Gurdeep Singh vs Union Of India & Ors.
2009 Latest Caselaw 4591 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C.) No. 6027/2006

%                         Date of Decision: 11.11.2009

GURDEEP SINGH                                                 .... Petitioner

                         Through: Mr.Anil Singal, Advocate.

                                   Versus

UNION OF INDIA & ORS.                                    .... Respondents

                         Through: Mr.J.K.Chaudhary, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   NO
3.     Whether the judgment should be reported in               NO
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner, an Assistant Sub Inspector of Delhi Police has

challenged the order dated 3rd September, 2004 of the Central

Administrative Tribunal in O.A No.20/2004 titled Gurdeep Singh v.

Union of India through Secretary, Ministry of Legal Affairs, New Delhi

and others dismissing his petition against the order dated 16th

September, 2002 of the disciplinary authority imposing punishment of

reduction in rank from Sub Inspector to Assistant Sub Inspector, and

dismissal of his departmental appeal by order dated 24th July, 2003

passed by the Appellate Authority.

2. Brief facts to comprehend the disputes are that a departmental

enquiry was initiated against the petitioner and constable Rajbir Singh

co-defaulter by order dated 12th September, 2001 on the allegation that

on 21st July, 2001 while posted in Hauz Khas traffic circle, at M.B.Road

about 1 km ahead from Saket/Neb Sarai Traffic „T‟ Point they were

collecting illegal entry money from commercial vehicles.

3. The allegation of collecting illegal entry money from commercial

vehicles was based on an incident in which at about 12.20 PM co-

accused Constable Rajbir Singh stopped truck No.HR 38E-9439 coming

from Lado Sarai side and going towards Badarpur side and asked the

driver Imtiaz of Shiv Transport Company Hapur (U.P) to get down and

took him to ZO/SI Gurdeep Singh/petitioner. Rs.150/- was demanded

and accepted out of which Rs.100/- was challan money and Rs.50/-

was illegal entry money. One of the currency note of denomination

Rs. 50 which was received by Rajbir Singh was found to be counter

signed by the PRG team. It was alleged against the petitioner and

Constable Rajbir Singh that they had assembled at the spot with

common malafide intention to collect illegal entry money from

commercial vehicles. Against the petitioner the allegation was also

made that instead of restraining his subordinate from indulging in

illegal activities he was also instrumental in collecting illegal entry

money from commercial vehicles and, therefore, their acts amounted to

gross misconduct and dereliction in discharge of their official duties and

they became liable to be dealt with departmentally under the provision

of Delhi Police (Punishment and Appeal) Rules, 1980.

4. The petitioner and other co-accused Rajbir Singh did not admit

the allegations and they opted for a departmental enquiry and also

engaged Sh.Harruhal Singh, a retired Sub Inspector as their defense

assistant. In the departmental enquiry the statement of Head Constable

Rajpal Singh; Inspector V.P.Dahiya; SI Dharamveer Singh; Inspector

Jagdish Lal Sethi; Sh.Sanjiv Dhani, Posting clerk; SI Kapil Prasar, PRG

Team; Sh.Brijesh Kumar Mishra, ZO/K.K.Circle traffic were recorded

and they were cross examined. The petitioner examined Sh.Rajinder

Singh alleged to be a driver of vehicle No.DL-1L-A-2868; Sh.Ramesh

Kumar; Sh.Shankar and Sh.Davinder Singh.

5. The enquiry officer submitted his report dated 27th June, 2002

holding that the charge against the petitioner and the co-accused had

been made out without any shadow of doubt. Disciplinary authority

considered the report of the enquiry officer including the pleas raised by

the petitioner that the driver of the vehicle was not produced during the

enquiry to enable the petitioner to cross examine him and there is no

evidence regarding implication of the petitioner as it has not been

established that the illegal entry money was demanded by him from the

driver and that the same was not even collected by or recovered from

the petitioner. After carefully considering the entire evidence and the

statement of the petitioner, penalty of reduction in rank from Sub

Inspector to Assistant Sub Inspector was imposed on the petitioner. An

appeal filed by the petitioner on 27th September, 2002 was also

dismissed by the appellate authority by order dated 24th July, 2003

confirming the punishment of reduction of rank from Sub Inspector to

Assistant Sub Inspector. The original application filed by the petitioner

before the Central Administrative Tribunal was also dismissed by order

dated 3rd September, 2004 which is impugned in the present petition.

