Central Administrative Tribunal - Delhi
Hc Rohtas Singh vs Govt. Of Nct Of Delhi on 30 June, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 94/2007 New Delhi, this the 30th day of June, 2009 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) HC Rohtas Singh (PIS No.2882316) R/o C-92, Amar Colony, Kamrrudin Nagar, Nangloi, Delhi-41. . Applicant (By Advocate: Sh. Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police, Police Head Quarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, (Traffic), PHQ, IP Estate, New Delhi. 3. DCP (Traffic) Police Headquarters, IP Estate, New Delhi. Respondents (By Advocate: Ms. Renu George) ORDER
Mr. L.K. Joshi, Vice Chairman(A) Head Constable Rohtas Singh, the Applicant in this OA is aggrieved by the order of the disciplinary authority dated 17.02.2001 (Annex A-4) whereby the punishment of forfeiture of three years approved service for a period of three years and not earning increment of pay during the period of reduction and on the expiry of this period the reduction to have an effect of postponing future increments of pay was awarded; and the order dated 17.06.2003 (Annex A-5) passed by the disciplinary authority modifying the aforementioned order on the directions of this Tribunal by order dated 25.04.2003 in OA No.2734/2002 to forfeiture of three years approved service permanently. The Tribunal had set aside the earlier order dated 17.02.2001 only on the technical ground that by the order dated 17.02.2001 two punishments have been awarded to the Applicant. The appellate order dated 9.09.2005, by which the order dated 17.02.2001 of the disciplinary authority was upheld, has also been challenged. The order dated 11.01.2000 (Annex A-1), by which the departmental proceedings had been initiated, the summary of allegations (Annex A-2) and the finding of the enquiry officer (Annex A-3) have also been challenged.
2. The departmental proceedings against the Applicant were common departmental proceedings and in addition to the Applicant the charged officers included Head Constable (HC) Suraj Bhan, Constable Shyam Sunder and Constable Narender Kumar. The gist of the allegations as contained in the summary of allegations placed at Annex A-2 against the Applicant is as under:-
(i) The Applicant and the other accused officials were found collecting money illegally from commercial vehicles near Vishal Bagh, Village Goga when a team of PRG Cell of the Delhi Police conducted a surveillance raid;
(ii) Constable Shyam Sunder stopped tempo No. DL-1L-D-0624 and demanded and accepted a note of Rs.100/- bearing No.5-AT-470575 signed by Inspector H.M.Bakshi of PRG.
(iii) On identification by tempo driver personal search of Ct. Shyam Sunder was conducted from whose pocket a sum of Rs.1770/- including the above mentioned signed note of Rs.100/- was recovered;
(iv) During personal search of Constable Narender Kumar a sum of Rs.250/- was also recovered which was kept in haphazard manner in his trouser pocket;
(v) Both Constable Shyam Sunder as well as Constable Narender Kumar could not give any satisfactory explanation about the amount recovered from them and placed in irregular manner in their trouser pockets separately from their own personal money;
(vi) HC Rohtas Singh and Constable Shyam Sunder were posted at Lampur Chowk but were found conducing unauthorized checking at Vishal Bagh, i.e. away from their actual place of duty.
(vii) HC Rohtas Singh realized compounding amounts of Rs.800/- in 8 challans in violation of instructions of senior officers as he did not write his name, rank, and number on the challans and also did not use the rubber stamp indicating his rank;
(viii) HC Rohtas Singh made an incorrect entry in challan No. L-243766 of two wheeler scooter No. DL-1S-A-5683 which was made by him at 1.45 p.m. at Vishal Bagh but the place mentioned was Anaj Mandi Narela in order to show his presence at another place at the time of the raid;
(ix) HC Rohtas Singh realized compounding amount of Rs.100/- in challan No.L-150394 on 7.12.1999 and challan No. L-244562 on 10.12.1999 but deposited these amounts in the circle office only on 13.12.1999 against the instructions.
3. After examining seven witnesses for prosecution the enquiry officer framed the charge which is substantially the same as the summary of allegations. Seven witnesses for the defence were also examined. The Applicant was also given the opportunity to submit a written statement of defence. The enquiry officer has substantiated the charges beyond any doubt.
