Radhey Shyam vs Government Of Nct Of Delhi And ...
2010 Latest Caselaw 1887 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.10056/2009

%                          Date of Decision: 12.04.2010

Radhey Shyam                                             .... Petitioner
                        Through Mr. Bhawani Shankar Sharma, Advocate

                                   Versus

Government of NCT of Delhi and others            .... Respondent
                 Through Ms. Anjum Jawal and Mr. Ali Afser,
                            Advocates

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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             NO
      in the Digest?




ANIL KUMAR, J.

*

The petitioner, an ASI with Delhi Police has challenged the

order dated 5th November, 2008 passed by the Central Administrative

Tribunal, Principal Bench in OA No. 17/2008 titled as Radhey Shyam

Vs. Govt. of NCT of Delhi, dismissing his original application filed

against the imposition of a penalty of forfeiture of one year approved

service by the order dated 29th June, 2006 and dismissal of his appeal

by the order dated 9th March, 2007.

The respondent had received the information of acceptance of

'illegal money' by traffic staff of North, Central and New Delhi districts

from commercial vehicles and on 3rd April, 2004 sufficient evidence

regarding involvement of the petitioner was collected and received.

The evidence against the petitioner included a statement of

the lorry driver with whom there had been confrontation with the

petitioner. The lorry driver had paid more money than the receipt which

was given to him and in the circumstances, the allegation of

intimidation were made against the petitioner and receiving the money

on account of intimidation. It had also transpired that the petitioner

had been carrying out intimidation and collecting illegal money at

places other than to which he had been deputed for duty. The

respondent considered the acts of the petitioner as misconduct and

appointed an inquiry officer, who examined six witnesses and came to

the conclusion after the witnesses were cross-examined and after

considering the statement of the petitioner as no other witnesses were

produced on behalf of the petitioner, that misconduct was made out

against the petitioner.

The disciplinary authority after considering the report of the

inquiry officer, awarded the penalty of forfeiture of one year approved

service which was up held in the appeal, which was also dismissed by

order dated 9th March, 2007.

Before the Tribunal, it was contended on behalf of the

petitioner that the provision of Rule 15(2) of Delhi Police (Punishment

and Appeal) Rules had been violated as no order was passed indicating

whether to initiate prosecution or departmental inquiry against the

petitioner. The learned counsel for the petitioner also contended before

the Tribunal that there was no evidence establishing the culpability of

the petitioner.

The counsel for the petitioner also contended violation of Rule

16(3) of Delhi Police (Punishment and Appeal) Rules on the ground that

statement of some of the witnesses examined in the preliminary inquiry

were relied upon without making efforts to secure their presence which

was contrary to the tenor of Rule 16(3).

After considering the respective pleas, the Tribunal had held

that the competent authority had taken a decision on 7th April, 2004,

deciding to initiate a regular departmental inquiry and it was decided

not to register a criminal case against him and in the circumstances,

there was no violation of Rule 15(2) of Delhi Police (Punishment and

Appeal) Rules as has been alleged by the petitioner.

The Tribunal also relied on the evidence of the driver of vehicle

DL 1LD 5229, Sh. Ganesh who was examined as PW 4 to support the

case of the prosecution and from his statement it can be inferred

without any doubt that the petitioner had been acting dishonestly. PW-

4's evidence is sufficient to implicate the petitioner, who has indicated

in clear terms that the money was demanded from him and receipt for a

lesser amount was issued. The evidence of Sh. Ganesh was construed

to be sufficient by the Tribunal and, in the circumstances, it was held

that the plea on behalf of the petitioner that there was no evidence

against him could not be sustained. The statement of PW-4 was

corroborated by other official witnesses, who were present on the

occasion and therefore, the Tribunal had held that it could not be

inferred that the entire incident was concocted. The discrepancies

regarding the description of the car in which the party had travelled and

absence of some of them were held to be minor discrepancies. It was

held that inferences drawn by the inquiry officer and the disciplinary

authority could not be faulted and were possible on the basis of

evidence adduced before the enquiry officer. The Tribunal also noted

that the strict rules of hearsay evidence, being not admissible, could not

be insisted upon.

The Tribunal also noted that the petitioner was unable to give any

cogent reason as to why he was at a place other than the place to which

he was deputed for his duty and also disbelieved the theory of enmity of

the team of inspection with the petitioner.

The learned counsel for the petitioner has raised similar pleas

before this Court in the present writ petition. Regarding the violation of

Rule 15(2), the learned counsel for the petitioner has not been able to

refute the order dated 7th April, 2004 whereby, it was decided to

proceed with the departmental proceedings and not to file any criminal

case against the petitioner in compliance with Rule 15(2) of Delhi Police

(Punishment and Appeal) Rules. In the circumstances, it cannot be held

that there is violation of Rule 15(2) of above stated Rules.

Regarding violation of Rule 16(3) of the Delhi Police (Punishment

and Appeal) Rules, though there does not appear to be sufficient

evidence in respect of some of the witnesses regarding ascertaining their

non availability, however, if the evidence which can be relied on and

which is not contrary to provision of Rule 16(3), the inferences drawn

and a punishment imposed cannot be refuted can be based on the

same.

The plea of the learned counsel for the petitioner that there was

no evidence against the petitioner stands negated by the statement of

Sh. Ganesh-PW 4 who has been categorical in implicating the petitioner

and establishing his culpability. Perusal of the statement of PW-4

reflects that he was categorically about the payment of money and the

receipt issued to him for the lesser amount. The learned counsel for the

petitioner has also not been able to refute that the statement of PW-4

Sh. Ganesh which also stood corroborated by the official witnesses.

In the circumstances, it cannot be held that the case against the

petitioner is of no evidence as has been tried to be contended by learned

counsel for the petitioner. There is sufficient evidence against the

petitioner and, in the circumstances, on the ground that there is no

evidence, the punishment imposed upon him by order dated 29th

March, 2006 of forfeiture of one year approved service and the dismissal

of appeal dated 9th March, 2007 cannot be interfered with.

The learned counsel for the petitioner has very emphatically

contended that the Punjab Police Rules are applicable to the officials

and the personnel of Delhi Police and Rule 22(48) contemplates making

entries in the daily diaries in case a person deputed at some place goes

to another place.

Though, the entries in the daily diary were made but that does

not justify and give sufficient reason to the petitioner to go to a place

other than to which he was deputed. In the circumstances, the counsel

is unable to show any cogent reason and justification for going to

another place other than the place where he was deputed.

In the circumstances, the implication of the petitioner to the acts

which amounts to misconduct cannot be doubted and the learned

counsel for the petitioner has failed to show any such illegality or

irregularity in the decision of the Tribunal which would entail any

interference by this Court. In the facts and circumstances, the writ

petition is without any merit and it is therefore dismissed.

ANIL KUMAR, J.

APRIL 12, 2010                                  MOOL CHAND GARG, J.
'rs'