ORDER
V.K. Agnihotri, Member (A)
1. In this OA the applicant has challenged the order of the Disciplinary Authority dated 24.12.2004 (Annexure A-1) by which a penalty of forfeiture of 5 years of approved service permanently, resulting in reduction in pay by 5 stages, was imposed on him. He has further challenged the order of the Appellate Authority dated 04.04.2005 (Annexure A-2), whereby the aforesaid penalty was modified to forfeiture of two years of approved service permanently. The applicant has also sought quashing and setting aside the Findings of the Enquiry Officer communicated vide letter dated 13.10.2004 (Annexure A-3), with all consequential benefits.
2. The brief facts of the case are that the applicant while working as Constable in the Office of Deputy Commissioner of Police, 3rd Battalion, DAP, Vikaspuri, was placed under suspension along with three others on the allegation that they had indulged in corrupt activities in connivance with UTP Ranbir Kumar Singh. A primary inquiry was conducted under Rule 15(1) of the Delhi Police (Punishment and Appeal) Rules, 1980 and accordingly it was recommended to conduct regular departmental proceeding against the applicant as well as others. An Enquiry Officer was appointed. The allegation against the applicant was that a complaint was given on 13.04.2004 by UTP Ranbir Kumar Singh, a doctor at RML Hospital, stating that the applicant had charged Rs. 700/- from him for keeping him in the special Kharja and permitting him to meet his relatives etc. When this matter was brought to the notice of Inspr. Pyar Singh, he directed SI J.P. Singh to look into the matter. Upon questioning, the applicant confessed to having taken the money. He was, therefore, directed to return it. The applicant stated that he had distributed the money among Warrant Munishis HC M.A. Khan, Const. Narender and HC Ranbir Singh. He then collected the money back from these persons and returned it, which was received through a Seizure Memo in the presence of Inspr. Pyar Singh. The Enquiry Officer (EO), after completing the DE proceedings, submitted his Findings concluding that the charge leveled against the applicant and others stood proved. Tentatively agreeing with the findings of the Enquiry Officer, a copy of EO’s findings was served upon the applicant and others for making their representation, vide letter dated 13.10.2004. The delinquents submitted their representation against the finding of the EO on 25.10.2004. They were also heard in O.R. on 08.11.2004. On their representation during O.R., they were supplied a copy of the complaint along with the cross-examination of the complainant by Ravi Dutt, ACP and asked to submit their supplementary written defence, if any. The delinquent accordingly filed a joint supplementary defence statement on 22.11.2004. The delinquents were again given an opportunity to inspect the original documents in the D.E. file, vide U.O. dated 01.12.2004. The Disciplinary Authority passed the final order dated 24.12.2004 (supra) in respect of the applicant forfeiting 5 years of approved service permanently, thus reducing his pay by five stages. The applicant then filed an appeal on 10.01.2005, which was considered by the Appellate Authority. Vide order dated 04.04.2005, the Appellate Authority reduced the punishment of forfeiture of 5 years of approved service permanently to that of forfeiture of two years of approved service permanently. On a similar appeal filed by Const. Narender, the punishment of forfeiture of 5 years of approved service permanently was reduced to forfeiture of three years of approved service temporarily for a period of 3 years. Aggrieved by the order of the Appellate Authority the applicant has filed the present OA.
