Central Administrative Tribunal - Delhi
Gazi Ram vs Comm. Of Police on 21 April, 2023
1
OA No.2026/2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2026/2016
Reserved on: 29.03.2023
Pronounced on: 21.04.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Constable Gazi Ram,
S/o late Sh. Kishori Lal,
Aged about 42 years,
R/o G-52 NR Jhankar Chowk,
Pole No.105, Qutub Vihar,
Phase-I, Goyala Dairy,
Chavla, Delhi.
-Applicant
(By Advocate Shri Sachin Chauhan)
-Versus-
1. Government of NCT of Delhi
Through the Chief Secretary,
Govt. of NCTD, A-Wing 5th Floor,
Delhi Secretariat,
New Delhi-110013.
2. The Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
3. The Addl. Dy. Commissioner of Police (GA),
Police Control Room,
Through Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
-Respondents
(By Advocate Mrs. Anchal Anand for Shri Amit
Anand, Shri Amit Yadav with Ms. Monika
Bhargava and Ms. Ridhi Dua)
2
OA No.2026/2016
ORDER
Mr. R.N. Singh, Member (J):
Applicant, a Constable in Delhi Police, has filed this Original Application (OA) under Section 19 of the Administrative Tribunals Act, 1985, aggrieved by order dated 18.05.2009, whereby a Departmental Enquiry (DE) was initiated against him with other co-delinquents, order of Disciplinary Authority (DA) dated 25.02.2011 whereby punishment of Censure had been inflicted upon, order of Appellate Authority (AA) dated 15.04.2014, whereby his statutory appeal has been rejected being time barred, act of respondents in not extending the benefit of the judgment of this Tribunal in OA No.4097/2011 decided on 03.01.2012, whereby the punishment imposed upon the similarly placed employees like that of applicant has been quashed and set aside, findings of the Enquiry Officer (EO), Summary of allegation and the order whereby his name has been kept in Secret List of doubtful integrity from the date of punishment. The applicant has prayed for the following main relief(s):
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"(i) To quash and set aside the impugned order dated 25.02.2011 of Disciplinary Authority whereby the punishment i.e. Censure is inflicted upon the applicant, order dated 15.04.2014 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents that applicant be entitled for all consequential benefits including seniority and promotion and pay and allowances.
(ii) To set-aside the finding & Supplementary finding of Enquiry Officer.
(iii) To set-aside the order of initiation of D.E. dated 18.05.09 and summary of allegation.
(iv) To remove the name of the applicant from secret list from the date of inception."
2. Shri Sachin Chauhan, learned counsel for the applicant filed his written submissions and submitted that the entire DE proceedings stands null & void once the order of the DA dated 25.02.2011 clearly records:
"The fact that entire episode was an illegitimate trap, conducted by persons whose own reputation and background are at stake & non- recovery of the alleged amount."
2.1 The said findings of DA was affirmed by this Tribunal in case of ASI Pale Ram & Ors. etc. etc. v. The Commissioner of Police and Ors., OA No.4097/2011 & batch matters, decided on 03.12.2012 by clearly recording that:
"13. Thus, we are of the opinion that on account of the charge of allegation being vague and not specific, total reliance being placed on CD which was not original, opportunity not being given to cross examine important prosecution witnesses 4 OA No.2026/2016 because they were not produced and that no independent witnesses were produced, we find the proceedings conducted against the applicants are not in accordance with the rules and the principles of natural justice. In our view, the respondents have totally relied upon an illegal trap, a CD which has no evidentiary value and proceedings which are not in accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside. The applicants shall be given all consequential benefits from the date when the punishment was imposed, within a period of two months from the date of receipt of a copy of this order. OA is accordingly allowed. No costs."
