Central Administrative Tribunal - Delhi
Netrapal Singh vs Comm. Of Police on 21 April, 2023
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OA No.247/2016
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.247/2016
Reserved on: 29.03.2023
Pronounced on: 21.04.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Constable Netrapal Singh
No.8160 DAP,
Presently posted at 7th Bn. DAP,
S/o Sh. Narsingh Pal Singh,
Aged about 43 years,
R/o Qtr. No.19, Police Colony,
Vikaspuri, New Delhi.
-Applicant
(By Advocate Shri Nilansh Gaur)
-Versus-
1. Government of NCT of Delhi
Through the Chief Secretary,
New Secretariat Building,
I.P. Estate, New Delhi.
2. The Addl. Commissioner of Police,
Armed Police,
Room No.23, 1st Floor, Admin Block,
New Police Lines, Kingway Camp,
New Delhi-110009.
3. The Dy. Commissioner of Police,
Armed Police, 7th Battalion DAP,
PTS Malviya Nagar
New Delhi-110017.
-Respondents
(By Advocate Mrs. Anchal Anand for Shri Amit
Anand, Shri Amit Yadav with Ms. Monika
Bhargava and Ms. Ridhi Dua)
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OA No.247/2016
ORDER
Mr. R.N. Singh, Member (J):
Applicant, a Constable in Delhi Police, has filed this Original Application (OA) under Section 19 of the Administrative Tribunals Act, 1985, aggrieved by the Inquiry Officer's report dated 14.08.2014 (Annexure A-1), whereby the charge against him has been held to be proved, order dated 03.12.2014 (Annexure A-2) passed by the Disciplinary Authority (DA), imposing upon him a major punishment of forfeiture of one year's approved service permanently entailing reduction in his pay and treatment of suspension period as not spent on duty and order dated 12.06.2015 (Annexure A-3) passed by the Appellate Authority (AA), whereby the appeal preferred against the Annexure A-2 punishment order has been dismissed, confirming the punishment. The applicant has prayed for quashing and setting aside the findings of the IO's at Annexure A-1 and the impugned orders at Annexure A-2 and A-3. He has further sought a direction to the respondents to restore the grade pay of the applicant with all 3 OA No.247/2016 consequential benefits including arrears and to treat the period of suspension from 24.01.2006 to 23.03.2011 as spent on duty with all consequences, including arrears.
2. Shri Nilansh Gaur, learned counsel for the applicant filed his written submissions and submitted that the applicant has been acquitted by the competent criminal court in FIR No.383/2007 dated 07.05.2007 vide order dated 12.08.2015 wherein inter alia it has been held by the criminal court while acquitting applicant and other co- accused persons, that the cassette is not original recording as opined by CFSL and, therefore, there is no evidence that the video recording contained in cassette is original recording and thus the primary evidence admissible under Section 62 of the Indian Evidence Act. In the absence of certificate under Section 65 B of the Evidence Act, the cassette is apparently inadmissible as secondary evidence as well and hence the CD prepared by Chetan Prakash has been held to be inadmissible evidence and therefore reliance upon the same to hold the applicant guilty is illegal.
4OA No.247/2016 2.1 In the case of similarly situated co-accused of the applicant in FIR No.383/2007, the DA while exonerating the co-accused has held that the sting operation has not been proved in absence of evidence of Chetan Sharma and the genuineness of the CD has also not been proved. It has also been observed that Chetan Sharma is involved in criminal cases and is also a bad character of the area of PS Dabri. The applicant has, therefore, been meted out a discriminatory treatment in violation of Articles 14 and 16 of the Constitution of India. In this regard, reliance is placed upon orders passed by the DA in case of co-accused, identically situated police officers, i.e., HC Madanlal, Constable Jogendra Singh and Constable Jai Pal Singh (Order dated 14.12.2012 at Annexure A-9, page 82 of the OA).
