Full Judgment Text
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PETITIONER:
KULDEEP SINGH
Vs.
RESPONDENT:
THE COMMISSIONER OF POLICE & ORS.
DATE OF JUDGMENT: 17/12/1998
BENCH:
S.SAGHIR AHMAD, & S.P. KURDUKAR.,
JUDGMENT:
--------
S.SAGHIR AHMAD
--------------
Leave granted.
The appellant, a constable in the Delhi Police was
dismissed, after a regular departmental enquiry, from
service, by order dated 03.05.1991, passed by Dy
Commissioner of Police, South District, New Delhi, which was
upheld in appeal by Addl. Commissioner of Police by his
order dated 22.07.1991. The appellant then approached the
Central Administrative Tribunal, Principal Bench, New Delhi
and the Tribunal, by the impugned judgment dated 28th
February, 1997, dismissed the Claim Petition.
A writ Petition filed before the Delhi High Court
against this judgment was dismissed on 19.09.1997 as not
maintainable as the judgment passed by the Tribunal was
given before the date on which the decision of this Court
was rendered in L.Chandra Kumar Vs. Union of India & Others,
AIR 1997 SC 1125 = (1997) 3 SCC 261, in which it was held
that a writ petition against the order passed by the
Tribunal, constituted under the Administrative Tribunal,
Act, 1985, would be maintainable (prospectively) before a
High Court. The Review Application filed against the
judgment of the Tribunal was dismissed on 26.05.1997.
Learned counsel for the appellant has contended that
the findings recorded by the Enquiry Officer cannot be
sustained as the enquiry itself was held in utter violation
of the principles of natural justice. It is also contended
that there was no evidence worth the name to sustain the
charge framed against the appellant and therefore, the
findings are perverse particularly as no reasonable person
could have come to these findings on the basis of the
evidence brought on record.
Learned counsel appearing on behalf of Union of
India has, on the other hand, contended that the enquiry was
held in consonance with the principles of natural justice
and during the course of the enquiry, full opportunity was
given to the appellant to defend himself. As far the
evidence is concerned, it is contended that though it is
true that none of the complainant was examined but on
account of Rule 16(3) of the Delhi Police (F&A) Rules, 1980,
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it was not required to produce the complainant in person as
the Rule itself contemplated that in the absence of a
witness whose presence could not be procured without undue
delay, inconvenience or expense, his statement, already made
on an earlier occasion, could be placed on record in the
departmental enquiry and the matter could be decided on that
basis. It was under this Rule that the previous joint
statement of the complainants was brought on record without
examining any of them. Learned counsel for the respondents
contended that the scope of judicial review in disciplinary
proceedings is extremely narrow and limited. The court
cannot, it is contended, re-examine or re-appraise the
evidence and substitute its own conclusion in place of the
conclusions arrived at by the Enquiry Officer or the
disciplinary authority on that evidence.
It is no doubt true that the High Court under
Article 226 or this Court under Article 32 would not
interfere with the findings recorded at the departmental
enquiry by the disciplinary authority or the Enquiry Officer
as a matter of course. The Court cannot sit in appeal over
those findings and assume the role of the Appellate
Authority. But this does not mean that in no circumstance
can the Court interfere. The power of judicial review
available to the High Court as also to this Court under the
Constitution takes in its stride the domestic enquiry as
well and it can interfere with the conclusions reached
therein if there was no evidence to support the findings or
the findings recorded were such as could not have been
reached by an ordinary prudent man or the findings were
perverse or made at the dictate of the superior authority.
In Nand Kishore vs. State of Bihar, AIR 1978 SC
1277 = (1978) 3 SCC 366 = 1978 (3) SCR 708, it was held that
the disciplinary proceedings before a domestic Tribunal are
of quasi-judicial character and, therefore, it is necessary
that the Tribunal should arrive at its conclusions on the
basis of some evidence, that is to say, such evidence which,
and that too, with some degree of definiteness, points to
the guilt of the delinquent and does not leave the matter in
a suspicious state as mere suspicion cannot take the place
of proof even in domestic enquiries. If, therefore, there
is no evidence to sustain the charges framed against the
delinquent, he cannot be held to be guilty as in that event,
the findings recorded by the Enquiry Officer would be
perverse.
