Central Administrative Tribunal - Delhi
Asi (Min) Ashok Kumar Tyagi S/P ... vs Government Of Nct Of Delhi Through on 30 July, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1174/2006 This the 30th day of July, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) ASI (Min) Ashok Kumar Tyagi S/P V.P.Tyagi, R/O 701 Adarsh Mohalla, Mozpur, New Delhi. Applicant ( By Shri Ravi Kant, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, Special Cell, Police Headquarters, IP Estate, New Delhi. 3. Deputy Commissioner of Police, Special Branch, New Delhi. Respondents ( By Shri Harvir Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Ashok Kumar Tyagi, an Assistant Sub Inspector (Ministerial), has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 21.4.2003 (Annexure A-1) passed by the disciplinary authority, vide which pursuant to directions given by this Tribunal in an earlier Original application filed by him, he was inflicted the punishment of forfeiture of one years approved service temporarily entailing reduction in his pay from Rs.3795/- to Rs.3710/- per month, effective from the date of previous order issued on 25.5.2001, as also order dated 24.11.2003 (Annexure A-2) passed by the appellate authority dismissing his appeal carried against the order dated 21.4.2003.
2. Brief facts of the case reveal that while serving the Delhi Police as Head Constable (Min), the applicant was served a summary of allegations with list of witnesses and documents on 8.8.2000. It was alleged against him that while he was posted in Communal Branch/SB he was called in the office of ACP/Coml/ HQ/SB Sh. G.C. Kapoor on 7.7.2000 along with Inspr. Hindu Section R. K. Budhiraja and ordered to attend the office on 8 & 9.7.2000 to complete the typing work of preparing list of temples, which were pending with him for the last more than one month. However, when checked by Inspr. R.K. Budhiraja on 9.7.2000 he was found absent. He had neither turned up on both the days i.e. 8 & 9.7.2000 nor the lists were completed. As such, he was marked absent vide DD No.12 dated 9.7.2000, DO/SB Control Room. However, he has not lodged the report regarding resuming duty from absence though he knew that he had been marked absent, as told by the DO/HC Desh Raj No.174/SB. Finally, he made his arrival vide DD No.18 dated 13.7.2000 Control Room/SB. Summary of allegations along with documents has been placed at Annexure A-4. It is the case of the applicant that the summary of allegations and list of documents were illegally prepared and supplied to him in violation of principles of natural justice; that the enquiry officer acted as prosecutor; and that the enquiry officer himself examined the witnesses and thus acted as the presenting officer, which is against the principles of natural justice. While further pointing some procedural flaws in the conduct of the enquiry, it is pleaded that the enquiry officer submitted his report on 13.3.2001 holding the charges framed against the applicant as proved. The applicant filed representation against the findings of the enquiry officer but the disciplinary authority vide order dated 25.5.2001 passed the order of punishment, constraining thus the applicant to file an appeal, which was rejected vide order dated 21.11.2001. Aggrieved, the applicant filed OA No.74/2003 before this Tribunal which was disposed of on 22.1.2003. The impugned orders in the OA aforesaid were quashed with direction to the disciplinary authority to pass fresh order in accordance with law. On 21.4.2003 the disciplinary authority again passed the punishment order, as mentioned above, which has since been confirmed in appeal vide order dated 24.11.2003. These are the two orders that have been challenged in the present Application.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter affidavit, contested the cause of the applicant. The applicant has filed a rejoinder as well.
4. It is seen from the records of the case that the initial order of punishment, as mentioned above, came to be passed on 25.5.2001. Relevant part of the order aforesaid reads as follows:
However, keeping in view the totality of the circumstances and his future career, I take a lenient view and impose the punishment of forfeiture of one year of his approved service for a period of one year entailing reduction in his pay by one stage without cumulative effect. Accordingly, the pay of HC (Min.) Ashok Kumar, No.25/SB is reduced by 1 stage from Rs.3795/- p.m. to Rs.3710/- p.m. temporarily in time scale of pay for a period of 1 year. He will not earn increment of pay during the period of reduction and on the expiry of this period, postponing his future increments of pay. His suspension period from 13.7.2000 to 18.7.2000 is decided as Not Spent on Duty for all intents and purposes. Appeal preferred by the applicant against the order aforesaid was dismissed on 21.11.2001, as mentioned above. While challenging the order aforesaid in OA No.74/2003 the ground that was pressed before the Tribunal at that stage was that the punishment awarded was dual. Accepting the argument aforesaid on the basis of the decision of the Honble Delhi High court in CWP No.2368/2000 with other connected cases decided on 17.9.2002 in the matter of Shakti Singh v Union of India, the impugned orders were quashed with the direction that the disciplinary authority, if it may so feel, may pick up the loose threads and thereupon, in accordance with law, pass a fresh order in that regard in the light of the decision of the Honble Delhi High Court in Shakti Singhs case (supra). Para 5 of the judgment reads as follows:
5. By way of abundant caution, it is made clear that nothing said herein be taken as an expression of opinion on the merits of the present case or other pleas that the applicant may like to raise.
