Ratan Lal vs Commissioner Of Police And Ors

S.N. Terdal, J

We have heard Mr. Ajesh Luthra, counsel for applicant and Ms. Ritika Chawla, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

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

"(a) quash and set aside the impugned actions/orders placed at Annexure A/1, Annexure A/2 and Annexure A/3 with all consequential benefits

(b) award costs of the proceedings and

(c) pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."

The relevant facts of the case are that for failing to check the unauthorized plying of bus No DL-1PB-2340 without valid permit which was detected when surveillance was conducted on 07.10.2011, a Show Cause Notice (SCN) was issued for Censuring the applicant giving him 15 days time to show cause vide order dated 12.01.2012. The said SCN is extracted below:

"On the complaint of Depot Manger, Delhi Transport Corporation, Y.V. Depot, on 07.10.2011, the PRG/Traffic conduct a surveillance in Kalyanpuri Circle nearby Ghazipur Shamsan Ghat and found that a bus No. DL-1PB-2340 was plying and carrying passengers without valid permit Inspr. Rattan Lal, No. D/860 and SI Hari Singh, No. 2296/D failed to check the un-authorized plying of the bus in their area.

They are, therefore, called upon to show cause within 15 days as to why their conduct should not be censured for the above said lapse. Their written replies in this regard, if any, should reach the undersigned within the stipulated period failing which it will be presumed that they have nothing to say in their defence and the case will be decided ex-parte on merits."

The applicant submitted his reply to the show cause notice on 11.2.2012.

The said reply is extracted below:

"Due respect, by making my following humble submission before your kind honour, I am submitting my this reply in respect of order of the SCN issued to me vide No. 257/HAP/T(DA-IOI) dated 12/01/12, by Dy. Commissioner of Police, Traffic (ER), Delhi.

Before making my submission in my this reply, I will acquaint your kind honour reg. the fact of the case, so that your good self have a clear glance of it and my submission being made in my this reply, are given due and sympathetic consideration.

Fact of the case.

It has been alleged that on the complaint of Depot Manager, Delhi Transport Corporation, Yamuna Vihar Depot on 07.10.2011, the PRG/Traffic conduct a surveillance in Kalyan Puri Circle nearby Ghazipur Samshan Ghat and found that a Bus No. DL1PB-2340 was plying and carrying passengers without valid permit. It is alleged that while posted as TI/KPC 1 and SI Hari Singh No 2296-D failed to check the un-authorized of the bus plying without valid permit within my circle.

In this regard it is stated that I had remained posted as TI of Kalyan Puri circle from Dec., 2010 to Feb 2012. During my tenure as TI of this circle, I had toiled hard to improve traffic situation in this circle area. My sincere efforts specially in respect of charted buses, are detailed below for kind perusal:-

During the year 2011-12, the prosecution of chartered buses in KPC was 858 in comparison to 572 prosecutions during the year 2010.

Total No. of Chartered Buses impounded in 2011-12 was 203 ( List enclosed) in KPC out of which 38 chartered buses were impounding by the undersigned personally as TI/KPC, whereas during the year 2010, 78 chartered buses were impounded in KPC. Bus stated to be plying without permit, as mentioned in the SCN, the bus was impounded four time by the ZOs during the month of July, Oct.2010 and Feb 2012.

The said bus was intercept by PRG after 7 days the expiry of its permit and the same bus was prosecuted four times before and after intercepted by PRG.

The said bus was registered in the name of wife of H.C Lalit Mohan who is presently posted in Kalyanpuri Circle/Traffic.

I have made enquiries from the STA as well as from the registered owner Smt. Kavita Devi w/o Lalit Mohan, personally and found that Bus No. DL1PB-2340 had already been sold by its owner and as per state Transport Authority record, the NOC of this bus had since been sent by the STA, Delhi to STA Ghaziabad while its permit upto Sept. 2011 (Copy of NOC is enclosed) During my posting period in KPC I have made sincere efforts to prosecute the chartered buses which were found playing without permit or violating traffic rules by prosecuting chartered/private buses in maximum number compared to the previous year in KPC by taking keen interest with dedication and hard work.

