Central Administrative Tribunal - Delhi
Roshan Singh vs Comm. Of Police on 11 September, 2023
(OA No.119-2021)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.119/2021
Reserved on :23.08.2023
Pronounced on :11.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
1. Smt. Rakesh
Aged about 57 years
W/o late Roshan Singh
R/o B-7/53, Type-I
Police Line, Pitampura, Delhi.
2. Sh.Nishant Singh
Aged about 29 years
S/o late Roshan Singh
R/o B-7/53, Type-I
Police Line, Pitampura, Delhi.
3. Sh.Rohit Singh
Aged about 28 years
S/o late Roshan Singh
R/o B-7/53, Type-I
Police Line, Pitampura, Delhi. ...Applicants
(By Advocate: Shri S.K.Gupta)
Versus
Govt. of NCT of Delhi through
1. Chief Secretary
Govt. of N.C.T. of Delhi
Delhi Secretariat,
Players Building, New Delhi.
2. Commissioner of Police, Delhi
Police Headquarters
New Building, P.S.Parliament,
New Delhi.
(OA No.119-2021)
(2)
3. Joint Commissioner of Police,
Police Headquarters
Central Range, New Building,
P.S.Parliament, New Delhi.
4. Deputy Commissioner of Police,
North District, Civil Lines,
Khyber Pass, Delhi-54
5. Inquiry Officer/Asstt. Commissioner of Police
C/o Deputy Commissioner of Police,
North, Civil Lines,
Khyber Pass, Delhi-54. ...Respondents
(By Advocate: Mr.Amit Anand)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(i). to quash and set aside the findings of the inquiry officer dated 28.05.2019 (Annexure-A-
1), order of dismissal dated 11.12.2019 (Annexure-A-2) and order dated 14.12.2020 (Annexure-A-3);
(ii) to direct the respondents to reinstate the applicant forthwith and award all consequential benefits to the applicant like salary seniority etc;
(iii) May also pass any further order (s), direction(s) as be deemed just and proper to meet the ends of justice:"
(OA No.119-2021) (3)
2. The brief facts of the case as indicated in the OA/amended OA are that the applicant was Assistant Sub Inspector in Delhi Police. Based on some inquiry report received from the Central Bureau of Investigation (CBI), he was placed under suspension on 17.12.2018. A disciplinary inquiry was initiated against the applicant in terms of Delhi Police (Punishment & Appeal) Rules, 1980 and an inquiry officer was appointed. On 23.09.2019, the inquiry officer framed and issued summary of allegations against the applicant, along with summary of allegation, the applicant also received the list of witnesses containing three witnesses. He also received the list of documents but copy of document relied upon i.e. the report of the concerned CBI Officer Inspector Savita was not supplied to him. The inquiry officer conducted a preliminary inquiry on 12.04.2019 wherein the applicant denied the allegation. On receiving the inquiry report/findings, the applicant submitted a representation to the Respondent No.4 on 31.07.2019 and he was heard by the disciplinary authority on 29.10.2019 but on 11.12.2019 the applicant was dismissed from service. The applicant filed statutory appeal on 10.01.2020 wherein he also pressed some additional grounds in support of his appeal. The (OA No.119-2021) (4) applicant was heard by the appellate authority on 10.11.2020 through video conferencing but his appeal was rejected leading to impugned order dated 14.12.2020 upholding the dismissal. However, in terms of order dated 23.12.2019, the applicant was allowed to retain the accommodation till the pendency of the appeal. After rejection of his appeal, the applicant approached this Tribunal and he was allowed to retain the official accommodation till the disposal of the OA vide order dated 20.01.2021 wherein as an interim measure, the respondents were directed to maintain status quo qua the possession of the official accommodation by the applicant till the next date of hearing. However, the interim direction was subject to the condition that if the applicant does not succeed in the present OA, he shall be liable to pay the market rent in respect of retention of the government accommodation beyond the period admissible under the relevant provisions of allotment rules.
3. Through MA No.3068/2021 filed on 25.10.2021 an amended application under Rule 24 of the CAT (Procedure) Rules, 1987 was filed for taking on record the legal representatives of the applicant as during the pendency of the OA, the applicant unfortunately expired on 07.10.2021.
(OA No.119-2021) (5)
4. The main grounds taken against the impugned orders passed by the respondents are that the inquiry report of the CBI which was relied upon has not been supplied to the applicant despite the request to the inquiry officer and subsequently to the disciplinary authority as well as to the appellate authority, but to no avail. The applicant contends that in a catena of judgments, the Hon'ble Supreme Court more specifically in Kashi Nath Dixit vs. UOI, State of UP vs. Shatrughan Lal and also in the case of UP vs. Saroj Kumar Sinha, it was clearly stipulated that unless the relied upon documents are supplied or offered for inspection, the same cannot be used against the delinquent employee.
5. It has been further contended that the three witnesses namely Ms. Shivani Dhingra, Ms. Gurdeep Kaur and Ms. Kavita were not referred in the list of witnesses at all and though earlier statements recorded by PW-1 and PW-2 were heavily relied upon by the inquiry officer but the applicant was denied the opportunity to cross examine the aforesaid witnesses, which was vital for the case. Further, these witnesses were not even arrayed in the list of witnesses, and hence their statement should not have been brought on record but during the entire enquiry proceedings, statement (OA No.119-2021) (6) of three individuals was relied upon.