3. In course of the personal hearing in O.R. on 08.11.2004 a plea was taken that a copy of the cross-examination of the complainant (UTP Ranbir Kumar Singh) recorded by Sh. Ravi Dutt, ACP had not been given to the applicant by the Enquiry Officer. Thereupon, in terms of a provision of Rule 16(x) of the Rules ibid., the complete statement of the complainant, along with the cross-examination recorded by Sh. Ravi Dutt, ACP, was supplied to the applicant vide letter dated 18.11.2004. In their supplementary defence dated 22.11.2004, the applicant and other co-delinquents took the plea that the interpretation of Rule 16(x) in letter dated 18.11.2004 was not correct. In fact, the manner in which the document was later served on the applicant was an arbitrary attempt to fill the gaps in the evidence. In the very beginning they had requested for the original of UTP Ranbir Kumar Singh’s complaint. The applicants believed that no such complaint ever existed in original and the photocopy later produced was a doctored document. Therefore, the prosecution, right from the beginning could not come up with the original complaint which, reportedly, the complainant had made. Although this point had been raised in the written defence statement but the letter communicating the full text issued later did not assign any cogent reason as to why only the photocopy had been supplied and why the request of the delinquents to see the original had not been acceded to. The delinquents, in between, were heard in the O.R. too. Therefore, it was no stage for supplying the document asked for just to fill the gap in evidence. It was further averred that no witness had identified the signature of UTP Ranbir Kumar Singh on the document. Prosecution could not produce UTP Ranbir Kumar Singh, whose address stood verified and he attended the court on the given dates in the cases pending trial against him. It clearly showed that prosecution was least interested to produce him. In fact the prosecution wanted to use his so called complaint as his version illegally and in an illegitimate manner. That also amounted to violation of Rule 16(iii) of the Rules ibid. because his case did not fall within the purview of that rule. UTP Ranbir Kumar Singh’s signature was not obtained after the questions and answers recorded at the back of the compliant. Even Ravi Dutt, ACP did not attest it, which was the statutory requirement of Rule 16(iii). The rule clearly states that, “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 produced without undue delay, inconvenience or expenses 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 complaint was neither signed by the person who reportedly made the complaint nor was it attested by the officer who had recorded it. It, therefore, does not fall in the category of the documents it has been produced for under Rule 16(iii) of the Rules ibid.
4. The applicant has further taken the plea that UTP Ranbir Kumar Singh had alleged in his complaint that a constable (whose name he did not know) demanded money from him and he also told that in case of refusal he will be kept in local Kharja. He has further taken a plea that on the complaint dated 13.04.2004 the words “which I have paid” have not been compared with the handwriting of the complainant and this should be verified. On 13.04.2004 I/C N.D. Lock-up and 2nd I/C Lock-up were present on duty but when the UTP identified him, nobody inscribed his signature. He has also taken a plea that the statement of DW 4 may again be considered. He further alleged that in the recovery memo 2nd I/C Lock-up wrote that the money had been given by Const. Narender, but in his report he had written that Const. Ravi Kumar had paid the money. During enquiry I/C N.D. Lock-up had informed that he had not seen the recovered money as the same had been produced by 2nd I/C Lock-up in a sealed cover.
5. Thus the main line of argument taken by the applicant is that UTP Ranbir Kumar Singh, on whose complaint the disciplinary proceedings were initiated and who was also cited as a witness in the list of witnesses, served along with Charge Memo, was not produced during the enquiry for cross-examination, and the unauthenticated complaint of UTP Ranbir Kumar Singh was taken on record in the disciplinary proceedings. Even the complete copy of the complaint was not initially supplied to the applicant. The applicant has cited the judgment of the High Court of Kerala in Gopinathan Nair v. State to argue that finding a person guilty on the strength of evidence recorded behind his back violates the principles of natural justice.
6. The applicant has further argued that in the “Discussion of Evidence” the Enquiry Officer has not evaluated the evidence of defence witnesses.
7. Finally, the applicant has stated that the orders of the Disciplinary/Appellate Authority are discriminatory insofar as although initially the applicant and Const. Narender were awarded the punishment of forfeiture of 5 years of approved service permanently, reducing their pay by five stages, the Appellate Authority reduced the applicant’s punishment to forfeiture of two years of approved service permanently, whereas in respect of Const. Narender, the punishment was reduced to three years of approved service temporarily for a period of three years.
8. The respondents have stated that a complaint was received on 13.04.2004 from UTP Ranbir Kumar Singh, a doctor of RML Hospital, who was lodged in Jail No. 4 Central Jail Tihar and involved in a case, FIR No. 34/04 Under Section 420/406 IPC, P.S. Mandir Marg, alleging therein that Const. Ravi Kumar (identified by the UTP), who took him to the Court of Sh. Sanjeev Jain, MM, for production on 12.04.2004, had charged Rs. 700/- from him for keeping him in the special Kharja and permitting him to meet his relatives etc. The matter was brought to the notice of Inspr. Pyar Singh, who was working as I/C N.D. Lock-up, directed SI J.P. Singh to look into the matter. SI J.P. Singh called Const. Ravi Kumar (applicant herein) and questioned him about the complaint. The applicant confessed to having taken the money. He was, therefore, directed to return the money. The applicant stated that he had distributed the money amongst HC Ranbir Singh, HC M.A. Khan, and Const. Narender. Hence, he had to get the money back from them. Later on, the applicant returned the money after collecting it back and it was taken possession of through a Seizure Memo in the presence of Inspr. Pyar Singh. Sh. Ravi Dutt, ACP conducted the preliminary enquiry and submitted his report.