I have all hope and faith in your kind honour that due and sympathetic consideration will be given to my above submission and SCN issued to me will be filed.

I may also kindly be permitted to be heard in person in this regard in the orderly room of your kind honour."

After considering the said reply the disciplinary authority having gone through the reply and hearing him in person rejected the reply as unsatisfactory and confirmed the Censure issued to him vide order dated 24.08.2012. The order is extracted below:-

"A show cause notice for censure issued to Inspr. Rattan Lal No. D/860 vide No. 257/HAP-T (DA-II) dated 12.01.12 on the allegation that a bus No. DL-1PB-2340 found plying and carrying passengers without valid permit in Kalyanpuri Circle during PRG/Traffic surveillance in Kalyanpuri Circle on 07.10.2011.

I have carefully gone through the written reply submitted by Inspr. Rattan Lal No. D/860 and also heard him in person. In his reply he stated that the permit of said bus was valid till September 2011 and bus was impounded/prosecuted in Kalyanpuri Circle in July-2011. He further stated that the bus was intercepted by PRG/T on 7th days of expiry of permit. The reply submitted by him is not fully satisfactory. Hence, I confirm the show cause notice for censure issued to him.

Let a copy of this order be gien to Inpr. Rattan Lal No.D/860. He can file an appeal against the above said punishment to the appellate authority within 30 days from the date of its receipt on a non judicial stamp papers valued Rs.00.75 by enclosing a copy of this order, if he so desires."

The applicant was given further opportunity to file an appeal by the above said order dated 24.08.2012. Accordingly, he filed an appeal on 8.10.2012 which was considered by the appellate authority and vide order dated 27.04.2013, after considering the appeal carefully and also hearing the appellant in person, rejected the appeal. The relevant portion of the appellate authority's order is extracted below:

"I have carefully considered the appeal in the light of facts & circumstances of the case, material available on file and also heard the appellant in person. The appellant has also made any fresh submission to his defence. I find no reason to interfere with the punishment order passed by the punishing authority. Hence the appeal is rejected."

The counsel for the applicant vehemently and strenuously contended that in the SCN the alleged misconduct on the part of the applicant is not mentioned and no ulterior and wilful motive nor connivance with any person or any wrongful intention on the part of the applicant to commit the misconduct or any negligence is mentioned and as such the issuance of SCN itself is bad in law and hence the SCN, the order of the disciplinary authority and that of the appellate authority is set aside. In support of his contention, the counsel for the applicant has relied upon the following judgment of the Hon'ble Supreme Court:

(1) Union of India & Ors Vs. J. Ahmed (1979 AIR 1022)

(2) Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors ( Appeal (Civil) 1815/2007.

The counsel for the respondents equally vehemently contended that in the SCN the conduct of failure on the part of the applicant is specifically stated which itself demonstrates negligence and dereliction of duty and hence misconduct on the part of the applicant and she further submitted that all reasonable opportunity was given to the applicant in the conduct of the proceedings and that in the facts and circumstances of the case the law laid down by the Hon'ble Supreme Court in the cases referred to above, relied upon by the counsel for the applicant, are not applicable.

From the perusal of the latest judgment relied upon the learned counsel for the applicant, namely, Inspector Prem Chand Vs. GNCT of Delhi (supra) it has been held by the Hon'ble Supreme Court that the word 'misconduct' is a relative term and it should be construed with reference to the subject matter, and the context wherein the term is used and it all depends on the facts and circumstances of each case. The relevant portion of the judgment is extracted below:-

"The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."

In the facts and circumstances of this case particularly in view of the fact that in the SCN specific failure on the part of the applicant is specifically mentioned, we are of the view that even on the basis of the law laid by the Supreme Court referred to by the counsel for the applicant we cannot hold that there is no justification for issuing the SCN.

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by th Hon'ble Supreme Court in the following judgments:

(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 who 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 facts and circumstances of the case narrated above and in view of the law laid down by the Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice, the OA requires to be dismissed.

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