Central Administrative Tribunal - Delhi
A.S.I. Hasrat Ali Khan S/O Ch. Sharafat ... vs Union Of India (Uoi) Through Secretary ... on 7 February, 2008
ORDER
V.K. Bali, J. (Chairman)
1. Hassrat Ali Khan, an Assistant Sub Inspector of Delhi Police, the applicant herein faced joint departmental enquiry with SI Vijay Tygai, Head Constable Ram Kumar, Constable Shambhu Dayal and Constable Subhash Chand. Whereas the charge framed against SI Vijay Tygai, even though pertaining to the same incident was different, the charge framed against the applicant and Ors. named above, reads as follows:
It is alleged against ASI (Ex) Hasrat Ali9 Khan No. 2668/D (PIS No. 28740918), HC Ram Kumar No. 631/SD (No. 28824010), Const. Shambhu Dayal No. 733/SD (PIS No. 28931834) and Const. Subhash Chand No. 1393/SD (PIS No. 28890519) that on 12/9/2004 while posted at PS near New Friend Colony they visited the shop of Mohd Tasleem who was running a stove repairing shop at his jhuggi No. 37, Taimur Nagar, Pahari No. 2, Delhi. On reaching there they started misbehaving and beating up Mohd Tasleem . Mohd Tasleem was hit on his head with a stove and lathi. Mrs. Khatija Beghum wife of Mohd. Tasleem was also pushed around without any provocation. As a result both Mohd Tasleem and Khatija Beghum sustained injuries and they moved to AIIMS hospital by the neighbours assembled at the spot. It is further alleged that ASI Hasrat Ali Khan No. 2668/SD made an entry No. 47-B dated 12/9.2004 in the daily diary of PS New Friends Colony contending therein that Mohd. Taslem is a bad character of UP and having many cases against him in UP and there were 4/5 boys of ill repute at his shop at the time of said incident. This DD entry penned by the ASI is totally an eye-wash, made in order to conceal his misdeeds. Neither ASI Hasrat Ali Khan could produce any record or evidence of the criminal involvement of Mohd Tasleem nor he could disclose the names, whereabouts of the boys said to be present at the shop. They also failed to take Mohd. Tasleem and Khatija Begum to hospital which they were duty bound to do so.' 2. During the course of enquiry, the respondents examined, Mohd. Tasleem as PW-1, while Khatija Begum as PW-2. These two witnesses, as per the chargesheet against the applicant and Ors. were victims of an attack by the applicant and Ors.. They did not support the case of the department. Whereas, Mohd. Tasleem stated that when he came out, he stumbled and fell down and sustained injury on the head, Smt. Khatija Begum stated that on hearing noise when she came out, she too stumbled and got injured. Smt. Reena PW-3, Smt. Babli, PW-4, Smt. Lipi PW-5, and Mohd Mohsin, PW-6, likewise did not support the case of the department. Constable Vikram, PW-7 and Constable Naresh Kumar PW-8 proved presence of the applicant along with others at the scene of occurrence which fact is not even otherwise in dispute.
3. The Inquiry officer on the basis of the evidence, of which he made a very brief reference observed as follows:
Six public prosecution witnesses were examined in support of prosecution of defaulters ASI (Ex) Hasrat Ali Khan No. 2668/D (PIS Bi,28740918), HC Ram Kumar No. 631/SD (PIS No. 28824o10), Const. Shambhu Dayal No. 733/SD (PIS No. 28931834) and Const Subhash Chand No. 1393/SD (PIS No. 28890519), but none of the witnesses said anything regarding misbehave and beating up Mohd. Tasleem and his wife Khatija Begum by police. They remained silence in this regard. It seems that all the six public witnesses have been pressurized by them. The presence of all above police officials on the spot cannot be ruled out.
4. Insofar as the other charge that pertained only to applicant Hasrat Ali Khan with regard to recording of DD No. 47-B dated 12/9/2004 in the Police Station is concerned, it was observed that the belief of the applicant that Mohd. Tasleem was indeed a person of bad character could not be proved as the applicant failed to produce any record or evidence of his criminal involvement and names/ whereabouts of other boys.
