NARENDER SINGH v. COMM. OF POLICE

3. We have carefully perused the records, and have heard Mr.Saurabh Ahuja, the learned counsel appearing for the applicant, and Ms. P.K.Gupta, the learned counsel appearing for the respondents.

4. The brief facts giving rise to the present O.A. are as follows:

4.1 The applicant joined as a Constable (Exe.) in Delhi Police in the year 1987.

4.2 The Dy. Commissioner of Police, 1^stBn, DAP, Delhi (hereinafter referred to as the 'Disciplinary Authority') initiated a regular departmental enquiry against the applicant, vide order dated 8.3.2011 (Annexure 1), which reads thus:

"It is alleged that Ct. Narender Singh, No. 314/Crime (now 1409/DAP, PIS No. 28871499) Village Makroli Khurd, PS Sadar, Rohtak, Haryana, that while posted in crime branch involved himself in a criminal case FIR No. 51/09 u/s 382/482/411 IPC PS Greater Kailash-I, New Delhi along with his associate Daya Shankar @ Deepak @ Simmi @ Manish S/o late Ram Gopal Sharma R/o H.No.35, Guru Nanak Vihar, Nilothi Exam., New Delhi. During the course of investigation, it was found that he along with his associate Daya Shankar snatched a car Honda CRV No.DL3CBE 2055 from the area of police station Greater Kailash-I, New Delhi from the driver Manjeet Kumar Gupta S/o Sh.Mishree Lal Gupta R/o A-10 Zamrudpur, New Delhi. On the basis of disclosure statement made in FIR No. 67/09 u/s 382/482/411/34 IPC PS Defence Colony, New Delhi, he was formally arrested in FIR No.51/09 Greater Kailash-I, New Delhi on 28.03.09. The above said stolen car was recovered from his possession in FIR No.67/09 PS Defence Colony, New Delhi. He also confessed about the commission of

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offence in FIR No. 51/09 PS Greater Kailash-I, New Delhi. He was sent to judicial custody remand in the above said case. For the above said lapse, he was deemed placed under suspension with effect from 28.3.2009 vide order No.8207- 32/HAP (P-III)/1^stBn. DAP dated 23.8.2010. The above act on the part of Ct. Narender Singh, No.314/Crime, 1409/DAP amounts to grave misconduct and an act of unbecoming of a police officer which renders him liable for disciplinary action under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980. Therefore, I, A.K.Singh, Deputy Commissioner of Police/1^stBn.DAP, Delhi under the provision of the said rule, order that a regular D.E. be conducted against Ct. Narender Singh, No. 314/Crime, 1409/DAP by Inspector Om Prakash, No.D-I/38, Enquiry Officer of this Bn. On day to day basis after observing all usual formalities and submit his findings within six months from the date of service of summary of allegation. The E.O. will also submit a weekly report of the D.E. on every Monday on the prescribed proforma circulated vide this office endorsement No.13575-89/HAP/1^stBn. DAP dated 13.12.2010.

DE contemplation order issued vide this office order No.11221-44/HAP(P-III)/1^stBn. DAP dated 11.11.2010."

4.3 Thereafter, the summary of allegations, list of witnesses, and list of documents were furnished to the applicant. The summary of allegations reads thus:

"It is alleged against Ct.Narender Singh No.314/Crime (Now 1409/DAP), PIS No.28871499 that while posted in Crime Branch,on the night intervening 13-14/3/2009 he along with his associates extorted/stolen Honda CRV Car No.DL3CBE 2055 from Sh.Manjeet Kumar Gupta S/o Sh.Mishri Lal Gupta r/o H.No.10-A village Zamrudpur Delhi, which was recovered from his possession in case FIR No.67/09, PS Defence Colony, Delhi.

Consequently, he was arrested on 28/3/2009 in case FIR No.51 dated 14/3/2009 u/s 382/482/411/34 IPC, PS Greater Kailash-I and chargesheeted u/s 382/411/482 IPC in the said case of PS Greater Kailash-I. It is also alleged that the aforementioned vehicle was recovered at his instance in case FIR No.67 dated 2/3/2009 u/s 382/482/411/34 IPC, PS Defence Colony, Delhi. It is also alleged against him that he engaged himself since 2003 in Criminal Activities like theft/extortion vehicle, receiving stolen vehicles and

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sale/purchase of stolen vehicles etc. He confessed extortion/stealing cars in FIR No.51/09 of PS Greater Kailash-I.

