Central Administrative Tribunal - Delhi
Hc Nav Rattan vs Govt. Of Nct Of Delhi Through on 16 December, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2159/2007 New Delhi this the 16th day of December, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) HC Nav Rattan, IS No.28821321, R/o D-10, Gali No.8, Jagat Puri Extn., Delhi-93. ..Applicant (By Advocate Shri Anil Singhal) Versus 1. Govt. of NCT of Delhi through Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 2. Joint Commissioner of Police, Armed Plice, PHQ, I.P. Estate, New Delhi. 3. Dy. Commissioner of Police (5th Bn. DAP), Through Commissioner of Police, PHQ, I.P. Estate, New Delhi. 4. Addl. D.C.P. (East Distt.), Through Commissioner of Police, PHQ, IP Estate, New Delhi. -Respondents (By Advocate Mrs. Harvinder Oberoi) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
1. To quash and set aside the impugned orders as mentioned in Para-1 of O.A., direct the respondents to restore to the applicant his withheld increment with all consequential benefits including promotion/seniority and arrears of pay.
2. To award costs in favour of the applicant and
3. To pass any order or orders which this Honble Court deem just & equitable in the facts & circumstances of the case.
2. Briefly stated, facts of the case are that the applicant while working as Head Constable a joint departmental enquiry was initiated against him along with Constable Roshan Lal vide order dated 9.1.2006 while posted as Duty Officer and D.D. Writer respectively at PS Mandawali, Delhi one Deepak Kumar a decoy of Sansani programme of Star News channel came to reporting room for recording a missing report of his mobile phone. Constable Roshan Lal No.1837/E, 4318/DAP accepted Rs.100/- as bribe for loding NCR of missing mobile phone and all such transaction about money was done in the presence of applicant by the DD writer Const. Roshan Lal, who was sitting close to him. Applicant has thus failed to supervise his DD writer Const. Roshan Lal. Further allegations are that on 14.09.2005 at Star News Channel a programme Sansani was broadcasted in which Const. Roshan Lal was shown accepting/collecting money from a person namely Deepak for recording NCR for the loss of his mobile phone. Consequently, the applicant along with his co-defaulter were paced under suspension vide order dated 15.09.2005 but subsequently they were reinstated vide separate orders. After obtaining the necessary approval of Joint Commissioner of Police, NDR under Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980 the departmental enquiry (DE) was entrusted to Inspector Om Prakash, SHO, Anand Vihar who conducted the same on day-to-day basis. The enquiry officer prepared the summary of allegations, list of witnesses and list of documents to be relied upon during the DE proceedings and served upon them under proper receipt. After completion of the prosecution evidence, the charge was framed against the defaulters and after getting it approved from the competent authority the same was served upon the applicant, including his co-defaulter. After evaluating the testimonies of the PWs and considering the defence statement of the applicant, the enquiry officer completed the DE and submitted his findings concluding therein that the charge of connivance against the applicant was not proved. However, he was duty bound to supervise his DD writer Const. Roshan Lal. As regards charge against Const. Roshan Lal charge was proved only as per CD telecasted on TV at Star News channel. However, the complainant namely Deepak was not found at his given address nor the Editor, Star News Channel supported the enquiry officer about the whereabouts of the complainant. The disciplinary authority tentatively agreed with the finding of the enquiry officer and the same was served upon applicant, who submitted his representation. The disciplinary authority after going through the findings of the enquiry officer and written representation of the applicant, statements of PWs and DWs and other material brought on the DE file and after hearing the applicant in OR imposed the penalty of withholding of one increment permanently entailing proportionate reduction in the pay from Rs.4560/- to 4575/- vide order dated 15.05.2007 (Annexure A-4). The period of suspension was treated as not spent on duty for all intents and purposes. Applicant filed an appeal against the penalty order, which was rejected by the appellate order vide order dated 23.08.2007 (Annexure A-5). It is these orders which are under challenge before this Tribunal.
3. Notice of this Application was given to the respondents, who have filed their reply, wherein they have categorically stated that in view of the statements made by PW-4 Inspector Mangal Chand, the then SHO/PS Mandawali, East District the charge against the applicant stands proved fully. The said witness has clearly stated in his statement that applicant was performing his duty as a Duty Officer of PS Mandawali at that time and failed to supervise the work of his assistant (DD writer) so possibility of the applicant connivance could not be ruled out. This witness has further stated that all the transaction about money was done in the presence of the applicant. Thus, according to the respondents applicant was duty bound to supervise the activity of his DD writer. Respondents have further stated that during OR the applicant accepted the fault of his assistant, i.e., DD writer Const. Roshan Lal. This clearly shows his lack of supervision while performing his duty as Duty Officer. Respondents have categorically stated that in this case preliminary enquiry was got conducted in accordance with Rule 15 (1) of Delhi Police (Punishment & Appeal) Rules, 1980. It is further stated that after proving the charge leveled against the applicant and his co-defaulter the approval of the competent authority was obtained under Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980. Respondents have also stated that the two DWs, i.e., DW-1 Mahesh Tyagi and DW-2 Danish Raza had only deposed what they have seen while present at the place of incident. None of two can clearly state what happened there as DW-1 was busy with the telephone and DW-2 only had come to see DW-1 and was busy with his own purpose. It was the mere opinion by both the DWs as the applicant was busy in recording FIR of the complainant sitting before him, the applicant could not watch the activity of the DD writer Const. Roshan Lal for which he was duty bound and sitting very close in DO room.
4. Applicant has filed rejoinder, thereby reiterating the submissions made by the him in the OA.
5. We have heard learned counsel of the parties and gone through the material placed on record. The main thrust of the applicant in this case is that for similar misconduct by HC Satyawan and Constable Bhim Singh against whom a DE was initiated with reference to the alleged misconduct committed at PS Sarai Rohilla have been exonerated vide order dated 27.1.2007, as such applicant is also entitled to the similar relief and the action of the respondents in imposing the punishment is arbitrary and discriminatory. It may be stated that when this contention was raised earlier by the applicant this Tribunal has directed the respondents to file additional affidavit, whether the applicant is entitled to the same relief as was granted to HC Satyawan and Constable Bhim Singh. Respondents have filed reply as well as additional affidavit. In the additional affidavit respondents have stated that there are distinct features of disciplinary proceedings against the applicant herein vis-`-vis the disciplinary proceedings against HC Satyawan and Constable Bhim Singh. Respondents have stated that apart from difference in enquiry insofar as different disciplinary authority and enquiry officers were involved in two enquiries, the allegations in two enquiries also varied. While in the case of the incident alleged to have occurred at PS Sarai Rohilla the allegation against the Duty Officer HC Satyawan was that he was also responsible for accepting of the money by Const. Bhim Singh the DD writer and the DD writer could not have committed the misconduct without the connivance of HC Satyawan, the Duty Officer. However, in the instant OA the allegation against the applicant was failure to supervise the DD writer who alleged to have accepted the bribe, which amounted to inter alia negligence dereliction in discharge of official duty etc. Further, it is submitted by the respondents that during the enquiry in the present case the charge of failure to supervise was proven against the applicant and in the other DE the charge of connivance could not be proved. No doubt the charge of connivance is more serious than the charge of lack of supervision but the same could not proved as such the applicant who was found guilty of the charge of lack of supervision was awarded a suitable penalty.
6. The respondents have further stated that in the case of HC Satyawan with whom the applicant has sought to have a parallel drawn, the enquiry officer was trying to ascertain the veracity of the allegation of the connivance. In this connection the conclusion of the enquiry officer in the report of the enquiry officer in the said case is reproduced hereunder:
In the light of the above discussion based on record prepared during the course of formal proceedings, as per the requirement of rule of law and after having gone through the material on record especially the statement of PWs, DWs and respective defence statement of both the delinquent, I am of the opinion that the charge of connivance leveled against HC Satyawan No.424/N is not substantiated as no single evidence came on record against him during the course of DE proceedings. Whereas in contradistinction to the above finding, the finding of enquiry officer with respect to the allegation against the applicant in this OA regarding dereliction of duty etc. was clear and cogent and the same is as under:
HC Navrattan 552/E was working as D.O. & he was busy in lodging the FIR since the complainant was sitting in front of him. His connivance was not proved. However, he was duty bound to supervise his DD writer Const. Roshan Lal No.1837/E.
