| SooperKanoon Citation | sooperkanoon.com/54851 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Aug-01-2006 |
| Judge | M A V.K., M Chhibber |
| Reported in | (2007)(1)SLJ274CAT |
| Appellant | Ex-si Ajay Kumar |
| Respondent | Union of India (Uoi) and ors. |
2. It is submitted by the applicant that while applicant was working as Sub Inspector, summary of allegation was issued to him, which reads as follows: It is alleged SI Ajay Singh No. D/3628 posted at DAP Vith Bn. He developed illicit relations with Mrs. Meenu Sharma r/o 380 Shastri Nagar, Delhi, On 17th May, 2001 Meenu left her house with her daughter. The matter was reported to PS Sarai Rohilla as it was suspected that she has gone with SI Ajay Singh. On 18th May, 2001 SI Ajay Singh produced her in the PS. It is further alleged that SI Ajay Singh broke open the lock of House No. G-9, Jagat Puri and lived there for approx. three months with Mrs. Meenu Sharma and her daughter Akriti. The said house belongs to one Baljeet Singh who had locked the house and left with his family in Dec. 2000 for the unknown place. In the month of April, 2001 a theft took place in the said house, matter was reported to police and the call was marked to SI Ashwani Kumar D/3692 PS Preet Vihar. SI Ashwani Kumar came to attend the theft call at G-9 Jagat Puri, since no complainant was available the call was kept pending. On the request of local residents house was re-locked and key was kept in the police station for safe custody vide DD No. 28-A dt. 14.4.01. Mrs. Meenu is still living with SI Ajay Singh.
The above act on the part of SI Ajay Singh No. D/3628 amounts to grave misconduct and is unbecoming of a Govt. servant of Under Section 3 of CCS (Conduct) Rule, rendering him liable for departmental action under the provision of Delhi Police (Punishment and Appeal) Rules, 1980.
An inquiry was held and even though there was sufficient evidence on behalf of defence to disprove the charge against he applicant and there was no substantive evidence against the applicant, on which reliance could have been placed in law, yet the Inquiry Officer gave his findings holding the charge fully proved against the applicant (page 53 at 83). He was given opportunity to file his representation. He gave a detailed representation but the Disciplinary Authority ignored all the legal pleas and dismissed him from service. Being aggrieved, he filed a detailed appeal but even that was rejected on 24.12.2003. He then filed revision petition but that was not maintainable, which was intimated to him vide letter dated 26.2.2004, therefore, he had no other option but to file the present O.A. (1) It was mandatory under Rule 15(2) of Delhi Police (Punishment and Appeal) Rules to take prior approval from Additional Commissioner of Police in case any DE was to be initiated against the applicant but since no such approval was taken before initiating the departmental inquiry against the applicant, therefore, it vitiates the whole inquiry and orders passed thereon. Therefore, they are liable to be quashed on this ground alone. In order to substantiate his submission, he relied on 119 (2005) Delhi Law Times 559 (DB), Delhi High Court.
(2) He further submitted that he has been deprived of his right to cross-examine in the departmental inquiry inasmuch as the only eye witness, who has been relied upon in the findings given by the Inquiry Officer, namely, Ms. Reema Suri was never called as a witness during the inquiry, as such applicant was deprived of his right to cross-examine the said witness, which amounts to violation of principles of natural justice and would vitiate the whole proceedings; (3) He also submitted that statement given by the daughter of Mrs.
Meenu Sharma, namely, Akriti could not have been relied upon unless it was corroborated by some other independent evidence because she was a minor on that date. He emphasized that this is settled law that the evidence of a minor person especially when he or she is under the influence of the opposite party cannot be relied upon. In this case, since her statement is not corroborated by any other independent witness, therefore, her statement could not have been relied upon; (4) He also submitted that this is a case of double jeopardy inasmuch as the husband of Mrs. Meenu Sharma had filed a complaint against the applicant, on 1.8.2001 to the SHO, Police Station, Sarai Rohilla in which he had made allegations regarding his wife's illicit relations with Shri Ajay Kumar, therefore, action be taken against him to save his family from being ruined (page 84). He also gave another complaint alleging misconduct and criminal offences on the part of Shri Ajay Singh (applicant) for registering FIR under Sections 120B, 363, 498, 506 IPC on the charges of kidnapping, criminal conspiracy, extending criminal intimidation and threats and enticing and taking away and detaining with criminal intent a married woman and also for detaining a minor girl below 16 years with criminal intentions and immediate intention of departmental proceedings for destroying the matrimonial home of an innocent citizen (page 90). Counsel for the applicant invited our attention to pages 92 and 93 to show that both the complaints filed by Shri Tarun Chauhan, that is brother of Meenu Sharma as well as the complaint filed by Shri Ram Sharan Sharma were looked into by the Additional Commissioner of Police and Assistant Commi ssioner of Police, Headquarters, 6th Bn. DAP and in both the reports, officers had given a clean chit to the applicant by observing that Mrs. Meenu Sharma wife of Shri R.S. Sharma had left her house due to ill treatment by her husband and visited the Police Station,. on 18.5.2001 herself. No role of ASI Ajay Kumar could be established.
