Central Administrative Tribunal - Delhi
Sh. Dharampal Singh vs Government Of Nct Of Delhi & Ors: Through on 9 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 365/2011 NEW DELHI THIS THE 9th DAY OF AUGUST, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Sh. Dharampal Singh, S/o Sh. Gurdass Working as ASI Under PCR Line, Model Town, Delhi. Applicant. (By Advocate Shri Manjeet Singh Reen) Versus Government of NCT of Delhi & Ors: Through 1. The Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 2. The Joint Commissioner of Police, Southern Range, through The Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 3. The Dy. Commissioner of Police, South-East District through The Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. Respondents. (By Advocate Mrs. P.K. Gupta) ORDER
Mr. G. George Paracken:
Challenge in this Original Application is against the Annexure A-1 order of the disciplinary authority dated 27.01.2010 by which the punishment of withholding of his next increment for a period of two years without cumulative effect has been awarded and his suspension period from 24.04.2008 to 04.06.2008 has been decided as period not spent on duty and the Annexure A-2 appellate order dated 13.05.2010 rejecting his appeal and upholding the punishment awarded by the disciplinary authority and the Annexure A-3 letter dated 24.12.2010 rejecting his request to remove his name from the Secret List of D-I..
2. The charge against the applicant was as under:
I, Vikramjit Singh IPS (ACP) Defence Colony Sub-Division charge you ASI Dharampal No. 2508/D that while posted in P.S. Hauz Khas an incident of snatching took place at H-19 Green Park Exten. On 1.2.08 in which a small hand bag containing Rs.50,000/-, one gold chain, one Mangal Sutra of gold and one nokia phone were snatched. On the complaint of Smt Arti Talukdar R/Khanapara Gohauti West Bengal a case vide FIR No. 58/08 u/s 356/379 IPC P.S. Hauz Khas was registered and investigation was entrusted to ASI Dharam pal.
On 28.3.08 vide DD No. 38-A P.S. Hauz Khas an information was received from PP Saket Malvia Nagar that three accused persons have been arrested u/s 41.1 Cr.P.C. vide DD No. 23 P.P Saket and that they have made disclosure statement to the effect that on 1.2.08 they had committed the crime in the area of P.S. Hauz Khas Green Park Extension Delhi. You ASI Dharam pal I.O of the case was directed by SHO H. Khas to apply for the production warrant of the accused persons. Accordingly accused persons were summoned for 1.4.08 in the honble court of Ms Ravinder Bedi M.M. Patiala House court through production warrant. You ASI Dharam pal I.O was also instructed by the SHO & Inspr. law and order to move an application for interrogation of the accused in the court and then interrogate the accused in detail as well as record their disclosure statements. Besides he should have moved an application for TIP of accused so that after the TIP police custody remand of the accused could be obtained. But you did not do so. You ASI Dharam pal arrested all the three accused eprsons namely i) Momin Ali S/o Jamalludin R/o C-17 Raju Park Dewli village Delhi. Ii) Wasim ahmad S/o Ahmad Ali R/o C-1/70 Raju Park Devli Village Delhi, and Sakir Khan S/o Budhan Khan R/O C-1/68 Raju Park Devi Vilage Delhi and instead of interrogating the accused persons you moved an application to the honble Court directly at your own for the discharge of accused persons. As such all the three accused persons were released by the court of M.M. Delhi on the request of I.O ASI Dharam pal being the I.O of the case did not comply with the lawful directions of your seniors and spoilt the case deliberately with ulterior motive.
The above act on the part of you ASI Dharam pal No 2508/D amounts to gross misconduct, disobedience of senior officers, dereliction in the discharge of your official duties unbecoming of a police officer which renders you liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules 1980.
3. After a detailed departmental enquiry, the enquiry officer, vide its Annexure A-12 dated 01.09.2009, proved the aforesaid charge to the extent that he did not move an application for judicial TIP of the accused persons and got them discharged on the same day of their formal arrest in the case. Further, the enquiry officer observed that the applicants plea that the complainant was from a far of place and she would not cooperate in the judicial TIP proceedings was a mere presumption and there was no written statement of the complainant to that effect. Moreover, he did not make any efforts to trace out the stolen/snatched mobile but simply relied upon the oral version of DW HC Vijay Kumar No. 360/SD, which was also just a convenient presumption for not making any sincere efforts.
