Central Administrative Tribunal - Chandigarh
Jai Bhagwan Son Of Shri Chhaju Ram vs Union Of India Through The Secretary on 29 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH. O.A.No.511/CH/2012 Date of Decision : 29.01.2014 Reserved on 21.01.2014 CORAM: HONBLE MRS. RAJWANT SANDHU, ADMINISTRATIVE MEMBER HONBLE DR. BRAHM A. AGRAWAL, JUDICIAL MEMBER Jai Bhagwan son of Shri Chhaju Ram, Ex-Constable, Chandigarh Police, Union Territory, Chandigarh, now resident of House No.2063/B, Sector 41-C, Chandigarh. Applicant Versus 1. Union of India through the Secretary, Ministry of Home Affairs, New Delhi. 2. The Union Territory, Chandigarh, through the Home Secretary, Chandigarh Administration. 3. The Inspector General of Police, Union Territory, Chandigarh, Police Headquarters, Sector 9, Chandigarh. 4. The Senior Superintendent of Police, Headquarters, Police Headquarters, Sector 9, Chandigarh. . Respondents Present: Mr. Rohit Seth, counsel for the applicant Mr. Arvind Moudgil, counsel for the respondents O R D E R
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
8 (i) the dismissal order dated 28.07.2011 (Annexure A-6), passed by respondent no.3 may be quashed and the applicant be allowed to join his duties forthwith with continuity of service and all other consequential benefits which will follow including salary, increments, seniority etc.
(ii) quash the orders bearing No.D-268-73/UT/RD/DIG dated 09.05.2012 (Annexure A-10) vide which the appeal dated 23.01.2012 preferred by the applicant against the dismissal order (Annexure A-6), has been rejected with a totally non-speaking order inasmuch as after mention of facts a mechanical order has been passed that no procedural irregularities have been found in the conduct of enquiry and the findings as well as punishment orders stand supported and substantiated by the evidence on record and there is no reason or ground to disagree with the decision of disciplinary authority, which is against the law laid down by the courts of law including Honble Apex Court that orders passed by appellate authorities being quasi judicial must have attributes of application of mind and as such the same stand vitiated being illegal, arbitrary, harsh, discriminatory, void ab initio, perverse, actuated with colourable exercise of powers and non-speaking and for issuance of direction to the respondents to re-instate the applicant in service forthwith with all the consequential benefits as if impugned orders were never passed.
2. Brief facts of the matter as stated in the Original Application are that the applicant was appointed as Constable in Chandigarh Police on 28.04.2000. While in service the applicant applied for the post of ASI through direct recruitment, for which the written test was held on 23.12.2007, since there was leakage of question paper of the written test FIR No.31 dated 08.02.2008 was registered under Sections 420 and 120-B IPC. The applicant voluntarily gave his statement in the matter to the Investigating Officer (IO) under Section 161 Cr.P.C. and later his statement was recorded under Section 164 Cr.P.C. In due course, applicant received summons from the Court of the Sessions Judge, Chandigarh, and gave his deposition in the matter. After the evidence of the applicant was recorded before the Court, a communication was sent by the Prosecuting Counsel to the Chandigarh Police that the applicant had not supported the prosecution case. Disciplinary proceedings were initiated against the applicant, he was placed under suspension, departmental enquiry took place and the I.O held the applicant guilty in the matter. The SSP, UT, Chandigarh, issued show cause notice for dismissal of the applicant which was duly replied by the applicant, but he was dismissed from service vide order dated 28.07.2011 (Annexure A-6). The applicant filed appeal against the order of 28.07.2011, but this was also rejected through non-speaking order dated 09.05.2012 conveyed vide OM No.20910/UT/E-II dated 11.05.2012 (Annexure A-10) which was passed in a mechanical manner.