5. Learned counsel representing the applicant contends that the controversy on merits has been kept alive inasmuch as, the Tribunal while disposing of OA No.74/2003, only dealt with multiple punishments which were not permissible in view of judgment in the case of Shakti Singh (supra). While challenging the orders, which in the very nature of the issue, include initial orders of punishment as well, it is urged that there is absolutely no evidence on record to prove the charge against the applicant, and the disciplinary authority who has passed the impugned punishment order is not the competent authority to do so. While elaborating his contention as noted above, the learned counsel urged that in view of provisions of rule 14(4) of the Delhi Police (Punishment & Appeal) Rules, 1980, the disciplinary authority is the authority under whom a police personnel is currently posted, and further that as per circular issued by the respondents dated 24.12.2002, the final order should be passed by the disciplinary authority under whose control the defaulter is working at the relevant time. The punishment order has been passed by DCP/SB but at the time of passing the order, the applicant had not been working under him. Other grounds as well have been taken in the pleadings, but during the course of arguments, the learned counsel has pressed into service only two-fold contentions, as mentioned above.
6. Shri Harvir Singh, learned counsel representing the respondents, per contra, contends that the department had led overwhelming evidence in bringing home the charge framed against the applicant and that there is no occasion whatsoever to interfere with the findings recorded by the enquiry officer, the disciplinary and appellate authorities on that count in the limited scope for interference by judicial fora. It is then urged that the disciplinary authority passed the fresh punishment order in the right spirit in accordance with the provisions contained in rule 14 (4) of the Rules of 1980, and in view of the observations made by this Tribunal in OA No.74/2003. Rule 14(4) of the Rules aforesaid envisages that the disciplinary action shall be initiated by the competent authority under whose disciplinary control the police officer concerned is working at the relevant time it is decided to initiate disciplinary action. It is further urged that as per the direction of this Tribunal, the loose threads were picked up and fresh punishment order was issued from the date of issue of the previous order, and as at that time the disciplinary authority of the applicant was DCP/SB, the order has rightly been passed by DCP/SB, and that DCP/SB has passed the order in the chain of disciplinary action which had already been initiated against the applicant while his disciplinary authority was DCP/SB himself.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Perusal of the enquiry report dated 13.3.2001 (Annexure A-3) would reveal that the charge as mentioned above came to be framed against the applicant after examining HC Desh Raj (PW-1), HC Shri Bhagwan (PW-2), HC Mohinder Pal Singh (PW-3), HC Rakesh (PW-4), Inspr. R.K.Budhiraja (PW-5), Shri G.C.Kapoor, ACP/SB (PW-6) and HC Ved Prakash (PW-7). The applicant was given opportunity to lead evidence in defence. He submitted a list of 12 witnesses on 14.2.2001 out of whom he examined 8 witnesses. While considering the evidence led by the parties, the enquiry officer discussed the matter by observing as follows:
The undersigned has gone carefully through the deposition of PWs as well as the defence statement submitted by the delinquent HC Ashok Kumar, No.25/SB on 7.3.2001. In his defence statement HC Ashok Kumar plead that on 7.7.2000 at about 5.30 PM Inspr. R.K.Budhiraja (PW-5) came in the Coml. Branch and asked SI Raghubir Singh (DW-2) that the orders regarding attending on 8, 9.7.2000 by entire branch are going to be passed for preparing the list and such orders are likely to reach to this effect. But till the staff left the office neither such orders were received nor any one was directed for preparation of these lists on the holidays i.e. 8,9.7.2000. The plea taken by HC is not tenable as ACP/HQ G.C. Kapoor (PW-6) directed personally to HC Ashok Kumar to come in the office on 8,9.7.2000 to complete the list of temples in presence of Inspr. R.K. Budhiraja (PW-5). Both the PWs clearly deposed in their statements in this regard. Moreover, PW-5 Inspr. r. K. Budhiraja denied in his cross examination that he went to communal branch on 7.7.2000 at 5.30 PM and given direction to SI Raghubir Singh regarding attending the office by entire