Asi Raj Pal & Others vs Govt. Of N.C.T.D. (Through ...
2010 Latest Caselaw 882 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI


+                             W.P. (C.) No.9010/2008


%                          Date of Decision: 16.02.2010


ASI Raj Pal & Others                                      .... Petitioners
                           Through Mr.Sachin Chauhan, Advocate


                                    Versus


Govt. of N.C.T.D. (through Commissioner of Police) .... Respondents
& Others
                      Through Mr.Aditya Madan, Advcoate



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 petitioners, an ASI and Constable in Delhi Police, had

challenged the order dated 19th August, 2005 ordering departmental

inquiry against them and the order dated 1st June, 2006 of the

Disciplinary Authority awarding punishment of censure and the

order of Appellate Authority dismissing their appeals by filing an

original application being OA No.1502 of 2007 which was dismissed by

the Principal Bench, Central Administrative Tribunal, by order dated 4th

February, 2008 which is challenged by the petitioners in the present

writ petition.

2. The petitioners had joined departmental inquiry initiated against

them on the allegation that they were found indulging in mal-practice of

collection of illegal money from commercial vehicles. The driver of the

truck No.DL 1 LB 4918, Arun Kumar, was though charged Rs.150,

however, challan for Rs.100/- was issued to him. The petitioners had

told the driver that challan will serve his purpose till 12 mid night.

Later on the driver, Arun Kumar, in the office of ACP, PRG had

identified the petitioner No.2, Kuldeep, and had told that he had sent

him to Seargent, petitioner No.1, and who had asked the driver to pay

Rs.50/- in addition to compounding amount. The driver had also

identified the petitioner No.1, Shri Raj Pal, who had accepted Rs.150/-

though had issued a challan of Rs.100/- only.

3. During the inquiry, five prosecution witnesses were examined and

four defense witnesses were examined and the enquiry report was

submitted to the disciplinary authority. The disciplinary authority had

held that the Inquiry Officer had no reason to disbelieve the senior

officer who had deposed before the enquiry office and, therefore, it was

held that the charge against the ZO/ASI Raj Pal, petitioner No.1, and

Constable Kuldeep, petitioner No.2, stood proved. The Disciplinary

Authority though noted that there was no direct evidence of transaction

of money, however, the statement of Assistant Commissioner of Police

could not be ignored completely who appeared as a witness and was

elaborately cross-examined and after considering the Rule 16(iii) of

Delhi Police (Punishment & Appeal) Rules, 1980 and the entirety of the

facts and circumstances had issued censure to the petitioners. The

Appellate Authority also upheld the issuance of censure to the

petitioners and had dismissed their appeal.

4. Before the Tribunal it was contended by the petitioners that the

evidence of the ACP is a hearsay evidence and could not be accepted

and that the driver who admitted before the ACP about paying Rs.50

extra to the petitioners, denied the same when he appeared before the

Inquiry Officer and that ACP had not witnessed the transaction and in

the circumstances, there was no evidence for issue of censure against

the petitioners. It was further contended by the learned counsel for the

petitioners that the evidence of the driver could not be brought on

record because the witness himself appeared during the inquiry and

referred to Rule 16(iii) of Delhi Police (Punishment & Appeal) Rules,

1980. Learned counsel for the petitioners also relied on Kuldeep Singh

v. Commissioner of Police and others, JT 1998 (8) SC 603.

5. The Tribunal noted that except the statement of ACP, who

appeared as PW5, there was no other evidence against the petitioners

who stated that he had visited the area and whatsoever was observed

by him has been detailed by him in his report which has been exhibited

as PW5/1. In the cross-examination to the question, "Whether driver

made any complaint to him?", he stated that when he stopped the

driver of the truck, Arun Kumar, and inquired about the challan, he

had disclosed about the overcharging from him by the petitioners. He

also stated that only after the complaint was made to him by the driver,

Arun Kumar, the identification was done by the driver on 6th June,

2005. The report of surveillance conducted by the ACP on 24th June,

2005 had been considered and noted by the Tribunal and the entire

report has been reproduced in the order dated 4th February, 2008.

6. The Tribunal has noted that it is not the statement of the driver

recorded in the preliminary statement which is relied on but what has

been relied on is the statement of Assistant Commissioner of Police to

whom the driver had made the complaint personally pursuant to which

he came to know about the misconduct. This is also noted by the

Tribunal that no motive had been attributed against the Assistant

Commissioner of Police regarding any hostility towards the petitioners

nor any inconsistencies in his statement could be found. Since the

Tribunal did not doubt the credibility of the Assistant Commissioner of

Police and his report, distinguishing the case of Kuldeep Singh (supra),

the Tribunal upheld the penalty of censure given to the petitioners. It

has also been noted that in case two views are possible, in exercise of

judicial review, it will not be appropriate to substitute the view of the

Disciplinary Authority by the view, if any, of the court exercising the

power of judicial review and consequently the original application was

dismissed.

7. The learned counsel for the petitioner has raised similar

contentions and pleas before this Court and has also relied on the Writ

Petition (C) No.6503 of 2008, Hari Singh v. Government of N.C.T. of

Delhi decided on 5th September, 2008. In Hari Singh (supra), it was

held by the Division Bench of this Court there was no evidence against

the delinquent Constable and had relied on the fact that when the

inspecting team requiring the Constable to empty out his pocket, only

one Rs.50/- note had come out whereas according to the statement

given to the inspecting team by two tempo drivers, he should have had

Rs.100/- in addition to the challan money. The disciplinary authority

had imposed the punishment on the delinquent officer, however, the

Appellate Authority though had accepted the appeal of the delinquent

Constables, still the penalty of censure was imposed. In these

circumstances, it was held that if the appeal was accepted by the

Appellate Authority and the punishment awarded by the Disciplinary

Authority was set aside, there was no ground for the Appellate

Authority to impose the punishment of censure. In contradistinction to

the facts of the case relied on by the petitioner, the driver of the truck,

Mr.Arun Kumar, during inspection which was being carried out by the

ACP on production of challan had disclosed that the extra amount of

Rs.50/- was paid by him to the petitioner. Since the ACP had not

witnessed the incident of paying extra amount and the complaint was

made to him later on, he got the identification done where the driver

had identified both the petitioners and consequently the Assistant

Commissioner of Police had given his detailed report and appeared also

as a witness and proved the record. No suggestion was given to the

ACP for implicating the petitioners falsely or settling scores with them

for any reason. The petitioners also, in the cross-examination, did not

even suggest that the said witness had deposed falsely or the driver,

Arun Kumar, had not complained to him later on when he had carried

out the inspection and had stopped the vehicle and the challan was

shown by the driver which was issued to him earlier by the petitioners.

In the circumstances, apparently the ratio of the case of Hari Singh

(supra) is distinguishable and the petitioners cannot place reliance on

the same.

8. 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 the

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 in two cases. The Supreme Court in Bharat Petroleum

Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778)

had held that a decision cannot be relied on without considering the

factual situation. In the judgment the Supreme Court had observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not

interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

In Rafiq Vs State, (1980) 4 SCC 262 it was observed as under:

"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."

9. In Hari Singh (supra) though the appellate authority had set aside

the order of the disciplinary authority holding that there was no

evidence against the delinquent, yet had awarded censure, which

decision was set aside by the Court. Apparently the ratio of Hari Singh

(supra) is different and distinguishable. Learned counsel for the

petitioners has also emphatically relied on the ratio of the judgment of

the Apex Court, Kuldeep Singh (supra) to contend that the statement of

the driver recorded during the preliminary investigation could not be

relied on as the driver had appeared before the Inquiry Officer.

However, on perusal of the evidence, it is apparent that the finding of

misconduct on the part of petitioner is not based on the statement of

the driver during the preliminary investigation but after considering the

entire evidence and on the basis of preponderance of probability, the

Inquiry Officer has not ignored the statement of ACP who had appeared

as PW5 and his report as PW5/1. In the cross-examination, no

suggestion was even given to the said witness that his report dated 8th

June, 2005, which was exhibited as PW5/1, was incorrect or that he

has malafide intention against the petitioners or he has falsely

implicated them. If some cogent evidence is available to the Inquiry

Officer for arriving at an inference, it cannot be held that there was no

evidence against the petitioners. In Delhi Transport Corporation Vs

Shyam Lal, (2004) 8 SCC 88 it had been held that hearsay evidence can

be considered provided it has reasonable nexus and credibility. In

Shyam Lal (supra) a Conductor was removed from service on account of

collecting money but not issuing tickets during the checking done by

other officials concerned. The Supreme Court had held that the

statements made by the passengers who had paid excess money to the

checking officer were not in the nature of hearsay evidence. In present

case though the driver before the ACP later on had told that the extra

amount was charged from him, however, he denied the same when

appeared as a witness before the Inquiry Officer, however, all the facts

were incorporated by the ACP in his report which was produced and

duly proved which was not denied by the petitioners as no suggestion

about the report that it was false was given. The ACP has also

appeared as a witness and stated that the driver had told him about the

role of the petitioners and he had proved his report as Exhibit PW5/1

which had not been challenged by any of the petitioners. In the

circumstances, not rejecting the testimony of PW5 and his report

completely and relying on the same cannot be held to be illegal and

consequent thereto holding that misconduct is made out against the

petitioners also cannot be held to be contrary to law. The Tribunal has

considered the entire statement of ACP and has also incorporated in its

order the entire cross examination of said witness. From the tenor of

the cross examination it cannot be held that the testimony of ACP was

not reliable or could not be believed. No suggestions were given to the

said witness refuting the said report or impeaching his testimony in any

manner.. In the circumstances, the testimony of said witness became

very relevant in contradistinction to other cases relied on by the

petitioners in which the testimony of such an officer was not available.

10. It is not necessary for the High Court in exercise of its writ

jurisdiction to interfere in every case where there is violation of some

rights. For issuing a writ for any other purpose under article 226 of the

Constitution of India, it has always been in the discretion of the High

Court to interfere or not, depending upon the facts and circumstances

of each case. Reference in this connection may be made to the decisions

of the Supreme Court in Durga Pershad Vs The Chief Controller of

Imports and Exports, AIR 1970 SC 769, holding that even where there

is an allegation of breach of fundamental right, the grant of relief is

discretionary and such discretion has to be exercised judicially and

reasonably. Constitution Bench of the Supreme Court in The Moon

Mills Ltd. vs M.R.Meher, AIR 1967 SC 1450 had held that writ is legally

a matter of sound discretion and would not be issued if there be such

negligence or omission on the part of the applicant to assert his right as

taken on conjunction with the lapse of time and other circumstances,

which may cause prejudice to the adverse party. Writs so for as they are

concerned with the enforcement of the other rights are not issued as a "

matter of course." The petitioners did not cross examine the ACP on the

relevant aspects nor denied his report and consequently his testimony

became reliable. In Shangrila Food Products Ltd. Vs Life Insurance

Corporation of India (1996) 5 SCC 54, the Supreme Court had held that

" the High Court in exercise of its jurisdiction under Article 226 of the

Constitution of India can take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give the

parties complete and substantial justice. The jurisdiction of the High

Court, being extra ordinary, is normally exercisable keeping in mind

the principle of equity. One of the ends of the equity is to promote

honesty and fair play. If there be any unfair advantage gained by a

party, before invoking the jurisdiction of the High Court, the court can

take into account the unfair advantage gained and can require the party

to shed the unfair game before granting relief.

11. The Tribunal in its reasoning has held that though the verdict of

the disciplinary authority is supported by a very slender evidence,

nevertheless it is supported and consequently had not interfered with

the decision of issuing censure against the petitioners. The Tribunal in

para 11 of its order dated 4.2.2008 has held as under:

"11. The argument that placing reliance on the evidence of PW-1, driver of the vehicle, which was stopped by the ACP, is in violation of Rule 16 (iii) of Delhi Police (Punishment & Appeal) Rules, 1980 is not very convincing. The enquiry officer and the disciplinary authority had relied on the evidence of ACP/PRG who has restored by his report exhibit PW 5/1, reproduced above. If reliance had been placed on the evidence of the driver in preliminary enquiry without examining the ACP, it would have been difficult to accept it in view of the provisions of Rule 16 (iii), which has also been quoted. No motives have been attributed to ACP regarding any hostility towards the applicant's. There is no doubt that his methods are unorthodox, yet there are no inconsistencies in his report and is the statement. There are no reasons to doubt his credibility. We have carefully to use the judgment of Honourable Supreme Court in Kuldeep Singh case (cited supra). The facts and circumstances of the case are so different from the instant case that they would not apply to this case. No doubt, the verdict of the enquiry officer and the disciplinary authority is supported by a slender thread, but it is nevertheless supported. Perhaps two

views may be possible in this case, but there are no cogent reasons to substitute the view of the disciplinary authority by a view, which can be taken against it. There are no reasons, in our view to interfere with the impugned orders."

12. In judicial review the jurisdiction of the Court is limited to

decision making process and not with re-appreciation of the evidence.

In (2006) 5 SCC 88, M.V.Biklani Vs Union of India, the Supreme Court

had held at page 95 as under:

95. 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.

13. Similarly M.L. Jindal v. Delhi Vidyut Board and Ors, LPA No. 444

of 2002, decided on 07th august 2006 had held that factual findings in

Department Enquiry would ordinarily not to be subjected to judicial

review except when it is of no evidence or are totally perverse or legally

untenable or vitiated on account of non-observance of principle of

natural justice.

14. In the facts and circumstances of this case, this Court is not

inclined to interfere with the order of the Tribunal dated 4th February,

2008 in OA No.1502 of 2007 titled Assistant Sub Inspector Raj Pal and

others v. Government of NCT of Delhi and others, and, therefore, the

writ petition is dismissed. Parties are, however, left to bear their own

costs.

ANIL KUMAR, J.

February 16, 2010                             MOOL CHAND GARG, J.
„ag/Dev‟