Central Administrative Tribunal - Delhi
Dhanesh Kumar vs Comm. Of Police on 17 January, 2023
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Item No.34,35,36,37 O.A. No. 2407/2017
O.A. No. 2408/2017
O.A. No. 2409/2017
O.A. No. 2410/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2407/2017
OA No. 2408/2017
OA No. 2409/2017
&
OA No. 2410/2017
This the 17th day of January, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
OA No. 2407/2017
Constable Neer Singh,
Son of Shri Singh A/o 30 years,
R/o Barak No. 313, P.S. C.R. Park Park III Floor,
District South Ext N.Delhi.
... Applicant
(By Advocate:- Mr. Akshat Shrivastava with Mr. Satvic
Mathur)
Versus
1. Govt. of NCT of Delhi through,
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. The Additional Commissioner of Police,
Delhi Armed Police,
New Delhi-110002.
3. Deputy Commissioner of Police,
III BN.DAP, New Delhi-110018.
... Respondents
(By Advocate:- Mr. Amit Anand)
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O.A. No. 2408/2017
O.A. No. 2409/2017
O.A. No. 2410/2017
OA No. 2408/2017
Constable Ajay Pal,
Son of Shri Jeet Ram A/o 41 years,
R/o House No.50 Village Jhulijhuli,
Post Office Gumanhera, New Delhi-110073.
... Applicant
(By Advocate:- Mr. Akshat Shrivastava with Mr. Satvic
Mathur)
Versus
1. Govt. of NCT of Delhi through,
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. The Additional Commissioner of Police,
Delhi Armed Police,
New Delhi-110002.
3. Deputy Commissioner of Police,
III BN.DAP, New Delhi-110018.
... Respondents
OA No. 2409/2017
Head Constable Dhanesh Kumar,
Son of Shri Ram Prasad A/o 44 years,
R/o A-353, II Floor, Police Colony,
Salimar Bagh 110088.
... Applicant
(By Advocate:- Mr. Akshat Shrivastava with Mr. Satvic
Mathur)
Versus
1. Govt. of NCT of Delhi through,
Commissioner of Police,
PHQ, IP Estate, New Delhi.
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O.A. No. 2408/2017
O.A. No. 2409/2017
O.A. No. 2410/2017
2. The Additional Commissioner of Police,
Delhi Armed Police,
New Delhi-110002.
3. Deputy Commissioner of Police,
III BN.DAP, New Delhi-110018.
... Respondents
OA No. 2410/2017
Constable Ramesh Chandra,
Son of Shri Sharad Chandra, A/o 38 years,
R/o Village and Post Dharu, Dist. Jjunjhanu,
Rajasthan.
... Applicant
(By Advocate:- Mr. Akshat Shrivastava with Mr. Satvic
Mathur)
Versus
1. Govt. of NCT of Delhi through,
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. The Additional Commissioner of Police,
Delhi Armed Police,
New Delhi-110002.
3. Deputy Commissioner of Police,
III BN.DAP, New Delhi-110018.
... Respondents
(None)
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O.A. No. 2410/2017
O R D E R (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The subject matter of all the captioned OAs being identical, they are disposed of with this common order. For the sake of convenience, we are primarily dealing with the facts of OA No. 2407/2017.
