W.P.(C)/4656/2002 of DELHI GOVERNMENT & ANR. Vs UOI & ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment pronounced on: 17.05.2013

W.P.(C) 4656/2002

DELHI GOVERNMENT & ANR..... PetitionersThrough:Ms. Zubeda Begum, Advocate

versus

UNION OF INDIA & ANR

..... Respondents

Through:Mr. Shekhar Kumar, Advocate for R-2

CORAM:HON’BLE MR. JUSTICE BADAR DURREZ AHMEDHON'BLE MR. JUSTICE SIDDHARTH MRIDUL

J U M N T

SIDDHARTH MRIDUL, J.

1.The petitioners herein seek to challenge the judgment and order dated

04.02.2002 passed by the Central Administrative Tribunal in O.A No.

58/2001 wherein it was directed that the Respondent No.2’s forfeiture of

four years of service be restored and he shall be given all consequentialbenefits.

2.Brief facts necessary for the instant adjudication are enunciated in the

succeeding paragraphs:

3.A departmental enquiry was initiated against the Respondent No.2 on

09.09.1999 on the allegation that while posted at P.S. Subzi Mandi on

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18.06.1999 he was entrusted with the investigation of case in FIR No.208/99under Sections 279/337 of the Indian Penal Code, 1860 (IPC). During thecourse of investigation he arrested one Anil Kumar and seized vehiclebearing registration No.HR-41-7832 allegedly driven by the accused, AnilKumar. He asked accused driver Anil Kumar to call the owner of the vehicleand also to arrange for full ‘Kharcha Pani’.

4.On 19.06.1999 Shri Sandeep Singh, owner of the vehicle, contactedthe Respondent No.2 who demanded sum of `4000/- as illegal gratificationfor bailing out the accused driver and releasing the vehicle. When the ownerof the vehicle showed his inability to pay illegal gratification, he wasthreatened and told that if his demand was not met, the driver and vehiclewould not be released.Finding no other alternative but to pay illegalgratification, Shri Sandeep Singh paid sum of `1500/- to the RespondentNo.2 on which driver Anil Kumar was bailed out.

5.On the matter of release of the vehicle, Respondent No.2 told ShriSandeep Singh that the same would be released as and when the remainingamount would be paid.Shri Sandeep Singh was asked to come with theremaining amount on 26.06.1999.On 26.06.1999 he contacted theRespondent No.2 and submitted an application for the release of his vehicle,and Respondent No.2 again demanded the remaining amount for releasing

the vehicle. On 27.06.1999 Shri Sandeep Singh contacted the RespondentNo.2, who again demanded the balance amount for releasing his vehicle.

6.Thereafter, Shri Sandeep Singh reported the matter to the AntiCorruption Branch (ACB) and trap was organized by ACB comprisingInspector Y.S. Negi, Panch witness Shri Santosh Sharma, the complainantand other staff members of ACB. After observing all necessary formalities,

the complainant along with the Panch witness Shri Santosh Sharma went tothe Respondent No.2 to handover the bribe money. Respondent No.2 toldhim that both the SHO and the Additional SHO had been transferred toDistrict Lines and as such orders for release of the vehicle could not bepassed and he did not accept the balance amount on that date, that is on27.06.1999. Thereafter, the Respondent No.2 was also transferred to DistrictLines and as such the trap could not materialize.

7.The Enquiry Officer in his report dated 30.11.1999 held the chargeagainst the Respondent No.2 to be substantiated.A copy of the EnquiryOfficer’s report was furnished to the Respondent No.2 for representation, ifany.Respondent No.2 submitted his representation on 24.12.1999. Uponconsideration of the representation and after perusing the materials onrecord, the Disciplinary Authority passed the impugned order dated10.02.2000 forfeiting four years approved service of Respondent No.2

permanently and reducing his pay from `4305/- to `3965/- p.m. in the timescale of pay for period of four years with immediate effect during whichperiod Respondent No.2 would not earn his increment and on expiry of this

period the reduction would have the effect of postponing future increment.

8.The Respondent No.2’s appeal was rejected by the appellate orderdated 31.7.2000.

9.The Tribunal allowing the OA, passed directions to restore theforfeited years of service with all consequential benefits.

10.Learned counsel for the petitioner has canvassed 2 grounds in supportof the instant petition:

a)Rule 15(2) Delhi Police (Punishment & Appeal)Rules, 1980 is not attracted and therefore theproceedings cannot be vitiated on this ground.Rules, 1980 is not attracted and therefore theproceedings cannot be vitiated on this ground.

b)The Enquiry Officer is lawfully permitted to ask

clarificatory questions

PRELIMINARY ENQUIRY:

11.Rule 15 Delhi Police (Punishment and Appeal) Rules, 1980 reads asunder:-

“15. Preliminary enquiries-

(1) Preliminary enquiry is fact finding enquiry. Itspurpose is (i) to establish the nature of default and identityof defaulters(s), (ii) to collect prosecution evidence, (iii) tojudge quantum of default and (iv) to bring relevantdocuments on record to facilitate regular departmentalenquiry. In cases where specific information coveringtheabove-mentionedpointsexistsaPreliminary

Enquiry need not be held and Departmental enquirymaybeorderedbythedisciplinaryauthoritystraightaway. In all other cases preliminary enquiryshall normally precede departmental enquiry.

(2) In cases in which preliminary enquiry discloses thecommission of cognizable offence by police officer ofsubordinate rank in his official relations with the public,departmental enquiry shall be ordered after obtaining priorapproval of the Additional Commissioner of Policeconcerned as to whether criminalcase should beregistered and investigated or departmental enquiryshould be held.

(3) The suspected police officer may or may not be presentat preliminary enquiry but when present he shall notcross-examine the witness. The file of preliminary enquiryshall not form part of the formal departmental record, butstatements therefrom may be brought on record of thedepartmental proceedings when the witnesses are nolonger available. There shall be no bar to the EnquiryOfficer bringing on record any other documents from thefile to the accused officer. All statements recorded duringthe preliminary enquiry shall be signed by the personmaking them and attested by enquiry officer.

(emphasis supplied)

15.Learned counsel for the petitioner submitted that the raid proceedings

carried out by Sh Y. S Negi were not in the nature of preliminary enquiry.Admittedly there was no preliminary enquiry and consequently the approvalof the Additional Commissioner of Police was not sought before initiation of

the disciplinary proceedings. The purpose of preliminary enquiry being afact finding exercise, the same was not required in the instant case. Specificinformation regarding the nature of default, the identity of defaulter, the

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quantum of default and the relevant documents being available, Rule 15(1)assumes significance and Rule 15(2) of the Delhi Police (Punishment &Appeal) Rules, 1980 (hereinafter referred to as the said Rules) is notattracted in the instant case.

16.The Tribunal has dealt with this aspect by observing that Sh Y. S.Negi while carrying out the necessary formalities of the raid report has insubstance conducted preliminary enquiry. The raid report was in the natureof preliminary enquiry so as to ascertain the facts, to establish the natureand quantum of default and to identify the defaulter, in order to bring theother evidence on record.

17.However, the Tribunal also observed:

“11.Even if for moment we accept the respondent’scontention that the aforesaid raid report was not apreliminary enquiry and, there was therefore no violationof Rule 15(2), applicant’s counsel is on strong footing inregard to the second ground namely that this is case of noevidence and the E.O. has assumed the function of aprosecutor.”

18.Two questions need to be decided in order to address this issue. The

first being whether Rule 15(2) of the said Rules is attracted in the instantcase. If so, whether the raid report can be termed as preliminary enquiry insubstance of the matter.

19.The law as laid down in the case reported asVijay Singh vs. UOI:2007 (9) SCC 63 makes the position very clear. The Supreme Court hasconsidered Rule 15(2) of the said Rules and observed:

4. reading of Rule 15(1)&(2) together and thelanguage employed therein clearly discloses that apreliminary enquiry is held only in cases of allegation,whichisofweakcharacterand,therefore,apreliminary enquiry is to be held to establish thenature of default and identity of defaulter; to collectthe prosecution evidence; to judge quantum of defaultand to bring relevant documents on record to facilitatea regular departmental enquiry. In cases, wherespecific information is available, preliminary enquiryis not necessary and departmental enquiry may beordered by the disciplinary authority straightaway. It isbecause of this reason Sub-rule 2 of Rule 15 is couched insuch way as defence to the delinquent officer. TheAdditional Commissioner of Police being higher inhierarchy next to DGP, the requirement of his approval ismandatory, so that the delinquent officer is not prejudicedor harassed unnecessarily in departmental enquiry. Suchapproval, if any, must also be accorded after dueapplication of mind. It is case of violation of mandatoryprovisions of law. Therefore, the appeal must succeed. Theappellant was dismissed by an order dated 21.1.1998preceded by an enquiry. The order of dismissal is set aside.The appellant shall be re-instated forthwith. The orders ofthe Appellate Authority, the Revisional Authority and theHigh Court are set aside.

(emphasis supplied)

20.In case of Vijay Singh (supra) the contention of the appellant was that

preliminary enquiry was conducted preceding the departmental enquiry,however no prior approval of the Additional Commissioner of Police was

sought which in effect vitiated the entire proceeding. It is in this context thatthe Supreme Court has held that Rule 15(2) of the said Rules is mandatoryprovision the non-observance of which would vitiate the disciplinaryproceedings.

21.A preliminary enquiry need not be held where specific informationregarding the nature of default or the identity of the defaulter and theprosecutionevidenceandrelevantdocumentstofacilitateregulardepartmental enquiry are already on record and it is also possible on thebasis of the evidence available to prima facie adjudge quantum of default. Inthe instant case it is observed that there being specific information availablewith regard to the charge, there was no requirement of conducting apreliminary enquiry.The complainant had approached the ACB withspecific details about his case registered as FIR No.208/99 under Sections279/337 IPC. He had disclosed that the Respondent No.2 had demanded asum of Rs. 4000/- of which the complainant had paid `1500/- to bail out hisdriver Anil. Therefore, in our view, this case is covered by Rule 15(1) andRule 15(2) of the said Rules is not attracted.

22.Adverting to the question as to whether the raid report can be termedas preliminary enquiry, this question has been considered in the case ofConstable Rajender Kumar vs. Govt. of NCT of Delhi &Orsin WP(C) No.

9473/2007. The Court has considered the scope of Rule 15 and noticed thatRule 15(3) of the said Rules provides that all statements recorded during thepreliminary enquiry shall be signed by the person making them and attestedby the Enquiry Officer. In other words, it provides that statements have to beattested by the Enquiry Officer for lawful preliminary enquiry. Thus, apreliminary enquiry can be conducted only by the Enquiry Officer who hasbeen specifically appointed for the said purpose. Such an appointment has tobe made by the disciplinary authority or an appropriate authority. If personinvestigates into the facts of case of his own free will, without the order ofthe competent authority, at best it can be taken to be information supplied tothe authority and not preliminary enquiry. If such information is receivedpursuant to raid, investigation or vigilance enquiry it cannot be equatedwith preliminary enquiry. The competent authority can order preliminaryenquiry in case it feels that facts have to be collected. The Court hasobserved:

17. ........ We find that the question as to what ispreliminary inquiry has not been gone into. In our opinionthe two Full Bench decisions of the Tribunal lay down thelaw correctly. We accordingly hold that there has to be anorder to initiate preliminary enquiry by the competentauthority. The preliminary enquiry must precede thedepartmental enquiry to collect the facts contemplatedunder Rule 15(1) of the Rules. Anti-corruption raids,investigation or vigilance enquiry including the enquiriesby PGR Cell cannot be equated with preliminary enquiry

as contemplated under Rule 15(2) unless there was anorder by the competent authority to hold such an enquirycontemplated under Rule 15(1) of the Rules.

23.The law as laid down has emphasised the importance of preliminary

enquiry, where required, under Rule 15(1) of the said Rules, and has stressedon the observance of necessary procedures for the same by way of Rules15(2) and 15(3) Delhi Police (Punishment & Appeal) Rules, 1980. The

factum of conducting preliminary enquiry is not an empty formality andhas to be in accordance with due process of law. The decision in ConstableRajendra Kumar (supra) is not attracted to the facts and circumstances ofthe instant case since we have already held that the specific informationregarding the default or the identity of the defaulters was already on recordand that consequently there was no occasion to conduct preliminaryenquiry in the matter. Rules 15(2) and 15(3) of the said Rules thus have noapplication in the present case. The Tribunal thus fell into error in holdingthat the raid report on the basis of which the trap was laid was in the natureof preliminary enquiry.

ENQUIRY OFFICER:

24.The Tribunal has observed that none of the PWs have supported theprosecution case and the Enquiry Officer has on the basis of his own crossexamination of PW-5 established the identity of the defaulter. This is in

contravention of Rule 16 (v) of the said Rules, as the Enquiry Officer islegally permitted to ask questions only to clear ambiguities or to test theveracity of the witnesses and not subject them to cross-examination.

25.Rule 16 (v) of the said Rules is reproduced below for ready reference:

16. Procedure in departmental enquiries – The followingprocedure shall be observed in all departmental enquiriesagainst police officers of subordinate rank where primafacie the misconduct is such that, if proved, it is likely toresult in major punishment being awarded to theaccursed officer:

(v) The accused officer shall be required to state thedefence witnesses whom he wishes to call and may begiven time, not exceeding two working days, to prepare alist of such witnesses together with summary of the factsthey will testify and to produce them at his expense in 10days. The enquiry officer is empowered to refuse to hearany witness whose evidence he considers to be irrelevantor unnecessary in regard to the specific charge. He shallrecord the statements of those witnesses whom he decidesto admit in the presence of the accused officer who shallbe allowed to address question to them, the answers towhich shall be recorded; provided that the enquiry officermay cause to be recorded by any other Police Officersuperior in rank to the accused officer the statements of awitness whose presence cannot be secured without delay,expenses or inconvenience and may bring such statementson record. When such procedure is adopted, the accusedofficer may be allowed to draw up list of questions hewishes to be answered by such witnesses. The enquiryofficer shall also frame questions which he may wish toput to the witnesses to clear ambiguities or to test theirveracity. Such statements shall also be read over to theaccused officer and he will be allowed to take notes.

(emphasis supplied)

26.The counsel for the Petitioner submitted that the Enquiry Officer hasput forth certain questions to the complainant to remove ambiguity and totest the veracity of the testimonies of the witnesses. In the instant case, theEnquiry officer has questioned the witnesses to establish the identity of theRespondent No.2 and was at liberty to do so.

27.Per contra the counsel for the Respondent No.2 has vehementlyargued that the Enquiry Officer has extensively cross-examined thewitnesses in order to extract the desired answers. The nature of questioningby the Enquiry Officer in the instant case is far beyond the extent permittedby law to clear the ambiguities and to test the veracity of the testimony of thewitnesses. Thereafter, relying upon the same answers, the Enquiry Officerhas arbitrarily proved the charge against the Respondent No.2.

28.Learned counsel for the Respondent No.2 has relied on decision ofthis Court in Commissioner of Police & Ors vs. Bikram Singhin WP(C)

3466/2010. Examining an allegation against the Enquiry officer regardingextensive cross-examination of witnesses in departmental enquiry, theCourt has observed:

“9.Apparently,theaforesaidquestionsarecrossexamination of witnesses. The record shows that not onlythe Enquiry Officer cross-examined the witnesses but alsogave no opportunity to the charged official to furthercross-examine the witnesses. The aforesaid questions put

to witnesses are not in the nature of clarification assubmitted by the petitioners.

10. It is well-settled that an Enquiry Officer does have aright to ask clarificatory questions as the Enquiry officer isnot supposed to act as silent spectator. However, if heintends to seek clarification, he should say so specifically.He cannot cross-examine the witnesses and that alsowithout permitting the charged official further right tocross-examine the witnesses. The conduct of the EnquiryOfficer thus caused serious prejudice to the case of therespondent. The Tribunal rightly came to conclusion thatthe enquiry report cannot be sustained because it suffersfrom basic procedural flaws and is violative of not only theprinciple of natural justice but also of the prescribed rulesandthelawasdiscussedintheimpugnedorder.Consequently, the Tribunal set aside the orders of theDisciplinary Authority as well as the Appellate Authority,which were based upon the findings in the enquiry report.We find ourselves in complete agreement with the viewsexpressed and decision taken by the Tribunal. In view ofthat, we dismiss the writ petition in limine with no ordersas to costs.”

