Central Administrative Tribunal - Delhi
Asi Willman Dung Dung (Pis No. 28780497) vs Government Of Nct Of Delhi Through ... on 1 November, 2006
ORDER N.D. Dayal, Member (A)
1.The applicant in this OA, who is an ASI in Delhi Police, was proceeded against in a departmental enquiry following preliminary enquiry report on charges of corruption. The departmental enquiry was initiated by order dated 13.4.2004 of the D.C.P. (Traffic), Headquarters, Delhi with the prior approval of the Joint Commissioner of Police (Traffic) under Rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980, as recorded in the order. A summary of allegations was issued along with list of witnesses and documents. After examination of six PWs, charges were framed, which were the same as the summary of allegations. It is contended that there was no material in support thereof. The applicant submitted his defence statement following which the enquiry officer by his report of 20.12.2004 held the charges proved against the applicant. It is alleged that such conclusion was based on no evidence and without taking into account the material on record in defence of the applicant. The disciplinary authority issued a show cause notice whereupon the applicant gave a detailed representation, but the applicant submits that in violation of rules and principles of natural justice, by order dated 1.7.2005, the applicant was awarded penalty of forfeiture of two years approved service permanently. His appeal against the punishment order was rejected by the appellate authority by a non-speaking and cryptic order on 17.1.2006.
2. The applicant has contended that Rules 15(iii) and 16(iii) of the D.P. (P & A) Rules, 1980 are ultra vires of the principles of natural justice and Article 311(2) of the Constitution of India to the extent that the Rules empower the enquiry officer to bring on record the statement of witnesses recorded earlier and rely upon the same without producing them for cross examination, which is also contrary to the law laid down by the Apex Court in State of Mysore v. Shivabasappa Shivappa Makapur ; Kesoram Cotton Mills Ltd. v. Gangadhara ; and State of UP v. Om Prakash Gupta . It is further argued on behalf of the applicant that the enquiry is vitiated also because of violation of Rule 15(2) because the allegations against the applicant amounted to commission of a cognizable offence in discharge of official duties, but no prior approval of the Additional Commissioner of Police was obtained before the departmental enquiry was ordered, as is evident from the order dated 13.4.2004.
3. It is also contended that the PRG surveillance team did not follow the rules of filling up the daily diary register which has affected their report which cannot be relied upon and is a fake one, because they are not exempted from keeping such record nor have they reported the matter to the police for legal action, because in a matter of corruption they should have caught the defaulter red-handed and taken action as per Section 154 CrPC. Shri Vijay Yadav, the driver of the truck from whom illegal money was alleged to have been taken by the applicant, was not examined in the departmental enquiry yet the statement recorded by him in the preliminary enquiry was taken into consideration. He is an imaginary person and it is a concocted story that he could not be found at his village address because there is no such address and even the owner of the truck has expressed ignorance. In this manner, the applicant has been deprived of his right to cross examine the witness and illegally the statement in PE has been relied upon against him.
4. Similarly, it is argued, for non-supply of the documents asked for by the applicant, Rule 16(i) of the Delhi Police (Punishment & Appeal) Rules, 1980 also stands violated and the applicant was prejudiced in effectively cross examining the witnesses. In fact, in holding the charges proved even the earlier statement of the Tempo driver Sattar Khan has been relied upon in preference to what he stated in the enquiry wherein he did not support the allegation against the applicant. The question of a private car having been used by the PRG surveillance team, which had no authority to take action, has raised many questions, which remain unanswered. The statements were recorded after obtaining signatures on blank paper. Even if witnesses were considered to have been won over, at best, a fresh enquiry could be held, but the charges could not be held as proved. It is further submitted that none of the officials of the PRG surveillance team had heard the applicant demanding and accepting the money alleged to have been taken as bribe, in view of which the charge has no legs to stand on. Even their statements carry some contradictions. Also no independent witness nor the complainant deposed during the enquiry against the applicant and in support of the charge.
5. In the above background, the applicant has sought the following relief:
1. To quash and set aside the impugned orders as mentioned in Para 1 of O.A. and direct the respondents to restore forfeited service and reduced pay to the applicant with all consequential benefits including seniority/ promotion and arrears of pay.
2. To declare Rule 15 (iii) & 16 (iii) of DP (P&A) Rules to be ultra vires.
3. To award costs in favour of the applicant and pass any order or orders, which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case.
