Central Administrative Tribunal - Delhi
Satya Dev vs Govt. Of Nct Of Delhi & Ors on 4 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 948/2010 NEW DELHI THIS THE 4th DAY OF JULY, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Satya Dev S/o Sh. Harish Chand Sharma R/o B-80, Gali No. 5, Meet Nagar, Shahadra, Delhi. Applicant. (By Advocate Shri M.K. Bhardwaj) Versus Govt. of NCT of Delhi & Ors. Through 1. The Commissioner of Police, PHQ, IP Estate, New Delhi. 2. The Joint Commissioner of Police, (Operations), Delhi IP Estate, New Delhi. 3. Dy. Commissioner of Police, Police Control Room, Delhi. Respondents. (By Advocate Mrs. Alka Sharma) ORDER
Shri G. George Paracken:
The applicant in this O.A. has sought a direction to the respondents to quash and set aside the impugned Annexure A-1 punishment order dated 19.11.2008 and the Annexure A-2 appellate order dated 16.06.2009 and to grant him all consequential benefits. He has also sought a declaration that the action of the respondents in holding the departmental action against him was on the basis of false allegations and, therefore, it was illegal and unjustified.
2. Brief facts of the case: The applicant was appointed in Delhi Police as a Constable. He was promoted on ad hoc basis to the rank of Head Constable (HC) (Executive) vide PHQs Order No. 02/100/P. Br. (AC-III)/(PHQ) dated 01.01.2004. Thereafter, he was reverted to his substantive rank of Constable (Executive) vide Order dated 17.11.2004. According to the applicant, the said order of reversion was never served upon him. Later on, the respondents have issued PHQs order No. 22247-445/P.Br. (AC-III)/PHQ dated 09.11.2004 promoting some of those Constables who have been earlier promoted as Head Constables on ad hoc basis, on regular basis. As the applicant was not thus promoted, he made a representation on 18.11.2004 to inform him about the reason for not including his name in the promoted list of constables. Thereafter, he approached this Tribunal vide O.A. No. 1382/2007 seeking a direction to the respondents to admit him to the Promotion List-C (Executive) w.e.f. 01.01.2004 i.e. the date of his ad hoc promotion or from the date of promotion of similarly situated persons, with all consequential benefits. The Tribunal dismissed the aforesaid OA vide Order dated 11.09.2008 and the relevant part of the same is as under:
6. Counsel submits that the applicant had been fully qualified for the post of Head Constable; that he had been continuing as such for long, and any steps to reduce his status as of now is called for. His work was being highly appreciated. By submission made in ground (7) it is disclosed that there is an order of reversion. It is also averred that practically there could be no difference found or be maintained as between a Head Constable and a Head Constable (adhoc) in the matter of work experience or status, and therefore, he should have been considered for promotion to the cadre of ASI.
7. A counter reply has been filed by the respondents. As a matter of fact in so far as the applicant had not been able to present even a prima facie case for grant of reliefs, much advertence to the reply may not be necessary but it has revealed certain additional facts. It is claimed that the applicant had been reverted as a Constable from adhoc Head Constable, on 9.11.2004. Further he had not been given regular promotion because of his indifferent records, including a censure. It is further disclosed that the reversion order had not been enforced for unknown reasons and an in house enquiry about the lapse is being held.
8. By a rejoinder, the applicant has denied the presence of a censure order against him. But these circumstances may not be relevant here. The facts remain that the applicant did not become successful in a regular selection held by the Department in November, 2004. He was aware of it. He had even represented against such non-selection. When the order giving ad hoc promotion clearly indicated that it was for a specified maximum period, and also that the adhoc promotees because of the above promotion would not be entitled to claim any regular appointment or seniority, no legal rights accrue for such a person from the promotion to claim that he should be recognized as a Head Constable for all purposes.
9. The respondents have exercised their rights reserved in Annexure A-2 to revert the applicant who failed to attend the prescribed standards for regular selection. There is no illegality or irregularity whatsoever justifying interference. The select list had come in November, 2004, and the applicant having known it, should have, if serious about it, thought of challenging the proceedings within a reasonable time. Therefore the decision cited by him viz. Bikash Bhushan Ghosh & Ors. Vs. M/s Novartis India Ltd. & Anr. (JT 2007 (6) SC 432) may not be relevant. The present application, incorporating prayers about reversion are misconceived. The belated claims may not be possible to be entertained.
