Central Administrative Tribunal - Delhi
Asi Raj Singh (Pis No.28740600) vs Government Of Nct Of Delhi Through on 2 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.655/2007 This the 2nd day of November, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. ASI Raj Singh (PIS No.28740600), R/O 7/242, Gali No.4, Daya Nand Nagar, Bahadurgarh, Haryana. 2. HC Sat Pal (PIS No.28800170), R/O E-617, Tajpur Pahari, Badarpur, New Delhi-44. 3. Const. Rakesh (PIS No.28893348), R/O House No.42, Type-I, Police Colony, Hauz Khas, New Delhi-110016. Applicants (By Shri Anil Singal, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Hqrs., IP Estates, New Delhi. 2. Joint Commissioner of Police, PCR & Comm, PHQ, IP Estate, New Delhi. 3. D.C.P./PCR, Police Headquarters, IP Estate, New Delhi. Respondents ( By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
ASI Raj Singh, HC (Exe.) Sat Pal and Const. (Driver) Ramesh Kumar, the applicants herein, sequel to a joint regular departmental enquiry held against them, have since been held guilt and have been inflicted with the punishment of forfeiture of two years approved service entailing proportionate reduction in their pay, vide order dated 31.1.2006 passed by Deputy Commissioner of Police/PCR, the disciplinary authority, wherein it has also been ordered that their suspension period from 21.4.2005 to 20.11.2005 would be treated as not spent on duty. The order aforesaid has since been confirmed by the Additional Commissioner of Police/PCR & Comm., the appellate authority, vide order dated 28.2.2007. These are the two orders which have been challenged by the applicants in this joint Original Application filed by them under Section 19 of the Administrative Tribunals Act, 1985.
2. The allegations subject matter of enquiry against applicants were that while posted in South West Zone/PCR, they were detailed for duty on MPV Z-13 on 20.4.2005 from 8.00 am to 8.00 pm. At about 2.45 pm, the applicants reached near passport office, Bhikaji Cama Palace and compelled one Shri Surender Kumar Thapar to sit in the MPV, and illegally detained him in the MPV from 2.45 pm to 3.00 pm and released him after taking Rs.500/- from him. An enquiry was conducted by Inspector Ram Singh, South West Zone/PCR into the complaint made by Shri Thapar, who, during the course of enquiry, identified all the defaulters and affirmed his allegations.
3. The department in its endeavour to bring home the guilt of the applicants, examined Shri Surender Kumar Thapar, the prime witness, who was the victim and from whom the applicants had extracted a bribe of Rs.500/-. While appearing as a witness, he stated that he was a social worker and working as a press reporter, and that he retired as manager of Payal Cinema. About four months ago he had gone to passport office, R.K. Puram for some work. After finishing his work, when he came out of the passport office, three beat officers approached him and started questioning him regarding his presence. He did not ask their names nor the name plates were displayed on their uniform. He introduced himself as a social worker and told that he used to come there to earn some money. The police personnel told him that the agents and touts working there were paying money to them and that he also had to pay. They took him aside and took Rs.500/- from him and threatened that the PCR van was patrolling and he would be taken to police station in the PCR van. He was warned to pay them regularly else he would be booked in some case. He reached Punjabi Bagh and transmitted this information at number 100. Next day he was called by Inspr. Ram Singh in PCR office, Maya Puri and his statement was recorded, which he signed in good faith without going through the contents of the same. He confirmed the genuineness of the said statement. When cross examined by the defence assistant, the witness stated that he had first time seen the three persons present and that they were not present in the Maya Puri office and he was not aware of their names. He never told Inspr. Ram Singh that he was made to sit in the PCR van by the PCR staff and let off after taking Rs.500/- , but that he was threatened by the beat constables that he would be taken to police station in the PCR van. He further stated that none of the three officials present was any