquents. Moreover, since the witness was available in the departmental enquiry, the statement made by him in the departmental enquiry could not have been ignored and his earlier statement could not have been relied upon as that is not only contrary to the Delhi Police (Punishment & Appeal) Rules, 1980 but also deprived the applicant of his right to cross examine the said witness on his earlier statement because it was not recorded in his presence and he had no occasion to cross examine the driver on the basis of his earlier statement thus resulting in denial of his right to defend properly. He has thus prayed that the order passed by the authorities may be quashed and set aside.
5. Respondents have opposed this OA. They have stated the driver of the delivery van had resiled from his earlier statement. In the earlier statement he had definitely stated that the applicant had demanded and accepted Rs.100/-. Moreover, he had identified the applicant, therefore, the applicant has rightly been imposed the punishment in the instant case. Since the I.O. had already held the charge to be proved against the applicant, this case calls for no interference. The same may accordingly be dismissed.
6. We have heard both the counsel and perused the pleadings as well.
7. The charge against the applicant and other 3 delinquents was as follows:-
It is alleged against ASI Ramesh Yadav, No.4495/D, Const. Mitthan Lal, No.926/T, Const. Nirmal, No.1486/T and Const. Subhash Chand, No.1184/T that during PRG surveillance on 05.07.07 while posted in Kalkaji Traffic Circle and detailed for duty in Zone No.4 i.e. Okhla Industrial Area found indulging in malpractices by demanding and accepting Rs.100 illegally in the form of Entry Money from driver of vehicle number DL-1LF-6783.
On 05.07.07, the PRG team started moving in a private car arranged by Inspr. Dinesh Keshav, TI/PRG. After checking the above mentioned points discreetly, the PRG team reached near DVB Power House on the road between Okhla Industrial Area Phase-I and Phase-II at around 2.30 PM in the area of Kalkaji Traffic Circle and observed that couple of LGVs and a green coloured delivery van bearing No.DL-1LF-6783 was parked on the left side of the road. The traffic staff including a ZO/ASI and three constables were also present there. One of the constable was negotiating something with a person presumably the driver of the delivery van. The driver of the vehicle was pleading something to the constable. The PRG team stopped its vehicle about 50-60 yards ahead of the above vehicle and started observing the activities of the traffic staff. After some time the driver of the above delivery van handed over something to the constable, sat inside his delivery van and started to move ahead. Smelling some suspicion, the PRG team intercepted this delivery van and started to make enquiries from the driver.
The driver namely, Lalu Rai s/o Shri Phogni Rai r/o Tyagi Ka Makan, behind Durga Temple, K-Block, Sorabh Vihar, Badarpur, New Delhi on enquiry, told that he works as a driver with Sh. Shiv Bachhan r/o S-17/15, New Sanjay Camp, near KTI, New Delhi-20 and on 05.07.07 he had brought printed clothes in his delivery van bearing registration No. DL-1LF-6783 from B-106, Okhla Industrial Area Phase-I and was going to Gandhi Nagar, Delhi. At around 2.30 PM, he reached near DESU Power House between Okhla Phase-I and Phase-II. A traffic constable stopped him and told that since one person was sitting in the back side of his vehicle, therefore, either give Entry Money otherwise the vehicle will be challaned. He tried to give Rs.50/- to the constable but the constable said that nothing less than 100/- will do. He further pleaded to constable but he didnt budge. Left with no option he gave a note of Rs.100/- to the constable. All this while a traffic officer along with two other constables were present there only and was challaning other vehicles. The constable asked him to go ahead and didnt issue any challan or receipt for the money taken from him.
The driver, Lalu Rai was brought back at the spot where Rs.100/- was taken from him as Entry Money by the constable. The driver immediately identified the constable Mitthan Lal, No.926/T as the one who had demanded and accepted Rs.100/- from him as entry money. He also identified ASI Ramesh Yadav, No.4495/D, Const. Subhash Chand, No.1184/T and Const. Nirmal, No.1486/T as the other traffic staff present over there at the time of demanding and accepting illegal Entry Money by Const. Mitthan Lal, No.926/T was asked to produce the money but he refused to produce the same. Statement of Lalu Rai, driver of the above delivery van was recorded.
The copy of DD entry No.4 dated 05.07.07 of the departure of ASI Ramesh Yadav, No.4495/D, Const. Mitthan Lal, No.926/T, Const. Nirmal, No.1486/T and Const. Subhash Chand, No.1184/T and a photocopy of duty roster dated 05.07.07 of Kalkaji Traffic Circle have been obtained and are attached herewith. As per DD No.4 they was found detailed for duty in Zone No.4 i.e. Okhla Industrial Area.
