Central Administrative Tribunal - Delhi
Ashok Kumar (Pis No. 28881826) vs Govt. Of Nct Of Delhi on 28 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 226/2008 New Delhi this the 28th day of November, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Ashok Kumar (PIS No. 28881826), S/o Shri Rajinder Singh, R/o Quarter No. 19, Police Station Krishna Nagar, East Delhi, Delhi. Applicant. (By Advocate Shri Shyam Babu) Versus 1. Govt. of NCT of Delhi, through its Chief Secretary, Players Building, I.P. Estate, New Delhi. 2. The Commissioner of Police, Delhi Police Headquarters, I.P. Estate, New Delhi. 3. The Joint Commissioner of Police (New Delhi Range) Police Headquarters, I.P. Estate, New Delhi. 4. The Deputy Commissioner of Police New Delhi District Police Station, Parliament Street, New Delhi. 5. Deputy Commissioner of Police, (Headquarters) Police Headquarters, I.P. Estate, New Delhi. Respondents. (By Advocate Shri Ram Kanwar) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (J).
Applicant stands dismissed from service of the Delhi Police. While working as a Constable, he had been suspended from service on 25.10.2004 along with another Constable. A formal memorandum of charges had been issued to him. Inquiry had been held jointly as against the two individuals. After recording evidence of five witnesses, the inquiry officer had framed a charge sheet on 11.05.2006. Annexure `F is the findings recorded on 02.06.2006, and after a show cause notice, third respondent, Deputy Commissioner of Police, had imposed a penalty on the concerned, by Annexure-I order dated 21.09.2006. Their next increment for a period of three years was to be withheld with cumulative effect. Suspension period from 25.10.2004 to 17.03.2005 was to be treated as period not spent on duty for all intents and purposes.
2. The applicant had filed appeal against the order but in turn he had been served with a show cause notice, the Joint Commissioner, thereby exercising his powers under Rule 25 (d) of Delhi Police (Punishment and Appeal) Rules, 1980. Copy of the order produced as Annexure `K indicates that show cause notice had been issued to both the constables. The appellate authority felt that instead of discharging their duty honestly and sincerely, they had indulged in corrupt activity and tarnished the image of the police. It had been suggested that the officers had also rudely shaken the faith of the citizens of Delhi in police force. The appellate authority felt that punishment was not reasonable enough. They were called upon to show reasons as to why the punishment should not be enhanced as dismissal from service. It is seen that reply had been furnished by the applicant, but the appellate authority had not relented. Both the constables have been dismissed from service by Annexure `A order. The applicant has also stated that an appeal had thereafter been filed before the Commissioner of Police, but had been advised by Annexure `AA that the appeal is not maintainable. The adverse orders are subjected to challenge. The applicant had contended that the impact of Rule 15 (2) had been overlooked, the inquiry officer himself had committed a mistake by holding that the charges stood proved even without sufficient evidence, and there are patent mistakes committed by him apparent on the report which show that there was no proper application of mind. In the circumstances, the enhancement of penalty was never called upon.
3. The principal submission of Mr. Shyam Babu appearing on behalf of the applicant was that vis-`-vis the allegation there was practically no evidence, and on imaginary assumptions, the inquiry officer has found the applicant guilty, which has been accepted by the disciplinary authority. The punishment of withholding of increments was, therefore, itself unsustainable. Without examining the matter in its right perspective, the appellate authority has prescribed a capital punishment for no valid circumstance. The orders are, therefore, liable to be set aside.
4. On behalf of the respondents, however, it has been submitted that there was sufficient evidence for the inquiry officer to come to a finding, in consonance with the charge sheet and, therefore, when there is no allegation that the inquiry proceedings were vitiated by any procedural error, the finding is not to be disturbed. Prescription of punishment is purely in the realms of administration and the appellate authority had all the powers of the original authority while dealing with the case that was brought to his notice. Adequate punishment was not found as having been imposed, and it was only in exercise of powers as conferred by the rules, a further show cause notice had been given. Considering his stand, the penalty was enhanced. When the members of the police force are expected to aid and assist citizens, it was found to be an instance where strangers who had come to the city had been harassed and manhandled, with oblique motives and the circumstances required that no sympathy was to be shown to the offenders.
5. Even though the punishment order refers to imposition of penalty on two individuals, it was not shown whether the co-employee constable Jagbir had taken up the issue further after the imposition of penalty.
6. We may examine the relevant submissions with reference to the facts highlighted and also adverting to the records of the inquiry, which had been produced by the Standing Counsel for the respondents Mr. Ram Kanwar. There were jurisdictional powers for passing the orders, but the submission highlighted was that it was a case of no legal evidence. The charge `Annexure `E could be extracted hereinbelow, so as to notice the nature of the allegations that had been there as against the applicant which he was to explain.
I, Ved Singh Malik, Inspector, D.E. Cell do hereby charge you Const. Ashok Kumar, No. 1127/ND and you Const. Jagbir, No. 345/ND that while you were posted at P.S. Connaught Place, you were detailed for motorcycle patrolling duty on the night intervening 14/15.10.2004. During duty you stopped a car No. UBP-1265 at Outer Circle, Connaught Place near Super Bazar when the occupants of the car were enquiring something from a parked TSR. Three girls were sitting in the TSR and you made one of the girls to sit inside the car. When the occupants of the car resisted, the girl got down. Then you Const. Ashok sat in the car and asked them to take the car to police station. On the way you Const. Ashok asked them to stop the car, but they insisted to go to police station. On this, you Const. Ashok started manhandling them and in the process the driver lost control and the car hit the pavement in front of ABN Amro Bank, Barakhamba Road. Occupants of the car namely (1) Shri Sunder Sharma (2) Sartaj Singh and (3) Surinder Singh have been taken to RML Hospital by PCR Staff. On the MLC of Surinder Singh, the doctor recorded alleged history of assault and opined nature of inquiry as `blunt. It is also suspected that you constables connived with the prostitutes to extort money from the occupants of the car.
The above acts on the part of you Const. Ashok Kumar, No. 1127/NC and you Const. Jagbir, No. 345/ND amounts grave misconduct, indiscipline and dereliction in the discharge of your official duties which render both of you liable for punishment under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
7. We find from the inquiry findings Annexure `F that verbatim the same has been extracted by the inquiry officer as the charge, which had been duly proved, being subject matter of the inquiry. In his findings, the inquiry officer had referred to a circumstance that in spite of the best efforts, the version of the two witnesses Sartaz Singh and Sunder Sharma, could not be recorded, as they were not available. Of course, they had given statements earlier, but since they did not satisfy the conditions of Rule 16 (3) of the Rules, they were not found as possible to be relied on. But, however, he had come to the final finding as below; verbatim:
Taking into the facts and circumstances it has come in record that there are very postures circumstantial evidence as stated by PWs that the defaulters were immediately produced by the complaints. The act of assault is an individual act did caused by Const. Ashok Kumar and Ct. Jagbir cannot be blamed for this, but they were performing duty together Ct. Jagbir Singh cannot be, absolved completely. Thereafter, as a conclusion he has recorded that The charge stands proved against the defaulter Const. Ashok Kumar No. 1127/ND and Ct. Jagbir Singh No.345/ND.
8. As per the sequence presented by the learned counsel for the applicant, we may first examine whether the order of the appellate authority enhancing the punishment by Annexure `A could be sustainable. We note that there was no challenge about Annexure `AA whereunder the applicant had been informed that a further appeal from Annexure `A was not maintainable. Mr. Shyam Babu submits that of course in appropriate cases, there was power reserved in the appellate authority under Rule 25 (d) of the Discipline and Appeal Rules for adopting the course. Reserving his submission that the findings of enquiry officer itself was unsatisfactory, according to him, since the rule as such does not give any guidelines, power when exercised should be within well known parameters. In a given case, an appellate authority may feel that the punishment given might be light and may not be commensurate with the seriousness of the charges, as has been opined in the present case. But it is not subjective satisfaction that is envisaged. When there is a decision for enhancing punishment already on record, the view of the affected person necessarily has to be ascertained. That means the stand of the person who is the recipient of the show cause notice has to be examined, carefully and never mechanically.
9. The counsel submits that in this essential area, the appellate authority has failed while passing Annexure `A order. He submits that all the discussions as gatherable from Annexure `A practically is confined to a dissatisfaction about the punishment order that was already on record. The concluding portion states as follows :
I have carefully gone through the punishment order, appeals preferred by the appellants and the other file records. It is a proved case of corruption. Further for the sake of natural justice the punishment awarded should be commensurate with the gravity of misconduct committed by the individual(s). But in the instant case, the disciplinary authority has awarded them less punishment without mentioning any reason which does not commensurate with the gravity of proved misconduct. The act of the appellants is of gravest in nature rendering them unfit for police service. As such they deserve for the penalty of dismissal. Therefore, in exercise of powers rendered with the undersigned under Rule 25 (d) of Delhi Police (Punishment & Appeal) Rules, 1980, the appellants were called upon to show cause as to why the punishment under appeal may not be enhanced to dismissal from service to which they have submitted their replies. The contentions put forth by the appellants along with its evaluation with reference to the evidence brought on file are as under
10. Counsel submits that the parameters to be observed have totally been overlooked by the authorities. The reasoning is on an assumption that this is a proved case of corruption. There is import of natural justice for assuming that punishment should be commensurate with gravity of misconduct. It is also stated that no reasons have been given by the disciplinary authority while a lesser punishment was given. It is observed that the act of the applicant is grave in nature rendering him unfit for police service.
11. According to the counsel, the officer was convinced that the charges had been proved to the hilt. But the fact is otherwise. He submits that in this context, an examination about the veracity of the findings also assumes importance especially vis-`-vis that the charges that were alleged. The charge had more than one component. The first was that the applicant had stopped the Car. The suggestion was that he had had along with a fellow constable thereafter made one of the three girls to sit inside the Car. The third allegation was that he had sat in the Car and asked the Car to be taken to the police station. It was further charged that on the way he had asked the Car to be stopped, but when they insisted to go to the police station, he had started to manhandle all the occupants (the expression used is them). It was in that process that the driver had lost control of the Car and the Car had hit pavement of the road. It was further highlighted in the charge that he had connived with the prostitutes to extort money from the occupants of the Car.
12. According to the counsel, none of these charges had been proved to any satisfactory level. Nobody had spoken about the presence of three girls. None had spoken that the three persons were manhandled. No direct evidence was there that the driver lost control of the Car because of manhandling at the instance of the applicant. Further, there was no iota of evidence to suggest that the applicant had connived with any prostitutes to disturb the occupants of the Car. On the other hand, the evidence that had forth come was that the occupants of the Car had been fully drunk, and the accident had taken place because of their driving. It is also submitted that only one person, who was in the scene, had been examined as a witness and he had not identified the applicant or anybody else. The driver of the three-wheeler was not examined. None of the three girls, who were pictured as prostitutes, also has been examined. The assumptions or guesswork could not have substituted the requirement for proof. He submits that PW-5 had never stated that the applicant had got himself in the Car. He had not stated that the Car was driven away or that it had hit the kerb because of his intervention. Mr. Shyam Babu also submits that the inquiry officer had erred while discussing the evidence in the report, and had imported words to the mouth of the witnesses by recording as following:
PW-5 Sunder Sharma supported the prosecution and had stated that they were forcibly stopped and one girl was forced to sit in their car and on refusal one police constable hit Surinder Singh with W.T. Set and in these circumstances PCR Van reached at the spot. Such version had not come from Surinder Singh. The ultimate finding that has come on record is that there are very postures circumstantial evidence as stated by the PWs, that the defaulters were immediately produced by the complaints The law envisages holding of an inquiry, to afford an opportunity for the prosecution to conclusively establish circumstances against a delinquent employee. When there is hardly any evidence forthcoming in support, a finding that charges are proved, is beyond comprehension. The findings, according to him, do not show that any of the charges have been proved with reliable evidence.
13. When we examine the matter critically, it could be found that some of the submission as made requires to be taken serious notice of. It is evident that the appellate authority proceeded on assumption that very grave charges have been substantiated. Of course, we note that grave charges were alleged, namely, that there was forcible attempt to implicate citizens who had been visiting Delhi, a conduct which would have led them to serious trouble. But apart from a statement from PW-5 that at the instance of the applicant, a woman had stepped into the Car and later on got down, there is nothing stated sufficient to come to a further finding that there was a conspiracy. It was just an accident that three persons in a Car had stopped their Car, to inquire certain details from a three wheeler driver. It was also an accident that the applicant and his colleague had reached the spot in motorcycle at that point of time. That does not appear to be by any premeditation, which circumstance alone can spell out an instance of a conspiracy. PW-5 had never stated that the applicant had assaulted him. But the charge itself is that the two constables had manhandled the three occupants. In other words, there was no specific allegation against any single individual about the specific conduct, and the attempt was to include certain overt acts tied down and put in a basket. On assumptions, it may not be possible, to come to a conclusion that a person is guilty of the charges alleged. Even the inquiry officer had absolved Constable Jagbir Singh in respect of offence of assault. But his indictment was for the reason that both were performing duty together and, therefore, he could not be absolved completely. However, the fact remains that there is nothing to show that the injuries sustained by Surinder Singh, PW-5, had been caused by the applicant in any manner suggested in the charge sheet. PW-5 had not spoken that he had been driving along with three passengers and because of the attack made by the applicant, the driver of the vehicle had lost control over the Car. In other words, in spite of presence of the PW-5, it has not been possible for the prosecution to elicit evidence, which ought to have been there at least suggestive in nature. Thus, the allegations, though serious in nature, mostly were to remain as allegations not substantiated.
14. Since the appellate authority had proceeded on the assumption that the charges were proved beyond shadow of doubt, he had prescribed for a serious penalty. But when the serious charges are not admitted to be proved with cogent evidence, and as seen from the report, there is an unsatisfactory manner of dealing with the issues, we have to hold that the appellate authority was not right in suggesting that the applicant required a more serious punishment. The pre-condition for enhancement of the punishment, according to us, had not been satisfactory explained. Annexure `A order is, therefore, liable to be quashed and we do so.
15. But that does not lead to a further situation that Annexure I requires to be set aside. From the discussions of the inquiry report and specially the evidence i.e. gatherable from the deposition of PW-2, Inspector Bijender Singh, PW-3 ASI Ramji Pandey and PW-5 Sunder Sharma, it is evident that the applicant had conducted himself in a very disturbing manner. The version given by PW-5 cannot be disbelieved, namely, that on the day concerned the applicant along with his colleague made one girl to sit inside the Car, which was stationary. Of course, they were under the influence of drink as admitted, viz that they had come after attending the party. But the applicant had no business to see that for implicating the strangers, a girl was to be utilized, who became handy. It is also evident that Surinder Singh had sustained injury, and the hospital records produced along with the official records indicates that he had been brought to the hospital in an unconscious state with bleeding from the nose and injury to his eye. There is sufficient evidence to indicate that it was at the instance of the two constables that police party had come to the venue of accident. All hospitalization steps were taken at their instance, but by this conduct alone, they cannot get themselves absolved. Their own witnesses as DW-I, DW-2 and DW-3, show that they were present at the spot. Their presence is also confirmed by the documentary evidence produced by PW-1 and the version of PW-2. True, there is not direct evidence to show that there was any conspiracy or attempt for extortion. All that could but be stated is that the intentions of the two constables were not holy.
16. But the single circumstance that the applicant had forced a girl to sit in a Car at an unearthly hour against the wishes of the occupants of the Car, is sufficient to come to a conclusion that he had been behaving in a manner wholly unbecoming of an officer of a police force and had conducted himself in a reprehensible manner. It was done while in the discharge of official duties.
17. A contention had been raised in the application that procedure envisaged under Rule 15 (2) of the Discipline and Appeal Rules had not been followed. However, it was not pursued with vigor. Perhaps, it may have been possible for criminal proceedings to be initiated against the applicant, but the circumstances that only disciplinary action was initiated cannot be considered as having resulted in prejudice to the applicant. We see Rule 15 (2) more as a guideline intended for enforcement of supervision, as there can be possible misuse at times by officers at lower levels to protect officers from criminal prosecution by confining to disciplinary action. We can visualize that this might have been the reason for incorporation of such rule and so long as there is no prejudice caused to the applicant, and since it could not have been conceivable for assuming that a person would have preferred a prosecution to a disciplinary inquiry, the arguments based on Rule 15(2) cannot be accepted as attractive.
18. Resultantly, we are of the view that although Annexure `A is to be set aside, Annexure-I does not suffer from any disability, as alleged. There was sufficient evidence in the inquiry about the dereliction of duty on the part of the applicant. It required suitable disciplinary action to be initiated. The lapses have been found as proved, although in part. Therefore, the order is upheld.
19. In the circumstances, we direct that the applicant is to be reinstated in service within a period of two months from today. He is to suffer the penalty advice as envisaged by Annexure-I order alone. The period he was out of service would be treated as service for notional fixation of pay, but he will not be entitled to any back wages. Such period need be counted as service only for the purpose of pensionary benefits.
20. The Original Application is disposed of as above. Orders implementing those directions are to be passed without delay. There will be no order as to costs.
( N.D. DAYAL ) ( M. RAMACHANDRAN ) MEMBER (A) VICE CHAIRMAN (J) SRD