Shri Chander Pal vs Union Of India And Anr.
2009 Latest Caselaw 3463 Del

            HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 4496/2000

                   Judgment reserved on: 24th August, 2009
%                  Judgment delivered on: 31st August, 2009

      SHRI CHANDER PAL                         ..... Petitioner
                  Through:        Mr.Kunwar C.M.Khan with
                                  Mr.Ramesh Kumar Koli, Advs.
                   Versus

      UNION OF INDIA AND ANR.             ..... Respondents
                   Through: Mr.V.K.Tandon, Adv.

      Coram:
      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?       Not Necessary

      2. To be referred to Reporter or not?     Not Necessary


      2. Whether the judgment should be reported
         in the Digest?                      Not Necessary



A.K. PATHAK, J.

1. Petitioner was working as Constable with the Delhi Police at

the relevant time. Disciplinary proceeding for major penalty was

initiated against him on the charge that on 4th February, 1986

while posted as Constable he had cheated one Mr. Hari Prasad,

maternal uncle of SI Gulab Rai No. D/910, to the tune of Rs.

4000/-, on the pretext that he would get him enlisted in the Delhi

Police, by using his cordial relations with senior officers of the

Delhi Police, responsible for the recruitment.

2. FIR No. 229/1986 under Section 420 IPC was also

registered against the Petitioner in the Police Station Nand Nagari

on 13th September, 1986, on the complaint of SI Gulab Rai, with

regard to the same incident.

3. Enquiry Officer, after concluding the enquiry submitted his

report dated 27th July, 1988 before Disciplinary Authority. A

show cause notice was issued to the Petitioner who submitted his

written statement. Petitioner was afforded personal hearing.

Thereafter, Disciplinary Authority vide order dated 13th

September, 1988 awarded punishment of dismissal from service

to the Petitioner.

4. Petitioner preferred an appeal before the Appellate

Authority, which was dismissed vide order dated 23rd December,

1988.

5. Petitioner filed a revision petition before Commissioner of

Police which was also dismissed on 19th September, 1989.

6. Petitioner was acquitted in the criminal case by the learned

Magistrate on 4th May, 1992. Thereafter, Petitioner filed a review-

cum-mercy petition before Commissioner of Police which was

rejected on 18th July, 1992. Representation filed before the Lt.

Governor was also rejected on 1st December, 1995.

7. Petitioner filed O.A. No. 312/1996 before the Central

Administrative Tribunal, Principal Bench, New Delhi (hereinafter

referred to as "Tribunal") thereby challenging the orders passed

by Disciplinary Authority, Appellate Authority and the Lt.

Governor. Petitioner contended before Tribunal that as per the

Enquiry Officer there was no documentary or oral independent

evidence against the Petitioner to show that Petitioner had

received Rs. 4000/- from the complainant Hari Prasad. In spite

of this Disciplinary Authority had concluded that charge against

the Petitioner was proved, on the basis of circumstantial

evidence, to the effect that complainant Hari Prasad had visited

residence of the Petitioner in order to seek his help for his

recruitment in the Delhi Police. Without disagreeing with the

findings of Enquiry Officer, Disciplinary Authority had passed the

impugned order of punishment. Proper opportunity was also not

afforded to the Petitioner, therefore, penalty order was illegal.

Petitioner also contended before Tribunal that as per Rule 12 of

the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter

referred to as "Rules") a police officer, who had been tried and

acquitted by the Criminal Court, could not have been proceeded

with departmentally on the same charges. Petitioner was

acquitted in the criminal case for the same charge, therefore,

order passed by Disciplinary Authority, in violation of Rule 12,

was liable to be reviewed and quashed.

8. As per Respondent, principles of natural justice were

followed during the departmental proceedings. Petitioner was

afforded opportunity to defend himself during the enquiry.

Disciplinary Authority had also issued show cause notice along

with findings of Enquiry Officer. Personal hearing was also

afforded to the Petitioner. Respondent further contended before

the Tribunal that the Petitioner was acquitted in criminal trial as

witnesses did not turn up. Acquittal was on technical grounds.

Petitioner could not have derived any benefit out of such

acquittal order. It was further contended that O.A. was barred

by time. Penalty order was passed on 13th September, 1988.

Appeal was dismissed by the Appellate Authority on 23rd

December, 1988. However, O.A. was filed only in the year 1996

i.e. after about seven years. The representations made before

Commissioner of Police and the Lt. Governor were not made

under the Rules as no such remedy was provided therein. These

representations made and orders passed therein were not

sufficient to extend period of limitation.