branch on holidays. The delinquent HC has nothing to say about the statement of PW2 HC Sri Bhagwan, No.240/NE and HC Ved Prakash No.282/NE (PW-7) the then DO PS Bhajan Pura who conveyed information about his absent at his home to his mother and his brother. Similarly, PW-1 HC Deshraj, NO.174/SB, Duty Officer in his statement said that on 10.7.2001 he informed HC Ashok Kumar, Coml. Branch that he was marked absent in Roznamcha as he well known to him, despite that he knew that he had marked absent, he did not make his arrival form his absent in daily diary. As regard the plea taken by the HC that on 12.7.2000 a UO from SIP/SB was received in coml.. Branch consisting the details of his absent for comments of the Inspr. Coml. Branch in which Inspr. Communal recommended therein, for the Tabsia to cancel the absent. In this regard it is fact that Inspr. Communal was not aware about the direction of ACP/HQ (PW-6) given to HC Ashok Kumar to attend the office 8,9.7.2000 as Inspr. Communal did not mention about this in his report/comments dated 12.7.2000. HC Ashok Kumar also failed to produce Inspr. Communal in his defence as he well known about the facts.
The depositions of DWs are fully silent about the absent of HC Ashok Kumar and also about the direction of ACP/HQ Sh. G. C. Kapoor, (PW-6) given to the delinquent HC Ashok Kumar personally to come the office on 8,9.7.2000. Hence, their depositions have no relevancy with the charge.
During the course of the proceedings the attitude of HC Ashok Kumar remain non co-operative and he tried to delay the proceedings unnecessarily, in many occasion by take medical rest/duty rest and submitting applications to DCP/SB to supply additional documents which are irrelevant and request was found baseless. The conclusion drawn by the enquiry officer on discussion of evidence, as mentioned above, reads as follows:
From the above discussion, statements of PWs and material evidence on record, it has been proved that HC Ashok Kumar No.25/SB is of defiant nature and he has scant respect for the orders of senior officers. He has shown disobedience to the orders of senior officers. If person like him is allowed to continue in the force, this will spread indiscipline in the entire force. Hence, the charge leveled against HC Ashok Kumar No.25/SB has been substantiated. The disciplinary authority in its order dated 25.5.2001 observed as follows:
I have minutely examined the D.E. file, representation of the delinquent and also heard him in person on 18.5.2001.
None of the points raised by the delinquent, in the representation, has any force. There is sufficient evidence on record in support of the charge served on him. Due procedure was followed by the E.O. during the D.E. proceedings and the delinquent had availed ample opportunity to defend his case. The finding of the E.O. is based on the basis of preponderance of evidence on D.E. file. At the time of personal hearing, the delinquent has not raised any new point except repetition of the contents of his representation.
The preponderance of evidence is quite clear that the delinquent has been insubordinate and disobedient in failing to comply with the legal, albeit verbal, orders of his senior officers which is very grave in nature. In the appeal preferred by the applicant against the order aforesaid the following points were raised:
a. That neither the appellant was directed to attend the office for the preparation of list of temples on 8 & 9.7.2000 by ACP/HQ/SB nor specific orders were made to him in this regard either by Inspr. R. K. Budhiraja or ACP/HQ/SB.
b. That neither any absentee notice was issued to the appellant nor HC Desh Raj intimated about the exact details of the absent so that appellant could lodge his arrival report on the same day.
c. That on 13.7.2000, the appellant himself made his arrival entry in the Roznamcha vide DD No.18 dt. 13.7.2000 on the receipt of exact details about the absence. The appellate authority met the points raised by the applicant by observing thus:
6. I have carefully gone through the appeal and other relevant record placed on D.E. file. The appellant was also heard in O.R. on 8.8.2001 where he has not put forth anything new except what he has already mentioned in his appeal. The pleas taken by the appellant carry no weight in the light of the following reasons:
That Sh. G. C. Kapur, ACP/HQ/SB (PW-6) has categorically stated in his statement that he had personally directed the appellant to attend the office on 8 & 9.7.2000 for the preparation of the lists of temples. This version was also supported by Inspr. Sh. R.K. Budhiraja (PW05).
That HC Sri Bhagwan, No.240/NE (PW-2) who was on duty on 9.7.2000 at PS Bhajanpura stated in his statement that he informed appellants mother and younger brother about his absence on 9.7.2000. The appellant was specifically told by HC Desh Raj, No.174/SB (PW-1) on 10.7.2000 that he had been marked absent on 9.7.2000.
That the appellant while checking the Roznamcha for his absence should have checked the DD entries of the concerned date wherein his absence was recorded to avoid any confusion as to whether he was actually marked absent or not. It is on record that the appellant was informed by HC Desh Raj, No.174/SB about his absence on 10.7.2000 but he made his arrival only on 13.7.2000. This act on his part shows his obstinacy and indiscipline.
7. HC Ashok Kumar, No.25/SB was specifically directed by his superior officer to attend the office. He wilfully disobeyed the directions. Further having knowledge that he was running absent, he ignored it and did not record his arrival. This shows his defiance and disobedience. [ On remand by this Tribunal vide order dated 22.1.2003 in OA No.74/2003, the disciplinary authority vide its order dated 21.4.2003 inter alia observed as follows:
In the CATs judgment referred to above, the D.E. proceedings, findings of the E.O. as also evaluation and assessment of evidence on record by the Disciplinary Authority at the time of infliction of punishment have not been questioned. I feel that only fresh penalty order is to be issued so as it does not construe double jeopardy. In the appeal preferred by the applicant against the order aforesaid, however, the appellate authority mentioned and discussed the points raised by the applicant.
8. Shri Ravi Kant, learned counsel representing the applicant, contends that the disciplinary authority clearly erred while observing that in the judgment of this Tribunal the disciplinary enquiry proceedings, findings of the enquiry officer as also evaluation and assessment of evidence on record by the disciplinary authority at the time of infliction of punishment had not been questioned, and in fact, no plea on merits was considered by the Tribunal and the case was remanded only on the ground of multiple punishments, and that once, there was no evaluation of the case on merits, the disciplinary authority had necessarily to record reasons so as to arrive at the conclusion that the applicant was guilty of the charge framed against him and the finding of the enquiry officer was based upon proper evaluation of evidence. There appears to be merit in the aforesaid contention of the learned counsel as noted above, but that alone, in our view, in facts and circumstances of this case, may not be sufficient to quash the impugned orders and remit the case once again to the concerned authorities. It may be recalled that while first inflicting the punishment upon the applicant, the disciplinary authority in its order dated 25.5.2001 had taken into consideration the entire facts and the appellate authority also likewise referred to the points raised by the applicant and gave findings thereon. So is the position insofar as at least the order passed by the appellate authority against the order dated 21.4.2003 is concerned. Further, the applicant has not been able to point out any procedural lapse that may vitiate the enquiry and the impugned orders. He has also not been able to substantiate his plea that it is a case of no evidence. It is interesting to note that the applicant before the appellate authority had not even urged that there was no evidence led before the enquiry officer to prove the charge against him. His contention only pertained to veracity of statements made by ACP G. C. Kapoor and Inspector R. K. Budhiraja. The appellate authority on the aforesaid contention raised by the applicant observed that there was no reason to doubt the testimony of ACP G. C. Kapoor and Inspector R. K. Budhiraja. The evidence led before the enquiry officer would clearly reveal that ACP/HQ G. C. Kapoor (PW-6) had personally directed the applicant to come to office on 8 & 9.7.2000 to complete the list of temples in presence of Inspector R. K. Budhiraja (PW-5). The witnesses clearly deposed in their statements in this regard, as has been rightly observed by the enquiry officer in his report. It is settled proposition of law that judicial forums would not re-appreciate or re-assess evidence. There is little scope for upsetting the findings of fact recorded by the concerned authorities. Nothing at all has been pointed out that may detract the testimony of the witnesses examined by the enquiry officer. Insofar as, the plea of the applicant based upon rule 14(4) of the Rules of 1980 is concerned, the same only envisages that disciplinary action shall be initiated by the competent authority under whose disciplinary control the police officer concerned is working at the relevant time it is decided to initiate disciplinary action. At the time disciplinary action was initiated against the applicant, he was under disciplinary control of DCP/SB. We find no infirmity in the observation made by the appellate authority that DCP/SB had passed the order in the chain of disciplinary action which had already been initiated against the applicant while his disciplinary authority was DCP/SB himself.
9. Finding no merit in this Application, we dismiss the same leaving, however, the parties to bear their own costs.
( Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/