9. On perusal of P.E. the Joint C.P./AP, Delhi accorded his approval for initiating a regular DE against all the delinquents under the provision of Rule 15(2) of the Rules ibid. An E.O. was appointed, who submitted his Report, which was served on the delinquents vide U.O. dated 13.10.2004. The delinquents, including the applicant, submitted their representation against the finding of the E.O. on 25.10.2004. During their personal hearing in O.R. on 08.11.2004 all of them took the plea that a copy of the cross-examination of the complainant, done by Sh. Ravi Dutt, ACP, had not been given to them by the Enquiry Officer for defence. It was found after the scrutiny of D.E. file that Ravi Dutt, ACP during the preliminary enquiry, had recorded the question/answers put to UTP Ranbir Kumar Singh on the back side of the photocopy of complaint, instead of on the original complaint. The photocopy of the same was supplied to the E.O. but the E.O. did not serve the copy of the same on the delinquents for submitting their defence statement. To meet the ends of justice and under the provision of Rule 16(x) of the Rules ibid. the photocopy of the same was served on the delinquents on 19.11.2004 vide U.O. dated 18.11.2004 with the direction to submit their supplementary written defence statement, if any, to the Disciplinary Authority, within 3 days from the date of its receipt, failing which it will be presumed that they had nothing to say in their defence and the matter would be decided ex parte on merits. As per Rule 16(x) of the Rules ibid., “On receipt of the Enquiry Officer’s report the Disciplinary Authority shall consider the record of the enquiry and pass his orders on the enquiry on each charge. If in the opinion of the Disciplinary Authority, some important evidence having a bearing on the charge has not been recorded or brought on the file he may record the evidence himself or send back the enquiry to the same or some other enquiry officer, according to the circumstances of the case for such evidence to be duly recorded. In such an event, at the end of such supplementary enquiry, the accused officer shall again be given an opportunity to lead further defence, if he so desires, and to submit a supplementary statement, which he may wish to make.” Accordingly the delinquents were given an opportunity to submit their supplementary defence statement. There was no violation of Rule 16(x) of the Rules ibid. in this case. It is a fact that, before calling for the supplementary defence statement, they had appeared in the O.R. but the final order of departmental enquiry had not been issued. UTP Ranbir Kumar Singh did not attend the D.E. proceedings despite service of repeated summons by the E.O. and it appears that he was not willing to joint the D.E. proceedings. Hence he was dropped under the provision of Rule 16(iii) of the Rules ibid. by the E.O. and there was no violation of Rules in this regard too. In the case of Jai Parkash and Anr. v. Lt. Governor, through Commissioner of Police, Delhi 1994 (7) SLR CAT New Delhi 796, during departmental enquiry against a constable of Police, for receiving of illegal gratification from a truck driver, the truck driver himself was not produced before the Enquiry Officer but his statement was brought on record under Rule 16(iii) of the Delhi Police (Punishment & Appeal) Rules, 1980, and it was corroborated by other evidence on record and copy of statement of the driver was given to the delinquent. This procedure was held to be valid. Upon scrutiny of D.E. file it was revealed that the original complaint of UTP Ranbir Kumar Singh dated 13.04.2004 was available in the D.E. file and also exhibited as PW-I/C by the E.O. on 12.07.2004. It was also revealed that the relevant original document on which Ravi Dutt, ACP, during the preliminary enquiry, had recorded the questions put to UTP Ranbir Kumar Singh and his answers, on the backside of the photocopy of complaint, which was also available in the official file and the photocopy of the same was annexed in the misc. D.E. documents file of the E.O. at page No. 11, which was signed by UTP Ranbir Kumar Singh on 15.04.2004 at the end of the questions & answers and the same was duly attested by Ravi Dutt, ACP. The delinquents were again directed vide U.O. dated 01.12.2004, that if they consider it necessary, they may inspect the original documents in the D.E. file. They may file again their supplementary written defence statement, if any, before the Disciplinary Authority, within 7 days from the date of its receipt, failing which it would be presumed that they had nothing to say in their defence and the matter would be decided ex parte on merits.
