Central Administrative Tribunal - Delhi
Sri Surender Singh (Ex. Constable) vs Union Of India Through on 13 January, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1980/2011 This the 13th January, 2012 Honble Shri M.L. Chauhan, Member (J) Honble Smt. Manjulika Gautam, Member (A) Sri Surender Singh (Ex. Constable) No.988/A (new No.1552/A), Delhi Police s/o late Shri Hoshiar Singh r/o H-2, Gali No.3, Mahavir Vihar Near Kanjhawala SDM Court Delhi-81 ..Applicant (By Advocate: Shri Rana Ranjit Singh) Versus 1. Union of India through Lt. Governor of Delhi Raj Niwas, Civil Lines Delhi 2. The Commissioner of Police Police Headquarters ITO, IP Estate, New Delhi-2 3. The Deputy Commissioner of Police (IGI Airport) Delhi Police IGI Airport New Delhi ..Respondents (By Advocate: Ms. Sumedha Sharma) O R D E R
Shri M.L. Chauhan:
The applicant has filed the present OA, thereby praying for the following reliefs:-
a. Set aside/quash the order dated 10-5-2011 passed by the Office of Deputy Commissioner of Delhi Police, IGI, Airport, New Delhi (Annexure-P-1) and consequential set aside the findings of the Enquiry Officer, the order dated 14-5-1998 passed by the Disciplinary Authority and the order dated 27-1-1998 passed by the Appellate Authority with all consequential benefits.
b. direct the respondents to reinstate the applicant in service with all consequential benefits including pay and allowances, seniority etc. as the applicant has been acquitted by the Ld. Appellate Court in criminal case arising out of same set of facts and documents/evidence on record.
c. award costs of these proceedings in favour of the applicant and against the respondents: and/or d. pass such other/further order (s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.
2. Briefly stated, facts of the case are that the departmental proceedings were initiated against the applicant, who at the relevant time was working as Constable in Delhi Police, thereby containing the following allegations:-
Summary of allegations It is alleged that you Ct. Surender Singh No.988/A Now 1552/A (PIS No.28940018) had got enrolled yourself as Constable in Delhi Police on 1-3-94 by submitting a matriculation Certificate issued by the Board of High School and Intermediate Education U.P. in which you have wrongly shown your date of birth as Twenty Seven November, Nineteen Hundred and Seventy One (27-11-1971). Whereas your actual date of birth according to the record of Govt. Boys Sr. Sec. School, Rampura, Delhi from where you passed Class Xth Examination conducted by C.B.S.E. in the year 1978-79 vide Roll No.43603 is 9-11-1963 (Ninth November nineteen hundred & sixty three). Further on perusal of the record of Swami Shardhanand College Alipur, Delhi where you had been a student of B.A. (Pass) course from 1981 to 1984 with roll No.440 your date of birth is 9-11-1963. Thus you have concealed your actual date of birth and had cheated the department by adopting deceitful means.
The above act on the part of you Ct. Surender Singh, No.988/A, Now 1552/A amounts to grave misconduct, malpractice and unbecoming of a Police Official by violating the provisions of rule 3 (i) (i) (ii) (iii) of C.C.S. (Conduct) Rules, 1964 which renders you liable to be dealt with departmentally under the provisions of section 21 of the Delhi Police Act, 1978.
3. The charges stand proved against the applicant, which resulted in his removal vide order dated 14.5.1998 (Annexure P-9). Appeal preferred against the order of the disciplinary authority was also dismissed by the appellate authority vide order dated 27.10.1998 (Annexure P-10). Aggrieved by the orders passed by the disciplinary as well as appellate authorities, the applicant filed OA-934/1999 before this Tribunal, which was dismissed by the Tribunal vide order dated 9.2.2001 by holding that the order of the disciplinary authority does not suffer from any legal infirmity. The order of this Tribunal has attained finality due to non-challenge before the higher forum.
4. Now the applicant has again filed the present OA, thereby praying for quashing the impugned order dated 14.5.1998 (Annexure P-9) passed by the disciplinary authority and order dated 27.10.1998 (Annexure A-10) passed by the appellate authority besides another order dated 10.5.2011 (Annexure P-2) whereby the applicant was intimated that no further action is required into the matter, as the earlier OA filed by him against the punishment of removal has already been dismissed by the Tribunal vide order dated 9.2.2001.
5. It may be stated that the order dated 10.5.2011 (Annexure P-2) was passed by the respondents on the basis of the representation of the applicant dated 15.11.2010 (Annexure P-1) wherein he has stated that he has been acquitted by the appellate court on all the charges and since he has been exonerated of all the charges, he is now entitled to reemployment on the said post.
6. It may be further stated that the criminal case was also instituted against the applicant under Sections 420/468/471 IPC. The trial court on the basis of the documentary evidence held the charges proved against the applicant and he was convicted and sentenced for the offences under Sections 420/468/471 IPC. At this stage, it will be useful to quote paragraph 8 of the judgment of the trial court, which formed the basis for conviction and imposing sentence upon him for aforesaid offences, which thus reads:-
8. The prosecution in this case had to prove that the accused had got enrolled himself in Delhi Police by using the document which was found to be not genuine or was found having incorrect information. A document can be termed as a forged document even if a part of the document is containing a false information which is given with a dis-honest and fraudulent intention. In the present case the accused had obtained entry in the Delhi Police by furnishing a certificate issued by the Board of High School and Intermediate Education, UP in which his date of birth is mentioned as 27.11.1971. How this certificate was obtained by the accused has not been explained by him in his entire defence. The conduct of the accused is a material circumstance which sometimes provides corroboration and support to the prosecution case. No doubt PW 7 has stated that after his verification it was found that this document was genuine. However, the accused has not denied anywhere that he was a student of Government Sr. Sec. School, Ram Pura and he had passed his 10th standard examination from the said school. The record produced from this school Ex PW 1/A shows his date of birth as 09.11.1963. There is no rebuttle of this document in the defence. Therefore, I have no hesitation to hold that the accused had sought entry in the Delhi Police by using a document which was found to be a fake document and on the basis of this document he had deceived the Selection Committee by mis-representing his date of birth as 27.11.1971 while his correct date of birth is 09.11.1963. Not only that he has furnished a fake certificate of the Education Board, UP, in the application form Ex P1-A also he has mentioned his date of birth as 27.11.1971. This shows that accused knowingly mentioned his date of birth as 27.11.1971 and the only logical inference could be that he was having knowledge that the document Ex P1 was forged. Thus, the mens rea to cheat is evident from the evidence. It is very surprising that the accused has nowhere in the statement U/S 313 CrPC claimed that his actual date of birth is 27.11.1971 and not 09.11.1963.
7. However, the appellate court vide order dated 31.3.2009 acquitted the applicant by setting aside the judgment of the trial court on the ground that prosecution has failed to prove the authenticity of the certificate Ex.PW1/A and accordingly the applicant was acquitted. Thus, the applicant was not acquitted on merit but he was acquitted on the ground that the prosecution has failed to prove Ex.PW1/A whereby the date of birth of the applicant was shown as 9.11.1963. Be that as it may, fact remains that the applicant was not acquitted on merit. It is on the basis of these facts the applicant has filed the present OA, thereby praying for the aforesaid reliefs.
8. Notice of this application was given to the respondents, who have filed their reply affidavit wherein it has been stated that the applicant got himself enrolled in Delhi Police as Constable on 1.3.1994 by submitting forged certificate issued by the U.P. Board showing his date of birth as 27.11.1971 whereas his actual date of birth is 9.11.1963 as per his matriculation certificate for the year 1978-79 issued from G.B. Senior Secondary School, Rampura, Delhi by CBSE Delhi.
9. It is further stated that thereafter the applicant pursued studies and as per the college record, he had been a student of BA (Pass) course from 1981 to 1984. The respondents have also stated that if the date of birth of the applicant is taken as 27.11.1971, he was of 10 years of age in the year 1981 when he became a student of BA (Pass). Thus, according to the respondents, on the basis of documents available on record, prima facie and clear case under Sections 420/468/471 IPC was made out against the applicant and he obtained the appointment on the post of Constable in Delhi Police fraudulently by submitting a matriculation certificate from U.P. Board by showing his date of birth as 27.11.1971, whereas his actual date of birth is 9.11.1963.
10. We have heard the learned counsel for the parties and perused the material placed on record. We are of the view that the present OA is wholly misconceived and barred by the principle of res judicata. Admittedly, against the orders passed by the disciplinary as well as appellate authorities, the applicant earlier filed OA-934/1999, which was dismissed by the Tribunal vide order dated 9.2.2001. The applicant has not challenged the judgment of this Tribunal before the higher forum, which has accordingly attained finality. Thus, according to us, the second OA, thereby praying for the same reliefs cannot be entertained and is barred by the principle of res judicata. Accordingly, without going into the merits of the case, we are of the view that the present OA is wholly misconceived and barred by the principle of res judicata and cannot be entertained.
11. Yet for another reason, the applicant is not entitled to any relief. We have already extracted the summary of allegations in the earlier part of this order. The allegations leveled against the applicant were that he has cheated the department by adopting deceitful means, which resulted into the enrolment of the applicant as Constable in Delhi Police. Thus, he is guilty of grave misconduct, malpractice and unbecoming of a police official by violating the provisions of Rule 3 (i), (ii) & (iii) of CCS (Conduct) Rules, 1964.
12. The charge framed against the applicant in criminal proceedings was regarding cheating the Department by using forged documents and the challan was filed against the applicant for offences under Sections 420/468/471 IPC. The trial court on the basis of the evidence held the applicant guilty of the aforesaid offences. However, the appellate court has acquitted the applicant not on merit but on the plea that the prosecution has failed to prove the document Ex.PW 1/A showing the date of birth of the applicant as 9.11.1963 ignoring the other documents. Be that as it may, it cannot be said that the applicant was acquitted on merit by the appellate court. In any case, as already stated above, we are of the firm view that once the orders passed by the disciplinary and appellate authorities have been upheld by this Tribunal in an earlier OA filed by the applicant by dismissing the same, which order has attained finality, it is not permissible for us to quash the said orders, as it can be done only by the higher forum and not by this Tribunal.
13. That apart, we also see no infirmity in the impugned order dated 10.5.2011 (Annexure P-2) whereby the respondents have intimated the applicant that no action on his representation is warranted in view of dismissal of the earlier OA by this Tribunal and the respondents have thought it proper not to pass any order contrary to the order passed by the judicial forum whereby the quietus has been given to the matter in issue.
14. For the foregoing reasons, the OA is found bereft of merit and is accordingly dismissed without any order as to costs.
( Smt. Manjulika Gautam ) ( M L Chauhan ) Member (A) Member (J) /sunil/