Central Administrative Tribunal - Delhi
Nand Kishore vs Comm. Of Police on 28 February, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1277 of 2014
This the 28th Day of February, 2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
SI Nand Kishore,
(PIS No. 16890103)
r/o C-16, Delhi Citizen Apartments,
Sector 13, Rohini, Delhi-110085
...Applicant.
(By Advocate : Ms. Jasvinder Kaur)
Versus
1. Govt. of NCT of Delhi through
Commissioner of Police,
PHQ, IP Estate, New Delhi
2. Joint Commissioner of Police,
Northern Range,
PHQ, IP Estate, New Delhi -
....Respondents
(By Advocate : Ms. P.K. Gupta)
O R D E R (Oral)
Ms. Nita Chowdhury, Member (A):
Heard learned counsel for the parties.
2. By filing this OA, the applicant is seeking the following reliefs:-
"Quash and set aside impugned order dated 29.11.2013.
Direct the Respondents to consider and declare the period of suspension as Spent on Duty for all intents and purposes;
Respondents be directed to pay the costs of the case to the applicants.2
May pass such other further orders/directions deem fit and proper in the facts of the case in favour of the applicant and against the Respondents."
3. Brief facts of the case are that this is the second round of litigation, as the applicant has earlier filed OA No.4163/2012 agitating his grievance and this Tribunal vide Order dated 13.8.2013 disposed of the said OA with the following observations:-
"10. It is seen that in the detailed appeal running into 16 pages, the applicant took a specific plea that the allegation made by the interested witnesses regarding demand of bribe could not be corroborated by any other material. May be while accepting the report of the inquiry officer, the disciplinary authority need not record detailed reasons but the authority considering the appeal against the penalty imposed needs to pass a speaking order. In the present case, the order of the appellate authority is ex facie non-speaking.
11. Though in view of the findings and conclusion recorded by the inquiry officer, we ourselves could have quashed the inquiry report and also the orders of the disciplinary and appellate authorities but we find that in para 5.2 of the OA, the applicant himself has admitted that the complaint met him only once and got the alleged recording done. For easy reference, relevant excerpts of para 5.2 are extracted hereinbelow:
"Whereas in the present case the said complainant met the applicant only once and got alleged recording done, if any, on its own without any permission and or approval of ACB. Further, admittedly the said recording was not verified for authenticity by FSL, neither the transcription was prepared by the authorized person nor the signatures of applicant nor any of the PWs were obtained there upon. The entire case of prosecution i.e. departmental enquiry is hinging upon the alleged audio recording which remained under suspicion till date for the reasons stated above."3
12. In view of the stand taken by the applicant in the OA authenticating the recording, we consider it appropriate to only quash the order of the appellate authority being non-speaking and remit the matter back to it for passing detailed, speaking and reasoned order after giving personal hearing to the applicant. In its order, the appellate authority would specifically reproduced the contents of the recording. Needful shall be done within a period of three months from the receipt of a certified copy of this order. No costs."
4. In compliance of the aforesaid Order of this Tribunal, the respondents have passed the order dated 29.11.2013, which is impugned by the applicant in this case.
5. Counsel for the applicant raised several grounds in this OA, which are more or less the same as raised by him in his aforesaid appeal and crux of his arguments is that appellate authority has not applied its mind while considering his appeal.
6. On the other hand, learned counsel for the respondents has submitted that in this case, this Tribunal while disposing of earlier aforesaid OA of the applicant has only directed the appellate authority to consider the applicant's detailed appeal and pass a reasoned and speaking order and the appellate authority has passed the detailed and exhaustive order after dealing each and every aspect of this matter as directed by this Tribunal vide Order dated 7.12.2012. Counsel further submitted that appellate authority vide impugned order after very carefully considering and discussing the points of the applicant reduced the punishment imposed by the 4 disciplinary authority from forfeiture of 5 years approved service permanently with cumulative effect entailing proportionate reduction in his pay to that of forfeiture of 2 years approved service permanently with cumulative effect entailing proportionate reduction in his pay considering his conduct and to meet out the natural justice. Counsel further submitted that there is nothing illegal in the same and the present OA is liable to be dismissed by this Tribunal.