6. The learned counsel for the petitioner has relied on a number of

precedents to contend that there is no evidence that the petitioner was

aware of illegal money taken by Sh.Rajbir Singh, constable and that

none of the witnesses have deposed that demand was raised by the

petitioner. The emphasis has also been laid on the fact that Imtiaz the

driver of the truck who is alleged to have paid the bribe has not been

examined and relying on Rule 16(3) of Delhi Police (Punishment and

Appeal) Rules, 1980 it is contended that the statement of the driver

recorded during the preliminary enquiry could not be relied on as the

statement was recorded by the PRG Team and it had not been recorded

and attested by a police officer superior in rank to the accused

officer/petitioner nor it was recorded in a judicial enquiry or trial. It is

also asserted that before such a statement of the driver, could be relied

upon it was necessary for the enquiry officer to form and record his

opinion that the witnesses presence cannot be procured without undue

delay, inconvenience or expense.

7. The learned counsel for the petitioner has also laid emphasis on

the plea that the recovery of money, alleged entry money of Rs.50/-,

was also from the co-accused constable Rajbir Singh which was not

sufficient to prove the charge against the petitioner in absence of any

corroborative or direct evidence. Regarding the statements of the

officers of the PRG team it is contended that their evidence in this

regard is hear say and cannot be relied on and in any case none of the

witnesses have deposed categorically that the demand for illegal entry

money was made by the petitioner and in the circumstances the

inferences by the enquiry officer and disciplinary officer are based on

conjectures which cannot take the place of reliable cogent evidence. The

learned counsel for the petitioner has also contended that no serious

efforts were made by the enquiry officer to record the statement of

driver Imtiaz Ali and as such no reasonable opportunity was given to

the petitioner to cross examine the driver before his earlier recorded

statement was relied upon.

8. To refute the allegations of the petitioner it is contended on behalf

of respondents that the evidence adduced on behalf of respondents is

sufficient to draw an inference that the demand for illegal entry money

was within the knowledge and with tacit consent of the petitioner and

he could not be ignorant of the demand made from the driver of the

truck. Relying on the statement of PW.2 Sh.V.P.Dahiya it is contended

that he deposed that during surveillance in the area, truck drivers who

had been going on that route had disclosed to him that the petitioner

and his constable were collecting Rs.50/- as illegal entry money with

the challan or without challan. Consequent to the complaints one truck

driver Imtiaz truck No.HR 38E-9439 was contacted and the facts were

explained to him who had also agreed with the version of other drivers

about illegal money being extracted and, therefore, he joined the raiding

party willingly and also took two currency notes signed by the raiding

party, one of Rs.100/- and another of Rs.50/- and also signed the

memo which has been duly proved. From the evidence it has also been

contended that ZO/petitioner was standing near the constable Rajbir

Singh from whom Rs.50/- signed currency note collected illegally was

recovered. It is contended on behalf of the respondents that the

petitioner was not a stranger to the constable Rajbir Singh and in the

facts and circumstances it can be inferred that the petitioner was not

oblivious of collection of illegal entry money by his constable. The

learned counsel has also contended that the demand for illegal entry

money was by both of them. It has also been pleaded by the learned

counsel for the respondents that the driver of the truck could not be

produced despite diligent efforts made and consequently the

proceedings will not be vitiated. On the basis of the entire evidence

produced in the matter, it is asserted that there is sufficient evidence to

draw an inference on the basis of preponderance of probability that the

petitioner was also involved in demanding and collecting the illegal

entry money through his constable Sh. Rajbir Singh and had common

malafide intention with him and did not take any action in restraining

his subordinates from indulging in the illegal act of collection of illegal

entry money from the commercial vehicles.

9. The learned counsel for petitioner has relied on (2004) 8 SCC 88

Delhi Transport Corporation v. Shyam Lal; 2002 V AD (Delhi) 485

Dhujender Pal Singh v. Govt. of NCT of Delhi and Others; JT 1999 (8)

SC 418 Hardwari Lal v. State of UP and Others; (1971) 2 SCC 617 M/s

Bareilly Electricity Supply Co. Ltd. vs. The Workmen and Others;

2006(4) Service Cases Today 842 M.L. Jindal v. Delhi Vidyut Board and

Others; WP(C) Nos. 18390-92/2006 Union of India and Others v. J.P.