The above act on the part of Ct.Narender Singh No.1409/DAP amounts to grave misconduct and an act of unbecoming of a Police officer which renders him liable for disciplinary action under the provision of Delhi Police (Punishment & Appeal) Rules 1980."

4.4 In the departmental enquiry, eight witnesses were examined on behalf of the prosecution. They were duly cross- examined by the Defence Assistant on behalf of the applicant. The Enquiry Officer explained to applicant the circumstances appearing against him in the evidence/materials produced by the prosecution and also recorded his statement. The applicant was also given time to produce D.Ws., if any, or to submit his own version by way of written Statement of Defence. The applicant submitted a detailed representation/statement of defence before the Enquiry Officer on 18.7.2011, denying the charges levelled against him. The Enquiry Officer, after analyzing the statements made by the witnesses and other materials available on record including the written statement of defence, submitted a report on 4.8.2011 holding the charges as proved against the applicant. 4.4.1 The relevant portion of the enquiry report is reproduced below:

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"Appreciation of Evidence PW1:HC Dhani Ram has proved EX/PW-1/A i.e. copy of FIR No.51/09, U/s 382/482/411/34 IPC PS G.K.-1 and also proved DD No.10A dated 23/3/09 i.e. EX/PW-1/B. DD No.10A is an information which was received in PS G.K.-1 on 23/3/09 at

12.10 pm that Ct. Narender Singh has been arrested in case FIR No.67/09 U/s 382/411/482/34 IPC PS Defence Colony and discloses that he had stolen Honda CRV car no.DL 3CBE 2055 which was extorted and a case vide FIR No.51/09 is registered at PS G.K.-1. SI Anil Kumar has given this information.

PW-2: Ct.Satbir Singh of P.S. G.K.-I has proved EX/PW-2/A which is a copy of Disclosure Statement of Ct. Narender Singh in case FIR No.51/09 P.S. G.K.-I. This witness has also proved EX/PW-2/B which is arrest memo of Ct.Narender Singh prepared in his presence. This Disclosure Statement has not been signed by Ct. Narender Singh as he "Refused to sign" which shows that the statement made was not voluntary in nature. PW-3: HC Krishnan Lal has also proved the same Disclosure Statement and Arrest Memo of Ct. Narender Singh as both the documents were prepared in his presence by SI Laxmi Chand on 28/3/09 while investigating case FIR No.51/09. PW-4: HC Sukhbinder Singh has proved EX/PW- 4/A which is pointing out recovery and seizure memo of Honda CRV car with a forged number plate as because the document was prepared by SI Anil Kumar while investigating case FIR No.67/09 PS Defence Colony on 22/3/09 in his presence. The car stolen was recovered at the instance of Ct. Narender Singh.

PW-5: SI Laxmi Chand IO of case FIR No.51/09 P.S. G.K.-I has also proved the arrest of Ct. Narender Singh and the Disclosure Statement made by Ct. Narender Singh before him and also identified Ct.

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Narender Singh as the same person present during D.E. proceedings in the office of the undersigned. PW-6: Ct. Harish Kumar has proved through records that Ct. Narender Singh was posted in Crime Branch during the year 2009.

PW-7: SI Anil Kumar IO of case FIR No.67/09 P.S. Defence Colony has proved that he recovered the stolen car at the instance of Ct. Narender Singh and prepared recovery pointing out and seizure memo while investigating the aforementioned case he also identified Ct. Narender Singh present during the D.E.proceedings as the same person on whose instance he recovered the car. He also stated that Chargesheet in FIR No.67/09 P.S.Defence Colony is also filed in the court of law and present Ct. Narender Singh is one of the accused. PW-8: Sh.Manjeet Kumar Gupta whose vehicle was extorted and a case FIR No.51/09 was registered I his complaint at P.S. G.K.-I while he was in his car in a parking area under the jurisdiction of P.S. G.K.-I. …"

4.5 The applicant submitted a representation against the enquiry report. In his representation, the applicant also requested the Disciplinary Authority to keep in abeyance the departmental enquiry and not to take final decision therein till the decision of the criminal case pending against him.

