Delhi High Court
Sunil Kumar vs The Commissioner Of Police And ... on 7 September, 2016
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated: 7th September, 2016
+ W.P.(C) 10562/2015
SUNIL KUMAR
..... Petitioner
Through: Dr.Kanwal Sapra and Dr.P.S.Batra,
Advocates.
versus
THE COMMISSIONER OF POLICE AND ORS.
..... Respondents
Through: Mr.Satyakam, Addl. Standing Counsel for
GNCTD with SI Harinder, HAP Branch
in person.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J (ORAL)
1. The petitioner has laid a challenge to an order passed by the Central
Administrative Tribunal dated 29th July, 2015 by which the O.A. filed by the
petitioner herein stands dismissed.
2. Brief facts necessary for deciding the present petition are that the
petitioner was appointed as a Constable with Delhi Police on 15th July, 1996. He
was promoted to the post of Head Constable on 30th March, 2008. Post his
marriage, an FIR was registered against him on 31st August, 2009 under
Sections 498-A/406/34 IPC. Simultaneously, a departmental inquiry was also
initiated against the petitioner on 25th February, 2011. The respondent No.1
issued orders against the petitioner for punishment of forfeiture of four years
approved service permanently by order dated 7th November, 2012. An appeal
preferred by the petitioner against the aforesaid order was rejected by the
respondents on 18th September, 2013, which led to the filing of the O.A. before
the Central Administrative Tribunal which was dismissed by the Tribunal by an
order dated 29th July, 2015 which is impugned in the present writ petition.
3. Learned counsel for the petitioner submits that the inquiry was conducted
as per the Delhi Police (Punishment & Appeal) Rules, 1980. He submits that the
Inquiry Officer was conscious of the rights of the petitioner, had not declined the
request of the petitioner to cross-examine the witnesses, but the Inquiry Officer
overlooked the fact that despite the witnesses after their examination-in-chief
were called for their cross-examination, they did not appear for their cross-
examination. Since the petitioner was deprived of his legitimate right to cross-
examine the witnesses who had deposed, the enquiry proceedings would stand
vitiated.
4. On the merits of the matter, learned counsel for the petitioner submits that
the conduct of the petitioner would not amount to misconduct and that the
respondents have failed to cite any particular rule or clause which has been
violated by the petitioner in respect of discharge of his official duties. It is
contended that the petitioner had an unblemished record and that there was no
complaint against the petitioner by any superior officer or colleague or any
public person dealing with him and thus it can be safely said that the petitioner
was discharging his official duties diligently and honestly to the satisfaction of
his superior officers. It is further contended that a false complaint was lodged by
the wife of the petitioner. It is the case of the petitioner that he was all along
interested in keeping the marriage which is evident from the fact that he filed a
petition under Section 9 of the Hindu Marriage Act and only after the petition
under Section 9 for restitution of conjugal rights was filed, did his wife resort to
the registration of a false FIR against him as a counter blast. Counsel submits
that had there been any truth in the allegations made in the FIR, the wife of the
petitioner would have lodged a complaint at the first opportunity available to
her.
5. The original record has been produced before us. As per the original
record, the witnesses appeared before the Inquiry Officer on 13th May, 2011
when their examinations-in-chief was conducted . On that date, the petitioner
herein had sought an adjournment on the ground that his defence assistant was
not available which was granted by the Inquiry Officer and the next date was
fixed as 20th May, 2011. On the next date, notices were issued to the witnesses
to remain present for their cross-examination. However, despite various
opportunities, the witnesses did not appear and hence the cross-examination of
the witnesses could not take place. Certified copy of the order-sheets has been
handed over by counsel for the petitioner today in Court. Reliance is also placed
by learned counsel for the petitioner on the Para 10.3 of the Vigilance Manual,
Vol.-I, Chapter-IX of Government of India, which reads as under:-
"Cross examination of a witness is the most efficacious
method of discovering truth and exposing falsehood. During
the examination in chief, the witness may say things
favourable to the party in whose behalf he tenders evidence
and may deliberately conceal facts which may constitute part
of opponent‟s case. The art of cross-examination lies in
interrogating a witness in a manner which would bring out
the concealed truth."
