Central Administrative Tribunal - Delhi
Asi Rambir Singh vs Govt. Of Nct Of Delhi on 7 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 3261/2009
MA No. 2259/2009
New Delhi, this the 7th day of May, 2010
HONBLE SH. L.K.JOSHI, VICE CHAIRMAN (A)
HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J)
1. ASI Rambir Singh,
( PIS No. 28770380)
R/O VPO Purmati,
Distt. Muzafarnagar, UP.
2. Constable Prem Pal
(PIS No. 28980430)
R/O House No. 11/114,
Radha Nagar,
Distt. Bulandshahar, UP .. .. Applicants
(By Advocate Shri Anil Singal )
Versus
1. Govt. of NCT of Delhi,
Through Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
2. Addl. Commissioner of Police,
Traffic, Police Head Quarter,
I.P. Estate, New Delhi.
3. Dy. Commissioner of Police,
Traffic (NR) Police Head Quarter,
I.P. Estate, New Delhi. Respondents
( By Advocate Ms. Lata Gangwani for Shri H.K.Gangwani )
ORDER
Mr. L.K.Joshi, Vice Chairman (A) The Applicant is challenging the order dated 3.10.2008 of the disciplinary authority forfeiting one years approved service of the Applicant and the appellate authoritys order dated 6.08.2009, rejecting the statutory appeal of the Applicant against the order of the disciplinary authority.
2. The following summary of allegations was served on the Applicant in the joint departmental inquiry:
It is alleged that while on Night G.O. duty Sh.Manoj Kumar Lall, DCP, New Delhi Distt. checked the Ghazi Pur Border Traffic Picket in Kalyan Puri Traffic Circle on the intervening night of 14/15-03-2003 at 03.50 Hrs. where ZO/ASI Rambir Singh No. 2223/T, Const. Prem Pal No. 2922/T and Const. Kuldeep No. 3558/T were found on border traffic checking duty. They were checking vehicles particularly trucks coming from Ghaziabad entering into Delhi to ensure that only the destinated vehicles are allowed to enter Delhi. At the time of checking the traffic staff was found collecting money from truck drivers without giving them any receipt. During checking the side dickey of Motorcycle No. DL-ISM-4143 was checked, it was found filled with currency of 10, 20, 50 & 100 rupees denominations. Immediately Sh. Tulsi Ram, ACP/CAW Cell/East Distt. was called at the spot through wireless message to check the side dickey of the motorcycle and to carry out further formality of seizure as the amount found was illegally collected by ZO/ASI Rambir Singh No. 2223/T, Const. Prem Pal No. 2922/T and Const. Kuldeep No. 3558/T from truck drivers. On inquiry the above mentioned traffic staff did not give any satisfactory reply about the recovered money. The recovered money was taken into custody vide seizure memo in the presence of DCP/New Delhi Distt., HC Nirmal Singh No. 600/Commn. and Const. Sunil Kumar No. 1740/DAP. The amount was handed over to ACP/CAW Cell who sealed the seized money in an envelop with a seal of U.V.S. and deposited the same in the Malkhana of PS Kalyan Puri by ACP/CAW Cell/East Distt,. A.D.D. No. 4A dated 15-03-2003 was also lodged in PS Kalyan Puri by ACP/CAW Cell/East Distt.
ZO/ASI Rambir Singh, No. 2223/T instead of restraining his subordinates from indulging in illegal activities, he himself was found actively involved in the malpractice along with Const. Prem Pal No. 2922/T and Const. Kuldeep No. 3258/T for collection of illegal entry money from the commercial vehicles.
The above act on the part of ASI Rambir Singh No. 2223/T (PIS No. 28770380), Const. Prem Pal No. 2922/T (PIS No. 28980430) and Const. Kuldeep No. 3258/T (PIS No. 28982100) amounts to gross misconduct, malafide, negligence and dereliction in the discharge of their official duties which render them liable to be dealt with departmentally under the provision of the Delhi Police (Punishment & Appeal) Rules, 1980.
An inquiry was held and the inquiring officer held thus in his findings dated 11.08.2003:
To sum up the entire discussion:
1.There is no evidence that the money recovered from the dickey of the motorcycle is the money extorted from the drivers of the trucks.