The same view was reiterated in the second report also. Counsel for the applicant thus submitted that since applicant was exonerated in two reports given by responsible officers, there was no justification to initiate departmental inquiry against the applicant and give a different view in the departmental inquiry.
(5) He also tried to draw our attention to various pages from the Inquiry Officer's report to show that even Smt. Meenu Sharma wife of Shri R.S. Sharma had stated in her statement that she decided to live alone due to the bad habits/activities of her husband and SI Ajay Singh has nothing to do in this regard. She is educated and knows her good and bad. She has no relation with SI Ajay Singh.
Nobody can seduce her in any way. He also tried to show from the same statement that Smt. Meenu Sharma was badly treated by her husband and other relations and has also tried to show that it is not the applicant who had taken Smt. Meenu Sharma to the Police Station on 18.5.2001. He also submitted that from the evidence which has come on record, it is clear that Smt. Meenu Sharma has come on her own whereas the charge against the applicant is that it is the applicant, who brought Mrs. Meenu Sharma to the Police Station, on 18.5.2001. He, therefore, prayed that since neither the evidence of Reema Suri nor that of Akriti could have been relied upon and there was no other witness or evidence to prove the allegations of illicit relations of applicant with Smt. Meenu Sharma. Therefore, the findings recorded by the I.O. cannot be relied upon. The orders may, therefore, be quashed and set aside with all consequential benefits.
4. Respondents have opposed this O.A. They have submitted that departmental inquiry was initiated against SI Ajay Kumar for his grave misconduct and unbecoming of a Govt. servant Under Section 3 of CCS (Conduct) Rules, on the allegations that while posted in 6th Bn. DAP, he had developed illicit relations with Mrs. Meenu Sharma W/o Shri Ram Saran Sharma R/ o 380, Shastri Nagar, Delhi. On 17.5.2001, Meenu Sharma left her house with her daughter. It was suspected that she had gone with SI Ajay Kumar. Accordingly, the matter was reported to Police Station Sarai Rohilla. She was produced by SI Ajay Kumar, on 18.5.2001.
It was also alleged that applicant broke open the lock of House No.G-9, Jagat Puri and lived there for approximately three months with Mrs. Meenu Sharma and her daughter Akriti.
5. Initially, Shri Lakhi Ram, ACP, 6th Bn. DAP was entrusted to conduct the inquiry, who served the summary of allegations, list of P. Ws. with gist of their depositions, list of documents with documents to be relied upon, to the applicant, on 6.4.2002. Subsequently, the case was transferred by the Special Commissioner of Police, Administration, to DCP/ DE Cell vide letter dated 8.5.2002 for further proceedings whereafter DE was entrusted to N.S. Dalai, DE Cell. Initially, applicant did not turn up to join the DE proceedings despite issuance of summons on 10.6.2002, 17.6.2002 and 2.7.2002, as such the Inquiry Officer requested to proceed ex parte in the DE, which was allowed by the Disciplinary Authority vide letter dated 11.7.2002. However, on 12.8.2002, applicant requested the Inquiry Officer to supply him some additional documents to defend himself in the DE. As such, documents were handed over to the applicant on 25.9.2002 and thereafter statements of the P.Ws. were recorded. Full opportunity was given to the applicant to cross examine the P.Ws. Since prima facie case was made out, the charge was framed against the applicant on 10.10.2002, which was got approved from the Disciplinary Authority and served on the applicant on 22.10.2002. Applicant submitted list of 3 defence witnesses. All the three defence witnesses were examined in the presence of the applicant. Applicant also submitted his defence statement against the charge on 4.12.2002.
6. The Inquiry Officer was of the opinion that it was necessary to call three Court witnesses, namely, Km. Akriti D/o Smt. Meenu Sharma, Narender Kumar and Km. Parul, as Court witnesses to clarify certain facts as per Rule 16(viii) of the Delhi Police (Punishment and Appeal) Rules, 1980.
