1. Constable Parveen Kumar, the applicant herein, through present Application filed by him under Section 19 of the Administrative Tribunal Act, 1985, calls in question order dated 13.4.2004 passed by the disciplinary authority vide which his four years approved service was forfeited permanently entailing reduction in his pay from Rs. 4050/- to Rs. 3710/- with immediate effect. He was, however, reinstated from suspension but the period of his suspension was not treated as if spent on duty. He also challenges order dated 13.6.2005 vide which his appeal carried against the order aforesaid was dismissed by the appellate authority.
2. Brief facts of the case reveal that in the departmental enquiry ordered against the applicant, charge was framed against him to the effect that ACP/Kamla Market was on night patrolling of Central District on the intervening night of 7/8.2.2003 and when after patrolling in the jurisdiction of P.S. Rajender Nagar he was heading for Shanker Road Crossing around 3.00 a.m., just before the crossing there were 5-6 trucks ahead of him and there was no movement of traffic. In order to know the reasons of traffic jam at such a late hour in the night, he got down from the Government vehicle and reached the crossing where he saw a yellow motorcycle No. DL-1SJ 8432 standing on one corner of the road near the traffic booth. Two persons, one in uniform with helmet and the other in traffic uniform wearing a civil shirt, were found taking money from the driver of Truck No. RNN 6054 loaded with goats. Both the Constables were called on one side of the road. SHO, Prasad Nagar, Inspr. Ram Mehar, the night patrolling officer, was also called on the spot. The ACP asked SHO, Prasad Nagar to conduct a personal search of both the Constables. The policeman in traffic uniform later turned out to be Ct. Manoj Kumar No. 1668/T posted at Ch.Puri Circle. The personal search of Ct. Manoj Kumar led to recovery of Rs. 22,500/- from his purse and Rs. 3850/- of different denomination in separate spaces from his pockets of trouser and shirt.
In the process the applicant, however, managed to throw the money from his pocket in the bushes. Subsequent recovery of these thrown currency notes came out to be Rs. 1830/-. Applicant failed to explain presence of such a large amount with him during the informal questioning by ACP/Kamla Market regarding stopping of trucks. It was confirmed from the drivers that they were stopped by Ct. Manoj and the applicant had taken money from them.
3. The Enquiry Officer examined Inspr. Ram Mehar as PW-1, who stated that on the intervening night of 7/8.2.2003 he was posted as SHO, Prasad Nagar and was performing the duty of night patrolling/checking officer in the area of Karol Bagh Sub Division. At about 3.00 a.m. he reached Shanker Road roundabout after receiving a message from ACP/Kamla Market. There he found the applicant and Ct. Manoj Kumar who were stopped by the ACP who directed him to conduct personal search of both the constables and told him that the constables were collecting money as illegal gratification from truck driveRs. From personal search of the applicant Rs. 1830/- were recovered. Some of the currency notes were in crumpled condition. He deposited the recovered money in PS, Prasad Nagar in a sealed packet (Pulanda) with the seal Rs. He prepared the details of recovery money and lodged the report vide DD No. 6-A dated 8.2.2003, which was exhibited as Ex.PW-1/A and the details of recovered money as PW-1/B. In his cross-examination he stated that he found in the possession of the applicant Rs. 1830/- and this money was recovered from the side and back pockets of his trouser. Ct. Bharat Lal, who was examined as PW-2, stated that he was posted as MHC (M) PS, Prasad Nagar on 7/8.2.2003, and on 8.2.2003 Inspr. Ram Mehar, SHO, Prasad Nagar deposited two sealed envelopes vide DD No. 6A with Ct.
Bhajni Ram regarding details of recovery from Ct. Parveen Kumar (applicant) along with details mentioned on a plain paper, which was marked as Ex.PW-2/A. As per details, the total amount was Rs. 1830/- having denomination of Rs. 100/2, Rs. 50/21, Rs. 20/2 and Rs. 10/54.
The sealed envelope was opened and the money matched the details. ASI Balbir Singh, who was examined as PW-3, stated that on the intervening night of 7/8.2.2003 he was duty officer at PS, Mandir Marg from 12.00 night to 8.00 a.m. The applicant and Ct. Narain Das were deployed from 9.00 p.m. to 9.00 a.m. on motorcycle patrolling as per the duty roster.
He produced the duty roster as Ex. PW-3/A. Both the constables departed for patrolling duty vide DD No. 54-B dated 07.02.2003 (Ex. PW-3/B). Ct.
