COMMISSIONER OF POLICE, DELHI & ORS.versusJAI BHAGWAN

                         [2011] 7 S.C.R. 558


A          COMMISSIONER OF POLICE, DELHI & ORS.
                                   V.
                            JAi BHAGWAN
                   {Civil Appeal No. 4213 of 2011)
                            MAY 10, 2011
B
               [OR. MUKUNDAKAM SHARMA AND
                      ANIL R. DAVE, JJ. ]

        Service Law:
c
          Dismissal - Gross misconduct - Charges of demand and
   receipt of illegal gratification, against respondent-police
   constable - Departmental enquiry - Consequent dismissal
   of respondent - Challenge to - High Court ordered re-
  instatement of respondent, but without any back wages - On
D appeal, held: No direct and reliable evidence was produced
  by the appellants to prove and establish that the respondent
  demanded and received illegal gratification - Also, ·the
  complainant was not examined as witness in the departmental
   enquiry and, therefore, there was no opportunity to cross-
E examine her and, therefore, there was a violation of Rule
   16(iii) of the Rules - The case of the appellants was a case
   of no evidence at all - In the facts and circumstances of this
   case, Supreme Court not only re-iterated the order passed by
   the High Court but further directed that he not be given any
F sensitive posting and be kept under watch - Delhi Police Act,
   1978 - s.21 - Delhi Police (F & A) Rules, 1980 - Rule 16
   (iii) - Violation of - Doctrines/Principles - Principle of natural
  justice.
G       The respondent was working as a Constable in Delhi
    Police and posted at the IGI airport, New Delhi at the X-
    Ray Machine Belt. It was alleged that while being so
    posted, the respondent extorted Rs.1001- by way of illegal
    gratification from one 'R' during the course of security
H                                 558
 COMMISSIONER OF POLICE, DELHI & ORS. v. JAi 559
                BHAGWAN

check of passengers. 'R' purportedly made a complaint         A
to one 'N', Operations Officer of Air France who took the
complainant to 'Y', a Police Inspector on duty at the Delhi
Airport. It was also alleged that the c'omplainant 'R'
identified the respondent, who thereupon returned the
aforesaid sum. of Rs. 100/- to the complainant in the         B
presence of 'Y, and one 'A', a Police Sub-Inspector.
     In view of the allegations made against the
respondent, a departmental enquiry was initiated against
him and an enquiry officer was appointed, who found the
respondent guilty, and consequently the disciplinary          C
authority passed an order dismissing the respondent
from service on ground of grave misconduct. The order
of dismissal was upheld by the appellate authority as well
as by the Tribunal. Respondent thereafter filed writ
petition in the High Court. The High Court held that the      D
case of the appellants was a case of no evidence and that
there was violation of Rule 16 (iii) of the Delhi Police (F
&A) Rules, 1980 and accordingly ordered the
reinstatement of respondent in service but without any
back wages.                                                   E
    In the instant appeal, it was contended by the
appellants that the High Court was not justified in setting
aside the order of dismissal passed against the
respondent.
                                                              F
    Dismissing the appeal, the Court
     HELD: 1.1. During the departmental enquiry
proceedings, 'Y' and 'A' only deposed that Rs. 100/- was
returned by the respondent to the complainant 'R'. During     G
the course of enquiry proceedings no witness was
examined on behalf of the appellants to prove and
establish by tendering any direct, cogent and reliable
evidence that the aforesaid amount of Rs. 100/- was
received by the respondent by way of illegal gratification
from anyone. [Para 12] [566-D-E]                              H
    560     SUPREME COURT REPORTS               [2011) 7 S.C.R.