6. In their counter reply, the respondents have opposed the claim of the applicant and reiterated the contents of the charge against him. They have further relied upon mainly the orders passed by the disciplinary authority and the appellate authority to rebut the various grounds taken by the applicant. It is stated that although PW-1 driver Sattar Khan did not support the prosecution story, the possibility of his being won over cannot be ruled out and the statement made to the PRG team has been relied upon. Further, it is denied that truck driver Vijay Yadav was an imaginary character and in fact his statement had been recorded during investigation by the officers of the PRG team, which cannot be ignored because they have corroborated the stand of the prosecution and had conducted the raid with approval of senior officers, and as such, their authority as well as validity of their report cannot be contested. It is also stated that the documents had in fact been supplied to the applicant and that the charge against the applicant was proved in terms of the proceedings of the enquiry and findings arrived at by the enquiry officer.
7. No rejoinder has been filed by the applicant.
8. We have heard the learned Counsel on both sides and perused the pleadings as also the original record produced by the respondents. The applicant has mentioned that another matter on similar issue is pending adjudication before the Tribunal in OA No. 2174/2005, but evidently the same is not yet decided nor are there any details available to confirm the extent to which the same is similar to the present case. The counsel for the applicant has elaborated upon the issues raised in the OA and particularly emphasized that the findings of the enquiry officer holding the charges proved are perverse being based upon no evidence and, therefore, the orders of the disciplinary authority and the appellate authority cannot be sustained. He has also emphasized that the violation of Rule 15(2) of the D.P. (P & A) Rules, 1980 vitiates the entire proceedings right from the initial stage and if the order dated 13.4.2004 cannot be sustained, the entire proceedings would collapse. We find that while there are various grounds urged by the applicant, this is of foundational importance to determine as to whether the departmental enquiry itself can be sustained in law.
9. The D.P. (P & A) Rules, 1980 formed under the Delhi Police Act, 1978 carry the authority of Section 147(1) and (2) of the Act and are statutory in nature. It would be useful to reproduce Sub-rule (2) of Rule 15, which reads as under:
(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
One of the necessary ingredients to be satisfied is that departmental enquiry shall be ordered after the approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered or departmental enquiry should be held. It is also a pre-requisite that the preliminary enquiry should reveal the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public. It is settled law that if a particular thing is required to be done as per the statutory rules in a particular manner, then the same should be strictly adhered to. The above rule specifically requires application of mind by the Additional Commissioner of Police to make a choice as to whether a criminal case should be registered against the person who is alleged to have committed a cognizable offence in his official relations or whether there should be a departmental enquiry. As held by a coordinate Bench of the Tribunal in OA No. 3021/2003 decided on 22.9.2004 in the case of Krishan Kumar v. Government of NCT of Delhi and Ors. this is a positive act on the part of the Additional Commissioner of Police rather than a mere procedural requirement.
10. In the present OA, it is not the case of the respondents that the alleged offence was not a cognizable one nor is it contended that the departmental enquiry was ordered after the Additional Commissioner of Police had applied his mind and taken a decision in that regard. In fact, the original records only show that the approval was accorded at the level of Joint Commissioner of Police and there is no indication that the papers were submitted to the Additional Commissioner of Police for consideration and decision. Keeping in view also the ratio of the decision by the Hon'ble High Court of Delhi in the case of Commissioner of Police v. R.C.Shekharan CW-1553/2003 decided on 30.4.2003, we find that the disciplinary proceedings commencing with the departmental enquiry ordered by the Deputy Commissioner of Police on 13.4.2004 with the approval of the Joint Commissioner of Police (Traffic) is not in accordance with Rule 15(2) and a violation thereof is not sustainable in law. Therefore, without going into the various issues put forward by the applicant, on this ground alone, the disciplinary proceedings against the applicant cannot be sustained.
11. In the result, the order dated 13.4.2004 initiating the departmental enquiry, summary of allegations, enquiry officer's report, punishment order and the appellate order are set aside with consequential benefits to the applicant. It is not considered necessary to go into the question as to whether Rules 15 (iii) and 16 (iii) of the D.P. (P&A) Rules, 1980 are ultra vires or not. The application is accordingly disposed of. No costs.