Central Administrative Tribunal - Delhi
Sh. Ajab Singh vs Govt. Of N.C.T.D on 27 July, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1807/2008
New Delhi this the 27th day of July, 2011.
Honble Mr. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Ajab Singh,
S/o late Sh. Puran Singh,
R/o B-43, Gali No.2,
Meet Nagar Near Sr.
Secondary School, Delhi-94. . Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. Govt. of N.C.T.D.
Through Commissioner of Police,
I.P. Estate, Police Headquarters,
New Delhi.
2. Jt. Commissioner of Police,
Northern Range,
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
3. Addl. Dy. Commissioner of Police,
Northern District through
Commissioner of Police,
New Delhi.
4. Inspector Pratima Sharma,
SHO Roop Nagar through
Commissioner of Police,
PHQ, IP Estate, New Delhi. . Respondents
(through Ms. Rashmi Chopra, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 17.03.2006 of Disciplinary Authority (DA) by which the penalty for forfeiture of 5 years of service was imposed on the applicant with a direction to treat the period of his suspension as not spent on duty. He has also challenged the order of 04.05.2007 of the Appellate Authority (AA) by which his appeal was rejected. His prayer is to set aside these orders with all consequential benefits.
2. A regular departmental enquiry (DE) was ordered against the applicant on 16.09.2005 on the allegations that instead of performing his night patrol duties, the applicant, who was posted as a Constable in Roop Nagar Police Station, was discovered in the night of 18.7.2005 in his undergarments at a Private Petrol Pump Station, fast asleep; the Wireless set was missing, his uniform was placed on a table nearby and the police motorbike parked outside. Allegedly, the Station House Officer (SHO) and other staff who discovered him in this condition, collected his uniform, belt and the motorbike, tried to wake him up, but failed. The wireless set was later deposited by a member of the public who discovered it outside his house next day. The applicant took time to consult his lawyer but did not explain his conduct. He was placed on suspension.
3. On denial of the charge, a regular enquiry was conducted in which he was found guilty. He represented against the findings. But the DA held him guilty of the charge brought against him. His appeal was also rejected; hence this O.A.
4. At the time of hearing the learned counsel for the applicant made the following submissions:
(i) The Enquiry Officer (EO) has made an observation that the applicant was in a state of drunkenness in the night of 18.07.2005, an allegation which does not find place even in the chargesheet issued to the applicant. Such an observation was based on no evidence and would vitiate the entire DE proceedings against the applicant including the impugned penalty order.
(ii) The imputation that the applicant made false allegations against the SHO and other police staff has not been substantiated against the applicant. There is nothing on record which supports this allegation. As such, he could not have been found guilty of all the components of imputations leading to the charge of misconduct. The EO should have dealt with each component separately and returned specific finding against each allegation.
(iii) The plea of the applicant that he was sick on 18.07.2005 and should not have been deployed in night patrolling duty had fallen into deaf ears. He produced a prescription dated 18.07.2005 of the doctor, CGHS Dispensary recommending three days rest, but no credence was given to his submission that he was not medically fit on that evening; that he felt giddy and had to take some rest at the nearest Petrol Pump Station. Further, the applicant was suffering from ring worm for the last four months and for that reason had to take out his uniform and keep them on the table nearby.
(iv) There were material contradictions in the station diary entries about the deposit of the wireless set and about fetching the motorbike to the Police Station. According to the S.D. Entry No. 20-B of 19.07.2005 which was made about his reappearance at the Police Station, he came to Police Station with the motorbike. It does not support the prosecution case that the bike was collected by another staff member and brought to the Police Station.
(v) He referred to some other inconsistencies in the statement of the person who found the wireless set and suggested that the witness was planted with ulterior motive by the SHO.
(vi) He alleges malice against the SHO, who was responsible for taking malafide action against the applicant. She did not give him rest knowing fully well his medical condition and was responsible for removal of his uniforms and belt from the place where he had kept them while sleeping. She deliberately made out a false story about discovery of the wireless set near a private persons house.
5. On the other hand, it is stated by the respondents that the applicant never requested the SHO to grant him rest and excuse him from night patrolling duty on 18.07.2005. He never mentioned that he had been advised rest for three days on medical ground. Even if it is conceded for arguments sake that SHO was unreasonable in rejecting his request for rest, he could have brought the matter to the notice of Assistant Commissioner of Police (ACP) and sought his intervention. There was no application for leave on medical ground. According to them the prescription had been obtained by him through manipulation to provide an excuse. Learned counsel for respondents replying to the contention that the duty roster indicated Rest day for the applicant on 18.07.2005, points out that it also indicated night patrol duty for the applicant on that day and suggests possible manipulation.
5.1 She draw our attention to the order of DA to say that it did not make any mention about the allegation of drunkenness against the applicant. In any case, it was not part of the charge and the remarks of EO in that regard never influenced the DA who came to his own finding. The settled law is that gratuitous remarks/extraneous materials are to be excluded from the perview of the enquiry and then to see whether the main charge of misconduct is made out or not.
5.2 As regards false allegation made by the applicant against SHO and staff she produced the DE record and drew our attention to the telephonic messages received in the Police Control room on 19.07.2005 from Phone Nos. 23848783 and 22818342 about allegations made by the applicant against SHO and Devender that Rs.15,000/- had been taken away by them along with his uniform.
5.3 There was no complaint of malice against the SHO until she took action against the applicant for his disorderly conduct. No reason has been given why the SHO should bear malice against him, or why she should plant evidence against him. It was not her fault that she was directed by the ACP to find out the whereabouts of the applicant when no response came from his wireless set. Not only she, but other members of the staff discovered him sleeping indecently at a private pump station. It is not denied by the applicant that he levelled serious allegation that Rs.15,000/- had been taken from the pocket of his uniform by SHO and other staff members. In these circumstances, the plea of malice rings hollow.
5.4 As regards minor inconsistencies the respondents submit that they do not substantially affect the prosecutions charge of misconduct and irresponsible behaviour of the applicant. Such inconsistencies might have crept in when statements are recorded after lapse of a long time. As regards the station diary entry No. 20-B of 19.07.2005, it is mentioned that entry was made by the diarist in the charge (Chinha Munshi) as per the version given by the applicant. But the testimony of PW-4 Constable Devender states clearly that he brought the motorcycle to the Police Station. PW-6, the SHO also corroborates this statement in her cross-examination.
6. The settled law is that it is not for the Courts to re-appreciate the evidence in exercise of its power of judicial review. It can interfere only when it is established that impugned orders of respondents are based on no evidence or on perverse appreciation of evidence. The applicant himself admits that he accepted to perform the night patrolling duty on 18.07.2005. It is not his case that he applied for any leave on medical ground. The plea that he was suffering from ring worm for four months and could not wear the uniform that night for that reason, is to say the least, a bit facetious. No doubt, the EO has made gratuitous remarks that the applicants over all conduct that night: not even waking up at the prodding of the police staff, not remembering where he had placed his wireless set the night before, the slovenly manner in which he was found fast asleep at a private patrol pump station could have conveyed the impression that he was in a drunken state. Nevertheless, drunkenness during duty hours was not a part of the charge, nor has it formed a part of the findings of the DA. Therefore, the contention that the gratuitous remark of the EO has vitiated the entire proceedings does not impress us.
6.1 Honble Supreme Court in the case of Management of Krishnakali Tea Estate Vs. Akhil Bhartiya Chah Mazdoor Sangh, 2005(1) AISLJ 197 held that if an extraneous element creeps into a proceeding, it has to be seen whether the penalty is sustainable after excluding that element.
6.2 As regards the imputation of making false allegations, we find that the applicant himself has made such an allegation in his defence statement. He says that his uniform contained Rs.15,600/-. By implication, it means that when Rs. 600/- was deposited in Police Station, balance Rs.15,000/- had been taken away by the staff. His defence witnesses Hans Raj Singh says that the applicant told him that Rs.15,000/- which the applicant had kept for him was stolen on 18.07.2005 by some policemen. DW-2 also says that the applicant told them about his uniform and money being taken away by S.I. and Constable Devender. PW-6, SHO has deposed that the applicant made a call at 6.50 P.M. on 19.07.2005 about removal of heavy amount from his pocket.
6.3 In any case, the imputation that he tendered false allegation against SHO/Roop Nagar, Police Station and others by making calls on 100 from telephone No. 23646783 and 22818342 had been clearly mentioned in the chargesheet. No where has the applicant denied this allegation, neither in his statement of defence, nor in his appeal. On the other hand he repeats his allegations about Rs.15,600/- missing from his uniform.
6.4 The applicant is a member of a disciplined force; he is supposed to be on the best of conduct so that the public carries a good impression about the image of the police force. If he was feeling unwell he should have informed Police Control room and come back to the police station. If he could not go that far he could have informed the control room about taking temporary rest at the pump station. He did nothing of the sort, but was discovered by the police party which was searching for him. Neither is it his case that his medical condition was so bad that he had to be hospitalized the next day. We do not find any extenuating factor to condone his unseemly conduct.
6.5 It is not a case of no evidence, or perverse appreciation of evidence, nor is it a case of conduct of DE in violation of statutory rules, or denial of reasonable opportunity causing serious prejudice to the applicant or incompetence of the authority imposing the penalty.
7. After giving anxious considerations to the submissions of the learned counsel for applicant we find that no case has been made out for interference with the orders of the respondents. The O.A. accordingly fails and is dismissed. No costs.
(Dr. A.K. Mishra) (G. George Paracken)
Member (A) Member (J)
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