10. Resultantly, the OA is dismissed. Parties to bear respective costs.
3. In the meanwhile, the respondents have issued a summary of allegations vide Annexure A-4 letter dated 02.04.2008 against SI Puran Chand Sood, W/HC (Min) Anita and the applicant. The allegation against SI Puran Chand Sood was that the notification dated 17.11.2004 regarding reversion of the applicant was endorsed and entered in the despatch register on 22.11.2004 for circulation but it was not circulated to the office branches and the applicant may not have noted it. SI Puran Chand Sood being the supervisor of SIP Branch/North did not take any action on the reversion order of the applicant. The charge against W/HC Anita was that the reversion order of the applicant received in SIP Branch/North on 21.11.2004 was to be endorsed and circulated to the branches concerned but she did not actually circulate it to any Branch. The charge against the applicant was that he was promoted on ad hoc basis to the rank of HC (Executive) vide order dated 01.01.2004 and he was reverted to the substantive rank of Constable vide order dated 17.11.2004 and the same was endorsed to him vide Endorsement dated 22.11.2004. However, on 18.11.2004, the applicant submitted an application stating that his name was in the Promotion List C-2 (Exe.) issued by the PHQ on 01.01.2004, but it was not found in the list of admission of Promotion List-C (Executive) issued by the PHQ on 09.11.2004. He has further requested to inform him about the reason of not including his name in the said Promotion List. In response to the said representation, the DCP (Headquarters), vide his letter dated 11.03.2005, stated that his name could not be considered due to indifferent service record (Censured on extortion of Rs.7000/-) and a copy of the said letter was endorsed to Inspr. PRO/North Distt. vide Endorsement dated 15.03.2005 to inform the applicant, accordingly. In the notification for ad hoc promotion, it was clearly stated that the same was only for six months we.f,. 01.01.2004 or till such time regular panel was drawn for admission of their names to Promotion List-C (Executive) whichever was earlier. However, the applicant was continuously wearing the uniform of HC despite being reverted to the substantive rank w.e.f. 17.11.2004. Moreover, the connecting documents in the relevant registers/peon book of SIP Branch and the Account Branch were found missing and there was also no entry found in his character roll which were construed as manipulation on the part of the applicant to continue in the rank of HC and to enjoy the unlawful benefits.
4. After holding an inquiry, the IO vide Annexure A-6 inquiry report dated 12.08.2008 came to the conclusion that the charge framed against the applicant alone was proved. According to the said report, the defence plea taken by the applicant that the charge framed and served upon him is without any basis or evidence as the said notification regarding reversion from the post of Head Constable to Constable was never served upon him and brought to his notice. He has also prayed that if the pages of the peon book and the relevant book are missing, he cannot be blamed for the same as they were in the custody of the dealing hand in the Branch. According to the inquiry officer, the aforesaid plea of the applicant was not convincing for the following reasons:
1. It is evident and on record that all the PHqs notifications relating to admission of Promotion List `C, reversion etc. were received in SIP Branch and were duly circulated to all concerned for necessary action. Entry of these notifications is available in various branches of North Distt. i.e. HACR & HAP Branches.
2. Since, HC Satya Dev was also posted in PRO office situated in the same office complex and used to come early in the morning to prepare the Press Clipping of News items relating to Crime in North Distt. For the perusal of DCP/North Distt. and has access to the relevant offices.
3. On one hand he has claimed that he was never informed by any communication about his reversion but on the other hand he submits his application addressed to PHQ to know the reasons of not including his name in the Promotion List. If he was not aware then on what grounds he submitted the said application.
4. A copy of the reply received from PHQ in response to his application was also sent to PRO for his information. He also visited several times to SIP Branch to know about the result of his application and he was informed that he has been reverted to the rank of Constable. Hence, the pleas raised by the HC is not convincing at all.
5. Preponderance of probability falls towards HC Satya Dev that he has an access to in the offices of North Distt. being posted in PRO/Branch in the same office complex and this is an overall managing to continue in the rank of Head Const. during the reverted period as he was the only unlawful beneficiary.
5. The disciplinary authority, vide Annexure A-1 order dated 19.11.2008, agreed with the aforesaid findings of the inquiry officer. It has stated the same reasoning as the Inquiry Officer that on the one hand the applicant claimed that he was never informed/received any order/communication about his reversion but on the other hand he submitted an application to know the reason as to why his name has not been included in the Promotion List, which clearly indicates that he was well aware of the fact that he was reverted from the rank of HC to Constable but even then he was continuously wearing the uniform of Head Constable for the reasons best known to him. The disciplinary authority has, therefore, awarded the punishment of forfeiture of two years approved service temporarily for a period of two years entailing proportionate reduction in the time scale of his pay. The appellate authority has also agreed with the aforesaid order of punishment passed by the disciplinary authority and rejected his appeal.
6. The applicant has challenged the aforesaid orders reiterating his submissions that the order of reversion dated 17.11.2004 was never implemented by the respondents by issuing appropriate orders as required under the rules. He has also submitted that the report of the Inquiry Officer making him responsible for the misplacement of some of the documents which are under the custody of other officials, is not proper. Further, he has submitted that there was not even a single piece of evidence against him in the inquiry report.
7. He has also relied upon the judgment of the Apex Court in M.V. Bijlani Vs. Union of India & Ors. (2006 (5) SCC 88) where it has been held as under:
25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
8. He has also relied upon the judgment of the Apex Court in Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors. (JT 2007 (5) SC 294) where it has been held as under:
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
13. The Tribunal opined that the acts of omission on the part of the appellant was not a mere error of judgment. On what premise the said opinion was arrived at is not clear. We have noticed hereinbefore that the appellate authority, namely, the Commissioner of Police, Delhi, while passing the order dated 29.8.2003 categorically held that the appellant being a raiding officer should have seized the tainted money as case property. In a given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard and fast rule can be laid down therefor.
14. The Criminal Court admittedly did not pass any adverse remarks against the appellant. Some adverse remarks were passed against the Investigating Officer, who examined himself as PW-4 as he had handed over the tainted money to the complainant PW-2.
15. A finding of fact was arrived at that the accused not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar vs. Union of India & Ors., [1999 (7) SCC 409], has categorically held:
"42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty."
9. The respondents in their reply have refuted the aforesaid contentions of the applicant. They have also justified the order of punishment issued by the disciplinary authority and rejection of the appeal filed by the applicant.
10. They have relied upon the order of the co-ordinate Bench of this Tribunal in OA 595/1996 and OA 588/97 - Dhan Singh, Armed Police and Ors. Vs. The Commissioner of Police & Ors., decided on 19.01.2000, in which it has been held as under:
10. We have carefully considered the aforesaid submissions made by Shri Oberoi. We find however that the facts and circumstances of he present case are distinguishable from the aforesaid case of Azad Singh (supra). In the case of evidence recorded of PW1 we find that after the portion extracted above the enquiry officer proceeded to note the statement of the applicant as appearing in Ex. PW1A in full detail; he has stated that the witness was running a clinic in village Fatehpur Beri; the manner in which he had been approached by the Crime Branch officials and how the witness was brought to the police station and the manner in which the threat was given and money extorted. After recording this part of the statement made in Ex.PW1A the enquiry officer then proceeded also to detail the contents of the statement made by the witness in the preliminary enquiry which was marked as Ex.Pw1/B. It was after this that the witness was offered for cross-examination. There was detailed cross-examination of the witness by the various accused persons in this common disciplinary proceedings. We find that same is the position in respect of other witnesses where contents of the earlier evidence had been reproduced and only thereafter the witnesses had been offered for cross-examination and the opportunity to do so was also availed of by each of the applicants before us.