7. At this stage, applicant gave an application, on 26.12.2002 for changing the Inquiry Officer. However, his application was considered and rejected by the Competent Authority vide letter dated 15.1.2003, which was duly received by the applicant. The Inquiry Officer thereafter examined Km. Akriti D/o Smt. Meenu Sharma and Shri R.S.Sharma as Court witness, on 1.3.2003 in the presence of applicant and he was given full opportunity to cross examine the said Court witness, which was availed by the applicant. Thereafter, even though C.W.-2 was present but since applicant did not attend the DE, the other two Court witnesses were dropped as they were also not interested. The Inquiry Officer vide his letter dated 27.3.2003 asked the applicant to give his supplementary statement, if any but even though he received it on 3.4.2003, he did not submit any supplementary statement. The Inquiry Officer submitted his findings on the basis of evidence which had come on record on 16.4.2003 concluding therein that the charge stands proved against the applicant beyond any doubt. Copy of the findings was served on the applicant on 3.6.2003 calling upon him to give his representation and also to show cause as to why his suspension period from 28.6.2002 to 25.12.2002 should not be treated as period not spent on duty. Applicant gave his representation on 18.7.2003 but, in the mean time, applicant had filed O.A. No. 953/ 2003, in which interim orders were passed on 10.4.2003 that disciplinary proceedings may continue. However, in case of adverse order, they shall not impose penalty till the O.A. is disposed of. Accordingly, the file was kept pending till the decision of the said O.A. The said O.A. was finally decided on 22.9.2003 where after applicant was asked to submit his additional representation, if any and also called in OR on 22.10.2003 to hear him in person as well. Applicant submitted his additional supplementary affidavit also.
8. The Disciplinary Authority after examining the evidence which came on record and the contentions of the applicant, passed a speaking order on 24.10.2003 dismissing the applicant from service with immediate effect by observing that Sub-Inspector has shown total disregard to the moral values of the security and lowered down the image of the Department in the eyes of general public. General populace expects a police officer to protect citizens from criminals and crime, but instead defaulter SI himself indulged into such reprehensible activities which is not only immoral but also reflects a grave misconduct of a police officer. Such a grave misconduct of a police officer is bound to destroy the faith and due regard of people in a disciplined force like Delhi Police. The involvement of SI Ajay Kumar in such a shameful and reprehensible activities has eroded the faith of common people in police and continuance in the police force of such police officer like SI Ajay Kumar, who indulged in such a grave misconduct and reprehensible activities would be highly objectionable to retain him in the force. He was, therefore, of the view that he is not fit to be retained further in the police force as it would be prejudicial to the interest of the Department. It was also decided that suspension period from 28.6.2002 to 25.12.2002 was also decided as "not spent on duty" for all intents and purposes.
9. Aggrieved by the above order, applicant filed an apeal which was carefully considered by the Appellate Authority but the same was rejected by a detailed order on 24.12.2003. He also filed a revision but since Rule 25 had already been declared as ultra vires, he was informed that revision is not maintainable.
10. In view of above, Counsel for the respondents submitted that full opportunity was given to the applicant at every stage. Therefore, it is wrong on the part of applicant to suggest that he was not given an opportunity to cross-examine the witnesses. As far as bringing on record the statement of Reema Suri is concerned, she relied on Rule 16 (iii) of Delhi Police (Punishment and Appeal) Rules, 1980. She also submitted that as far as the question of taking prior approval from Additional Commissioner of Police is concerned, that is required only when a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public whereas in the present case he was not dealing with Shri R.S. Sharma or Meenu Sharma in his official capacity but in his individual capacity but none the less it was a serious matter which involved moral turpitude, therefore, it amounted to misconduct. She submitted that Rule 15(2) would not apply in the present facts of the case.
11. As far as the statement of Akriti D/o Smt. Meenu Sharma and Shri R.S. Sharma is concerned, she submitted that she is a grown up girl who knows what is to be stated. Since she has given categorical statement which has exposed the relationship of SI Ajay Kumar as well as her mother Smt. Meenu Sharma and the statement is also indirectly corroborated by the statement of Mrs. Meenu Sharma's brother as well as statement given by independent witness Reema Suri, the conclusion was writ large. Therefore, it is wrong for the applicant to suggest that there was no evidence or the findings given by the Inquiry Officer were perverse. She also submitted that this cannot be said to be a case of double jeopardy because earlier reports were given in a routine manner whereas punishment has been given to the applicant after holding a proper departmental inquiry wherein full opportunity was given to the applicant and it has come on evidence that not only applicant was having illicit relation with one married lady Smt. Meenu Sharma but he also broke up the lock of a house bearing No. G-9, Jagat Puri where he lived with Mrs. Meenu Sharma and her daughter Akriti.
12. She also submitted that the law is well settled that in judicial review, the Court cannot reappreciate the evidence and so long there is some evidence, it is the prerogative of the Competent Authority to decide as to what punishment should be given to the delinquent. She, therefore, prayed that the O.A. may be dismissed.
13. We have heard both the Counsel, perused the pleadings as well as the judgments relied upon by both the Counsel. Counsel for the applicant had relied on JT 1997(5) SC 370 AIR 1969 SC 53 and AIR 2004 SC 4961, on the question that the evidence given by child witness could not be relied upon unless corroborated by the other witness while Counsel for the respondents relied on 1997 SLJ 10.
14. Since Counsel for the applicant had strenuously argued that Rule 15(2) of Delhi Police (Punishment and Appeal) Rules, 1980 has been violated in this case, inasmuch as, prior approval of the Additional Commissioner of Police was necessary before initiating departmental inquiry against the applicant and not having done so, the entire proceedings would get vitiated along with the orders passed thereon. It would be relevant to quote the said Rule. Rule 15 (2) and (3), for ready reference, reads as under: (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. (3) The suspected police officer may or may not be present at a preliminary enquiry but when present he shall not cross-examine the witness. The file of preliminary enquiry shall not form part of the formal departmental record, but statements therefrom maybe brought on record of the departmental proceedings when the witnesses are no longer available. There shall be no bar to the Enquiry Officer bringing on record any other documents from the file of the preliminary enquiry, if he-eonsiders it necessary after supplying copies to the accused officer. All statement recorded during the preliminary enquiry shall be signed by the person making them and attested by Enquiry Officer.
15. Perusal of the above Rule would show that priorapproval of Additional Commissioner of Police was required to be taken only when the commission of a cognizable offence by a police officer of subordinate rank is disclosed in his official relations with the public, meaning thereby that if he commits some offence while dealing with the public in his official capacity, whereas in the instant case, the charge against the applicant is that he was having illicit relations with the married woman Smt. Meenu Sharma and he was living with her in a house after breaking the lock of said house, therefore, it is clear that this case would not get covered under Rule 15(2). As such, the contention of applicant is absolutely misplaced. The same is accordingly rejected.
16. Counsel for the applicant had relied on a judgment given by Hon'ble Delhi High Court in case of Deputy Commissioner of Police v. Ravinder Singh . However, in that judgment, this aspect of the matter was neitherraised nor discussed. Therefore, that judgment is distinguishable, as such it would not apply in the present set of facts.
17. Counsel for the applicant had next argued that the statement given by Reema Suri could not have been taken into consideration by the Inquiry Officer while giving his findings because she was not produced as a witness to be cross-examined by the applicant and by not producing her, his right to defend has been violated. However, at this juncture, we would like to quote Rule 16ofDelhi Police (Punishment and Appeal) Rules, 1980, which is exhaustive and lays down the procedure in departmental enquiry. Rule 16(3) is relevant for our purpose, therefore, that is being quoted hereunder: (iii) If the accused police officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge.
As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to 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 if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to 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. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned.
The accused shall be bound to answer any questions which the Enquiry Officer may deem fit to put to him with a view to elucidating the facts referred to in the statements of documents thus brought on record.
The above rule clearly states that Inquiry Officer is empowered to bring on record the earlier statement of any person whose presence cannot be procured without undue delay provided it has been recorded and attested by a police officer superior in rank to the accused officer.
18. We have looked into the original record and find that Reema Suri had given statement on 12.9.2001 duly signed and it was duly attested by an Inspector, who is higher in rank than the applicant because applicant is only a Sub Inspector.
19. In her statement, Reema Suri had clearly stated that she is living opposite House No. G-9 in which earlier Manjit Kaur W/o Baljit Singh were living. Baljit Singh's sister Pinki was working in LIC but she had cheated lot of people, therefore, people used to come to Baljit Singh's house to look for Pinki but in December, 2000, they left this house on the pretext that their mother is sick but they did not come thereafter.
