Central Administrative Tribunal - Delhi
Asi Gyanendra Singh vs Govt. Of N.C.T.D on 29 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA1673/2009 New Delhi this the 29th day of January, 2010 Honble Mr. L.K. Joshi, Vice Chairman (A) Honble Dr. Dharam Paul Sharma, Member (J) 1. ASI Gyanendra Singh, S/o late Shri Randeer Singh, R/o Quarter No. 54, PS Civil Lines, Delhi-110054. 2. ASI Laxmi Dass S/o Shri Gyan Sagar, R/o Quarter No. E-50, Police Station Model Town, Delhi-110007. Applicants. (By Advocate Shri Sachin Chauhan) Versus 1. Govt. of N.C.T.D, Through Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 2. Addl Commissioner of Police Security Through Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. Respondents. (By Advocate Ms. Rashmi Chopra) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
Challenge in this OA is to the order of the appellate authority in disciplinary proceedings against the Applicants, by which the order of the disciplinary authority, inflicting the punishment of `Censure on the Applicants, has been set aside with directions to initiate departmental proceedings from the initial stage.
2. The facts, in a nutshell, would show that a departmental inquiry was initiated against nine officials of the Delhi Police on the charge of irregularities in checking of overspeeding vehicles and extortion of money from them. The Applicants, along with one co-delinquent, were awarded the punishment of `Censure. One of the co-delinquents, Constable Dhiraj, was awarded the major penalty of withholding of the next increment for a period of three years. Five co-delinquents were exonerated and the inquiry against them dropped.
3. The appellate authority, the Commissioner of Police, found the following infirmities in the departmental proceedings:
I have examined the appeal, the DE file and the relevant documents available on record. The manner in which this DE has been conducted indicates ignorance about the Delhi Police (Punishment & Appeal) Rules-1980 and DEs are to be conducted. In fact, the DE was initiated by Joint C.P./Traffic vide order No. 2995-30/P. Cell/Vig. (P-IV) dated 30.04.2004. Meanwhile, all the four appellants had already been transferred from Traffic Unit to Security Unit vide PHQs order number mentioned against their names:-
Sl. No. Name PHQs Transfer Order No.
1. Inspr. S.P. Vashisht 72840-90/CB-1 dt. 12.09.03
2. ASI Gyanender Singh 75074-154/CR-I dt. 18.9.03
3. ASI Laxmi Dass 75074-154/CR-I dt. 18.9.03
4. Const. Dhiraj 75074-154/CR-I dt. 18.9.03 The initial order of DE itself is, therefore, incorrect and is contrary to the proviso of rule 14 (4) of Delhi Police (Punishment & Appeal Rules-1980. Thereafter, there were a large number of lacunae in the manner in which the DE was conducted showing basic ignorance of the requisite procedure on the part of the enquiry officer. Some of these are as follows:-
When the EO recorded the statement of PW-1 (HC Sanjay Vats No. 478/Comn.) and PW-2 (HC Dharambir Singh No. 543/T) on 21.06.2004, Inspr. Vashisht (the appellant No.1) and Const. Dhiraj (the appellant No.4) were absent.
Inspr. S.P. Vashisht was afforded opportunity of cross examination of PW-1 (HC Sanjay Vats No.479/Comn.) and PW-2 (HC Dharambir Singh No.543/T) on 13.7.2004 but Const. Dhiraj (the appellant No.4) was never afforded opportunity to cross examine these witnesses.
On 19.07.2004 supplementary statement of HC Pradeep Kumar No. 324/Comn. was recorded, whereas he was earlier neither examined as PW nor he was shown as a PW in the list of witnesses.
On 11.08.2004, Inspr. Anil Kapoor was examined as PW-5, whereas defaulter Const. Praveen No. 2849/T (now 1601/Sec.) was absent and he was never afforded opportunity by the E.O of cross examination of Inspr. Anil Kapoor.
The fact that in this DE punishment stage and punishment so awarded indicates that the disciplinary authority did not apply his mind and perhaps was himself unaware of the rules. On considering the above aspects, the appellate authority gave the following directions:
Keeping in view the totality of circumstances and principles of natural justice, I hereby set aside the punishment order as well as the entire proceedings. The case is remitted to the disciplinary authority with the direction to issue afresh order of DE and further proceedings be taken up from that stage.
4. The main argument of the learned counsel for the Applicants is that the appellate authority has no power to order a fresh inquiry in appeal. It is contended that the appellate authority can confirm the order of the disciplinary authority, set aside the order of punishment and reduce or enhance the punishment. But the relevant Rule 25 of the Delhi Police (Punishment and Appeal) Rules, 1980 does not provide for a fresh inquiry.
5. The learned counsel for the Respondents per contra, would contend that the matter is no longer res integra and the Honourable Supreme Court has already laid down the ratio in Union of India Vs. Khazan Singh, AIR 1992 SC 1535 that powers under Rule 25 of the Delhi Police (Punishment and Appeal) Rules, 1980 are very wide. The Honourable Supreme Court had examined the Rule 25 of the aforesaid Rules, which reads thus:
25. Orders on appeal. (1) On appeal, the appellate authority may, confirm the impugned order, or accept the appeal and set aside punishment order, or reduce the punishment, or disagree with the disciplinary authority and enhance the punishment after issue of a fresh show cause notice to the appellant and affording him a reasonable opportunity (including personal hearing if asked for) against the proposed enhancement.
Remit the case to the authority which made the order or to any other authority to make such further enquiry as it may consider proper in the circumstances of the case; or Pass such other orders as it may deem fit.
(2) Every order passed on appeal shall contain the reasons therefor. A copy of every appellate order shall be given free of cost to the appellant. The Honourable Supreme Court held thus in paragraph 6 of the order:
6. We have heard learned counsel for the parties. Rule 25 (1) (e) read with Rule 25 (1)(f) of the Rules gives very wide power to the Appellate Authority. It has the power to remit the case to the disciplinary authority for further inquiry and pass such other orders as it may consider proper or deem fit in the circumstances of the case. The Appellate Authority did not mention in its order as to under which sub-rule of Rule 25(1) the appeal was being disposed of. The tribunal while noticing Rule 25 (1)(e) of the rules and conceding that the Appellate Authority could not remand the case to the disciplinary authority for further inquiry under the said sub-rule, grossly erred in setting aside the order on the contention of the learned counsel to the effect that the Appellate Authority had passed the order under Rule 25(1)(d) of the Rules. It is settled proposition of law that when the exercise of power can be justified under any provision of law then non-mention of the said provision in the order cannot invalidate the same. We are of the view that the appellate authority validly exercised its powers under Rule 23 (1)(e) and 25(1)(f) of the rules. Mr. N.R. Nagaraja learned counsel appearing for the respondent Khazan Singh stated that Rule 23(1)(e) would only be attracted if departmental inquiry was held by the disciploinary authority and since in this case no inquiry was held the Appellate Authority had no power under the said rule to remand the case. We do not agree. The powers under the rules are very wide enabling the Appellate Authority to do justice in a given case. No prejudice has been caused to Khazan Singh because the defence set up by him can only be examined in a regular enquiry.
6. The learned counsel for the Applicants has further argued on the merits of the case to posit that the Applicants could not have been held to be guilty of committing misconduct in as much as the Applicants were sitting in the Van with the radar, checking the vehicles, and were not responsible for flashing the message to the control room about the commencement of the checking. They would not have known as to when the message was sent by the concerned officer. The challans made by them were perfectly in order.
7. We would, however, not like to go into the merits of the case, as a fresh inquiry has been ordered by the appellate authority and the Applicants will have ample opportunity to raise these points in his defence before the inquiry officer and disciplinary authority.
8. In the light of the above discussion, we find no merit in the OA, which is dismissed. However, in order to allay the fear in the mind of the Applicants that the inquiry would drag on for a long time, jeopardizing their future prospects, we direct that the inquiry should be completed and verdict given by the disciplinary authority positively by 30.05.2010. No costs.
(Dr. Dharam Paul Sharma) (L.K. Joshi)
Member (J) Vice Chairman (A)
`SRD