Central Administrative Tribunal - Delhi
Coram vs Commissioner Of Police on 20 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.33 OF 2013 New Delhi, this the 20th day of July, 2015 CORAM: HONBLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Sh. Upadhyay Balashankaram, s/o late Sh.R.Upadhyay, R/o Judge Colony, Sec.9, Vaishali, Ghaziabad .. Applicant (By Advocate: Mr.Ajesh Luthra) Vs. 1. Commissioner of Police, PHQ,MSO Building, IP Estate, New Delhi 2. Joint Commissioner of Police, New Delhi Range, PHQ, MSO Building, IP Estate, New Delhi 3. Deputy Commissioner of Police, North East, Police Station Seelampur, Delhi 110053 . Respondents (By Advocate: Ms.Sumedha Sharma) .. ORDER RAJ VIR SHARMA, MEMBER(J):
The applicant is a Sub-Inspector in Delhi Police. The Deputy Commissioner of Police, North East District, Delhi (hereinafter referred to as disciplinary authority), vide his order dated 28.7.2009(Annexure A/4), ordered that a regular departmental enquiry against the applicant would be conducted by the Inquiry Officer into the allegations levelled against him in the said order. Pursuant thereto, the Inquiry Officer served the summary of allegations, list of documents, and list of witnesses (Annexure A/5 collectively) upon the applicant. The summary of allegations served on the applicant reads thus:
It is alleged against you SI U.Balashankaram No.D-290 (PIS No.16970182) that during the trial of case FIR No.240/06 U/S 393/394/398 IPC & 25 Arms Act PS MS Park, the Honble Court of Sh.Surender Kumar Sharma, ASJ Karkardooma Courts, Delhi on dated 30/4/2009 issued attachment/warrant against the IO of the above case SI U.Bala Shankaram No.D-290, in the sum of Rs.5000/- and non bailable warrant for 27/5/2009 as you were absent despite service of bailable warrant and notice u/s 350 Cr.P.C. On 15/5/2009, you SI U.Bala Shankaram No.D-290 move an application for cancellation of NBW/Warrant of attachment in the Court on the grounds that on 30/4/2009 due to Multiple Election rallies and Traffic jam you were late and when you reached the Court the matter had already adjourned. But you SI U.Bala Shankaram No.D-290 did not file any reply of notice u/s 350 Cr.P.C. the said application was taken up for hearing on 18/5/2009 with the direction to file the reply/explanation duly forwarded by DCP/NE. Thereafter you SI U.Bala Shankaram No.D-290 did not file reply.
On 26/5/2009, the Honble Judge was on leave, you SI U.Bala Shankaram No.D-290 filed an application in the Court of Sh. B.S.chumbak, ASJ, Karkardooma Courts for cancellation of NBW and warrant of attachment but you did not disclose the fact in the said application that the same matter is pending in the Honble Court of Sh.S.K.Sharma, ASJ/Karkardooma Courts, Delhi. The said application was heard by Sh.B.S.Chumbak, ASJ, Karkardooma Courts Delhi and stayed the operation of NBW till 27/5/2009 and warrant of attachment never stayed. Thus you SI U.Bala Shankaram No.D-290 misleads the Court.
On receiving the attachment order and NBW dated 30/4/2009 against you in Legal Cell/NE, the same was marked to SHO/MS Park for execution vide Dy.No.3837/Legal Cell/NE dated 12/5/2009. SHO MSPark marked the said attachment order and NBW to SI Baldev Singh No.2958-D for execution. SI Baldev Singh went to Mobile Crime team office on PS Shahdara where you SI U.Bala Shankaram No.D-290 told to SI Baldev Singh that the NBW and attachment order have been stayed and also gave a photocopy of the order dated 26/5/2009 of the Honble Court of Sh.B.S.Chumbak, ASJ, Karkardooma Courts Delhi. You SI U.Bala Shankaram No.D-290 misguided to SI Baldev Singh about the attachment order which was not stayed in the order. SI Baldev Singh accordingly submitted his report as per version of SI U.Bala Shankaram No.D-290.