In February or March, a theft had taken place in this house, which was reported at 100. Since there was no complainant, no FIR could be lodged. However, other persons of the Block requested police to lock the house and keep the key in the police station. Accordingly, the house was locked by police. In end of May, one family, husband, wife and one daughter came to the said house along with Inderjit Singh who stated himself to be nephew of Baljit Singh. Inderjit Singh along with SI Ajay Singh who had come with his family broke up the lock of House No. G-9. When they were questioned as to why they are breaking the lock, he stated that they had an order from the Court, which was neither shown nor she inquired about it. Thereafter, Ajay Singh along with his family started living in the said house. After few days, she left the house by stating that she is going to Lucknow and when she came back, her daughter was not with her. She told that her daughter has been admitted in the hostel. When she came back from Lucknow, her foot was plastered and she had some injury in the head. On inquiry, she said that she had fallen down from the stairs.
20. Reema Suri also stated that Ajay Singh while going to his duty used to lock the gate from outside and throw the key to his wife on first floor. They left this house somewhere on 27,28.8.2001 and did not come thereafter to this house but one day a lady named Veena Singh came who declared herself to be the wife of Shri Ajay Singh. It is then that the other people of block came to know that Ajay Singh was living with a lady who was not his wife. The entire Mohalla knows about it. She also requested that whatever she has stated is absolutely correct and requested that the house may be got sealed till the house owner comes back so that some other doubtful person like Ajay Singh may not again occupy this house with bad intentions because in this block all family people are staying and when the men go for work only ladies and children are left in the house. The said statement was signed by other residents also who confirmed the statement given by Reema Suri.
21. It would be relevant at this juncture to refer to the observations made by the Inquiry Officer in his findings. The Inquiry Officer has observed as follows: After examining the above P.Ws. the statement of Smt. Reema Suri w/o Rajesh Kumar Suri R/o G-1/B Jagat Puri presently R/o H. No. 601 Plot No. 60 Mayur Dhawaj Apartment, I.P. Estate, Delhi, earlier recorded by Smt. Partima Sharma Inspr. Vigilance during enquiry on 12.9.01 duly attested and signed by Smt. Reema Suri has been brought on record (DE file) under Rule 16 (III) of Delhi Police (Punishment and Appeal) Rules, 1980 as she did not joint the DE knowingly despite service of summons and, calling on 7/8 times, she caused undue delay and inconvenience. A copy of her statement, being a listed document was already given to the delinquent SI, by my predecessor along with S.O.A. etc. However, another copy was given to the delinquent, the statement was read over to him, and he was also informed in this regard.
It is thus clear that Inquiry Officer sent several summons to the said Reema Suri R/o G-l/ B, Jagat Puri presently R/o H. No. 601, Plot No. 60 Mayur Dhawaj Apartment, I.P. Estate, Delhi, but she did not attend the inquiry. Since her statement was relevant and it was duly signed by the said Reema Suri and attested by a senior police officer, it could very well be taken on record by the Inquiry Officer as per Rule 16(III) of the Rules. Therefore, applicant cannot complain that he has not been given the opportunity to cross examine the said witness because apart from Reema Suri's statement, there is sufficient evidence available on record to show that applicant was having illicit relations with Mrs.
Meenu Sharma. It is relevant to note that Shri Ashok Kumar Chauhan, who is real eldest brother of Mrs. Meenu Sharma also appeared as a Prosecution Witness No. 3 in the inquiry and he categorically stated as under: The married life of his sister Meenu was being passed happily with Ram Sharan Sharma and he never heard any complaint either from them.
