Central Administrative Tribunal - Delhi
Surender vs Comm. Of Police on 20 December, 2022
1
O.A. No. 1337/2016
Item No. 24 (III)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1337/2016
This the 20th day of December, 2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Mr. Chhabilendra Roul, Member (A)
Shri Surender
Age 46+ years
S/o Sh. Ran Singh
R/o Village-Basant Pur, District - Rohtak, Haryana
..Applicant
(By Advocate : Mr. Sachin Chauhan)
Versus
1. Govt. of NCTD through
the Chief Secretary, Govt. of NCTD, A-Wing, 5th Floor,
Delhi Secretariat, New Delhi-110113
2. The Commissioner of Police,
Police Headquarters, M.S.O. Building,
I.P. Estate, New Delhi.
3. The Joint Commissioner of Police,
South-western Range through
through the Commissioner of Police,
Police Headquarters, M.S.O. Building,
I.P. Estate, New Delhi.
4. The Addl. Dy. Commissioner of Police
West District through
the Commissioner of Police
Police Headquarters, M.S.O. Building,
I.P. Estate, New Delhi.
5. The Dy. Commissioner of Police
6th BN, DAP through
the Commissioner of Police
Police Headquarters, M.S.O. Building,
I.P. Estate, New Delhi.
6. The Dy. Commissioner of Police
Vigilance Cell through
the Commissioner of Police, Police Headquarters,
M.S.O. Building,I.P. Estate, New Delhi.
.. Respondents
(By Advocate: Ms. Deepika)
2
O.A. No. 1337/2016
Item No. 24 (III)
O R D E R (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J):
Brief facts of the case are that the applicant was initially appointed as Constable in Delhi Police in the year of 1988. He was dealt with departmentally vide an order dated 27.07.2011 on the following allegations:-
"On 6.11.2010 a call from PGI Hospital Rohtak was received at PS Sadar Rohtak that Smt. Parmila W/o Sh. Mahavir Singh R/o Village Basant Pur wasa admitted in Hospital with bullet injury. On this information SI Hari Kishan from PS Sadar Rohtak reached at Hospital where he came to know that she had been discharged . He further reached at her home at Basant Pur Village and recorded her statement in which she stated that on 02.11.2010 at about 4.00 PM she along with her husband were going to their „Ghair‟ for the disposal of cow-dung. When they reached near Phirnee, one boy triggered his Gun from back side and the bullet hit her right foot. Her husband recognized the boy who fired on her as Surender S/o Ran Singh R/o Village Basant Pur, Rothak. Surender escaped from the place of occurrence. A case vide FIR No. 391/10, dated 06.11.2010 u/s 307 IPC and 27/54/59 Arms Act was registered at PS Rohtak Sadar, Haryana against him. He was arrested in the case on 05.12.2010 and released on bail on 07.12.2010 by the Court."
2. The applicant handed over the summary of allegations along with list of witnesses and the other documents. Thereafter, he submitted the defence statement in January, 2013. The Inquiry Officer (IO) exonerated the applicant from the charges levelled against him. The disciplinary authority has issued disagreement note dated 24.05.2013, whereby the inquiry was remitted back to the newly 3 O.A. No. 1337/2016 Item No. 24 (III) appointed IO, namely, Inspector Girish Kumar and he was directed to record the fresh evidence. This order is questioned before us in terms of Rule 16 (x) Delhi Police (Punishment & Appeal) Rules, 1980.
