Central Administrative Tribunal - Delhi
Raj Kumar vs Gnct Of Delhi on 22 April, 2013
Central Administrative Tribunal Principal Bench OA No. 3471/2011 New Delhi this the 22nd day of April, 2013 Honble Sh. G. George Paracken, Member (J) Honble Sh. Shekhar Agarwal, Member (A) Raj Kumar S/o Shri Bhagmal Sharma R/o Village and P.O. Randesar, ] Tehsil Baruat, District Bagpat (UP), Constable No.7192/DAP PIS No.28893042 Posted at 3rd Bn. DAP, Vikas Puri Police Complex, New Delhi. .Applicant By Advocate: Shri Majid Khan for Shri Sama Singh. Versus 1. GNCT of Delhi Through its Chief Secretary, Delhi Secretariate, I.P. Estate, New Delhi-110 002. 2. The Commissioner of Police, Police Headquarters, MSO Building, I.P. Estate, New Delhi-110 002. 3. The Special Commissioner of Police, Armed Police, Delhi Police Headquarters, MSO Building, I.P. Estate, New Delhi-110 002. 4. The Deputy Commissioner of Police, 3rd Bn. DAP, Vikas Puri Police Complex, New Delhi-110018. 5. The Enquiry Officer, Shri Rishipal Sharma Inspector Investigation, P.S. Khajuri Khan, Delhi. Respondents By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat. ORDER (ORAL) Sh. G. George Paracken, Member (J):
This Original Application u/s 19 of the Central Administrative Tribunals Act, 1985 is directed against (i) Annexure A-3 Report of the Enquiry dated nil held under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980 and holding that the charge against the Applicant, Constable Raj Kumar has been proved; (ii) the Annexure A-1 order no. 2381-2402/HAP(P-II)/III Bn. DAP dated 17.01.2011 passed by the Disciplinary Authority awarding him the punishment of forfeiture of 02 (two) years approved service temporarily entailing proportionate reduction in his pay for a period of 02 (two) years; and (iii) the Annexure A-2 order No. F.XVI/25/2011/297-300/P.Sec./SPI.CP/AP Delhi dated 27.04.2011 passed by the Appellate Authority rejecting his appeal against the aforesaid order of punishment.
2. Brief facts: There was an allegation against the applicant Constable Raj Kumar that an incident of murder took place on Babar Pur Road in which one Sonu S/o Shri Munna Lal Rawat R/o 749/1, Rehman Building, Shahdara, Delhi was murdered. In that regard, FIR No.38/09 u/s 302/34 IPC was registered in the Police Station Shahdara. Expecting tension in the area of the said Rehman building, the HRD was called for maintenance of law and order and three pickets were set up there and for that purpose, the Applicant posted at PS Shahdara on HRD duty was deputed for duty there along with other staff of Babar Pur Booth. Some media persons from India News went there for covering the aforesaid incident of murder. One public person complained to them that the Applicant who was in drunken state was misbehaving. Those media persons followed him to videograph his behaviour but he fled away from there. Later on, Inspr./ATO PS Shahdara while checking the pickets inside the Rehman Building got the aforesaid information. When he reached Babar Pur market picket, he found that the Applicant had already fled away from the spot to avoid medical examination. A search for him was carried out but he could not be traced. Therefore, he was marked absent from duty, vide DD NO. 5-A dated 04/05.02.2009 at 3.20 AM PS Shahdara. Later he returned for duty, vide DD NO. 39-B dated 05.02.2009 at 11.35 AM, after having been absent for 8 hours and 15 minutes. For the aforesaid alleged misconduct, he was placed under suspension during the period from 06.02.2009 to 16.09.2009. In the meantime, on 23.06.2009, the Deputy Commissioner of Police, North East, Delhi who was his Disciplinary Authority has also ordered a regular departmental enquiry against him.
3. The Enquiry Officer conducted a detailed enquiry in the matter and held that the aforesaid allegations made against him have been proved. The relevant part of the impugned report submitted by the Enquiry Officer is as under: -
DISCUSSION OF EVIDENCES PW-1 HC Manoj Kumar has proved absence and arrival from absence of Ct. Raj Kumar, 1179/NE. PW-2 Ct. Anil Kumar, Ct. Devi Dutt have proved that Ct. Raj Kumar, 1179/NE was deployed for HRD duty. PW-3 ASI Parhlad Singh has proved that on the intervening night of Ct. Raj Kumar, 1179/E alongwith others were deployed at Rehman Building, Hanuman Chowk, Shahdara Delhi. PW-4 Sh. Sunil Kumar has proved the presence of Ct. Raj Kumar at the police booth at the time of incident and when media persons arrived at the place of occurrence the police men fled away form there and Ct. Raj Kumar was pulled out by media person under a tempo parked nearby. PW-5 Sh. Rajiv Nisana has proved that he reached Rehman Building area to cover the murder case of Sonu Rawat. As he reached at the police booth to take videography the police staff fled from the spot. The relatives of the deceased also told him that Ct. Raj Kumar misbehaved with them in the drunken state.
On the other hand Ct. Raj Kumar, 1179/NE produced 6 DWs in his favour but the depositions made by them failed to prove the innocence of Ct. Raj Kumar, 1179/NE beyond doubt.
I have carefully gone through the statement of PWs and also considered the written defence statement of delinquent and exhibits brought on record, other evidence on record and statements of all the DWs.
CONCLUSION : Taking into account the totality of facts and circumstances and record taken on file during DE proceedings and in view of discussion of evidence, the charge against Ct. Raj Kumar, 1179/NE stands proved.
4. The Disciplinary Authority, vide its impugned order dated 17.01.2011, after considering the aforesaid enquiry report, written statement of the applicant and other relevant documents on record awarded him the punishment of forfeiture of 02 (two) years approved service temporarily entailing proportionate reduction in his pay for a period of 02 (two) years. His suspension period from 06.02.2009 to 16.09.2009 was also decided as period Not spent on duty for all intents and purposes which may not be regularized in any manner. The relevant part of the said order reads as under:-
Tentatively agreeing with the findings of the E.O., a copy of the findings was served upon the delinquent Constable by DCP/North East Distt. Vide UO letter NO. 7370/HAP/NE (P-II) dated 03.09.2010 for his written representation against the findings of the E.O., if any. The delinquent Constable received copy of the findings on 09.09.2010 and submitted his written representation against the findings of the E.O. on 25.09.2010. Consequent upon transfer of Constable Raj Kumar, No. 1179/NE (now 7192/DAP) from NE Distt. to 3rd BN, DAP, the DE file was also transferred to 3rd BN, DAP vide No. 10401/HAP/NE (P-II), dated 16.12.2010 for taking further necessary action under Rule 14.4 of Delhi Police (Punishment & Appeal) Rules, 1980.
I have carefully gone through the findings of the E.O. and other relevant records available on D.E. file. He was also heard in O.R. on 12.01.2011. During OR he said that there was some problem in Shahdara area. He was in DCP/Reserve duty. He was sent in that area alongwith other staff and was detailed at one picket duty. He further stated that some bad characters of Rehman Building came to his picket and wanted to burn picket and he refused them to do so wrong act. He was asked to give any documents or DD entry in this regard, but he could not produce any documentary proof in support of his version.
I have gone through the file and find that his version and reply is not genuine. From the statements of prosecution witness recorded during DE proceeding, it has been proved that he was detailed at one of the picket set up after the incident of murder that take place in the area. When media persons tried to take his videography, he fled away from his duty point. The probability of his being in drunken state and avoiding medical examination cannot be ruled out. There was tension in area after the incident of murder. Instead of performing his lawful duty, he fled away from the spot. I agree with finding of EO in which charge has been proved against the defaulter Constable. Therefore, I, Brahm Singh, Dy. Commissioner of Police, III Bn. DAP, Delhi hereby order to award the punishment of forfeiture of 02 (two) years approved service temporarily entailing proportionate reduction in his pay for a period of 02 (two) years upon Constable Raj Kumar, No. 7192/DAP. His suspension period from 06.02.2009 to 16.09.2009 is also decided as period Not spent on duty for all intents and purposes which may not be regularized in any manner.