Singh, decided on 22nd January, 2007; WP(C) No. 6503/2008 Hari

Singh v. Govt. of NCT of Delhi decided on 5th September, 2008; (1969) 1

SCR 735 Central Bank of India Ltd. v. Prakash Chand Jain; (1999) 2

SCC 10 Kuldeep Singh v. Commissioner of Police and Others and WP(C)

No. 9473/2007 Constable Rajender Kumar v. Govt. of NCT of Delhi and

Others (FB) decided on 17th April, 2009 in order to contend that there is

no evidence against the petitioner as it has not been established by

anyone of the witnesses that demand for illegal entry money was made

by the petitioner and recovery of signed currency note of denomination

Rs.50/- does from Constable Rajbir Singh not implicate the petitioner in

any manner.

10. The precedents relied on behalf of petitioner do not help his case

nor support the pleas raised on his behalf as they are distinguishable. It

is no more res integra that the ratio of any decision must be understood

in the background of the facts of that case. What is of essence in a

decision is its ratio and not every observation found therein nor what

logically follows from the various observations made in it. It must be

remembered that a decision is only an authority for what it actually

decides. It is well settled that a little difference in facts or additional

facts may make a lot of difference in the precedential value of a

decision. The ratio of one case cannot be mechanically applied to

another case without having regard to the fact situation and

circumstances obtaining in two cases. . In Bhavnagar University v.

Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59), the

Supreme had observed:-

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

In Ambica Quarry Works v. State of Gujarat and Ors.

MANU/SC/0049/1986 the Supreme Court had observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

11. In Central Bank of India (supra), certain acts of delinquent

employee were alleged to be prejudicial to the interest of the Bank and

an enquiry was conducted and the Enquiry Officer held that the acts of

the delinquent employee were prejudicial to the interest of the Bank and

amounted to gross misconduct and consequently, the punishment of

dismissal from the service was recommended. The Supreme Court

while dealing with the procedure adopted by the Enquiry Officer, had

held that Domestic Tribunals like an Enquiry Officer are not bound by

the technical rules about the evidence contained in the Indian Evidence

Act. However, substantive rules which would form part of the principle

of natural justice are to be followed by such Domestic Tribunals. It was

further held that the principle that a fact sought to be proved must be

supported by statements made in the presence of person against whom

the enquiry is held and that statements made behind the back of the

person charged are not to be treated as substantive evidence, is one of

the basic principles which cannot be ignored on the mere ground that

the Domestic Tribunals are not bound by the technical rules or

procedures contained in the Indian Evidence Act. The Court in the

facts and circumstances of this case had held that the Domestic

Tribunal was not justified in recording its finding on the basis of

hearsay evidence without having any other direct or circumstantial

evidence in support of those findings. In this case, the charge relating

to payment of the sum of Rs.30,400/- to the delinquent employee and

the delinquent employee leaving for Muzaffarnagar in the company of

some other person, in order to retire the bills drawn by M/s Gupta Iron

Industries were sought to be proved before the Enquiry Officer by the

evidence of an Internal Auditor, who could not give any direct evidence

as he was not present at the time when the money was paid to the

employee and when the delinquent employee left for Muzaffarnagar.

The Internal Auditor purported to prove these incidents by deposing

that the statement was made to him by one person Nand Kishore that

he had paid Rs.30,400/- to the delinquent employee where after he left

for Muzaffarnagar in the company of two more persons, which evidence

had been accepted by the Enquiry Officer. Such a hearsay evidence

was rejected as there was no other direct or circumstantial evidence in

support of such hearsay evidence.

12. However in another case reported as Workmen v. Balmadies

Estates,(2008) 4 SCC 517, at page 519 the Supreme Court had held that

in view of wide power of domestic tribunals, in an appropriate case, the

strict principles of evidence act are not applicable and guilt of a

delinquent is not to be established only on the basis of proof beyond

reasonable doubt but proof of misconduct is sufficient and all relevant

material including hearsay evidence can be acted upon. The Supreme

Court in para 10 had held as under :

"10. It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872 (in short "the Evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.

13. The Statements made to a checking officer by the passenger was

held not to be in the nature of hearsay evidence. In Delhi Transport

Corpn. v. Shyam Lal,(2004) 8 SCC 88, at page 89 the Supreme Court

had held as under :

7. We find that the Tribunal‟s conclusions are prima facie not correct. The statement made by the passenger who had paid excess money to the checking officer is not in the nature of hearsay evidence. Additionally, the effect of the admission regarding guilt as contained in the letters dated 13-1-1989 and 24-2-1989 have not been considered in the proper perspective. It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon.

14. In Hari Singh (supra), a Division Bench of this Court had

disbelieved the evidence of inspecting staff who had admittedly seen

nothing and who were told by the tempo drivers that they had paid

Rs.150/- each to the Constable against whom departmental

proceedings were initiated who had challaned two tempo drivers and as

against a fine of Rs.100/- each they accepted Rs.150/- each that is

Rs.50/- more than the compounding amount. The Enquiry Officer had

accepted the version of the inspecting staff and which was also accepted

by the Disciplinary Authority and who imposed punishment of

withholding one increment temporarily for a period of one year and

treating the period of suspension as not spent on duty. In this case,

two tempo drivers had stated initially that they had paid Rs.150/-each

to the Constable but later they had resiled from their statements. The

Enquiry Officer and Disciplinary Authority had relied only on the

statement of inspecting team who had not seen anything. The

punishment awarded to the Constable in these facts and circumstances

was set aside. It was also noticed that on the basis of the allegations

made against the delinquent Constable, there should have been two

notes of Rs.50/- but only one had surfaced and consequently, the

statements of the inspecting staff were not relied on as it was not

corroborated with the other facts and the punishment was set aside.

15. Another Division Bench of this Court in Union of India and

Others v. J.P. Singh (supra), had held that the evidence of the

prosecution witness who had retracted from the previous statements

and had not corroborated the charges could not be relied nor any

penalty could be imposed on the basis of inadmissible evidence. The

Court had sustained the order passed by the Tribunal setting aside the

order passed by the Disciplinary Authority compulsorily retiring the

police official from the service, as the case was held to be a case of no

evidence after exclusion of inadmissible evidence. The allegation

against the police officer was that he attended the office in an

intoxicated condition and on being questioned he used

unparliamentarily and abusive language. It was noticed that many of

the witnesses while admitting their signatures on the statements made

in the Preliminary Enquiry had not subscribed to their contents. The

Revisional Authority in this case had concluded that almost all the

prosecution witnesses had denied having seen the delinquent police

officer in an intoxicated condition on the date of the incident and in the

absence of any medical evidence in support of the allegation, it was held

that charge of coming to office in an intoxicated condition was not

established. It was further held that in disciplinary proceedings, strict

rules of evidence as contained in the Evidence Act may not be

applicable and the principle of preponderance of probability is to be

acted upon yet finding as to misconduct cannot be based on evidence

which is wholly inadmissible.

16. In M.L. Jindal (supra), in respect of allegation of misappropriated

money collected form counter, the material witness and complainant

were not examined and the mere fact that the accused was in-charge of

counter on crucial date was held to be insufficient to bring home the

charge against him and consequently, on the ground of non-

examination of material witness and complainant, the enquiry report

was quashed. It was held that factual findings in Department Enquiry

would ordinarily not to be subjected to judicial review except when it is

based on no evidence or are totally perverse or legally untenable or

vitiated on account of non-observance of principle of natural justice.

17. In another precedent relied on behalf of the petitioner, Bareilly

Electricity Supply company Ltd. (supra), the Supreme Court had held

that production of balance sheet and profit & loss account of the

company without any further evidence is not the proof of the

correctness of the entries made therein. It was held that if the entries

are challenged, then each of such entries ought to have been proved by

producing the books and deposing about them. The Supreme Court had

also held that natural justice does not imply that what is not evidence

can be acted upon.

18. In Hardwari Lal (supra), the allegation against the appellant was

that he abused under the influence of liquor and after enquiry he was

dismissed. The grievance of the appellant was regarding non-supply of

certain documents like preliminary enquiry report and the statement of

the complainant and relevant witness. In this case complainant and

one Sh. Jagdish Ram were not examined. The examination of these two

witnesses would have revealed as to whether the complaint made was

correct or not and Sh. Jagdish Ram was the person who had

accompanied the delinquent to the hospital for medical examination. In

absence of the evidence of the complainant and the person who had

accompanied the appellant to the hospital, it was held that there was

insufficient evidence to bring home the charges against the appellant

and his dismissal was set aside. In another precedent relied on by the

petitioner, Kuldeep Singh (supra) the Supreme Court had held that

reliance could not be placed on a document which was not mentioned

in the charge sheet and which document had not been relied on or even

referred to by the disciplinary authority. It was further held that the

statement of a witness in domestic enquiry under Rule 16(3) Delhi

Police (Punishment and Appeal) Rules, 1980 without producing such a

witness would be permissible provided that the conditions precedent for

invoking this rule are met, which are that the presence of witness

cannot be procured without undue delay, inconvenience or expenses

which is otherwise not possible. It was also held that placing the

previous statement of the witness without supplying a copy thereof to

the delinquent and without affording an opportunity to cross-examine

the witness would be violated of Article 311 (2) of the Constitution of

India.

