Central Administrative Tribunal - Delhi
Manoj Kumar vs Comm. Of Police on 20 November, 2024
1
Item No. 33/ C-5
C
O.A. No. 2439/2016
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 2439/2016
This day of 20th November of 2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati
Khati, Member (A)
HC Manoj Kumar, Age-45
Age years,
No.2651/SW (now 8832/PCR)
PIS No.28882813
S/o Sh. Ramanand,
R/o
R/o-A-195, Nandram Park,
Uttam Nagar, Delhi-59
Delhi
Applicant
(By Advocate: Mr. Sachin Chauhan with Ms. Ridhi
Ridhi)
V/s
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
A
A-Wing, 5th Floor,
Delhi Secretariat, New Delhi-110113
110113
2. The Commissioner of Police,
PHQ, I.P. Estate,New Delhi.
3. The Addl. Dy. Commissioner of Police (GA),
Police Control Room,
through Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
...Respondents
(By Advocate: Ms. Annu Singh)
2
Item No. 33/ C-5
C
O.A. No. 2439/2016
ORDER (ORAL)
By Hon'ble Mr. Manish Garg, Member (J) By virtue of the present O.A., the applicant seeks the following reliefs:-
"(i) To quash and set aside the impugned order dated 25.2.11 whereby of Disciplinary Authority the punishment i.e. Censure is inflicted upon the applicant, order dated 15.4.2014 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents that applicant be entitled for consequential all benefits including seniority and promotion and pay and an allowances.
(ii) To set-aside set aside the finding finding of Enquiry Officer. & Supplementary
(iii) To set aside the order of initiation of D.E. dated 18.5.09 and summary of allegation.
(iv) To remove the name of the applicant from secret list from the date of o inception.
Or/and
i) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. Highlighting the facts of the case, the learned counsel for the applicant submits that the applicant participated in the joint en enquiry proceedings, which is evident from the impugned order (Annexure A/1).
The joint enquiry was conducted in the cases of Head Constable Manoj Kumar (the applicant herein) and Constable Gazi Ram.
3. The learned counsel for the applicant further submits tthat in O.A. No. 2026/2016 filed by Constable Gazi Ram, a detailed order was passed 3 Item No. 33/ C-5 C O.A. No. 2439/2016 on 21.04.2023. The relevant paragraphs of the said order read as under:-
"8. From the above it is clear that the DA while awarding punishment upon the applicant on his own has considered the above extraneous material, which was neither made as a specific charge nor was the applicant given an opportunity to defend it. It is well settled that the departmental authorities while awarding the punishment upon the delinquent official official cannot take into consideration extraneous material unless an opportunity of cross examination is given to the delinquent to defend himself.
9. The learned counsel for the applicant has relied upon a decision of this Tribunal in ASI Pale Ram (supra) to contend that his case is squarely covered by the said decision. We have also gone through the decision of this Tribunal in ASI Pal Ram (supra) and find that the Tribunal has held thus "we are of the opinion that on account of the charge of allegation bein being vague and not specific, total reliance being placed on CD which was not original, opportunity not being given to cross examine important prosecution witnesses because they were not produced and that no independent witnesses were produced, we find the proceedings proceedings conducted against the applicants are not in accordance with the rules and the principles of natural justice. In our view, the respondents have totally relied upon an illegal trap, a CD which has no evidentiary value and proceedings which are not iin accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A A-1 to A- 3 cannot be sustained and are hereby quashed and set aside."
10. From the above, it is clear that the claim of the applicant herein is squarely squarely covered by the decision of the Tribunal in ASI Pale Ram (supra) and we respectfully follow the same.
11. We have also perused the decisions relied upon by the learned counsel for the respondents and found them to be distinguishable on facts and hence are of no help to them as the issue involved therein was power of Courts/Tribunal in judicial review in the matters of DE.
12. Resultantly, for the foregoing reasons, the impugned order of the DA dated 25.02.2011 whereby the punishment of Censure has been been inflicted upon the applicant, order dated 15.04.2014 whereby the statutory appeal of the 4 Item No. 33/ C-5 C O.A. No. 2439/2016 applicant has been rejected are quashed and set aside. As a result thereof, the applicant shall be entitled to all consequential benefits in accordance with the rele relevant rules and instructions on the subject. This exercise shall be completed by the respondents within a period of eight weeks from the date of receipt of a certified copy of this order. No costs".
costs"
4. The learned counsel for the applicant contends that the punishment awarded to Constable Gazi Ram was identical in nature to that imposed on the applicant. The allegations against both individuals arose out of the same facts, as narrated in the impugned order itself.
5. It has also been highlighted that both He Head Constable Manoj Kumar (the applicant herein) and Constable Gazi Ram were charge charge-
sheeted as follows:-
follows:
"This is the final order in the Joint Departmental Enquiry initiated against HC Manoj Kumar, No. 2651/SW, (now 8832/PCR) (PIS No. 28882813), and Const. Gazi Ram, No. 1243/SW, (now 35 35-45/PCR) ( PIS No. 28000492) (here-in-after (here after called the delinquents), under the provisions of Delhi Police (Punishment & Appeal) Rules Rules-1980 vide this office order No. 11102-36/HAP/P 11102 36/HAP/P-11/PCR, dated 18-5- 2009, on the allegations that that while posted at PS Dabri on 24/25 24/25- 11-2006, 2006, they were found indulged in corrupt practices in an organized manner. In pursuance of the Hon'ble High Court of Delhi's order in connection with writ petition No. 490/2007, Chetan Prakash Vs State, a Vigilance enquiry was conducted in Vigilance Branch, Delhi Police. The Vigilance enquiry revealed that delinquents HC Manoj Kumar, No. 2651/SW, (now 8832/PCR), and Const. Gazi Ram, No. 1243/SW, (now 3545/PCR), who were deployed at PS Dabri, were found indulged in ccorrupt practices. Their indulgence in corrupt practices is visible in CD No. 4 submitted by the complainant Sh. Chetan Prakash S/o Sh. Babu Lal before the Hon'ble High Court of Delhi in the above mentioned writ petition. For this misconduct, HC Manoj Kumar Kumar, No. 2651/SW, (now 8832/PCR) and Const. Gazi Ram, No. 1243/SW, (now 3545/PCR) were placed under suspension vide order No.8596 No.8596- 8618/1IAP 8618/1IAP-II/SWD, dated 29-6-2007."
2007."
5Item No. 33/ C-5 C O.A. No. 2439/2016
6. Opposing the relief sought, the learned counsel for the respondents relies upon the counter counter reply, particularly referring to the following averments:
"4.11. Thehe contents of para 4.11 are wrong and denied. Expert opinion regarding the CDs prepared by Chetan Prakash received and vide reference No.CFSL/121/08/PHY/17/08, 06/09 dated 9.1.2009 in r/o priority reference No.402/SO/DCP/C&R(Priority) & 197/A ACP/SIP dated 25.2.2008 and dated 11.2.2008 respectively SIT Crime Branch, Sector-18 Sector 18 Subject Subject-FIR No.702/2007 dated 5.9.2007 P.S. Nangloi u/s 7/13(1) and D(2) POC Act 1988 opined that "on the basis of above analysis it was observed that no intentional alteration/tempering on the questioned audio-video audio video recordings could be detected. Hence, the portion in question of video recording and video cassettes marked 'V-I 'V to V-7'7' is free from any edition/deletion or tempering. Therefore, the defence pleas taken are not tenable. CFSL report regarding CD cannot be treated as extraneous material. It is an authentic document and the same has been brought on record as exhibited court document.
5.3 to 5.6. The contents of of paras 5.3 to 5.6 are wrong and denied. During the D.E. proceeding, it is established that on 24/25 24/25-11-2006, 2006, the applicant HC Manoj Kumar, 88321PCR and Const. Gazi Ram No.3545/PCR found accepting money from bootleggers Bhola Ram and his wife in their house house in Dabri while they were posted at P.S. Dabri. They were found indulged in corrupt practices which clearly visible and could be heard in the CD. Chetan Prakash, the complainant submitted the original CD in the Hon'ble High Court of Delhi which was handed over to Vigilance Branch for enquiry and further action. Sh. Chetan Prakash on oath declared in the Hon'ble High Court that the CDs submitted by him are genuine. Experts opinion regarding the CDs prepared by Chetan Prakash received and vide reference No.CFSL/121/08/PHY/17/08, No.CFSL/121/08/PHY/17/08, 06/09 dated 9.1.2009 in r/o priority reference No.402/SO/DCP/C&R (Priority) & 197/A ACP/SIP dated 25.2.2008 and dated 11.2.2008 respectively SIT Crime Branch, Sector-18 Sector Subject-FIR FIR No.702/2007 dated 5.9.2007 P.S. Nangloi extraneous ma material. It is an authentic document and the same has been brought on 6 Item No. 33/ C-5 C O.A. No. 2439/2016 record as exhibited court document. The CFSL report is conclusive, hence there is no need to examine the expert.
5.11. The contents of para 5.11 are wrong and denied. The pleas advanced byby the applicants have no legs to stand and thus not convincing as the plea with regards to the exoneration of Const. Roop Singh in another DE proceeding, seems to be highly misplaced and not conducive in the light of different background and circumstances where the giver of money remained unidentified, hence, the question arose whether the money was being collected for and on behalf of authorized officer as challan amount or for compoundable offence. Moreover, the charge was also not proved in the case of C Ct. Roop Singh by the E.O. As in the present case, the charge is fully established by the EQ. against the applicants on the basis of deposition of PW's as well as Video Footages wherein the applicants are clearly visible conniving With' Ct. Gazi Ram and accepting accepting the bribe. Thus, to compare the present DE with the DE proceeding of Ct. Roop Singh is in itself fallacious. However, the question regarding the non non- appearance of main PW's and non- non production original Video Camera and Tapes/CD's for examination of FSL experts and a part chance of manipulation which exists in the report of FSL experts, the disciplinary authority was not inclined to inflict severest of punishment which should have been given to the applicant."
7. Having heard the learned counsel for tthe parties and perused the records of the case, we find that the issues raised in the present matter have already been settled in O.A. No. 2026/2016 (Constable Gazi Ram), as highlighted above. Therefore, noo distinction can be drawn in the facts and circumstances tances of the present case. The factual matrix has already been explained in detail in the said order.
order The relevant paragraph Nos. 4, 5, and 6 are reproduced as follows:-
follows:
"4. We have considered the rival contentions of the parties and gone through the pleadings pleadings on record. It is noticed from the findings recorded by the EO that Mr. Chetan Parkash, who was the main and material witness and who 7 Item No. 33/ C-5 C O.A. No. 2439/2016 had prepared the CD, on the basis of which applicant was charged for accepting illegal gratification, has neither beenn produced in the DE nor opportunity was given to the applicant to cross-examine cross examine him. Hence the prosecution has failed to prove their story. This is in clear violation of principles of natural justice, which in turn has greatly prejudiced the applicant in the matter of his defense. Moreover, the DW-3 DW 3 Bhola Ram, Bootlegger in his statement has clearly deposed in his statement that:
".....on 05.07.2006, he borrowed Rs.15,000/ Rs.15,000/-
from Manoj Kumar through Anil Kumar, the owner of Neel Ghata Prperty. There is a wr written per-note note of receipt which was returned in installments. The amount which is seen in the CD is the transaction of the borrowed money from HC Manoj Kumar. The CD is prepared by Chetan Prakash who is a rouge type of person who used to extort money from police officials by making false CDs. ........ He is giving this statement with his own consent."
Hence, no reliance can be placed on this CD by the respondents to prove the charge against the applicant.
5. We further find that the Appellate authority whil while rejecting the appeal of the applicant being time barred has also entered into the merit. The AA has also not considered/appreciated the request of the applicant seeking condonation of delay. It is well settled that once the AA has entered into the merit of the appeal it cannot reject it on mere limitation and is required to consider each and every grounds taken by the appellant in appeal. On this ground alone the OA is liable to be allowed.
6. We also find that the applicant has been greatly prejudiced in the matter of his defense as an extraneous material has been considered by the respondents in the form of PE report, which was very much essential by the applicant in defending himself and for which a specific request was made by him. The EO has also reco recorded in his supplementary finding that the PE report was very essential document, which was required to be made available to the applicant. Having failed to do so, principles of natural justice have been violated and the applicant in turn has been greatly prejudiced in the matter of his defense."
8Item No. 33/ C-5 C O.A. No. 2439/2016
8. In view of the above, we are of the opinion that since the issue involved herein has already been dealt with by this Tribunal in OA no.
2026/2016, we dispose of the present OA on the same analogy.
resultantly for fo the forgoing reasons sons the impugned order of the disciplinary authority dated 25.02.2011 whereby the punishment of Censure has been inflicted upon the applicant and order dated 15.04.2014, whereby, whereby the statutory appeal of the applicant has been rejected, are re quashed and set aside. As a result, thereof, the applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject. This exercise shall be completed by the respondents within a period of eigh eight weeks from the date of receipt of a certified copy of this order. All pending application stand disposed of. No order as to costs.
(Dr.
Dr. Anand S Khati)
Khati (Manish Garg)
Member (A) Member (J)
/arti/