Central Administrative Tribunal - Delhi
Mukesh Kumar vs Comm. Of Police on 20 February, 2023
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O.A. No. 3968/2017
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 3968/2017
Reserved on: 30.01.2023
Pronounced on: __.__.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Mukesh Kumar, Age-28 years,
Constable,
S/o Sh. Mahender Singh,
Village-Patasni PO-Untlodha,
Tehsil & District-Jhajjar,
Haryana
2. Naresh Kumar, Age-29 years,
Constable,
S/o Sh. Krishan Kumar,
VPO-Jondhan Kalan,
The-Israna, District-Panipat,
State- Haryana
...Applicants
(By Advocate(s): Mr. Sachin Chauhan)
Versus
1. Govt. of NCTD through
The Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi - 110113
2. The Commissioner of Police
Police Headquarter, MSO Building,
I.P. Estate, New Delhi
3. The Joint Commissioner of Police,
Armed Police through the
The Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
4. The Dy. Commissioner of Police,
3rd Bn., DAP, Vikas Puri Police Complex,
New Delhi - 110018
...Respondents
(By Advocate(s): Mr. Sameer Sharma)
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O.A. No. 3968/2017
ORDER
Hon'ble Mr. Manish Garg, Member (J) This Original Application has been filed by the applicants under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):-
"8.1 To quash and set aside the order dated 12.09..2016 whereby the two years approved service permanently forfeited is being imposed upon the applicants, order dated 9.3.2017 whereby the statutory appeal of the applicants is being rejected and to further direct the respondents that forfeited service be restored as it was never forfeited with all consequential benefits including seniority & promotion and pay & allowances and further the suspension period of applicants be treated as 'Spent on Duty' for all intents and purposes.
8.2 To quash and set-aside the order dated 28.1.2016 whereby the D.E. is being initiated against the applicants.
8.3 To quash and set-aside the finding of Enquiry Officer.
8.4 To quash and setaside the order whereby the name of applicants has been kept in the secret list of doubtful integrity and to further direct the respondents that name of applicants be removed from the secret list of doubtful integrity from the date of inception.
Or/and
(i) Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant."
2. Brief facts of the case are as under:-
The applicant nos. 1 and 2 were appointed as Constable in the years 2009 and 2014 respectively and have rendered their duties efficiently and diligently and are having clean and unblemished service record. By virtue of the present Original Application, the applicants are seeking to quash and set aside the impugned orders dated 28.01.2016, vide which the D.E. was initiated against them, 12.09.2016, vide which the major punishment, i.e., forfeiture of two years approved service was 3 O.A. No. 3968/2017 imposed upon the applicants and 09.03.2017, vide which their appeals have been rejected by the Appellate Authority.
3. Learned counsel for the applicants points out that the Departmental Enquiry was a joint enquiry initiated against both the applicants herein. He further submits that the charges are vague and indefinite, thus vitiating the entire D.E., as there is no specific allegation(s) against the applicants which could be construed as misconduct. He relies upon the decisions rendered by the Hon'ble Apex Court in following judgments:-
(i) Anil Gilurker Vs. Bilaspur Raipur Kshetria Gramin Bank & Anr. (SLP (C) Nos. 33088-33089 of 2010) decided on 15.09.2011;
(ii) Suresh Chandra Chakrabarty Vs. State of West Bengal, reported in (1970) 2 SCC 548;
(iii) Sawai Singh Vs. State of Rajasthan, reported in (1986) 3 SCC 454; and
(iv) Union of India & Ors. Vs. Gyan Chand Chattar, reported in (2009) 12 SCC 78;
4. Learned counsel for the applicants further draws our attention to the charges framed against the applicants. The same are reproduced as under for ready reference:-
"The above act by you, SI (Exe) Sushil Kumar, No D-3760, Const. (Exe.) Naresh Kumar, No 2566/DA and Const (Exe.) Mukesh Kumar, No 2855/DAP amounts to grave misconduct, negligence, carelessness, failure in the discharge of your official duties as well as violation of standing instruction of S.O. No. 52 which renders all of you liable to be punished under the provision of Delhi Police (Punishment & Appeal) Rules 1980."4 O.A. No. 3968/2017
He further relies on the decision rendered by the Hon'ble Apex Court in Appeal (Civil) No. 2302 of 2005 on 31.10.2006, titled The Government of Andhra Pradesh & Ors. Vs. A. Venkata Rayudu. The relevant portion of the same reads as under:-
"The tribunal further noticed that the Enquiry Officer exceeded its powers by finding the appellant guilty of charge of negligence by enlarging the scope of enquiry which was also unwarranted. Observing infirmity, the tribunal found that the Order of dismissal was not sustainable and accordingly, it was set aside. Hence, this appeal as noticed from the narration of facts above, four Charges had been framed against the respondent, but he was found not guilty by the tribunal in connection with Charges Nos. 2 to 4. As regards Charge No. 1, the tribunal held that though Charge No. 1 is proved, it cannot be said to be misconduct by the appellant. Hence, the tribunal exonerated the respondent.