6. It is also submitted that in accordance with Rule 16 (iii) of the Delhi Police (Punishment & Appeal) Rules, 1980, if the applicant does not admit the misconduct, the inquiry officer shall proceed to record the evidence in support of the accusation, as is available and necessary to support the charge and as far as possible, the witness shall be examined directly and in the presence of the applicant, who shall be given the opportunity to take notes of their statements and cross examination. However, the inquiry officer is empowered to bring on record the earlier statement of any witness whose presence cannot procured without undue delay. But the aforesaid three witnesses were not referred in the list of witnesses at all and hence before taking their earlier statements, the efforts could have been made to produce those witnesses during the course of inquiry, but no such attempt was made by the inquiry officer in clear violation of provisions of Rule 16(iii) of the aforesaid rules.
7. The applicant has also contended that the inquiry officer while framing the summary of allegation has introduced a document namely CDR analysis of phone of the applicant ignoring the fact that the applicant had served Delhi (OA No.119-2021) (7) Police for around 37 years and during this service, he remained posted either in Special Staff of Crime Branch or Special Cell of Delhi Police and for performing such duties, the applicant had to make certain calls or receive certain calls for gathering information to stop the organized crime of different nature, therefore, the CDR cannot be relied upon against the officer. It is further submitted that the inquiry officer relied upon the identification of delinquent photographs upon the basis of Facebook photographs which are inadmissible in the eyes of law and as per the electronic evidence anyone's photographs can be easily morphed.
8. The respondents in their counter reply have submitted that the applicant in conspiracy with some other accused persons, namely, Ms.Razia Patel, Ms. Jenny and Nooresh has lured 4 Indian girls namely Ms. Komal, Ms.Gurdeep, Ms. Shivani and Ms. Kavita for the purpose of illegal trafficking from India to Kenya. The victims were kept in very harsh condition and forced to dance in a dance bar. Victims did not want to do this job and when one of the victims namely Shivani contacted the applicant over phone, he used abusive language with her over telephone and told her that they have to do this job. Further, it was revealed that in the month of (OA No.119-2021) (8) August 2016, the applicant along with other accused persons was present at Delhi Airport, when one victim namely Kavita boarded the flight. During the inquiry, it was also revealed that initially the applicant lured a victim namely Shivani in pretext to provide her a job in Dubai for the salary of Rs.16000/- per month. However, she was informed later that her job has been arranged in Kenya. After this, she was asked to reach Karol Bagh where Roshan Singh himself handed over to her passport, ticket and one invitation letter to victim Shivani also identified the photos of Roshan Singh taken from CAF of his mobile number and Facebook profile. CDR analysis of his mobile number has also established his connection with other suspects and victims. Arrival/Departure of information from FRRO revealed that the applicant visited Singapore in March 2016. During the course of verification, photo of Ex.ASI Roshan Singh taken from CAF of his mobile number and Facebook profile has been identified by the victims. In view of above inquiry report, a DE was initiated against him. The respondents have also narrated the details of the DE proceedings and subsequent development leading to his dismissal to submit that there was hard evidence to establish a complete chain of events which clearly point to his involvement in the whole racket and hence penalty of (OA No.119-2021) (9) punishment imposed upon him is fully justified. They have drawn our attention to the well settled rule that standard of proof is different in disciplinary proceedings vis-à-vis criminal trial. Only preponderance of probabilities is required to be established in a DE whereas "beyond all reasonable doubts"
in the standard of proof in a criminal trial. They have reiterated that the inquiry officer conducted the departmental inquiry in proper manner and submitted his findings as per rule and hence the OA is liable to be dismissed.
9. The applicant has filed rejoinder reiterating the points made in the OA.
10. We have perused the pleadings on record and also heard Shri S.K.Gupta, learned counsel for the applicant and Shri Amit Anand, learned counsel for the respondents.
11. As contended in the OA, the learned counsel for the applicants has also drawn our attention to the non-supply of the inquiry report of CBI which was though indicated in the list of documents, but a copy of the same was never supplied to the applicant during the inquiry resulting into serious prejudice. They have brought to our notice to the order of this Tribunal in the matter of Shri Vijay Singh vs. (OA No.119-2021) (10) Government of NCT, Delhi and Others (OA No.173 of 1994 decided on 28.06.1999) which reads as under:
"17.Relying upon several other rulings the Bench in Prem Pal Singh's case (supra) held that non- supply of the PE Report to the delinquent when Respondents' own circular dated 1.5.80 required it to be supplied, was an infirmity grave enough to vitiate the entire D.E. Nothing has been shown to us to establish that the aforesaid order in Prem Pal Singh's case (supra) has been stayed, modified or set aside."
12. Further, citing the judgment dated 30.07.1998 passed by the Hon'ble Supreme Court in State of UP vs. Shatrughan Lal & Anr which reads as under:
"Preliminary inquiry which is conducted invariably on the back of the delinquent employee may often constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita v. Union of India & Ors. (1980) 3 SCC 229 (supra), wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents in his defence.
xxxxxx xxxxxxx xxxxxx This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. This assertion clearly indicates that although it is (OA No.119-2021) (11) admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did not intend to give copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough, he has to be informed that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him."
13. Our attention is also drawn citing the judgment dated 17.12.1998 passed by the Hon'ble Supreme Court in Kuldeep Singh vs. The Commissioner of Police & Ors decided on 17.12.1998 which reads as under:
"This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to cross examine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the (OA No.119-2021) (12) Magistrate who had earlier recorded the statement of the witness whose presence could not be procured."
14. Learned counsel for the respondents, on the other hand, has argued that even though the report of the inquiry officer was not given but its contents were made available to him during the inquiry and even the statement of all the victims have been given to him and this is not a case of no evidence. In fact, in his defence statement before the disciplinary authority, the applicant has referred to the deposition of the victims which were duly supplied to him and the victims have specifically said that they would not come forward in the inquiry in view of social stigma that may follow and hence they were not summoned for evidence.
15. The first issue before us is regarding non-supply of the inquiry report and if it caused any prejudice to the applicant. We have perused the relevant DE file. Also, learned counsel for the respondents during the hearing has submitted before us a copy of the report which is confidential and it has been argued by him this was a conscious decision not to share a copy thereof with the applicant in view of it being marked confidential. We also find that though the report was not (OA No.119-2021) (13) given to him but authors of the report was one of the witnesses and she along with all other prosecution witnesses were duly cross examined by the applicant. Moreover, the relevant portion of the report concerning the inquiry such as deposition of victims were duly shared with the applicant. The author of the inquiry report Inspector Sarita during CBI inquiry had obtained the copy of the statements of the victims made before the High Commission of India, Nairobi and she recorded the statements of the three victim Indian girls. During cross examination by the applicant and his defence assistance, there was plenty of evidence to suggest that the applicant had sent the victims to Nairobi as Bar Dancer. However, the victim girls refused to join any further inquiry due to fear of social defamation as well as their future, keeping in view their age. Therefore, the statement of the victim girls were exhibited through PW-1 and PW-2 by the inquiry officer and statements of victim were duly recorded by responsible officers, senior to the applicant. The victims have identified the applicant and their signatures have been appended on all pages which were further verified by officers recording the statements during the process of D.E. In the circumstances, our considered view is that non- supply of the inquiry report of the CBI has not caused any (OA No.119-2021) (14) prejudice to the applicant. We also find that the inquiry officer conducted the departmental inquiry following due procedure. The I.O. examined the PWs in the presence of the applicant and opportunity to cross examine the PWs was also given to the applicant which he availed on the basis of the statements of victim girls recorded during the DE proceedings. The IO framed the charges and got it approved from the competent authority. The contents of the charges were explained to the applicant in a simple language but he did not plead guilty. Therefore he was asked to submit the list of DWs and his defence statement. However, he preferred not to produce any DWs but nevertheless he submitted his defence statement. The IO completed the DE proceedings as per the prescribed procedure and concluded that the charge framed against the applicant has been proved. Disciplinary Authority tentatively agreed with findings of the IO and the copy of the findings was served upon the applicant with the direction to submit his representation if any. His representation was duly considered by the Disciplinary Authority who heard the applicant and perused the entire DE file and imposed the penalty. The applicant preferred an appeal before the appellate authority which was duly considered and rejected.
(OA No.119-2021) (15) The justification behind not sharing the report of the CBI with the applicant or giving him the opportunity to cross examine the victims has been adequately provided by the respondents. Moreover, Rule 16 (iii) of Delhi Police (Punishment and Appeal) Rules, 1980, empowers IO to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such be procured without undue delay, inconvenience or expense if he considers such statement necessary, provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer[' during an investigation or a judicial enquiry or trial.
16. We have found that there is no violation of the above provision as the statement was recorded and attested by a police officer superior to the accused officer and such statements have been signed by the victims themselves. Also the statement of documents so brought on record in the departmental proceedings have been given to the accused officer. Also Rule 16 (iii) of the said rules prescribes that as far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given (OA No.119-2021) (16) the opportunity to take notes of their statements and cross-examine them. The term "as far as possible" is important here as it does not give blanket permission to examine the witness directly and in the presence of accused. In this case, though the victims were not in the array of witnesses but their statements which were recorded by a senior police officer and signed by them, was part of the deliberation during the enquiry and the officers who recorded it were cross examined as witnesses by the applicant. Our considered view is that there was substantial compliance of the relevant provision. It is also not that it is a case of no evidence or perverse findings, or as if inadmissible evidence has been taken into account by the concerned authorities.
17. Other than the case of no evidence, judicial review can also be restored to ascertain whether the inquiry has been fairly and properly held whether the rules of natural justice are complied with. We do not find the departmental proceedings/impugned orders lacking on this score either as discussed at length.
(OA No.119-2021) (17)
18. In view of the aforesaid facts and circumstances, we do not see any reason to interfere with the impugned orders passed by the respondents and the OA is therefore dismissed. No order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/