of the beat officers. ASI Om Prakash was examined as PW-1. He stated that he was posted in the South-West Zone/PCR and had brought along with him the duty roster and daily diary dated 20.4.2005, and as per the record as per the duty roster all the applicants were detailed to perform duty on PCR van Z-13 on that day from 8.00 am to 8.00 pm. He saw the copy of the duty roster in the file which was marked as EX-PW2/A. Since there was separate duty roster for drivers, he saw the duty roster according to which the duty of Ct. (Dvr.) Rakesh Kumar was on PCR van Z-13 on 20.4.2005 from 8.00 am to 8.00 pm. Copy of the duty roster of drivers was marked as Ex-PW2/B. In the cross examination adverted to him, all that he was asked was the reasons for suspension of the applicants, to which he stated that no reasons had been indicated in DD No.12 dated 21.4.2005. Ram Singh, Inspr. (Admn.) who was examined as PW-3 stated that on 20.4.2005 Shri Surender Pal Thaper had made a complaint to PCR against CPCR in which it was complained that Rs.500/- had been taken from him by PCR staff near Hayat Hotel. On receipt of directions to conduct enquiry, he immediately left for Hayat Hotel. He gave reasons as to why he could not contact the complainant immediately, which need not be mentioned. He stated that since the duty time of the day staff was over, the complainant was asked to come to PS Maya Puri on the next day. On next day, i.e., 21.4.2005, the staff of PCR vans Z-13, Z-11 and Z-19 stationer near Hayat Hotel were called at Maya Puri office. The complainant also reached there, where his detailed statement was recorded. The applicants also gave their statements rebutting the allegations leveled by the complainant. He submitted his detailed report to ACP/SR-PCR recommending action against the delinquents as the complainant had identified them for having taken money from him. He saw the statement of the complainant available in the file which was marked as Ex-PW3/A. The statement was in two pages. In the cross examination adverted to this witness, he stated that the statement of the complainant was recorded in the office of ACP in his presence, but there was no mention of this in the statement. The details of the officials who joined identification parade, he stated, were mentioned in the report. He would not know if the complainant had claimed that he knew the PCR staff by name. The complainant had identified all the three officials, i.e., the applicants who were performing duties at PCR van Z-13. There is, however, no mention in his report that the complainant had identified them for taking Rs.500/- from him. He stated that he had not taken clarification from the complainant as to who had called him and who had demanded money, but the PCR staff was jointly responsible for their act, and that he did not think it proper to clarify the same. This witness, it is not in dispute, had fully supported the case of the department. ACp/Admn. Shish Ram was examined as PW-4. He stated that on 21.4.2005, Inspr. Ram Singh submitted his report before him, conducted on the complaint of Shri Thapar, which he saw on the file and confirmed his forwarding note at mark A which was already marked as Ex-PW3/B. The forwarding note would bear his signatures and he sent the report to DCP/PCR. On the basis of the evidence referred to above, the enquiry officer framed the following charge against the applicants:
I, O.P. Sharma, ACP/Estt.(E.O.) charge you ASI (Exe.) Raj Singh No.5049/PCR (PIS No.28740600), HC (Exe.) Sat Pal No.230/PCR (PIS No.28800170) and Const. (Dvr.) Rakesh Kumar No.3545/PCR (PIS No.28893348) that you while posted in South West Zone/PCR, were detailed for duty on MPV Z-13 on 20.4.2005 from 8.00 AM to 8.00 PM as I/C Van, Gunman and driver respectively. At about2.45 PM, you reached near Passport Office Bikaji Cama Palace and compelled one Shri Surender Kumar Thapar r/o B-208, New Ranjeet Nagat, Delhi to sit in the MPV. You illegally detained Shri Surender Kumar Thapar in the MPV from 2.45 PM to 3-00 PM and released after taking Rs.500/- from him. An enquiry was conducted by Inspr. Ram Singh, South West Zone/PCR into the complaint made by Shri Surender Kumar Thapar. During the course of enquiry, Shri Surender Kumar Thapar identified all the defaulters and affirmed his allegations.
