Central Administrative Tribunal - Delhi
Vinod Kumar vs Comm. Of Police on 6 December, 2016
Central Administrative Tribunal
Principal Bench
OA No.1265/2013
Order pronounced on: 06.12.2016
Hon'ble Mr. Justice M.S.Sullar, Member (J)
Hon'ble Mr. V. N. Gaur, Member (A)
Sh. Vinod Kumar, Age-51
S/o Late Sh. Kali Ram
R/o H.No.200, Vivekanandpuri,
Sarai Rohilla,
Delhi-7.
- Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Govt. of NCTD through
The Commissioner of Police,
PHQ, I.P.Estate,
New Delhi.
2. The Spl. Commissioner of Police,
Operations, Delhi,
through Commissioner of Police,
PHQ, I.P.Estate,
New Delhi.
3. The Joint Commissioner of Police,
Vigilance,
through Commissioner of Police,
PHQ, I.P.Estate,
New Delhi.
4. The Dy. Commissioner of Police,
F.R.R.O., New Delhi,
through Commissioner of Police,
PHQ, I.P.Estate,
New Delhi.
- Respondents
(By Advocate: Mr. Amit Anand)
2 OA No.1265/2013
ORDER
Hon'ble Mr. V.N.Gaur, Member (A) The present OA has been filed by the applicant, a Sub Inspector in the Delhi Police, with the following prayer:
"i) To set aside the impugned order dated 26.12.11 whereby the major punishment of withholding of next increment for a period of five years permanently is inflicted upon the applicant at A-1, order dated 18.4.2012 whereby the appeal of the applicant has been rejected at A-2 and to further direct the respondents that the forfeited years of increment be restored as it was never forfeited with all consequential benefits including seniority and promotion and pay and allowances.
ii) To set aside the finding of enquiry officer.
iii) To set aside the order of initiation of D.E.
iv) To further direct the respondents to remove the name of the applicant from secret list of doubtful integrity from the date of inception.
Or/and
v) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. The applicant was served with a summary of allegation dated 13.06.2011 which reads as follows:
"On the intervening night of 20/21.03.2011, SI (Exe.) Vinod Kumar, No.D/2769 (PIS No.16890075) was working as C.O. in Counter No.17 of Departure immigration. At around 0300 hrs of 21.03.2011, SI Ram Kishan, No.D/3323 and ASI Devender Singh, No.478/F who were also working as C.O. in Departure Wing immigration brought to the notice of I/C Wings ACIO-I Randeep Singh (PIS No.127178) and ACIO-I Dibakar Limboo (PIS No.125546) that two passengers namely Ashok Kumar (Indian Passport No.H8599614) and Shiv Bahadur (Indian Passport No.H6541899) flying by Kuwait Airlines KY-382, were to be off-loaded as they were travelling on ECR passports and employment VISA to Kuwait without the required POE stamp. While explaining to the passengers that they would not be able to travel as they did not have the mandatory POE stamp, they stated that two of their friends who had similar documents had already cleared immigration; hence they may be allowed to travel. Following the revelation, the names of DHARAM BEER 3 OA No.1265/2013 NISHAD (Indian Passport No.H8599260) and MOTI LAL (Indian Passport No.J1914181) were taken by the I/C Wings and was brought to the notice of AFRRO/a Shift Shri L.S.Bisht. Further, on the direction of AFRRO/A Shift, both the pax were intercepted at the Security Hold Area by ACIO-I Randeep Singh, I/C Wing and C.O. ACIO-II Ashok Kumar (PIS No.102774). Both the pax were found to be in the possession of ECR passports and employment VISA for Kuwait, but did not have the POE stamp. Both had been cleared by SI (Exe.) Vinod Kumar, No.D/2769, which was later brought to his notice and as instructed by AFRRO/A, SI (Exe.) Vinod Kumar off-loaded the passengers on grounds that they did not have the required POE Stamp.
The above act on the part of SI (Exe.) Vinod Kumar, No.D/2769 (PIS No.16890075) amount to gross misconduct, negligent, carelessness and unbecoming of a police official in violation of Rule-3 of CCS (Conduct) Rules, 1964, which renders him liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980 punishable as envisaged under the provision of Delhi Police Act, 1978."
