Raj Kumar vs Commissioner Of Police And Ors

S.N. Terdal, J

Heard Shri R.K.Jain, counsel for the applicant and Shri K.M.Singh, counsel for the respondents, perused the pleadings and all the documents produced by both the parties.

In the OA, the applicant has prayed for the following reliefs:

"(i) The impugned order dated 14.08.2014 passed by the Joint Commissioner of Police, Operations may kindly be quashed and set aside.

(ii) The Impugned order dated 16.08.2013 passed by the Addl.Dy. Commissioner of Police (GA), Police Control Room, Delhi may kindly be quashed and set aside.

(iii) The impugned finding dated 24.06.2013 by which the E.O. proved the charged against the Applicant may kindly be quashed and set aside.

(iv) The impugned order dated 06.06.2012 passed by Addl. Dy. Commissioner of Police (GA), Police Control Room, Delhi for conducting a regular departmental enquiry against the Applicant may kindly be quashed and set aside.

(v) Applicant may reinstated in service with all consequential benefits.

(vi) Direct the respondents to grant of seniority, arrears of pay and allowances at par with his batchmates.

(vii) Cost of the OA may be also awarded to the Applicant.

(viii) Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may also be passed in favour of the Applicant and against the Respondents."

The relevant facts of the case are that under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 a departmental proceeding was initiated against the applicant for the following summary of allegation:

"It is alleged against Ct/Dvr. Rajkumar No.4851/PCR that on 23.12.2011 while he was posted in East Zone PCR he was detailed for driver duty on MPV R-75 from 8AM to 8PM, but he did not report for his duty and was marked absent vide DD N. 56 dated 23.12.2011 East Zone PCR. On 23.02.2012 he resumed his duty from wilful and unauthorized absence of 51 days, 15 hours and 30 minutes vide DD no.25 dated 13.02.2012 East Zone PCR. At the time resuming his duty he had submitted papers of his own treatment from Safadarjung Hospital, Delhi, issued by OPD card No.2515 dated 23.12.2011. On perusal of papers it was observed that the papers submitted by him were fake and fabricated as the papers did not contain any stamps as well as name or signature of treating Doctor. A written request for verification and to know the authenticity of said medical papers were sent to MRD, Safadarjung Hospital, Delhi on 14.03.2012. On 30.03.2012 letter No. 2-5/11-MR, E-12 MR dated 30.03.2012 report prepared by Dr. B. Gupta, HOD, Medicine Department of Safadarjung Hospital New Delhi containing his remarks that the enclosed OPD tickets do not bear the room of medical OPD nor the name of any Doctor from the department of medicine was collected from SJH, Delhi. From the above, it has been found that Ct/Dvr. Rajkumar No.4851/PCR submitted forged and fabricated medical papers.

The above act on the part of Ct/Dvr. Raj Kumar No.4851/PCR amounts to grave misconduct, negligence, dereliction in the discharge of his official duty and unbecoming of a police officer which renders him liable to be dealt with departmentally under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980."

Following the procedural Rules, the summary of allegation, list of witnesses and list of documents were furnished to the applicant. An Enquiry Officer was appointed. The applicant was given reasonable opportunity at every stage and 7 witnesses were examined as PW-1 to PW-7 and documents shown in the list of documents were got exhibited. After hearing the applicant, the Enquiry Officer discussing the evidence available in the departmental enquiry concluded that the charge framed against the applicant was proved. A copy of the enquiry report was furnished to him. The applicant did not file any representation against the findings of Enquiry Officer report nor sent any kind of intimation. The disciplinary authority even called the applicant in Orderly Room (OR) on 30.07.2013 and 06.08.2013 so as to give him an opportunity of making representation. However, the applicant did not heed to that call also then disciplinary authority following the relevant rules and after going through the entire material brought on record in the departmental enquiry held that the applicant not only remained absent unauthorizedly/ deliberately but also produced false and fabricated medical papers of Safadarjung Hospital to cover up his absence, which shows the criminal mentality of the delinquent Constable (Dvr.). Having recorded so, he passed the penalty of dismissal. Thereafter the applicant filed an appeal which was also dismissed by the appellate authority by passing a reasoned order vide order dated 14.08.2014.

The counsel for the applicant vehemently submitted that the applicant was victimized and that he never remained absent and that he never submitted any false or fabricated documents. But, however, from the perusal of the entire material before the enquiry officer it is crystal clear that the submission of the counsel for the applicant is not substantiated. The counsel for the applicant has not pointed out any procedural lapses in the conduct of the department proceedings or any stage of the departmental enquiry/ department proceeding. Regarding 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."

In view of the law laid down by the Hon'ble Supreme Court, referred to above and in view of the facts and circumstances of this case, the OA is devoid of merit.

Accordingly, OA is dismissed. No order as to costs.