Central Administrative Tribunal - Delhi
Sandeep Kumar vs M/O Home Affairs on 21 June, 2021
1
OA No. 1104/2018
Item No.52
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 1104/2018
This the 21st day of June, 2021
(Through Video Conferencing)
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Sandeep Kumar,
Ex-Intelligence Officer, 'B',
Narcotics Control Bureau,
Aged about 32 years,
S/o Sh. Rajender Singh Khatri,
R/o H.No.295, Pana Udhan,
Narela, Delhi-110040
... Applicant
(By Advocates: Mr. Nalin Koli with Mrs. Harvinder Oberoi)
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi
2. The Director General,
Narcotics Control Bureau,
West Block No.1, Wing No.5,
R.K. Puram, New Delhi
... Respondents
(By Advocate : Mr. Satish Kumar)
2
OA No. 1104/2018
Item No.52
O R D E R (ORAL)
Justice L. Narasimha Reddy :
This OA presents a text book case, to show, as to how a departmental inquiry should not be conducted. What is more surprising is that the inquiry was held by Sr. Officers of an important organization like Narcotics Control Bureau (NCB), which is a part of the Ministry of Home Affairs.
2. The applicant was working as an Intelligence Officer in the NCB and in the year 2014, he was attached to the Delhi Zone of NCB. According to the applicant, he was entrusted with the investigation into a case of supply of narcotic drugs through courier service, and accordingly he visited the courier agency, run by one Shri Jitin Kumar Sharma in the shop at Santram Market, Dallupura, Delhi. It is stated that the applicant found some suspicious material and Sh. Jitin Kumar Sharma was not able to answer the questions relating to that. The applicant says that when he insisted on Jitin Kumar Sharma to locate the person or agency to whom the suspected drug was to be delivered, he took him to various places and the case was under investigation.
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3. The applicant was issued a charge memo dated 30.12.2014 alleging that he demanded and accepted a sum of Rs.5.50 lakhs from Jitin Kumar Sharma and that he did not inform his superiors about the developments in the case that was being investigated by him. The applicant submitted his explanation, denying the allegations. The Inquiry Officer submitted a report on 26.10.2015 holding that article-I of the charge is 'not proved' and article-II is 'proved'. Copy of the report was furnished to the applicant and he was required to submit his explanation. After the applicant submitted his explanation on 10.03.2016, Disciplinary Authority (DA) issued a disagreement note with certain indications. The applicant submitted his reply to the same. Thereafter the DA passed an order dated 20.06.2016, dismissing the applicant from service. Aggrieved by that, the applicant filed an appeal to the concerned authority. That was rejected through an order dated 21.02.2018. This OA is filed challenging the order of dismissal dated 20.06.2016 and the order of Appellate Authority dated 21.02.2018. The applicant has also challenged the inquiry report dated 28.01.2016 as well as disagreement note.
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4. The applicant contends that the IO committed serious irregularities in straightway examining him at the commencement of the inquiry and it is thereafter, that the IO examined the prosecution witnesses. He contends that the IO is required to be neutral and to note the gist of depositions, as and when the concerned representatives examine the witnesses and there was no justification for the IO to examine him, and the departmental witnesses. It is also stated notwithstanding the said defects, the IO recorded a finding on charge no.1, which is serious in nature, as not proved, and the finding on charge No. 2, is untenable.
5. He contends that once his explanation was sought on the report, there was no basis or legal backing for the DA to issue disagreement note, at a later stage and the same does not accord with law. It is pleaded that notwithstanding the basic defect in the disagreement note, the DA did not record any finding that the allegation of accepting the bribe was proved and despite that, the punishment of most serious nature was inflicted upon him. Certain other contentions are also urged. It is urged that the appellate authority did 5 OA No. 1104/2018 Item No.52 not take into account, any of those serious defects and irregularities.
6. On behalf of the respondents, a detailed counter affidavit is filed. It is stated that the allegations against the applicant are serious in nature and the inquiry was conducted strictly in accordance with the law. It is also stated that no prejudice can be said to have been caused to the applicant, simply because he was examined at the threshold or that the disagreement note was issued after he submitted his explanation. The various contentions urged by the applicant are also denied.
7. We heard Mr. Nalin Kohli, learned counsel assisted by Mrs. Harvinder Oberoi, learned counsel for the applicant and Mr. Satish Kumar, learned counsel for the respondents.
