Central Administrative Tribunal - Delhi
Si (Ministerial) Raghubir Singh vs Govt. Of Nct Delhi Through on 19 September, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No. 3697/2010 This the 19th day of September, 2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) SI (Ministerial) Raghubir Singh (D-110, PIS No.27740015) S/o Late Sh. Budha r/o D-377, Hardev Puri, Shahdara, Delhi-93. Applicant (By Advocate: Sh. Sourabh Ahuja) Versus 1. Govt. of NCT Delhi through Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 2. Special Commissioner of Police, Armed Police, Delhi Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 3. The Deputy Commissioner of Police, 7th Bn. DAP, Delhi Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 4. Special Commissioner of Police, Vigilance, Delhi, Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 5. Controller of Accounts, Principal Accounts Office, GNCTD of Delhi, A Block Vikas Bhawan, New Delhi. 6. Mr. Balaji Shrivastava The then DCP/East District Through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate: Mrs. P.K.Gupta) O R D E R
Honble Shri George Paracken:
At the relevant time, the applicant was working as Sub Inspector (Min.). He was the In-charge of Administration Branch (HAA) in the office of DCP/East District w.e.f. December 1998 to October 1999. The then DCP/East Mr. Balaji Shrivastava, who has been arrayed as respondent No.6 in this OA had ordered a preliminary enquiry vide his order No.15828-30 HAA/E dated 25.9.99 into the irregularities in printing of Delhi Police diaries for the police week in February 1999. According to the Annexure A-6 report in the preliminary enquiry dated 12.10.99, the HAA/E Branch officials including Inspector Tej Singh placed order with a particular supplier, namely, Narender Sharma and accepted his hand quotation for Rs.185/- per diary, which was in excess of the market rate. They also obtained two other hand quotations @ Rs.240/- and Rs.250/- per diary. According to the said report, the quotations appeared to be manipulated. While the market rate of such type of diaries was only Rs.34/- (approx.), Rs.185/- was approved which was on a much higher side and it was done so to give monetary advantage to the said Sh. Narender Sharma. Further, the report says that Sh. Narender Sharma fraudly and dishonestly submitted wrong quotations with mala fide intention to cheat the government agency, namely, the Delhi Police East District. The fake letter head with the address of M/s Neelam Art Press, 160, Hari Nagar Ashram, Mathura Road, Delhi was also found fake as there was no such address existing. Similarly, the other quotation of Blaze Art Press, 10/4998, Multani Dhanda, Paharganj was also found to be fake one as the said firm had stopped its business of printing four years ago and its proprietor was running his own business of aluminium fabrication with the name of Diwan Chand & Sons at Industrial Area, B-35/2, GTK Road, Delhi. The enquiry officer has, therefore, held that it was a prima facie case of offence under Section 409, 419, 420, 468, 471, 120B of UPC for impersonation, cheating, using of vague documents, pursuing it to be genuine and misappropriation of official documents with the connivance of official staff. Accordingly, he has recommended to register and investigate the case thoroughly to apprehend the culprits. The other finding in the report was that the allegation leveled by Narender Sharma that he had taken Rs.1,20,000/- from Sh. Balaji Srivastava DCP/E was false and baseless because he never met the DCP East personally and there were other irregularities committed by the official staff earlier also in the purchase of diaries for the Delhi Police week, 1999 with ulterior motive giving undue advantage to a particular supplier.
2. Thereafter, FIR No.248/99 was registered and a criminal case was also initiated against the accused. However, the case was filed as untraced with option to the prosecution to revive the same as and when it gets any clue about its address. The relevant part of the said order reads as under:-
As per the allegations some diaries were got printed to celebrate police week for distributing among respectable persons of the locality from the Dy. Commissioner of police office, East District. While giving the order proper procedure was not followed, even on the quotation obtained from the suppliers the address mentioned were found fake. Permission was sought from the Sr. Officials for prosecution but it was turned down. The department enquiry against the erring police officials were initiated. During investigation it was found that some supply had been taken from the person whom the supply order was given. There were other quotations given at the time of alleged supply. However this quotation could not be connected with any person nor any clue was found. Case was registered in the year 1999.