The above act on the part of you ASI (Exe.) Raj Singh No.5049/PCR, HC (Exe.) Sat Pal No.230/PCR and Const. (Dvr.) Rakesh Kumar No.3545/PCR amounts to grave misconduct, negligence, malafide itention, involvement in corrupt activities and dereliction in the discharge of your official duties which renders you liable for punishment under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 read with sec. 21 of D.P. Act, 1978. The applicants did not plead guilty of the charge. They were directed to produce evidence in defence and to make their defence statements. They did not produce any witness in their defence, but submitted their defence statements, wherein, in addition to relying upon some case law, they stated that no recovery of alleged illegal money had been made from them, and that the money was taken from the complainant by the beat staff by threatening him to take him to police station in the PCR van. They also stated that the report of Inspr. Ram Singh was false as the complainant in his report had not mentioned that he had not seen the delinquents previously. The enquiry officer while mentioning that the complainant had introduced himself as a social worker, press reporter and retired manager of Payal Cinema, observed that person of such status is expected to have full knowledge to differentiate if the alleged police officials were of PCR or of the local police, and inasmuch as, he had not supported his first statement recorded by Inspr. Ram Singh during the fact-finding enquiry, the first information given by him to police regarding the incident would be crucial, and, therefore, it was decided to examine the official who received the first information given by the complainant in CPCR and PS R.K. Puram. Accordingly he recorded statements of W/Ct. Maya, CPCR, as court witnesses, who stated that on 20.4.2005 she was detailed to perform duty on Raliance Channel-II of CPCR, and that at 1609 hrs., Shri Surender, press reporter, through telephone no.30991269 informed that the PCR van staff made him to sit in the PCR van near passport office, Hyat Hotel, R. K. Puram and took Rs.500/- from him. The complainant gave his address as B-208, DDA Flats, New Ranjeet Nagar. She also brought along with her the original PCR form and also provided copy of the same. The applicants did not cross examined her at all. The enquiry officer also examined HC Om Prakash as court witness no.2. He stated that while he was posted in PS R. K. Puram and detailed to perform duty as D.O. from 9.00 am to 5.00 pm, at 1620 hrs., he received a QST through L/Ct. Maya that Surender, press reporter had informed over telephone that 3/4 van staff had taken Rs.500/- from him by making him to sit in the CR van. He recorded this information in the daily diary of the police station. He also produced the original daily diary and also provided a copy of the same. This witness too was not cross examined by the applicants. On the basis of the evidence referred to above, the enquiry officer concluded as follows:
After carefully going through the statement of P.Ws., C.Ws., defence statement of the delinquent ASI (Exe.) Raj Singh No.5049/PCR, HC Sat Pal No.230/PCR and Const. (Dvr.) Rakesh Kumar N0.3545/PCR and evidence on record, I have come to the conclusion that the charge framed against them has been substantiated. The applicants were given full opportunity to represent their case, but, as mentioned above, the disciplinary authority vide order dated 31.1.2006 inflicted upon them the punishment as mentioned above. The disciplinary authority referred to the various pleas raised by the applicants in their representation against the report of the enquiry officer, but the same were rejected. We may refer only to two paras, which may be relevant, of the order passed by the disciplinary authority, wherein the main plea raised by the applicants in support of the present Application, has been dealt with. The same read as follows:
13. The above plea raised by the defaulters carry no weight as Sh. Thapar, the complainant has not denied about the misconduct of police personnel regarding demanding and accepting Rs.500/- as illegal gratification. However, he has varied the version that it was not PCR staff but beat officers who demanded and accepted illegal gratification. He has further stated that the police men threatened him by saying that he will be put in PCR van and will be taken to police station. He has further stated that he made a telephone call at 100 No. regarding incident. W/Ct. Maya, who attended the call at Reliance Channel No.11 of CPCR made by Shri Thapar, has proved that Shri Surender, Press Reporter informed through telephone No.30991269 that the PCR van staff made him to sit in the PCR van near passport office, Hayat Hotel, R.K. Puram and took Rs.500/- from him. This evidence proves that Sh. Thapar had made the telephone call stating the OCR van staff had demanded and accepted money from him and subsequent enquiry made by Inspr. Ram Singh of South West Zone, PCR and report submitted by him also corroborate the prosecution version. The variation in the statement of Sh. Thapar and his failure to identify the defaulters during the departmental proceedings clearly indicates that this PW has been won over by the defaulters at later stage but preponderance of evidence is certainly available on record to prove the charge against the defaulters.
14. I have carefully gone through the DE file, other relevant evidence placed on record and written representations with reference to the findings submitted by the defaulters. In the interest of natural justice and fair play, the defaulters were called in OR on 20.1.2006 to explain their defence in person. They appeared in OR but did not put forth any fresh contention except to reiterate the pleas what they had already stated in their written representations. Though Shri Thapar, the complainant and material witness of the DE has made variation from his statement but W/Ct. Maya who attended the call made by Sh. Thapar has proved that Sh. Thapar had made complaint at 100 No. against PCR staff. This may be seen on the background of further enquiry conducted into the matter by Shri Ram Singh and identification of the defaulters by Sh. Thapar in the office of ACP/SB/PCR. In view of the above discussion, it has been clearly established that the defaulters demanded and accepted Rs.500/- from the complainant. The defaulters have committed a serious misconduct and needs to be dealt with heavy hands. However taking into consideration long service rendered by the defaulters, I am of the opinion that the defaulters should be given a chance to mend their ways. Therefore, taking a lenient view this time, I, Dr. A. K. singh, DCP/PCR, Delhi to hereby order to award the punishment of forfeiture of 2 years approved service permanently to ASI (Exe.) Raj Singh No.5049/PCR, HC Sat Pal No.230/PCR and Const. (Dvr.) Rakesh Kumar N0.3545/PCR entailing proportionate reduction in their pay which will meet the ends of justice. Their suspension period from 21.4.2005 to 20.11.2005 is also decided as not spent on duty. [ The appellate authority made reference to all the pleas raised by the applicants, but in consideration of the enquiry report, he rejected the same. He held that the order passed by the disciplinary authority in the departmental proceedings was justified and there were no reasons to interfere with the order. The appeal was rejected.
4. Before we may proceed to deal with the contentions raised by Shri Anil Singal, learned counsel representing the applicants, we may mention that one of the pleas raised in support of the Application was violation of rule 15 (ii) of the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980). In the present case, however, the approval for departmental enquiry has been given by Joint Commissioner of Police/Operations under rule 15(ii). The contention was not that no prior permission for holding the departmental proceedings was obtained. All that was urged was that the approval given by the Joint Commissioner of Police would be illegal, as the competent authority to do so was only the Additional Commissioner of Police. Since this point had been raised in number of OAs pending in this Tribunal, and there was difference of opinion by the Bench seized of the matter with the view already taken by a coordinate Bench of the Tribunal, the matter was referred to Full Bench in the case of the applicants and others. Vide orders dated 26.5.2010, the question was answered by the Full Bench as follows:
Obtaining prior approval of the Joint Commissioner of Police concerned instead of the Additional Commissioner of Police would meet the requirement of Rule 15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980.
The individual OAs be listed before the Division Bench for consideration and appropriate orders. [ This point is thus no more available to the applicants, and surely, therefore, no arguments have been raised in that regard by the learned counsel. What is, however, seriously stressed is that W/Ct. Maya and HC Om Prakash were examined as court witnesses only because in the view of the enquiry officer, the evidence led by the department would not be sufficient to pin down the applicants. It is urged that even though there may be a provision under rule 16(viii) of the rules of 1980 to examine any person as a court witness, the said witnesses, who were police officials would not come within the definition of court witnesses, which is given in rule 4(iii), which reads as follows:
(iii) Court witness means and includes person(s) not examined as prosecution or defence witnesses, whose testimony the enquiring officer considers necessary to find out truth of the matter for which a departmental enquiry is held against an officer of subordinate rank of Delhi Police, not enrolled under the Delhi Police Act. It is urged that W/Ct. Maya and HC Om Prakash are enrolled under the Delhi Police Act, and they being in police force would not qualify as per definition of rule 4(iii) as court witnesses. If their evidence is excluded, there would be no evidence to bring home the guilt against the applicants, thus contends the learned counsel. There is merit in the first part of the contention of the learned counsel as noted above, as W/Ct. Maya and HC Om Prakash are police officers and would have been enrolled under the Delhi Police Act. We are, however, of the view that even if their evidence is excluded, there is still sufficient evidence to prove the allegations against the applicants subject matter of charge. Before we may, however, advert to that aspect of the case, we may mention that it is also true that the enquiry officer in his report had mentioned that the complainant had not supported his first statement recorded by Inspr. Ram Singh during the fact-finding enquiry, and the first information given by him regarding the incident is crucial. It is after so observing that the enquiry officer proceeded to examine the officials who received the first information given by the complainant in CPCR and PS R.K. Puram. We may only mention that the court or tribunal is not bound by the view of the enquiry officer, or for that matter, even the disciplinary and appellate authorities. If, therefore, there may be available sufficient evidence to prove the guilt of the applicants, even if the evidence of the court witnesses is excluded, there would be no bar for the court or tribunal to make a mention of the same, and/or the reasons to hold that the rest of the evidence is sufficient to prove the guilt. We may also mention at this stage that whereas a criminal charge is to be proved beyond shadow of doubt, in departmental enquiries it is proved on preponderance of evidence, wherein explanation given by the delinquent employees is also of crucial importance.
5. The enquiry officer, it appears to this Tribunal, was not right in concluding simply because the complainant had not identified the applicants or stated that those who charged money from him were beat constables, that it would be as if the complainant had not supported his first statement recorded by Inspr. Ram Singh. We have given a gist of the statement made by the complainant hereinbefore. The incident is not denied by him. His visit to the concerned place on the date and time is admitted by him. That the amount of Rs.500/- was taken from him was also not denied by him. His information regarding the incident at telephone number 100 is also admitted by him. He was called by Inspr. Ram Singh in the PCR office next day, where the statement made by him was not denied. The genuineness of the statement recorded by Ram Singh is also admitted. The only variation in his statement was that whereas all through he had been stating that he had identified the applicants as persons who had collectively taken money from him, and that they were in the PCR van, while he made the statement before the enquiry officer, he would state that three beat officers approached him and started questioning him regarding his presence, and that he did not ask their names nor the name plates were displayed on their uniforms. In the cross examination by the defence assistant, he stated that he never told Inspr. Ram Singh that he was made to sit in the PCR van by the PCR staff and let off after taking Rs.500/-. He rather stated that he was threatened by the beat constables that he would be taken to police station in the PCR van, and further that none of the three officials present there were any of the beat officers. This witness cannot be said to be entirely hostile. He has partly supported the statement made by him on earlier occasion. The incident of taking money on a particular date and time is admitted by him. Genuineness of the statement made by him is not in dispute either. In the context of the statement as made by him, if the department was able to prove that there were none other than the applicants posted to do their duties at a particular place on that day and time when the complainant was made to part with an amount of Rs.500/-, in our view, there would be sufficient evidence to pin down the applicants, particularly when in the explanation furnished by them and in particular the defence statement made by them, it is not their case that there was duty of beat officers on the same date and time and, therefore, there was a possibility of some other officials being present in the area on the date and time who may have extorted the money from the complainant. The department, it may be recalled, examined ASI Om Prakash (PW-2), who, on the basis of documents, proved that the applicants were deputed to perform duty on PCR van Z-13 on 20.4.2005 from 8.00 am to 8.00 pm. He proved