Bhawani Shankar vs The Commissioner Of Police & Ors.

Hon’ble Ms. Manjula Das, Chairman:

In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-

The applicant, who was appointed to the post of Sub-Inspector in the Delhi Police on 22.10.2008, is aggrieved by the impugned order dated 29.11.2017 passed by the respondent no. 2 and order dated 01.08.2017 passed by the respondent no. 3, whereby major penalty of forfeiture of eight years approved service permanently has been imposed upon him, and the departmental appeal filed by him has also been rejected. The applicant has also challenged the inquiry report dated 22.09.2016 and the findings dated 06.06.2017.

The brief facts given in the present OA are that an FIR No.0325 dated 08.08.2016 u/s 506/406/420/34 IPC was lodged against one Mahesh Narula, and the inquiry into the said FIR was handed over to the applicant. During investigation by the applicant in the said FIR, departmental proceedings emanated on the following allegation:-

Summary of allegations served upon the applicant, reads as under:-

It is alleged in the complaint that at about 11:00pm in the night, the applicant, constable Shaminder along with Hemant Verma and the accused reached Mina International Hotel where the accused booked room no. 605 by making entry in his own handwriting and, as alleged, the applicant and accused enjoyed chicken and whiskey, despite warning them by Hemant Verma that the accused might escape. It is further alleged that in the night at around 2:30 am, the complainant again warned the applicant and constable Shaminder to keep an eye on the accused, who was in room no. 605 along with constable Shaminder, so that he may not escape from custody, and thereafter the complainant locked the room from outside, which fact was confirmed by constable Shaminder. It is further alleged that at about 06:35 am constable Shaminder knocked at the door of room no.604 where the complainant was staying, and asked him to open the door and also asked whether he had opened the door of room no.605, where the accused was confined with constable Shaminder, to which the complainant was surprised that despite the key of the room being in his pocket, the accused had fled away. It is further alleged that on 16.09.2016, the applicant made a DD entry no. 31-B reporting that during the search visit in Mumbai, they had apprehended and interrogated the accused, but the said accused succeeded in escaping from their hands. On 20.09.2016, the SHO Paschim Vihar submitted his report with regard to the DD entry made by the applicant proposing to initiate appropriate departmental action against the applicant and constable Shaminder.

Pursuant to the said report, an inquiry was conducted by the ACP/Punjabi Bagh who forwarded his report dated 22.09.2016 to the DCP West District containing his findings with respect to the complaint filed by Hemant Verma. It is stated that the IO erroneously recommended for appropriate action against the applicant while observing that his conduct was negligent and unprofessional.

In the impugned inquiry report, the inquiry officer held that the charges against the applicant were substantiated during the course of inquiry, and the same stood established. It is appropriate to mention here that during the course of inquiry and cross-examination by the applicant, the complainant was not able to support his allegation that he had obtained the consent of the applicant for purchasing air tickets for them, as also could not bring on record the original air travel documents. Further, the complainant could not bring the hotel bill or even the CCTV footage of the hotel to prove that he along with the applicant and constable Shaminder Singh travelled from Delhi to Mumbai and back. To a pointed query during cross-examination, he did not even remember which seats were allotted to them in the aircraft. It was also proved during the inquiry proceedings that the hotel bills brought on record did not have any indication that the complainant had paid the said bills.

It is the contention of the applicant that the impugned summary of allegations, charge, inquiry report, order of the disciplinary authority and order of the adjudicating authority passed by the respondents are arbitrary, discriminatory, mala fide and contrary to the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980 inasmuch as the adjudicating authority has merely reiterated the order passed by the disciplinary authority and failed to apply its mind while passing the said order. It is further contended that the respondents have also failed to appreciate the contentions of the applicant as stated by him in his reply and the impugned order has been passed in a mechanical manner without taking into consideration the important aspects with regard to the charges leveled against the applicant. Furthermore, he also contends that the respondents have not taken note of the fact that he proceeded outstation vide DD No. 3113 dated 14.09.2016 with prior permission of SHO PS Paschim Vihar and returned vide DD No. 31 B dated 16.09.2016.

During the course of the arguments, Mr. Harpreet Singh, learned counsel for the applicant also submitted that the representation of the applicant against the findings of the inquiry officer was not considered in proper manner. He further submitted that original bills of Mina Hotel were not produced during the course of inquiry, so as to prove that room rents and the food charges etc. were borne by the complainant, and even the prosecution could not establish as to who had booked room No. 604 in the said Hotel. It is also his contention that the whole story of the prosecution is concocted one and without evidence, hence, is entirely based upon the version of the complainant Hemant Verma.

In support of his claim, learned counsel for the applicant has placed reliance upon the decision of the Hon’ble Supreme Court in Roop Singh Negi Vs. Punjab National Bank and Ors. (2009) 2 SCC 570 and of Hon’ble High Court of Delhi in Mahesh Narula & Ors. Vs. the State and Ors., W.P. (Crl.) 2900/2018 decided on 04.09.2019 vide which the FIR No.325/2016 lodged againsts Mahesh Narula was quashed.

Respondents filed their counter affidavit opposing the OA. It is stated that on 14.09.2016, the applicant, Ct. Shaminder Singh and Sh. Hemant Verma, the complainant, had gone to Mumbai by air through Go Air Flight at 10.45 am in connection with the investigation of FIR No.325/2016, P.S. Paschim Vihar. It is further submitted that that as an admitted fact that the applicant and Constable Shaminder Singh went to Mumbai without the approval of the competent authority and accepted the hospitality and travel expenses borne by the complainant to them, and that no authorization is reflected from entry of departure which was made in by the applicant. It is further submitted that the accused Mahesh Narula was spotted by the applicant and should have been arrested by him and taken to local police station after completing all the formalities, but instead a considerable time of two and half hours was spent in the office of the accused. It is also stated that though the air tickets and records confirmed the return of applicant on 15.09.2016, but he had shown his arrival on 16.09.2016. Even if we go as per contents of DD entries, there is total time of about 50 hours between departure to Mumbai and arrival back to Delhi, which is only possible by way of air journey. Thus, it is proved that the applicant and Ct. Shaminder travelled by air without authorization and their expenses were borne by the complainant. It is further stated that the applicant put forth a laughable story that he found a person and asked him whether he was Mahesh Narula, and that person denied and went away on the pretext of going for toilet. Later, on inquiry, it came to light that person himself was Mahesh Narula. It is stated that on 14.09.2016, the applicant, Ct. Shaminder and Hemant Verma travelled to Mumbai by air through Go Air flight at 10.45 am, and upon reaching there, they stayed in room No. 604 Mina International Hotel Mumbai. After putting their luggage there, they set out in search of Mahesh Narula and reached Mohit Heights at sixth floor. The applicant had taken the location of Mahesh Narula’s mobile phone and he and Shaminder went inside whereas the complainant stayed back so that accused could not run away after seeing him. It is further stated that Hemant Verma, who was having Mahesh Narula’s photo in his mobile phone, showed the same to the applicant and Ct. Shaminder, who went inside and confirmed through the glass that Mahesh Narula was present there. Thus, according to the respondents, a concocted version of the facts was written and an attempt made to hide what really transpired in Mumbai. It is further submitted that a compliant was made to DCP West against the applicant in reference to the investigation of case FIR No. 325/2016, u/s 420/406/34 IPC, P.S. Paschim Vihar. The matter was taken up by the authorities and an inquiry into the matter was got conducted by the ACP/Punjabi Bagh, Delhi and accordingly punishment was ordered and confirmed by the competent authority, hence, the same is legally justified.

It is further submitted that a departmental inquiry in furtherance of preliminary enquiry conducted by ACP/ Punjabi Bagh, was initiated against the applicant on the basis of complaint made to DCP West on the alleged misconduct on the part of the applicant during the course of the investigation of case FIR No.325/2016, u/s 420/406/34 IPC, P.S Paschim Vihar. It is further submitted by the respondents that as all expenses of travel and hotel bookings were borne by the complainant, the applicant travelled by air and accepted the hospitality. It is submitted that there is no written authorization for such trip in the departure entry made in by the applicant, and the preliminary enquiry conducted by ACP/Punjabi Bagh, also confirmed the same and revealed gross misconduct of applicant. It is further submitted that accused Mahesh Narula spotted by the applicant ought to have been arrested and taken to local police station for completion of formalities. Instead, a considerable time of two and a half hours was spent in the office of the accused, and the accused was thereafter taken to Meena International Hotel Mumbai without arresting him. It is further averred that the hotel bills clearly reveal that room no. 605 where accused was kept, was booked by the accused himself. Later, the applicant left the accused in custody of Ct. Shaminder Singh and slept in other room and did not check if the room was locked from outside and if it could still be opened from inside. It is not clear if the local police was given complete picture of facts, and no adequate precautions had been taken by the applicant. According to the respondents, the above act on the part of the applicant and Ct. Shaminder Singh amounts to grave misconduct, negligence, dereliction in discharge of their official duties and renders them liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules,1980. It is further stated that the air tickets and records confirmed the return of applicant on 15.09.2016 but, arrival was shown on 16.09.2016 by the applicant. As there is total time of about 50 hours between departure to Mumbai and arrival back to Delhi, one can easily comprehend that such quick return journey with considerable time spent for work between these two cities whose aerial distance is 1148 km is not possible, but for travel by air. Thus, as contended by the respondents, it is proved that the applicant and Ct. Shaminder Singh travelled by air without written authorization and their expenses were borne by the complainant.