The findings, recorded in a domestic enquiry, can be
characterised as perverse if it is shown that such a finding
is not supported by any evidence on record or is not based
on the evidence adduced by the parties or no reasonable
person could have come to those findings on the basis of the
that evidence. This principle was laid down by this Court
in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ
150 = AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the
question was whether the High Court, under Article 226,
could interfere with the findings recorded at the
departmental enquiry. This decision was followed in Central
Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) =
AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai
Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC)
= AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In
Rajinder Kumar Kindra vs. Delhi Administration through
Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1)
SCR 866 = (1984) 4 SCC 635, it was laid down that where the
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findings of misconduct are based on no legal evidence and
the conclusion is one to which no reasonable man could come,
the findings can be rejected as perverse. It was also laid
down that where a quasi-judicial tribunal records findings
based on no legal evidence and the findings are his mere
ipse dixit or based on conjectures and surmises, the enquiry
suffers from the additional infirmity of non-application of
mind and stands vitiated.
Normally the High Court and this Court would not
interfere with the findings of fact recorded at the domestic
enquiry but if the finding of "guilt" is based on no
evidence, it would be a perverse finding and would be
amenable to judicial scrutiny.
A broad distinction has, therefore, to be maintained
between the decisions which are perverse and those which are
not. If a decision is arrived at on no evidence or evidence
which is thoroughly unreliable and no reasonable person
would act upon it, the order would be perverse, But if there
is some evidence on record which is acceptable and which
could be relied upon, howsoever compendious it may be the
conclusions would not be treated as perverse and the
findings would not be interfered with.
In the light of the above principles, let us
scrutinise the case in hand.
The charge framed against the appellant in the
instant case is as under:-
"You, Constable Kuldeep Singh No.2138/SD.
are hereby charged that while posted at P.P. Amar
Colony on 22.2.1990. You kept illegally Rs.200/out
of Rs. 1000/- given by the factory owner, Smt.
Meena Mishra running her factory at A-25, Garhi
Lajpat Nagar for the payment of her laborers, Shri
Radhey Shyam S/O Shri Phool Vash. Shri Rapal Singh
S/O Shri Brahma Nand and Shri Shiv Kumar S/O Shri
Ganga Ram. All these three laborers had made a
complaint that Smt. Meena Mishra had stopped their
payment or Rs. 2200/- for three months.
The above act your part amounts to grave
misconduct and unbecoming of a police officers which
renders you, constable Kuldeep Singh No. 2138/SD,
liable for punishment u/s 21 of Delhi Police Act,
1978.
Sd/- Shakti Singh
SHAKTI SINGH
Inspector,
Enquiry Officer,
DE Cell, Vigilance, Delhi."
The list of witnesses who were proposed to be
examined at the domestic enquiry, as set out in the
charge-sheet, was:-
List of witnesses
1. Sh. D.D. Sharma, Insp. He will move him
the then S.H.O. Lajpat to present.
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Nagar,
2. Smt. Meena Mishra R/O She will depose
A-25, Garhi, Lajpat Nagar, that she had
Nagar, given Rs.1000/-
to Ct. Kuldeep
Singh on
22.2.1990 for
payment to 3
laborers and
Constable had
kept Rs.
200/with him.
3. Sh. Rajpal Singh He will depose
S/O Brahama Nand that on 22.2.90
R/O Village Ram he along with
Nagar, P.S. Baroli Shiv Kumar and
Distt. Etah (U.P.) Radhey Shyam
had gone to
factory A-25,
Garhi with Ct.
kuldeep Singh
for settlement
of payment and
he kept Rs.200
with him.
4. Radhey Sham S/O Phool
Vash R/o Distt. Etah
Village Bulal Puri --do--
U.P. at present H.No.