11. In view of the above position we do not consider that the mere fact that the witnesses had stated that they stand by their earlier statement made in the complaint or in the preliminary enquiry vitiated the conduct of the enquiry. We also find support for our conclusion from the decision of the Supreme Court in the case of State Bank of Patiala and Ors. V. S.K. Sharma, JT 1996 (3) SC 722. In that case the Supreme Court has held that even where there is any procedural infirmity on account of failure of any procedure, the litmus test is whether the applicant thereby had been prejudiced in his defence. The Supreme Court has held that some of the regulations are of substantive nature which have to be complied with and in such case the theory of substantive compliance would not be available but in respect of mere procedure the theory of fundamental substantive compliance would be available. In the present case the procedural irregularity, if any, was in our opinion not of a substantive nature. The applicants had been supplied with the copies of the statements recorded by the various witnesses in the preliminary enquiry. As these were the documents listed by the prosecution as relied upon documents, the enquiry officer proceeded to record the substance of the statements made by the witnesses in the preliminary enquiry before offering the witnesses for cross-examination by the applicants. The applicants also availed of this opportunity and conducted fairly detailed cross-examination.
12, Rule 16(iii) which has been reproduced above also states that as far as possible the witnesses shall be examined (emphasis supplied). The wording of this rule would indicate that the requirement of rule to examine the witnesses is directory and not mandatory. This will thus come within the ambit of the rule laid down by the Supreme Court in S.K. Sharmas case (supra) that this is not a procedural provision which is of a fundamental nature. Therefore, if there is substantial compliance of the rule inasmuch as the witnesses have been produced, substance of their evidence has been recorded and the applicants have been given opportunity to cross-examine, there would be no prejudice caused to the applicants. This, in our opinion, is the situation in the present case.
13. In the result, we find that there is no ground for interference. Accordingly, both the OAs are dismissed. No order as to costs.
11. We have heard the learned counsel for the parties. We have also perused the entire documents available on the record. Basically, the charge against the applicant is two fold: (i) though he was reverted from the position of Head Constable (HC) ad hoc to his substantive post of Constable vide the respondents order dated 17.11.2004, but even then he was continuously wearing the uniform of the Head Constables and (ii) certain connecting documents in the relevant registers/peon book of SIP Branch and Account Branch are found missing and there was also no entry found in his character roll. As regards the first part of the charge is concerned, the case of the applicant is that no order of his reversion was served on him and, therefore, he was not aware of the same. Initially, in the Annexure A-4 summary of allegation dated 02.04.2008 also the respondents case was that W/HC Anita was responsible for not actually circulating the notification dated 17.11.2004 regarding reversion of the applicant received at SIP Branch, North on 21.11.2004. SI Puran Chand Sood being supervisor of SIP Branch/North failed to supervise the work of his subordinates. He also did not take any action to pursue with the matter of reversion of the applicant. Since the said circular was not circulated to all Branches, the applicant may not have noted the contents thereof. However, the Inquiry Officer held that the charge against him only has been proved. The disciplinary authority also agreed with the said report and confirmed the charge against him. According to the respondents, the applicant on the one hand claimed that he was never informed/received any order/communication about his reversion but on the other hand stated that the reversion order was issued vide order dated 17.11.2004 and the same was endorsed to him vide endorsement dated 22.11.2004. However, the respondents have never stated that it has been actually served on him. But they have admitted that the reversion order has not been enforced for unknown reasons and an in-house inquiry has been instituted to find out the lapse. It is quite strange that the respondents have not found out the reason for the same so far. The argument of the respondents on the one hand that the applicant has claimed that he has never been informed about his reversion and on the other hand he submitted an application to find out why his name has not been included in the promotion list has also no merit because even if he has not been included in the merit list, still he would have continued as Head Constable on ad hoc basis, but for his reversion. As regards the 2nd part of the charge that certain connecting documents are missing and it was the manipulation on the part of the applicant was concerned, it was only an assumption. There was no evidence on record to prove it. As held by the Apex Court in M.V. Bijlanis case (supra there should be some evidence to prove the charge. Thus, both parts of the charge have not been actually proved during the inquiry even though the Enquiry Officer has held so and the disciplinary authority agreed with it.
12. We, therefore, allow the OA and quash and set aside the impugned Annexure A-1 and Annexure A-2 orders dated 19.11.2008 and 16.06.2009 respectively, with all consequential benefits. The respondents shall pass appropriate orders in this regard within a period of two months from the date of receipt of a copy of the order. There shall be no order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
`SRD