Tara Chand vs Govt. Of Nct Of Delhi And Ors.
2002 Latest Caselaw 1186 Del

JUDGMENT

S.B. Sinha, C.J.

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

FACTS:-

2. The Complainant Mr. Prubjit Singh Manku, a holder of British Passport bearing No. 015538198 along with his relative Mr. T.S. Jitla was going to Jaipur from Indira Gandhi International Airport. They were stopped on the way by the respondents who checked their luggage and put them under threat of arrest; where after allegedly a sum of 35 pounds was extorted from them.

3. On the basis of the said complaint, the Respondent No. 2 by an order dated 6.10.1997 initiated a departmental proceeding against the Petitioners wherein the inquiry officer examined P.W.-1, Constable Devis V.J. and P.W.-2, Trilok Singh Titla but the complainant Prubjit Singh Manku did not appear before the Enquiry officer.

4. The Petitioner on 14.5.1998 in response to the notice to show-cause submitted his written statement stating that the taxi vide No. DLT-3808 of Mr. Mahinder Singh, Taxi Driver broke down and the Police Control Room (PCR) driver allegedly helped him.

5. The inquiry officer in his reported dated 7.7.1998 held that the charges against the petitioner and two others have been proved. The respondent No. 3-Deputy Commissioner of Police issued a Show Cause Notice to the Petitioner and two others on 14.8.1998 to show-cause as to why the delinquent officers should not be dismissed from service whereupon representation were filed by the delinquent officers. The respondent No. 3 vide his order dated 2.12.1998 dismissed the petitioners' representation. The other two co-accused did not submit their reply in defense.

6. The petitioner preferred statutory appeal before Respondent No. 2 against the order of punishment dated 2.12.1998. The Respondent No. 2 vide his order dated 8.9.1999 dismissed the statutory appeal preferred by the Petitioner.

7. The appointing authority by an order dated 2.12.1998 passed an order dismissing the petitioners from service. Questioning the same, the petitioners preferred the Original Application before the Central Administrative Tribunal, which was dismissed by reason of the impugned judgment dated 16.1.2001.

8. Mr. Shyam Babu, learned counsel appearing on behalf of the petitioners, inter alia, would submit that the learned tribunal committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that as the complainant was not examined, it should have been held that no evidence had been brought on records to arrive at a finding that the charges have been proved. According to the learned counsel the Inquiry Officer committed a serious illegality in so far as he relied upon a part of the evidence PW.2.

9. The learned counsel has taken us through the deposition of the said witnesses and submitted that keeping in view the fact that PW 2 neither cold identify the petitioners nor being a witness of extortion of the amount, the inquiry officer could not have held the petitioners guilty of the charges of misconduct levelled against them. The learned counsel would contend that no cogent or sufficient reason was assigned by the inquiry officer or by the disciplinary authority in support of the findings arrived at by there against the petitioners.

10. The learned counsel on behalf of the respondent, on the other hand, would contend that the number of the vehicle (Gypsy) which was being used by the delinquent officers was disclosed in the complainant's petition. PW 1 proved that the said vehicle was being used by the petitioners. It was pointed out that the complaint was received through the uncle of the complainant who was examined in the disciplinary proceeding as PW 2.

11. The complainant was a schoolboy. He at the relevant time was 15 years old. A bare perusal of the said complaint would clearly show the manner in which the extortion took place. In a case of this nature, principles of natural justice must be used some flexibility.

12. The petitioners along with the writ petition had not filed the complaint petition. A copy of the said complaint petition had been placed before us by the learned counsel for the respondent, the genuineness whereof has not been questioned.

13. The said complaint is in the following terms:-

"To

The Commissioner of Police,

New Delhi

Sub: Complaint of Police behavior

Dear Sir,

I Prubjit Singh Manku holder of British passport No. 015529198 arrived at Delhi Airport by Air India flight No. AI-1112 from London in early hours of 30-12-96 to visit my relatives in Jaipur (namely, Mr. T.S. Jittla of 13-A Jittle Cottage, Adarsh Basti, Tonk Phatak, Jaipur-302018, Rajasthan, Phone No. 0141-514903).

My above uncle and his family received me at the airport and we left for Jaipur at 3.30 a.m. by car, reg. No. RPI 5352. As we were about to turn right at the traffic lights at the T-junction of NH-8, a police gypsy with two policemen approached us at the red traffic signal and stopped us. The gypsy No. was DL-1A-0407. One officer asked us where we are coming from and told my uncle and myself to come out. He seemed drunk as he smelt of liquor. He asked for my passport which we showed to him and then he asked if I carried any cash and gold biscuits or jewellery. He asked my pockets and took my wallet out in which I was carrying 75 pounds. He asked me why that amount had not been entered in my passport. I told him I did not know or anybody did not tell me if it needed to be entered in my passport. He threatened to keep all my cash and passport and we would have to appear in court two days later, if I did not give him 50 pounds from what I had. As he seemed drunk we did not think it fit to argue with him but only plead with him.

