Central Administrative Tribunal - Delhi
Mange Ram Sharma S/O Shri Bal Kishan ... vs Govt. Of Nct Of Delhi And Ors. on 20 March, 2007
ORDER Shanker Raju, Member (J)
1. Applicant, who is Assistant Sub Inspector in Delhi Police, by virtue of this OA, has assailed respondents' order dated 20.9.2005 whereby his request to follow the laid down procedure before the disciplinary authority passes a fresh order in compliance of the directions of the Tribunal in OA-91/2004 decided on 13.8.2004, has been turned down.
2. Brief factual matrix of the case transpires that the applicant along with others on the allegations of demanding and accepting illegal money while posted in Traffic Signal at Seemapuri on 3.12.2000 when apprehended on PRG raid, has been held to have committed negligence and gross misconduct. Another part of the charge was that the driver of the truck had been threatened. As such, he could not appear in the departmental inquiry to depose against the applicant when he had specifically deposed in the preliminary inquiry. Finding recorded by the inquiry officer holding the applicant guilty of the charge, when represented to the disciplinary authority, culminated into an order of punishment passed by the disciplinary authority on 4.8.2003. Appeal preferred against the order when culminated into an order affirming the punishment on 11.11.2003 was challenged before the Tribunal in OA-91/2004. In an order passed on 13.8.2004, following observations have been made:
10. It is on the strength of the same that it has been urged that in the absence of Modh. Ahtegsham, it cannot be held that there was a threat given by the applicant to him.
11. Our attention was drawn by the learned Counsel for the respondents to the departmental file in which there is a letter written by Mohd. Ahtegsham dated 8.5.2001 about the pressure being exhorted on him to depose in applicant's favour. The said letter had never formed part of the disciplinary proceedings in terms that it was not proved to be in the hand of Mohd. Ahtegsham by any person even if the said witness was not available. Therefore, it cannot be termed that the said part of the charge that the applicant had threatened dire consequences to Mohd. Ahtegsham cannot be held to be proved because in this regard, no reasonable opportunity had been granted nor any evidence was on the record.
12. We hasten to add, at this stage, that this finding has been arrived at pertaining to a specific charge and not with respect to the interpretation of Sub-rule (3) to Rule 16 and Sub-rule (3) to Rule 15 of the Delhi Police (Punishment & Appeal) Rules, 1980. That part of the charge necessarily, therefore, deserves to be quashed.
13. It is well settled that awarding the penalty falls within the domain of the disciplinary authority. In this regard, scope for interference would be limited. It is not for this Tribunal to award the penalty. When a part of the charge is being quashed, it would be proper that the disciplinary authority applies its mind and pass a fresh order in this regard. Pertaining to the other aspects of the charge, we make it clear that it is for the disciplinary authority to take totality of the facts and pass such an order as may be deemed appropriate.
3. Resultantly, the OA was disposed of with the following directions:
14. Resultantly, we dispose of the present application and direct:
The part of the charge pertaining to threatening Mohd. Ahtegsham is quashed.
Disciplinary authority in the light of the aforesaid may pass a fresh order in this regard. We are not expressing anything, at this stage, on the other aspects of the merits and nothing said herein should be taken as an expression of opinion in that regard. If the applicant was under suspension, he will continue to be so till the fresh order is passed.
4. Accordingly, the disciplinary authority passed an order of dismissal on 27.1.2005 in compliance of the directions of the Tribunal. CCP-93/2005 preferred by the applicant on the ground that as he was under suspension at the time of dismissal, he could not have been placed under suspension. An order passed by the Tribunal on 12.7.2005 issued the following directions:
Later on, Sh. Harvir Singh, learned Counsel of the respondents appeared and stated that matter requires reconsideration. We also feel that directions to place the applicant under suspension, if has been placed earlier are implied directions to put him in service and thereafter pass final order. As this has not been done, we prima facie find that the order should be complied with in true letter and spirit. Respondents are directed to re-examine and take appropriate action, failing which we will be constrained to take a serious view in the matter.
List on 26.07.2005.
Dasti.
5. As a result thereof, an order passed on 19.7.2005 withdrew order dated 27.1.2005 and the applicant was reinstated in service but placed under suspension.
6. CP-93/2005 was finally disposed of on 26.7.2005 with the following directions:
3. In this view of the matter, the C.P. is disposed of with a direction to the respondents to pass an order within a week from today deleting the words 'deemed place under suspension' as stated in the first paragraph of their order dated 19.07.2005. Notices are discharged.
7. Accordingly, an order in compliance thereupon passed on 2.8.2005 deleted the sentence 'deemed place under suspension'.
8. A show cause notice issued on 10.8.2005 reads as follows:
SHOW CAUSE NOTICE You, ASI Mange Ram, No. No. 3446/D (PIS No. 28760627) were proceeded against departmentally vide order No. 586-606/P. Cell/Vig./P-IV Dt. 11/01/01. The EO submitted his findings concluding therein that the charge framed against you was fully proved. However, the Hon'ble Tribunal vide order Dt. 13/08/04 in OA No. 91/04 has quashed the part of the charge relating to the threatening to the complainant by you. Accordingly, this part of the charge is hereby withdrawn from the main charge framed against you and, therefore, tentatively agreeing with the findings of the EO, excluding the limited charge of threat, pertaining to Ahtegsham, the present show cause being issued to you as to why appropriate punishment as deemed fit in the present facts & circumstances of the case, should not be imposed upon you & suspension period from 03/12/2000 to 12/08/2001 should not be treated as period 'Not spent on duty' for all intents & purposes. However, the nature and quantum of punishment, if any, shall be assessed after the receipt and consideration of your representation.
You, ASI Mange Ram, No. 3446/D are hereby given an opportunity to submit your representation, if any within 15 days from the date of receipt of this notice, failing which it will be presumed that you have nothing to say in your defence and exparte decision would be taken on merit of the case.
9. The aforesaid has been represented to by the applicant on 1.9.2005 with an objection that once a charge is found unsustainable, the disciplinary authority should have passed order by resuming the proceedings from the stage of charge and thereafter on recording the finding, a final decision is to be taken on representation of the applicant.
10. Accordingly, the reply puts objection to the methodology adopted, as alleged, to be alien to the Delhi Police (Punishment & Appeal) Rules, 1980 with a note that this should not be treated as a reply on merit. When no reply has come forth to the show cause notice, the respondents passed an impugned order giving an opportunity to the applicant to submit reply within seven days, failing which an ex parte decision would be taken.
11. An order passed on 28.9.2005 by the Tribunal directed that any final order to be passed shall abide by the result of the OA.
12. Shri A.K. Behera, learned Counsel for applicant, by drawing our attention to the decision of the Tribunal in OA-91/2004 (supra), stated that the other contentions of the applicant having not been considered on merit, an order passed by the disciplinary authority deleting the part of the charge threatening one Mohd. Ahtegsham should have culminated as per Rule 16 (4) of the Delhi Police Rules into a fresh charge and thereupon a finding has to be recorded by the inquiry officer, which, on representation, could have entailed into a final order passed by the disciplinary authority.
13. Learned Counsel would contend that every direction of the Tribunal is deemed to be issued, where compliance is to be done by the respondents in accordance with the rules and instructions.
14. Learned Counsel, in this backdrop, stated that Rule 16 of the Delhi Police Rules does not prescribe a show cause notice issued to the applicant proposing imposition of a penalty and what is required under law is to deliver a copy of the finding to comment and thereupon a final order is to be passed.
15. Learned Counsel has also brought to our notice the decision of the Apex Court in State of Uttar Pradesh v. Brahm Datt Sharma and Anr. to contend that in the matter of departmental inquiry, once an infirmity cropped up vitiates it, the proceedings have to be resumed from the stage the same is found to have vitiated and accordingly, he stated that it is from the stage of charge the inquiry is to be proceeded against the applicant.
16. Learned Counsel has also stated that on the perusal of the finding of the inquiry officer, the charge of threatening the driver and alleged demand and acceptance of money are inseparable and, as such, when there has been only one charge, part of which has been set aside, the correct procedure to be followed in law is that there has to be a fresh finding recorded on the sustaining charge by the inquiry officer.
17. Lastly, learned Counsel has stated that in the order passed in CP, the contention of the applicant as to remand of the case from the charge stage has been acceded to and on reexamination, respondents have not complied with the directions of the Tribunal.
18. On the other hand, Shri Om Prakash, learned Counsel for respondents vehemently opposed the contentions and stated that as per the doctrine of severability, the charge, which has not been proved, has been deleted and on the sustaining charge against which a finding has been recorded, which is separable from the finding of threatening the truck driver, the applicant, who has already submitted his defence, not only during the course of inquiry to defend this part of charge but also in the course of reply to the finding, the show cause notice issued, though not directed by the Tribunal, where the disciplinary authority has been given liberty to pass a fresh order, yet in the wake of principles of natural justice, an additional opportunity to represent has been afforded to the applicant, which cannot be assailed in the present OA.
19. Learned Counsel stated that by filing this OA, the applicant has misused the process of law, as the directions of the Tribunal are clear to the effect that disciplinary authority after deleting the part of charge of threatening the truck driver, should pass a final order. As such, the matter cannot be remitted back from the stage of the charge.
20. It is stated that other pleas were not considered by the Tribunal. However, applicant, on reply to the show cause and on passing a final order, is free to challenge the orders on the remaining legal grounds.
21. Lastly, it is contended that dilatory tactics have been adopted by the applicant to prolong the proceedings, which are not congenial in the interest of administration but prejudicial in the interest of applicant.
