Central Administrative Tribunal - Delhi
Charan Singh vs Comm. Of Police on 4 September, 2023
1 OA No.2498/2014
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2498 of 2014
Orders reserved on : 18.08.2023
Orders pronounced on : 04.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Constable Charan Singh
Age : 45 years
S/o Kartar Singh
R/o H.No. 448/20 Shakti Nagar,
Gurgaon, Harayana.
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Govt. of NCTD through
The Commissioner of Police,
Delhi Police,
PHQ, I.P. Estate,
New Delhi.
2. The Special Commissioner of Police,
(Intelligence & Armed Police)
Through
Delhi Police, PHQ, I.P. Estate,
New Delhi.
3. The Deputy Commissioner of Police,
1st Bn. DAP, Delhi
Delhi Police,
PHQ, I.P. Estate,
New Delhi.
2 OA No.2498/2014
4. The Deputy Commissioner of Police,
Outer Distt. Delhi
Through
Commissioner of Police
Delhi Police,
PHQ, I.P. Estate,
New Delhi.
...Respondents
(By Advocate: Shri Amit Anand)
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
The instant OA was earlier dismissed by this Tribunal vide Order/Judgment dated 8.3.2019. Being aggrieved by the said Order/Judgment of this Tribunal, the applicant had approached before the Hon'ble Delhi High Court by way of Writ Petition (Civil) No.9781/2019 and the Hon'ble High Court vide Order/Judgment dated 31.10.2022 disposed of the said Writ Petition, the relevant portion of the same reads as under:-
"3. Perusal of the impugned order dated 27.02.2019 shows that the Tribunal after noticing the factual matrix of the case, referring to the judgment of the Supreme Court and noticing the contention of learned counsel for the parties, has dismissed the Original Application recording as under :-
"8. In view of the facts of the case narrated above and in view of the law laid down by the Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or 3 OA No.2498/2014 principles of natural justice, the OA requires to be dismissed."
4. Order of the Tribunal is a cryptic order, which does not deal with any of the submissions of either the Petitioner or the Respondent and has also not observed as to how the judgment of the Supreme Court, as extracted by the Tribunal are applicable to the facts and circumstances of the case. There is no discussion on the merits of the contention of either party.
5. In view of the above, impugned order is not sustainable and accordingly the matter is liable to be remitted to the Tribunal for a fresh consideration in accordance with law.
6. In view of the above, impugned order dated 27.02.2019 is set aside. The matter is remitted to the Tribunal for passing a fresh speaking order in accordance with law.
7. Petition is disposed of, in above terms.
8. It is clarified that this Court has neither considered nor commented upon the merits of the contention of either party. All rights and contentions of parties are reserved."
In the above circumstances, the matter was listed for fresh consideration.
2. Accordingly, we have heard the learned counsels of the parties and perused the pleadings available on record.
3. The factual matrix of the case are that the applicant alongwith three others when posted on vehicle checking duty, was alleged to be taking money from the bike riders in the name of vehicle checking 4 OA No.2498/2014 and that the applicant assisted his Head Constable in taking money by threatening the bike rider to impound his vehicle, a summary of allegation was issued to the applicant. The said summary of allegation is extracted below:-
"It is alleged against SI Anil Bilung No. D-4348 (PIS No. 16080252), HC Anil Kumar No. 490/DD(PIS No. 28961381), Ct.Charan Singh No. 1264/OD (PIS No. 28071969) and Ct. Naveen Kumar No. 1562/OD (PIS No. 28040232) that while posted at Police Station Sultan Puri, Outer Distt. Delhi on 06.12.2010 (10AM to 2.00PM) OA 2498/2014 3 during the vehicle checking duty at Picket AB Extension near the drain bridge connection Sultanpuri and Mangolpuri, they were caught in the video CD taking the money from a bike rider in the name of Vehicle checking during a sting operation conducted by one Satish Kumar R/o A-71, Shastri Nagar, Delhi Senior correspondent of Satya Parkash Times (Hindi News Paper). HC Anil Kumar accepted money from the bike rider whereas Ct. Charan Singh assisted in the act of taking money by threatening the bike rider to impound his bike, SI Anil Bilung helped in the act of taking money by shown indifference to the request of the bike rider to let him go and Ct.Naveen Kumar was also involved in the act by writing down vehicle numbers during the checking at the picket.
The above act on the part of SI Anil Bilung No. D-4348 (PIS No. 16080252), HC Anil Kumar No. 490/DD(PIS No. 28961381), Ct.Charan Singh No. 1264/OD (PIS No. 28071969) and Ct. Naveen Kumar No. 1562/OD (PIS No. 28040232) amount to grave misconduct which renders them liable to be 5 OA No.2498/2014 dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules, 1980."
4. Alongwith the summary of allegation, list of documents and list of witnesses were served on the applicant. On all the other three police officials also similar summary of allegation were served and as all the four police officials including the applicant did not admit the charge, an Inquiry Officer was appointed for conducting joint departmental enquiry against all of them. The Inquiry Officer after concluding the said inquiry, returned the findings vide his inquiry report dated 7.11.2012 and so far as the applicant is concerned, held that the charge levelled against the applicant and co-accused HC Anil Kumar proved beyond any shadow of doubt that they demanded and accepted Rs.100/- from the boy, who was accompanying PW-4 Sh. Satish Kumar, in releasing the motor cycle. Agreeing with the finding of the E.O., a copy of the same was served upon the applicant and other co-accused by the disciplinary authority to enable them to submit their representations, which 6 OA No.2498/2014 the applicant and other co-accused/delinquent had submitted and thereafter after hearing them in O.R, the disciplinary authority awarded the punishment of forfeiture of three years approved service permanently upon the applicant and his another co-accused and other two co-accused were awarded the different punishment. Being aggrieved, the applicant and other co-accused have filed their appeals. The appellate authority after considering the appeals of the applicant and his co-accused modified the above punishments awarded to them and so far as applicant and another co-accused are concerned, the said punishment was modified to that of forfeiture of one year approved service temporarily for a period of one year and the period of suspension, i.e., from 22.6.2011 to 13.1.2012 in respect of the applicant and his another co-accused was affirmed by the appellate authority to be treated as 'period not spent on duty'. Being aggrieved, the applicant has filed this OA, which was earlier dismissed by this Tribunal vide order/judgment dated 8.3.2019 and on challenge of 7 OA No.2498/2014 the said order/judgment of this Tribunal before the Hon'ble Delhi High Court, the same was disposed of by the Hon'ble High Court vide order/judgment dated 31.10.2022 and remitted the matter before this Tribunal for fresh consideration, relevant portion of the said order/judgment of the Hon'ble High Court has already been reproduced in the first para of this Order.
5. During the course of hearing, Shri Chauhan, learned counsel for the applicant has argued that the departmental enquiry initiated against the applicant is vitiated, as the same is in violation of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980, as it is an admitted position that preliminary enquiry was conducted in order to ascertain the facts of the complaint, thereafter a report was submitted and on the basis of said report in which a cognizable offence in relation of discharge of duty regarding public was made out, departmental enquiry was initiated, however, without seeking the permission of Additional Commissioner of Police, which is clearly in violation of 8 OA No.2498/2014 Rule 15 (2) of the Rules ibid. In support of this contention, learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vijay Singh vs. Union of India and others, reported in (2007) 2 SCC (L&S)
664. 5.1 Learned counsel for the applicant has further argued that the present case is a case of no evidence and no misconduct, as is clearly evident from the impugned order passed by the appellate authority that:-
I. The CD on the basis of which the allegations are made and proved against the applicant is neither exhibited nor authenticated nor proved by Satish Kumar;
II. The boy, who accompanied Satish Kumar, his identity is not disclosed;
III. The quality of the video in the CD is very poor; IV. There are unexplained breaks in the video clipping;
V. As per the video clipping, the applicant neither demanded nor expected the money;
VI. The boy as per the allegation, the boy who had actually paid the money in the sting operation 9 OA No.2498/2014 could never be examined neither in the vigilance enquiry nor in the department enquiry; VII. The so called shooter of the video that is Shri Satish Kumar is not visible in the video clipping or otherwise;
VIII. It is admitted by the appellate authority that it is a case of very weak evidence; and IX. It is further admitted by the appellate authority that in this case delinquents are being punished on suspicion.
On the strength of the aforesaid, learned counsel for the applicant has argued that once the appellate authority has recorded the above in the impugned order then by no stretch of imagination, one can expect that the appellate authority can impose the punishment upon the applicant. As such, learned counsel has submitted that the impugned orders are liable to be quashed by this Tribunal. In support of this contention, learned counsel for the applicant has also placed reliance on the judgment of the Hon'ble Supreme Court dated 19.12.2008 in the case of Roop Singh Negi vs. Punjab National Bank & others in Civil Appeal No.7431/2008.10 OA No.2498/2014
6. Per contra, Shri Anand, learned counsel the respondents, with the assistant of the counter reply, has raised the preliminary objections by placing reliance of the Hon'ble Supreme Court in the case of B.C. Chaturvedi vs. Union of India, reported in (1995) 6 SCC 749, relevant portion of which reads as under:-
12....The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
Learned counsel for the respondents has further submitted that in this case punishment was rightly imposed by the appellate authority having regard to the evidence on record and keeping in view of the above, no interference is warranted in this case by this Tribunal.
11 OA No.2498/20146.1 Learned counsel for the respondents has further submitted that it is well settled law that disciplinary proceedings are not akin to criminal proceedings as the standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. In this regard, he placed reliance on the judgment of the Hon'ble Apex Court in the case of Union of India vs. Sardar Bahadur, reported in (1972) 2 SCC 225. He has further submitted that strict rules of procedures and proof do not apply to a departmental enquiry, as held by the Hon'ble Apex Court in the case of Union of India vs. A. Nagamalleshwara Rao, reported in A.I.R. 1998 SC
111. He has also submitted that the court may not interfere with the punishment awarded to the applicant in view of the decision of the Hon'ble Supreme Court in the case of Government of India Vs. Parmananda, reported in AIR 1989 SC 1185. He has further submitted that this Tribunal cannot re- appreciate the evidence and come to its own conclusion in view of the following decisions of the Hon'ble Apex Court:- 12 OA No.2498/2014
i. State of Tamil Nadu vs. S. Subramanyan, reported in (1996) 7 SCC 509;
ii. State of Tamil Nadu vs. K.V. Perumal, reported in (1996) 5 SCC 474; and iii. State Bank of India vs. S.K. Endow, reported in (1994) 2 SCC 537.
6.2 Learned counsel for the respondents has submitted that the instant DE was ordered at the behest of C.P., Delhi after perusing the Vigilance Report, hence, the question of procuring the approval under Rule 15 (2) of the Rules ibid does not arise.
Hence, the plea raised by the applicant is not sustainable in the eyes of law. The appellate authority has decided the appeal on merits of the applicant's case and passed a speaking and reasoned after considering all valid grounds raised by the applicant in his appeal and accordingly modified the punishment keeping in view the gravity of misconduct committed by the applicant. Learned counsel also emphasised that the question is not that who made the CD, while the fact is that CD was attached with 13 OA No.2498/2014 DE file as well as also made available during the vigilance enquiry and the applicant and co-delinquent HC Anil Kumar have been found involved in corrupts/malpractices during the vehicle checking duty and, therefore, the plea that CD was not proved by the maker does not carry weight. Further on the basis of substantial evidence, it has been established that the applicant along with co-delinquent involved himself in corrupt activities and malpractice.
7. In rebuttal, Shri Chauhan, learned counsel for the applicant besides reiterating his arguments, as noted above, has submitted that once the appellate authority within the body of its order has clearly recorded that the authenticity of video-clipping is not established and further the same is not even being proved then no reliance whatsoever legally could be placed by the disciplinary authority on such a CD, the authenticity and genuinity of which is not proved. The applicant has made a defence before the authorities that the present so called illegal sting operation has been done with the malafide reasons of Shri Satish 14 OA No.2498/2014 with sole object to blackmail the police official and those police officials, who do not fall within his trap were being subjected to present departmental enquiry and the same defence was taken before the Enquiring Authority who failed to consider the same and as such any conclusion being drawn by the Enquiry Officer on the basis of the said CD, which has not been proved in the departmental enquiry, is vitiated as it is a non- admissible piece of evidence and, therefore, vitiated the entire departmental enquiry. In support of this contention, learned counsel for the applicant has placed reliance on the common order/judgment dated 3.12.2012 of this Tribunal in OA No.4097/2011 and a Batch, titled ASI Pale Ram and others vs. The Commissioner of Police and others.