8. The applicant was handling a very delicate and serious task of investigating into the supply of narcotics. The focus was upon a courier agency which was said to have been engaged to supply narcotics drugs. It was in that connection, that the applicant visited the premises being run by Mr. Jitin Kumar Sharma. Though the applicant furnished his version of the entire episode, we prefer to take into account, the one, 6 OA No. 1104/2018 Item No.52 which is presented by the respondents in the charge memorandum. Two articles of charge read as under:-
"Article-I That the said Shri Sandeep Kumar while functioning Delhi Zonal Unit as Intelligence Officer.
Shri Jitin Kumar Sharma S/o Shri Suresh Kumar Sharma, an agent of Speed Post Collection Centre, Indian Post, Shop No.1, 1st Floor, C Santram Market, Dallupura, Delhi-96 appeared before the Zonal Director, NCB Delhi Zonal Unit on 09.10.2014 with a complaint against the said Shri Sandeep Kumar, Intelligence Officer of Dehi Zonal Unit.
That the said Shri Sandeep Kumar, IO visited the shop of Shri Jitin Kumar Sharma on 08.10.2014 and enquired about the parcels of M/s Alpine Medicare, 7, Janta Market, Shri Sandeep Kumar, IO took photocopies of certain documents from the shop, started threatening Shri Jitin Kumar Sharma and snatched his mobile phone. Shri Sandeep Kumar, IO has also threatened to shoot Shri Jitin Kumar Sharma in case he did not co- operate with Shri Sandeep Kumar.
Shri Sandeep Kumar, IO has asked Shri Jitin Kumar Sharma to follow him on his motor bike. Shri Jitin Kumar Sharma, in his car with driver, followed the motor cycle of said Shri Sandeep Kumar, IO.
Shri Sandeep Kumar, IO guided Shri Jitin Kumar Sharma to NCB Delhi Zonal Office, RK Puram, New Delhi. He went into the office of NCB Delhi Zonal unit and made Shri Jitin Kumar Sharma wait outside for one and half hours. Shri Sandeep Kumar, IO again threatened Shri Jitin Kumar Sharma that a case will be filed against him since the documents produced by him were not proper. Shri Sandeep Kumar, IO has demanded an illegal gratification of Rs.5.50 lakh from Shri Jitin Kumar Sharma within two hours as a reprieve for not proceeding any case against him.7 OA No. 1104/2018
Item No.52 That the said Shri Sandeep Kumar, IO after parking his motorcycle near the NCB office entered in the car of Shri Jitin Kumar Sharma and forced him to talk to his relatives through his mobile number for arranging the money. Then they moved towards Jahangir Puri. Shri Jitin Kumar Sharma arranged Rs.2 lakh from one source at Jahangir Puri Metro Station Gate No.4 and gave it to Shri Sandeep Kumar, IO. They further moved to Singhu Border and Shri Jitin Kumar Sharma arranged Rs.3.50 lakh from Memorial in front of HP Petrol Pump and paid the amount to Shri Sandeep Kumar, IO at about 8.30 pm on 08.10.2014.
That the said Shri Sandeep Kumar, IO after accepting Rs.5.5 lakh asked Shri Jitin Kumar Sharma to change his mobile number, to shift the shop to some other locations and not to discuss the incident with any other person and threatened to shoot him if he tried to trace him.
Shri Sandeep Kumar also informed Shri Jitin Kumar Sharma that he will get his case file from Rajouri Garden next day (09.10.2014) by 06.00 pm. Shri Sandeep Kumar asked him to drop him at Narela Railway Station, Delhi, but suddenly after few kilometers he told to stop the car at Narela Main Market. Accordingly, Shri Jitin Kumar Sharma dropped Shri Sandeep Kumar at the Narela Market quite late in the evening on 08.10.2014.
Shri Sandeep Kumar, IO, on enquiring by Shri Rohit Sharma, Zonal Director, has confessed that he visited Janta Market, Dallupura, Delhi on 08.10.2014 to enquire about M/s Alpine Medicare, 7, Janta Market in connection with the enquiry No.VII/03/38/2014/Int/473 dated 25.9.2014 regarding seizure of 300 Alprazolam Pills in a postal parcel No.ED 403068507 JN.