10. The respondents have further averred that it is not correct to allege that Enquiry Officer had reached his conclusions on the basis of his belief and not on the basis of evidence available on file. While arriving at his findings, the Enquiry Officer had discussed the reasons behind his findings which have been recorded under the heading “Discussion of Evidence” and, therefore, the Disciplinary Authority did not find any violation of any principle of natural justice/rules/laws. The other plea that the Enquiry Officer has taken extraneous material into consideration is also not true. As per Seizure Memo the money was handed over to SI J.P. Singh by Const. Narender in the presence of Const. Ravi Kumar and both of them have signed the Seizure Memo. In this regard, the delinquents have produced evidence in the form of statement of DW-3, Const. Balbir Singh, that SI J.P. Singh had taken the signatures of the delinquents on blank paper and thereafter he had converted it into Seizure Memo on the pretext that he was sending Kalandra against the UTP Ranbir Kumar Singh. The Disciplinary Authority has observed that if we examine the Seizure Memo minutely, we find that it has been written in a regular flow without spreading/squeezing the words/lines to adjust the wording within the signatures and, therefore, the statement of DW-3 Const. Balbir Singh, does not inspire confidence. The other point raised by the delinquents to frame separate charge on their individual roles, there seemed to be no need for it, particularly when they were involved in one misconduct jointly. The role of the applicant and Const. Narender has been clearly depicted in the statements of PWs and also through Seizure Memo of taking the alleged money of Rs. 700/- into possession. However, there is hardly any evidence against HC M.A. Khan and HC Ranbir Singh, who had allegedly shared the money taken by the applicant from the UTP Ranbir Kumar Singh. The delinquents have tried to give a different colour to the alleged recovery of the amount of Rs. 700/-, as if the same was recovered by the applicant during personal search of UTP Ranbir Kumar Singh and that money was handed over by the applicant to SI J.P. Singh. It has also been alleged by them that SI J.P. Singh was keeping some UTPs in a Special Kharja/High Risk Kharja without any order and without making any D.D. entry in this regard allegedly for some ulterior motives. There is evidence, which shows that UTP Ranbir Kumar Singh was also kept in the special kharja/High risk kharja even prior to the date of the incident. On the date of the incident, SI J.P. Singh had reportedly informed Inspr. Pyar Singh, the then I/C Lock-up, that some of the UTPs were harassing the UTP Ranbir Kumar Singh, who was a doctor in RML Hospital and Inspr. Pyar Singh had directed SI J.P. Singh to lodge him in the High Risk Kharja/Special Kharja and no DD entry was made in that regard. The statement and cross-examination given by Inspr. Pyar Singh, the then I/C Lock-up, clarifies the position in this regard that no DD entry in such matters was being recorded and it was being done under discretion of 2nd I/C Lock-up and I/C Lock-up. Since, this has been the practice, making any allegation against 2nd I/C or I/C Lock-up on this count may not be appropriate. As regards, giving wrong identity of a doctor of Ram Manohar Lohia Hospital, although there is nothing on record, it is possible that the UTP himself might have misled SI J.P. Singh in the matter to get some favour on account of being a doctor in a Government Hospital. Even otherwise, if he had not misled and disclosed wrong identity and if SI J.P. Singh, 2nd I/C Lock-up had been interested to provide any special favour to any UTP with regard to lodging him in Special Kharja/High Risk Kharja, it should not have been difficult for him to do so himself or by making a case to seek any such orders from the then I/C Lock-up and, therefore, the Disciplinary Authority was not in agreement with the allegations made by the delinquents in this regard. SI J.P. Singh, 2nd I/C Lock-up, has clarified that High Risk Prisoners, as classified by Jail Authorities or specially ordered by any judicial officer, are kept in a special kharja/High Risk Kharja but it does not bar 2nd I/C Lock-up to use his discretion to lodge any particular UTP in that Special Kharja, if he feels that the safety and security of the UTP is in danger, if he is kept in ordinary Kharja/cabin. The only favourable point raised by the applicant is that if he was not competent to keep the UTP Ranbir Kumar Singh in any Kharja/cabin, then why should the complainant give him Rs. 700/- as bribe to favour him. The only explanation on this aspect comes from the report of SI J.P. Singh, which points out that since the applicant was aware that some under trial prisoners, who are not classified as High Risk Prisoners by Jail Authorities or ordered by any court to keep them in High risk kharja/Special Kharja, were being lodged without proper authority, perhaps he wanted to exploit that ambiguity and threatened the UTP to debar him from that facility. The Disciplinary Authority has observed that if we presume for a moment that 2nd I/C Lock-up and I/C Lock-up were not authorized to keep any UTP under their discretion in a Special Kharja/High Risk Kharja and they were doing so for certain ulterior motives and the alleged recovery of Rs. 700/- was made by the applicant during the personal search of UTP Ranbir Kumar Singh and that the amount was handed over by the delinquents to SI J.P. Singh informing him that the UTP had alleged that this money he had brought to pay to SI J.P. Singh, and SI J.P. Singh had got annoyed on that account and fabricated a different story by pressurizing the UTP to make a false complaint against the delinquents and treat the evidence of DW-1, 2 & 4 to be true, who have supported the story of the applicant, and further if we accept the subsequent two letters written by UTP Ranbir Kumar Singh about withdrawing his complaint against the applicant, we find that while making such applications for withdrawing his complaint, he has not mentioned that he was pressurized by SI J.P. Singh to make the complaint. If that was not so, then there appears to be no reason as to why he had withdrawn his complaint unless he had been approached by the delinquents to save their skin form departmental action against them. Since, the complainant, UTP Ranbir Kumar Singh, did not give any evidence in the departmental enquiry and did not disclose the true facts to bring the truth on surface, he did not appear to be a man of high values and, therefore, the Disciplinary Authority did not find any reason to accept his applications and to allow him to withdraw his complaint against the delinquents.
11. The respondents have further stated that the crucial evidence in support of the delinquents, in the form of statement of DW 1, 2 & 4, was examined by the Disciplinary Authority to reach some just conclusions. It is a known fact that normally the DWs are those, who normally favour the defence evidence and protect the interest of the delinquents. It is not difficult to persuade a fellow Head Constable/Constable to give that type of statement on a personal requests of a group of delinquents by instigating the feeling of rank fellowship. There are also chances of groupism which normally exists at such work places and these groups formed at such places work for the welfare and safety of each other and at times they make the work of the supervisory officer, who is responsible to take work from them, difficult. Such groups become very powerful pressure groups and normally the supervisory officer hesitates to touch the individuals of such powerful groups. While assessing the evidence of DWs, all these aspects have to be kept in view. As against the evidence and allegation made by the applicant and other delinquents, duly supported by defence witnesses, there is strong evidence in the form of Seizure Memo, and in the form of statements of PW-1 & 3 i.e. SI J.P. Singh and Inspr. Pyar Singh, the then 2nd I/C and I/C Lock-Up. Since PW-2, Inspr. Pyar Singh, was temporarily looking after the work of I/C Lock-up, he did not have vested interest in any group/individual and his statement needs to be given greater credence as compared to the statements of other witnesses/DWs. The other important point which needs to be considered is that if the applicant had actually recovered Rs. 700/- from the personal search of UTP Ranbir Kumar Singh and he had handed over this money to SI J.P. Singh as alleged, then how did this money come back again to the delinquents. If his version is taken to be true then it was a very good work and the applicant should have brought this good work to the notice of I/C Lock-up and other senior officers because the allegation was made against SI J.P. Singh, 2nd I/C Lock-up then why should the applicant hand over that money to SI J.P. Singh and not to I/C Lock-up Inspr. Pyar Singh. Moreover, when no action was taken at his instance of handing over Rs. 700/- to SI J.P. Singh, why did he not insist on action against the UTP Ranbir Kumar Singh on 12.04.2004 itself and kept waiting till 15.04.2004 when he sent a fax message? Why did he not inform senior officers, i.e. Inspectors, ACP or DCP Bn. about it? This makes the position quite clear that the applicant and Const. Narender have concocted a story to protect themselves from departmental action. In the process, they got support from various factors, which were difficult to rebut by SI J.P. Singh, 2nd I/C Lock-up.
