Central Administrative Tribunal - Delhi
Ex. Constable Nagraj vs Union Of India on 19 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 125/2005 New Delhi this the 19th day of January, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Ex. Constable Nagraj, S/o Sh. Jhoota Ram, R/o Village and Post Office Nangal Shahbaz Pur, Distt. Rewari, Haryana. Applicant (By Advocate Shri Sourabh Ahuja j VERSUS 1. Union of India Through its Secretary, Ministry of Home Affairs, North Block, New Delhi & Ors. 2. Dy. Commissioner of Police, IV Bn., Kingsway Camp, New Police Lines, Delhi-9 3. Jt. Commissioner of Police Armed Police Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate Mrs. Renu George ) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
Constable Nagraj, the Applicant herein, is aggrieved by the order dated 18.12.2003 of the disciplinary authority inflicting on him the punishment of dismissal from service. His appeal was dismissed by the appellate authority by order dated 05.05.2004. The Applicant seeks quashing and setting aside of the impugned orders mentioned above.
2. The Summary of Allegations dated 18.03.2002 against the Applicant has been reproduced below:
The departmental enquiry is ordered against you Const. Nagraj No. 1118/ND (PIS No. 28884439) while posted at P.S. Ch. Puri was relieved from this District on his transfer to 4th Bn. DAP vide DD No. 22-B dated 17.5.01 P.S. Ch. Puri in pursuance of PHQs under transfer order No. 8816-55/P.Br. PHQ dated 30.3.2001. Instead of resuming his duty at 4th Bn. DAP, the Constable absented himself unauthorisedly and wilfully without any intimation/prior permission of the competent authority. An Absentee notice vide No. 16360-64/SIP-NDD dated 18.12.2001 was issued to the Constable at his home address i.e. Vill. & P.O. Nangal Shahbad Pur P.S.Bawal, Distt. Rewari Haryana with the direction to resume his duty at once failing which necessary action will be initiated against him, the absentee notice was served upon the Constable on 20.12.2001 but he did not resume his duty so far and still running absent without information/permission of the competent authority in utter violation of SO No.111.
The previous absence record of Const. Nagraj No. 1118/ND shows that he absented himself on 18 different occasions. He was given many chances to mend his way by deciding his previous absences as CL, PD, HL, Dies non and a Major punishment of forfeiture of 2 years approved service but he did not mend his way and is still in habit of absenting himself unauthorisedly..
The above act on the part of Ct. Nagraj No.1118/ND amounts to gross negligence, carelessness and dereliction in discharge of his official duties which renders him liable to be dealt with departmentally, under the provision of Delhi Police (Punishment & Appeal) Rules-1980. The inquiry authority held the charges against the Applicant to be proved beyond doubt. The inquiry, as mentioned above, culminated in his dismissal from service.
3. By order dated 08.05.2006, a DB of this Tribunal referred the matter to a Full Bench for deciding the following issue:
"Which authority would be competent under the Delhi Police (Punishment and Appeal) Rules, 1980 to initiate disciplinary action against a police officer who has been transferred and relieved from a post/station but has not joined on the new post/station, and disciplinary action is to be initiated during this interregnum period?"