29.The Tribunal has arrived at finding that the Enquiry Officer has

cross examined PW-5 Shri Anil Kumar in such manner so as to fill up thegaps in the enquiry and to bring on record evidence against the chargedofficer. It seems that the Tribunal has arrived at this finding without anyfactual basis.

30.From perusal of the findings of the Enquiry Officer, it is clear thatthe Enquiry Officer has put forth certain questions to the witnesses. It is wellsettled that the Enquiry Officer does have right to ask questions as he is notsupposed to act as mute spectator. The Enquiry Officer has ample power to

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put forth questions to the witnesses to test the authenticity of theirstatements. Disciplinary proceedings cannot be regarded as adversarial innature as the sublime philosophy behind these proceedings is quest tounravel the truth.

31.In the instant case the Enquiry Officer has put forth certain questionsto establish the identity of the charged officer. There is no allegation to theeffect that the charged officer was denied further right to cross-examine thewitnesses.The questions have, as such, not caused any prejudice to the caseof the Respondent No.2. The Enquiry Officer held the charges as provedbased on conjoint deposition of the witnesses. The decision in BikramSingh’s case (supra), therefore, does not come to the aid of the RespondentNo.2.

32.On perusal of the record it is further noticed that the deposition of thewitnesses does not evince any testimonial compulsion upon the saidwitnesses and therefore the observation that answers were extracted fromwitnesses has no merit and is misconceived.

33.In case titled asBadruddin (Sub Inspector (S.I.)) vs. Govt. of NCTof Delhi &Ors.: W.P. (C) No. 7070/2011, Division Bench of this Courthas considered Rule 16 of the said Rules and has observed:

“7. ………. We have perused the statement of thewitnesses as set out in the inquiry report and are unable tofathom any irregularity or violation of any rule therefrom.It cannot be lost sight of that the rules of inquiryproceedings are inquisitorial and not adversarial. ADivision Bench of this Court in Om Pal Singh Vs. UOIheld that the purpose of disciplinary inquiry proceeding isto find out the truth and whether or not the misconductalleged against the delinquent Officer stands proved; in thesaid proceedings the adjudicatory authority i.e. the InquiryOfficer is empowered to put questions to and crossexamine witnesses; that the mere fact that the InquiryOfficer under Rule 15 (The said case also related to DelhiPolice and it was the Delhi Police (Punishment andAppeal) Rules 1980 which were under consideration) isrequired to examine witnesses himself, put questions to thewitnesses and cross examine the defence witnesses cannotby any stretch be regarded as violation of Article311(2)and14of the Constitution. From perusal of the evidence,we are unable to find any irregularity in the Inquiry Officerputting few questions to the witnesses appearing beforehim. The Supreme Court as far back as in Workmen Vs.Buckingham & Carnatic Mills (1970) 1 LLJ 26 held thatInquiry Officer in domestic inquiry can put questions tothe witnesses for clarification wherever necessary and theinquiry proceedings cannot be impeached as unfair on thisground. It was so reiterated in Mulchandani Electrical andRadio Industries Vs. The Workmen : (1975) 4 SCC 731.”

34.In view of the foregoing discussion, we find that the Enquiry Officer

was well within his powers to ask questions to the witnesses in order toestablish the identity of the delinquent officer i.e., the Respondent No.2 andhisapproachwasinaccordancewiththeproceduralrequirementscontemplated under Rule 16 of the said rules.

35.For the reasons aforementioned, the impugned order cannot besustained. The same is accordingly set aside. The petition is allowed. Thereshall be no order as to costs.

SIDDHARTH MRIDUL(JUDGE)

BADAR DURREZ AHMED(JUDGE)MAY 17, 2013dn