2.2 Shri Chauhan further submitted that applicant is seeking the benefit of the order of this Tribunal in OA No.4097/2011 and further the opinion of Law Department, judgment in the case of HC Phool Singh v. Govt. of NCTD & Ors., OA No.4053/2012, dated 03.12.2012, where this Tribunal held as follows:
"2. In an identical case in Pale Ram & others v. Commissioner of Police & others (OA-4097/2011 with connected cases) decided on 03.12.2012, this Tribunal has allowed the aforesaid case and the operative part of the said order reads as under:-
'13. Thus, we are of the opinion that on account of the charge of allegation being vague and not specific, total reliance being placed on CD which was not original, opportunity not being given to cross examine important prosecution witnesses because they were not produced and that no independent witnesses were produced, we find the proceedings conducted against the applicants are not in accordance with the rules and the principles of natural justice. In our view, the respondents have totally relied upon an illegal trap, a CD which has no evidentiary value and proceedings which are not in 5 OA No.2026/2016 accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside. The applicants shall be given all consequential benefits from the date when the punishment was imposed, within a period of two months from the date of receipt of a copy of this order. OA is accordingly allowed. No costs.' Since this case is squarely covered by the aforesaid decision of the Tribunal, the directions contained in the aforesaid order shall be equally applicable in the present case also.
3. In view of the above position, the present OA is also allowed with a direction to the respondents to comply with the aforesaid directions contained in OA No. 4097/2011 (supra) strictly in the present case as well. There shall be no order as to costs." 2.3 Shri Chauhan has further placed reliance on another decision of this Tribunal in OA No.918/2013 - Const. Rajender Singh v. Govt. of NCTD & Anr. decided on 15.03.2013. He has also relied on the judgment of this Tribunal in the case of HC Ram Babu v. GNCTD decided on 21.11.2019, OA No.4239/2014. In this case the appeal was filed just like in present case subsequent to judgment of Pale Ram (supra) and the Tribunal clearly recorded as follows:
"9. Curiously enough, that lapse did not make much difference for the IO in recording the findings. It appears that everybody was under
the fear that when the Hon'ble High Court directed initiation of disciplinary proceedings, any deviation may result in imitation of disciplinary proceedings against themselves. Such things happen generally in the proceedings instituted as a sequel to the PILs.6 OA No.2026/2016
xxx xxx xxx
13. Even after being convinced that the charge levelled against the applicant is the result of an illegitimate trap, the DA felt helpless in the context of imposing punishment. The whole exercise is opposed to the basic tenets of the disciplinary proceedings against a civil servant."
2.4 Shri Chauhan has further brought on record the judgment of the learned trial court dated 9.1.2015 (FIR No.702/2007) in which the applicant stands discharged in criminal case, where the learned trial court clearly recorded as follows:
"Thus the legal position emerges that the memory stick which originally contains the recording is primary evidence, copy of the same in Video cassettes would only be the secondary evidence. In the present case, primary evidence is not available & secondary evidence cannot be accepted. I, therefore, hold that the contents of Audio-Video Recordings in cassettes V- I to V-7 are not admissible in evidence."
7.3.1 A perusal of the CFSL report further reveals that Video Camera without memory stick was also sent for analysis. There is no evidence/statement on record about the fate of memory stick. No explanation has been sought by the IO from the complainant about the availability/non-availability of the memory stick of camera, which should contain the original recording. Moreover, there is no opinion expressed by CFSL regarding camera or compatibility of camera with HI 8 cassettes. Despite observing in para no.6 of the report that the 'Different dates & times were found inscribed on different video frames at various occasions, it has been concluded that there was no intentional alteration & tempering. The report in my opinion is apparently ambiguous. If the video cassette 17 different clips with blank spaces and discontinuity in between and the clips are not in chronological order; it can not be possible that the video recording is continuous and without any alteration, addition or deletion. It is apparently a collection of 17 different clips, which have been recorded on different dates & times and transferred subsequently, to the cassettes. Thus, the 7 cassettes seized by the IO and sent for analysis to CFSL are not 7 OA No.2026/2016 the original recording. In fact, the query posed by the IO as reproduced in para no.-8 of CFSL report does not pose the most relevant & material question to the CFSL, whether there is continuity in the recording and whether the cassettes contained the original recording:"
2.5 Mr. Chauhan, learned counsel argued that no reliance can be placed by the authority on CFSL report dated 09.01.2009. The defense of the applicant is well supported by the deposition of defense witness in DE. It is further submitted that the authorities have failed to consider that for providing or even framing a charge against the applicant in respect of being involved in corrupt practices, there need to be an iota of evidence that there is demand and acceptance of illegal gratification for some wrongful but there is no evidence to that effect being brought on record but still the charge of involvement in corrupt practices is being leveled against the applicant. The authorities have failed to consider that the applicant at the outset disputes the genuineness and authenticity of the CD as the same is prepared by the declared bad character of the Dabri PS, i.e., Chetan Parkash and that in the entire DE there is no evidence to connect the applicant with the charge as the EO cannot place reliance on the CD 8 OA No.2026/2016 which is edited and further the authenticity of the same is not proved in the DE. Thus it is a clear cut case of 'no evidence'. The authorities have further failed to consider that all the witnesses who have appeared in the DE are not the eye witnesses and their deposition is only on the basis of the CD and even their deposition also does not make any statement about the demand and acceptance of any illegal gratification.
