Chief Secretary Of Government Of ... vs Sh.Jai Bhagwan
2010 Latest Caselaw 2255 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C ) No.2832/2010

%                         Date of Decision: 28.04.2010

Chief Secretary of Government of NCT of Delhi &       .... Petitioners
others
                      Through Ms.Avnish Ahlawat, Advocate.

                                  Versus

Sh.Jai Bhagwan                                           .... Respondent
           Through                Nemo.

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 in             NO
      the Digest?


ANIL KUMAR, J.

*

The petitioner, Government of NCT of Delhi & others, have

challenged the order dated 30th October, 2009 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi in T.A.No.718 of

2009, titled as 'ASI Jai Bhagwan v. Government of NCT of Delhi &

other', quashing the penalty orders dated 08th February, 2008 and the

appellate order dated 21st May, 2008 and allowing the Original

Application filed by the respondent.

Brief facts to comprehend the controversies are that while the

respondent was posted at P.S. Moti Nagar, a complaint about a quarrel

at Automobiles showroom at A-12 Shivaji Marg, Najafgarh Road, Delhi

was received and was entrusted to him for necessary action. The

respondent went to the site of quarrel and brought both the parties to

the police station and a DD No.33-A dated 12.4.2007 was recorded after

some time stipulating that both the parties do not want any criminal

action.

The complainant Sh.Manish Gupta was, however, allegedly not

satisfied and made a written complaint to the Commissioner of Police

which was enquired through P.G.Cell, West Delhi and an FIR

No.293/dated 25.04.2007, under Sections 341/506/323 /34 I.P.C. was

registered pursuant to the complaint of Sh. Manish Gupta.

Since the F.I.R. was not registered at the instance of complainant

on 12.4.2007, it was alleged that the act of the respondent amounted to

grave misconduct, negligence, carelessness and dereliction in discharge

of official duty and unbecoming of a member of police force which

renders him liable to be dealt with in departmental enquiry under the

provisions of Delhi Police (Punishment & Appeal) Rules, 1980.

The charges against the respondent were denied by him and a

detailed enquiry was instituted. In the detailed enquiry, five witnesses

were examined on behalf of the department and four witnesses were

examined on behalf of the respondent. On the basis of the enquiry

report, the disciplinary authority imposed major punishment of

withholding one future increment of the respondent with cumulative

effect by order dated 08th February, 2008. The appeal filed by the

respondent was also dismissed by order dated 21st May, 2008, and the

major punishment of withholding of one future increment with

cumulative effect was upheld.

Before the tribunal, it was contended on behalf of the respondent

that prima facie the alleged guilt of the respondent was not made out,

and the action has been taken on account of influencial individual who

had agreed for settlement before the respondent, consequent to which

appropriate DD entry was made, and only after going back home, he

changed his mind and sent a complaint to the higher authorities. The

complainant had gone to the service station to get his car serviced and

he was not satisfied with the treatment that was given to him as he was

expecting a free service of the vehicle which he had purchased, but the

service station staff demanded an amount of Rs.400/- for replacement

of an item. According to the complainant, the persons working in the

service station had misbehaved with him and his wife and they had

threatened to kill them and so he called a PCR van and thereafter the

respondent who was entrusted with the complaint had come to the

spot.

The Tribunal has considered the pleas and contentions of the

parties in detail as well as the evidence led before the enquiry officer as

the allegation was of inferences drawn by the authorities without any

cogent evidence and ignoring relevant evidence adduced by the

respondent. Considering the evidence of defence witnesses, it was also

noticed by the Tribunal that when the complainant was told that the

Car could be serviced only pursuant to payment of the cost of the part

which was to be replaced, he had refused to get service done and taken

away his vehicle outside and he had even thrown stone on the building.

From the evidence of the respondent and his witnesses, it was inferred

that the possibility of the compromise between the complainant and the

opposite parties who had been taken to the police station by the

respondent could not be ruled out and in the circumstances, the

recording of DD entry by the respondent that the parties had settled

their matter and have agreed to take appropriate action in the

Consumer Court could not be ruled out. The tribunal also relied on the

fact that registering the F.I.R. might have implicated the complainant

himself as even he had pelted stone on the service station, and

therefore, he agreed not to get an FIR registered, is a very probable

inference which evidence has been completely ignored by the enquiry

officer and thereafter the disciplinary authority, and therefore, the

punishment order and the appellate authority order are based on no

evidence and were interfered with and quashed by the Tribunal.

The learned counsel for the petitioner contended that the

Tribunal could not re-appreciate the findings of the disciplinary

authority and the appellate authority could not have substituted with

its own findings. However, this cannot be disputed that if the relevant

evidence is not considered by the enquiry officer, and the case is of no

evidence for imputation of charge, then the Tribunal will be justified in

interfering with inferences drawn by the enquiry officer and the

punishment imposed by the disciplinary authority on the basis of the

same. The Tribunal was also influenced by the facts that though an FIR

was later on registered, however, what happened to the criminal case

has not been considered either by the disciplinary authority or by the

appellate authority.

Considering the facts and circumstances, it was held that the

possibility that the parties had agreed specially complainant not to get

the complaint registered as an FIR was distinctly there because he had

also indulged in stone thrown on the Automobiles Workshop. The

allegation against the respondent is not that he got some benefits by not

getting the FIR registered. No such evidence has been led before the

enquiry officer. The statement of PW-3, Sh. Manish Gupta,

complainant, also does not show much culpability of the respondent as

it was alleged by him that they wanted to meet to SHO but could not

meet as the ASI was busy for about two hours. This is not in dispute

that without the ASI, the complainant could go and meet the SHO. If

the complainant did not and could not meet the SHO, the respondent

could not be blamed for it.

In the circumstances, if the complainant Sh.Manish Gupta agreed

not to take the criminal matter any further and to claim the damages

from the service station through the Consumer Court cannot be ruled

out completely. In the circumstances, it is apparent that the enquiry

officer has taken into consideration irrelevant facts and has ignored the

relevant testimonies of the respondent's witnesses and his inferences

are based on only his assumption.

Though the jurisdiction of the Tribunal in judicial review is

limited, yet the enquiry officer has to analyse the evidence and

documents to prove the charges without taking into consideration

irrelevant facts. The enquiry officer could not reject the relevant

testimonies of the witnesses of the defence on the basis of his own

surmises and conjectures. In the circumstances, interferences by the

Tribunal with the order of the disciplinary authority and the appellate

authority cannot be termed to be such an illegality, or irregularity or

the order suffering from such perversity which is to be interfered by this

Court .

In any case in exercise of its jurisdiction under Article 226 of the

Constitution of India, it has always been the discretion of the Court to

interfere, and not to depend upon the facts and circumstances of the

case. The Court can take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give complete

substantial justice keeping in mind the principle of equity. One of the

ends of equity is to promote honesty and fair play and in the

circumstances, it will not be appropriate to interfere with the order of

the Tribunal setting aside the penalty of stoppage of one future

increment with cumulative effect on account of alleged non-registration

of the FIR though there is a distinct possibility that the parties specially

complainant agreed to take appropriate action under the Consumer

Protection Act, as he had also indulged in stone pelting on the service

station.

In totality of facts and circumstances, there is no ground to

interfere with the order of the Tribunal impugned before this Court by

the petitioner and the writ petition is without any merit, and it is

therefore, dismissed.

ANIL KUMAR, J.

APRIL 28, 2010                              MOOL CHAND GARG, J.
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