7. Respondents have further stated that the DWs in their deposition have clearly and successfully demolished the charge of connivance in the other DE by stating affirmatively that there was no interaction between the HC and the Const. before recording the NCR and that neither any one parted with any money to any policeman, whereas in the case of the applicant the DWs could not clearly say that the applicant was alert and supervising the activities in the room. In fact, during cross-examination the DW in the case of applicant has stated that he was busy on telephone at the time of recording of NCR of the Decoy from Sansani. Therefore, on the basis of the above the charge was proved against the applicant and the suitable penalty was awarded to him which has been upheld by the appellate authority as well.
8. Thus, in view of what has been stated above, we are of the view that the applicant cannot draw any assistance from the separate enquiry proceedings conducted in respect of HC Satyawan and Const. Bhim Singh where the charges were different and the enquiry officer in the case of HC Satyawan and Const. Bhim Singh has held them as not guilty of the charge whereas the charges in respect of applicant and his co-defaulter were proved. It may be stated that the co-defaulter, who is alleged to have accepted the bribe of Rs.100/- has not challenged the order of imposition of penalty. The charges leveled against applicant is to the extent that he has failed to supervise his DD writer Const. Roshan Lal who is alleged to have accepted the bribe amounts to dereliction in discharge of official duty. It is not disputed by the applicant that at the relevant time he was sitting in the same room and by the side of Const. Roshan Lal who is alleged to have accepted the bribe of Rs.100/-. The defence of applicant is that he was busy in writing FIR in another case. It is not disputed that the whole incident was telecasted on the Star News channel and even the applicant when appeared before the appropriate authority and heard in OR has admitted the commission of the offence by his DD writer, namely Const. Roshan Lal. If the matter is seen in the light of the facts as stated above and more particularly in the light of the statement of PW-4 it cannot be said that the finding recorded by the enquiry officer, which formed basis to impose the penalty upon applicant is based on no evidence. Further, we are of the view that the applicant has not made out any case for discrimination inasmuch as the enquiry against HC Satyawan and Const. Bhim Singh and qua applicant was based upon different delinquencies and also that qua applicant charges stand proved whereas in respect of HC Satyawan and Const. Bhim Singh charge of connivance was not proved.
9. At this stage, we wish to refer to the decision of the Apex Court in the case of Ms. Obettee Pvt. Ltd. V. Mohd. Shafiq Khan, 2005 (2) SCSLJ 353, whereby it was held by the Apex Court that when all the persons did not stand on the same footing same yardsticks cannot be applied, relying upon its earlier decision in the case of Union of India v. Parma Nanda, JT 1989 (2) SC 132. In the case before the Apex Court respondent along with other workers went on strike. Disciplinary proceedings were initiated against them. Services of the respondent were terminated whereas others were let off on the basis of unconditional apology tendered by them and after giving them a letter of warning. Respondent did not tender any apology rather continued to justify his action. The Apex Court held that it is not a case of discrimination and termination of the services of the respondents from service after enquiry cannot be faulted. Thus, the Apex Court has held that for similar misconduct different punishment can be imposed where the delinquency is different. Thus, the contention raised by the applicant on the basis of discrimination is rejected.
10. Learned counsel of applicant has also half-heartedly argued that there is also non-compliance of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980. Respondents have categorically stated that necessary approval of the Joint Commissioner of Police/NDR was also obtained to hold departmental enquiry against the applicant and his co-defaulter. Thus, in view of this submission made by the respondents in the reply affidavit the contention raised by the applicant deserves outright rejection.
11. In view of the foregoing discussion, OA is found bereft of merit, which is accordingly dismissed. No costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.