1. Applicant, a Constable in Delhi Police, by virtue of this OA has assailed an order passed by the disciplinary authority (DA) in pursuance of disciplinary proceedings, whereby a major penalty of permanent forfeiture of two years' approved service along with reduction of pay has been inflicted upon him and the period of suspension has been treated as not spent on duty. Also assailed is an order passed in appeal on 13.8.2005, upholding the punishment.
2. Applicant while posted in Traffic Branch of Delhi Police on a raid conducted by the PRG Cell was alleged to have connivance with one Delhi Home Guard (DHG) constable found to be collecting money from the bus driver and as recovery was made from DHG constable grave misconduct was alleged on the part of applicant.
3. During the course of inquiry the conductor of the bus has not supported the prosecution and stated that nobody has demanded money, whereas PRG raid personnel stated that the Home Guard Constable disclosed to have collected money on the direction of applicant. A charge when framed, on defence culminated into a finding of guilt, which, on being represented to, resulted in a major penalty upon applicant, which on affirmation in appeal, gives rise to the present OA.4. It is pertinent to note that the DHG constable was neither cited as a witness in the summary of allegations nor was examined in the course of inquiry and the PRG team did not record his statement at the time of raid.
5. Learned Counsel of applicant though has taken several legal contentions to assail the impugned orders, including violation of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980, cross-examination of prosecution witnesses (PWs) by the Inquiry Officer (IO), assuming the role of a prosecutor, but, at the outset, stated that there is no evidence against applicant and he has been punished on suspicion and surmises, as no evidence has come forth for proving his connivance with the DHG constable and as the only evidence is statement of DHG constable allegedly made before the PRG raid officers, if it is not reduced in writing, non-examination of this witness with an opportunity to applicant to show cause is deprivation of a reasonable opportunity to him, which, in turn, is violation of principles of natural justice. Learned Counsel has relied upon a decision of the Apex Court in Kuldeep Singh v. Commissioner of Police JT 1998 (8) SC 603 as also Hardwari Lal v. State of U.P.6. On the other hand, learned Counsel of respondents has vehemently opposed the contentions and stated that Rule 15 (2) of the Rules ibid has been complied with and as the Additional Commissioner of Police is equivalent to Joint Commissioner of Police, which is no more res integra in the light of the decision of the Delhi High Court in Sube Singh v. Union of India, applicant who has been found to be associated in misdeeds in connivance with a DHG constable and this fact within his knowledge is sufficient to hold him guilty. It is stated that as no procedural illegality has cropped up, the punishment imposed is commensurate with the misconduct.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. It is trite in view of Kuldeep Singh (supra) and the decision of the Apex Court in Union of India and Ors. v. H.C. Goyal that even in a departmental inquiry suspicion cannot take the place of proof and if the finding of the IO is based on 'no evidence', suspicion and surmises, at least the same would not stand scrutiny of law. In the matter of perversity of finding the test of a common reasonable prudent man has application. In the aforesaid view of the matter, it is also trite that non-examination of material evidence vitiates the inquiry, as held by the Apex Court in Hardwari Lal (supra). Nothing precludes in Delhi Police, as per the procedural rules, if a statement of a witness is recorded previously, for want of his presence, which could not be procured without delay or inconvenience, this earlier statement if recorded by an officer and attested thereupon is admissible as per Rule 16 (iii) of the Rules ibid. However, in the present case when the conductor of the bus has not supported the prosecution the only evidence is of PRG raid officers who have stated that when recovery was made from DHG constable he has disclosed that the money was taken at the instance of applicant. The aforesaid witness was not brought in the inquiry, as he was not incorporated as a witness in the summary of allegations. No efforts have been made to call for his presence.
Accordingly, his statement has not been proved and for want of withholding of this witness an opportunity to rebut by way of cross-examination, which is reasonable in the circumstances, has been denied to applicant. The IO to the aforesaid objection responded by way of observing that as DHG constable was caught red handed with the collected money, the defaulters had the opportunity to produce the DHG constable in their defence.
9. It is trite that when a fact is to be established, it is to be established by production of evidence by the prosecution. If such an evidence is withheld an adverse inference can be drawn. Despite availability of this witness, non-citing him as a PW and rather asking applicant to rebut the allegations, would not be in consonance with law, even applying the rule of preponderance of probability. The discussion of the IO, whereby applicant has been held guilty, is reproduced as under: On perusal of defence statement submitted by the defaulters as well as depositions of PWs during D.E. proceedings it has come to light that as per statement of PW-I, he produced a envelope containing Rs. 1200/- alongwith signed note of Rs. 100/- by Inspr. H.M. Bakshi, P.W.-4 which has been exhibited as P.W.-I/A. The details of note found correct on its opening. PW-2 is the material and public witnesses in the D.E. He had admitted in his statement that he had given a Rs. 100/- denomination not to DHG Naresh in the presence of shadow witness Const. Ajit Singh, P.W.-4. This P.W. has also admitted that the money is paid to Traffic staff when Z.O. is present. He supported the charge to the extent that the PRG team met him at Central Sectt. and he was briefed by them properly. This PW gave the note of Rs. 100/- denomination having signature of Inspr.
H.M. Bakshi in the presence of shadow witness. The presence of DHG Naresh Kumar at the duty point of the defaulters have also proved, which have been corroborated by the PW-5, HC Mithlesh Kumar. The recovery of money in haphazard manner as well as seizure memo.
prepared by the Insprs. is self speaking in this regard. PW-3, Inspr. Satish Sharma, PW-4, Ct. Ajit Singh, PW-6, Inspr. H.M. Bakshi have fully supported the allegations leveled in charge framed against the defaulters. The D.W.-I Sh. Sawal Singh, also could not depose about the exchange of currency note and its recovery from the pocket of the DHG alongwith a currency note and Rs. 1100/-kept in haphazard manner.
From the above discussion, the charge framed against the HC Gian Bahadur, 1808/T and Ct. Ramesh Chand, 2883/T stands fully proved beyond any shadow of doubt.
Having regard to the above, we do not find even a whisper as to the role of applicant of his connivance with the DHG constable and as such there is no such finding of guilt against applicant. Merely because applicant was posted at a place where DHG constable was collecting money and when these constables are changed every day in the matter of their posting and duties, for want of an overt act by applicant, we do not find any evidence in support to establish the charge against him.
Suspicion and surmises would not take place of proof. Presumption is bad in law. Moreover, what we find that these findings when the witnesses have not heard the conversation between the conductor and DHG constable as well as DHG constable and applicant, would not show that applicant was instrumental in demanding the money. Mere stopping of bus would not prove the allegations leveled against applicant. It will not impute any ill motive upon applicant and the findings arrived at do not pass the test of a reasonable common prudent man.
In the light of the above, leaving other grounds open, we are satisfied that as applicant has been deprived of an opportunity by non-examination of DHG constable, the case is of 'no evidence' and of a 'perverse findings' recorded by the IO as well as by the DA and appellate authority. The findings of the IO as well as the subsequent orders are vitiated. Accordingly, OA is allowed. Impugned orders are set aside. Applicant shall be entitled to all consequential benefits.
No costs.