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Judgment
S.N. Terdal, J
Heard Mr.Sachin Chauhan, counsel for applicant and Mrs. P.K.Gupta, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
In the OA, the applicant has prayed for the following reliefs:
"8.1. To set aside the impugned orders dated 27.9.11 at A-1 whereby the punishment of one year approved service temporarily entailing proportionate reduction in his pay is imposed upon the applicant and order dated 18.6.12 at A-2 whereby the appeal of the applicant has been rejected by Appellate Authority and to further direct the respondents that the forfeited years of service e restored as it was never forfeited with all consequential benefits including seniority and promotion and pay and allowances.
8.2. To set aside the report of Enquiry Officer dated 5.2.09 at A-3.
8.3. Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant."
The relevant facts of the case are that the applicant was proceeded against under Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980 vide order dated 3.06.2004 in the departmental enquiry for the article of charge as stated below:-
"While posted at PS Geeta Colony on the night of intervening 23/24.11.2003. HC Rajinder of Excise Department alongwith other staff went to P.S.Geeta Colony where he met HC Chander Veer Singh, No. 173/E, who was performing duties as Emergency Officer and handed him over of 15 cases of illicit liquor alongwith accused Ankur, from whom the liquor was recovered & a Santro Car No.UBZ-17T-2000 recovered from his possession. Later on, when the staff of Excise Department came to know that the local police had not confiscated the aforesaid car, they brought this fact into the notice of their senior officers. At P.S.Geeta Colony, DO/HC Brij Mohan No.300/E at the instance of HC Chander Veer Singh No. 173/E lodged entry in daily diary vide DD.No.7-A dated 24.11.2003 at 3.00 A.M., where in details of "Santro Car No. UBZ-17T-2000" were written. But after some time, HC Chander Veer Singh took daily dairy register from DO/HC Brij Mohan No. 300/E to his room & replaced words "Santro Car No.UBZ-17T-2000" by "Cycle rehari Neelam Vah Plastic" & when DO/HC Brij Mohan objected to this, HC Chander Veer Singh told him that he had talked to Sh. M.S.Malik, SHO, Geeta Colony in this regard. Thus, HC Chander Veer Singh,No. 173/E intentionally made wrong entry in daily diary & deliberately let the Santro Car go. HC Chander Veer Singh No. 173/E also misappropriated three cases of illicit liquor in case FIR No. 301/03 dated 24.11.2003 u/s 61/1/14 Ex. Act. P.S. Geeta Colony."
As per Rules, alongwith the article of charge, the required material under the Rules were supplied to the applicant. An Inquiry Officer was appointed and as per rules a departmental enquiry was conducted and the inquiry officer submitted a report dated 24.02.2005 holding that the charge levelled against the applicant was proved. After furnishing the enquiry report, the applicant submitted his written representation. Amongst other grounds he submitted in his representation to the effect that he was not given an opportunity to produce defence witnesses. At this stage, the disciplinary authority remanded the matter back to the Inquiry Officer for giving an opportunity to applicant to produce defence witnesses. However, in the said further departmental enquiry the applicant failed to submit a list of defence witnesses. As such, the inquiry officer concluded his further enquiry on 18.07.2005 and submitted enquiry report holding that the charge was proved. Once again, the enquiry report was furnished to the applicant and considering his written representation and after considering the entire material and hearing the applicant in orderly room awarded the punishment of forfeiture of five years approved service permanently. The appeal filed by the applicant was rejected by the appellate authority.
The applicant filed OA no. 1451/2007 before this Tribunal challenging the enquiry report, punishment order and the appellate order. This Tribunal vide its order dated 31.10.2008 set aside the orders of the disciplinary authority and the appellate authority as well as the findings of the enquiry officer and remitted the matter back to disciplinary authority for taking up the proceedings from the stage when defence witnesses were required to be examined in the enquiry.
According to the order of this Tribunal dated 31.10.2008 a departmental enquiry was re-initiated from the stage of examination of defence witnesses. However, in the said re-initiated departmental enquiry the defence witnesses did not appear. As such the said re-initiated departmental enquiry was concluded vide order dated 5.02.2009 and on the basis of the available evidence collected earlier the Inquiry officer held that the charge stood proved. Once again, furnishing the enquiry report dated 5.02.2009 and after considering the representation made with respect to the said enquiry report dated 5.02.2009, the disciplinary authority considering entire material awarded the penalty of forfeiture of 05 years approved service permanently vide its order dated 28.05.2009. His appeal was rejected by the appellate authority vide its order dated 11.12.2009. The applicant filed another OA 616/2010 challenging once again the enquiry report, the order passed by the disciplinary authority and the order passed by the appellate authority. This time he additionally challenged the order dated 3.06.2004 by which the enquiry proceedings were initiated. This Tribunal disposed of the said OA vide its order dated 4.05.2011 setting aside the order of the disciplinary authority dated 28.05.2009 and that of the appellate authority dated 11.12.2009 and remitted the matter back to the disciplinary authority to pass a fresh reasoned order dealing with each issues raised by the applicant in his representation to the findings in enquiry report and further directed the appellate authority to deal with the appeal of the applicant appropriately. As per the direction of this Tribunal, the disciplinary authority vide its order dated 27.09.2011 after carefully considering each ground raised by the appellant awarded a punishment of forfeiture of one year approved service temporarily. Considering his appeal meticulously, the appellate authority upheld the punishment awarded by the disciplinary authority vide its order dated 18.06.2012.
This is a 3rd round of litigation. In this OA, the applicant has challenged the enquiry report dated 5.02.2009, order passed by the disciplinary authority dated 27.09.2011 and that of the appellate authority dated 18.06.2012. In his application he has raised a further ground that there is violation of Rule 15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980 in ordering the initiation of the departmental enquiry.
The counsel for the applicant vehemently submitted that the very initiation of the departmental proceedings vide order dated 03.06.2004 is bad in law in view of the violation of Rule 15(2) of the above said rules. In support of his contention, he submitted an order passed by the Hon'ble Supreme Court dated 23.02.2007 in the case of Vijay Singh Vs. Union of India & Ors. (Appeal (Civil) 7212 of 2005). He further raised several issues with respect to the enquiry report submitting that the enquiry report is bad in law and the findings arrived at by the enquiry officer are not sustainable. He further took us through the entire orders passed by the disciplinary authority and the appellate authority and submitted that they are not supported by any cogent reasons in awarding the punishment and rejecting the appeal. In so far as the scope of judicial review to be exercised by the Tribunal in so far as the departmental enquiries are concerned, the Hon'ble Supreme Court has laid down the law in several cases, which have been enumerated below:-
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed 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 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.
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 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."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-
"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 reappreciate 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.
The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence 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".
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
We have carefully gone through those orders, and in view of those orders of the disciplinary authority and the appellate authority being well considered orders and none of the aspects pointed out by the Hon'ble Supreme Court in the above referred cases are available in so far as the facts of this case, hence there is no merit in the OA. Further on closer scrutiny of the entire material we found that nowhere in the application, the applicant stated that there was a preliminary enquiry conducted as envisaged under Rule 15 of the Delhi Police (Punishment and Appeal) Rules, 1980. He has not stated in his application that in the said preliminary enquiry commission of a cognizable offence was disclosed. In view of the same, there is no merit in the contentions of the learned counsel for the applicant regarding violation of Rule 15(2) of the said Rules. The said Rule is extracted below:-
"15(2). In cases in which a preliminary enquiry discloses the commission of a conganizable (sic.cognizable) offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commission of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held."
Thus, without there being any preliminary enquiry and without there being any findings in the preliminary enquiry about the disclosure of any cognizable offence, the applicant unnecessarily wasted the time of this Tribunal contending the violation of the above said Rule 15(2).
Further having challenged the enquiry report dated 5.02.2009 and the order dated 3.06.2004 initiating the departmental enquiry in OA 616/2010 and not succeeding in getting them setting aside as could be seen from the order of this Tribunal passed in his earlier OA no. 616/2010 on 04.05.2011, he has once again challenged the order dated 3.06.2004 and enquiry report dated 5.02.2009 in these proceedings. At the time of hearing, in spite of bringing it to the notice of the counsel for the applicant pointedly to the effect that vide said order dated 4.05.2011, the applicant cannot go back and challenge the said order dated 03.06.2004 and enquiry report dated 5.02.2009, the counsel for the applicant persisted and went on making submissions regarding illegality of the said order dated 3.06.2004 and enquiry report dated 5.02.2009.
Thus for repeatedly raising the same issues before this Tribunal again and again by filing Original Application after Original Application and for raising grounds with respect to said Rule 15(2), in spite of there being no supporting facts. The OA is dismissed with exemplary cost of Rs.30000/- to be paid by the applicant to the CAT Bar Association Library. The respondents are directed to recover the said cost from his next salary and deposit it in the account of CAT Bar Association Library.