2.None of the witnesses have seen the defaulters accepting the money from the drivers.
3.None of the witnesses have seen the defaulters handling the dickey of the motorcycle in question or putting the money therein.
4.No driver/witness have stated that any bribe money was paid to the defaulters on the night of checking.
5.There is no evidence to link the defaulters with the motorcycle in question that they used the motorcycle on the day of the checking/recovery or even prior to that.
6.There is no evidence that the owner of the motorcycle is relative/friend/acquaintance of any of the defaulter. PW-2 has stated that one traffic constable had told that it was his private motorcycle. He further told that could not identify the constable who had told this fact. PW-1 has stated something else. He stated that it was not in their knowledge or of the DCP as to who was the regd. owner of the motorcycle, who was riding it on that day and who had parked it there. In other words he did not state that it belonged to one of the defaulter constable. On this issue PW-6 has stated that the money was recovered from the dickey of the motorcycle which belonged to one of the constable or his relative. He further stated that he could not definitely identify the constable who told this.
7.No written statement/explanation of the defaulters were recorded immediately after the checking as to the ownership of the motorcycle or as to recovery of the money. PW-1 has stated that only questioning was done, no statement was recorded. PW-2 during cross examination has stated that the traffic staff did not give any satisfactory reply about the recovered money. PW-6 gave a different version. He told that the defaulters were admitting their quilt and requesting for pardon. But he admitted that he had not mentioned this fact in the D.D.entry lodged in this regard. Had any written statement of the defaulters would have been recorded at that time, it would have gone a long way in deciding the crucial issues in the present D.E. I would like to mention that I am not oblivious to the novel methods being adopted by the corrupt govt. officials to avoid being caught red handed or with the tainted money, but at the same time it is incumbent upon the senior/supervisory officers to adopt one step ahead techniques to caught the corrupt govt. officials by taking all precautions.
For the above detailed reasons, giving the benefit of doubt to the defaulters, I am of the view that the charge against them is not proved.
However, the disciplinary authority recorded his note of disagreement and after due procedure, imposed the penalty of forfeiture of three years approved service permanently. The period of suspension was not treated as period spent on duty. The statutory appeal was rejected. The Applicant herein, thereafter approached this Tribunal through OA number 1604/2005, challenging the order of punishment. The Tribunal in its order dated 23.01.2007 observed thus:
14. We find force in this argument of the counsel for applicants. It is correct that crumpled money was recovered from the dickey of a motorcycle, which was parked near the applicants and it has come on record that lock of dickey was broken. In case the statement of DW1 Shri Dinesh Kumar Tomar is taken into consideration, he had stated that he had put money in the dickey and had locked it but next morning when the said dickey was open and lock was not broken. Any prudent person would say that dickey could have been opened without breaking the lock only if keys were with others so on circumstantial evidence one could say since applicants were standing there and dickey was opened without the lock being broken, the applicants might have used it for putting the money in dickey but the other point is whether applicants could have been punished merely on assumptions and surmises and conjectures. After all, if Dy. Commissioner of Police Shri Manoj Kumar Lall had seen these persons collecting the money from truck drivers without giving any receipt and putting it in the dickey of public motorcycle, he should have been produced in the enquiry because he is the only person, who is stated to have seen these applicants collecting the money from truck drivers and putting it in dickey of motorcycle.
15. His presence at the scene and surprise check is fully proved from the statement of PW1 HC Nirmal Singh, who has clearly stated that he along with Dy. Commissioner of Police Shri Manoj Kumar Lall had gone for night G.Os checking duty on 14/15 March, the ACP/CAW Cell East Distt. G.O. was also called on the spot and on search of black motorcycle standing adjoining the Govt. motor cycle, currency notes of 100/50/20/10 were found in good quantity, which were found to be Rs.6350/- in total. This statement is fully corroborated by the ACP PW6 as well. It is important to note that this witness also stated on cross examination that Dy. Commissioner of Police had told him that these currency notes were those, which the traffic staff was collecting from the trucks.
