G. George Paracken, Member (J)
In this Original Application, the Applicant has challenged the orders passed against him in the departmental enquiry proceedings initiated against him.
2. The brief background of the case is that a departmental enquiry was initiated against the Applicant under the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. The allegations made against him was as under:-
âIt is alleged against ASI Roshan Lal, No. 3974-D (PIS No. 28720248) that while posted in PS Mukherjee Nagar, he had dealt a compliant of one Sh. Vinod Kumar s/o Sh. Ram Nath Singh R/o 478, Gali No. 6 Sangam Vihar, Wazirabad, Delhi Vide DD No. 61-B dated 14.2.2008. The complainant and her wife spotted the snatcher on 6.3.08 and overpowered him. One accused, namely, Dhanjay Singh Sanger s/o Shyam Bihari Sanger r/o Nehru Vihar, H. No. 420, Gali No.11, Anand Parbat, Delhi was caught red handed with SIM card of stolen mobile No. 9868642556. ASI Roshan Lal instead of taking legal action got the matter compromised. Besides, the ASI never brought the aforesaid facts to the notice of SHO/Mukherjee Nagar. Aggrieved with the in action of local police the complainant appeared before ACP/Model Town on 15.5.08, who directed the complainant to meet SHO/Mukherjee Nagar. Accordingly, ASI Roshan Lal, No.3974-D was instructed by the SHO to take legal action on the complaint but he did not do so and the wife of the complainant moved to the Court u/s 156(3) Cr. P.C. for redressal. A case vide FIR No. 319/08 u/s 356/3/34 IPC, PS Mukherjee Nagar was registered only on the intervention of Honble Court.
3. An Enquiry was conducted into the aforesaid allegations and the Enquiry Officer in his report dated 21.05.2010 held that the aforesaid allegations have been proved. The relevant part of the said report is as under:-
âDISCUSSION OF EVIDENCE
The evaluation of the evidence recorded in the statement of PWs, and CWs and other record available on the D.E file, have been made and the pleas taken by the delinquent ASI, in his defence statement as well as in his supplementary defence statement against the charge have also been minutely examined. PW-3 HC Laxmi Narain has clearly stated in his statement that on the alleged day i.e. on 14.2.2008, he was on patrolling duty vide DD No. 21 dated 14.2.2008 and HC Ajeet Singh No. 562/NW was on picket duty at Burari on that day from 8.00 A.M. to 8.00 P.M. At about ( in between 12 Noon to 1 PM on that day HC Ajeet Singh told him on his phone that two chaps riding on Pulshar Motor Cycle have snatched the money from one pedestrian woman. Hence, he reached the spot. HC Ajeet Singh also gave this information to the Duty Officer at PS Mukherji Nagar from where ASI Roshan Lal who was on Emergency Officer on that day, was deputed fro the spot. The delinquent ASI reached there and enquired the matter from the victim lady. This deposition of PW-3 also been corroborated by CW-1, HC Ajeet Singh. After that the delinquent ASI took that lady at police station. Later on, this PW-3(HC Laxmi Narain) was deputed as duty officer on that day from 5.00 PM to 1.00 AM the complainant lady and her husband Vinod Kumar was with the delinquent ASI. The ASI got wrote a complainant from Shri Vinod Kumar (husband of the victim lady) s/o Sh. Ram Nath Singh and ordered PW-3 to enter that compliant in to the Roznamcha and retured it back to him. Hence, on the order the delinquent, this PW had received the same was given to the Complaint. A DD No. 61-B was also written to this effect by this PW. The complainant asked for the NCR about the loss of Mobile Phone. On this, the delinquent ASI has himself got written the requisite N.C.R. from the Computer Operator by giving the reference of that DD Entry. On this, PW-3 objected it but the delinquent ASI insisted and got it done by say that he had himself to take the action into the matter and not by you (PW-3). This PW has further stated that he has himself seen the complainant and her wife so many times with the delinquent ASI and the delinquent has also enquired the matter. In view of this, the statement of this PW can be disbelieved. PW-2 has also stated in her statement that the delinquent ASI lodged the matter into NCR instead of lodging the FIR under proper section of law and the matter was not disclosed before her. On the directions of ACP/Model Town, the complainant met her and she directed the delinquent ASI to take legal action on this complaint but did not compliance her order also.
