Suresh Kumar Tyagi vs Govt. Of NCT Of Delhi And Ors

S.N. Terdal, J

Heard Mr. Ravi Kant Jain, counsel for applicant and Ms. Neetu Mishra for Mrs. Rashmi Chopra, 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:

"(i) Quash and set aside order dated 22.09.2011 passed by Respondent No. 3 and order dated 09.03.2012 passed by respondent no. 2.

(ii). Quash and set aside the finding submitted by the enquiry officer.

(iii) Direct the respondents to grant the applicant all the considering benefits.

(iv). Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant.

(v). Cost of the proceedings be awarded in favour of the applicant and against the respondents"

The relevant facts of the case are that a departmental enquiry was initiated against the applicant on 07.07.2009 for grave misconduct and dereliction in the discharge of his official duty on the allegation that in settling a dispute between two parties who had come to the Police Station he had demanded and taken the bribe of Rs.5000/-. The summary of allegation is extracted below:-

"It is alleged against you Const.Suresh Tyagi, No. 415/NE (now 6789/Sec.) that a dispute had taken place between Umrool Hasan S/o Kamrool Hasan, R/O G-171, Gali No.5, Janta Colony, Delhi-53 and Nadeem over filling water from the ground tap in the street. Yashin, the cousin brother of Umrool Hasan received injuries during the quarrel and was removed to Hospital by PCR on which doctor had opined U/O blunt. The call was kept pending as MLC was deposited for final opinion on injuries. Again a quarrel took place between both the parties on 18.10.2008. This time Aftab, friend of Nadeem sustained injuries. A PCR call was made, which was attended by HC Shiv Kumar and the same was marked to ASI Brijpal by the order of SHO immediately. He collected the MLC on which opinion was U/O blunt. IO arrested two persons i.e. Umrool Hasan and his brother Hanifuddin u/s 107/151 CrPC and deposited the MLC in the Hospital for opinion on injuries. Umrool Hasan approached Const. Suresh Tyagi, No. 415/NE, being the Beat Constable of the area to ensure action against the other party. You, Const. Suresh Tyagi, No. 415/NE, demanded Rs. 5000/ for the same which was handed over to you by Khalil, brother of Umrool Hasaran. Since no action was taken against the other party, Khalil enquired from you, Const. Suresh Tyagi, No. 415/NE, on mobile phone and demanded back Rs.5000/- from him. He also recorded the whole conversation, which he produced in the form of CD with complaint. The conversation has been translated in Hindi. In the conversation you, Const. Suresh Tyagi, No. 415/NE has admitted that you have taken money but refused to return the same. Thus, you, Const. Suresh Tyagi, No. 415/NE demanded and accepted Rs.5000/- as bribe from Khalil, brother of Umrool Hasan, for helping him.

The above act of demanding and accepting illegal bribe on the part of you, Const. Suresh Tyagi, No. 415/NE (now 6789/Sec.) amount to grave misconduct, highly irresponsible, dereliction in the discharge of your official duty and unbecoming of a Police Officer which renders you liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980."

Along with summary of allegation, list of witnesses and list of documents were served upon the applicant. As he did not plead guilty, an Inquiry Officer (IO) was appointed and following the procedural formalities, enquiry was conducted. The Inquiry Officer following the applicable procedural rules and the principles of natural justice conducted the enquiry and examined 6 PWs and 4DWs and after considering the defence statement filed by the applicant and after discussing the evidence came to the conclusion that the charge levelled against the applicant stood proved. After considering the representation filed by the applicant against the enquiry report, the disciplinary authority after hearing him in orderly room on 16.09.2011 and after going through the entire evidence imposed a penalty of forfeiture of two years approved service permanently entailing reduction in his pay from Rs.9710/-+Rs.2400/-(GP) to Rs. 9000/-+Rs.2400/- with cumulative effect. The appeal filed by the applicant was dismissed by the appellate authority by a speaking order after considering and discussing all the evidence and all the grounds raised by the applicant in his appeal and also after hearing him in orderly room vide order dated 09.03.2012.

The counsel for the applicant vehemently submitted that the conversation with respect to the entire incident that took place leading to the alleged demand of bribe was recorded in the form of CD by the complainant and the Hindi translation of the said conversation which was recorded in CD was cited in the list of documents. But, however, no witnesses were examined as to who has done the translation and thereby the applicant was deprived of opportunity to cross examine the said witness who has made the said translation and thereby he was prejudiced. The counsel for the applicant further submitted that the report of the preliminary enquiry was relied upon by the Inquiry Officer which is not permissible under Rule 16(3) of the Delhi Police (Punishment and Appeal) Rules, 1980. But, however, as submitted by the counsel for the respondents, the said preliminary enquiry report was brought on record through PW-1 as Ex.PW-1/A and the said PW-1 was not cross examined by the applicant though an opportunity was given to him to cross examine. As such, we are of the view that there is no violation of Rule 16(3) of the Delhi Police (Punishment and Appeal) Rules, 1980. The counsel for the respondents further submitted that from the perusal of deposition of PW-3 it is clear that as stated in the complaint the said PW-3 has stated to the query made by the IO to the effect that the said amount may have been paid by his brother, and that though many of the PWs have resiled from their earlier statement, but however, from the clarification elucidated by the IO it is clear that there was a demand of money by the applicant. From the perusal of the Enquiry Report it is evident that the IO has discussed the deposition of witnesses and came to the conclusion that the charge against the applicant is proved. We are of the view that in a departmental enquiry if a translated version of the alleged conversation is produced in a CD, and the contents of the said CD is relied upon by IO in addition to the deposition of witnesses then not citing the person who has translated the said conversation into Hindi as a witness, cannot be taken fatal to the departmental enquiry.

The counsel for the applicant relied upon the judgment of Hon'ble Supreme Court in the case of Kuldeep Singh Vs. Commissioner of Police and Others (1999) 2 SCC 10). In the said case of Kuldeep Singh (supra) the said preliminary enquiry was not produced in the departmental enquiry and yet it was relied upon by the IO. In the present case, the preliminary enquiry was duly brought on record through PW-1. In view of the facts of this case, the law laid down in the said judgment is not applicable. He further relied upon the judgment of this Tribunal in the case of Constable Sanjay Kumar Dubey Vs. Commissioner of Police and others (OA 2802/2013). In the above said case the alleged CD was not at all produced yet relied upon. In the present case, the facts are different. The contention of the applicant is that the person who has made Hindi translation has not been cited as a witness and thereby a prejudice is caused to him. In view of the facts of the present case, the observations made in the above case of Sanjay Kumar Dubey (supra) are not applicable.

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the 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 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 narrated above and in view of the law laid down by 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, the impugned orders do not suffer from any illegality.

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