Krishan Pal vs Govt.Of Nct Of Delhi & Ors.
2009 Latest Caselaw 2894 Del

*           HIGH COURT OF DELHI: NEW DELHI

+           Writ Petition (Civil) No. 10353/2009

                      Judgment reserved on: July 24, 2009
%                     Judgment delivered on: July 29, 2009

      Krishan Pal                                    ..... Petitioner

                      Through: Mr.Anil Singal, Adv.

                      Versus

      Govt.of NCT of Delhi & Ors.                ..... Respondents

                      Through: Mr.J.K.Chaudhary, Adv.
      Coram:

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

      1. Whether the Reporters of local papers may           Yes
         be allowed to see the judgment?

      2. To be referred to Reporter or not?                  Yes

      3. Whether the judgment should be reported             Yes
         in the Digest?



A.K. PATHAK, J.

1. Petitioner is working as a Constable in Delhi Police. A joint

departmental enquiry was ordered against the Petitioner,

Constable Balraj Singh and Head Constable Kanwar Pal on the

allegations that in the night intervening 3rd/4th September, 2005

they, while posted at P.S.Kalyan Puri were found indulging in

malpractices like demanding illegal entry money from the

commercial vehicles on the pretext of checking the non-destined

vehicles.

2. A special team comprising Inspector P.P. Singh, Inspector

Sukhram and SI Anil Kumar was constituted under the

supervision of ACP/PRG for verifying the information about

taking of bribe by the policemen from the drivers of commercial

vehicles entering Delhi. At about 11 p.m. special team took

position near the Toll Plaza at Ghazipur Border. After some time

a truck bearing No.HR-38-K-1762 was stopped by them and on

enquiry it was revealed by the driver Rajesh Kumar that three

police personnel in khaki uniform stopped his truck near the Toll

Booth and after checking the papers, told him that he was not

authorized to enter into Delhi as the invoice was addressed to

Bombay. They told him that he should pay Rs.100/- to them as

entry money or to take his truck back. Accordingly he paid

Rs.100/- to those police officials. PRG team along with driver

Rajesh Kumar went to the spot where bribe was paid and there

the Petitioner along with Head Constable Kanwar Pal and

Constable Balraj Singh was found present. Petitioner and the

other two police officials were identified by the driver Rajesh

Kumar as the same policemen, who had taken Rs.100/- from

him as entry money. While the members of the PRG team were

talking with the Petitioner and other Constable, SI Anil Kumar

noticed that Head Constable Kanwar Pal, took out some currency

notes from his pocket and threw them in the bushes. Currency

notes were picked up by SI Anil Kumar and counted and the total

amount was found to be Rs.2700/-. Currency notes along with

the photocopies of the invoice and toll tax receipt were seized vide

a seizure memo. On enquiry it was revealed that Head Constable

Kanwar Pal and the Petitioner were detailed for patrolling duty;

whereas Constable Balraj Singh was on duty at Buchar Khana ,

Ghazipur.

3. Inquiry Officer submitted his report before the Disciplinary

Authority after completing the Inquiry. Thereafter Disciplinary

Authority vide order dated 15th September, 2006, agreed with the

findings recorded by the Inquiry Officer and held the Petitioner,

Head Constable Kanwar Pal as well as other Constable guilty of

the charges and awarded punishment of withholding of one

increment for a period of five years permanently.

4. Petitioner filed an appeal but the same was dismissed by the

Appellate Authority vide order dated 28th September, 2007.

5. Petitioner filed Original Application before the Tribunal

being OA No.110/2008 praying therein that enquiry report,

orders of Disciplinary Authority as well as Appellate Authority be

set aside and the reduced increments be restored with all

consequential benefits including seniority, promotion and pay

allowances.

6. Vide order dated 16th December, 2008, Tribunal dismissed

OA No.110/2008. After examining the record the Tribunal held

that the presence of the Petitioner alongwith Head Constable

Kanwar Pal and Constable Balraj Singh, on the intervening night

of 3rd/4th September, 2005 at the place from where truck of

Rajesh Kumar had passed was not in dispute. From the evidence

it was proved PRG team took position near the toll booth at about

11 p.m. and intercepted a truck driven by Rajesh Kumar who

informed that three policemen had taken Rs. 100 from him.

Driver was brought back at the place where money was given and

the Petitioner alongwith his two colleagues was found present. A

sum of Rs.2700/- which was thrown by Head Constable Kanwar

Pal in the bushes was recovered from the spot and seized. Driver

Rajesh Kumar had admitted his signatures on the seizure memo,

though he had resiled from his earlier statement. Tribunal held

that the statement of members of the PRG team recorded before

the Inquiry Officer besides seizure memo were sufficient to record

the finding of guilt as per the standard of proof required in a

departmental proceeding. Tribunal also observed that in a

departmental enquiry charges have to be substantiated on the

principles of preponderance of probability and same need not be

proved beyond reasonable doubt as in a criminal trial.