5. The disciplinary authority in its order dated 6-6-2006, (Annexure 'B'), after giving the background of the case observed that perusal of statement of PWs reveals that Mohd Tasleem and Smt. Khatiza w/o Mohd Tasleem sustained injuries on 12.9.2004 and they were removed to hospital by the neighbours. With regard to statement made by the two witnesses named above, it was further observed that they have been pressurized to say that they had sustained injuries while stumbling and further that if they had indeed stumbled, there was no reason to make a PCR call. With regard to involvement of Mohd. Tasleem in criminal cases, it was observed that the incident had taken place on 12-4-2004 and the applicant had shown his involvement in criminal cases pertaining to the year 2006, and that he had failed to produce his criminal record as well as his involvement in UP prior to the incident.
6. It is pertinent to mention here that both the Inquiry officer and the disciplinary authority found the charges against the other co-delinquents named above, who were tried with the applicant as not proved. Whereas the Inquiry Officer did not record any reason whatsoever for distinguishing their case with that of the applicant, the disciplinary authority only mentioned that the Constables were the Beat staff and had nothing to do when the Division officer was present at the spot.
7. The appellate authority vide order dated 18.12.2006 (Annex. C) dismissed the appeal. With regard to plea of the applicant that it was a case of no evidence as none of the material witnesses examined on behalf of the department had supported the case of the department the appellate authority observed that Mohd. Tasleem and Smt. Khatija Begum had resiled from their earlier statement and turned hostile because both of them cannot stumble at the same time. No distinction, once again was made in the case of the applicant and that of the Constables whose presence was proved at the scene of offence at the relevant date and time.
8. Applicant takes strong exceptions to the report of the Inquiry Officer, the orders passed by the disciplinary authority and the appellate authority in this OA filed by him under Section 19 of the A.T. Act, 1985.
9. Mr. Arvind Singh, Learned Counsel for the applicant vehemently contends that even though number of grounds have been taken for challenging the inquiry report and the impugned orders, but the same are likely to be set aside on the sole ground that it is a case of no evidence and in any case the case of the applicant could not be distinguished with that of the other co-delinquents, who were tried with the applicant on exactly the same allegations. He further contends that insofar as the charge against the applicant that he had made a false entry No. 47-B dated 12.9.2004 in the daily diary of Police Station, the applicant was able to give three cases in which Mohd. Taslem was involved in 2006, and one case of theft and dacoity prior to the incident in question. It is urged by the Learned Counsel that in the very nature of duties of a police officer, information with regard to bad characters would be forth-coming, even though the informant may not be knowing involvement of such bad characters in any particular case.
10. Mr. Luthra, Learned Counsel for the respondents, per contra, would contend that the authorities have applied their mind to the facts and circumstances of the case in its entirety and reached a correct conclusion and there would be thus no occasion to set aside the well reasoned orders passed by the disciplinary and appellate authorities.
11. We have heard the Learned Counsel for the parties and with their assistance examined the records of the case.
12. There is no dispute whatsoever that none of the material witnesses examined during the course of enquiry have supported the case of the department. Whereas it might be possible to draw a conclusion that both the material witnesses could not stumble at the same time and sustain injuries and further that in case they were injured in the manner stated by them, there would not have been any occasion for them to have given a call to PCR, and therefore, they might have been pressurized to resile from their earlier statements, we find no worth-while reason coming on the record to distinguish the case of the applicant with that of the co-delinquents named above. There is no doubt that the charge in the case of joint departmental enquiry and the evidence against all of them were the same. Insofar as the Constables are concerned, they may not have been charged of making a wrong entry as a cover up, the allegation of beating Mohd. Tasleem and his wife against the applicant and the Constables was common to all. As mentioned above, insofar as the I.O. is concerned, he made no distinction in the case of the applicant and co-delinquent Constables. The disciplinary authority sought to make a distinction observing that the Constables in the Beat Staff had nothing to do when the Division officer was present at the spot. The appellate authority, as would be made out, did not distinguish the case of the applicant with that of his co-delinquent constables. Whether a constable was a beat staff or not, in our view, would make no difference whatsoever and on that account alone, no distinction could be made between the case of the applicant and the