At about 8.15 P.M. on 17.5.01 he was informed by his elder brother in law Ramesh Panchal on cellular phone, to reach immediately at his ancestral house in Tri Nagar, Delhi. He is originally resident of H. No. 132, Gali No. 14, Onkar Nagar, Tri Nagar, Delhi. On reaching there he was told by Sh. Ramesh Panchal and his two brothers namely Sushil Kumar Chauhan and Tarun Chauhan that their sister Meenu Sharma along with his daughter Aakriti is missing from her house since 6 P.M. on that day. He along with his brothers, sister and brother-in-law went to Meenu Sharma's house No. A-381, Shastri Nagar, Delhi and enquired about Meenu from his brother-in-law Ram Sharan Sharma and his family members as where she had gone and what steps were taken in her search. On this Ram Sharan told that one Ajay Singh a Police Officer has interfered in his family affairs who has developed illicit relation with Meenu and he doubts that Ajay has taken menu on their consultation with each, other Ram Sharan made a complaint to P.S. Sarai Rohilla regarding kidnapping of Meenu Sharma by Ajay. He sent his younger brother Sushil and Sunder the younger brother of Ram Sharan to the house of Ajay Sharma at Anand Parvat. Tank Road Karol Bagh. After some time Ajay alongwith his friend reached at P.S. Sarai Rohilla and told if they were searching Meenu who is also known as Binny (nick name) then why they had not reached his house directly, since now they have come to P.S. so get the action taken by the Police otherwise Binny is all right. The SHO Sarai Rohilla asked Ajay Sharma to disclose the where about of Meenu if he knows and also produce her at Police Station. Next day in the need Ajay produced Meenu at P.S. Sarai Rohilla, but Meenu refused to talk with him and his brothers and brother-in-law and said that she will only talk with the SHO. They persuaded Meenu not to spoil her family life in this manner. Meenu was sent with them on the condition that if she agrees to live in her parent's house then all right, otherwise she may be sent back to Police Station. They persuaded Meenu Sharma very much, but she did not agree to live with them at their house so his younger brother Tarun took her to P.S. Sarai Rohilla. They also informed the local police of P.P. Shanti Nagar about the leaving of their house by Meenu Sharma in the above manner. After 8/10 days i.e. on 9.6.01 Meenu Sharma phoned his niece Parul Panchal and told that she wants to meet with all of them at some place out side their house. She asked us to come to Regal Building, Connaught Place for talks. He along with his brother-in-law, sister and niece Parul Panchal went to the pre-decided place where they meet with Meenu, who agreed to return home with them at Tri Nagar. He alongwith Meenu and brother Sushil travelled in one auto, Parul her mother in another and Ram Sharan her daughter Aakriti and Ramesh Panchal travelled in Ram Sharan's car. When Parul was going to, sit in the Auto, Ajay also reached there and enquired about Meenu, where she was it was told to them by Parul later on. Meenu lived with them for 3/4 days at Tri Nagar. She was persuaded the not spoil her family life but in vain. In one night she jumped from the first floor of the house and went to unknown place. He was at Gurgaon at that time and his mother told this incident to him on telephone. Next day he alongwith his brothers informed the local police of P.P. Shanti Nagar about the above incident. He also informed Sushant Lok Police Gurgaon in this regard. They did not take any interest in the affairs of Meenu Sharma after that day and they also did not search her.
Similarly, P.W.-4 Shri R.S. Sharma, who is husband of Mrs. Meenu Sharma also stated almost the same thing. He explained how Ajay came to him for consultation in May, 2000 and thereafter started coming to his house. Ajay helped in admission of her daughter in a school of Swimming Pool and thereafter he started coming to his house more often. His wife used to go with her daughter to swimming pool. Ajay developed friendship with her but he came to know about it much later. It was on 30.4.2001 that Ajay informed him that some neighbours have made a complaint at police station Sarai Rohilla and also dragged his family members in the complaint. When he reached police station Sarai Rohilla, Ajay told him that his neighbours have complained to the police about his relation with his wife Meenu. If the children tell about his relation to some one else, Ajay beats them for it. He also threatens to get them implicated in false case, if they disclose about his relation with Meenu to him or any one else. Since this information came to him as a shock and it involved his social respect, he told SHO it was not true but after returning from police when he inquired from his neighbourhood, he came to know that Ajay in his absence meets with his wife Meenu while going to swimming pool or at some other places. They had also seen Meenu going with Ajay on his motorcycle. On 16.5.01 when he enquired from his wife firmly she accepted her relation with Ajay and told that she had illicit relation with Ajay. He immediately informed, all the family members about these affairs, including the wife's relations. Her brothers persuaded Meenu not to spoil her life as she has a son and young daughter but she took some time to think over the matter.
22. Apart from it, Km. Akriti, who is Meenu Sharma's daughter, has stated in clear terms that her mother met Ajay on 17.5.2001, who took them to one Neelima's house. Ajay slept with her mother on one bed.
Ajay told them to go to Sarai Rohilla police station to make statement in his favour as complaint has been lodged. They went to police station and her mother gave statement. Thereafter, they went to maternal grand mother's house but her mother came back after some time and made a call from PCO. After some time, Ajay reached there on his bike and took them to Neelima's house. After some days, Ajay arranged a house for them at Jagat Puri where he used to come very often. She even saw her mother and Ajay taking bath together in one bathroom. She has also stated that they used to send her to neighbours for playing and bolt the house from inside.