3. The new IO has framed the charges and the departmental proceedings were initiated against the applicant. Thereafter, he gave supplementary request. However, without dealing the submissions so made, he has proved the charges against the applicant. In view of the report of IO, the applicant has submitted his reply on 19.07.2014. Not satisfied with the reply, the disciplinary authority (DA) passed an order dated 18.09.2014 imposing the punishment of withholding of one increment for a period of one year without cumulative effect and further the suspension period of the applicant was treated as „not spent on duty‟ for all intents and purposes. Thereupon, the applicant made a statutory appeal against the punishment order of DA. However, the appellate authority (AA) vide order dated 03.11.2015 has rejected the appeal. Accordingly, his name was kept in the secret list of doubtful integrity officials. Feeling aggrieved, the applicant has approached this Tribunal under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):- 4 O.A. No. 1337/2016
Item No. 24 (III) "8.1 To quash and set aside the order dated 19.09.2014 whereby the one year approved service has been forfeited temporarily for a period of one year entailing reduction in pay has been imposed upon the applicant and further the suspension period of applicant from 24.11.2010 to 18.07.2013 has been decided as period Not Spent on Duty' order dated 03.11.2015 whereby the appeal of the applicant has been rejected and to further direct the respondents that forfeited service be restored as it was never forfeited with all consequential benefits including seniority & promotion and pay & allowances and to further direct that suspension period of applicant from 24.11.2010 to 18.07.2013 be decided as Period Spent on Duty' for all be intent and purposes.
8.2 To quash and set-aside the order dated 27.07.2011 of initiation of D.E. 8.3 To quash and set-aside the finding of Enquiry Officer 4.6.2014 forwarded vide letter dated 8.7.2014. 8.4 To quash and set aside the disagreement note dated 24.05.2013. dated 22.10.2010 8.5 To quash and set aside the order whereby the name of applicant has been kept in the secret list of doubtful integrity and to further direct the respondent that name of applicant be removed from the secret list of doubtful integrity from the date of inception.
8.6 To quash and set aside the order dated 03.08.2015.
Or/and
i) Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
4. Learned counsel for the applicant has referred this Tribunal‟s order / judgment dated 23.09.2022 passed in O.A. No. 3873/2018 wherein the following view has been taken:
"11. We have no hesitation in applying the ratio of the OA No. 1012/2020. We hereby direct respondent no. 2 to take call on the facts of the case of acquittal by the learned Criminal Court precisely in terms of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980. In case, it is found favourable to the applicant and he may be given all benefits and the applicant is given liberty to take its legal step in accordance with law.5 O.A. No. 1337/2016
Item No. 24 (III)
12. With this observation, OA stands allowed. Order of punishment is hereby set aside and department is given liberty to revisit the punishment in terms of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980. No costs."
5. Notices were issued. The learned counsel for respondents put appearance and filed a detailed reply. It is submitted therein that PW-5 Smt. Parmila (complainant) w/o Sh. Mahabir Singh, r/o Village Basant Pur, District Rohtak (Haryana) is very important witness in the disciplinary enquiry (DE). During DE proceedings, she has stated that this matter was concerning her family and her case is pending in Rohtak court where her statement was recorded and the matter has also been settled amicably in the court. Now, she did not want any action in this matter. The star witnesses, i.e., Sh. Mahavir (PW-3) husband of the complainant and Sh. Joginder Singh (PW-4) have given similar statements during the DE proceedings. Smt. Parmilla (PW-5) has also been examined in a criminal case FIR No. 391/10 u/s 307 IPC and 27/54/59 Arms Act PS Sadar Rohtak, Haryana registered against the applicant. In the said criminal case, she appeared in the witness box, but she did not support the prosecution version and completely absolved the accused of the charge while deposing that on 02.11.2010 at about 4.00 p.m., she had gone to the court yard to throw cow dung and when she reached near the 6 O.A. No. 1337/2016 Item No. 24 (III) house of Ram Kishan, some unknown person had fired upon her right leg but she could not see the assailant, who opened the fire on her and at this stage, she was declared hostile and during the cross examination by learned APP, she denied having made such statement before the police. Sh. Mahavir, PW-3 and PW-4 Joginder, who were the eye witnesses, were also examined in the said criminal case and they have absolved the accused of the charge by stating that the accused did not open fire at the complainant, nor cause any injury with the help of licensed gun, but their statement could not be found up to the standard of establishing the offence against the accused Constable. The judgment to this effect is self explanatory, vide which the learned Court has held that the material witnesses have retracted from their previous statements and completely absolved the accused of the charges, therefore, the statement of the Investigating Officer is not sufficient to prove the guilt of the accused beyond the shadow of reasonable doubt and thus, the learned Court of Ms. Anita Dahiya, Addl. Chief Judicial Magistrate, Rohtak, vide her order dated 03.04.2013, had acquitted the applicant of the charges in the criminal case for commission of the offences punishable u/s 337 IPC and Section 27 of Arms Act, 1959.
