Delhi High Court
Chukhan Singh vs Govt. Of Nct Of Delhi And Anr. on 24 August, 2009
Author: A.K. Pathak
Bench: Madan B. Lokur, A.K. Pathak
* HIGH COURT OF DELHI: NEW DELHI
+ Writ Petition (Civil) No. 7585/1999
Judgment reserved on: 11th August, 2009
% Judgment delivered on: 24th August, 2009
CHUKHAN SINGH ..... Petitioner
Through: Mr.P.P.Khurana, Sr.Adv. with
Ms.Seema Pandey and
Mr.Birender Singh, Advd.
Versus
GOVT. OF NCT OF DELHI AND ANR. ..... Respondents
Through: Mr.Amiet Andley with
Mr.Arun K.Sharma, Advs.
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
2. Whether the judgment should be reported
in the Digest? Yes
A.K. PATHAK, J.
1. The Petitioner has filed this writ petition praying therein that order dated 7th September, 1999 passed by Principal Bench of Central Administrative Tribunal, New Delhi (hereinafter referred to as the "Tribunal") in O.A. No. 2628/1993 as well as dismissal order dated 27th July, 1993 of the Disciplinary Authority and the appellate order dated 3rd November, 1993 be quashed.
Page 1 of 16 W.P. (C) No. 7585/1999
2. Brief background of the case, which led to passing of the impugned order, is that the Petitioner joined Delhi Police on 1st April, 1986 as a Constable. On 11th May, 1992 he was placed under suspension pending departmental enquiry. Summary of allegations was served on the Petitioner on 1st August, 1992 and thereafter enquiry proceedings commenced.
3. The allegations against the Petitioner read as under:-
"I, Inspector Sita Ram SHO, Kalyan PUri, E.I. Charge you constable Chukhan Singh, No.763-E that you while posted at Distt. Line East Distt. on 6.5.92 submitted a recommendation roll to the ACP/HQ/E directly by making forged signatures of Sh.Shiv Kumar Sharma, RI/East Distt. The ACP/HQ found the signature suspicious and ordered an enquiry into it and sent the same to RI/East, Distt. with the query:-
(1) whether these signatures are of RI/East or otherwise?
(2) If these signatures are not of RI/East, then who put up these papers in the dak file.
The RI/East showed this R.R. to SHO/Preet Vihar, SHO/G.Nagar. and Insp. Vigilance East Distt. who were sitting in his room on the next day i.e. 8.5.92. This R.R. was lifted from the table of RI/East by you when you came to know about the enquiry which was being conducted by RI/East Distt. Delhi. It is also alleged that a telephone call from Mr. Gautam (Attached with Hon'ble M.P. Sh.
Paswan) was received by ACP/HQ/East, not Page 2 of 16 W.P. (C) No. 7585/1999 to take any action against (the constable) you. In this way you tried to give extra departmental pressure, which is totally in violation of Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980.The above act of yours, amounts to grave misconduct, malafide intention and unbecoming of a member of disciplined force which renders you liable to be dealt with departmentally u/s. 21 of Delhi Police Act, 1978".
4. During the enquiry proceedings eight witnesses were examined before the Enquiry Officer. Initially, Petitioner participated in the enquiry proceedings, however, subsequently he left the enquiry proceedings midway and was proceeded ex-parte. Petitioner stopped appearing with effect from 18th March, 1993. PW5 to PW8 were examined after the Petitioner stopped appearing. So far as PW1 to PW4 are concerned, they were examined in presence of the Petitioner. PW4 was even cross examined by the Petitioner. After concluding the enquiry proceedings Enquiry Officer gave his report dated 15th May, 1993 thereby holding that the charges against the Petitioner stood substantiated.
5. Disciplinary Authority gave a show cause notice dated 8th July, 1993 to the Petitioner. Written statement was submitted by the Petitioner on 11th July, 1993. Thereafter, Page 3 of 16 W.P. (C) No. 7585/1999 Disciplinary Authority vide order dated 27th July, 1993 dismissed the Petitioner from the police force. Petitioner filed an appeal against the order of the Disciplinary Authority. The Appellate Authority also afforded personal hearing to the Petitioner on 11th October, 1993. Thereafter, vide order dated 3rd November, 1993 appeal was dismissed. Aggrieved by the orders passed by the Disciplinary Authority and Appellate Authority Petitioner filed O.A. No. 2628/1993 before the Tribunal which has been dismissed vide the impugned order dated 7th September, 1999.
6. Petitioner assailed the penalty order as well as appellate order on the ground that the summary of allegations were not accompanied with list of witnesses and list of documents; the documents required for his defence were not furnished; that the enquiry was conducted in a language with which Petitioner was not proficient; Enquiry Officer did not read over and explain the summary of allegations; Enquiry Officer did not allow the Petitioner to cross examine the witnesses; Enquiry Officer conducted the departmental proceeding ex-parte; Enquiry Officer misbehaved and humiliated the Petitioner and his defence Page 4 of 16 W.P. (C) No. 7585/1999 assistant; Approval of charges were not obtained from the Competent Authority; Petitioner was denied reasonable opportunity to defend his case; ACP, who had allegedly received the telephone call from an official attached to Member of Parliament, was not examined, therefore, the charge that the Petitioner had put extra departmental pressure on his superior officer and thereby violated Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980, remained unproved.