Narain Das was detailed for sentry duty in the PS and the applicant was sent for patrolling after taking arms from Ct. Narain Das. The applicant returned after patrolling vide DD No. 74-B (Ex. PW-3/D). He along with motor cycle was sent for dak duty vide DD No. 77/B (Ex.
PW-3/E) and he returned after the duty vide DD No. 84/B (Ex.PW-3F).
This statement was made by PW-3 on the basis of original duty roster.
Ct. Richpal Singh, who was examined as PW-4, stated that on 7/8.02.2003 at about 2.45 a.m. the Duty Officer asked for the battery for Shanker Road Picket while he was sleeping in the barracks. He issued a battery (wireless) to the applicant after entering in the concerned register.
Shri O.P. Mishra, Additional DCP/Licencing Delhi, the most material witness in the case, was examined as PW-5. He stated that on the intervening night of 7/8.2.2003 he was performing the duty of night G.O., being ACP/Kamla Market Sub Division. He stated that he had already submitted a detailed report regarding the incident of that night in which traffic Ct. Manoj Kumar and the applicant were caught extorting money from truck drivers on the crossing of Shanker Road. He confirmed the report submitted by him on 10.2.2003, which was marked as Ex. PW-5/A. In his cross-examination he stated that he did not remember the name of the driver and the driver was not willing to get his statement recorded. He also stated that he had seen the applicant taking money from the truck driver from a close distance. Personal search of the applicant was conducted by SHO, Prasad Nagar, who was also the night checking officer and reached the spot on his direction.
Money was recovered in his presence and there was no specific reason for not signing the seizure memo. Being spontaneous chance recovery, no case was registered. He also stated that the applicant threw the extorted money from his pocket in the nearby bushes and that the throwing of the money and its subsequent recovery did take place in his presence.
4. The applicant in his defence examined Shri Jagir Singh as DW-1 who stated that he was truck driver by profession and about ten months ago Shri Babudin, owner of Quarshi Transport Company, asked him to take his truck from Jaipur to take his truck to Delhi because of non-availability of his driver. He was driving truck No. RNN 6054 loaded with goats from Jaipur to Delhi. At about 2/3 a.m. in the night between 7/8.2.2003 when he reached Shankar Road roundabout, he stopped his truck to enquire about the way to Idgah. A constable in uniform on a yellow motor cycle came on his right side who was stopped by him, whose name he came to know as Parveen Kumar. He asked Ct. Parveen Kumar the way for Idgah, and Meanwhile a gypsy came from behind and stopped.
A police officer asked as to mow much money he had given to the constable. He told that he had not given any money and he was just asking for the way to Idgah. Meanwhile another constable in white shirt came towards conductor's side. The police officer asked him what he was doing there. He told that he fell sick and was sleeping in the police booth after performing his duty. During clarification, the DW stated that when he stopped his truck to enquire about the way, there was no other truck/tempo, and he did not remember the colour of the gypsy.
5. The enquiry officer on the basis of the oral and documentary evidence as referred to above, returned a finding that the charge against the applicant stood proved. The disciplinary authority agreeing with the enquiry report vide order dated 13.4.2004 passed the order inflicting punishment upon the applicant as mentioned above, and the appellate authority confirmed the said order on 13.6.2005. These are the orders, as mentioned above, which have been challenged in the present OA.6. Arun Bhardwaj, learned Counsel representing the applicant contends that the department brought no convincing evidence on record to prove that the applicant had indulged in extorting money from truck drivers on the intervening night of 7/8.2.2003, and that there were material discrepancies in the statement of two relevant witnesses, namely, Inspr. Ram Mehar, PW-1 and Shri O.P.Mishra, PW-5. He further contends that the entire procedure culminating into the impugned orders would be vitiated for violation of provisions contained in rule 15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980, and further that unless demand, acceptance and recovery of money was proved, the applicant could not be held guilty of the charge framed against him, and in the present case there is no evidence of at least demand and acceptance of money from the truck driveRs. 7. Shri Rish Prakash, learned Counsel representing the respondents, however, joins issues on all the contentions of the learned Counsel representing the applicant as noted above, and seeks dismissal of the present OA by upholding the impugned orders, which, he states, are based upon cogent and reliable evidence.
8. We have heard the learned Counsel representing the parties and with their assistance examined the records of the case.
9. The two-fold contention of the learned Counsel for the applicant that the department brought no convincing evidence on record to prove that the applicant had indulged in extorting money from truck drivers, and that unless demand, acceptance and recovery of money was proved, the applicant could not be held guilty of the charge framed against him, is in fact two facets of the same argument. We have already referred to the evidence both oral and documentary that had been led before the enquiry officer. It may be recalled that insofar as the evidence with regard to the applicant being on duty at the relevant time is concerned, the same stands fully established on the basis of documentary evidence. Indeed, it is not even the contention of the learned Counsel for the applicant that the applicant was not deputed for duty at the relevant place on the intervening night of 7/8.2.2003.