In view of the above discussion, it has been proved that the delinquent ASI instead of taking legal action at the 1st instance, he tried to settle the matter between the complainant party as well as accused party for the reason known to him. He also tried to minimize cognizable offence in non-cognizable offence by lodging the NCR. Hence, for his inaction, the complainant party had to knock the door of the Honble Court for getting the case registered under proper section of law and only on the instruction of the Honble Court, the case FIR in question was registered, which is serious lapse on the part of the delinquent ASI.
CONCLUSION
In summing up the whole discussion, it is concluded that the charge framed against ASI Roshan Lal No. 3974/D is substantiated.â
4. Agreeing with the aforesaid findings of the Enquiry Officer, the Disciplinary Authority, vide its order dated 21.9.2010, awarded the penalty of withholding of next increment without cumulative effect upon the Applicant. His suspension period from 29.08.2008 to 17.12.2008 was also decided to be treated as period not spent on duty for all intents and purposes. The operative part of the said order reads as under:-
âI have gone through various papers put up on DE file carefully such as statement of Prosecution Witness, Charge, Defence Statement of the defaulter and statement of CWs (Court Witnesses), supplementary defence statement of the defaulter, findings of the enquiry officer and representation of the defaulter ASI. He was also heard in OR on 6.9.2010. In OR, he just repeated what he has mentioned in his representation. I agree with the findings of the E.O that the charge stands proved against the defaulter. The defaulter did not take legal action against accused person and tried to settle the matter between the complainant and accused person for the reason best known to him. Further he also tried to minimize the cognizable offence in non-cognizable offence by lodging the NCR. Due to inaction on the part of the defaulter the complainant approach to the Honble Court and only on the intervention of the Honble High Court, the FIR was registered, which is a serious lapse on his part. Therefore, I Vivek Kishore, Dy. Commissioner Police, Special Branch, New Delhi hereby award a penalty of withholding next increment for one year without cumulative effect to the defaulter, ASI Roshan Lal, No. 3974/D. His suspension period from â29.8.2008 to 16.12.2008 is decided as period not spent on duty for all intends and purposes.â
5. The Appellate Authority, vide order dated 19.05.2011, rejected his appeal against the aforesaid order of the Disciplinary Authority and upheld the same. The Appellate Authority has also held that the punishment awarded by the Disciplinary Authority is justifiable.
6. The Applicant challenged the aforesaid impugned Enquiry Officers report, Disciplinary Authoritys order and Appellate Authoritys order on various grounds. According to him while holding an enquiry the Respondents have not followed the mandatory provisions contained in Rule-8 and its sub-rules, Rule 23 and 24 of Delhi Police (Punishment and Appeal) Rules, 1980. Further, he has stated that the Respondents have not followed the provisions contained in Section 23 of Delhi Police Act, 1978. As regards the enquiry report is concerned, Applicants contention was that it was not conducted in a free and fair manner. The Enquiry Officer did not hold that the charge has been proved on the basis of the evidence adduced during the enquiry proceedings. On the other hand, he held that the charges have been proved on the basis of presumptions made by him without any basis.
7. The learned counsel for the Applicant has also relied upon the judgment of the Honble High Court of Delhi in Writ Petition (C ) No.5564/2003 - Capt. P.S. Thapar Vs. Delhi Development Authority and Others. The relevant part of the said judgment relied upon by him is as under:-
â53. At a domestic enquiry, position is a little wider qua admissibility of hearsay evidence. In Rattan Singh's case (supra), it was held:
â4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom ill accept.â
54. Thus, (a) all material which is logically probative for a prudent mind is good evidence. (b) Hearsay evidence is good evidence provided it had reasonable nexus and credibility. (c) Hearsay evidence subject to it qualifying (a) and (b) would be, by itself sufficient to sustain a finding at a domestic enquiry. (d) Underlying principle was whether the evidence was such that on fair commonsense, worldly wisdom and as man of understanding would understand, it was acceptable.
XX XX XX XX
59. Hearsay is used in many senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. A distinction must be drawn while dealing with issue of hearsay. Whether 'A' said something to 'B' is a matter of fact which 'B' can depose to, namely, that 'A' said something to him. This is not hearsay. The facts and information stated by 'A' to 'B' as told by 'B' would be hearsay.
60. Submission of counsel for the petitioner that at a domestic enquiry, it is impermissible to sustain a charge only on the basis of hearsay evidence is accordingly rejected.
61. Learned counsel for the respondent urged that adequacy or inadequacy of evidence cannot be gone into in these proceedings. Counsel urged that this Court cannot re-appreciate the evidence.
62. It is true that this Court is not to re-appreciate the evidence nor can this Court go into the sufficiency or insufficiency of evidence, but the issue whether at all, evidence on record, treated as correct, establishes the charge can certainly be gone into. A finding based on no evidence, is no finding in the eyes of law. Further, was the enquiry fair to the petitioner can be gone into.
63. Decision of the Supreme Court in Rattan Singh's case would reveal that hearsay evidence was held to be admissible for the reason, makers of the statement, (the passengers), that Rattan Singh had charged them fare but had not issued the tickets, were not readily available. It is further to be noted that the rule of res-gestae, though not stated, was kept in mind by their Lordships while dealing with hearsay evidence. Their Lordships noted the evidence of Chaman Lal, Inspector of the Flying Squad, was to the effect that when the squad stopped the bus, 4 passengers were found without tickets and they claimed that they had paid the fare. It is relevant to note that evidence was contemporaneous of the acts.
64. In the decision reported as 1996 (6) SCC 241, Gentela Vijayavardhan Rao Vs. State of A.P., their Lordships of the Hon'ble Supreme Court observed:-
â15.The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res-gestae recognised in English Law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' that it becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however, slight it may be, which was sufficient enough for fabrication then he statement is not part of res-gestae.â
65. Deposition of Ms.Alison Turner would reveal that she deposed that Ms.Zoe Bowent and Supervisor of Ms.Suzanne Abbot told her of the misdeeds of the petitioner. She deposed that she spoke to Captain Thapar on the issue. She sought to prove the complaints by stating that they were in the handwriting of the maker.
66. Her evidence pertaining to complaint made by Ms.Suzanne Abbot would reveal that she deposed to its authenticity by identifying the signatures of Ms.Suzanne Abbot at a place where the name of Suzanne Abbot was written. Reference to para 22 above would show the absurdity in the testimony of Ms.Alison Turner. No reasonable person would sign in the middle of a sentence.
67. Issue of hearsay evidence has to be determined on case to case basis. Defence of the petitioner was that there was a racial bias. Petitioner professes the Sikh faith. In my opinion, the complainants were liable to be subjected to cross-examination as defence of the petitioner was that the complaints were motivated.
68. Air India shifted the enquiry to London so that the complainants could be examined. For reasons best known, Air India did not examine the complainants. It is not the case of Air India that the complainants had ceased to be in the employment of the hotel. It is not the case of Air India that the complainants were not available.
69. Admissibility of hearsay evidence cannot be an escape route not to bring on record primary evidence. It cannot be a softer route made available to the management. Of course, where the maker of the original complaint is not available or cannot be produced in evidence, hearsay evidence would be good evidence.
70. In the facts and circumstances of the case and specifically the defence taken, coupled with the fact that the complainants were available for examination, it has to be held that petitioner could not be convicted on the basis of hearsay evidence alone. It has to be held that petitioner was denied a fair defence.
71. Grievance of the petitioner to his grounding has to be rejected for the reason that the charges, if proved, were serious. It is permissible for an employer not to avail the services of an employee pending enquiry. I do not find any illegality committed by the management to ground the petitioner pending enquiry.