2. The following charges have been levelled against the applicants in the captioned OAs:-
"Summary of Allegation It is alleged that on 22-12-2013 the custody of UP Paras @ Goldy @ Pradhan s/o Prem singh R/o Rohini Jail was handed over to escort party consisting of HC Dhanesh Kumar No. 2599/DAP (PIS No. 28910027) Ct. Ramesh Chander No.7343/DAP (PIS No. 28010465), Ct. Ajay Pal No. 2258/DAP (PIS No. 28961597) and ct. Neer Singh No. 7708/DAP (PIS No. 28081105) to produce him before the Hon'ble Court at Mansa & Gidharbha (Punjab). On 23-12-2013 UP was produced in Mansa court & on 24-12-2013 UTP was produced in the court of Gidharbha.After production of UTP they tool train for Bhatinda Railway Station. On reaching ~ at Bhatinda Rly Station they boarded in Firozpur Delhi Passenger train for returnjourney. While returning back to Delhi, UP Paras @ Goldy @ Pradhan S/o Prem Singh, R/o Rohini Jail, probably after drugging the members of escort party escaped from the custody because all the members of escort party were found in unconscious drowsy condition at Old, Delhi RI Station as per information lodged vide DD No. 13-A and 14-A, dit. 25- 12-2013 of Vikas Puri Police Line. The Government weapon MP-5 alongwith 15 live cartridges which was issued to Ct.Neer Singh No. 7708/DAP was also found missing. Later, on the statement of HC Dhanesh Kumar No. 2599/DAP a case vide FIR No. 290 dt. 25-12-13 U/S 328/379/224 IPC has been registered at PS Old Delhi Rly Station, which is under investigation. The above act on the part of escort party i.e. HC Dhanesh Kumar No.2599/DAP, Ct. Ramesh Chander No. 7343/DAP, Ct. Ajay Pal No. 2258/DAP and Ct.Neer 5 Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 Singh No. 7708/DAP amounts to gross misconduct, negligence, carelessness, violation of standing instructions contained in SO. No. 52 and dereliction in the discharge of their official duties which is unbecoming of Police officers in disciplined force, that renders them liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) rule-1980."
3. On the basis of aforementioned charges, the applicant in the present OA was placed under suspension vide order dated 25.12.2013. In the meantime, the UTP was apprehended and the stolen articles being the weapon and the cartridges were recovered. Vide order dated 17.06.2014, the applicant was reinstated from suspension and a fact find enquiry had been conducted by the disciplinary authority, which agreed with the findings of the enquiry officer and awarded a punishment of forfeiture of two years approved service permanently entailing proportionate reduction in pay and his suspension period was decided as period, "not spent on duty". Being aggrieved, he preferred a joint appeal with all the applicants in the captioned OAs before the Additional Commissioner of Police (Delhi Armed Police) and the appellate authority rejected the said appeal vide order dated 11.05.2015, upholding the impugned order passed by the disciplinary authority.
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4. Notices were issued. The respondents put appearance and filed counter affidavit contending therein that the plea put forth by the applicant and his co-defaulters in his final written representation against the findings of the inquiry officer were found devoid of force and not tenable. All the relevant and relied upon documents were provided to the applicant and his co-defaulters during the DE proceedings and there is no document in the DE file which suggests that the applicant ever demanded the preliminary enquiry report. Moreover, as per standing instructions contained in S.O. No. A-20, the preliminary enquiry shall not be part of the departmental enquiry. In their second plea, the applicant claimed to be innocent as the case is registered against the UTP only. The applicant and his co-defaulters cannot take advantage of non-registration of case against them. They all were the joint custodian of the UTP and were supposed to ensure his safe and secure custody. But due to their dereliction in discharge of duty, the UTP escaped from their custody after drugging the applicant and his co-defaulters because they all were found in unconscious/drowsy condition at Old Delhi Railway Station. The Government weapon MP-5 along with 15 live 7 Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 cartridges which was issued to Constable Neer Singh one of the defaulters, was also found missing. Had the applicant along with his co-defaulters been more alert while escorting the UTP, they could not have been drugged and the incident of escape of UTP from their custody as well as missing of arm / ammunition could have been averted. There was clear dereliction of duty on the part of the applicant and his co-defaulters. Mere recovery of stolen arm /ammunition and arrest of the UTP cannot prove the innocence of the applicant and his co-defaulters. The DE file does not suggest anywhere that the applicant was deprived of effective cross examination. The applicant along with his co-defaulters was given ample opportunity to cross examine the PWs during the DE proceedings which they availed. There is no violation of instructions contained in S.O. No. A-20. The applicant cannot take advantage of earlier decided cases as well as court rulings, as each and every case is decided on its own merits. The applicant and his co- defaulters were also called and heard in O.R. held on 30.1.2015. During O.R. he did not add anything new to what he had stated in his final written representations. The applicant was charged with dereliction of duty and 8 Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 unbecoming of a police officer in that on 22.12.2013, the applicant and his co- defaulter were detailed to escort UTP Paras Goldy Pradhan of Rohini Jail and to produce him before the Hon'ble Courts at Mansa and Gidharbha (Punjab) on 23.12.2013 and 24.12.2013respectively. While they along with UTP Paras @ Goldy Pradhan were returning to Delhi, the UT escaped from their custody by drugging them as the applicant along with his co-defaulters were found in unconscious / drowsy condition at Old Delhi Railway Station. The Government weapon MP-5 and 15 live cartridges which was issued to Constable Neer Singh was also found missing. During departmental enquiry proceedings, the E.O. has examined five prosecution witnesses. The PW-1 produced the original Daily Diary of Rohini Jail containing DD No. 9 dated 22.12.2013 and got it exhibited as Exb. PW-1/A. This DD entry proved that the applicant along with his co-defaulters were the joint custodian of UP Paras S/o Prem Singh and departed with him for court production at Mansa and Gidharbha (Punjab). The PW-2 has produced the Command Certificate and got it exhibited as Exb. PW-2/A. This exhibit proves that the applicant along with his co-defaulters were 9 Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 detailed in UPParas @ Goldy S/o Prem Singh for production duty. PW-3 produced the Kot Register dated 22.12.2013 and proved that Government weapon MP-5 and 35 cartridges were issued to Constable Neer Singh and got it exhibited as Exb. PW-3/A. The PW-4 produced the relevant DD entries in which it has been recorded that the applicant along with his co-defaulters were found under intoxication at Old Delhi Railway Station and their admission to Aruna Asaf Ali Hospital where they were unfit for statement. These DD entries also proved that UP Paras @ Goldy escaped from their custody and MP-5weapon and ammunition was also missing. These DD entries had been exhibited as Exb. PW-4/A to D. The PW-5 is Inspector Udayveer Singh, SHO / Old Delhi Railway Station who got exhibited the copies of FIR No. 290/2013 as well as the MLCs of the applicant along with his co-defaulters as Exhibits PW-5/A to E. From the overall facts and material brought on DE file, it clearly proved that the UTP Paras escaped from the custody of the applicant along with his co-defaulters after drugging them. The Govt. weapon MP-5 and ammunition which was issued to Constable Neer Singh was also missing / stolen. The applicant along with his co- 10
Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 defaulters was joint custodian of UTP Paras and it was their prime duty to ensure his safe custody. But it had been proved beyond any shadow of doubt that UP Paras had escaped from their lawful custody due to their dereliction in discharge of duty. Constable Neer Singh was also supposed to ensure the safe custody of Govt. property i.e. MP-5 weapon and ammunition which he miserably failed. Keeping in view the overall facts and circumstances of the case, evidence brought on DE file, findings of the E.O, final written representations of the applicant and his co-defaulters as well as above detailed discussion, the Disciplinary Authority imposed the punishment of forfeiture of two years approved service permanently entailing proportionate reduction in pay awarded to the applicant and his co-defaulters. Their suspension period from 25.12.2013 to 16.6.2014 was also decided as period "not spent on duty".
5. The short question raised before us is whether the applicant was given reasonable opportunity to defend himself or not?
6. Heard both the parties and perused the records. 11
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7. Per contra, learned counsel for the respondents submits that there was clear dereliction of official duty on the part of the applicant and his co-defaulters. Mere recovery of stolen arm/ammunition and arrest of the UTP cannot prove their innocence. Moreover, the charges against the applicant and his co-defaulters are carelessness and dereliction in the discharge of their official duties as UTP Paras @ Goldy Pradhan (a high risk person) had escaped from their lawful custody, which was also proved during the DE proceedings. However, the applicant and other defaulters have failed to safe guard the government weapon i.e. MP5 alongwith 15 cartridges which were issued to him for ensuring for security of the UTP. It is submitted that if they remained alert during escorting the UTP, this incident could have been averted.