19. In Dujender Pal Singh (supra) relied on by the petitioner, no

money was recovered from the delinquent nor there was any other

cogent evidence that the demand was made by the said police official.

From the evidence produced it was not inferable that the co-accused

was even present at the relevant point of time. The court had held that

demand is an essential ingredient for proving the charges of corruption.

Since it was held that no demand could be attributed to the delinquent,

therefore, it was held that he had not committed any misconduct.

In contradistinction the case of the petitioner is distinguishable

as considering the totality of the facts and circumstances, it is apparent

that the demand was made on behalf of petitioner by the constable

Rajbir Singh from whom signed currency note of Rs.50/- was recovered.

The petitioner and the constable were working in tandem and from the

evidence it is inferable that the illegal entry money could not be

recovered by the constable Rajbir Singh alone without the consent and

approval of the petitioner. The guilt of the petitioner has been

established not on the basis of the statement of the driver recorded in

preliminary investigation who could not be produced despite due

diligence but on the basis of inferences drawn on preponderance of

probability of the evidence of witnesses including members of the

raiding team and the facts established. Certain material depositions

had not even been challenged before the enquiry officer, as those

witnesses were not cross-examined on material points. It has not been

denied that the constable had stopped the truck and had brought the

driver to the petitioner. The money was also taken by the constable

from the driver when they were standing near the petitioner. In the

circumstances the probable inference that the challan money and illegal

entry money was collected by the constable at the instance of and with

the tacit approval of the petitioner cannot be termed improbable or

based on no evidence.

20. Reliance has also been placed by the petitioner on AIR 1985

Supreme Court 1121, Anil Kumar v. Presiding Officer and others

holding that the Court is not to enter into adequacy or sufficiency of

evidence in respect of disciplinary inquiry matters, however, where the

evidence is annexed to an order-sheet and there is no analysis of

evidence and no correlation is established between the two showing

application of mind, it is not an inquiry report at all and the Court must

interfere in such circumstances. In the case of the petitioner, the

inquiry officer has not just attached the copy of the evidence but has

dealt with given the relevant aspect of deposition of various witnesses

and has analyzed the same and has also given the correlation in order

to reach a finding bringing home the guilt of the petitioner. On the

basis of the preponderance of probability, it has been held that it

cannot be inferred that the demand was made by Rajbir Singh on his

own without the consent and approval of the petitioner and the money,

illegally entry amount, was collected by Rajbir Singh on his own without

the knowledge and approval of the petitioner. The charges against the

petitioner is also that he did not restraining his subordinate from

indulging in illegal activities. If the petitioner did not restrain his

subordinate from illegal activities, in the facts and circumstances, it

would follow that he was himself involved in the collection of illegal

money from the commercial vehicles. From the evidence it is apparent

that the petitioner could not be oblivious of the collection of illegal

money by Rajbir Singh, Constable and if he was aware of it and he did

not stop him, then collection of illegal money was also on his behalf

even though there is no specific evidence that he had demanded the

money from the said driver. It plausibly follows that the Constable was

collecting the illegal money and the two i.e. the petitioner and the

Constable were to share the spoils. No evidence has been led by the

petitioner to say that he complained against his Constable or took such

other steps or acts to prevent him from collecting illegal money. The

petitioner and Constable Rajbir Singh put up a joint front before the

Enquiry Officer. In the circumstances, the probable inference that the

illegal money was collected at his instance and he is also guilty of the

charge cannot be faulted nor on the basis of the ratio of Anil Kumar

(supra) it can be held that there is no application of mind by the inquiry

officer.