74 Main Market Garhi
Lajpat Nagar.
SO/DE Cell"
The list of documents, indicated in the
charge-sheet, was:-
List of documents.
-----------------
1. Copy of report of SHO/Lajpat Nagar, dated 5.3.1990
against Constable Kuldeep Singh No.2138/SD.
2. Copy of Laborers Statement.
SO/DE Cell."
The charge against the appellant thus was that on
22.2.1990, three laborers namely, Radhey Shyam, Rajpal Singh
and Shiv Kumar who were working in the factory of Smt.
Meena Mishra at A-25, Garhi, Lajpat Nagar, and had not been
paid their salary by the factory owner had approached the
appellant who was posted at Police Post, Amar Colony,
attached to P.S. Lajpat Nagar, New Delhi, for his help in
the matter. The appellant along with the aforesaid laborers
went to the factory owner who gave Rs. 1000/- to the
appellant for payment to the three laborers but the
appellant did not pay the whole of the amount to them and
instead gave them only Rs. 800/-, keeping an amount of Rs.
200/- in his own pocket.
In order to prove this charge, the Department
examined Inspector D.D. Sharma, SHO, P.S. Lajpat Nagar; and
Smt. Meena Mishra. Their statements have been reproduced in
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copious details in the findings submitted by the Enquiry
Officer, a copy of which has been placed on the record.
Smt. Meena Mishra stated that the three persons,
namely, Rajpal Singh, Radhey Shyam and Shiv Kumar, were
working in her factory, to whom she had made payment
separately and individually. She stated. that she had paid
Rs. 563/- to Rajpal; Rs.211/- to Shiv Kumar and another sum
of Rs. 808/- jointly to Radhey Shyam and Rajpal. She
stated that she had not paid Rs. 1000/- to Kuldeep Sing
(appellant) on 22.2.1990, as she had asked the three
laborers to come after a few days and it was then that the
whole of the amount described above which was due from her
was paid to them.
Inspector D.D. Sharma, who was, at the relevant
time. posted as S.H.O. P.S. Lajpat Nagar, New Delhi.
stated that he had received a complaint from Radhey Shyam,
Rajpal Singh and Shiv Kumar. They were summoned to the
Police Post, Amar Colony where the contents of the complaint
were verified from them and their statement was recorded.
No other witness was examined on behalf of the Department,
not even the complainants, Rajpal Singh and Radhey Shyam,
though their names were mentioned in the charge-sheet for
being examined as witnesses against the appellant.
The appellant examined one of the complainants,
namely, Shiv Kumar in defence who supported the appellant
that Smt. Meena Mishra had not made any payment on 22.2.1990
but had called him and two other complainants, namely,
Radhey Shyam and Rajpal Singh after few days and when they
went again to her, she made the full payment.
The appellant also examined constable Shoukat Ali
who was posted, at the relevant time, at Police Post Amar
Colony. He stated that Radhey Shyam, Shiv Kumar and Rajpal
Singh had come to the Police Post to make a complaint
against Smt. Meena Mishra that she had not paid them their
salary. This constable directed them to meet the Emergency
Officer, ASI Bhopal Singh who sent the appellant with them
to Smt. Meena Mishra. The appellant came back and informed
ASI Bhopal Singh that Smt. Meena Mishra had agreed to pay
the amount due from her to these three persons after a few
days.
ASI Jagdish Prasad and ASI Bhopal Singh, who were
also examined in defence, corroborated the above statement
of constable Shoukat Ali.
ASI Bhopal Singh further stated that the appellant
was deputed by him to go to Smt. Meena Mishra with the
complainants and the the appellant, on his return from the
factory, told him that Smt. Meena Mishra had agreed to make
payment to the three laborers a few days later. The
witness, however, stated that all the three laborers had
come to Police Post, Amar Colony of P.S. Lajpat Nagar on
22.2.1990 where their statement was recorded by ASI Jagdish
Prasad on the dictation of SHO D.D. Sharma. This statement
was placed on the record before the Enquiry Officer.