In view of the above facts, it is quite clear that you SI U.Bala Shankaram No.D-290 mislead the Court of Sh.B.K.Chumbak, ASJ, Karkardooma Courts and also concealed the facts that the matter is also pending in the Court of Sh.Surender Kumar Sharma, ASJ, Karkardooma Courts Delhil. You SI U.Bala Shankaram No.D-290 misguided to SI Baldev Singh of PS MS Park regarding stay of attachment order, knowingly.
The above act on the part of you SI U.Bala Shankaram No.D-290 (PIS No.16970182) amounts to gross misconduct, negligence, carelessness and dereliction in discharge of official duties which render you unbecoming police officer and liable you to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal)Rules, 1980. During enquiry, the Inquiry Officer framed the charges against the applicant and recorded depositions of P.Ws. and D.Ws.. The applicant submitted his defence statement (Annexure A/6) wherein he specifically referred to his letter/petition dated 26.5.2009 (Annexure A/9) filed before Shri B.K.Chumbak, ASJ, Karkardooma Courts, for cancellation of NBW and warrant of attachment; the order dated 26.5.2009 (Annexure A/10) passed by Shri B.K.Chumbak, ASJ, Karkardooma Courts; the deposition of P.W.3-SI Baldev Singh, and pleaded that the charges levelled against him that he had misled Shri B.K.Chumbak, ASJ, Karkardooma Courts and concealed the fact that the matter was pending in the court of Sh.Surender Kumar Sharma, ASJ, Karkardooma Courts Delhi, and that he had misguided SI Baldev Singh of PS MS Park regarding stay of attachment order, were founded on no materials whatsoever. In support of his plea, the applicant also examined two witnesses as D.Ws.1 and 2. However, the Inquiry Officer submitted his enquiry report (Annexure A/3) finding that the charges against the applicant were proved beyond any shadow of doubt. Reiterating his plea as raised in defence statement, the applicant submitted his representation (Annexure A/7) against the findings of the Inquiry Officer. The disciplinary authority, vide his order dated 14.1.2011 (Annexure A/2), imposed on applicant the penalty of withholding/forfeiture of two annual increments without cumulative effect. The applicants appeal (Annexure A/8) was rejected by the Joint Commissioner of Police, New Delhi Range, Delhi (hereinafter referred to as appellate authority), vide his order dated 16.12.2011 (Annexure A/1). Hence, the applicant filed the present O.A., seeking the following reliefs:
(a) quash and set aside the impugned order at Annexure A/1, A/2 and A/3, and
(b) grant all consequential benefits including seniority and monetary benefits,
(c) award costs of the proceedings, and
(d) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. Opposing the O.A., the respondents have filed a counter reply wherein, besides narrating the facts leading to initiation of the departmental enquiry, service of summary of allegations along with the lists of witnesses and documents on the applicant, framing of charge, examination of P.Ws. and D.Ws., filing of defence statement, representation of the applicant against the findings of the Inquiry Officer, passing of the order of punishment, and rejection of the applicants appeal, it is submitted that on the basis of evidence and materials available on record, the Inquiry Officer and disciplinary authority have found the charges as proved against the applicant and therefore, the enquiry report and the orders passed by the disciplinary and appellate authorities do not call for any interference and the O.A. being devoid of merit is liable to be dismissed.
3. The applicant has filed a rejoinder reply refuting the stand taken by the respondents.
4. We have perused the records and have heard Mr.Ajesh Luthra, learned counsel appearing for the applicant, and Ms.Sumedha Sharma, learned counsel appearing for the respondents.
