Central Administrative Tribunal - Delhi
Const. Braham Pal S/O Shyam Singh vs Commissioner Of Police on 20 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1693 of 2011 This the 20th day of January, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. (MRS.) VEENA CHHOTRAY, MEMBER (A) Const. Braham Pal S/o Shyam Singh, R/o Village Chaproli Road, P.O. Baraut, P.S. Braut, Distt. Meerut (now Baghpat) UP. Applicant ( By Shri Sachin Chauhan, Advocate ) Versus 1. Commissioner of Police, Police Headquarters, MSO Building, IP Estate, New Dehi. 2. Spl. Commissioner of Police, Armed Police, Delhi, through Commissioner of Police, IP Estate, New Delhi. 3. Deputy Commissioner of Police, 1st Bn., DAP, Delhi through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents ( By Ms. Rashmi Chopra, Advocate ) O R D E R Justice V. K. Bali, Chairman:
In view of the limited controversy raised in the present Original Application, there may not be any need to give facts in all their minute details. Suffice it may, however, to mention that the applicant, sequel to a departmental enquiry held against him, was inflicted the punishment of forfeiture of two years service temporarily, entailing reduction in his pay from Rs.6930/- + Rs.2000/- Grade Pay to Rs.6400/- + Rs.2000/- Grade Pay with immediate effect, vide order dated 13.04.2010. In the appeal preferred by the applicant, while calling upon him to show cause as to why the punishment, as mentioned above, be not enhanced, he has been dismissed from service by the appellate authority, vide order dated 02.02.2011. These are the orders which have been challenged by the applicant in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The allegations against the applicant and his co-delinquent, Const. Ranbir Singh, subject matter of enquiry were that on 09.07.1998 at about 1.00 p.m. the staff of East District was conducting bus checking at bus stand, road number 56, near Maharajpur police check post in the area of PS Anand Vihar, as incidents of pick-pocketing were on increase in the buses approaching ISBT Anand Vihar. They stopped one private bus coming from Ghaziabad. At that time 8-10 persons got down from the bus but having seen police presence, again boarded the bus. On suspicion, the police party tried to stop them for verification, but the applicant, at that time posted in Darya Ganj, Cental District, along with Const. Ranbir Singh and Ex. Const. Satender, criminally assaulted the police party and caused obstruction in discharge of their lawful duties, due to which the suspicious persons ran away from the rear gate of the bus. On the basis of the above facts and circumstances, case FIR No.174 dated 09.07.1998 u/s 186/353/332/504/212/34 IPC was registered against them and their accomplice Girish Kumar. The applicant, because of his involvement in the criminal case aforesaid was dismissed from service under provisions of Article 311(2)(b) of the Constitution of India, vide order dated 24.08.1998, which order was set aside by the appellate authority vide order dated 23.11.1998, with direction to proceed departmentally against the applicant. The applicant was held guilty of the criminal charge, and vide order dated 04/06.10.2004 passed by the concerned criminal court, was sentenced to undergo RI for one month under section 186 IPC, and RI for one month under section 341 IPC and a fine of Rs.100/- u/s 504 IPC. On appeal, however, while maintaining the order of conviction, the applicant was released on probation of good conduct on furnishing of PB and SB in the sum of Rs.10000/- for a period of one year. The departmental enquiry that was kept in abeyance, awaiting decision of the criminal case, was started and in the said enquiry as well, the delinquency of the applicant has been proved.
3. When this matter came up for hearing before us on 03.01.2012, we wanted to know as to what was the fate of the co-delinquent of the applicant, Const. Ranbir Singh. We recorded the following order on the said date:
Mr. Chauhan, counsel representing the applicant, contends that the allegations as against the applicant Braham Pal were the same as against Constable Ranbir Singh. Applicant was inflicted punishment of forfeiture of two years service by disciplinary authority which has since been enhanced to dismissal from service by the appellate authority. It is further contended that the disciplinary authority has concluded the proceedings against Constable Ranbir Singh and inflicted upon him punishment of two years forfeiture of service, and that being so, a different treatment cannot be meted out to the applicant.
Ms. Rashmi Chopra, counsel defending the respondents, would seek adjournment to verify as to the outcome of the disciplinary enquiry against Constable Ranbir Singh.
List the matter again on 17.01.2012.