Article-II That the said Shri Sandeep Kumar, IO had discovered certain suspicious documents and a suspicious parcel at the shop of Shri Jitin Kumar Sharma. He did not seek his superiors about this for further instructions. He did not seek the assistance of a 8 OA No. 1104/2018 Item No.52 team along Drug Detection Kit to examine the constituents of the parcel and also not taken the custody of the suspected parcel lying in the shop. Rather than taking such required measures to seek a team from the office and take over the custody of the parcel, Shri Sandeep Kumar decided to leave the parcel at the shop itself and returned to NCB office with Shri Jitin Kumar Sharma.
Shri Sandeep Kumar, IO did not bother to inform any of his superior officers, the two superintendents and Zonal Director of NCB Delhi Zonal Unit about the activities carried out by him on 08.10.2014 because of his malafide intention to extort money from Shri Jitin Kumar Sharma by threatening to entrap him in the case."
9. The allegation in Article-I is very serious in nature. If the Article is proved, it must naturally leads to imposition of very serious punishment.
10. One Mr. Naresh Kumar, Supdt. of NCB, was appointed as the IO. It is not known whether he lacked experience or he did it deliberately. He commenced the proceedings on 03.06.2015 by examining the applicant, by himself. It was the duty of the departmental representative or the presenting officer to examine the witnesses of the department, first. It is the prerogative of the charged officer whether or not to depose as a witness or to examine the other witnesses. Many a time, if the evidence adduced by the department is weak or does not establish anything serious, the delinquent employee may be 9 OA No. 1104/2018 Item No.52 well advised not to depose himself as a witness, much less to examine other witnesses. Either way, it is the function of the departmental representative and the delinquent officer directly or through representative to examine or cross-examine the witnesses.
11. The occasion for an IO to put questions to witnesses would arise only on very limited aspects, such as when any gaps or lacunae as regards narration etc. are left. It is just ununderstandable as to how the disciplinary proceedings can start or commence, with the IO himself, examining the delinquent official. What is more strange is the purport of the questions, which the IO has put to the applicant.
"जांच के दौरान जांच अ धकार ने संद प कुमार, आसुचना अ धकार से पुछा क या आपने े ीय नदे शक द ल के सम 31.10.2014 को द गई टे टमट म वीकर कया है क आपने द ल े ीय इकाई के अधी क कानून तथा अध क शास नक से इस वषय म जांच करने के लए कोई अनुम त नह ं ल थी और ना ह अपने व र ठ अ धका रय को 08.10.2014 तथा 09.10.2014 क सुबह तक इस जाने के वषय म कोई जानकार द थी जबक अपने व र ठ अ धका रय को जांच पर जाने से पहले सू चत करना एक है मानक या है ।
या आप इससे सहमत है । याद हा तो या को वायलेट करने का या कोई वशेष करन था। तो इसके जवाब म ी संद प आसूचना अ धकार ने कहा क इ का जवाब म अं ेजी म दे ना चाहूंगा।
I visited the shop in connection with an overseas inquiry marked to me by superior officer which is equal to a written authorization to conduct inquiry. I am duty authorized under section 42 of NDPS Act even otherwise heing an Intelligence 10 OA No. 1104/2018 Item No.52 Oficer. While making the inquiry the superioroffcers did not briefd me as to what i should do. When should i go, what will be the thrust and limits to my investigation etc. There is no set guidelines of standing orders or SoP to deal with inquries received from outside which will set procedures boundaries for a given investigation...... The allegation of jitin was made because he was apparently involved in the narcotics trade and was the subject matter of investigation. The evidence of a stamped empty envelope with the suspect details noticed by me him nervous. I told him that this shows he was involved and full force of law will be agianst him, otherwise he has to disclose the details of real persons involved . (The explanation to allegation of threat.) फर ी जांच अ धकार ने पुछा क या आपने िज तन शमा से 5.50 लाख पये क मांग या उसके लए कोई बात क थी | ी संद प आसुचना अ धकार ने बताया क It has been specifically mentioned in para-4 of Zonal Director, Delhi Zone letter dated 21.05.2015 that separate investigation conducted by Shri Sanjay Mehta relates to only violation of NDPS Act and do not relates to the payments of bribe of Rs.5.50 lakh. If no investigation then how could it be said that bribe was taken and this charge was made, फर जांच अ धकार ने पुछा क या आप इस वषय म कुछ कहना चाहते ह | तो संद प कुमार आसुचना अ धकार ने उ र दया I have acted like a true, dedicated, honest intelligent officer in a given field situation, approached may duty with initiative, drive and committed purpose to get leads and clue regarding drug smuggling. My actions cannot be called corrupt or indiscipline or wilful dereliction of duty as it is only in the due and efficient discharge of my duties that Jitin could be identified despite the use of false and fictitious address. The charges in Annexure 1 have been made without any basis with no facts and evidence to support the payment/acceptance of bribe. It is a well known fact that law enforcement officers always face such baseless and malicious allegations from criminals to discourage officers to do their duty without fear. No evidence has been provided.11 OA No. 1104/2018
Item No.52 No source who allegedly paid money were identified or examined. No information was provided as to what happened to Jitin and the case in subsequent investigations after I handed over vital documents and clues to ZD, DZU No investigation Report was provided to me showing the role/status of Jitin who should have provided many useful clues regarding postal drug trafficking. In view of the above the charges made against me are baseless, without any substance and should be dropped."