2.6 Shri Chauhan further submitted that the authorities have also not considered that in the present case PWs 2 & 3 who are the only witnesses called upon in the DE to bring in evidence on record have not deposed anything against the applicant and that the respondents have not considered that the complaint or the earlier statement of Chetan Parkash cannot be brought on record in the DE as the same does not fulfill the conditions of Rule 15 (3) and 16 (3) of Delhi Police (Punishment & Appeal) Rules, 1980. The said Shri Chetan Parkash is very much available but is avoiding the DE as the entire story is false and fabricated. Further, the respondents have not 9 OA No.2026/2016 considered the fact that DE is vitiated as the most material witness is not examined.
2.7 It is lastly contended that the authorities have failed to consider that summary of allegations and the charge leveled against the applicant is not definite and specific and further vague in nature as the allegation leveled against the applicant for corrupt practices even does not specify the date of alleged incident thus making the present allegation and charge as vague and thus bad in law and further that deposition and cross examination of the PWs clearly established that the present is a case of 'no misconduct' or 'no evidence'.
In view of the above submissions, learned counsel for the applicant prays that the OA may be allowed.
3. Pursuant to the notices issued, the respondents entered their appearance and filed their reply, thereby vehemently opposing the claim of the applicant. Shri Amit Yadav, learned counsel for the respondents also filed written submission. It is submitted that the case of the applicant is identical to HC Meghraj Singh v. NCTD in OA 10 OA No.2026/2016 No.2372/2014 which dealt with the DE against the applicant HC Megh Raj Singh who was caught taking bribe from a bootlegger in a sting conducted by Chetan Parkash. This Tribunal upheld Meghraj's punishment of forfeiture of four years of service. Applicant's case here is more serious and grave because Meghraj was departmentally punished and convicted for taking Rs.100/- the present applicant by his own admission is seen taking money and heard fixing Rs.9000/- as surely from a bootlegger. Similar grounds taken by applicant herein have been dealt with and rejected by the Tribunal in a well-reasoned order in Meghraj's case. It is submitted that all the grounds that have been raised by the applicant in the present OA have already been considered and rejected and as such the law has been explicitly laid down in Meghraj's case.
3.1 It is further submitted that the main defense witness of the applicant was the same bootlegger who was seen and heard on video giving him the bribe. No possible explanation came from applicant why his defense witness was conducting a sting on the applicant if it was a legal 11 OA No.2026/2016 remuneration. The video was viewed by the EO, DA and AA and delinquent was given complete opportunity to explain. The DA punished him only for misconduct with censure on account of being clearly visible conniving with the co-delinquent HC Manoj Kumar and accepting money from the bootlegger. It is further contended that the respondents failed to consider the fact that the applicant during the DE vide a specific written request asked for the copy of vigilance enquiry report conducted by ACP Vigilance immediately after the list of documents was supplied to him, i.e., much before the deposition of the PW but the said report was denied to the applicant, which has caused grave prejudice to applicant in the matter of his defense. The EO has also admitted during supp. finding that the PE report was an essential document which should have been made available to the applicant and hence the present DE is bad in law.