4. The applicant made the Annexure A-13 representation against the aforesaid enquiry officers report. According to the applicant, the defence contentions mentioned in the written statement went in vain as the enquiry officer looked totally indifferent and that was the reason why he did not discuss anything about them in his findings. Rather, the enquiry officer has made a contradictory statement in the findings as it held that the applicant had contended that the complainant who was from a far off place would not cooperate in judicial TIP proceedings whereas the submission of the applicant was that the complainant had shown reluctance not only to identify the accused but also to get the case registered. The enquiry officer has also twisted the facts in his findings as the complainant did not claim in FIR that she would be able to identify the accused. Rather, she has expressed her inability to identify them as she had seen him in a flash. Therefore, since the enquiry officer had virtually blacked out the defence contentions and did not discharge the quasi judicial functions in a fair and impartial manner, the findings made by the enquiry officer are thus ill-fed, ill considered and ill judged.
5. However, the disciplinary authority did not find merit in the contentions of the applicant in his representation. He has further stated in its order that based on documentary evidence available on record and testimony of other witnesses, the enquiry officer concluded that the delinquent ASI failed to execute the directions given by the senior officers. He not only disobeyed the directions of the senior officers but procured of his own to the advantage of the alleged accused in the case, instead of asking for their production remand, he moved the application for discharge of the case. The applicant did not move any application for judicial TIP despite the specific directions from the SHO. The relevant part of the disciplinary authoritys order is as under:
.I have carefully gone through the testimony of PWs/DW and other material evidence on record with reference to the findings of the E.O. The regular departmental enquiry was conducted by ACP/Defence Colony Sh. Vikramjit Singh. During the departmental enquiry also his plea was heard. But based on documentary evidences available on record and testimony of other witnesses, the E.O. concluded that the delinquent ASI failed to execute the directions given by the senior officers. He grossly not only disobeyed the directions but procured of his own to the advantage of alleged accused in the case. Instead of asking for their production remand, he moved the application for discharge of the case. No application for judicial TIP was even moved despite specific directions from the SHO. Nothing was done to even made sincere efforts to trace the stolen property.
I didnt find much merit in his argument. There are ample evidence on record to show his complexity. Despite depending on the principle of preponderance of probability as rule for evidence appreciation in departmental enquiry and action, I did convince with the outcome of inquiry report/findings.
Being I.O. of the case and spending a considerable time in police department, he is mature enough to understand the implication of his action, act of commission & omission. His case doesnt deseve any leniency at all. After evaluating the overall facts and as well as circumstances of the case, I feel that he deserves a suitable punishment appropriate to the quantum of guilt. Therefore, having regard to the facts and circumstances as mentioned above, I, Sanjay Kumar Jain, Addl. Dy. Commissioner of Police, South-East District, New Delhi hereby award a punishment of with-holding of his next increment for a period of two years without cumulative effect to ASI (Exe.) Dharam Pal, No. 2508/SD (PIS No. 28770280). His suspension period from 24.04.08 to 04.06.2008 is hereby decided as period not spent on duty.
6. The appellate authority has also rejected the appeal of the applicant with the following observations:
The pleas of the appellant are not convincing. He failed to produce any evidence in his support that he had made request to SHO and Addl. SHO to transfer the case to some SI. As per record, after arrested the accused persons the appellant was directed to apply for the production warrant of the accused and then interrogate them in detail as well as record their disclosure statement. Accordingly, accused were summoned for 1.4.08 in the Honble Court through production warrant. The appellant was also instructed he should have moved an application for TIP of accused so that after conducting TIP, Police custody remand of the accused could be obtained. Instead of interrogating the accused, preceded further in the matter, he moved an application in the Honble Court directly on his own for discharging the accused persons. As such, all the three accused persons were discharged by the Honble MM, on the request of the IO (appellant). This clearly shows that he being an IO of the case did not comply the lawful directions of his senior officers and spoiled the investigation deliberately got all the accused persons discharged with ulterior motive. He has been found negligent in the instant case for which the punishment awarded by the disciplinary authority is commensurate with his misconduct. The appeal is rejected.
7. The applicant has also filed the Annexure A-17 Review Application dated 22.06.2010 to the Commissioner of Police but it has been rejected vide the impugned Annexure A-3 letter dated 24.10.2010.
8. The applicant has challenged the aforesaid enquiry officers report, orders of the disciplinary authority and appellate authority, mainly on the ground that the disciplinary authority failed to consider the aspect that the enquiry officer proved the charge against the applicant only to the extent that he did not move an application for judicial TIP of the accused persons and got them discharged on the same day of their formal arrest in the case. But the disciplinary authority took the complete charge as proved against the applicant without giving any disagreement or opportunity to defend his position. According to the applicant, even if the accused persons were really a criminal and deserved to be prosecuted, it could only be possible if there was conducive and advantageous evidence on file as the complainant lady was not prepared to support the prosecution case and to say that the accused persons were the persons who had snatched her bag. According to him, without the support of the complainant, police did not have any magic ward to get the accused persons convicted. Further, he submitted that he was very well aware that taking the complainant lady to the TIP venue would have been very difficult as she had shown her reluctance at the very beginning itself. Moreover, there was substantial difference in age of the accused who had allegedly snatched the bag and the boys who have been arrested by PP Saket and, therefore, it looked quite ridiculous to apply for TIP. He has, therefore, justified the action taken by him was correct and in accordance with the situations but the enquiry officer did not consider those aspects and twisted the facts in the findings.
9. The learned counsel for the applicant Shri Manjeet Singh Reen has also argued that the applicant was only an Assistant Sub Inspector and under Section 167 of the Code of Criminal Procedure, only the officer in-charge of the police station or the police officer making the investigation, if he is not below the rank of SI, only can transmit to the nearest Magistrate a copy of the entries in the diaries relating to the case. As he was neither the officer in charge nor of the rank of SI, he was not expected to act under the aforesaid provisions of the Code. Further, he has submitted that whatever action he has taken was after discussing with the SHO who asked him to arrest all the three accused persons in the case formally and it will be seen later on how to adjust them all. The other submission of the applicant was that there were specific reasons to release the accused persons. In this regard, he has stated that as the Metropolitan Magistrate himself, vide its order dated 01.04.2008, allowed all the three accused persons to be interrogated outside the court room for about 20 minutes after formal arrest. And during their interrogation, it was found that there were contradictions and inconsistencies in their statements.
10. As regards the appellate authoritys order is concerned, learned counsel for the applicant has submitted that the said authority has considered extraneous matters unrelated to the charge sheet as allegations against the applicant were not proved during the enquiry. The learned counsel has pointed out that the observations of the appellate authority that as per record, after arresting the accused persons, the applicant was directed to apply for the production warrant of the accused and then to interrogate them in detail as well as to record their disclosure statement which was not part of the charge at all. He has also stated that the production warrant was, in fact, produced by Shri Krishan as seen from the Annexure R-1 application made by him dated 28.03.2008 and the Metropolitan Magistrate himself, vide its order dated 08.09.2009, held that the accused Shamir Khanete was arrested in the criminal case during investigation on 01.04.2008 and he was discharged as no recovery has been effected on that date. The record revealed that despite efforts made by the I.O. recovery has not been effected and investigation has been conducted properly. Accordingly, he accepted the untraced report.
11. The applicants counsel has relied upon the judgment of the Apex Court in Yogi Nath D. Bagde Vs. State of Maharashtra & Anr. (JT 1999 (7) SC 62) in support of his contention that the disciplinary authority without issuing a disagreement note considered the charge which has not been proved also and imposed the punishment. The relevant part of the said judgment is as under:
31. The Court further observed as under (AIR 1998 SC 2713 : 1998 AIR SCW 2762 : 1998 Lab IC 3012 : 1998 All LJ 2009, para 18) :
"When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed."
32. The Court further held that the contrary view expressed by this Court in State Bank of India v. S. S. Koshal, 1994 Supp (2) SCC 468 : (1994 AIR SCW 2901) and State of Rajasthan v. M. C. Saxena (1998) 3 SCC 385 : (1998 AIR SCW 965 : AIR 1998 SC 1150 : 1998 Lab IC 1038) was not correct.
33. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
12. He has also relied upon the judgment of the Delhi High Court in Union of India & Ors. Vs. Ram Phal Singh Rana (2005 (4) SCT 805) wherein it has been held that while disagreeing with enquiry report disciplinary authority recorded his finding that delinquent officers had contracted marriage with a person having spouse living which debars him to continue in government service but no show cause notice was issued to him as to why disciplinary authority would not disagree with finding of the enquiry officer. The relevant part of the said judgment is as under:
In our considered opinion, when the disciplinary authority disagrees with the findings of the enquiry officer, it was incumbent upon the disciplinary authority to record the reasons for disagreement and intimate the same to the delinquent official so as to enable him to show cause against the same. The same having not been done in the present case, the Tribunal set aside the order of punishment awarded to the delinquent official and directed that the said reasons for disagreement be communicated to the delinquent official and after receiving a reply from him, the disciplinary authority can proceed in accordance with law. Since the said decision is rendered by the Tribunal in accordance with the settled position of law by the Supreme Court in the decision of Punjab National Bank & Others v. Kunj Behari Misra and another (supra), we find no infirmity in the said order.
13. The respondents in their reply have denied all the contentions of the applicant. According to them, the departmental enquiry was conducted against the applicant vide order dated 02.06.2008 under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 on the allegations that while he was posted at Police Station Hauz Khas on 01.02.2008, an incident of snatching took place at H-19, Green Park Extn, in which a small hand bag containing Rs.50,000/-, one gold chain, one Mangalsutra of Gold and one Nokia Phone were snatched. On the complaint of Smt. Arti Talukdar R/o Khanapara, Gohati, West Bengal, a case vide FIR No. 58/08 u/s 356/379 IPC, PS Hauz Khas was registered and its investigation was entrusted to the applicant. On 28.03.2008, vide DD No. 38-A PS Hauz Khas, an information was received from PP/Saket, PS Malviya Nagar that three accused persons have been arrested u/s 41.1 Cr.P.C. vide DD No. 23-A PP Saket and they had disclosed of having committed the crime on 01.02.2008 at H-19, Green Park Extn. Thus, the applicant, I.O. of the case was directed by SHO/Hauz Khas to apply for the production warrant of the accused. Accordingly, accused were summoned for 01.04.2008 in the Honble Court of Mr. Ravinder Bedi, MM, Patiala House Court, New Delhi through production warrant. The applicant was also instructed by SHO and Inspr./Law & Order to move an application for interrogation of accused in the court and then interrogate the accused in detail as well as record their disclosure statement. Besides, he should have moved an application for TIP of the accused persons so that after conducting TIP, Police custody remand of them could be obtained. But he did not do so. Besides, he arrested all the three accused persons namely (1) Momin ali S/o Jamaluddin R/o C-1/17, Raju Park, Devli Village (2) Wasim Ahmed S/o Ahmed Ali R/o C-1/70, Raju Park, Devli Village and (3) Sakir Khan S/o Budhan Khan R/o C-1/68, raju Park Devli Village, New Delhi and surprisingly instead of interrogating them, proceeded further in the matter and moved an application in the Honble Court directly at his own for their discharge. As such, all the three accused persons were released by the Honble MM, on the request of the I.O. i.e. applicant. This clearly shows that he being an IO of the case did not comply the lawful directions of his senior officers and spoil the investigation deliberately, got all the accused persons discharged with ulterior motive. They have further stated that on the basis of testimony of PWs/DW and other material evidence on record, EO submitted his findings with the conclusion that the charges framed against him have been proved to the extent that he did not move an application for judicial TIP of the accused and got the accused discharged on the same day of their formal arrest in the case. His plea that the complainant is from a far-off place and she would not cooperate in judicial TIP proceedings was a mere presumption and there is no written statement of the complainant to that effect. Moreover, the IO did not make any efforts to trace the stolen/snatched mobile. He simply relied on the oral version of DW HC Vijay Kumar, No. 360/SD that the mobile phone could not be recovered, which is also just a convenient presumption for not making any sincere efforts. Tentatively agreeing with the findings of DE, a copy of the same was delivered to the applicant on 04.09.2009 with the direction to submit his representation against the findings of the EO and to show cause as to why his suspension period should not be decided as period not spent on duty vide U.O. No. 5065/HAP/SED (P-1) dated 01.09.09. He submitted his representation on 29.09.2009 requesting therein to here him in OR. In the interest of equity, fair play and justice, he was heard in O.R on 04.01.2010 where he could not state anything afresh except what he had already stated in his written representation. According to him, he did not press for the TIP of accused as the complainant belongs to North-East part of India and wont come for identification. He did not move any formal application for TIP. Further, he stated that since special staff who arrested the accused persons could not recover the property, how he could recover the stolen property from accused. Further, he stated that he did not demand for PC as he was not authorized to do so as per Section 167 Cr.P.C.