7O.A. No. 1337/2016 Item No. 24 (III)
6. PW-5, the vital witness was not countered by the earlier IO and the DA, in its own wisdom, has remanded back the matter to the newly appointed IO and it was ordered for further inquiry, giving further list of witness, which was duly provided to the applicant. It is lastly submitted the inquiry was conducted in accordance with law and at no point of time, the applicant was denied any opportunity to defend himself.
7. Heard the learned counsels for the parties at length, perused the records and appreciated the law position.
8. The short question raised before the Tribunal is whether the disagreement note is in accordance with law or in terms of Rule 16 (x), which reads as under:-
"16. (x) On receipt of the Enquiry Officer's report the disciplinary authority shall consider the record of the inquiry and pass his orders on the inquiry on each charge. If in the opinion of the disciplinary authority, some important evidence having a bearing on the charge has not been recorded or brought on the file he may record the evidence himself or sent back the enquiry to the same or some other enquiry officer, according to the circumstances of the case for such evidence to be duly recorded. If such an event, at the end of such supplementary enquiry, the accused officer shall again be given an opportunity to lead further defence, if he so desires, and to submit a supplementary statements, which he may wish to make."8 O.A. No. 1337/2016
Item No. 24 (III)
9. It is stated by the applicant that when some important evidence, which has bearing on the charge, has not been recorded, the DA can remit the matter for fresh inquiry. The rule position in this regard is very clear and we find no force in the argument of learned counsel for applicant, despite the fact that he has shown the judgment of this Tribunal dated 23.06.2020 passed in O.A. No. 66/2015. Paragraph 8 of the said order/judgment reads as under:
"8. However the very language of the disagreement note is „conclusive‟. Alt hough in the initial part it is indicated that it is tentative, in the last para it is stated that disciplinary authority disagrees with the findings and the charge is fully established against the applicant. Judgement of this Tribunal in OA No. 3612/2014 dated 20.12.2018 also covers this case. DOPT OM dated 12.11.2010 regarding communication of tentative reasons for disagreement under Rule - 15(2) of the CCS (CCA) Rules, 1965 clarifies, as to how, the disagreement note should be worded. The OM dated 12.11.2010, reads as under:-
"Subject: Communicating tentative reasons for disagreement under rule 15(2) of the CCS (CCA) Rules, 1965.
The undersigned is directed to say that rule 15(2) of the Central Civil Services (Classification, .Control and & Appeal) Rules, 1965 states that 'The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the lnquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiry Authority on any article of charge to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not, to the Government Servant.
2. The necessity of following the aforementioned rule 15(2) both in letter and spirit is reiterated. The communication forwarding the 1O's report alongwith the tentative reasons for disagreement, if any, seeking 9 O.A. No. 1337/2016 Item No. 24 (III) comments/representation of the Charged officer should reflect this Position. All Ministries/Departments are, therefore, requested to ensure that the communication forwarding 'the 1O's report etc. does not contain phrases such as 'Article of charge is fully proved' or 'Article of charge is fully substantiated' which could be construed to mean that the disciplinary - authority is biased even before considering the representation of the charged officer and this would be against the letter and spirit of the CCS (CCA) Rules, 1965.
3. Ministry of Finance etc. may bring the contents of the above OM to the notice of all concerned."
In the present case, disagreement note dated 13.03.2014, in the last para states that the charge against the applicant is fully/clearly established. This very language has been prohibited in terms of O.M. quoted above." In our view, the aforesaid view taken by the Tribunal is having no bearing in the present case.
10. As regards the second contention taken by the applicant, Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 has clearly envisaged that when the charged officer is acquitted by the competent court of law, the concerned authority has to re-visit the charges. Rule 12 reads as under:-
"Rule 12 Action following judicial acquittal"
When a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless:-
(a) the criminal charge has failed on technical grounds, or 10 O.A. No. 1337/2016 Item No. 24 (III)
(b) in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or
(c) the court has held in its judgment that an offence was actually committed and that suspicious rests upon the police officer concerned; or (d)the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge;
11. The charges in the departmental proceedings (p.37 - summary of allegation), which read as under:-
"It is alleged against Ct. (Ex.) Surender No. 840/W that on 06.11.10 a call from PGI Hospital, Rohtak was received at PS Sadar Rohtak that Smt. Parmila W/o Sh. Mahavi Singh R/o Vill Basant Pur, Rohtak admitted in hostpital with bullet injury. On this information SI Hari Kishan from PS Sadar Rohtak reached at Hospital where he came to know that she had been discharged . He further reached at her home at Basant Pur Village and recorded her statement in which she stated that on 02.11.2010 at about 4.00 PM she along with her husband were going to their „Ghair‟ for the disposal of cow-dung. When they reached near Phirnee, one boy triggered his Gun from back side and the bullet hit her right foot. Her husband recognized the boy who fired on her as Surender S/o Ran Singh R/o Village Basant Pur, Rothak. Surender escaped from the place of occurrence. On which a case vide FIR No. 391/10 dated 06.11.2010 u/s 307 IPC and 27/54/59 Arms Act was registered at PS Rohtak Sadar, Haryana against Ct. Surender No. 840/W. Later Ct. Surender No. 840/W was arrested in this case on 05.12.2010 and released on bail on 07.12.2010 by the Hon‟ble Court.
The above act on the part of Ct. Surender No. 840/W (PIS No. 28880803) amounts to grave misconduct, negligence, dereliction in discharging of his official duties, professional incompetence and unbecoming of a police official which render him to 11 O.A. No. 1337/2016 Item No. 24 (III) liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980."
and the order / judgment delivered by the competent criminal court, Rohtak, which reads as under:-
"Accused Surender alias Pappu son of Ran Singh aged 44 years resident of Basantpur, is facing trial for the commission of offences punishable under Sections 337 IPC and Section 27 of the Arms Act. An FIR against the accused was registered upon the statement of injured Promila on the allegations that on 2.11.2010 at about 4.00 p.m. in the area of Village Basantpur, accused caused hurt upon her person with the help of a gun which he had obtained under a licence in his possession. On the basis of the report, the investigation was initiated during which police took into possession the gun vide recovery memo PW4/B after preparing rough sketch of the gun Exhibit PW7/A. Site plans were prepared, injured was got medicolegally examined vide MLR and statement of witnesses under Section 161 Cr. P.C. were recorded. After completion of the investigation, challan was presented in the court against the accused for trial."
are identical in nature.
12. In terms of Rule 12, it is all the more necessary for the DA to pass some orders, keeping in view the order / judgment passed by the competent court of law. 12 O.A. No. 1337/2016 Item No. 24 (III)
13. In view of this, we hereby remand this matter back only to the limited extent that the disciplinary authority may re-visit the punishment so awarded in terms of Rule 12 of Delhi Police (Punishment & Appeal) Rules 1980. It is further directed that the respondents shall not take into consideration the earlier orders while passing the fresh order under Rule 12.
14. The OA is disposed of. There shall be no order as to costs.
(Chhabilendra Roul) (Ashish Kalia )
Member (A) Member (J)
/anjali/