72. Writ petition is disposed of quashing the reports of the Inquiry Committee dated 6.4.2001 and 14.6.2001. Order dated 15.12.2001 imposing the punishment on the petitioner is quashed. Orders dated 12/20.11.2002 and 22/26.12.2002 dismissing the appeals are quashed. Petitioner would be entitled to consequential benefit of fixation of his salary and other allowances as they existed prior to passing of the impugned orders which have been quashed.
73. No costsâ.
8. The Respondents in their reply have submitted that the enquiry was conducted in accordance with the rules based on the principles of natural justice. They have also stated that during the enquiry proceedings, statements of three prosecution witnesses were recorded in the presence of the Applicant and he was given reasonable opportunity to cross examine them. However, one of the prosecution witnesses, Shri Vinod Kumar did not join the DE proceedings despite receiving summons. Therefore, he was dropped by the Enquiry Officer. They have also submitted that the Applicant did not submit any list of defence witnesses. However, he submitted defence statement. Enquiry Officer has also examined 4 court witnesses under the provisions of Rule 16 (viii) of the Delhi Police (Punishment and Appeal) Rules, 1980. Their testimonies were considered necessary to clarify some facts which could not be verified from the statement of prosecution witnesses. The Applicant was given proper opportunity to cross examine them but he did not do so. He also did not submit his supplementary defence statement, even though he was given opportunity to do so. However, he submitted a supplementary written statement on 10.05.2010. Finally, the Enquiry Officer concluded that the charge framed against the applicant was substantiated. According to the report, the delinquent ASI instead of taking legal action at the first instance, tried to settle the matter between the complainant party as well as the accused party for the reason known to him. He also tried to minimize a cognizable offence as a non-cognizable offence by merely lodging an NCR. Hence, the complainant party had to knock the door of Honble Court for getting the case registered under proper section of law and only on the instruction of the Honble Court, FIR was registered. The aforesaid inaction/action on the part of the applicant was a serious lapse.
9. They have further submitted that agreeing with the aforesaid findings of the Enquiry Officer, a copy of the enquiry officers report was served on the Applicant with the direction to submit his representation. He was also given a show cause notice as to why the period of his suspension from 29.08.2008 to 16.12.2008 should not be treated as period not spent on duty for all intents and purposes. The Applicant has submitted his representation. In the meantime, the Applicant was transferred from North West District to Special Branch and the departmental enquiry file was sent to the Special Branch for taking final decision in the matter. Thereafter, the present Disciplinary Authority, carefully gone through the various documents on record such as the statements of Prosecution Witnesses, Charge, Defence Statement of the Applicant and the statement of court witnesses, supplementary defence statement of the Applicant, findings of the Enquiry Officer and the representation of the Applicant. The Applicant was also heard in person in the Orderly Room on 06.09.2010. Thereafter, the disciplinary authority has He was awarded the penalty of withholding next increment for one year without cumulative effect and his suspension period from 29.08.208 to 16.12.2008 was decided as period not spent on duty for all intents and purposes. The appeal filed against the said order of the Disciplinary Authority was also rejected by the Appellate Authority vide its order dated 19.05.2011.
10. As regards the grounds taken by the Applicant in the OA are concerned, the Respondents have submitted that Rule 8 of the Delhi Police (Punishment and Appeal) Rules, 1980 relates to âprinciple for inflicting penalties. Applicant has not given any specific instance as to how the said Rule has been violated during the finalization of the departmental enquiry against him. On the other hand they have stated that the Applicant was awarded the punishment in accordance with the provisions contained in the aforesaid Rules. Further, according to the Respondents, as per Rule 23 of the Delhi Police (Punishment and Appeal) Rules, 1980, the Additional Commissioner of Police is the Appellate Authority whereas the punishment was awarded by the Deputy Commissioner of Police. In the present case, appeal was considered by the Joint Commissioner of Police/Special Branch as the Additional Commissioner of Police/Special Branch had been promoted to the rank of Joint Commissioner of Police/Special Branch. The post of Joint Commissioner of Police is higher than the post of Additional Commissioner of Police and the Joint Commissioner of Police/Special Branch is fully empowered to enjoy the powers vested with the Additional Commissioner of Police. Therefore, there is no illegality in deciding the appeal by the Joint Commissioner of Police/Special Branch and, therefore, the order passed by the Appellate Authority is legal and justified.