3. As he pleaded 'not guilty' a departmental enquiry (DE) was ordered and the Enquiry Officer (EO) submitted his report on 07.10.2011 proving the charges levelled against the applicant. The Disciplinary Authority (DA) agreed with the findings of the EO and the copy of the report was served on the applicant on 21.10.2011. The applicant submitted his representation on 14.11.2011. The DA passed an order on 26.12.2011 awarding a major penalty of withholding of next increment for a period of 5 years permanently. The appeal submitted by the applicant against this order was also rejected by the Appellate Authority (AA) on 18.04.2012. The applicant has challenged the impugned orders mainly on the following grounds:
(1) The DA has punishment on the applicant in respect of a charge which was not even framed in the DE.4 OA No.1265/2013
(2) In the order of DA there is no allegation of any ulterior motive or mala fide on the part of the applicant.
(3) The orders of the DA and AA are absolutely non-
speaking and mechanical in nature.
(4) The punishment imposed on the applicant is too harsh and disproportionate, and this plea has not been dealt with by the AA.
(5) The authorities have failed to appreciate that the clearance of two passengers by the applicant whose passport did not carry the stamp of POE was a human error caused because of the heavy rush of passengers that night. (6) The applicant has been singled out for such a harsh treatment while in similar circumstances no major penalty has been imposed on other officers, who by mistake cleared a passenger without having a POE stamp. For example, the cases of Constable Jitender Singh and Constable Satender Kumar.
(7) His name could not have been included in the secret list of doubtful integrity as the case of the applicant is covered by the exception clause of SO-265.
4. Learned counsel for the applicant submitted that the case of the applicant was wrongly projected to the DA as a case of ulterior 5 OA No.1265/2013 motive and illegal gratification out of mala fide as is proved by the fact that the applicant was served with two summaries of allegations. In one summary of allegations the charge was "gross misconduct, carelessness, negligent and unbecoming of a police official while in another summary of allegation the charge was gross misconduct, misuse of his official powers by involving in corrupt activity unbecoming of a police official. The concerned authorities are bent upon on punishing the applicant one way or the other. In the entire evidence during the DE there is nothing on record that could point to any corrupt motive on the part of the applicant. If at all, it was a case of human error. PW-3 (ACIO-I) had in his statement confirmed that there was more rush on that night. He had also denied any illegal gratification involved in the incident, and stated that similar action had not been taken in the past against any officer who had mistakenly cleared a passenger without POE stamp. PW-7 (the then AFRRO) had also confirmed that no allegation of gratification had come to his notice. He also stated that he did not remember if in a similar case in the past any special report had been sent. The witness did not deny the possibility of such mistake occurring due to pressure of vast passenger clearance. Learned counsel further argued that the applicant had taken specific plea of human error and disproportionate penalty in his appeal but the same was not considered by the AA. The DA had brought in an extraneous 6 OA No.1265/2013 factor while passing the order dated 26.12.2011 stating that "it has also been reported that the immigration officers are clearing paxs with ECR status and also POE stamps with malafide intention. This is being done through rackets operated by agents to connive with immigration officers to bypass the law of the land. Such illegal activities not only need to be strictly dealt but also strong message and punishment is to be sent whenever such misconduct is noted." It proved that the DA was pre-disposed to punish the applicant with a disproportionately harsh penalty not considering the gravity of the offence but to send a message to others and to act as a deterrence. The order of DA was liable to be quashed on this ground alone. The learned counsel also raised the argument of parity with the officers who were let off with lighter penalties. However, no supporting document has been placed on record.
5. Learned counsel for the respondents refuted the arguments of the learned counsel for the applicant and submitted that the charge against the applicant was very serious and had multifarious implications. The respondents had proceeded against the applicant following the procedures prescribed for disciplinary action under the Delhi Police (Disciplinary and Appeal) Rules, 1980 and gave him full opportunity to defend. After taking into account his representations submitted at various stages, the DA and AA have passed their respective orders. These orders are well 7 OA No.1265/2013 reasoned and deal with the contentions raised by the applicant. In this background the law is well settled that the Court or Tribunal are not to interfere in the disciplinary proceedings. It is the prerogative of the DA to decide the quantum of penalty taking into account the gravity of the offence. The DA in this case after due consideration of all facts has imposed the major penalty through a well reasoned and detailed order. The penalty imposed is justified even without considering the remark with regard to the reports of certain rackets being operated by agents in connivance with the immigration officers. That was a general remark which cannot be construed to be the basis for deciding the quantum of penalty.
6. Referring to other grounds taken by the applicant the learned counsel stated that the decision to drop four prosecution witnesses who were the passengers travelling on that night, the learned counsel stated that this would not affect the finding of the EO because he had himself admitted that he had cleared two passengers without POE stamp. Subsequently he had accompanied other officials to off load those two passengers. Learned counsel submitted that heavy rush of passengers cannot be a defence of the applicant for clearing the passengers in an illegal manner. The applicant was an experienced officer and knew his duty well and cannot take shelter under the garb of human error.
