Central Administrative Tribunal - Delhi
Constable Satish Kumar vs Govt. Of Nct Of Delhi, Through The ... on 5 February, 2007
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought quashing and setting aside of the impugned orders dated 28.08.2004, 31.03.2005 and 24.05.2004 (Annexures A-1 to A-3) whereby a punishment of forfeiture of two years of approved service permanently has been awarded to him.
2. The brief facts of the case are that the applicant was appointed as Constable in Delhi Police on 11.10.1993. Departmental proceeding was initiated against him and the following Summary of Allegations, in respect of the applicant and certain other officers, was issued:
It is alleged that on 07.06.2003 at about 7.00 PM Rajiv Bhola beat up an eight year age beggar type boy who is son of a T.S.R. Driver. The boy has suffered injuries and a crowd had gathered. Const. Satish Kumar No. 1801/E allegedly brought both of them to the Police Station Vivek Vihar, where HC Suresh Kumar No. 456/E arrested Rajiv Bhola Under Section 92/93/97 D.P. Act. He was given some minor beating at the Police Station. Subsequently, his uncle Suresh Kumar Bhola reached the Police Station and saw his nephew Rajiv Bhola in the Police Lock-up. He enquired about the matter and offered to get his nephew released on his surety. Const. Pritam Singh allegedly demanded Rs. 5000/- for medical expenses of the injured boy Rohit. At that time uncle Suresh Kumar Bhola took Rs. 1950/- from one Sanjeev Bhola and gave it to some one in plain clothes. The accused Rajiv Bhola was released thereafter.
On 08.06.2003, Const. Satish Kumar No. 1801/E came to their shop and demanded balance amount of money. Rajiv Bhola expressed his inability to pay as he had just opened the shop, but apparently Const. Satish Kumar allegedly took the money from the Galla and tried to flee but was caught by both the brothers, raised an alarm and other shopkeepers gathered. Another Const. Tajpal Singh No. 762/E saw the raucous and tried to rescue Const. Satish Kumar No. 1801/E. In this process, he joined Const. Satish Kumar No. 1801/E in beating up two shopkeepers. When other shopkeepers gathered, the Const. called other police officials from the Police Station and there was some more scuffle and hand-to-hand fight in and around the shop. One of the brothers Sanjeev Bhola was taken to Police Station on a two wheeler. Out of the five persons who have been identified on the basis of Test Identification Parade, three constables namely Const. Satish Kumar No. 1801/E, Const. Pritam Singh No. 1784/E and Const. Tejpal Singh No. 762/E were identified at the first instance. Subsequently, during T.I.P. HC Suresh No. 456/E who arrested the accused Sanjeev Bhola was also identified. Another W/HC Chhamo Khan No. 265/E was also identified during the T.I.P by one of the complainant Rajiv Bhola.
The above act on the part of HC Suresh No. 456/E, W/HC Chhammo Khan No. 265/E, Const. Satish Kumar No. 1801/E, Const. Pritam Singh No. 1784/E and Const. Tejpal Singh No. 762/E amounts to grave misconduct, carelessness, negligence and dereliction in the discharge of their official duties, which renders them liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980.
3. The applicant was placed under suspension on 08.06.2003 and later reinstated on 07.02.2004. The Enquiry Officer submitted his report dated 24.05.2004. Thereafter, the Disciplinary Authority issued the final order dated 28.08.2004. The applicant thereupon filed an Appeal which was rejected by the Appellate Authority, vide order dated 31.03.2005. Hence, the OA.
4. The applicant has challenged the impugned orders on the following grounds:
The departmental enquiry is vitiated as it has been conducted in violation of Rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980 insofar as the preliminary enquiry had revealed committing of a cognizable offence but no prior approval of the Additional Commissioner of Police was taken before ordering the departmental enquiry.
The Disciplinary Authority has acted in violation of Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980 as the Disciplinary Authority disagreed with the findings of the Enquiry Officer insofar as the punishment was imposed on the applicant on the charge of beating given to the complainant but the Enquiry Officer had exonerated the applicant from the charge of giving the beating to the complainant on 07.06.2003.
The departmental enquiry is in violation of Rule 16 (9) of the Rules, ibid. as no reason whatsoever has been recorded by the Enquiry Officer on the findings on that part of the charge that has been proved against the applicant. The Enquiry Officer is under an obligation to record reasons supported by the evidence that has come on record in support of the findings made in respect of the part of the charge that has been proved against the applicant, but the Enquiry Officer, in the present case, has not at all recorded any reason supported by the evidence that has come on record thus vitiating the entire departmental enquiry.