5. During the course of hearing, Mr. Ajesh Luthra, learned counsel appearing for the applicant, invited our attention to (i) the letter/petition dated 26.5.2009 (Annexure A/9) of the applicant filed before Shri B.K.Chumbak, ASJ, Karkardooma Courts; (ii) the order dated 26.5.2009 (Annexure A/10) passed by Shri B.K.Chumbak, ASJ, Karkardooma Courts; and (iii) the deposition of P.W.3-SI Baldev Singh (reproduced in the enquiry report), and submitted that the charges levelled against the applicant were baseless. The Inquiry Officer, disciplinary authority, and appellate authority have failed to consider the applicants plea based on the aforesaid materials available on record and therefore, the conclusions arrived at by the Inquiry Officer and disciplinary authority are perverse and based no evidence. It was also submitted by Mr.Luthra that the appellate authority has also failed to consider the aforesaid plea of the applicant.
6. On the other hand, Ms.Sumedha Sharma, learned counsel appearing for the respondents, submitted that the charges levelled against the applicant are based on sufficient materials available on record; that the conclusions have been arrived at by the departmental authorities on the basis of evidence, both documentary and oral, available on record; and that there is no scope for interference with the findings arrived at by the Inquiry Officer and the disciplinary authority.
7. For considering the rival contentions of the parties, it would be necessary to reproduce the letter/petition dated 26.5.2009 (Annexure A/9) filed by the applicant before Shri B.K.Chumbak, Additional Sessions Judge, Karkardooma Courts, Delhi, as follows:
In the Court of Sh. B.S.Chumbak, Ld. Link ASJ to Court of Sh.S.K.Sharma, Ld. ASJ Court No.59 KKD.
FIR No.240/06 u/s 392/394/397 IPS, MS Park s/v Sujeet Kumar.
Sub: Request for cancellation of NBW and warrant of attachment.
Honble Sir, Most humbly it is submitted that in above noted case I had to appear as PW in the court of Sh.S.K.Sharma, Honble ASJ, Court No.59, KKD Courts on 30.4.09. On that day due to multiple election rallies and traffic jams I got delayed by 5 minutes and when I reached in the court, the matter had already been heard by the Honble Court. Now I come to know that the Honble court has issued NBW and warrant of attachment against me due to my non-appearance.
Sir, I extend my unconditional apology for the fault on my part and assure your honour that on next dates I will always be on time. Sir, it is further submitted that since 2006 I have appeared on dates in this case.
I will be highly obliged for this magnanimity.
Sd/ SI U.Balashankaram, MCT/NE 26.5.09.
Be put up before court of Sh.B.S.Chumbak today fixed at 2 PM with file.
Sd/ 26.5.09 Ms.Sujata Kohli Addl.Distt. & Sessions Judge Motor Accident Claims Tribunal, Room No.48, 1st Floor, Karkardooma Courts Shahdara, Delhi 7.1 It would also be relevant to reproduce the order dated 26.5.2009(Annexure A/10) passed by Shri B.K.Chumbak, Additional Sessions Judge, Karkardooma Courts, as follows:
B.S.CHUMBAK Addl.Dist. & Sessions Judge Room No.63, 4th Floor, Karkardooma Courts, Delhi FIR No.250/06 PS M.S.Park 26.05.09.
File is taken up today on an application for seeking cancellation of NBW assigned to this court.
Present: Sh.S.K.Raghuvanshi Ld.Addl.P.P. for State.
Applicant SI U.Balashankaran in person.
Arguments heard.
Since the order of attachment in the sum of Rs.5000/- has already been passed on 30.4.09 and this amount is yet to be deposited. Ld.P.O. is on leave today, therefore, it would be in the interest of justice if application may be decided by the concerned court, therefore, application be put up on 27.5.09 before the concerned court till then operation of NBW is stayed.
Copy of the order be given dasti.
