Central Administrative Tribunal - Delhi
Ex.-Constable Arun Yadav vs Govt. Of Nct Of Delhi on 30 November, 2012
Central Administrative Tribunal Principal Bench O.A.No.226/2012 New Delhi, this the 30th day of November, 2012 Honble Shri G. George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Ex.-Constable Arun Yadav No.2366/SD s/o Shri Tejpal Singh Yadav aged about 47 years r/o V-4/1, Police Colony Andrews Ganj New Delhi. Applicant (By Advocate: Shri Nilansh Gaur) Versus Govt. of NCT of Delhi Through Commissioner of Police PHQ MSO Building New Delhi. Additional Dy. Commissioner of Police South District, Hauz Khas New Delhi. Respondents (By Advocate: Mrs. Avnish Ahlawat) O R D E R (Oral) By G. George Paracken, Member (J):
The applicant Const. Arun Yadav, No.2366/SD and his accomplices were alleged to have been involved in a criminal case bearing FIR No.131/93 under Sections 380/427/467/468/469/471/120 IPC PS Defence Colony, Delhi. The said FIR was registered against him on the basis of a complaint by one Shri Shiv Shankar. He was in legal possession, in his capacity as tenant, of Shop No.39-A, NDSE, Part-II, New Delhi. He was running a kerosene depot in the said premises. On 22.03.1993, as usual, he closed his shop and returned to his home. On the following morning, i.e., on 23.03.1993 when he reached his shop at 10 AM, he found that it was demolished. He has also found that 14 drums of kerosene, cash worth Rs.1000/- and certain other documents were missing. On inquiry, he came to know that those goods were removed in truck No.DEG 5756 and the driver of the truck informed him that he was asked to remove those goods at the instance of one Shri G.C.Jain. During the course of investigation, Shri G.C.Jain produced an affidavit purported to have been executed by the complainant Shri Shiv Shankar Gupta bearing the signatures of one Shri Arun Yadav (applicant herein) and one Shri Gajanand Sharma by which the complainant had agreed to voluntarily surrender the said shop in favour of Shri G.C.Jain. Shri Jain, however, alleged that the said affidavit was a forged one and it was used by the respondents and their accomplices to usurp his shop.
2. In the aforesaid case, the lower/trial Court acquitted him of the charges levelled against him and others. However, the Honble High Court of Delhi, vide its judgement dated 14.12.2009, allowed the Criminal Appeal No.902/2008 State v. Gian Chand Jain & Others, and set aside the judgement of the trial Court. The High Court observed that the evidence on record has amply established that the respondents were guilty and they were convicted for having conspired with each other and having prepared the said forged affidavit with an intent to cheat the complainant. The shop had been illegally usurped, demolished and destroyed with the intention to cause an irreparable and wrongful loss and damage to the complainant and a consequent wrongful gain to the respondents. The respondents, i.e., G.C.Jain and the applicant were accordingly convicted under Section 120-B read with Section 468/471 and Section 427 of the IPC. They were sentenced to undergo rigorous imprisonment for one year for the offence under Section 120-B of the IPC; one year rigorous imprisonment and fine of Rs.10,000/- each, and in default of payment of fine to undergo rigorous imprisonment for three more months for the offence under Section 468 of the IPC.
3. The applicant (Shri Arun Yadav) in this Original Application filed Criminal Appeal No.1163/2010 (arising out of SLP (Crl.) No.1699/2010) Arun Yadav v. State of Delhi (NCT) before the Honble Supreme Court and the Supreme Court vide its judgement dated 5.07.2010 while dismissing the appeal, modified the aforesaid sentence imposed by the High Court stating that, in the facts and circumstances of this case, they were satisfied that the ends of justice would be served by reducing their sentence to the respective periods already undergone by them. Its relevant part is extracted as under:
On hearing counsel for the parties at some length, we are satisfied that the High Court has properly appreciated the evidence and rightly held the appellants guilty of the various offences. Therefore, the High Court judgment recording their conviction does not call for any interference by us in appeal.
Next, counsel for the two applicants made a fervent appeal to release the offenders in terms of section 360 of the Code of Criminal Procedure read with section 4 of the Probation of Offenders Act, 1958. The appeal is made, particularly strongly, on behalf of the appellant Arun Yadav who is a police constable and on whose behalf it is urged that unless let off on probation he might even lose his job. In support of the plea for release on probation learned counsel also relied upon a decision of this court in State of U.P. vs. Ranjit Singh, (1999) 2 SCC 617.
