Central Administrative Tribunal - Delhi
Si Abhaya Narain Yadav vs Gnct Of Delhi Through on 21 March, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2344/2011
With
OA-2356/2011
MA-80/2013
Reserved on : 15.03.2013.
Pronounced on :21.03.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
SI Abhaya Narain Yadav,
(D/3775, PIS No. 28821003)
S/o Sh. Sripati singh,
R/o B, 3/3-4, First Floor,
Sector-11, Rohini, Delhi-85. . Applicant
(through Sh. Sourabh Ahuja, Advocate)
Versus
1. GNCT of Delhi through
Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
2. Joint Commissioner of Police,
Special Cell through
Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
3. Deputy Commissioner of Police,
Special Cell, New Delhi through
Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi. . Respondents
(through Sh. Amit Anand, Advocate)
OA-2356/2011
SI Abhaya Narain Yadav,
(D/3775, PIS No. 28821003)
S/o Sh. Sripati singh,
R/o B, 3/3-4, First Floor,
Sector-11, Rohini, Delhi-85. . Applicant
(through Sh. Sourabh Ahuja, Advocate)
Versus
1. GNCT of Delhi through
its Secretary,
Department of Home,
Delhi Secretariat,
Players Building,
IP Estate, New Delhi.
2. Union of India through
Its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
3. Lt. Governor,
GNCT of Delhi
Raj Bhawan,
Shamnath Marg,
New Delhi.
4. Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
5. Deputy Commissioner of Police,
Establishment, New Delhi
Through Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi. . Respondents
(through Sh. Madhuvendra Jha for Ms. Alka Sharma, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The two O.As are inter-connected, hence these are being disposed of by this common order.
2. Facts of OA-2344/2011 are being discussed below:-
2.1 This O.A. has been filed seeking the following relief:-
(a) to quash & set aside the impugned orders referred in Para-1 of OA and accord all the consequential benefits to the Applicant viz. promotion, Seniority, difference in pay along with interest @ 18% p.a. etc. And
(b) To award cost in favor of the Applicant and against the respondents.
(c) To pass any further order, which this Honble Tribunal may deem fit, just equitable in the facts and circumstances of the case. 2.2 The applicant was working as Sub-Inspector in Delhi Police when a departmental inquiry was initiated against him on 04.01.2008. The allegations against the applicant were as follows:-
A departmental enquiry was initiated against SI Abhey Narayan No. D/3775 vide this office order No. 124-162/HAP/Spl. Cell (P-II) dated 4.1.2008 on the allegation that while he was posted at PS Connaught Place, New Delhi Distt., on 06.01.99 a case FIR No. 15/99 dated 06.01.99 u/s. 419/420/467/468/471/34/120 B IPC & 12 PP Act PS Connaught Place was registered in which eight passports (seven Indian and one Srilankan) were handed over by SI Hira Lal No. D-1933 of FRRO, Hans Bhawan, New Delhi to SI Sushil Kumar No. D-3073. The case was investigated by SI Sushil Kumar No. D-3073, SI Ajay Pratap Singh No. D-947, SI Sandeep Ghai, No. D-3749, SI Krishan Kumar No. D-3795, again by SI Sandeep Ghai than SI Subhash Chand No. D-3469 and finally by SI Abhey Narayan No. D-3775. One passport out of these eight passports was released by SI Sandeep Ghai to Paramjeet Singh on the orders of the court on 18.05.99 and there should have been seven passports with the case file when it was sent to court. The case was investigated by SI Abhey Narayan No. D-3775 from 26.04.2K to 19.1.2001 i.e. till the case file was sent to court. But the passports were not attached with the case file when it was sent to court. SI Abhey Narayan No. D-3775 did not check the case file properly and sent the case file to court without the passports. He also did not mention in the challan about the whereabouts of the passports whereas the previous IO of the case i.e. SI Subhash Chand No. D/3469 has stated that the passports were with the case file when he had handed over the case file. He has not mentioned any thing about the passports in the case diaries written by him. SI Abhey Narayan did not ensure that all the requisite documents were with the case file and sent the case file to court without the passports. The departmental inquiry was conducted by Sh. L.N. Rao, ACP, who after concluding the inquiry submitted his findings stating therein that the charge levelled against the applicant has not been proved beyond reasonable shadow of doubt. The Disciplinary Authority (DA), however, did not agree with the findings of the Inquiry Officer (IO) and issued a disagreement note on 20.05.2009. The applicant submitted his reply and after taking that into consideration the DA passed an order on 02.06.2009 imposing a penalty of withholding applicants increment for a period of one year without cumulative effect. The applicant preferred an appeal against the order of the DA, which was rejected by the Appellate Authority (AA) on 09.03.2011. Aggrieved by these orders, this O.A. has been preferred.
2.3 The applicants contention is that the orders of the respondents are unjustified, unreasonable, in violation of principles of natural justice, illegal and arbitrary. The inquiry was initiated against the applicant 8 years after the alleged misconduct which has caused great prejudice to the applicant. The respondents have not explained the delay either and, therefore, the action of the respondents is in violation of the law laid down by the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh & Anr., JT 1990(2) SC 54. Further, the applicant has stated that this is a case of no misconduct and no evidence qua the applicant. The applicant has been punished on the basis of premises and assumptions simply because he was the last IO in the said case. According to him all previous IOs before the applicant have made statements against the applicant to save their own skill. He has further stated that the charge sheet in the said case was signed by the SHO and the concerned Assistant Commissioner of Police and it was their duty also to ensure that the seized pass ports were available on the case file. However, both of them were not penalized for the said omission whereas the applicant has been singled out for punishment. Thus, the act of the respondents amounts to invidious discrimination and is in violation of Article 14 of the Constitution of India. Further, he has alleged that the DA has taken into consideration extraneous material while issuing the disagreement note. His contention is that the Apex Court in the case of Yoginath D. Bagde Vs. State of Maharasthra & Anr., JT 1999(6) SC 62 has held that when there is a note of disagreement, it should relate to the findings of the IO. But in the instant case a mere perusal of the disagreement note would make it clear that the DA has pre-judged the issue and had made up his mind to punish the applicant and calling for the representation of the applicant was only an empty formality. The applicant has further pointed out certain discrepancies in the statements of witnesses. About Brij Mohan (PW-3), he has stated that during cross examination the witness agreed that there is no mention in any of the case diaries as to when was the Sri Lankan passport sent for verification to Srilankan High Commission and when it was received back from there. The same PW further admitted that it is also not mentioned in case diaries as to when the two passports were sent to RPO Jallandhar, who was the carrier and when they were received back. About SI Subhash Chand (PW-5) who was the last IO, the applicant has stated that during cross examination SI Subhash Chand expressed doubt that the passports may not have been attached to the file and it was possible that SI Krishan Kumar might have kept the passports with him. SI Subhash Chand further admitted that there was no documentary evidence with him that the passports were attached with the case file. Similarly, SI Sandeep Ghai, Court Witness-2 also admitted during his cross examination that there was no documentary evidence with him or in the case file to prove that the passports were attached with the file. On the basis of the above, the applicant has stated that the inquiry officer has rightly come to the conclusion that the passports were not in the case file and, therefore, the charges against the applicant were not in the case file and therefore the charges levelled against the applicant were not proved, hence the impugned orders are liable to be quashed.
3. In their reply the respondents have denied the allegations of the applicant and have stated that when the said case was sent to the court the passports were not attached with the case file. The applicant erred by not checking the case file before sending it to the court. He also did not mention in the challan about the whereabouts of the passports whereas the previous IO of the case SI Subhash Chand has clearly stated that the passports were in the case file when he had handed over the same to the applicant. According to the respondents, the DA had thoroughly examined the entire DE file including the statements of witnesses and had disagreed with the findings of the IO on the grounds that the previous IO SI Subhash Chand (PW-5) has clearly stated in his statement that he had handed over the case file to MHC (R) of PS Connaught Place along with the 7 passports for further investigation. The applicant had received the case file from MHC (R) of PS Connaught Place and investigated the case but he did not point out at any stage that the passports were missing. Further, PW-3 Constable Brij Mohan had stated during the inquiry that the applicant had written case diaries from 26 to 29 but he did not mention about the absence of passport in any one of them. He also did not bring to the notice of SHO that the passports were missing. Other previous IOs had also supported that the passports were available with the case file. After taking into consideration all the facts and circumstances of the case, the DA had held the applicant guilty and had punished the applicant. The AA after considering all the facts had rejected the appeal.
4. We have heard both the parties and perused the material on record.
5. It is well established principle of law that in judicial review reappraisal of evidence is not to be done. However, in the instant case, learned counsel for the applicant had argued that this was a case of no evidence. We are not inclined to agree with the applicants contention in this regard. The last presiding IO SI Subhash Chand in his statement has stated that on 17.12.1999 he received the case file of FIR No.15/99 u/s 419/420/467/471/34/120-B & 12 P.P. Act PS Connaught Place and investigated the same vide case diaries number 19 to 25 respectively. On 06.04.2000 he handed over this file to MHCR and 7 passports in question were with the case file. Similarly, SI Sandeep Ghai in his statement has stated that he investigated the same case from 02.05.1999 to 07.07.1999 and from 16.11.1999 to 10.12.1999. On 18.05.1999 he released one passport to Sh. Parmajeet Singh on the direction of Honble Court. On 10.12.1999 all the relevant documents including passports were with the case file when he handed over the same to MCH.. SI Ajay Pratap Singh has stated in his statement that he had attended the bail matter in the court of ASJ, Patiala House. Honble ASJ had directed verification of passports from concerned RPOs. Since 5 passports were issued from RPO Delhi and 2 passports from RPO Jallandhar they were got verified through SI K.K. Yadav. One passport was got verified from Srilankan High Commission. Thereafter, SI Sushil Kumar took charge of the file along with all the documents.
6. On the basis of above, we come to the conclusion that evidence was available to substantiate the charge against the applicant. While there may have been some discrepancies pointed out in the cross examination of these witnesses, yet we do not feel that these discrepancies will make this case as a case of no evidence. Hence on this issue, we are not inclined to agree with the applicant.
