Central Administrative Tribunal - Delhi
Bijay Singh vs Comm. Of Police on 24 November, 2023
1
Item No.48 OA No. 1511/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1511/2017
Reserved on : 18.10.2023
Pronounced on : 24.11.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
SI Bijay Singh, No.D/5202 (PIS 28980818),
Group „B‟,
S/o Shri Rajbir Singh,
Aged about 39 years,
R/o H.No.68/31, Azad Nagar,
Mandir Wali Gali, Rohtak,
Presently in Delhi.
...Applicant
(By Advocates : Mr. Nilansh Gaur)
Versus
1. Govt. of NCT of Delhi,
Through its Chief Secretary,
Delhi Sachivalaya,
I.P. Estate, New Delhi-110002.
2. Joint Commissioner of Police,
Northern Range, Police Headquarters,
MSO Building, I.P. Estate,
New Delhi-110002.
3. Deputy Commissioner of Police,
Outer District, Bawana,
Delhi.
...Respondents
(By Advocate: Ms. Sumedha Sharma )
2
Item No.48 OA No. 1511/2017
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J):-
Aggrieved by an order of penalty, vide which withholding of next increments for a period of two years has been ordered and further the period of suspension has been ordered to be treated as 'period spent not on duty', the applicant has approached the Tribunal in the present Original Application seeking the following reliefs(s):-
"8.1 Set aside the impugned findings at Annexure A-1; penalty order at Annexure A-2 and the order passed in appeal at Annexure A-3;
8.2 Direct the respondents to treat the period of suspension from 4.4.2014 to 21.7.2014 as spent on duty for all intents and purposes and also to restore the withheld increments of the applicant with all arrears and consequential benefits; and 8.3 Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case."
2. Learned counsel for the applicant briefly narrating the history and background of the instant OA submits that the applicant was working in Delhi Police as a Sub- 3 Item No.48 OA No. 1511/2017 Inspector at P.S. Kanjhawala, when he was entrusted with the investigation in FIR No.123/2014 under Section 279, 337, 304A IPC. The SHO Kanjhawala prepared an insubstantial report and forwarded the same on 10.04.2014, recommending a departmental enquiry against the applicant. The applicant was placed under suspension on 04.04.2014 and was reinstated on 22.07.2014. Learned counsel for the applicant while drawing attention to the report given by the Enquiry Officer, submitted that the conclusion drawn by the Enquiry Officer is not only cryptic, contrary to the evidence that has come during the course of the investigation, but there is also no evidence whatsoever that could support the charge. He substantiates that the Enquiry Officer has merely relied upon the statement of the PWs while drawing the conclusion that the charge against the applicant stands proved. There is no mention of the evidence put forth by the defense witnesses. Accordingly, the enquiry is only one sided. He further argues that at a later stage in the enquiry, a Court witness had been examined. The said Court witness was the Investigating Officer of the case, who succeeded as 4 Item No.48 OA No. 1511/2017 the present applicant as the Investigating Officer. He is the sole witness who had stated that during the course of further investigation, it has transpired that the vehicle was being driven by one 'Naveen' and not 'Ajay'. He argues that all other witnesses have testified to the fact that it was Ajay who was driving the vehicle. Accordingly, the conclusion that the charge stands proved could not have been arrived at by the Enquiry Officer. He further submits that this is the sole allegation against the applicant and this has not been substantiated by any evidence and hence, the entire proceedings cannot be sustained.
3. Continuing the arguments, learned counsel for the applicant has drawn attention to para 16 (viii) of Delhi Police (Punishment and Appeal) Rules. The said para reads as under:-
"16 (viii) After the defence evidence has been recorded and after the accused officer has submitted his final statement, the Enquiry Officer may examine any other witness to be called "Court witness"
whose testimony he considers necessary for clarifying certain facts not already covered by the evidence brought on record in the presence of the accused officer who shall be permitted to cross-examine all 5 Item No.48 OA No. 1511/2017 such witnesses and then to make supplementary final defense statement, if any, in case he so desires."
4. He submits that the examination of the Court witness by the Enquiry Officer was not in accordance with the provisions set forth in these Rules. Accordingly, that could not form the basis for drawing an inference of guilt of the applicant nor the order of the disciplinary authority imposing penalty upon him. He further draws attention to the observation of the disciplinary authority that statement of DW-8, i.e., Ajay is unbelievable and cannot be relied upon. Learned counsel argues that before the Enquiry Officer, DW-8 has made a categorical statement that he had been coerced by the SHO to give a false deposition. He elaborates that he has emphatically denied that it was during the course of inquiry in the disciplinary proceedings that he was making any incorrect statement. He further argues that the disciplinary authority in his order has written that the applicant is guilty of the investigation and attributed an "ulterior" motive. Learned counsel argues that the disciplinary authority could not have brought in external 6 Item No.48 OA No. 1511/2017 factor in this stage that there is no charge against the applicant with respect to any ulterior motive. Learned counsel further submits that if the order of the disciplinary authority is to be read along with the order passed by the appellate authority, there is an obvious contradiction. The appellate authority has relied upon the statement of DW-8, i.e., Ajay given during the course of preliminary investigation, whereas the disciplinary authority has totally debunked the statement given by him.
5. Ms. Sumedha Sharma, learned counsel for the respondents drawing support from the averments made in counter reply, strongly contests the O.A. and the arguments put forth by the learned counsel for the applicant. She submits that the entire focus of the arguments of the learned counsel has been finding holes in the statements of the various witnesses and examination of the evidence by the Enquiry Officer. She argues that in a plethora of cases, various Courts, including the Hon‟ble Apex Court, have held that Courts and Tribunals cannot assume the role of an Enquiry Officer and examine or re-appreciate the evidence which 7 Item No.48 OA No. 1511/2017 has been produced. She further argues Rule 16 (viii) of the Delhi Police (Punishment and Appeal) Rules, 1980, in fact, authorises and empowers the inquiry officer to call for any additional witnesses as a court witness during the course of the said inquiry in order to verify the veracity of the facts and evidence which has come forth during the course of the proceedings. She argues that it is evident that the Enquiry Officer has conducted a very meticulous inquiry and subsequent to that submitted a very elaborate and detailed report after appreciating the evidence.
6. Learned counsel goes on to argue that both the orders of the disciplinary and the appellate authorities are reasoned and speaking orders; she clarifies that even the learned counsel appearing on behalf of the applicants, during the course of his oral arguments, has not been able to point out any infirmity in those orders. A bare reading of the said orders would indicate that both these authorities have carefully examined each and every aspect of the enquiry report and passed these orders after due application of mind. Learned counsel closes the argument by reiterating that the jurisdiction of 8 Item No.48 OA No. 1511/2017 the Tribunal would be limited to determine the legality of the orders passed by the disciplinary authority and the appellate authority and certainly not to re-examine and re-appreciate the evidence which has just come forth.
7. Learned counsel for the applicant while responding to the arguments put forth by the learned counsel for the respondents draws attention to a judgment passed by the Hon‟ble Supreme Court in C.A. No. 6359-6361/98 and submits that in terms of para Nos. 26 and 27 of the said judgment, if a witness is brought in an inquiry at a later stage without opportunity of cross examination to the affected person, the inquiry would stand vitiated. For the sake of clarity, paras 26 and 27 of the said judgment upon which the learned counsel has relied, are reproduced below:-
"26. Non-production of the complainants is sought to be justified with reference to Rule 16(3) of the Delhi Police (F&A) Rules, 1980. Rule 18(3) is an under:-
"If the accused police officer does not admit the misconduct, the E.O. shall proceed to record evidence in support of the accusation as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their 9 Item No.48 OA No. 1511/2017 statements and cross examine them. The E.O. is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay, inconvenience or expense necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and shall be given an opportunity to take notes, unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the E.O. may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record."
27. This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to cross examine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The 10 Item No.48 OA No. 1511/2017 further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured."
8. We have heard the learned counsel for the parties and gone through the pleadings available on record.
9. The Inquiry Officer has based his conclusion primarily on the testimony of the Court Witness, and to some extent upon the documents available on record. While arriving at his conclusion he has ignored the defense witnesses totally. Even though he has made a mention of the evidence on record, however, he has based his finding placing disproportionately heavy reliance on the Court Witness. Therefore, in our considered opinion, the finding arrived at by him is both one-sided and erroneous.
10. The Disciplinary Authority has concluded that the investigation was done in the most slipshod and 11 Item No.48 OA No. 1511/2017 unprofessional manner, which could not have been done for reasons other than „ulterior‟. Now this is a presumption as „ulterior‟ has not been explained by him. There is nothing on record either to establish or explain that an ulterior motive could be attributed to the applicant. Nor does the charge against the applicant make an allegation of an „ulterior‟ motive. We are of the view that the disciplinary authority has traveled beyond the charge to punish the applicant. Similarly, the Appellate Authority has drawn a conclusion that the applicant had arrested a wrong person in order to help the owner of the accidental vehicle and to save the accused despite the directions of his immediate supervisory officer to do a fair investigation into the matter. With respect to the recording that the applicant was advised to conduct investigation in a fair manner, it is stating the obvious as fairness is imperative in every investigation. He too has relied heavily upon the witness PW-8 while reaching his conclusion; and has not considered the testimony of defense witnesses (DWs) at all. He agrees with the findings of the Disciplinary 12 Item No.48 OA No. 1511/2017 Authority in a routine and cryptic manner without application of mind.
11. In fact, the conclusion arrived at by the Enquiry Officer was based only on PWs/Court Witness and documents available on record; clearly and completely ignoring the DWs. The defense of the applicant has not been considered at all, and this amounts to a clear violation of the principles of natural justice. This illegality has been perpetuated by the Disciplinary Authority as well as the Appellate Authority. Further, the Disciplinary Authority has exceeded the brief by stating that the applicant has arrested a wrong person with an "ulterior" motive, a charge which has neither been explained nor proved.
12. For the reasons elaborated hereinabove, the OA is allowed. The orders passed by both the Disciplinary and Appellate Authorities (Annexure-A/1)/(Annexure-A/2) are quashed and set aside. Further, the respondents are directed to treat the period of suspension of the applicant from 04.04.2014 to 21.07.2014 as spent on duty. The applicant would be entitled to all the consequential 13 Item No.48 OA No. 1511/2017 benefits that may arise from this order. The exercise, as directed above, shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order.
13. The OA is allowed in the aforesaid terms. There shall be no order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member (J) Member (A)
/rk/