Let a copy of this order be given to him free of cost. He can file an appeal against this order to the Special Commissioner of Police, Armed Police, Delhi, within 30 days from the date of its receipt on a non-judicial stamp paper valued 0.75 paise by enclosing a copy of this order, if he so desires.
5. The Appellate Authority, vide its order dated 27.04.2011 considered his appeal against the aforesaid order of the disciplinary authority but rejected the same. The operative part of the said order reads as under:-
I have carefully gone through the appeal, impugned order dated 17.01.2011 and all the relevant material on record. The pleas of the appellant are devoid of any merit. During the DE proceedings, the charge leveled against him was proved. The witnesses examined in the DE have supported the Prosecution case. From the statement of PWs and evidence on record, it has been established that due to tension in the area after incident of murder, the appellant was detailed at one of the picket set up, i.e. Babarpur Booth. But instead of performing his lawful duty, he fled from duty point and was marked absent vide DD No. 5A dated 04/05.02.2009 at 3.20 AM, PS Shahdara. He resumed his duty vide DD No. 39B dated 05.02.2009 at 11.35 AM after absenting himself for 8 hours and 15 minutes. It clearly showed that the appellant fled from the duty point to avoid his medical examination. During the DE proceedings, PW-4 clearly stated that policemen were drinking alcohol in the booth. Though, he did not name any policeman but the place was disclosed as the booth where appellant was deputed. The disciplinary authority has passed punishment order after carefully going through the DE file statement of PWs/DWs, defence statement and representation of the appellant, which is justified.
I have also heard the appellant in O.R. on 15.04.2011. During O.R., he did not come out with anything new and repeated his plea. Defence plea has already been rebutted during DE proceedings. Keeping in view the above discussion, I see no reason to interfere with the orders of the disciplinary authority. Hence, the appeal is rejected.
6. Applicant challenged the aforesaid impugned Report/Orders in this Original Application on various grounds. According to him, the Enquiry Authority has, in a mechanical manner and arbitrary manner held that the charge against him was proved though there was no evidence to prove the same. In this regard he relied upon the depositions of the PWs. The PW-2 deposed during the enquiry that he knew the applicant since long but he never have seen him in the state of drunkenness. PW-3 in his deposition stated that at the time of making the departure of the applicant along with other staff, he was not found in the state of drunkenness. PW-4 Sunil Kumar deposed that his brother was surrounded by some bad elements of the area on the night of 4/5.02.2009 and murdered him at about 11.00 P.M. near Rehman Building where a Police Booth was functioning in Rohtash Nagar. He further deposed that police-walas there were consuming alcohol on that night when his brother was murdered and he was crying Bachao Bachao. However, he could not disclose the name of any police-wala who was present in the Police Booth. He alleged that media persons arrived there at night to cover the information/situation of the murder of Sonu Rawat. On hearing the cry some persons had reached from the nearby Dhaba as the police booth was eight steps away from there. PW-4 specifically stated that the applicant was not present at the spot when the media persons reached there. PW-5 Rajiv Nisana deposed that he reached at Rehman Building during night of 4/5.02.2009 in order to cover the murder case of Sonu Rawat. There was a police booth nearby and the staff from PS Shahdara were deployed there. The family members of Sonu disclosed to him that at the time of murder that some policemen were drinking inside the booth. When he reached the police booth to take videogrpahy of the scene, the police-walas fled away from the spot and he has not seen anybody drinking there. Therefore, according to the Applicant, it was clear from the depositions of the prosecution witnesses, none of them have stated that he was found absent from duty to avoid medical examination and as such he is not liable to be dealt with under the provision of CCS leave Rules, 1972 and Standing Order No. 111 of Delhi Police.
