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Delhi High CourtIndian Cases

Kishan Lal vs Govt. Of Nct Of Delhi And Ors. on 23 August 2005

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Delhi High Court
Kishan Lal vs Govt. Of Nct Of Delhi And Ors. on 23 August, 2005
Equivalent citations: 2005(84)DRJ588
Author: Sanjiv Khanna
Bench: Mukundakam Sharma, Sanjiv Khanna

JUDGMENT

Sanjiv Khanna, J.

1. Petitioner is a Head Constable in Delhi Police. He has preferred the present Writ Petition against the Order and Judgment dated 3rd November, 2003 passed by the learned Central Administrative Tribunal dismissing his Original Application No. 1165/2003. Learned Tribunal by the impugned Order has upheld the punishment of withholding of one increment with cumulative effect for a period of two years, passed in the departmental proceedings initiated against the petitioner.

2. Disciplinary proceedings were initiated against the petitioner on the following charge:-

“I, Inspector, Dharampal Singh charge you HC Kishan Lal No. 288/ND while posted at Security picket, New Delhi Distt. On 13.3.2002 you were called by DO/SI Ajay Bali. On asking about the whereabouts of constable, Krishan Kumar No. 597/ND your Mess Munshi you told the SI that your Munshi constable Krishan Kumar had been permitted rest by Chitha Munshi HC Brij Nandan who showed his ignorance about any such permission to constable Krishan Kumar. You then stated that you were Mess Manager and could leave your Munshi for Â3/4 days and for that you required no permission from anybody. SI Ajay Bali then directed you HC Kishan Lal to perfrom duty at BD-15 picket as there was shortage of staff for duties. You refused to perform the said duty. After short while you came to duty officer room and stated that ‘tere jaise kuture thanedar sadakon par bhikh mangte phirtey hain aur tere jaise thanedaron ki wajah se jum sipahi public se pittey hain. Police ka bedagark hi tere jaise officers ne kiya hai. Tu kal ka bharti hoga aur tu mujhe sikha raha hai ki police working kya hai’. You abused the SI/DO and attempted to assault the SI with the helmet which was snatched from you by wireless operator HC Pradeep Kumar. You, HC Kishan Lal No. 288/ND in the presence of constable Mahavir No. 447/ND HC Nandan No. 245/ND, HC Pardeep Kumar No. 79/Commn., constable Sandeep Kumar No. 389/ND, constable Ajeet No. 431/ND and constable Wazir Singh No. 860/ND continued to abusing the SI and tried to assault him again and again and stated ‘Tum to refugee sale aakar hamain sikhago police ke bare mein, main chahoo to tujhe abhi suspend karva sakta hoon too mujhe nahin janta main kaun hoon. Ek bar koi allegation laga diya to maf nahin kiya jaoge’. The SI lodged the above facts in the roznamcha vide D.D. No. 6 dt.13.3.2002. You after going through this entry of SI, recorded D.D. No. 7 to counter the report of SI and reported false facts in the roznamcha.

The above act on the part of you HC Kishan Lal No. 288/ND amounts to gross misconduct, grave indiscipline, refusal for duty and disobeyence of lawful directions of your senior officer which render you unable for punishment under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 and Section 21 of Delhi Police Act, 1978”.

3. Enquiry report dated 18th August, 2002 was submitted by the Enquiry Officer holding that the charge against the petitioner stands proved. The disciplinary authority after examining the entire matter imposed the punishment of withholding of one increment with cumulative effect for a period of two years vide Order dated 14th October, 2002. Appeal filed by the petitioner was also rejected by the Joint Commissioner of Police on 19th April, 2003.

4. Petitioner thereafter preferred the above-mentioned Original Application No. 1165/2003 before the learned Tribunal and as already stated above, the same was dismissed vide Order dated 3rd November, 2003. The learned Tribunal rejected the contention of the petitioner that the preliminary enquiry report was not supplied and therefore the entire proceedings were void ab initio. It also rejected the contention of the petitioner that there was no evidence to prove the charge against the petitioner.

5. We have heard learned counsel for the parties.

6. Learned counsel for the petitioner submitted that an oral request was made before the Enquiry Officer for supply of the preliminary enquiry report along with the statements of various witnesses, but the Enquiry Officer did not supply the said report and the statements of witnesses. He relies upon Rules 15(1), 15(3), 16(i) and 16(iii) of the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter referred to as the Rules, for short). Learned counsel also relies upon Standing Order No. 125 and submitted that failure to supply the aforesaid documents has resulted in violation of principles of natural justice.

7. On the other hand, learned counsel for the respondent relies upon Rule 15(3) of the Rules and submitted that the Enquiry Officer had conducted a detailed enquiry in which witnesses were produced and cross-examined and there is no violation of the Rules or Principles of natural justice. Learned counsel for the respondent referred to the statements of various witnesses and has submitted that there is sufficient evidence to prove the charges against the petitioner.

8. Learned counsel for the respondent has also produced before us the file relating to departmental proceedings. The said file contains the statement of witnesses recorded by the Enquiry Officer including their cross-examination.

9. Rule 15 of the Rules relates to preliminary enquiry. The law in this regard is well settled. A preliminary enquiry is a fact finding enquiry which is conducted to decide and assess whether it would be necessary to take disciplinary action against a delinquent officer. Its purpose is also to establish nature of default and collect evidence to facilitate a regular departmental proceeding. In regular departmental proceedings detailed enquiry is conducted after issuance of charge-sheet. The charge is ultimately proved or disproved in the disciplinary proceedings after holding a full fledged enquiry in which statement of witnesses are recorded and the delinquent officer is given an opportunity and right to cross-examine the said witnesses. Charge is not proved on the basis of preliminary enquiry. (Refer : Vijay Kumar Nigam (dead) through Lrs v. State of Madhya Pradesh reported in (1997) 1 SLR 17 and Narayan Duttatreya v. State of Maharashtra and Ors. reported in (1996) 3 SCC 778).

10. The preliminary enquiry report has not been referred to and relied upon by the Enquiry Officer or the disciplinary authority. It was, therefore, not necessary for them to supply the same to the petitioner nor was the petitioner entitled to the preliminary enquiry report. The preliminary enquiry report is required to be supplied only if the same is relied upon and referred to in the enquiry/disciplinary proceedings and not otherwise. In the case Kishan Chandra v. Union of India , the Supreme Court has held that preliminary enquiry report is not required to be supplied and the delinquent officer is not entitled to copy of the preliminary enquiry report unless the said report is relied upon by the Enquiry Officer or the disciplinary authority. Preliminary enquiry is held only to decide whether or not to hold disciplinary proceedings and is essentially in the nature of inter-departmental communication and has no importance unless the Enquiry Officer wants to rely upon it. Similar view has been expressed by the Supreme Court in the case of Superintendent, Government T.B. Sanatorium v. Jay Srivinivasan . It may also be noted that non-supply of preliminary report by itself is not fatal unless it is shown and proved that some prejudice may have been caused to the petitioner. In the present matter the petitioner has also not been able to show that any prejudice has been caused to him by failure to supply preliminary enquiry report. (Ref: Manging Director, ECIL, Hyderabad v. B. Karunakar and NTC (WBAB&O) and Anr. Ltd. v. Anjan K. Saha .

11. Rule 15(3) says that the suspected police officer may or may not be present at the preliminary enquiry but if present, he shall not be permitted to cross-examine the witnesses. It further says that the file of the preliminary enquiry shall not form part of the formal departmental proceedings record.

12. We also do not think that there is any violation of Rules 15(3) and 16(iii) of the Rules in the present matter. Under the Rules the preliminary enquiry report and the statement of witnesses are not required to be supplied. Statement of a witness recorded in the preliminary enquiry cannot normally be brought on record in the enquiry proceedings. The same can be brought on record by the Enquiry Officer, if the witness is no longer available. In such an eventuality, copy of the statement is required to be supplied to the delinquent officer. We have gone through the enquiry report as well as the orders passed by the disciplinary authority and the Appellate Authority. The Enquiry Officer has not brought on record statement of any witness recorded at the time of preliminary enquiry on the ground that the said witness was not available. All prosecution witnesses were examined in the enquiry proceedings and their statements have been considered and examined in the enquiry report as well as in the orders passed by the disciplinary authority and the Appellate Authority. The petitioner, it is not denied was given opportunity to cross examine all witnesses examined in the enquiry proceedings. In view of the above, we do not think that there has been any violation of statutory provisions or the principles of natural justice.

13.It may also be stated that the petitioner had not made any written request for supply of copy of preliminary enquiry report or statements. It is difficult to believe the submission made by the petitioner that he had made oral prayer for supply of preliminary enquiry report or statements but the same were not supplied.

14. It is also submitted by the learned counsel for the petitioner that the decisions of the disciplinary authority and the Appellate Authority are based upon no evidence and are perverse, therefore, this Court should quash the impugned Orders. He specifically referred to the enquiry report and the statement of Constable Krishan Kumar and the observations made by the Enquiry Officer. Constable Krishan Kumar in his statement before the Enquiry Officer has stated that on 12th March, 2002 he had gone for rest after taking permission and on 13th March, 2002 he was absent. Learned counsel for the petitioner further contended that no other witness has proved and established the charges made against the petitioner.

15. We have examined the statements of the witnesses produced and recorded before the Enquiry Officer. The statement of HC Pradeep Kumar (PW-1), SI Ajay Bali (PW-3), Constable Mahabir (PW-5) and Constable Sandip Kumar (PW-8) clearly support the charges against the petitioner. In their statements, they have specifically referred to the conduct and the abusive language used by the petitioner. We, therefore, cannot agree with the learned counsel for the petitioner that there is no evidence or material to prove the charges against him. There was sufficient evidence on record before the Enquiry Officer to come to the conclusion that the charges against the petitioner stand proved.

16. In a writ petition, this Court while exercising its jurisdiction under Article 226 of the Constitution of India does not exercise the powers of appellate Court or authority. It exercises limited power of judicial review to correct errors of law or procedural errors leading to manifest injustice. We cannot re-examine the evidence produced in the departmental proceedings and come to our own independent conclusions. We are satisfied that the present case is not one of no evidence or a perverse decision based upon incorrect appreciation of facts or irrelevant matters. Supreme Court in the case of Principle Secy. Govt. of A.P. v. M. Adinarayana has held that Administrative Tribunal cannot sit as a court of appeal and re-examine findings of the disciplinary authority or enquiry officer as a court of appeal. The tribunal only reviews the manner in which the decision was made and if there is some relevant material that supports the conclusion reached by the disciplinary authority, it is not the function of the tribunal to review the same and reach a different conclusion.

17. In view of the above findings, we do not find any merit in this Writ Petition and the same is dismissed. No costs.