Central Administrative Tribunal - Delhi
Ram Niwas vs Government Of Nct Of Delhi Through on 27 May, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.107/2008 This the 27th day of May, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Ram Niwas, S.I. in Delhi Police, PIS No.28821225, R/O C-9, Type-III, New Police Lines, Kingsway Camp, Delhi-9. Applicant ( By Shri Anil Singal, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police headquarters, IP Estate, New Delhi. 2. Addl. Commissioner of Police, Crime, Police headquarter, IP Estate, New Delhi. 3. Deputy Commissioner of Police, Crime and Railway, PHQ, IP Estate, New Delhi. 4. Assistant Commissioner of Police, Enquiry Officer, D.E. Cell, Asaf Ali Road, Police Bhawan, Delhi. Respondents ( By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Challenge in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 is to order dated 30.5.2006 (Annexure A-1) initiating departmental enquiry against the applicant; summary of allegations dated 19.6.2006 (Annexure A-2); findings of the enquiry officer dated 15.9.2006 (Annexure A-3); order of punishment dated 15.11.1006 (Annexure A-4) vide which three years approved service of the applicant has been forfeited; as also order dated 31.10.2007 (Annexure A-5) vide which the appeal preferred by the applicant against the order aforesaid has been dismissed.
2. The enquiry officer, after recording statements of the witnesses examined on behalf of the department, framed the following charge:
I, H.V.S.Rathi E.O. ACP/D.E. Cell, Delhi, charge you SI Ram Niwas NO.D-3777 (PIS No.28821225) that while you were posted in Anti-Forgery Section/EOW, Crime Branch, Delhi and associated with Inspector Hanuman Dan of Anti Forgery Section, E.O.W., Crime Branch, New Delhi in case FIR No.124/04 U/s 408/409/420/380/120-B IPC PS New Ashok Nagar, New Delhi vide order No.19754-900/Estt.(C&R) dated 6-9-04. On 23-10-2004 after obtaining permission of senior officers for going outstation, you were sent to PGI Rohtak, to collect the evidence/information regarding the activities of one Abhishek Mittal who was also involved in the said case and remained to be arrested. It came to notice from the case dairy submitted by you SI before the Inspector that besides Rohtak, you SI had also visited Ballabhgarh without any direction of senior officers. When questioned about your visit to Ballabhgarh, you could not give any satisfactory reply.
Further it revealed that you SI Ram Niwas had visited Ballabhgarh with ulterior motive to remove the name of accused Abhishek Mittal from the case. On 23/24-10-2004 you SI contacted one Trilok Chand Mittal S/o Sh. Jainti Prasad R/o 248, Ward No.23, Brahman Wada Ballabh Distt. Faridabad (Haryana) on telephone regarding his nephew Abhisek Mittal and told him that you will reach Ballabhgarh for investigation on 25.10.04. On 25.10.04 you went to Ballabhgarh by your Maruti Car and made a telephone call at the residence of Trilok Chand Mittal asking him to send someone to receive you at the bus stand. Punit Kumar S/o Trilok Chand went to the bus stand and took you SI Ram Niwas to the residence of Vinod Mittall brother of Trilok Chand. You SI told Trilok Chand and his brother Vinod Mittal father of accused Abhisek Mittal that you were the new I.O. of the case and that it was within your powers to include/exclude someone in the case. You demanded Rs.1 Lac to remove the name of Abhisek Mittal from the case and took Rs.50,000/- as bribe from Vinod Mittal as an advance money and remaining balance of Rs.50,000/- was to be paid after completion of the work.
The above act on the part of you SI Ram Niwas No.D-3777 amounts to gross misconduct, moral turpitude and unbecoming of a Govt. Servant in the discharge of your official duties, which renders you liable for punishment under the provisions of Delhi Police (Punishment & Appeal) Rules-1980. The applicant was given opportunity to lead evidence in defence. He availed the said opportunity and examined DW-1 Const. Satya Prakash. The enquiry officer after making a mention of the defence statement made by the applicant on various parts of the charge as reproduced above, held the applicant guilty. Relevant part of the discussion on the evidence reads as follows:
PW-1HC Surender Singh No.2/Crime (Reader to ACP/Anti Forgery Section), E.O.W. Cell, Delhi is a formal witness who has proved the application of the defaulter for seeking permission for out station Ex.PW-1/A. PW-2 ASI Mazhar Khalik/580/D HAE Branch, Crime Branch is also formal witness, who has proved the posting of defaulter at the relevant date in E.O.W. Cell/Anti Forgery Section Ex.PW-2/A. PW-3 HC Manbir Singh 137/Comm. E.O.W. Cell, Delhi a formal witness by producing original Daily Diary he has proved departure and arrival of the defaulter SI to out station for investigation vide D No.10 dt.25/10/04 and DD No.6 dated 25/10/2004 (Ex.PW-3/A and B respectively). PW-4 Sh.Trilok Chand Mittal stated that about 1 one 1 < years ago defaulter SI Ram Niwas visited the shop of his brother Vinod at City Gate, Ballabhgarh and enquired about Abhisek Mittal. After noting down the residential address he went away. During clarification PW deposed that his brother and newphew Abhisek had earlier gone to E.O.W., Delhi. He did not support the allegation of demand and acceptance of money by the defaulter, but from his demeanour he seemed to be won over by the defaulter as such his deposition on this point is not credible. PW-5 Puneet Mittal has supported the prosecution story by stating that in Oct.2004 he was given a No. of Maruti Car by his father with the direction to take the above No.Car Wala to the shop of his uncle Vinod Mittal from main bus stand Ballabhgarh. Accordingly he went to the bus stand found there the Maruti Car of given No. in which SI Ram Niwas was found sitting he took the SI to his uncles shop.
All this proves that the defaulter SI had contacted Trilok Chand before reaching Ballabhgarh, gave his car No. to him then only he was able to contact Trilok Chand Mittal with the help of PW-5. This also falsify the defence plea of the defaulter that Abhisek Mittal had told his address to him one day before when he (SI) was in Meerut.
PW-6 Inspr.Hanuman Dan has fully supported the prosecution version. He has categorically stated that the defaulter SI was not sent to Ballabhgarh, he had gone there with ulterior motive as he demanded Rs.1,00,000/- from the family members of Abhisek Mittal (wanted accused in the case) to exclude his name in the case and accepted Rs.50,000/- as advance. He produced his reports Ex.PW-6/A & B in the support of this fact and further stated that Trilok Chand Mittal had refused him to give his statement during his enquiry in this regard. Trilok Chand Mittal had also told him that defaulter SI had contacted him on 24/10/04. During proceedings from the demeanour of Trilok Chand Mittal it was found that he was won over by the defaulter SI. PW-7 Vinod Kumar Mittal has also confirmed the facts that defaulter SI had visited about 1 and 1 = years ago.
From the perusal of the arrival DD entry lodged by the defaulter SI (vide DD No.6 dated 25/10/04 Ex. PW-3/B) does not find any mentioning of visiting Ballabhgarh by him though he has mentioned his visit to Meerut in it. From the above discussion of evidence the fact that the SI had visited Ballabhgarh on his own without any directions of the Sr. Officers with ulterior motive is fully proved and preponderance of probability that he demanded and accepted money is also established.
I have also gone through the defence evidence adduced by the defaulter SI and his pleas have not been found tenable reasons for which have already been maintained below the pleas taken by the defaulter. The conclusion drawn by the enquiry officer reads as follows:
From the above discussion of evidence, totality of facts and circumstances of the case, the charge served upon the SI Ram Niwas No.D/3777 (PIS No.28821225) stands proved. The applicant was given opportunity to make representation against the enquiry officers report, which too, he availed, and raised the following pleas, which have been mentioned by the disciplinary authority in the impugned order dated 15.11.2006:
1. That the applicant had submitted a written defence statement to the EO but the points raised therein have not been dealt with properly and impartially. Besides, his request for the additional documents was turned down arbitrarily by the E.O. without assigning any reason.
The above plea advanced by the defaulter is baseless. The E.O., in his findings has discussed the written defence statement submitted by the defaulter at length and after assessing and evaluating the evidence has submitted his findings in detail. As regards request of the defaulter for additional documents, the E.O. has examined his request in the light of rules/instructions on the subject. Since additional documents asked by the defaulter were not relevant/relied upon documents, his request was not acceded to and defaulter has been informed accordingly.
2. The defaulter further pleaded that there is no mention in the statement of Inspector Hanuman Dan that the defaulter was sent to Rohtak to collect the information regarding the activities of Abhisek whereas it has been incorporated in the charge. Further, he pleaded that in reply to question No.22 in cross-examination Inspr. Hanuman Dan had asserted that he had sent the defaulter SI to enquire about Abhisek Mittals attendance in PGI Rohtak for 8,9,10 of Sep.2004. The reply of Inspector Hanuman Dan was totally irrelevant as attendance of Abhisek Mittal in PGI Rohtak for the month of Sep., 2004 was not at all relevant from investigation point of view as he was sent to PGI Rohtak in the month of October, 2004. This plea advanced by the defaulter is not tenable because PW-6 Inspector Hanuman Dan, in his disposition, has categorically stated that he had sent the defaulter SI to Rohtak, Haryana for investigation of case FIR No.124/04 PS New Ashok Nagar, Delhi. However, on perusal of the case diary it was learnt that the defaulter had gone to Ballabhgarh for ulterior motive whereas he was not permitted to go there. Although PW-6 in reply of Q.No22 had admitted that the defaulter was sent for the verification of record dated 8,9,10/11/04 of PGI Rohtak in respect of Abhisek Mittal but it seems that in cross-examination month 11 (November) has been mentioned inadvertently due to clerical mistake.
3. The defaulter further pleaded that Inspector Hanuman Dan himself had raised the issue of going to Ballabhgarh without any permission from senior officers. However, in reply to Q.No.18 in cross-examination he himself admitted that there is no such order or circular that restrict an IO for going from one place to another while conducting investigation in outstation locations while he is already out station with permission in the same case.
This plea of the defaulter is not correct. He was not IO of the case however, he was only assisting Inspector Hanuman Dan who was IO. The defaulter should have acted as per the directions of his immediate supervisory officer rather acting as per his sweet will for ulterior motive. He was permitted to go to PGI Rohtak only.
4. He further pleaded that the E.O. has believed Inspector Hanuman Dan arbitrarily on the point that the defaulter had allegedly told Shri Trilok Chand and Vinod that he can remove the name of Abhisek from the case. Whereas in DE proceedings both these PWs did not support the prosecution version.
This contention of the defaulter is not correct because during departmental proceedings both PW-4 Shri Trilok Chand and PW-7 Vinod Kumar have admitted that defaulter had visited the shop of Vinod at City Gate Ballabhgarh. It clearly proves that the defaulter had visited Ballabhgarh without permission of his senior officer, which proves his ulterior motive. The defaulter has further pleaded that on what basis the EO had mentioned in the charge that defaulter had called Punit at Bus stand Ballabhgarh. Punit has nowhere said in his statement that defaulter had called him at Ballabhgarh stand.
During departmental proceeding PW-5 Punit has stated that he was asked by his father and was given a Maruti Car No. to accompany the car owner/driver to the shop of his uncle Vinod Mittal. Accordingly, he went to bus stop Ballabhgarh where he was found the car having same registration No., which was given to him by his father and in car the defaulter was found present. He (Punit) took him (defaulter) to the shop of his uncle.
5. The defaulter pleaded that simply to say that witnesses have been won over is not sufficient and does not provide any right to the EO to bring on record the extraneous material.
This plea of the defaulter is not tenable because Inspector Hanuman Dan PW-6, in his deposition has clearly stated that Shri Trilok Chand Mittal has refused to give in writing regarding this incident and refused to sign his statement. In this regard, PW-6 had already submitted his report dated 30.11.2004, which has been marked as Ex./PW-6/B. In departmental proceedings, the preponderance of evidence is sufficient to prove the charge. In this case the EO, after assessing the documentary as well as circumstantial evidence available on record, has submitted his findings concluding therein that the charge is proved against the defaulter.
The plea of the defaulter that EO and Inspector Hanuman Dan were biased against him is an after thought, hence hold no water. If the defaulter had any reason that the said officers are biased against him he should have bring this thing into the notice of senior officers. But he did nothing which proves that plea adopted by the defaulter is an after thought and baseless. Immediately after making mention of the various pleas raised by the applicant as reproduced above, the disciplinary authority while holding that the charge framed against the applicant was proved, observed as follows:
I have carefully gone through the entire evidence available on DE file i.e. the statement of prosecution/defence witnesses, defence statement, findings submitted by the E.O., representation submitted by the defaulter and other material evidence available on record. In the interest of natural justice and fair play the defaulter was called and heard in O.R. held on 03.11.2006. At the time of personal hearing the defaulter reiterated the same pleas what so ever he had already stated in his written representation as discussed above. Being assisting IO of an important/highlighted case (PMT paper leak case), the defaulter SI should have acted sincerely and honestly on the directions of his immediate supervisory officer i.e. Inspector Hanuman Dan but he failed to comply the directions and visited Ballabhgarh at his own with ulterior motive. Hence, charge framed against the defaulter is fully proved and he deserves to be dealt with heavy hands. However, considering his young age, a lenient view is being taken to give him a chance to mend his ways. Constrained in the circumstances mentioned above, the applicant filed an appeal, wherein he raised the following pleas for consideration:
1. That he was placed under suspension vide order dated 3.12.2004 without mentioning specific allegations and departmental enquiry was ordered against him vide order dated 21.4.05 i.e. after a period of almost four and a half month from the suspension. Besides, the DE order was technically wrong in violation of Rule 15(2) of D.P.(P&A) Rules, 1980. The appellant was placed under suspension vide order dated 3.12.2004 for his grave misconduct. In this regard section 21(4) of Delhi Police Act, 1978 envisages that the Commissioner of Police, Addl. Commissioner of Police, Deputy 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. Therefore, after getting the draft summary of allegations and other relied upon documents, a regular departmental enquiry was ordered against the appellant vide order 21.04.2005. Thereafter, the appellant was reinstated vide order dated 9.9.2005 pending enquiry against him. Since the DE order was technically wrong, the same order was withdrawn by the disciplinary authority without prejudice to the departmental enquiry to be initiated against the appellant afresh on the same allegations. Accordingly, after getting the approval of the competent authority under rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980, a fresh departmental enquiry was ordered against the appellant vide order dated 30.5.2006.
2. That no departmental enquiry can be instituted against him after the time limit of three months, as held by the Honble Supreme Court of India in Criminal Appeal No.240/1968 Pritam Singh Vs. State of Haryana. The court ruling cited by the applicant has no direct bearing with this case. Besides, in Delhi Police (Punishment & Appeal) Rules, 1980 framed under Delhi Police Act, 1978 there is no time limit for instituting a Departmental Enquiry.
3. That there is no justification for keeping the appellant under suspension beyond the period of three months.
This plea advanced by the appellant is not tenable. According to FR-53 the suspension/subsistence allowance of the appellant was reviewed and increased.
4. That there was not sufficient evidence to frame charge against the appellant as not even a single complaint/evidence was against him.
The E.O., after assessing and evaluating the prosecution evidence brought on record, had framed charged against the appellant and there is no violation of any rule or natural justice. Further, disciplinary authority, after careful consideration of the evidence, had approved the charge which was served upon the appellant by the Enquiry Officer.
5. That initiation of departmental enquiry suffers from a basic lacuna as envisaged in rule 15(1) of Delhi Police (Punishment & Appeal) Rules, 1980. Before initiating a departmental enquiry against the appellant a P.E. should have been conducted but no PE was conducted in this case. In this regard, Rule 15(1) of Delhi Police (Punishment & Appeal) Rules, 1980 envisages that in cases where specific information covering the above mentioned points exists a preliminary enquiry needs not be held and departmental enquiry may be ordered by the disciplinary authority straightway. Hence, in this case PE was not required.
6. That no statement of Shri Trilok Chand had been recorded and produced during departmental proceedings. Hence disciplinary authority has tried to rely on a non-existing document.
In a departmental proceeding, the standard of proof required is preponderance of probability of evidence, which is certainly available in this case. The appellant visited Ballabhgarh unauthorizedly without any direction of senior officer with ulterior motive and when questioned regarding his visit to Ballabhgarh he could not give any satisfactory reply. The appellant was sent by the IO to go to PGI Rohtak to collect the evidence/information regarding the activities of one Abhisek Mittal who was also involved in this case and remained to be arrested. But appellant visited Ballabhgarh unauthorizedly, without any intimation/permission of the senior officer for ulterior motive. This fact is admitted by defaulter and hence there is no need for any statement of Shri Trilok Chand.
7. That disciplinary authority is a very ridiculous manner has mentioned in the punishment order that additional documents asked for by the appellant were not supplied because they were not relevant/relied upon documents but he failed to understand whether relevancy from the angle of prosecution can be applied while deciding about the relevancy from the defence point of view. During entire departmental enquiry no office i.e. either the Enquiry Officer or the Disciplinary Authority rejected his request for additional documents on the basis of relevancy. The documents were sought for preparation of defence but rejection is in regard to their relevancy during cross-examination of the witnesses. Enquiry Officer has not said that documents are not relevant for preparation for defence also.
On perusal of relevant record it is found that application dated 26.6.2006 submitted by the appellant to the E.O. for supplying the additional documents had been examined by the E.O., and E.O. on the body of application itself had clearly ordered that documents asked by the appellant are not relevant in the DE proceedings. All the documents are concerning to criminal case, which is reportedly under trial in the Court and documents asked for by the appellant were not required for the effective examination of the PWs. Hence, his request was rejected accordingly.
8. That there is no mentioned of word PGI Rohtak in the permission granted for outstation.
In application for permission to outstation it has clearly been mentioned to permit him to go to Rohtak, Haryana for the investigation of case FIR No.124/04 u/s 408/409/420/380/120-B IPC PS New Ashok Nagar and Meerut UP in case of FIR No.8/03 u/s 420/406/409, 120 IPC PS GK-I, only. Inspr Hanuman Dan, IO of the case (PW-6), had clearly deposed in departmental proceedings that he had ordered the appellant to go to Rohtak to collect the record of attendance of Abhisek Mittal, one of the wanted accused in above case who had solved the Biology Part of the above leaked paper as per the disclosure of an accused arrested in this case in the Month of May/June 2004, from the Medical College and Mess of the Hostel. The appellant instead of complying the orders of senior went to Ballabhgarh, Haryana at his sweet will for some ulterior motive.
9. That the disciplinary authority, in punishment order, has further said that month of November in the evidence of Inspr. Hanuman Dan has been mentioned mistakenly due to typing error. None of the witnesses or the disciplinary authority had given the correct month and date even in the punishment order.
According to record, the appellant was sent by Inspr. Hanuman Dan IO of the case to enquire about Abhisek Mittals attendance in PGI Rohtak for 8,9,10 of Sep.2004. However, PW-6 in his cross examination has inadvertently admitted that the appellant was sent for the verification of record dated 8,9,10/11/04 due to clerical mistake.
10. That there is no mention of Rs.1 lac and Rs.50,000/- in the entire evidence and the public witnesses from whom this money allegedly was demanded have not supported the prosecution story.
In this regard Inspr. Hanuman Dan (PW-6) IO of the case, in his deposition in departmental proceeding, has clearly stated that Shri Trilok Chand Mittal had refused to give in writing regarding this incident and refused to sign his statement. Further the unauthorized visit at Ballabhgarh by the appellant, (as he was not permitted to go their) clearly proves his malafide intention. Even if the demand of Rs.1 lac and acceptance of Rs.50,000/- by the appellant is not proved, the charge of unauthorized visit of Ballabhgarh by the appellant for ulterior motive has been proved beyond any shadow of doubt. The disciplinary authority after making a mention of the defence projected by the applicant, as reproduced above, passed its order by observing, thus:
I have carefully gone through the appeal as well as relevant record on file and also heard the appellant in O.R. on 07.09.2007 in the interest of natural justice and fair play. At the time of personal hearing he reiterated the same pleas what so ever he has already stated in his appeal at discussed above. The sequence of events clearly proves that appellant had visited Ballabhgarh unauthorizedly for ulterior motive as he was not permitted to go their. Therefore, I have no reason to interfere with the punishment awarded to the appellant by the disciplinary authority and hence the appeal rejected.
3. Shri Anil Singal, learned counsel representing the applicant, vehemently contends that the applicant has projected a fool proof defence and that if the concerned authorities were to apply their mind to the pleas raised by him, there was no question of the applicant having been held guilty of the charges leveled against him. In that context it has been primarily urged that when all the witnesses, with regard to the major part of the charge framed against the applicant of receiving illegal gratification, did not support the prosecution case, there was no question for the authorities concerned to arrive at a finding of guilt against the applicant on the said part of the charge. It is also urged by him that the applicant had made a mention of his visit to Ballabhgarh in the case diary, and while giving his defence statement, he had given adequate reasons for his visit to Ballabhgarh. It is urged that when he went to Rohtak, as directed, he came to know that Abhishek Mittal was not available there. His visit to Ballabhgarh was a part of the instructions given by the Inspector before his visit to Rohtak. At Rohtak, when he did not find Abhishek Mittal there, he left the contact number of his office and his personal mobile number with the warden of the hostel at PGI, Rohtak. While the applicant was in Meerut investigating another case on 24.1.2004, Abhishek Mittal contacted him in the night on his mobile and asked about the purpose of his visit to Rohtak, which he had come to know about from the hostel warden. The applicant disclosed the purpose of his visit and asked Mittal to provide information along with the admission card of his sister. During this conversation only, the applicant came to know about the residence of Mittal who told the applicant that he could meet him in Ballabhgarh in the morning on 25.10.2004 as he had to go to Rohtak on the same day after that. To avoid the long journey to Rohtak again from Meerut, there being possibility of availability of admission card of the sister of Abhishek Mittal at his house only, and the need to verify his residential address, the applicant informed Inspector Hanuman Dan on his residential phone about the information received from Mittal. In all sincerity, it is urged that as surely, the purpose of applicants visit to Rohtak having been abortive, the same could be achieved by visiting Ballabhgarh. If the applicant was to get the clue from any source, including Abhishek Mittal, about his whereabouts, it would have been rather proper for him to visit the place where Abhishek Mittal could be, as it is only by that method that the work entrusted to him could be carried out. The applicant was straightforward and honest in his approach, and had mentioned the factum of his visit to Ballabhgarh in the case diary. The learned counsel referred to the charge framed against the applicant, which has been reproduced above, to contend that the respondents came to know about his visit to Ballabhgarh from the case diary only submitted by the applicant. If the applicant would have any motive, as suggested, he would not have made a mention of the same in the case diary.
4. Shri Anil Singal has raised other arguments as well, which we may not state, examine and adjudicate at this stage. We are of the considered view that there were moot points involved in the case. The applicant had projected such defence which could not be brushed aside or completely ignored, as has been done in the present case. The disciplinary and the appellate authorities, as mentioned above, but for tracing the history of the case and making simple mention of the defence projected by the applicant, have held the applicant guilty and passed the orders of punishment. This is no way to do administrative justice. The disciplinary and appellate authorities were discharging their quasi judicial functions. They were dealing with the case of an employee who was, if adverse orders were to be passed against him, to be adversely affected in his service career. In this case, he has been inflicted the punishment of forfeiture of three years approved service, which is a major penalty. The case of the applicant could not be dealt with as lightly as has been done by the disciplinary and appellate authorities. The impugned orders suffer from infirmity of being totally non-speaking and cryptic. The same need to be set aside on that ground alone. So ordered. The disciplinary authority shall always be at liberty to pass a fresh order, but while doing so, we direct that the defence projected by the applicant shall be taken into consideration and if the same is to be rejected, reasons therefor have to be recorded.
5. This Application is allowed in the manner indicated above, leaving, however, the parties to bear their own costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/