Central Administrative Tribunal - Delhi
Ex. Ct. Kamruddin vs Govt. Of Nct Delhi on 22 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2237/2010 New Delhi this the 22nd day of February, 2011 Honble Mr. Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Ex. Ct. Kamruddin S/o Sh. Saddique, R/o H.No. 280 Gali No. 19A, Vijay Park, Mauj Pur, Delhi-53. -Applicant (By Advocate: Shri U. Srivastava) Versus 1. Govt. of NCT Delhi, Through The Chief Secretary, Govt. of NCT, Delhi 5-Shyam Nath Marg, New Delhi. 2. The Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 3. The Jt. Commissioner of Police, Southern Range, Delhi Police MSO Building, I.P. Estate, New Delhi. 4. The Additional Dy. Commissioner of Police South-East District, New Delhi. -Respondents (By Advocate: Mrs. P.K.Gupta) O R D E R
By Shailendra Pandey, Member (A) The applicant, Ex-Constable in Delhi Police, has filed this OA challenging the order dated 12.04.2010 by which he was dismissed from service and the order dated 29.06.2010 of the appellate authority confirming the penalty of dismissal issued by the disciplinary authority.
2. The brief facts of the case as set out in the OA are that a regular DE against the applicant was conducted under the provisions of Delhi Police (Punishment &Appeal) Rules, 1980 on the allegations that while he was posted at PS Kamla Market, he had left the Police Station and reached at IGI Airport along with two persons namely Shri Nazir and Irshad Ahmed in a taxi on the night intervening on 13/14.07.1997. They entered the Departure Transit Hall with the help of Constable Mange Ram after taking the delivery of two bundles containing foreign currency worth Rs.28,04,797/- from Shri Nazir for delivery to Irshad Ahmed, who was to travel to Dubai by Flight No. EK-702. It is stated that the applicant had confessed that he had put two bundles containing the foreign currency inside the handbag of Irshad Ahmed in the Departure Transit Hall. This bag was subsequently seized by the custom officers from Irshad Ahmed. Irshad Ahmed had also admitted that the seized currency was handed over to him by the applicant inside the Departure Transit Hall after he had cleared immigration/customs. The applicant was arrested on 18.07.1997 u/s 104 of the customs Act, 1962 and produced before Patiala House Court, which remained him to judicial custody till 02.08.1997.
3. For the above misconduct, he was placed under suspension vide order dated 06.08.1997. Later, he was reinstated in service w.e.f. 19.07.2000 without prejudice to the departmental enquiry and without deciding the suspension period. After concluding the departmental enquiry, the Enquiry Officer submitted his findings, therein, that the charges against the applicant stood proved. The Disciplinary Authority agreed with the findings of the enquiry officer and served a copy of the same to the applicant on 24.07.1999 and asked him to furnish his representation, if any, against the findings of the enquiry officer as to why his suspension period should not be decided as period not spent on duty. On 05.08.1999, the applicant submitted his representation to the Disciplinary Authority and filed OA No.1697/99 Qamruddin Vs. DCP, Central District, decided on 12.08.1999 in this Tribunal seeking that the disciplinary proceedings should be kept in abeyance till the final verdict of the criminal case pending against him. As the decision, in the departmental proceedings, had already been taken to keep the departmental proceedings in abeyance till the final verdict of the Court in the case registered against him, the aforesaid OA was dismissed. On 16.02.2010, the applicant came to be acquitted in the criminal case registered against him vide judgment dated 10.02.2010 of the Additional Chief Metropolitan Magistrate, New Delhi. On receipt of the judgment, the respondents vide order dated 26.03.2010 re-opened the departmental enquiry from the stage where the same had been kept in abeyance. The applicant was also called to appear before the Disciplinary Authority on 31.03.2010, but he did not do so and he was given another opportunity for personal appearance in OR on 07.04.2010 but again he did not report. He was given yet another opportunity and was heard in OR on 12.04.2010 where he pleaded for leniency. The Disciplinary Authority, after considering the representation of the applicant and the entire record of the D.E., has imposed the said punishment of dismissal from service vide order dated 12.04.2010 and a suspension period from 06.08..1997 to 18.07.2000 was also decided to be period not spent on duty for all purposes. The appeal filed by the applicant against this order dated 26.04.2010 was rejected by the Appellate Authority vide its order dated 28.06.2010. Thereafter the present OA has been filed on the following main grounds:-
i) That the Disciplinary Authority has erred in stating that the applicant in the statement given to Custom Officers on 17.07.1997 himself admitted that he accompanied Irshad Ahmed on the said night and handed over the packet of foreign currency inside the Departure Transit Hall. It is submitted that the Custom Officers had illegally and forcefully recorded the statement and that this was subsequently retracted and that the Court of the Metropolitan Magistrate in its judgment 10.02.2010 had observed that the retraction of the statement by the accused was material information and that this had not been considered or discussed by the Disciplinary Authority in the punishment order, and accordingly the punishment imposed is not sustainable in law.
ii) That the Disciplinary Authority has not taken into account the judgment of the Court in the criminal case and has wrongly taken a view that there is no connection or relation of the criminal case with the departmental enquiry. This would also be evident from the fact that the Disciplinary Authority vide its order dated 06.02.98 and 22.09.99 had kept the DE proceedings in abeyance, which itself show that there is direct link between the departmental enquiry and the criminal case.
iii) That the Enquiry Officer had submitted his findings in the DE holding the charges as proved much before the decision of the Trial Court and other subsequent developments after submission of findings have not been considered either by the Enquiry Officer or the Disciplinary Authority and the Appellate Authority.
iv) That it is wrongly alleged that the applicant had entered the Departure Transit Hall and put the foreign currency inside the hand bag of Irshad Ahmed. As per the security procedure of Airport Authority of India, no one can enter the premises of the Airport and only passengers after security check and officers & persons authorised to perform duty can stay in the Departure Transit Hall. The entire story that the applicant had entered the Departure Transit Hall and handed over foreign currency is false and concocted and that there is no evidence on record of IGI Airport that the applicant had entered in the premises of IGI Airport at that night
v) That the punishment inflicted on him is harsh and excessive and not commensurate with the gravity of the misconduct. In this connection, the applicant has referred to a judgment of the High Court of Gujrat in the case of Bhim Singh Vs. District Superintendent of Police 1982 (2) SLR 929 in which it has been held that penalties are imposed with a view to reformation and curing defects. The order of dismissal and appellate order are also violative of the principles of natural justice and that departmental rules have also been violated as the enquiry officer has no authority to cross examine witnesses but did so. That the orders of the Disciplinary Authority and the Appellate Authority are non-speaking and have not taken into account the contentions of the applicant.
4. The respondents have opposed the OA and have stated that there is no direct link between the departmental enquiry and the criminal case. After perusal of the judgment of the Court of Additional Chief Metropolitan Magistrate, Delhi, the departmental enquiry against the applicant was restarted, and the judgement in question is not part of the DE. After following due procedure and giving the applicant several opportunities to present his case, the Inquiry Officer proved the charge on the basis of the testimony of witnesses as well as other material evidence on record. The disciplinary & appellate authorities also arrived at their conclusions based on the evidence available on record, and after considering the reply of the applicant. They, therefore, state that there being no infirmity in the orders issued, the OA may be dismissed.
5. We have considered the rival contentions of both sides and have been through the pleadings on record.
6. Over the years the Honble Supreme Court has carefully defined the scope of judicial review in disciplinary matters, holding that, in these matters, the Tribunals jurisdiction is akin to that of the High Court under Article 226. The Tribunal has no jurisdiction to go into the correctness or the truth of the charges. It also cannot take over the functions of the Disciplinary Authority. It cannot sit in appeal over the findings of the Disciplinary Authority and assume the role of the Appellate Authority. It cannot interfere with the findings arrived at in the disciplinary proceedings except in a case of mala fides or perversity, i.e. where there is no evidence to support a finding or where a finding is such that no one acting reasonably and with objectivity could have arrived at, or where a reasonable opportunity has not been given to the delinquent to defend himself or it is a case where there has been non-application of mind on the part of the Inquiring Authority or if the charges are vague or if the punishment imposed is shocking to the conscience of the Court [See: Union of India & Anr. v. K.G. Soni, 2006 SCCL.COM 571; State of U.P. and Ors. v. Raj Kishore Yadav & Anr., 2006 (5) SCC 673; V. Ramana v. A.P. SRTC & Ors., 2005 (7) SCC 338; B.C. Chaturvedi v. Union of India & Ors., AIR 1996 (SC) 484].
The Honble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., 1999 (2) SC 456 also observed as under:
13. .proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
7. We address ourselves to adjudication of the present case against this backdrop.
8. The admitted facts of the case are that a regular DE against the applicant was initiated vide order dated 26.09.1997 on the allegations that while posted at PS Kamla Market, he left the Police Station and reached IGI Airport along with two persons namely Nazir and Irshad Ahmed in a taxi on the night intervening 13/14.07.1997. They entered the Departure Transit Hall with the help of Const. Mange Ram, Wireless Operator after taking the delivery of two bundles wrapped in news paper containing foreign currency worth Rs.28,04,797/- from Nazir to deliver the same to Irshad Ahmed who was to travel to Dubai. The applicant had confessed (though he later retracted the same) that he had put two bundles containing foreign currency inside the handbag of Shri Irshad Ahmed in the Departure Transit Hall which was subsequently seized by the custom officers from Irshad Ahmed. Sh. Irshad Ahmed had also admitted that seized currency was handed over to him by the applicant inside the Departure Transit Hall after the clearance from immigration/customs were got done by him. The applicant was arrested on 18.07.1997 us/ 104 of the Customs Act, 1962 and produced before the ACMM, Patiala House Court who remained him to judicial custody till 02.08.1997. The departmental proceedings were kept in abeyance till the final verdict of the Court in the case registered against him under section 104 of the Customs Act, 1962 vide order dated 06.02.1998. The applicant was discharged in the criminal proceedings by the Court of Additional Chief Metropolitan Magistrate-01, New Delhi vide its order dated 10.02.2010. After receipt of the Judgement, the departmental proceedings against the applicant was reopened vide order dated 26.03.2010 from the stage where the same was kept in abeyance. He was provided opportunity for personal appearance and called to appear before the disciplinary authority on 31.03.2010 but did not do so. In the interest of equity, fair play and justice, he was again called to appear in OR on 07.04.2010 but did not again do so. Yet, another opportunity was provided and he was heard in OR on 12.04.2010.
The main ground on which the applicant has challenged the orders of the disciplinary and the appellate authorities are that the punishment imposed on him is based primarily on his confession statement which he had subsequently retracted and accordingly the punishment is not sustainable. It is also submitted that the authorities concerned have not taken into account the Judgement of the criminal court in which he was acquitted/discharged, and that the inquiry officers findings were given much before the decision of the Court in the criminal case.
As has been pointed out in para 6 above, the proceedings in a criminal case and the departmental proceedings operate in distinct and differential jurisdictional areas. The departmental proceedings are meant not only to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad and undesirable elements, and this is particularly necessary in a Department like the Police. In departmental proceedings, the standard of proof is based on preponderance of the probabilities whereas in a criminal case the charge has to be proved beyond reasonable doubt. Therefore, merely because a person stands acquitted in a criminal case would not automatically entitle him to be exonerated in the departmental proceedings. The contention of the applicant that the punishment imposed is unsustainable in view of his having been discharged in the criminal case is, therefore, not accepted. It is seen that the departmental proceedings against the applicant had been restarted after obtaining a certified copy of the Judgement of the Court, and that the disciplinary authority and the appellate authority had imposed the said punishment after that. It cannot, therefore, be said that Judgement in the criminal case has not been taken into account by them. In this regard, it is also noticed that the applicant was discharged in the criminal case primarily on the ground that there was no valid sanction to prosecute the accused as the sanction order passed had not taken into account the applicants retraction of his statement under Section 108 of the Customs Act. The acquittal by the Court cannot, therefore, be considered to be one on merits and the respondents, therefore, could have decided to continue to the departmental proceedings against him.
9. It is also noticed that the findings of the inquiry officer are based on the evidence of a large number of witnesses brought forward in the inquiry as well as other evidence on record and not only on the confessional statement (written in his own handwriting) of the applicant (which was later retracted). In this connection the following observations are noteworthy:
During the course of enquiry the statements of PWs. Sh. R.K.Sharma, A.K.Goel, Satnam Pal, Customs Officials and Ram Pal, S.I.Sat Pal or P.S.Kamla Market were recorded by Insp. B.M.Sharma, Inp. Vig./C. I recorded the statement of Sh. Rajiv Bhatia, D.C.Customs and statements of DWs. Irshad Ahd., Shah Alam, Const. Rajinder No.695/C, and Const. Shiv Kumar No.982/C. The statement of all the P.Ws have revealed that Consta. Qamaruddin No.1970/C.P.Kamla Market, on the night of 13/14.7.1997 had gone to I.G.I. Airport along with Irshad Ahd. In a taxi, with the help of H.C.Sube Ram and Const. Mange Ram posted at I.G.I. Air Port went inside transit Hall (Departure) I.G.I.Air Port and handed over two packets of foreign currency worth Rs.28,04.797/- to Irshad Ahad., who was going to Dubai by E.K.-702 flight. It has also been proved from the copies of statements of Irshad Ahd. And Const. Qamaruddin No.1930/C, himself in their own hand writing. It has also been proved from the copies of statement of H.C. Sube Ram and Const. Mange Ram posted at I.G.I.Air Port.
The P.W. Ishad Ahmed, who was arrested by Custom on the night of 13/14.7.99 with Foreign currency stated that Qamaruddin who accompanied him to the Air Port and handed over foreign currency was not Constable Qamaruddin, but in the statement given to Customs Officer on 17.07.97 Const. Qamaruddin himself admitted that he accompanied to Irshad Ahmed to I.G.I. Air Port on the night of 13/14/7/97 and handed over the packet of foreign currency to Irshad Ahmed inside departure transit Hall. Hence the charge leveled against Qamaruddin No.1970/C has been proved.
10. A perusal of the order of the disciplinary authority also shows that the contention of the applicant that the order of the disciplinary authority is a non-speaking, non-reasoned and cryptic order is not correct. The disciplinary authority has given reasons for arriving at his conclusion and has also given reasons for imposing the punishment of dismissal from service, which are as under:
I have carefully gone through the entire record of the DE and written representation of the delinquent. His first plea is that he is not said Qamaruddin and that Qamaruddin is another one who along with Nazir and Irshad Ahmed reached in a taxi on the night intervening 13/14.07.1997 at the IGI Airport and entered Departure Transit Hall. This plea is invalid as the entire record of D.E. categorically confirmed that Const. Qamaruddin No.1970/C (when posted at PS Kamla Market), on the night intervening 13/14.07.1997 had gone to IGI Airport along with Irshad Ahmed in a taxi with the help of HC Sube Ram and Const. Mange Ram and went inside currency worth Rs.28,04,797/- to Irshad Ahmed who was going to Dubai by E.K.-702 Flight. In the statement given to customs officer on 17.07.97, Const. Qamaruddin himself admitted that he accompanied Irshad Ahmed to IGI Airport on the night intervening 13/14.07.97 and handed over the packet of foreign currency to Irshad Ahmed inside Departure Transit Hall. Besides, he is the same Qamaruddin who was arrested by the Custom Authorities on 18.07.1997. He also discussed the statements of PWs/DWs from his own angle in his written representation. On the other hand, the EO in his findings has held that the statements of all the PWs revealed that Const. Qamaruddin, No.1970/C of PS Kamla Market had gone to IGI Airport on the night intervening 13/14.07.1997 along with Irshad Ahmed in a Taxi. With the help of HC Sube Ram and Const. Mange Ram posted at IGI Airport he went inside Departure Transit Hall, IGI Airport and handed over two packets of foreign currency worth Rs.28,04,797/- to Irshad Ahmed. It has also been established from the copies of the statement of Irshad Ahmed that Const. Qamaruddin, No.1970/C handed over foreign currency to said Irshad Ahmed. Besides this, he himself in his own handwriting confessed that he had put bundles containing foreign currency inside the handbag of Shri Irshad Ahmed in the Departure Transit Hall. The EO in his findings finally held that the charge leveled against Const. Qamaruddin, No.1970/C is proved. I have no reason to disbelieve with the findings of the E.O. After considering the overall facts and circumstances of the case I feel that the position was/is very deterrent when a member of enforcing agency himself indulges in such type of illegal activities. Besides, such collusion on the part of enforcing agency could be resulted as a major security lapse. The police department is constituted to save the people, preserve their rights to live peacefully and safely. The society expects from police to protect citizens from crime. The involvement of a member of police force in such a crime is totally erodes the faith of the common people in the police department. Hence, he neither deserves to be retained in the Police Force nor deserves any leniency.
Therefore, keeping in view of the facts and circumstances of the case in its totality and agreeing with the findings of the Enquiry Officer, I, Sanjay Kumar Jain, Addl. Dy. Commissioner of Police-I, South-East District, New Delhi hereby award a punishment of dismissal to Constable Qamaruddin, No.842/SE (PIS No.28820046) from service with immediate effect. His suspension period from 06.08.1997 to 18.07.2000 is hereby decided as period not spent on duty for all intents and purposes.
11. Further, the appellate authority has also applied his mind to the issues raised by the applicant including that of the punishment being disproportionately harsh and has observed as under in his order dated 28.06.2010:
I have gone through the appeal and other relevant records. I have also heard the appellant in person on 15.6.2010. In his appeal he has stated that he was falsely implicated in case u/s 104 of the Customs Act, 1962 by the custom authority. Later on he as discharged by the Honble Court vide order dated 10.2.2010. Disciplinary authority had not considered the out come of the court and inflicted harsh punishment of dismissal upon him. It was alleged against the appellant that he entered the Departure Transit Hall and put the foreign currency inside the handbag of one Irshad Ahmed in the Departure Transit Hall who was to travel to Dubai. As per security procedure of Airport Authority of India no one can enter in the premises of IGI Airport. Secondly, only passengers after security check and officers and person authorized to perform duty can stay in the Departure Transit Hall and other one has no authorization or authority to enter in the aforesaid high security area. As such, the allegation leveled against him is not unbelievable but not admissible. There is no evidence on record of IGI Airport that the appellant had entered in the premises of IGI Airport on the night intervening 13/14.7.1997. The Customs Officers after arrest of accused Irshad for his alleged crime and even his so called disclosure during interrogation did not reached the appellant whereas he was present on his duty place in Central district.
I am not convinced with the plea of the appellant. He was arrested on 18.7.1997 u/s 104 of the Customs Act, 1962 and produced before ACMM, Patiala House Courts who remanded him in the judicial custody till 2.8.1997. Apart from this there is no legal bar for simultaneous proceeding. The proceedings in a criminal case and departmental proceeding operate in distinct and different jurisdictional area. Where as in departmental proceedings where an allegations relating to misconduct is being investigated the factor operating in the mind of disciplinary authority may be many such as enforcement of discipline or to investigate the level integrity of the delinquent, the standard of proof required in the Departmental proceedings is also different than in criminal case. In the departmental proceedings the standard of proof is preponderance of the probabilities, in criminal case the charge has to be proved beyond reasonable doubt. The departmental proceedings are meant not really to punish the guilty but to keep administrative machinery unsullied by getting rid of bad and undesirable elements. It has been established during the departmental enquiry that on the night of 13/14.7.1997 the appellant had gone to IGI Airport along with Irshad Ahmad in a taxi and with the help of HC Sube Ram and Const. Mange Ram posted at IGI Airport went inside the Departure Transit Hall and handed over two packets of foreign currency worth Rs.28,04,797/- to Irshad Ahmad who was going to Dubai by E.K. 702 flight. Moreover, the appellant had also himself admitted before customs officers that he accompanied Irshad Ahmed to IGI Airport on the night of 13/14.7.97 and handed over the packets of foreign currency to Irshad Ahmed inside Departure Transit Hall. The misconduct of the appellant was very serious in nature and as such, he was not considered fit to be retained in the Delhi Police. As such, I am not inclined to interfere in this matter. The appeal is rejected.
12. It is evident from the paras 9, 10 and 11 above that this case cannot be considered to be one of `No evidence or that the orders passed by the authorities are non-speaking/show non-application of mind. As already observed by us, no interference in the findings of the inquiry officer and the disciplinary authority is warranted, unless they are based on malafides (which is not the case here) or are totally perverse in the sense of their being no evidence whatsoever, which again is not the case here. We, therefore, should not, and do not propose to review the findings arrived at by the fact finding authorities, viz., Inquiry Officer/the Disciplinary Authority/Appellate Authority by re-appreciation of the evidence.
13. The applicants contention that the punishment is highly excessive has also been dealt with in the appellate order. Once the disciplinary authority and the appellate authority have come to the conclusion that it is absolutely unsafe to retain the employee in service, the penalty of dismissal can be imposed. In the present case, both the authorities have come to the conclusion that the misconduct of the applicant was very serious and that continuance of such a person in the police force would be detrimental to society, which looks forward to the police to protect citizens from crime, and that the involvement of a member of the police force in such activities erodes the faith of the common people in the police department. The punishment imposed in these circumstances cannot be considered to be one that shocks the conscience of the Court, and thus no interference in the punishment imposed is warranted. In this connection, we may usefully refer to the following observations of the Honble Apex Court in B.C. Chaturvedi v. Union of India and Others, (1995) 6 SCC 749:
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court / Tribunal, it would appropriately mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Recently, the Honble Apex Court in Administrator, Union Territory of Dadra & Nagar and Haveli v. Gulabhia M. Lab (2010) 5 SCC 775 held as under:
13. The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts. .
14. Taking the totality of facts and circumstances into consideration and also the well settled legal position, referred to in para 6, we do not consider it necessary to interfere with the orders of the respondents that are challenged in the OA.
15. The O.A. is dismissed. We make no order as to costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /nsnrsp/