Central Administrative Tribunal - Delhi
Asi (Dvr) Suresh Chand vs Govt. Of Nct Of Delhi on 10 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1426 of 2006 New Delhi this the 10th day of December, 2010 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) ASI (Dvr) Suresh Chand, (PIS No.28822587) R/o VPO : Bhatgaon, The/Distt: Sonepat, Haryana. .... Applicant ( By Advocate Shri Anil Singal) VERSUS 1. Govt. of NCT of Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, New Delhi. 2. Jt. Commissioner of Police, Armed Police, PHQ, IP Estate, New Delhi. 3. D.C.P. (3rd Bn. DAP) Vikas Puri Lines, New Delhi. 4. Deputy Commissioner of Police, Traffic (NDR), PHQ, IP Estate, New Delhi. .. Respondents ( By Advocate Ms. Sumedha Sharma ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
The applicant, an ASI (Driver) in Delhi Police, was proceeded against in a departmental inquiry along with one HC Ramphal Singh on the following summary of allegations:-
It is alleged that on a telephonic complaint of Sh. Umesh Kumar S/o Sh. Parmeshwar Chaudhary R/o CIA/22-B, Anna Nagar, Tilak Bridge, ITO, New Delhi an attendant in the parking lot of Delhi Zoo, Inspr. Gurdev Singh, TI/PRG and Inspr. Jagtar Singh TI/PRG were detailed to verify the authenticity of the complainant Sh. Umesh Kumar alledged that on 18-1-2005 at about 4.30 PM ASI Suresh Chand No.2199/T, driver of Crane No.DL-1L E-0613 along with HC Ramphal Singh NO.306/T drove the crane inside the parking lot, tried to tow-away a three wheeler scooter, blocked the main gate of the parking lot with crane and then demanded Rs.2000/-. During enquiry, the complainant and other witnesses identified ASI (Driver) Suresh Chand and HC Ramphal Singh and also corroborated the allegations.
The above act of omission and commission on the part of ASI Suresh Chand No.2199/T and HC Ramphal Singh No.306/T amounts to gross misconduct and dereliction in discharge of their official duties, which renders liable them to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules-1980. Since the applicant did not plead guilty, the inquiry officer proceeded with the inquiry and after recording evidence of nine witnesses framed the charge against the applicant on the lines of summary of allegations, as referred to above. One defence witness was produced by the applicant in his defence. After examining the evidence that have come on record, the inquiry officer concluded that the charge against the defaulter applicant stood proved. Based on the findings of the inquiry report and after considering the defence put forth by the applicant, the disciplinary authority proceeded to impose penalty of forfeiture of five years approved service permanently vide its order dated 17.1.2006. However, on appeal the appellate authority reduced the penalty to that of forfeiture of four years approved service permanently. Feeling aggrieved, the applicant has challenged in the present OA, the initiation of disciplinary inquiry against him vide order dated 17.3.2005, as at Annexure A-1; findings of the inquiry officer dated 12.9.2005, as at Annexure A-2; order of penalty dated 17.1.2006, as at Annexure A-3; and order of the appellate authority dated 24.3.2006, as at Annexure A-4.
2. The main thrust of the applicants case is that the inquiry has been vitiated on account of non-compliance with the requirement of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter referred to as the Rules) for the reason that no prior approval of the Additional Commissioner of Police was obtained before ordering departmental inquiry, as required under Rule 15 (2) of the Rules. The PRG Team officials did not properly maintain Daily Diary and make their departures in Daily Diary register. They make a fake report against the applicant. The impugned action of the respondents is also bad in law for the reason that the inquiry officer has acted as prosecutor during the inquiry proceedings, as he cross examined PWs 1 to 5 in order to fill up the gap in the inquiry. The respondents authorities have not duly considered the entire evidence on record, especially the evidence of defence witness, which was rejected without any reason, which is bad in law.
3. The respondents in their reply controverted the applicants contentions, as aforesaid, and submitted that the inquiry has been duly initiated against the applicant with the approval of Joint Commissioner of Police (Traffic). The Joint Commissioner has accorded his approval for initiation of regular departmental inquiry in accordance with the applicable rules after due application of mind. The inquiry officer has duly conducted the inquiry in accordance with the applicable rules. It is incorrect to say that he cross-examined the witnesses. As a matter of fact, he sought certain clarifications wherever necessary and the same is not open to any objection in law. The PRG Team officials have to act on the basis of secret information and, therefore, they have necessarily maintained confidentiality in the matter and there is no need to lodge information about their movements in the Daily Diary register. The respondents authorities have given due consideration to the evidence that have come on record during the inquiry, including that of defence and there is no infraction of any rules in this regard.
4. The applicant has filed his rejoinder wherein averments made in his application are reiterated. It has, inter alia, been emphasized that even if the departmental inquiry has been ordered as per the orders of Joint Commissioner of Police, yet the compliance of Rules cannot be simply imagined but it has to be shown on the papers that the competent authority had applied its mind on the issue and taken a considered decision to initiate only departmental inquiry and not to register a criminal case for the reasons reduced into writing.
5. At the hearing, the learned counsel for the applicant confined his submissions to the two points, namely, (i) the impugned action of the respondents being violative of Rule 15 (2) of the Rules; and (ii) the findings of the inquiry officer against the applicant being vitiated on account of his cross examination of PW1 to PW5. The learned counsel did not press on the issue of validity of initiation of disciplinary inquiry with the approval of Joint Commissioner of Police in view of Full Bench order in the case of Chander Bhan vs. Govt. of NCT of Delhi (OA 577/2007). However, it has been contended that while ordering initiation of inquiry, the concerned authority has to examine the desirability of initiating criminal prosecution vis-`-vis departmental inquiry and take a conscious decision thereon indicating due application of mind by ascribing the reasons based on which such decision has been taken. In the absence of this, the order for initiating departmental inquiry will stand vitiated for non-application of mind and in the result, non-compliance of the requirement of Rule 15 (2) of the Rules. In support of point (i) above, the learned counsel for the applicant relied upon the judgments of this Tribunal in the case of Union of India and others vs. Rajbir Singh in RA No.38/2008 in OA 624/2005 decided on 6.1.2010 and Ravinder Singh vs. Govt. of NCT of Delhi and others in OA 1772/2008 decided on 23.2.2010. In support of his second argument that the inquiry officer cannot cross examine the witnesses, the learned counsel has referred to the following cases:-
(i) ASI Sher Singh vs. Govt. of NCT of Delhi and others, OA No.2827/2003 decided on 7.7.2004 by the Tribunal;
(ii) Union of India and others vs. Mohd. Naseem Siddique, 2005 (1) ATJ 147 (MP);
(iii) N.R. Dhananjayan vs. Management of India Overseas Bank and Anr., 2006 (6) SLR 485;
(iv) HC Rohtas Singh vs. Govt. of NCT of Delhi and others, OA NO.94/2007, decided on 30.6.2009 which was upheld by the Honble High Court of Delhi in W.P. (C) No.152/2010 decided on 12.1.2010; and
(v) Commissioner of Police and others vs. Bikram Singh, W.P. (C) No.3466/2010 decided on 16.7.2010 by the Honble High Court of Delhi.
6. In reply, the learned counsel for the respondents submitted that for the purpose of Rule 15 of the Rules, inquiry by PRG Team is not viewed as preliminary inquiry. Furthermore, the basic condition for the applicability of Rule 15 (2) of the Rules is that the preliminary inquiry must reveal the commission of cognizable offence and it is only then the question would arise as to whether criminal prosecution and investigation should be initiated against the delinquent official or he be subjected to departmental inquiry. Where no such offence is disclosed to have been committed, there would be no need for such a consideration. Furthermore, the inquiry officer has not cross-examined any witness, as has been alleged on behalf of the applicant. A plain reading of the findings of the inquiry officer would reveal that he has sought certain clarifications, which are being stated as such in his report, so the allegations of cross examination of the witnesses by the inquiry officer is factually incorrect.
7. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully examined the records of the case. The question as to whether the disciplinary authority while ordering disciplinary inquiry against the applicant has applied his mind to the issue as to whether criminal case should be registered and investigated or departmental inquiry should be conducted in the case is essentially a matter of fact and can be adjudged from the records. The respondents have, therefore, produced the case file in which this matter has been dealt with. The learned counsel for the applicant fairly conceded that the issue can be fairly examined with reference to the relevant records of the case and can be accordingly decided. Since the basic issues/disputes revolve around the provisions of Rule 15 of the Delhi Police (Punishment & Appeal) Rules, it would be expedient to state the text thereof as under:-
15. Preliminary enquiries.- (1) A preliminary enquiry is a fact finding enquiry. Its purpose is (i) to establish the nature of default and identity of defaulter(s), (ii) to collect prosecution evidence, (iii) to judge quantum of default and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. In cases where specific information covering the above-mentioned points exists a Preliminary Enquiry need not be held and Departmental enquiry may be ordered by the disciplinary authority straightaway. In all other cases a preliminary enquiry shall normally proceed a departmental enquiry.
(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
(3) The suspected police officer may or may not be present at a preliminary enquiry but when present he shall not cross-examine the witness. The file of preliminary enquiry shall not form part of the formal departmental record, but statements therefrom may be brought on record of the departmental proceedings when the witnesses are no longer available. There shall be no bar to the Enquiry Officer bringing on record any other documents from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. All statements recorded during the preliminary enquiry shall be signed by the person making them and attested by enquiry officer.
8. A plain reading of the above Rule shows that it describes the nature of preliminary enquiry and the purpose for which it is to be held. It further clarifies the circumstances in which such a preliminary inquiry is to be held or, as the case may be, not to be held. It further deals with the rights of the suspected police officer in such a preliminary inquiry and also evidentiary value of the material collected during this inquiry. The dispute between the parties in the present case is on the applicability of sub rule (2) of Rule 15 of the Rules, according to which, where a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held. Thus the basic condition for the applicability of this provision is the disclosure in the preliminary enquiry as to the commission of cognizable offence by the delinquent police officer. Where it is not so, this provision will have no application. If the commission of cognizable office is disclosed in the preliminary enquiry, then the Rule ordains that the inquiry can be initiated only with the approval of the competent authority and such an approval is to be accorded after due deliberation on the issue as to whether the criminal case should be registered and investigated or a departmental inquiry should be held. However, this proposition is no longer in dispute, as the same has already been well settled in the case law referred to hereinbefore by the learned counsel for the applicant.
9. We have carefully perused the case file produced by the respondents on the subject whereupon it is found that inquiry conducted by the PRG Team did not reveal commission of any cognizable office. The report reveals that the allegation of the complainant that he was beaten up by the applicant was not substantiated. However, there was strong indication, in the facts and circumstances, that the two delinquent police officials visited zoo parking with an ulterior motive for some illegal financial gratification. The report did not reveal commission of any cognizable office by the applicant. Since the basic condition for the applicability of sub rule (2) of Rule 15 of the Rules was not satisfied, there was no occasion for the disciplinary authority to consider as to whether the criminal prosecution or departmental inquiry was to be initiated in the case.
10. In the facts and circumstances, the disciplinary authority directed shifting of delinquent officials out of Traffic Unit to non-sensitive unit and initiation of regular departmental enquiry against them.
11. In the facts and circumstances of the present case and for the reasons stated above, we do not find that the action of the respondents has been vitiated on account of non-application of mind while according approval under Rule 15 (2) of the Rules for the reason that the report of the PRG Team did not reveal commission of any cognizable offence by the defaulting officials in the case. As such Rule 15 (2) of the Rules is not applicable in the instant case. It is noticed that the respondents passed order under this Rule, as a matter of routine wherever the preliminary enquiry is held. That by itself would not be sufficient to attract the applicability of the Rule, where the basic condition for its applicability is not satisfied as to the disclosure of commission of cognizable offence by the delinquent officials in the preliminary enquiry. Furthermore, a plain reading of the inquiry report does not reveal any cross examination of the prosecution witnesses by the inquiry officer. The applicant did not cross examine the PW1 and PW2 but he cross examined only PW3 to PW5. The inquiry officer did not seek any clarification from PW3. There were certain clarifications sought by the inquiry officer from PWs 1, 2, 4 and 5, which have been separately stated, as such. In law, inquiry officer is empowered to seek clarification wherever necessary. Having given our careful consideration to the clarification sought by the inquiry officer in the present case, we are of the considered view that these are neither sufficient to brand him as a prosecutor nor the same can be viewed as cross examination by him.
12. In the aforesaid premises, we do not find any merit in this Application and the same is accordingly dismissed. No order as to the costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
/ravi/