14. The disciplinary authority has carefully gone through the testimony of PWs/DWs and other material evidence on record with reference to the findings of the E.O. According to the said authority, the EO concluded that the applicant failed to execute the directions given to him by the senior officers on the basis of documentary evidences available on record and testimony of witnesses,. He grossly not only disobeyed the directions but also procured of his own to the advantage of alleged accused in the case. Instead of asking for the production remand of the accused, he moved the application for their discharge. He also did not move any application for judicial TIP despite specific directions from the SHO and did not make any sincere efforts to trace the stolen property. According to the disciplinary authority, there are ample evidences on record to show the complexity of the applicant. After evaluating the overall facts as well considering the circumstances of the case, the disciplinary authority held that the applicant did not deserve any leniency at all. On the other hand, he deserves a suitable punishment for his misconduct. Accordingly, the disciplinary authority awarded a punishment of withholding the applicants next increment for a period of two years without cumulative effect vide order No. 932-45/HAP/SED (P-1) dated 27.01.2010. His suspension period from 24.04.2008 to 04.06.2008 was also decided as period not spent on duty. The Appellate Authority has also rejected the applicants appeal vide Order No. 5031-33/SO/SR (AC-II) dated 13.05.2010.
15. We have heard the learned counsel for the applicant Shri Manjeet Singh Reen and the learned counsel for the respondents Mrs. Pratima Gupta. The basic contention of the applicant is that the enquiry officer has only partly proved the charge against the applicant but the disciplinary authority has imposed the penalty upon him taking the entire aspects of the charge as proved by the enquiry officer. In support of the aforesaid argument, the learned counsel has relied on the judgments of the Apex Court in Yogi Nath D. Bagde (supra) and Delhi High Court in Ram Phal Singh Rana (supra). It is true that the charge against the applicant has two aspects (1) he was instructed by the SHO and Inspector of Law & Order to move an application in the court of the Metropolitan Magistrate for the interrogation of the accused persons and to record their disclosure statements and (2) he was required to move an application for the TIP of the accused so as to obtain their police custody remand but instead of doing so, he moved an application to the court on his own for the discharge of the accused and accepting that request the court released them. According to the Enquiry Officer, it has been proved during the enquiry to the extent that the applicant did not move an application for judicial TIP of the accused persons and got them discharged on the same day of their formal arrest. In other words, the Enquiry Officer did not prove the first part of the charge that the applicant did not move an application for the interrogation of the accused persons and to record their disclosure statements. The applicants counsel has, therefore, contended that the charge against the applicant was only partly proved.
16. Now let us see how the disciplinary authority has considered the aforesaid request of the Enquiry Officer. He did a detailed analysis of the report and the reasoning given by the Enquiry Officer in his report. Finally, he held that he was convince (d) with the outcome of the enquiry report/findings and awarded the punishment as stated in his order dated 27.01.2010. We do not find from the order of the disciplinary authority that he had any disagreement with the findings of the Enquiry Officer. He has only stated that he was convinced with the outcome of the enquiry report/findings whatever they were. It is only the figment of imagination of the applicant that the disciplinary authority had disagreement with the findings of the enquiry officer. We also do not find any merit in the contention of the applicant that the appellate authority has considered any extraneous matter which was outside the scope of the charge while considering his appeal and rejecting it. Moreover, we find that the charge against the applicant to the extent that he did not move an application for judicial TIP of the accused and got them discharged on the same day of their formal arrest were proved during the enquiry. The disciplinary authority after due consideration has only imposed comparatively a lesser punishment of withholding his increment for a period of two years without cumulative effect. Thus, having found no merit in this OA, it is dismissed. There shall be no order as to costs.
( Dr. Veena Chhotray) ( G. George Paracken ) Member (A) Member (J) SRD