Central Administrative Tribunal - Delhi
Si Sobhan Baraik vs Govt. Of N.C.T.D. Through on 18 February, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2066/2006
New Delhi this the 18th day of February, 2009.
Honble Mr. Justice M. Ramachandran, Vice-Chairman(J)
Honble Mr. N.D. Dayal, Member(A)
SI Sobhan Baraik,
Late Shri Sukh Nath,
R/o 6-B-60, Prahlad Pur,
New Delhi-44. . Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. Govt. of N.C.T.D. through
Commissioner of Police,
Police Headquarters,
I.P. Estate, New Delhi.
2. Jt. Commissioner of Police,
Southern Range,
Through Police Headquarters,
I.P. Estate, MSO Building,
New Delhi.
3. Dy. Commissioner of Police,
South-West District,
Through Police Headquarters,
I.P. Estate, MSO Building,
New Delhi. . Respondents
(through Mrs. Renu George, Advocate)
O R D E R
Mr. N.D. Dayal, Member(A) A departmental inquiry was ordered on 07.02.2005 against the applicant and the Inquiry Officer after examining the prosecution witnesses framed the following charge:-
I Mohinder Singh Chhikara, EO/ACP, D.E. Cell hereby charge you SI Sobhan Bariak, No. D-1352 that while you were posted at PS-Dabri, a case FIR No. 257/2094 dated 9.4.04 u/s 363/376(G) IPC PS-Dabri was registered on the statement of one Sh. Pardeshi Ram S/o Sh. Kundan Ram R/o B-12, Dabri Extn., New Delhi, who stated that his daughter Nisha aged about 13 years was missing since 12 noon dated 7.4.2004 and suspected that Baljeet Singh with whom he had a land dispute, might had kidnapped his daughter through his tenant Aziz Ahmed. The case was entrusted to you for investigation. On 14.4.2004 the kidnapped girl Nisha came back to her house and in her statement got recorded u/s 164 Cr.P.C., she alleged that she was kidnapped by Aziz, Shankar, Monu and one unknown person. She was taken to a room and was subsequently raped by these four persons.
While investigation was being conducted by you, accused Azziz Ahmed was arrested by you on 15.9.04 and remaining 4 accused persons i.e. Baljeet Singh, his wife Jagwanti, his son Monu and his servant Shankar were evading their arrest and proceedings u/s 83 Cr. P.C. against them was in progress.
On 3.11.04 you went to the house of Baljeet Singh at RZ-14/1, Dabri Extn., Delhi and indulged in unwarranted conversation with his daughter Rashmi and her grandfather and also demanded Rs.50,000/- from them to favour the accused persons. The incident of demanding money by you was recorded by the media Aaj Tak. You were caught by the camera not only asking for money but also running away from the camera after you realized that the conversation was being recorded. It was subsequently telecasted by the Aaj Taq channel on television and watched by the public, which has brought a very bad name to the Delhi Police.
The above act on the part of you SI Sohan Bariak, No. D-1352 amounts to gross-misconduct negligence and unbecoming of a police officer which renders you liable for the action punishable under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
2. After defence witnesses were examined and the applicant submitted defence statement the Inquiry Officer by his findings dated 23.01.2006 held the charge as substantiated. The applicant submitted his reply to the findings and the Disciplinary Authority imposed the punishment of dismissal by its order of 03.04.2006, which was upheld in appeal by order dated 11.08.2006. As such, the applicant is before us seeking setting aside of the order for conducting departmental inquiry, the punishment order, appellate order and the findings of the Inquiry Officer with direction upon respondents to reinstate him in service with all consequential benefits including seniority, promotion and pay & allowances.
3. The applicant has submitted that since his appointment as Constable on 01.08.1995, he has done his duties efficiently and has a satisfactory record. Yet, the charge against him has been upheld merely on suspicion and surmises ignoring the pleas taken by him before the Disciplinary and Appellate Authorities.
4. He complains that since he was Investigating Officer in the rape case against Baljeet Singh and his family as per FIR filed by Sh. Pardesi Ram, the father of the girl, the former were ill disposed towards him, which is why they have falsely implicated him for having demanded a bribe. In fact, Baljeet Singh and his son Monu are absconding and Jagwanti, his wife is on bail. The applicant was required to visit their house as part of his duties to bring the absconders to book. It is pointed out that the complainant and prosecution witnesses are the children, relatives and neighbors of Baljeet Singh and the testimony of such interested witnesses, could not be held against him.
5. It is stated that with regard to the CDs produced against him the original already stands destroyed after period of preservation as communicated by letter of 18.06.2005 by the TV Channel to the ACP/PG Cell placed at Annexure R-1 to the rejoinder. The CDs being dubbed and edited versions and the source of obtaining them being unclear, as per judgment in the case of B.E. Supply Co. Vs. Workers (AIR 1972 SC 330) such CDs cannot be relied upon in the absence of original. The evidence of PW-7 shows that he could not straight away confirm after seeing the CD that the applicant had demanded money. It was only after seeing it again that he confirmed it, which shows that the cassette was dubbed and edited. The deposition of Aaj Tak correspondent Sh. Dhirender Pundir is not on the basis of eyewitness but on the basis of recorded CD. Once the CD is not proved in the departmental inquiry, then such deposition cannot be admitted against the applicant. He was sitting at a distance from where the discussion was going on with the family of Sh. Baljeet Singh. As such, it was impossible for him to hear the same. Besides, Sh. Dhirender Pundhir admitted that the applicant had not demanded the money and that the CD was aired after editing. The authorities should have therefore applied their mind to the evidence that came on record instead of being influenced entirely by the CDs. Media people are only interested to make their channel popular and even the police is afraid to apprehend the absconders. It is submitted that the respondents in their order dated 29.07.2005 (Annexure A-10) have clearly stated that the voice in both the audio cassettes is not audible and as such it could not have been taken to prove anything. When there were a number of CDs with some of them allegedly showing demand for money and others not so, no conclusion could have been drawn from these. The statement of complainant itself shows that new CDs were being produced on every date of hearing. Therefore, without giving consideration to the deposition of DW-2 which was based on his technical expertise, and in the face of such dispute about the authenticity of the CDs, the same have been relied upon, which vitiates the departmental inquiry.
6. The applicant further submits that running away from the spot does not constitute misconduct as it would only help in avoiding any tussle with the general public after some trap has been laid to falsely implicate in a criminal case. It should be noted that he visited the house which was full of criminals who also tried to grab him. Even an innocent man, when accused of a serious offence, is likely to run away to avoid trouble as held in the case of C.N. Krishna Murty Vs. Abdul Subban (AIR 1965 MYS 128). Facts of the case have, however, not been discussed, nor copy of the judgment placed.
7. It has been stated that the grandfather of the complainant although alleged to be a witness to the charge that money was demanded in his presence, was not included in the list of witnesses, which has deprived the applicant of the opportunity of cross-examination and vitiates the proceedings. The Inspector, CBI, who conducted the preliminary inquiry was examined in the departmental inquiry but copy of his report has not been supplied to the applicant although it is relevant for his defence. The affidavit of ACP, who was PW-1 is not reliable as he could not even say as to who had recorded the statements in the preliminary inquiry.
8. The applicant submits that the Inquiry Officer has not recorded the reasons for his findings on each article of charge in violation of Rule 16 (IX) of the Delhi Police (Punishment & Appeal) Rules, 1980. He has also acted as Prosecutor and asked leading questions to bring new evidence on record instead of confining himself to seek clarification. After cross-examination by the Inquiry Officer, no opportunity was given to re-cross examine the witnesses.
9. The respondents have countered that after FIR No. 2578/04 u/s 363/376(G) IPC was registered on 08.04.2004 in P.S. Dabri, the applicant, who was Investigating Officer, went to the house of Baljeet Singh on 03.11.2004 in late hours and was caught on camera by the media Aaj Tak not only asking for money but also running away from the scene threatening the complainant and leaving behind his scooter after he realized that the conversation was being recorded. This shows ulterior motive on his part. If his visit was justifiable, there was no reason to be afraid of the recording and run away from there. The applicant instead of doing his duty was harassing the family for money, and failed to put the case in Court which was done by the subsequent Investigating Officer. The prosecution witnesses have supported the allegation against the applicant and the CDs produced during the departmental inquiry also indict him. The same pleas were taken in his representation against the report of the Inquiry Officer as were taken during the inquiry.
10. The respondents have further brought to notice that during his career, the applicant has been awarded 6 minor punishments of censure and 2 major penalties for misconduct on different occasions. It is admitted that although some editing in the CD was done, it does not mean that the sting shown was false and it was somebodyelse instead of the applicant, who was demanding money therein or was seen running away upon noticing the media team. PW-6, daughter of Sh. Baljeet Singh has clearly deposed that the CD was obtained by her from Aaj Tak channel and the applicant has failed to prove any deficiency or defect in it or give proof in support of his own version. Although the CD was destroyed, PW-10 Shri Dhirender Pundhir,, who was from the media channel supported the allegations. Even DW-2 admitted that the CD in which PW-10 Sh. Dhirender Pundhir was making commentary is the original one. The preliminary inquiry report of CBI was not cited as a prosecution document and as such it was not relied upon. PW-7, 8 and 9 were present when the media channel caught on camera the demand of money by the applicant and recorded the episode.
11. It is submitted by the respondents that the Inquiry Officer has afforded full opportunity to cross-examine the witnesses and only asked questions in terms of Rule 16(iii) from the witnesses. A perusal of the Inquiry report would show that the articles of charge have been discussed on the basis of the evidence on record to arrive at the findings. The deposition of DW-2 is mainly regarding dubbing and editing of CD, which cannot be held to be clinching so as to vitiate the entire departmental inquiry proceedings. The Disciplinary Authority and Appellate Authority have considered the entire material before them including the representation and appeal of the applicant before taking decision.
12. In his rejoinder, the applicant reiterates that the complainant was motivated against the applicant. He reveals that action under Section 83 of CrPC has already been ordered by the Court against those named in the FIR in question.
13. We have heard learned counsel for both sides and perused the pleadings. Learned counsel for the applicant has mainly questioned the validity of the telecast and the genuineness of the various CDs of the same event provided by the complainant stating that the original footage not being available it could not be said that the CDs were unedited and had not been tampered with. As such they could not be relied upon. He emphasized that technical expertise is required to detect editing and dubbing, which is brought out in the testimony of DW-2 and has not been properly appreciated. The Inquiry Officer has himself noticed the likelihood of editing and dubbing in the CDs. The applicant went to the house after recording DD entry and again on return, because he had nothing to hide.
14. Learned counsel for the respondents has stated that the Inspector C.B.I. who was to depose about the preliminary enquiry did not do so as the same was not relied upon. It is pointed out that the applicant does not dispute the presence of other persons at the house of Baljeet Singh on 03.11.2004, and he has not explained as to why he entered into unwarranted conversation with the daughter as mentioned in the charge. The applicant has been punished six times in the past. It is argued that the original footage is not usually supplied by news channels as it may get lost and the testimony of PW-10 from the Aaj Tak Channel clarifies the matter. It is noticeable that the Inquiry Officer has taken note of the deposition of the PWs and other facts as per discussion of evidence in the report and arrived at a finding that the charge was substantiated.
15. It is observed that the Inquiry Officer in his findings at Annexure A-4 has discounted the evidence of PW-I, found that of PW-2 to PW-5 to be of formal nature only but expressed doubts about the reliability of the CDs produced and held the charge as substantiated from the deposition of other PWs and evidence on record during the inquiry.
16. The order passed by the Disciplinary Authority, which had tentatively agreed with the findings of the Inquiry Officer, shows that he took into account the reply to the findings and answered the same after discussion. The Appellate Authority has similarly passed a reasoned and speaking order upon consideration of the grounds taken in appeal with reference to the material on record.
17. Before the Disciplinary Authority, the applicant was given a hearing in which he admitted that he visited the residence of complainant at late hours and saw there a team of Aaj Tak covering his conversation with Mrs. Rashmi, PW-6. He ran away leaving his scooter behind. There is no denial of such admission having been made. The Appellate Authority has recorded that all the material witnesses had stated that the applicant was demanding money.
