Singh Vs. The Commissioner of Police & Ors  INSC 622 (17 December 1998)
Ahmad, & S.P. Kurdukar.S.Saghir Ahmad
appellant, a constable in the Delhi Police was dismissed, after a regular
departmental enquiry, from service, by order dated 03.05.1991, passed by Dy
Commissioner of Police, South District, New Delhi, which was upheld in appeal
by Addl. Commissioner of Police by his order dated 22.07.1991. The appellant
then approached the Central Administrative Tribunal, Principal Bench, New Delhi and the Tribunal, by the impugned
judgment dated 28th
dismissed the Claim Petition.
Petition filed before the Delhi High Court against this judgment was dismissed
on 19.09.1997 as not maintainable as the judgment passed by the Tribunal was
given before the date on which the decision of this Court AIR 1997 SC 1125 =
(1997) 3 SCC 261, in which it was held that a writ petition against the order
passed by the Tribunal, constituted under the Administrative Tribunal, Act,
1985, would be maintainable (prospectively) before a High Court. The Review
Application filed against the judgment of the Tribunal was dismissed on
counsel for the appellant has contended that the findings recorded by the Enquiry
Officer cannot be sustained as the enquiry itself was held in utter violation
of the principles of natural justice. It is also contended that there was no
evidence worth the name to sustain the charge framed against the appellant and
therefore, the findings are perverse particularly as no reasonable person could
have come to these findings on the basis of the evidence brought on record.
counsel appearing on behalf of Union of India has, on the other hand, contended
that the enquiry was held in consonance with the principles of natural justice
and during the course of the enquiry, full opportunity was given to the
appellant to defend himself. As far the evidence is concerned, it is contended
that though it is true that none of the complainant was examined but on account
of Rule 16(3) of the Delhi Police (F&A) Rules, 1980, it was not required to
produce the complainant in person as the Rule itself contemplated that in the
absence of a witness whose presence could not be procured without undue delay, inconvenience
or expense, his statement, already made on an earlier occasion, could be placed
on record in the departmental enquiry and the matter could be decided on that
basis. It was under this Rule that the previous joint statement of the
complainants was brought on record without examining any of them. Learned
counsel for the respondents contended that the scope of judicial review in
disciplinary proceedings is extremely narrow and limited. The court cannot, it
is contended, re-examine or re-appraise the evidence and substitute its own
conclusion in place of the conclusions arrived at by the Enquiry Officer or the
disciplinary authority on that evidence.
no doubt true that the High Court under Article 226 or this Court under Article
32 would not interfere with the findings recorded at the departmental enquiry
by the disciplinary authority or the Enquiry Officer as a matter of course. The
Court cannot sit in appeal over those findings and assume the role of the
Appellate Authority. But this does not mean that in no circumstance can the
Court interfere. The power of judicial review available to the High Court as
also to this Court under the Constitution takes in its stride the domestic
enquiry as well and it can interfere with the conclusions reached therein 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 or the findings
were perverse or made at the dictate of the superior authority.
Kishore vs. State of Bihar, AIR 1978 SC 1277 = (1978) 3 SCC 366 = 1978 (3) SCR
708, it was held that the disciplinary proceedings before a domestic Tribunal
are of quasi-judicial character and, therefore, it is necessary that the
Tribunal should arrive at its conclusions on the basis of some evidence, that
is to say, such evidence which, and that too, with some degree of definiteness,
points to the guilt of the delinquent and does not leave the matter in a
suspicious state as mere suspicion cannot take the place of proof even in
domestic enquiries. If, therefore, there is no evidence to sustain the charges
framed against the delinquent, he cannot be held to be guilty as in that event,
the findings recorded by the Enquiry Officer would be perverse.
findings, recorded in a domestic enquiry, can be characterised as perverse if
it is shown that such a finding is not supported by any evidence on record or
is not based on the evidence adduced by the parties or no reasonable person
could have come to those findings on the basis of the that evidence. This
principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 =
AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the question was whether the High
Court, under Article 226, could interfere with the findings recorded at the
departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ
377 (SC) = AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai Balubhai Patel
& Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976
(2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour)
and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635, it was laid
down that where the findings of misconduct are based on no legal evidence and
the conclusion is one to which no reasonable man could come, the findings can
be rejected as perverse. It was also laid down that where a quasi-judicial
tribunal records findings based on no legal evidence and the findings are his
mere ipse dixit or based on conjectures and surmises, the enquiry suffers from
the additional infirmity of non-application of mind and stands vitiated.
