Central Administrative Tribunal - Delhi
Const. Bhullan Tyagi vs Commissioner Of Police on 19 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1423/2009 New Delhi, this the 19th day of March, 2010 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) Const. Bhullan Tyagi, S/o Shri Shardha Nand Tyagi, R/o Gram Firozpur, PO Fakarpur, Distt. Baghpat, Uttar Pradesh Applicant (By Advocate: Shri Arun Bhardwaj) Versus 1. Commissioner of Police, P.H.Q., I.P. Estate, New Delhi. 2. Jt. Commissioner of Police, Armed Police, DAP P.H.Q., I.P. Estate, Delhi. 3. Deputy Commissioner of Police, 1st BN. DAP, P.H.Q., I.P. Estate, Delhi. Respondents (By Advocate: Ms. Renu George) ORDER Mr. L.K. Joshi, Vice Chairman(A):
The Applicant is before us in the fourth round of litigation challenging the order of the disciplinary authority dated 20.02.2008 by which punishment of dismissal has been inflicted on him. The Applicant had preferred an appeal against the order of the disciplinary authority, which was rejected by the appellate authority by order dated 26.05.2008, wherein the punishment of dismissal was maintained.
2. In order to appreciate the nuances of the case, it may be necessary to consider the history of the litigation in this case. The Applicant was proceeded against for the first time on the basis of the summary of allegations served to him, which reads thus:
It is alleged that a complaint against you, constable Bhullan Singh Tyagi, No. 3163/DAP alongwith PHQs U.O. No.6526/SIP/PHQ, dated 7.3.2000 has been received from DCP/South Distt., Delhis office memo No.7251-SD dt. 23.2.2000, alleging therein that you constable Bhullan Singh Tyagi, S/o Sh. Shardanand, Village-Ferozpur, P.S. Kekherea, Distt. Bagpat, got yourself appointed in Delhi Police as constable (Exe.) by producing fake/bogus educational certificates and your fathers name is `Sharma Nand. Sh. Shardanand is your uncle (CHACHA) and he is unmarried. When you failed in High School in the year 1992 and 1993, you reduced your age. You again appeared in High School Examination in the year 1995 and passed the examination. On the complaint prima facie enquiry was got conducted and during enquiry it revealed that you constable Bhullan Singh Tyagi have changed your date of birth from 4.6.76 to 4.6.78 and your fathers name needs to be verified.
The above act on the part of you constable Bhullan Singh Tyagi, No. 3163/DAP amount to gross misconduct and adoption of deceitful means for enrollment in Delhi Police as constable (Exe.) which renders you liable for disciplinary action under Delhi Police (Punishment and Appeal) Rules, 1980.
3. The disciplinary inquiry, which was initiated by the aforesaid summary of allegations, eventually resulted in dismissal of the Applicant. The Applicant herein challenged the order of dismissal and the order of the appellate authority upholding the aforesaid order, by which he was dismissed, through OA No.1392/2002. The OA was decided by order dated 21.02.2003. The OA was allowed after giving the Respondents liberty to take any other action in accordance with law. We may profitably consider the reasoning given in this OA for allowing the cause of the Applicant. In this context, paragraphs 7 to 12 need to be quoted in toto:
7. During the course of submissions, the learned counsel for the applicant asserted that no fake certificate has been filed. The matriculation certificate granted to the applicant had been submitted in which the date of birth of the applicant had been recorded as 4.6.1978. Thus the charge as it is, is totally misconceived. As against this, as is apparent from the reply filed which was also the submission of the respondents learned counsel, the matriculation certificate had been filed. But according to the respondents learned counsel, the date of birth of the applicant mentioned in the matriculation certificate is incorrect and his correct date of birth is 4.6.1976 and, therefore, the applicant was not eligible to be recruited as a Constable.
8. We are conscious of the fact that in the departmental enquiry, the findings that have been arrived at, are by and large taken to be final. Scope for interference is very limited. In judicial review, this Tribunal would be competent to go into the findings if they are totally erroneous or based on no evidence. The Tribunal may also interfere in case no reasonable person would come to such a finding.
9. In the present case before us, the summary of allegations which was also the charge which we have reproduced above indicated that the applicant was told that he got himself enrolled as a Constable in Delhi Police by producing fake and bogus certificate changing his fathers name and the date of his birth. He was further told that he tampered with the actual date of birth making it as 4.6.1978.
10. It must be made clear that it was not the charge against the applicant that on the relevant date he was above the age prescribed to be recruited as a Constable. No opinion therefore in this regard is being expressed.