8. To the aforesaid contention, learned counsel for the applicant submits that if there was a high risk prisoner, then there should have been a sub-inspector accompanying them but the same was not done. He further submits that they have purchased juice from a Railway vendor and there is no iota of doubt that these drinks could have been contaminated by the Railway vendor. 12
Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 On the contrary, learned counsel for the respondents submits that at every stage, the applicant had been granted adequate opportunity to defend himself. He has relied upon the judgment dated 14.12.2022 of the Hon'ble High Court of Delhi titled Gopal Singh vs. The Commissioner of Police & Ors. rendered in W.P.(C) No. 1313/2012 & Batch, wherein it is stated as under:-
"The reason for drawing this conclusion is that the escort party was already aware about the previous conduct of the UTP and that he was a dangerous criminal who had managed to escape from the custody of the police on a prior occasion as well. Further, no mitigating circumstances with regard to past services rendered by delinquent employees or that there was no carelessness on their part have been placed before us.
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15. The only other point that in no other case punishment of dismissal from service has been imposed, where an incumbent has been found guilty of carelessness and negligence in case a prisoner had escaped, cannot be sustained, as punishment has to be imposed in accordance with facts and circumstances of each case. In the present case, five police men were deployed for securing safe custody on one criminal who possessed a serious criminal background. If we view the present case in this backdrop, it cannot be said that punishment of dismissal of service imposed upon the petitioners is disproportionate. It may also be pointed that the case of Head Constable Randhir Singh, which has been cited before us by the petitioner, for the purpose of drawing equivalence, can be distinguished inasmuch as, in that case the UTP who escaped from custody was involved in a civil suit under Section 13 of the Hindu Marriage Act, which is an entirely different offence."
He has also relied upon another judgment dated 12.03.2007 titled Babu Ram S/o Kalu Ram vs. State of 13 Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 U.P. passed by the Hon'ble High Court of Allahabad. The relevant portion of the said judgment reads as under:-
"10. Before dealing with the submissions advanced by learned Counsel for the petitioners it would be necessary to bear in mind that the nature of the charge, the duties and responsibilities of the petitioners have to be considered in the light of the fact that they being members of a police force were responsible for maintaining law and order, safety and security to the people at large. While discharging their duty of escorting a criminal from jail to the Court, the petitioners were expected to show alertness and wisdom with regard to the safe custody of the prisoner of the highest level, non-comparable with a common man since the petitioners primary duty was to remain alert and take adequate precaution throughout and at every moment while on duty so that no criminal activity successfully could have been committed by anyone. Moreover, the judicial review disciplinary proceedings proceed in a narrow sphere and is confined to the extent of finding error, if any, in the decision making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not courts and hence not bound by strict rules of evidence."
9. Taking note of the aforesaid judgments, the contentions raised by the learned counsel for the applicant is well answered by the Hon'ble High Court of Delhi, where it is categorically stated that it depends on case to case basis, the disciplinary authority has to form its own view as to what kind of punishment should be given to the offender. Thus, we find that at every stage, the applicant was given adequate opportunity, hence the plea of the applicant that he had not been sufficiently heard does not 14 Item No.34,35,36,37 O.A. No. 2407/2017 O.A. No. 2408/2017 O.A. No. 2409/2017 O.A. No. 2410/2017 sustain. In our view, the disciplinary authority has taken a lenient view in punishing the applicant and the co- defaulters.
10. Learned counsel for the applicant further submits that this is a case of no evidence against the applicant, even none of the witnesses has given statement against him. The enquiry officer has given findings only on his own. There is no material available on record. He further raised an objection of quantum of punishment.
11. After considering the rival contentions and material placed before us, we find no merit in the present OA. Hence the OA is dismissed. No costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
/yaksh/