Central Administrative Tribunal - Delhi
Pawan Kumar vs Comm. Of Police on 27 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2244/2013
Reserved on 20.09.2018
Pronounced on 27.09.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N.Terdal, Member (J)
Shri Pawan Kumar
S/o Sh. Hari Singh
R/o Vill. Rasul Pur
Post Pacheri, Bari, Tehsil Buhana
Distt. Khetdi Jhunjhunu,
Rajasthan.
Presently at
H.No. 379/A, Durga Vihar,
Near Village Devli, New Delhi. ... Applicant
(By Advocate: Mr. Ajesh Luthra)
VERSUS
1. Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
2. Joint Commissioner of Police,
(Provisions & Logistics),
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
3. Deputy Commissioner of Police
(Provisions & Logistics),
Old Police Lines, Rajpur Road,
Delhi. ... Respondents
(By Advocate Ms. Neetu Mishra for Mrs.Rashmi Chopra)
ORDER
Hon'ble Mr. S.N. Terdal, Member (J):
We have heard Mr. Ajesh Luthral, counsel for applicant and Ms. Neetu Mishra for Mrs. Rashmi Chopra, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
2 OA 2244/2013
2. In OA, the applicant has prayed for the following reliefs:
"(a) quash and set aside impugned orders/action of the respondents and direct reinstatement of the applicant w.e.f. the date of dismissal and
(b) award all consequential benefits
(c) award costs of the proceedings and
(d) pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
3. The relevant facts of the case are that on the allegation that the applicant unauthorizedly absented during the relevant period from duty and during that period consumed alcohol and caught hold of the breast of a woman Constable and outraged her modesty and escaped from the spot, the summary of allegation was issued to the applicant which is as follows:
"It is alleged against Const. (Mtd.) Pawan Kumar No. 309/L (PIS No. 28050038), Const. (Mtd.) Ajeet Kumar, No. 928/L (PIS No. 28020294) and Const. (Mtd.) Raj Kumar No. 134/L (PIS No. 29870013) that on 11.3.2011 they were found absent from their duties and were marked absent vide DD No. 52 P&L dated 11.3.2011 and Const. (Mtd.) Ajeet Kumar No. 928/L and Const.(Mtd.) 134/L resumed their duty vide DD No. 22/P&L dated 12.3.2011 and Const.(Mtd.) Pawan Kumar No. 309/L resumed his duty vide DD No. 52/P&L dated 16.3.2011 after unauthorized absence.
Later on it came to notice that on 11.03.2011 W/Const. Mausam D/o Prabhu Singh presently posted in Civil Lines Traffic Circle was coming out from Qudesia Park after her duty and above three mentioned Constables were going in Qudesia Park in drunken state. Const. (Mtd.) Pawan Kumar No. 309/L caught hold her breast, when W/Ct. Mausam objected this and tried to get herself free, but Const (Mtd) Ajeet Kumar No. 928/L and Const.(Mtd) Raj Kumar No. 134/L also caught hold her hands, outraging the modesty of W/Const. Mausam, No. 4391/T; Const.(Mtd) Ajeet Kumar and Const.(Mtd) Raj Kumar No. 134/L apprehended on the spot but Const.(Mtd) Pawan Kumar escaped from the spot. Const.(Mtd) Ajeet Kumar & Const.(Mtd) Raj Kumar were also got medically examined 3 OA 2244/2013 vide ME Nos. 851 & 852 dated 11.3.2011 at Aruna Asif Ali Govt.Hospital, Rajpur Road, Delhi. The Doctor mentioned that "Alcohol breath +ve" in the medical report of both the constables. On this a case FIR No. 42/11 dated 11.3.2011 u/s 354/34 IPC, PS Civil Lines was registered against them and all the three constables mentioned above were arrested and released on bail.
The above act of unauthorized absence from duty, consumption of alcohol and outraging modesty of woman Constable on the part of Const (Mtd) Pawan Kumar No. 309/L, Constable (Mtd) Ajeet Kumar No. 928/L and Const. (Mtd) Raj Kumar No. 134/L (all under suspension) amount to gross misconduct, negligence and unbecoming of member of disciplined force for which they are liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules-1980."