This was the entire evidence produced at the
domestic enquiry.
What immediately strikes the mind is that Smt. Meena
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Mishra, who is alleged to have paid the amount of Rs. 1000/-
to the appellant, stated in clear terms as a witness for the
Department, that she had not made any payment to the
appellant. This payment is not proved in any other manner as
none of the three recipients of the above amount, who were
the complainants, has been produced at the departmental
enquiry, though two of them, namely, Radhey Shyam and Rajpal
Singh were proposed to be examined.
Non-production of the complainants is sought to be
justified with reference to Rule 16(3) of the Delhi Police
(F&A) Rules, 1980. Rule 18(3) is an under:-
"If the accused police officer does not admit the
misconduct, the E.O. shall proceed to record
evidence in support of the accusation as is
available and necessary to support the charge. As
far as possible the witnesses shall be examined
direct and in the presence of the accused, who shall
be given opportunity to take notes of their
statements and corssexamine them. The E.O. is
empowered, however, to bring on record the earlier
statement of any witness whose presence cannot, in
the opinion of such officer be procured without
undue delay, inconvenience or expense necessary
provided that it has been recorded and attested by a
police officer superior in rank to the accused
officer or by a Magistrate and is either signed by
the person making it or has been recorded by such
officer during an investigation or a judicial
enquiry or trial. The statements and documents so
brought on record in the departmental proceedings
shall also be read out to the accused officer and
shall be given an opportunity to take notes,
Unsigned statements shall be brought on record only
through recording the statements of the officer or
Magistrate who had recorded the statement of the
witness concerned. The accused shall be bound to
answer any questions which the E.O. may deem fit to
put to him with a view to elucidating the facts
referred to in the statements or documents thus
brought on record."
This Rule, which lays down the procedure to be
followed in the departmental enquiry, itself postulates
examination of all the witnesses in the presence of the
accused who is also to be given an opportunity to
crossexamine them. In case, the presence of any witness
cannot be procured without undue delay, inconvenience or
expense, his previous statement could be brought on record
subject to the condition that the previous statement was
recorded and attested by a police officer superior in rank
than the delinquent. If such statement was recorded by the
Magistrate and attested by him then also it could be brought
or record. The further requirement is that the statement
either should have been signed by the person concerned,
namely, the person who has made that statement, or it was
recorded during an investigation or a judicial enquiry or
trial. The Rule further provides that unsigned statement
shall be brought on record only through the process of
examining the Officer or the Magistrate who had earlier
recorded the statement of the witness whose presence could
not be procured.
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Rule 16(3) is almost akin to Sections 32 and 33 of
the Evidence Act. Before the Rule can be invoked, the
factors enumerated therein, namely, that the presence of the
witness cannot be procured without undue delay,
inconvenience or expense, have to be found to be existing as
they constitute the condition-precedent" for the exercise of
jurisdiction for this purpose. In the absence of these
factors, the jurisdiction under Rule 16(3) cannot be
exercised.
Rajpal Singh and Radhey Shyam, who were the original
complainants along with Shiv Kumar, were not examined and
the Enquiry Officer, regarding their absence, has stated in
his report as under:-
"The two prosecution witnessess Rajpal Singh
and Radhya Shyam have not attended to proceeding.
They have not been found residing in their vill.
now and it had come to notice that the defaulter has
managed their disappearance and has settled them
some where in Devli Khanpur and also has arranged
their employment but the addresses of those PWs are
not known. Such is the act of the defaulter to
create his defence and is an attempt to hide his
misconduct. Though their complaint Ex. PW-1/A has
been exhibited and has been taken on file to
ascertain the facts and for natural justice.