3. In the departmental proceedings initiated against the applicant and ASI (Ministerial) Paras Nath, the following summary of allegations have been made:
It is alleged that solemnization of the Delhi Police Week-1999 various events were mooted in East Distt Delhi which includes distribution of police diaries to the prominent citizens and many other VIPs the HAA East branch (Office) was given the responsibilities to process the case for purchase of commensurate number of diaries at competitive market rate. It however transpires that gross irregularities have been committed in favour of particular supplier namely Neelam Art Press, 160 Hari Nagar Ashram Mathura Road Delhi, who quoted price of Rs.185 per diary, ostensibly the lowest, far too exceeds the prevailing market price. One Narender Sharma S/o Sh. S.N.Sharma R/O unknown has been ordered to facilitate a particular supplier accepting his hand quotation i.e. Rs.185 per diary. They also obtained other hand quotation @240 per diary and Rs.250 per diary which also seems to be manipulated. In fact the market rate of such type of diaries is approximately Rs.34/- and the approved rate i.e. Rs.185 is much higher only to give monitory advantage to that particular supplier namely Narender Sharma. Narender Sharma fraudulently and dishonestly submit false quotation knowing fully well, having malafide intention to cheat the Govt. agency i.e. Delhi Police East Distt. On a fake letter head of M/s Neelam Arm Press which was never in existence at above address. Similarly other quotation of Blaze Art Press, 10/4998, Multani Dhanda, Pahar Ganj has been found fake because this firm has already been closed at least four years ago. Looking the quotation of Blaze Art Press dated 04.02.99 the owner himself told that the quotation is fake and forged. There is no doubt that several irregularities were committed by the office staff in the process of the case regarding purchase of diary for Delhi Police Week 1999 with ulterior motive to give undue advantages to a particular supplier Sh. Narender Sharma. On which a case FIR No.248/99 u/s 409/419/420/468/471/120B IPC has already been registered in PS Farsh Bazaar on 16.10.1999 for impersonation, cheating, using of fake documents presuming it to be genuine and misappropriated of official documents with the connivance of official staff of HAA East Distt. I/C HAA/East SI Raghuvir Singh D-110 remain failed to tell the date of returning the 14 split built to the supplier who also not mentioned this fact in the note sheet. ASI Paras Nath No.38/D was working as dealing hand at that time was also not known the fate of split bills that when were the bills returned to the supplier and his innocence about the issue can not be relied.
The above act of SI (Min) Raghubir Singh D-110 and ASI (Min) Paras Nath 38/D amounts to gross misconduct, carelessness and dereliction in the discharge of official duty. They are liable to be dealt departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules 1980.
4. According to the list of witnesses SI Mam Chand was to prove that M/s Neelam Art Press was not in existence. The I.O. of the case FIR 248/99 was to prove the present address of the accused Narender Sharma or witness in the departmental enquiry. Sh. HC Ramesh was to prove that ASI Parasnath was working on his seat while he was ill. Inspector Tej Singh Supervisory Officer, HAA East District was to prove that he had only sent the file but had no involvement in the matter. Sh. Inderjeet Arora running his business of aluminium fabrication at Industrial Area B-52/2 GTK Road with the name of Diwan Chand & Sons was to prove that he was formerly proprietor of Blaze Art Press at 10/4998 Multani Dhanda Pahar Ganj four years ago. Copy of the preliminary enquiry report prepared by Inspector Suresh Chandra was the document listed along with the summary of allegations.
5. During the enquiry proceedings the applicant has sought some further documents as they were relied upon in the preliminary enquiry report. The applicant, vide his letter dated 26.10.2009, wrote to the Dy. Commissioner of Police, 7th Bn. DAP Delhi stating that those documents were relevant in the matter but they were not supplied to him. He has, therefore, once again requested to provide those documents him to defend his case in the departmental enquiry proceedings and to submit his representation with regard to the findings of the enquiry officer. Again, vide his letter dated 28.10.2010 he requested for supply of aforesaid documents under the RTI Act.
6. According to the Annexure A-2 Enquiry Officers report dated 29.9.2009 the charge against the applicant as well as ASI Parasnath stood proved. The concluding para of the enquiry officers report is as under:
From the statement of PWs, DWs, Defence Statements of the delinquents and documents relied upon in this case it is concluded that the case for the printing of 1200 diaries was submitted by the then HAA/East delinquent SI Raghubir Singh on the verbal directions receive from the then DCP/East. He conveyed the directions to HC Rameshwar Dayal who was although on Medical Rest but attending the office from time to time. HC Rameshwar Dayal was the dealing hand of the seat and well versed about the procedure and instructions on the subject. As per statement of HAA SI Raghubir Singh the H.C himself obtained the quotations from the concerned firms and prepared the note sheet which was signed by ASI Paras Nath as he was looking after the seat of HC Rameshwar Dayal for the specific period as the HC was on medical leave. The case was well in the knowledge of the then DCP/East and time to time progress was discussed by Inspr./Admn. and HAA SI Raghubir Singh in their statements have stated that they were compelled to comply the directions/instruction passed by DCP/East but it is also clear that at any occasion they have not brought the matter in the knowledge of seniors officers i.e Jt. C.P./NDR., even if they know that official purchases in the absence of fellows prescribed official procedure formalities was not in the ambit of the lawful direction of senior officer which they were supposed to follow. SI Raghubir Singh, HAA was responsible for overall administration of the Admn. Branch has further stated that he has no knowledge about the quotations obtained by HC Rameshwar Dayal, who kept the same in his custody. This plea of the delinquent SI is not tenable in view of the level of proficiency & knowledge of law expected from an official of Ministerial Cadre which such a long service of over three decades. Beside, how the HC was allowed to attend the office frequently during the course of his medical leave is also not explained in defence statement of any of defaulter. None of the instructions/rules have been followed by the HAA and he failed to supervise the subordinate staff. The reasons as mentioned by him in his defence statement that he followed the directions of the DCP/East is not convincing as he has to obtain such directions in writing in accordance with provisions under Rule 3 of Conduct Rules, 1965. Being the ministerial cadre he has more responsibilities to ensure that the instructions/rules should be followed meticulously. Hence the charge against SI Raghubir Singh, No. D-110 is proved beyond any shadow of doubt. As regard charge against ASI Paras Nath is concerned it is amply clear that he was not posted on the seat dealing with the purchase of the diaries etc. and it has also come on record the HC Rameshwar Dayal was permanently posted on that seat but this is also a fact that on the fateful day when the file relating to purchase and quotation were put up before DCP/East, he was the dealing hand and his signatures are on file. He cannot, therefore, simply wash off his hands and absolve himself of his responsibility to scrutinize the proposal in light of rules for such purchases and put up his signatures if and only if the formalities were strictly in accordance with the rules. The question of whether he did this mistake inadvertently or intentionally cannot be concluded in the absence of examination of HC Rameshwar Dayal, whose work delinquent ASI Paras Nath was looking after, as the HC has already passed away. In view of the above discussion charge against SI Raghubir Singh is fully proved and that against ASI Paras Nath stands part proved.
7. Thereafter the disciplinary authority, vide its Annexure A-3 order dated 3.12.2009, held that the charge against ASI Parasnath was partly proved as he was not on the particular seat and he was looking after the work of another officer. He was, therefore, imposed with the punishment of censure. However, in the case of the applicant the disciplinary authority imposed the punishment of one years approved service temporarily entailing proposed reduction in his pay. The statutory appeal filed against the aforesaid order was considered by the appellate authority but the same was rejected vide Annexure A-4 order dated 27.4.2010 holding that there was procedural lapse on the part of the applicant and it was noticed during the preliminary enquiry.
8. The applicant has challenged the aforesaid orders in the disciplinary proceedings on the ground that neither there was any misconduct on his part nor any evidence of misconduct against him. Further, he has submitted that the allegation made against him was absolutely false and he has been made a scape goat in the entire matter. According to him the main accused Sh. Narender Sharma gave a complaint against respondent No.6, namely, Sh. Balaji Srivastava, ACP in East District stating that he had supplied 1200 diaries on 17.2.1999 on his verbal orders and a bill for Rs.2,22,000/- was raised and out of the said amount, DCP/East District has paid him only Rs.1,20,000/- from his own sources in three installments but the balance amounts of Rs.1,02,000/- was not paid to him. The then Commissioner of Police has, therefore, made an observation that DCP/East will ensure to pay the pending amount from his own sources and submit a compliance report. As a result, the DCP/East got infuriated with Narender Sharma and directed the Inspector (Vigilance) to conduct preliminary enquiry. On the basis of the report of the preliminary enquiry dated 12.10.99 and on the basis of the directions of the DCP/East a criminal case was lodged and FIR was registered u/s 409/419/420/468/471/120-B, PS Farsh Bazar, Delhi, dated 16.10.99 was registered.
9. The applicant has challenged the impugned Annexure A-1 order dated 20.12.2007 initiating the departmental enquiry against him on several grounds. The first ground of his challenge was the enquiry proceedings were initiated against him after a delay of more than 8 years from the date of occurrence of the alleged misconduct and the respondents have not given any reasons whatsoever for the said undue delay. Again, according to him, the delay has caused him great prejudice as he was not able to defend his case effectively after passage of time of more than 8 years. In this regard, he has relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh v. Bani Singh & another, 1990 Supp SCC 738, State of A.P. Vs. N.Radhakishnan, (1998) 4 SCC 154, P.V. Mahadevan v. MD. T N Housing Board, 2005 SCC (L&S) 861 and M.V.Bijlani Vs. Union of India, (2006) 5 SCC 88. In the said decisions, the Apex Court has held as under:-
(i) State of M.P. v. Bani Singh, 1990 (Supp) SCC 738, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.
(ii) P.V. Mahadevan v. MD, T.N. Housing Board,(2005) 6 SCC 636 There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings.
(iii) State of A.P. v. N. Radhakishan, (1998) 4 SCC 154 19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
(iv) M.V. Bijlani v. Union of India, (2006) 5 SCC 88, The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
10. Another ground taken by the applicant is that respondent No.6 Sh. Balaji Srivastava, the then ACP, East District was the material witness in the case but the disciplinary authority has not included him in the list of witnesses. Similarly, the Additional DCP, East District, Mr. Mukesh Meena and the complainant Narender Sharma were also material witnesses but they have not been examined in the departmental enquiry. It is a settled law if the material witnesses are not heard, the whole enquiry is vitiated. In this regard he has relied upon the judgment of Hardwari Lal Vs. State of U.P. & Ors., (1999) 8 SCC 582, wherein it has been held as under:
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
11. He has also argued that the author of the preliminary enquiry himself has not been produced as a witnesses but the report submitted by him was a listed document. According to him the mere production of document is not enough and the same has to be proved during the departmental enquiry. In this regard, he has relied upon judgment of Apex Court in Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570, wherein it has been held as under:
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
12. The respondents have filed their reply. They have submitted that the delay occurred in initiating departmental enquiry has not caused any prejudice to the applicant. According to them, the applicant was involved in a criminal case for a long period and he had sufficient knowledge about the case. He was given due opportunity to defend his case in the departmental proceedings as per provisions of Delhi Police (Punishment & Appeal) Rules. It was after the due consideration of the findings, disciplinary authority had imposed him the punishment. Further they have stated that some material witnesses, i.e., Suresh Chandra/Vigilance Branch and the supplier Narender Sharma were not cited as PWs in the departmental proceedings and the applicant did not get the opportunity to cross-examine them. However, during the preliminary enquiry, their submissions were recorded and it was part of the list of documents supplied to the applicant. They have also submitted that the applicant has committed a lapse and, therefore, he has been suitably punished.
13. We have heard the learned counsel for the parties. We have also perused the entire documents available on record. First of all, it is seen that the alleged misconduct on the part of the staff of the Administrative Branch including the applicant relates to the year 1999. In the same year itself a criminal case was lodged against them vide FIR No.248/1999 u/s 409/419/420/468/471/120-B. The said criminal case was found untraced by the Court of ACMM after 9 years on 27.5.2008 as the respondents failed to produce the accused. It is further seen that the respondents have initiated the departmental proceedings against the applicant and another co-delinquent on 1.1.2008 i.e. few months before the closure of the criminal case. As held by the Apex Court in Bani Singhs case (supra), P.V.Mahadevans case (supra), N.Radhakrishnans case (supra), M.V.Bijlanis case (supra) etc., there are no explanation on the side of the respondents regarding the inordinate delay in initiating the departmental proceedings against the applicant. As the delay has not been unexplained, the prejudice caused to the applicant is writ large on the face of it. Another important aspect of this case is that there was a preliminary enquiry report in this case. The allegation was that the Administration Branch of the respondent DCP, East District has favoured one Narender Sharma of M/s. Neelam Art Press. According to the report Sh. Narender Sharma gave in writing to PHQs that out of Rs.2,20,000/- he received Rs.1,20,000/- from Sh. Balaji Srivasvava, the respondent No.6 who was the then DCP/E and the remaining amount of Rs.1,02,000/- was to be given to him. The statement of HAA/E was that he was not aware of the aforesaid transaction and whatever he did was as per the orders of the DCP/East. The conclusion in the preliminary enquiry was that the allegation against Sh. Balaji Srivastava was false. Even though both Sh. Balaji Srivastava and Sh. Narender Sharma were material witnesses in the case, they have not been included in the list of prosecution witnesses and they have not been examined in the departmental proceedings. As per the principle laid down by the Apex Court in Hardwari Lal (supra), the examination of those two persons was quite essential in the departmental proceedings and their non-examination has prejudiced the applicants case. Further Sh. Suresh Chander Sharma, Inspector of Vigilance, East District was the person who conducted the preliminary enquiry. His report was the only document relied upon by the prosecution and included in the List of Documents. However, he was also not included in the list of witnesses supplied to the applicant. As held by the Apex Court in Roop Lal Negis case (supra) mere tendering of the evidence does not prove the charge but it has to be proved by examination/cross-examination of the witnesses. In our considered view the applicant was the proverbial scape goat in the entire case.
14. For the aforesaid reasons, we allow this OA and quash and set aside the enquiry report. Resultantly, the impugned orders of the Disciplinary Authority and the Appellate Authority cannot be sustained and they are also quashed and set aside. Accordingly, the OA is allowed. No costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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