the duties assigned to the drivers as well by documentary evidence. There is no cross examination adverted to this witness that duty of beat constables was also given to some other constables at the same place, date and time. Ram Singh, Inspector, who made the fact-finding enquiry, was examined as PW-3. As mentioned above, he had fully supported the case of the department. He clearly stated that on the next day of the incident, he had called the complainant and the staff of PCR van Z-13, Z-11 and Z-19 stationed near Hayat Hotel. The complainant made a detailed statement which was recorded. He proved the statement made which was exhibited as Ex.PW-3/A, which was in two pages. From the cross examination adverted to this witness by the defence, it appears that the complainant had identified the applicants in the identification parade. This witness was not even given a suggestion that the statement recorded by him of the complainant was incorrect. There is no suggestion also that the witness was inimically disposed towards the applicants. There was sufficient evidence available on records which would prove that the complainant was made to pay an amount of Rs.500/- on the date and time as mentioned by him, and that it could not have been to any one else, but for the applicants. Even in criminal trial, the statement of hostile witnesses can be taken into consideration to some extent. Here, as mentioned above, even though Shri Thapar, the complainant, may have turned hostile to some extent, but insofar as parting with the money on the date and time as had been mentioned by him is concerned, the same was still stated by him. The only question in the circumstances aforesaid was as to whether the applicants had taken money from him or there could be some body else who could do that. Once, there is no possibility of any one else having extorted money from the complainant, a conclusion ought to have been drawn by the enquiry officer that the applicants alone were responsible to have taken money from the complainant. Further, it is permissible even in criminal trials to place reliance upon a part of the statement of a witness and to ignore the other. For the part of evidence which may not have been supported by a particular witness, it is open to the courts and tribunals to take into consideration the other evidence that may be available on records. In the present case, PW-3 Inspr. Ram Singh has fully supported the case of the department. It is proved that he recorded the statement of the complainant, which undisputedly pins down the applicants alone for extorting money from him. He has proved that the complainant had identified the applicants as those who had taken money from him. It was possible in the circumstances as mentioned above to discard the statement of the complainant to the extent it was divergent to the statement made by Ram Singh. It was, in other words, possible and permissible to accept the statement of Ram Singh as regards identity of the applicants.
6. In all fairness to the learned counsel representing the applicants, we may mention that he has relied upon some judicial precedents to state that no reliance could be placed upon the statement of the complainant. The first reliance of the learned counsel is upon the judgment of a single Bench of the Punjab & Haryana High Court in Ram Pal v Government of Haryana & others [1996 (6) SLR 801], incidentally authored by one of us (V. K. Bali, Chairman), which, it is stated, has been confirmed by the Division Bench in Letters Patent Appeal. The facts of the said case, however, reveal that but for the evidence of the witnesses who were won over, there was no other evidence. Some of the witnesses had also completely turned hostile. They had not at all supported the case of the department. We may refer to some of the observations made in the judgment referred to above. The same read, thus:
Assuming that the petitioner had won over the witnesses, the question still arises as to on what evidence the Punishing Authority came to the conclusion that the charges framed against the petitioner, subject-matter of enquiry against him, stood proved. If the witnesses had deposed against the petitioner and yet the Enquiry Officer had come to a conclusion that the charges leveled against the petitioner were not proved, the Punishing Authority, by holding such reasons to be incorrect or perverse, could come to a different conclusion but, as mentioned above, while returning a finding of guilt against the petitioner, no evidence whatsoever was taken into consideration Reliance placed by the learned counsel on the decision of this Tribunal in OA No.94/2007 decided on 30.6.2009 in the matter of HC Rohtas Singh v Government of NCT of Delhi & others, which has since been confirmed by a Division Bench of the Delhi High Court vide order dated 12.1.2010, is equally misplaced. The tempo driver, from whom allegedly the money was demanded, had turned hostile and had not supported the prosecution case at all. He had deposed while making statement that nobody got stopped his tempo and no money was demanded from him. There was no other evidence available on the basis of which the allegations leveled against the applicant could be proved.
7. Learned counsel for the applicant has cited some judicial precedents, wherein it has been held that demand and acceptance of illegal gratification has to be proved. We need not refer to these decisions, as there cannot be any dispute with regard to the proposition that unless demand and acceptance of money is proved, an employee cannot be held guilty of receiving illegal gratification, but the facts of the present case are such where it is proved that the applicants jointly made demand from the complainant and he in fact paid an amount of Rs.500/- to them as illegal gratification.
8. Finding no merit in this Original Application, the same is dismissed, leaving, however the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/