7. Learned Tribunal considered these grounds of challenge but did not find any force therein. Tribunal held that the Petitioner had been given lot of opportunities to defend himself but the same were not availed by him. Summary of allegations was duly explained to the Petitioner in Hindi language thus there was no violation of any Rule. Petitioner attended the departmental enquiry up to 5th February, 1993 but thereafter, did not cooperate and subsequently he stopped appearing and was rightly proceeded ex-parte. Documents were duly supplied to the Petitioner and he was even assisted by a defence assistant, who was conversant with the English language. Page 5 of 16 W.P. (C) No. 7585/1999 Opportunity to cross examine the witnesses was afforded to the Petitioner but he did not fully avail the same. Tribunal also held that no prejudice was caused to the Petitioner.
8. We find no reason to interfere with the findings of the Tribunal which is in consonance with the material on record. We do not find any jurisdictional error in the impugned order.
9. We do not find any force in the contentions of the learned Senior Counsel for the Petitioner that the documents were not supplied during the enquiry proceedings and that the principles of natural justice were not followed. We also do not find force in his argument that the opportunity was not granted to the Petitioner to defend himself during the enquiry proceedings or that opportunity to cross examine the witnesses was not afforded. Perusal of enquiry report shows that the documents were duly supplied to the Petitioner on more than one occasion. Copies of documents were provided to the Petitioner on 13 th September, 1992 against receipt. On his insistence photocopies of documents were again supplied to him by the Enquiry Officer. Disciplinary Authority and Appellate Page 6 of 16 W.P. (C) No. 7585/1999 Authority have categorically mentioned in their orders that the documents were supplied to the Petitioner and that the principles of natural justice were followed inasmuch as enquiry was held as per the rules. The Tribunal also came to the same conclusion. Thus, there is no reason to take a divergent view than what has been taken by the Tribunal.
10. We also find that the Petitioner participated during the enquiry proceedings and was even given opportunity to cross examine PWs in his presence. The Petitioner had even cross examined PW4. However thereafter he stopped appearing and was proceeded against ex-parte. He did not participate in the enquiry proceedings thereafter. In these circumstances, testimonies of PW5 to PW8 have remained unchallenged and the Petitioner has to blame himself for this. He himself chose to abandon the enquiry proceedings midway, therefore, he is precluded from alleging that opportunity to cross examine all the witnesses was not given to him.
11. Learned senior counsel for the Petitioner has next contended that the charges framed are vague and imprecise and were, therefore, beyond comprehension of the Page 7 of 16 W.P. (C) No. 7585/1999 Petitioner. Accordingly, whole enquiry proceeding stood vitiated. It was not specified in the charge sheet as to which conduct rule was violated by the Petitioner and which act of the Petitioner constituted misconduct on his part. Since charges are vague and imprecise, therefore, Petitioner was denied opportunity to defend himself against such charges. The whole enquiry proceedings and the orders passed by the Disciplinary Authority, Appellate Authority and Tribunal are, therefore, liable to be quashed. Reliance has been placed on G. Chandrakant versus Guntur Distt. Milk Producers' Union Ltd. reported in 1994 (4) SLR 397. According to him only specific charge mentioned in the charge sheet was that the Petitioner tried to put extra departmental pressure on the ACP and which act of his was in violation of Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980. This charge had remained unproved as the ACP, who had allegedly received call from Mr. Gautam attached with Member of Parliament Shri Paswan was not produced in the witness box. To buttress his this argument learned senior counsel has placed reliance on Page 8 of 16 W.P. (C) No. 7585/1999 Kuldeep Singh versus Commissioner of Police and Others reported in (1999) 2 SCC 10.
12. As against this, learned counsel for the Respondent has contended that the charges are clear and specific and disclose that the Petitioner had committed "grave misconduct". He has contended that the dictionary meaning of word "misconduct" has to be borrowed for forming an opinion as to whether the acts of the Petitioner as defined in the charge sheet constitute "misconduct" or not. According to him, if a government servant behaves in an unlawful manner in relation to discharge of his duties while in service wilfully the same would amount to "misconduct". The Petitioner had submitted a recommendation roll to the ACP directly on 6th May, 1992 with forged signatures of Shri Shiv Kumar Sharma, RI (East) and when this fact came to light he lifted recommendation roll from the table of RI (East) to screen himself from the punishment and his this act constitutes misconduct on his part. Not only this, he also got a telephone call made to ACP (East) from one Mr.Gautam in order to put extra departmental pressure and his this act was in violation of Page 9 of 16 W.P. (C) No. 7585/1999 Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980, which was sufficient to form an opinion, that the aforesaid conduct of the Petitioner was unbecoming of member of a disciplined force. Reliance has been placed on Inspector Prem Chand versus Govt. of NCT of Delhi and Others reported in 2007 (4) SCC 566.
13. We have considered the rival contentions of both the parties and have perused the charges which have been reproduced in para No. 2 hereinabove. We do not find charges to be vague and imprecise. The offending acts of the Petitioner have been categorically specified. Charges can be summarised as under:-
"(a) Petitioner had submitted a recommendation roll to the ACP (East) directly on 6th May, 1992 with forged signatures of Shri Shiv Kumar Sharma, RI (East).
(b) Petitioner lifted recommendation roll from the table of RI (East) when he came to know that the matter was being enquired by RI East in this regard
(c). Petitioner got a telephone call made to ACP, from Mr. Gautam not to take action against the Page 10 of 16 W.P. (C) No. 7585/1999 Petitioner and his this act was in violation of Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980."
14. In our opinion all the charges are unambiguously clear and specific. By no stretch of imagination charges can be termed as imprecise or vague. So far as charge No. 3 is concerned, it was categorically mentioned that the said act of the Petitioner was in violation of Rule 13 of Delhi Police (General Conditions of Service) Rules, 1980. So far as charges Nos. 1 and 2 are concerned, the same are also serious in nature. The act of forgery by a public servant would certainly be a misconduct on his part. Similarly, act of causing disappearance of the paper containing forged signatures in order to screen himself from the punishment is also very serious in nature. The gravity of aforesaid unlawful conducts become more serious and assumes greater significance in view of the fact that the Petitioner is a police official and is responsible to maintain law and order. The aforesaid actions of the Petitioner, in our view, would certainly fall within the ambit of "grave misconduct", even though such acts of forgery and removal of documents from the record may not have been specifically defined as Page 11 of 16 W.P. (C) No. 7585/1999 "misconduct" in the Delhi Police Act or the rules framed thereunder.
15. In Inspector Prem Chand's case (supra) Supreme Court has held as under :-
"9. Before adverting to the question involved in the matter, we may see what the term "misconduct" means.
10. In State of Punjab v. Ram Singh, Ex-Constable it was stated (SCC pp. 57-58, para 5) "5. Misconduct has been defined in Black's Law Dictionary, 6th Edn. at p. 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
'Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office- holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act.'"
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term "misconduct" has been defined as under:
"The term 'misconduct' implies a wrongful intention, and not a mere error of judgment.Page 12 of 16 W.P. (C) No. 7585/1999
Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject- matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct."
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp.292- 93, para 11) "11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow the conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
Page 13 of 16 W.P. (C) No. 7585/1999
'Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.'"
16. From the above, it is clear that dictionary meaning of the word "misconduct" can be adopted in a case pertaining to departmental enquiry, if misconduct is not specifically defined under any particular act or the rules by which concerned employee is governed. In this case the Petitioner had submitted a recommendation roll to the ACP directly under the forged signatures of Shri Shiv Kumar Sharma, RI (East). When ACP (East) became suspicious, he asked the RI (East) to confirm about his suspicion, Petitioner caused disappearance of the recommendation roll by removing it from the table of RI (East), apprehending a departmental enquiry against him. His these acts were wilful and deliberate as he was to be benefited out of it. His aforesaid conduct was unlawful and forbidden by the law and in our view, tantamounts to "grave misconduct" on his part.
17. So far as plea of non production of ACP (East) and its consequence is concerned, same also has no force in it.
PW4 produced the noting of the ACP during enquiry proceedings. PW4 was even cross examined by the Page 14 of 16 W.P. (C) No. 7585/1999 Petitioner. This document was taken on record in presence of the Petitioner. Petitioner did not raise any objection when this document was taken on record. He did not ask the department for production of the ACP in the witness box by challenging the authenticity of this document. Rather he stopped appearing after cross examining PW4. This noting was made by the ACP, who was superior officer of the Petitioner, in normal course. It was duly proved during the enquiry proceedings and in these circumstances this document has been rightly read.
18. Kuldeep Singh's case (supra) is in different facts and is of no help to the Petitioner. In the said case allegation against the delinquent was that he had collected Rs. 1000/- from one Smt. Meena Mishra for paying the complainants Radhye Shyam, Rajpal Singh and Shiv Kumar. However, he paid only Rs. 800/- to the complainants and pocketed Rs. 200/-. Smt. Meena Mishra who appeared as a witness in the departmental enquiry, denied that she had paid Rs. 1000/- to the delinquent. So far as complainants are concerned they were not produced in the witness box. Instead their previous statements recorded by SHO, namely, Page 15 of 16 W.P. (C) No. 7585/1999 Mr. D.D. Sharma was taken on record and relied upon. In this context it was held that previous statements of complainants could have been taken on record under Rule 16(3) of Delhi Police (Punishment and Appeal) Rules 1980, only when the department succeeds in showing that the presence of complainants could not have been secured during the enquiry. It is not the case where earlier statement of ACP has been brought on record on the ground of his non availability. It is the office noting made by him in normal course of his official duties have been brought on record through PW4. In our view such office noting can be read in the departmental proceedings more so, when Petitioner did not raise any objection during the enquiry proceeding in this regard.
19. In the light of the above discussions, we are of the view that the writ petition is devoid of merits.
20. Dismissed.
A.K. PATHAK, J MADAN B. LOKUR, J August 24, 2009 ga Page 16 of 16 W.P. (C) No. 7585/1999