7. Moreover, the defence witnesses fully supported his innocence. Sh. Nirmal Singh and Sh. Rajender Pahuja have been examined as DW-1 and DW-2. Both of them have stated that due to the murder of Sonu Rawat in the night of 4/5.02.2009, people have gathered there and they were shouting and trying to set the police booth on fire and they saved the Applicant from the hands of the public gathered there. Both those DWs have also deposed that they intervened with the public and the matter was pacified to avoid any incident of Hindu-Muslim riots. They have also stated that the applicant did not consume alcohol during that night and he was not seen in drunken condition. He was also not seen him trembling or smelling alcohol from his mouth or misbehaving with anyone present there. Further, according to them, they were the eye witnesses and whatever they have narrated were what they saw and did it without any greed or pressure. Similarly, Sh. Jagdish Singh DW-3 who was also an eye witness stated that due to murder of Sonu Rawat, public gathered there and they were trying to set fire the police booth during the night of 4/5.02.2009 and he (DW-3) had removed the applicant from there and he was neither under any drunken condition nor any smell was coming out from his mouth. DW-4 HC Arvind Parasar and DW-6 Const. Rampal were also the eye witnesses who were detailed for duty at Rehman Buildinng Picket Booth, Rohtash Nagar on 4/5.02.2009. Both those DWs have directed the media persons to go to the house where murder was committed. Both of them have also proved the innocence of the applicant. Shri Vijay Sharma, S/o Sh. Radhey Shyam Sharma who was examined as DW, has also deposed that the applicant was caught by the mob but he was rescued. He specifically deposed that the applicant did not misbehave with any person and also did not consume liquor. Thus all the DWs were eye witnesses and according to their depositions, in the interest justice, the applicant was required to be exonerated from the charge as there was no fault on his part. The applicant has, therefore, again submitted that the findings of the enquiry officer were based on surmises, conjectures and suspicion, which have no place in the eyes of law and they cannot take the place of proof as laid down by the Apex Court in the case of Nand Kishore Prashad Vs. State of Bihar AIR 1978 SC 1277 (1280). According to the Applicant, it was also vitiated as they were contrary to the directions contained in Standing Order No. 125/2008 which provides that the findings submitted by the enquiry officer should be:
Of a speaking nature and should strictly conform to the evidence on record and no extraneous matter should be taken into consideration;
on the evidence adduced during the course of enquiry and the E.O.s observation of psychology and demeanor of witness;
in respect of each charge;
supported by the reasons thereof;
very clear and unbiased;
precisely and carefully written as to convey the correct meaning;
The finding is to be based only on evidence brought on record. The evidence has to be weighed and evaluated very carefully, intelligently, dispassionately and impartially. The enquiry officer has to draw his inference and record his reasoned conclusions and while doing so, the defence evidence has also to be considered appropriately. The assessment of evidence and arguments on each charge should be done under separate headings
8. Further, the findings of the enquiry officer are non-speaking. He has not discussed any evidence or weighed them or evaluated as provided in the aforesaid Standing Order. Moreover, the findings of the enquiry officer were not supported by any reason. Rather, the enquiry officer was merely reproducing the charge, statement of PWs and the contents of defence statement without application of mind. The mere reproduction of the charge and the evidence is no substitute for application of mind. Hence no credence can be given to those findings. In this regard, the learned counsel for the Applicant relied upon the judgement of the Apex Court in Union of India Vs. H.C. Goel AIR 1964 SC 364 wherein it was held that the conclusion arrived at by the Enquiry Officer must flow logically out of the evidence on record based on legal, reliable and credible proof. But in case of the applicant, the conclusion arrived at by the Enquiry Officer was based on irrelevant considerations, conjectures, surmises and suspicion. Again, in the case of UOI & Another Vs Tulsi Ram Patel S.L.R. 1985(2) 576, the Apex Court held that by showing that the evidence adduced at the enquiry is not worthy of credence or consideration and the charge proved against him are not of such a character as to merit the extreme punishment and only lesser punishment ought to have been sufficient.
