Central Administrative Tribunal - Delhi
Shri Niranjan Singh vs Government Of Nct Of Delhi Through on 14 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2092/2010 New Delhi, this the 14th day of September, 2011 CORAM: Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Niranjan Singh, Aged about 44 years, Constable (Exe) of Delhi Police, PIS No.28892568, S/o Shri Zile Singh, R/o Barrack No.2, PTS Malviya Nagar, New Delhi Applicant (By Advocate: Shri Anil Singal) Versus Government of NCT of Delhi Through 1. Commissioner of Police, PHQ, IP Estate, New Delhi 2. Spl. Comm. Of Police (Armed Police), PHQ, IP Estate, New Delhi 3. DCP (7th Bn: DAP), PTS Malviya Nagar, New Delhi Respondents (By Advocate: Shri B.N.P. Pathak) O R D E R
By Dr. Veena Chhotray:
The applicant, a Constable under the Delhi Police, has through this OA challenged the penalty of permanent forfeiture of two years approved service entailing proportionate reduction in pay and the suspension period w.e.f. 4.8.2008 to 14.5.2009 being treated as not spent on duty for all purposes.
By way of relief, the OA seeks quashing the findings of the Inquiry Officer dated 15.10.2009 (Annex A/1) and the orders of the Disciplinary Authority (DA) as well as the Appellate Authority (AA) respectively dated 3.12.2009 and 20.4.2010 (Annex A/2 & A/3). Additionally issuance of directions for restoring the applicant to his original service and pay with all consequential benefits including promotion / seniority and arrears of pay have been sought.
2. The learned counsels, Shri Anil Singal and Shri B.N.P. Pathak would argue the cases respectively on behalf of the applicant and the respondents.
3. A regular Departmental Inquiry had been initiated against the applicant vide the order dated 26.11.2008. This was on the allegations of being found under the influence of alcohol, and on being questioned, using filthy language to the seniors. The incident in question had pertained to 23.7.2008 when the applicant had been detailed for VVIP route arrangement duty.
After due examination by the Inquiry Officer (IO) in the Summary of Allegations, the following charges were prepared by the IO with the approval of the competent authority:-
I, Insp. Surender Singh No.D-1/978 E.O. charge you Const. Niranjan Singh No.5086/DAP that on 23.7.2008 a force of 1-4-12-60 proceeded to NDCR vide DD No.38 in connection with VVIP route arrangement. Out of the above force two platoons were handed over to SHO P.S. Mandir Marg for deployment on the route. At the time of deployment SI Bhoop Singh, Platoon Commander found you Ct. Niranjan Singh No.5086/DAP under the influence of liquor and out of sense. On questioning by SI Bhoop Singh you started abusing Senior Officers in very filthy language. SI Bhoop Singh informed his company Commander Insp. Kulwant Singh who also reached at the spot. Insp. Kulwant Singh found you Const. Niranjan Singh No.5086/DAP in bad drunken position and immediately took the arms and ammunition from you and handed over to SI Wazir Singh with the direction to deposit the same in Kot. You Const. Niranjan Singh No.5086/DAP were got medically examined at Dr. R.M.L. Hospital through SI Bhoop Singh. The Doctor examined you vide MLC No.9191/08 and found Smell of Alcohol positive. The blood sample was also preserved by the Doctor. The sample of blood along with the sample seal were deposited in FSL Sector 14, Rohini, Delhi through his report No.FSL 2008/C-2993/6566 dt. 24.10.2008 has affirmed on GC HS examination exhibit-1 was found to contain Ethyl alcohol 0.8/100 ml. of blood. You Const. Niranjan Singh No.5086/DAP committed serious misconduct by consuming alcohol on VVIP route arrangement duty and misbehaved with the senior officers and used abusive language against the senior officers. The misconduct on your part falls in the category of moral turpitude. The above act on your part is liable to be punished under the Delhi Police (Punishment and Appeal) Rules 1980. The delinquent had participated in the inquiry and was represented by a Defence Assistant. As per the IR, the charges were held as proved beyond any shadow of doubt. Agreeing with the findings of the IO, the DA vide its order dated 3.12.2009 (Annex A/2) imposed the aforesaid penalty. The penalty was upheld by the AAs order dated 20.4.2010 (Annex A/3) by which the appeal was rejected.