The High Court in paragraph 12 of the judgment observed thus:
"It is also to be noted that the so-called directions of G.Os issued by the Government on the subject were not even placed before the Enquiry Officer. It is on record that the delinquent Officer only renewed the deposits already made by his predecessors. Under those circumstances, the tribunal has categorically observed that the charge No. 1 cannot be held to be proved on the basis of the material available on record."
We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge No. 1, what is mentioned is that the respondent violated the Orders issued by the Government. However, no details of these Orders have been mentioned in Charge No. 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the G.O which is said to have been violated by the respondent, the number of that G.O, etc. but that was not done. Copies of the said G.Os or directions of the Government were not even placed before the Enquiry Officer. Hence, Charge No. 1 was not specific and hence no finding of guilt can be fixed on the basis of that Charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessor. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged.
5O.A. No. 3968/2017 Thus, there is no force in this appeal. The appeal is accordingly dismissed. There shall be no order as to costs."
6. Learned counsel for the applicants further states that the said Standing Order which has been relied upon does not find any mention in the list of documents to be relied upon by the prosecution, which is reproduced as under:-
6O.A. No. 3968/2017 7 O.A. No. 3968/2017
7. Learned counsel for the applicants further stresses that what has been drawn is an extraneous charge, which was not even a part of the charge memo inasmuch as per the findings of the Enquiry Officer (Annexure A-4), the relevant portion thereof reads as under:-
"From this Fact, it is quite clear that both armed Constables of escort guard namely Naresh Kumar & Mukesh Kumar were probably not present near entry/exit door of the court room. Had they been there, the assailants can be apprehended by them. Thus, it is clearly established that SI (Exe) Sushil Kumar No D-3760, Const (Exe) Naresh Kumar No 2566/DAP and Const (Exe) Mukesh Kumar No 2835/DAP did not perform their duty vigilantly, properly and actively with presence of mind."
8. Learned counsel for the applicants further submits that the present case is of no evidence and therefore no misconduct has been committed by the applicants. In this regard, he relies upon para 5.5 of the OA, the same is reproduced as follows, for ready reference:-
8O.A. No. 3968/2017
side the court room at the time of incident and, therefore, the applicants had not seen the assailants and were not in a position to identify them at the spur of the movements.
It is proved from the evidence of PW-6 and 7 that there were 50-60 person inside the court room and after the firing the public present in the court room, ran away outside the court room like a crowd.
That both the applicants also entered immediately in the court room after hearing the firing shots and immediately took over UTP Irfan @ Chenu Pahalwan who was badly injured and profoundly bleeding from the fire injuries. The applicants had an impression that the firing taken place by the assailants to get scot-free the UTP, so both the applicants performed the duties of the security of UTP as per S.O. and he was taken to custody. That it was not feasible and possible to use fire arm with long weapons in the court room which was fully crowded and any firing could have resulted in unwarranted casualty/injuries to the public. This fact is admitted by PW-6 and PW-7 also.
It is proved that both the applicants brought the UTP Irfan @ Chenu Pahalwan from the court room in E.D. Lock-up in safe custody and took him in Dr. Hedgawar hospital, Shastri Nagar, Delhi.
