Central Administrative Tribunal - Delhi
Constable Kartar Chand vs Govt. Of Nctd Through The on 23 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.130/2008 New Delhi this the 23rd day of March, 2011 Honble Mr. M.L. Chauhan, Member (J) Honble Mr. Shailendra Pandey, Member (A) 1. Constable Kartar Chand, S/o Shri Sadhu Ram, age-45 years, R/o Qtr. No.99, Police Colony, Ashok Vihar, Delhi-52. 2. Constable Harpal, S/o Shri Fathe Singh, R/o Mem Sect Line, Vinay Marg, Bank No.3. 3. Const. Jasmer, S/o Shri Surat Singh, R/o Barrak No.2, Room No.103, DAP Line Vikas Puri, IIIrd Bn., DAP, New Delhi. -Applicants (By Advocate Shri Sachin Chauhan) -Versus- 1. Govt. of NCTD through the Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 2. The Joint Commissioner of Police, Northern Range, through the Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 3. The Addl. Dy. Commissioner of Police, North West Distt., through the Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. -Respondents (By Advocate Shri Vijay Pandita) O R D E R Honble Mr. M.L. Chauhan, Member (J):
The applicants have filed this OA, thereby praying for the following reliefs:
(i) To set aside the impugned orders from A-1 to A-3 and to further direct the respondents that the forfeited years of service be restored with all pay and allowances and with all consequential benefits, including seniority and promotion and pay and allowances.
(ii) To further direct the respondents to treat the entire intervening period of suspension and from dismissal to the date of reinstatement as spent on duty for all intents and purposes.
(iii) Any other relief which this Honble Court deems fit and proper may also be awarded to the applicant.
2. Briefly stated, the facts of the case are that Constables Harpal Singh, Jasmer Singh and Kartar Chand, who are applicants in this OA, were dealt with departmentally on the allegation that on 12.5.1990, H.C. Balbir Singh, while on duty in the area of P.S. Nangloi, noticed applicants being illegally checking the vehicles near Lokesh Cinema, Nangloi with malafide intention and ulterior motives. Accordingly, Balbir Singh apprehended them, except Constable Jasmer Singh at the spot while Constable Jasmer Singh managed to escape from the spot. All these Constables have admitted in writing before the SHO that they were checking vehicles in connivance with one Dharma Ram resident of Bahadur Garh and one contractor of country made liquor in Sohati Haryana. For the said misconduct the applicants were placed under suspension w.e.f. 18.5.1990. The enquiry was held and the disciplinary authority (DA) on the basis of the findings given by the Enquiry Officer (EO) and after considering the representations of the applicants awarded the punishment of dismissal from service and the period of suspension w.e.f. 18.5.1990 to 25.2.1992 was decided as period not spent on duty. The appeals filed against the aforesaid order were rejected by the appellate authority vide order dated 28.5.1993. Feeling aggrieved by the aforesaid orders, OA was filed in this Tribunal. The Tribunal allowed the OA filed by the applicants by quashing the impugned orders and directed the respondents to reinstate applicants with all consequential benefits. Against the judgment passed by this Tribunal respondents filed Writ Petition (Civil) before the Delhi High Court. The High Court of Delhi vide its judgments dated 4.4.2002 and 11.4.2002 in separate Writ Petitions modified the orders of the Tribunal and directed that the DA shall re-open the departmental proceedings in so far as the respondents are concerned and in the event the same enquiry officer is not available, shall appoint another enquiry officer and permit him to cross examine the witnesses on behalf of the department and to examine his own witnesses on his behalf. Pursuant to the directions given by the High Court applicants were reinstated in service with immediate effect without prejudice to the departmental proceedings to be initiated against them vide orders dated 19.6.2002 and 2.7.2002. Departmental enquiry against the applicants was re-opened and subsequently they were given a punishment of forfeiture of three years approved service permanently for the purpose of their further promotion and seniority vide order dated 18.2.2003. The applicants were also reinstated. However, the period of suspension from 18.5.1990 to the date of issue of the punishment order dated 18.2.2003 was decided as period not spent on duty for all intents and purposes. The appeals filed against the orders of punishment were also rejected by the appellate authority vide its order dated 3.11.2003. Aggrieved with the aforesaid orders of the disciplinary as well as appellate authorities, applicants Harpal Singh and Kartar Singh filed OA Nos. 535 and 656 of 2004 respectively. This Tribunal vide its judgments dated 30.3.2005 and 11.7.2005 quashed the impugned orders and held that the DA, if deemed fit, may direct the EO to submit a fresh report and thereafter further proceedings may be taken in the matter and also that consequential benefits should accrue to the applicants and be given preferably within two months from the date of receipt of a copy of the order. Pursuant to the judgment rendered by this Tribunal, the EO was directed to submit a fresh report. Review was also filed, which was also dismissed and subsequently Writ Petitions were also filed, challenging the judgment of this Tribunal dated 17.11.2004. As the EO has submitted a fresh report pursuant to the judgment of this Tribunal dated 17.11.2004 and the DA has passed fresh orders, imposing the same punishment, i.e., withholding of increments for three years, the Writ Petition was disposed of by the High Court vide its judgment dated 15.11.2007, having become infructuous. It is the subsequent order dated 27.11.2005 passed by the DA as well as the order dated 28.11.2006, whereby the appeals of the applicants were rejected and also the order dated 2.7.2002, whereby the departmental enquiry was ordered against the applicants, which are under challenge before the Tribunal. The applicants have prayed that these orders may be quashed and applicants be held entitled to all consequential benefits, including seniority, promotion, pay and allowances and the intervening period of suspension and dismissal to the date of reinstatement may be treated as spent on duty for all intent and purposes.