22. We have carefully considered the rival contentions of the parties and perused the material placed on record.
23. Ratio decidendi of a case is principle of law decided with respect to the dispute in the facts of the case as held by the Apex Court in Kalyan Chandra Sarkar v. Rajesh Ranjan . In a ratio decidendi of a case, every judgment must be read as applicable to the particular facts proved or assumed to be true. Generality of expressions is not intended to be exposition of the law but qualified by the particular facts of the case.
24. In Ashwani Kumar Singh v. U.P. Public Service Commission and Ors. , the Apex Court ruled that judgments should not be construed as statute. Consideration without fact situation is improper.
25. Also held by the Apex Court in a Constitution Bench in Union of India v. Chajju Ram (2003) 5 SCC 588 a decision is an authority what it decides but not what can logically be deduced therefrom. The little in facts or additional facts may lead to a different conclusion.
26. In the light of above, the decision of the Tribunal, without going into the other legal contentions of the applicant as to the challenge of charge proved against him allegedly of illegal gratification on dealing with the issue of charge of threatening one Mohd. Ahtegsham, held the same not to have been proved legally.
27. Accordingly, in paragraph 13 of the order, which is reproduced above, the charge, which has been deleted, it was felt that the disciplinary authority now would pass an order of penalty excluding the charge, which would make difference in consideration of the quantum of misconduct and punishment be imposed specifically dealt with the interference in judicial review in the matter of penalty and in this background, the disciplinary authority has been directed to pass a fresh order, for which the only interpretation as logically deduced is that the order to be passed by the disciplinary authority is the order on a conclusion of the inquiry, i.e., the final order.
28. The contention put forth by the learned Counsel for applicant that once an illegality has cropped up at a stage in the proceedings, the matter would be remanded back from the stage of charge and his reliance on Brahm Datt Sharma's case (supra) is misconceived, as in the present case despite a part of the charge has been set aside, yet the matter has been remanded back from the stage of a final order to be passed by the disciplinary authority and other grounds whereby the second part of the charge was assailed have been left open. This clearly signifies that the Tribunal in judicial review has left imposition of penalty or otherwise in the final order of the disciplinary authority on the sustaining charge at his discretion without interference on merits on such part of the charge. In a manner this has been a directive from the Tribunal to the disciplinary authority to pass a final order without considering the charge of threatening one Mohd. Ahtegsham.
29. Though the fresh order passed by the respondents on 27.1.2005 has been withdrawn and in CP the Tribunal has also directed the disciplinary authority to pass a final order, yet as the applicant was never placed under suspension, his reinstatement was deemed on quashing of the order passed by the disciplinary authority and accordingly, deemed suspension when deleted in the final order passed in CP, the full compliance has been construed.
30. The contention put forth by the learned Counsel for applicant that the charge established against the applicant by the inquiry officer is inseparable, i.e., the charge of alleged acceptance of illegal money and threatening one Mohd. Ahtegsham, the truck driver, are inseparable cannot be countenanced. From the perusal of the finding recorded by the inquiry officer, we are of the considered view that the threat to the truck driver has been weighed only for the purpose that the witness had not come to depose in the inquiry, yet his previously recorded statement, on being taken into consideration and other evidence, a finding of guilt of involvement of the applicant in corrupt activities has been established.
31. Doctrine of useless formality has been propounded by the Apex Court in State of Punjab and Ors. v. M. Singh 2001 (1) SC SLJ 39, according to which, if it is only an empty formality, which is useless in the circumstances, such course of action should be avoided. It is not disputed that while the applicant in the departmental inquiry after the charge was framed has not only defended the charge of threatening the truck driver but also defended the charge of alleged illegal gratification. Remanding back the case from the charge stage would entail a finding to be recorded by the inquiry officer on the second part of charge and as we find that such a finding has already been recorded in detail, the contention put forth by the applicant cannot be sustained in law.
32. Though we feel that the show cause notice now issued to the applicant by the disciplinary authority was uncalled for in the circumstances can be in light the direction issued by the Tribunal, yet it still affords the applicant an additional reasonable opportunity to defend, though no such procedure has been laid down under the Delhi Police (Punishment & Appeal) Rules, yet in the wake of principles of natural justice, such a procedure when adopted rather benefits the applicant, then prejudices him.
33. As we find that the reply to the show cause notice by the applicant was not on merits but with an objection having turned down, his objection as misconceived in law, we feel reasonable opportunity to the applicant to submit reply to the show cause notice on merits would serve the ends of justice.
34. In the result, for the foregoing reasons, OA is found bereft of any merit and is accordingly dismissed. However, we direct the respondents to call for a reply of applicant on merits to the show cause notice and they are at liberty to pass a final order in the disciplinary proceedings. No costs.