Central Administrative Tribunal - Delhi
Shri Vijay Tyagi vs Union Of India Through on 31 January, 2011
Central Administrative Tribunal
Principal Bench
O.A.No.1081/2010
New Delhi, this the 31st day of January, 2011
Honble Shri Shailendra Pandey, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Shri Vijay Tyagi
Deployment
Ist Battalion DAP
New Police Lines. Applicant
(By Advocate: Shri Arvind Singh)
Versus
Union of India through
Secretary Home
Ministry of Home
North Block
New Delhi.
2. Commissioner of Police
PHQ, I.P.Estate
New Delhi.
Joint Commissioner of Police
Southern Range & Headquarters,
IP Estate
New Delhi.
Addl. Dy. Commissioner of Police
South District
New Delhi. Respondents
(By Advocate: Ms. Renu George)
O R D E R
By Shailendra Pandey, Member (A):
In this OA, the applicant has challenged the Order of the disciplinary authority dated 06.06.2006, imposing on him the punishment of forfeiture of one year of approved service temporarily for a period of one year entailing reduction in his pay from Rs.7250/- p.m. to Rs.7075/- p.m., and also the Order of the appellate authority dated 22.01.2010, rejecting his appeal on the ground of limitation.
2. The brief facts of the case as set out in the OA are that, a joint departmental inquiry was initiated against the applicant (Sub Inspector Vijay Tyagi)) along with ASI Hasrat Ali Khan, HC Ram Kumar, Constable Shambhu Dayal and Constable Subhash Chand vide order dated 2.6.2006 on the following allegations that on 12.09.2004 while posted at P.S.New Friends Colony they (the ASI, HC and two Constables) had visited the shop of Mohd. Tasleem who was running a stove repairing shop at his jhuggi No.37. On reaching there they started misbehaving and beating up Mohd. Tasleem Mohd. Tasleem was hit on his head with a stove and a lathi. Mrs. Khatija Beghum wife of Mohd. Tasleem was also pushed around without any provocation. As a result both Mohd. Taseleem and Khatija Beghum sustained injuries and they were moved to AIIMS hospital by their neighbours assembled at the spot. It is further alleged that ASI Hasrat Ali Khan No.2668/D made an entry No.47-B dated 12/9/2004 in the daily diary of P.S.New Friends Colony contending therein that Mohd. Tasleem is a bad character of U.P. and having many cases against him in U.P. and there were 4/5 boys of ill-repute at his shop at the time of said incident. This DD entry panned by the ASI is totally an eye-wash, made in order to conceal his misdeeds. Neither ASI Hasrat Ali Khan could produce any record or evidence of the criminal involvement of Mohd. Tasleem nor he could disclose the names or whereabouts of the boys said to be present at the shop at the time of Vigilance enquiry. The ASI also failed to take Mohd. Tasleem and Khatija Beghum to hospital which he was duty bound to do so.
SI Vijay Tyagi, it was alleged, was also posted at P.S.New Friends Colony and was entrusted with DD No.17-A dated 12/9/2004 regarding a quarrel at 37, Taimur Nagar and DD No.24-A dated 12/9/2004 regarding medical of Mohd. Tasleem and Khatija Beghum for further necessary action. But SI Vijay Tyagi instead of taking action tried to hush up the matter and did not take any action at all. He also, failed to mention anything about DD No.24-A dated 12/9/2004 in the Daily Dairy of P.S.NFC. A vigilance enquiry was conducted on the complaint of Mohd. Tasleem during which the allegations made by the complainant were found to be true.
3. The inquiry officer completed the DE and submitted his findings concluding therein that the charge leveled against the applicant (SI Vijay Tyagi) and ASI Hasrat Ali has been proved beyond doubt but the charge against other persons, namely, HC Ram Kumar, Const. Shambhu Dayal and Constable Subhash Chand could not be substantiated.
4. The disciplinary authority in its order dated 06-06-2006 (Page 21), agreeing with the findings of the inquiry officer, had held as under:
The charge against ASI Hasrat Ali No.2668/D and SI Vijay Tyagi No.D/3412 has been proved beyond doubt during D.E. proceedings. Therefore, Sanjay Kumar, Addl. Deputy Commissioner of Police, South Distt., New Delhi hereby order that one year approved service of A.S.I. Hasrat Ali No.2668/D and Sub-Inspector Vijay Tyagi No.D/3412 is forfeited temporarily for a period of one year entailing reduction in their pay from Rs.5100/- p.m. to Rs.5000/- p.m. and Rs.7250/- p.m. to Rs.7075/- p.m. respectively. An appeal against the above order could have been preferred within 30 days of receipt of the order but was made by the applicant, after the lapse of more than three years, on 12.11.2009. The appellate authority vide its order dated 22.01.2010 rejected this appeal as being time barred on the ground that the applicant had submitted the appeal after a gap of over three years and the there was no legitimate justification to condone the delay. Hence, the present OA has been filed seeking quashing of the aforesaid orders of the disciplinary authority and the appellate authority on the following main grounds:
That the DE had been initiated against him based on allegations arising out of the incident of 12.09.2004 and that after the order of this Tribunal dated 07.02.2008, passed in OA No.1489/2007 (ASI Hasrat Ali v. Govt. of NCT of Delhi & Others), and the orders of the Department dated 09.10.2009, it stands conclusively established that the whole basis of the departmental inquiry was wrong and the whole story on which the DE was initiated thus stands nullified, and the persons who made the complaint have been proved as having criminal antecedents and it stands accepted that the complainant made a false complaint to implicate officers of the Delhi Police in order to pressurize and demoralize them.
that the applicant had not preferred an appeal after passing of the order dated 06.06.2006 by the disciplinary authority because the material now brought in (by ASI Hasrat Ali) was not available to the applicant then to substantiate that he had been falsely implicated.
That he filed the appeal dated 12.11.2009 as soon as he came to know of the order dated 09.10.2009 passed in the case of the other Co-delinquent, ASI Hasrat Ali and that the delay should, therefore, be condoned in the interest of justice; and that he should also be given the benefit of the factual position that is now known (as a result of which the case against his co-accused ASI Hasrat Ali has been filed by the department).
5. The respondents have controverted the pleas taken in the OA and have stated that it is true that a joint departmental inquiry was held against the applicant along with ASI Hasrat Ali and others, in which the charges against the applicant and ASI Hasrat Ali only were held as proved, the charges against the others were held as not proved, and appropriate punishments were imposed against the applicant and ASI Hasrat Ali. It is also true that ASI Hasrat Ali filed an OA No.1489/2007 before this Tribunal which was disposed of on 07.02.2008, holding that the allegation pertaining to beating of Mohd. Tasleem and his wife stands not proved, by quashing the orders of the disciplinary and the appellate authorities and remitting the matter to the respondents on the aspect of the second allegation of making of a false entry No.47-B dated 12.9.2004 in the daily diary of PS New Friends Colony, New Delhi. Thereafter, on re-consideration, the DE against ASI Hasrat Ali was also closed. However, in so far as the applicant is concerned, it is established that he had taken no action on the two DDs entrusted to him and in fact had tried to hush up the matter. Also the order of the disciplinary authority was issued on 06.06.2006 clearly stating therein that the appeal against the order can be filed within 30 days of the date of receipt of the order as per Rule 24(3) of the Delhi Police (Punishment & Appeal) Rules, 1980 but the applicant did not file an appeal within the stipulated period showing that he had no defence, and the appeal filed on 12.11.2009 has been correctly dismissed as being time barred. Therefore, they pray that the OA be dismissed.
6. We have heard the learned counsel for both the parties and have been through the pleadings on record.
7. The undisputed facts in this case are that a joint departmental inquiry was initiated against the applicant and Co-delinquent ASI Hasrat Ali and others arising from the incident of 12.09.2004 in which it was alleged that the patrolling party of NFC, PS visited the shop of Mohd. Tasleem and on reaching there started beating him up and his wife was also pushed, resulting in injuries, and were moved to the AIIMS by their neighbours. Based on the inquiry findings punishments were imposed on both ASI Hasrat Ali and the applicant. Although, ASI Hasrat Ali had filed an appeal which was also dismissed, he approached this Tribunal in OA No.1489/2007, which was disposed of on 07.02.2008 in terms of the following order:
14. We would mention that the applicant is working in Police Force and as per very nature of his duties has to keep track on the activities of several anti-social elements with the help of informants in order to see that the law and order is well under control. He has also to make an opinion regarding a person whose activities may be suspected and who may so far not have been actually involved in any case. We would also observe that the police has to act sometimes on suspicion and on the basis of information received by it which may be true sometimes and at others not. The applicant has now traced out one case against Mohd. Tasleem which pertains to the year 2001. Mohd. Tasleem. as per the said case was involved in a case of theft and dacoity. This aspect of the case was not before the disciplinary/appellate authorities and, therefore, no opinion could be expressed by them.
15. In totality of the facts and circumstances of the case, whereas we hold that the first allegation in the charge against the applicant pertaining to beating of Mohd. Tasleem and his wife stands not proved, the matter would need reconsideration insofar as the second allegation against the applicant with regard to making of a false entry No.47-B dated 12.9.2004 in the daily diary of PS New Friends Colony New Delhi is concerned. We order accordingly. No order as to costs. Thereafter, on 09.10.2009, the Additional Deputy Commissioner of Police (Respondent No.4) reviewed the earlier order against ASI Hasrat Ali and passed the following order:
I have carefully gone through the entire case and evidence available on file in the light of Honble CATs judgement dated 7.02.2008 in OA No.1459/07 and also heard the ASI in O.R. on 12.12.08 he requested one week time to prove his innocence. Hence, time was granted and directed to appear next Friday with supporting documents. Now I have again heard him in O.R. on 19.12.2008 in detail. During O.R. he produced the copy of FIR No.30/2001 u/s 395/412 IPC p>S. Iglash, Distt. Aligarh (U.P.) and FIR No.28/2001 u/s 147/148/307 IPC P.S. Gabhana Distt. Aligarh which were registered against accused Mohd. Tasleem. The ASI also produced the details of other FIRs registered against accused Mohd. Tasleem. On perusal of the details of FIRs it revealed that the following cases have also been found registered against the accused:
FIR No.60/2006 u/s 341/323/34 IPC P.S. NFC.
FIR No.634/2006 u/s 25/54/59 Arms Act PS S.N.Puri FIR No.63/2006 u/s 307/34 IPC PS NFC FIR No.515/2006 u/s 324/34 IPC PS NFC FIR No.628/2007 u/s 307/34 IPC P.S. NFC Further the ASI pleads that he is not fault at all in the instant case as has done his govt. duty as per the law. Further he explained that in the past he done good and hard work in apprehending one burglar cum robber alongwith a country made pistol, who was running after committing robbery in the house of Rehman and obtained regard of rs.500/- from then CP Delhi vide no.2014/94 and also granted reward Rs.2000/- by Addl. CP/SR in c/w extra good and hard work case FIR No.97/94 under section 457/458/411/307/34 IPC PS SN vide OB no.2274/94, he further says that had been granted out of turn promote the rank of ASI vide PHQs order no.15098-15197/CB-IV dated 19.3.2008.
I am of the view that the action taken by the ASI was bonafide and as such second allegation against the ASI with regard to making of a false entry no.47-B dated 12.09.2004 is also not proved. Hence, the DE initiated against the ASI is filed.
8. Although the charge framed against the applicant SI Vijay Tyagi was different, it pertained essentially and arose out of the same incident on 12.09.2004, in which the case against ASI Hasrat Ali stands filed and in which Respondent No.4 has held that the action taken by the ASI was bonafide.
9. The applicant, SI Vijay Tyagi, in his appeal dated 12.11.2009 has stated that he did not prefer any appeal after the order of the disciplinary authority dated 06.06.2006 within the stipulated period of 30 days because the material brought in now (by ASI Hasrat Ali) was not available to the applicant and as now the department as well as the Tribunal have substantially concluded regarding the incident as well as the antecedents of the persons involved in falsely implicating the police personnel (vide order of the respondents dated 9.10.2009), he has requested that the punishment awarded to him may be set aside, as he was falsely implicated by the antisocial elements.
10. In the facts and circumstances of the case, we are of the considered view, that the appellate authority should consider the appeal of the applicant on merits by waiving limitation. Accordingly, the order of the appellate authority passed on 22.01.2010 is quashed and the case is remanded back to the appellate authority with a direction to dispose of the appeal of the applicant on merits, including the quantum of punishment, in accordance with rules and pass appropriate orders within a period of two months from the date of receipt of a copy of this order.
11. The OA is disposed of in terms of the above directions. No costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /nsnrsp/