A         1.2. Strangely the two persons, namely, 'Y' and 'A',
    on the basis of whose statement the present case was
    initiated, have stated that they have not witnessed/seen
    respondent taking any money from the complainant and
    that they have only witnessed the fact of respondent
B   returning money to the complainant. Besides these two
    persons, there must have been many other persons
    including police officers on duty near about the X-Ray
    machine belt but none of them was cited and examined
    as witness during the departmental proceedings to prove
c   and establish that such money as alleged was received
    by the respondent as illegal gratification. The place where
    security check was carried out was an open place and
    there must have been many other persons, besides
    police officers, present at that time but none of them has
0   been examined during the departmental proceedings
    against the respondent to prove the alleged fact of
    demand and receipt of illegal gratification by him.
    Although there is some evidence that an amount of Rs.
    100/- was returned by the respondent to the complainant
    but there is no such direct and reliable evidence
E   produced by the appellants in the departmental
    proceedings which clearly prove and establish that the
    respondent demanded and received an illegal
    gratification of the said denomination. It seems that the
    proof of taking such illegal gratification has been drawn
F   from the evidence of returning of Rs. 100/- to the
    complainant by way of a link up. [Paras 13 and 14) [566-
    F-H; 567-A-C]
       1.3. It also seems quite impracticable to presume that
G in the presence of so many passengers, the respondent
  could have extorted money. The allegation of receiving
  Rs. 100/- as illegal gratification is framed on suspicions
  and possibilities while trying to link it up with the instance
  of returning back of Rs. 100/- by the respondent to the
H complainant. There are many other shortcomings in the
COMMISSIONER OF POLICE, DELHI & ORS. v. JAi               561
               BHAGWAN

entire investigation and the enquiry like the statement of       A
'R' was not recorded by the Inspector and the Inspector
also did not take down in writing and also attest the
complaint made by her. The statement of 'N' was also not
recorded by the Inspector nor did the Inspector seize Rs.
100/- note nor noted down its number. 'N' was also not           B
examined during the course of departmental
proceedings. Non-examination of the complainant and 'N'
during the departmental proceeding has denied the
respondent of his right of cross-examination and thus
caused violation of Rule 16 (iii) of the Delhi Police (F &       c
A) Rules, 1980. (Para 15) [567-E-G]
     1.4. In the absence of a definite/clear proof
supporting the case of the appellants, it is difficult to draw
a finding of taking illegal gratification by the respondent
from the complainant. Therefore, as rightly held by the          D
High Court the present case was a case of no evidence
and there was a violation of Rule 16 (iii) of the Delhi Police
(F &A) Rules, 1980. Albeit there could be a needle of
suspicion pointed towards the respondent. However,
suspicion cannot take the place of proof. In the facts and       E
 ~ircumstances of this case, this Court not only re-iterates
the order passed by the High Court that the respondent
on reinstatement would not be paid any back-wages or
arrears of wages for the period during which he was out
of service but also that he would not be given any               F
sensitive posting and he shall be kept under watch.
[Paras 16, 17, 18 and 19) (567-H; 568-A-E]
    Ku/deep Singh v. Commissioner of Police AIR 1999 SC
677 - referred to.
                                                                 G
                     Case Law Reference:
    AIR 1999 SC 677           referred to          Para 7
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4213 of 2011.
                                                                 H
    562      SUPREME COURT REPORTS               [2011) 7 S.C.R.


A       From the Judgment & Order dated 20.1.2010 of the High
    Court of Delhi at New Delhi in W.P. (C) No. 3591 of 2001.

        Vimla Sinha, D.L. Chidananda, Anil Katiyar for the
    Appellants.

B      AK. Botha, Ravi Kant Jain, Vibhuti Sushant Gupta, Kailash
    Chand for the Respondents.

          The Judgment of the Court was delivered by

          DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
c
        2. This appeal is directed against the judgment and order
  dated 20.01.2010 passed by the High Court of Delhi in Civil
  VVrit Petition No. 3591 of 2001, whereby the High Court allowed
  the Writ Petition filed by the respondent herein and set aside
D the order dated 15.01.2001 passed by the Central
  Administrative Tribunal.