The Enquiry Officer has totally overlooked the deposition of P.W-1, i.e. Shri Rajeev Bhola, on his cross-examination and the same clearly establishes that it was the applicant who was beaten up and assaulted by both the brothers on 08.06.2003 as they were annoyed by the incident of 07.06.2003. The MLC of the applicant on 08.06.2003 proved that the applicant was hurt and the total evidence that has come on record in the entire departmental enquiry makes it very clear that none of the witnesses has deposed anything against the applicant. But merely relying upon the deposition of P.W.-3 the charge has been proved against the applicant. The deposition of P.W.-3 cannot be relied upon in view of the deposition made by P.W.-1 as the same makes it very clear that the complaint against the applicant has been made because of a grudge on account of the incident on 07.06.2003. In the entire evidence the identification of the applicant is being proved by relying upon the TIP or a TIP report but the same cannot be relied upon. In the absence of the identification of the applicant, no charge can be proved against the applicant. In the present case the applicant is a victim as he has been assaulted by the complainant, i.e. P.W.-3, who afterwards lodged a complaint against the applicant with ulterior motives.
The different authorities, including the Enquiry Officer, are under obligation to consider the defence of the applicant but the same has not at all been done by any of the authorities. The defence of the applicant in relation to the MLC (showing the applicant was having bruises), complainant's complaint being motivated, the deposition of P.W.-1 being overlooked as the same clearly establishes that the complaint against the applicant was motivated and the version of the defence witnesses, has never been considered thus causing great prejudice to the applicant.
There is non-examination of the most material witnesses, i.e. the doctors, who conducted MLC on the applicant and the complainant and their non-deposition in the departmental enquiry has caused great prejudice to the applicant as without MLC being proved the charge against the applicant of beating the complainant cannot be proved.
The complaint made against the applicant by Sanjeev Bhola is because of mala fides and motivated as the complainant was booked Under Section 92/93/97 of D.P. Act on 07.06.2003 by Head Constable Suresh and subsequently the complainant appeared before the Magistrate on 13.06.2003 and was fined for Rs. 100/- but the complainant never disclosed anything against the applicant before the Magistrate. It proves that the present complaint is an afterthought in order to harass an honest police officer, i.e. the applicant.
The applicant was identified as a person involved in the offence on the basis of Test Identification Parade (TIP, for short). However, the TIP was never made part of the departmental enquiry. Any document, which is not proved or marked as an exhibit in the departmental enquiry, cannot be relied upon to prove the charge, and dependence on it amounts to taking extraneous factors into consideration.
The Disciplinary Authority has imposed the punishment on the applicant by a totally non-speaking and mechanical order and has not at all applied its mind on the submissions and pleas of the applicant. On the contrary, what has been done by the Disciplinary Authority is a verbatim reproduction of evidence recorded by the Enquiry Officer. Not even a single sentence has been added by the Disciplinary Authority. The Disciplinary Authority is under an obligation to apply its mind on the submissions and pleas raised by the applicant against the findings of the Enquiry Officer, but in the present order not even a single plea has been considered by the Disciplinary Authority.
The order of the Appellate Authority is vitiated as the admission or confession of a delinquent of a misconduct has to be in writing. On the ground that the misconduct has been admitted, the Appellate Authority has ignored the submissions and pleas raised by the applicant in his statutory plea, thus making it a non-speaking and mechanical order.
5. The respondents, in their counter-affidavit, have stated that the departmental enquiry was initiated against the applicant with the prior approval of respondent No. 3, vide his letter dated 17.06.2003. The respondents have further stated that it has been proved during departmental proceedings that the applicant alongwith the injured boy went to the shop of PWs-1 & 3, asked them who had beaten the boy and brought them to the Police Station, Vivek Vihar, where Constable Pritam Singh met him. On 08.06.2003, it has been proved that the applicant and Constable Pritam Singh were very much present at B-Block Market, Vivek Vihar, where the police officials had reportedly beaten up both the brothers.
6. It has been further averred that the TIP was not a part of departmental enquiry in this case as from the perusal of statements of PWs, DWs, evidence brought on record, photographs of the injured persons and other available record, the Disciplinary Authority was inclined to believe that on 08.06.2003 PWs-1 & 3 were beaten up by the applicant and Constable Tej Pal, as they were very much present at D-Block Market, Vivek Vihar. The TIP was made only to identify the defaulter police officials, who were involved in this case.
