Central Administrative Tribunal - Delhi
K P Singh vs Comm. Of Police on 2 August, 2016
Central Administrative Tribunal
Principal Bench
OA No.1679/2013
New Delhi, this the 2nd day of August, 2016
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. V.N. Gaur, Member (A)
Shri Kishan Pal Singh, ASI (Retd.),
S/o Late Shri Narpat Singh,
Aged about 60 years,
R/o F-3, Gali No.1,
25 Ft. Road, Khajuri Khas,
Delhi-110094.
...applicant
(By Advocate : Shri Nilansh Gaur )
Versus
1. Government of NCT of Delhi,
Through its Chief Secretary,
Delhi Sachivalaya,
I.P. Estate,
New Delhi.
2. Joint Commissioner of Police,
South Eastern Range,
Police Headquarters, MSO Building,
I.P. Estate,
New Delhi.
3. Additional Dy. Commissioner of Police,
East District, Shahdara,
Delhi.
...respondents
(By Advocate : Shri N.K. Singh for Ms. Avnish Ahlawat)
ORDER (ORAL)
Hon'ble Mr. V.N. Gaur, Member (A) The applicant has filed this OA seeking the following reliefs:- 2 OA No.1679/2013
"8.1 To set aside the penalty order (Annexure A-1), Appellate Order (Annexure A-2) and the findings of the enquiry officers (Annexure A-3).
8.2 To direct the respondents to restore to the applicant his forfeited service and reduction in pay as on 31.12.2012 alongwith arrears and thereafter on restored pay refix the pension of the applicant after considering him for promotion as Sub- Inspector w.e.f. the date of promotion of his juniors i.e. 20.12.2012 with arrears thereof.
8.3 Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case.
2. A departmental enquiry was initiated against the applicant on the basis of the following summary of allegations :-
"Whereas a case FIR No.344/08 U/S 363/366/376/506/34 IPC, P.S. Mayur Vihar was registered against Shri Sonu Tank S/o Shri Hari Chand R/o 21/100, Trilok Puri, Delhi-91 and one Mangal on the complaint of Smt. Meera W/o Shri Shiv Narayan Dubey R/o 110, Gali No.1, Gupta Enclave, Vikas Nagar, Delhi mother of victim Ms. Ruchi. Whereas ASI K.P. Singh, No.242/D, the I.O. of this case misled the Court by furnishing a fake report that the complainant Smt. Meer and her daughter were not traceable. Whereas, ASI Kishan Pal Singh had the mobile No. of Smt. Meera but he did not make sincere efforts to produce them in the Court. Whereas as explanation was sought from ASI Kishan Pal Singh and whereas he submitted his reply and pleaded that at the time of registration of the case, Smt. Meera had furnished her mobile phone No. as 9212969029 . He further submitted that he had visited the house of Smt. Meera on the direction of the Hon'ble Court but she was not found residing at the given address and that he made sincere efforts to trace Smt. Meera and her daughter Ms. Ruchi but their whereabouts could not be ascertained. The mobile number of Smt. Meera given at the time of registration of the said case, was found switched off. Whereas, an enquiry into the matter was got conducted through Inspector/P.G. Cell, East Distt. And the veracity of claim of ASI Kishan Pal Singh was also checked. Whereas it was revealed that ASI Kishan Pal Singh was in possession of the current mobile No.9654336375 of Smt. Meera 30 days before the acquittal of accused Mangal and the ASI had made two calls from his mobile 3 OA No.1679/2013 No.9350072145 on her mobile during these 30 days i.e. first on 05.02.11 and 2nd on 26.02.11, which proves that he knew the whereabouts of complainant Smt. Meera. Whereas he misguided the Court by submitting a false report that Smt. Meera and her daughter Ms. Ruchi were untraceable while he was in contact with them and knew their whereabouts. Whereas on perusal of the record, it has been found that the reply to the notice seeking explanation was completely unsatisfactory and misleading as he was conniving in the acquittal of the accused Mangal.
The above act on the part of ASI Kishan Pal Singh No.242/D (PIS No.28730219) amounts to gross misconduct, dereliction in the discharge of his official duty and unbecoming of a police official, which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980."
3. The applicant denied all the charges following which a departmental enquiry was conducted. A copy of the report of Enquiry Officer was served on the applicant and he submitted his reply. The Disciplinary Authority after considering the report of EO and reply of the applicant decided to impose a penalty of forfeiture of five years approved service permanently entailing proportionate reduction in his pay by five stages vide order dated 03.12.2012. The applicant superannuated on 31.12.2012. The appeal submitted by the applicant was also rejected by the Appellate Authority after giving him a personal hearing. The applicant has challenged the impugned orders mainly on the grounds that :-
(i) The penalty imposed on him just on the eve of his retirement was harsh and has effected his pensionary benefits.4 OA No.1679/2013
(ii) The EO has not dealt with the contentions raised by him in is defence statement.
(iii) It was a case of 'no evidence' but the EO on suspicion, surmises and conjectures, held him guilty of misleading the Trial Court, by submitting a false report.
(iv) He had already submitted a report to the Trial Court on 29.10.2010 and 22.02.2011 that the two lady witnesses had shifted to some other place without giving their new address, while the alleged talk of the applicant with Smt. Meera was on 26.02.2011 after the submission of report to the Trial Court.
(v) The respondents never produced the details of calls and its recording from the operator, in the absence of which EO could not have arrived at a definite conclusion.
(vi) The Trial Court never passed any strictures against him that he made any false statement. Therefore, a quasi-judicial authority i.e. EO could not have in ventured into judicial arena to allege misconduct on that account.
(vii) The two lady witnesses when examined in DE had not deposed that they had disclosed their new address to him during her conversation on phone.
5OA No.1679/2013
(viii) The order of Disciplinary Authority is a non speaking order without dealing with the contentions raised by him.
4. The learned counsel for applicant submitted that the accused Sonu was acquitted by the Hon'ble High Court of Delhi on 20.01.2011 and accused Mangal was acquitted by learned Additional Sessions Judge, Karkardooma on 04.03.2011. The case against the accused Sonu was based on the statement of the prosecutrix on 18.11.2008, under Section 161 Cr.P.C., which was not supported by her statement u/S 164 Cr.P.C, wherein she had exonerated Sonu categorically saying that she had left her parental house on her own accord and Sonu was not responsible for that. Once the accused persons have been acquitted on the basis of 164 Cr.P.C., statement of prosecutrix, the applicant cannot be charged for not able to produce the prosecutrix and the complainant in the original case. The applicant made his best efforts to serve the court summons issued for 13.11.2010, 29.10.2010 and 22.02.2011 on the witnesses and submitted his report to the Trial Court. He had also brought out the efforts made by him in his defence statement submitted to the Enquiry Officer on 30.07.2012, but the same was not considered either by the Enquiry Officer or by the Disciplinary Authority. The applicant conducted the investigations properly and with due diligence and he was able to nab the accused persons. He only could not serve the process on the two lady witnesses. The 6 OA No.1679/2013 Disciplinary Authority ignoring all his contentions imposed a harsh penalty on the applicant. The Appellate Authority also did not appreciate the submissions of the applicant and passed a non- speaking order on 25.02.2013. The learned counsel, accordingly, prayed for the relief as mentioned in the OA.
5. The learned counsel for respondents on the other hand contested the submission made by the learned counsel for the applicant and said that the learned Additional Sessions Judge in the order dated 04.03.2011, had observed that the complainant and the prosecutrix remained untraceable despite repeated opportunities given to the prosecution for services to be executed through IS/SHO/DCP concerned. The other witnesses were formal witnesses or the police witnesses and no purpose would have been served to examine them in the absence of deposition of complainant as well as prosecutrix. The case could not proceed further because of the failure of the applicant in not able to serve the summons to the complainant and the prosecutrix. The Court had, therefore, relied only on the statement of the prosecutrix under Section 164 Cr.P.C. This was taken note of by the department and departmental enquiry was ordered. The departmental enquiry had been conducted in accordance with the rules and principles of natural justice and after giving due opportunities to the applicant to defend himself. The Disciplinary Authority has passed the order of 7 OA No.1679/2013 punishment on the basis of the finding of the Enquiry Officer. It is a speaking order against which the applicant filed the appeal and the appeal was also rejected by the Appellate Authority on merits. Therefore, there is no ground for the applicant to question the impugned orders.
6. We have heard the learned counsels for the parties and perused the record. The defence of the applicant revolves around the contention that respondents have not produced details of calls and recording from the concerned mobile operator. It has been stated that he never called Mrs. Meera and the two calls which have been referred to in the summary of allegations have not been proved. The first call on 05.02.2011 was not made by him at all, it was made by someone else and second call was only to enquire as to who had called and that too after he had submitted his report to the Trial Court.
7. These contentions of the applicant have been dealt with by the Disciplinary Authority in the order dated 03.12.2012. The relevant portion of the said order is reproduced below :-
"I have carefully gone through the findings of the E.O., the D.E. file, the statements of the PWs, DWs, defence statement of delinquent and the record available in the DE file. The delinquent ASI was also heard in OR on 21.08.2012 and on 24.08.12. The oral deposition and perusal of records shows that the plea taken by the ASI in his representation is not entirely convincing. Whereas, as per CDR of mobile of defaulter ASI and Smt. Meera (complainant of case FIR No.344/08) 8 OA No.1679/2013 available in record, it has been proved that defaulter ASI Kishanpal Singh was in possession of the current mobile no.9654336375 of Smt. Meera 30 days before the acquittal of accused Mangal and he had made two calls from his mobile no.9350072145 on her mobile during these 30 days i.e. first on 05.02.11 and 2nd on 26.02.11, which proves that he knew the whereabouts of complainant Smt. Meera. Whereas conversation lasting 55.7 seconds and 106.7 seconds respectively simply can not be believed to have been made to ascertain the identity of the caller at the other end. It has also been noted that only one short duration call was made by Smt. Meera to delinquent ASI Kishanpal Singh, No.242/D on 26.02.2011. Whereas, it is noted that the delinquent ASI has not been able to explain the reasons for an outgoing call lasting 55.7 seconds to Smt. Meera on 05.02.2011. The delinquent has taken pain to dispute the testimony of PW-3 Inspr. Vinay Kumar, No. D/1213, P.G. Cell, East District by raising very technical questions. He has, however, not contested the fact of the telephone calls mentioned above. Whereas the delinquent misguided the Court by submitted a false report that Smt. Meera and her daughter Ms. Ruchi were untraceable while he was in contact with them and knew their whereabouts. It is a very strange coincidence that the 2nd report on service of process was submitted by I.O./ASI K.P. Singh, No.242/D on 22.02.11 that the complainant and prosecutrix were not found traceable at the given address, and the call were also made only in the month of Feb., 2011. Whereas it is very ironical and painful to note that Smt. Meera and her daughter Km. Ruchi, the complainant and the victim respectively in case FIR No.344/08 u/s 363/366/376/506/34 IPC, PS Mayur Vihar have been produced as defence witnesses by the delinquent. It is also very painful to note that had the same alacrity been shown by the delinquent in tracing the complainant and the victim during the trial in case FIR No.344/08 u/s 363/366/376/506/34 IPC, PS Mayur Vihar, the trial would not have resulted in the acquittal and discharge of two accused persons. The professional misconduct shown by the delinquent ASI Kishanpal Singh, No.242/D is therefore, considered to be unpardonable."
8. The Disciplinary Authority has, thus, adequately dealt with the contentions of the applicant. Further, it is noticed that while the applicant is eloquent in his submissions that he never knew the whereabouts of complainant and the prosecutrix, when he was 9 OA No.1679/2013 asked by the Court to serve the summons, he was able to produce those two ladies as defence witnesses during the departmental enquiry. The argument that his alleged talk with Smt. Meera on 26.02.2011 was after he had submitted the report of the prosecutrix being untraceable, does not hold water because he had called on the mobile of the prosecutrix first on 05.02.2011 and second time on 26.02.2011. In any case, the Trial Court had passed order on 04.03.2011. Thus, he had ample time to bring to the notice of the Court that he was aware of the address of the complainant and the prosecutrix. Further, the applicant has wrongly stated that there was no stricture passed by the Trial Court. In the order dated 04.03.2011, the Court had observed that "whereas the complainant as well as the prosecutrix remained untraceable despite repeated opportunities given to the prosecution for their service to be executed through IO/SHO/DCP concerned." Admittedly, the task of serving the process was entrusted to the applicant and he failed to execute the same. Considering the aforementioned facts, we find that the applicant has not been able to establish any of his grounds that would persuade us to interefere in the orders passed by the Disciplinary or Appellate Authority.
9. The law is well settled that it is beyond the jurisdiction of the Tribunal to re-appreciate the evidence produced in disciplinary enquiry. The Enquiry Officer and other departmental authorities 10 OA No.1679/2013 have to take a decision with regard to the guilt of the delinquent and quantum of punishment, keeping in view the preponderance of probability.
10. We agree at the outset with the submission of the respondents regarding the limitation on the scope of judicial scrutiny in a departmental proceeding. In Union of India Vs. Sardar Bahadur (1972) 4 SCC 618, (supra), the Hon'ble Supreme Court held that :-
"...if there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion of the authority that the officer is guilty, it is not the function of the High Court in exercise of its powers under Art. 226 to review the materials and arrive at its own conclusion. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. In this case also the Supreme Court held that if the order of the punishing authority can be supported on any findings as to substantial misdeneanor for which the particular punishment can be imposed, it is not for the Court to consider whether the charge proved alone would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed was just and proper, provided it is justified by the ruled and is considered to be appropriate having regard to the misdemeanor established. Unless the Court finds that the punishment inflicted is shocking to Court's conscience, Court does not want to interfere."
11. In the State of West Bengal Vs. Anil Kumar Shaw AIR 1990 SC 2205, it was held that in a quasi-judicial proceeding, Courts/Tribunals would be slow to interfere with findings of facts unless such findings are based on no evidence or be sent with surmises or conjectures.
11OA No.1679/2013
12. In Union of India v Manab Kumar Civil Appeal No. 2175 of 2011, the Hon'ble Supreme Court observed thus :-
"It is well settled that the High Court while exercising the power of judicial review from the order of the disciplinary authority does not act as a court of appeal and appraise evidence. It interferes with the finding of the enquiry officer only when the finding is found to be perverse. We are of the opinion that the Division Bench of the High Court erred in setting aside the order of the learned Single Judge and quashing the order of compulsory retirement. The finding recorded by the enquiry officer is based on the materials on record and on proper appreciation of evidence which cannot be said to be perverse calling for interference by the High Court in exercise of its power of judicial review."
13. In Govt. of Tamil Nadu Vs. A. Rajapandian 1995 SCC (L&S) 292, Hon'ble Supreme Court ruled that Tribunal had re-appreciated the evidence and come to its own conclusion that there were no sufficient material to find the employee guilty of misconduct and that the Tribunal fell into patent error and acted wholly beyond its jurisdiction as an Appellate forum which it was not.
14. The Hon'ble Supreme Court in High Court of Judicature at Bombay through its Registrar v. Uday Singh s/o Ganpatrao Naik Nimbalkar & others, JT 1997 (5) SC 298 has held "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 or where the conclusion or finding 12 OA No.1679/2013 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 findings and mould the relief so as to make it appropriate to the facts of each case". The relevant excerpt of the said judgment reads as under:-
"12. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the Disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is; whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved ? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the 13 OA No.1679/2013 statement to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises; whether their evidence is acceptable or not? In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When the evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.
13. Under these circumstances, the question arises:
whether the view taken by the High court could be supported by the evidence on record or whether it is based on no evidence at all ? From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is; what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since 14 OA No.1679/2013 the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference.
14. The appeal is accordingly allowed. The judgment of the Division Bench of the High Court stands set aside and that of the High Court dismissing the respondent from service stands upheld. No costs."
15. In B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, the Three Judge Bench of Hon'ble Apex Court held that the judicial review is not an appeal from a decision but a review of the manner in which the decision has been made. Powers of judicial review is exercised to ensure that the individual receives a fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. Relevant portion of the said judgment reads as under:-
"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.
14. In Union of India v. S. L. Abbas (1993) 4 SCC 357 :
(1993 AIR SCW 1753), when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of 15 OA No.1679/2013 transfer. The Tribunal could not in such circumstances, interfere with order of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551 : (1992 AIR SCW 2830), it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant, recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court to which two of us (B. P. Jeevan Reddy & B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
15. It, is, therefore, difficult to go into the question whether the appellant was in possession of property disproportionate to the known source of his income. The finding of the disciplinary authority and that of Inquiry Officer are based on evidence collected during the inquiry. They reached the findings that the appellant was in possession of Rs. 30,000/- in excess of his satisfactorily accounted for assets from his known source of income. The alleged gifts to his wife as stridhana and to his children on their birthday were disbelieved. It is within the exclusive domain of the disciplinary authority to reach that conclusion. There is evidence in that behalf.
16. It is true a three-Judge Bench of this Court in Krishanand's case (supra) (AIR 1977 SC 796), held in para 33, that if the excess was comparatively small (it was less than 10% of the total income in that case), it would be right to hold that the assets found in the possession of the accused were not disproportionate to his known source of income raising the presumption under sub-section (3) of Section 5. It is to be remembered that the said principle was evolved by this Court to give benefit of doubt, due to inflationary trend in the appreciation of the value of the assets. The benefit 16 OA No.1679/2013 thereof appears to be the maximum. The reason being that if the percentage begins to rise in each case, it gets extended till it reaches the level of incredulity to give the benefit of doubt. It would, therefore, be inappropriate, indeed undesirable, to extend the principle of deduction beyond 10% in calculating disproportionate assets of a delinquent officer. The salary of his wife was not included in the assets of the appellant. The alleged stridhana of his wife and fixed deposits or gifts of his daughter, in appreciation of evidence, were held to be the property of the appellant. It is in the domain of appreciation of evidence. The Court/Tribunal has no power to appreciate the evidence and reach its own contra conclusions."
16. In Ranjit Thakur Vs. Union of India (1987) 4 SCC 611, the Hon'ble Supreme Court held that :
"There, the Court laid stress on irrationality and perversity of the decision and said they are the recognised grounds for judicial review. The Apex Court noticed three heads or grounds on which administrative action is subject to control by judicial review. They are "illegality", "irrationality" and "procedural impropriety".
To these, the Court agreed that the fourth potential ground is "proportionality". The fact that the principles of "proportionality" is already a recognised ground can be seen from the Supreme Court's interference in matters of imposition of penalties. However, such interference is sparingly made."
17. In view of the foregoing and keeping in view the entire conspectus of the case, we do not find any violation of the disciplinary procedure under Delhi Police (Punishment & Appeal) Rules, 1980 or the principles of natural justice. Accordingly, the OA being devoid of merits is dismissed as such. No costs.
( V.N. Gaur ) ( Justice M.S. Sullar )
Member (A) Member (J)
'rk'