       3. The facts leading to the filing of the present case are
  that the respondent herein, at the relevant point of time, was
E working as a Constable in Delhi Police and was posted at the
  IGI airport, New Delhi at the X-Ray Machine Belt. An allegation
  was made by one Mrs. Ranjana Kapoor that while being so
  posted there the respondent extorted Rs. 100/- by way of illegal
  gratification from her during the course of security check of
F passengers. It is alleged that Mrs. Kapoor made a complaint
  to one S.P. Narang, Operations Officer of Air France who took
  the complainant to O.P. Yadav, Inspector, Delhi Police on duty
  at the Delhi Airport. It is also alleged that the complainant
  identified the respondent, who thereupon returned the aforesaid
  sum of Rs. 100/- to the complainant in the presence of O.P.
G Yadav, Inspector, and Arjun Singh, Sub-Inspector, who were
  also present at that time.

        4. In view of the aforesaid allegations made against the
    respondent, a departmental enquiry was initiated against him
H
 COMMISSIONER OF POLICE, DELHI & ORS. v. JAi 563
   BHAGWAN [DR. MUKUNDAKAM SHARMA, J.]
and a chargesheet was drawn up with a charge to the following        A
effect: -

    "Charge:

   . You, Ct. Jai Bhagwan No. 770/A are hereby charged that
     on the night intervening 6/7.3.95 while performing duty on
                                                                  8
     Belt at X-Ray machine at gate No. 7, 8 and 9 in Shift A.
     NITC had extorted Rs. 100/- as an illegal gratification from
     Mrs. Ranjana Kapoor during the course of Security Check
     of passengers of flight No. AF-177. She made a complaint
     of this incident to Shri P.S. Narang Operations Officer of· C
     Air France, whq introduced her to Shri O.P. Yadav lnspr.
     She handed over a complaint to the Inspector and
     identified you, Ct. Jai Bhagwan No. 770/A as you had
     accepted Rs. 100/- from her which was later on returned
     to her by you in the presence of lnspr. O.P. Yadav and SI D
     Arjun Singh.

    The above act on the part of you, Ct. Jai Bhagwan No. 7701
    A amounts to gross misconduct and unbecoming of a
    police officer which renders you liable to be punished           E
    Under Section 21 of D.P. Act, 1978."           ·       ·