9. It is further submitted that the applicants are diligent in performing their duties. It is highlighted that Sub Inspector (SI), was the Supervising Officer under whom three constables, including the applicants herein and they were following the directions of the said SI, who asked the applicants herein to remain outside the Court whereas the SI as well as the Head Constable, Ram Kanwar Meena, who got injured and later declared dead by the hospital, no specific allegations have been made that the delinquents did not perform their duties and did not follow the directions of the in-charge officer, i.e., SI. 9 O.A. No. 3968/2017
10. Learned counsel relies upon the findings (Annexure A-4) wherein he draws our attention to the cross examinations of PW-6 and PW-7, which are reproduced herein for ready reference:-
"PW-6: Const. Sohanveer Singh No. 2251/DAP PIS No. 28882304, 3rd Bn. DAP. Present posting- Karkardooma Lock up-(ED Lock-Up).
......On cross examination, witness stated that it is correct that due to the presence of many peoples in that court, it was difficult to say in that who were the accused persons and complainants. He along with some advocates and SI Sushil Kumar have also tried to caught hold the assailants. On the day of incident, he along with HC UdaiBhan and some public persons helped to caught hold the assailants. He does not remember that SI Sushil Kumar was there to caught hold the assailants as there was huge rush of the public. The two firearms were recovered from the assailants but he does not know the description of the firearms. He stated that he had himself wrote his statements on 30.12.2015 before the reader to ACP Jai Kishan but he had not disclosed that he was also to help HC UdaiBhan to catch hold the assailants."
PW-7: HC UdaiBhan Singh No. 2106/DAP PIS No. 28881176. Present posting- Vikaspuri Line 3dBn DAP.
.....During cross examination he stated that assailants had entered the court after about 15/20 minutes after he had reached in the court. Reports in IIIrd Bn DAP daily diaries are correctly recorded. His previous statement was recorded by him personally. Questions and answers were written by the reader of ACP Jai kishan. Questions were also put by the reader to ACP. There was lot of crowd in the court room. There were about 40/50 persons in the court room. Crowd of 50 persons does not put hinderance in the sight. One door of the court was shut on that day. People were coming and going in and out of the court. UTP Irfan was accompanied by four members of the guard. He did not know S.I Sushil Kumar on the day of incident but today he knows himwell. He and H.C Ramkanwar had come inside the court with Irfan UTP and the two Constables had positioned themselves outside the court Assailants had taken out the arms from under their pants. There was no system of taking the search at the entry gate of court room. When the assailants entered in the court room he did not know that they were carrying arms. Empty cartridges were recovered from the spot after the incident. At about 1.45 PM he had returned to the lock up but he does not remember the timing of the arrival of the UTP Nazbul. He had already been brought to lock up by Constable Sohanbir. The incident was witnessed by many persons present in the court including the advocates. There was lot of crowd in the court and therefore he could not identify any policemen, advocate or public person who had helped in apprehending the assailants. May be that due to crowd he could not see S.I Sushil Kumar. 10 O.A. No. 3968/2017 H.C Ram Kanwar was taken to lock by some policemen and advocates and UIP Irfan was taken by both the constables and one or two other policemen. The crowd was so heavy that he could not see if S.I Sushil kumar was there or not. He had made a statement to the I.O of the case. He had signed number of memos. He does not remember what was his answer to the question, at the time of recording his earlier statement, whether S.I Sushil Kumar also had helped him in apprehending the assailants. When the same question was put he stated that he could not see him."
11. Learned counsel for the applicants further submits that no specific charge has been there that if the applicants were supposed to use the fire arms and failing to do so, the specific charge ought to have been framed qua the applicants.
12. Learned counsel for the applicants further contends that it is apparent from the aforesaid cross examinations as well as material on record that the applicants were made a scapegoat and meted out hostile discrimination while holding the departmental proceedings whereas there was no charge frame with regarding to the entry and existing of the others. He further submits that the statements of different witnesses relied upon by the applicants have been ignored on the ground of "tutored". He further states that in the department proceedings, the defence witnesses are not permissible and only clarificatory questions can be asked from the enquiry officer. He states that there was a specific cross examinations conducted by enquiry officer with both the defence witnesses, which is impermissible. The order passed by the Disciplinary Authority is a non-speaking and non-reasoned order and therefore, he further pointed out that in the facts and 11 O.A. No. 3968/2017 circumstance of the case, the punishment of forfeiture of two years approved service is too harsh and disproportionate to the gravity of the charge alleged against the applicants.
13. Per contra, learned counsel for the respondents while opposing the arguments put forth by the learned counsel for the applicant relies upon the counter affidavit and contests that the disciplinary proceedings as well as the orders passed by the Disciplinary and Appellate Authorities are inconsonance with the provisions and ambit and scope of disciplinary rules. He further contends that all cordial formalities, including the principle of natural justice has been followed. He vehemently denies the allegation that the applicants were only made scapegoat and draws our attention to order dated 12.09.2016 wherein SI Sushil Kumar No. D-3760 was also awarded the same punishment as the applicants herein. The relevant portion of the same reads as under:-
".......... hereby impose the punishment of forfeiture of two years approved service permanently upon SI Sushil Kumar No. D-3760, Const. Naresh Kumar No. 2566/DAP and Const. Mukesh Kumar No. 2855/DAP, with immediate effect and their suspension period from
14.01.2016 to 11.05.2016 is also decided as period "Not Spent of Duty" which shall not be regularize in any manner."
Learned counsel for the respondents to buttress his arguments relies on page 112-113 of the counter affidavit, which is reproduced as under for ready reference:-
12O.A. No. 3968/2017
"Further, PW-10 is SHO/PS Farsh Bazar, who testified the registration of case FIR No.1009/15 u/s 186/353/307/302/34 at PS Farsh Bazar and also testified the MLCs of HC (Exe) Ram Kanwar Meena No. 2075-DAP and UTP Irfan as well as copy of Postmortem Report and the same were got exhibited as Exh PW-10/A to C respectively. From the evidence and material brought on DE file, it has clearly been established that on 23.12.2015, the applicants have failed to follow the norms of safety and security during court production of UTP Irfan @ Chenu Pahalwan in which four assailants opened fire in the court room injuring the UTP and killing one of Escort Guard member HC Ram Kanwar Meena."
14. He further contests that the applicants were fully aware of the said Standing Order No.52, as reflected in the defence statement at page 80 of the OA. The said document, i.e. Standing Order No.52 is a general guidelines, which they are supposed to be aware of.
15. In rejoinder to the counter argument put forth by the learned counsel for the respondents, learned counsel for the applicants vehemently contends even during the course of argument that no specific point has been urged by the respondents to say that which clause of the said Standing Order has been violated. No other grounds are urged or submitted by either side.
16. ANALYSIS The following has been quoted from the Delhi Police (Punishment & Appeal) Rules, 1980 for proper adjudication of this case:-
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"8. Principles for inflicting penalties.
(a) Dismissal/Removal. - The punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.
(b) Reduction-No officer shall be reduced to a rank lower than that in which he was initially appointed.
(c) Withholding of increment.-(1) The increment of a police officer may be withheld as a punishment. The order must state definitely the period for which the increment is withheld, and whether the withholding shall have the effect of postponing future increments.
(2) The withholding of increments shall be entered in the order book in the case of constables and Head-Cons tables and in the case of Inspectors, Sub-Inspectors and Assistant Sub-
Inspectors published in the Police Gazetted. When an efficiency bar is placed at any stage of stages in a time scale it shall be passed only on the authority of a specific order by an officer competent to withholding an increment in the time scale concerned.
(d) Forfeiture of approved service.-Approval service may be forfeited permanently or temporarily for a specified period as under-
(i) For purpose of promotion or seniority (Permanent only).
(ii) Entailing reduction in pay or deferment of an increment or increments (permanently or temporarily).
(e) Fine not exceeding one month's pay.-When any Police Officer of a subordinate rank has been found negligent in the discharge of his duties resulting in pecuniary loss to the Government, the punishment of the fine not exceeding one month's pay may be imposed on him after a regular departmental enquiry.
(f) Censure.-The punishment of censure shall be supported by a formal order in the order book and shall not be awarded unless the officer concerned has been given an opportunity to explain his conduct in the manner prescribed in Rule 6 (ii) above.
(g) Punishment drill.-(1) Punishment drill shall consist of drill with a musket or rifle and rolled great cost for not more than six or less than four hours in any one day, with an interval of atleast 30 minutes between each hour. Only such days shall be counted towards the completion of an award of punishment drill on which the drill is actually carried out. (2) The officer awarding the punishment drill may direct that constable so punished shall not leave the place of his posting or Police Lines, except on duty during the days on which such punishment is to be carried out.
