Central Administrative Tribunal - Delhi
Hc Ramesh Chander (Pis No.28821617) vs Government Of Nct Of Delhi Through on 8 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.554/2007 This the 8th day of February, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) HC Ramesh Chander (PIS No.28821617), S/O Late Prasadi Lal Sharma, R/o Vill. Khyamai, P.O. Chilavati, Distt. Aligarh (UP). Applicant ( By Shri Anil Singal, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Joint Commissioner of Police (Operations), PHQ, IP Estate, NewDelhi. 3. DCP (FRRO) through Commissioner of Police, PHQ, IP Estate, New Delhi. Respondents ( By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Ramesh Chander, a Head Constable in Delhi Police, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 7.3.2000 initiating departmental proceedings against him; summary of allegations dated 21.3.2000; disagreement note dated 11.1.2005; order of punishment dated 28.4.2005 vide which six years of his approved service has been forfeited permanently; as also order dated 1.6.2006 vide which his appeal against the order aforesaid has been dismissed.
2. Facts as projected in the Application reveal that the applicant while holding the post of Head Constable was posted in the office of DCP (FRRO), the third respondent herein. On the basis of a preliminary enquiry report prepared and submitted by Insp. R. S. Bhasin, departmental enquiry was initiated against him vide order dated 7.3.2000 (Annexure A-1). The enquiry officer issued summary of allegations on 21.3.2000, and after recording statement of four witnesses, framed charge against the applicant. Thereafter, availing the opportunity of leading defence, the applicant examined three witnesses. The enquiry officer vide his report dated 12.10.2000 came to the conclusion that the charges against the applicant were not substantiated. The disciplinary authority, however, disagreed with the findings of the enquiry officer and issued a show cause notice dated 6.11.2000, and vide order dated 14.12.2000 awarded penalty of forfeiture of four years approved service permanently entailing reduction in pay and withholding of increments. The appeal preferred against the order aforesaid by the applicant was dismissed on 16.3.2001. Constrained under the circumstances mentioned above, the applicant filed OA No.2936/2001 before this Tribunal which was decided on 4.3.2003. The orders impugned in that OA were quashed and the case was remitted to the disciplinary authority to pass fresh penalty order. The orders impugned in that OA were quashed and the case was remitted to the disciplinary authority to pass fresh order. We may mention that the plea raised by the applicant at that stage without dwelling into other disputes was that the impugned orders were violative of rule 8(d)(ii) of Delhi Police (Punishment and appeal) Rules, 1980 and would tantamount to inflicting dual punishment on the applicant. The contention aforesaid was sought to be supported by a judicial precedent in Shakti Singh v Union of India [CWP No.2368/2000 decided on 17.9.2002 by the High Court of Delhi]. Accepting the contention aforesaid, the Tribunal observed as follows:
4. In other words, it was held that in terms of Rule 8(d)(ii) of the Rules, if an order is passed reducing the pay by certain stages for a number of years, then simultaneously other punishments cannot be imposed. A direction ultimately came to be issued by the Tribunal to the disciplinary authority to pick up the loose threads and from the stage where the order imposing the punishment was passed, in accordance with law, pass a fresh order. It was also mentioned that nothing said in the order would be taken as an expression of opinion on the other pleas of the parties. The disciplinary authority, on reconsideration of the matter as per directions of this Tribunal, passed a fresh order dated 25.4.2003, appeal against which was dismissed on 9.9.2003. The applicant approached this Tribunal for the second time by filing OA No.2988/2003, which was disposed of on 26.5.2004. It appears that the order of penalty this time was in consonance with the directions issued by this Tribunal, but the point raised in OA No.2988/2003 pertained to the dissenting note recorded by the disciplinary authority. It may be recalled that insofar as the enquiry officer is concerned, he had exonerated the applicant of the charges framed against him. The contention raised in the OA pertained to the note of disagreement, which, according to the applicant, was a final expression of opinion. The same insofar as, is relevant, reads thus:
I have gone through the DE file carefully, and I have also perused the statement of PWs, documentary evidence and also the cross examination by the defaulter. On the basis of the evidence on file and the documents available on record it is very strange that any E.O. can exonerate the defaulter. It is a fit case of punishment. I tend to disagree with the finding of the E.O. In this particular case the AF on duty could notice a person being sent back from the counter by the defaulter and AF shift deputed one Inspr. to follow the movement. The passenger came back to the same counter and handed over the passport to the defaulter. At this time the officer intercepted and recovered money from the passport and recorded the statement of the passenger in question. I do not think one can get better evidence of prosecution. It is a direct evidence on record which is sufficient to prove that the defaulter has committed a grave lapse. (Emphasis supplied).