The visit of ACP/Kamla Market and recovery of money in the manner as suggested is also not in dispute, but for to the extent that the counsel for the applicant would contend that when the two material witnesses, i.e., Inspr. Ram Mehar, PW-1 and Shri O.P.Mishra, Addl.
DCP/Licencing, Delhi had made contradictory statements with regard to place of recovery of money from the applicant, the recovery of money from the applicant is in dispute. We would deal with this aspect of the case hereinafter. The crucial question in the present case is as to whether it is a case of no evidence as suggested by the learned Counsel representing the applicant, or that the department led sufficient evidence to link recovery of money as bribe collected by the applicant from truck driveRs. 10. Having given our anxious thoughts to the core issue debated before us, we are of the firm view that the present cannot be said to be a case of no evidence linking the recovered money as bribe collected from truck driveRs. Shri O.P.Mishra, Addl. DCP/Licencing, Delhi is a responsible officer of police. He deposed that on the intervening night of 7/8.2.2003 he was performing the duty of night G.O. being the ACP/Kamla Market. On 10.2.2003, i.e., in a day or so, he submitted a detailed report (Ex.PW-5/A) which contained all details of the event leading to recovery of money from the applicant and Const. Manoj Kumar.
He deposed that Const. Manoj Kumar and the applicant were caught extorting money from truck drivers on Shankar Road crossing. In his cross examination he further stated that he had seen the applicant taking money from the truck driver from a close distance. Inspr. Ram Mehar, PW-5, stated that he was performing the duty of night patrolling/checking officer in the area of Karol Bagh Sub Division, and when at about 3.00 a.m. he reached Shankar Road roundabout after receiving a message from ACP/Kamla Market, he found the applicant and Const. Manoj Kumar who were stopped by the ACP who directed him to conduct personal search of both the constables and told him that the constables were collecting money as illegal gratification from truck driveRs. It is no doubt true that he stated that an amount of Rs. 1830/- was recovered from the applicant whereas it has been the case of the department that the applicant had thrown the money in bushes and the same was recovered from there. We are of the firm view that present is not a case where it could be successfully urged that the department had led no evidence whatsoever to link the recovery of money as bribe collected by the applicant from truck driveRs. The ACP, as mentioned above, had clearly seen from a close range the applicant and his co-delinquent accepting money from truck driveRs. On heels of the incident when the ACP had seen the applicant and Const. Manoj Kumar receiving money from truck drivers, Inspr. Ram Mehar arrived there and was told by the ACP that they were collecting money as illegal gratification from truck driveRs. There is a direct evidence of the applicant and Const. Manoj receiving money from truck driveRs. Even though, the statement of Ram Mehar may be said to be hearsay evidence, but the same would yet be relevant under Section 6 of the Indian Evidence Act, 1872 as forming part of same transaction. In the present case, recovery of money from the applicant is linked with demand and acceptance of illegal gratification. This Tribunal, as per the settled law, would not take into hand an exercise of re-appreciating of evidence, as what is permissible in law is interference in cases of 'no evidence', finding based on 'suspicion' and 'surmises' and relevant circumstances. Reference in this connection is made to the decision of the Hon'ble Supreme Court in Kuldeep Singh v. Commissioner of Police JT 1998 (8) SC 603. Insofar as the contention of the learned Counsel that the evidence with regard to recovery is discrepant inasmuch as, whereas PW-1 Ram Mehar has stated that the money was recovered from the applicant, PW-5 ACP O.P.Mishra deposed that he had thrown the money in bushes, is concerned, it is a matter of common sense that when witnesses are examined after a lapse of time, they may not give a kaleidoscopic view of the whole event, as memory fades with time. The learned Counsel representing the applicant, however, we may mention, has relied upon some judicial precedents and to be fair to him, the same would need a mention even though, at the very outset, we may mention that all the judgments relied upon by the learned Counsel proceed on a finding of fact so recorded that it was a case of no evidence. The learned Counsel has relied upon a judgment of this Tribunal in OA No. 1779/2004 decided on 3.8.2005 in the matter of Satyavir Singh v. Government of NCT of Delhi and Ors. It was a case of receiving bribe. The contention raised by the learned Counsel appearing for the applicant in the said case was that it was a case of no evidence. The learned Tribunal noted the same in paragraph 2(2). The contention so raised by the learned Counsel reads thus: (2) The learned Counsel then stated that no PW had stated to have seen Shri Jai Bhagwan PW-9, giving money to applicant or others nor had they heard anything about demand and acceptance of entry money.