7. The respondents have also argued that the Disciplinary Authority had discussed all the points in the final order of the departmental enquiry and awarded punishment to the applicant, keeping in view the gravity of his misconduct. The Appellate Authority, after considering all the points available in the departmental enquiry file and also hearing him in person, when he promised not to commit such a mistake again and apologized for the same, rejected his appeal, which was just and legal on account of the gravity of his misconduct.
8. The respondents have finally stated that the applicant is not entitled for any relief since the orders passed by the Disciplinary Authority and the Appellate Authority are quite legal, justified and in accordance with relevant rules on the subject.
9. The applicant, in his rejoinder, apart from reiterating the submissions made in the main OA, has stated that the approval has to be taken from the Additional Commissioner of Police or higher in rank specifically in relation to Sub-rule 2 of Rule 15 of the Rules, ibid. and merely stating that a departmental enquiry has been initiated by the Joint Commissioner of Police will not in any way mean that approval under Sub-rule (2) of Rule 15 of the Rules ibid. has been obtained to conduct a departmental enquiry.
10. During oral arguments, Shri Sachin Chauhan, the learned Counsel for the applicant, while referring to the 'Conclusion' of the Report of the Enquiry Officer, argued that while the Enquiry Officer had found a case against the applicant only in respect of the beating given by the applicant to the complainants on 08.06.2003, the Disciplinary Authority has imposed the penalty on the applicant on the ground that the charge was proved, which included the beating purportedly given by the applicant to the complainants on 07.06.2003 as well.
11. Apart from highlighting some of the averments in the main application, the learned Counsel for the applicant cited the following ruling of the orders of this Tribunal in respect of the two other co-defaulters, namely, W/Head Constable Chammo Khan and Constable Pritam Singh, as follows:
OA No. 1165/2005 decided on 31.10.2006 (W/Head Constable Chammo Khan v. Govt. of NCTD and Ors.)
10. It is apparent that in the summary of allegations, no specific charge has been levelled against the applicant W/Head Constable Chammo Khan. It is indirectly again on presumption that by virtue of her having been identified in the TIP, the charge against her of beating Sanjeev Bhola and Rajiv Bhola is found to have been proved. We also find that even the factual submissions made by her in defence statement do not appear to have been dealt with by the Disciplinary Authority. Learned Counsel for the respondents, though refuting the claim of the applicant, has been unable to substantiate how the charges against the applicant stand proved. Even, though in disciplinary proceedings, the level of proof required is preponderance of probability and not to be proved beyond reasonable doubt, still there needs to be logical connection between the Statement of Allegations and the findings. In this case, we find that no specific charge has been levelled against the applicant and it is by indirect association/presumption that she has also been proceeded against and imposed punishment. We are, therefore, of the view that it would not be possible to uphold the impugned orders, as it is apparently unsustainable in law.
11. Resultantly, we allow the OA and set aside the impugned orders dated 28.8.2004 and 31.3.2005 (Annexure A-1 and A-3). No order as to costs.
OA No. 1058/2005 decided on 04.12.2006 (Constable Pritam Singh v. Govt. of NCTD and Ors.)
13. Taking the totality of facts and circumstances of the case into consideration, we find that there is no adequate evidence on the basis of which the allegations against the applicant could be said to have been proved. We are in respectful agreement with the observations of the Coordinate Bench of this Tribunal in the case of W/Head Constable Chammo Khan v. Govt. of N.C.T.D. and Ors. (supra) that even though in disciplinary proceedings the standard of proof required is preponderance of probability and the charge does not have to be proved beyond all reasonable doubt, still there needs to be some basis for establishing that the allegations have been proved. There has to be a link also between the findings and the statement of allegations. In particular, after dropping of the charge relating to seeking of illegal gratification by the applicant, nothing remains on the basis of which the applicant can be punished. Once the edifice has been removed, the whole structure built on it naturally collapses. We are, therefore, unable to uphold the impugned orders.
14. In the result, the OA is allowed and the impugned orders dated 28.08.2004, 31.03.2005 and 24.05.2004 (Annexures A-1 to A-3) are quashed and set aside. There will be no order as to costs.
12. Shri Ajesh Luthra, learned Counsel for respondents, stated that the cases of co-defaulters cited by the applicant were decided on their own facts. There is no rebuttal of the oral admission before the Appellate Authority. There is no merit in the averment that since the so-called confession was not reduced to writing, it cannot be accepted. In any case, there is no allegation of mala fides.
13. We have heard the learned Counsels for the parties and perused the material on record as well as the orders/judgments cited.
14. On the face of it, we find that facts and circumstances of the incident, insofar as they relate to the applicant, are different from those relating to W/HC Chammo Khan and Const. Pritam Singh, in the two cases cited by the learned Counsel for the applicant. Unlike W/HC Chammo Khan and Const. Pritam Singh, admittedly the applicant was the first to go to the shop of the complainants on 08.06.2003, where he got involved in a fracas resulting in injuries to him. An MLC report too was prepared, but the applicant, in spite of being a member of the police force, did not lodge any complaint regarding the injuries suffered by him, when he was obstructed ostensibly in the discharge of his official duties. Not initiating criminal proceedings against the culprits, who roughed him up, if the applicant's version of the incident has to be believed, points the needle of suspicion in his direction. In this view of the situation, the applicant's averment relating to non-examination of the doctors who prepared the MLC reports also stands discredited.
15. As regards the 'Doctrine of Precedent', it is true that Hon'ble Supreme Court has clearly held that judgment of a coordinate bench is binding, especially in the context of the ratio of earlier judgments. Ignoring the settled decisions and passing of judicial order contrary to settled legal position is nothing but judicial adventurism [K. Ajit Babu and Ors. v. Union of India and Ors. 1997 SCC (L&S) 1520; State of Tripura v. Tripura Bar Association and Ors. ; and Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr. JT 1997 (5) SC 417]. However, in a catena of cases the Hon'ble Supreme Court has held that principles of law alone are binding. What constitutes binding precedent is the ratio decidendi of a case. Instead of mechanically applying an earlier decision, the Court should find out the ratio of the decision on a careful reading of the judgment and then consider its applicability to the case in hand. A Court has to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true, since a decision is precedent on its own facts. Fact situation obtaining in one case cannot be said to be a precedent for another. A little difference in facts or addition of facts may make a lot of difference in the precedential value of a decision, leading to a different conclusion. One should, therefore, avoid the temptation to decide cases by matching the colour of one case against the colour of another. A case is only an authority for what it actually decides and not what logically flows from it. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation [Uttaranchal Road Transport Corpn. and Ors. v. Mansaram Nainwal ; Sangham Tape Co. v. Hans Raj ; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. Divisional Controller, KSRTC v. Mahadeva Shetty and Anr. ; Union of India v. Chajju Ram (Dead) by LRS. and Ors. ; Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. ; Ajay Kumar Bhuvan and Ors. Etc. v. State of Orissa and Ors. Etc. ; Delhi Administration (Now NCT of Delhi) v. Manohar Lal ; Punjab State Electricity Board, Patiala and Anr. v. Ashok Kumar Sehgal and Ors. ; The Punjab Land Development & Reclamation Corporation Ltd., Chandigarh Etc. v. The Presiding Officer, Labour Court, Chandigarh and Ors. Etc. JT 1990 (2) SC 489; and Herrington v. British Railway Board 1972 (2) SLR 537].
16. In view of the case law cited above, we do not find that the ratio of the orders of the coordinate bench of this Tribunal, cited by the learned Counsel for the applicant, is applicable to the present case. In view of this, the averment of the applicant that there has been hostile discrimination against him in terms of the punishment awarded to him is also not acceptable, since the role and misconduct of various defaulters involved in the incident were different.