9. Learned counsel for the Applicant has further submitted that the impugned order passed by the Disciplinary Authority also suffers from prejudice, element of subjectivity and bias. The said order shows that while the authority failed to throw any light on the important issues, disregarded the contention that there was no negligence or gross misconduct on the part of the Applicant. It was evident that there were some problems in P.S. Shahdara area and the Applicant was sent on duty in that area along with other staff. It was also evident that the crowd tried to set the police booth on fire. In such a situation asking for any documents sought by the Disciplinary Authority was quite meaningless. Rather in such situations, the wise thing to do was to save his life first instead of collecting evidence as suggested by the Disciplinary Authority. The Disciplinary Authority has also wrongly held that the charges against him stood proved and he committed acts of gross negligence, grave misconduct, dereliction, carelessness in discharge of his officials duties in contravention of the provision of CCS Leave Rules, 1972 and S.O. No. 111 of Delhi Police. Further, the impugned punishment of forfeiture of service awarded to him is disproportionate, arbitrary and illegal as held by the Apex Court in Chaitanya Dass Ghosh Vs. Union of India AIR 1991092 CAT 269 and A. Prasada Rao Vs. G.M. South Centrla Railway and Others ATR 1991(2) CAT 313.
10. The Appellate Authority also, according to the Applicant, did not take into consideration all the points raised by him in his appeal. Rather, the said authority rejected the appeal in a cursory manner. In fact, the Appellate Authority, in a conventional manner, dittoed the order of the Disciplinary Authority and wrongly endorsed it. The authority did not appreciate the points raised by the Applicant with the sense of objectivity. The Appellate Authority arbitrarily and wrongly rejected the contentions of the Applicant. The Appellate Authority has not come out with any reasoning while rejecting the contentions of the Applicant by stating the pleas of the appellant are devoid of any merit. The Appellate Authority wrongly and arbitrarily reached the conclusion that the charge leveled against the applicant was proved.
11. The Respondents in their reply have stated that the Applicant while posted at PS Shahdara on HRD Duty was deputed for duty along with other staff at Babarpur Booth. Some media persons from India News came there to cover the incident of murder of one Sonu. A public person complained to them about the misbehaviour of the Applicant who was in drunken state and on this media persons followed him to videograph him but he fled away from there. The Inspector/ATO PS Shahdara was checking the pickets inside the Rehman Building and on receiving the information about this incident reached Babar Pur market picket. By that time, the Applicant had already fled away from the spot to avoid medical examination. The search for him was carried out but he could not be found. The Applicant was, therefore, marked absent from duty vide DD No.5-A dated 04/05.02.2009 at 3.20 AM, PS, Shahdara. He returned back from duty vide DD No.39-B dated 05.02.2009 at 11.35 AM after remaining absent for 8 hours and 15 minutes. For the above lapses, he was placed under suspension w.e.f. 06.02.2009 by DCP North East District vide order dated 06.02.2009 but later on was reinstated in service vide order dated 17.09.2009. Thereafter, the enquiry was held in accordance with the rules and the Enquiry Officer found the allegations made against him have been proved. The Enquiry Officer gave due consideration to the defense pleas but they were not found convincing. Further, according to them, there may not be have been any direct evidence that he was drunk but from the depositions of PWs it was established that he fled away from his duty point. He was also marked absent. The aforesaid actions of the Applicant is quite suggestive that he was drunk and ran away from the spot to escape from being caught in the drunken state. The charge was, therefore, proved on the basis of evidence/material brought on record as well as on the basis of preponderance of probability. If he was not drunk, there was no reason for him leaving his picket and remain absent from duty for more than 8 hours. Though the PW-4 did not name any policeman but the place was identified as the booth where applicant was deputed. It is again suggestive that the Applicant was one of them. This PW has also deposed that the Applicant was pulled out by media. Thus there was sufficient evidence to prove that the Applicant was in an inebriated state and he fled away from the spot on seeing the media persons while he was hiding under a parked tempo. This PW has also identified the Applicant before Enquiry Officer during departmental enquiry proceedings. The Disciplinary Authority agreed with the said findings and awarded the punishment of forfeiture of 02 (two) years approved service temporarily entailing proportionate reduction in his pay for a period of 02 (two) years. His suspension period from 06.02.2009 to 16.09.2009 was also decided as period Not spent on duty for all intents and purposes which may not be regularized in any manner. The Appellate Authority considered the appeal filed by him and also heard him in OR. Considering the facts of the case and material available on file it found no reasons to interfere with the orders of Disciplinary Authority. Hence, the appeal of the Applicant was rejected.
