Lt. Governor, Govt. Of Nct Of Delhi ... vs Ex. Const. Jasmer Singh And Ex. ...
2002 Latest Caselaw 512 Del

JUDGMENT

S.B. Sinha, C.J.

1. Both these writ petitions involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

2. However, the fact of the matter is being noticed from the file of CW 11/2000.

3. A judgment of the Central Administrative Tribunal in OA 2046/93 dated 21st July 1999 setting side an order of dismissal passed against the respondent herein with a direction to reinstate him in service and payment of consequential benefits, is the subject matter of the present writ petition.

4. The petitioner and his three co-employees were charge-sheeted stating:

"I, Raghubir Singh, Inspr. SHO/Kanjhawala charge you Const. Harpal Singh, No. 701/NW, Const. Jagminder Singh, No. 602/NW, Const. Kartar Chand No. 793/NW, Const. Jasmer Singh No. 600/NW while posted at Distt. Line North West, PS Ashok Vihar, Delhi, PP Prashant Vihar and PS Jahangirpuri respectively that on 12.5.1990 HC Balbir Singh No. 218/W PS Nangloi while on patrolling duty in the area of PS Nangloi noticed you all while doing illegal checking of vehicles near Lokesh Cinema, Nangloi on Rohtak Road with malafide intention and ulterior motive HC Balbir Singh No. 218/W apprehending all of you but Const. Jasmer Singh, No. 600/NW managed to slip from there. All of you had admitted in writing before SHO PS Nangloi that you were checking the vehicles in connivance with one Dharma Ram of Bahadurgarh and one contractor of country made liquor in Sohati in Haryana.

The aforesaid act of all of you amounts to gross misconduct which renders all of you liable to be dealt with departmentally action under Section 21 of Delhi Police Act of 1978."

Summary of allegations against the petitioner is as follows:

"SUMMARY OF ALLEGATIONS

It is alleged that on 12.5.1990 HC Balbir Singh of PS Nangloi noticed constables (i) Harpal Singh No. 701/NW (ii) Jagminder Singh 602/NW

(iii) Kartar Chand No. 793/NW and (iv) Jasmer Singh No. 600/NW doing illegal checking of vehicles near Lokesh Cinema Nangloi with malafide intention and ulterior motive. HC Balbir Singh apprehended them except Ct. Jasmer Singh No. 600/NW at spot. Const. Jasmer managed to escape from the spot. All these three constables have admitted in writing before SHO/PS Nangloi that they were checking the vehicle in connivance with one Dharma Ram R/o Bahadurgarh and one contractor of country liquor in Sehari Haryana.

The above act on the part of them amounts to grave misconduct which renders them liable to be dealt with departmentally under Section 21 of Delhi Police Act 1978.

Sd/-

SHO/PS Kanjhawala

2.7.1999."

5. A joint departmental proceeding was initiated against the four delinquent officers including the respondent. The Enquiry Officer in his report, without discussing the material on record, purported to be relying on or on the basis of the evidence of two witnesses who were examined and further having regard to a written confession of three other defaulters, held:

"I have carefully gone through the prosecution evidence and documents on file. From the statements of both the PWs and written confession of the 3 defaulters namely Harpal Singh No. 701/NW, Const. Kartar Chand No. 793/NW and Jagminder No. 602/NW has fully proved the charge against all 4 defaulters."

6. The disciplinary authority also by an order dated 25th February 1992 held:

"6. Such acts of indiscipline besides being bad in itself but also bad examples to others and untolerable in the disciplined force. I agree with the EO that the charge against these constables is fully proved. They do not deserve any leniency and it is not desirable to retain them in the force. Constables Harpal Singh, 701/NW, Jasmer Singh, 600/NW and Kartar Chand, 793/NW are hereby dismissed from service with immediate effect. Their suspension period w.e.f. 18.5.90 to the date of issue of this order will be treated as period not spent on duty for all intents and purposes."

7. The petitioner preferred an appeal thereagainst. The appellate authority held:

"It is also not correct that the EO had not given reasons for proving the charge in his findings. No previous statement has been considered in the DE to prove the charge as there is enough evidence to prove the charge levelled against them which has been fully established during the course of DE. In the present instenace, these policemen instead of providing a sense of security to the public were indulging in acts of extortion on the road. They have no business to stop the vehicles and extract money out of the vehicle drivers. Such misconduct if it goes unpunished will invoke serious criticism by the public who would be justified in believing that the police department is not serious about controlling such men and their activities. This will lead to act only justifiable erosion of the credibility of Police but will also send totally wrong signals to other Policemen who will consider similar activities as permissible activities condoned by the Department. I am afraid there is no redeeming feature in the appeal that warrants a lenient view being taken of this instance. The punishment is commensurate with the misconduct and there has been no violation of any principle of natural justice. The appeal is therefore, rejected."