12. The respondents have admitted that it would be unfair if it is not pointed out that there are contradictions in the statement of PW-1 & 2, i.e. SI J.P. Singh and Inspr. Pyar Singh. There is also a dispute about recovery of Rs. 700/-, as there is a statement which shows that the amount of Rs. 700/- was presented/given/handed over by Const. Ravi Kumar at one place and at another place, i.e. in Seizure Memo, it has been shown to have been handed over by Const. Narender in the presence of Const. Ravi Kumar. There is also evidence that PW-2, i.e. Inspr. Pyar Singh, has not actually seen the recovered amount but has signed the Seizure Memo, having trust in the S.I. While these contradictions cannot be totally ignored, we cannot ignore the most crucial evidence of PW-3, i.e. Ravi Dutt, ACP who had met the complainant at Central Jail soon after the incident when SI J.P. Singh or Inspr. Pyar Singh were not present. He recorded the cross-examination of the complainant about the incident and on enquiry, the allegation against the applicant was found correct. Relying on this evidence, the Disciplinary Authority was inclined not to give much importance to the contradictions existing in the statements/Seizure Memo about the recovery of alleged bribe money of Rs. 700/-. As regards the plea taken by the applicant in his supplementary defence statement about addition/alteration in the statement of the UTP, his plea is not tenable as the visual inspection of the complaint makes it clear that it was written by the UTP himself in his own hand writing and since it was in the custody of Ravi Dutt, ACP, there is no reason to suspect the Enquiry Officer in this regard. The money was demanded and accepted by delinquents, i.e. the applicant, and Const. Narender did not demand but shared the bribe money and there is sufficient evidence against him as well. Weighing the evidence in support and against the charge, the Disciplinary Authority found more evidence in support of the charge. In view of the aforesaid discussion, the Disciplinary Authority opined that the two delinquent constables are guilty of the charge. Accordingly, the Disciplinary Authority ordered forfeiture of five years of approved service permanently, making reduction in the pay by five stages, both in respect of applicant and Const. Narender. They were re-instated in service with immediate effect and their suspension period was decided as period ‘not spent on duty’ for all intents and purposes. As regards HC M.A. Khan and HC Ranbir Singh, although there was some evidence that they had also shared the booty, but there was no clinching evidence to hold them guilty of the charge due to absence of sufficient evidence against them. The Disciplinary Authority decided to give them the benefit of doubt and exonerate them from the charge. They were also re-instated in service. Their suspension period was decided as period ‘spent on duty’ for all intents and purposes.
13. In his rejoinder, the applicant has reiterated the stand taken by him in the O.A.
14. In the course of the arguments, the learned Counsel for the applicant has laid stress on the fact that while the complainant’s statement was taken on record, he was not produced for cross-examination. Even his complete statement, including his cross-examination by Ravi Dutt, ACP, was supplied to the applicant after his personal hearing in O.R. He pointed out several contradictions in the evidence of PWs, such as that while PW-1 stated that the money was given to the applicant in the presence of PW-2, PW-2 himself has stated that he was informed about it by SI J.P. Singh, to make it a case of ‘no evidence’. He further argued that to take the complainant’s statement on record, in violation of Rule 16(iii) of the Rules ibid, was inappropriate since none of the conditions prescribed therein were satisfied. The learned Counsel for the applicant cited the judgment of the Hon’ble Supreme Court in Union of India v. T.R. Varma 1958 SCR 499 to argue that the principles of natural justice enjoin that the evidence of the opponent should be taken in the presence of the delinquent and that he should be given an opportunity to cross-examination the witnesses. He further argued that even if the complainant was not available, if the complete document was made available to the applicant, he would have been able to cross-examine Ravi Dutt, ACP more effectively. The learned Counsel for the applicant highlighted the fact that the Report of Inquiry Officer did not evaluated the evidence of the DWs. In this context, he drew attention to the judgment of the Hon’ble Supreme Court in Anil Kumar v. Presiding Officer and Ors. , wherein it was held that where the Enquiry Officer, save setting out the names of the witnesses, did not discuss the evidence and merely recorded his ipse dixit that the charges were proved and did not assign a single reason why the evidence produced by the delinquent did not appeal to him or was considered not credit-worthy, the order of termination of service based on such proceedings was liable to be set aside. He also cited the judgment of the Hon’ble Supreme Court in Mahabir Prasad Santosh Kumar v. State of UP and Ors. to argue that orders affecting rights of citizen are quasi-judicial in nature and therefore, must be speaking one. The orders of the Disciplinary Authority and the Appellate Authority do not pass this crucial test. The learned Counsel further pointed out that in the Seizure Memo it has been stated that the money taken from the complainant was returned by Const. Narender, but a lesser punishment has been meted out to him. The learned Counsel supplied a copy of the joint reply filed by the applicant upon his being supplied a copy of the complete copy of the complaint. In that reply, the applicant had cited the decision of the Hon’ble Supreme Court in Kuldeep Singh v. The Commissioner of Police and Ors. JT 1998 (8) SC 603, wherein it was held that the power of judicial review in domestic enquiry can be exercised if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man.