9. Vide impugned order dated 3rd January, 2000 Tribunal

dismissed the O.A. Tribunal held that O.A. was time barred.

Punishment order was passed on 13th September, 1988. Appeal

was dismissed on 23rd December, 1988. Though there was no

provision for revision provided in the Rules but the same was

also dismissed on 27th October, 1989. Even thereafter Petitioner

did not file O.A. till 1996. O.A. was barred by time. Subsequent

representation made before Commissioner of Police and the Lt.

Governor were beyond the remedies provided under the Rules,

therefore, time consumed by the Petitioner in pursuing such

remedies was not a sufficient ground to allow the condonation of

delay.

10. On merits, Tribunal held that the orders of Disciplinary

Authority and Appellate Authority could not be faulted.

Petitioner was afforded opportunity to defend himself during the

enquiry proceedings. Disciplinary Authority had also followed

due procedure as provided under the rules. Show cause notice

was issued to Petitioner. Written reply submitted by the

Petitioner in response to show cause notice was duly considered.

Personal hearing was also afforded. Thus, rule 16 of the said

Rules was complied with. Principles of natural justice were

followed by Disciplinary Authority. Tribunal also held that the

Petitioner was acquitted in criminal trial as no witness was

produced by the prosecution. Witnesses were available during

the departmental enquiry. In a way charges in criminal case

failed on technical grounds. Accordingly, there was no violation

of rule 12 of the said Rules.

11. Before us, learned counsel for the Petitioner has contended

that under rule 15(2) of the said Rules Respondent could not

have proceeded with the departmental action as the FIR was also

lodged against the Petitioner in respect of the same incident

which led to criminal trial. We are of the view that this argument

of learned counsel cannot be considered at this stage as no such

argument was advanced before the Tribunal. No finding has

been returned by the Tribunal on this point, obviously, because

no such argument was advanced. Petitioner cannot be permitted

to urge all together a new point before us which was not raised

before the Tribunal.

12. In our view, principles of natural justice were followed

during the enquiry proceedings and even thereafter. Petitioner

was given opportunity to defend himself during enquiry.

Witnesses were examined in his presence. After Enquiry Officer

submitted his report, show cause notice was issued to Petitioner.

Written reply of Petitioner was duly considered by the

Disciplinary Authority. Even personal hearing was afforded to

Petitioner. Thereafter, a reasoned order has been passed. Thus,

we find that Tribunal was right in concluding that principles of

natural justice were followed inasmuch as there was no violation

of rule 16 of the said Rules.

13. We do not find any force in the contention of learned

counsel that there was violation of rule 12 of the said Rules.

Punishment order was passed much before the Petitioner was

acquitted by the Court. Accordingly, rule 12 was not attracted in

the facts of this case. Besides this, we find that no witness was

produced by the prosecution during criminal trial despite

opportunities granted by the Court. Consequently, Petitioner was

acquitted on 4th May, 1992. In fact criminal trial failed on

technical grounds as the witnesses were not produced and

charge remained unproved. In the departmental proceedings

witnesses were produced. As many as seven witnesses were

examined before the Enquiry Officer. Testimony of the witnesses

was considered by Disciplinary Authority and on the basis

thereof it was concluded that sufficient circumstantial evidence

was available to indict Petitioner.

14. Learned counsel for the Petitioner has next contended that

Enquiry Officer had concluded in his report that no independent

ocular or documentary evidence was available to arrive at the

findings that Petitioner had taken Rs. 4000/- from Mr. Hari

Prasad. Accordingly, Disciplinary Authority had no reason to

disagree with the findings of Enquiry Officer and take a different

view. We do not find any force in this argument of the learned

counsel either. Disciplinary Authority has discussed in detail

testimony of witnesses and has concluded that sufficient

circumstantial evidence was available to indicate that Petitioner

had taken money from the complainant through one Mr.

Virender. Appellate Authority has agreed with this view.

Tribunal has also not interfered with the view taken by

Disciplinary Authority. In our view scope of judicial review is

limited and this court cannot sift and weigh the evidence

recorded during the enquiry as if hearing an appeal. Even, if two

views are possible, Tribunal/court cannot substitute its own view

over and above the view taken by Disciplinary Authority in

exercise of the power under Article 226 of the Constitution.

15. We do not find any jurisdictional error in the impugned

order. Accordingly, writ petition is dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

August 31st, 2009 ga