7. Before adverting on the claim of the applicant, it is pertinent to note that the law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police 5 friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada - bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on 6 bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
(2) Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed 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 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.7
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."
(3) In the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no.I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;8
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
8. Keeping in view the aforesaid observations of the Apex Court and also having regard to the observations of this Tribunal made in earlier OA preferred by the applicant, this Court observes that in this case, this Tribunal is required to see whether the appellate authority while rejecting the appeal of the applicant has considered the averments of the applicants as raised by him in his appeal and also to see whether the impugned order is a speaking and reasoned order or not. We have perused the order dated 29.11.2013 and found that the appellate authority passed a detailed reasoned and speaking order on the applicant's appeal, which runs into 7 pages in which the appellate authority in true letter and spirit followed the instructions as directed by this Tribunal while considering his appeal, some of the relevant 9 portions of the said order of the appellate authority read as under:-
"On careful perusal of the DE file, it has been found that mainly two allegations have been made against the appellant SI Nand Kishore, No: D-2758. First is that the SI while posted at PS Ashok Vihar had demanded money to release bus No. DL-1PB-5301 & also the driver and conductor arrested in case FIR No.276/08, dated 04-08-2008 u/s 354/323/34 IPC, PS Ashok Vihar. The recording of demand of money was made by PW-2, Sh. Gagan Kumar in a voice recorder system provided by A.C. Branch, Delhi to him. In the conversation, the SI was allegedly demanding Rs.10,000/-. Second, the appellant SI who was not the I.O. of case FIR No.276/08, dated 04-08-2008 u/s 354/323/34 IPC, PS Ashok Vihar, but still investigating the case, at his own and in his personal interest and have prepared various legal documents relating to this case and influencing the investigation.
Now let us take the first allegation of demand of money. This allegation has been proved by the statement of PWs 2 & 3 and appellant. The appellant in this regard has taken certain pleas in his appeal wherein he has stated that the E.O. has proved this charge partly that of only demand for the bribe money as per the deposition made by Pws-2 & 3 who were interested witnesses but on the other hand concludes that the exhibit PW-6/B is full of shortcomings. He further took plea that PW-4 SI Ram Kumar, A.C. Branch did not make his departure in Roznamcha while going to PS Ashok Vihar and refused to identify the voice of the appellant. Neither the voice recorder was seized while proceeding from PS Ashok Vihar after the recording nor was it sent to FSL for testing. The appellant has also taken the plea that PW-5 SI Karnal Singh stated that the digital recorder received by him from Inspr. Dharam Veer was not seized. He has also taken the reliance on the judgment of Hon'ble High Court in which it has been held that sting operation by a private person in a civil society is unpalatable and unacceptable. Only the law enforcement agency may use sting operation only to collect further to conclude evidence and also sting operation must have sanction of appropriate authority. This plea has been examined viz- a-viz findings of the Enquiry Officer. Enquiry Officer has partly proved in his findings about demand of illegal 10 gratification by the appellant on the basis of the statements made by PW-2 & 3 and also on the contents of the transcript. However, the Enquiry Officer has also found certain shortcomings in the recording(sic) of the conversation between the appellant and the PW-2 cited as PW-6/B. The mere perusal of transcription of the conversation which is available on the file reveals that the PW-2 has initiated the conversation with the appellant SI in which the discussion has taken place regarding some transactions. At one place the PW-3 has stated to the appellant SI to come down below Rs.10,000/- but finally it was settled in Rs.10,000/-. On going through the transcription and the manner in which it has been done it can be inferred that the appellant SI was having interaction with the PW-2 and PW-3. Statement of PW-1 HC Suman Prasad also establish the facts that the SI was assisting him in case FIR No. 276/08, dated 04-08-2008 u/s 354/323/34 IPC, PS Ashok Vihar, on the directions of SHO. Besides, the applicant has also admitted himself in O.A. mentioned at para-11 that he met the PWs-2 & 3 and also about recording of conversation. Therefore, I have no doubt that the appellant had in fact interacted with the PWs-2 & 3 beyond his mandate. On the other hand, it is also seen that due procedure of recording and the authenticating the voice of applicant and sealing of the recording etc. has not been found done in a scientific manner. Moreover, the veracity of the contents of the conversation have also not been authenticated. This aspect has also been highlighted by the E.O. in his findings that PW-6/B had many shortcomings. But in view of the fact which the appellant recording of conversation which the PWs-2 & 3 might have done, the conduct of the appellant was not above board. Whatever may be his consideration for his involvement in this whole episode, the fact remains that he transgressed his jurisdiction in this case.