18. The applicant says that he went to the house on 03.11.2004 to book the absconders. There is no mention of any advance information that he may have received of their likely presence there at late hours. On the other hand, Inspector CBI, PW-5 had stated that the complainant PW-6 and a relative informed them in the morning of 03.11.2004 about the applicants demand for money. They were told that the applicant reached late after CBI had left but Aaj Tak recorded his demand for money. The statement does not make any reference to the Preliminary Enquiry report, which seems to have been sent to the DCP. The applicant has not explained how this or result of cross examination of PW-5 has prejudiced his case because copy of PE was not given to him or proved. Nor has he established its relevance to his defence despite relying on judgment of Honble High Court of Delhi in CW-756-D/66 decided on 31.07.1969 in the case of Jagraj Singh Vs. The Delhi Administration, Delhi and Others. No other document has been mentioned nor the name of the witness whose cross examination has suffered on this account. Further, PW-10, Principal Correspondent Aaj Tak mentioned information being received on 03.11.2004 on phone about demand of money and his meeting the two child members of the family who confirmed it. He states that the Sub-Inspector came on scooter and started demanding money from the children. He was also threatening them. Upon realizing that the recording was going on and seeing the camera, he left his scooter and ran outside, which was also recorded. Moreover, during cross-examination, no contradiction of such testimony has been brought out and its main focus was on genuineness of the CDs that were produced. This witness had stated that whatever was aired, the complainant has given the same copy. PW-8 had stated that the applicant had been demanding many lakhs saying that it had to be distributed among higher ups but later settled for Rs.50,000/-. It is stated that he was present at the time of recording and so were PW-6 and PW-9. Deposition of PW-9 is on similar lines. Such consistency in giving evidence by itself would not be sufficient to conclude that these witnesses were tutored. While PW-8 was not cross-examined at all, PW-9 appears to have been cross-examined only with regard to the genuineness of the CD.
19. As inter-alia held by the Honble Supreme Court in Anil Phukan Vs. State of Assam [1993(3)SCC 282), mere relationship of the witness would not by itself be sufficient ground to discard the testimony. Again in Mallana and Others Vs. State of Karnataka [2007(8)SCC 523), the Apex Court observed that merely because witnesses are related or interested or not injured, their evidence cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars.
20. In the above situation, it is difficult to credit the applicant with having gone to the house merely to book the absconders. There is nothing to disbelieve that he ran away hurriedly leaving behind his scooter when he saw the recording was going on by camera of his inter-action with the family at the house. Although doubts have been cast upon the genuineness of the various CDs that were produced, it appears that some of them did show him demanding money. The testimony of the Principal Correspondent Aaj Tak, PW-10, that the applicant was demanding money and ran away on seeing the camera is not controverted by the statements of PW-6 , PW-8 and PW-9. In cross-examination, it is not revealed that PW-10 was sitting at such a distance that he could not have been able to see the goings on or hear the conversation. It would also not be reasonable to accept that the running away of the applicant leaving behind his scooter should be regarded as a normal re-action in the circumstances. The applicant did not produce the grandfather as a defence witness which he could have, if he needed to examine him as per Rule 16(v) of the Delhi Police (Punishment and Appeal) Rules, 1980.
21. The applicant protests but does not clarify as to which Article of Charge was passed by the Inquiry Officer without reasons being recorded for the findings arrived at. He also does not mention which questions were put by the Inquiry Officer that were not of a clarificatory nature and which is the evidence that should not have been brought on record thereby. The Rules clearly do not provide for a prosecutor and as such the Inquiry Officer has been given greater responsibility as envisaged in Rule 16. Our attention is not drawn to any objection raised by the applicant during the inquiry and response received, if any, regarding denial of opportunity for re-cross-examination.
22. The applicant has relied upon a judgment of this Tribunal in OA-2353/2006 dated 05.10.2007 wherein having examined the evidence it was emphasized that an edited version of video recording could not be made the sole basis and would require corroboration if it has to be accepted in the absence of original footage. In the present case, the Inquiry Officer has come to his conclusion based upon evidence other than that of the CDs as mentioned in the inquiry report. It is well settled that in a departmental inquiry the principle of preponderance of probabilities is followed and if there is some evidence it is not for the Court to reappreciate the same as if sitting in appeal since the scope of judicial review is limited and mainly concerned with the decision making process rather than the decision itself.
23. In the aforesaid situation we are not inclined to intervene on behalf of the applicant. The O.A. is therefore dismissed. No costs.
(N.D. Dayal) (M. Ramachandran) Member(A) Vice-Chairman(J) /vv/