3. In the grounds for relief, it has been stated that the applicant had voluntarily got his statement recorded under Section 161 Cr.P.C. There was no material difference in the statement given by the applicant in the trial of Joginder Dahiya and Sanjay Rana before the Sessions Court, and the statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C., and the applicant had deposed truthfully before the Court. Further, the Investigating Officer had never associated the applicant with the investigation of the case after the statement of the applicant was recorded under Sections 161 and 164 Cr.P.C. No identification parade was ever held by the I.O. in association with the applicant and so there was no question of the applicant recognizing the two persons who were the main accused in the trial before the Sessions Court. It is further stated that the applicant was not aware whether the two persons who met the applicant at the gate of the Police Lines, Chandigarh were the real Joginder Dahiya and Sanjay Rana or some one else who spoke on behalf of Joginder Dahiya and Sanjay Rana. Hence the applicant had not deviated from his statements recorded under Sections 161 and 164 of the Cr.P.C. while giving evidence before the Sessions Court. Moreover, the impugned order dated 09.05.2012 (Annexure A-10) was devoid of reasons in support of the decision recording of which was obligatory on the part of quasi judicial authorities in view of State of Punjab Vs. Jagtar Singh reported 1989 (1) RSJ, 488; Rajasthan State Road Transport Corperation Vs. Ram Yadav, reported 1995 (3) SCT 789; S.N. Mukherjee Vs. Union of India reported 1990 (5) SLR 8 SC and Mahavir Prasad Vs. State of U.P. reported 1970 SC 1302 and hence dismissal order dated 28.07.2011 (Annexure A-6) and appellate order dated 09.05.2012 (Annexure A-10) should be quashed.
4. In the written statement filed on behalf of the respondents, it has been stated that the applicant was guilty of misrepresenting the facts of the matter. FIR No.31 dated 08.02.2008 under Sections 420, 120-B, IPC was registered in PS Sector-3, Chandigarh on the secret information received by the Special Crime Investigation Cell on 11.01.2008 from reliable sources that the question paper for the written test of ASI for Chandigarh Police, which was held on 23.12.2007, had already been leaked before the commencement of the examination and two persons were behind the leakage of the paper namely Joginder Dahiya and Sanjay Rana natives of village Nizampur, New Delhi. These two persons contacted the aspiring candidates of ASI Exam, to provide them the leaked paper, after charging huge amount. During the course of investigation, the applicant Constable Jai Bhagwan No.1786/CP and Constable Ashok Kumar No.791/CP, both candidates in ASI exam had given their hand written statements to the Investigation Officer SI Shadi Lal mentioning that they had appeared for physical test for recruitment of ASIs in Police Lines, Sector-26, Chandigarh and passed the same. When they were coming out of Police Lines, two persons namely Joginder Dahiya and Sanjay Rana met them and offered to get their written test cleared, if they would give huge amount to them. Both of them assured that they would provide them solved question paper. Initially C. Jai Bhagwan and Constable Ashok Kumar did not pay any heed to their conversation but when they read in the newspapers about the paper leakage case, they had given their hand written statement to Investigation Officer. Later on, statement of Constable Jai Bhagwan was recorded under Section 164 Cr.P.C. in the Court of JMIC, Chandigarh. During the trial of the case, the statement of both the Constables in the Court of Session Judge, U.T. Chandigarh were recorded on 06.01.2010 in which they did not support the case of prosecution, as they did not identify the two accused namely Joginder Dahiya and Sanjay Rana. They turned hostile and suppressed the truth before the Court. Due to this misconduct a regular departmental enquiry was conducted by DSP, Shri B.S. Negi, under PPR 16.24 against the applicant. The Inquiry Officer after following the proper procedure under PPR conducted the enquiry and held both the Constables guilty of the charges. The Punishing authority agreeing with the enquiry officer issued the show cause notice to the delinquent proposing the punishment of dismissal from the service. The applicant submitted his reply to the show cause notice and was personally heard by the Punishing Authority. After hearing the applicant and going through the records on the file and circumstances of the case punishment of dismissal from service was imposed vide order dated 28.07.2011. The applicant preferred appeal dated 23.01.2012 against the dismissal order before the Appellate Authority, which was rejected without any relief to the appellant vide order dated 09.05.2012.