15. The learned Counsel for the respondent, in his reply, emphasized that the factum of money changing hands has not been denied or rebutted. If the money was not collected, then why was it returned, he wondered. If it is argued that the UTP Ranbir Kumar Singh gave the complaint under pressure from SI J.P. Singh, why was SI J.P. Singh (PW-1) not cross-examined on this point. As regards non-appearance of the complainant for examination/cross-examination, he did not turn up in spite of the best efforts of the respondents. Spending more time and effort to produce him would have delayed the enquiry proceedings. In this context, the learned Counsel for the respondents cited the order of this Tribunal in Jai Prakash and Anr. v. Lt. Governor, through Commissioner of Police 1994 (7) SLR 796. In the said case the truck driver, from whom illegal gratification was received by the delinquents, was not examined, but reliance was placed on his recorded evidence by invoking Rule 16(iii) of the Rules ibid. This procedure was held valid on the ground that copies of the statement of complainant were supplied to the applicants and that the statement was correctly brought on record under Rule 16(iii) of the Rules ibid., supported by other evidence on record.
16. The learned Counsel for the respondents admitted that the complete copy of the complaint was supplied to the applicant at a later date. However, an illegality would have been committed only if the document had not been supplied at all. Moreover, an opportunity was given to the applicant to respond. However, at that stage, the applicant did not suggest recalling of any witnesses for further cross-examination. The learned Counsel further averred that approval of the competent authority under Rule 15(2) of the Rules ibid. had been taken, and Rule 16(x) was correctly invoked. The plea of discriminatory treatment vis-à-vis Const. Narender was not raised by the applicant before the Disciplinary Authority. In any case, there is a difference between the criminal liabilities of the two, insofar as the money was collected by the applicant and it was only shared by Const. Narender.
17. We have given judicious consideration to the averments of the learned Counsel for both the parties and perused the material on record as well as the judgments cited.
18. Upon careful consideration of the averments made by the parties, we are of the opinion that taking on record the complaint of UTP Ranbir Kumar Singh, without his being examined as a witness, was within the four corners of law in terms of Rule 16(iii) of the Rules ibid. As pointed out by the respondents, in spite of their best efforts, they could not secure the presence of the complainant. Therefore, in order to avoid undue delay, inconvenience or expense, Rule 16(iii) of the Rules ibid. was invoked to take the complaint on record. The ruling of this Tribunal in Jai Prakesh and Anr. v. Lt. Governor, through Commissioner of Police (supra) has approved this procedure. The complaint was countersigned by Ravi Dutt, ACP, who had examined the applicant. The applicant was supplied an incomplete copy of the document initially. However, a complete set was provided later on in the context of his representation made during O.R. After the supply of the complete document, the applicant was given an opportunity to submit his supplementary written defence in terms of Rule 16(x). Upon some doubts having been raised about the genuineness of the complaint in the second written statement dated 22.11.2004 (supra), another opportunity was given to inspect the original file, vide U.O. dated 01.12.2004 (supra) and to file another written defence, if they so desired. As regards the argument advanced by the applicant that during the second round he should have been given an opportunity to cross-examine Ravi Dutt, ACP, as rightly pointed out by the learned Counsel for the respondents, the applicant did not make any such requests when the opportunity was given to him to submit his supplementary written defence upon receipt of the complete copy of the complaint. On the whole, we do not find any flaw in the procedure followed by the respondents in this regard, particularly in the respect of application of Rule 16(x) of the Rules ibid. Moreover, in the interest of natural justice, the entire procedure was completed before passing of the final order by the Disciplinary Authority. The respondents have also given credible explanation as to why the complete document could not be supplied to the applicant originally.
19. The argument relating to contradiction in the evidence of PWs too has been addressed by the Enquiry Officer as follows:
It is also a fact that there are contradictions in the statement of P.W.s about the recovery of money. But such minor contradictions cannot absolve delinquents from the charge. If they had not taken the money they would have no reason for them to return the same.
The fact of the applicant had returned the money, which was taken on record through a Seizure Memo, is a clear indication, to all intents and purposes, that the applicant had taken the money.
20. As regards the averment that the evidence of the DWs was not evaluated by the Enquiry Officer, prima facie the ‘Discussion of Evidence’ clearly states that there was no eye witness to the demand made by the applicant and the acceptance of money by him. The DWs were not eye witnesses. Moreover, the order of the Disciplinary Authority, with which the Report of the Enquiry Officer merges in disciplinary proceedings, has discussed the merits of the depositions of DWs at great length (Annexure A-1, pages 24-25 of the OA).
21. The plea regarding incorrect interpretation of Rule 16(x) of the Rules ibid. to take the complete complaint of the complainant on record subsequently also, in our opinion, does not have any merit. What is required to be seen is whether the applicant got a fair opportunity to defend him or not. Having given two opportunities to the applicant to file a supplementary written defence and inspect the records, the respondents, we think, did ensure a fair hearing.
22. As regards the averment of the applicant that orders of the Joint Commissioner of Police, for initiating the departmental proceedings, were not obtained under Rule 15(2) of the Rules ibid., the learned Counsel for the respondents has drawn attention to the order of the Deputy Commissioner of Police dated 24.05.2004 (Annexure A-5), through which the departmental enquiry was ordered. The relevant portion of it reads as follows:
On perusal of P.E. the Joint CP/AP, Delhi accorded his approval for initiating regular DE against them under the provision of Rule 15(2) of Delhi Police (P & A) Rule-1980.
23. The allegation relating to discriminatory treatment of the applicant vis-à-vis Const. Narender also does not cut much ice. As pointed out by the learned Counsel for the respondents the criminal liability of the two was different.
24. Over the years the Hon’ble Supreme Court has carefully defined the scope of judicial review in disciplinary matters, holding that, in these matters, the Tribunal’s jurisdiction is akin to that of the High Court under Article 226. The Tribunal has no jurisdiction to go into the correctness or the truth of the charges. It also cannot take over the functions of the Disciplinary Authority. It cannot sit in appeal over the findings of the Disciplinary Authority and assume the role of the Appellate Authority. It cannot interfere with the findings of fact arrived at in the disciplinary proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no one acting reasonably and with objectivity could have arrived at or where a reasonable opportunity has not been given to the delinquent to defend himself or it is a case where there has been no application of mind on the part of the Inquiring Authority or if the charges are vague or if the punishment imposed is shocking to the conscience of the court Union of India and Anr. v. K.G. Soni 2006 SCCL. COM 571; State Bank of India and Ors. v. Ramesh Dinkar Punde 2006 SCCL. COM 569; State of U.P. and Ors. v. Raj Kishore Yadav and Anr. ; V. Ramana v. A.P. SRTC and Ors. ; R.S. Saini v. State of Punjab and Ors. ; Bank of India and Anr. v. Degala Suryanarayana 1999 SCC (L & S) 1036; Kuldeep Singh v. The Commissioner of Police and Ors. JT 1998 (8) SC 603; B.C. Chaturvedi v. Union of India and Ors. ; Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy ; Government of Tamil Nadu and Anr. v. A. Rajapandian ; Union of India and Ors. v. Upendra Singh ; and The State of Orissa and Anr. v. Murlidhar Jena AIR 1963 (SC) 404.
25. Taking into consideration the totality of facts and circumstances, we find that there was a prima facie case against the applicant. The fact of his returning the money does not advance his case. We also find that the respondents have substantially followed the rules and procedures prescribed in the Delhi Police (P & A) Rules, 1980 and given a fair opportunity to the applicant to defend himself. We find that the pleadings provided by the respondents are quite objective and honest in their appreciation of the case. As a matter of fact, on certain issues we have found a better account of the case of the applicant in the counter reply and have accordingly incorporated it in this order. The quantum of punishment, which was reduced in appeal, is also not such as to invite any comments. The Disciplinary Authority as well as the Appellate Authority has passed speaking reasoned orders.
26. In the result, we do not find any merit in the OA, which is accordingly dismissed. There will be no order as to costs.