2.2 Mr. Chetan Prakash, maker of the CD has not joined the departmental inquiry, knowingly, as held by the DA and his statements recorded during the course of vigilance inquiry held behind the back of the applicant have been taken into consideration to hold the applicant guilty of the 5 OA No.247/2016 charge, in violation of Rule 15 (3) of the Delhi Police (Punishment and Appeal) Rules, 1980. 2.3 In support of his pleas, Shri Nilansh Gaur has relied upon a decision of this Tribunal in the matter of ASI Pale Ram & Ors. etc. etc. v. The Commissioner of Police and Ors., OA No4097/2011 & batch matters, decided on 03.12.2012. The relevant part of the order reads as follows:
"13. Thus, we are of the opinion that on account of the charge of allegation 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 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 in accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside. The applicants shall be given all consequential benefits from the date when the punishment was imposed, within a period of two months from the date of receipt of a copy of this order. OA is accordingly allowed. No costs."
2.4 Thus this Tribunal while examining the CD made by Chetan Prakash has held that respondents have relied upon an illegal trap, i.e., a CD which is not admissible and the proceedings 6 OA No.247/2016 have not been held in accordance with rules and principles of natural justice and the applicant has been deprived of an opportunity to cross-examine the important prosecution witnesses because they were neither produced nor independent witnesses produced.
2.5 The DA while imposing punishing vide its order dated 03.12.2014 has observed that the sting operation conducted by Mr. Chetan Prakash, as established from the record and has admitted that Chetan Prakash did not appear during inquiry, despite a diametrically opposite view having been taken by the respondents in case of co-accused and identically situated officers allegedly seen in the CD, for reasons best known to the respondents. The same is also contrary findings of the competent criminal court regarding the CD being inadmissible evidence and the CFSL having opined that the CD is not original and genuine in the order passed by the criminal court while acquitting the applicant and co-accused.
2.6 To buttress his arguments Shri Nilansh Gaur, the learned counsel for the applicant has 7 OA No.247/2016 also relied upon a decision of the Hon'ble High Court of Delhi in R.K. Anand v. Registrar, Delhi High Court, Criminal Appeal No.1393 of 2008 with I.U. Khan v. Registrar Delhi High Court, Criminal Appeal No.1451/2008, decided on 29th July, 2009 2.7 In the light of the submissions made hereinabove, Mr. Nilansh Gaur has prayed that the OA may be allowed by granting the relief(s) prayed for.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply wherein they have vehemently denied the averments made by the applicant in the OA. Mrs. Anand, learned counsel appearing for the respondents has submitted that the case of the applicant is squarely covered by the decision of this Tribunal in HC Megh Raj Singh v. GNCTD, OA No.2372/2014, decided on 23.12.2016 which dealt with the departmental enquiry against the applicant HC Megh Raj Singh who was caught taking bribe from bootlegger in a sting conducted by Chetan Prakahs. Similar grounds taken by 8 OA No.247/2016 applicant herein have been dealt with and rejected by the Tribunal.
3.1 It is further submitted that all the grounds that have been raised by the applicant in the present OA have already been considered and rejected and hence the law has been explicitly laid down by the Tribunal in Meghraj (supra). 3.2 It is further submitted that the Hon'ble Apex Court in a catena of judgments have ruled that the Tribunal should not generally re- appreciate the evidence considered by the DA (Union of India v. Gunasekaran, (2015) 2 SCC 610, S.R. Tewari v. Union of India, (2013) 7 SCC 417 and B.C. Chaturvedi v. Union of India & Ors., JT 1995 (8) SC 65).
3.3 The applicant was identified, seen in a video accepting illegal gratification, he neither denied his presence nor could he justify his presence where sting operation was going on. He was also not able to explain as to where he was on the said date and time. He also never denied acceptance of money or produced any witness in support of the fact that it was a legal transaction. 9 OA No.247/2016 In support of their contention the respondents have relied upon a decision of the Hon'ble Apex Court in Orissa Mining Corporation v. Ananda Chandra Prusty,[ indiankanoon.org/doc/157870], decided on 05.11.1996, where their Lordships of the Hon'ble Supreme Court held that "there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation." 3.4 It is further submitted that in the present case, it was proved that the applicant on that day and time was taking money from bootleggers the onus shifted on him to explain if it was legal remuneration.
3.5 CFSL report was conclusive in its finding that audio-video recording was free from any addition/deletion or tampering. The video cassettes containing original footage were obtained from the Hon'ble High Court and sent for forensic 10 OA No.247/2016 examination where it was proved to be unedited and un-tampered.
3.6 The observation by another DA is not binding on the present case as each DA reaches its conclusion on the basis of evidence adduced in a particular case. It is submitted that finding of another DA in a case where IO had not proved the charge cannot be given precedence over the conclusive finding of present DA, which has been upheld by the AA by a well-reasoned order. 3.7 The applicant was punished for not maintaining conduct and absolute integrity as a member of the disciplined force. Acquittal by the trial court has no bearing on parallel DE proceedings as held by the Hon'ble Apex Court in Maharashtra State Road Transport Corporation v. Dilip Uttam Jaybhay, Civil Appeal No.7403/2021 decided on 03.01.2022. Moreover, the appeal filed against the trial court order is pending adjudication before the Hon'ble High Court of Delhi.
3.8 It is further submitted that there have been no procedural lapses, applicant was provided with 11 OA No.247/2016 all relied upon documents, has been given full opportunity to cross-examine the prosecution witnesses and produce his defense witnesses. All the pleas raised by him have been taken into account by the DA and the AA. He was heard in Orderly room by both DA and AA. All the procedures were followed in a departmental enquiry and conclusions were drawn on the basis of preponderance of probability.
3.9 As regards decision of this Tribunal in ASI Pale Ram, it is submitted that the said decision was per incuriam in view of the decision of the Hon'ble Supreme Court in R.K. Anand (supra) and hence is not a good law to be followed. 3.10 In view of the above submissions the respondents have prayed that the OA is liable to be dismissed being devoid of merit.
4. We have considered the rival contentions of the parties and perused the material placed on record. We find that in the case of co-delinquents, viz. HC Madan Lal, Constable Joginder Singh and Const. Jai Pal Singh against whom a joint departmental enquiry was initiated vide office order 12 OA No.247/2016 No.13647-81/HAP/P.II/PCR/dated 20.05.2021 on the allegations that while posted in PCR unit they were found indulged in corruption activities which were duly video graphed by one Mr. Chetan Sharma s/o Shri Babu Lal Sharma, on which a case FIR No.383/07 dated 7.5.2007 u/s 7/13
(i)D(ii) of Prevention of Corruption Act was registered against them. For this misconduct they were placed under suspension and simultaneously a DE was also conducted by Inspr. Kanwar Singh, who completed the same and submitted his findings, concluding therein that the charge framed against the aforesaid delinquents is not proved. Based on the above findings the Addl. Dy. Commissioner of Police (GA), Police Control Room, Delhi vide order dated 14.12.2012, agreeing with the findings of the EO exonerated the delinquents, who were co-delinquents with the applicant here, from the charge and file the DE without prejudice to the further departmental action for their misconduct which will be decided after the decision of the criminal case pending against them. Their respective suspension periods were also treated as periods spent on duty for all intents and purposes. 13 OA No.247/2016 We further find that in the said criminal case FIR No.383/2007 the applicant has been acquitted by the competent criminal court vide order dated 12.08.2015 holding that the cassette in question is not the original recording as opined by the CFSL and hence there is no evidence that video recording contained in the cassette is original recording. Once the co-delinquents have been let off with lesser punishment, the applicant cannot be discriminated in the matter of punishment.
5. 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 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 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 conducted against the applicants are not in 14 OA No.247/2016 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 in accordance with the rules and the principles of natural justice. Therefore, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside."
6. From the above, it is clear that the claim of the applicant herein is squarely covered by the decision of the Tribunal in ASI Pale Ram (supra). We respectfully follow the same.
7. 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 the respondents.
8. In view of the above discussion, we are of the considered view that once the Additional Deputy Commissioner of Police (GA) has exonerated the co-delinquents from the charge on the basis of the joint enquiry report in the case of co-delinquent and treated their respective period of suspension as spent on duty for all intents and 15 OA No.247/2016 purposes, subject to the decision in criminal case pending against them, we see no reason why the applicant should not be meted out the same treatment, particularly when he has also been acquitted of the charge by the criminal court of criminal jurisdiction in FIR No.383/3007 dated 07.05.2007. Accordingly, the impugned orders Annexure A-1 to A-3 cannot be sustained and are hereby quashed and set aside. The respondents are directed to restore the grade pay of the applicant with all consequential benefits, including arrears and the period of his suspension from 24.01.2006 to 23.03.2011 shall be treated as spent on duty with all intents and purposes. The respondents shall comply with the aforesaid directions within a period of two months from the date of receipt of a copy of this order. OA is accordingly allowed. No costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
'San.'