8. Having regard to the above submissions of learned counsels for the parties and having perused the judgments relied upon by the learned counsels for the parties, we observe that this Tribunal fully aware of the propositions of law laid down by the Hon'ble Apex Court in the cases relied upon by the 15 OA No.2498/2014 respondents, as noted above, and this Tribunal is also guided by the same, as in B.C. Chaturvedi (supra), the Hon'ble Apex Court ruled that 'The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
9. Now we deal with the first contention of the learned counsel for the applicant that there is a violation of provisions of Rule 15 (2) of the Rules ibid. Rule 15 (2) of the Rules ibid provides that :-
In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.16 OA No.2498/2014
From a plain reading of this Rule, it is evidently clear that the same is mandatory in nature and has to be followed in true letter and spirit. There is no rebuttal to the contention of the applicant by the respondents that no prior approval of the Additional Commissioner of Police concerned for initiation of the departmental enquiry against the applicant had been taken, as the preliminary enquiry discloses the commission of a cognizable offence by the applicant. However, the learned counsel for the respondents has submitted that DE was ordered at the behest of C.P., Delhi after perusing the vigilance report.
But once a preliminary enquiry was conducted which discloses the commission of a cognizable offence by the applicant, prior approval of the Additional Commissioner of Police is mandatory as provided under Rule 15 (2) of the Rules ibid. The Hon'ble Supreme Court in Vijay Singh (supra) held as under:-
"5. To appreciate the present controversy in proper perspective Rules 15(1) and (2) of the Rules are reproduced:
"15. Preliminary enquiries.--(1) A preliminary enquiry is a fact-finding enquiry. Its purpose is (i) to establish the nature of default and identity of defaulter(s), (ii) to collect prosecution evidence, (iii) to 17 OA No.2498/2014 judge quantum of default, and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. In cases where specific information covering the abovementioned points exists a preliminary enquiry need not be held and departmental enquiry may be ordered by the disciplinary authority straightaway. In all other cases, a preliminary enquiry shall normally precede a departmental enquiry.
(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
(3) * * *"
6. A reading of Rules 15(1) and (2) together and the language employed therein clearly discloses that a preliminary enquiry is held only in cases of allegation, which is of weak character and, therefore, a preliminary enquiry is to be held to establish the nature of default and identity of defaulter; to collect the prosecution evidence; to judge quantum of default and to bring relevant documents on record to facilitate a regular departmental enquiry. In cases, where specific information is available, a preliminary enquiry is not necessary and a departmental enquiry may be ordered by the disciplinary authority straightaway. It is because of this reason sub-rule (2) of Rule 15 is couched in such a way as a defence to the delinquent officer. The 18 OA No.2498/2014 Additional Commissioner of Police being higher in hierarchy next to DGP, the requirement of his approval is mandatory, so that the delinquent officer is not prejudiced or harassed unnecessarily in a departmental enquiry. Such approval, if any, must also be accorded after due application of mind. It is a case of violation of mandatory provisions of law. Therefore, the appeal must succeed. The appellant was dismissed by an order dated 21-1-1998 preceded by an enquiry. The order of dismissal is set aside. The appellant shall be reinstated forthwith. The orders of the appellate authority, the revisional authority and the High Court are set aside."
10. Further from the perusal of the aforesaid order passed by the appellate authority, we find that the appellate authority itself recorded in its order that 'I find that Const. Charan Singh neither demanded nor accepted the money, as evident from the video-clipping and its transcript, though he was the persons who had intercepted the bikers and done most of the talking. It was HC Anil Kumar, who had demanded and accepted the money (who has not preferred an appeal). Then how can Enquiry Officer and the disciplinary authority reached the conclusion that Const. Charan Singh and HC Anil Kumar were at the same footing and the charge against them was proved beyond reasonable 19 OA No.2498/2014 doubt.' Appellate authority had further recorded in the said order that 'This is absolutely a case of 'very week evidence' and the police personnel seen in the video-footage performing duties with HC Anil Kumar, who was engaged in collecting money from a bier, cannot be punished on the basis of conjecture and surmises only.' Although the appellate authority modified the punishment awarded to the applicant by the disciplinary authority, however, when the appellate authority itself recorded the above reasoning on the applicant's appeal, the modified punishment awarded by the appellate authority to the applicant vide impugned order is not based on any justification recorded in the said order and as such the same is liable to be quashed.
11. In view of the above facts, discussion and law, the present OA is allowed with the following order:-
(i) The impugned orders dated 3.5.2013 and 20.1.2014 passed by the disciplinary and appellate authorities are set aside.20 OA No.2498/2014
(ii) The applicant shall be entitled to consequential benefits, i.e., restoration of forfeiture of service on account of impugned orders of penalty, seniority, promotion etc.
(iii) The aforesaid directions shall be complied with within a period of 10 weeks from the date of receipt of a copy of this Order.
12. In the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/