Central Administrative Tribunal - Delhi
Rajiv Kumar, Constable Of Delhi Police vs Govt. Of Nct Of Delhi (Through ... on 29 March, 2007
ORDER Shanker Raju, Member (J)
1. Applicant, a Constable in Delhi Police, impugns respondents' order dated 18.11.2004, initiating a departmental enquiry (DE), an order passed on 29.7.2005 pursuant to an enquiry, imposing upon him a punishment of permanent forfeiture of two years' approved service with reduction in pay and lastly an order passed on 6.6.2006 in appeal, upholding the punishment.
2. On the allegations that on a PRG raid applicant has allegedly demanded and accepted Rs. 50/- from one truck driver and an amount of Rs. 350/- recovered from him alleges him for gross misconduct, for which an enquiry proceeded held him guilty of the charge. On representation a major penalty has been inflicted, which on appeal when affirmed, gives rise to the present OA.
3. Shri Anil Singhal, learned Counsel appearing for applicant contended that enquiry is vitiated for violation of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980, as PRG raid conducted amounts to a preliminary enquiry (PE), as held by the Tribunal in Sohanbir and Ors. v. Govt. of NCT of Delhi and Ors. 2006 (2) ATJ 106 and as prior approval has not been accorded by the Additional Commissioner of Police the same by Joint Commissioner is not legal, as held by the Tribunal in ASI Willman Dung Dung v. Govt. of NCT of Delhi and Ors. OA No. 503/2006, decided on 1.11.2006.
4. Learned Counsel has also stated that whereas the truck driver had not deposed any thing against applicant regarding demand or acceptance of money, the other witnesses have also not witnessed the incident and have not deposed as to the money recovered from applicant is graft money. While relying upon the circular dated 28.2.2003 according to which a traffic staff, including a constable, is allowed to keep a maximum amount of Rs. 350/- as personal cash, it is stated that applicant from whom Rs. 350/- were recovered and for want of any graft money established the present is a case of 'no evidence', 'no misconduct' and 'perverse finding', which has been affirmed in a perverse order passed by the disciplinary authority.
5. On the other hand, learned Counsel of respondents has vehemently opposed the contentions and stated that PRG raid is not a PE, yet the Joint Commissioner has ordered enquiry against applicant and as sufficient evidence has brought on record against him to establish his guilt and laid down procedure has been followed, the punishment not being disproportionate, the OA is liable to be dismissed.
6. We have carefully considered the rival contentions of the parties and perused the material on record.
7. As per Rule 15 (1) a PE is an enquiry, which precedes a DE and where quantum of guilt, evidence and misconduct of an officer is disclosed. In Sohanbir's case (supra) the Tribunal after holding that a PRG enquiry is a fact finding enquiry and set aside the orders. In our considered view, had there not been a PRG enquiry, the allegations etc. against applicant would not have been disclosed. Moreover, in the PRG enquiry the statements of witnesses were recorded and recovery memo was prepared, this satisfies the requirements of Rule 15 (1) of the Rules and accordingly as PRG enquiry is a PE, the issue whether Rule 15 (2) has been complied with or not, the same has been decided by the Tribunal recently in OA-963/2003 decided on 14.3.2007 as well as in ASI Willman Dung Dung (supra), which has been complied with, by an order passed by the Deputy Commissioner of Police on 7.2.2007. As such, the respondents have accepted the dicta. Accordingly, a different view cannot be taken in the present OA. As Rule 15 (2) of the Rules ibid has not been complied with the DE as well as consequent orders are liable to be set aside.
8. Insofar as allegations against applicant are concerned, no doubt, on recovery of Rs. 350/- from applicant, which is the maximum limit prescribed and permitted to a Constable while deputed on traffic duty, it is to be seen whether this money is proved to be a craft money or not, when the driver from whom the alleged bribe has been alleged to have been taken by applicant, clearly ruled that he has not given any money to applicant nor has he demanded the same. The only witnesses to establish are PRG raid members, including Constable Satyapal, who has stated that what has been taken from the truck driver is whether currency notes or something else, he cannot depose. Likewise, Inspector Hira Lal, who has witnessed the incident and was apprised of the incident by Satyapal has also deposed that what has been accepted whether it is the money, he cannot tell, clearly established that in the DE though preponderance of probability is the rule but sufficient evidence has not been brought on record to conclusively establish that the money found in possession of applicant includes the money which on demand was accepted by him. In such view of the matter, the finding of the EO is not only perverse but also based on 'no evidence' and rather based on suspicion and surmises. The disciplinary authority agreed to the report of EO and without going into the defence contentions of applicant held the charge proved and punished the applicant, which, in appeal has also been confirmed without application of mind. Hence, the orders passed by respondents cannot be sustained in law.
9. In the result, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Applicant is entitled to all consequential benefits. No costs.