KULDEEP SINGH

COMMISSIONER OF POLICE AND ORS.

DECEMBER 17,1998

[S. SAGHIR AHMAD AND S.P. KURDUKAR, JJ.]

Service Law:

Delhi Police (F & A) Rules 1980-Rule I6(3)- Natural Justice- C Domestic Enquiry-Termination of service-Non-production of witnesses, and

their previous statements brought on record by Enquiry Officer, whether justified-Held the factors enumerated in the rule constitute a condition--

precedent for the exercise of jurisdiction for this purpose-Held farther, the rule to be considered in the light of Article 3 I I (2) to provide reasonable D opportunity of hearing to the delinquent-In the facts of the case, held, the enquiry affected by bias, and wholly perverse-Evidence Act I872, Sections 32 and 33.

Constitution of India-Articles 226 and 32-Domestic Enquiry - Interference with findings of-Held, normally High Court and Supreme Court E would not interfere with, nor sit in appeal over, findings recorded at the

enqui0~-However, where findings perverse or based on no evidence or made at dictate of superior authority, Court may interj Pre.

The appellant, a Constable in the Delhi Police, was dismissed from service in 1991 after a departmental enquiry found him guilty of having F taken Rs 200 out of Rs 1000 that he allegedly recovered from a factory owner to pay as wages to three labourers-complainants on 22.2.90. The order of dismissal was upheld in appeal before the Additional Commissioner of Police. On 28.2.97, the Central Administrative Tribunal (CAT) upheld the dismissal. A writ petition to the High Court was dismissed since the judgment of the CAT was passed before the date of decision of the Supreme Court in G L. Chandrakumar v. Union of India AIR 1997 SC ll25. A Review Application against the judgment of the CAT was also dismissed.

In appeal before this Court, it was contended for the appellant that the disciplinary enquiry had been violative of natural justice. It was urged that the findings were perverse as no reasonable person could have come to these II 594

KULDEEP SINGH v. COMMR. OF POLICE 595

findings on the basis of evidence brought on record.

It was argued for the Union of India that the appellant had been given full opportunity during the enquiry. While none of the complainants-labourers had been examined for the department, it was contended that under Rule 16(3) of the Delhi Police (F & A) Rules 1980, it was not required where the witness cannot be produced without undue delay, inconvenience or expense, B and his statement made earlier could be placed on record. Further, the scope of judicial review is very narrow and limited, and the Court cannot reappraise evidence and substitute its own conclusion in place of the conclusion of the Enquiry Officer or the disciplinary authority.

Allowing the appeal, this Court

HELD: 1. The power of judicial review available with the High Court and this Court under the Constitution takes in its stride the domestic

enquiry as well. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding D of "guilt" is based on No evidence, or if the findings recorded are 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, it can interfere with the conclusions reached therein. [599-C-D; 600-C-D)

State of A.P. v. Sree Rama Rao, (1964) 3 SCR 25; Central Bank of India E

v. Prakash Chand Jain, (1969) 2 LLJ 377 (SC) Bharat Iron Works v.

Bhagubhai Balubhai Patel, (1976)2 SCR 280 and Rajinder Kumar Kindra

v. Delhi Administration through Secretary, (Labour) (1985) 1 SCR 866, relied on.

2. The charge against the appellant consisted of two components, F namely:

(a) On 22.2.90 the factory owner paid Rs 1000 to the appellant for being paid to the three labourers.

(b)Appellant paid Rs 800 to labourers and kept Rs 200 with himself. G

The factory owner, appearing as a witness, however, denied having made any payment to the appellant on that day. She stated in clear terms that she had not made any payment to the appellant, but had asked the three labourers to come after a few days and it was then that the whole amount which was due from her was paid to them. (602-B-C; H; 603-A) H

596 SUPREME COURT R!cPORTS f 1 '198] SUPP. 3 <;.C.R.

3. The labourers to whom the payment was said to have been made were not produced at the domestic enquiry. Non-production of the complainants was sought to be justified with reference to Rule 16(3). This rule 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 B witness cannot be procured without undue delay. inconvenience or expense, have to be found to be existing as they constitut ihe "condition-precedent" for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised.

(603-F-G; 604-G-H; 605-A] C

4. The Enquiry Officer laid the blame for the non-availability of two of the labourers on the appellant as having managed their disappearance and settling them somewhere in Devli Kanpur. It is not understandable as to how 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 Kanpur, and whether any attempt w s made to D meet them at Devli Kanpur or to bring them to the enquiry procetdings from

that place. It is obvious that the fadors 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. [605-D-FJ

 E

5. Moreover, the so-called previous 5tatemen• of the complainants appears to he a highly suspicious document for the reason that the SHO had stated before the Enquiry Officer that he had received a complaint of the three labourers whereupon all three persons were summoned by him, and after verifying the facts from those complainants had recorded their statement F which he had dictated to the ASI. There were, therefore, two documents, the original complaint made by the three labourers, and the statement as recorded by the ASI at the dictation of the SHO. The original complaint was not placed on the record and it was the statement recorded by the SHO which was produced before the Enquiry Officer. The absence of the original complaint, therefore, indicates that there was, in fact, no complaint in existence which G further supports the statement of the Department's own witness, the factory owner, that no payment was made by her on 22-2-90. [605-F-H; 606-A-B)

6. The third complainant, who appeared as a defence witness, fully supported the appellant. He was held by the Enquiry Officer to be an impostor on the ground that he had not proved himself to be the actual complainant.

H The reasons why he has been held to be an impostor or a false person have

KULDEEP SINGH v. COMMR. OF POLICE 597

not been indicated. The finding in this regard is wholly arbitrary and perverse. A

(607-B-C; F]

7. 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 in accordance with the principles of natural justice to the delinquent.

Having regard to this position in law, and to the fact that the factors set out in Rule 16(3) did not exist with the result that Rule 16(3) could not be invoked, the Enquiry Officer was not right in bringing on record the socalled previous statement of the two witnesses. 1606-B-C; H; 607-A-B]

State of Mysore v. Shiv Basappa, 11963) 2 SCR 943, Kasoram Cotton Mills Ltd. v. Gangadhar, (1964]2 SCR 809 and State of UP. v. Om Prakash Gupta AIR (1970) SC 679, relied on.

8. A voucher dated 8.2.90 for Rs 1000 was recorded by the Deputy D Commissioner of Police in appeal. This document was not mentioned in the charge-sheet, and the charge being that payment was made on 22.2.90, this voucher has to be excluded from consideration. [608-A-B]

9. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles E of natural justice as also that of"reasonable opportunity" contemplated by Article 311 (2). 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. The Enquiry Officer has acted so arbitrarily in the matter and has found the appella.nt guilty in such a coarse manner that it becomes F apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up". 1608-F-Hl

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6359-6361 of 1998.

From the Judgment and Order dated 19.9.97 of the Delhi High Court in C.W.P. No. 3915 ofl997.

C.N. Sree Kumar, for the Appellant.

V.C. Mahajan, Rajeev Sharma and Ms. Anil Katiyar for the Respondents H

A The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. Leave granted.

The appellant, a constable in the Delhi Police was dismissed, after a regular departmental enquiry, from service, by order dated 03.05.1991, passed B by Dy. Commissioner of Police, South District, New Delhi, which was upheld in appeal by Addi. 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 February, 1997, dismissed the Claim Petition.

C A writ 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 was rendered in L. Chandra Kumar v. Union of India & Others, AIR ( 1997) SC 1125 = (1997] 3 SCC 261, in which it was held that a writ petition against D 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 26.05.1997.

Learned counsel for the appellant has contended that the findings E 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.

F Learned 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 G 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 jn-the H 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 A brought on record without examining any of them. J., earned 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 B authority on that evidence.

It is 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 C 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 D prudent man or the findings were perverse or made at the dictate of the superior authority.

In Nand Kishore v. State of Bihar, AIR (1978) SC 1277 =[I 978] 3 SCC 366 = [ 1978] 3 SCR 708, it was held that the disciplinary proceedings before E 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 F 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.

The 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 G 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 v. 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 H

A decision was followed in Central Bank of India v. Prakash Chand Jain, 1969 2 LLJ 377 (SC)= AIR 1969 SC 983 and Bharat Iron Works v. 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 v.

Delhi Administration through Secretary (Labour) and Ors., AIR (1984) SC B 1805 = [1985] l 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 C infirmity of non-application of mind and stands vitiated.

Normally 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 judicial scrutiny.

. A 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 E 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.

In the light of the above principles, let us scrutinise the case in hand.

p The 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 G labourers, Shri Radhey Shyam S/O Shri Phool Vash. Shri Rajpal Singh S/O Shri Brahma Nand and Shri Shiv Kumar S/0 Shri Ganga Ram. All these three labourers had made a complaint that Smt. Meena Mishra had stopped their payment or Rs. 2200 for three months.

The above act on your part amounts to grave misconduct and H unbecoming of a police officers which renders you, constable Kuldeep

KULDEEP SINGH v. COMMR. OF POLICE [S. SAGH!R AHMAD, J.] 601

Singh No. 2138/SD, liable for punishment u/s 21 of Delhi Police Act, A 1978.

Sci/- Shakti Singh

SHAKTI SINGH Inspector, Enquiry Officer, DE Cell, Vigilance, Delhi." B

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

Sh. D.D. Sharma, Insp. the then S.H.O. Ljpat Nagar,

Smt. Meena Mishra RIO A-25, Garhi, Lajpat Nagar,

Sh. Rajpal Singh S/O Brahama Nand RIO Village Ram Nagar, P.S.

Baroli Distt. Etah (U.P.)

Radhey Sham S/O Phool Vash

RIO Distt. Etah Village Bulat Puri U.P. at present H.No. 74 Main Market Garhi Lajpat Nagar.

SO/DE Cell"

He will move him to present. c

She will depose that she had given Rs. I 000 to Ct. Kuldeep Singh on 22.2.1990 for payment to 3 labourers and Constable had D kept Rs. 200 with him.

He will depose that on 22.2.90 he along with Shiv Kumar and Radhey Shyam had gone to factory A-25, Garhi with Ct. E kuldeep Singh for settlement of payment and he kept Rs.200 with him.

-do- F

The list of documents, indicated in the charge-sheet, was:- G

List of documents.

Copy of report of SHO/Lajpat Nagar, dated 5.3.1990 against Constable Kuldeep Singh No. 2138/SD.

A 2 Copy of Labourers Statement.

SO/DE Cell."

The charge against the appellant thus was that on 22.2.1990, three labourers, namely, Radhey Shyam, Rajpal Singh and Shiv Kumar who were B working in the factory of Smt. Meena Mishra 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 labourers went to the factory owner who gave Rs. 1000 to the appellant for payment to the three labourers but the appellant did not pay the C whole of the amount to them and instead gave them only Rs. 800, keeping an amount of Rs. 200 in his own pocket.

In 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 D Enquiry 0~5cer, a copy of which has been placed on the record.

Smt. Meena 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.

E 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 Ku/deep 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.

F Inspector D.D. Shanna, 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.

G No other witness was examined on behalf of the Department, not even the complainants, Rajpal Singh and Radhey Shyam, though their nc:mes were mentioned in the charge-sheet for being examined as witnesses against the appellant.

The appellant examined one of the complainants, namely, Shiv Kumar H 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, A namely, Radhey Shyam and Rajpal Singh after few days and when they went again to her, she made the full payment. The appeliant 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 B 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 Sir.gh that Smt.

Meena Mishra had agreed to pay the amount due from her to these three persons after a few days.

ASI Jagdish Prasad and ASI Bhopal Singh, who were also examined in defence, corroborated the above statement of constable Shoukat Ali.

ASI Bhopal Singh further stated that the appellant was deputed by him

to go to Smt. Meena Mishra with the complainants and the appellant, on his return from the factory, told him that Smt. Meena Mishra had agreed to make D payment to the three labourers a few days later. The witness, however, stated that all the three labourers 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.

This was the entire evidence produced at the domestic enquiry.

What 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 F 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.

Non-production of the complainants is sought to be justified with G 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 H

witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross examine 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 ot by a Maistrate 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

~.; ought 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 cross E examine 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 on record. The further requirement is F 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 G of the witness whose presence could not be procured.

Rule 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 H 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 A exercised.

Rajpal 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 Radhey Shyam have not attended to proceeding. They have not been found residing

in their village now 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 C defaulter to create his defence and is an attempt to hide his misconduct.

Though their complaint Ex. PW-I/A has been exhibited and has been taken on file to ascertain the facts and for natural justice.

This will show that the blame for the non-availability of these two witnesses has been laid on the appellant who was already under suspension D 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 Dev Ii Khanpur.

If it was known to the Enquiry Officer that they were available in Devli Khanpur, was any attempt made to contact them at Dev Ii Khanpur or to bring E 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 F 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 documents:

(i) The original complaint made by the aforesaid three persons:

(ii) 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.

A 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 ex.istence which further supports the statement of Department's own witness Smt. Meena Mishra that no payment B was made by her on 22.02.1990.

Apart 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 C "Hearing" in accordance with the principles of natural justioe 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 investigatfon, is proposed to be bnught on record in the departmental D 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 witness.

In State of Mysore v. Shiv Basappa, [1963] 2 SCR 943 =AIR 1963 SC E 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 F 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.

In Kasoram Cotton Mills Ltd. v. Gangadhar, [1964] 2 SCR 809 =AIR G (1964) SC 708 and State of U.P. v. 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.

Having regard to the law as set out above, and also having regard to H the fact that the factors set out in Rule 16(3) of the Delhi Police (F&A) Rules,

KULDEEP SINGH v. COMMR. OF POLICE [S. SAGH!R AHMAD, J.] 607

1980, did not exist with the result that Rule 16(3) itself could not be invoked, A 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.

It will be noticed that there were three complainants but only two, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Why B 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 C 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 I 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 D complaint to the SHO. His version has been contradicted by ASI Jagdish Prasad, DW-4 the writer of this complaint Ex PW-I/A. DW- 6, ASI Bhopal Singh, has also confirmed that Shiv Kumar had signed Ex PW-I/A. Both these defence witnesses have been produced by the defaulter himself. So the statement ofDW-1, Shiv Kumar has not been relied upon because he is not actual Shiv Kumar who is a complainant E in this case and is a false person who has been produced 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 F perverse.

The 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 Addi. Commissioner of Police, before whom the appeal was G filed by the appellant, also agreed with the findings recorded by the Enquiry Officer as also the Deputy Commissioner and dismissed the appeal on 22.07.1991.

From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs. 1000 H

A 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 Marc_h, 1990 against the appellant and the copy of the labourers' statement. This document has, therefore, to be B 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.

C To sum up, the charge against the appellant consisted of two components, namely :

(a) On 22.:.90 Smt. Meena Mishra paid Rs. 1000 to the appellant for being paid to the three labourers.

(b) Appellant paid Rs. 800 to labourers and kept Rs. 200 with himself.

Smt. Meena 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 E 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.

The Enquiry Officer did not sit with an open mind to hold an impartial F 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 nonproduction of the complainants was ascribed to the appellant which squarely G 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 H superior officer who perhaps directed "fix him up".

For the reasons stated above, the appeals are allowed. The judgment A and order dated 28th February, 1997, passed by the Central Administrative Tribunal, is set aside. The 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 Addi. 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 B be paid within three months from today. There will, however, be no order as to costs.

U.R.

Appeals allowed.