Eventually, he took 35 pounds off me before he let us go leaving me with only 40 pounds. The name of one of the policeman is 'Meena', as we overheard him being called by this name by the other policeman. They harassed us for about half an hour and when we left they were grinning.

I am of 15 years old and I had saved my pocket money over many months to spend during my vacation to India. This is my first visit ever and I have had this nasty, unexpected experience. I still have not overcome this horrible experience which I might not forget for years ahead and anytime I see any Indian policemen that scares me.

I hope you can do something to help me get my money back and punish those nasty, horrible policemen.

I am returning back home on 26.1.1997. My address in the U.K. is 79 Coombe Rise, Oadby, Leicester, LEP 51U, U.K. You can either contact me at the above address or through my uncle at the Jaipur address.

I shall be most grateful for your help and for retrieving my hard saved money.

Hoping for a quick response.

Yours faithfully,

(Prubjit Singh, Manku)"

14. On the basis of the said complaint, the following charge-sheet was issued against the petitioners:

"I, Suresh Chandra, Inspr./DE Cell, charge you HC Tara Chand, No. 366/PCR (PIS No. 28730640) I/C PCR Van No. DL-1A-0407 (Call Sign Z-28), HC (Dvr.) Ram Karan, No. 3895/PCR (PIS No. 28901566) and Ct. Anil Kumar No. 2430/PCR (PIS No. 28840725) -

Gunman, that while on duty at above PCR van stationed at Centur Hotel, IGI Airport, New Delhi from 8.00 PM to 8.00 AM on the night of 29/30.12.96 at about 3.30 AM. All of you had stopped the car of complainant Shri Prubjit Singh Manku, holder of British Passport No. 155538198 C/O. Shri T.S. Jitla R/O. 13-A Cottage Adarsh Basti, Tonk Fatak, Jaipur (Rajasthan) and checked his luggage etc., and put him under threat of his arrest. All of you had extorted 35 pounds from the complainant. Moreover, he was harassed and misbehaved.

The above act of causing harassment, misbehaved and extortion of money from the complainant by you HC Tara Chand, No. 366/PCR, Ct. Anil Kumar No. 2430/PCR and HC (Dvr.) Ram Karan, No. 3895/PCR amounts to grave misconduct deliberate over stopping the jurisdiction of their part which amounts the act of unbecoming of police officials liable to be punished under Section 21 of the Delhi Police Act 1978."

15. It is now well settled that the principles of natural justice must be applied having regard to the facts and circumstances of each case. It must not be applied rigidly. The application of the principles of natural justice and the extent thereof may very from case to case. A departmental proceeding should not be equated with a criminal trial. The standard of proof required for the purposes of holding the delinquent officers guilty of the charges of misconduct would be preponderance of probability. In a case of this nature where the police officers were involved, the circumstantial evidence would also have a great role to play. The court can take judicial notice of the fact that normally people are afraid of deposing against the police authorities. Strict rules of evidence has no role to play in a disciplinary proceeding.

16. The presence of the petitioner at the site is not disputed. It has been brought on records that they have been on duty at that time and had been using the police vehicle.

17. PW 1 has proved that in the night in question the petitioners were posted in the area with the gypsy designated as Z-28 PCR van.

18. Learned Tribunal went through the records of the disciplinary proceedings and examined all the materials on record and arrived at the finding in the following terms:

"From the aforesaid discussion of the facts and the circumstances of the incident which has led to the dismissed of the applicant, we find that the fats that the vehicle in which the complainant and the others were traveling was stopped by the applicant and the other delinquent officials on the pretext of checking, a sum of 35 pounds was extorted from the complainant, one of the police officials, who had so stopped the vehicle of the complainant was a 'Meena' and the police Gypsy utilized by the applicant and the other delinquent officials was a PCR van and further that the applicant and the delinquent officials were actually on duty at the place of the incident on 29/30 December, 1996 night are sufficiently clearly established on the basis of preponderance of probabilities."

19. It is not in dispute that the terms and conditions of the service of the petitioners are governed by the provisions of the Delhi Police Act 1978 and the rules framed there under. The disciplinary proceedings against a police officer is conducted in terms of the Delhi Police (Punishment and Appeals) Rules 1980.

20. Submission of Mr. Shyam Babu, the learned counsel for the petitioner to the effect that a departmental proceeding could be initiated only upon compliance of the provisions contained in Sub-rule 1 of Rule 15 of the Rules, cannot be accepted.

21. It is not in dispute that the necessary approval of the Additional Commissioner of Police was obtained in this case. The procedural requirements, thus, in this case were fully satisfied. Sub-rule 2 of Rule 15 does not provide that the Additional Commissioner of Police is required to record reasons in support of his order granting approval. Such approval is required to be granted only for the purpose as to whether a criminal case should be instituted or a departmental inquiry should be initiated. Rule 15 furthermore deals with preliminary inquiry. Such an inquiry is conducted for the purpose of ascertaining a prima facie case. Even if no preliminary inquiry is held, there does not exist any bar for initiating a departmental proceeding.