7. Aggrieved by the order dated 16th December 2008, Petitioner

has filed this writ petition. He has prayed that orders passed by

the Tribunal as well as Disciplinary Authority and Appellate

Authority be set aside and respondent be directed to restore

original increments and original pay of the petitioner with all

consequential benefits.

8. We have heard learned counsel for the Petitioner. However,

we do not find any error in the impugned order. Tribunal has

rightly held that the standard of proof required in a departmental

proceeding is based on the principles of preponderance of

probability and the department has not to prove the charges

beyond reasonable doubt. In the facts of this case Tribunal has

rightly held that sufficient material was there to show that the

petitioner alongwith the Head Constable Kanwar Pal and

Constable Balraj Singh had been extorting money from the

drivers of the Commercial vehicles entering Delhi.

9. We do not find any force in the contentions of learned

counsel for the Petitioner that since no money was recovered

from the Petitioner it cannot be said he had demanded and

accepted money from the drivers of the Commercial Vehicles. We

also find no merits in the argument that in absence of testimony

of any witness that the Petitioner had demanded bribe from the

truck driver, charges against him remained unproved.

10. Learned counsel for the Petitioner has contended that

finding of guilt against the Petitioner is based on no evidence. No

money was recovered from the Petitioner. Recovery of Rs.2700/-

at the instance of Head Constable Kanwar Pal cannot be read

against the Petitioner. Learned counsel has further contended

that there was no evidence available before the Inquiry officer to

conclude that the Petitioner was guilty of charges of extracting

money. Reliance has been placed on Dhujender Pal Singh Vs.

Govt. of NCT of Delhi & Ors. reported in 2002 V AD (Delhi)

485, Union of India & Ors. Vs. J.P.Singh reported in 137

(2007) DLT 276 (DB) and Narmada Pd.Yadav Vs.State of

M.P.& Ors. reported in (2007) 1 Supreme Court cases 681.

Petitioner has also placed reliance on unreported judgment titled

Ex. Constable Tika Ram versus Union of India and others

passed by this Court in W.P. (C) No. 5080/2001.

11. We are of the view that this Court, in exercise of its power

under Article 226 of the Constitution cannot sift and weigh the

evidence led before the Inquiry Officer afresh in the manner as if

hearing appeal. Only it has to be seen as to whether principles of

natural justice had been followed during the disciplinary

proceedings. Petitioner has not taken any such plea in this case.

Tribunal has already held that sufficient evidence was there to

support findings. This view cannot be faulted with in the facts of

this case.

12. Petitioner has not disputed his presence alongwith Head

Constable Kanwar Pal at the spot on the night intervening 3rd/4th

September, 2005. Petitioner was on patrolling duty with Head

Constable Kanwar Pal. PRG team found Petitioner along with

Head Constable Kanwar Pal and Constable Balraj Singh near the

Toll Plaza. When they reached there accompanied with the driver

Rajesh Kumar Head Constable Kanwar Pal threw a sum of

Rs.2700/- in a clandestine manner in the bushes which was

recovered and seized. Petitioner was on patrolling duty with

Head Constable Kanwar Pal thus his complicity with Head

Constable Kanwar Pal, stands proved by adopting principles of

preponderance of probability.

13. In the facts of the present case it is clear that it was a

concerted act of the Petitioner, Head Constable Kanwar Pal as

well as Constable Balraj Singh in taking money from the drivers

of the commercial vehicles entering Delhi. Petitioner cannot

claim innocence while being in the company of Head Constable

Kanwar Pal from whose possession an unexplained sum of Rs.

2700/- was recovered.

14. Judgments relied upon by the Petitioner are on different

facts and are of no help to the Petitioner. In Dhujender Pal

Singh's case (Supra) the evidence on record reflected that the

money was thrusted upon the Petitioner even though the same

was not demanded by him. However in this case, on seeing the

PRG team Head Constable Kanwar Pal threw the money in the

bushes in order to screen themselves from the evidence. In

Constable Tika Ram's case (supra) seizure memo was not

prepared in accordance with law in as much as signatures of the

witnesses were not obtained. In this case seizure memo was

prepared and was even signed by the driver. In Narmada Prasad

Yadav's case (supra) the court found that there was absolutely no

evidence with regard to the demand of bribe and the receipt

thereof. Similarly, in J.P. Singh's case (supra) the court found

that the State case was based on "no evidence". However, in this

case situation is totally different which we have noted in earlier

paras.

15. In view of the above we are of the opinion that the present

writ petition is devoid of merits.

16. Dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 29, 2009 ps