5. Arguments advanced by the learned counsel for the parties were heard. Learned counsel for the applicant reiterated the points and issues taken in the OA and went in detail into the proceedings of the enquiry report dated 25.02.2011 recorded by Dy. SP, Traffic, UT, Chandigarh, who was the Inquiry Officer in the matter. Learned counsel stressed that there was no difference in the statement recorded voluntarily by the applicant under 161 Cr.P.C., statement recorded under Section 164 Cr.P.C. and his statement recorded in the course of trial, before the Sessions Court. Learned counsel stressed that in his statements recorded under Section 161 and Section 164 of the Cr.P.C., the applicant had not said anything about identifying the accused Sh. Joginder Dahiya and Sanjay Rana. Since he had only stated in the Court that these persons were not present in the Court, this could not be interpreted as the applicant having resiled from his statements. The Public Prosecutor wrongly sought in the Court that the applicant should be declared a hostile witness and since the case had been weakened on account of this question asked by the Public Prosecutor, the PP had made the complaint against the applicant that he had resiled from his statement. The entire proceedings of the enquiry did not establish that the statement of the applicant before the learned Sessions Court was different from those recorded under Sections 161 and 164 of the Cr.P.C. Hence there was no justification for chargesheeting the applicant in this matter and the order of dismissal dated 28.07.2011 (Annexure A-6) and the order of the appellate authority dated 09.05.2012 (Annexure A-10) deserved to be quashed. Learned counsel also stressed that the punishment of dismissal from service imposed upon the applicant was disproportionate to the charge on account of which the applicant faced enquiry and had been penalized.
6. Learned counsel for the respondents stated that the scope of challenging an enquiry report was very narrow. Learned counsel for the applicant had not been able to establish that the conduct of the proceedings constituted violation of natural justice or that the enquiry and subsequent action taken by the police authorities against the applicant were vitiated on account of procedural lapses. Learned counsel further stated that the Tribunal could not re-appreciate the evidence or adjudicate on the quantum of punishment imposed on the applicant. On merits, learned counsel stated that the applicant had joined the enquiry when he gave his statement before the IO under Section 161 of the Cr.P.C. and could certainly identify the persons who had approached him stating themselves to be Joginder Dahiya and Sanjay Rana and since these persons were present in the Court, applicant should have identified them. His failure to do so resulted in his being declared a hostile witness and the case of the prosecution was weakened on this account and hence the applicant had rightly been charge sheeted and on the basis of the findings in the inquiry he was punished and the order of dismissal had been confirmed by the appellate authority after consideration of all aspects of the matter.
7. We have given our thoughtful consideration to the matter. The pleadings of the parties and the material on record have been carefully perused and counsel for the parties heard at length. It is evident that the case of the applicant is based on his claim that the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and that recorded in the trial Court were similar and there was no justification for being declared a hostile witness. Further he had never identified Joginder Dahiya and Sanjay Rana and his inability to identify them in the Court could not be treated as resiling from his previous statement. Although it is not the role of the Tribunal to re-appreciate the evidence taken into account in the inquiry proceedings but it is evident that the applicant had voluntarily given his statement that two persons who introduced themselves as Joginder Dahiya and Sanjay Rana and gave their personal details had met him and offered to help him in clearing the written test. Later, after the investigation was complete, persons with these names and other particulars regarding their place of stay in New Delhi, were the accused persons in the trial before the Sessions Court and the applicant did not / could not identify the accused persons as being Joginder Dahiya and Sanjay Rana who had approached him. The enquiry has been conducted giving full opportunity to the applicant to defend himself and the IO has concluded that failure on the part of the applicant to identify the accused persons in the Court led to his being declared as a hostile witness and weakening the case of the prosecution. The disciplinary authority has accepted the findings in the inquiry report and imposed the penalty of dismissal from service after serving show cause notice upon the applicant and taking his reply in the matter into account. Similarly, the appellate authority has passed the order dated 09.05.2012 rejecting the appeal filed by the applicant after taking into account the points raised in the appeal. In this view of the matter, we are satisfied that the enquiry against the applicant has been held in accordance with the prescribed procedure giving adequate opportunity to the applicant to defend himself.
