Central Administrative Tribunal - Delhi
Suresh Kumar vs Govt. Of Nctd on 13 October, 2017
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.822/2016
Reserved on: 10.10.2017
Pronounced on: 13.10.2017
Hon'ble Mrs. Jasmine Ahmed, Member (J)
Hon'ble Mr. Uday Kumar Varma, Member (A)
Suresh Kumar (Aged about 51 years)
[Removed from service on 7.11.2013 as ASI
(Ministerial)]
PIS No.28850163, Belt No.530/SB
S/o late Sh. Hari Ram Yadav,
R/o 72, Dharam Kutir, Jawala Heri,
Paschim Vihar, New Delhi -110063. ...Applicant
(By Advocate: Shri S.N. Sharma)
Versus
1. GNCT of Delhi through
Commissioner of Police,
Police Headquarter,
IP Estate, New Delhi.
2. Deputy Commissioner of Police,
3rd Bn.DAP, Delhi,
Vikas Puri Police Complex,
New Delhi. ...Respondents
(By Advocate: Ms. P.K. Gupta)
ORDER
By Hon'ble Mr. Uday Kumar Varma, Member (A):
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
"8.1 Quash the Appellate Authority order dt.
07.08.2014, Disciplinary order dt. 07.11.2013 Authority/Findings of the I.O. dt. 25.05.2012 & also quashing of the Summary of allegations dated 23.11.2010.
8.2 Re-instate the applicant with continuity of services with all consequential benefits.2
8.3 Direct the respondent to pay all the pay and arrears from the date of removal i.e. 07.11.2013 till its realization with 12% of interest per annum. 8.4 Pass any other order/orders which deem fit and proper in the interest of justice."
2. The facts, as culled out from the record, are that on the basis of the statement of one Rajender Kumar, who was apprehended by the local police of PS Rohini and during search certain fake and forged mark-sheets and certificates were recovered from his right pocket. During investigation, he disclosed that he prepared all these documents with the help of the applicant and one Suresh Kumar s/o Sh. Mahesh Chand. A criminal case vide FIR No.274/96 under Sections 420/468/471/34 IPC was registered at PS Rohini on 19.07.1996. During the investigation, all the accused persons including the applicant were arrested and the challan was filed. It is the contention of the applicant that in the above FIR, he has been falsely implicated as all other charges except the charge under Section 474 IPC have been dropped. However, departmental proceedings were initiated against the applicant by the respondents vide order dated 17.05.2010 under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 and his detention period from 20.07.1996 to 06.08.1996 was treated as deemed to be under suspension vide order dated 28.01.2010. Inquiry Officer completed the DE proceedings 3 and submitted his report concluding that the charge against the applicant stood proved. The disciplinary authority agreeing with the findings of the IO, served a copy of the enquiry report vide order dated 08.06.2012 to the applicant to submit his representation, if any, within a period of 15 days and was called upon to show cause as to why his suspension period from 20.07.1996 to 06.08.1996 should not be treated as period not spent on duty. The applicant submitted his reply/representation against the findings of the IO on 20.06.2012. The applicant was also called and heard in OR on 25.07.2013 in pursuance of principles of natural justice where he stated that since the charge in criminal case has not been framed against him, the departmental proceedings may be kept in abeyance and this request of the applicant was acceded to. After framing of charges, the departmental enquiry was re-opened vide order dated 01.10.2013 for taking final decision. The disciplinary authority after taking into account the representation of the applicant against the enquiry report, imposed the punishment of removal from service upon the applicant vide order dated 07.11.2013 subject to final verdict in the criminal case and his suspension was also decided as period 'not spent on duty'. It was also made clear that the punishment order may be revisited either suo 4 moto or on the request of the applicant after the final outcome of the criminal case.
3. Being aggrieved by the disciplinary order dated 07.11.2013, the applicant preferred an appeal but the same was rejected by the appellate authority vide order dated 07.08.2014. It is the contention of the applicant that initiation of departmental enquiry against him is basically based on 'no evidence'. It is further contended that departmental and criminal proceedings based on identical charges cannot go on simultaneously. The applicant has submitted that his signatures were taken on various blank papers and the same have been used against him to prove the charge. He also submitted that the impugned orders are even otherwise in violation of Rule 15(2), Rule 11 and Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980. It is contended that while passing the impugned orders, reliance has been placed on SO 125/08 which is illegal as the executive instructions cannot be implemented retrospectively.
4. Per contra, the respondents have filed their written statement denying the issues raised by the applicant in his OA. They have contended that Rule 11, 12 & 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980 are not applicable in this case. Insofar as initiation of parallel 5 proceedings are concerned, the respondents have submitted that the Hon'ble Apex Court in various decisions has held that merely because a criminal trial is pending, departmental enquiry on the very same charges, as involved in the criminal proceedings, is not barred. The respondents have further stated that the enquiry officer has touched all the contentions and statements of prosecution witnesses thoroughly before holding the charge against the applicant as proved. It is also submitted that the disciplinary authority agreeing with the findings of the IO and taking into account the representation of the applicant has imposed the impugned punishment of removal upon the applicant. The appellate authority, finding no merit, rightly rejected the appeal preferred by the applicant.
5. We have carefully gone through the pleadings of the case, and have given our thoughtful consideration to the arguments put forth by the counsels for both the parties.
6. Learned counsel for the applicant forcefully stated at the time of oral arguments that the departmental enquiry was basically based on 'no evidence'. He contended that no documents were ever recovered from the person of the applicant and further that the premises from where some 6 documents were recovered was not owned or rented out by the applicant. He further stated that none of the documents were examined forensically to establish that they were fake and forged documents.
7. The learned counsel for the applicant referred to the statements of Prosecution Witnesses nos. 3 and 4, who corroborated that nothing was recovered from the person of the applicant. In view of the above, he vehemently argued that the enquiry officer has grievously erred in coming to the conclusion that the charge stands proved against the applicant.
8. The learned counsel for the respondents, in her arguments rebutted the issues raised by the learned counsel for the applicant. She stated that the applicant was proceeded against departmentally on the basis of confession made by a private person, namely, Rajinder Kumar, from whom fake certificates and mark-sheets were recovered. It was based on his statement during his interrogation, where he disclosed that he had prepared these certificates with the help of the applicant i.e. Suresh Kumar s/o late Hari Ram Yadav, that the departmental enquiry was initiated against the applicant. Therefore, it was not the respondents' case that false and fake 7 certificates were recovered from the applicant. Moreover, the fact of the premises not being owned by the applicant does not matter at all. However, the fact remains that the documents, which were fake and forged, were recovered from the premises in the presence of the applicant. She drew our attention to Annexure A-2 (Colly), which is entitled 'फर्द निशाि र्े ही व ् मकबूजगी', and shows that the applicant had willingly along with police party come to Ekta Academy Flat No.A-129, Piragarhi, Paschim Vihar and after opening the lock, around seven forged documents were recovered. This document [Annexure A-2 (colly)] has been signed by the applicant in the presence of witnesses. It is the contention of the learned counsel for the respondents that it is a fact that the applicant had led the police party to a place, namely, Ekta Academy Flat No.A-129, Peeragarhi, Paschim Vihar and the forged documents were recovered from that place. It is a conclusive evidence that establishes that the applicant was involved in the operation of preparing fake and forged documents as has been revealed by one Rajinder Kumar, who was caught with some forged documents. It is, therefore, the contention of the respondents that the applicant has himself admitted to his guilt and misconduct and he cannot wriggle out now by pointing out some discrepancies in the evidence given by 8 witnesses. She further argued that in departmental proceedings, it is largely the preponderance of probabilities and an order passed in departmental enquiry does not become vitiated only because it has not followed the same rigour of enquiry as is done in case of criminal trial. In view of the same, she pleaded that the OA may be dismissed as it is lacking merit.
9. The scope of interference by Tribunals in matters of departmental proceedings is rather limited and qualified. One has to see primarily whether (a) principle of natural justice has been followed or not; (b) that the procedure followed during the enquiry does not suffer from a defect which could significantly alter the outcome of the enquiry;
(c) that analysis of evidence is not so askewed so as to defeat the ends of justice; and (d) whether the punishment meted out to the applicant is not overly disproportionate to the degree of misconduct.