The above act on the part of ASI Ramesh Yadav, No.4495/D, Const. Mitthan Lal, No.926/T, Const. Nirmal, No.1486/T and Const. Subhash Chand, No.1184/T amounts to gross misconduct, lack of integrity, indulgence in corruption and dereliction in the discharge of their duties which renders them liable for punishment under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980.
8. Admittedly, a joint enquiry was held against all the 4 officials including the applicant. During the enquiry, Shri Lalu Rai, who was PW-6 only stated that on 5.7.2007 ASI Ramesh Yadav and other police men stopped him and asked him to show travel documents of the delivery van and relieved him after seeing the travel documents. After crossing some distance, 4 persons in a Maruti Car stopped him stating that they were senior officers of the traffic department. They asked him what was paid by him to the traffic police personnel on which he replied that they only checked the travel documents and nothing was paid by him. He further stated that the PRG personnel had taken his signature on the photocopy of the RC and also on a plain paper, returned him the original RC. On cross examination by the delinquent, he specifically stated that no one had demanded any money from the traffic staff meaning thereby that the main witness did not say anything against the applicant or other delinquent officials.
9. As far as the PRG team is concerned, Inspector Dinesh Keshav, PW-3 had stated that on 5.7.2007 at about 2.30 P.M. the surveillance party in a private car arranged by him reached near DVB Power House between Phase-I and Phase-II at Okhla Industiral Area and saw some LGVs and one green coloured delivery van No.DL-1LF-6783 were parked there. One ZO ASI along with 3 constables were present there, out of which one constable was talking with the driver of the delivery van. The constable took something from the driver of the delivery van and allowed him to go. They intercepted the delivery van and enquired from the driver who told them that the traffic ZO and 2 constables stopped him and demanded entry money. He had offered Rs.50/- but he insisted to pay more, therefore, he paid Rs.100/- whereupon he was released without issuing any receipt or challan. The driver was taken to that spot where he identified not only Constable Mitthan Lal but others also in whose presence money was alleged to be demanded and accepted meaning thereby that according to the PRG Inspector, the driver had identified ASI Ramesh Yadav, Ct. Subhash and Constable Nirmal also apart from Mitthan Lal.
10. From the above, 2 things are clear that whatever evidence came on record during the enquiry was common for all the delinquents. There is no separate evidence against the applicant, therefore, all the delinquents should have been treated alike.
11. Perusal of the order passed by the disciplinary authority shows, delinquents who were charged with the same allegations as applicant were exonerated on the ground that the main witness did not support the claim of PRG. The same would hold good for applicant also while imposing punishment on the applicant, the earlier statement of driver of the delivery van was relied upon, which was objected to by the applicant in his appeal as he had taken the following grounds:-
7. Another important unpardonable flaw that had led to the award of unreasonable punishment is that disciplinary authority has dwelt upon the previous statement of Sh. Lalu Rai which is not only illegal but highly impermissible also. On last page of the punishment order disciplinary authority has mentioned, In his earlier statement the driver of the delivery van had stated that he was stopped by Ct. Mitthan Lal No.3345-T and was allowed to let off only after accepting Rs.100/- from him. Applicant has a serious objection to the use of previous statement on the following grounds:
(i) The so called earlier statement was not recorded in the presence of applicant but the same has been taken into consideration as a piece of evidence. It is a violation of Rule 16(iii) of Delhi Police (Punishment & Appeal) Rules 1980.
(ii) The earlier statements recorded at the back of delinquent government servant can not be used as evidence but need to be discarded after the witness concerned comes before the enquiry officer and makes a fresh statement.
(iii) In Central Bank of India Vs. P.C. Jain AIR 1969 SC 983 the Honble Supreme Court held that the principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of such basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in Evident Act. In such a situation the deposition made during the enquiry in the presence of charged employee which shall be taken into account and the earlier statements to the extent it is contrary to his deposition shall be discarded.
(iv) In view of the above quoted Supreme Court land mark judgment no statement recorded at the back of delinquent can be taken into account for deciding the departmental enquiry. Disciplinary authority has thus committed a serious mistake by going against the dictates of Honble Supreme Court. Not only a serious legal impropriety has been committed but principles of natural justice have deliberately been ignored and rather bypassed.
(v) In Union of India Vs. H.C. Goel, AIR 1964 SC 364, the Honble Supreme Court held that the findings of guilt can be recorded on the basis of specific evidence only and the suspicion, however, strong can never take the place of evidence or proof. Their Lordships further held that though we fully appreciate the anxiety of government to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion cannot be allowed to take the place of proof even in domestic enquiries. Their Lordships further observed that disciplinary proceedings before a domestic tribunal are of a quasi judicial character, therefore, the minimum requirement of the rule of natural justice is that the Tribunal should arrive at its conclusion on the basis of some evidence, i.e., evidential material with which some degree of definiteness points to the guilt of the delinquent in respect of the charge. Suspicion cannot be allowed to take the place of proof even in departmental enquiries. It was in this judgment that their Lordships in Supreme Court held that the principle that in punishing the guilty scrupulous care must be taken to see that the innocent is not punished applies as much to the criminal trial as to disciplinary proceedings.
(vi) From the record of the departmental enquiry, it is very much clear that mere suspicion has been made the basis of the punishment to the applicant and that there is no pointed and definite evidence to prove the guilt of applicant. Not only this the entire recorded evidence does not find the name of applicant in any context.
8. Disciplinary authority has further said that PRG officials cannot be disbelieved. There is nothing in their evidence to be believed. When the driver of the delivery van himself has derailed the theory put forth by the PRG team nothing remains to be taken from their crippled evidence. None of the PRG officers had made departure in the daily diary nor they had recorded their arrival in their office after the alleged raid. It is a serious violation of PPR 22.48 and 22.49 because they all are enrolled police officers and there is nothing on record to suggest that some officer had exempted them from the provisions of PPR. Rather it gives the impression that senior officers had given them a long rope. Thus they appear to be the trusted agents of the prosecution and no sensible decision could be rested on their evidence.
9. Inspr. Dinesh Keshav in cross examination has stated that he had not heard the conversation between the constable and the delivery van driver. Hence he has no knowledge about the so called demand of entry money. He also admitted that he had no legal authority to subject any body to search.
10. PW-5 S.I. Sailender Singh has made a statement. Kindly see how strong his memory was. Though he had narrated the minute details of the raid but could not note down the make and registration number of the car he had traveled in. He is a police Sub-Inspector. It is quite amazing. It gives an impression that he had been tutored to speak in a particular manner or that he was trying to conceal certain facts. At least he was not fair in his approach. He was at a distance of about 50/60 yards from the traffic staff. He has also stated that personal search of Ct. Mitthan Lal was not taken. He could not offer any reply when asked why the statement of the helper of the D Van was recorded. Disciplinary authority did not pay any heed to this important fact and blindly believed the PRG staff.
11. Disciplinary authority did not pay attention to the fact that the alleged bribe money had not been recovered and was not available during the departmental enquiry proceedings as a proof.
12. Disciplinary authority also did not pay heed to the charge which is absolutely extraneous and the facts mentioned in the charge are not supported by the evidence recorded during the DE proceedings. Rather some facts which had not come up during the enquiry proceedings have been mentioned in the charge. Such a charge cannot be maintained.
The punishment is therefore highly unreasonable, irrational and totally inconsistent to the evidence on file. The punishment deserves to be quashed and set aside. Your good self is therefore humbly requested to pay attention to the points raised in this appeal and pass a reasonable order after hearing the applicant in OR.
12. Perusal of order dated 5.8.2009 passed by the Appellate Authority shows none of these grounds have been dealt with by the appellate authority. 10 paragraphs are narration of facts and how disciplinary authority has passed the order. There is only one paragraph which can be said to be the order passed by the Appellate Authority which reads as under:-
I have gone through the concerned file, the appeal preferred by the appellant and other relevant papers/documents available on file, and also heard him on O.R. on 31.7.2009. There are no grounds to interfere with the punishment order passed by the disciplinary authority. Therefore, the appeal is rejected being devoid of merits.
13. This clearly shows non application of mind because none of the grounds taken by the applicant have been dealt with. For passing such an order, one need not even open the file whereas the mandate of Honble Supreme Court is that whenever an appeal is filed, the Appellate Authority should decide the same by passing a reasoned and speaking order after dealing with the contentions raised.
14. The Appellate Authoritys order being a non speaking one, is liable to be quashed on this ground alone. Ordered accordingly. Since applicant has taken number of legal grounds, the matter is remitted back to the appellate authority with a direction to pass a reasoned and speaking order after dealing with the contentions of applicant within 4 weeks from the date of receipt of a copy of the order under intimation to the applicant.
15. With the above direction, OA stands disposed of. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh