Raj Kumar vs Govt. Of Nct Of Delhi & Ors.
2013 Latest Caselaw 2234 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Date of decision : May 14, 2013

+                               W.P.(C) 7810/2012

       RAJ KUMAR                                    ..... Petitioner

                    Represented by:    Mr.Sourabh Ahuja, Advocate

                                       versus

       GOVT. OF NCT OF DELHI AND ORS.               ..... Respondents

                    Represented by:    Mr.Mohd. Noorullah for
                                       Mr.Anjum Javed, Advocate
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE V. KAMESWAR RAO

PRADEEP NANDRAJOG, J. (Oral)

1. Having heard learned counsel for the parties, we note with extreme regret and pain that once again the Tribunal has short circuited the matter compelling us to guide the Tribunal, not only in the instant matter, but even other matters pertaining to disciplinary proceedings against Government servants or those who serve public sector undertakings or subordinate offices of the Government. Our reason for guiding the Tribunal is that in 9 out of 10 matters pertaining to disciplinary proceedings we find that invariably the matter has to be remanded to the Tribunal.

2. In 9 out of 10 cases, the learned members of the Tribunal, like reciting a nursery rhyme, simply record that at a domestic inquiry the standard of proof is preponderance of probability and as long as there is

W P (C) 7810/2012 page 1 of 6 some evidence to sustain the finding of guilt, the Tribunal would not re- appreciate the evidence.

3. This is only a part of the law pertaining to domestic inquiries where the standard of proof is reduced to a strong probative inference which can be drawn from the evidence as per the law declared by the Supreme Court in the decision reported as (1977) 2 SCC 491 State of Haryana & Anr. Vs. Rattan Singh.

4. But this is only one facet of the law. It is settled law that where the grievance is that material evidence is ignored by the Inquiry Officer and in spite of attention being drawn thereto of the disciplinary authority, neither has considered the same, it is the duty of the Tribunal to note the grievance with reference to the evidence statedly ignored and thereafter determine whether the same was material. For if, a trier of a fact ignores material evidence a serious jurisdictional infirmity comes into being. Corrective action has to be taken by taking into account the said material evidence and then decide which way the wind blows. Similarly, where the grievance is that it is a case of no evidence, it is the duty of the Tribunal to note the exact submission with reference to the manner in which the same is sought to be made good. For example, an indictment at a disciplinary inquiry may be on wholly inadmissible evidence such as hearsay; but not hearsay of a kind as was held admissible in Ratan Singh's case (supra). It would be the duty of the Tribunal to, after noting the precise grievance, deal with the same. Further, as in the instant case, where the report of the Inquiry Officer absolves the charged officer and the disciplinary authority has penned a note of disagreement, and the grievance urged is that the note of disagreement does not deal with the

W P (C) 7810/2012 page 2 of 6 reasoning of the Inquiry Officer nor does the final order deal with the reasoning of the Inquiry Officer, it would be the duty of the Tribunal to note the exact contention and deal with the same.

5. What should be the structure of a judgment if aforesaid is the situation which confronts the Tribunal.

6. We proposed to guide the Tribunal.

7. We take the facts of the instant case.

8. The summary of allegations against the respondent was that on November 16, 1996, he was assigned the duty at the Red Light at T-Point in front of the Delhi Zoo from 8.00 AM till 8.00 PM and was found missing from the duty place and being found in front of the Children Park abutting Dr.Zakir Hussain Marg at 12.40 PM and was observed extracting `100/- from Redline bus drivers, who had parked buses at the C-Hexagon at India Gate, which fact was noted and recorded by Inspector Manohar Singh, who was accompanied at that time by Constable Rajinder Singh. As per the indictment, one Mr.Udai Chand, a civilian, was assisting the petitioner. As per the summary of allegation, a sum of `450/- was recovered from Mr.Udai Chand and `120/- was recovered from the petitioner, in respect whereof a memorandum was drawn up and statement confessing to being an accomplice of the petitioner made by Mr.Udai Chand was recorded.

9. The analysis of the statement of allegation would bring out two distinct elements of the wrong. The first was of abandoning the duty place and being present at some other place during duty hours. The second was of illegally collecting money from drivers of Redline buses.

10. Five witnesses were examined by the prosecution. Udai Chand

W P (C) 7810/2012 page 3 of 6 was examined as PW-1. He deposed of being present outside Children Park abutting Dr.Zakir Hussain Marg at 12.00 noon on the day of the incident. He admitted speaking to the petitioner but stated that the petitioner was his cousin and the discussions pertain to the marriage of petitioner's sister. He denied that the petitioner was receiving any money from the drivers or conductors of any bus. He stated that somebody came in a TSR and seized `450/- from him and `120/- from the petitioner and took them to the Police Headquarters where he was threatened to write down, as was dictated, by the police officers. He admitted his signatures on Ex.PW-1/A & Ex.PW-1/B, being the Seizure Memo and his statement, but denied contents thereof. The witness was cross examined.

11. H.C.Pratap Singh PW-2 produced duty register and the relevant entry therein being Ex.PW-2/A. As per him, on the date in question, from 8.00 AM to 8.00 PM, the petitioner was on duty at light point 200; which we are given to understand is the traffic light opposite Delhi Zoo.

12. Ct.Rajinder Singh PW-3 and Inspector Manohar Singh PW-5 supported the indictment. PW-4 Ct.Jaspal deposed of having received the seizure memo and the seized money.

13. Four witnesses were examined in defence by the petitioner. DW-1 Dr.O.P.Gupta deposed that petitioner was suffering from dysentery and was under his treatment and prescription Ex.DW-1/A was issued by him. Ct.Madan Singh DW-2 deposed that he was present with the petitioner at the traffic T-Point opposite Delhi Zoo and informing him that he was suffering from dysentery. Petitioner went along with Akhtar on Akhtar's two wheeler scooter towards India Gate. Akhtar DW-3 corroborated DW-2. Ram Niwas DW-4 deposed of having loaned `400/- to Udai

W P (C) 7810/2012 page 4 of 6 Chand which was to be returned by December 1996 and that Udai Chand told him that the police officers had taken away said money from him.

14. The report of the Inquiry Officer had absolved the petitioner but the disciplinary authority had penned a note of disagreement.

15. With respect to the penalty levied, petitioner has raised various issues and regretfully none of which have been noted by the Tribunal. This is the second time when the matter has reached this Court. On an earlier occasion a Division Bench of this Court had noted that the Tribunal had neither noted, much less discussed the contention urged, resulting in the matter being remanded to the Tribunal for fresh adjudication. The decision post remand is no better.

16. The structuring of a decision pertaining to disciplinary inquiries has to be as above noted by us i.e. list the ingredients of the indictment followed by noting, howsoever brief it may be, the salient features of the testimony of the witnesses of the prosecution followed thereafter by the defence evidence if any. Thereafter, with respect to the report of the Inquiry Officer, or if it is a case of note of disagreement penned by the disciplinary authority, the decision has to highlight the grievance raised. Thereafter, with reasons, the grievances projected before the Tribunal have to be dealt with. It is at that stage that the Tribunal has to highlight the legal principles which it is applying while dealing with the facts pertaining to the contentions urged. It is useless to narrate the law and not apply the same.

17. The writ petition is allowed. Order dated November 09, 2012 is quashed. OA No.513/2010 is restored for fresh adjudication with a direction that the format of the decision would be as indicated above.

W P (C) 7810/2012 page 5 of 6 The Original Application shall be listed before the Roster Bench of the Tribunal on May 17, 2013 and we direct a decision to be taken latest by May 31, 2013. Parties shall appear before the Roster bench of the Tribunal on May 17, 2013, a date which they have noted.

18. The Registry is directed to transmit a copy of this decision to the Registrar of the Tribunal through a Special Messenger latest by tomorrow i.e. May 15, 2013.

19. No costs.

(PRADEEP NANDRAJOG) JUDGE

(V.KAMESWAR RAO) JUDGE

MAY 14, 2013 mamta

W P (C) 7810/2012 page 6 of 6