said Constables. It may be recalled that the allegations against all of them were that on reaching the shop of Mohd. Tasleem, who was running a stove repair shop at his jhuggi No. 37, Taimur Nagar, Pahari No. 2, they started misbehaving and beating up Mohd. Tasleem. The presence of the Constables and that of the applicant is proved on the record at the time of the incident that happened on 12.9.2004. It is not possible to believe that the applicant who was the senior-most and was on a higher rank would alone misbehave and beat the husband and wife. In all probability, the beating if at all, might have been done by the Constables only. Be that as it may, once the evidence against the applicant and co-delinquent Constables was exactly the same and there was no finding that the Constables had not indulged in beating the duo of husband and wife, distinction of their case on the sole basis that they were the Beat Staff was wholly unjustified. We are of the considered view that when there is a joint departmental enquiry and the evidence is also the same against all, different findings with regard to their involvement could not be recorded without distinguishing their cases on some material, if at all available. It is strange and cannot thus be appreciated that while evaluating evidence the concerned authorities would express opinion that the material witnesses had resiled from their earlier statements being pressurised, and the change that had been brought about in their testimony would be against the patent facts and circumstances of the case, only for returning a finding of guilt against the applicant. The opinion of the authorities, as mentioned above, may be correct, and we must say that, in any case, it is possible or probable, but we are afraid this cannot apply only to one individual when, as mentioned, there are no distinguishing features between the applicant and his co-delinquent constables. Even though, therefore, the findings as mentioned above may be possible or probable and the view taken by the authorities may be one which can be taken, but we have no choice but to set aside the same. The verdict of guilt against the applicant on the first allegation contained in the chargesheet, as mentioned above, recorded by the enquiry officer, the disciplinary and appellate authorities cannot possibly be sustained and has thus to be set aside.
13. As regards the separate charge against the applicant with regard to recording a false entry No. 47-B dated 12.9.2004 as a cover-up, we would like to mention that the applicant, even though at the time he had filed the appeal was able to trace out three cases against Mohd. Tasleem, these cases, of course, pertained to a date after the incident. One case that pertains to FIR No. 60/2006 Under Section 323/341/34 IPC was registered on 11.2.2006 at PS New Friends colony, New Delhi. The other case pertains to an incident leading to registration of FIR No. 63/2006 Under Section 308/34 IPC on 12.2.2006 at PS New Friends Colony, New Delhi, whereas the third case pertains to FIR No. 515/2006 Under Section 324/34 IPC which was registered on 19.8.2006 at PS New Friends Colony, New Delhi. The applicant before filing the present case was able to trace out yet another case against Mohd. Tasleem Under Section 395/412 IPC registered on 24.3.2001 at PS Iglas, District Aligarh (UP). Insofar as the FIRs pertaining to the year 2006 are concerned, it is no doubt correct that the same pertain to period much after the incident and have to be ignored as rightly done by the disciplinary and appellate authorities. However, the FIR No. 30/2001 was registered on 24.3.2001, which is prior to the incident in question. It is also true that the applicant was not able to trace out the said case against Mohd. Tasleem at the time when the matter was heard and decided by the disciplinary and appellate authorities. The registration of FIR referred to above has, however, not been disputed in the counter reply filed by the respondents.
14. We would mention that the applicant is working in Police Force and as per very nature of his duties has to keep track on the activities of several anti-social elements with the help of informants in order to see that the law and order is well under control. He has also to make an opinion regarding a person whose activities may be suspected and who may so far not have been actually involved in any case. We would also observe that the police has to act sometimes on suspicion and on the basis of information received by it which may be true sometimes and at others not. The applicant has now traced out one case against Mohd. Tasleem which pertains to the year 2001. Mohd. Tasleem. as per the said case was involved in a case of theft and dacoity. This aspect of the case was not before the disciplinary/appellate authorities and, therefore, no opinion could be expressed by them.
15. In totality of the facts and circumstances of the case, whereas we hold that the first allegation in the charge against the applicant pertaining to beating of Mohd. Tasleem and his wife stands not proved, the matter would need reconsideration insofar as the second allegation against the applicant with regard to making of a false entry No. 47-B dated 12.9.2004 in the daily diary of PS New Friends Colony New Delhi is concerned. We order accordingly. No order as to costs.