     5. Pursuant to the initiation of the aforesaid enquiry, an
enquiry officer was appointed, who examined four witnesses
produced on behalf of the appellants. Two witnesses were also
produced on behalf of the respondent. After recording evidence       F
and after appreciating the said evidence as also the written
defence statement of the respondent a report was submitted
by the enquiry officer finding the respondent guilty of the charge
drawn up against him.
                                                                     G
     6. With the aforesaid records and the findings, matterwas
placed before the disciplinary authority who directed that any
representation as against the findings recorded by the enquiry
officer could be submitted by the respondent. Pursuant to the
same, the respondent submitted a detailed representation on          H
    564      SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A 30.10.1995. The disciplinary authority after going through the
  entire records passed an order dated 15.11.1995 dismissing
  the respondent from service. It was stated in the said order
  passed by the disciplinary authority that after considering the
  evidence on record, gravity of misconduct and overall facts I
B circumstances of the case it is proved that the respondent
  misused his official position and involved himself in corrupt
  practices I malpractices of illegal gratification and, therefore,
  he is not a fit person to be retained in the police force,
  consequent upon which the punishment of dismissal was
c awarded to the respondent.
        7. Being aggrieved by the aforesaid order passed by the
  disciplinary authority the respondent filed an appeal before the
  appellate authority which was also dismissed vide its order
  dated 19.01.1996. Consequently, the respondent filed a
D revision which also came to be dismissed. Feeling still
  aggrieved the respondent filed an original application before
  the Central Administrative Tribunal [for short "the Tribunal1 which
  was registered as OA No. 1755/1997. By order dated
  15.01.2001 the Tribunal dismissed the aforesaid original
E application as against which the respondent filed a Writ Petition
  in the High Court of Delhi. By the impugned judgment and order
  passed on 20.01.2010 the High Court allowed the Writ Petition
  filed by the respondent. In the aforesaid judgment and order the
  High Court made following observations: -
F
        "4. Undoubtedly, the charges of misuse of position and
        extortion are very serious charges. However, before a
        person is fastened with the punitive liability of charges of
        corruption I extortion, a proper inquiry, following the
        principles of natural justice has to be conducted.
G
        5. It is well settled that the High Court or the Central
        Administrative Tribunal will not interfere with the findings
        of fact recorded at the domestic enquiry, however, if the
        case is a case of no evidence or the finding is highly
H       perverse or improbable then it is the duty of the High Court
 COMMISSIONER OF POLICE, DELHI & ORS. v. JAi 565
  BHAGWAN [DR. MUKUNDAKAM SHARMA, J.]
    and the Central Administrative Tribunal to go into the            A
    merits of the case ..... ."
And while referring to the decision in the case of Kulde~p
Singh v. Commissioner of Police reported in AIR 1999 SC
677 the High Court held that the case of the appellants herein
is a case of no evidence and that there is violation of Rule 16       8
(iii) of the Delhi Police (F &A) Rules, 1980 (for short "the Rules1
and ordered the reinstatement of respondent in service but
without any back wages.
      8. As against that order of the High Court appellants have C
filed the present appeal, in which, notice was issued and upon
service of the said notice, the respondent entered appearance
and, therefore, we heard the learned counsel appearing for the
parties and also perused the materials on record.
                                                                     D
      9. The learned counsel appearing for the appellants
submitted that there was enough evidence on record to find the
respondent guilty of the charge against him. In support of the
said contention reference was made to the decision of the
disciplinary authority as also to the findings of the enquiry E
officer. It was also submitted that Inspector, O.P. Yadav and S.I. ·
Arjun Singh stated in clear terms that they had seen the
respondent returning the aforesaid amount of Rs. 100/- to the
complainant. It was also submitted that there was no violation
of Rule 16(iii) in the present case and, therefore, High Court
was not justified in setting aside the order of djsmissal passed . F
against ~he respondent. ·

     10. The learned counsel appearing for the respondent,
however, while refuting the aforesaid contentions submitted that
the Mrs. Ranjana Kapoor, complainant of the case, was not G
examined as witness in the departmental enquiry and,
therefore, there was no opportunity to cross-examine her and 1
therefore, there is a violation of Rule 16(iii) of the Rules. It was
also submitted that so far as the receiving of illegal gratification ,.
b~ the respondent is concerned, the case of the appellants is H
    566     SUPREME COURT REPORTS                  [2011) 7 S.C.R.

