Govt. Of Nct Of Delhi & Anr vs Rajni Dobhal
2010 Latest Caselaw 969 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C ) No. 7174/2009


%                          Date of Decision: 19.02.2010


Govt. of NCT of Delhi & Anr.                          .... Petitioners
                      Through Ms. Aruna Tikku, Advocate


                                   Versus


Rajni Dobhal                                              .... 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?                  YES
3.   Whether the judgment should be reported in              YES
     the Digest?



ANIL KUMAR, J.

The respondent was awarded punishment of forfeiture of two

years approved service permanently entailing reduction in her pay from

Rs. 7075/- per month to 6725/- per month vide order dated 27th

February, 2006 by the Disciplinary Authority and by order dated 13th

September, 2006 by the Appellate Authority pursuant to a complaint by

Ms. Sonia Panwar, admittedly a woman of easy virtue and a blackmailer

on the allegation that the respondent had demanded her to settle the

matter with the accused in a rape case and to share the money with the

respondent. The alleged conversation was allegedly recorded by the said

complainant, Ms. Sonia Panwar.

The respondent had challenged the orders dated 27th February,

2006 passed by the Disciplinary Authority which was confirmed by the

Appellate Authority by order dated 13th September, 2006 by filing an OA

1837/2007 titled WSI Rajni Dobhal Vs. Govt. of NCT of Delhi and Anr.

Which was allowed by order dated 5th September, 2008 which is

challenged by the Govt. of NCT of Delhi in the present petition under

Article 226 of the Constitution of India.

The petitioners have contended that the Tribunal should not have

considered the character and antecedents of the complainant, Ms.

Sonia Panwar, on whose sole testimony the punishment was awarded

as none of the other witnesses on behalf of the petitioners and the

respondent had deposed anything so as to bring the charges exclusively

against the respondent.

The petitioners contended that the demand by the respondent to

the complainant Ms. Sonia to settle the matter with the accused to

share the money with her amounted to misconduct in discharge of her

official duty and therefore, the punishment was awarded to her in

accordance with the Rules and could not be set aside. The petitioners

also impugned the action of Central Administrative Tribunal, Principal

Bench in perusing the details of the criminal case initiated against the

accused and consideration of the antecedents of complainants in

exercise of its power under Section 22 of Administrative Tribunal Act,

1985.

The Tribunal has considered the deposition of all the witnesses

in detail along with the charges framed against the respondent. The

Tribunal noticed that the basis of accusations against the respondent

was recorded conversation between the complainant and the

respondent where it was alleged that the respondent had demanded

share of money from the complainant. The Tribunal also considered and

noted the relevant portions of the enquiry report in the order impugned

before this Court. The inquiry officer was satisfied that the complainant

Ms. Sonia Panwar is a lady who is habitual of threatening the police

officers and had been making efforts to use police officer in her favor by

pressurizing tactics. It was also observed by the enquiry Officer that the

other police officers in other cases had also recorded against her and

brought it to the notice of senior officer. It was also inferred that as she

could not use the investigating officer/respondent in her favor, she

alleged that she will produced the tape in the Court and got the news

published in the News papers. Some portions of the inquiry reports

which have been considered and relied upon by the Tribunal are as

under:-

" The defaulter W/SI produced two DWs in her defence. Both these DWs namely SI Virender Prakash No.D-3486 and W/ASI Kailash No.D-4721 have stated regarding FIR No.16 dt.12/10/04 under Section 376 IPC & 4 of Dowry Prevention Act, P.S.Sarojini Nagar, Delhi and about the conduct of complainant Sonia Panwar. During the deposition of these DWs and from defence statement of defaulter W/SI it is revealed that complainant Sonia Panwar is a lady who is habitual of threatening the Police officers and in making efforts to use Police Officers in her favour by pressurizing tactics. The reports have also been recorded against her by the different Police Officers and facts brought in the notice of senior officers also. The reputation of the lady in the neighbourhood also is not found good and complaints were received against her in this regard. She is habitual of getting the cases of rape registered and had got Rs.80,000/- from accused party in other case of her alleged rape.

In the present case also she was found not interested in the investigation of case and never reportedly joined the investigation by visiting the Police Station. She was interested only that accused may not be granted bail and was reportedly contacting them also about compromise of the case. To tape the conversation of defaulter W/SI, was also a part of blackmailing the I.O., for using her in her favour. As she could not use the I.O in her favour so she produced the tape in the court and got the news appeared in the paper. She herself has deposed that she became annoyed with I.O as she did not inform her well in advance about the bail matter of the accused. But it does not mean that the tape of the conversation of the defaulter W/SI is wrong. The defaulter W/SI could write reports and bring facts in the notice of senior officers, as was done by her defence witnesses produced by her in the DE, if her interest could have been different then the alleged one, but she failed to do so.

The Tribunal has also considered the assumptions made by the

Disciplinary Authority. This is not disputed that during the inquiry the

complainant Ms. Sonia Panwar, woman of easy virtue and a black

mailer, had requested to withdraw her complaint and had stated that

she does not want any action against the respondent. The Disciplinary

Authority assumed that the respondent had again tried to win over the

complainant by getting a written statement in her favour and the

conversation recorded in the tape and produced before the Court could

not be doubted.

The findings of the Disciplinary Authority and the Appellate

Authority which weighed with the Tribunal are as under:-

" The E.O has proved the charge on the basis of the material evidence which has come on record during the D.E. proceedings. The statement given by the complainant in favour of the defaulter W/SI regarding her request to withdraw her complaint and that she does not want any action against the W/SI does not help her in any way, at this stage. It is possible that the defaulter W/SI had again tried to win over the complainant by getting a written statement in her favour. The conversation between the complainant and the defaulter W/SI recorded in the tape and produced before the Hon'ble Court cannot be doubted.

The Tribunal considered the testimonies of the DE proceedings

and on considering the entire evidence has reached the conclusion that

there is no evidence against the respondent as the conversation

allegedly recorded was not even remotely mentioned and the

conversation on the tape was not even played and in the circumstances,

there was no reckoning to the alleged statement of Smt. Sonia that the

respondent had asked her to compromise with the accused and share

the amount with her. The relevant portion of reasoning of the Tribunal

in setting aside the order of the Disciplinary Authority and the Appellate

Authority is as under:

"11. We are conscious that we are not dealing with the criminal case against Nepal and others. We are only referring to the conduct of Sonia Panwar with the sole purpose of deciding the present case. In fact, the past conduct of Sonia in falsely alleging her rape against persons of prominence and extracting money from them is already proved and so held by the enquiry officer. We are only mentioning some of the additional facts which support the findings of the enquiry officer to the extent as mentioned above. The evidence in defence led by the applicant would further show that Sonia was not only extracting money from her alleged rapists, but also threatening some police officers who were conducting investigations. In the earlier case registered by her against Munish and his family members, both the investigating officers unequivocally stated that she had threatened them that complaints would be made against them and she would get them dismissed from service. So much so, one of the investigating officers even recorded a DD entry to that effect as well. Once, it is proved to the hilt that Sonia, far from being virtuous, is actually a lady of easy virtue and extracting money from different persons by implicating them in false rape cases, and further that she would not spare even the investigating officers, if they would not toe her line, it would not be safe to rely upon her sole testimony in holding the applicant guilty of the charge who also happens to be a woman, and has an unblemished service record.

12. Before we may part with this order, we may only mention that the enquiry officer as also other authorities have made mention of the tape recorded conversation, transcript whereof was produced before the enquiry officer, having prayed in Court. In which court such tape recorded conversation was played, and whether there was any finding that the conversation so recorded was between the applicant and Sonia Panwar, has not been remotely mentioned. To a question put to the learned counsel representing the respondents as to in which Court the tape recorded conversation was played and whether there was only

finding or even an observation that the conversation was between the applicant and Sonia Panwar, no reply at all is forthcoming.

It is true that the jurisdiction of the Tribunal in judicial review is

limited. Disciplinary proceedings, however, being quasi-criminal 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 has not denied that

considering the entire evidence led before the enquiry officer, his

inferences are based solely on the testimony of the complainant. The

findings of the enquiry officer is also that when the complainant failed

to use the IO/respondent in her favour, she allegedly tape recorded the

conversation. From the report of the enquiry officer, the disciplinary

authority and Appellate authority it is apparent that none of them even

heard the tape-recorded conversation. It has not been established that

the recorded conversation allegedly taped by the complainant is

between her and the respondent. In the circumstances inference of the

Tribunal that it is the case of no evidence against the respondent

appears to be correct and the learned counsel for the petitioner has not

been able to show any cogent evidence against the respondent on the

basis of which it could be inferred that the charge made against the

respondent was made out.

The enquiry officer while analysing the evidence and the

documents in order to draw inferences based on the preponderance of

probability cannot take into consideration the irrelevant facts nor can

refuse or reject the relevant facts. The testimony of the complainant

that he wanted to withdraw the complaint against the respondent has

been ignored on the assumption that " it is possible that defaulter SI

had again tried to win over the complainant by getting a written

statement in her favour". Which is the first instance when the

respondent had tried to win over the complainant, cannot be inferred

from the testimonies recorded before the enquiry officer? The enquiry

officer could have asked the complainant during the enquiry

proceedings whether she has been tried to be win over. But it was not

done and then on an assumption that the complainant might have been

won over the relevant testimony of the complainant has been rejected.

The enquiry officer has himself stated in the enquiry report ' it is

possible that the complainant has been won over'. This is nothing but

rejection of the testimony of the complainant in favour of respondent on

surmises and conjectures. The enquiry officer very conveniently without

any rational and the cogent reason has also not considered his own

inference that when the complainant failed to pressurise the

respondent, she got the conversation recorded from her sister. The

alleged contents of the tape-recorded conversation has not been

established and discussed except that the conversation was recorded.

The respondent has not admitted the alleged conversation which was

allegedly recorded. In the circumstances it has not been established on

the basis of any cogent evidence that the conversation recorded by the

complainant was between her and the respondent. In the circumstances

there cannot be a doubt that the enquiry officer has made assumptions

and has rejected relevant testimony of the complainant in favour of

respondent on surmises and conjectures and in the entirety of the facts

and circumstances, therefore, it is a case of no evidence against the

respondent as has also been held by the Tribunal. If that be so then the

order of the Tribunal cannot be faulted in the present facts and

circumstances of this case.

The learned counsel for the petitioner has also contended that the

Tribunal had considered in detail the entire testimonies. According to

her while exercising the power of judicial review, it could not be done by

the Tribunal. It is true that the jurisdiction of the Tribunal in judicial

review is limited, however, within the limited jurisdiction, in order to

ascertain whether the case is of no evidence and whether the enquiry

officer has made assumptions and has rejected relevant testimony on

his own surmises and conjectures, the entire evidence had to be

perused. In these circumstances perusal of evidence by the Tribunal in

order to ascertain whether it was the case of no evidence and

assumptions were made by the enquiry officer, cannot be faulted on the

grounds as raised by the learned counsel for the petitioner.

For the foregoing reasons, this Court does not find any illegality

or such irregularity in the order of the Tribunal which shall necessitate

any interference by this Court in exercise of its jurisdiction under

Article 226 of the Constitution of India. In any case in exercise of its

jurisdiction, it has always been in the discretion of the High Court to

interfere or not depending upon the facts and circumstances of the

case. 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. Therefore, in the facts and circumstances there are no grounds to

interfere with the order of the Tribunal impugned before us. The writ

petition is therefore, dismissed, however, parties are left to bear their

own costs.

ANIL KUMAR, J.

FEBRUARY 19th , 2010                           MOOL CHAND GARG, J.
'rs'