4. The learned counsel for the Applicant has strongly contended that PW-7, the driver of the tempo, from whom allegedly the amount of Rs.100/- was demanded by Ct. Shyam Sunder and accepted by him (Ct. Shyam Sunder), has denied in his statement before the enquiry officer that such a transaction ever took place. He has pointed to the statement of the complainant, as recorded in the findings of the enquiry officer, that [H]e replied that nobody got stopped his tempo and no money was demanded. He returned the 100 rupee note to that person. The learned counsel would vehemently contend that PW-7 was not declared hostile and his previous statement allegedly recorded by the PRG team was accepted and taken into consideration by the enquiry officer. It is urged that when the witness is present before the enquiry officer then only his statement made at the time of enquiry could be considered and not the previous statement made behind the back of the charged officer. It is further argued that the currency note given to him was not a signed note when it was given and that he [the complainant] also did not note the serial number of the currency note. The witness has also stated that his thumb impression was taken on blank papers. He failed to identify the traffic staff against whom the disciplinary proceeding was conducted. The learned counsel also takes serious exception to the conduct of the enquiry officer who cross-examined PW-7 in detail after cross-examination by the Applicants defence assistant. It is argued that this is against the procedure of the departmental proceedings laid down in Delhi Police (Punishment and Appeal) Rules, 1980. It is contended that under Rule 16 (v) it is, inter alia, provided that enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer and he will be allowed to take notes. It is the contention of the learned counsel for Applicant that the enquiry officer can only seek clarification of the ambiguities in the statement of the witnesses and cannot cross-examine them in detail. Moreover, it is stated that this illegal cross-examination did not yield anything adverse against the Applicant. Learned counsel for Applicant has also argued that the enquiry officer acted against the procedure laid down in the Delhi Police (Punishment and Appeal) Rules, 1980 by introducing PW-5, Constable Rakesh Kumar, who was not in the list of witnesses. Reliance has been placed on the judgement of Honourable Delhi High Court in Rajeshwar Singh Vs. Union of India and others, 1990 (1) SLR 24 in which it is held that enquiry, which is in violation of principles of natural justice and findings based on such enquiry and punishment imposed on the basis of such enquiry are illegal. In this context, the learned counsel for Applicant has drawn our attention specially to paragraph 6 of the aforesaid judgment in which it has been observed thus:
6. Learned Counsel for the petitioner has further submitted that the department had initially proposed to examine only five witnesses in support of the charge but in actuality as many as seven witnesses were examined. In this behalf, my attention has been drawn by the learned counsel for the petitioner to Annexure A and B. Annexure A is the charge-sheet and there are four annexures to this Annexure A and perusal of Annexure IV thereto shows that the department proposed to examine five witnesses namely, Inspector Dharbha Viswanath (Coy Commdr, SI Karam Singh, HCF R.L.Sawant, HCG N.A.Shinde, and S.G.Nanumath Sathe in support of the charge-sheet. However, perusal of Annexure B which is the enquiry report shows tht seven witnesses were examined and on comparison of these witnesses in the two annexures. I further find that of the witnesses mentioned in Annexure A, HCG N.A.Shinde was not examined at all and further that three more witnesses, namely SG Gulab Singh, SG Manukhthi and SG Abekar were examined. This certainly would act to the prejudice of the case of the petitioner and principles of natural justice would be deemed to have been violated by adoption of such a course by the enquiry officer. This course tends to prejudice the defence even. Learned counsel for the respondent has not been able to explain the circumstances in which this departure had taken place in the examination of witnesses and consequently also it would be difficult to sustain the enquiry report and the termination orders in the face of such a situation and I hold accordingly.
5. Applicant has also cited the order dated 7.06.2004 in OA No. 2827/2003 in ASI Sher Singh Vs. Govt. of NCT of Delhi and others in which this Tribunal had held that cross-examination of the witnesses by the enquiry officer is de hors the rules. The Tribunal observed as follows:-
8. We do not dispute the right of the enquiry officer to seek clarificatory questions. After all they are semi-judicial proceedings and the enquiry officer is not a silent spectator. However, if he intends to seek clarification, it should be so specifically indicated. The enquiry officer cannot start cross-examining the witnesses and then not permitting the delinquent thereafter a further right. It is this flaw which has crept into the proceedings which prompts us to conclude that in the facts before us, the impugned order cannot be sustained. The record reveals that the enquiry officer cross-examined Mohd. Hanif, applicant, PW-3 and even Sub-Inspector Amit Bikram from the CBI. The record does not reveal that the clarifications were being sought. It also does not reveal that further cross-examination in this regard was permitted.
5. It is thus contended that cross-examination of PW-7 by the enquiry officer and not permitting the Applicant to examine PW-7 further and introduction of PW-5, who was not in the list of witnesses, as a witness are grave violation of the rules which violates the principles of natural justice. Counsel would also cite the judgment of Honourable Punjab and Haryana High Court in Ramphal Vs. Government of Haryana and others, 1996 (6) SLR 801. In the aforesaid case also the disciplinary authority had come to the conclusion that the witness had been won over by the petitioner at the time when their statements were recorded during the currency of the enquiry. The Honourable Punjab and Haryana High Court observed thus:-
Assuming that the petitioner had won over the witnesses, the question still arises as to on what evidence the Punishing Authority came to the conclusion that the charges framed against the petitioner, subject-matter of enquiry against him stood proved. It was further observed that:
If the petitioner had actually won over witnesses, it might be subject-matter of second enquiry against him but insofar as the charges, subject matter of enquiry against the petitioner, are concerned, the same could be proved or disproved on the basis of evidence only.
6. The learned counsel for the Applicant would also contend that the enquiry officer has, in his discussion of the evidence, commented that the Applicant was guilty of lack of supervision. Reference has been made to the observation of the enquiry officer in paragraph in which the evidence has been discussed regarding the applicant and the other Head Constable that they cannot pull their hands for work done by the officers. It is pointed out that in the disciplinary authority in order dated 17.02.2001, while inflicting the punishment on the Applicant has observed that the ground for this is that he led subordinates for such undesirable activities. It is further contended that there are no allegations against the Applicant of taking money illegally from anyone.
7. It is strongly contended that the enquiry officer has absolutely no grounds to come to the conclusion that the witnesses had been won over by the charged officer. In this context, the observation of the enquiry officer that Gautam, driver of tempo has turned hostile due to reasons best known to him and it appears that he has been won over by the delinquent police officials. Hence his denial about anything carries no weight. Learned counsel would contend that this is in flagrant violation of the basic tenets of the principle of natural justice.
8. It is further contended that the Applicant had raised all the above grounds in his appeal to the appellate authority, yet these grounds were not considered in the order of the appellate authority. The order of the appellate authority is absolutely non-speaking. Even the disciplinary authority has not discussed the evidence at all in his order dated 17.02.2001. He would contend that in the fresh order also passed on 17.06.2003, pursuant to the directions of this Tribunal, there has been no discussion at all of the evidence.
9. Per contra, the Respondents have challenged the cause of the Applicant by filing the counter affidavit. The learned counsel defending the Respondents would contend that it was rightly the charge against the Applicant that he was collecting money illegally from commercial vehicles. She would further contend that conclusion of the enquiry officer that PW-7 has been won over is justified on the ground of inconsistencies in the statement of witnesses. She would contend that these inconsistencies show that the witness had been won over. Yet another argument of the counsel for Respondents is that since the order dated 17.02.2001 had been quashed and set aside, no reference could be made by the Applicant to this order and to state that the ground taken for punishment is not an allegation or the charge against the Applicant.
10. We may also mention that one of the grounds taken in the Application was that a preliminary enquiry was conducted in this case by the PRG team and a cognizable offence was found to have been committed by the Applicant, yet the permission of the Additional Commissioner of Police under sub-rule (2) of Rule 15 of the Delhi Police (Punishment and Appeal) Rules had not been taken and, therefore, the whole enquiry was vitiated. The matter has been referred by a Coordinate Bench of this Tribunal to the Full Bench, which by its order dated 24.04.2008 held that an enquiry by PRG cell of Delhi Police is not a preliminary enquiry.
11. We have given our thoughtful consideration to the rival contentions. It is undoubtedly true that PW-7, the tempo driver, has on the face of even illegal cross-examination by the enquiry officer has held that no person in the traffic staff demanded money from him. In the light of this statement only, it was not proper for the enquiry officer to come to the conclusion that the witnesses had been won over. We fail to see any inconsistencies in the statement of the witnesses as argued by the counsel for the Respondents on the basis of which she has contended that the fact of the witnesses being won over has been proved. This, according to us, is a fatal flaw in the enquiry. Further the observation of the disciplinary authority regarding lack of supervision by the Applicant, advertence to which has been made above, is also not a part of the charge or summary of allegations. We have no doubt that reference can be made to this order dated 17.02.2001 in spite of the fact that it was set aside in OA No. 2734/2002. The reason for this is that this order was set aside only on the technical ground that two punishments have been meted out to the Applicant. In the fresh order dated 17.06.2003 there is absolutely no discussion of any issue, simply stating that on the directions of this Tribunal the order had been modified. We are also convinced that it was wrong on the part of the enquiry officer to have introduced PW-5 who was not in the list of witnesses. This has certainly prejudiced the defence of the Applicant.
12. On the basis of above discussion we come to the conclusion that the order of the disciplinary authority dated 17.02.2001 and the modified order dated 17.06.2003 are not based on any evidence against the Applicant. The order of the appellate authority dated 19.09.2005 is a non-speaking order in which the contentions raised by the Applicant have not been considered. This order would fail on this ground. The aforesaid orders of punishment which have been impugned are hereby quashed and set aside. Since the matter is very old and pertains to the year 1999, we feel that no purpose would be served in directing the Respondents to conduct a fresh departmental proceeding against the Applicant. As a consequence of quashing and setting aside of the order of punishment, the Applicant would be eligible for all consequential benefits which would accrue to him under the Rules. In the facts and circumstances of this case, the Original Application is disposed of. There will be no order as to costs.
( DR. DHARAM PAUL SHARMA ) ( L.K. JOSHI ) Member (J) Vice Chairman (A) sd