Hemant Kumar & Ors. vs Commissioner Of Police & Ors.

Hon’ble Mr. R. N. Singh, Member (J)

Learned counsels for the parties have submitted that the issues involved in the captioned OAs are identical, the facts therein and the relief(s) sought by the applicants are identical and such relief(s) have been prayed for by the applicants on common grounds. Accordingly with their consent, we have heard both the OAs together and the same are being decided vide the instant common order.

For convenience of writing, the instant order, O.A. No. 1435/2022 is taken as a lead case.

Admitted facts of the case are that in the relevant selection process initiated by the respondents, the applicants were selected and appointed to the post of Constable (Driver) during the year 2008-2009. Genuineness of the testimonials of the applicants for the said post were also got confirmed/verified by the respondents in the year 2020 and FIR bearing No. 579 dated 14.08.2020 was registered under Section 420, 468, 471 IPC with PS Model Town, Delhi, with allegations that applicants had submitted false driving licenses to secure the employment as Constable (Driver) under the respondents. It is also not in dispute that such FIR was registered on the basis of communication dated 23.04.2019, issued by the Office of the Assistant Divisional Transport Authority, Mathura, to Inspector of Police, Crime Branch, IGIS, Sector-17, C Dwarka, New Delhi 110078. In the said communication, it is stated that the records of the applicants’ driving licenses have not been found with them and not issued in the name of the holders. Pursuant thereto, the disciplinary authority vide order dated 16.02.2021 (Annexure A-5) ordered initiation of departmental inquiry against the applicants. Pursuant thereto, keeping in view the summary of allegations, the evidences produced before him, the Inquiry Officer framed the charge against the applicant which reads as under:-

The applicants denied the allegations against them. The Inquiry Officer returned the findings holding that all the delinquents got the employment in Delhi Police as Constable (Drivers) by using forged driving licenses and the same is in utter violation of standing Order no. 398/2016 of Delhi Police and ‘Charge’ stands proved. The applicants submitted their representations before the disciplinary authority and disciplinary authority passed the impugned order (Annexure A/1) inflicting the penalty of dismissal. Aggrieved by the same, the applicants submitted their statutory appeal and the appellate authority rejected the same by passing the impugned appellate order(s). Thus, the present OA seeking the following relief(s):-

Sh. Ajesh Luthra, learned counsel for the applicants, has argued that genesis of the departmental inquiry is the communication dated 23.04.2019 of Transport Authority referred to hereinabove and subsequent to 23.04.2019, the prosecution in the aforesaid case FIR completed their investigation and found no tenable evidence in support of the prosecution and accordingly, they filed closure report. The respondents herein, i.e., Delhi Police filed protest application in response to such closure report. However, the learned Trial Court accepted the closure report. He has further argued that when for the same set of allegations which was the subject matter of departmental inquiry as well, once the closure report was accepted by the learned Trial Court, in the light of the law laid down by the judgment of the Hon'ble High Court of Delhi dated 23.08.2016 in W.P.(C) 2766 of 2007 titled The Chief Secretary & Ors. v/s Jitender Kumar Bhatia, with one other writ petition, the impugned orders of punishment are not tenable in the eyes of law. He has further argued that on perusal of the IO's report, it is apparent that the respondents have gone ahead in the matter of impugned disciplinary proceedings and orders as if the applicants were supposed and expected to prove their innocence and not the respondents were expected and required to prove the allegations leveled against the applicants. To buttress such argument, learned counsel for the applicants has invited our attention to cross-examination when it was put to the PW-7 that “When the feeding of driving licenses in computer starts in your office?” as Question no. 3, he answered:- “In the year of 2013, this process was started and the old record was feed/saved in computer”. In respect to Question no. 4 which reads as:- “whether the feeding/saving the details of mentioned driving licenses was based on the original record?”, he replied that “Yes”. In respect to Question No. 5 which reads as:-“ I am showing you the copy of letter no. 541/Transport Mathura/Lic./enquiry/2010, dated 04.09.2010, issued by Rajender Prashad, Depty Transport Commissioner Agra, in which it is mentioned that the all original record of driving license register was seized, then please told me that you have feed/save the record in computer from which original record?” He answered that “I don’t know about this.” In respect to Question no. 10 which reads as:- “ I am showing you the copy of smart card of driving license No. 17112/MTR/2003, (Hemant Kumar), so please tell me that this is issued by your office or otherwise?” He answered that “as per our record mentioned Driving License 17112/MTR/03 is issued on the name of Om Prakash s/o Mohan Lal and I have already produced the record of the same and I do not know about the shown smart card.” In respect to Question no. 11 which reads as:-“Whether the details of above smart card (driving license) is available in your computer, I produced a copy of same before you, and you have taken on record and marked as Ex. PW-D/B?”. He answered that “This is showing in computer record, but I do not know, how it is showing and who made this entry, but I produced the record already, which clearly shows that on whose name this driving license number issued.” To elaborate, Sh. Ajesh Luthra has argued that once the applicant has shown the smart card (driving license), such prosecution witness who was from the office of the concerned licensing authority has not disputed that the entry of such smart card (driving license) of the applicant was available in the records of such licensing authority. However, while returning the findings of charges as proved, the Inquiry Officer has not taken into consideration this fact at all.

Learned counsel for the applicants has further argued that the IO in the impugned disciplinary proceeding, and/or the disciplinary authority/appellate authority have all heavily relied upon the communication dated 23.04.2019 from the licensing authority to the Inspector Crime Branch and they have not at all bothered to prove the allegations levelled against the applicants nor they have bothered to take into account the defence of the applicants and/or the defence of the applicants, which has itself been admitted by, particularly, Prosecution Witness No. 7. He accordingly prays that the present OA deserves to be allowed.

Sh. Setu Niket, learned counsel appearing for the applicant in O.A. No. 1606/2022, has adopted the arguments advanced by Sh. Ajesh Luthra, learned counsel appearing for the applicant in O.A. No. 1435/2022. To further clarify, he has submitted that the PW-7 in the case involved in the departmental inquiry involved in O.A. No. 1435/2022 has been the PW-3 in the relevant departmental inquiry in O.A. No. 1606/2022.

On the other hand, learned proxy counsel for the respondents, has vehemently opposed the claim of the applicants. Learned counsel, by referring to the assertions made, has argued that the departmental inquiry was conducted following the due process of law and principles of natural justice. Even the opportunity to cross-examine the witnesses was given to the applicants but the applicants cross-examined only three PWs out of total 7 PWs. After examination of the PW, the Inquiry Officer framed the charge after getting it approved from the disciplinary authority and the charge was served upon the applicants and submitted his findings including therein that keeping in view the lengthy discussion and statements of prosecution witnesses and documentary evidence available on record on DE file, it has been established that all the delinquents got the employment in Delhi Police as Constable (Driver) by using false/fake driving licenses and the same is in utter violation of Standing Order No. 398 of 2018 of Delhi Police. A copy of the inquiry report was also supplied to the applicants to invite their representations. It is also stated by her that the Inquiry Officer, in his findings, clearly mentioned that the applicants approached Mathura Transport Authority for getting driving licenses and they all had given their residential addresses of Mathura in their driving license while there is no record of their residence in Mathura. It all proves that the applicants procured their driving licenses by adopting forged means and got the employment in Delhi Police for the Post under reference. She has further argued that the respondents in their counter reply had recorded the defence/stand of the applicants and stated that the Mathura Transport Authority, vide its letter no. 3221/License Authority/2008 dated 12.11.2008 has earlier sent information that all the licenses are genuine and issued by their office. The officials of Mathura Transport Authority could not produce original record during the proceedings. The original record has already been seized by the Transport Commissioner, Agra, as evident from letter dated 04.09.2010. The license has been renewed by the same Mathura Authority and if there was no record how and on which basis, the Mathura Authority renewed the license. Furthermore, PW-7, Sh. Ajay Kumar, Senior Assistant, ARTO Office, Mathura, admitted that a smart card/driving license in respect of the applicant, Sh. Hemant Kumar, was issued from their office. Though, the respondents have opposed the claim of the applicants; however, it is evident from the inquiry proceedings as well as the impugned order(s) that such defence of the applicants and that too coming from the PW-7 has not been appreciated at all.

Learned proxy counsel appearing for the respondents has relied upon a judgment dated 01.08.2024 of the Hon’ble Apex Court in Civil Appeal No. 4434-4437 of 2014 titled Union of India & Ors. Etc. v/s Prohlad Guha Etc., particularly, paras 2.2 and 14 thereof, which read as under:-

Sh. R K Jain, learned counsel appearing for the respondents in O.A No. 1606/2022, has submitted that the documents indicate that the applicant in O.A. No. 1606/2022, has been the resident of Delhi and nothing has been brought on record as to why and how he obtained the driving license from Mathura and that too, when ordinarily driving license is issued by the Licensing Authority, in whose territory the applicant is ordinarily resident of. He has further argued that so far the closure report was concerned, i.e., subsequent to the completion of departmental proceedings and passing of the impugned disciplinary and appellate order. He has also stated that the inquiry has been initiated by the competent authority and the same has been concluded by following the principle of natural justice and the relevant rules and instructions on the subject.

Learned counsels appearing for the respondents submit that in this view of the matter, interference in the impugned orders, is not warranted by this Tribunal while exercising jurisdiction of judicial review.

We have considered the submissions made by the learned counsels for the parties.

From what has been recorded as reply to certain questions to the Prosecution Witness No. 7, who has been Prosecution Witness No. 3 in another OA and reply given by him during cross-examination, has not been taken into consideration by either of Inquiry Officers and/or the disciplinary/appellate authority at all while arriving at the conclusion. It is also found that though the genesis of initiation of the impugned disciplinary proceedings has been the communication dated 23.04.2019 of the ARTO Office at Mathura, addressed to the Inspector, Crime Branch of Delhi Police. However, the subsequent development during investigation by the Crime Branch/Police in the aforesaid FIR, has not been considered at all by the IO and/or the disciplinary/appellate authority. It is settled law that there is no dispute that while exercising the jurisdiction of judicial review, the Tribunals are not expected to appreciate/re-appreciate the evidence; however, the Court could not remain mute spectator as to whether in the present case, the evidence of the PW-7 itself, who has been from the office of the concerned Transport Authority has not been appreciated by the IO and/or the disciplinary and the appellate authority. There is no dispute that the closure report filed by the prosecution in the aforesaid case FIR, where the names of the applicants were also involved, was accepted by the learned learned Magistrate, vide order dated 24.05.2023, which reads as under:-

In the case of Jitender Kumar Bhatia (supra), the fact before the Hon’ble High Court was that the disciplinary authority vide order dated 20.07.2001, imposed the penalty upon the respondents therein. The delinquent employee filed an appeal against the penalty order before the appellate authority and on 28.01.2003, the appeal filed by the delinquents, after granting personal hearing to them was not only rejected but the penalty was enhanced vide order dated 04.11.2003. A closure report was filed in the relevant FIR and on 27.04.2002, the said closure report was accepted by the learned Special Judge. In such facts and circumstances, the Hon’ble High Court dismissed the writ petitions filed by the department and upheld the order passed by this Tribunal. Paras 30, 37 and 39 thereof, read as under:-

We find the fact and the issue in hand were identical as those before the Hon’ble High Court in the case of Jitender Kumar Bhatia (supra).

So far, the reliance of the learned counsel for the respondents in the case of Prohlad Guha Etc. (supra) is concerned, we are of the considered view that the judgment is not of any help to them, in view of the fact that in the said case, the respondents’ employees were appointed on compassionate ground in Engineering Department in the Railways. They were placed under suspension due to contemplated pendency of departmental inquiry. On issuing show cause notice(s), information was sought as to why their appointments on compassionate ground should not be terminated as the same were based on forged and fabricated documents with respect to their employment. After receiving their response, the authority found that their appointments were based on false/fabricated and bogus documents, whereas, in the present case, in the allegations leveled against the applicants, the prosecution did not find even any evidence to prosecute the applicants in the aforesaid case FIR. The same was accepted by the learned Trial Court, despite the protest application filed by the respondents therein. Furthermore, in the departmental inquiry, neither the Inquiry Officer nor the disciplinary and/or the appellate authority has taken into consideration the statement of PW-7, during his cross-examination, though the same was in favor of the applicants herein.

In light of the aforesaid, we are of the considered view that the present OAs deserve to be allowed and the same are allowed with following orders:-

However, in the facts and circumstances of the case, there shall be no order as to costs.