8 OA No.1265/2013
7. We have heard the learned counsel for the parties and perused the record. After receiving a copy of the enquiry report the applicant submitted his defence statement on 20.09.2011 (Annexure-6 of the OA). In that statement while admitting his mistake in clearing two passengers without POE stamp, his plea was that there was very heavy traffic that night because of Holi festival and to avoid inconvenience to passengers he was under
pressure to make fast clearance. He had also pleaded that his case was being treated differently as in other cases of lapse on the part of the clearing officers no special report was sent for taking disciplinary action.
8. With regard to the plea of human error, we find it difficult to believe that an officer, who has been working on that desk for about 6 years, would miss out the POE stamp in an ECR passport. There must be some checklist of particulars that he was expected to check in each passport. The applicant has not stated which are the particulars checking of which was absolutely a must and he performed those checks, and whether the check list was so long that 'lesser important' ones like POE stamp he missed out due to rush. We agree with the submission of the learned counsel for the respondents that checking POE stamp was an important part of the scrutiny of an ECR passport which the CO at the immigration counter has to carry out. The applicant is trained to look for such anomalies in the passport. Therefore 9 OA No.1265/2013 'human error' theory for such basic parameters of scrutiny can not be accepted. With regard to discrimination, the applicant has referred to two cases in para 5.11 of the OA but has not annexed the relevant orders in respect of these two officials. We are therefore unable to examine this ground further.
9. The applicant has also taken the plea that in the DE no ulterior motive could be proved against him. There is no force in this argument as the charge against him was that of 'misconduct' under rule 3 of the CCS(CCA) Rules which has been proved in the DE. Proving 'ulterior motive' is not a condition precedent for proving the charge of 'misconduct'. In Union Of India & Ors vs J. Ahmed, 1979 AIR 1022, the Hon'ble Supreme Court held thus:
"The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may no involve mens rea but may still constitute misconduct for disciplinary proceedings."
10. Another ground taken by the applicant is that the orders of the DA and AA are non-speaking and do not take into account his contentions. We have examined this submission of the applicant but find it without substance. The DA in the order dated 26.12.2011 has enumerated all the points raised by the applicant in his representation dated 14.11.2011 and dealt with the same elaborately in the order. A perusal of the order shows an application of mind as well before deciding the quantum of 10 OA No.1265/2013 punishment. Mere observation with regard to the connivance of immigration officers with agents is not sufficient to vitiate the order of the DA. The nature of misconduct is such that even without the aforesaid remark of DA the quantum of punishment cannot be categorised as disproportionate and that will shock the conscience of the Court. The AA has also dealt with the contentions of the applicant in his order.
11. The applicant has further argued that his name could not have been brought in the secret list of doubtful integrity as the case of the applicant fall under exception clause of SO-265. The applicant has, however, failed to substantiate this contention by bringing the relevant clause of SO-265 on record and show as to how his case is covered by the exception clause.
12. The scope of interference in a disciplinary proceeding by the Court is very limited as laid down in B. C. Chaturvedi vs. U.O.I., (1995) 6 SCC 749. The applicant has not been able to establish any procedural lapse in conducting the disciplinary proceeding or violation of the principles of natural justice. From the records it is proved that he was given full opportunity to defend against the charges levelled against him and he utilised all those opportunities. The Tribunal can also not either re-appreciate the evidence or get into the question of quantum of penalty. The penalty imposed is that of withholding of next increment for a 11 OA No.1265/2013 period of 5 years permanently while it is the submission of the applicant himself that in some other cases the penalty imposed is that of withholding of increment for certain period but not permanently. There cannot be a fixed scale for deciding the quantum of punishment as the same would dependent on the nature and gravity of the misconduct in each case. The Enquiring Authority on the basis of the evidence adduced before him came to the conclusion that the charges were proved and the DA had accepted the findings. It is trite that a departmental proceeding is different from the criminal proceeding as the rule in a departmental proceeding is based on the preponderance of probability. We, therefore, do not find any legal infirmity in the finding recorded by the IA or DA.
13. Taking into account the entire conspectus of the case and for the reasons discussed in the preceding paras, we do not find any merit in the OA and same is dismissed. No costs.
( V.N.Gaur ) (Justice M.S. Sullar) Member (A) Member (J) 06th December, 2016 'sd'