8. Regarding the quantum of punishment, learned counsel for the applicant has pressed that the punishment of dismissal imposed upon the applicant was disproportionate to the gravity of charges against him. On the other hand, learned counsel for the respondents stated that the Tribunal did not have the authority to interfere with the order of the disciplinary and appellate authorities regarding the quantum of punishment if disciplinary proceedings had been conducted as per the prescribed procedure and there was no violation of the principles of natural justice in the matter. We observe that there is substantial case law on the issue of proportionality of punishment and the authority of the Courts / Tribunals to interfere in orders imposing penalty on persons facing disciplinary proceedings.
9. In Union of India Vs. Parma Nanda reported in AIR 1989 SC 1185, it has been held as follows:-
If there has been an enquiry consistent with the rules and in accordance with the principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
10. In Shallsher Bahadur Singh Vs. State of Uttar Pradesh & Ors. reported 1993 (2) SLJ 16 (AII.HC), it has been held as follows-
Ordinarily the maximum penalty resulting in an economic death of an employee could be awarded only in cases of grave charges where lesser punishment would be inadequate and may not have any curative effect or where the charge is such that in the exigencies of the case a lesser punishment may not be found fit in the interest of administration or where considering the charge and the conduct of the delinquent indicating his incorrigibility and complete unfitness for police service it becomes necessary to dispense with the services of the delinquent.
11. Further, in B.C. Chaturvedi Vs. Union of India JT 1995 (8) SC 65, it has been held as follows:-
Disciplinary proceedings Imposition of penalty of dismissal from service The disciplinary authority and the appellate authority are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court / Tribunal while exerting the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court - Tribunal it would appropriately mould the relief either directing the disciplinary / appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent resources in support thereof.
12. In Om Kumar & Ors. Vs. Union of India JT 2000 (Suppl.3) SC 92, it has been held as follows:-
Applicability of the principle of proportionality in respect of punishments for misconduct Courts power to interfere with punishments Disproportionate punishments it could be altered or substituted.
Where the administrative decision relating to punishment is questioned on the ground of being arbitrary Wednesbury rule as a secondary reviewing authority should be applied.
13. In Director General RPF Vs. Sai Babu reported 2003 (4) SCC 331, it has been stated that while exercising power of judicial review, the Court will not substitute its own judgment for the decision of the disciplinary authority unless, inter-alia, the order shocks the conscience of the Court. The Court has to weigh all factors, like nature of charges proved against, the past conduct, penalty imposed earlier, nature of duties assigned, having due regard to their sensitiveness, exactness expected of and discipline required to be maintained and the department / establishment where the delinquent works.
14. In U.O.I. Vs. Datta Linga Toshatwad (2005) 13 SCC 709, the Apex Court has observed that even if the Court arrives at the conclusion that the punishment inflicted was grossly disproportionate to the misconduct alleged, it ought to remit the matter to the disciplinary authority to reconsider the matter as regards the punishment to be inflicted. However, this cannot be an absolute proposition as can be seen from Mohd. Ayub Naz. (2006) 1 SCC 589 where the court referred to the principle laid down earlier in Om Kumar Vs. Union of India (2001) 2 SCC 386 that in determining the quantum, the role of the administrative authority is primary and that of the Court is secondary and confined to see if the discretion exercised by the administrative authority caused excessive infringement of rights.
15. We have carefully considered the issue regarding punishment of dismissal imposed upon the applicant in the context of the case law discussed above and we are of the opinion that keeping in view the charge against the applicant that he did not support the case of the prosecution in the trial court, while this has been strongly contested by and on behalf of the applicant, we feel that the punishment of dismissal is an extreme penalty which perhaps should not be imposed in the instant case. Accordingly, the matter is remanded to the disciplinary authority for reconsideration on the quantum of punishment to be imposed on the applicant. No costs.
(RAJWANT SANDHU) ADMINISTRATIVE MEMBER.
(DR. BRAHM A. AGRAWAL) JUDICIAL MEMBER Place: Chandigarh Dated: 29.01.2014 sv: