Central Administrative Tribunal - Delhi
Constable Brijbeer Singh vs Govt. Of Nct Of Delhi Through on 29 January, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1978/2012
Reserved on : 23.01.2013.
Pronounced on :29.01.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Constable Brijbeer Singh,
(PIS No. 28890335)
S/o late Sh. Mahender Singh,
R/o VPO : Bamnauli,
Distt: Baghpat, UP. . Applicant
(through Sh. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi through
its Chief Secretary,
Delhi Secretariat,
I.P. Estate, New Delhi.
2. Jt. Commissioner of Police
(New Delhi Range), PHQ,
I.P. Estate, New Delhi.
3. Addl. DCP (North-East Distt.)
through Commissioner of Police,
PHQ, IP Estate, New Delhi. . Respondents
(through Sh. Amit Anand, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(1) To quash and set aside the impugned orders mentioned in Para-1 of O.A., direct the respondents to restore to the applicant his forfeited service and reduced pay with all consequential benefits including promotion/seniority and arrears of pay.
(2) To award costs in favor of the applicant and (3) To pass any order or orders, which this Honble Tribunal may deem just & equitable in the facts & circumstances of the case.
2. Brief facts of the case are that the applicant is working as a Constable in Delhi Police. On 10.05.1998, the applicant witnessed that a Maruti Van which was driven in a rash and negligent manner struck Constable Rohtash Singh. He saw the accident and stopped the said Maruti Van and took the injured Constable to R.M.L. Hospital in the same Maruti Van. He also produced before SI Subhash one Sh. Charanjeet Singh, who was allegedly driving the vehicle involved in the accident. A case u/s 279/337/304-A IPC was registered against Sh. Charanjeet Singh and statement of the applicant was also recorded u/s 161 Cr.P.C. However, during trial the applicant was not able to identify the accused and since the applicant was a material witness in the said case, the accused was acquitted by the Court. For this, the respondents commenced departmental proceedings against the applicant and entrusted the enquiry to Inspector Ombir Singh. The Enquiry Officer (EO) found the charge against the applicant to have been proved. The Disciplinary Authority (DA) agreeing with the findings of the EO imposed on the applicant punishment of forfeiture of three years approved service permanently entailing proportionate reduction in his pay from Rs.4220/- to Rs. 3965/- vide its order dated 14.06.2005. The applicant filed an appeal against this order but the Appellate Authority (AA) rejected the same on 26.08.2011. Aggrieved by the same, the applicant has filed this O.A. before us.
3. We have heard the learned counsel for both sides and perused the material placed on record.
4. Learned counsel for the applicant Sh. Anil Singal argued that the applicant had appeared in the Court as an independent witness and not as part of the prosecution. He could not identify the accused because the accused was a sikh who had shaved of his hair by then. Learned counsel further argued that the Court has not passed any strictures against the applicant as the Court did not find anything wrong with the statement of the applicant. Thus, Rule-13 of Delhi Police (Punishment & Appeal) Rules, 1980 cannot be applied in this case. He also argued that the Court did not find this as a case of false evidence and has not initiated proceeding against the applicant u/s 340/344 of Cr.P.C. Thereafter, learned counsel drew our attention to the statements given by the witnesses. According to him, the EO himself cross examined the witnesses as is evident from the number and nature of questions asked by him from the witnesses. Sh. Singal, learned counsel further stated that although the questions asked by the EO from the witnesses were in the nature of cross examination, yet deliberately the EO in his findings has recorded them as Court questions. According to the learned counsel for the applicant, it is obvious that these questions were going beyond clarifications which the EO is entitled to seek. He drew our attention to the statement of PW-2 in which it is specifically written Crossed by EO, which according to learned counsel, clearly proves that the EO was himself cross examining the witnesses. The conduct of the EO shows that he lacked objectivity and this has vitiated the proceedings according to Sh. Singal.
5. The respondents, on the other hand, argued that the applicant was a material witness of the accident in which one Constable of the Force lost his life. He had stopped the Maruti Van and had taken the injured Constable to the Hospital in the same van driven by the accused Charanjeet Singh. Thus, the applicant was with the driver of the van for a few hours. Learned counsel for the respondents stated that it was unbelievable that the applicant could not recognize the accused in the Court because of which the accused was acquitted. Further, during disciplinary enquiry, the applicant stated that he could not recognize the accused because the EO had not briefed him and because that was the first time he was appearing in the Court for evidence. This explanation of the applicant, according to the respondents counsel, was not believable and could not be accepted.
6. The applicant (Brijbeer Singh) was a material witness of the accident. Being a Member of the Police Force, it was his duty to assist in prosecution of the accused of the said accident. We agree with the respondents that having spent few hours with the accused at the time of accident and taking the injured Constable to the hospital, the applicant should have been able to identify the accused. In our opinion, even if the applicant appeared before the Court as an independent witness, his conduct before the Court could be a matter of disciplinary proceedings. The fact that Court did not pass strictures against the applicant or did not initiate proceedings u/s 344 of Cr.P.C. does not take away the authority of superior officers of the applicant to initiate the disciplinary proceedings against him. As such, we do not find any merit in the argument of the applicants counsel on this issue. The applicants counsel had also tried to raise the following legal issues:-
Whether it amounts to misconduct under service jurisprudence when a witness who is also a Govt. servant is declared Hostile by the Court in a criminal case?
Whether it amounts to misconduct under service jurisprudence when a police officer as a police officer who was associated in the investigation of the case is declared hostile by the Court in a criminal case?
Whether it amounts to misconduct under service jurisprudence when a police officer as a complainant (who could have been anybody else also) who was associated in the investigation of the case is declared hostile by the Court in a criminal case?
7. However, as stated above, in our opinion, the misconduct of any government servant before the Court of Law is punishable under the relevant disciplinary rules. The other point raised by the learned counsel for the applicant was that the EO himself was cross examining the witnesses. On going through the questions paused by the EO to the witnesses, we find that there number was too large. Moreover, they did not appear to be only in the nature of clarifications being sought by the EO. Questions asked by him from PW-1 shown as Court Questions were as follows:-
1. Who I.O. had recorded your statement on 10.5.98?
2. The statement which had been given on 10.5.98 by you to I.O. on which No. of Maruti Van was written DL-6CD-3224.
3. In the same statement you said that Maruti Van hit Ct. Rohtash and he fall down and his head struck against the ground.
4. Is it right that you knew this fact very well and had told the name of Ct. Rohtash to I.O. and now you are deliberately saying that you did not know the name of person who was hit by Maruti Van?
5. Then now, why are you taking the name of one person instead of Ct. Rohtash?
6. The statement that had been given by you to I.O. on 10.5.98 therein you got written that accident happened in front of your eye during your duty and driver of Maruti Van was driving the Maruti Van fast, carelessly and negligence due to which accident occurred.
The statement which had been given by you to I.O.
on 11.5.98 therein you, got written that when after committing the accident driver Sikh of Maruti Van ran towards Vijay Chowk, Ct. Brijbeer who was posted in your unit and was on duty, stopped the said Maruti Van and thereafter Ct. Rohtash was rushed to RML Hospital in the same Maruti Van and the same sikh driver was driving the M/Van which is marked as Ex. PW-1/B. What did you do on 10.5.98 after accident?
How far away Maruti Van was stopped from the point where it hit Ct. Rohtash?
After stopping Maruti Van, the same was brought there where Ct. Rohtash was lying injured.
How far away was the point from your duty point where M/Van hit Ct. Rohtash?
When Maruti Van was brought there after it hit Ct. Rohtash and he got injured who was sent with him?
Is it right that driver of Maruti Van Sikh who hit Ct. Rohtash and the Maruti Van which was stopped and brought and in which Ct. Rohtash was sent to R.M.L. Hospital with Ct. Brijbeer was the same driver?
Similarly, the Court Questions asked by him from PW-2 were as follows:-
1. Whether Maruti Van No. DL-6CD-3224 from which accident happened was produced by Ct. Brijbeer?
2. Whether you got Ct. Brijbeer signed on the seizure memo. of above Maruti Van?
3. Whether had you prepared personal search of accused Charanjeet Singh?
4. Whether you got Ct. Brijbeer signed on personal search of accused Charanjeet Singh?
5. It is very necessary to present eyewitness for TIP. Without eyewitness TIP could not be conducted. Is it right?
6. As you told during cross-examination by defence assistant that Ct. Yogesh and Ct. Brijbeer both were eyewitnesses than why did you not get TIP conducted of driver of Maruti Van?
8. The nature of these questions leaves us with no doubt that they cannot be termed as clarifications being sought by the EO leading to the inevitable conclusion that EO has himself cross examined the witnesses. Learned counsel for the applicant cited the decision of the Honble High Court of Delhi in W.P.(C) No. 3466/2010 (Commissioner of Police and Ors. Vs. Bikram Singh) dated 16.07.2010, paras-9 & 10 of which read as follows:-
9. Apparently, the aforesaid question are cross examination of witnesses. The record shows that not only the Enquiry Officer cross-examined the witnesses but also gave no opportunity to the charged official to further cross-examine the witnesses. The aforesaid questions put to witnesses are not in the nature of clarification as submitted by the petitioners.
10. It is well-settled that an Enquiry Officer does have a right to ask clarificatory questions as the Enquiry officer is not supposed to act as a silent spectator. However, if he intends to seek clarification, he should say so specifically. He cannot cross-examine the witnesses and that also without permitting the charged official a further right to cross-examine the witnesses. The conduct of the Enquiry Officer thus caused a serious prejudice to the case of the respondent. The Tribunal rightly came to a conclusion that the enquiry report cannot be sustained because it suffers from basic procedural flaws and is violative of not only the principle of natural justice but also of the prescribed rules and the law as discussed in the impugned order. Consequently, the Tribunal set aside the orders of the Disciplinary Authority as well as the Appellate Authority, which were based upon the finds in the enquiry report. We find ourselves in complete agreement with the views expressed and decision taken by the Tribunal. In view of that, we dismiss the writ petition in limine with no order as to costs. We agree with the learned counsel of the applicant that the conduct of the EO lacked objectivity and impartiality and for this reason the enquiry proceedings were vitiated.
9. Thus, we come to the conclusion that while the respondents were well within their right to commence disciplinary proceedings against the applicant for his conduct before the Trial Court yet the proceedings have been vitiated by the conduct of the EO. We, therefore, quash and set aside the impugned orders dated 04.01.2005 (Annexure A-1), 09.03.2005 (Annexure A-2), 14.06.2005 (Annexure A-3) and 26.08.2011 (Annexure A-4). The respondents will, however, be at liberty to start proceedings afresh after changing the EO. This O.A. is disposed of accordingly. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/vinita/