Central Administrative Tribunal - Delhi
Jagbir Singh vs Comm. Of Police on 11 October, 2023
1
OA No. 2532/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 2532/2015
Order reserved on: 12.09.2023
Order pronounced on: 11.10
.10.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Jagbir Singh
Constable in Delhi Police
PIS No. 28902436
Aged about 47 years
S/o Sh. Jagjit Singh
R/o VPO : Bhalianandpur, Distt. Rohtak, Haryana
...Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Addl. C.P (Armed Police)
PHQ, IP Estate, New Delhi.
3. D.C.P (3rd Bn. DAP)
Vikas Puri Lines, New Delhi
4. Sh. S.K. Tewari (DANIPS)
D.C.P/ 3rd Bn. DAP
Through Commissioner of Police,
PHQ, IP Estate, New Delhi
5. Sh. Shibesh Singh (DANIPS)
Then D.C.P/ 3rd Bn. DAP
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
... Respondents
(By Advocate: Mr. Amit Yadav)
2
OA No. 2532/2015
ORDER
Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following relief(s):
"1. To quash and set aside the impugned Order initiating DE dt.30.4.2013, Findings, Order of punishment dt.21.2.2014 and Appellate order dt.16.3.2015 dt.16.3.2015 and direct the respondents to restore to the applicant his original service and original pay with all consequential benefits including promotion/seniority and arrears of pay.
2. To award costs in favour of the applicant and
3. To pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. Brief facts of the case, as projected by the applicant, are as follows:
2.1 Vide order dated 30.04.2013 a Departmental Enquiry (DE) was initiated against the applicant by the respondent no.5 who was not competent to act as the Disciplinary Authority (DA) and initiate DE against him being a DANIPS officer who had been given only JAG grade but was not an IPS officer since the applicant applicant was appointed by an IPS officer.3
OA No. 2532/2015 2.2 The DE was initiated on the allegations that on 15.12.2012 an UTP Sanjay Eknath Jadhava was sent to Kerala in the custody of the applicant with two Head Constables and two Constables for production in Court.
They reached Kerala on 17.12.2012 and de-boarded de boarded at Ernakulam Railway Station and from there they went to AR Police Lines, Kochi City for their stay. They stayed in a Barrack. However, at about 11.30 pm the UTP asked for water and while he was taken to bathroom bathroom for water, he escaped from the custody by jumping out from a broken window of bathroom.
2.3 It is pointed out that the DE was initiated on incorrect facts without taking into account the following relevant facts:
a) The applicant and others had gone to AR Police Lines, Kochi City for their stay but they had to stay in the Barrack when their request to keep the UTP in lockup was rejected by the local police.
b) The UTP was in the physical custody of Constable Raj Pal when he escaped from the custody. 4 OA No. 2532/2015
c) The FIR no.3215 dated 18.12.2012 U/S 225-B/353 225 B/353 IPC PS Ernakulam Central, Kerala was registered in this regard. The applicant was not found having connived or negligent in the escape of the UTP, as is evident from the fact that the applicant was not charge-sheeted ch sheeted in the case FIR.
d) The applicant and others were not provided any reservation for train journey due to which they had to take journey standing and got tired.
e) The Barrack in which they had to stay was not properly lit and the UTP took the advantage advantage of the same.
2.4 Despite the allegations levelled amounts to negligence in escape as per the departmental searching enquiry which amounts to an offence under the provisions of IPC, the DE was initiated without the reasons to be recorded in writing by the Additional Commissioner of Police that the case shall be dealt with departmentally, which is in violation of Rule 29 (3) of the Delhi Police (Punishment & Appeal) Rules, 1980. 5 OA No. 2532/2015 2.5 On denial of charges, a detailed enquiry was conducted by the Enqui Enquiry ry Officer (EO) who examined 04 PWs. Thereafter the EO framed charges against the applicant and others on the same set of allegations as mentioned in the summary of allegations. It is submitted that the EO illegally and arbitrarily framed charges against the applicant though there was neither any material nor any evidence to frame the charges against him, which shows total non non--application application of mind on the part of the EO. Thereafter the applicant submitted his defense statement to the EO and requested for exoneration xoneration from the charges.
2.6 The EO submitted his findings concluding therein that the charges levelled against the applicant are proved.
2.7 The respondent no.4 who was not competent to act as the DA against the applicant being only JAG Grade DCP, in violation of rules and regulations and also in violation of principles of natural justice and without considering the representation/defense of the applicant proved the charges against the applicant and vide order 6 OA No. 2532/2015 dated 21.02.2014 awarded the punishment punishment of forfeiture of 02 years approved service permanently. 2.8 The applicant filed appeal before the Appellate Authority (AA) against the order passed by the DA, praying for reconsideration of the case and to quash and set aside the impugned order of punishment.
puni 2.9 The AA, however, vide order dated 16.3.2015 illegally and arbitrarily rejected the appeal of the applicant, perusal of which shows that AA had not applied its mind to the facts and legal points raised in the appeal and mechanically endorsed the the perverse and untenable reasoning given by the DA in agreeing with the findings of the EO with a non non--speaking speaking and cryptic order.
In support of his contention, the applicant has placed reliance on a decision of Hon'ble Andhra Pradesh High Court in D.B. Rao ao v. A.P.State Road Transport Corporation Corporation,, 2006 (7) SLR 11 (AP), decision of the Punjab & Haryana High Court in Sarup Singh v. The State of Haryana Haryana,, 1983 (3) SLR 585 (P&H) and the decision of the Hon'ble Supreme Court in Delhi Administration v. Chanan Singh, Sin , 1969 SLR 217 (SC).
7OA No. 2532/2015 it was further argued that the punishment imposed upon the applicant is disproportionate to the act of the applicant and punishment given to the applicant if at all to be given must be in relation to overact attributable to him and n not ot which has been accorded to across the board to all the others to the UTP party.
3. Pursuant to the notices issued by the Tribunal the respondents entered appearance and filed their reply, thereby vehemently opposing the averments made by the applicant in his OA. It is submitted that a regular joint DE was initiated against the applicant and his other co co-
defaulters, vide order dated 30.04.2013 under the relevant provisions of the Delhi Police (Punishment & Appeal) Rules, 1980 on the allegation that while while posted in 3rd Bn. DAP on 15.12.2012, UTP Sanjay Jadhav was sent to Kerla in their custody for his production in the Court of District Eduki, Kerala. 3.1 During the night intervening 17/18.12.2012 at about 11.30 pm, the UTP asked for water and when he was s taken to the bathroom, the UTP managed to escape by jumping out of the broken window from the bathroom. 8 OA No. 2532/2015 A case FIR No.3215 dated 18.12.2012 u/s 225-B/353 225 B/353 IPC, PS Ernakulam Central, Kerala was registered in this regard.
3.2 The enquiry was conducted by Inspr. aver Ar ya/3rd Bn. Cap, which revealed that the UTP had made many phone calls from the mobile phone of applicant. The enquiry further revealed that many acts of negligence, carelessness and dereliction were done by the Guard staff while taking the UTP at out stations for his production in the court of law.
3.3 The EO observed that the UTP was not lodged in the lockup of any police station and that the guard did not check the premises properly while staying there along with the UTP. They failed to perform their duties vigilantly and count not keep the UTP safely in their custody and allowed him to escape. The UTP was allowed to make several phone calls from the mobile phone of applicant and this fact was concealed by the applicant as well as the guard guard members during the enquiry conducted by Ins pr. Dine sh Ar ya. 9 OA No. 2532/2015 3.4 For the above misconduct, the Guard staff was placed under suspension w.e.f. 21.12.2012 vide order dated 24.12.2012 and later on reinstated vide order dated 10.09.2013.
3.5 The EO s submitted ubmitted his findings concluding therein that the charge beveled against the applicant stands proved.
3.6 Tentatively agreeing with the findings of the EO, a copy of the findings was served upon the applicant and his co--defaulters defaulters seeking their representation, representation, if any, with a show cause notice as to why their suspension period should not be treated as not spent on duty. 3.7 The DA, keeping in view the overall facts and circumstances of the case, the evidence and documents brought on record, inflicted a punishment punishment of forfeiture of two years approved service permanently entailing proportionate reduction in pay. Further, the suspension period from 21.12.2012 to 10.09.2013 was also decided as period not spent on duty for all intents and purposes which may not be regularize in any manner. 10 OA No. 2532/2015 3.8 Aggrieved with the above order(s), the applicant preferred an appeal before the AA, which was rejected vide order dated 16.03.2015.
3.9 In support of their contention, the respondents have placed reliance upon the decisions decisions of the Hon'ble Supreme Court in B.C. Khachaturian v. Union of India and Ors.
