Central Administrative Tribunal - Delhi
Asi Kanhiya Lal vs Govt. Of Nct Of Delhi on 14 May, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.1819/2007 WITH OA NO.2022/2007 New Delhi, this the 14th day of May, 2009 HONBLE SHRI JUSTICE M. RAMACHANDRAN, VICE-CHAIRMAN (J) HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A) OA No.1819/2007: ASI Kanhiya Lal (PIS No.28780178) R/o Vill: Saboli, Gali No.3 Nandnagari, Delhi 93. . Applicant (By Advocate: Shri Anil Singal) Versus Govt. of NCT of Delhi Through Commissioner of Police Police Head Quarters IP Estate New Delhi. Jt. Commissioner of Police New Delhi Range PHQ IP Estate New Delhi. D.C.P (North-East Distt.) Through Commissioner of Police PHQ, IP Estate New Delhi. Respondents (By Advocate: Mrs. Renu George) OA No.2022/2007: Brahma Nand S/o Shri Damodar Prasad R/o A-418 (Gali No.1) Meet Nagar Delhi 110 094. . Applicant (By Advocate: Shri L.R.Khatana) Versus 1. Commissioner of Police, Delhi Delhi Police Headquarters MSO Building, Indraprastha Estate New Delhi. Jt. Commissioner of Police New Delhi Range, Delhi MSO Building Indraprastha Estate New Delhi. Deputy Commissioner of Police North-East District, Delhi Seelampur Police Station, Delhi. Enquiry Officer (Shri Ved Singh Malik, Inspector) D.E. Cell, Delhi Police (through Commissioner of Police, Delhi) Delhi Police Headquarters Indraprastha Estate New Delhi. Respondents (By Advocate: Mr. Ram Kanwar) ORDER (Common) By Shailendra Pandey, Member (A):
As the issue involved is identical and common disciplinary proceedings have been initiated against the applicants in both the above OAs, we dispose of the same through a common order.
2. The applicant in OA 1819/2007 (Shri Kanhiya Lal), has challenged the following orders:
Order initiating DE dated 14.06.2005 (Annexure A1) Finding dated 2.3.2006 (Annexure A-2) Order of Punishment dated 12.09.2006 (Annexure A-3) imposing the punishment of forfeiture of three years of approved service, permanently entailing proportionate reduction in his pay from Rs.5000 PM to Rs.4700 PM with immediate effect.
Appellate order dated 24.07.2007 (Annexure A-4), rejecting the applicants appeal.
3. The applicant in OA 2022/2007 (Shri Brahma Nand), has challenged the following orders:
Order of Punishment dated 12.09.2006, imposing the punishment of forfeiture of three years of approved service, permanently entailing proportionate reduction in his pay from Rs.4475 PM to Rs.4220 PM.
Appellate order dated 24.07.2007, rejecting the applicants appeal.
Enquiry Officers Report holding the charge against the applicant as proved.
4. The brief facts (as taken from OA 2022/2007) are that the applicant joined Delhi Police on 15.09.1987 as a Constable and had an unblemished record till the present incident. In the year 2005, a departmental enquiry was initiated against him along with a Co-delinquent ASI Kanhiya Lal on the allegation that on the intervening night of 23/24.04.2005 during patrolling at about 2.30 AM, they went on a Motor Cycle to Shri Ram Builders Shop near Ajay Patrol Pump and allegedly demanded Rs.50/- from a truck driver as illegal gratification or else they would stop unloading of the truck. The truck driver allegedly tried to pay Rs.30/- but they refused to accept. It is further alleged that again on the same night at about 4 AM, they both went to the truck driver and stopped the unloading of the truck and abused and threatened the driver. Thereafter, a joint departmental enquiry was conducted and, on conclusion of the same, the inquiry officer held that the charges framed against both the applicants are proved. The applicant along with Co-delinquent ASI Kanhya Lal made a detailed representation against the findings of the inquiry officer, but the disciplinary authority awarded the impugned punishment to the applicant(s). The applicant(s) made a detailed appeal to the appellate authority against the penalty order dated 12.09.2006 pointing out various illegalities and infirmities, but the same was also rejected. The applicant(s) have challenged the action taken on the following grounds:
(1) This is a case of `no evidence but the inquiry officer on the basis of its ipse dixit without there being any evidence on record against the applicant(s), has held the charge as proved.