16. From above, it is clear that checking was indeed done by Shri Manoj Kumar Lall, Dy. Commissioner of Police, New Delhi and called the ACP also as money was found in the dickey of a motorcycle standing nearby but the only person who saw applicants collecting the money from truck drivers without giving receipts was the Dy. Commissioner of Police himself, therefore, it was necessary to produce him as a witness, so that he could have proved his report and told the entire story as seen by him. We had asked specific question to the counsel for respondents whether Dy. Commissioner of Police Shri Manoj Kumar Lall was available or not, to which no denial was made. If that was so, instead of calling his PA, Dy. Commissioner of Police Shri Manoj Kumar Lall should have been cited as a witness because he is a Senior Officer and is stated to have been everything himself. No mala fides are alleged against him so his statement would have proved the missing link as to how applicants can be connected with the money recovered from a public motorcycle. None of the PWs have stated they saw applicants putting money in the public motorcycle parked there. Since he was the only eye witness, he was the material witness but neither he was called in the inquiry nor applicants were given a chance to cross examine him. Thus reliance on his report vitiates the enquiry.
17. In view of above, the impugned orders are quashed and set aside. However, since these orders have been quashed due to technical flaw of not producing the material witness, liberty is given to the respondents to start the enquiry from the stage of calling the then Dy. Commissioner of Police Shri Manoj Kumar Lall as a witness after giving due notice and a chance to the applicants to cross examine him and then pass orders after following due process of law. Applicant may be placed under deemed suspension for the purpose of completing the enquiry. Intervening period shall be decided by the respondents after fresh orders are passed.
3. Following the direction of this Tribunal, the Dy. Commissioner of Police, Mr. Manoj Lall, was examined and cross-examined in the supplementary inquiry. The learned counsel for the Applicant has brought to our notice the questions number 4 and 9 and their reply by Mr. Manoj Lall, DCP:
Q.4 Can you explain traffic staff that traffic staff detailed checked the trucks coming from UP side and only no truck destination in Delhi was allowed otherwise returned back and this was basis of checking for the direction of Honble Supreme Court?
Ans. Police personal in uniform performed their duty for checking, without telling anyone he saw the activity of staff and felt that they were collecting money from truck Drivers and no receipt was given to them. Later on he reached the defaulters found money and reported the matter, there was no proportion between cash and challan receipt. Money was kept in the dickey in improper way and ASI Rambir Singh had no satisfactory reply so he called the area officer and directed him to act as per law. The money which was found in dickey and the concerned officer was deputed for action.
. . . .
Q.9 Did you mention in your report that which traffic personnel was keeping money in the Bullet M/Cycle dickey?
Ans. He had seen them receive money from two there truck drivers. Then he thought that they were making challaning and received money. On suspicion he asked ASI Rambir Singh and found the challans were not satisfactory. After it he reached the spot and found money kept in M/Cycle Dickey in haphazardly. As he told earlier that matter was found to be of illegal collection of money so he gave the information to senior officers of traffic Police and asked them to take appropriate action vide his office latter dated 17.03.03. Our attention has also been drawn to the statement of DW-1, Dinesh Kumar Tomar, who has claimed that he was the owner of the motorcycle, in the dicky of which the crumpled notes were found. The statement of the witness, as recorded in the supplementary report of the inquiry officer is reproduced below:
Stated that he was residing at the above address and was doing the business of Kabari. He was the owner of the motorcycle No. DL-1SM-4143 make bullet. On 14.3.03 in connection with his business he had gone to Lal Kuan, Ghaziabad for taking payment. After taking the payment at about 7.30 PM when he reached near Ghazipur Border his motorcycle got punctured. He parked his motorcycle at the border after bringing it into the notice of toll tax staff. He searched for the mechanic nearby but could not find it so he returned back to his residence at Chandni Chowk. In the dickey of the motorcycle Rs.6350/- were kept. Next day at about 9.30 AM when he reached near the motorcycle and found that money was not in the dickey. On the other side of the road where he parked his motorcycle, there was a booth of police. He enquired from them and it was told that during the night DCP/Manoj Lall had conducted the checking, and the amount in the dickey of motorcycle was taken as the money of the traffic staff and was deposited in the police station. Thereafter he went to Mayur Vihar Phase-II, Traffic office and enquired about his money and he was told that the money would not be retuned till the finalization of the case of the policemen. Thereafter he returned back to his house. He has produced the photocopy in proof of the ownership of the motorcycle. The police officers present here had come to him and asked him to give a statement. He was making this statement without any pressure, fear or greed.