21. A full Bench of this Court in Constable Rajender Kumar v.

Government of NCT of Delhi & Others in W.P.(C.) No.9473 of 2007

decided on 17th April, 2009 had held that the report based on the

material collected on the spot would not partake the character of a

preliminary inquiry as envisaged in Rule 15(1) of the Rues and a

preliminary inquiry has necessarily to be ordered by the disciplinary

authority and any other inquiry which is not ordered by the disciplinary

authority would not be a preliminary inquiry at all. In the case of the

petitioner, it cannot be disputed that a disciplinary inquiry had been

conducted in accordance with rules and consequently on the basis of

the ratio of Rajender Kumar (supra), the petitioner is not entitled to

impugn the order of the Central Administrative Tribunal upholding the

order of punishment holding the same has been passed after a proper

inquiry into the matter and is based on preponderance of probability. In

Narmada Prasad Yadav (supra), another precedent relied on by the

petitioner, the allegation against the delinquent was the he detained one

Shri Ram Singh and kept his licence, cycle and demanded Rs.1,000/-

for giving the item back and thus he indulged in corrupt behavior and

proved himself not fit for the police department. Considering the report

of the inquiry officer, it was held that there was no evidence of the

demand of Rs.1,000/- or of the receipt of the same and no satisfactory

evidence was adduced to prove the charge and in the circumstances the

penalty imposed upon the delinquent was set aside, as it was held to be

a case of no evidence. The ratio of this case is also distinguishable as

the facts of the case of the petitioner are different. The signed currency

note of Rs.50/- was recovered from the Constable Rajbir Singh who was

working in tandem with the petitioner which has been established on

the basis of the testimonies recorded before the inquiry officer and the

fact that the salient depositions have remained unchallenged by not

cross-examining the witnesses on various relevant aspects. In another

precedent relied on by the petitioner, Union of India v. Constable

Paramvir (supra), the allegation was that the delinquent police officials

were found to be at a place other than at which they were deputed and

therefore malafides were imputed against them. However, the allegation

of malafide that they indulged in the collection of illegal money from a

place other than where they were deputed did not form part of the

charge and, therefore, it was held that it had not been established as

this was not even an allegation in the summary of allegation that there

was malafide on their part to be at a place which was away from the

place of posting. It was held that in absence of any specific charge,

since it was a case of departmental inquiry, in order to enable charge-

sheeted employee to defend himself properly, there has to be

unambiguous and clear charge framed against such an employee and in

absence of specific charge it would not be possible for the delinquent

employee to lead evidence to show his innocence. In case of the

petitioner, the charge framed is specific that the Constable Rajbir Singh

signaled to stop the truck and he got the driver Imtiaz to get down and

he took him to the petitioner and demanded and accepted Rs.150/- of

which Rs.100/- was the challan money and Rs.50/- was illegal entry

money and the petitioner had assembled with Rajbir Singh with

common malafide intention to collect illegal entry money from

commercial vehicle and the petitioner instead of restraining his

subordinate, Constable Rajbir Singh, from indulging in illegal activities

himself got involved in collection of illegal money from the commercial

vehicle. In the circumstances, on the basis of the ratio of said case, it

cannot be held that the charge against the petitioner was ambiguous or

it has not been established in the facts and circumstances.

22. This Court has also perused the entire evidence recorded before

the inquiry officer. Perusal of the evidence of, PW2, Inspector B.P.

Dahia, Inspector Jagdish Lal Sethi, PW4, HC Sanjeev Dhan, PW5; SI

Kapil Prashar and SI Brijesh Kumar Mishra, establishes that the

petitioner acted in tandem with the Constable Rajbir Singh in collection

of illegal money and he was aware of the collection of the illegal money

by Rajbir Singh and he did not stop his subordinate him from indulging

in the illegal acts and thus also involved himself in the collection of the

illegal money. Merely because no witness has categorically deposed that

the demand was made by the petitioner from the driver, it cannot be

held that the demand was not made on his behalf particularly in the

facts and circumstances of the case. Similarly, merely because the

amount was not collected by the petitioner, which was in fact recovered

from Rajbir Singh, it does not follows that it cannot be said that both of

them have acted in collusion with each other and charge also stipulates

that the petitioner had assembled with Constable Rajbir Singh with

common malafide intention to collect the entry money and he did not

stop his subordinate from indulging in illegal acts. The findings of the

inquiry officer and the punishment imposed by the disciplinary

authority and approval and sustenance of the order of the disciplinary

authority by the appellate authority, therefore, cannot be faulted in the

present facts and circumstances. The disciplinary authority and the

appellant authority have considered the entire evidence in detail in the

context of the charge and therefore, it cannot be held that there is no

evidence or the inferences arrived at by the inquiry officer and

disciplinary authority cannot be drawn on the basis of preponderance of

probability. The orders therefore, do not suffer from any illegality or

such procedural impropriety which would require interference by this

court in exercise of power under Article 226 of the Constitution of India.

23. The writ petition, in the facts and circumstances, is without any

merit and it is, therefore, dismissed. Parties are, however, left to bear

their own costs.

ANIL KUMAR, J.

November 11, 2009                                       VIPIN SANGHI, J.
„Dev‟