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16. Procedure in departmental enquiries. - The following procedure shall be observed in all departmental enquiries against police officers of subordinate rank where rank facie the misconduct is such that, if proved, it is likely to result in a major punishment being awarded to the accused officer :
(i) A police officer accused of misconduct shall be required to appear before the disciplinary authority, of such Enquiry Officer as may be appointed by the disciplinary authority. The Enquiry Officer shall prepare a statement summarising the misconduct alleged against the accused officer in such a manner as to give full notice to him of the circumstances in regard to which evidence is to be regarded. Lists of prosecution witnesses together with brief details of the evidence to be led by them and the documents to be relied upon for prosecution shall be attached to the summary of misconduct. A copy of the summary of misconduct and the lists of prosecution will be given to the defaulter free of charge. The contents of the summary arid other documents shall be explained to him. He shall be required to submit to the enquiry officer a written report within 7 days indicating whether he admits the allegations and if not, whether he wants to produce defence evidence to refute the allegations against him.
(ii) If the accused police officer after receiving the summary of allegations, admits the misconduct alleged against him, the enquiry officer may proceed forthwith to frame charge, record the accused officer's pleas and any statement he may wish to make and then pass a final order after observing the procedure laid down in Rule 15 (xii) below if it is within his power to do so. Alternatively the finding in duplicate shall be forwarded to the officer empowered to decide the case.
(iii) If the accused police of officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial.
The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witnesses concerned. The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to 15 O.A. No. 3968/2017 elucidating the facts referred to in the statements of documents thus brought on record.
(iv) When the evidence in support of the allegations has been recorded the Enquiry Officer shall-
(a) If he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him or recommended his discharge to the Deputy Commissioner of Police or other officer, who may be so empowered or,
(b) Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.
(v) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time, not exceeding two working days, to prepare a list of such witnesses together with a summary of the facts they will testify and to produce them at his expense in 10 days. The enquiry officer is empowered to refuse to hear any witnesses whose evidence he considers to be irrelevant or unnecessary in regard to the specific charge. He shall record the statements of those witnesses whom he decides to admit in the presence of the accused officer who shall be allowed to address question to them, the answers to which shall be recorded; provided that the enquiry officer may cause to be recorded by any other Police Officer superior in rank to the accused officer the statements of a witness whose presence cannot be secured without delay, expenses or inconvenience and may bring such statements on record. When such a procedure is adopted, the accused officer may be allowed to draw up a list of questions he wishes to be answered by such witnesses. The enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer and he will be allowed to take notes.
(vi) The accused officer shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official documents as he may specify, provided that such permission may be refused for reasons to be recorded in writing, if in the opinion of the enquiry officer such records are not relevant for the purpose or against the public interest to allow him access thereto. The latest orders of the Government shall be applicable with regard to the charging of copying fees, etc.
(vii) At the end of the defence evidence or if the Enquiry Officer so directs, at an earlier stage after the framing of charge the accused officer shall be required to submit his own various of facts. He may file a written statement for which he may be given a week's time, but he shall be bound to answer orally all questions arising out of the charge, the recorded evidence, his own written statement or any other relevant matter, within the enquiry officer may deem fit to ask.
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(viii) After the defence evidence has been recorded and after the accused officer has submitted his final statement, the Enquiry Officer may examine any other witness to be called "Court witness" whose testimony he considers necessary for clarifying certain facts not already covered by the evidence brought on record in the presence of the accused officer who shall be permitted to cross-examine all such witnesses and then to make supplementary final defence statement, if any, in case he so desires.
(ix) The Enquiry Officer shall then proceed to record the findings. He shall pass orders of acquittal or punishment if himself empowered to do so, on the basis of evaluation of evidence. If the proposes to punish the defaulter he shall follow the procedure as laid down in Rule 16(xii). If not so empowered he shall forward the case with his findings (in duplicate) on each of the charges together with the reasons therefor, to the officer having the necessary powers. If the enquiry establishes charges different from those originally framed, he may record finding on such charges, provided that findings on such charges shall be recorded only if the accused officer has admitted the facts constituting them or has had an opportunity of defending himself, against them.