No cross examination was done by the defaulters despite the opportunity given to them. On clarification by the E.O., the witness told that none of the present traffic police official was his relative or acquaintance. When he parked the motorcycle the dickey was locked. When he went next day the dickey of the motorcycle was opened, it was not broken. The defence statement of the defaulters, including the Applicant, is also recorded in the supplementary report, which reads thus:
In their defence they have taken following pleas:-
Sh. Manoj Kumar Lall, then DCP/New Delhi stated in his statement that he had watched the traffic staff from a distance of 30 mtrs. In this connection no prosecution witness had said that there was ample light to carefully watch and see the movement of traffic staff from the distance of 30 mtrs. No one stated in their statement that they had paid money to traffic staff.
Sh. Lall admitted that traffic staff was present for prosecution.
Prosecution had failed to co-relate with money kept in M/Cycle dickey was actually belonged to the traffic staff.
There was no specific reply of Mr. Lall that he has seen any one traffic personnel to receive money from truck driver and put it in M/Cycle dickey.
Defaulters stated that no truck driver was in picture to prove that there was a truck and defaulters had taken money from its driver for having allow it to enter Delhi without any valid reason. On the other way the M/cycle in which money was found was not linked. All these facts show the case of no evidence and establish the defaulters perform their official duty without any alleged activity. The learned counsel would vehemently contend that the discussion of evidence by the inquiry officer is totally illogical and based on conjectures and surmises. Advertence has been made to the following paragraph of the inquiry officers report:
Keeping in view the above discussion and deposition it was found that on the intervening night traffic staff namely ASI (now HC) Rambir Singh 340/T, Ct. Prem Pal No. 1781/T and Ct. Kuldeep No. 3481/T were detailed for duty at Gazipur Traffic Picket. Sh. Manoj Kumar Lall the then DCP/New Delhi being night GO checked the traffic picket Kalyanpuri Traffic Circle at about 3.50 hours where all traffic staff were found on border traffic checking. They checked the vehicles particularly trucks coming from Ghaziabad side and entering in Delhi. To ensure that only destined vehicles are allowed to enter Delhi but all were found collecting money from Truck drivers without giving them any receipt. They have parked one M/Cycle No. DL-1SM-4143 and kept the illegally collected money inside dickey of M/Cycle in the shape of Rs.10, 20, 50 and 100 denomination. On enquiring they illegal activity night GO Sh. M.K. Lall called the area ACP through wireless. On getting the information from night GO area ACP Sh. T.R. Mudgal visited the spot and with the direction of night GO he checked the M/Cycle and the same was taken into custody through seizure memo and deposited in PS Kalyanpuri Malkhana. On asking about the money there was no satisfactory reply from defaulters. Deposition of DW-1 that his M/Cycle got punctured and he parked near traffic staff booth with money is not substantiated. The defaulters produced a bogus defence witness who has no link with their act. It is surprising that a Kabadi will leave M/Cycle on the Road. Guilt of the defaulters is established in total. (emphasis added) Based on such illogical analysis, the inquiry officer has held the charge to be proved, contends the learned counsel. The arguments, disproving the analysis of the inquiry officer have been summarized in paragraph 4.3 and 4.4 (a) of the OA and the learned counsel has taken us through the pleadings. Paragraphs 4.3 and 4.4 (a) are reproduced below:
4.3 That on remand the respondents ordered Supplementary Enquiry and the new E.O. called D.C.P. Manoj Kumar Lall as PW and examined him but he also did not depose the following facts that were necessary to prove the charge, which are as under:-
That he had seen any applicant or both the applicants demanding/accepting bribe money from any Truck Driver.
That he had heard any applicant or both the applicants demanding/accepting bribe money from any Truck Driver.
That he had talked to any Truck Driver from whom he thought that the applicants asked bribe money.
That he had recorded the statement of any Truck Driver from whom he thought that the applicants asked bribe money.
That he had noted the truck number of any Truck Driver from whom he thought that the applicants asked bribe money.
That he had seen any applicant or both the applicants handling the dickey of Motor Cycle.
That he had made any efforts to note the truck number from whose Driver he thought that the applicants asked bribe money.
That he had made any efforts to stop the truck and tried to talk or record the statement of the truck Driver he thought that the applicants asked bribe money.
That he had made any efforts to send the raiding party in plain cloths so that the applicants could have been caught red-handed.
4.4 A) That he had checked the challan book of ASI Rambir and also the money found in his possession but no discrepancy was found. It is strenuously urged that the disciplinary authority has not considered the representation of the Applicant against the findings of the inquiry officer and has quite arbitrarily assumed that the motorcycle belonged to a relative of one of the delinquents. The appellate authority, it is contended, has not applied his mind to the issues and passed a non-speaking order. He would contend that there is not a scintilla of evidence against the Applicant.
4. The learned counsel for the Respondents, per contra, would contend that the departmental proceeding has been conducted following the prescribed procedure and the disciplinary authority was right to come to the conclusion of guilt on the basis of preponderance of probability.
5. We have given serious consideration to the arguments of both the parties and perused the record minutely.
6. From whichever angle we look at the allegations against the Applicant, these seem to be baseless. The reply of the DCP to question number 4, in the cross-examination, is intriguing in as much as he has stated that he felt that the delinquent officials, including the Applicant, were collecting money. No one has been specifically mentioned as demanding and accepting bribe. In a case where the charge is of acceptance of illegal gratification, it is necessary to prove that the illegal gratification was demanded and it was accepted. The DCP was standing at a distance of thirty metres. He could not have seen the transactions clearly. He has admitted that some drivers were challaned. He has only stated that the challans were not satisfactory. It is not clear what he meant by this. This is not a charge against the Applicant that the challans he made were not satisfactory. There is not a whisper about the Applicant having been specifically spotted as taking bribe. Neither any driver of any of the vehicles, who allegedly paid the illegal gratification was contacted for recording his statement nor even the number of any vehicle noted. The inquiry officer and the disciplinary authority have entirely on their ipse dixit held that the motorcycle belonged to some relative of one of the delinquents. This is entirely baseless. No reasons whatsoever have been advanced to dismiss the statement of DW-1 that the motorcycle belonged to him. It could surely have been possible for the authorities to ascertain the ownership of the motorcycle. What is more intriguing is that neither the DCP nor any other witness has seen the Applicant putting money in the dickey of the motorcycle. The disciplinary authoritys contention that there was no claimant for the motorcycle or the money recovered from it is belied by the statement of DW-1 as also the applications dated 28.06.2004 and 26.07.2004 of Dinesh Kumar, DW-1, addressed to the Commissioner of Police, requesting for returning his motorbike and Rs.6350/- recovered from its dickey. These applications have been placed at Annex A-10. The reply given to Dinesh Kumar, placed at page 76 of the paper book, is reproduced below:
Shri Dinesh Kumar S/O Shri Ramesh Chand Tomar, R/o H.No. 2255, Sarai Top Khana, Dr. H.C. Sen Road, Delhi-110006.
Subject: Regarding return of Rs.6,350/-.
Sir, With reference to your application addressed to the Joint C.P./Traffic, Delhi, on the subject cited above, I am directed to inform you that your request to return Rs. 6,350/- has been examined but the same could not be acceded to, as the tainted amount which was collected illegally was recovered from the traffic staff and your claim that amount belongs to you does not carry any connection.
Yours faithfully, Sd/-
ACP/HQ For Dy. Commissioner of Police, Traffic: Delhi How could the DCP, Mr. Manoj Lall, categorically state that the motorcycle belonged to some relative of the traffic staff, has not been questioned by the disciplinary authority in his order, but merely recorded as gospel truth. It almost seems that the inquiry officer and the disciplinary authority are falling over themselves to prove the guilt of the Applicant, only because an officer of DCP rank has made this allegation. We are convinced that the supplementary report of the inquiry officer and the order of the disciplinary authority are based merely on conjectures and surmises and there is no evidence whatsoever to prove the guilt of the Applicant.
7. The OA is, therefore, allowed on the basis of the above discussion. The impugned orders are quashed and set aside. The Applicant would be eligible for all consequential benefits, as if there was never any inquiry against him. The consequential benefits would be made available to the Applicant within two months of receipt of certified copy of this order. No costs.
( Dr. Dharam Paul Sharma ) ( L.K. Joshi ) Member (J) Vice Chairman (A) /dkm/