Central Administrative Tribunal - Delhi
Hc ( Dvr.) Laxmi Narain vs Govt. Of Nct Of Delhi on 19 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A 1817/2007 New Delhi this the 19th day of September, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N. D. Dayal, Member (A) HC ( Dvr.) Laxmi Narain, PIS No. 28901339, R/o VPO : Chawandiya, PS : Bassi, Distt : Jaipur, Rajasthan. Applicant ( By Advocate Shri Anil Singal ) VERSUS 1. Govt. of NCT of Delhi, Through Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 2. Addl. Commissioner of Police (PCR & Comn.), PHQ, I.P. Estate, New Delhi. 3. Dy. Commissioner of Police, (PCR), Police Headquarter, I.P. Estate, New Delhi. 4. Shri Ashok Goswami (EO), Then Inspector D.E.Cell, Through Commissioner of Police, PHQ, I.P. Estate, New Delhi. Respondents ( By Advocate Shri Ajesh Luthra proxy for Sh. Harvir Singh) O R D E R ( Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
Applicant, a Head Constable (Driver) of Delhi Police had been informed by the Deputy Commissioner of Police by Annexure A-1 on 13.12.2004 that an enquiry had been decided to be conducted against him with reference to some lapses, alleged to have taken place on 16.8.2004. It was based on the report of the Inspector under whom he was working on the relevant date the imputation being that he had misbehaved with him, and was party to certain other overt actions. Ashok Goswami, the enquiry officer through his report dated 28.4.2005 arrived at a conclusion that the charge against applicant is substantiated. It appears that the disciplinary authority required certain clarifications from the enquiry officer, and he on his turn by Annexure A-3 had replied as following:
That I have written in my Findings about Inspr. Laxmi Chand what the PWs 2, 3 & 5 have deposed during evidence. The HC defaulter Driver Laxmi Narain No. 3890/PCR was not supposed to react on this Inspectors utterances when the other options of appearing before senior officers was available to him. That is why I have duly proved the charge of arrogant and indisciplined acts against the defaulter. Also the charge of challenging the Inspector to get him suspended and behaved in a very indisciplined manner is proved against the HC driver.
That I have never absolved the defaulter HC Driver Laxmi Narain No.3890/PCR, from the charge of being indisciplined and arrorgant to his superior.
That the whole charge consisting of several parts is proved against the defaulter HC (driver).
Once again I reiterate my Findings and I specifically confirmed that the charge against the HC (Dvr.) Laxmi Narain No. 3890/PCR is proved.
2. The disciplinary authority tentatively agreed with the findings, and the applicant was directed to make representations about the findings on 29.7.2005. After recording the response, and after affording a hearing, by Annexure A-4 dated 29.9.2005, a penalty was imposed whereby one year of approved service of the applicant was to be forfeited, temporarily for one year. The suspension period was not to be treated as having been spent on duty.
3. Later the appellate authority held by Annexure A-5 that there is no substance in the appeal and there is no reason whatsoever to interfere with the order of disciplinary authority. OA has been filed in the above context.
4. Mr. Anil Singal, counsel appearing for the applicant has raised two contentions.
(1) That it was case where the applicant has been submitted to discrimination and secondary treatment in that the complaint filed by him against his superior had been shelved, and at the same time complaint made against him had been enquired into. He has thereby been put to great prejudice, which goes to the root of the issue.
(2) The findings of the enquiry officer was half hearted, against the trend of the evidence perverse, and unreliable. It could not have been acted upon.
5. On the first point Counsel submits that the discriminatory treatment has substantially prejudiced the cause of the applicant. According to him excerpts of findings amply showed that the enquiry officer was of opinion that the Inspector had acted as an aggressor. In other words, had he not misbehaved, no incident whatever would have occurred. There was no reason as to why in spite of the complaint made by the applicant, a protective shield was put around the Inspector. The circumstances were closely linked, and it found the other side of a coin. The disciplinary authority, therefore, could be considered as having no real interest to get the truth revealed, and the basic defect as above was sufficient to vitiate the whole proceedings. But guess work had been employed to demoralize the applicant.
6. On the second point, he had invited our attention to the deposition of the witnesses, and the discussions made by the enquiry officer which led to the conclusion arrived at, which has been relied on by the disciplinary authority. The conclusion was highlighted, which we may extract herein below I agree with the written Defence statement of the defaulter HC (Dvr.) that Inspector Lakshmi Chand has exaggerated the facts against him;
But from the examinations chiefs and the cross-examinations of PWs 2, 3 and 5 and also on persuing the written Defence statement of HC driver one crucial fact has come up that Inspector Lakshmi Chand has at the first instance has used unwarranted language against the HC driver. The Inspector has stated that WHAT BAKWAS HE WAS DOING ON WIRELESS SET, IS HE FROM SUCH A BIG HOUSE THAT HE DO NOT CARE FOR HIS SERVICE & IF SUCH TYPE OF BAKWAS HE WILL DO ONW.T.SET HE WILL BE GOT SUSPENDED.
I presume that uttering of such type of UNWARRANTED LANGUAGES by Inspr. Lakshmi Chand forced the defaulter HC driver Lakshmi Narain No. 3890/PCR to loose his cool and temper and this situation arises. This situation could have been avoided had the Inspector be POLITE AND COOL.
Also it is worth mentioning that the morning conversations of V-38 and V-4 are not lodged by the operator of V-4 as per PW-9 his own statement. V-4 Log Book record do not have any record of this conversations as exhibited as Ex-PW-7/A (Total 21 pages).
I agree with the depositions made by the PW-5 Const. Driver Chandan Lal, No. 4254/PCR that there is no telephone nearby the PCR Van V-38.