11. It appears that the authorities proceeded on misconceived notion. Once it is admitted that the date of birth in the matriculation certificate as recorded is 4.6.1978 and the said certificate had been given to him in the year 1995, the charge that he got himself inducted as a Police Constable by producing fake and bogus educational certificate cannot stand scrutiny. The applicant could not imagine at the relevant time that he would be recruited in Delhi Police by what was got done even years before he was inducted in Delhi Police. It is not the case of the respondents that it is unbecoming of a Government servant or that he had committed some act of forgery and, therefore, we will not dwell into that controversy.
12. The fact admitted during the course of arguments that matriculation certificate was the same as a result of which the applicant had passed the examination in the year 1995 and the date of birth mentioned also is the same. In this process he had to produce the correct certificate. He had not forged or faked the same to get enrolled in Delhi Police. We have already noted in the preceding paragraph that when the date of birth had been mentioned in the matriculation certificate, the applicant even had not contemplated that he would apply and get selected in Delhi Police. In that view of the matter, the charge as framed that he got himself enrolled by producing fake or bogus certificate or by tampering with the same to get inducted in Delhi Police must be held to be totally misconceived. On this short ground, therefore, the application is liable to be allowed. The directions given in the OA read thus:
13. By way of abundant caution, we make it clear that nothing said herein should be taken as an expression of opinion if the respondents intend to take any other action referred to above or in accordance with law. This order of the Tribunal was upheld by the Honourable Delhi High Court. The Applicant was again proceeded against departmentally by serving a fresh summary of allegations, which is quoted below:
It is alleged against Const. Bhullan Singh No. 3163/DAP, 3204/DAP (now 548/DAP) that he was enlisted in Delhi Police as a Constable on 17-11-98 by producing his high school certificate in which his date of birth has been shown as 4-6-1978 i.e. at the age of 20 years 05 months and 13 days. But during a fact findings enquiry into the complaint against the Constable it revealed that the actual date of birth of the Constable is 4-6-1976. According to the record of schools register and transfer certificate from Sl. No. 2971 dated 16-8-1988 of Kishan Mazdoor Inter College, Atroda, Meerut, U.P. which is duly certified by the Principal of Maharashi Daya Nand Inter College, Ahmednagar, Nangla Bari, Baghpat, U.P. The date of birth of the Constable was also mentioned as 4-6-1976 in Gazette Notification of High School Examination vide which he was declared failed in the High School Examination. Besides, as per old and new parivar register, produced by the Pradhan, Gram Panchayat, Firozpur, Khekhra, Baghpat U.P. The name of his father is SHARMA NAND where as per schools Register and Transfer Certificate of 1988 as well as Gazette Notification of year 1992/93/95, the name of his father has been shown as SHARDA NAND who is his uncle. As such, it has been established that date of birth is 4-6-1976 instead of 4-6-1978 and name of his father is Sharma Nand as per record. He has thus got employment in Delhi Police as a Constable by adopting deceitful means whereas he was not eligible for the post of as per the norms and conditions of the recruitment, being overaged according to his actual date of birth.
The above act on the part of Const. Bhullan Singh, No. 548/DAP amounts to gross misdeed by adopting deceitful means for getting appointment in Delhi Police which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules-1980. The Applicant challenged this summary of allegations in OA No.196/2006 before this Tribunal, which was decided by order dated 25.09.2006. The paragraphs 12 to 22 of the aforesaid order have been quoted below in extenso:
12. The Apex Court in the case of Union of India Vs. Upendra Singh (JT 1994 (1) SC 658) in the context of interference in the disciplinary proceedings by the Tribunal at an interlocutory stage, observed as follows:
In the case of charges framed in a disciplinary proceeding the Tribunal or Court can interfere only if the charges framed with the imputation of particulars of the charges, if any of misconduct or other irregularly alleged can be said to have been made out of the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Follows the judgment in Union of India v. A.N. Saxena, JT 1992 (2) SC 582). If one has regard to the above, once it is found that the charge are contrary to law or there is no misconduct, it will be a futile exercise to hold an enquiry against the interest of the govt. servant.
13. After holding the inquiry on the charges leveled against the applicant that he had got himself enrolled as a Constable in Delhi Police by producing fake/bogus educational certificate in which he had changed his fathers name to Sharda Nand which was the name of his uncle. He had failed in High School in the year 1993 and 1994. He managed to reduce his age by two years by tampering with the date of birth. He again appeared in High School Examination in the year 1995 and got through on the basis of the tampered date of birth. He had got employment as a Constable in Delhi Police. The Inquiry Officer had held the applicant guilty of the charge and thereupon which the charge stood proved, the applicant had been dismissed from service.
14. On challenging the aforesaid order before the Tribunal, what has been the ratio deci dendi that whatever certificate was shown by the applicant is alleged to be fake/bogus has been found to be an authentic one and as such, the charge that the applicant got himself enrolled by producing bogus/fake certificate in Delhi Police has been bellied. However, there cannot be a denial to the fact that the Tribunal has taken cognizance of the fact that at the time of recruitment as constable, whether applicant was within the age or not, had not been framed as a charge and no opinion had been expressed.
15. Liberty granted to the respondents was that if they intend to take any action against the applicant for allegedly adopting deceitful means for getting himself enrolled by producing fake or bogus certificate by tampering under the same to get inducted in Delhi Police then the opinion expressed in the order was not binding.
16. The Honble High Court in its order dated 12.9.2003 reiterated and affirmed that the charge of producing fake/bogus certificate had no bearing insofar as his enrollment in Delhi Police as constable was concerned. It is made absolutely clear from the ratio of the order that insofar as appointment of applicant is concerned, the certificate produced was found to be authentic. However, liberty, which had been given was to take any other action for allegedly adopting deceitful means.
17. The ratio of the above, in the context of the charge, amounted to further action of allegedly deceitful means for seeking appointment as construed by way of changing his date of birth as 4.6.1978 which according to respondents is in fact 4.6.1976 and in such an event at the time of enrollment the applicants candidature was over aged.
18. However, in the impugned order, the respondents as a backdrop of facts, reiterated that allegation levelled against the applicant in the earlier enquiry declaring his date of birth for employment in Delhi Police has been found to be unsustainable treating the date of birth as 4.6.1976 instead of 4.6.1978 and this has been construed as adoption of deceitful means by the applicant in the date of birth to get enrolled as a constable. If matriculation certificate is established to be authentic and not bogus or fake, then not only the date of birth but the educational certificate including the parentage is deemed to be correct for all purposes. Liberty was confirmed by the High Court and the Tribunal is in respect of reference to any other action stipulated in para 11 which is very limited in his application i.e. respondents are at liberty to hold a proceedings if in their opinion, the applicant is unbecoming of a Govt. service or had committed any act of forgery.
19. In the aforesaid background, we do not find from the perusal of the order passed in the departmental enquiry any charge of forgery committed by applicant in his matriculation certificate, which has been proved to be incorrect and belied by an observation of the courts.
20. Though the Tribunal had made an observation without expressing any opinion as to the charge of being over aged at the time of enrolment against the applicant, yet in our considered view what is open to the respondents as per the cumulative reading of both the orders passed by the Tribunal as well as the High Court is that the deceitful means has no bearing in so far as enrollment of applicant in Delhi Police is concerned. In such view of the matter, we do not find that the charge of forgery or unbecoming of a Govt. servant levelled against him or charge framed now for proceeding the applicant on assumption that as per the date of birth i.e.4.6.1976 applicant was over aged cannot be sustained in law.
21. Recently Apex Court in Muklesh Ali Vs. State of Assam and Anr. (2006 (6) Scale 500) wherein disciplinary proceedings were initiated against the appellant and later on proceedings were dropped and liberty was given by the court holding of disciplinary enquiry has been held to be misused of the powers of the revisionary authority.
22. In our considered view, having regard to Upender Singhs case (supra) the allegation now levelled against applicant is of his being over age as per date of birth 4.6.1976 and not by the date as 4.6.1978, the charge framed is contrary to law and from the material we are satisfied that no misconduct is attributed to applicant to face the ordeal of departmental enquiry as this would not only cause grave prejudice to the applicant but would also amount to wastage of administrative machinery. After the above discussion, the learned Bench of this Tribunal gave the following directions:
23. Another aspect which is involved in this case is that despite having an opportunity under Rule 16(ix) of the rules, ibid, having not modified the charges respondents now cannot initiate a departmental enquiry taking support of the earlier charges which have been bellied by the Tribunal and this finding having been accepted by the High Court. For want of any charge other than seeking enrolment by deceitful means against the applicant for further continuation of action is not in accordance with law. Accordingly, OA is allowed. The Respondents again approached the Honourable Delhi High Court in W.P. (C) No.3222/2007. On 8.05.2007, the following order was passed:
Learned counsel for the petitioner after some arguments, submits that he would seek instructions whether the petitioner in this petition would confine the relief for being permitted to initiate departmental proceedings against the respondent assailing his appointment as a Constable on the ground that he was overage. Let a senior officer not below the rank of Deputy Commissioner who is familiar with the facts of this case be personally present in court on the next date of hearing. Following this, on 29.05.2007, the following order was passed:
Mr. Rattan Lal, Learned counsel for the petitioner and Mr. A.K. Singh, D.C.P., who is present in court, state that they would have the entire matter reviewed at their end with the Legal Cell and seek time to take a decision with regard to prosecution of the petition.