(2) The entire departmental proceedings are illegal, arbitrary, perverse and violative of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980.
(3) The reliance on the deposition of PW-5 (Inspector D.L. Joshi) is not only illegal but against all cannons of law inasmuch as he himself had admitted that he was not an eye witness of the alleged incident.
(4) The rejection of the representations filed before the disciplinary authority and appellate authority are without application of mind to the submissions made therein and are also non-speaking orders.
5. The respondents have, on the other hand, stated that all the PWs were examined and cross-examined during the inquiry and after careful consideration of their depositions and exhibits brought on record, the inquiry officer prepared the charge against the applicant and the same was got duly approved from the disciplinary authority and served on 30.01.2006. It is further stated that two defence witnesses, namely, ASI Om Prakash and Sonu were also examined as requested by the applicants. In short, it is the contention of the respondents that the inquiry has been held as per rules and that the inquiry officer has held the charge against the applicants as proved after taking the relevant factors into account.
6. In his rejoinder, the applicant has reiterated the pleas taken in the OA.
7. We have heard the rival contentions of both the parties and have perused the pleadings on record.
8. In support of his contention that this is a case of no evidence, counsel for the applicant has drawn our attention to Annexure A3, i.e., the findings of the inquiry officer and stated that none of the statements of the PWs, has it been mentioned that there was any demand/acceptance of illegal gratification by the applicant(s). It is further argued that it is admitted by the respondents that Inspector D.L.Joshi and others had not heard anything about demand and acceptance of money nor was there any recovery of any tainted money from the applicant(s), therefore, the finding of guilt as recorded by the various authorities can only be described as being based on `No evidence and is liable to be set aside. Per contra, the respondents counsel argued that the applicant(s) visited the spot the first time and demanded Rs.50/- although the truck driver was unloading the goods and there was no complaint from anyone about the unloading of the goods causing disturbance or that it was obstructing traffic, and that the applicant(s) visited the spot the second time for receiving illegal gratification, and that the truck driver made a PCR call as there was no other option available with him. He had also recognized the applicant(s) before Inspector D.P. Joshi in the Police Station, Seema Puri. Hence, the contention that this is a case of no evidence is unacceptable and that what matters in disciplinary cases is preponderance of probability.
9. We have carefully been through the findings of the inquiry officer and note from the evidence of PWs 1 to 4 and 6 - extracted below - that they have not at all mentioned in their statements that the applicant has demanded any money from the truck driver and no cross examination has been done against the statements of the above PWs.
PA-1 STATEMENT OF CONST. KARE LAL NO.1452/NE P.S. SEEMAPURI, DELHI Stated that he is posted as Chitha Munshi at P.S.Seema Puri. He produced the original Chitha mentioning therein the duty of ASI Kahniya Lal and Const. Brahama Nand No.929/NE on 23/24-4-05 from 8 PM to 8 AM on motorcycle patrolling. On 24-4-05 he had performed the duty as DD writer from 9 AM to 5 PM. On the direction of SHO Seemapuri he had made a departure entry of ASI Kahniya Lal and Const. Brhama Nand to Distt Lines vide DD No.30-B. The photocopy of Chitha is Ex.PW-1/A. Cross-NIL.
PW-2 STATEMENT OF HC MANOJ KUMAR NO.1838/NE P.S. SEEMA PURI, DELHI.