11. On merits they have stated that during the enquiry, the depositions made by PW-2 and PW-3 clearly proved that the Applicant did not take any legal action against accused person and tried to settle the matter between the complainant and accused person for the reason best known to him. Further, he also tried to minimize the cognizable offence as non-cognizable offence by lodging the NCR. For the aforesaid action/inaction on the part of the Applicant, the complainant party had to knock at the door of the court for getting the case registered under the proper section of law and only on the instructions of the court, the FIR was finally registered. The aforesaid action on the part of the Applicant was considered as a serious lapse.
12. In the rejoinder affidavit, the Applicant has submitted that the complaint Shri Vinod Kumar and his wife had spotted the snatcher and over powered him. However, as per the allegations of the respondents, the accused Shri Dhananjay Singh Shanger was caught red handed with SIM card of stolen Mobile No.9868642556 by the Applicant. Again, according to respondents, the Applicant instead of taking the legal action against the accused, got the matter compromised and did not bring it to knowledge of SHO, Mukherjee Nagar and thereafter the complainant appeared before the ACP Model Town on 15.05.2008 who directed him to meet the SHO, Model Town. Accordingly, he was instructed by the SHO to take legal action on the complaint but he did not do so and the wife of the complainant moved the court under Section 156(3) Cr.PC for redressal. The Applicant refuted the aforesaid allegations. He has also specifically denied that for his inaction, the complainant party had to knock the door of the Honble Court, for getting the case registered under section of law and only on the instruction of the Honble Court, the case FIR, in question, was registered. He has also argued that the enquiry officer concluded that the allegations made against him were substantiated only on the basis of the hearsay evidences which could not have been relied upon. In this regard, he has relied upon the judgment of the Apex Court in State of Haryana Vs. Rattan Singh AIR 1977 1512 and its relevant part is as under:-
â4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept.â
13. We have heard the learned counsel for the Applicant, Shri B.K. Mishra and the learned counsel for the Respondents, Shri Amit Anand. We have also perused the records of the departmental enquiry proceedings made available by the respondents counsel. The various components of the charge against the applicant are as under:-
â(i) he dealt with a complaint of one Vinod Kumar vide DD No. 61-B dated 14.02.2008,
(ii) the complainant and her wife spotted the snatcher on 06.03.2008 and over powered him,
(iii) the accused Dhananjay Singh Shanger was caught red handed with SIM card of stolen mobile No. 9868642556,
(iv) ASI Roshan Lal instead of taking legal action, got the matter compromised,
(v) Besides, he never brought the aforesaid facts to the notice of SHO/Mukherjee Nagar,
(vi) Aggrieved by the inaction of local police, the complainant appeared before the ACP/Model Town on 15.5.2008, who directed the complainant to meet SHO/Mukherjee Nagar.
(vii) SHO directed him to take legal action on the complaint but he did not do so,
(viii) wife of the complainant, moved the Court u/s 156(3) Cr. P.C. and only thereafter FIR No. 319/08 dated 13.09.2008 was registeredâ.