At request, adjourned to 21st August, 2007.
Mr. A.K. Singh, D.C.P., Ist Battalion, DAP would be present in court on the next of hearing. Thereafter, the Respondents issued the third summary of allegations against the Applicant, which has been reproduced below:
It is alleged against Const. Bhullan Singh 548/DAP (PIS No. 28981998) S/O Sh. Sharda Nand, that he was enlisted in Delhi Police as Const. on 17.11.1998 on the basis of high school certificate. As per this certificate his date of birth was 04.06.1978 i.e. 20 years 5 months & 13 days at the time of enlistment. On receipt of a complaint a fact finding enquiry was got conducted. It was revealed that his actual date of birth is 04.06.1976 and not 04.06.1978 as mentioned by him in the application form. It was further revealed that as per Scholars register and Transfer certificate Sl No. 2971 dated 16.08.1988 of Kissan Mazdoor Inter College, Atroda, Meerut (U.P.) his date of birth was 04.06.1976. This fact was duly certified by the Principal of Maharishi Daya Nand Inter College, Ahmednagar, Nangal Bari, Baghpat U.P. As per Gazette Notification of High School Examination 1992 and 1993 of Secondary Education Council (U.P.) his date of birth is 04.06.1976. He was declared failed in both the examinations.
During the fact finding enquiry it was further established that as per Old and new Parivar register of Gram Panchyat, Ferozpur, Khekra, District Baghpat (U.P.) his date of birth is 06.01.1974 and his fathers name is Sharma Nand. Whereas as per his educational record his date of birth is 04.06.1976 and his fathers name is Sharda Nand who is his uncle (i.e. his fathers young brother).
According to recruitment Rule No. 9 (v)(a) of Delhi Police (Appointment and Recruitment) Rules 1980 (applicable during the recruitment of 1998), the eligible age for the rank of Constable in Delhi Police was 18 to 21 years. In the application form submitted by him on 03.06.1998 he mentioned his date of birth as 04.06.1978 whereas his date of birth is 06.01.1974 as per Gram Panchyat Parivar Register and 04.06.1976 as per College/Education Council records.
In case constable Bhullan Singh, No. 548/DAP had mentioned his correct date of birth (i.e. 06.01.1974 or 04.06.1976) he would not have been eligible for recruitment to the post of constable in Delhi Police as per Delhi Police Appointment Rules, 1980 as he was overage at the time of appointment as Constable in Delhi Police.
The above act on the part of Constable Bhullan Singh, No. 548/DAP amounts to misrepresentation, suppression of material facts, misdeed, misleading and making him ineligible for recruitment in Delhi Police and his rendering him unfit for police service and also liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
4. The learned counsel for the Applicant, at the outset, would contend that the Respondents have been merely paraphrasing the first summary of allegations, which was served on him in the year 2001 and there is no difference between the first, second and third summary of allegations and in view of the orders of this Tribunal in OAs No.1392/2002 and 196/2006, this would be impermissible. He would also contend that the Respondents had informed the Honourable Delhi High Court on 29.05.2007 that they would be seeking time to take a decision with regard to the prosecution of the petitioner. The Respondents had been given liberty to prosecute the petitioner but not to proceed against him departmentally. It is further stated that the fact finding inquiry alluded to in the third summary of allegations dated 13.09.2007 is, in fact, the same inquiry on the basis of which the first summary of allegations was served on the Applicant. The case of the Respondents in all the three summaries of allegations is that the Applicant has fraudulently changed his fathers name from Sharma Nand to Shardanand and that his actual date of birth is 4.07.1976, whereas in the certificate submitted by him it has been shown as 4.06.1978. The inquiries and the departmental proceedings have been based on the same set of documents from the first summary of allegations to the third summary of allegations. No new documents have been produced. He would contend with great conviction that it was not for the Respondents and the disciplinary authority to reinterpret the same old document, which had already been interpreted in the earlier disciplinary proceedings and had been subject matter of scrutiny in the two Original Applications before this Tribunal. It is further contended that the same witnesses have been cited as witnesses in all the departmental proceedings or examined at least in two departmental proceedings. The village Pradhan was examined in all the departmental proceedings with Parivar Register and the Voting List. The Sub Inspector Nand Kishore, who conducted the fact finding inquiry, has also been examined in all the departmental proceedings. The staff of CLM Intermediate College, Meerut, who brought the copy of Gazette and the transfer certificate, have been examined in all the departmental proceedings. The staff of M.D. Intermediate College, Baghpat has also been examined in all the departmental proceedings. The fact that the year of birth of the Applicant is 1976 in the Gazette has been taken into consideration in all the departmental proceedings. The clerk of KMIC has been cited as witness in the second departmental proceeding and examined in the third departmental inquiry. The Pradhanacharya of Janta Junior Higher Secondary School was examined as defence witness in the first and the third departmental inquiry. This being so, when the allegations against the Applicant are the same and have been sought to be proved by the same set of witnesses and the same documents and when the disciplinary proceedings has been set aside in OA No.1392/2002 and the summary of allegations has been set aside in OA No.196/2006, it was not permissible for the Respondents to have proceeded against the Applicant on the same set of allegations. This is more so in the light of the fact that the Respondents had given the Honourable Delhi High Court to understand that they would be considering the prosecution of the Applicant.
5. The Respondents have contested the cause of the Applicant and would state at the outset that neither the Tribunal nor the Honourable High Court have explicitly barred fresh inquiry against the Applicant after the summary of allegations was set aside in OA No.196/2006 by order dated 25.09.2006. Our attention has been drawn to the statement of S.I. Nand Kishore, who appeared as PW-2 before the inquiry officer in which he has given the details of the inquiry conducted by him by which the misconduct of the Applicant has been proved. The reference has also been made to the statement of the Principal of CLM Inter College, Jaani, Meerut in which he has produced the attested copy of the Gazette of 10th class result of the U.P. Board, Allahabad of the year 1995 in which the Applicants year of birth has been shown to be 1976. It is further stated that the defence witness produced by the Applicant had been cross examined and it was found that he had no proof of identity and, therefore, his statement could not be relied upon.
6. The learned counsel for the Respondent would only point out in reply that the deposition of S.I. Nand Kishore as PW-4 in the earlier departmental inquiry is identical to the statement he has made in the current departmental proceedings. Advertence has also been made to the statement of Shardanand in the first departmental inquiry in which the witness has stated that the Applicants biological father is Sharma Nand and he was adopted by Shardanand when he was six years old. The learned counsel for the Applicant would contend that all other witnesses who deposed against the Applicant had been repeated in the departmental proceedings on the basis of the third summary of allegations, whereas Shardanand has not been examined in the said departmental proceedings.
7. We have considered the rival contentions with utmost care and have very carefully and minutely gone through the records placed before us with the assistance of the learned counsel for both the parties.
8. It is very clear, as has been contended by the learned counsel for the Applicant, that all the three summaries of allegations are in effect the same. There has been a bit of paraphrasing in the first, second and the third summary of allegations but the basic content of the three summaries is the same. They are based on the same documents and the same set of witnesses have been listed to prove the allegations. We have quoted the orders of this Tribunal in OA 1392/2002 and OA 196/2006. We have quoted these orders in some detail to bring out the fact that in the light of observations made in the orders in these OAs it would be quite inappropriate for the Respondents to proceed against the Applicant on the same set of allegations, which had been examined in the aforementioned OAs. Moreover, the Respondents had sought the permission to prosecute the Applicant when the order dated 29.05.2007 was passed, which has already been adverted to above. In so far as OA No.196/2006 is concerned, no liberty had been given to the Respondents to proceed against the Applicant.
9. In the light of above discussion, we are of the considered opinion that the action of the Respondents in proceeding against the Applicant afresh in the third summary of allegations dated 13.09.2007 is arbitrary, whimsical and illegal. Moreover, the allegations have been sought to be proved on the basis of the same set of witnesses, who were examined in the first departmental proceedings also and the order passed in the first departmental proceeding had been set aside for the reasons, which have been quoted above. This also would make the fresh departmental proceeding unsustainable.
10. In the light of above discussion, the impugned orders dated 20.02.2008 and 26.05.2008 are quashed and set aside. The Applicant would be reinstated in service forthwith and he would be entitled to all the consequential benefits, which would accrue to him under the Rules, as if no departmental proceedings had been initiated against him and as if no order of dismissal was passed against him. There will be no order as to costs.
( Dr. Dharam Paul Sharma ) ( L.K. Joshi ) Member (J) Vice Chairman (A) /dkm/