This will show that the blame for the
non-availability of these two witnesses has been laid on the
appellant who was already under suspension and it is not
understandable as to how and on what basis or on what
material, the Enquiry Officer came to the conclusion that
the appellant was responsible for their disappearance or had
procured employment for them in Devli Khanpur. If it was
known to the Enquiry Officer that they were available in
Devli Khanpur, was any attempt made to contact them at Devli
Khanpur or to bring them to the enquiry proceedings from
that place, is not indicated by the Enquiry Officer in his
report making it obvious that the factors necessary for the
exercise of jurisdiction under Rule 16(3) were not present
and it was not open to the Enquiry Officer to have taken
recourse to this Rule to bring on record the previous
statement of the complainants which allegedly was recorded
by Inspector D.D. Sharma. Moreover, the so-called previous
statement itself of the complainants appears to be a highly
suspicious document for the reason that S.H.O., D.D. Sharma
had stated before the Enquiry Officer that he had received a
complaint of Radhey Shyam, Rajpal Sing and Shiv Kumar
whereupon all the three persons were summoned by him and
after verifying the facts from those complainants had
recorded their statement which he had dictated to ASI
Jagdish Prasad. There were, therefore, two documents:
(i) The original complaint made by the aforesaid
three persons:
(ii) The statement of these persons, recorded by
ASI Jagdish Prasad, at the dictation of S.H.O., D.D.
Sharma, after verifying the facts, set out in the
complaint, from these persons.
complaint, from these persons.
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(1) The original complaint was not placed on the
record and it was the statement, recorded by S.H.O., D.D.
Sharma, which was produced before the Enquiry Officer. The
absence of original complaint, therefore, indicates that
there was, in fact, no complaint in existence which further
supports the statement of Department’s own witness Smt.
Meena Mishra that no payment was made by her on 22.02.1990.
Apart from the above, Rule 16(3) has to be
considered in the light of the provisions contained in
Article 311(2) of the Constitution to find out whether it
purports to provide reasonable opportunity of hearing to the
delinquent. Reasonable opportunity contemplated by Article
311(2) means "Hearing" in accordance with the principles of
natural justice under which one of the basic requirements is
that all the witnesses in the departmental enquiry shall be
examined in the presence of the delinquent who shall be
given an opportunity to cross-examine them. Where a
statement previously made by a witness, either during the
course of preliminary enquiry or investigation, is proposed
to be brought on record in the departmental proceedings, the
law as laid down by this Court is that a copy of that
statement should first be supplied to the delinquent, who
should thereafter be given an opportunity to cross-examine
that witness.
In State of Mysore vs. Shiv Basappa 1963(2) SCR 943
= AIR 1963 SC 375, the witness was not examined in the
presence of the delinquent so far as his
examination-in-chief was concerned and it was his previous
statement recorded at an earlier stage which was brought on
record. That statement was put to the witness who
acknowledged having made that statement. The witness was
thereafter offered for cross-examination and it was held
that although the statement (examination-in-chief) was not
recorded in the presence of the delinquent, since the
witness had been offered for cross-examination after he
acknowledged having made the previous statement, the rules
of natural justice were sufficiently complied with.
In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2)
SCR 809 = AIR 1964 SC 708 AND State of U.P. vs. Om Prakash
Gupta, AIR 1970 SC 679, the above principles were reiterated
and it was laid down that if a previous statement of the
witness was intended to be brought on record, it could be
done provided the witness was offered for cross-examination
by the delinquent.
Having regard to the law as set out above, and also
having regard to the fact that the factors set out in Rule
16(3) of the Delhi Police (F&A) Rules, 1980, did not exist
with the result that Rule 16(3) itself could not be invoked,
we are of the opinion that the Enquiry Officer was not right
in bringing on record the so-called previous statement of
witnesses Radhey Shyam and Rajpal Singh.