This much can be said that for all practical purposes, the IO did, what the presenting officer was supposed to do, that too out of turn.
12. Still surprising fact is that there is nothing on record to show that the departmental representative has examined the witnesses.
13. The recording of depositions of the departmental witnesses commenced on 05.06.2015. There again, IO took the lead and played the role of Departmental representative. It was he who went on questioning the witnesses and leaving some scope for the applicant to cross-examine some of them.
14. Ultimately, the IO submitted his report holding that charge No.I is not proved. Here again, he made some equivocal observations at different places. The fact remains that his finding on Article No.1 is that it is not proved. He held that the charge No.II is proved. The result is that the grave charge levelled against the applicant was held not proved. 12 OA No. 1104/2018 Item No.52
15. Instances are not lacking, where the DA differs with the findings recorded by the IO. In such cases, the CCA Rules provide for the issuance of a disagreement note by the DA before any final decision is taken. What happened in the instant case is that the report of the IO was furnished to the applicant and his explanation was sought. This accords with the procedure under the rules. If the disagreement note is to be issued that must precede the explanation which the delinquent officer is to submit. Once the delinquent official is required to furnish his explanation to the repot of IO and he does it, the next step is to take a final decision whether or not to impose the penalty, and if yes, to indicate the detail thereof. There is no question of a disagreement note being issued, once the delinquent official is furnished with the copy of the report requiring him to submit his explanation, and he submits one. The DA has committed a serious irregularity in issuing disagreement note after the applicant submitted his explanation to the report of the I.O.
16. Assuming that no irregularity has taken place in this process, the fact remains that even while issuing the disagreement note, the DA did not mention any fact pertaining to the alleged demand or acceptance of bribe. To be precise, in 13 OA No. 1104/2018 Item No.52 his disagreement note, the DA has indicated the following points:-
"(a) It has been established that Shri Sandeep Kumar, IO met Shri Jitin Kumar Sharma in the forenoon on 08.10.2014.
(b) It has been concluded that charged officer did not threaten to shoot him, but he told Shri Jitin Kumar Sharma that if the DCP Sir would be there, he would have shot you dead so far. Thus, the allegation of threatening cannot be ruled out.
(c) It has been proved in the inquiry that Shri Jitin Kumar Sharma was made to follow charged officer to Delhi Zonal Unit Office, NCB, R.K. Puram, New Delhi by the charged official and made to wait near the ITBP Special Frontier parking adjacent to NCB office.
(d) It is an established fact that charged officer was with the complainant in his care for long hours without any authority and convincing reasons.
Therefore, circumstantial evidence sufficiently indicates that there is no ground to disbelieve the complaint given by Shri Jitin Kumar Sharma.
(e) It has been confirmed that charged officer and Shri Jitin Kumar Sharma have visited from Dallupural to Bikaji Cama Place, New Delhi to ITPB Special Frontier parking, R.K. Puram to Jahangirpuri Metro Station and finally to Narela where Shri Jitin Kumar Sharma dropped charged officer at night. This has been proved beyond doubt that charged officer was with Shri Jitin Kumar Sharma for about 09 to 10 hours.
(f) It has been proved that the charged officer did not serve any notice to Jitin Kumar Sharma u/s 67 of NDPS Act, as no copy of signature of the complainant on receipted copy.