In support, he relied on Delhi High Court's decision in Kundan Lal v. Delhi Administration, Delhi and Ors. 1976 (1) SLR 133 to contend that recovery of money from applicant, assuming that it had been received, as alleged, could not by itself, without more evidence, establish that applicant had received a bribe. Evidence on record has to establish that applicant had received the amount as bribe, which has not been established by any supporting evidence. He further contended that even PW-9 had stated that his signatures had been taken on a plain paper by the officials of the PRG and as such he had not made any statement earlier to the PRG team. The learned Counsel stated even the enquiry officer had stated that PW Jai Bhagwan had denied in his statement, 'he had ever been the member of a raiding party'. The prosecution story appears to be vague'. They have neither heard the demand nor seen the acceptance'. The bus conductor has totally denied the prosecution story'. He has only accepted that he had signed on the blank papers on the request of traffic staff' which clearly creates doubts about the prosecution story'. There were passengers sitting in the bus at the time of raid but none was asked to join the raiding party or was asked to sign the memo which is the biggest lapse on the part of the PRG team'. No statement of PW-9, the conductor of the bus was recorded before the raid whereas the complaint must be reduced into writing before conducting raid and their personal search. This lapse proves that the raid was full of lacunae. The learned Counsel stated that money was recovered but applicant had stated that that was his own money.
Thus, the learned Counsel maintained that the statement of PWs other than PW-9 cannot be relied upon and the finding of guilt as recorded by respondents is liable to be set aside/quashed.
10. Admittedly, the bus conductor and the passengers of the bus were not examined at all. The enquiry officer has himself stated that the prosecution story appeared to be vague. The witnesses had neither heard applicant demanding money nor had then seen him accepting the money. The bus conductor in his statement denied the prosecution story. According to the enquiry officer he had only accepted that he had signed on the blank papers on the request of the traffic staff.
The enquiry officer had stated that the prosecution story is doubtful. The statement of PW-9, i.e., the conductor of the bus, was not recorded before the raid and that the raid was full of lacunae.
While in a departmental enquiry sufficiency of evidence is not the criterion to bring home the charge, some evidence must be there in support of the charge. In the present case even the enquiry officer has stated that the prosecution story is vague; witnesses had neither heard about the demand nor seen the acceptance of money as bribe. According to the enquiry officer the bus conductor has denied the prosecution story and he had only accepted that he had only signed blank papers on the request of the traffic staff. Such a statement recorded at a later stage over the signatures obtained on a blank paper cannot be relied upon at all in preference to the statement made by the witness before the enquiry officer. This is absolutely prohibited in terms of rule 16(iii) ibid. The earlier statement could be taken on record by the enquiry officer in case the presence of such a witness could not be procured 'without undue delay, inconvenience or expense. Such has not been the case presently. The bus conductor Shri Jai Bhagwan had appeared before the enquiry officer. His statement had been recorded by the enquiry officer. The earlier statement of this witness was inadmissible in terms of rule 16(iii). The contention of the learned Counsel of respondents is that even if earlier statement of this witness is not taken into account, there is evidence to establish the charge against applicant. No such evidence has been pointed out by the learned Counsel of respondents. Mere recovery of a sum of Rs. 1150/- from the possession of applicant without a little supporting evidence cannot be said to have established that applicant had received a bribe. Stopping a vehicle or recovery of money from the possession of applicant without linking it with the money paid in bribe would not suffice to bring home the charge against applicant.
There must be overt act to the act of stopping the vehicle or recovery of money from the possession of applicant. For this view we draw support from the case of Kundan Lal (supra). In our view, there is no iota of evidence in the present case regarding demand/acceptance of money on the part of applicant.
The finding recorded by the Tribunal as reproduced above, would manifest that it was on the basis of the facts of that case that it was held that there must be an overt act of stopping the vehicle or recovery of money from the possession of the applicant. There cannot be any exception to the law laid down by the learned Division Bench, but in the present case, overt act of stopping the vehicle or recovery of money, has been proved. We may reiterate that there is no reason whatsoever to disbelieve the statement of Shri O.P.Mishra, ACP, a high ranking police officer, who gave a detailed report of the incident on 10.2.2003, and who had no bias or personal animus against the applicant.