10. Seen in this perspective, we do not find that the order passed by the respondents suffer from any of the above infirmities, the process of enquiry has been properly conducted with full opportunity to the applicant to present his case. The plea of the applicant that there is some contradiction in the evidences by prosecution witnesses, in 9 our view, does not vitiate the enquiry only because such contradictions do not materially alter the facts of the case. While we have carefully considered the arguments advanced by the learned counsel for the applicant, particularly the contention that there is no evidence to the effect that forged documents were recovered from the applicant or that the premises from where they were recovered was not owned by him, the fact remains that the respondents' case is not that these incriminatory documents were recovered from him. The case of the respondents is that the applicant has been an ally of the main culprit and has been party to the illegal activities of Rajinder Kumar in manufacturing and selling fake and forged mark-sheets and certificates. We cannot fail to notice that the applicant has nowhere disputed, during the process of enquiry, that the Recovery Memo (फर्द निशाि र्े ही व ् मकबूजगी) is a forged one or that this document has been falsely created by the respondents.
11. The Hon'ble Apex Court in the case of Government of Andhra Pradesh vesusMohd. Nasrulla Khan [2006 (2) SCC 82) has held that the scope of judicial review is confined to correct the errors of law or procedural error if results in manifest miscarriage and justice or violation of 10 principles of natural justice. The Hon'ble Court in para 7 has held that:
"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority."
The Hon'ble Apex Court in the case of S.R.Tewari versus Union of India [2013 (7) SCALE 417] has reiterated that "The role of the court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review.
12. In another judgment, the Hon'ble Supreme Court has reiterated his earlier view that the High Court as well Tribunal under Article 226 of the Constitution of India cannot sit as Court of appeal over the decision of the 11 authorities holding departmental proceedings against a public servant. After relying upon the judgment Sree Ramarao (supra) dismissed the SLP in case of State Bank of India vs. Ram LalBhaskar and Another [2011 STPL (web) 904], Para 8 of the judgment reads as under:-
"8. Thus, in a proceeding under Article 226 of the Constitution of India, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decision by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against the respondent no.1 do not constitute any misconduct and that the respondent No.1 was not guilty of any misconduct."
Culled out from these judgments, the following broad guidelines, inter alia, emerge
a) Tribunals should not, generally, re-appreciate the evidence considered by the disciplinary authority, as they should not act like an appellate authority;
b) They should not interfere unless there is a substantial procedural lapse committed by the enquiry officer;
c) They should not interfere unless there is evident violation of Principles of Natural Justice and fair opportunity of hearing has not been afforded to the charged officer;
d) They should not go into the question of quantum of punishment unless it is grossly disproportionate to the gravity of misconduct and/or shocking to the conscience. 12
13. These guidelines for the Tribunals get strong support and endorsement from a recent judgment of the Apex Court in the case of Union of India versus P.Gunasekaran [2015 (2) SCC 610] wherein it has been held as follows :-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the
procedure prescribed in that behalf;
c. there is violation of the principles of natural
justice in conducting the proceedings;
d. the authorities have disabled themselves
from reaching a fair conclusion by some
considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:13
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
Xx xx xx
19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court.
In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
14. The above guidelines enunciated in the judgment are as relevant and useful for adjudication of Departmental Proceedings in Tribunals as they are for High Courts. If we 14 consider the guidelines laid down by the Hon'ble Apex Court in the case of P.Gunasekaran (supra), we cannot hesitate to conclude that the instant case does not merit any interference by us as no aspect of this case qualifies for an intervention by the Tribunal.
15. In view of the above analysis, we are of the considered view that the applicant's contentions with regard to the impugned orders being illegal and arbitrary are not sustainable in the face of the facts and circumstances of this case. Hence, the OA is deficient in merit and deserves to be dismissed and is accordingly dismissed.
(Uday Kumar Varma) (Jasmine Ahmed) Member (A) Member (J) /AhujA/