Having regard to the nature of the offence we find ourselves unable to accede to the appellants prayer for release on probation. The facts in the case of Ranjit Singh were indeed bad in as much as the respondent who was a High Court stenographer was accused of forging court order but in that case this court reversed the High Court order of acquittal and restored the judgment and order passed by the trial court. It was the trial court that after convicting the accused had directed for his release on probation. This court simply restored that order after setting aside the order of acquittal passed by the High Court in appeal. The decision in Ranjit Singh is, therefore, of no help to the appellants.
The only indulgence that can be allowed to the appellants is to consider their prayer to reduce their sentence of imprisonment to the respective periods already undergone by them. And there are good reasons for that. The occurrence took place in March 1993, that is, more than 17 years ago. The possession of the shop was restored to the informant, though after some litigation before the court. The appellant Gian Chand Jain has suffered imprisonment for about 3 months and 14 days. He is sixty five years old, has a heart condition and suffers from other ailments. As a matter of fact earlier he was granted exemption from surrender but later on he surrendered following the order passed by this court. The other appellant Arun Yadav has remained in jail for a little less than five months.
In the facts and circumstances of this case, we are satisfied that the ends of justice would be served by reducing their sentence to the respective periods already undergone by them.
In the result, the two appeals are dismissed, subject to the modification in the sentence of the appellants.
4. As a result of the said judgement, the applicant remained in Jail for a period little less than five months only (4 months and 23 day, to be precise).
5. In view of the above position, the disciplinary authority, namely, Additional Deputy Commissioner of Police, South District, New Delhi invoked the provisions under Article 311(2)(a) of the Constitution of India which provide that a Government servant can be dismissed/removed from service or reduced in rank on the ground of conduct which has led to his conviction on criminal charge. The disciplinary authority also considered Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 which provides that 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 in a 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 be forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action. The disciplinary authority accordingly dismissed him from service with immediate effect vide the impugned Annexure A1 order dated 5.03.2011.
6. The applicant made the Annexure A5 appeal dated 21.3.2011 against the aforesaid order of the disciplinary authority on the ground that the allegation made against him was only that he has signed as witness in good faith, on the affidavit purported to have been signed by Shri Shiv Shankar Sharma. He had, therefore, not derived any undue advantage out of signing the said affidavit. On the contrary, he was dragged into litigation for a long period of more than 17 years, suffered imprisonment for about five months which led to humiliation, suffered loss of service, pay, etc. and he was deprived of his promotions and rise in his career. He has also stated that he is the only bread earning member of his family having three school going children with the responsibility of educating them and he had no other source of income. Further, he had stated that he had already put in 23 years of service and there were no allegations of moral turpitude against him. In this regard, he has also invited attention to the following observations of the High Court:
A bare perusal of the impugned order makes it manifest that the respondent has failed in carving out the case in hand as an exceptional case to dispense with the procedure of holding an enquiry. The rationale given in the said noting or for that matter, even the documents placed before the Court in the course of the proceedings does not permit a conclusion to be drawn that it is not reasonably practicable to hold an enquiry in the given facts and circumstances of the case. .. By depriving the petitioners of an opportunity to explain their version and visiting them with such grave civil consequences of termination from service is in the given circumstances arbitrary, unjustified and is liable to be set aside.
7. The applicant has also relied upon the judgement of the Honble High Court of Delhi in Govt. of NCT of Delhi & Ors. v. Robin Singh, decided on 25.08.2010, reported in 171 (2010) Delhi Law Times 705 (DB), wherein it was observed as under:
34. That apart, as generically understood, offences involving moral turpitude can be classified with reference to the act being one which shocks the moral conscience of the society in general and this can be determined with reference to the motive of the offender i.e. whether the motive which led to the act was a base one or alternatively whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
8. However, the appellate authority, vide its Annexure A2 order dated 5.01.2012, rejected his appeal and upheld the order of the disciplinary authority. The relevant part of the appellate authoritys order reads as under:
I have perused the appeal and relevant record viz. judgment dated 28.03.06 delivered by Ld. MM, judgement dated 14.12.09 of Honble High Court of Delhi in Crl. Appeal No.902/08, order dated 5.7.10 of Honble Supreme Court of India in Crl. Appeal No.1163/2010 as well as dismissal order of the Disciplinary Authority under appeal. The appellant has also been heard in OR. During OR he submitted that he has filed a Revision Petition (Crl.) No.346/2010 in the Honble Supreme Court of India and the judgement therein is awaited. Hence, the appeal in hand was kept pending till the outcome of the said Revision Petition (Crl.).
On 16.12.11 the appellant has submitted a supplementary appeal vide which he has intimated that Revision Petition (Crl.) No.346 of 2010 filed by him in Honble Supreme Court of India has been decided on 17.11.11 by circulation and the same has been dismissed.
I have again perused the relevant documents on record. The Disciplinary Authority has rightly dismissed the appellant giving regard to the gravity of his offence. He being a Police official was expected to main decent standard of his conduct and uphold the dignity of law, but he involved himself in a serious case of cheating/forgery with clear criminal intentions. The appellant has cited the cases of some Police officials of Delhi Police who have been let off by awarding light punishment, taking a lenient view. This plea of the appellant is not maintainable as each case has its own merits according to which it is decided. So far as it relates to the case in hand, I find that the Disciplinary Authority has rightly weighed the punishment on the strength of his offence. There is no merit in his appeal to be considered for taking a lenient view. If any sort of lenient view is taken in this case, it will be against the public interest.
Keeping in view the offence committed by the appellant, I find no reason to intervene the Punishment Order under appeal. Thus the appeal is rejected and the punishment of dismissal from service awarded by the Disciplinary Authority is upheld.
9. The applicant has, therefore, challenged the aforesaid orders of the disciplinary authority as well as the appellate authority on the ground that both the orders are illegal and malafide and without jurisdiction. Further, the applicant has submitted that as per the dicta of the Constitution Bench of the Supreme Court in Union of India & Another v. Tulsiram Patel, AIR 1985 SC 1416 and as per the consequential guidelines framed by the DoPT vide its OM dated 11.11.1985 and 04.04.1986, the disciplinary authority has to consider whether the conduct which led to conviction warrants imposition of penalty and and while considering so, the disciplinary authority will have to take into account not only the conduct, gravity but peruse the judgement to consider the facts and circumstances of the case. It is incumbent upon the disciplinary authority to consider whether misconduct is likely to impact the administration and other extenuating circumstances or redeeming features. It has also to be ensured that the penalty shall not be excessive. The relevant part of the aforesaid OM dated 11.11.1985 is extracted below:
4. When action is taken under clause (a) of the second proviso to Article 311 (2) of the Constitution or rule 19 (1) of the CCS (CC&A) Rules, 1965 or any other service rule similar to it, the first pre-requisite is that the disciplinary authority should be aware that a Government servant has been convicted on criminal charge. But this awareness alone will not suffice. Having come to know of the conviction of a Government servant on a criminal charge, the disciplinary authority must consider whether his conduct, which had led to his conviction, was such as warrants the imposition of a penalty and if so, what that penalty should be. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. In considering the matter, the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features. This however, has to be done by the disciplinary authority by itself. Once the disciplinary authority reaches the conclusion that the government servants conduct was blameworthy and punishable, it must decide upon the penalty that should be imposed on the Government servant. (The position has been undergone a change with incorporation of first proviso to Rule 19, which may be kept in view). This too has to be done by the disciplinary authority by itself. The principle, however, to be kept in mind is that the penalty imposed upon the civil servant should not be grossly excessive or out of all proportion to the offence committed or one not warranted by the facts and circumstances of the case.
10. Further, the submission of the applicant is that the appellate authority also did not apply its mind, to consider the grounds and no such reasons have been recorded in its order. His long unblemished service of 23 years has also not been given any consideration.
11. The learned counsel for the applicant Shri Nilansh Gaur has finally argued that he is only pressing the issue of quantum of punishment which has been imposed upon the applicant by the disciplinary authority as upheld by the appellate authority. His contention is that the disciplinary authority did not come to a conclusion that there was any grave misconduct on the part of the applicant. Therefore, the gravest punishment of dismissal from service could not have been imposed upon him. Further his argument on the same issue is that the appellate authority should have considered the quantum of punishment to be imposed upon the applicant in terms of the gravity of the misconduct proved to have been committed by him.