7. He submits that nothing could be gatherable from the above sufficient enough as indicting the applicant of any charges. According to him it is meaningful that enquiry officer had not recorded a finding in absolute terms that the applicant had used disrespectful language. The observation was I presume that uttering of unwarranted languages was forced on him. It was not a finding. On any segment of the allegations, there was finding against him. It is because there was no credible evidence forthcoming. Annexure A-3 came to be written presumably as disciplinary authority himself was unsure of the impact of the finding. The above letter and submission had no value whatsoever, especially since the findings as recorded had been accepted by the disciplinary authority, and it could not have been recalled. He, therefore, summed up with a plea that the penalty order required to be quashed.
8. Shri Ajesh Luthra had made submissions on behalf of the respondents. According to him the contentions raised are totally misconceived. The conduct of the applicant showed clear traits of hostility and indiscipline, which could not have gone unnoticed, in the interest of the organization. The Head Constable should always have behaved himself when confronted or questioned by superior officers, and even if provocation had come as alleged, he had no authority to retaliate. The defence, the counsel would point out was one of justification, which was wholly unacceptable. As many as nine witnesses had been examined, and according to the counsel, the charge stands proved. The delinquent had unauthorisedly and without justification handled the wireless set, had spoken rudely with the operators who questioned him, and later on when was confronted by the Inspector, had adopted stance of defiance, and had attempted to show himself one up.
9. The counsel submits that there were some materials available, and the sequence of events could not have been overlooked. The report had been accepted. Punishment given was reformatory and moderate, which the appellate authority also had found to be in order. Administrative Tribunal, exercising supervisory jurisdiction would not, therefore, interfere, since the well settled proposition was that if the conclusion was probable to be arrived at it should be left alone. Perhaps a third party would have come to a different conclusion from the same set of evidence, but that was no reason to upset the action. Matters of punishment rested absolutely in the realm of discretion of the disciplinary authority normally. The allegation that disciplinary authority had required that inquiring authority to give clarification was wholly beside the point, and even irrelevant. Also the applicant could not have made out a case that the complaint submitted by him against the Inspector was not taken note of. This was because nothing turned out of it, and the circumstances spoke for themselves.
10. The law is well settled as Mr. Luthra highlighted, in respect of interference that could be made in disciplinary action. But we find that the contentions highlighted by Mr. Singal is far too heavy as to be over looked. Generally when the allegations are disputed, the prosecution has to prove the charges without leaving the matters in a state of uncertainty. A reading of the conclusion, extracted in paragraph ( 6 ) above would show that the enquiry officer had formed an opinion that the wireless message had been sent for an official purpose. He also holds that the operator at Zonal Office had not recorded anything about unruly conduct. The evidence when we went through it show that nor he had any complaint that the applicant misbehaved with him. Above all enquiry officer records that the Inspector was exhibiting an overbearing demeanor. More importantly he has not recorded any definite conclusion about the belligerent stand alleged, against the applicant. He has only recorded that he presumes that Head Constable might have used unwarranted language. We cannot but note his observation that the Inspector should have been more polite and cool.
11. In the face of such findings in exasperation the disciplinary authority had thought it fit to issue a memo. to the enquiry officer, to ascertain what exactly he had meant by his findings. Though enquiry officer had replied by Annexure 3, defending himself, what is on record remains. In view of the findings of the enquiry officer, the applicant deserved an acquittal. If the disciplinary authority was not happy with the report, he could have disagreed, or directed a fresh report to be made, or ordered a re enquiry. That course has not been adopted.
12. It may also be necessary to note the manner in which the final order (Annexure A-4 ) has been worded. We may extract one paragraph therefrom, herein below:
The plea put forth by the defaulter that the Inspr. used some unwarranted language i.e. BAKWAS or nonsense against the defaulter has been pointed out by the EO, in his findings. As per the statements of PWs, who are material witnesses and heard the conversation between the Inspr. and the defaulter, have deposed that the Inspr. told that in the morning what bakwas he was doing on the wireless set. The EO has further held that using of such type of words by the Inspr. force the defaulter to loose his cool and temper and this situation arises. Using the word BAKWAS or nonsense by the Inspr. provoked the defaulter who in turn retaliated by misbehaving with his senior officer and also made false complaint of abuse and use of words against his caste. From this plea itself, it is clear that the defaulter is an indisciplined and arrogant person who let loose his temperament in minor provocation while while he was reprimanded by the Inspr. For his unnecessary transmission over wireless set whereas only I/C Van was authorized to use the wireless set. From the deposition of the material witnesses i.e. PWs 2 & 3, it has been proved the defaulter HC (Dvr.) has violated the provisions of rule 12 of Delhi Police ( General Conditions of Service) Rule, 1980 by making false and unsubstantiated complaint against his superior officer as they have deposed that Inspr. Had only used the word nonsense but not as mentioned in the complaint of defaulter. It is rather an appropriate to indict a person or surmises or presumptions. Without affording an opportunity to the applicant, and obviously without also ascertaining any defects from the Inspector, the disciplinary authority has recorded that the applicant has made a false and un substantiated complaint against his superior officer. This is height of indiscretion. It is plain that the above conclusion had influenced him and stands reflected in the prescription of penalty, when the evidence of the witnesses, excepting that of the Inspector went to show that he had heavily come down on the Head Constable. According to us this circumstance alone will be sufficient for coming to a conclusion that the respondents were not fair when they decided that the applicant required to be issued with a penalty advice. Of course one was subordinate to the other, but all are equals before law.
13. Resultantly we set aside the impugned orders, Annexure A-4 and A-5. The respondents are directed to advise the applicant appropriately their decision in terms with this order, by a written communication, to be issued within six weeks from today. No costs.
( N. D Dayal ) ( M. Ramachandran ) Member (A) Vice Chairman (J) sk