12. We have heard the learned counsel for the Applicant, Shri Majid Khan for Shri Sama Singh and the learned counsel for the Respondents, Shri N.K. Singh proxy for Mrs. Avnish Ahlwat. We have also considered all the documents available on record of this file, produced by both parties. The charge against the Applicant consists of the following elements:-
(i) Some public persons complained to the media persons that the Applicant misbehaved with them and he was in a drunken state.
(ii) While the media persons followed him to videogrpah him, he fled away from his duty point.
(iii) When the Inspector ATP/PS Shahdara while checking the picket in which he was deputed found that he had already fled away from there to avoid medical examination.
(iv) A search was carried out for the Applicant but he was not found and he was marked absent.
(v) He returned for duty after absenting himself for 8 hours and 15 minutes.
For the aforesaid charge, the Applicant was subjected to a duly constituted departmental enquiry and the Enquiry Officer therein, considering the totality of the facts and circumstances of the case, held that the same was proved. The Disciplinary Authority, agreeing with the aforesaid findings of the Enquiry Officer awarded the punishment of forfeiture of 02 (two) years approved service temporarily entailing proportionate reduction in his pay for a period of 02 (two) years upon him. His suspension period from 06/02/2009 to 16/09/2009 is also decided as period Not spent on duty for all intents and purposes which may not be regularized in any manner. The Disciplinary Authority has clearly observed in its order that when the media persons tried to take his videography, he fled away from his duty point and on that count alone it cannot be ruled out that probability of his in drunken state. The Appellate Authority has also considered the proven fact that he fled away from duty point instead of performing his lawful duty.
13. In our considered view, the Applicant is just trying to make a vain attempt on technical grounds to establish that the charge made against him was not proved during the enquiry proceedings and that the report of the Enquiry Officer is perverse. In our considered view, there is more than sufficient evidence against him and the charge leveled against him has been rightly proved. As submitted by the Respondents in their reply, there may not be any direct evidence that the Applicant was in a drunken state or he was misbehaving with the public as complained to the media by certain public persons. But the question that is left unanswered by the Applicant is: when the media persons followed him to videograph him, why he fled away from the duty point? The other question which the Applicant did not answer is: when he was on duty on 04/05.02.2009 where did he disappear for 8 hours and 15 minutes from 3.20. AM to 11.35 PM? As a police constable, his duty is to maintain law and order in the area in which he was deputed along with his fellow policemen. According to the Applicants own admission, the crowd was trying to destroy the police booth and he thought it wise to flee from the spot to save his life. The Applicant being a police official who is required to prevent any law and order problem, not only fled away from the duty point but also had the audacity to say that the wisdom lies in saving his own life rather than risk it for the sake of duty. Instead of being available at the duty point and do his duty and face the situation, here is a police official who disappeared from the scene to re-emerge in the police station only after the absence from duty for an eight hours. If we have many such policemen like the Applicant, we wonder how safe and secure would be the life of the citizens. In our considered view, retention of such police officials in a disciplined force is a great risk for the department. However, the Disciplinary Authority and the Appellate Authority in their wisdom have imposed only a comparatively minor penalty upon the Applicant. Still, it is seen that Applicant has questioned the proportionality of the said punishment awarded to him.
14. In view of the above position, we find no merit this OA and it is dismissed accordingly. There shall be no order as to costs.
(Shekhar Aggarwal) (G. George Paracken) Member (A) Member (J) Rakesh
As stated earlier, the charge against the Applicant while he was on duty at Babur Pur booth, some public men complained to the media persons who came there to cover the incident of murder of one Sonu that the Applicant was in drunken state. The media persons followed him to videograph him but he fled away from the scene. The PS Shahdara who came their later for checking also found that the Applicant fled away from his duty point. In such a situation, it was assumed that he fled away from duty point to avoid medical examination. The Respondents carried out a search for him but he was not found. Therefore, he was marked absent from duty. However, he emerged after 8 hours and 15 minutes and reported for duty. The authority concerned placed him under suspension immediately and later on held a departmental enquiry against him and it was proved that the charge leveled against him was correct. But the conclusion of the Applicant is that the charge has not been proved and the conclusion of the Enquiry Officer that the charge has been proved is based on surmises and conjectures.