We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. The scope of judicial review in disciplinary proceedings is highly limited, as laid down by the Hon’ble Apex Court in the case of Union of India v. T. Gunasekran, [(2015) 2 SCC 610]. Defining the scope of judicial intervention in such matters, the Hon’ble Apex Court has laid down the following principles:

We find that the inquiry had been conducted against the applicant violating the principles of natural justice. Moreover, the evidence relied upon by the respondents to prove the charge against the applicant has not been corroborated with the original documents nor got verified by visiting Mina International Hotel, Mumbai, which is very much evidenced from the cross examination of PW7. For the sake of convenience, cross examination of PW7 by Defence Assistant of the applicant, is extracted hereunder:-

We find the charge levelled against the applicant is in three parts, namely, (i) the applicant visited Mumbai in connection with investigation in case FIR No.325/2016 without authorization of the competent authority; (ii) expenditure of air travel and hotel booking of the applicant and Ct. Shaminder Singh at Meena International Hotel were borne by the complainant during their visit in connection with the investigation in case FIR No.325/2016; and (iii) laxity in performance of duty inasmuch as the accused slipped away from the custody of the applicant.

Insofar as the first part of the charge relating to authorization of the competent authority to investigate the matter is concerned, it is seen that the PW7/ACP, Paschin Vihar, in his cross-examination to question no.15, stated that SHO, Paschim Vihar informed him that the applicant and Ct. Shaminder Singh left Mumbai after verbal authorization from DCP/West. They admittedly took verbal authorization, as has been admitted by the PW7 in his cross-examination, and it cannot be said that they proceeded without authorization of the competent authority.

Insofar as the second part of the charge regarding accepting hospitality of the complainant is concerned, it is seen from the cross examination of PW7, that PW7 has accepted the version of the complainant and did not substantiate the charge by placing on record any original document to establish the air travel of acceptance of hospitality of the complainant by the applicant and Ct. Shaminder Singh. PW7 also admitted that he did not visit the hotel at Mumbai to verify the fact of stay of the applicant and Ct. Shaminder Singh in a Hotel at Mumbai and as to who had born the expenses on this count. PW7 has also admittedly not verified as to whether the applicant and Ct. Shaminder Singh actually travelled by air, as alleged by the complainant, by verifying the matter from the concerned airlines. It is settled that a decision must be based on evidence, which is not the case in the instant OA. Though the provisions of Evidence Act may not be applicable in departmental proceedings but the principles of natural justice are. As, in our considered view, the report of the enquiry officer is based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. It is also settled principles of law that the inference drawn by the enquiry officer must be supported by evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be substitute for legal proof as has been held by the Hon’ble Supreme Court in Roop Singh Negi vs. Punjab National Bank & Ors. (2009) 2 SCC 570.

We also notice that Hemant Verma had filed a complaint against the applicant on behalf of one Shri Subhash Aggarwal, who was never examined in the inquiry. Since we are of the considered view that the charges against the applicant have been proved without substantiating the documentary evidence, it becomes a case of no evidence.

Insofar as the last part of the charge i.e. laxity in performance of duty inasmuch as the accused slipped away from the custody of the applicant is concerned, it is admitted by the applicant himself that he found a person and asked him whether he was Mahesh Narula, and that person denied and went away on the pretext of going to ease himself. Later, on inquiry, it came to light that the aforesaid person himself was Mahesh Narula. No doubt, the applicant was supposed to have been more vigilant to catch hold of the accused, but at the same time it cannot be said that the applicant intentionally let the accused go, as by that time the applicant himself was not sure about the identity of the accused. It can, at the best, be said to be an error of judgment on the part of the applicant. This much lapse can be attributed to the applicant, which in our considered view is no more than a minor lapse. However, the penalty of forfeiture of 8 years approved service imposed upon the applicant appears to be patently disproportionate to the minor lapse that can be said to have been committed by him and shocks our judicial conscience. Hence, the same needs reconsideration. We are fortified in this view of ours by the decision of the Hon’ble Supreme Court in the case of Damoh Panna Sagar Rural Regional Bank vs Munna Lal Jain [(2005) 10 SCC 84], relevant part thereof reads as under:-

In view of the discussion in the foregoing paras, the impugned order dated 01.08.2017 passed by the disciplinary authority, appellate order dated 29.11.2017, and the Inquiry report dated 22.09.2016 along with its findings dated06.06.2017 are quashed and set aside. The matter is remitted to the respondents for re-consideration and awarding a lesser minor penalty like warning or censure, upon the applicant keeping in view the minor delinquency that can be said to have been committed by him during the investigation in question. This exercise shall be completed by the respondents within a period of three months from the date of receipt of a copy of this order.

The OA is disposed of in the above terms. There shall be no order as to costs.