Govt. Of Nct Of Delhi vs Ct. Gyanender Singh
2010 Latest Caselaw 2061 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           WP(C) No.2626/2010
%

                        Date of Decision: 20.04.2010


Govt. of NCT of Delhi                                      .... Petitioner
                   Through     Mr. Rattan Lal, Advocate


                                 Versus


Ct. Gyanender Singh                                   .... Respondent
                 Through      Ms. Menu Maini and Mr. Anil Singhal,
                              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, Govt. of NCT through Commissioner of Police has

challenged the order dated 11th May, 2009 of Central Administrative

Tribunal, Principal Bench in OA 2264/2008 titled Constable Gyanender

Singh Vs. Govt. of NCT of Delhi allowing the original application of the

respondent and setting aside the order dated 17th August, 2007 of the

Disciplinary Authority imposing a major penalty of forfeiture of one year

approved service and also setting aside the order dated 16th July, 2008

rejecting the appeal of the respondent.

The respondent was proceeded in departmental inquiry on the

allegation that on 7th/8th July, 2006, while posted in Karol Bagh Traffic

Circle and detailed for night duty at Faiz Road-DBG Road Crossing. At

that place Head Constable had allegedly, taken bribe from the truck

driver in the guise of entry fee and at that time since, the respondent

was also present, therefore, it was alleged that he had also connived

with others, though the charge of conniving with other and demanding

and accepting bribe was not framed against the respondent. On the

basis of the inquiry report, Disciplinary Authority passed an order dated

17th August, 2007, imposing a major penalty of forfeiture of one year

approved service and an appeal filed against the said order was also

dismissed by the Appellate Authority by order dated 16th July, 2008.

The respondent had challenged the major penalty imposed upon

him on the ground that the case against the respondent was a case of

no evidence and the Disciplinary Authority had found the respondent

guilty of connivance with other police officials in demanding and

accepting the bribe, which was not the charge leveled against the

respondent.

The respondent contended that he could not be punished for a

charge which was not framed against him and in the circumstances,

imposition of penalty on the charge which was not framed is in denial of

the principal of natural justice and is also contrary to Rule 16 (ix) of

Delhi Police (Punishment and Appeal) Rules, 1980.

The petition was contested by the petitioner on the ground that if

the respondent was present where the Head Constable had taken the

bribe, then a valid presumption in law will arise that the respondent

had also connived and had accepted the bribe. It was also asserted that

finding of Disciplinary Authority is on the basis of presence of police

officials and thus the punishment imposed on the respondent was

justifiable.

The Tribunal, after considering the respective pleas, held that

though the hearsay evidence may be admissible in certain

circumstances, however, after considering the entire evidence, it was

held that there is no evidence recorded that any demand was made by

the respondent or the bribe was accepted by him or on his behalf. It

was held that merely because a person was present at a particular place

where some other person had taken bribe will not demonstrate the

culpability of the respondent that the bribe was accepted on his behalf

and he would have shared the bribe unless it is alleged specifically that

there was connivance between the respondent and other police

personnel.

The Tribunal, relying on Union of India Vs. HC Goyal, AIR 1964

SC 364 and Kuldeep Singh Vs. Commissioner of Police, JT 1998 (8) SC

603, also held that mere suspicion and surmises would not take place

of the proof and in absence of any evidence, no misconduct could be

inferred or punishment can be imposed even on the basis of

preponderance of probability.

The evidence relied on by the Tribunal was that the driver Sh.

Tribhuwan and the labourer Sh. Sunil Kumar did not identify the

respondent and the evidence only show that the respondent was

present, however, nothing else had been deposed against him and in

the circumstances, the inferences, as had been drawn by the Inquiry

Officer and the Disciplinary Authority were found to be perverse and the

findings based on no evidence.

Learned counsel for the petitioner has very emphatically

contended that if the respondent was present at the spot then he must

have connived with the Head Constable against whom there is ample

evidence of demanding and accepting the bribe. According to him since

the respondent was present, a valid presumption can be drawn against

him.

The learned counsel for the petitioner is, however, unable to show

that any such presumption can be raised in law. In the absence of any

specific charge against the respondent that he had connived with the

other police official and the demand was made on his behalf also and he

had accepted the part of bribe, the findings could not be given against

the respondent as the same would be in denial of the principal of

natural justice. No specific charge was framed against the respondent

that he connived with others to demand the bribe.

The jurisdiction of the Tribunal in judicial review is limited.

Disciplinary proceedings, however, being quasi-judicial in nature, there

should be some cogent and reliable evidence to prove the charge.

Although the charges in a departmental proceeding are not required to

be proved like a criminal trial i.e. beyond all reasonable doubt, but it

cannot be lost sight of the fact that the enquiry officer performs a quasi-

judicial function, who upon analysing the evidence and documents

must arrive at a conclusion that there had been a preponderance of

probability to prove the charges on the basis of materials on record.

While doing so, he cannot take into consideration any irrelevant fact. He

cannot refuse to consider the relevant facts. He cannot make his own

assumptions. He cannot shift the burden of proof. He cannot reject the

relevant testimony of the witnesses only on the basis of surmises and

conjectures. He cannot enquire into the allegations with which the

delinquent officer had not been charged with.

The learned counsel for the petitioner is also unable to show any

evidence on record, which would show that there was a demand or

acceptance of bribe against the respondent. The learned counsel is also

unable to show that any witness has implicated the respondent except

deposing that the respondent was present there. The driver Sh.

Tribhuwan and labourer Sh. Sunil Kumar have rather not identified the

respondent nor deposed anything against the respondent.

In the circumstances, it is inevitable to infer that there was no

evidence against the respondent and in the circumstances, the Tribunal

and the Appellate authority committed a grave error in imposing a

punishment of forfeiture of one year approved service as the same was

based on no evidence.

The learned counsel for the petitioner, in the circumstances, is

unable to show any illegality or irregularity or such perversity in the

order of the Tribunal, which will necessitate interference by this Court

in exercise of its jurisdiction under Article 226 of the Constitution of

India.

The writ petition is without any merit, and it is, therefore,

dismissed.

ANIL KUMAR, J.

APRIL 20, 2010                                MOOL CHAND GARG, J.
'rs'