REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4213 OF 2011
[Arising out of SLP (C) No. 13331 of 2010]
Commissioner of Police, Delhi & Ors. .... Appellants
Versus
Jai Bhagwan ....Respondent
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated
20.01.2010 passed by the High Court of Delhi in Civil Writ
Petition No. 3591 of 2001, whereby the High Court allowed
the Writ Petition filed by the respondent herein and set aside
the order dated 15.01.2001 passed by the Central
Administrative Tribunal.
3. The facts leading to the filing of the present case are that the
respondent herein, at the relevant point of time, was working
as a Constable in Delhi Police and was posted at the IGI
airport, New Delhi at the X-Ray Machine Belt. An allegation
was made by one Mrs. Ranjana Kapoor that while being so
posted there the respondent extorted Rs. 100/- by way of
illegal gratification from her during the course of security
check of passengers. It is alleged that Mrs. Kapoor made a
complaint to one S.P. Narang, Operations Officer of Air
France who took the complainant to O.P. Yadav, Inspector,
Delhi Police on duty at the Delhi Airport. It is also alleged
that the complainant identified the respondent, who
thereupon returned the aforesaid sum of Rs. 100/- to the
complainant in the presence of O.P. Yadav, Inspector, and
Arjun Singh, Sub-Inspector, who were also present at that
time.
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4. In view of the aforesaid allegations made against the
respondent, a departmental enquiry was initiated against
him and a chargesheet was drawn up with a charge to the
following effect: –
“Charge:
You, Ct. Jai Bhagwan No. 770/A are hereby charged that
on the night intervening 6/7.3.95 while performing duty on
Belt at X-Ray machine at gate No. 7, 8 and 9 in Shift A.
NITC had extorted Rs. 100/- as an illegal gratification from
Mrs. Ranjana Kapoor during the course of Security Check of
passengers of flight No. AF-177. She made a complaint of
this incident to Shri P.S. Narang Operations Officer of Air
France, who introduced her to Shri O.P. Yadav Inspr. She
handed over a complaint to the Inspector and identified
you, Ct. Jai Bhagwan No. 770/A as you had accepted Rs.
100/- from her which was later on returned to her by you in
the presence of Inspr. O.P. Yadav and SI Arjun Singh.
The above act on the part of you, Ct. Jai Bhagwan No.
770/A amounts to gross misconduct and unbecoming of a
police officer which renders you liable to be punished Under
Section 21 of D.P. Act, 1978.”
5. Pursuant to the initiation of the aforesaid enquiry, an
enquiry officer was appointed, who examined four witnesses
produced on behalf of the appellants. Two witnesses were
also produced on behalf of the respondent. After recording
evidence and after appreciating the said evidence as also the
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written defence statement of the respondent a report was
submitted by the enquiry officer finding the respondent guilty
of the charge drawn up against him.
6. With the aforesaid records and the findings, matter was
placed before the disciplinary authority who directed that any
representation as against the findings recorded by the
enquiry officer could be submitted by the respondent.
Pursuant to the same, the respondent submitted a detailed
representation on 30.10.1995. The disciplinary authority
after going through the entire records passed an order dated
15.11.1995 dismissing the respondent from service. It was
stated in the said order passed by the disciplinary authority
that after considering the evidence on record, gravity of
misconduct and overall facts / circumstances of the case it is
proved that the respondent misused his official position and
involved himself in corrupt practices / malpractices of illegal
gratification and, therefore, he is not a fit person to be
retained in the police force, consequent upon which the
punishment of dismissal was awarded to the respondent.
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7. Being aggrieved by the aforesaid order passed by the
disciplinary authority the respondent filed an appeal before
the appellate authority which was also dismissed vide its
order dated 19.01.1996. Consequently, the respondent filed a
revision which also came to be dismissed. Feeling still
aggrieved the respondent filed an original application before
the Central Administrative Tribunal [for short “the Tribunal”]
which was registered as OA No. 1755/1997. By order dated
15.01.2001 the Tribunal dismissed the aforesaid original
application as against which the respondent filed a Writ
Petition in the High Court of Delhi. By the impugned
judgment and order passed on 20.01.2010 the High Court
allowed the Writ Petition filed by the respondent. In the
aforesaid judgment and order the High Court made following
observations: –
“4. Undoubtedly, the charges of misuse of
position and extortion are very serious charges.
However, before a person is fastened with the
punitive liability of charges of corruption /
extortion, a proper inquiry, following the
principles of natural justice has to be conducted.
5. It is well settled that the High Court or the
Central Administrative Tribunal will not interfere
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with the findings of fact recorded at the domestic
enquiry, however, if the case is a case of no
evidence or the finding is highly perverse or
improbable then it is the duty of the High Court
and the Central Administrative Tribunal to go
into the merits of the case……”
And while referring to the decision in the case of Kuldeep Singh
v. Commissioner of Police reported in AIR 1999 SC 677 the
High Court held that the case of the appellants herein is a case
of no evidence and that there is violation of Rule 16 (iii) of the
Delhi Police (F &A) Rules, 1980 (for short “the Rules”) and
ordered the reinstatement of respondent in service but without
any back wages.
8. As against that order of the High Court appellants have filed
the present appeal, in which, notice was issued and upon
service of the said notice, the respondent entered appearance
and, therefore, we heard the learned counsel appearing for
the parties and also perused the materials on record.
9. The learned counsel appearing for the appellants submitted
that there was enough evidence on record to find the
respondent guilty of the charge against him. In support of the
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said contention reference was made to the decision of the
disciplinary authority as also to the findings of the enquiry
officer. It was also submitted that Inspector, O.P. Yadav and
S.I. Arjun Singh stated in clear terms that they had seen the
respondent returning the aforesaid amount of Rs. 100/- to
the complainant. It was also submitted that there was no
violation of Rule 16(iii) in the present case and, therefore,
High Court was not justified in setting aside the order of
dismissal passed against the respondent.
10.The learned counsel appearing for the respondent, however,
while refuting the aforesaid contentions submitted that the
Mrs. Ranjana Kapoor, complainant of the case, was not
examined as witness in the departmental enquiry and,
therefore, there was no opportunity to cross-examine her
and, therefore, there is a violation of Rule 16(iii) of the Rules.
It was also submitted that so far as the receiving of illegal
gratification by the respondent is concerned, the case of the
appellants is a case of no evidence at all. In this regard
support was also taken by the counsel appearing on behalf of
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the respondent from the statements of the Nirmala Devi [DW-
1].
11.In the light of the aforesaid submissions we have perused
the records. The complainant Mrs. Ranjana Kapoor
complained about the said incident to P.S. Narang,
Operations Officer of Air France, who took the complainant to
O.P. Yadav, Inspector, Delhi Police on duty at the Delhi
Airport and there she lodged the complaint to Inspector-O.P.
Yadav that the respondent has extorted illegal gratification
from her amounting Rs. 100/- during the course of security
check of passengers. The records disclose that thereupon
Inspector-O.P. Yadav along with complainant and P.S.
Narang went to the place of the security check where, it is
stated that, the respondent gave Rs. 100/- to the
complainant in the presence of Arjun Singh, S.I..
12.O.P. Yadav, Inspector, and Arjun Singh, S.I., during the
departmental enquiry proceedings have only deposed that
Rs. 100/- was returned by the respondent to the
complainant. During the course of enquiry proceedings no
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witness was examined on behalf of the appellants to prove
and establish by tendering any direct, cogent and reliable
evidence that the aforesaid amount of Rs. 100/- was received
by the respondent by way of illegal gratification from anyone.
13.In the present case the strange thing is that the two persons,
namely, O.P. Yadav and Arjun singh, on the basis of whose
statement present case was initiated, have stated that they
have not witnessed/seen respondent taking any money from
the complainant and that they have only witnessed the fact
of respondent returning money to the complainant. Even
otherwise, besides these two persons, there must have been
many other persons including police officers on duty near
about the X-Ray machine belt but none of them was cited
and examined as witness during the departmental
proceedings to prove and establish that such money as
alleged was received by the respondent as illegal gratification.
The place where security check was carried out was an open
place and there must have been many other persons, besides
police officers, present at that time but none of them has
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been examined during the departmental proceedings against
the respondent to prove the alleged fact of demanding and
receiving illegal gratification by him.
14.In the present case, although there is some evidence that an
amount of Rs. 100/- was returned by the respondent to the
complainant but there is no such direct and reliable evidence
produced by the appellants in the departmental proceedings
which clearly prove and establish that the respondent
demanded and received an illegal gratification of the said
denomination. It seems that the proof of taking such illegal
gratification has been drawn from the evidence of returning
of Rs. 100/- to the complainant by way of a link up.
15.It also seems quite impracticable to presume that in the
presence of so many passengers, the respondent could have
extorted money. The allegation of receiving Rs. 100/- as
illegal gratification is framed on suspicions and possibilities
while trying to link it up with the instance of returning back
of Rs. 100/- by the respondent to the complainant.
There are many other shortcomings in the entire
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investigation and the enquiry like the statement of Mrs.
Ranjana Kapoor was not recorded by the Inspector and the
Inspector also did not take down in writing and also attest
the complaint made by her. The statement of S.P. Narang
was also not recorded by the Inspector nor did the Inspector
seize Rs. 100/- note nor noted down its number. Mr. Narang
was also not examined during the course of departmental
proceedings. Non-examination of the complainant and P.S.
Narang during the departmental proceeding has denied the
respondent of his right of cross-examination and thus caused
violation of Rule 16 (iii) of the Delhi Police (F & A) Rules,
1980.
16.In the absence of such a definite/clear proof supporting the
case of the appellants it is difficult to draw a finding of taking
illegal gratification by the respondent from the complainant.
Therefore, as rightly held by the High Court the present case
is a case of no evidence.
17.Therefore, in view of the facts and circumstances of the
present case at hand we have no hesitation to hold that the
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view taken by the High Court does not suffer from any
infirmity and that the present is a case of no evidence and
that there is a violation of Rule 16 (iii) of the Delhi Police (F
&A) Rules, 1980.
18.Albeit there could be a needle of suspicion pointed towards
the respondent. However, suspicion cannot take the place of
proof and, therefore, we find no merit in this appeal which is
hereby dismissed.
19.However, in the facts and circumstances of this case we not
only reiterate the order passed by the High Court that the
respondent on reinstatement would not be paid any back-
wages or arrears of wages for the period during which he was
out of service but we also observe that he would not be given
any sensitive posting and he shall be kept under watch.
……………………………….
……J
[Dr. Mukundakam
Sharma ]
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……………………………………..J
[ Anil R. Dave ]
New Delhi,
May 10, 2011.
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