Central Administrative Tribunal - Delhi
Asi Brij Pal Singh vs Govt. Of Nct Of Delhi Through on 14 November, 2011
Central Administrative Tribunal Principal Bench OA No. 1/2011 New Delhi, this the 14th day of November, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. R.C. Panda, Member (A) ASI Brij Pal Singh (No. 12741/Sec, PIS 28710338) S/o Mr. Kavi Ram, R/o Village Lyon Malik Pur, District Baghpat, UP. Applicant Group C, Age 59 years. (By Advocate: Mr. Sourabh Ahuja) Versus 1. Govt. of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Traffic, Delhi through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 3. Additional Commissioner of Police Security (PM), Deli through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police Security (SC), Delhi through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate: Mr. Amit Anand) O R D E R Justice V.K. Bali, Chairman:
Brij Pal Singh, Assistant Sub Inspector in Delhi Police, applicant herein, sequel to a joint departmental enquiry has been visited with penalty of forfeiture of one year approved service temporarily entailing proportionate reduction in his pay with immediate effect. His suspension period from 21.12.2005 to 29.05.2009 has been treated as period not spent on duty for all intents and purposes, vide orders dated 13.01.2010. Appeal against the order aforesaid has been rejected by the appellate authority, vide order dated 15.06.2010. These are the orders which have been challenged by the applicant in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The facts of the case, as may emanate from the pleadings and the impugned orders, would reveal that the enquiry officer, after recording statements of HC Anand Prakash as PW-1, A.S. Cheema, DCP/N&CP as PW-2 and SI (Reted.) Dharambir Singh as PW-3, framed the following charge against the applicant and his co-delinquent Inspector Ishwar Singh:-
I, R.K. Sharma, Enquiry Officer and DCP/Security (PM), charge Inspr.(Min.) Ishwar Singh No.D-1/987 and ASI Brijpal Singh No. 2741/Sec. that on 15.09.05 one candidate namely Sh. Amit Choudhary s/o Sh. Raj Kumar Singh appeared in Physical Measurement and Endurance Test during the recruitment of Constables (Executive Male) in Delhi Police. As per Physical Measurement, his height was shown as 178 cms in P.E. &M.T. Sheet. Thereafter, he had appeared before the interview Board on 29.11.2005 against Roll No.840087. His height was re-measured by the chairman of Interview Board (Sh. A.S.Cheema, DCP/N&CP) at the time of interview and found 171.5 cms instead of 178 cms. As such 5 bonus marks of height were not given to the above candidate by the Chairman of Interview Board. Thus, it is clear that the height of candidate by the Amit Choudhary was mentioned 178 cms. By the aforesaid official with a view to give him undue benefit of 5 bonus marks.
The above act on the part of Inspr. (Min.) Ishwar Singh No.D-1/987 and ASI Brijpal Singh NO. 2741/Sec. amounts to gross misconduct and dereliction in the discharge of their official duties and unbecoming of a Govt. servant, which renders them liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980.
3. The applicant and his co-delinquent were given chance to lead evidence in defence. They availed the said opportunity and examined Inspector Tahir Ali Tyagi as DW-1, HC Sant Ram as DW-2, ASI Usha Pandey as DW-3, AS Brij Kishore as DW-4, Inspr. Naval Kishore as DW-5 and Ct. Deepak Rathee as DW-6. The conclusion arrived at by the enquiry officer reads as follows:-
Keeping in view, the documentary evidence, oral evidence, cross-examination of the witnesses, defence statements and discussion of all evidences, it has been established that Inspr. Ishwar Singh No. D-1/987 and ASI Brijpal Singh No. 2741/Sec. are jointly or severally responsible for measuring the height of Amit Choudhary as 178 cms and the charge against them stands proved.
4. The disciplinary authority, vide a speaking order dated 13.01.2010, while rejecting the defence projected by the applicant, held him guilty by observing as follows:-
The contention raised by ASI Brijpal Singh that it was the duty of Inspr. Ishwar Singh to ensure the height of the candidate is correctly recorded can not absolve him of his responsibility as PW-3 SI Dharamvir Singh has stated during the DE proceedings that ASI Brijpal Singh and a constable were reading aloud the measurement to Inspr. Ishwar Singh. It clearly shows that ASI Brijpal was fully involved in the process of physical measurement of the candidates. His further contention that he was suffering from some eyes problem on 15.09.2005 for which he produced the tr5eatment card of the CGHS, is of no avail as ASI should have informed the chairman of the board if he has not able to measure height properly due to his eyes problem. It is an after thought. Producing of copy of treatment card after a long gap of more than three years is not relevant. His next contention that the EO has not considered and discussed the evidence on record properly has no substance as EO has considered and discussed the evidences on record in a systematic manner.
The PWs examined during the DE proceedings have fully supported the charge against the defaulters, as it is clear from their depositions before the EO. The DWs produced by the defaulters during the DE proceedings have not stated anything which can support the defaulters. Therefore, agreeing with the findings of the EO, I conclude that the charge against Inspr. Ishwar Singh No.D-1/987 and ASI Brijpal Singh, No. 2741/Sec. has been proved.
5. The appellate authority, insofar as the applicant is concerned, while upholding the order passed by the disciplinary authority, observed as follows:-
As far as ASI Brij Pal Singh is concerned, I have carefully gone through the facats and circumstances of the case and evidence on record besides hearing the defaulter in person I find that the ASI was working in tandem with Inspr. Ishwar Singh. If Inspr. Ishwar Singh had committed a misconduct by writing height 178 cms., then he is equally responsible for any acts of omission or commission committed during the measurement process. After careful consideration, I see no reason to set aside the impugned order. The appeals of the appellants, therefore, are rejected.
6. This matter came up for final hearing before us on an earlier occasion as well when after hearing arguments, we reserved the judgment. However, vide orders dated 21.10.2011, we required the parties to clarify certain points mentioned in the order aforesaid, relevant part whereof reads as follows:-
2. At the very outset, learned counsel representing the applicant would inform us that insofar as Inspr. Ishwar Singh is concerned, he has not challenged the order or punishment meted out to him. One of the pleas raised in support of the OA is that the enquiry officer had no authority, jurisdiction and power to cross-examine the witnesses examined on behalf of the respondents. For the proposition aforesaid, counsel places reliance upon a judgment of this Tribunal in OA No.570/2009 in the matter of Bikram Singh v Commissioner of Police & others decided on 09.10.2009, which has since been confirmed by a Division Bench of the Honble High Court of Delhi in WP(C) No.3466/2010 decided on 16.07.2010. It has indeed been held by the Tribunal, as confirmed by the High Court, that the enquiring authority cannot cross-examine the witnesses, even though it can ask clarificatory questions. As to whether the questions put to PW-2 and PW-3 by the enquiry officer, would be in the nature of clarification or cross-examination, has not been clarified. Further, as to whether the cross-examination adverted to the witnesses aforesaid would inculpate or exculpate the delinquents, would be yet another question to be examined. To illustrate, if the answer to a question put to a witness by way of cross-examination by the enquiry officer may turn in favour of the delinquent, would it be said even then that the cross-examination, upon which the orders may not be based at all in returning a finding of guilt against the delinquent, would be fatal. We are prima facie of the view that only such questions in cross-examination as put by the enquiry officer, which may support the prosecutions case in returning finding of guilt, would be relevant, and if the decision is not to be based upon such evidence, it may not be possible to hold the proceedings to be vitiated and set at naught. Yet another question that arises is as to whether if there is sufficient evidence to return a finding of guilt without taking at all into consideration the evidence that may come about while cross-examining a witness by the enquiry officer, would the proceedings be vitiated only because of the cross-examination adverted to by the enquiry officer. It appears to us that the counsel representing the applicant was not ready, as he may not be expecting such questions to be raised, which we may clearly mention, have been raised by us and not by the counsel opposite.
3. In the circumstances, as mentioned above, it would be in the interest of justice to list this case again, even though we have reserved judgment, to have the view of the learned counsel representing the parties on the issues mentioned above. The matter was ordered to be listed for hearing on 09.11.2011 with a copy of the order to be supplied to the counsel for parties so that they are ready on the points mentioned in the order.
7. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their counter reply contested the cause of the applicant.
8. We have already mentioned in our order dated 21.10.2011 that insofar as Inspr. Ishwar Singh is concerned, he has not challenged the order or the punishment meted out to him, whereas insofar as other two co-delinquents, namely, HC Rajbir Singh and Const. Nanak Singh are concerned, they were discharged.