the High Court and this Court would not interfere with the findings of fact
recorded at the domestic enquiry but if the finding of "guilt" is
based on no evidence, it would be a perverse finding and would be amenable to
broad distinction has, therefore, to be maintained between the decisions which
are perverse and those which are not. If a decision is arrived at on no
evidence or evidence which is thoroughly unreliable and no reasonable person
would act upon it, the order would be perverse, But if there is some evidence
on record which is acceptable and which could be relied upon, howsoever
compendious it may be the conclusions would not be treated as perverse and the
findings would not be interfered with.
light of the above principles, let us scrutinise the case in hand.
charge framed against the appellant in the instant case is as under:-
"You, Constable Kuldeep Singh No.2138/SD. are hereby charged that while
posted at P.P. Amar Colony on 22.2.1990. You kept illegally Rs.200/out of Rs.
1000/- given by the factory owner, Smt. Meena Mishra running her factory at
A-25, Garhi Lajpat Nagar for the payment of her laborers, Shri Radhey Shyam S/O
Shri Phool Vash. Shri Rapal Singh S/O Shri Brahma Nand and Shri Shiv Kumar S/O Shri
Ganga Ram. All these three laborers had made a complaint that Smt. Meena Mishra
had stopped their payment or Rs. 2200/- for three months.
above act your part amounts to grave misconduct and unbecoming of a police
officers which renders you, constable Kuldeep Singh No. 2138/SD, liable for
punishment u/s 21 of Delhi Police Act, 1978.
Singh SHAKTI SINGH Inspector, Enquiry Officer, DE Cell, Vigilance, Delhi." The list of witnesses who
were proposed to be examined at the domestic enquiry, as set out in the
charge-sheet, was:- List of witnesses
D.D. Sharma, Insp. He will move him the then S.H.O. Lajpat to present. Nagar,
Meena Mishra R/O She will depose A-25, Garhi, Lajpat Nagar, that she had Nagar,
given Rs.1000/- to Ct. Kuldeep Singh on 22.2.1990 for payment to 3 laborers and
Constable had kept Rs.200/with him.
Rajpal Singh He will depose S/O Brahama Nand that on 22.2.90 R/O Village Ram he
along with Nagar, P.S. Baroli Shiv Kumar and Distt. Etah (U.P.) Radhey Shyam
had gone to factory A-25, Garhi with Ct.
kuldeep Singh for settlement of payment and he kept Rs.200 with him.
Sham S/O Phool Vash R/o Distt. Etah Village Bulal Puri --do-- U.P. at present
H.No.74 Main Market Garhi Lajpat Nagar.
Cell" The list of documents, indicated in the charge-sheet, was:- List of
of report of SHO/Lajpat Nagar, dated 5.3.1990 against Constable Kuldeep Singh
Copy of Laborers Statement. SO/DE Cell." The charge against the appellant
thus was that on 22.2.1990, three laborers namely, Radhey Shyam, Rajpal Singh
and Shiv Kumar who were working in the factory of Smt.
at A-25, Garhi, Lajpat Nagar, and had not been paid their salary by the factory
owner had approached the appellant who was posted at Police Post, Amar Colony,
attached to P.S. Lajpat Nagar, New Delhi, for his help in the matter. The
appellant along with the aforesaid laborers went to the factory owner who gave
Rs.1000/- to the appellant for payment to the three laborers but the appellant
did not pay the whole of the amount to them and instead gave them only Rs.
800/-, keeping an amount of Rs.200/- in his own pocket.
order to prove this charge, the Department examined Inspector D.D. Sharma, SHO,
P.S. Lajpat Nagar; and Smt. Meena Mishra. Their statements have been reproduced
in copious details in the findings submitted by the Enquiry Officer, a copy of
which has been placed on the record.
Mishra stated that the three persons, namely, Rajpal Singh, Radhey Shyam and Shiv
Kumar, were working in her factory, to whom she had made payment separately and
individually. She stated. that she had paid Rs. 563/- to Rajpal; Rs.211/- to Shiv
Kumar and another sum of Rs. 808/- jointly to Radhey Shyam and Rajpal. She
stated that she had not paid Rs. 1000/- to Kuldeep Sing (appellant) on
22.2.1990, as she had asked the three laborers to come after a few days and it
was then that the whole of the amount described above which was due from her
was paid to them.
D.D. Sharma, who was, at the relevant time. posted as S.H.O. P.S. Lajpat Nagar,
New Delhi. stated that he had received a
complaint from Radhey Shyam, Rajpal Singh and Shiv Kumar. They were summoned to
the Police Post, Amar Colony where the contents of the complaint were verified
from them and their statement was recorded.
other witness was examined on behalf of the Department, not even the
complainants, Rajpal Singh and Radhey Shyam, though their names were mentioned
in the charge-sheet for being examined as witnesses against the appellant.
appellant examined one of the complainants, namely, Shiv Kumar in defence who
supported the appellant that Smt. Meena Mishra had not made any payment on
22.2.1990 but had called him and two other complainants, namely, Radhey Shyam
and Rajpal Singh after few days and when they went again to her, she made the
appellant also examined constable Shoukat Ali who was posted, at the relevant
time, at Police Post Amar Colony. He stated that Radhey Shyam, Shiv Kumar and Rajpal
Singh had come to the Police Post to make a complaint against Smt. Meena Mishra
that she had not paid them their salary. This constable directed them to meet
the Emergency Officer, ASI Bhopal Singh who sent the appellant with them to Smt.
Meena Mishra. The appellant came back and informed ASI Bhopal Singh that Smt. Meena
Mishra had agreed to pay the amount due from her to these three persons after a
Prasad and ASI Bhopal Singh, who were also examined in defence, corroborated
the above statement of constable Shoukat Ali.
Bhopal Singh further stated that the appellant was deputed by him to go to Smt.
Meena Mishra with the complainants and the the appellant, on his return from
the factory, told him that Smt. Meena Mishra had agreed to make payment to the
three laborers a few days later. The witness, however, stated that all the
three laborers had come to Police Post, Amar Colony of P.S. Lajpat Nagar on
22.2.1990 where their statement was recorded by ASI Jagdish Prasad on the
dictation of SHO D.D. Sharma. This statement was placed on the record before
the Enquiry Officer.
was the entire evidence produced at the domestic enquiry.
immediately strikes the mind is that Smt. Meena Mishra, who is alleged to have
paid the amount of Rs. 1000/- to the appellant, stated in clear terms as a
witness for the Department, that she had not made any payment to the appellant.
This payment is not proved in any other manner as none of the three recipients
of the above amount, who were the complainants, has been produced at the
departmental enquiry, though two of them, namely, Radhey Shyam and Rajpal Singh
were proposed to be examined.
of the complainants is sought to be justified with reference to Rule 16(3) of
the Delhi Police (F&A) Rules, 1980. Rule 18(3) is an under:- "If the
accused police officer does not admit the misconduct, the E.O. shall proceed to
record evidence in support of the accusation as is available and necessary to
support the charge. As far as possible the witnesses shall be examined direct
and in the presence of the accused, who shall be given opportunity to take
notes of their statements and corssexamine them. The E.O. is empowered,
however, to bring on record the earlier statement of any witness whose presence
cannot, in the opinion of such officer be procured without undue delay, inconvenience
or expense 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 statements and
documents so brought on record in the departmental proceedings shall also be
read out to the accused officer and shall be given an opportunity to take
notes, Unsigned statements shall be brought on record only through recording
the statements of the officer or Magistrate who had recorded the statement of
the witness concerned. The accused shall be bound to answer any questions which
the E.O. may deem fit to put to him with a view to elucidating the facts
referred to in the statements or documents thus brought on record." This
Rule, which lays down the procedure to be followed in the departmental enquiry,
itself postulates examination of all the witnesses in the presence of the
accused who is also to be given an opportunity to crossexamine them. In case,
the presence of any witness cannot be procured without undue delay,
inconvenience or expense, his previous statement could be brought on record
subject to the condition that the previous statement was recorded and attested
by a police officer superior in rank than the delinquent. If such statement was
recorded by the Magistrate and attested by him then also it could be brought or
record. The further requirement is that the statement either should have been
signed by the person concerned, namely, the person who has made that statement,
or it was recorded during an investigation or a judicial enquiry or trial. The
Rule further provides that unsigned statement shall be brought on record only
through the process of examining the Officer or the Magistrate who had earlier
recorded the statement of the witness whose presence could not be procured.
16(3) is almost akin to Sections 32 and 33 of the Evidence Act. Before the Rule
can be invoked, the factors enumerated therein, namely, that the presence of
the witness cannot be procured without undue delay, inconvenience or expense,
have to be found to be existing as they constitute the
condition-precedent" for the exercise of jurisdiction for this purpose. In
the absence of these factors, the jurisdiction under Rule 16(3) cannot be
Singh and Radhey Shyam, who were the original complainants along with Shiv
Kumar, were not examined and the Enquiry Officer, regarding their absence, has
stated in his report as under:- "The two prosecution witnessess Rajpal
Singh and Radhya Shyam have not attended to proceeding.
have not been found residing in their vill.
and it had come to notice that the defaulter has managed their disappearance
and has settled them some where in Devli Khanpur and also has arranged their
employment but the addresses of those PWs are not known. Such is the act of the
defaulter to create his defence and is an attempt to hide his misconduct.
Though their complaint Ex. PW-1/A has been exhibited and has been taken on file
to ascertain the facts and for natural justice.
will show that the blame for the non-availability of these two witnesses has
been laid on the appellant who was already under suspension and it is not understandable
as to how and on what basis or on what material, the Enquiry Officer came to
the conclusion that the appellant was responsible for their disappearance or
had procured employment for them in Devli Khanpur. If it was known to the
Enquiry Officer that they were available in Devli Khanpur, was any attempt made
to contact them at Devli Khanpur or to bring them to the enquiry proceedings
from that place, is not indicated by the Enquiry Officer in his report making
it obvious that the factors necessary for the exercise of jurisdiction under
Rule 16(3) were not present and it was not open to the Enquiry Officer to have
taken recourse to this Rule to bring on record the previous statement of the
complainants which allegedly was recorded by Inspector D.D. Sharma. Moreover,
the so-called previous statement itself of the complainants appears to be a
highly suspicious document for the reason that S.H.O., D.D. Sharma had stated
before the Enquiry Officer that he had received a complaint of Radhey Shyam, Rajpal
Sing and Shiv Kumar whereupon all the three persons were summoned by him and
after verifying the facts from those complainants had recorded their statement
which he had dictated to ASI Jagdish Prasad. There were, therefore, two
The original complaint made by the aforesaid three persons:
The statement of these persons, recorded by ASI Jagdish Prasad, at the
dictation of S.H.O., D.D. Sharma, after verifying the facts, set out in the
complaint, from these persons. complaint, from these persons.
The original complaint was not placed on the record and it was the statement,
recorded by S.H.O., D.D. Sharma, which was produced before the Enquiry Officer.
The absence of original complaint, therefore, indicates that there was, in
fact, no complaint in existence which further supports the statement of
Department's own witness Smt. Meena Mishra that no payment was made by her on
from the above, Rule 16(3) has to be considered in the light of the provisions
contained in Article 311(2) of the Constitution to find out whether it purports
to provide reasonable opportunity of hearing to the delinquent. Reasonable
opportunity contemplated by Article 311(2) means "Hearing" in
accordance with the principles of natural justice under which one of the basic
requirements is that all the witnesses in the departmental enquiry shall be
examined in the presence of the delinquent who shall be given an opportunity to
cross-examine them. Where a statement previously made by a witness, either
during the course of preliminary enquiry or investigation, is proposed to be
brought on record in the departmental proceedings, the law as laid down by this
Court is that a copy of that statement should first be supplied to the
delinquent, who should thereafter be given an opportunity to cross-examine that
State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375, the witness
was not examined in the presence of the delinquent so far as his
examination-in-chief was concerned and it was his previous statement recorded
at an earlier stage which was brought on record. That statement was put to the
witness who acknowledged having made that statement. The witness was thereafter
offered for cross-examination and it was held that although the statement (examination-in-chief)
was not recorded in the presence of the delinquent, since the witness had been
offered for cross-examination after he acknowledged having made the previous
statement, the rules of natural justice were sufficiently complied with.
Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 AND State of
U.P. vs. Om Prakash Gupta, AIR 1970 SC 679, the above principles were
reiterated and it was laid down that if a previous statement of the witness was
intended to be brought on record, it could be done provided the witness was
offered for cross-examination by the delinquent.
regard to the law as set out above, and also having regard to the fact that the
factors set out in Rule 16(3) of the Delhi Police (F&A) Rules, 1980, did
not exist with the result that Rule 16(3) itself could not be invoked, we are
of the opinion that the Enquiry Officer was not right in bringing on record the
so-called previous statement of witnesses Radhey Shyam and Rajpal Singh.
will be noticed that there were three complainants but only two, namely, Radhey
Shyam and Rajpal Singh were proposed to be examined. Why was not the third
complainant, Shiv Kumar, proposed to be examined? The reason becomes obvious
from the fact that when he was examined as a Defence witness, he fully
supported the appellant by stating that no payment was made by Smt. Meena Mishra
on that date. But he was held by the Enquiry Officer to be an impostor on the
ground that he had not proved himself to be actual Shiv Kumar. The Enquiry
Officer has observed as under:- "DW 1, Sh. Shiv Kumar is a prepared
witness and has not proved himself to be actual Shiv Kumar. This DW 1 has
denied that he had visited the police station and had never met with SHO.
Moreover he has denied to have signed EX PW-A/A. He had not made any complaint
to the SHO. His version has been contradicted by ASI Jagdish Prasad, DW-4 the
writer of this complaint Ex PW-1/A. Both these defaulter himself. So the
statement of DW-1, Shiv Kumar has not been relied upon because he is not actual
Shiv Kumar who is a complainant in this case and is a false person who has been
produce by the defaulter." The reasons why he has been held to be an
impostor or a false person have not been indicated. The finding in this regard
is wholly arbitrary and perverse.
findings recorded by the Enquiry Officer, have also been upheld by the Deputy
Commissioner of Police, South District, New Delhi who had passed the order on 3rd of May, 1991 by which the appellant was
dismissed from service. The Addl. Commissioner of Police, before whom the
appeal was filed by the appellant, also agreed with the findings recorded by
the Enquiry Officer as also the Deputy Commissioner and dismissed the appeal on
the findings recorded separately by the Deputy Commissioner of Police, it would
appear that there is a voucher indicating payment of Rs. 1000/- to Rajpal
Singh, one of the labourers, on 8th of February, 1990. This document was not
mentioned in the chargesheet in which only two documents were proposed to be
relied upon against the appellant, namely, copy of the report of S.H.O., Lajpat
Nagar dated 5th of March, 1990 against the appellant and the copy of the labourers'
statement. This document has, therefore, to be excluded from consideration as
it could not have been relied upon or even referred to by the Dy. Commissioner
of Police. Moreover, according to the charge framed against the appellant,
payment was made on 22.2.90 and not on 08.02.90 as indicated in the voucher
and, therefore, voucher, for this reason also, has to be excluded.
up, the charge against the appellant consisted of two components, namely :
22.2.90 Smt. Meena Mishra paid Rs. 1000/- to the appellant for being paid to
the three labourers.
Appellant paid Rs. 800/- to labourers and kept Rs. 200/- with himself.
Mishra, appearing as a witness for the Department, denied having made any
payment to the appellant on that day. The labourers to whom the payment is said
to have been made have not been produced at the domestic enquiry. Their
so-called previous statement could not have been brought on record under Rule
16(3). As such, there was absolutely no evidence in support of the charge
framed against the appellant and the entire findings recorded by the Enquiry
Officer are vitiated by reason of the fact that they are not supported by any
evidence on record and are wholly perverse.
Enquiry Officer did not sit with an open mind to hold an impartial domestic
enquiry which is an essential component of the principles of natural justice as
also that of "Reasonable Opportunity", contemplated by Article 311(2)
of the Constitution. The "Bias" in favour of the Department had so
badly affected the Enquiry Officer's whole faculty of reasoning that even
non-production of the complainants was ascribed to the appellant which squarely
was the fault of the Department. Once the Department knew that the labourers
were employed somewhere in Devli Khanpur, their presence could have been
procured and they could have been produced before the Enquiry Officer to prove
the charge framed against the appellant. He has acted so arbitrarily in the
matter and has found the appellant guilty in such a coarse manner that it
becomes apparent that he was merely carrying out the command from some superior
officer who perhaps directed "fix him up".
the reasons stated above, the appeals are allowed. The judgment and order dated
28th February, 1997, passed by the Central Administrative Tribunal, is set
order dated 3rd of May, 1991, passed by Deputy Commissioner of Police by which
the appellant was dismissed from service as also the order passed in appeal by
Addl. Commissioner of Police are quashed and the respondents are directed to
reinstate the appellant with all consequential benefits including all the
arrears of pay up-to-date which shall be paid within three months from today. There
will, however, be no order as to costs.