A three member Bench of this Tribunal considered the issue and came to the unanimous conclusion that the Deputy Commissioner of Police of the office/station/battalion to which the lower subordinate officer of the Delhi Police had been transferred would be the disciplinary authority in case of the transferred officer. The Full Bench, having decided the reference made to it, went ahead and decided the OA also. The issue before the Bench in deciding the OA, inter alia, was that the disciplinary inquiry against Constable Nagraj had been initiated by the Deputy Commissioner of Police, New Delhi Police Station against the Applicant for his unauthorised absence after he had been transferred out of the police Station. He appointed the inquiry officer. The Applicant attended the inquiry proceedings on one or two occasions, but never raised the question about the incompetence of the Deputy Commissioner of Police, New Delhi to initiate the departmental proceedings. During the course of the inquiry, the Applicant had joined at the IV Battalion, to which he had been transferred from the Police Station New Delhi. The entire record was transferred to the IV Battalion. The Deputy Commissioner of Police, IV Battalion, communicated the report of the inquiry authority to the Applicant and proceeded with the disciplinary proceedings and imposed the penalty of dismissal on the Applicant. The Applicant preferred an appeal against the order of the disciplinary authority, but did not challenge it on the ground that the Deputy Commissioner of Police, New Delhi did not have any jurisdiction to initiate the departmental inquiry against him. Two Honourable Members of the Full Bench, including the Honourable Chairman, held that initiation of the departmental inquiry by the Deputy Commissioner of Police, New Delhi would not vitiate the proceedings because no prejudice had been caused to the Applicant by this action. However, one Member dissented and held that the disciplinary proceedings initiated by the Deputy Commissioner of Police, New Delhi, was no longer the disciplinary authority of the Applicant and did not have the competence to initiate the departmental proceedings against him, for which reason such proceedings would be nullity. He, therefore, held that the inquiry had been vitiated by its initiation by an officer who was not competent to do so. Thereafter, a joint order was written and in light of the majority view, the OA was dismissed. A Review Application number 187/2006 was filed against the order of the Full Bench by the Applicant herein on the ground that the Full Bench could only answer the reference made to it and was precluded from going into the merits of the case. A new Full Bench was constituted, which recalled that part of the order of the previous Full Bench, which dealt with the merits of the case beyond answering the reference made to it and it remitted the matter to a Division Bench. The Division Bench decided the matter by judgement dated 29.07.2008, observing that:
5. Shri Sourabh Ahuja appearing on behalf of the applicant submits that it may not be permissible for the Tribunal, nor it is necessary to go to the merits, since by the declaration of the Full Bench, automatically the proceedings initiated and concluded by the incompetent authority is to be considered as fallen to ground, and no prejudice whatever is to be deemed as inflicted on the applicant. Therefore, it would not have been possible or justifiable for the Tribunal to look into the matter any further excepting to declare that action taken by the respondents challenged in the application was without jurisdiction.
6. This appears to be correct, and no effective counter submissions have been fielded. In the circumstances, we set aside the impugned order. Consequently, applicant will be entitled to be reinstated in service.
7. Respondents are directed to take final decision on entitlements of salary etc. for the intervening period. We make it clear that he will be entitled for continuity of service and fixation.
8. This decision would not preclude the respondents from initiating further action on the basis of the noticed lapses, if they so desire. If such action is decided to be initiated, it should be completed before 31.01.2009, certain. OA is disposed off as above. No costs. The Respondents herein approached the Honourable Delhi High Court in Writ Petition (Civil) number 600 of 2009. The High Court decided the matter on 05.08.2010 by observing thus:
17. Needless to state the issue as to who would be the disciplinary authority of Constable Nagraj was a matter of a unanimous opinion when the 3 Member Full Bench of the Tribunal rendered 3 opinions on 22.9.2006. All of them held that it was the DCP of the Transferee Department i.e. the DCP of the 4th Bn. D.A.P. who could act as the disciplinary authority. Thus, this enunciation of law bounded the Division Bench. But, the other issue whether it made any difference as to who acted as the disciplinary authority or not had to be answered by the Division Bench. Needless to state 2 Members of the Full Bench, while penning their opinions on 22.9.2006, had rendered an opinion that it made no difference. Needless to state it was this part of the opinion which also was subsequently withdrawn when the order dated 21.11.2007 allowing RA No.187/2006 was passed.
18. Further, depending upon the answer by the Division Bench as to whether it made a difference or not, and if held that it made no difference, other issues on merits raised by Constable Nagraj had to be decided.
. . .
23. We restore OA No.125/2005 with a direction that the Division Bench of the Tribunal would decide the issues arising but except the issue as to who was the competent disciplinary authority for the reason said issue has attained finality when the 3 Members of the Full Bench gave 3 concurrent opinions on the said point on 22.9.2006. Other issues would be decided by the Division Bench of the Tribunal.
4. Learned counsel for the Applicant would contend that once it was held by the Full Bench that only the Deputy Commissioner of Police of the IV Battalion, to which the Applicant had been transferred would be the disciplinary authority of the Applicant, the departmental inquiry initiated by the Deputy Commissioner of Police, New Delhi was without any sanction of law and hence non est. It was argued that by observing that no prejudice had been caused to the Applicant by the Deputy Commissioner of Police, New Delhi initiating the disciplinary inquiry, the DB had nullified the judgement of the Full Bench. It was argued that the mandatory provision could not have been breached by the Deputy Commissioner of Police, New Delhi. It was further contended that the allegations about the past misconduct could not be proved during the inquiry. This argument was, however, dropped by the learned counsel when confronted with the deposition of PW-1, Head Constable Amarjeet Singh, who has, inter alia, stated that the record of past absences of the Applicant was shown to him and which was placed at Ex. PW-1/D. The Applicant did not ask any questions in cross examination of the witness. Yet another argument advanced by the learned counsel was that he was proceeded against in the departmental inquiry, in spite of the fact that his abstention was on account of his mental illness. It was urged that immediately after being relieved from New Delhi Police Station, he suffered from Anxiety Neurosis resulting in the loss of memory, sleeplessness and loss of feelings for surrounding, about which his brother had informed the Department telephonically. The Department sent Head Constable Ravidutt to his village to verify the fact and the residents of the village including the Sarpanch corroborated the fact about mental illness of the Applicant. Statements of the Applicant and some persons of the village to the effect that the Applicant seems to be suffering from mental illness have been placed on record at Annex E (colly.). It was further stated that the Applicant joined his duty on 10.05.2002 for a day, when he again went into depression and had to abstain from duty for reasons beyond his control. It was further contended that the Applicant was not given sufficient opportunity to defend himself. He was not able to cross examine the witnesses for prosecution because of his mental illness. Further, he was asked by the inquiry authority to submit the list of defence witnesses till 20.03.2003. The Applicant appeared before the inquiry authority on 20.03.2003 and sought ten more days time to submit his list of witnesses for the defence and his written statement of defence. The inquiry authority accepted the request. Unfortunately, however, he met with a serious accident on 23.03.2003, causing multiple fractures, serious burns and other grievous injuries. The Applicant was hospitalised for three days and hence could not avail the opportunity given by the inquiry authority. An FIR registered by Nagraj in some Police Station, the name of which is illegible, has been placed at Annex H. It was stated that Head Constable Raghubir Singh, who had come to serve notice on the Applicant to join the departmental inquiry was informed about the Applicants accident. Applicants elder brother had also informed the disciplinary authority about the accident, yet no notice was taken of this fact. The learned counsel contended that the relevant medical certificates were submitted to the appellate authority explaining the circumstances of the case, yet the appellate authority rejected the appeal arbitrarily without considering any of the grounds taken by the Applicant. The said authority did not apply its mind to the issues raised by the Applicant in the appeal and mechanically endorsed the view of the disciplinary authority. It was further urged that the punishment meted out to the Applicant was excessive and disproportionate to the charge levelled against him. The learned counsel would further contend that the disciplinary authority never gave him a chance to hear him personally before passing the order punishing him, which was against the principles of natural justice.
5. The Respondents have opposed the cause of the Applicant by defending the punishment of dismissal by asserting that unauthorised absence of 385 days cannot be tolerated in a disciplined force like the Delhi Police, specially considering the background of previous 18 stints of unauthorised absence. The Applicant was incorrigible and had to be dismissed from service. It is stated in the counter affidavit that when Head Constable Ravi Dutt visited the Applicant in his native village on 31.10.2002 for getting the Applicant re-tested medically in the concerned Government hospital, the Applicant refused to receive the letter. The first and the second witnesses for the prosecution were examined in the presence of the Applicant and he was given ample opportunity to cross-examine them. Later, the Applicant absented himself from the proceedings without any reason. The inquiry authority sought permission for proceeding ex parte against him and recorded the evidence of two other witnesses. The Applicant, it is stated, did not submit the list of witnesses for defence, in spite of opportunity given to him to do so. It is further averred in the counter affidavit of the Respondents that papers filed by the Applicant before the appellate authority, including prescription slips and FIR about the accident, were mostly irrelevant as these pertained to the period covered by the next departmental inquiry, which also related to unauthorised absence and which was held in abeyance as the Applicant had already been dismissed from service. There was no certificate from the doctor in the papers submitted by the Applicant prescribing rest on medical grounds and these slips did not cover the entire period of 358 days.
6. The learned counsel for the Applicant has in reply denied that Head Constable Ravi Dutt met him in his village on 31.10.2002 because on that day the Applicant was in Delhi. A slip from the Out Patient Department of the hospital of the Municipal Corporation of Delhi, dated 31.10.2002, has been placed on record as Annex-1 to the rejoinder, which is in the name of the Applicant. It was also contended that Head Constable Ravi Dutt had obtained the signatures of Sarpanch and a Panch of the village and wrote false statements supposed to have been given by them. A letter dated 02.10.2003 from one Surendra Kumar, Panch addressed to the inquiry officer has been placed at page 134 of the paper book, which is to the effect that the said Head Constable had obtained his signatures on a blank paper.
7. The appointing authority of a Constable in the Delhi Police is prescribed to be Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of Police Training School and any other officer of equivalent rank, as prescribed in Rule 4 (i) of Delhi Police (Appointment and Recruitment) Rules, 1980. Section 21 of the Delhi Police Act, 1978 provides for the powers of punishment. The relevant Section has been extracted below:
Powers of punishment.- (1) Subject to the provisions of article 311 of the Constitution and the rules, the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School or any other officer of equivalent rank, may award to any police officer of subordinate rank any of the following punishments, namely:-
(a) dismissal;
(b) removal from service;
(c) reduction in ranks;
(d) forfeiture of approved service;
(e) reduction in pay;
(f) withholding of increment; and
(g) fine not exceeding one months pay.
(2) Subject to the rules-
(a) any police officer specified in sub-section (1) may award the punishment of censure to any police officer of subordinate rank;
the Assistant Commissioner of Police may award the punishment of censure to police officers of, or below, the rank of sub-Inspectors of Police;
) any police officer of, and above, the rank of Inspector may award punishment drill not exceeding fifteen days or fatigue duty or any other punitive duty to constables.
(3) Nothing in sub-section (1) or sub-section (2) shall affect any police officers liability for prosecution and punishment for any offence committed by him.
(4) The Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School, Assistant Commissioner of Police, or any other police officer of equivalent rank may suspend any police officer of subordinate rank who is reasonably suspected to be guilty of misconduct, pending an investigation or enquiry into such misconduct.
(5) An Inspector of Police may suspend any police officer below the rank of Sub-Inspector of Police, who is reasonably suspected to be guilty of misconduct, pending an investigation or enquiry into such misconduct. Rule 5 of the Delhi Police (Punishment and Appeal) Rules, 1980 lists the authorised punishments:
5. Authorised punishments- The Delhi Police Act, 1978 prescribed the following penalties:
(i) Dismissal, (ii) Removal from service, (iii) Reduction in rank [for a specified period], (iv) Forfeiture of approved serve, (v) Reduction in pay, (vi) Withholding of increments, (vii) Fine not exceeding one months pay, (viii) Censure, (ix) Punishment drill not exceeding 15 days or fatigue duty or any other punishment duty to Constable only. Rules 14 (3) and 14 (4) ibid, which prescribe the authority for awarding the punishments mentioned in serial number (i) to (vii) in Rule 5 ibid have been extracted below:
14.(3). Punishments mentioned at Sl. No. (i) to (vii) in Rule 5 supra shall be awarded by appointing authorities only after a regular departmental enquiry. All Deputy Commissioners of Police, Additional Commissioner of Police shall exercise this authority over all officers of the subordinate ranks civilian irrespective of the fact whether such an officer has actually appointed the concerned subordinate police officer and whether or not he was actually working under him. The procedure for holding departmental enquiries is explained in Rule 16 below.
(4) The disciplinary action shall be initiated by the competent authority under whose disciplinary control the police officer concerned is working at the time it is decided to initiate disciplinary action. Rule 14 (3) provides that major punishments shall be awarded only by the appointing authorities after following the procedure for regular departmental enquiries. However, it is clear that the term appointing authority does not mean the officer who has actually appointed a subordinate officer under his signatures. An appointing authority would mean any officer of an equivalent rank. For example, if a Constable has been appointed by Deputy Commissioner of Police, New Delhi, then it is not necessary that irrespective of where the said Constable is working, only the Deputy Commissioner of Police, New Delhi would be eligible to take action against the said Constable. Such power would be available to all Deputy Commissioners of Police to inflict major penalty on any Constable in Delhi police. This is circumscribed by Rule 14 (4) by providing that the disciplinary action would be initiated by the competent authority under whose disciplinary control the concerned officer is working at the time it is decided to initiate the disciplinary action. The controversy before the Full Bench was to decide as to who would be the disciplinary authority in case of a subordinate officer who had been transferred out of a particular district but had not joined in the place to which he had been transferred. The Full Bench unanimously decided that the disciplinary authority in such case would be the Deputy Commissioner of Police of the office under the control of which the subordinate officer had been transferred. This view has been upheld by the Honourable Delhi High Court in Writ Petition (C) number 600 of 2009, adverted to above. In the instant case it would mean that the disciplinary authority of the Applicant would be the Deputy Commissioner of Police, IV Battalion. In view of this, initiation of disciplinary inquiry by the any Deputy Commissioner of Police, other than the Deputy Commissioner of Police, IV Battalion, would be de hors Rule 14 (4) ibid. In the instant case, it is not in dispute that the disciplinary action was initiated by the Deputy Commissioner of Police, New Delhi, who had ceased to be the disciplinary authority of the Applicant by virtue of the ratio laid down by the Full Bench in this case. There have been no submissions also in regard to this by the Respondents. It cannot also be said that the Applicant had never raised any objections about the initiation of the departmental inquiry by the Deputy Commissioner of Police, New Delhi because during the pendency of the disciplinary inquiry it was a grey area and has only been decided by the Full Bench in the instant OA. An inquiry initiated by an incompetent person is not maintainable. This is a fatal flaw in this inquiry.
