Sh.Net Ram vs Union Of India & Ors.
2010 Latest Caselaw 529 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.3720/2001

%                        Date of Decision: 01.02.2010

Sh.Net Ram                                              .... Petitioner
                        Through Mr. Shyam Babu, Advocate.

                                  Versus

Union of India & Ors.                           .... Respondents
            Through       Mr. Rohit Madan, Advocate.
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.

*

1. The petitioner after his dismissal as sub-Inspector of Delhi Police

has challenged the order dated 7th December, 2000 passed in OA No.

1602/1999 titled as Ex. Sub-Inspector Net Ram Vs. UOI & Ors.

dismissing his OA under Section 19 of the Administrative Tribunal Act,

1985 seeking setting aside the order dated 30th October, 1997

dismissing him from service and setting aside of orders dated 11th

March, 1998 and 18th February, 1999 dismissing his appeal and the

revision petition and order dated 16th October, 1996 by which the name

of the petitioner was entered in the list of officers with doubtful

integrity.

2. Brief facts to comprehend the present disputes are that the

petitioner jointed as a constable in Delhi Police and subsequently he

was promoted as sub-inspector. The petitioner was posted in special

staff/North East District when a complaint was lodged against him and

other police officials by Sh. Nanhe Mal, pursuant to which a preliminary

inquiry was conducted and on the basis of the preliminary enquiry it

was ordered to conduct a regular departmental inquiry and he was

placed under suspension on 24th April, 1996.

3. Charge sheet was issued against the petitioner and the

departmental inquiry was conducted. The inquiry officer gave his

findings holding the petitioner guilty of the charges. After having an the

inquiry report, a reply was submitted by the petitioner to the

Disciplinary Authority, considering which the punishment of dismissal

from service was imposed on the petitioner and his period of suspension

was ordered to be treated as not spent on duty.

4. The petitioner had preferred an appeal against the order of the

Disciplinary Authority dismissing him from service which was

dismissed by the Appellate Authority. A revision petition was also filed

which was also dismissed.

5. The petitioner thereafter filed an OA under Section 19 of the

Administrative Tribunal Act, 1985 seeking quashing of the orders

passed against him and his reinstatement. The petitioner had

contended that there is no evidence against him showing his culpability

to the charges made against him, as the complainant Sh. Nanhe Mal

had not recognized him during the proceedings before the inquiry officer

and identified another person/another delinquent official Sh. Ranbir

Singh as Net Ram. The petitioner had also contended that one of the

sons of the complaint and his one helper before the Inquiry Officer in

their testimonies had completely absolved the petitioner of the charges

made against him. In the circumstances, it was contended that it is a

case of no evidence and the extreme punishment of dismissal from

service could not be awarded to him as the proof required for the

extreme penalty of dismissal is much higher than mere preponderance

of probability.

6. The petition before the Tribunal was contested by the

respondents contending inter-alia, that Nanhe Mal, complainant had

made a complaint on 23rd April, 1996 that the petitioner along with

other officials of the special staff had forcibly picked up his son

Subhash Chand and two servants from their cold drink shop and

accused them of manufacturing spurious cold drinks and recovered 70

crates of cold drinks including a three wheeler scooter. In order to

extort money, a threat was given that unless an amount of Rs. 50,000/-

as illegal gratification is paid, they would be involved in false criminal

cases. The son of the complainant and his servants were detained for

more than 20 hours. The allegation of beating Subhash Chand and his

servants and misbehavior was also made. It was also contended that

the son of the complainant, his helper and part of the goods were

released after extorting Rs.30,000/- from the complainant.

7. The allegations against the petitioner were inquired by the DCP/

North-East District who found the allegation to be correct and it had

also transpired that a false DD No. 11 was lodged stipulating that the

special staff party had checked one tempo carrying cold drinks, which

was brought to special staff office for verification and thereafter, it was

allowed to go. The petitioner and others, officials of the special staff

rather denied that the complainant and his servants were un-

authorizedly and wrongfully detained. It was also found that the

officials of the special staff including the petitioner had kept 11 crates of

cold drinks out of 70 crates and returned 59 crates and released

Subhash Chand and others along with the three wheeler after

extracting Rs. 30,000/- from them.

8. The Central Administrative Tribunal after considering the

pleadings and contentions of the parties held that the order of the

disciplinary authority did not suffer from any illegality or irregularity

which would require any interference by the Tribunal. The plea of the

petitioner that there was no cogent evidence against him was also

rejected and the punishment awarded to the petitioner was upheld.

Against the order of the Tribunal, the petitioner has preferred the

present writ petition impugning the order of the Tribunal upholding the

order of dismissal by the Disciplinary Authority which was affirmed by

the Appellate and Revisional Authorities.

9. Learned counsel for the petitioner Mr. Shyam Babu has

challenged the order of the Tribunal and punishment awarded to the

petitioner on the ground that in case of petitioner there is no evidence

against him, as the complainant Sh. Nanhe Mal had not identified him

before the Inquiry Officer. It was contended by the learned counsel that

though in the preliminary inquiry, the complainant is alleged to have

identified the petitioner, however, the concerned DCP before whom the

complainant had identified the petitioner had not been examined. In

order to buttress his plea that in the case of the petitioner there is no

evidence against him, it is asserted that the statement of Sh. Subhash

Chand, son of the complainant also absolve him, as he categorically

deposed that he was not beaten up and misbehaved with and all the

crates of cold drinks seized from the complainant were returned. It is

pleaded by the learned counsel that the relevant testimonies have been

completely ignored by the respondents. The learned counsel has also

raised the dispute about the proportionality of the punishment awarded

to the petitioner. For proving the guilt of the punishment and awarding

the extreme punishment of dismissal, according to learned counsel, it is

not the preponderance of probability but it has to be proof of guilt

beyond reasonable doubt.

10. The Tribunal while considering the case of the petitioner, relying

on N. Rajarathinam Vs. State of Tamil Nadu 1997 (1) SLJ 10 has held

that the Tribunal is not a fact finding body and so long as on the

preponderance of probability even on the basis of one witness an

inference can be reached regarding the culpability of the delinquent

employee, the Tribunal does not have to interfere with decision of the

Disciplinary Authority. The Tribunal also noted that there is no

infirmity in the proceedings followed by the Disciplinary Authority and

the Appellate Authority in conducting the departmental inquiry and

consequent thereto the orders passed and the punishment imposed on

the petitioner could not be interfered with.

11. The learned counsel for the petitioner has not argued and raised

any point regarding any infirmity in the procedure followed by the

respondents in conducting the departmental inquiry, however, what is

stressed is that there is no evidence against the petitioner as even the

inquiry officer in the inquiry report had noted that the petitioner was

not identified by the complainant Sh. Nanhe Mal.

12. Though, this Court does not have to re-appreciate the evidence

and give its own finding of facts, however, it can take cognizance of

entire facts and circumstances of the case and pass appropriate orders

to give parties complete and substantial justice. The jurisdiction of the

High Court, being extraordinary, is normally exercisable keeping in

mind the principal of equity and one of the ends of the equity is to

promote fair play.

13 The learned counsel for the petitioner, though, emphasized that

in case of imposition of penalty of dismissal, it is not the preponderance

of probability on the basis of which the inference of guilt has to be

established and it has to be something more almost equivalent to proof

beyond reasonable doubt, however, learned counsel for the petitioner is

unable to substantiate his proposition on the basis of any precedent of

the Supreme Court or the High Court.

14. In the circumstances we are not inclined to hold differently that

in departmental proceedings the charges are to be proved like in a

criminal trial that is beyond all reasonable doubts, even in cases of

extreme penalty of dismissal. In order to infer guilt of a delinquent, the

inquiry officer performing quasi judicial function on analyzing the

evidence and documents must arrive at a conclusion that on the basis

of preponderance of probability the charges are established on the basis

of materials on record. While doing so, the inquiry officer and the

Disciplinary Authority cannot take into consideration irrelevant facts

and refuse to consider the relevant facts. Even, the burden of proof

cannot be shifted nor relevant testimony of the witness can be rejected

on the basis of surmises and conjectures. The inquiry officer also

cannot enquire or go into the allegation with which the delinquent

officers had not been charged with. These principals were reiterated by

the Supreme Court in (2006) 5 SCC 88 in M. V. Bijlani Vs. UOI & Ors.

detailing about the process of judicial review and decision making

process. It was held at page 95 by the Supreme Court as under:-

25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some 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, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the 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 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.

15. Since the counsel for the parties were also at issue about the

noticing the evidence by the enquiry officer, therefore, in order to

appreciate the contention of the learned counsel for the petitioner, we

obtained the photocopies of the statements of Nanhe Mal, Complainant,

PW 4, his son Sh. Subhash Chand, PW5, Sh. Krishan Pal, helper of the

complainant, PW6 and Sh. Vinod Kumar, another son of the

complainant, PW7 recorded before the Disciplinary Authority and

perused the same and copies were also ordered to be given to the

counsel for the petitioner. Though, the gist of the testimonies of the

witnesses had been considered by the inquiry officer and incorporated

in the inquiry report, however, learned counsel for the respondent had

pointed out slight variation in few aspects which necessitated perusal of

the testimonies.

16. From the perusal of the testimony of PW 4 Sh. Nanhe Mal, it is

apparent that he has categorically implicated the petitioner and other

official in his examination-in-chief and he categorically deposed that the

police personnel present at the time of recording the statement and

departmental inquiry, including the petitioner had come on 15th April

at 7 O'clock at the shop of Subhash Chand, his son and made an

allegation of spurious campa cola stored by them. On showing the bills

pertaining to the goods which were alleged to be spurious, he was told

that they know how to make duplicate bills and difference between the

original and duplicate bills which were given. From his statement, it is

apparent that he is definite and his statement is cogent about the

threats extended to him and that he was pressurized to give Rs.

50,000/- for the release of his son, the helper and the goods. He stated

that when the police personnel including petitioner did not release his

man and his goods, a telegram was given to Sh. Nikhil Kumar at 2:30

AM on 16th morning. He has stated that next day in the morning, when

he again went and told that he will get the bail for his man, who had

been detained by these police personnel including the petitioner, then

he was told not to waste that money in litigation and rather settle with

the police including petitioner and instead of Rs. 50,000/-, to pay Rs.

30,000/- to them. Since the demand was decreased to Rs. 30,000/- the

complainant sent his grandson Sh. Rakesh Kumar with the key of the

trunk of his grandmother to go and fetch Rs. 30,000/- which amount

was paid to the petitioners Sh. Jiyaram, Sh. Ranbir and Sh. Jatanbir

Singh, who were in the police station. The complainant has categorically

stated that the money was paid to the petitioner including other police

personnel.

17. In the cross-examination to question No. 5 as to at his place how

many and which of the police personnels had come, he stated that four

police personnel, i.e., Sh. Jiyaram, Sh. Net Ram(petitioner), Sh.

Jatanbir and Sh. Ranbir had come. He stated that earlier he did not

know their names however, he came to know their names later. In the

reply to question 6 in the cross-examination, out of five persons, he did

not recognize two persons correctly, i.e., he did not identify the names

of two persons correctly but identified them and stated that they had

come to his shop and even money was given to them. From the tenor of

entire cross-examination, it cannot be held that he did not identify the

petitioner as not having come to his place. Merely because the name of

the petitioner was not correctly recollected by the petitioner in the cross

examination, who is very aged, his testimony that the money was given

to Net Ram, petitioner and others cannot be doubted nor it can be held

that there is no evidence against the petitioner.

18. The complainant at one point in the cross-examination referred

Net Ram as Ranbir and Ranbir as Net Ram. However, on the basis of

this, it cannot be held that there is no evidence against Net Ram

because the complainant identified both, i.e., Net Ram and Ranbir, who

had come to the shop and to whom on account of the pressure, an

amount of Rs. 30,000/- was paid. In the reply to question 17 of the

cross-examination as to with whom the settlement to pay Rs. 30,000/-

was finalized, he stated that it was with the petitioner. He even gave

the denomination of the notes of the amount of Rs. 30,000/- which

were of 100 rupees and 50 rupees. In the reply to question 19 in the

cross-examination, the complainant had stated that at the time when

the money was paid, 5-6 persons were present, however, the money was

handed over to Jiyaram and Net Ram/petitioner.

19. In the circumstances, the plea of the learned counsel for the

petitioner that there is no evidence against the petitioner cannot be

accepted. The testimony of the complainant is sound and reliable and

cannot be ignored. Learned counsel Sh. Shyam Babu has tried to

discredit the statement of the complainant on the basis of the cross-

examination of Sh. Subhash Chand who stated that the police

personnel had not beaten him whereas according to the complainant,

the police personnel had beaten him. However, perusal of the cross-

examination of the complainant reveals that his statement was that Sh.

Jatanbir, other police personnel had beaten his helper Sh. Krishan Pal.

The complainant had not deposed that his son Sh. Subhash Chand was

beaten up by police personnel and consequently, on this ground the

testimony of the complainant cannot be doubted or ignored. Though,

Sh. Krishan Pal, helper of the complainant in the cross-examination,

stated that he was not beaten up by the police contrary to the

statement of the complainant but on the basis of this, the remaining

testimony of the complainant cannot be discredited.

20. In the circumstances it is not a case where the enquiry officers

has rejected any testimony on the basis of surmises and conjectures.

From the entire testimonies of the witnesses it also cannot be inferred

that the enquiry officer has taken into consideration irrelevant facts.

The culpability of the petitioner in picking up the son of the

complainant and his helper and releasing them after accepting illegal

consideration has been established without any doubt. There was no

reason for the complainant to implicate petitioner and other police

personnel. The enquiry officer has also taken into consideration the

false DD entry made at the instance of petitioner and other police

personnel of special staff. In the circumstances the plea of the learned

counsel for the petitioner that there is no cogent evidence against the

petitioner cannot be accepted. Merely because there is minor variance

in the testimony about the beating of the helper by another police

personnel, neither the charges against the petitioner are mitigated nor

he can be absolved of them. From the report of the enquiry officer it also

cannot be inferred that he had enquired into the allegations with which

the petitioner has not been charged with. In the circumstances taking it

from any angle and on any account, the petitioner cannot be absolved

of the charges made against him.

21. Disciplinary and appellate authority have considered these

statements in detail. In the facts and circumstances, the contention of

the learned counsel for the petitioner that there is no cogent evidence

against the petitioner is without any basis. The evidence as discussed

hereinabove shall be sufficient to demonstrate the culpability of the

petitioner. In the circumstances, the petitioner is not entitled for any

relief on the ground that the findings of the enquiry officer and the

respondents are based on no evidence or are based on surmises or

conjectures or that the relevant evidence was not considered.

22. No other ground has been raised by the learned counsel for the

petitioner impugning the order of the disciplinary authority and other

authorities imposing the punishment of dismissal from service.

Brazenness with which the petitioner in collusion with other police

officials violated the rules and extorted money from an innocent

businessman does not entitle the petitioner for any leniency and it

cannot be held that the punishment imposed by the respondent is

disproportionate. The petitioner was entrusted with the maintenance of

law and order and he was in the special staff. The power and authority

given to him was exploited by him brazenly for his personal ends and in

the circumstances, there is no scope to differ with the punishment

awarded by the disciplinary authority. The order of the Tribunal does

not suffer from any such illegality or irregularity so as to entail any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India.

23. The writ petition is without any merit and it is therefore

dismissed. Parties are however, left to bear their own costs.

ANIL KUMAR, J.

FEBRUARY 01, 2010                               MOOL CHAND GARG, J.
'rs'