(g) It has been proved that in noting dated 10.10.2014 in the case file, he had mentioned that he saw some 14 OA No. 1104/2018 Item No.52 parcel kept in the shop having stamp of M/s Alpine Medicare unit on them, but later changed his version that he saw 08-10 envelopes of M/s Alpine Medicare. Shri Jitin Kumar Sharma stated that when Shri Sandeep Kumar, IO visited his shop on 08.10.2014, around 60-70 parcels and envelopes were lying in the shop, out of which, 08-10 envelopes were of M/s Alpine Medicare. Shri Jitin Kumar Sharma also stated that envelopes did not belong to him, but for courier service.
(h) It has been established that Shri Sandeep Kumar, IO has discovered parcel of M/s Alpine Medicare, i.e., the suspected company under surveillance in the shop of Shri Jitin Kumar Sharma, but he neither informed his seniors about this nor seized the suspected parcel."
17. Nowhere we find the allegation pertaining to demand or acceptance of the bribe. The record does not disclose any specific witness speaking about that, much less the DA has referred to such an evidence. Curiously enough, in the impugned order the DA, held as under:-
"10. AND WHEREAS, the Disciplinary Authority after carefully considering all relevant documents and facts and circumstances of the case in totality has come to the conclusion that the said Shri Sandeep Kumar, Intelligence Officer deserves the penalty of dismissal from service for good and sufficient reasons i.e., for demanding and accepting Rs.5.5 lakh from Shri Jitin Kumar Sharma, S/o Shri Suresh Kumar Sharma, an agent of speed post collection centre, Shop No.1, 1st Floor, C Santram Market, Dallupura, Delhi-96 on 08.10.2014 as a reprieve for not proceeding any case against him, thus exhibiting absolute dishonesty towards duty and misuse of the official position."15 OA No. 1104/2018
Item No.52 Here again, it is a text book case as to how the DA should not hold the disciplinary proceedings. Unfortunately the AA also did not bestow any attention to any of the aspects mentioned above, except repeating the order of punishment and elaborating them.
18. The punishment of dismissal could have been imposed in this case only when there is a finding, recorded in accordance with law, about the acceptance of bribe. Another important aspect is that the matters pertaining to demand and acceptance of bribe are required to be investigated by the CBI or any other law enforcing agency. Not even a complaint was submitted against the applicant under the Prevention of Corruption Act. It is rather unfortunate that the then higher official of the NCB permitted an indirect drug paddler to have access to him and he did not even cross verify from the applicant. He believed more, the drug paddler than the applicant and imposed the punishment of dismissal. The result is that the persons involved in drug paddling had the last laugh and an officer who was in the attempt to act against the violators was made a sacrificial goat. Normally, we come across such instances in the films.
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19. On the second charge, the applicant was able to elicit from the Superintendent and other witnesses that in the matters of this nature, once the IO is entrusted with the case, he does not have to keep his superiors informed about the movements. Obviously, the nature of activities is such.
20. We are convinced that the imposition of punishment upon the applicant is patently illegal and the impugned order of dismissal deserves to be set aside. We would have granted the consequential reliefs also, but for the fact that the allegation that the applicant did not follow the prescribed procedure, was held proved. That needs to be taken into account by the DA so that the issue can be examined whether any punishment of minor nature needs to be imposed. If on the other hand, the proceedings are dropped as a whole, the nature of relief as regards the period during which the applicant was out of service, can be considered.
21. We, therefore, allow the OA and set aside the order dated 20.06.2016 through which the applicant was dismissed from service as well as the order of Appellate Authority dated 21.02.2018. The applicant shall be reinstated into the service forthwith. For the present, we deny him the back wages, but grant him the benefit of continuity of service and other 17 OA No. 1104/2018 Item No.52 consequential benefits. We leave it open to the DA to examine the case purely from the point of view on the finding on Article II and to pass an order. If it is decided that the punishment is to be imposed, it shall be minor in nature. The exercise in this behalf shall be completed within a period of two months. If the applicant is exonerated completely, the DA also shall indicate the nature of benefits which the applicant shall be extended for the period he was out of service. There shall be no order as to costs.
(Mohd. Jamshed) (Justice L. Narasimha Reddy)
Member (A) Chairman
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