Central Administrative Tribunal - Delhi
Jasbir Singh vs Comm. Of Police on 24 December, 2022
1
OA No. 3904/2016 & 3909/2016
Item No. 35 and 36
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3904/2016
And
O.A. No. 3909/2016
Reserved on: 12.12.2022
Pronounced on:24.12.2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Item No. 35
O.A. No. 3904/2016
Constable Pradeep Kumar
Earlier No-1295/OD
Present No-10253/DAP
2nd Bn. PIS No. 28981403
Presently posted at NPL
Kingsway Camp, Delhi
R/o NU 46A, Pitampura
Delhi-110088 ... Applicant
(By ADVOCATE : Mr. Ravinder Kumar Yadav)
Versus
1. Commissioner of Delhi Police
PHQ, IP Estate, New Delhi
2. Joint Commissioner of Police
Northern Range, Delhi
Through Commissioner of Police
PHQ, IP Estate, New Delhi
3. Deputy Commissioner of Police
Outer District, Delhi
2
OA No. 3904/2016 & 3909/2016
Item No. 35 and 36
Through Commissioner of Police
PHQ, IP Estate, New Delhi.
... Respondents
(By ADVOCATE: Ms. Sangeeta Rai)
Item No. 36
O.A. No. 3909/2016
Constable Jasbir Singh
Earlier No-2194/OD
Present No-11342/DAP
4th Bn. PIS No. 28961069
Presently posted at NPL
Kingsway Camp, Delhi
R/o D-1, Phase 5, Om Vihar
Uttam Nagar, Delhi-59. ... Applicant
(By ADVOCATE : Mr. Ravinder Kumar Yadav)
Versus
1. Commissioner of Delhi Police
PHQ, IP Estate, New Delhi
2. Joint Commissioner of Police
Northern Range, Delhi
Through Commissioner of Police
PHQ, IP Estate, New Delhi
3. Deputy Commissioner of Police
Outer District, Delhi
Through Commissioner of Police
PHQ, IP Estate, New Delhi.
... Respondents
(By ADVOCATE: Mr. Sameer Sharma)
3
OA No. 3904/2016 & 3909/2016
Item No. 35 and 36
ORDER
Mr. Ashish Kalia, Member (J):
The issue involved in both the Original Applications being same, we propose to dispose them by a common order. The relief(s) sought by the applicants in OA No. 3904/2016 and OA No. 3909/2016 respectively is as follows: O.A. No. 3904/2016
"(a) Allow the present Original Application
(b) set aside the orders dated 21.03.2016 and 21.06.2016 of the Respondents, thereby setting aside permanent forfeiture of three years approved service of applicant and reduction in pay;
(c)set aside the orders of the Respondents of not counting the service of applicant of suspension period from 21.08.2014 to 21.03.2016 for all purpose and intent;
(d) direct the respondents from removing the name of applicant from the secret list of doubtful integrity w.e.f order dated 21.03.2016;
(e) direct the respondents to pay compensation to the applicant against the harassment and metal agony suffered by the applicant"O.A. No. 3909/2016
"(a) Allow the present Original Application
(b) set aside the orders dated 21.03.2016 and 13.06.2016 of the Respondents, thereby setting aside permanent forfeiture of three 4 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 years approved service of applicant and reduction in pay;
(c)set aside the orders of the Respondents of not counting the service of applicant of suspension period from 21.08.2014 to 21.03.2016 for all purpose and intent;
(d) direct the respondents from removing the name of applicant from the secret list of doubtful integrity w.e.f order dated 21.03.2016;
(e) direct the respondents to pay compensation to the applicant against the harassment and metal agony suffered by the applicant"
2. The brief facts as stated and leading to the filing of present Original Applications are that a joint departmental enquiry was initiated against the applicants vide office order dated 27.09.2014 on the basis of enquiry by ACP/HQ Outer District through SHO, Begum Pur on a telephonic complaint from one Sh. Madan Jaira. It is alleged that while being posted and performing their duties, the applicants had taken Rs. 16,000/- on 02.08.2014, through a plumber working at the residence of Sh. Madan Jaira, for allowing illegal water connections. Both the applicants were suspended vide common order dated 21.08.2014. Charges were framed against them vide order dated 28.11.2015. The applicants denied all the 5 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 charges by way of filing a written statement. However, the Inquiry Officer held the charges against them as proved. Thereafter, the applicants made representation against the findings of the Inquiry Officer on the ground that these are not based upon logical evidence but based upon irrelevant consideration and presumption and surmises of the Inquiry Officer.
3. It is stated that respondent No. 3 vide its order dated 21.03.2016 awarded the punishment of forfeiture of three years approved service permanently entailing proportionate reduction in pay upon the applicants. Also, they were reinstated from suspension but the period of suspension from 21.08.2014 to the date of issue of said order i.e. 21.03.2016 was decided as period „not spent on duty‟ for all intents and purposes.
4. It is further stated that the names of applicants were also put in the secret list of doubtful integrity vide order dated 10.04.2016 and 19.05.2016 respectively. The applicants preferred appeals to the Appellate Authority i.e. Joint Commissioner of Police, Northern Range, Delhi which were rejected vide orders dated 21.06.2016 and 13.06.2016 6 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 respectively, feeling aggrieved by which, the applicants have filed the present OAs.
5. Notices were issued to the respondents who put their appearance through Ms. Sangeeta Rai, learned counsel in OA No. 3904/2016 and Sh. Sameer Sharma, learned counsel in OA No. 3909/2016. They filed counter reply and argued the matter.
6. In the counter reply, it is submitted by the respondents that departmental enquiry was initiated against applicants and five others. The applicants in the present OAs were posted at PS Begum Pur and performing duty in Beat No. 14 & 15 of PS Begum Pur, Delhi and took Rs. 16,000/- from Sh. Madan Jaira for allowing water connections on 02.08.2014. An enquiry was conducted which revealed that the applicants went to the flat where the work was in progress and directed them to stop the work. The flat owners Sh. Madan Jaira and Sh. Gopi Nath were called and an amount of Rs. 16,000/- was settled for allowing the work and accordingly the said amount was given to the applicants for allowing said illegal water connections. On 03.08.2014, the applicants returned the amount to the flat owners through the plumber. On 04.08.2014, the beat staff again called the plumber and demanded Rs. 10,000/- The 7 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 plumber again took Rs. 10,000/- from the owners and handed over to the applicants.
7. When the matter came to the notice of Inspr./Investigation Sudhir Gulia, who was officiating as SHO on that day, he called the Plumber and beat staff. The Plumber told everything to him and he was allowed to go. Thereafter, the applicants dropped the Plumber at his residence on bike and also returned Rs.10,000/- to him on the way. The Plumber also identified all the above 07 police personnel when confronted with him to be the beat staff of the area. The analysis of CDR of Mobile No. 9911902897 being used by Plumber revealed that there are 48 calls between the Plumber and 03 Constables during the period from 02.08.2014 to 05.08.2014 i.e. 26 calls between the applicant and Plumber, 19 calls between Constable Jasbir Singh and Plumber and 03 calls between Constable Bhim Singh and Plumber. Also prior to this incident, there were 11 calls between the applicants and Plumber. The applicants also tried to conceal their mobile number, which they used for communication with the Plumber. The enquiry further revealed that the entire beat staff mentioned above indulged in corrupt 8 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 practices while performing official duties in their beat area and allowed illegal water connections.
8. The applicants did not admit the allegations and submitted requests for allowing them to appoint Defence Assistants. The Enquiry Officer examined total 10 PWs in the presence of the applicants and his co-defaulters. An opportunity to cross examine the PWs was given to the applicants and they availed it. After completion of prosecution evidence, the Enquiry Officer gave his report and held the charges against the applicants proved.
9. The Disciplinary Authority carefully considered the statements of PWs/DWs, findings of the Enquiry Officer, representations of the applicant and his co-defaulters and other material brought on DE file. The CDR proved association and communication between the Plumber and the applicants. Thus, they were awarded the punishment of forfeiture of three years approved service permanently entailing proportionate reduction in pay. They were also reinstated from suspension and their suspension period was not treated as spent on duty. The Appellate Authority also rejected the appeal. 9
OA No. 3904/2016 & 3909/2016 Item No. 35 and 36
10. Heard the learned counsel for the parties at length and perused the records.
11. Learned counsel for the applicants raised various objections regarding the conduction of enquiry. He submits that there is no sufficient evidence to prove the charges against the applicants. He has relied upon the judgment of Hon‟ble Supreme Court in the case of Allahabad Bank and Others vs. Krishna Narayan Tewari, (2017) 2 SCC 308. The relevant paras read as under:
"4. The High Court came to the conclusion that neither the disciplinary authority nor the appellate authority had applied their mind or recorded reasons in support of their conclusions. Relying upon the decisions of this Court in Roop Singh Negi v. Punjab National Bank, Kuldeep Singh v. Commr. of Police, Nand Kishore Prasad v. State of Bihar, Kailash Nath Gupta v. Allahabad Bank, State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya and Mohd. Yunus Khan v. State of U.P., the High Court held that the orders passed by the disciplinary authority and the appellate authority were unsustainable in law. The High Court found that the findings recorded by the disciplinary authority and affirmed by the appellate authority were perverse and were based on no evidence whatsoever. The High Court observed that the appellate authority had not applied its mind independently and simply cut and pasted the findings of the disciplinary authority while dismissing the appeal.
XXX XXX XXX XXX
7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very 10 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non- application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority.11
OA No. 3904/2016 & 3909/2016 Item No. 35 and 36
12. Another judgment relied upon by the applicant is in the case of Nirmala J. Jhala vs State of Gujarat and Another, (2013) 4 SCC 301. The relevant paragraphs are as under:
"10. We have considered the rival submissions made by learned counsel for the parties and perused the record. It may be pertinent to deal with the legal issues involved herein, before dealing with the case on merits.
Legal issues:
I. Standard of proof in a Departmental Enquiry which is Quasi Criminal/Quasi Judicial in nature :
11. In M. V. Bijlani v. Union of India and Ors., AIR 2006 SC 3475, this Court held :
"25 ... Disciplinary proceedings, however, being quasi-
criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures." (Emphasis added) XXX XXX XXX XXX
14. In Noor Aga v. State of Punjab, it was held that "88. .....The departmental proceeding being a quasi judicial one, the principles of natural justice are required to be complied with. The Court exercising power of 12 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
15. In M.S. Bindra v. Union of India it was held:
"13. ...While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label „doubtful integrity.
XXX XXX XXX
17. In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in spite of the fact that the same are quasi-judicial and quasi- criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the 13 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 said conclusion should be reached on the basis of test of what a prudent person would have done. The ratio of the judgment in Prahlad Saran Gupta (supra) does not apply in this case as the said case was of professional misconduct, and not of a delinquency by the employee.
XXX XXX XXX
39. More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17.8.1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the department to prove the said circumstance. The court should have also taken note of the fact, that the matter was adjourned for 28.8.1993, and being a 4th Saturday, it was a holiday. The court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17.8.1993, in respect of a demand of bribe of Rs.20,000/- fully justified the findings of the Enquiry Officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant."
Learned counsel for the applicant submits that there is no supporting evidence and the enquiry is vitiated.
13. On the contrary, learned counsel for the respondents, in support of their case also relied upon the judgment of the Hon‟ble Supreme Court in CA No. 3340 of 2020, the State of Rajasthan & Ors. vs. Heem Singh, wherein it has been held as under:
14
OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 "30. We have to now assess as to whether in arriving at its findings the High Court has transgressed the limitations on its power of judicial review. In Moni Shankar v.Union of India, a two judge Bench of this Court had to assess whether the Central Administrative Tribunal had exceeded its power of judicial review by overturning the findings of a departmental enquiry by re-appreciating the evidence. In regard to the scope of judicial review, the Court held thus:
"17. The departmental proceeding is a quasi- judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See State of U.P. v. Sheo Shanker Lal Srivastava [(2006) 3 SCC 276 : 2006 SCC (L&S) 521] and Coimbatore District Central Coop. Bank v. Employees Assn. [(2007) 4 SCC 669 : (2007) 2 SCC (L&S) 68] )"
(emphasis supplied) 15 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36
33. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial 16 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands- off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges‟ craft is in vain. In the case of Chairman & Managing Director, V.S.P. and Others vs. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569, the Hon‟ble Apex Court observed as under:
"16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct."17
OA No. 3904/2016 & 3909/2016 Item No. 35 and 36
14. There is no dispute with regard to the fact that due procedure was adopted when charges were framed. A preliminary investigation was held and regular disciplinary proceedings were initiated against the applicants. They were afforded opportunity at every stage and copy of the inquiry report was also furnished to them. It is a well settled law that judicial scrutiny in the matter of disciplinary proceedings culminating in the passing of order imposing a penalty would be limited to decision making process and not to the decision itself. This Tribunal while exercising jurisdiction would not sit as a court of appeal so as to re-appreciate the evidence. This Tribunal would also not interfere with the findings of the Inquiry Officer as also with the decision of Disciplinary Authority and Appellate Authority unless it is shown that the orders are patently arbitrary or utterly perverse. In the facts of the present case, it cannot be said so as the Inquiry Officer examined ten witnesses, material evidence, CDR record and witnesses deposed against the applicants. Learned counsel for the applicants tried to attribute motive qua the officials who deposed in the inquiry, but he miserably failed to do so. 18
OA No. 3904/2016 & 3909/2016 Item No. 35 and 36
15. The scope of judicial scrutiny in such matters is extremely limited and observation made by the Apex Court in the matter of State Bank of India and Ors vs Ramesh Dinkar Punde, in this regard, is reproduced as under:
"The High Court, on re-appreciation of evidence, reversed the finding of the Inquiry Officer and set aside the orders of the Disciplinary Authority and Appellate Authority. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an appellate authority despite the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority."
Similar view is taken by the Hon‟ble Supreme Court in the case of Govt. Of A.P. & Ors vs Mohd. Narsullah Khan, 2006 2 SCC 373.
16. Strenuous argument was put forward by the learned counsel for the applicants that the view formed by the Inquiry Officer is entirely based on surmises and conjectures. But he did not give a satisfactory reply to the question raised by this Tribunal during the course of arguments as to why the 19 OA No. 3904/2016 & 3909/2016 Item No. 35 and 36 applicants made so many calls to the said plumber when they have no business to deal with him whatsoever. The charges leveled against the applicants had been duly proved. Moreover, the act of dereliction of duty and indulging in corrupt practices by accepting bribes and allowing illegal water connections on the part of the applicants, will not find any favorable view from this Tribunal.
17. Hence, the OAs lack merit for the reasons recorded hereinabove and deserve to be dismissed. Accordingly, dismissed. No order as to costs.
(Dr. Chhabilendra Roul) (Ashish Kalia)
Member (A) Member (J)
/NS/