11. The learned Counsel has also placed reliance upon a judgment of this Tribunal in OA No. 1613/2004 decided on 13.1.2006 in the matter of Const. Raj Karan v. Government of NCT of Delhi and Ors. For parity of reasons as given above in distinguishing the facts of the present case with that of the judgment of this Tribunal in Satyavir Singh (supra), we hold that even this judgment would not be of any help to the applicant.
12. The learned Counsel also relied upon the decision of the Hon'ble Supreme court in Sita Ram v. State of Rajasthan . Once again, the decision of the Apex Court in the said case is based upon facts peculiar to that case itself, as would be clearly made out from para 9 of the judgment, which reads as follows: 9. On the point of payment of money by complainant Mohan Lal to the appellant the evidence of the former was of no help to the prosecution. The High Court found this fact established, as stated above, on the evidence of P.W. 2 Mukundsingh and P.W. 9 Sugansingh.
Learned Counsel for the appellant rightly pointed out that the former on being further cross-examined had stated "When Mohan Lal gave currency notes to Sitaram I did not see it. The attention of the High Court does not seem to have been drawn to the above statement of P.W. 2 in cross-examination. That makes his evidence hearsay on the point of acceptance of gratification by the appellant from Mohan Lal. So many jerks and jolts seem to have been given to the prosecution case by contradictory and hostile statements of the witnesses that a good part of it had to be rejected by the High Court. In the background of the High Court's findings that it had not been proved that the appellant had demanded any bribe from Mohan Lal, we do not consider it safe to sustain its finding on the point of payment of the bribe by the complainant to the appellant on the testimony of P.W. 9 alone when the evidence of P.W. 2 is not admissible on the point. The result is that not only the story of demand of bribe by appellant from the complainant is not proved but even the story of payment of the money by the complainant is not established beyond reasonable doubt. That being so the rule of presumption engrafted in Section 4 (1) cannot be made use of for convicting the appellant.
13. The learned Counsel also relied upon three other decisions of this Tribunal in OA No. 340/2004 (DB) decided on 10.1.2006 in the matter of Ranvir Singh v. Government of NCT of Delhi and Ors.; OA No. 2706/2004 with OA No. 2704/2004 decided on 19.1.2006 in the matter of HC Shri Bhagwan/Ct. Devi Sharam v. Commissioner of Police, Delhi and Ors.; and OA No. 2918/2004 with OA No. 2937/2004 decided on 8.3.2006 in the matter of ASI Prem Singh/Const. Chet Ram v. Government of NCT of Delhi and Ors. These judgments would, in our view, not be of any solace to the applicant as they have been decided on the peculiar facts of the said cases only. There cannot be any exception to the law laid down in all the judgments referred to above, and we are also of the firm view that there has to be some link with the recovery of money, demand and acceptance of bribe, but in the present case we have already held that the department led sufficient evidence to link the recovered money to the applicant as bribe collected from truck driveRs. 14. Before we may part with this aspect of the case, we may mention that the learned Counsel representing the applicant also argued that even though the applicant was deputed to do duty on the intervening night of 7/8.2.2003, but he was called to Lines and when he went again, it was just ten minutes before the arrival of the ACP, and within these 10-15 minutes the ACP could not have seen him accepting the bribe. We do not find any merit in the aforesaid contention of the learned Counsel. The material/evidence on record would not suggest that the applicant arrived only ten minutes before at the scene of the incident when the ACP reached there. There is no merit in the contention of the learned Counsel either that the statement of ACP, PW-5, should not be believed as the truck driver from whom the applicant was seen accepting bribe, when examined as DW-1, did not support the case of the department. It may be recalled that the truck driver was reluctant to give a statement even at the time when the ACP had seen him giving money to the applicant. It is not difficult for the applicant being in police to maneuver things. In any case, the statement of a truck driver cannot be given precedence over the statement made by a responsible police officer, who, as mentioned above, had no axe to grind nor had any animosity against the applicant.
15. Insofar as the contention of the learned Counsel that because of violation of rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980, the proceedings are vitiated is concerned, the same merits summary rejection. The applicant terms the report of ACP Shri O.P.Mishra, Ex.PW-5/A, as a preliminary enquiry. Sub-rule (2) of rule 15 said to have been infringed, reads as follows: (2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.A Full Bench of this Tribunal in OA No. 340/2004 decided on 10.5.2005 in the matter of Ranvir Singh v. Government of NCT of Delhi and Ors.
has already held that anti-corruption raids, investigation or vigilance checks per se would not be preliminary enquiries as contemplated under rule 15(2) ibid, unless ordered by the disciplinary authority.
16. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.