Alongwith the summary of allegation, list of witnesses and list of documents were served on the applicant and thereafter the Inquiry Officer was appointed. The Inquiry Officer conducted the enquiry as per the procedural rules and examined 6PWs including the said lady Constable. Considering the evidence and the defence submitted by the applicant, the inquiry officer came to the conclusion that the charge framed against the applicant stands proved. The disciplinary authority following the procedural rules, considering the representation of the applicant and the entire evidence available on record imposed the penalty of dismissal from service vide order dated 28.08.2012. The appeal filed by the applicant was dismissed by the appellate authority vide order dated 16.04.2013 after hearing him in orderly room. While dismissing the appeal, the appellate authority has recorded that the act of the applicant was shameful and make him liability in an organization which was entrusted with the task of protecting the society. His observations are extracted below:
"As regards the appellant's plea of not being examined for the consumption of alcohol, it has no significance as the appellant had fled from the spot and was arrested only 4 OA 2244/2013 after five days. The medical examination report in respect of other two companions of the appellant, who were arrested from the spot and got medically examined, indicates "Alcohol breath Positive+", even 3 hours after the incident. This fact is even admitted by the appellant in his joint defence statement with other two colleagues.
The fact that the lady complainant has stuck to her original statement during DE proceedings and the charge has been framed against the appellant and other two accused in the case FIR No. 42/11 dated 11.03.11 u/s 354/34 IPC, PS Civil Lines, apart from the presence of alcohol in breath of two companion, indicates the preponderance of probability of offence committed by the appellant, which is a "Grave Misconduct" by any yard stick.
Appellant's shameful act make him a liability in an organization which is entrusted with the task of protecting the society from this type of outrage and to uphold law & order. How a police person, who himself indulges in the disgraceful act of outraging the modesty of a fellow woman colleague in uniform, by holding her breast can protect the society? The appellant's continuance in police force will have great ramification on the morale of female personnel in the police organisation and would also shatter the morale and confidence of public at large. As observed in CAT order above "Such persons who may be a burden to the nation cannot be allowed to continue in service and that too in such service as police.
Hence, I find no reason to interfere with the punishment awarded by disciplinary authority. Accordingly, his appeal is dismissed."
4. The counsel for the applicant vehemently submitted that in the cross examination presence of several other persons has been noticed. Nevertheless, those other persons were not cited as witnesses and as a result prejudice has been caused to the applicant. He has further submitted that the defence raised by the applicant was not considered by the inquiry officer and that in the criminal case which was initiated on the same set of fact he was acquitted, as such there is violation of Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980. We have perused the judgment dated 29.05.2009 passed by the Metropolitan Magistrate (Mahila Court)-02 Central District, Tis Hazari 5 OA 2244/2013 in the criminal case FIR No 42/11 (State Vs. Ajit Kumar & Others). But, however, by the said judgment the applicant is acquitted not on merit but because of the benefit of doubt as recorded in the said judgment at para 22 and in para 27. Para 22 and 27 of the said judgment are extracted below:
"22. In view of the aforesaid, it is apparent that there are several lapses and contradictions in the testimony of the said witness which makes her an unreliable witness and thus, makes the story of the prosecution doubtful. There are also several improvements in her testimony as PW-5 over her version contained in the complaint which is Ex.
PW5/A.
xxx xxx
27. In the light of the above discussion, in the considered opinion of this Court, the prosecution has failed to prove its case against the accused persons, Ajit Kumar, Raj Kumar and Pawan Kumar beyond reasonable doubt. Accused persons are entitled to the benefit of doubt. They are hereby acquitted of the offence punishable under Section 354/34 I.P.C."
(emphasis supplied) Thus he has been acquitted on technical grounds, consequently Rules 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 do not come to the rescue of the applicant.
5. We have perused the deposition of all the PWs. Even in the cross examination of several PWs many aspects of the incidents have been corroborated. As such, in view of the deposition given by all the witnesses, there is no reason to find fault with the conclusion arrived at by the inquiry officer. The disciplinary authority and the appellate authority have discussed all the points raised by the applicant and they have taken into account the deposition of witnesses also as such the impugned orders of the disciplinary authority and appellate authority cannot be said to be a non-speaking order. The material portion of the order of the disciplinary authority is extracted below: 6 OA 2244/2013
"1. That the Enquiry Officer has not properly dealt with the issues raised by them in joint written defence statement and the issues have rather been arbitrarily discarded without assigning reasons and paying due attention to the core issues.
2. That non production of Doctor as a witness and proving the MLC through a clerk, who had not prepared the MLCs they could not put any question in cross examination, though as per the list of witnesses Dr. Ram Avtar had been cited as a prosecution witness.
3. That the finding submitted by the E.O is cryptic and he failed to understand proper implications of Supreme Court judgments. The quoted Supreme Court judgment does not say that criminal proceedings and departmental proceedings shall continue simultaneously. The judgment says that both the proceedings may go side by side.
4. That the issue was glorified by enthusiasts simply because a woman constable had complained. Nobody tried to listen the applicants. It was one way traffic and the applicants had been treated as culprit arbitrarily.
The first plea advanced by them is not tenable. The enquiry officer has discussed all the contentions raised by them, in the finding thoroughly and thereafter analysed all evidences available in DE file, concluded therein that the charge against all the three delinquents' stands proved.
The second plea put-forth by them is wrong and not acceptable. As during DE proceeding Dr. Mirdual Kumar, Jr. Resident Doctor of Govt. Hospital Aruna Asif Ali, Rajpur Road, Delhi who had conducted medical examination of Constable Ajeet Kumar and Constable Raj Kumar vide ME No. 851 and 852 which are exhibited as PW-2/A and PW-2/B was cited a prosecution witness and examined as PW-2. He was also cross examined by the defaulters through their Defence Assistant. Moreover, as per list of witnesses, no doctor having the name of Ram Avtar has been cited as Prosecution witness.
The third plea taken by them is not tenable as the Hon'ble Supreme Court of India in case of Capt. M.Paul Anthony V. Bharat Gold Mines Ltd. (AIR 1999 SC 1416) laid down five broad parameters, to deal with cases where departmental proceedings and criminal case are based on identical set of facts. One of these parameters is "Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conduct simultaneously.
Their fourth plea put forth by them is also not tenable. Innocent persons are never blamed. Only when a person indulges in wrongful act then the sufferer/victim blames the wrongdoer. Moreover, in DE proceedings ample opportunities were given by the E.O to prove their innocence, but there is no any cogent reason or defence to prove them innocent. The 7 OA 2244/2013 remaining pleas adduced by them are not tenable and judgments cited by them are of no use as the same are based on different facts and circumstances During the DE proceedings from the testimonies of the complainant-PW-1 and I.O of the case FIR No. 42/11, PW-4, it has been established that Constable Pawan Kumar, 309/L who was inebriated state was present in the Kudesia Park, near ISBT, Kashmere Gate, Delhi and molested the lady Constable. Later, a case FIR No. 42/11 u/s 354/34 IPC, PS-Civil Lines was also registered against him along with others. It has also been proved that he had absented himself from duty wilfully and unauthorizedly for a period of 05 days & 6 hours had resumed his duty vide DD No. 52/p&L dated 16.3.2011, which is also a serious lapse in a disciplined force.
The conduct of Constable (Mtd) Pawan Kumar, 309/L to assault the outrage the modesty of a lady Constable, who is also a member of the Delhi Police amounts to grave misconduct, moral turpitude and contrary to the ethics of police person. It is the duty of a police officer to protect the citizens but he himself indulged in such a condemnable and shameful activity which has rudely shaken the faith and confidence of the citizens in the police force. In view of the facts & Circumstances, I, R.K.Jha, Deputy Commissioner of Police, Provisioning & Logistics, Delhi am convinced that his further retention in the services of Delhi Police is undesirable and do hereby DISMISS Constable (Mounted) Pawan Kumar, 309/L (PIS No. 28050038) from the services of Delhi Police with immediate effect. His suspension period from 11.03.2011 to the date of issue of this order is decided as period not spent on duty for all intents and purposes. His absence period of 05 days and 6 hours is also decided as "Not spent on duty" on the principle of "No work No Pay" and hence the same is not regularized in any manner."
The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on 8 OA 2244/2013 which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada- bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a 9 OA 2244/2013 position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC
484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent 10 OA 2244/2013 officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"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;11 OA 2244/2013
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration; 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."
6. In view of the peculiar facts of the case and in view of the law laid down by the Hon'ble Supreme Court referred to above and having found that there is no violation of any procedural provision or principles of natural justice, the OA is devoid of merit.
7. Accordingly, OA is dismissed. No order as to costs.
( S.N.Terdal) ( Nita Chowdhury) Member (J) Member (A) 'sk'