8. The learned Tribunal, having regard to the decision of the apex court in Anil Kumar v. Presiding Officer and Ors., held that as the impugned orders are not speaking ones and even the Enquiry Officer has not given any reason in support of his findings, the disciplinary proceedings are held to be vitiated in law.

9. Ms. Avnish Ahlawat, learned counsel appearing on behalf of the petitioner would submit that in this case, witnesses had been examined before the Enquiry Officer. The said witnesses had not been cross-examined and in that view of the matter, the learned Tribunal must be held to have committed an illegality in passing the impugned order.

10. Mr. Sandip Sethi, the learned counsel appearing on behalf of the respondents, on the other hand, supported the judgment of the learned Tribunal.

The learned counsel would contend that when the Enquiry Officer himself has not assigned any reason, the question of the disciplinary authority agreeing therewith does not arise inasmuch as in such a case the disciplinary authority is bound to arrive at his own finding on the basis of the material on record.

11. The respondent, inter alia, contended that (a) he had not been given an opportunity to cross-examine the witnesses and an ex-parte enquiry had wrongly been held; (b) even the request made by the petitioner before the disciplinary authority to give an opportunity to cross-examine the witnesses and to produce his defense, had not been paid any heed to; and (c) the disciplinary authority or the appellate authority also did not grant an opportunity of personal hearing to him.

12. The matter relating to the disciplinary proceedings is governed by the Delhi Police (Punishment and Appeal) Rules, 1980.

Rule 10 of the said Rules reads thus:

"10. Maintenance of discipline--The previous record of an officer, against whom charges have been proved, if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dismissal from service. When complete unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank."

13. From what has been noted hereinbefore, it appears, the respondent had questioned the propriety of holding an ex-parte enquiry against him. The authorities had not arrived at a finding of fact that the delinquent officer/respondent did not participate in the enquiry despite knowledge thereof. The apex court in Anil Kumar v. Presiding Officer and Ors. (supra), has held:

"It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judiciously. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India , this court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard."

14. In the instant case, the enquiry officer purported to have proceeded on the basis of confession made by the co-delinquent officers of the respondent. The respondent did not make any confession. He allegedly had escaped. Thus, the purported confession made by his co-delinquent employees could not have been applied against him.

15. The function of the enquiry is a judicial one. Having regard to the principles contained in Article 21 of the Constitution of India, he was bound to arrive at a finding on the basis of the evidence on record. He, as noticed hereinbefore, wrongly invoked the purported confession of three others namely Harpal Singh, Jagminder Singh and Kartar Chand. It is not known how far he was prejudiced by the confession of the afore-mentioned three constables.

16. In the facts and circumstances of this case, we are of the opinion that it was incumbent on the part of the enquiry officer to analyze the evidence adduced by the department before him so as to arrive at an independent conclusion as to how and in what manner the misconduct alleged against the respondent had been proved. Evidently, the confession of three other co-employees of the respondent could not have been used against him except in term of the provisions of the relevant rules. The disciplinary authority, therefore, was bound to apply his own independent mind and arrive at a finding on the basis of the materials on record as to whether the respondent was guilty of commission of the misconduct or not. He could not have simply agreed with the finding of the enquiry officer inasmuch as there is no question of any agreement of a finding which is based on no reason.

17. The appellate authority has also not analysed the evidences independently nor did he arrive at his own finding of fact. He has also not assigned any reason in support of the said order.

18. In this view of the matter, we are of the opinion that the order of dismissal impugned before the learned Tribunal has rightly been held to be not sustainable.

19. But we do not agree with the learned Tribunal that no further departmental proceedings should be initiated. Having regard to the fact that the departmental proceedings had been found to be vitiated for non-compliance of the principles of natural justice, we are of the opinion that it was a fit case where the matter should have been remitted back to the enquiry officer.

20. Keeping in view the facts and circumstances of this case, there cannot be any doubt having regard to the allegations made by the respondents herein that he has seriously been prejudiced as principles of natural justice had not been complied with.

21. We, therefore, in modification of order passed by the learned Tribunal direct that the disciplinary authority shall reopen the departmental proceedings so far as the respondent is concerned and in the event the same enquiry officer is not available, shall appoint another enquiry officer and permit him to cross-examine the witnesses on behalf of the department and to examine his own witnesses on his own behalf.

22. The disciplinary authority thereafter shall pass an appropriate order in accordance with law. However, till an appropriate order is passed, the respondent herein shall continue to remain under suspension.

23. The departmental proceedings may be completed at an early date and preferably within a period of four months from the date of communication of this order. The respondents shall render all cooperation with the authorities in early completion of the enquiry proceedings failing which it will be open to the petitioners to take recourse to such action as is permissible in law.

24. For the reasons afore-mentioned, this writ petition is allowed in part and to the extent mentioned hereinbefore but in the facts and circumstances of this case, there shall be no orders as to costs.