4. Shri Sachin Chauhan, learned counsel representing the applicant, has only raised two-fold submissions. It is first urged by him that it is on the appeal preferred by the applicant that the punishment inflicted upon him has been enhanced from forfeiture of two years service temporarily to that of dismissal from service, and that even though notice of enhancement of punishment, as required under the rules, was given to the applicant, but the appellate authority while issuing such notice had already made up its mind to inflict the punishment of dismissal from service. We may refer to the relevant part of the show cause notice to appreciate the contention of the learned counsel. The same reads, thus, The punishment awarded by the disciplinary authority is not commensurate with the gravity of misconduct committed by the appellant. The disciplinary authority was required to award exemplary punishment since charge was proved beyond doubt. Therefore, in exercise of powers conferred with me under rule 25(d) of Delhi Police (Punishment & Appeal) Rules, 1980 you, Const. Brahampal, No.4996/DAP are hereby called upon to show cause as to why the punishment under appeal may not be enhanced and dismiss him from service. We are in agreement with the contention raised by the learned counsel representing the applicant that a final view as regards the punishment of dismissal from service could not be taken in the show cause notice. Such a view, if at all, could have been taken after hearing the applicant. The view to dismiss the applicant from service, could, at the most, be tentative, but what appears is that whatever be the reply of the applicant, the appellate authority had already taken a decision that commensurate to the gravity of the misconduct committed by the applicant, the only punishment that could be inflicted upon him was of dismissal from service. This is against law, as a decision could not be taken without hearing the applicant, as hearing the applicant in that event would be an exercise in futility, and the rights given to him to make out a case for lesser punishment would stand forfeited. There would be no need to cite case law on the issue, as it is too well settled a proposition of law, and could not be seriously disputed during the course of arguments. We may, however, refer to one decision of the Tribunal in OA No.1266/2004 in the matter of Const. Raj Kumar v Government of NCT of Delhi & others, decided on 26.07.2006, wherein it has been so held.
5. As regards the second contention of the learned counsel representing the applicant, the facts are rather peculiar. The contention is that whereas, the applicant has been visited with the penalty of dismissal from service, his co-delinquent Const. Ranbir Singh, who had exactly the same role to play as that of the applicant, has been inflicted the punishment of forfeiture of two years service temporarily for a period of two years, and that too thinking as if the applicant had been visited with such a penalty only. Present, it appears, was not a case of joint departmental enquiry, even though trial before the criminal court was joint. A copy of the order dated 17.11.2011 passed in the case of Const. Ranbir Singh, pursuant to our order dated 03.01.2012, has been produced, which we order to be placed on record. The order aforesaid would manifest exactly the same facts and circumstances. All the allegations against the applicant and his co-delinquent Ranbir Singh were exactly the same. Ranbir Singh too was tried and punished by the trial and appellate courts similarly as the applicant was. It appears to us that the punishment cannot be different to two delinquents having exactly the same role to play. Further, the disciplinary authority in the case of Ranbir Singh, it appears, would not know that the punishment to the applicant had been enhanced in the appeal preferred by him. One of the reasons given for inflicting punishment of forfeiture of two years service upon Ranbir Singh is that the applicant too had been visited with the same punishment, which is not true. It is for this reason that we are mentioning that the authority would not know that the punishment inflicted upon the applicant had been enhanced. It is true, as argued by Ms. Rashmi Chopra, learned counsel representing the respondents, and as has been held by the Honble Supreme Court in Balbir Chand v Food Corporation of India & others [(1997) 3 SCC 371], that merely because one of the officers was wrongly given lesser punishment compared to others against whom there is a proved misconduct, it cannot be held that they too should also be given the lesser punishment lest the same mistaken view would be repeated. In the judgment aforesaid, however, it has also been mentioned that It may be open to the appropriate higher authority to look into the matter and take appropriate decision according to law. This Tribunal thus may not interfere as regards the quantum of punishment on the ground of discrimination at this stage, but surely, the concerned authority can look into the matter. That is why we have said at the very outset while dealing with this point that a peculiar situation arises in this case.
6. There were earlier in point of time suo moto powers with the appellate authority to call upon records and, if found appropriate, to enhance the punishment, but provisions as regards such powers, we are informed during the course of arguments, have been struck down. If, therefore, Const. Ranbir Singh may not file any appeal, there would be no occasion for the respondents to enhance the punishment inflicted upon him. What would thus emerge is that whereas one of the delinquents would have far lesser punishment, the other would have the maximum punishment which can be possibly inflicted. That being so, we would direct the appellate authority to look into the matter, as diametrically different punishments to two delinquents equally situate would not seem to be proper. This would also show the inefficiency on the part of the respondents, inasmuch as the disciplinary authority deciding the case of Const. Ranbir Singh would not even know that the punishment inflicted upon the applicant has been enhanced in appeal preferred by him. On the first issue as referred to above, the matter has to be remitted and the appellate authority may proceed from the stage of show cause notice to the applicant for enhancement of punishment, if thought appropriate, and take the proceedings to their logical ends in accordance with law. While doing so, as we have already mentioned above, the said authority will examine the aspect of the case as to whether would it be appropriate to inflict two different punishments upon co-delinquents who played an equal role.
7. With the observations and directions as made hereinabove, this Original Application stands disposed of, leaving, however, the parties to bear their own costs.
( Dr. Veena Chhotray ) ( V. K. Bali )
Member (A) Chairman
/as/