(x) On receipt of the Enquiry Officer's report the disciplinary authority shall consider the record of the inquiry and pass his orders on the inquiry on each charge. If in the opinion of the disciplinary authority, some important evidence having a bearing on the charge has not been recorded or brought on the file he may record the evidence himself or sent back the enquiry to the same or some other enquiry officer, according to the circumstances of the case for such evidence to be duly recorded. If such an event, at the end of such supplementary enquiry, the accused officer shall again be given an opportunity to lead further defence, if he so desires, and to submit a supplementary statements, which he may wish to make.
(xi) if it is considered necessary to award a service punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him. and he shall be given opportunity to defend himself as required by rules.
(xii) If the disciplinary authority, having regard to his findings on the charges, is of the opinion that a major punishment is to be awarded, he shall-
(a) furnish to the accused officer free of charge a copy of the report of the Enquiry Officer, together with brief reasons for disagreement, if any, with the finding of the Enquiry Officer.
(b) Where the disciplinary authority is himself the Enquiry Officer, a statement of his own findings, and
(c) If the disciplinary authority, having regard to its finding on all or any of the charges and on the basis of the evidence 17 O.A. No. 3968/2017 adduced during the enquiry is of the opinion that any of the penalties specified in rule 5 (i to vii) should be imposed on the Police Officer, it shall make an order imposing such penalty and it shall not be necessary to give the Police Officer any opportunity of making representation on the penalty proposed to be imposed."
16.2 In the facts of the present case, the records would reveal that applicants had submitted a joint defence statement alongwith SI Sushil Kumar, who alleged to have been acting as a supervising officer. The present applicants have taken all together new plea inter alia to the effect Sub Inspector (SI), was the Supervising Officer under whom three constables, including the applicants herein and they were following the directions of the said SI, who asked the applicants herein to remain outside the Court whereas the SI as well as the Head Constable, Ram Kanwar Meena, who got injured and later declared dead by the hospital, no specific allegations have been made that the delinquents did not perform their duties and did not follow the directions of the in-charge officer, i.e., SI., which runs contrary to the joint statement wherein no such submissions have been urged. It is also not disputed by the applicants that the said incident had occurred at Court premises. Hence, it cannot be ruled out that the applicants, who were part of the team, were also responsible for the inaction and the applicants cannot shift their responsibility to others. Rather what has been stated by 1st applicant - Mukesh Kumar in response statement to finding of enquiry is that "The present incident is as a result of pre-planned conspiracy of the assailants who were already present inside the court room much before production of 18 O.A. No. 3968/2017 UTP by H.C. Ram Kumar Meena and SI Sushil Kumar". No plea has been taken for non-compliance of S.O. No.52 at any point of time. 1st Applicant - Mukesh Kumar further stated that "There was no laxity on the part of the applicant in the response time and tool further action as per the S.O. No.52 which given mandates safe custody of the UTP". The S.O.s are standing instructions, which are in aid and supplement to the substantive Rules for duties of escorting team(s) for safe custody of under trial prisoner. The summary allegations are based on the incident reported. Hence, the applicants were well aware of their responsibility as contemplated in the SO. 52 (i.e., Guards At Judicial Lock-Ups And Police Escorts). It is not disputed that it was joint responsibility of the applicants along with three others for guarding the assailants to be brought to the Court Room from Judicial Lock-Up in said official capacity while acting as Police escorts, were duty bound to act in a proper and safe manner and after completion of the Court proceeding, they have to put them in Judicial Lock-up. Reliance placed on the decision rendered by the Hon'ble Supreme Court in Anil Gilurker (Supra) is quite distinct and separate, as the Rules governing the disciplinary proceedings in Bank cannot be equated with Delhi Police Rules. The learned counsel for the applicants failed to point out any violation of statutory provisions in the facts of the present case.
19O.A. No. 3968/2017 16.3 It is pertinent to mention that the present case is a case of joint enquiry. There is no provision under DP to appoint presenting officer. The cross examination of witnesses was not in question and answer form thereof so to come to conclusion leading questions were put.
16.4 In terms of Rule 16(i) of the Rules ibid, the Enquiry Officer has prepared a statement summarizing the misconduct alleged against the accused officer(s) in such a manner so as to give full notice to him/them of the circumstances in regard to which evidence is to be recorded. The summary of charges cannot be said to be vague, as the same related to the particular incident at Court premises. The learned counsel for the applicants has failed to point out as to why the same should not have been the charges against the applicants. Even the said SI had been inflicted with similar punishment. The punishment inflicted cannot be said to be disproportionate and harsh. Further, the said Rule does not postulates any prescribed mode and manner for preparing and giving imputation of charges in specific form. What is contemplated is only a statement summarizing the misconduct alleged against the accused officer(s) in such a manner as to give full notice to him/them of the circumstances in regard to which evidence is to be recorded. Hence, there is a substantial compliance of mandate under Rules ibid. On the part of cross- examination, there is also no prescribed form and procedure in 20 O.A. No. 3968/2017 which the questions can be put to the witnesses. Even otherwise, since there is no provisions for Presenting Officer under Delhi Police (Punishment & Appeal) Rules, 1980, the enquiry officer has been given mandate under Rule 16(iv) of the Rules ibid that he shall also frame questions which he may wish to put to the witness(es) to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer(s) and he/they will be allowed to take notes. No bias has been alleged against the said enquiry officer. The questions asked cannot be said to be irrelevant so as to vitiate the said enquiry proceedings. 16.5 The Hon'ble Supreme Court in the case of Sukhadeo Vishwanath Garaje v. M/s. Food Corporation of India, reported in 1989-II-LLJ-277 (SC), wherein the Hon'ble Supreme Court has been observed as under:
"It is true that the Enquiry Officer has asked questions to the petitioner and his defence witnesses, some of which were in the nature of cross-examination. However, it is to be borne in mind that in domestic enquiries the detailed procedure of recording evidence as followed in Courts need not be strictly adhered to. The rules of Indian Evidence Act do not apply to departmental enquiries. Very often there is no o separate management representative to conduct enquiry proceedings on behalf of the management and only witnesses are sent to the Enquiry Officer to depose regarding the incident. In such cases the questions to such witnesses are put by the Enquiry Officer and not by the management. This procedure does not violate the principles of natural justice. If the Enquiry Officer examined the witnesses without the assistance of the management representative then it does not show that he himself was the prosecutor when the record shows that a bona fide enquiry was held. When the Enquiry Officer himself examined and questioned the witnesses it is not objectionable so long as due opportunity is given to the delinquent to cross- examine them. It is competent for the Enquiry Officer to put questions to the witnesses to ascertain the real incident. However, when all the question of the defence witnesses are 21 O.A. No. 3968/2017 put by the Enquiry Officer and it shows that the workman had no chance to put questions then the principles of natural justice would be violated. It is the duty of the Enquiry Officer to elicit truth from witnesses. He is even entitled to cross- examine the witnesses for the same and this will not bring any bias. In most of the cases the Enquiry Officer is a layman and not conversant with the procedure of Court. If the enquiry records show that the Enquiry Officer in his own way tried to do justice to the delinquent and afforded him all the reasonable opportunity then the enquiry cannot be set aside on the ground that the Enquiry Officer examined the witnesses without any assistance from the management. The rules regarding questions as applicable in Courts are laid down under Sections 141, 142 and 143 of the Indian Evidence Act. Such officers may be very competent in their jobs but may not be able to frame the questions in the manner in which they are framed in the Courts and therefore the ban on putting leading questions cannot be made applicable to such enquiries. The Indian Evidence Act is not applicable to the departmental proceedings and the questions cannot be condemned on the ground that they were leading. It is only when the departmental proceedings reflect bias on the part of the Enquiry Officer that the enquiry can be said to be vitiated."
16.6 Further, the Hon'ble Supreme Court in the case of Workmen in Buckingham and Carnatic Mills, Madras v. Buckingham and Carnatic Mills, Madras, reported in 1970-I-LLJ-26 (SC), has held that merely because in a domestic enquiry, management is not represented by an officer separately do not prevent an Enquiry Officer from putting questions to the delinquent workman and to witnesses and such a conduct on the part of the Enquiry Officer would not vitiate the domestic enquiry. The purpose of appointing an Enquiry Officer in a domestic enquiry is to find out the truth or otherwise of the charges levelled against the delinquent employee. Merely because such questions are put by the Enquiry Officer in a case where no Presenting Officer is appointed by the Management, which does not amount 22 O.A. No. 3968/2017 to examination in chief. The whole purpose and object of such domestic enquiry is to reach at the truth of the matter. No doubt it is the management, which has to establish the charges levelled against the delinquent employee by examining witnesses to substantiate the charges and thereafter it is open to the delinquent employee to adduce evidence in support of his defence. When a Presenting Officer is not appointed by the Management merely because few questions are put by the Enquiry Officer to such witnesses of the management, it does not amount to Examination- in-Chief by the Enquiry Officer. However, it is not possible to lay down as a rule of law what questions the Enquiry Officer is permitted to put in a domestic enquiry or how many questions he can put. The question whether the Enquiry Officer has put questions by way of clarifications or virtually he has done the examination-in-chief and cross-examination of the defence witnesses, is dependent on the facts and circumstances of each case. The same has to be gathered by looking into the evidence, the nature of questions put forth, and the answers obtained and how the said answers have been made use of in preparing the report. The real test is whether the departmental proceedings reflect bias on the part of the Enquiry Officer. If so, the enquiry can be said to be vitiated. The Enquiry Officer can put questions to the witnesses who appeared before him for clarification whenever necessary. If when such questions are put and the witnesses give 23 O.A. No. 3968/2017 answers which are against the interest of the opposite party and then if the Enquiry Officer allows the witnesses to be cross- examined on those points, the rules of fair-play is observed. 16.7 In CIVIL APPEAL NO. 8968 OF 2019 IC-56663X COL ANIL KUMAR GUPTA Vs UNION OF INDIA & ORS., decided on 7.11.2022, the Hon'ble Apex Court held as under :-
".....we hasten to add that as per the well settled legal position Regional Manager, UCO Bank and Anr. vs. Krishna Kumar Bhardwaj, (2022) 5 SCC 695 9 , the power of judicial review in the matter of disciplinary proceedings is extremely limited. It is circumscribed by the limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. The power of judicial review is an evaluation of the decision-making process and not of the merits of the decision itself. It is therefore clarified that the disciplinary proceedings initiated against the appellant pursuant to the chargesheet issued on 19.11.2018 shall continue in accordance with law.
12. The appeal stands partly allowed accordingly."
16.8 In CIVIL APPEAL NOS. 7939-7940 OF 2022, arising out of Petitions for Special Leave to Appeal (Civil) No. 3524-25 OF 2022 in the case of SUBRATA NATH VS UNION OF INDIA AND OTHERS decided on 23.11.2022, it has been held as under :-
"29. We find ourselves in complete agreement with the findings returned by and conclusion arrived at by the Disciplinary Authority, duly confirmed by the Appellate Authority and upheld by the Revisional Authority in respect of both the Articles of Charge levelled against the respondent and the punishment imposed on him. The respondent being a member of the disciplined force, was expected to have discharged his duty diligently. His gross negligence and dereliction of duty has resulted in theft of 800 kgs. copper wires from the spot where he was performing his duty. Further, the records reveal that the respondent did not mend his ways during thirteen years of service rendered by him and was awarded eight punishments for various delinquencies out of which, three punishments included stoppage of increment on two occasions for one year without cumulative effect twice and 24 O.A. No. 3968/2017 stoppage of increment for two years without cumulative effect on one occasion. In such circumstances, the desirability of continuing the respondent in the Armed Forces is certainly questionable and the Disciplinary Authority could not be expected to wear blinkers in respect of his past conduct while imposing the penalty of dismissal from service on him.
30. Therefore, it is deemed appropriate to quash and set aside the impugned judgment and order dated 9th September, 2021 passed by the Division Bench of the High Court of Calcutta in FMA No.679 of 2019 and FMA No. 680 of 2019 and the order dated 25th June, 2018 passed by the learned Single Judge in WP No.14102 (W) of 2009, while restoring the findings and the conclusion arrived at by the Disciplinary Authority, as elaborated in the order dated 27th November, 2008, duly upheld by the Appellate Authority, vide order dated 3rd February, 2009 and endorsed by the Revisional Authority, vide order dated 19th May, 2009.
In our view, the penalty of dismissal from service imposed on the respondent is commensurate with the gross negligence and dereliction of duty on his part."
17. Conclusion In view of the above facts and circumstances, the present Original Application is devoid of merits. Hence, stands dismissed.
18. No order as to costs.
(Manish Garg) (Anand Mathur)
Member (J) Member (A)
/sm/