12. The respondents have filed their reply. According to them keeping in view of the overall facts and nature and gravity of the offence committed by the applicant and the judgement of the Honble Supreme Court of India, his retention in service in a disciplined force was found to be undesirable. Therefore, the applicant (under suspension) was dismissed vide order dated 05.03.2011 and his suspension period from 12.02.2010 to the date of issue of the order was also decided as period not spent on duty for all intents and purposes. They have also stated that the appellate authority heard him the applicant in person on 15.04.2011, when he produced a copy of the Review Petition (Crl.) No.346/2010 filed by him before the Honble Supreme Court of India. The said petition has been admitted by the Apex Court and the same was pending. Therefore, the appellate authority decided to keep his decision on the appeal pending till the disposal of above said Review Petition by the Honble Supreme Court of India. A direction was also given to him to produce the copy order in Review Petition (Crl.) No.346/10 as and when it is decided. The applicant has submitted a Supplementary Appeal to Jt. CP/SR New Delhi stating that the review petition No.346/10 filed by him against his conviction was dismissed by the Honble Supreme Court of India vide judgement dated 17.11.2011. Therefore, the appellate authority rejected his appeal, vide order dated 05.01.2012. They have also submitted that the appellate authority has given due consideration to all the pleas taken by the applicant and also heard him in Orderly Room and found his submissions not convincing and observed that being a police official the applicant was expected to maintain decent standard of his conduct and uphold the dignity of law but he involved himself in a serious case of cheating/forgery with clear criminal intentions. Hence, the appellate authority has rightly rejected the appeal of the applicant which is in complete application of mind. Further, as per the conclusion of judgment dated 14.12.2009 passed by the Honble High Court of Delhi in Cr. Appeal No.902/2008 the applicant had full knowledge about the result of such forged affidavit and he was found involved with intention to cheat Shiv Shankar Sharma (Complainant) by making a conspiracy for which he was rightly punished. Further, as per above mentioned judgment the applicant on the morning of 23.03.1993 at about 10.00 AM was present in the truck which came there to collect malba from the shop as identified/stated by PW-1, Shiv Shankar Gupta during the trial. Hence the plea of the applicant that he was performing his duty at that time, raised many questions and also showed that he was helping them to reach their goal/motive. The plea regarding applicants motive in attesting the affidavit was also found untenable as it was clearly proved during trial that he was found indulged in entering into conspiracy with others and prepared the said forged affidavit with an intention to cheat the complainant and to usurp, demolish and destroy his shop with the intention to give wrong loss and damage to the PW-1, Shiv Shankar Gupta. The Honble Supreme Court of India vide its judgement dated 05.07.2010 only reduced the sentence period of the applicant and not acquitted him from conviction. His review petition has also been dismissed by the Apex Court. Hence, his further retention as a member in Delhi Police, which is a disciplined force, is undesirable. The disciplinary authority, while deciding his case also gave due consideration and care to the pleas put forth by the applicant in his written reply as well as oral submissions. The appellate authority also considered and rejected his appeal in accordance with the prescribed procedure and due application of mind.
13. We have heard the learned counsel for the applicant Shri Nilansh Gaur and the learned counsel for the respondents Mrs. Avnish Ahlawat. The admitted facts in this case are that the applicant was convicted by the Honble High Court of Delhi in Criminal Appeal No.902/2008 vide its Judgement dated 13.12.2009 wherein it has been stated that the applicant was guilty of the charges levelled against him under Section 120-B read with Section 468/471 and Section 427 of the IPC. There was also a finding that the applicant had conspired with other accused person and prepared the forged affidavit with the intention to cheat the complainant. In our considered opinion, by no stretch of imagination, one can say that cheating is not a grave misconduct. Rather it is a very serious and grave misconduct and a person who was committed such heinous crime of cheating cannot be retained in Delhi Police. This is the opinion of the disciplinary authority also. It says that the gravity of the offence was such that retention of such officer in service was undesirable. The appellate authority has also fully agreed with the aforesaid findings of the disciplinary authority. We, therefore, do not find any merit in the contention of the applicant that the quantum of punishment of dismissal from service imposed upon the applicant is excessive compared to the crime committed by him for the reasons given hereinafter.
14. It is well settled law that the High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. Only if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court / Tribunal, it would be appropriate to mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed. In exceptional and rare cases, it may itself, impose appropriate punishment with cogent reasons in support thereof. However, the power of moulding relief can be invoked by the Courts only when the punishment/penalty awarded to delinquent employee shocks the judicial conscience as held by the Apex Court in B.C.Chaturvedi v. Union of India & Others, (1995) 6 SCC 749. The relevant part of the said judgement is as under:
4. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court / Tribunal, it would appropriately mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. As held by the Apex Court in V. Ramana Vs. A.P.S.R.T.C and Ors. [2006 SCC (L&S) 69 = (2005) 7 SCC 338], unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court/Tribunal, there is no scope of interference. Again, in the judgment in Hombe Gowda Educational Trust and Anr. Vs. State of Karnataka and Ors. (2006 (1) SCC 430), the Apex Court has held that discretionary jurisdiction to interfere with quantum of punishment can only be exercised when inter alia it is found that no reasonable person could inflict such punishment or when relevant facts which would have a direct bearing on the question has not been taken into consideration. In other words, the disciplinary authority and the appellate authority have the full discretion to award appropriate punishment considering the gravity of the misconduct proved against the delinquent.
15. In view of the above discussion, we do not find any merit in the case. The OA is accordingly dismissed. There shall be no order as to costs.
(Mrs. Manjulika Gautam) (G. George Paracken) Member (A) Member (J) /nsnrgp/