A a case of no evidence at all. In this regard support was also
  taken by the counsel appearing on behalf of the respondent from
  the statements of the Nirmala Devi [DW-1).
        11. In the light of the aforesaid submissiohs we have
  perused the records. The complainant Mrs. Ranjana Kapoor
8
  complained about the said incident to P.S. Narang, Operations
  Officer of Air France, who took the complainant to O.P. Yadav,
  Inspector, Delhi Police on duty at the Delhi Airport and there
  she lodged the complaint to lnspector-0.P. Yadav that the
C respondent has extorted illegal gratification from her amounting
  Rs. 100/- during the course of security check of passengers.
  The records disclose that thereupon lnspector-0.P. Yadav along
  with complainant and P.S. Narang went to the place of the
  security check where, it is stated that, the respondent gave Rs.
  100/- to the complainant in the presence of Arjun Singh, S.I ..
D
        12. O.P. Yadav, Inspector, and Arjun Singh, S.I., during the
  departmental enquiry proceedings have only deposed that Rs.
  100/-was returned by the respondent to the complainant. During
  the course of enquiry proceedings no witness was examined
E on behalf of the appellants to prove and establish by tendering
  any direct, cogent and reliable evidence that the aforesaid
  amount of Rs. 100/- was received by the respondent by way of
  illegal gratification from anyone.
       13. In the present case the strange thing is that the two
F persons~ namely, O.P. Ypdav and Arjun elngh, oo the basis of
  whose statement present ease was initiated, have atated that
  they have not witnessed/seen reppondent taking any money
  from the complainant and that they have only witnessed the fact
  of respondent returning money to the complainant. Even
G othe!Wise, besides these two persons, there muflt have been
  many other persons including police officers on duty near about
  the X-Ray machine belt but none of them was cited and
  examined as witness during the departmental proceedings to
  prove and establish that such money as alleged was received
H by the respondent as illegal gratification. The place where
 COMMISSIONER OF POLICE, DELHI & ORS. v. JAi 567
   BHAGWAN [DR. MUKUNDAKAM SHARMA, J.]
security check was carried out was an open place and there               A
mw~.t have been many other persom;;, besides police officers,
present at that time but none of them has be~n examined
during the departmental proceedings against tha respondent
to prove the alleged fact of demanding and receiving ill~gal
gratification by him:                                                    B

     14. In the present case, although there is some evidence
thatan amount of Rs. 100/- was returned by the respondent to
the complainant but there is no such direct and reliable evidence
produced by the appellants in the departmental proceedings               C
which clearly prove and establish that the·respondent demanded
and received an illegal gratificatlpn of the said deriominatipn.
It seems that the -proof of taking such illegal gratification has
been drawn from the evidence of returning of Rs. 100/- to the
complainant by way of a link up.
                                                                         D
      15. It also seems quite impracticable to presume that in
the presence of so many passengers, the respondent could
have extorted money. The allegation of receiving-Rs. 100/- as
illegal gratification is framed on suspicions and possibilities
while trying to link it up with the instance of returning back of E
Rs. 100/- by the respondent to the complainant. There are many
other shortcomings in the entire investigation and the enquiry
like the statement of Mrs. Ranjana Kapoor was not recorded
by the Inspector and the Inspector also did not take down 'in
writing and also attest the complaint made by her. The F
statement of S.P. Narang WiiS also not recorded by the
Inspector nor did the Inspector seize R$. 1001.. note nor noted
doWn Its number. Mr. Narang wa.s also not examined d1Jr!n9 the
course of departmental proceedings. Non-examination of the
c::omplalnant and P,$, Narang during the departmental G
proceeding has ·denied the respondent of his right of cross-
examination and thus caused violation of Rule 16 (iii) of the
Delhi Police (F & A) Rules, 1960:
     16. In the absence of such a definite/clear proof supporting
the case of the appellants it is difficult to draw a finding of taking   H
    568      SUPREME COURT REPORTS                [2011) 7 S.C.R.


A   illegal gratification by the respondent from the complainant.
    Therefore, as rightly held by the High Court the present case
    is a case of no evidence.

          17. Therefore, in view of the facts and circumstances of
8   the present case at hand we have no hesitation to hold that the
    view taken by the High Court does not suffer from any infirmity
    and that the present is a case of no evidence and that there is
    a violation of Rule 16 (iii) of the Delhi Police (F &A) Rules,
    1980.
c       18. Albeit there could be a needle of suspicion pointed "~
    towards the respondent. However, suspicion cannot take the
    place of proof and, therefore, we find no merit in this appeal
    which is hereby dismissed.

o       19. However, in the facts and circumstances of this case
   we not only reiterate the order passed by the High Court that
   the respondent on reinstatement would not be paid any back-
 , wages or arrears of wages for the period during which he was
   out of service but we also observe that he would not be given
E any sensitive posting and he shall be kept under watch.

    B.B.B.                                    Appeal dismissed.