9. We have heard learned counsel for the parties and with their assistance examined the records of the case. Mr. Ahuja, learned counsel representing the applicant, would contend that the evidence brought out by the department would manifest that Inspr. Ishwar Singh measured the height of Amit Choudhary because as per orders of senior officers whenever any candidate is disqualified or getting bonus marks in height measurement, in that case height of such candidate is required to be measured by the Inspector himself and, therefore, the applicant cannot be blamed for mentioning the height of the concerned candidate more than what actually he had i.e. 178 cms. instead of 171.5 cms. The only other contention raised by learned counsel for the applicant is that the enquiry officer cross-summoned the witnesses on behalf of the department, and that being so, the entire proceedings stand vitiated.
10. For his second contention, as noted above, learned counsel places reliance on judgment of this Tribunal in OA No.570/2009 in the matter of Bikram Singh v Commissioner of Police & others decided on 09.10.2009, which has since been confirmed by a Division Bench of the Honble High Court of Delhi in WP(C) No.3466/2010 decided on 16.07.2010. Mr. Anand, learned counsel defending the respondents, joins issue with the counsel for the applicant on the point referred to above and would seek dismissal of the present OA. In the context of facts and circumstances of the case, we do not find any merit in either of the contentions of learned counsel for the applicant, as noted above as the applicant was one of the members of the team, who were medically examining the candidates and measuring their heights, is not in dispute. Amit Choudhary was a candidate, who appeared in Physical Measurement and Endurance Test during the recruitment of Constables (Executive Male) in Delhi Police on 15.09.2005, is also not in dispute. In fact and in reality, the height of the concerned candidate was 171.5 cms and that came to be measured and recorded as 178 cms by the team of which applicant was also one of the members is also not in dispute. These facts are otherwise also established on records from the evidence led by the department in the inquiry that was held against the applicant and other co-delinquents. HC Anand Prakash, who appeared as PW-1, stated that he was a Record Keeper in Recruitment Cell and on 15.09.2005 also, he was a Record Keeper. He produced the original Physical Measurement (PM) Sheet of the candidate Amit Choudhary and the duty register of the staff of Board No.1. As per the PMT Sheet, on that day A.S. Cheema, DCP/N&CP was the Chairman of Board No.1. The height of candidate Amit Choudhary having mentioned as 178 cms has been shown to be qualified. As per record, in the list of the On-duty Staff of Board No. 1 at NPL Parade Ground pertaining to 15.09.2005, names of Inspr. Ishwar Singh at serial no.1, ASI Brijpal Singh, applicant herein, at serial no.9; and HC Rajbir Singh at serial no.44 have been mentioned and signatures of all the staff are appended on the attendance sheet except Inspr. Ishwar Singh. There is a tick mark in the space meant for signature of the Inspector. He also produced photocopies of the original PMT sheet of the candidate in question and the attendance sheet of the relevant staff members, who had done the measurement of the candidate. In the cross-examination adverted to him, nothing could be elicited, which may favour the applicant. A.S. Cheema, examined as PW-2, stated that he is DCP/N&CP, Delhi Police since July, 2005. He further deposed that on 29.11.2005, he was deputed to act as Chairman of Board No. 1 which was conducting interview for the recruitment to the post of Constable in Delhi Police and during the course of interview, a candidate Amit Coudhary appeared before the Board, and he found that the height of such candidate had been shown as 178 cms in the PMT sheet provided by Recruitment Cell. As the candidate did not appear to be 178 cms tall, he, thus, directed that the candidate be re-measured for height, and on re-measurement he was found to be only 171.5 cms of height. The Recruitment Cell Staff was called and produced the PMT form wherefrom it was confirmed that the height was mentioned as 178 cms in the form also, but, however, as the actual height was measured as 171.5 cms, bonus marks were not given to the said candidate. He further stated that PMT form of the candidate, which was held on 15.09.2005, also showed the height as 178 cms and the candidate was examined by the Board headed by himself, ACP Abhey Ram and ACP Sita Ram Vohra and the details of the candidate are also exhibited as PW-2/B, which bears his signatures and the signatures of ACP Abhey Ram in the column of measurement of height. Once again, his examination elicited nothing that may favour the applicant. After cross-examination of the said witness by the delinquents, the enquiry officer also cross-examined him. We may reproduce the so-called entire cross-examination adverted to him by the enquiry officer, which reads as follows:-
In the cross-examination by E.O., PW-2 has deposed that instructions were given that Inspector in-charge would get the height & chest measured under his supervision and would either record it or get it recorded. Especially it will be his responsibility in cases when the candidate qualify/disqualify on margin or secure bonus marks. IN these cases inspector will satisfy himself completely and record measurement in PMP form.
11. SI Dharambir Singh, PW-3, who stood retired by the time his statement was recorded, stated that on 15.09.2005 he was deputed with Inspr. Ihwar Singh, who used to write the height of qualified candidates, whereas he (PW-3) used to write the height and roll numbers of candidates who were declared disqualified. In the cross-examination adverted to him by the delinquents, he stated that on 15.09.2005 he was sitting on the table by the side with Inspr. Ishwar Singh and on that day he was deployed on duty by Inspr. Ishwar Singh. ASI Brijpal Singh (applicant herein) and a Constable were telling the measurement of candidates by speaking and the height measurement instrument was also not working properly for which a complaint had also been lodged. He further stated that he was deployed on duty of measurement under the supervision of Inspr. Ishwar Singh and the work of writing height & putting signatures were of Inspr. Ishwar Singh, and he recognizes the handwriting of Inspr. Ishwar Singh, who has written the height as 178 cms and put his signatures against the name of candidate Amit Choudhary. He admitted the fact that as per orders of senior officers, whenever any candidate is disqualified or getting bonus marks in height measurement, in that case height of such candidate is required to be measured by the Inspector himself. He was also cross-examined by enquiry officer. We may reproduce the same, which reads thus:-
While cross-examining by EO, PW-3 has stated that he neither noticed nor anyone told him before and after 15.905 about connivance of Inspr. Ishwar Singh, ASI Brij Pal, HC Rajbir Singh & Const. Nanak Singh with the candidate Amit Choudhary or internally favouring him.
12. In the defence statement made by the applicant, he, in his endeavour, has tried to shift the entire burden on Inspr. Ishwar Singh. From the statement of witnesses and particularly cross-examination adverted to A.S. Cheema, PW-2, by the enquiry officer and the cross-examination adverted to SI Dharambir Singh, PW-3, it is urged during the course of arguments by Mr. Ahuja, learned counsel for the applicant, that once it was a case of grant of bonus marks, the height was measured by Inspector Ishwar Singh, who alone had mentioned it in the form and signed it and, therefore, in these circumstances, the applicant could not be held guilty. In the context of the facts and circumstances of the case, however, we do not find any merit in the aforesaid contention of the learned counsel. Admittedly, the applicant has been one of the members of the team to examine the candidates and measure their height in view of the statement made by PW-3 and that too in cross-examination by applicant and his co-delinquents. The applicant and constable were telling the measurement of the candidates by speaking. Firstly, they could not be speaking about the height of candidates unless they measured them. There may be instructions that when a candidate may not qualify the height test or may require the bonus marks, in that case measurement shall have to be done by the Inspector himself, the positive evidence that has come about in this case is that the applicant and constable were telling the measurement of the candidates by speaking. Even otherwise, it appears that the Inspector would himself measure the height only when, after measurement is done by the others like the applicant and constable, he is reported that either the candidate is disqualified or may require bonus marks. In the very nature of things, it would not appear, in the first instance, that Inspector would himself measure the height of candidates even when he is not reported by the applicant and constable that a particular candidate is disqualified or may require bonus marks. That apart, it appears to us that even if the height of the candidate was measured by Inspector only, it is not possible that the applicant, who was admittedly present at the spot, would fail to notice anything and would be a mere spectator. In the present case, the difference in the height of the concerned candidate Amit Choudhary is not one or two centimeters but is of six and a half centimeters. This plea has been raised at every stage by the applicant and the same, in our view, has rightly been repelled. Enquiry Officer, while rejecting the aforesaid plea, observed that the applicant cannot be absolved of his responsibility on the ground that it was the duty of Inspr. Ishwar Singh to ensure the height of the candidate is correctly recorded. He cannot be mere a spectator, and if Inspr. Ishwar Singh commits a mistake by recording height as 178 cms. in his presence, the applicant has to speak something about it. It also appears that the applicant had also taken the ground of eye problem on the concerned date i.e. 15.09.2005, which stood rejected by all the Authorities, but as no arguments have been raised in that regard, we may not advert to the same. The disciplinary authority rejected the aforesaid defence of the applicant on the basis of the statement made by PW-3 SI Dharambir Singh, mention whereof has been made above. The appellate authority has agreed with the enquiry officer and the disciplinary authority. We are of the firm view that authorities, on the basis of the evidence, have arrived at a correct conclusion. It is too well settled a proposition of law that tribunals and courts would have limited scope for interference in the findings of fact in power of judicial review vested with them.
13. Insofar as the second contention of learned counsel for the applicant is concerned, the only plea raised by learned counsel for the applicant is that the cross-examination adverted to PW-2 and PW-3 advance the case of the department as based upon the said evidence a finding as regards guilt of the applicant has been recorded. We may comment upon this contention of learned counsel hereinafter but before we may do so, we may mention that procedural irregularities, as we understand, unless may result in causing prejudice to the delinquent, would normally not be fatal. Even in criminal trials, procedural irregularities, unless the same may result in some kind of prejudice to an accused, are not the determining factors in rejecting the prosecution version lock stock and barrel. Even in service matters as well, prejudice caused to the delinquent is always one of the determining factors. We may illustrate. Even though unexplained delay in initiating or conducting the departmental enquiry against an employee has been held fatal, but the same per se may not be so, and it is a well settled proposition of law that gravity of the charges and the prejudice that may be caused to the applicant because of delay, are also determining factors. In the context of the facts and circumstances of the case, the cross-examination adverted to PW-2 and PW-3 by the Enquiry Officer, in our considered view, has caused no prejudice to the case of the applicant. Cross-examination adverted to PW-3 only helps the applicant. In the concerned cross-examination, the witness stated that he neither noticed nor anyone told him before or after 15.09.2005 about connivance of Inspr. Ishwar Singh, ASI Brij Pal (applicant herein), HC Rajbir Singh & Const. Nanak Singh with the candidate Amit Choudhary or intentionally favouring him. In fact, the finding as regards no connivance has been arrived at for one of the reasons, which be the cross examination adverted to PW-3. From the cross-examination adverted to the said witness by the delinquents, the applicant may not be prejudiced, as mentioned above, he has rather gained something from the same. Insofar as cross-examination adverted to PW-2 is concerned, it may be recalled that an argument is sought to be raised in favour of the applicant that he may not be held responsible as in a case where bonus marks would be given or because of height a candidate was not to clear the height test, it was the Inspector only who had to measure the height. We have already reproduced the cross-examination by enquiry officer of PW-2 hereinabove. The witness deposed that instructions were given that Inspector in-charge would get the height & chest measured under his supervision, and would either record it or get it recorded. The plea raised by the applicant that Inspector alone was to measure the height and he did so is based upon the deposition made by the witness as well. It is thus a case where from the cross-examination adverted to PW-2 an argument is sought to be raised in favour of the applicant. Cross-examination adverted to the said witness as well, in our view, has not prejudiced the case of the applicant. That apart, the nature of cross-examination adverted to the said witness, it appears to us, would partake the nature of clarification, which is permissible in view of the very judgment relied upon by the applicant in the matter of Bikram Singh v Commissioner of Police & Ors. (supra). We are unable to accept the contention raised by learned counsel for the applicant that cross-examination adverted to this witness became the solitary reason in proving the guilt of the applicant. We may also mention in that regard that the finding against the applicant that he was one of the members of the team which measured the height of the candidates is primarily based on evidence of PW-3 and other attending circumstances. It is not that cross-examination adverted to by the enquiry officer to PW-3 would inculpate the applicant. We are also of the view that cross-examination adverted to this witness would be of clarificatory in nature. In the judicial precedent relied upon by the applicant, the witnesses were cross-examined in the form of questions and answers. The High Court has reproduced the questions and the answers in its judgment. The trend of questions and answers, gives an impression that the witnesses were being cross-examined in the same way they are cross-examined when declared hostile by the Public Prosecutors in a criminal trial. Though the facts of the said case have not been mentioned in detail, but this is the impression that we have gathered from the questions and answers reproduced in the judgment itself. Present matter seems to be a case where even though the mention of words in the cross-examination, the same appears to be the questions, which are of clarificatory in nature.
14. Finding no merit in this Original Application, the same is dismissed leaving the parties to bear their own costs.
(Dr. R.C. Panda) (V.K. Bali) Member (A) Chairman /naresh/