Ors.,, (1995) 6 SCC 745, R.S. Sain v. State of Punjab,, (1999) 8 SCC 90, State of Tamil Xanadu v. T.V, Venezuelan Venezuelan,, (1994) 6 SCC 302 where the Hon'ble Supreme Court has held that the scope of judicial review by the courts ought to be on the decision making process and where the findings of the DA are based on some evidence, the court or the Tribunal cannot re-apprecia re appreciate the evidence and substitute its own finding. It is also not open for this Tribunal to reverse the finding of the inquiring authority for lack of sufficient evidence. However, if there is some evidence reasonably supporting the conclusion of the inquiring inquiring authority available, it would not be the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so 11 OA No. 2532/2015 long as there is some legal evidence to substantiate the finding ng and the adequacy or reliability of the evidence is not a matter, which can be permitted to be canvassed before the Court.
3.10 Further, the Hon'ble Supreme court in Lalit Limpopo v. Arcana Bank Bank,, (2003) 3 SCC 583 observed that when once it is found that that the enquiry was conducted in a fair and proper manner in accordance with the rules keeping in view the principles of natural justice and by affording reasonable opportunity, the Tribunal has no power to interfere with the findings of the EO. Reliance in this regard has also been placed on the decisions of the Hon'ble Supreme Court in State of Karabiner & Jaipur v. Nemi Chand Nalwaya, Nalwaya, (2011) 4 SCC 584 and Kuldeep Singh v. The Commissioner of Police,, 1999 SCC (L&S) 429.
3.11 In view of the above submissions submissions it is submitted that the enquiry has been conducted by the respondents in a fair and proper manner in accordance with rules and at every stage the applicant has been afforded reasonable opportunity to defend himself by duly following the 12 OA No. 2532/2015 principles of natural justice. Hence, this Tribunal in judicial review cannot interfere with the findings of the EO as the same are based on evidence. The OA is liable to be dismissed being devoid of merit.
4. We have heard the learned counsel for the parties and hav have e also carefully gone through the material placed on record.
5. ANALYSIS 5.1 The Hon'ble Supreme Court in B.C. Chaturvedi v. Union of India and Ors.
Ors.,, (1995) 6 SCC 745, R.S. Saini v. State of Punjab Punjab,, (1999) 8 SCC 90, State of Tamil Nadu v. T.V, Venugopalan Venugopalan, (1994) 6 SCC 302 has held that the scope of judicial review by the courts ought to be on the decision making process and where the findings of the DA are based on some evidence, the court or the Tribunal cannot re re-appreciate appreciate the evidence and substitute it its s own finding. It is also not open for this Tribunal to reverse the finding of the inquiring authority for lack of sufficient evidence. However, if there is some evidence reasonably supporting the conclusion of the inquiring authority available, it would not be the function 13 OA No. 2532/2015 of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliabilit reliability y of the evidence is not a matter, which can be permitted to be canvassed before the Court. 5.2 On perusal of the records, we find that there is no perversity and/or illegality in manner of holding the department proceedings, all codal codal procedural formaliti formalities have been taken into consideration. We had also called for the original file of DE and we have found no procedural lapse on any count.
5.3 Now, the only issue to be examined is that the applicant vide order dated 21.02.2014 has awarded the punishment of forfeiture of 02 years approved service permanently, which can be said to be disproportionate and extremely harsh in the fact of the present case. 5.4 We observe that following undisputed facts can be culled out in order to assess the role of the applicant applicant.
14OA No. 2532/2015 5.4.1 The other two Constables namely Const. Hardeep Singh, No.7932/DAP and Const. Arvind Kumar Tyagi, No.6879/DAP had mainly pleaded in their defense statement that at the time of escape the UTP was in the custody of Const. Raj Pal Singh, No.2420/DAP as per duty roaster prepared by I/C Escort Guard. Had they been responsible of the escape of UTP, the local police could have registered cri criminal minal case against them.