6. Learned counsel for the respondents, on the other hands, submits that the
inquiry has been conducted in a fair and just manner. He further submits that
there is no infirmity in the order passed by the Tribunal which would require
interference by this Court in proceedings under Article 226 of the Constitution
of India.
7. We have heard learned counsel for the parties. It is not in dispute that the
examination-in-chief of the witnesses was conducted on 13 th May, 2011.
Thereafter, the matter was adjourned to 20th May, 2011, 18th June, 2011, 18th
July, 2011, 16th August, 2011, 20th September, 2011, 15th October, 2011, 12th
November, 2011 and 30th December, 2011. However, the witnesses did not
appear for their cross-examination on any of the above dates except on 30th
December, 2011 one Smt. Ramesh had appeared. The order-sheets read as
under:-
"13.5.11 The delinquent HC Sunil Kr. No. 105/NE is present.
The statement of witness Sarla, Chaman Lal, Laxmik Deir
Nirmala, ASI Mahender Kr. & HC Rajesh Kr. was recorded.
Cross could not be done as Defence Assistance was not present.
Next date is fixed for 20.5.11.
SD/-
E.O.
20.5.11 Delinquent HC Sunil Kr. No. 10/NE is present but no
witness appeared for cross examination. Next date Notice will be
given for 18.6.11.
SD/-
E.O.
18.6.11 Neither delinquent HC Sunil Kr. No. 105/NE nor any
witnesses appeared. Next date notice will be given for 18.7.11.
SD/-
E.O.
18.7.11 No witness appeared. Delinquent HC Sunil 105/NE is
present. Next date fixed for 16.8.11.
SD/-
E.O.
16.8.11 Only witness Sarla appeared but delinquent did not
appeared due to fever. Next date fixed for 20.9.11.
SD/-
E.O.
20.9.11 Delinquent HC Sunil Kr. 105/NE appeared but no witness
is present. Next dt. fixed for 15.10.11.
SD/-
E.O.
15.10.11 Delinquent HC Sunil Kr. is present but no witness is
present Next dt. Is fixed for 12.11.11.
SD/-
E.O.
12.11.11 Delinquent HC Sunil Kr. is present but no witness is
present. Next date is fixed for 30.12.11.
SD/-
E.O.
30.12.11 One witness Smt. Ramesh is present & her statement
was recorded in presence of delinquent HC Sunil Kr. No.105/NE.
Cross was done. Next dt. Fixed for 6.1.11.
SD/-
E.O."
8. A perusal of order-sheets would further show that upto 16th August, 2012,
the witnesses did not appear before the Inquiry Officer for their cross-
examination despite several notices. Thereafter, on 16th August, 2012 the
Inquiry Officer merely recorded that since no witnesses are coming forward, no
opportunity can be given to the delinquent/petitioner. It is worthwhile to note
that the Inquiry Officer at no stage declined the petitioner the opportunity to
cross-examine the witnesses, but it seems that since the witnesses, despite
notices issued to them, did not appear, however, the Inquiry Officer submitted
his report.