The Tribunal in support of the contention raised by the applicant that the dissenting note was not tentative as the disagreement expressed positively was that it was a fit case for punishment and that there could not be better evidence for prosecution which would be sufficient to prove the default of the applicant. The impugned order was set aside for that reason only. Operative part of the order passed by the Tribunal reads as follows:
8. For these reasons, on this short ground, the OA is allowed. The impugned orders are quashed. It is directed that respondents, if deemed appropriate, may pick up the loose threads from the stage the inquiry report was put up before the disciplinary authority and the disciplinary authority recorded a note of disagreement accordingly. In the impugned orders now passed, the respondents have again reiterated their order dated 25.4.2003 while giving the punishment to the applicant as mentioned therein. The applicant was indeed given a show cause notice to which he submitted representation requesting to exonerate him, but he was ultimately inflicted punishment vide order dated 28.4.2005, appeal against which also came to be dismissed on 1.6.2006. These are the orders which have now been challenged by the applicant.
3. As in OA No.2988/2003, in the present OA too the contention raised is that the note of dissent is not tentative, and it is rather a final expression of opinion holding the applicant guilty beyond reasonable doubt. After expressing the opinion as mentioned above, reasons have been given by the concerned authority for disagreeing with the report of the enquiry officer and calling upon the applicant to furnish his explanation. We may refer to the part of the dissenting note on the basis of which it is urged that the same is not tentative, but is a final expression of opinion. The same reads, thus:
In pursuance of para-8 of Honble CATs judgment dated 26.05.2004 in OA No.2988/2003 Ramesh Chander Vs. GNCT of Delhi & Ors. filed by the Head Constable against the modified order No.1962-92/For (HAP), dated 25.4.2003, the undersigned re-assessed all the pros & cons evidence on record and have sufficient grounds to disagree with the findings of the E.O. which will prove the charge served upon the Head Constable during DE proceedings beyond doubt (Emphasis supplied).
4. We are of the considered view that the disciplinary authority has made the same mistake which was made while recording the dissenting note on the earlier occasion, and for parity of reasons as given in the order dated 26.5.2004 in OA No.2988/2003, the impugned orders have to be set aside. It is a settled proposition of law that the disciplinary authority while recording the note of dissent cannot pre-judge the issue before even representation is invited and received from the employee. Surely, if the reasons given by the disciplinary authority were such that the delinquency against the applicant was proved beyond doubt, there was no question whatsoever for change in the mind of the said authority after receipt of representation by the applicant. The impugned orders are once again set aside, and again, with the direction to the respondents to deal with the matter from the stage of submission of report by the enquiry officer. It is unfortunate that the matter has to be remitted for the second time for the same reason, but there is no other course available to this Tribunal. Inasmuch as, a considerable period has gone by since the enquiry started against the applicant, we direct the disciplinary authority to deal with the matter and pass final orders as expeditiously as possible and preferably within a period of three months from the date of receipt of this order. We expect that, if the authority may differ with the report of the enquiry officer this time as well and serve the reasons for disagreement to the applicant, the applicant would respond to the same within fifteen days thereof.
5. This Application is disposed in the manner indicated above, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/