4.6 After considering the materials available on record including the applicant's representation against the enquiry report and upon hearing the applicant on 9.9.2011, the Disciplinary Authority imposed on applicant the penalty of

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removal from service, vide order dated 9.9.2011, the relevant part of which reads thus:

"For the sake of natural justice, he has been heard in O.R. on 9.9.2011. He says that he is not involved in this case. He was involved in case by someone but do not want disclose his/her name. A person namely Amit, whose maternal uncle is SI in Delhi Police is, in fact, involved in all these cases. He is known to Amit, so his name was dragged in this case.

I have carefully gone through all documents in DE file, findings of the EO, reply of defaulter to finding of EO and verbal deposition in O.R. Defaulter took mainly 3 pleas in his defence. First he wanted that his DE may be kept in abeyance till finalization of criminal case. This plea is not convincing and genuine as per S.O. No.125 Para-10 Hon'ble Apex Courts judgment and judgment of full bench of Hon'ble CAT in OA No.2816/08, No.2100/08, 2673/10 where it is clearly mentioned that mode and rules in enquiry and trial court, both are distinct and different. There is no need to put on hold the final order in DE proceeding awaiting the decision of criminal court. Hence plea is rejected. In second plea he stated that department can examine his case in Rule 12 of Delhi Police (Punishment & Appeal) Rules-1980 after finalization of criminal case. In view of position mentioned above at this stage is not convincing and acceptable. In his third plea that E.O. has not considered his defence properly is not convincing and acceptable as E.O. has conducted the DE as per Rule-16 and all opportunity to defend him was given. EO also considered defence on merits. EO proved the charge against defaulter on merits. The act and conduct of defaulter which amount to misconduct is of such grave which is contrary to public interest and undesirable to retain him in department as police department is to protect public and their property. In view of the above facts and circumstances, it is clear that duty of police personnel is to protect public and property where a sensible, devoted and hard worker is required. But he is not showing such a character. Keeping him in the department is undesirable. Hence, I award him punishment of removal from the service and suspension period will be decided after decision of criminal case."

4.7 The applicant made an appeal against the punishment order passed by the Disciplinary Authority. The applicant's appeal was rejected by the Appellate Authority,

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vide its order dated 30.3.2012, the relevant part of which reads thus:

"The appellant in his appeal has mainly pleaded that

(i) the punishment order of the disciplinary authority is defective; (ii) the EO has proved the charge without any basis. PW-8 Sh.Manjeet Kumar Gupta, Driver of the car did not identify the appellant and did not support the allegations during DE proceedings. Besides, during TIP before magistrate at Tihar Jail, this PW could not identify any person as culprit who had looted the car, (iii) the disciplinary authority in the punishment order has mentioned that the appellant confessed about commission of offence in FIR No.51/09 PS Greater Kailash-I and sent to judicial custody remand which is not a part of the charge, (iv) there is no provision in S.O.No.125/2010 in respect of taking final decision in the departmental enquiry. The DE should have been kept pending till the decision of criminal case, (v) the disciplinary authority did not consider his defence statement, (vi) he has requested to set aside the punishment. The plea of the applicant is not admitted. The disciplinary authority has passed punishment order after carefully going through the DE file, statement of PWs, defence statement and representation of the appellant, which is justified. The EO has conducted the DE as per rules and proved the charge on the basis of evidence adduced during the DE proceedings. The plea no. (iii) is denied. In the charge, it has clearly been mentioned that "your confession is also recorded by way of disclosure statement in case FIR No. 51/2009 PS Greater Kailash-I by the investigating officer". The plea no.(iv) is not accepted. Being member of police force, his primary duty was to prevent crime and protect public and its property but in this case he himself was involved in a criminal case.

I have carefully gone through the appeal, impugned order dated 09.09.2011 and all the relevant material on record. I have also heard the appellant in O.R. on 22.03.2012. During his appearance before undersigned, he stated that he has been falsely implicated in the criminal cases. I find that IO/SI Laxmi Chand, PS GK-I, ND in the presence of Ct. Satbir Singh, PW-2, had recorded disclosure/confession statement of the appellant in case FIR No.51/2009 PS GK-I, ND, mentioning therein that the appellant along with his accomplice snatched a car bearing registration No. DL-3CB-E-2055 from main Road, GK-I, ND. The local police of PS G.K.-I arrested the appellant ad recovered the said car from his possession. The IO/SI Laxmi Chand, PS GK-I, ND also stated that the appellant had admitted his guilty, but had refused to sign on it. However, a