It will be noticed that there were three
complainants but only two, namely, Radhey Shyam and Rajpal
Singh were proposed to be examined. Why was not the third
complainant, Shiv Kumar, proposed to be examined? The
reason becomes obvious from the fact that when he was
examined as a Defence witness, he fully supported the
appellant by stating that no payment was made by Smt. Meena
Mishra on that date. But he was held by the Enquiry Officer
to be an impostor on the ground that he had not proved
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himself to be actual Shiv Kumar. The Enquiry Officer has
observed as under:-
"DW 1, Sh. Shiv Kumar is a prepared witness and has
not proved himself to be actual Shiv Kumar. This DW
1 has denied that he had visited the police station
and had never met with SHO. Moreover he has denied
to have signed EX PW-A/A. He had not made any
complaint to the SHO. His version has been
contradicted by ASI Jagdish Prasad, DW-4 the writer
of this complaint Ex PW-1/A. Both these defaulter
himself. So the statement of DW-1, Shiv Kumar has
not been relied upon because he is not actual Shiv
Kumar who is a complainant in this case and is a
false person who has been produce by the defaulter."
The reasons why he has been held to be an impostor
or a false person have not been indicated. The finding in
this regard is wholly arbitrary and perverse.
The findings recorded by the Enquiry Officer, have also been
upheld by the Deputy Commissioner of Police, South District,
New Delhi who had passed the order on 3rd of May, 1991 by
which the appellant was dismissed from service. The Addl.
Commissioner of Police, before whom the appeal was filed by
the appellant, also agreed with the findings recorded by the
Enquiry Officer as also the Deputy Commissioner and
dismissed the appeal on 22.07.1991.
From the findings recorded separately by the Deputy
Commissioner of Police, it would appear that there is a
voucher indicating payment of Rs. 1000/- to Rajpal Singh,
one of the labourers, on 8th of February, 1990. This
document was not mentioned in the chargesheet in which only
two documents were proposed to be relied upon against the
appellant, namely, copy of the report of S.H.O., Lajpat
Nagar dated 5th of March, 1990 against the appellant and the
copy of the labourers’ statement. This document has,
therefore, to be excluded from consideration as it could not
have been relied upon or even referred to by the Dy.
Commissioner of Police. Moreover, according to the charge
framed against the appellant, payment was made on 22.2.90
and not on 08.02.90 as indicated in the voucher and,
therefore, voucher, for this reason also, has to be
excluded.
To sum up, the charge against the appellant
consisted of two components, namely :
(a) On 22.2.90 Smt. Meena Mishra paid Rs. 1000/-
to the appellant for being paid to the three
labourers.
(b) Appellant paid Rs. 800/- to labourers and kept
Rs. 200/- with himself.
Smt. Meena Mishra, appearing as a witness for the
Department, denied having made any payment to the appellant
on that day. The labourers to whom the payment is said to
have been made have not been produced at the domestic
enquiry. Their so-called previous statement could not have
been brought on record under Rule 16(3). As such, there was
absolutely no evidence in support of the charge framed
against the appellant and the entire findings recorded by
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the Enquiry Officer are vitiated by reason of the fact that
they are not supported by any evidence on record and are
wholly perverse.
The Enquiry Officer did not sit with an open mind to
hold an impartial domestic enquiry which is an essential
component of the principles of natural justice as also that
of "Reasonable Opportunity", contemplated by Article 311(2)
of the Constitution. The "Bias" in favour of the Department
had so badly affected the Enquiry Officer’s whole faculty of
reasoning that even non-production of the complainants was
ascribed to the appellant which squarely was the fault of
the Department. Once the Department knew that the labourers
were employed somewhere in Devli Khanpur, their presence
could have been procured and they could have been produced
before the Enquiry Officer to prove the charge framed
against the appellant. He has acted so arbitrarily in the
matter and has found the appellant guilty in such a coarse
manner that it becomes apparent that he was merely carrying
out the command from some superior officer who perhaps
directed "fix him up".
For the reasons stated above, the appeals are
allowed. The judgment and order dated 28th February, 1997,
passed by the Central Administrative Tribunal, is set aside.
The order dated 3rd of May, 1991, passed by Deputy
Commissioner of Police by which the appellant was dismissed
from service as also the order passed in appeal by Addl.
Commissioner of Police are quashed and the respondents are
directed to reinstate the appellant with all consequential
benefits including all the arrears of pay up-to-date which
shall be paid within three months from today. There will,
however, be no order as to costs.