14. Out of the aforesaid three Prosecution Witnesses only Smt. Indira Sharma, SHO, PS Mukherji Nagar and Head Constable Mukesh Kumar MHC Mukherji Nagar appeared and deposed before the Enquiry Officer. HC Mukesh Kumar simply produced FIR No.319/08 dated 13.09.2008 in original. During cross-examination he stated that the complaint received vide DD No.61-B dated 14/2/2008 was signed by the complaint Shri Vinod Kumar and it was never marked to AS Roshan Lal. It was only on 13.09.2008, SHO/Mukherjee Nagar ordered in writing that âDuty Officer to register a case u/s 356/379 IPC and entrusted the investigation to Inspector Kishan Lal. Inspector Indira Sharma was PW-2 stated that on 10.08.2008, she submitted a report relating to the matter of Smt. Neelam Vs. Shri Dhanenjay Singh Sankar. ASI Roshan Lal lodged this matter in NCR book and issued a copy of the NCR to the complainant. The incidents dated 06.03.2008 and 07.03.2008 relating to the recording of statement of two accused complainant was not disclosed to her by ASI Roshan Lal. Later on it was also come into her notice that accused party paid Rs.1000/- to the complainant. The balanced amount was also promised to give him immediately. But ASI Roshan Lal did not disclose to her about this dealing. As per direction of ACP/Model Town, complainant met her and she directed the ASI to take legal action on his complaint but ASI Roshan Lal did not compliance her order. On this, she sent a report to ACP/Model Town on 10.08.2008 recommending strict disciplinary action against ASI Roshan Lal. Howeer, during the cross-examination, the said PW stated that, the complainant Shri Vinod Kumar did not met her, he came to the DO room and Duty Officer lodged his complaint vide DD No.61-B and marked the same to ASI Roshan Lal. Gist of complaint was also written to ASI Roshnan Lal. Duty Officer has lodged DD No.61-B dated 14.02.2008 that complainant in column No.2 produced one complaint written in Hindi which is already being dealt by ASI Roshan Lal and the same was handed over to Reader to SHO. Further, she stated that except DD No.61-B dated 14.02.2008 regarding the matter is dealt by ASI Roshan Lal, the DO will disclose/produce, if nay documentary proof is available to support the version that whether this matter was already dealt by ASI Roshan Lal or not. The Enquiry Officer introduced HC Laxmi Narain as PW-3 who was not a listed witness. According to him, he was the Duty Officer of the PS Mukherji Nagar on 14.02.2008. On that date at 8.15 PM complainant Shri Vinod Kumar came to the Police Station and submitted a written complaint where enquiry was already being made by ASI Roshan Lal. On cross-examination, he confessed that the said complaint dated 14.2.2008 was handed over to the Reader of the SHO. As regards PW Vinod Kumar, the Enquiry Officer stated that despite repeated summons, he did not join in departmental proceedings. Thereafter, the Enquiry Officer has introduced 4 court witnesses and they were examined. According to Court Witness-1 HC Ajeet Singh, the incident of snatching occurred on 14.02.2008 and he informed the Duty Officer about it and ASI Roshan Lal had attended the said call and enquired the matter at the spot. After the SHO/M.Nagar, Smt. Indira Sharma had also reached the spot and took the complainant with her in the vehicle. CW-2 W/HC Laxmi Sharma has only stated that no call regarding snatching near Burari picket neither from PCR nor by telephone was received. CW-3 W/ASI Kailash stated that on 14.2.2008 she was posted at Computer Operator at PS Mukherjee Nagar, Delhi. On that day she has written a report vide NCR No.298/2008 dated 14.2.2008 regarding loss of Mobile Phone No.9868642556 and Pass Book No.P-3017904598 by the order of HC/DO Laxmi Narain No.102/NW PS Mukherji Nagar on the complaint of Shri Vinod Kumar S/o Ram Nath Singh R/o 478, Gali No.6, Sangam vihar, Wazirabad, Delhi. CW-4 Ct. Abhimanyu stated that on 14.2.2008, he was posted at P Mukherji Nagar and was performing his duties at DD wires from 5.00 PM to 1.00 AM. On that day Shri Vinod Kumar S/o Ram Nath Singh R/o 478, Gali No.6, Sangam vihar, Wazirabad produced a written complaint in the Chamber of Duty Officer of PS Mukherji Nagar. He had made an entry vide DD N o.61-B dated 14.2.2008. Further on the directions of the Duty Officer, the complainant was sent to Reader to SHO/Mukherji Nagar. However, contrary to the aforesaid evidence, the Enquiry Officer held that it has been proved that the delinquent ASI instead of taking legal action at the Ist instance, he tried to settled the matter between the complainant party as well as accused party for the reason known to him. He also tried to minimize cognizable offence in non-cognizable offence by lodging the NC. Hence, for his inaction, the complainant party had to knock the door of the Honble Court for getting the case registered under proper section of law and only on the instruction of the Honble Court, the case FIR in question was registered, which is serious lapse on the part of the delinquent ASI.
15. We have also perused complaint dated 14.2.2008 in original available on the departmental enquiry file. It has been clearly record on it on 13.09.2008 as under:-
âDuty Officer to register a case u/s 356/379 IPS and entrust the investigation to Inspector Krishan Lal.
Sd/-
SHO/ M. Nagar
13.09.2008â.
Hence the charge that the Applicant dealt with the complaint dated 14.2.2008 is totally false and unfounded. Again, it is nobodys case in the enquiry that the Applicant instead of taking legal action, got the matter compromised. Thus this aspect of the charge is also without any basis and it has not been proved. The other part of the charge is that the Applicant did not bring the facts to the notice of the SHO. When the complaint dated 14.2.2008 has never been marked to him or he has dealt with it, such an allegation should not have been made. Lastly, there is also no truth in the charge that he did not take any legal action on the complaint despite that SHO directed him to do so. It is clear from the complaint itself that the SHO marked it not to the Applicant but to the Enquiry Officer, that too only on 13.09.2008. Therefore, the Enquiry Officer report is a perverse one in as much as he held that the charge against the Applicant has proved without any evidence to that effect.
16. Another important aspect in this case is that material witness in the case is Vinod Kumar. He was a listed witness. However, he was dropped by the Enquiry Officer stating that despite summons, he did not join the enquiry proceedings. He was required to prove the complaint dated 14.2.2008 produced by the MHC/Mukherjee Nagar.
17. No doubt, the Enquiry Officer is entitled to draw his own inferences so long as they are supported by some material on record. But in the present case, the Enquiry Officer held that the charge against the Applicant has been proved without the support of even a single material evidence on record. In such a situation, we can only say that the Enquiry Officers report is based on no evidence and, therefore, it is perverse and unreasonable. It is also well settled law that the Enquiry Officer should not be permitted to collect any material from outside sources during the conduct of the enquiry. Again, we see that the Enquiry Officer has violated the principles of natural justice by relying on the previous statement of the lists PW Shri Vinod Kumar without making him available for cross-examination by the delinquent. Of course, Rule 16 (3) of the Delhi Police (Punishment and Appeal) Rules, 1980 empowers the Enquiry Officer âto bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay, inconvenience or expense necessary. But since a finding of the Enquiry Officer has been recorded and attested by the police officer superior in rank by the accused officer or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. In the absence of the aforesaid factors, the instruction under Rule 16(3) cannot be invoked. In Kesoram Cotton Mills Limited Vs. Gangadhar and Others AIR 1964 SC 708 and State of U.P. Vs. Om Prakash Gupta 1969 (3) SCC 775, the Apex Court laid down the principle that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent. Likewise in Hardwari Lal Vs. State of U.P. and Others 1999 (8) SCC 582 the complainant had not been examined in the departmental enquiry. The Honble Supreme Court held that non-examination of the complainant, a material witness, vitiated the enquiry.
18. In view of the aforesaid factual and legal positions, we allow this OA and quash and set aside the report of the Enquiry Officer dated 21.05.2010, order of the Disciplinary Authority and Appellate Authority dated 21.09.2010 and 19.05.2011 respectively with all consequential benefits. Resultantly, the suspension period of the Applicant from 29.08.2008 to 16.12.008 shall also be treated on duty for all intents and purposes. The Respondents shall also issue necessary orders in implementation of the aforesaid directions within a period of two months from the date of receipt of a copy of this order. No costs.