9. The right to cross-examine is implicit in the principles of natural justice,
which are to be followed in all departmental proceedings. Only when the
charged officer is given an opportunity of cross-examination of the witnesses,
can he effectively meet the charges levelled against him. We are fortified by the
judgment of the Surpeme Court in Ayaabkhan NoorkhanPathanv. State of
Maharashtra and Ors., (2013) 4 SCC 465in respect of Caste Certificate
Scrutiny Committee. The matter was remanded back to the Scrutiny Committee
with the direction to give a fair opportunity to the appellant therein to cross-
examine the witnesses. The relevant portion reads as under:
"Cross-examination is one part of the principles of natural justice
24. A Constitution Bench of this Court in State of M.P. v. Chintaman
Sadashiva Waishampayan [AIR 1961 SC 1623] held that the rules of
natural justice require that a party must be given the opportunity to
adduce all relevant evidence upon which he relies, and further that, the
evidence of the opposite party should be taken in his presence, and that he
should be given the opportunity of cross-examining the witnesses
examined by that party. Not providing the said opportunity to cross-
examine witnesses, would violate the principles of natural justice. (See
also Union of India v. T.R. Varma [AIR 1957 SC 882] , Meenglas Tea
Estate v. Workmen [AIR 1963 SC 1719] , Kesoram Cotton Mills Ltd. v.
Gangadhar [AIR 1964 SC 708] , New India Assurance Co. Ltd. v. Nusli
Neville Wadia [(2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850 : AIR 2008
SC 876] , Rachpal Singh v. Gurmit Kaur [(2009) 15 SCC 88 : (2009) 5
SCC (Civ) 549 : AIR 2009 SC 2448] , Biecco Lawrie Ltd. v. State of W.B.
[(2009) 10 SCC 32 : (2009) 2 SCC (L&S) 729 : AIR 2010 SC 142] and
State of U.P. v. Saroj Kumar Sinha [(2010) 2 SCC 772 : (2010) 1 SCC
(L&S) 675 : AIR 2010 SC 3131] .)
25. In Lakshman Exports Ltd. v. CCE [(2005) 10 SCC 634] , this Court,
while dealing with a case under the Central Excise Act, 1944, considered
a similar issue i.e. permission with respect to the cross-examination of a
witness. In the said case, the assessee had specifically asked to be allowed
to cross-examine the representatives of the firms concerned, to establish
that the goods in question had been accounted for in their books of
accounts, and that excise duty had been paid. The Court held that such a
request could not be turned down, as the denial of the right to cross-
examine, would amount to a denial of the right to be heard i.e. audi
alteram partem.
26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3
SCC 279 : (2008) 1 SCC (Civ) 850 : AIR 2008 SC 876] , this Court
considered a case under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45)
"45. If some facts are to be proved by the landlord, indisputably the
occupant should get an opportunity to cross-examine. The witness
who intends to prove the said fact has the right to cross-examine
the witness. This may not be provided by under the statute, but it
being a part of the principles of natural justice should be held to be
indefeasible right."
(emphasis added)
In view of the above, we are of the considered opinion that the right of
cross-examination is an integral part of the principles of natural justice.
27. In K.L. Tripathi v. SBI [(1984) 1 SCC 43 : 1984 SCC (L&S) 62 : AIR
1984 SC 273] , this Court held that, in order to sustain a complaint of the
violation of the principles of natural justice on the ground of absence of
opportunity of cross-examination, it must be established that some
prejudice has been caused to the appellant by the procedure followed. A
party, who does not want to controvert the veracity of the evidence on
record, or of the testimony gathered behind his back, cannot expect to
succeed in any subsequent grievance raised by him, stating that no
opportunity of cross-examination was provided to him, specially when the
same was not requested, and there was no dispute regarding the veracity
of the statement. (See also Union of India v. P.K. Roy [AIR 1968 SC 850]
and Channabasappa Basappa Happali v. State of Mysore [(1971) 1 SCC
1 : AIR 1972 SC 32] .) In Transmission Corpn. of A.P. Ltd. v. Sri Rama
Krishna Rice Mill [(2006) 3 SCC 74 : 2006 SCC (L&S) 467 : AIR 2006
SC 1445] , this Court held: (SCC p. 80, para 9)
"9. In order to establish that the cross-examination is necessary,
the consumer has to make out a case for the same. Merely stating
that the statement of an officer is being utilised for the purpose of
adjudication would not be sufficient in all cases. If an application is
made requesting for grant of an opportunity to cross-examine any
official, the same has to be considered by the adjudicating authority
who shall have to either grant the request or pass a reasoned order
if he chooses to reject the application. In that event an adjudication
being concluded, it shall be certainly open to the consumer to
establish before the appellate authority as to how he has been
prejudiced by the refusal to grant an opportunity to cross-examine
any official."
28. The meaning of providing a reasonable opportunity to show cause
against an action proposed to be taken by the Government, is that the
government servant is afforded a reasonable opportunity to defend
himself against the charges, on the basis of which an inquiry is held. The
government servant should be given an opportunity to deny his guilt and
establish his innocence. He can do so only when he is told what the
charges against him are. He can, therefore, do so by cross-examining the
witnesses produced against him. The object of supplying statements is
that, the government servant will be able to refer to the previous
statements of the witnesses proposed to be examined against him. Unless
the said statements are provided to the government servant, he will not be
able to conduct an effective and useful cross-examination.
29. In Rajiv Arora v. Union of India [(2008) 15 SCC 306 : (2009) 3 SCC
(Cri) 977 : AIR 2009 SC 1100] this Court held: (SCC p. 310, paras 13-
14)
"13. ... Effective cross-examination could have been done as
regards the correctness or otherwise of the report, if the contents of
them were proved. The principles analogous to the provisions of the
Evidence Act as also the principles of natural justice demand that
the maker of the report should be examined, save and except in
cases where the facts are admitted or the witnesses are not
available for cross-examination or similar situation. ...
14. The High Court in its impugned judgment proceeded to
consider the issue on a technical plea, namely, no prejudice has
been caused to the appellant by such non-examination. If the basic
principles of law have not been complied with or there has been a
gross violation of the principles of natural justice, the High Court
should have exercised its jurisdiction of judicial review."
30. The aforesaid discussion makes it evident that, not only should the
opportunity of cross-examination be made available, but it should be one
of effective cross-examination, so as to meet the requirement of the
principles of natural justice. In the absence of such an opportunity, it
cannot be held that the matter has been decided in accordance with law,
as cross-examination is an integral part and parcel of the principles of
natural justice."
(Emphasis Supplied)
10. The Supreme Court had included cross-examination within the concept of
reasonable opportunity as far back as 1957 in Khem Chand v. Union of India
(UOI) & Ors., the relevant para of which reads as under:
"24. To summarise : the reasonable opportunity envisaged by the
provision under consideration includes -
(a) An opportunity to deny his guilt and establish his innocence, which he
can only do if he is told what the charges leveled against him are and the
allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses
produced against him and by examining himself or any other witnesses in
support of his defence; and finally
(c) an opportunity to make his representation as to why the presupposed
punishment should not be inflicted on him, which he can only do if the
competent authority, after the enquiry is over and after applying his mind
to the gravity or otherwise of the charges proved against the government
servant tentatively proposes to inflict one of the three punishments and
communicates the same to the government servant."
(Emphasis Supplied)
11. Further the Supreme Court in Union of India v. Y.S. Sandhu, (2008) 12
SCC 30 has held that if departmental proceedings are to be vitiated due to non-
compliance with principles of natural justice, the proceedings must be set-aside
and be directed to be conducted in accordance with law from the stage the
vulnerabilities surfaced.
12. In the present case, in our view neither the principles of natural justice
were complied with by the Inquiry Officer nor the rules of the Delhi Police
(Punishment & Appeal) Rules, 1980 were followed. Resultantly, the writ
petition is allowed, the orders dated 07.11.2012, 18.09.2013 passed by the
respondents and order dated 29.07.2015 passed by the Tribunal are hereby
quashed/set aside. The matter is remanded back to the Inquiry Officer at the
stage of cross-examination of the witnesses. The Inquiry Officer is expected to
follow the principles of natural justice and the rules in letter and spirit.
13. Writ petition stands disposed of in the above terms.
G.S.SISTANI
(JUDGE)
I.S. MEHTA
(JUDGE)
SEPTEMBER 07, 2016
„dc‟