3.2 The applicant never denied the transaction but gave an implausible explanation for the transaction. The learned counsel further submitted that there was a delay of over two years in filing 12 OA No.2026/2016 statutory appeal. It was found time barred and AA after going through the relevant records found that the applicant had acknowledged the punishment order under appeal on 01.03.2011. Applicant filed appeal against the order after 02 years on 11.05.2013. His appeal was dismissed vide a well- reasoned order on 15.04.2014. Neither in his OA, nor in the rejoinder or in his subsequent representation he could even give a cogent reason and explain delay in filing an appeal. 3.3 It is further submitted that the decision of the Tribunal in ASI Pale Ram (supra) is per incuriam of the decision of the Hon'ble Supreme Court in R.K. Anand v. Registrar, Delhi High Court, Criminal Appeal No.1393 of 2008 with I.U. Khan v. Registrar Delhi High Court, Criminal Appeal No.1451/2008, decided on 29th July, 2009 and dealt with different facts and hence is not a good law to be followed. Applicant is only a fence sitter who is seeking relief in the light of Pale Ram (supra). It is submitted that the said decision dealt with a different sting operation on bus operators and neither the footage nor the facts of the case are same.13
OA No.2026/2016
3.4 It is further submitted that the Hon'ble Apex Court in a catena of judgments have ruled that the Tribunal should not generally re- appreciate the evidence considered by the DA (Union of India v. Gunasekaran, (2015) 2 SCC 610, S.R. Tewari v. Union of India, (2013) 7 SCC 417 and B.C. Chaturvedi v. Union of India & Ors., JT 1995 (8) SC 65). The respondents have relied upon a decision of the Hon'ble Apex Court in Orissa Mining Corporation v. Ananda Chandra Prusty,[ indiankanoon.org/doc/157870], decided on 05.11.1996, where their Lordships of the Hon'ble Supreme Court held that "there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanatian." 3.5 In the present case, once confronted with the video footage which was certified as unedited and free from tampering by CFSL, applicant was positively identified taking money from bootleggers and himself acknowledged being in the video, the 14 OA No.2026/2016 burden shifted on him to explain if it was legal remuneration. Illegal gratification can be proved by circumstantial evidence as bribe is taken clandestinely not in the presence of witnesses or cameras around.
3.6 In view of the above, it is prayed that the OA is liable to be dismissed, being devoid of merit.
4. We have considered the rival contentions of the parties and gone through the pleadings on record. It is noticed from the findings recorded by the EO that Mr. Chetan Parkash, who was the main and material witness and who had prepared the CD, on the basis of which applicant was charged for accepting illegal gratification, has neither been produced in the DE nor opportunity was given to the applicant to cross-examine him. Hence the prosecution has failed to prove their story. This is in clear violation of principles of natural justice, which in turn has greatly prejudiced the applicant in the matter of his defense. Moreover, the DW-3 Bhola Ram, Bootlegger in his statement has clearly deposed in his statement that:
15OA No.2026/2016
".....on 05.07.2006, he borrowed Rs.15,000/- from Manoj Kumar through Anil Kumar, the owner of Neel Ghata Prperty. There is a written per-note of receipt which was returned in installments. The amount which is seen in the CD is the transaction of the borrowed money from HC Manoj Kumar. The CD is prepared by Chetan Prakash who is a rouge type of person who used to extort money from police officials by making false CDs. ........ He is giving this statement with his own consent."
Hence, no reliance can be placed on this CD by the respondents to prove the charge against the applicant.
5. We further find that the Appellate authority while rejecting the appeal of the applicant being time barred has also entered into the merit. The AA has also not considered/appreciated the request of the applicant seeking condonation of delay. It is well settled that once the AA has entered into the merit of the appeal it cannot reject it on mere limitation and is required to consider each and every grounds taken by the appellant in appeal. On this ground alone the OA is liable to be allowed.