23. All these statements if seen together clearly demonstrate that Ajay was having illicit relations with Mrs. Meenu Sharma W/o Shri R.S.Sharma and he even broke open the lock of G-9, Jagat Puri for lodging Smt. Meenu Sharma and her daughter. After all, what is important in this case is, that Meenu Sharma's own brothers and even daughter have stated that she was having illicit relations with Ajay. No brother would talk against the sister, unless there was some truth in it.
Moreover, from the statements of P.Ws., the link is absolutely matching how applicant got involved with Meenu Sharma, how he was living with her even though she was married to Shri R.S. Sharma. It is definitely most reprehensible and unbecoming of a police officer, who is member of a disciplined force.
24. Small deviation here or there cannot vitiate the orders so long the main allegation is proved against the delinquent. We cannot forget that in a departmental enquiry, it is on preponderance of probability that a person can be punished. In any case, in the present case, there is sufficient evidence against the applicant to prove the main charge against the applicant and Hon'ble Supreme Court has repeatedly held that so long there is some evidence, Courts should not interfere in the matter nor Courts should reappreciate the evidence in judicial review.
It is only the deficiency in decision making process which can be looked into a judicial review and not the decision itself. At this juncture, it would be relevant to quote the judgment of Hon'ble Supreme Court in the case of Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar , wherein it was held as follows: The Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case the Court would not got into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.Union of India and Ors. v. Narain Singh 2002(3) SLJ 151, it was held that once charges of a grave nature are proved, the other points are not relevant and Court cannot interfere in the quantum of penalty. It was categorically held that Court must not lightly interfere with sentences passed, after a properly conducted enquiry, where the guilt is proved. Specially, reference was made to military, paramilitary or police services where it was held that reduction of sentence would be a retrogate step so far as discipline of these services is concerned. There are any number of judgments on this point that so long there is some evidence available before the authorities, it is for them to decide as to what punishment should be given in the said circumstances. In Union of India v. Parma Nanda , it was held that Tribunal cannot interfere with the penalty if the conclusion of the Inquiry Officer or the Competent Authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. The Tribunal cannot interfere with the finding of the Inquiry Officer or Competent Authority where they are not arbitrary or utterly perverse.
25. In the instant case, after looking at the evidence which has come on record, we are satisfied that the finding given by the Inquiry Officer can neither be stated to be arbitrary nor perverse. Therefore, we cannot interfere in this case even if some statements are said to be contradictory by the applicant.
26. Counsel for the applicant had strenuously argued that since Akriti was a minor, her evidence could not have been taken into consideration.
To substantiate his argument, he had relied on the judgments referred to in Para 9. However, on perusal of those judgments, we find that even in the case of Dattu Ramrao Sakhare and Ors. v. State of Maharashtra, Hon'ble Supreme Court did not totally rule out the evidence of child witness. On the contrary, it was held that "if a child witness is found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. In other words, even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof". It was thus held that the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. It was also noted by Hon'ble Supreme Court in the above said case that the learned Trial Judge recorded his reasons and found that Sarubai was a competent witness and her evidence is unblemished. The High Court also accepted the evidence of Sarubai as reliable one. Therefore, Hon'ble Supreme Court did not disagree with the observations made by the Courts below as regards the evidence of Sarubai, the minor child.27. As far as the case of State of Bihar v. Kapil Singh, etc. is concerned, it is noticed that the facts are absolutely different inasmuch as the child therein was taken to the police station by the Investigation Officer on 19.6.1961 but she ailed to disclose the names of the thieves, whom she had seen inside the house and who had committed the murder of Rohini Kuer in her presence. It was only on 21 or 22.6.1961 i.e. after 3 days confinement in police station that police alleged the said child disclosed the names of three culprits.
Therefore naturally a doubt come in the mind of the Court because had the child known the true names or could identify the persons, she would have stated so or tried to describe them at the first instance.
Therefore, the said case was decided in the peculiar facts of that case. The Court also gave more reasons as to why her evidence could not be relied upon, therefore, that judgment does not advance the case of the applicant. In the case of Orsu Venkat Rao v. State of Andhra Pradesh also, the children were not examined at the earliest opportunity and there was evidence leading to the inference of suppression of earliest version of the child witnesses rendering entire prosecution case as vulnerable and doubtful. There was a definite finding recorded by the Court that evidence of child witness failed to inspite confidence. Therefore, that case would also not be applicable in the present case before us. Moreover, it has to be kept in mind that all the three cases as mentioned above are criminal cases where a duty is cast on the State to prove the guilt of accused beyond and shadow of doubt whereas in a departmental inquiry the rule is only preponderance of probability. Therefore, the same strict sense of evidence is not required to be proved in a departmental inquiry, as is required in a criminal case.
28. Apart from above, it is also relevant to note, that in this case, Mrs. Meenu Sharma had filed writ petition before Hon'ble High Court of Delhi seeking a direction that her daughter Akriti should not be called as a Court witness in the departmental inquiry. However, after hearing both the parties, Hon'ble High Court of Delhi was pleased to pass an order dated 26.2.2003 allowing Kr. Akriti, to appear in the DE as Court witness. However, directions were given to get the date fixed before 1.3.2003 as school of Akriti was to open on 1.3.2003 so that her studies are not hampered. The writ petition filed by Smt. Meenu Sharma bearing No. 983 of 2003 was, in fact, dismissed on 26.2.2003 by giving permission to the child to appear as witness before the departmental inquiry. Of course, the child was directed to be accompanied for the said inquiry by Mrs. Tamili Wad (Advocate), who was appointed as Local Commissioner by the Court so as to ensure that the cross examination is conducted within reasonable parameters and the child is not subjected to untrammeled questions. Therefore, in this case, the child was allowed to appear as a Court witness on the directions of Hon'ble High Court of Delhi. All this is clearly mentioned in the Inquiry Officer's report at page 69 of the paper book. Moreover, after looking at the statement given by daughter Akriti, we are satisfied that she fully understood the questions and gave statement voluntarily without any pressure from any side. She was aged 13 and is student of a convent school in Shimla, therefore, she is not a naive child. In these circumstances, it is not open to the applicant to suggest that Kr.
Akriti's statement cannot be taken into consideration by the authorities.
29. We also have to keep in mind that in this case Smt. Meenu Sharma's own brothers, her husband and daughter given almost the same facts barring few facts which were seen only by the daughter Akriti which corroborates the story and full picture has emerged out how Shri Ajay was having illicit relations with Mrs. Meenu Sharma and was even staying with her in G-9 Jagatpuri after breaking the lock of the said house. It is definitely a grave misconduct as it involves moral turpitude and we see no reason as to why Mrs. Meenu Sharma's own brothers, husband and daughter, all would speak against her. Moreover, no justification has been given by Mrs. Meenu Sharma in her statement to show as to why all these persons would speak against her. Therefore, the Inquiry Officer as well as the authorities have rightly taken into consideration the statement made by Kr. Akriti which has totally exposed her mother's relationship with Ajay Kumar i.e. the applicant herein and the statement of Reema Suri, who is absolutely an independent witness who has narrated how Ajay Kumar had brought another lady and child and lived in G-9 Jagat Puri even though one Veena Singh claimed to be his real wife.
30. In view of above, the contention of Counsel for applicant that (sic) statement could not have been taken into consideration is without any merit. The same is accordingly rejected.
31. The last point raised by the Counsel for applicant was regarding double jeopardy. Once again, we find no force even in this contention because earlier when reports were given by the brothers of Meenu Sharma or her husband, the reports were given by the officers on the basis of statement made by Mrs. Meenu Sharma, who had stated that she had left her matrimonial home on her own and Ajay Kumar had no role in it but at that stage no thorough inquiry was done in the whole matter whereas now a proper inquiry was initiated where evidence came on record to prove the involvement of applicant with Mrs. Meenu Sharma on the basis of which he has been given the punishment, therefore, the contention is rejected.
32. We are also satisfied that as far as possible, full opportunity was given to the applicant to defend himself in the inquiry, which is evident from the fact that initially applicant was not even participating in the inquiry and orders were already passed to proceed ex parte but still when applicant appeared before the Inquiry Officer and demanded the documents, Inquiry Officer allowed him to join the inquiry. He was given the opportunity to cross examine all the witnesses except Smt. Reema Suri but that was not possible because she refused to attend the inquiry despite service of summons on 7-8 times.
Therefore, it was in those circumstances that as per Rule 16(3) of the Delhi Police (Punishment and Appeal) Rules, 1980, her statement which was duly signed by her and counter signed by Inspector Pratima Sharma Singh was taken on record. This procedure is very much in accordance with the rules, therefore, we find no illegality in the procedure adopted by the respondents.
33. In view of above, we find no good ground to interfere in this case.
The same is accordingly dismissed. No order as to costs.