17. We also do not find any merit in the averment of the applicant that even through the Enquiry Officer had exonerated the applicant from the charge of beating the complainants on 07.06.2003, the Disciplinary Authority has held him guilty of beating the complainants on 07.06.2003 and 08.06.2003. A comparison of the Conclusion of the Enquiry Officer's Report and the findings of the Disciplinary Authority disproves this argument, as follows:
Conclusion in Enquiry Officer's Report:
From the perusals of statements of PWs, DWs, evidences brought on record, photographs of injuries and other available record, I am inclined to believe that on 08/06/2003 beating was given to Shri Rajeev Bhola and Shri Sanjeev Bhola by Police Officials of Police Station Vivek Vihar. Ct. Satish Kumar No. 1801/East and Ct. Tejpal Singh No. 762/East were very much present at D-Block Market Vivek Vihar, where the Police Officials had reportedly beat both the brothers. Hence, charge regarding beating to Shri Rajeev Bhola and Shri Sanjeev Bhola against Ct. Satish Kumar No. 1801/East and Ct. Tejpal Singh No. 762/East stand substantiated beyond any doubt. The charge of beating to Shri Rajiv Bhola & Shri Sanjeev Bhola against HC Chammo Khan No. 265/East and Ct. Pritam Singh No. 1784/East also stand substantiated, but the same charge against HC Suresh Chand No. 256/East, who had arrested Shri Rajiv Bhola on 07/06/2003 Under Section 92/93/97 D.P.Act could not be proved. The charge regarding demand of money/acceptance of money for releasing Shri Rajiv Bhola on 07/06/2003, snatching money from the cash box, snatching of mobile could not be proved.
Finding of the Disciplinary Authority:
Hence, charge regarding beating to Shri Rajeev Bhola and Shri Sanjeev Bhola against Const. Satish Kumar No. 1801/E and Const. Tejpal Singh No. 762/E, HC Chammo Khan No. 265/East and Const. Pritam Singh No. 1784/E stands substantiated without any doubt, but the same charge against HC Suresh Chand No. 256/E, who had arrested Shri Rajiv Bhola on 7-6-2003 Under Section 92-93-97 D.P. Act could not be proved. The rest of the charge could not be proved against any of the defaulter.
Actually the finding of the Disciplinary Authority is in tandem with the conclusion of the Enquiry Officer. The Disciplinary Authority has not specifically found Constable Satish Kumar guilty of beating the complainants on 07.06.2003.
18. We also find that there is substantial compliance by the respondents of the procedure for the disciplinary enquiry prescribed in the Delhi Police (Punishment & Appeal) Rules, 1980. We also do not find any glaring defect in the orders of the Disciplinary Authority and the Appellate Authority, which are well reasoned. We do not find any merit in the submission made by the applicant that his apology before the Appellate Authority was not an admission of the misconduct, since it was not reduced to writing. We are also satisfied with the explanation given by the respondents for not making the TIP Report a part of the departmental enquiry.
19. In this context, it may not be out of place to mention that over the years the Hon'ble Supreme Court has carefully defined the scope of judicial review in disciplinary matters, holding that, in these matters, the Tribunal's jurisdiction is akin to that of the High Court under Article 226. The Tribunal has no jurisdiction to go into the correctness or the truth of the charges. It also cannot take over the functions of the Disciplinary Authority. It cannot sit in appeal over the findings of the Disciplinary Authority and assume the role of the Appellate Authority. It cannot interfere with the findings of fact arrived at in the disciplinary proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no one acting reasonably and with objectivity could have arrived at or where a reasonable opportunity has not been given to the delinquent to defend himself or it is a case where there has been non-application of mind on the part of the Inquiring Authority or if the charges are vague or if the punishment imposed is shocking to the conscience of the court [Union of India and Anr. v. K.G. Soni 2006 SCCL.COM 571; State Bank of India and Ors. v. Ramesh Dinkar Punde 2006 SCCL.COM 569; State of U.P. and Ors. v. Raj Kishore Yadav and Anr. ; V. Ramana v. A.P. SRTC and Ors. ; Om Kumar and Ors. v. Union of India 2001 (2) SCC 386; R.S. Saini v. State of Punjab and Ors. ; Bank of India and Anr. v. Degala Suryanarayana 1999 SCC (L&S) 1036; Kuldeep Singh v. The Commissioner of Police and Ors. JT 1998 (8) SC 603; B.C. Chaturvedi v. Union of India and Ors. ; Transport Commissioner, Madras-5 v. A. Radha Krishna Moorthy ; Government of Tamil Nadu and Anr. v. A. Rajapandian and ; Union of India and Ors. v. Upendra Singh ; and The State of Orissa and Anr. v. Murlidhar Jena AIR 1963 (SC) 404].
20. Taking the totality of facts and circumstances of the case into consideration, we find that the applicant has not been able to establish any material defect in the disciplinary enquiry conducted against him. In the context of the scope of judicial review of disciplinary proceedings mentioned above, we do not consider it necessary to interfere with the orders of the respondents.
21. In the result, the OA is devoid of merit and is accordingly dismissed. There will be no order as to costs.