7. The other point raised by the applicant was that SHO and ACP who had also signed the charge sheet were not penalized and only the applicant was singled out. According to him, this is a case of invidious discrimination in violation of Article 14 of the Constitution of India. However, in our opinion, the applicant was the IO of this case and it was his primary responsibility to ensure that when the case file is sent to the court, it is complete in all respects. The fact that SHO and ACP had also signed the charge sheet does not absolve the applicant from the charge. The applicants counsel could not cite any case law to prove his point that since others involved in the case were not punished, proceedings against him will also be vitiated. Hence, we do not agree with the applicant in this regard.
8. Applicant has also raised the issue that the DA had already made up his mind to punish the applicant and issuance of disagreement note was a mere formality. In this regard, we have perused the disagreement note, the last para of which reads as under:-
I have gone through the entire DE file including charge, statement of witnesses, defence statements and findings of the enquiry officer. I do not agree with the findings of the enquiry officer on the grounds that his previous IO/SI Subhash Chand No. D/3469 (PW-5) has clearly stated in his statement that he had handed over the case file to MHC(R) of PS Connaught Place alongwith all the seven passports for further investigation. Though he has not mentioned it either in his case file taking over case diary No. 19 dated 17.12.99 or case file handing over case diary No. 25 dated 6.4.2000. SI Abhey Narayan had received the case file from MHC(R) of PS Connaught Place and investigated the case but he did not point out the fact at any stage whether the passports were not available on the case file which shows that the same were available with the case file when he received the same. PW-3 Ct. Brij Mohan No. 930/ND has stated that SI Abhey Naryan had written case diaries from 26 to 29. But he neither mentioned about the absence of passports in any case diary nor brought the fact in the notice of SHO as well as his previous I.O. SI Subhash Chand, CW-1/HC Amar Singh No. 378/SD has stated that he was posted as MHC(R) of PS Connaught Place from 20.6.1999 to 20.5.2000 and the case file of FIR No. 15/99 PS Connaught Place was handed over to SI Abhey Narayan on 9.4.2000 for further investigation. All the previous I.Os. have also supported that the passport were available with the case files.
9. It is clear from the language of the said note that the DA had only tentatively disagreed with the findings of the IO and held the applicant guilty of the charge. Therefore, it cannot be said that he had already made up his mind to punish the applicant. Apex Courts judgment in the case of Yoginath Bagdes (supra) cited by the applicant will not be of help to him. The DA has also given detailed reasons for his disagreement with the IO citing the statements of witnesses SI Subhash Chand, Ct. Brij Mohan and others for disagreeing with the IOs findings. Thus, in our opinion, this order is well reasoned and speaking.
10. The applicant has stated that there has been delay of more than 8 years in initiation of departmental proceedings against him and, therefore, on this ground itself the proceedings need to be quashed. However, in the case of Government of Andhra Pradesh and Others Vs. V. Appala Swamy, (2007) 14 SCC 49, the Apex Court has held as follows:-
So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, no hard-and-fast rule can be laid down. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (I) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer. The High Court did not consider any of the aforementioned aspects. Therefore, the impugned judgment of the High Court was not sustainable. In the instant case, the applicant has failed to show that he had taken the plea of delay before the IO along with the manner in which the delay has caused prejudice to his defence. Therefore, we are not inclined to quash the proceedings on account of delay.
11. From the above, we come to the conclusion that there is no ground for interfering with the disciplinary proceedings in this case. The O.A. is devoid of merit and is dismissed. There shall be no order as to costs.
OA-2356/2011
12. The relief sought in this o.A. is as follows:-
(a) Quash and set aside the impugned order mentioned in Para 1 of the OA. And
(b) Direct the respondents to grant President Police Medal for Gallantry to the Applicant w.e.f. 22/12/2006 (the date of brave act) with all consequential benefits including seniority, difference in pay, promotion etc., And
(c) Call for the records of the case pertaining to incentive committee which was held on 05/04/2010. And
(d) To award cost in favor of the Applicant and against the respondents. And/or
(e) To pass any further order, which this Honble Tribunal may deem fit, just equitable in the facts and circumstances of the case.
13. Learned counsel for the applicant had stated that applicant and some others including Ct. Man Singh were involved in an act of Gallantry which led to pining down of one gangster, namely, Kamal Mehta in an operation on 22.12.2006. For this act of bravery, applicants name was recommended for grant of President Police Medal for Gallantry. On 19.05.2008, the respondents have rejected all the citations but subsequently on reconsideration on 15.08.2009 the name of applicant along with Ct. Man Singh was recommended for grant of PMG. Thereafter, since departmental inquiry had commenced against the applicant his case was not processed further and was kept in abeyance till the departmental inquiry was finalized whereas Ct. Man Singh was granted PMG on 15.08.2009.
14. During the arguments, learned counsel for the applicant agreed that his O.A. for grant of this medal would survive only if the punishment awarded to him in departmental inquiry is quashed. Since we have already decided to uphold the punishment awarded to the applicant and dismissed the OA-2344/2011, this O.A. also does not survive, hence the same is also dismissed. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Parakcen) Member (A) Member (J) /Vinita/