8. In so far as the argument of the Applicant regarding the opportunity not given for cross examining the prosecution witnesses is concerned, it cannot be accepted in view of the fact that he was given the opportunity to cross examine the first two witnesses for the prosecution, when he participated in the disciplinary inquiry. When the third and the fourth witnesses were examined, the Applicant was not present. His plea that he was suffering from mental illness is not borne out by the records. He has only produced slips from the Out Patient Department (OPD) for certain dates. Two medical certificates have been placed on record, which are dated 11.05.2002 and 28.05.2002. The first certificate has recommended rest to the Applicant from 11.05.2002 to 24.05.2002 and by the second medical certificate, rest from 28.05.2002 to 05.06.2002 has been prescribed. The disease is described as PID. The name of the doctor giving the certificate is not mentioned in this certificate. Many of the slips from OPD are from the hospital of the Municipal Corporation of Delhi. Some of the slips have been obtained from Rajasthan Medicare Relief Society, which are illegible. The appellate authority has rightly noted that the treatment slips have been provided by the Applicant only for the short period of one month out of the period of unauthorised absence of 358 days. In regard to the other plea that he could not produce the witnesses for defence because he had met with an accident has also been dealt with by the appellate authority thus:
The appellant contends that he could not produce his defence statement since he met with an accident on 22.3.2003 and has enclosed a copy of FIR lodged regarding the accident and copies of a couple of informations sent by the local police and the medical papers. The contention of the appellant is irrelevant because these papers relate to the period covered by the next DE, ordered by the DCP/4th Bn. DAP which has been held-in-abeyance vide order dated 19.12.2003 due to his dismissal from service. The photocopies of medical prescription papers enclosed by the appellant with his appeal for the relevant absence period do not show that he was advised any medical rest by the doctor and also do not cover the entire absence period of 358 days. In the light of the fact that the appellate authority has adequately dealt with the contentions of the Applicant regarding his mental illness, we do not find that the Tribunal should interfere with the order on these grounds. However, the appellate authority has not considered his plea that he could not produce any witness for defence as he met with an accident on 22.03.2003 in correct perspective. This period may be the subject matter of another disciplinary inquiry, which was kept in abeyance, yet the earlier departmental inquiry had not been completed by them and the plea of the accident had been raised in that context. We are not commenting on the merits of this plea, but only pointing out that this aspect, which may have important bearing on the case, was not considered at all. The inquiry authority gave his report only on 21.04.2003, as seen from the original record. We shall not go into the plea that the punishment was excessive and leave it to be considered by the disciplinary authority.
9. The OA succeeds on the basis of above discussion. The impugned orders of the disciplinary and the appellate authorities are, therefore, quashed and set aside. Respondents may initiate fresh disciplinary inquiry in the case strictly in accordance with the Rules. The Applicant would be reinstated in service forthwith. However, he would be considered to be on suspension from the date of his dismissal to the date of his being reinstated in service. The consequential benefits in this case would abide by the decision in the disciplinary proceedings. The Respondents would complete the disciplinary proceedings within six months from the receipt of a copy of this order. Should no co-operation be forthcoming from the Applicant, action may be taken as per rules to continue with the disciplinary proceedings. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk