Central Administrative Tribunal - Delhi
Sh. P. Vijayan vs Govt. Of Nct And Others Through on 1 February, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3606/2010
Reserved on: 23.01.2012.
Pronounced on : 01.02.2012.
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. P. Vijayan,
Head Constable,
R/o Qtr. No.50-D,
Police Colony, Modal
Twon-II, Delhi-9. . Applicant
(through Sh. M.K. Bhardwaj, Advocate)
Versus
Govt. of NCT and others through :
1. The Commissioner of Police,
Police HQ, IP Estate, New Delhi.
2. Additional Commissioner Police,
PCR, Modal Town-II,
Delhi-9.
3. The Dy. Commissioner,
PCR, Police HQ, IP Estate,
New Delhi. . Respondents
(through Mrs. P.K. Gupta, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant, aggrieved with the penalty order dated 21.08.2009 of the Disciplinary Authority (DA) forfeiting five years of his approved service and the order dated 12.08.2010 of the Appellate Authority (AA) confirming the penalty, filed this O.A. with a prayer to set aside the orders with all consequential benefits. The O.A. was dismissed on 15.07.2011. He filed Writ Petition (C) No. 7972/2011 in which Honble High Court on 14.11.2011 passed the following order:-
It is inter alia the contention of learned counsel for the Petitioner that the learned Tribunal has not dealt with various contentions raised by the Petitioner and dismissed the OA on the basis of observations of the learned Metropolitan Magistrate while dealing with the criminal case in which the Petitioner was the Investigating Officer. He further submits that the case came for trial before the Metropolitan Magistrate after 8 years of the arrest and release on bail of the accused. Accordingly to the Petitioner, the address of the accused was correctly recorded by the petitioner after due verification and if the accused had shifted from that address in the interregnum, the Petitioner could not be blamed therefor. In support of his submission, our attention is drawn to the report submitted by the police officials of police station Hathras within whose jurisdiction the then address of accused was. As per the report, the address of the accused was found to be correct.
Rule DB.
With the consent of the parties, we have heard the matter. Though we have noticed paras 3 and 4 of the impugned order, but we are of the view that various aspects including the aforesaid aspect highlighted by learned counsel for the Petitioner have not been dealt with by the Tribunal appropriately. On this ground alone, we make the rule absolute; set aside the impugned order and remit the case back to the Tribunal for fresh adjudication.
2. On remand the matter was heard again. Learned counsel for the applicant submits that the main defence plea that the original places of residence of the accused and surety had been demolished on account of Metro Project had not been looked into properly at any stage of the disciplinary proceedings: neither by the Inquiry Officer (IO), nor the DA nor in the appellate order. A few other aspects highlighted are as follows:-
(a) the charge sheet was issued after long 8 years during which the alleged charges relating to the residence had, in face, taken place;
(b) no effective inquiry with reference to MCD and Panchayat records was conducted to ascertain the truth or otherwise of the defence assertion was undertaken;
(c) he had, in fact, filed information sheet about the accused person on 15.12.2002, a copy has been retrieved and filed at page-66, yet he was accused of not filing the information sheet;
(d) the officer of Hathras Police Station has given a report about the information sheet which has been noticed by Honble High Court;
(e) the first IO of the case HC Ramesh was not examined about the address;
(f) the findings against him have been recorded mechanically on the basis of the observations of the Magistrate in the Criminal case without there being any evidence to support it.
3. Learned counsel for the respondents on the other hand submits the following:
(a) The main facts constituting the charge against the applicant have been proved on the basis of evidence on record in the inquiry in which he was given a fair opportunity to defend himself. He had arrested the accused person named in FIR No. 455/2001 of Timarpur Police Station, prepared the arrest documents and released the accused on bail on personal bond of surety furnished by Avdesh Kishore, but mentioned incorrect addresses in the document; as a result, they could not be produced before the court. Even he himself took the responsibility, but failed to do so.
(b) The information sheet mentioned in the report of the Officer of the Police Station is an undated one and was rejected by the IO as of doubtful authenticity.
(c) The applicant having taken the defence plea that the accused and the surety had shifted their residence, should have proved the plea either through oral or documentary evidence, but he has failed to do so; therefore, the IO and respondents were justified in rejecting this plea.
(d) The applicant never brought the fact of existence of the information sheet in the case record to the notice of the Magistrate and was himself to blame for the adverse comments passed against him. On the other hand, according to evidence of PW10, there was no entry of the Information sheet in the index of the FIR.
4. After hearing, it was agreed by the counsel of both the parties that the plea of the applicant that the accused person and the surety had shifted their residence during the long interregnum and that he had not given incorrect address and the issue of availability of information sheet in the records as well as the report of Hathras Police Station indicating availability of information sheet are matters of appreciation of evidence which should be better left to the respondent authorities.
The applicant had made the fllowing submissions in his appeal petition:-
4In this respect, I have to submit before your kind Honour that it was not possible for me to produce the authentic record of MCD or Police in support of my claim with regards to the demolition of the houses of the accused as well as his surety and as such I requested to examine the concerned officials of Land Owning Agency as Court Witnesses. My Disciplinary Authority took his own conclusion that onus of burdon for producing the Defence always like on the part of delinquent. Your kind Honour will find that the officials of the Land Owning Agency were Govt. Official and the record which was to be produced by them was the official record and it was not possible for me to produce them alongwith official records and as such I made a request to examine them as Court Witness. Your kind Honour as such will find that as a principle of natural justice, my Disciplinary Authority should have acceded to my genuine request.
xxxx In this respect, I have to submit before your kind Honour that if PW-1 has not entered the Information Sheet in the Index of the FIR, I am nowhere at fault and further if no date has been mentioned by PS Hathras on the Information Sheet, I am nowhere at fault in this respect. The AA has not discussed these specific grounds taken in the appeal.
5. In the circumstances, the matter is remanded to the AA to examine the appeal afresh and determine whether the charge of furnishing incorrect address of the accused person and surety and non-furnishing of the Information Sheet is made out or not. Needless to say that it is open to AA to order fresh inquiry to ascertain the truth about the defence plea that the places of residences of these persons had been demolished by the land owning agencies post titling of challan and further about authenticity of the undated Information Sheet given by the officer of Hathras Police Station.
6. The O.A. is disposed of in terms of the aforesaid directions. No costs.
(Dr. A.K. Mishra) (G. George Paracken) Member (A) Member (J) /vinita/