As regard the second allegation that the appellant was not the I.O. of the case FIR No.276/08, dated 04- 08-2008 u/s 354/323/34 IPC, PS Ashok Vihar but still investigating the case in his personal interest and have prepared various legal documents relating to this case and influencing the investigation. The findings of the E.O. has not proved this charge hence no further discussion on this account. 04 DWs were cited by the appellant in his appeal out of which three were the police officers and one was public witness who was 11 actually the complainant in case FIR No. 276/08, dated 04-08-2008 u/s 354/323/34 IPC, PS Ashok Vihar. Their depositions only states about the presence of the appellant in the Police Station rebuking the bus driver and conductor for their criminal act against the women and also about the assistance given to HC Suman Prasad, I.O. of the case in preparing the documents as per the directions of the SHO.
Therefore, taking into account the facts and circumstances of the case, careful examination of the material documents, statements of PWs and the deposition made by the DWs and based on the discussions in the foregoing paras, I am of the opinion that appellant had met the PW-2 & 3 in the Police Station and had conversation regarding this case which he himself has admitted before the Hon'ble CAT in his statement in the O.A. No.4163/12. The mere fact that the officer met the PWs-2 & 3 and discussed about this case and held the alleged conversation itself proves the point that he transgressed his mandate of only handling the situation arising because of case FIR No. 276/08, dated 04-08-2008 u/s 354/323/34 IPC, PS Ashok Vihar in which one women complainant was assaulted and here modesty was outraged. Therefore, the allegation of demand of money mentioned in the transcriptions, which has been reproduced above, may not be outrightly negated. However, as concluded by the E.O., there were procedural shortcomings with regard to exhibit PW-6/B. Therefore, I have come to the conclusion that the conduct of the appellant in the whole episode was not above board. But as the allegations have been partially proved, I think the punishment awarded by the disciplinary authority was quiet harsh. Therefore, I decide to interfere in the matter and order to reduce the punishment of forfeiture of 5 years approved service permanently with cumulative effect entailing proportionate reduction in his pay awarded by the disciplinary authority to forfeiture of 2 years approved service permanently with cumulative effect entailing proportionate reduction in his pay considering his conduct and to meet out the natural justice. This order will have no effects on the proceedings of criminal case FIR No.24/08 dated 04.08.2008 u/s 7/8/13 POC Act pending against the appellant."12
9. A plain reading of the order of the appellate authority shows that he has perused the DE file, the order of the disciplinary authority and has in fact after considering all the matters decided to reduce the punishment of forfeiture of 5 years approved service permanently with cumulative effect entailing proportionate reduction in his pay awarded by the disciplinary authority to forfeiture of 2 years approved service permanently with cumulative effect entailing proportionate reduction in his pay. Quite clearly after such detailed consideration of the appellate authority, we do not find any grounds in the above facts and circumstances of this case to interfere in the decision of the appellate authority arrived at vide Order dated 29.11.2013 and therefore, the present OA being devoid of merit is dismissed. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury)
Member (J) Member (A)
/ravi/