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perusal of arrest memo, in the said case revealed that he had signed on it. It is also on record that during investigation of case FIR No. 67/2009, PS Defence Colony, the appellant in his confession statement stated that he used to procure stolen cars and forged documents from one Daya Shankar @ Chimmy @Manish @ Deepak S/o Shri Ram Gopal Sharma and sell them in Dimapur, Nagaland/Assam through one Naresh Kumar. The appellant h ad also cited 05 incidents of stolen car by Daya Shankar @ Chimmy @ Manish @ Deepak s/o Shri Ram Gopal Sharma. A stolen car bearing registration No.DL-3CB-E-2055 (with fake number plate No.DL-4C-NC-4500) was recovered from his possession. He has signed on the pointing-out-cum-recovery memo of case FIR No.67/2009,, PS Defence Colony. Being a police officer, the appellant, being well versed with the lacuna in the law had deliberately refused to sign confession statement to get benefit of doubt in the court of law. Moreover, both the cases are still pending trial in the court of law. There is, hence, no ground to interfere with the orders of the disciplinary authority. The appeal is accordingly rejected."

5. In the above backdrop, the applicant has contended that the charges levelled against him were vague and not definite, and, therefore, he was deprived of defending his cause effectively and in proper manner. There was no evidence to sustain the charges levelled against him. The Enquiry Officer has failed to appreciate the evidence and materials available on record. The Disciplinary and Appellate Authorities have failed to consider his contentions in proper perspective.

6. Besides reiterating the contentions raised by the applicant, Mr.Saurabh Ahuja, the learned counsel appearing for the applicant, submitted that in both the criminal cases, i.e., FIR No.51/2009 PS Greater Kailash, New Delhi, and FIR No. 67/2009 PS Defence Colony, New Delhi, the offences have

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been compounded and the applicant has been acquitted of the charges by the learned trial court. In this connection, Mr.Saurabh Ahuja invited our attention to (i) the order dated 23.11.2013 passed by the National Lok Adalat in FIR No.51/2009, (ii) the order dated 25.11.2013 passed by the learned Metropolitan Magistrate-08(SE), (iii) judgment dated 13.8.2012 passed by the learned Metropolitan Magistrate (SD)/Delhi in FIR No.67/09 PS Defence Colony, (iv) statements of one Shri R.S.Prasad, s/o Sh.H.K.Saha, r/o 69, Anand Lok, New Delhi, and (v) a joint statement of Narender Singh (applicant herein) and of Amit Kumar s/o Sh.Karan Singh (accused nos. 1 & 2) in FIR No.67/2009 PS Defence Colony. It was submitted by Mr.Saurabh Ahuja that in view of the acquittal of the applicant in the criminal cases by the criminal court, the impugned departmental enquiry, the enquiry report, the punishment order and the appellate order are unsustainable in the eyes of law.

6.1 The order dated 23.11.2013 passed by the Hon'ble National Lok Adalat in FIR No.51/2009 reads thus:

"FIR No.51/2009 PS-Greater Kailash State v. Narender Singh Under Section 411/482 IPC

23.11.2013

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File is taken up today for consideration in Naational Lok Adalat.

Present:Learned APP for the State.

Proceedings conducted before the Court on last date of hearing perused.

Submission heard.

Considering the entire facts and circumstances of the case and in particular the earlier proceedings, permission is granted to the parties to compound the offences. File be placed before the Court on 25.11.2013 at 12.30 PM for further direction regarding consignment order. (Kamlesh Sharma) (Amitabh Rawat)

Associate Member Judge: National Lok Adalat

23.11.2013 23.11.2013.

6.1.1 The order dated 25.11.2013 passed by the learned Metropolitan Magistrate-08(SE) reads thus:

"FIR No.51/2009 PS-GK I

Present: Learned APP for the State. Vide order dated 23.11.2013, present matter has been compounded in the National Lok Adalat. Bail bond cancelled and surety stands discharged. Recovered/seized vehicles/articles be released to the rightful owner as per law and superdarinama thereof, if any stands cancelled. The original documents, if any, be returned to the surety or the person entitled to, afer proper verification/acknowledgement and cancellation of endorsement, if any.

File be consigned to Record Room on completion of necessary formalities.

Sd/

(Amitabh Rawat)

MM-08 (SE) 25.11.2013."

6.1.2 The judgment dated 13.8.2012 passed by the learned Metropolitan Magistrate (SD)/Delhi in FIR No.67/09 PS Defence Colony, reads thus:

"13.08.2012 FIR No.67/09 PS: Defence Colony State Vs. Manoj Bakkarwala and ors. Date of Institution : 25.06.2010 Date of such order : 13.08.2012

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JUDGMENT

Pr. Ld. APP for State. Accused Narender Singh and Amit are on bail present today.

Accused Manoj Bakkarwala not produced from

JC.

Sh. R.S.Prasad, Managing Director of SSR Trexim India Pvt. Ltd., in whose name the car in question/stolen car was registered is also present. I have gone through my last orders i.e. orders dated 04.08.2012. It is submitted by the parties that they have compounded/compromised the present matter.

Record perused.

As per orders on charge dated 18.09.2010 accused Narender and Amit are facing trial for having committed offence u/s 411/482/34 IPC. Section 320 CrPC has been amended by the Code of Criminal Procedure (Amendment) Act, 2008, whereby the restriction on the value of the property stolen as appearing in column-1 of the table below Section 320

(2) has been done away with in relation of Section 411

IPC.

I have gone through the amended provisions as well as in view of the law laid down in Dayal v. State of Rajasthan SC (2004) JT 37, Rattan v. State of Maharashtra 1966 (SC) 722 and Superintendent v. Narcotic Control Bureau v. Prakash Sinha SC 2008 (4) RCR (Criminal) 903, I find no reasons to not to grant the benefit of the amended provisions to the accused as it being a beneficial piece of legislation it has a retrospective effect.

Separate statement of the Sh. R.S.Prasad and accused Narender Singh and Amit Kumar has been recorded.

Compromise in modern society is the sine qua non of harmony of orderly behavior. In fact there can be nothing more satisfactory than an order based on compromise between the parties.

In Mrs. Shakuntala Sawhey v. Mrs. Kaushalya Sawhey and others (1980) 1 SCC 63, Hon'ble Krishna Iyer, J. aptly summoned up the essence of compromise in the following words:

"The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet an weave a sense of fellowship of reunion. The power to do complete justice is the very essence of every judicial dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise

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of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice."

Further reliance may be placed upon the observations made in case titled as Madan Mohan Abbot v. State Of Punjab ., (SC), 2006 (2) R.C.R. (Criminal) 429, wherein it was held:

" Keeping in matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation."

Accordingly, in view of the statement of the accused as well as Sh.R.S.Prasad and when they have buried the hatchet and left behind the dispute, the offence u/s 428/411 IPC stands compounded. Accused persons namely Narender Singh and Amit Kumar are accordingly acquitted. Issue P/W of accused Manoj Bakkarwala for

27.08.2012.

(Gaurav Rao) MM(SD)/Delhi/13.08.2012"

6.1.3 Statements of Shri R.S.Prasad, s/o Sh.H.K.Saha, r/o 69, Anand Lok, New Delhi, and (v) a joint statement of Narender Singh (applicant herein) and of Amit Kumar s/o Sh.Karan Singh (accused nos. 1 & 2) in FIR No.67/2009 PS Defence Colony read thus:

" FIR No.67/09 PS: Defence Colony Statement of Sh.R.S.Prasad s/o Sh. H.K.Saha, R/o 69, Anand Lok, New Delhi.

On SA.

I am the Managing Director of the company i.e. SSR Trexim India Pvt.Ltd. in which name the car was registered and is duly authorized to make statement on behalf of the company. I have compromised the present dispute with all the accused persons which includes who are present today as well as with accused Manoj Bakkarwala @ Ajay (not produced from JC today). I do not want to pursue the present matter. Same may kindly be allowed to be compounded/compromised and the accused persons may be given chance to reform themselves.

RO & AC Sd/

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MM(SD)/Delhi

13.08.2012

Statement of accused 1. Narender Singh S/o Sh.Sumer Singh 2. Amit Kumar S/o Sh.Karan Singh. We are accused in the present matter. The present matter has been compromised between us and the Managing Director company SSR Trexim India Pvt.Ltd. The matter may kidly be allowed to be

compounded/compromised.

RO & AC Sd/

MM(SD)/Delhi

13.08.2012

6.2 In support of his contentions, Mr.Saurabh Ahuja, the learned counsel appearing for the applicant, relied on the decisions in Anil Kumar Vs. Presiding Officer and others,

(1985) 3 SCC 378; Hardwari Lal Vs. State of U.P. and others, (1999) 8 SCC 582; Khursheed and another Vs. State of Uttar Pradesh and another, (2007) 12 SCC 68; Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570; GNCT of Delhi and others Vs. ASI Rambir Singh and another, WP(C ) No. 7680 of 2010, decided on 18.12.2012; and Sukhdev Singh and another Vs. Government of NCT of Delhi and others, OA No. 2816 of 2008, decided on 18.2.2011.

6.2.1 In Anil Kumar Vs. Presiding Officer and others

(supra), it was observed by the Hon'ble Supreme Court that the enquiry report submitted by the Enquiry Officer only contained the charges against the appellant, the dates on

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which the enquiry was held, names of witnesses produced on behalf of the management followed by a statement that evidence of the appellant and his witnesses were recorded. After that the report concluded with the statement that the appellant's "non-observing of the instructions of his seniors and leaving the place of work without proper permission is a serious case of misconduct, negligence of duty and indiscipline". At the foot of it there was a forwarding note. The General Manager, accepting the report, passed the order of dismissal of the appellant from service. Allowing the appeal, setting aside the order of dismissal, and ordering reinstatement and payment of back wages, the Hon'ble Supreme Court held that the Enquiry Officer merely recorded his ipse dixit that the charges were proved, without assigning any reason why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable. A disciplinary enquiry has to be a quasi- judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially.

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Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. It cannot be ipse dixit of the Enquiry Officer. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, it is not an enquiry report at all.

6.2.2 In Hardwari Lal Vs. State of U.P. and others

(supra),the appellant was a Constable in the Police Department of the State of Uttar Pradesh. On the charge that on the night between 16.1.1991 and 17.1.1991, being under the influence of liquor he hurled abuses in the police station at Constable Prakash Chander Pandey, a departmental enquiry was initiated against the appellant. On receipt of enquiry report, the disciplinary authority passed an order of dismissal. Challenge to that order by the appellant before the Tribunal failed. The appellant further carried the matter to the High Court by way of writ petition. The ground based on supply of copies of certain documents like preliminary enquiry report, the statement of the complainant made to Inspector Virender

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Singh was rejected by the Tribunal being of the view that the appellant had participated in the preliminary enquiry having inspected the entire record and documents and had not asked for any copies of the record. This finding recorded by the Tribunal stood affirmed by the High Court. Similarly, the contention regarding non-examination of Virender Singh, who was the complainant in the case, and witness, Jagdish Ram, who was supposed to have witnessed the incident, was also rejected by the Tribunal on the basis that the examination of Virender Singh was only formal to prove the report dated 17.7.1991 and no prejudice has been caused to the defence of the appellant. According to the Tribunal, evidence of Jagdish Ram also was not important because he had merely accompanied him for the purpose of medical examination. The High Court affirmed this finding and ultimately concluded that apart from the evidence of these two witnesses, there was sufficient material on record to establish the fact that the incident took place and thus there was no ground to interfere with the order made by the Tribunal and dismissed the writ petition. The sole ground urged before the Hon'ble Supreme Court was as to the non-observance of the principles of natural justice in not examining the complainant and witness

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Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. The Hon'ble Supreme Court held that both the Tribunal and High Court were not justified in thinking that non-examination of these two persons could not be material and thus, there was no proper enquiry held by the authorities. Accordingly, the Hon'ble Supreme Court allowed the appeal and quashed the order of dismissal passed against the appellant, and set aside the order passed by the High Court affirming the order of the Tribunal.

6.2.3 In Khursheed and another Vs. State of Uttar Pradesh and another (supra), it was observed by the Hon'ble Supreme Court that sub-section (8) of Section 320 of the Code of Criminal Procedure states that the composition of offence under the section shall have an effect of acquittal of the

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accused with whom the offence has been compounded. The resultant effect of compounding of offences would be that the accused should be acquitted. In other words, once the offences have been compounded and the requisite permission is granted by the court, the accused must be acquitted. 6.2.4 In Roop Singh Negi Vs. Punjab National Bank and others (supra), the appellant was a Peon in respondent Bank. He along with others was involved in a case of theft of bank draft book. An FIR was lodged for the alleged loss and after investigation by the police, the appellant and others were prosecuted. The appellant was, however, acquitted by criminal court. Departmental proceedings were also conducted against appellant wherein charge against appellant was held to have been established on the basis of FIR, some other documents and appellant's alleged confession before the police. These documents were, however, not proved during the course of departmental enquiry by examining and cross-examining the witnesses. Contentions raised by the appellant were also not considered by the departmental authorities, yet the appellant was dismissed from service. The Hon'ble High Court dismissed appellant's writ petition. Allowing the appeal, and reversing the decision of the High Court, Hon'ble Supreme Court held

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that a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. The appellant being an employee of the Bank, his confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. There was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.

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6.2.5 In GNCT of Delhi and others Vs. ASI Rambir Singh and another (supra), the respondent-police personnel were departmentally proceeded against on the charge that while checking vehicles/trucks coming from Ghaziabad entering into Delhi at Gazipur Border Traffic Picket in Kalyanpuri Traffic Circle, they were illegally collecting money from drivers of the trucks/vehicles and putting in the dickey of a motorcycle. The motor-cycle was checked by the checking staff and it was found to contain Indian currency in the denominations of Rs.10/-, Rs.20/-, Rs.50/- and Rs.100/- totaling to Rs.6,350/-. After seizure of the said amount, etc., a departmental proceeding was initiated against the respondents. The Inquiry Officer found the charges as not proved against the respondents. However, the Disciplinary Authority did not agree and recorded his disagreement and thereafter imposed penalty of forfeiture of three years' approved service permanently. OA No.1604 of 2005 was filed by the respondents challenging the said punishment. The Tribunal disposed of the said O.A. primarily on the ground that the key witness, that is, the Deputy Commissioner of Police Sh.Manoj Kumar Lall had not been produced as a witness. The Tribunal noted that none of the PWs, who had

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been produced till then, stated that they had seen the respondents putting money in the public motorcycle parked there. The Tribunal felt that since the said DCP was the only alleged eye witness, he was a very material witness and that he ought to have been produced. However, since neither he had been called in the inquiry proceedings nor the applicants had been given a chance to cross-examine him, reliance could not have been placed on his report and since the Disciplinary Authority had placed reliance on the said DCP's report, the inquiry itself got vitiated. Thus, the Tribunal quashed the impugned orders passed by the Disciplinary Authority and Appellate Authority. However, the Tribunal gave liberty to the petitioners to resume the inquiry from the stage of calling the Deputy Commissioner of Police Shri Manoj Kumar Lall as a witness after giving due notice and a chance to the respondents to cross-examine him and then pass orders after following the due process of law. Subsequently, the inquiry was continued from the stage indicated above and the said DCP was examined and cross-examined in the supplementary inquiry. This time, the Inquiry Officer held the charges as proved against the respondents, and consequently the Disciplinary Authority imposed the punishment of forfeiture of

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one year's service permanently, and the appeals were rejected by the Appellate Authority. Thereafter, the respondents filed OA No.3261 of 2009. After examining the statement made by the DCP in cross-examination and the statement made by DW1 who claimed to be the owner of the motorcycle, the Tribunal concluded that there was no connection between the motorcycle and the alleged incident. Accordingly, the Tribunal held that there was no evidence to prove the charges against the respondents. The writ petition filed against the Tribunal's order was dismissed.

6.2.6 In Sukhdev Singh and another Vs. Government of NCT of Delhi and others (supra), the questions which came up for consideration before the Full Bench of the Tribunal were (i) Whether in view of the provisions contained in Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, which specifically stipulates that a police officer shall be proceeded against in a departmental enquiry only in the circumstances mentioned in clauses (a) to (e) of the said rule, would it be permissible to have simultaneous departmental enquiry along with criminal trial; and (ii) whether in view of the provisions contained in rule 12, the departmental proceedings could go on but final orders should await the

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decision of the criminal court. The Full Bench of the Tribunal held that there is no bar, express or implied, in the Rules of 1980 for holding simultaneous criminal and departmental proceedings. However, in case departmental proceedings may culminate into an order of punishment earlier in point of time than that of the verdict in criminal case, and the acquittal is such that departmental proceedings cannot be held for the reasons as mentioned in Rule 12, the order of punishment shall be re-visited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs. It was also held by the Full Bench of the Tribunal that there would be no need to put on hold the final orders in departmental proceedings awaiting the decision of the criminal court.

7. Per contra, Ms.P.K.Gupta, the learned counsel appearing for the respondents submitted that this was not a criminal case, and was only a case of departmental proceedings, and, therefore, charges need not be proved beyond doubt and it only required the establishment of preponderance of probabilities. The position in law is clear that the Tribunal does not have to go into the evidence and as

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long as there is some evidence, the question of sufficiency of evidence need not be gone into by the Tribunal. This was not a case of no evidence, and it is only in cases of no evidence that the Tribunal could interfere with the findings of the departmental authorities.

7.1 It was also submitted by Ms. P.K.Gupta that acquittal of the applicant on compounding of the offences in the criminal cases would not render the impugned orders liable to be set aside and/or revisited by the departmental authorities.

8. After having given our thoughtful consideration to the materials available on record, and to the rival contentions, we have found no substance in any of the contentions of the applicant.

9. It is no more res integra that the power of judicial review does not authorize the Tribunal to sit as a court of appeal either to reappraise the evidence/materials and the basis for imposition of penalty, nor is the Tribunal entitled to substitute its own opinion even if a different view is possible. Judicial intervention in conduct of disciplinary proceedings and the consequential orders is permissible only (i) where the disciplinary proceedings are initiated and held by an

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incompetent authority; (ii) such proceedings are in violation of the statutory rule or law; (iii) there has been gross violation of the principles of natural justice; and (iv) on account of proven bias and mala fide.

10. The Hon'ble Apex Court in the case of K.L. Shinde

v. State of Mysore, (1976) 3 SCC 76, having considered the scope of jurisdiction of this Tribunal in appreciation of evidence, has ruled as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re- assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada- bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the

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smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi- judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross- examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require

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in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

11. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others,

AIR 1984 SC 1805, it has been laid down by the Hon'ble Supreme Court that where the 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 has also been laid down that where a quasi judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

12. In B.C. Chaturvedi v. Union of India, AIR 1996 SC 484, reiterating the principles of judicial review in disciplinary proceedings, the Hon'ble Apex Court has held as under:

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"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the

Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re- appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence

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are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union Of India v. H.C Goel . (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

13. In R.S. Saini v. State of Punjab and ors, (1999) 8 SCC 90, the Hon'ble Apex Court has observed as follows:

"We will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."

14. The above view has been followed by the Hon'ble Apex Court in High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil, (2000) 1 SCC 416, wherein it has been held as under:

"...Interference with the decision of departmental authorities can be permitted, while

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exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution.

15. In Syed Rahimuddin v. Director General, CSIR and others, ( 2001) 9 SCC 575, the Hon'ble Apex Court has observed as under:

"…It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man…."

16. In Sher Bahadur v. Union of India, (2002) 7 SCC 142, the order of punishment was challenged on the ground of

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lack of sufficiency of the evidence. The Hon'ble Apex Court observed that the expression "sufficiency of evidence"

postulates "existence of some evidence" which links the charged officer with the misconduct alleged against him and it is not the "adequacy of the evidence".

17. In Government of Andhra Pradesh v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, the Hon'ble Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if it results in manifest miscarriage of justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:

"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority….."

18. Taking into consideration the material and evidence on record and the legal position, as discussed herein above, we are of the considered opinion that the Enquiry Officer has correctly evaluated the evidence available on record. The Disciplinary Authority as well as Appellate Authority have

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recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders.

19. It is now well settled principle of law that departmental inquiry and criminal proceedings can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding, particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a Government servant in a departmental proceeding. In the present case, the applicant was proceeded against departmentally and he was removed from service by way of punishment, before he was acquitted by the criminal court not on merits but on the basis of compromise and compounding of the offences. Such acquittal of the applicant on compounding of the offences would not wipe out his misconduct which was proved in the departmental enquiry.

20. None of the decisions cited by Mr.Saurabh Ahuja, the learned counsel appearing for the applicant, which have been discussed by us in paragraphs 6.2.1 to 6.2.6 of this

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order, supports the submissions of Mr.Saurabh Ahuja, the learned counsel for the applicant.

21. No other point worth consideration has been urged or pressed by the learned counsel appearing for the parties.

22. In the light of our above discussions, we do not find any merit in the O.A. Accordingly, the O.A. is dismissed. The parties are left to bear their own costs.

(RAJ VIR SHARMA) (SHEKHAR AGARWAL)

JUDICIAL MEMBER ADMINISTRATIVE MEMBER

AN

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