5.4.2 The appellant HC Surender Pal in his appeal has mainly pleaded that (i) he is innocent and there was no laxity or dereliction in discharging the duty. The UTP had escaped from the custody of Ct. Raj Pal by taking advantage o off darkness in the bathroom, (ii) the local police has registered as case u/s 225B/353 IPC against the escaped UTP and did not register the case against the members of the escort guard. Besides, the escaped UTP has already been arrested and convicted in the above said case by the Hon'ble Court of Sh.
h. Santosh K. Venu, Judicial First Class Magistrate, Ernakulam vide its judgment dated 21.8.2013, (iii) there is no evidence of connivance or collusion of the members of the escort 15 OA No. 2532/2015 guard with the UTP in escaping because because he has not stated anything against them in his disclosure statement given before the local police, (iv) there was no reservation for the journey and the escort guard had to perform the long standing journey, which not only developed tiredness but als also o put them in unavoidable embarrassing position. Even after reaching at Ernakulam Railway Station, he requested the concerned police officials to keep the UTP in a lock lock-up up and to provide space for their stay during the night but their request was denied an and they were instructed to stay at Barracks of A.P. Police Lines, Kochi City, (v) the members of the escort guard had to face acute language problem in discharging their responsibilities at Kerala, (vi) the UTP was allowed to make phone calls on humanitarian humanitarian ground on his request, (vii) in a similar and identical case, the then appellate authority has modified the punishment, (viii) the punishment awarded to him is too harsh. 5.4.3 The appellant Ct. Raj Pal Singh in his appeal has mainly pleaded that DE initiated initiated against him is in violation of rule 29(3) of Delhi Police (P&A) Rules, 1980, 16 OA No. 2532/2015
(ii) there is no evidence against his misconduct in the DE. Mere escaping of an accuse from his custody does not mean that the appellant was negligent in his duty, (iii) the he local police registered a case u/s 225B/353 IPC against the escaped UTP and did not register the case against him, as such he cannot be held responsible for the escape of the UTP (iv) he could not properly defend his case because no specific charge was made against him.
5.4.4 We find that the applicant in OA No.1560/2012 was acquitted vide judgment dated 29.11.2010 on the ground of 'no evidence on record'. The operative part of the said order read as under:-
under:
"11. The crucial questing is whether any evidence has emerged to positively incriminate constable Raj Singh and Constable Dharambir. The answer must be in the negative. If anything it has become evident from the cross examination of PWPW-44 that the two were handicapped in their control over accused Nitin. Firstly, although custody had been granted to PW PW-4 4 he handed over the same to the two constables without any authorization from a superior officer. He then sent them to DDU hospital without granting them any official vehicle. PW-4 PW 4 admitted that while he used an official vehicle to take the accused to various placed during investigation, no such vehicle was provided to Raj Singh and Dharambir. Accused Nitin was not handcuffed either. It must be borne in mind tthat PW PW-44 was very aware of the criminal antecedents of Nitin before handing over his custody to the two constables. It is thus fair to conclude that the act of escape by Nitin though a desperate act by Him, punishable by under 17 OA No. 2532/2015 section 224 IPC, was not on account account of negligence shown by the two constables.
12. It was held in Durga Prashad Vs. Emperor (1910) 11 Cr. LJ 478, 7 IC 411 that before a person can be convicted under section 223 IPC, it must be shown not only that he was guilty of negligence, but that the escape was at least the natural and probable consequence of his negligence. In the present facts, the prosecution witnesses had failed to point out an negligence or escapes by Nitin as a direct consequence of such negligence. It is not a logical corollary corollary of a person escaping from custody that the same should have been through negligence of the public servants in question. Negligence requires proof which has not been led."
5.4.5 The statement of Ct Rajpal Singh is very relevant in deciding the issue on on hand. Ct Rajpal Singh stated in his deposition that "It "It stated that on 15.12.12, I along with the guard staff, taken the UTP Sanjay Eknath from CJ CJ-1 1 and went to other distt. Thoddupuzza, distt. Eduki, Kerala to produce the UTP before the court. Our train n Kerala Express reached Ernakulam station at about 10:30 A AM M on 17.12.12. I myself and HC Jagbir Jagbir 7056/DAP went to GRP P.S. Ernakulam Station to enquire about lodging UTP in the Police Station's lock-up lock up and depositing their Arms and Ammunitions in the Kot of of the Police Station. HC Jagbir have informed the guard in charge HC Surender and other guard staff that Arms and Ammunition can be deposited there but UTP is not allowed to lodge there. If UTP is required to lodge then they need to go to 18 OA No. 2532/2015 A.R. Lines at Koc Kochi, hi, which is about 5 Km away. I along with guard staff booked 2 Auto Rickshaws and at about 1PM, we reached A.R. Lines. We went to DO Line and informed him about the UTP and guard staff during which MHC Line arrived there and directed us to deposit our Arms s and Ammunition at guard room. We had deposited our Arms and Ammunition in the guard room. They have talked to the UTP in their language. On enquiring about the food from MHC Line, he informed that we can take the diet in Rs30/ Rs30/- at the Mess. We all 6 person person took lunch at the Mess. After that MHC Line has provided us one room, where HCs barrack was written, to stay. On asking about the lock ock-up, up, MHC informed about the unavaibility unavaibility of the Lock-up up there and asked to live there along with the UTP. I along with guard staff stayed there. After dinner, In In-
Charge HC Surender assigned the duties of the guard Staff and took there signatures on the guard memo. At about 11 11-11:30 11:30 PM, when I was performing guard duty on UTP Sanjay, he asked for the drinking water. As ther there e was tap available near the barrack, I took him near the tap but UTP suddenly pushed me hard and jumped out of the window and ran away. 19 OA No. 2532/2015 On this, I started shouting to wake the staff up, due to which HC Surender and other staff woke up and after knowing th thee situation, all of us started making search for the UTP. We have informed PCR Van about the escape of UTP. There after all the guard staff had made search at nearby Railway Station and bus Stands for 3-4 3 4 hours but could not find the UTP. HC Surender had informed informed the DO/VPL and RI/3rd Bn about the escape of UTP, which was lodged vide DD No.8 No.8-A, A, dated 18.12.2012. Afterwards I along with the guard staff went to P.S. Ernakulam Kochi Central and a FIR was lodged vide FIR No. 3215, dated 18.12.2012 u/s 225B/353 IPC, for the escape of UTP. I have not done any mistake while doing my duty of taking UTP for production. UT UTPP by pushing hard to Ct. and taking advantage of the situation had escaped from the custody. I am stating without any pressure, Statement submitted please.""
5.5.6 The role played by the each individual would depend upon the respective and individual role played by the conce concerned rned employee. No doubt, even otherwise 20 OA No. 2532/2015 merely because some other employees involved in respect of the alleged misconduct might have been exonerated and/or no action was taken against them, cannot be a ground to set aside the order of punishment punishment imposed in case of an employee, who is found to be guilty of misconduct. The converse is also true in as much as the DA as well as AA have not examined role played by the applicant on duties assigned to him for UTP and arriving at same punishment to him as well. It cannot also be not said that role of the applicant was at the same pedestal as that of Ct Raj Kumar and Surinder Singh who was leading the UTP party. The case of the applicant ought to have been examined in light of his involvement mor more particularly in ligh lightt of statement of Ct Raj Kumar as highlighted above inter inter-alia alia to the effect regarding narration of the facts and circumstances in which the At about 11-11:30 UTP Sanjay escaped ""At 11 11:30 PM, when I was performing guard duty on UTP Sanjay, he asked for the drinking water. As there was tap available near the barrack, I took him near the tap but UTP suddenly pushed me hard and jumped out of the window and ran away. On this, I started shouting to 21 OA No. 2532/2015 wake the staff up, due to which HC Surender and other er staff woke up and after knowing the situation, all of us started making search for the UTP. We have informed PCR Van about the escape of UTP. There after all the guard staff had made search at nearby Railway Station and bus Stands for 3-4 3 4 hours but could d not find the UTP. HC Surender had informed the DO/VPL and RI/3rd Bn about the escape of UTP, which was lodged vide DD No.8 A, No.8-A, dated 18.12.2012.
18.12.2012."
5.4.7 It is now well settled law that we cannot substitute our own judgment and wisdom to the the punishment of forfeiture of 02 years approved service permanently, which appears to be disproportionate and extremely harsh in facts of present case.
6. CONCLUSION 6.1 We, therefore, dispose of the present OA by remanding the matter back with limited directions directions to Appellate Authority to re re-examine examine and reconsider the role of the applicant in light of statement of Ct Raj Kumar and decide the issue of punishment of forfeiture of 02 years 22 OA No. 2532/2015 approved service permanently afresh and pass order(s) of lesser punis punishment hment to be imposed upon the applicant thereto after following due procedure of law in its own wisdom. The appropriate order(s) be passed within two months from date of receipt of a certified copy of the order.
7. Pending ending MA(s), if any, shall also stand disposed disposed off.
8. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
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