1998 Supreme(SC) 1246

1998(9) Supreme 452
Supreme Court of India
(From Delhi High Court)
S. Saghir Ahmad & S.P. Kurdukar, JJ.
Kuldeep Singh -Appellant
versus
The Commissioner of Police & Ors. -Respondents
Civil Appeal Nos. 6359-6361 of 1998
(Arising out of SLP (C) Nos. 1414-16 of 1998)
Decided on 17-12-1998
Counsel for the Parties :
For the Appellant : C.N. Sree Kumar, Advocate.
For the Respondents : V.C. Mahajan, Sr. Advocate, Rajeev Sharma and Ms. Anil Katiyar, Advocates.

Important Points
1. Court cannot sit in appeal over the findings of the Enquiry Officer and assume the role of appellate authority Court can interfere with the conclusion reached if there was no evidence to support the find­ings on the findings are perverse.
2. Rule 16(3) of the Delhi Police (F & A) Rules, 1980 is almost akin to Sections 32 and 33 of the Evidence Act; before the rule can be invoked factors enumerated therein, namely, presence of witness cannot be procured without undue delay, inconvenience or expenses have to be found to be existing.

Headnote:(i) Service Law-Departmental enquiry-Scope of jurisdiction of Court to interfere with findings-Court cannot sit in appeal over findings and assume role of appellate authority-Court can interfere with conclu­sion reached if there was no evidence to support findings or findings are perverse.

       Held : 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 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. 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 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 that evidence. (Paras 6 & 8)

       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 thorougly 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. (Paras 9 & 10)

       (ii) Service Law-Departmental Enquiry - Delhi Police (F & A) Rules, 1980 - Rule 16(3)-Con­di­tions precedent to invoke Rule 16 (3)-Rule 16(3) is almost akin to Sections 32 and 33 of the Evidence Act-Before Rule can be invoked factors enumerated therein, name­ly, presence of witness cannot be procured without undue delay, inconvenience or expenses have to be found to be existing.

       Held : Rule 16(3), 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-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 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. 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 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 exercised. (Paras 27 & 28)

       (iii) Service Law-Departmental enquiry-Reasonable opportunity of being heard as contemplated by Article 311(2) of Constitution-Meaning of-Procedure to bring on record statement made by a witness during preliminary enquiry or investigation - Copy of Statement should first be supplied to delinquent-Delinquent must be given opportunity to cross examine that witness.

       Held : 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 witness. (Para 32)

       (iv) Service Law - Dismissal from service - Validity of-Delhi Police-Delin­quent constable charg­ed with illegally retaining certain amount harded over to him to be given to complainants-Com­plai­nants not examined in departmental enquiry-Person who allegedly gave amount to delinquent denied having made payment to delinquent-Complainants’ so called previous statement brought on record under Rule 16(3)-Conditions precedents to invoke Rule 16(3) not existing-Enquiry Officer did not sit with open mind to hold departmental enquiry-Bias in favour of department had so badly affected Enquiry Officer’s whole faculty of reasoning-Dismissal on basis of enquiry report unsustainable-Appel­lant ordered to be reinstated with all consequen­tial benefits.

       Held : 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 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 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 whose 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”. (Paras 41 & 42)

       Consequently held : 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 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. (Para 43)