This has occasioned the present OA.
4. Before coming to the respective contentions, a broad glance at the inquiry report, the orders imposing the penalty and rejecting the appeal would be appropriate. Besides, it would also be apt to sum up the salient features of the law defining the scope of judicial review in the matter of disciplinary proceedings.
5. Inquiry Report:
5.1 Speaking of the inquiry report, it is pertinent to note at the outset that the initial IR had been referred back by the DA, considering the representation of the delinquent about the IO not granting him any opportunity to submit defence statement. Directions had been issued to the IO for considering the defence statement of the defaulter Constable and resubmit fresh findings. The present IR (Annex A/1) is subsequent to this exercise.
5.2 The inquiry report is a detailed one. In all 8 prosecution witnesses had been examined. All except one (PW-4 RML Medical Record Technician) were Police personnel. The key witnesses were PW-3 S.I. Bhoop Singh and PW-6 Insp. Kulwant Singh, the concerned Company Commander. They had been specifically mentioned in the charge. Besides, PW-7 SI Wazir Singh, who as per the charge had been given Arms and Ammunitions of the delinquent and had deposited the same in the Kothwali was also a material witness. The remaining four were supportive witnesses. PW-2 and PW-8 had produced the relevant records regarding the deployment of the applicant on the duty in question, and his posting orders. PW-1 had deposited sealed blood samples in FSL for chemical analysis and had also received the FSL report and remainders of the blood sample. PW-5 had produced the relevant records to support the DD entry. PW-4, the Medical Record Technician of the RML Hospital, had confirmed about the medical examination of the delinquent by one Dr. Sandeep.
5.3 All the three key witnesses in their depositions had corroborated the charges levelled against the applicant in no uncertain terms. The base facts of relevant posting, deployment on the assigned duty, deposition of arms and ammunition, confirmation of the medical examination in the RML, deposit of the blood sample and receipt of the FSL report had also been supported by depositions of the other prosecution witnesses. Some of them had been cross-examined on behalf of the defence; and in others, despite opportunity, the same had not been availed.
Besides, there were documentary evidences in support. PW-1/A was the sealed blood sample; PW-1/B was FSL report; PW-2/A was the Chitha deploying the delinquent Constable on duty; PW-6/A was the DD entry No.45/23.7.2008; PW-6/B was the report of the concerned Inspector Kulwant Singh (PW-6) about the occurrence and PW-6/C was the FSL report.
All the prosecution witnesses and the exhibits had gone to support the charges.
5.4 On behalf of the defence, there were four witnesses. DW-1 Const. Satender Kumar was working as Munshi in the concerned assignment. He had checked the staff going on duty. As per his deposition, the delinquent Constable had not been found under the influence of liquor. DW-2 was Const. Kavinder. He was distributing arms and ammunitions to the Police personnel on duty. It had been stated by him that no official including the delinquent Constable had consumed alcohol when they had come to Kothwali to get arms and ammunitions issued. DW-3 Dr. Gopal Bhagat was an MBBS doctor and a Private Medical Practioner. It had been deposed by him that the applicant had been under his treatment for chronic bronchitis and he had prescribed him medicines which on consumption can produce alcohol like smell and giddiness. DW-4 Const. Abhey Singh was on duty along with the applicant. He had stated that he had not seen the applicant in a drunken state. However, the latter was stated not to be feeling well and having remained only in the vehicle.
5.5 In his defence statement, the delinquent Constable had taken the stand about the charges being utterly false. He had mainly relied upon the version of the four DWs to prove his innocence. Besides, he had also challenged the statement of the key witness S.I. Bhoop Singh (PW-3) by comparing it with the statement of Abhey Singh (DW-4) and also the Private Medical Practioner (DW-3). Further he had also adverted to the statement of PW-7, S.I. Wazir Singh about not stating anything about him being under the influence of liquor.
5.6 In the Discussion on Evidence, the IO had considered the depositions of all the defence witnesses. However, they were not found tenable. As per the IO, the statements of Const. Satender Kumar (DW-1) and also Const. Kavinder (DW-2) could not be believed because the VIP arrangements were with the orders at once and neither of them could check all the staff minutely as they were in a hurry. Similarly, the statement of Dr. Gopal Bhagat (DW-3) was found not to have any weight because the CFSL result had shown the blood of the delinquent Constable containing Ethyl Alcohol 0.8 mg / 100 ml of blood. Similarly, the statement of Const. Abhey Singh (PW-4) was not found credible as he had not remained with the delinquent in the bus; this had been corroborated by the statement of PW-1 Head Const. Onkar Singh.
On the other hand, the statements of S.I. Bhoop Singh and Insp. Kulwant Singh had been found believable by the IO. These had negated the presence of Const. Abhey Singh at the site when the delinquent had misbehaved. The fact of the medical examination of the applicant and the CFSL report had also been considered by the IO. Besides, it was stated that in case the applicant had really been taking alcoholic preparations as medicines; as per the departmental circular dated 4.2.1997 he was required to take prior permission from the concerned authorities; which was not the case here.
On these grounds, the IO had arrived at the conclusion that from the evidence on record and the discussion in the report, the charge against the delinquent Constable stood proved beyond any shadow of doubt.
6. Order dated 3.12.2009 by the DA:
6.1 The DAs initial non-acceptance of the Inquiry Report and its re-reference to the I.O. for fresh findings after considering the defence statements has been mentioned above. On submission of the revised Inquiry Report, the final orders were passed after considering the written representations as well as giving oral hearing to the Charged Official. The main defence plea taken were i.e. (i) the charges being proved by the IO on his own presumption without assessing evidence on record; and giving reasons for disregarding the defence statement; (ii) the alibi of the applicant being under medical treatment for the ailment of chronic bronchitis. These, however, had not been found tenable by the DA. As regards the second plea, the following extracts from the DAs order are found relevant for reproduction here:-
.The plea putforth by the defaulter Const. has no force. If the defaulter Const. was prescribed medicines containing alcohol by the doctor due to chronic bronchitis, he should have either informed the Coy. Commander/Platoon Commander or obtained prior permission of the competent authority but he did not do so. Moreover, CFSL result showed that blood of the defaulter Const. contained Ethyl Alcohol 0.8 mg/100 ml. of blood. Further as per the statement of PWs, he also misbehaved and used filthy language. The DA had also been seized with the gravity of the charge. In the operative portion of the order, it was recorded, consumption of alcohol on VVIP route arrangement duty and misbehaving with his senior officers and using abusive language against the seniors is a serious misconduct committed by the defaulter Const. I am of the view that the defaulter does not deserve to be let off for his proved misconduct. Accordingly, the aforesaid penalty had been imposed.
7. The order dated 20.4.2010 passed by the Appellate Authority:
7.1 The AAs order clearly states the main pleas taken by the charged official in his appeal: (i) the DAs order being defective and non-speaking; (ii) the non-mention of the date of the occurrence in the punishment order. Further, the penalty being imposed on mere suspicion or conjecture; (iii) the twisting of the facts by the IO and findings being based on surmises; (iv) punishment being disproportionate; (v) non-provision of reasonable opportunity by IO for submission of defence statement; (vi) non-consideration of the depositions of DWs; (vii) non-examination of the doctor of RML Hospital and Officers of FSL to prove the MLC and FSL reports (viii) certain alleged discrepancies in the inquiry report; (ix) the plea of a clean service record and hence a request for setting aside the punishment.
Before passing the final order, an oral hearing had also been given to the appellant. A perusal of the AAs order reveals that each one of these contentions had been considered by the AA but had not been found acceptable. The reasons for the same were also recorded. The relevant extracts are as reproduced here under:
I have carefully gone through the appeal, impugned order dated 04.09.09 and all the relevant material on record. The punishment order is not defective, arbitrary and unfortunate in law being speaking one. The DE was initiated against him on the allegation that during the VVIP route arrangement on 23.07.2008 instead of 27.07.2008, he was found under the influence of alcohol. The appellant was medically examined at RML Hospital through SI Bhoop Singh, where doctor opined smell of alcohol as positive on his MLC. The EO has not twisted the facts as pleaded by the appellant. The enquiry officer conducted the DE proceedings within the ambit of rules and submitted his findings on the basis of evidence and documents available on record. His plea that the EO submitted his findings without waiting/considering his defence statement carries no weight as he had not submitted any defence statement. The EO submitted findings after considering the defence statement of the appellant and proved the charge levelled against him. His plea that medicines which were taken as per advise by the doctor will mix-up in the blood of the appellant do not carry any weight and is an after thought. The appellant was found under influence of alcohol while on duty and he was medically examined from RML Hospital where the doctor opined Alcohol Positive. The report of MLC and FSL report are also documentary evidence to prove the allegations against the appellant. If he had taken medicines as per advise of the doctor he should have informed his senior officers and got proper permission from competent authority. As regards the doctor who had examined the appellant and expert of the FSL were not cited as PWs, it was not necessary in view of provisions under Section 45 Indian Evidence Act, wherein the experts opinion is a valuable evidence itself. In view of the above, the opinions of the doctor in the MLC and FSL had been relied upon during the DE proceedings. The discrepancies pointed out by in the relied upon documents is baseless at this stage. If it was so the appellant should have brought the same into the notice of the competent authority earlier but he did not do. On these grounds, finding no reason to interfere with the orders of the DA, the appeal had been rejected.
8. While arguing the case the applicants learned counsel Shri Anil Singal would mainly refer to the grounds 5.14, 5.15 and 5.16 of the OA. 5.14 pertain to the depositions of the Defence Witnesses and make the averment of the failure on the part of the respondents to properly appreciate them. 5.15 emphasizes the aspect regarding the applicant having been under treatment for chronic bronchitis, a fact which had been confirmed by the concerned Medical Practioner during his testimony in the inquiry. 5.16 is regarding non-examination of the doctor of RML hospital and the officers of FSL to prove the MLC and the FSL reports during the DE proceedings which vitiated the inquiry.
This last point would be stretched to the utmost by the learned counsel, Shri Singal. The Rejoinder in para 5.5 would also seek to rebut the respondents stand in the matter and contend the same as making mockery of justice. Several judicial rulings would also be produced in support mainly on this very point.
9. In their detailed Counter Affidavit, the respondents have highlighted the re-referring of the matter by the DA to the IO for submitting fresh findings after considering the defence statement. The orders passed are stated to be by competent authorities after consideration of all materials on record, relevant rules and instructions on the subject, and the same not suffering from any illegality or infirmity. The charge against the applicant is reiterated to have been proved by the IO beyond any shadow of doubt after taking stock of all facts and circumstances of the case. The orders of the DA and the AA are stated to have been passed with due application of mind and the punishment awarded as commensurate with the misconduct of the applicant and consistent with natural justice.
10.1 As per the settled law, disciplinary proceeding and imposition of punishment are within the legitimate domain of administrative authorities and the scope of judicial review in such matter is not unfettered. In M.P. State Agro Industries Development Coprn Ltd vs Jahan Khan {(2008) 1 SCC (L&S) 9-10}, the Honble Apex Court had observed:
It is trite that the power of punishment to an employee is within the discretion of the employer and ordinarily the Courts do not interfere, unless it is found that either the inquiry proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of the reasonable opportunity to defend, etc. or the punishment is totally disproportionate to the proved misconduct of an employee. 10.2 It is also a settled proposition of law that while exercising jurisdiction under judicial review, the Courts and Tribunals cannot act as Appellate Authority; nor can they substitute their findings for those of administrative authorities {Akhilesh Kumar Singh Vs State of Jharkhand & Ors reported in (2008) 1 SCC 383}.
10.3 Basically while undertaking judicial review, the concern is to ensure fairness of decision making rather than the nature of the decision itself {B.C. Chaturvedi Vs Union of India & Ors : AIR 1996 SC 484}. This is linked up with the quasi-judicial character of such proceedings and the imperative need to ensure a fair opportunity for defence to the charged official. There also has been an emphasis to free the concept of natural justice from technical shackles.
10.4 In Noida Entrepreneurs Association Vs Noida & Ors (2007) 10 SCC 385, the Apex Court had observed that the standard of proof or applicability of Evidence Act stands excluded from disciplinary proceeding is a settled legal proposition. It had also been reiterated that the standard of proof in departmental proceedings is not the same as required to prove a criminal charge: in the former it is preponderance of probability while in the latter it is proof beyond reasonable doubt.
Elaborating the logical justification for the standard of proof being different, it had been distinguished by the Honble Apex Court that whereas crime is an act of commission in violation of law or omission of public duty, departmental inquiry is to maintain discipline in service and efficiency of public service.
10.5 As per the settled law, reappraisal of evidence is also not to be ordinarily resorted to in judicial review, unless the case is found to be patently perverse or of no evidence.
10.6 Defining the essence of judicial approach as objectivity and the need for some evidence in a fair, common sense way, the Honble Apex Court had observed the following dicta in State of Haryana Vs Rattan Singh {1997 SCC (L&S) 298} reiterated in the recent judgment in North West Karnataka Road Transport Corporation Vs H.H. Pujar {(2009) SCC (L&S) 251}:
The essence of a judicial approach is objectivity, exclusion of extraneous material or considerations and observance of rules of natural justice It was also observed:
The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair, common sense way as men of understanding and worldly wisdom will accept. Further it was held:
It is well settled that in a domestic inquiry the strict rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible.
11.1 Having carefully considered the facts of the case in details, this is not found to be a case justifying judicial intervention as per the broad principles of law defined by the Honble Apex Court in M.P. State Agro Industries Development Coprn Ltd vs Jahan Khan (supra). This is also not a case of No Evidence or Patent Perversity; hence reappraisal of evidence in judicial review is not called for. The charges had been proved during the inquiry by the key witnesses supported by the other witnesses as well as the exhibits. This is clearly borne out by the discussion of the Inquiry Report in para 5 above. Further it is found that there had been due consideration of defence submissions and the reasons for not finding the statements of defence witnesses as acceptable had been recorded. The orders of the Disciplinary Authority and the Appellate Authority are speaking and reasoned orders passed after due consideration of the main contentions of the charged official. This is evidently not a case where the C.O. had not been given opportunity for defence. The emphasis by the applicants learned counsel on non-production of the RML doctor or the FSL officers to prove the reports cannot be taken in isolation in view of the totality of the evidence produced during the inquiry in this case. As indicated above, such a course would be against the settled proposition of law about the strict laws of Evidence Act not being applicable in disciplinary proceedings. They would also run contrary to the Honble Apex Courts proposition of the type of evidence that is necessary to establish a case in a disciplinary proceeding (as per Rattan Singhs and H.H. Pujjars cases). The reliance placed on certain judicial rulings in this context would also not help the case of the applicant in any way, as a judgment is to be viewed in totality and not divorced from its context. Considering the gravity of the misconduct, the punishment awarded is also not found to be harsh or disproportionate.
Resultantly, the OA is found to be bereft of merit and dismissed hereby with no order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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