6. We also find that the applicant has been greatly prejudiced in the matter of his defense as an extraneous material has been considered by the 16 OA No.2026/2016 respondents in the form of PE report, which was very much essential by the applicant in defending himself and for which a specific request was made by him. The EO has also recorded in his supplementary finding that the PE report was very essential document, which was required to be made available to the applicant. Having failed to do so, principles of natural justice have been violated and the applicant in turn has been greatly prejudiced in the matter of his defense.
7. We have also gone through the order of the DA dated 25.02.2011. The relevant part of the order reads:
"....I have gone through the statements of PWs/DWs/representations of delinquents and other material available on file. They are also heard in O.R. The main PWs did not join the DE proceedings, thereby denying the opportunity to the delinquents to cross-examine them, thus breaching the principles of natural justice in this very case, where, the delinquents have produced Bhola Ram, the person in CD shown in the CD to be dealing with the delinquents, as defence witness (DW-4), thereby deflecting the onus of establishment of their alleged misconduct in the charge on prosecution. The DW has denied the allegations against the delinquents. Here, the E.O. has erred miserably on two counts. Firstly, by allowing the delinquents to produce the DW who was supposed to be the main complainant, and secondly, by not cross-examining him to adjudge whether he has been forced or won over. Moreover, the E.O. in his findings has simply brushed aside the deposition of an important DW in the entire episode. The DE is not instituted to just establish the guilt as stated 17 OA No.2026/2016 in charge, but to adjudge the entire issue in an non-partisan way keeping in view the principles of natural justice in mind. In which equal weightage to the deposition of the DWs has to be given. Added to the above point, are the other of relevant points raised by the delinquents in their defence statement and representations submitted by them against the findings that include doubt exists about the FSL report in the absence of original equipments & material and the confusion over dates in different frames, coupled with non-appearance of main PWs in the DE proceedings, the fact that entire episode was an "illegal trap", conducted by persons whose own reputation and background are at stake & non-recovery of the alleged amount. Therefore, I am inclined only to partially agree with the findings of E.O. The delinquents needs to be discouraged in future from such an act which raises question mark on their conduct being spotted with law breakers".
8. From the above it is clear that the DA while awarding punishment upon the applicant on his own has considered the above extraneous material, which was neither made as a specific charge nor was the applicant given an opportunity to defend it. It is well settled that the departmental authorities while awarding the punishment upon the delinquent official cannot take into consideration extraneous material unless an opportunity of cross examination is given to the delinquent to defend himself.
9. The learned counsel for the applicant has relied upon a decision of this Tribunal in ASI Pale 18 OA No.2026/2016 Ram (supra) to contend that his case is squarely covered by the said decision. We have also gone through the decision of this Tribunal in ASI Pal Ram (supra) and find that the Tribunal has held thus "we are of the opinion that on account of the charge of allegation being vague and not specific, total reliance being placed on CD which was not original, opportunity not being given to cross examine important prosecution witnesses because they were not produced and that no independent witnesses were produced, we find the proceedings conducted against the applicants are not in accordance with the rules and the principles of natural justice. In our view, the respondents have totally relied upon an illegal trap, a CD which has no evidentiary value and proceedings which are not in accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside."
10. From the above, it is clear that the claim of the applicant herein is squarely covered by the decision of the Tribunal in ASI Pale Ram (supra) and we respectfully follow the same. 19 OA No.2026/2016
11. We have also perused the decisions relied upon by the learned counsel for the respondents and found them to be distinguishable on facts and hence are of no help to them as the issue involved therein was power of Courts/Tribunal in judicial review in the matters of DE.
12. Resultantly, for the foregoing reasons, the impugned order of the DA dated 25.02.2011 whereby the punishment of Censure has been inflicted upon the applicant, order dated 15.04.2014 whereby the statutory appeal of the applicant has been rejected are quashed and set aside. As a result thereof, the applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject. This exercise shall be completed by the respondents within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) 'San.'