Ms.Kamlesh vs Government Of Nctd & Others
2010 Latest Caselaw 2681 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.2712/2010
%
                           Date of Decision: 20.05.2010

Ms.Kamlesh                                                  .... Petitioner
                        Through Mr.K.K.Sharma,      Sr.Advocate      with
                                Mr.Rajiv Bakshi, Advocate.

                                    Versus

Government of NCTD & others                     .... Respondents
                Through Mr.Amiet Andley & Mr.Arun Kumar
                          Sharma, 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 has challenged the order dated 17th November,

2009 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in O.A.No.1207 of 2008, titled as 'SI Kamlesh v. Government

of NCTD & others', whereby the original application of the petitioner

seeking quashing of order dated 11th June, 2007 imposing punishment

of forfeiture of two years approved service permanently entailing

proportionate reduction in the pay was dismissed.

On the allegation of not discharging the duties as expected of

petitioner and others, a common enquiry was initiated against the

petitioner and other police officials resulting into punishment order

dated 11th June, 2007. The appeals filed by the petitioner and others

were rejected by order dated 18th January, 2008. Against the dismissal

of appeal, the petitioner filed an original application No.505 of 2008 and

another ASI Lal Ji Tiwari filed another original application No.1207 of

2008 which were also dismissed by a common order dated 17th

November, 2009 which is challenged by the petitioner/Ms. Kamlesh in

the present writ petition.

The Tribunal had rejected the plea of the petitioner that there

should have been separate references on the ground that such

objections had not been taken up earlier and since the material to be

relied on to a great extent were common, therefore, clubbing of the

references was not irregular and was permitted by law.

The Tribunal noticed that the charges against the petitioner

regarding not registering a case of criminal house trespass on 24th

March, 2004; nor making proper enquiries from the occupants of the

said property who were in possession, not bothering to peruse the Court

order produced by Sh.Satya Pal Singh, the husband of the complainant.

The charge against the petitioner was of highhandedness and arrest of

the owner of the property, Sh.Satya Pal Singh who was in possession of

the property along with Sh.Rajender Singh Bedi, whereas the father of

Rajender Singh Bedi, namely Sh.Joginder Singh Bedi who was the main

aggressor was not arrested. The charge against the petitioner was to

hush up the matter by recording compromise between both the parties

at P.S.Preet Vihar, twisting the facts into a civil matter and Satya Pal

Singh was forced to sign the compromise and pursuant to alleged

compromise handing over the keys of the property to Shri. Raj Kumar

Sharma, a third person alleged to be the President of Mohalla Sudhar

Committee. The Tribunal considered the complaint against the

petitioner which was recorded pursuant to of DD No.22A received

through PCR on 24th March, 2004.

The petitioner had gone to the property and came back with two

persons and had registered an FIR and incarcerated them. The

allegation against the petitioner was that after reaching the site she did

not make enquiry and had brought two individuals to the police station

and arrested them and remand them to the judicial custody, but letting

off persons, who were involved in the criminal action, and had forced

unwilling persons to sign documents, and part with property.

The Tribunal considered the evidence against the petitioner

including the facts established that Satyapal Singh, the husband of the

complainant had shown paper relating to his possession including the

Court Stay Order which were not accepted by the petitioner and she

only asked him to hand over the Central Lock key which was later on

handed over to a third person namely Sh.Raj Kumar Sharma. From the

testimony of the witnesses before the enquiry officer, it was also inferred

that the possession of the Smt.Shama was disturbed and though there

was a clear indication of trespass, the petitioner let off the aggressor

Sh.Joginder Singh Bedi and arrested the complainant and one

Sh.Rajender Singh Bedi. The Tribunal also considered the testimony of

the witnesses produced on behalf of the petitioner and held that even

those witnesses in place of supporting the case of the petitioner rather

suggests that the incident had taken place and the petitioner was

involved.

The learned counsel for the petitioner has challenged the order of

the Tribunal contending inter-alia that there is no sufficient evidence

against the petitioner to establish her culpability. This cannot be

disputed by the petitioner that she had gone to the site of incident and

had let off Joginder Singh Bedi rather arrested the complainant without

bothering to verify whether the complainant is in possession of the

property or not? The petitioner even refused to consider the Court order

of stay which was in favour of the owner of the property. The complicity

of the petitioner in execution of the compromise also cannot be doubted

on the basis of evidence produced before the enquiry officer. In any

case, the judicial review by this Court can be of the decision making

process and not of re-appreciation of evidence. The charges in the

departmental proceedings are not required to proved like in criminal

proceedings beyond any reasonable doubt but the same can be

established on analyzing the evidence and documents on the basis of

preponderance of probabilities.

This is not the case of the petitioner that the pleas raised by him

have not been considered or that that irrelevant facts have been taken

into consideration by the respondents. The learned counsel for the

petitioner has also not been able to show any such relevant facts which

have not been considered by the respondent which will shift the burden

of proof nor any incident of rejection of relevant testimony has been

pointed out. The findings of the enquiry officer and the punishment

imposed by the disciplinary authority are also not based on surmises

and conjectures. On the basis of preponderance of probability if any

inference is possible, the same is not to be substituted by this Court in

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

exercising the power of judicial review. In (2006) 5 SCC 88, M.B. Bijlani

v. Union of India, it was held by the Apex Court that the judicial review

is of decision making process and not of re-appreciation of evidence. In

para 25 of the said decision, the Supreme Court had held 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.

In the circumstances, this Court does not find any ground to

interfere with the findings of the enquiry officer and the punishment

imposed by the disciplinary authority.

Learned counsel for the petitioner has also contended that there

is non compliance of Rule 15(2) Delhi Police (Punishment & Appeal)

Rules, 1980 inasmuch as permission from concerning Additional

Commissioner had not been obtained. The learned counsel for the

respondent Mr.Andley who appears on advance notice, however denies

the same and contends that concerned additional commissioner of

police had granted requisite permission for the preliminary enquiry.

The learned counsel for the petitioner has thereafter contended

that the additional commissioner of police who had granted the prior

approval was not the concerned additional police Commissioner.

Perusal of ground of writ petition reveals that the plea taken by

the petitioner is that no prior permission of respondents/additional

Commissioner of Police had been obtained and not that the permission

was not from the concerned additional commissioner.

In the totality of the facts and circumstances, this Court does not

find any such illegality, irregularity or perversity in the order of the

Tribunal, which would require any interference by this Court in exercise

of its jurisdiction under Article 226 of the Constitution of India. The writ

petition in the facts and circumstances of the case, is without any

merit, and it is therefore, dismissed.

ANIL KUMAR, J.

MAY 20, 2010                                    MOOL CHAND GARG, J.
'VK'