He stated that he is posted in P.S. Seema Puri. He produced the Roznamcha-B dated 24-4-05 in which departure of ASI Kahniya Lal and Const. Brhama Nand No.929/NE to Distt Lines was made vide DD No.30-B by the order of SHO/Seema Puri. The photocopy of Daily diary is Ex.PW-2/A. Cross NIL.
PW-3 STATEMENT OF ASI SUSHIL KUMAR NO.2146/NE P.S. MANSAROWAR PARK, DELHI.
He stated that he is posted at P.S. Mansarowar Park. He produced the original Roznamacha A dated 23/24-4-05. On the intervening night 23/24-4-05 he had performed duty as Duty Officer from 1 AM to 9 AM. On that night at 3-35 AM a PCR call on telephone was received from North East Control room that some making obstruction to ply his Gaddi and quarrelling. He lodged DD No.5-A in this regard and marked to SI N.P. Deshwal for investigation through Const. Rattan Lal. No.519/NE. The photocopy of Roznamcha dated 23/24-4-05 is Ex. PW-3/A. Cross-NIL.
PW-4 STATEMENT OF SI N.P. DESHWAL NO.4548/D P.S. SEEMA PURI, DELHI.
He stated that he is posted in P.S. Seema Puri. On 23/24-4-05 he had been performing Emergency Duty from 8 PM to 8 AM. On receipt of DD No.5-A he alongwith Const. Rattan Lal No.519/NE had reached at Apsara Border and nothing was found there regarding the incident. Therefore, he had enquired from STD owner from where the PCR call was made. The STD owner told that one person had come and made that PCR Call. Thereafter he asked from ASI Om Parkash who was on Picket Duty there and he told that PCR van was also asking but he had not noticed such type of incident. Inspr. D.P.Joshi had also met him at Apsara Border but nothing regarding that incident came in notice. After that on reaching at P.S. Duty officer told that you have been summoned by Inspr. D.P.Joshi who is present at Tea Shop of Sonu at Apasara Border. He reached there and found that truck driver Bishan Singh S/o Soran Singh R/O village Gorialla H.No.275 Gali No.18 Palwal Faridabad was there with Inspr. D.L. Joshi. Inspr. D.L.Joshi ordered him to go back to P.S. and the Inspr. himself is coming with truck driver. On reaching at P.S. Seemapuri Inspr. D.L.Joshi recorded the statement of truck driver and the driver was produced before SHO/P.S. Seema Puri and advised him to take further necessary action. He reduced in writing a detail report vide DD No.6-A to this effect in P.S. Roznamcha which is Ex. PW-4/A. Cross-NIL PW-5 PW-6 STATEMENT OF INSPR. JAI KISHAN SHO/ P.S. SEEMA PURI, DELHI.
Stated that he had sent a report to ACP/Seema Puri regarding the incident of intervening night 23/24-4-05 which committed by ASI Kahniya Lal and Const. Brhama Nand. The report is Ex. PW-6/A. Cross-NIL.
Moreover, PW-5 (Inspector D.L.Joshi) and PW-7 (Sh. Bishan Singh) in their statements mentioned as under:
PW-5 STATEMENT OF INSPR. D.L. JOSHI INSPECTOR/SPECIAL STAFF NORTH-EAST DISTT., NEW DELHI.
He is posted as Inspector Special Staff in North Eash District. On 24-4-05 he had been performing night patrolling duty from 12-00 night to 5 AM in Seema Puri Sub-division. At about 3-35 AM a PCR call obstruction to ply his truck and quarrel was received on wireless set at Sri Ram Builders Apsara Border. On reaching there one Bishan Singh S/o Soran Singh R/o Gorialla H.No.275 Gali No.18 Palwal Distt Faridabad (Haryana) alongwith truck No.HR-38 H-1663 had met him. He had recorded a statement and the involvement of staff deployed on motor cycle No.DL-ISN 3946 was noticed. There were rider Const. Brahma Nand No.929/NE and Patrolling officer ASI Kahniya Lal No.1488/PCR on that motor cycle. Both were identified by truck driver at P.S. Seema Puri who were teasing him for their ulterior motive. The facts were brought in the notice of SHO/Seema Puri and the statement which was recorded earlier is Ex.PW-5/A. During cross examination he stated that the name and address of Bishan Singh is not lodged in DD No.5-A of P.S. Seema Puri. He stated that the statement was recorded at the site of Shri Ram Builders Apsara Birder at about 4 AM and after that on reaching at P.S. Seema Puri his identification statement was recorded. The identification statement was recorded between 4 AM to 5 AM at P.S. Seema Puri. He had not made any separate memo about their identification. He has stated that he had not recorded the statement of SI N.P. Deshwal. He replied in negative that he was eye witness of that incident. He stated that he had not made any entry in Roznamcha to this effect because the facts were brought in the notice of SHO/Seema Puri and SI N.P. Deshwal was conducted the enquiry regarding DD No.5-A. He stated that he had not recorded any statement except driver Bishan Singh. He stated that the shops adjoining Sri Ram Builders were closed and therefore none was examined. He stated that he had not recorded the statement of Sonu, the Tea Stall Owner. He stated that he had not recorded the statement of PCR Van staff. He again stated that he had not recorded the statement of the owner of STD Booth.
PA-6 .
PW-7 STATEMENT OF SH BISHAN SINGH S/O SORAN SINGH R/O H.NO.502 WARD NO.6 GALI BANSAL NURSING HOME NO.18 ADAARSH COLONY PALWAL, FARIDABAD HARYANA.
Stated that he has residing at the above given address and prior to this he was living at H.No.275 Gali No.18 Gorialla Mohilla Pawal Distt Faridabad, Haryana. He had been plying truck No.HR-38 H-1663 till August 2005. Now he left the job and plying truck No.HR-38 G-2743. As the remembered on 24-4-05 night he had come at Shri Ram Builders Aspasra Border to unload the stones. In the meantime two policemen on motorcycle came and forbade to unload, to whom he cannot recognize at this time. They had gone from there and again came at about 4 AM and asked him angrily that why he was making noise by way of unloading the stones. He felt uneasy and made a PCR call. Thereafter an Inspector came and accompanying him to P.S. Seema Puri. He had made a PCR call in a hostile mood and he had not complain against any police personnel. He can not identify them and none had demanded any money from him.
During cross-examination by the Defence Asstt. of delinquents he stated that none had approached him prior to this occasion, regarding the incident which happened on that night. He stated that the facts were true which elaborated today.
10. The truck driver when he made the PCR call did not mention that the applicant(s) were demanding money. As per the statement of PW-3, a PCR call at 3-35 AM was received from North East Control room that some making obstruction to ply his Gaddi and quarrelling. Counsel for the respondents contended that this can be construed as evidence of an attempt to obtain money from the truck driver and that he did not specifically mention the demand for money as people are scared of the police. We do not agree that this constitutes evidence of demand for money. We note that he had mustered enough courage to make the PCR call, and could also have mentioned the money demand if in fact it was made.
11. A careful reading of the testimony of PW-7 would show that the complainant (the truck driver) himself in his deposition has stated that none had demanded any money from him and that the applicant(s) stopped the unloading of the truck and that all that was asked was why so much noise was being made by unloading. Further, no other PW has stated that the applicant(s) had demanded or received illegal gratification from the truck driver, and the complainant also did not report the same when he made the PCR call. In this view of the matter, we are constrained to hold that this is a case in which the inquiry officer has arrived at his findings on the basis of no evidence.
12. In view of the above discussion, without going into the other grounds adduced by the applicant(s), both the OAs are allowed. The impugned orders are quashed and set aside. The applicant will be entitled to consequential benefits as per rules.
(Shailendra Pandey) (M.Ramachandran)
Member (A) Vice-Chairman (J)
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