3. Notice of this application was given to the respondents. Respondents have filed their reply. The facts as stated above have not been disputed. The respondents have defended the orders on the basis of the reasoning given by the DA as well as Appellate Authority. The applicants have filed rejoinder thereby reiterating the submissions made by the applicants in the OA.
4. We have heard the learned counsel for the parties and gone through the material placed on record.
5. Learned counsel of the applicants has vehemently argued that the so called confessional statements made by the applicants could not have been made the basis for holding the applicants guilty of the charges and neither E.O. nor the D.A. have taken into consideration the defence of the applicants while holding the charges proved and also imposing the order of punishment. For that purpose, learned counsel of the applicants has placed reliance upon Rule-16 (iii) of the Delhi Police (Punishment & Appeal) Rules, 1980 and has contended that confessional statements of the applicants were not attested by any of the police officer. As such, the same could not have been taken on record and relied upon in the departmental enquiry. Learned counsel of the applicants has also drawn our attention to the finding recorded in the enquiry report dated 11.08.2005 (pages 42-48 of the paper book) and more particularly the discussions and evidence whereby the E.O. has recorded that although no statements of car/scooter owners, who were stopped by them for illegal checking nor their vehicle numbers, have been brought on record to prove their presence at the checking place, the possibility of illegal checking by these constables for ulterior motives cannot be ruled out. The constables have claimed in their defence that their signatures were obtained on blank papers but is not found convincing, as it is not possible to get the signatures on blank paper. The written confession of three constables posted at different places and found together before the SHO of illegal checking shows that they had assembled there for doing some illegal work with malafide intention and ulterior motive though the same is not corroborative with the departure arrival of the staff in the D.D and argued that on the basis of the findings so recorded, applicants could not have been held guilty of the charges. Learned counsel of applicants has further argued that no show cause notice was issued to the applicants regarding treating the intervening period from the date of dismissal to the reinstatement in terms of pay and allowances, thus violating the principles of natural justice.
6. We have given our due consideration to the submissions made by the learned counsel for the applicants. The presence of the applicants at the place of occurrence at early hours of 12.5.2009 is not even disputed by the applicants. Further, it is also not disputed that the applicants have made a confessional statement regarding their presence at the spot and checking the vehicles in connivance with one Dharma Ram resident of Bahadur Garh and one contractor of country liquor in Sohati, Haryana. It is also not in dispute that these confessional statements were relied upon and formed part of the listed documents and the said confessional statements have been duly proved by PW-2 Balbir Singh, who in his statement has categorically stated that when he reached near Lokesh cinema, Nangloi on Rohtak Road along with other member of the patrolling duty they found some persons making check of vehicles in plain clothes of the vehicles coming from the side of Tikri Border. He has also deposed during the enquiry proceedings that the persons making check of the vehicles in plain clothes were not from the police station within which jurisdiction the place where checks were conducted falls and on further checking applicants Harpal Singh and Kartar Singh produced their identity cards whereas Jasmer Singh and Jagminder Singh were not having their identity cards. He also categorically stated that Harpal Singh, Kartar Singh and Jagminder Singh were produced before the SHO Shri R.S. Dahiya, where they confessed in writing regarding their illegal checking, Exhibits PW-1/1A, 1/IV, 1/IC. Thus, from the statement of this PW-2 it is evident that the confessional statements made by the applicants before the SHO were not only exhibited but they were also proved by the witnesses during the course of enquiry, as the same were made in the presence of the SHO. Nothing has been elicited by the applicants during the course of cross-examination that they were not present on the spot and they were not making illegal checking or that the confessional statements made by them were made under coercion. It may also be stated that applicants have not made any complaint regarding recording of such confessional statements before any authorities. The defence taken by the applicants during the course of enquiry that their signatures were obtained on blank papers cannot be accepted. Thus, according to us, the charge against the applicants stands fully proved, based upon their confessional statements, which have been duly proved by PW-2, HC Balbir Singh, as such, it cannot be said to be a case of no evidence. It may be stated here that scope of interference by the Court or Tribunal with the conclusion of guilt is limited to the situation where the proceedings were held in violation of principles of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where a conclusion or finding reached by the DA is based on no evidence or no reasonable person would have reached the conclusion. It is also settled position that the Tribunal will not sit in appeal over such order to re-evaluate or re-assess the material to test correctness of the finding of fact. As already stated above, a finding has been recorded by the EO based upon confessional statements made by applicants, which were duly exhibited in the course of enquiry and relied upon and proved by the statement of PW-2. For the sake of repetition, it may be stated that the applicants have not disputed their presence at the spot of occurrence at early hours at 5 a.m. and if this fact, coupled with the confessions made by them before the SHO, is seen, it cannot be said that the applicants have been falsely implicated in the matter and the explanations given by them that their signatures were taken on the blank paper, cannot be accepted. At this stage, we may refer to the decision of the Apex Court in Delhi Transport Corporation Vs. Shyam Lal, 2004 (2) SC SLJ 221 whereby the Apex Court has held that admission of the guilt in the departmental proceeding is the best piece of evidence against a person making the admission. The Apex Court has further held that it is open to a person concerned to show why admission is not to be acted upon by giving plausible reason. That was also a case where the respondent before the Apex Court who was a Conductor was found collecting money without issuing tickets. Enquiry was initiated against the respondent and he admitted the guilt and pleaded for leniency. Basing on his admission he was found guilty in the departmental proceeding and removed from service. A reference was made to the Industrial Tribunal under Section 33(2) (b) of the Industrial Tribunal Act, 1947 for approval of the order of removal. The Tribunal did not accord approval being of the view that the admission was really of no consequence and the officer who had conducted enquiry had no direct evidence and the statement made by the person who had paid the amount in question before the officer conducting the checking was in the nature of hearsay evidence and was not of any consequence. Order of the Tribunal was challenged before the Delhi High Court. Learned Single Judge held that the Tribunals view was not defensible. Accordingly, writ petition was allowed. Judgement of the learned Single Judge was challenged by filing LPA. The order of learned Single Judge was set aside by the Division Bench. The matter was carried to the Apex Court and the Apex Court held that it is fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon. A similar view was also taken by the Apex Court in the case of Swadesh Pal Baliyan Vs. Air Force Commanding-in-Chief, 2005 (1) SLJ SC 285, whereby the Apex Court held that when one has admitted clearly no other proof like producing co-accused etc. is not a fatal flaw. The appellant before the Apex Court has resiled from his earlier confession after a period of more than four and a half years on the ground that such confessional statement was made under threat or coercion and the appellant had signed some blank documents. The Apex Court held that such a bald and vague allegation in the explanation submitted by him cannot be accepted.
7. According to us, the explanation made by the applicants that they were made to sign on a blank paper and as such the so called admission made by them should not be relied upon does not inspire confidence. Thus, we see no infirmity in the action of the respondents whereby relying upon the statement of witnesses as well as the confessions and also that applicants have also not disputed their presence on the spot at early hours of the morning, especially when they were not posted within the jurisdiction where they were conducting illegal checking, it cannot be said to be a case of no evidence so as to warrant our interference. The contention raised by the learned counsel for the applicants based upon Rule 16 (iii) of Delhi Police (Punishment & Appeal) Rules, 1980 that the confessional statements should have been attested by the Police Officer and only then the said statement can be relied, is without any basis and is not attracted in the facts and circumstances of this case, inasmuch as, the attestation of statement by a Police Officer superior in the rank of the accused officer or by Magistrate is necessary when the presence of the witness before whom such a confession is made, cannot be produced during the course of enquiry proceedings. As already stated above, in this case PW-2 HC Balbir Singh in whose presence the confessional statements have been made was cited as a prosecution witness and he has also deposed during the enquiry proceeding and liberty was also given to the applicants to cross-examine such witness. As such attestation by the superior officer or the Magistrate was no required at all.
8. Although the applicants have not made a specific prayer regarding pay and allowances to be made during the period of suspension till reinstatement, i.e. 18.5.90 to 24.2.92, 25.2.92 to 18.6.2002, 19.6.2002 to 18.2.2003 and regularizing the said period as spent on duty on the ground that no show cause notice was given to them, however, this fact has been pleaded by the applicants in para 5 (xxvii) of the OA. In the instant case, applicants have neither been paid any allowances for the aforesaid period nor has the said period been regularized as period spent on duty. Further the respondents in the reply have also not stated that the aforesaid period of suspension till reinstatement regarding pay and allowances to be paid to the applicant whether such period shall be treated as spent on duty was passed after giving show cause notice to the applicants and also considering their representations qua these aspects. Thus, we are of the view that the order as to how the aforesaid period of suspension till reinstatement of applicants should be treated for the purpose of (a) regarding pay and allowances to be paid to the applicants and (b) whether or not such period should be treated as period spent on duty could not have been passed without issuing the show cause notice and hearing the applicants qua the aforesaid aspect. Accordingly, the competent authority is directed to issue show cause notice in the aforesaid terms to the applicants for the aforesaid period within a period of one month from the date of receipt of a copy of this order and pass appropriate orders after considering the representations of the applicants, if any submitted by them in that connection, within a period of two months from the date of receipt of such representation.
9. With these observations, OA is disposed of with no order as to costs.
( Shailendra Pandey ) ( M.L.Chauhan )
Member (A) Member (J)
San.