22. In a case where the delinquent officers might have committed an offence which is cognizable in nature, even the Additional Commissioner of Policy may decide as to whether it is a fit case where the police officers/delinquent officer should be proceeded in a criminal proceeding or in a departmental proceeding. Further whether a criminal inquiry should be initiated first or a departmental proceeding is merely a question of priority. By reason of the said provision, one does not exclude the other.

23. Section 21 of the Delhi Police Act provides for different nature of punishment. Sub-section 1 of Section 21 deals with imposition of major punishment whereas Sub-section 2 thereof provides for imposition of minimum punishments specified therein. Sub-section 3 of Section 21 clearly states that nothing in Sub-section (1) or Sub-section (2) shall affect any police officer's liability for prosecution and punishment for any offence committed by him. The said provision, thus, clearly, indicates that apart from the departmental proceedings a prosecution against the police officer is also permissible.

24. Rule 16 of Delhi Police (Punishment & Appeals) Rules, 1980 provides for the procedures to be followed in a departmental proceedings. Clause

(iii) of Rule 16 empowers an inquiry officer to bring on records earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense.

25. The complainant is a holder of British passport. He was a young boy. He came to India for spending sometime with his relatives. It is preposterous to suggest that he would visit India all over again for the purpose of deposing in a departmental proceedings. Thus his case would come within the purview of Clause (iii) of Rule 16 of the Rules. It is also not disputed that copies of the complaint had been served upon the delinquent officers.

26. The complaint was made before the Commissioner of Police who was the highest authority in the hierarchy. The petitioners themselves contended that the complaint contained facts disclosing a cognizable offence. It would, thus, could be treated even as the first information report.

27. The jurisdiction of this Court while exercising its power to judicial review is very limited. The court can interfere only in the event the Tribunal commits an illegality, irrationality or procedural impropriety in its decision making process. This court does not sit in appeal over the judgment of the Tribunal. It would not enter into fact involved in the matter except in a case where it is alleged that the impugned judgment is irrational.

28. In various judgments of this Court as also of the Apex Court, the scope of judicial review has been considered, which may be summarized in the following terms:

(1) The High Court is not to sit in appeal over the decision of the Administrative Tribunals;

(2) While exercising the power of judicial review, the High Court cannot be oblivious to the conceptual difference between appeal and review;

(3) The Petition for a judicial review would lie solely on grounds of grave errors of law apparent on the face of the record and not on the ground of error of fact, however grave it may appear;

(4) When the Tribunal renders a decision after determining the facts, no application for judicial review could be maintainable only on the ground that the Tribunal committed an error of fact, however grave it may appear, unless it is shown that such a finding of the Tribunal is based on no evidence and the error of fact itself can be regarded as error of law in the sense that admissible evidence was rejected and inadmissible evidence was relied on;

(5) The orders passed by the Tribunal by exercising discretion which judicially vests in it cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal in the sense the Tribunal did not follow an earlier decision of the tribunal or binding authority of the High Court or the Supreme Court with reference to finding of fats and law;

(6) When the Tribunal disposes of the original application by applying the binding precedents of the High Court as well as the Supreme Court, it cannot be said that the Tribunal has committed any error of law apparent on the face of the record; in such cases the limited review before the High Court would be whether the binding principle has been appropriately applied or not; the Tribunal's decision which is rendered in ignorance of the statutory law including subordinate legislation as well as the law laid down by the Supreme Court must be held to suffer an error apparent on the face of the record and requires judicial review;

(7) Whether or not an error of law apparent on the face of the record must always depend upon the facts and circumstances of each case and upon the nature and scope of legal provision, which is alleged to have been misconstrued or contravened.

(8) The three parameters of judicial review of administrative action - illegality, irrationality and procedural impropriety with necessary changes are equally applicable to cases of judicial review of the Tribunal's decision; and

(9) A mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 227 the supervisory jurisdiction conferred on High Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.

29. Applying the above principle and, having regard to the fact that issuance of writ of certiorari is discretionary in nature, in our opinion, in the facts and circumstances of this case no case has been made out for interference with the impugned judgment.

30. Kuldeep Singh v. Commissioner of Police and Ors. whereupon Mr. Shyam Babu has placed strong reliance, was rendered in a different fact situation. Therein a question arose as to whether the findings arrived at in the domestic inquiry are biased or not. The Apex Court inter alia held that under Rule 16(ii) of the Delhi Police (Punishment & Appeals) Rules, 1980 the department is required to produce the complainant in person. However, as the Rule itself contemplates that in the absence of a witness whose presence could not be procured without due delay, inconvenience or expense, his statement, already made on an earlier occasion, could be placed on record in the departmental inquiry and the matter could be decided on that basis.

31. From the defense of the petitioner it is evident that they had intercepted with the car wherein the complainant was traveling as they accepted the said fact. According to them, the car was broken on the road, and then burden of proof in this behalf was upon the petitioner which was not discharged.

32. The complainant had no ill motive or malice against the petitioner/police officials. We may notice that even Ram Karan and Anil Kumar had not questioned the validity or otherwise of the Inquiry.

33. In the facts and circumstances of the case, we do not find any merit in these writ petitions, which are accordingly dismissed. However, there shall be no order as to costs.