Sd/ (B.S.CHUMBAK) ASJ-3/NE/KKD/DELHI 26.5.09. 7.2 A plain reading of the contents of the applicants letter/petition dated 26.5.2009 ibid and the order dated 26.5.2009 ibid passed by Shri B.K.Chumbak, learned Additional Sessions Judge, Karkardooma Courts, makes it clear that the applicant had clearly disclosed the facts that the case FIR No.240/06 u/s 392/394/397 IPS, MS Park, was pending in the court of Shri Surender Kumar Sharma, Additional Sessions Judge, Karkardooma Courts; that he had to appear as a PW before the court of Sh.S.K.Sharma, Additional Sessions Judge, Karkardooma Courts, on 30.4.09; and that due to multiple election rallies and traffic jam, he had got delayed by 5 minutes and when he had reached the court, the matter had already been heard by the said court; and that the said court had issued NBW and warrant of attachment against him due to his non-appearance on the said day. In the order dated 26.5.2009 ibid, copy of which had admittedly been handed over to SI Baldev Singh of PS MS Park, Shri B.K.Chumbak, Additional Sessions Judge, Karkardooma Courts, clearly observed that since the order of attachment in the sum of Rs.5000/- had already been passed on 30.4.09 and this amount had not been deposited and the Presiding Officer of the court passing the said order was on leave on 26.5.2009, it would be in the interest of justice if application might be decided by the concerned court. Accordingly, Shri B.K.Chumbak, Additional Sessions Judge, Karkardooma, while directing the application filed by the applicant to be put up before the concerned court on 27.5.2009, stayed operation of the NBW till then. Thus, it can by no stretch of imagination be said that the applicant had ever misled Shri B.K.Chumbak, ASJ, Karkardooma Courts and concealed the facts that the matter was pending in the Court of Sh.Surender Kumar Sharma, ASJ, Karkardooma Courts Delhi; and that he had not misguided SI Baldev Singh of PS MS Park regarding stay of attachment order. This apart, PW 3-SI Baldev Singh, in his deposition, clearly admitted in the cross-examination that photocopy of the order passed by Shri B.K.Chumbak, Additional Sessions Judge, Karkardooma Courts, Delhi, had been handed over to him by the applicant, and that after going through the said order, he had prepared the report about stay of warrant of attachment. When the order dated 26.5.2009 ibid clearly mentioned that operation of the NBW was only stayed, the report submitted by SI Baldev Singh about the stay of warrant of attachment by the Court was nothing but an outcome of his misconstruing the order dated 26.5.2009 ibid, and therefore, the charge against the applicant that he had misguided SI Baldev Singh cannot be said to have been founded on any material.
8. Though in his defence statement, representation against the findings of the Inquiry Officer, and appeal, the applicant specifically drew the attention of the Inquiry Officer, disciplinary authority, and appellate authority to the letter/petition dated 26.5.2009 ibid, the order dated 26.5.2009 passed by Shri B.K.Chumbak, Additional Sessions Judge, Karkardooma Courts, and the deposition of P.W.3-SI Baldev Singh, in support of his plea that the charges were based on no material whatsoever, yet it is seen that the said authorities have not considered the aforesaid materials in their proper perspective. Therefore, we have no hesitation in holding that the enquiry report and the orders passed by the disciplinary and appellate authority suffer from non-consideration of the materials available on record and/or the plea urged by the applicant, and that the conclusions as reached by the Inquiry Officer and the disciplinary and appellate authorities are such as no reasonable man would have ever reached.
9. In Union of India vs. Upendra Singh, (1994)3 SCC 357, the Honble Supreme Court has held that in the case of charges framed in a disciplinary enquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out. 10. In District Forest Officer Vs. R. Rajamanickam and another, 2000 SCC (L&S)1100, the Hon'ble Supreme Court has held that interference with the charge sheet is possible only where the charge-sheet read with its supporting imputations does not disclose any misconduct.
11. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805, it has been held that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It has also been held that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
12. After having given our anxious consideration to the facts and circumstances of the case and the rival contentions of the parties in the light of the above decisions, we hold that the order dated 28.7.2009(Annexure A/4) passed by the disciplinary authority initiating departmental proceedings, enquiry report dated 10.11.2010 (Annexure A/3), the penalty order dated 14.1.2011 (Annexure A/2) passed by the disciplinary authority, and the order dated 16.12.2011 (Annexure A/1)passed by the appellate authority being unsustainable in the eyes of law are liable to be quashed, and accordingly, the same are quashed.
13. In the result, the O.A. is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN