Central Administrative Tribunal - Delhi
Shri Yoginder Kumar Ex.Constable vs The Commissioner Of Police on 12 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI OA No.1836/2013 Reserved on 06.05.2014 Pronounced on 12.05.2014 HONBLE SHRI SUDHIR KUMAR, MEMBER (A) HONBLE SHRI A.K.BHARDWAJ, MEMBER (J) Shri Yoginder Kumar Ex.Constable 188/DRP (Now 316/DAP), Delhi Police S/o Shri Iqubal Singh R/o Vill. & P.O. Patla, P.S.Newari, Distt. Ghaziabad, U.P. ..Applicant (By advocate: None) VERSUS 1. The Commissioner of Police Police Head Quarters, I.T.O., New Delhi. 2. Lt. Governor, Raj Niwas, Delhi. Respondents. (By advocate: Shri Vijay Pandita) ORDER
Shri A.K.Bhardwaj, Member (J) No one appeared on behalf of the applicant even on second call, thus, the OA was taken up for disposal under Rule 15(1) of the CAT (Procedure) Rules, 1987.
2. One Shri Raj Kumar Gupta S/o Shri Gyan Prakash Gupta, resident of B-50, New MIG Flat, Mayur Vihar, Phase-III, New Delhi made a Complaint dated 25.02.2006 addressed to the Superintendent of Police, CBI, ACU-II, New Delhi alleging that the applicant and ASI Dalip Pawar, IO of PS Narcotics, Kamla Market, New Delhi demanded bribe of Rs. 1 lac as illegal gratification from him for helping in a case under NDPS Act registered against him in October 2005. The complainant also alleged that the said officials had asked him to meet at Pandara Road Market, New Delhi alone between 4.15 PM to 4.30 PM on 25.02.2006 with the demanded amount. While accepting the bribe, the applicant and the co-delinquent were apprehended red handed. Thus, a criminal case vide FIR No.RC-AC2 2006 A0004 dated 27.02.2006 under Section 120-B IPC and 7 POC Act was registered by the CBI, Delhi against both of them. Both the applicant and the co-delinquent were dismissed under the provisions of Article 311 (2) (b) of the Constitution of India. Nevertheless, the order was challenged before the Tribunal and in implementation of the orders dated 14.12.2007 and 12.12.2007 passed by the Tribunal, they were reinstated in service with effect from 27.02.2006 and were deemed under suspension. Thereafter, a joint D.E. was initiated against them vide order No.46105-32/HAP/C&R dated 24.10.2008. As a result of D.E., the applicant was awarded the punishment of withholding of next increment for a period of 5 years with cumulative effect vide office order No.3498-3527/HAP(P-1)/1st Bn. DAP dated 11.03.2011 without prejudice to the outcome of criminal case pending against him. With the imposition of said penalty, he was reinstated in service vide office order dated 17.07.2012. In the meantime, in the criminal case registered against him the applicant was convicted and sentenced with the following punishment:
Convict Yogender Kumar: (Applicant)
1. Under Section 7 of the POC Act r/w Section 120-B IPC RI for 3 years and 6 months and fine of Rs.10,000/- in default of payment of fine, SI for 6 months.
2. Under Section 13 (1) (d) r/w Section 13(2) PC Act r/w Section 120 IPC RI for 3 years and 6 months and fine of Rs.10,000/- in default of payment of fine, SI for 6 months.
3. Under Section 120-B IPC RI for 3 years and fine of Rs.5,000/- in default of payment of fine, SI for 6 months. With the conviction of the applicant in terms of the judgment dated 12.12.2011, following the Rule 11(1) of Delhi Police (Punishment & Appeal) Rules, 1980, as amended by the Govt. of NCT of Delhi through a Notification No.F.13/28/2011/HP-I /Estt./3891-3897 dated 30.11.2011 circulated by PHQ vide Endorsement No.05-105/Spl. Cell/PHQ dated 09.01.2012, the Disciplinary Authority passed an order dated 28.08.2012 dismissing the applicant from service. The appeal against the said order was also rejected by the Appellate Authority vide order dated 04.03.2013. Thus, the applicant has filed the present OA.
The salient grounds raised in the OA inter alia are:
(i) when the Honble Appellate Court stayed the conviction, the Disciplinary Authority ought to have awaited the of the appeal;
(ii) the evidence led by the Police before the Learned Trial Court is under sheer cloud and is not believable;
(iii) the recovery memos and the statement of witnesses etc. were computer typed copies and were not prepared at the spot and, therefore, had been tampered with;
(iv) the witnesses have given different versions;
(v) voice recording had been tampered with;
(vi) no one present at the spot was made a witness to the alleged raid; and
(vii) the applicant is discriminated as several persons, who remained in jail, were taken back in service.
3. As far as the plea of the applicant regarding the infirmity in the order of the Trial Court and insufficient evidence led before the Trial Court is concerned, the same may be examined by the Competent Court at the time of hearing of the appeal against the said order and are of no consequences before us in the present proceedings where we have to simply decide, whether on conviction of the applicant in a criminal case, he could be dismissed from service or not. There is also no force in the plea of discrimination and violation of Article 14 of the Constitution raised by the applicant for the simple reason that there is no negative principle of equality. It is stare decisis that one can claim equality before the law and not an equal treatment to disregard the law. As far as the plea of the applicant regarding the stay order of the conviction in para 5 (A) is concerned, the same is misleading. In terms of the order dated 13.12.2012 passed in Criminal-A 945/2012, the Honble High Court of Delhi has only suspended the sentence inflicted upon the applicant and not the conviction. The implication is not that the person concerned is no longer convict. The suspension of sentence has the ramification that the appellant is convicted but he would not undergo sentence inflicted by the Trial Court till the disposal of the appeal. The applicant has not raised/ produced any plea of law that merely because the sentence is suspended in appeal, the provision of Rule 11(1) of Delhi Police (Punishment & Appeal) Rules, 1980, as amended on 30.11.2011, cannot be invoked. Rule 11(1) of Delhi Police (Punishment & Appeal) Rules, 1980 reads as under:
Rule 11 (1) when a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the Disciplinary Authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such, as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service calling upon him to show cause against the proposed action.
4. The impugned orders are in-consonance with the said rule. Thus, we find no infirmity in the orders passed by the Disciplinary Authority and the Appellate Authority. The OA is found devoid of merit and is accordingly dismissed. No cost.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /kdr/