Central Administrative Tribunal - Delhi
Dharambir Singh vs Comm. Of Police on 22 April, 2016
1 OA No.1526/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No. 1526/2013
Reserved On:08.04.2016
Pronounced on:22.04.2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. K. N. Shrivastava, Member (A)
ASI Dharambir Singh, Age 54 years,
PIS No.28790315
S/o Shri Chand
E-218-19, Gandhi Vihar,
Near Mukherjee Nagar,
Delhi-9. .. Applicant
(Argued by: Shri Sachin Chauhan)
Versus
1. Govt. of NCTD through
The Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
2. The Additional Commissioner of Police,
PCR,
Through Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
3. The Addl. Commissioner of Police (GA),
PCR,
Through Commissioner of Police,
PHQ, I.P. Estate,
New Delhi. ..Respondents
(By Advocate: Shri K.M. Singh)
ORDER
Justice M.S. Sullar, Member (J) Applicant, Assistant Sub Inspector (ASI), Dharambir Singh, has directed the instant Original Application (OA), challenging the impugned punishment order dated 2 OA No.1526/2013 08.12.2011 (Annexure A-I) by virtue of which a penalty of forfeiture of one year approved service temporarily in the time scale of pay with immediate effect was imposed by the Disciplinary Authority. He has also assailed the impugned order dated 05.03.2013 (Annexure A-IA) whereby his departmental appeal was dismissed by the Appellate Authortiy.
2. The contour of the facts and material, exposited from the record, relevant for deciding the core controversy involved in the instant OA and emanating from the record is that the applicant was enrolled as Constable in Delhi Police on 01.07.1979. He was promoted to the rank of ASI on 01.04.1989. During the course of his employment, the applicant had advanced a loan of Rs.1,00, 000/- on interest at the rate of 5% per month to Shri Kishan Lal and retained the documents of his property. The amount of Rs.2,00,000 (one lakh principal and one lakh interest) was stated to have already been paid to him (applicant) by the loanee. Shri Kishan Lal asked the applicant to return the documents of his property but he refused to do so. On 29.05.2005 applicant and his other co-accused were stated to have trespassed the house, caused injuries and outraged the modesty of complainant Smt. Sharda Devi W/o Shri Kishan Lal (loanee).
3 OA No.1526/2013
3. Thereafter, in the wake of complaint of complainant Smt. Sharda Devi W/o Kishan Lal, a criminal case was registered against the applicant and his other co-accused vide FIR No.260 dated 29.05.2005 on accusation of having committed the offences punishable under Sections 452, 354, 323, 34 IPC by the police of Police Station, Timarpur, Delhi.
4. Sequelly, departmental enquiry was also initiated under Delhi Police (Punishment and Appeal) Rules, 1980 [hereinafter referred to as "D.P. Rules"] and charged-sheet was served on the applicant in respect of the pointed misconduct. He filed reply to the charge sheet dated 11.07.2011 (Annexure A-3). He has also filed representation dated 22.11.2011 (Annexure A-4) to drop the departmental proceedings which were found to be unsatisfactory.
5. Taking into consideration the report of the EO, evidence and totality of other relatable factors, the indicated penalty was imposed on the applicant by the Disciplinary Authority vide impugned order dated 08.12.2011 (Annexure A-I) and his appeal was also dismissed by the Appellate Authority vide impugned order dated 05.03.2013 (Annexure A-IA).
6. Aggrieved thereby, the applicant has challenged the impugned orders in this OA invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985. 4 OA No.1526/2013
7. The case set-up by the applicant, in brief, insofar as relevant in the pleading is that the EO has wrongly placed reliance on interested prosecution witnesses ignoring their cross-examination which has caused great prejudice to his case. Not only that the EO has just ignored the unchallenged statements of defence witnesses No.1 and 2. Even the EO has not put any clarificatory question to them to discard their testimony which amounts to violation of the principles of natural justice. According to the applicant, no full opportunity to further cross-examine the witness and of being heard was provided to him and the procedure adopted by the EO was against Rule 16(ix) of D.P. Rules. The enquiry report, impugned punishment and appellate authority orders were termed to be illegal, result of non-application of mind, arbitrary and against the principles of natural justice. The defence evidence was not considered by the authorities which vitiate the enquiry proceedings and as such the impugned orders passed on such report are illegal. On the basis of the aforesaid allegations, the applicant has sought quashing of the impugned disciplinary proceedings and orders in the manner indicated hereinabove.
8. The contesting respondents refuted the allegations contained in the OA and filed the reply wherein it is reiterated that the EO has adopted due procedure of enquiry under the rules and on the basis of the evidence, came to the conclusion 5 OA No.1526/2013 that charges attributed to the applicant stand proved on record. Thereafter, tentatively agreeing with the findings of the EO, a show cause notice along with the copy of report of EO was served upon him vide letter dated 11.11.2011 against a valid receipt. He submitted his written representation. The Disciplinary Authority had carefully gone through the submissions, evidence of PWs, DWs, relevant documents and other materials brought on record while deciding to impose the punishment of forfeiture of one year approved service temporarily for a period of one year. His period of suspension with effect from 30.05.2005 to 04.02.2007 was also held as period "not spent on duty". The appeal filed by him was rightly dismissed by the Appellate Authority.
9. Virtually reiterating the validity of the impugned orders, it was pleaded that the enquiry was conducted in accordance with the D.P. Rules. The principles of natural justice were duly observed and proper opportunities were granted to the applicant at different stages of the enquiry by the Disciplinary Authority. It will not be out of place to mention that the contesting respondents have stoutly denied all other allegations contained in the OA and prayed for its dismissal.
10. Controverting the pleadings in the reply and reiterating the grounds contained in the OA, the applicant has filed the rejoinder. Along with the rejoinder, he has also placed on record a copy of the judgment dated 13.08.2013 of the 6 OA No.1526/2013 Hon'ble High Court of Delhi rendered in Crl.M.C. No.3128/2013 titled Dharambir Dahiya and Others Vs. State and Another (Annexure R-1) whereby the FIR in question was quashed on the basis of compromise/settlement between the parties. That is how we are seized of the matter.
11. After hearing the learned counsel for the parties, going through the record with their valuable assistance and considering the entire matter deeply, we are of the firm view that there is no merit in the instant OA.
12. As is evident from the record that having completed all the codal formalities, the Disciplinary Authority passed the detailed impugned order (Annexure A-I) in the following manner:-
"ORDER This is the final order in the departmental enquiry initiated against ASI(Dvr.) Dhrambir Singh, No. 4178/D (PIS No. 28790315) (here-in-after called the delinquents), under the provisions of Delhi Police (Punishment & Appeal Rules, 1980 vide this office order No. 7505-39/HAP/P-II/PCR dated 10.03.2011, on the allegations that on receiving a PCR call vide DD No. 27-B dated 29.5.2005 regarding quarrel at E-21, Gandhi Vihar, a case FIR No. 260/05 u/s 452/354/323/34-IPC PS Timarpur, Delhi was registered on the complaint of Smt. Sharda Devi w/o Kishan Lal r/o E-21, Gandhi Vihar, Timar Pur, Delhi. The complainant Sharda Devi alleged that her husband Kishan Lal bought a plot No. E-21, Gandhi Vihar in 1988 from one Smt. Lajwanti in Rs. 21,000/-. Ground floor and first floor have been constructed by them on it. Due to some necessity of money, her husband Kishan Lal took Rs.1,00,000/- as loan from ASI (Dvr.) Dharambir Singh Dahiya, No.4178/D r/o E-218-219, Gandhi Vihar on the rate of interest 5% per month in 1999. At that time, he mortgage the document on his property i.e. E-21, Gandhi Vihar to Shri Dharambir Dahiya and signed some blank document. In 2003, they paid the whole loan as a total amount of Rs.200,000/- to Dharambir Dahiya and asked him to return these documents (sic), but he refused to do so. On 29.05.2005 at about 2.30 P.M., Dharambir Dahiya and his sons namely Pradeep and Amit forcibly entered into her house and they 7 OA No.1526/2013 molested her and her daughter Sulekha by teering the suit from front side. After that Smt. Krishna Devi W/o Dharambir Dahiya and Ranjita W/o Pradeep Dahiya also came (sic) there and all of them gave them beatings in the gali with kick and punches. Dharambir Dahiya made assault with iron rod to Shardha Devi and Surender Singh. After recording her statement, all injured were medically examined at AAA Govt. Hospital and a case was registered. Later on, as per MLC's the nature of injuries were "Simple Blunt". During investigation accused Dharambir Dahiya and Krishna Devi were arrested and sent to J/C. Later on, they were released on court bail. Accused Pradeep, Amit and Ranjita got anticipatory bail from session judge. For this misconduct, ASI(Dvr.) Dharambir Singh, No. 4178/D was placed under suspension vide order No. 13766-800/HAP(P-IV)/PCR, dated 5-8- 2005. Lateron, he was re-instated from suspension vide order No. 1938-1972/HAP/P-II/PCR, dated 5-2-2007 without prejudice to criminal/departmental action pending against him.
The departmental enquiry was entrusted to Shri Babu Lal, ACP/NR/PCR, Delhi for conducting the same on day-to-day basis and submitting his findings. The Enquiry Officer completed the DE proceedings after observing all usual formalities and submitted his findings concluding therein that the statement of PWs, prove beyond doubt that ASI (Dvr.) Dharambir Singh, No. 4178/D was very much present at the spot, forcibly entered in the house of complainant of case FIR No. 260/05 and molested complainant and her daughter. The analysis of evidence available on file in the form of record and statements, proves that ASI (Dvr.) Dharambir Singh involved in criminal act and legally arrested in case FIR No. 260/05 PS Timar Pur. The act and conduct of delinquent were against the ethics of a disciplined force and against basis tenet of discipline.
Tentatively, agreeing with the findings of the E.O, a copy of findings served upon the delinquent ASI(Dvr.) vide this office U.O. No. 28641/HAP/P-II/PCR, dated 11-11- against his proper receipt with the direction to make a representation/submission in writing to the disciplinary authority within 15 days from the date of its receipt, failing which it would be presumed that he has nothing to say in his defence and a decision would be taken on merits. Further, he was also called upon to show cause as to why his suspension period from 30-5-2005 to 4-2-2007 should not be decided as period not spent on duty for all intents and purposes. He received the same and submitted his written representation.
In his written representation, he mainly pleaded that:-
1. The EO has not considering his defence and drawn wrong conclusion.
2. The prosecution has not able to prove the charges against him.
The plea No. 1 putforth by the delinquent is baseless and incorrect. As per the DWs produced by ASI (Dvr.) Dharambir 8 OA No.1526/2013 Singh in his defence as eye witness to the incident witnessed that tenant Kishan Lal had broken open the ground floor of E-21 and had thrown out the luggage of Pradeep Kumar. DW-2 Ghanshyam informed Pradeep Kumar about the act of his tenants and after few minutes he arrived there. The delinquent ASI arrived at spot after 10-15 minutes. Pradeep Kumar and his father had not committed any act of assault, but as per the statement of PW-1 Sharda Devi, PW-4 Surender Singh and PW-5 Smt. Sulekha, delinquent ASI his son Pradeep Kumar and other family member forcibly entered in house and started given beating them mercilessly. Both the DWs produced by the delinquent are not residing near to the house of E-21 Gandhi Vihar but are resident of 215-216, 210-211 Gandhi Vihar respectively, i.e, near the house of delinquent ASI. Both DWs are planted and do not speak the truth. They failed to reveal the cause how injured sustained injuries and who caused injuries to them.
The plea No. 2 putforth by the delinquent is baseless and incorrect. Apart from the settlement of complainant party, the deposition of I.O. of the case SI Rajesh Sharma, PW-8 corroborated the version of prosecution that on the basis of sufficient evidence on record and statement of public witness he arrested the family member of delinquent ASI, who already have anticipatory bail from the Court. He had not collected any evidence about ownership of E-21 Gandhi Vihar. That no such point came to his notice that Kishan Lal had obtained a sum of Rs. 1 Lakh and paid back Rs. 2 Lakh to delinquent ASI during the course of investigation. He clarified that property E-21 Gandhi Vihar belong to Pradeep Kumar, no such evidence came to notice that Kishan Lal manufactured a false story to grab plot No. E-21 Gandhi Vihar.
I have carefully gone through the DE file, statements of PWs, charge, and other relevant papers available on file/record. I have also gone through the findings of the E.O. I agree with the finding of E.O. as most of the averments of the delinquent is hovering around plus/minus of the property dispute between both the parties, hence cannot be relied upon totally for the DE, wherein his misconduct is under probe and quantum of lapse as part of his disciplined output in society has to be judged. However, at the same time, his service record of 33 years is also to be seen and he is to retire shortly.
Therefore, taking a middle path, to deter the delinquent and his family not to misuse police authority/power to settle personal disputes, I, Dheeraj Kumar, Addl. Dy. Commissioner of Police (GA), PCR, Delhi hereby award punishment of forfeiture of one year approved service temporarily for a period of one year in the time scale of pay to ASI (Dvr.) Dharambir Singh, No. 4178/D with immediate effect, entailing proportionate reduction in his pay from Rs. 16,700/- PM (including grade pay) to Rs. 16,210/- PM (including grade pay), which in my view will met ends of justice. 9 OA No.1526/2013
His suspension period from 30-5-2005 to 4-2-2007 is also decided as period Not spent on duty for all intents and purposes. Let a copy of this order be given to ASI (Dvr.) Dharambir Singh, No. 4178/D, free of cost. He can file and appeal to the Addl. CP/PCR, Delhi against this order within 30 days of its receipt by enclosing a copy of this order, if he so desires Sd/-03/12/2011 D.121211-177-0001 (DHEERAJ KUMAR) ADDL.DY.COMMISSIONER OF POLICE (GA) SIP/OB POLICE CONTROL ROOM: DELHI No.30911-945/HAP/P-II/PCR dated Delhi, the 08.12.2011".
13. The punishment order has been upheld by the Appellate Authority by impugned Annexure A-1A order.
14. Ex-facie, the arguments of the learned counsel that since the authorities have wrongly placed reliance on interested prosecution witnesses by ignoring their cross- examination and that unchallenged statements of Defence Witnesses were not considered and hence the impugned disciplinary proceedings and orders are liable to be set aside, are neither tenable nor the observations of the Hon'ble High Court of Delhi in case of GNCT of Delhi and Others Vs. ASI Rambir Singh and Another W.P. © 7680/2010 decided on 18.12.2012, (relied on behalf of the applicant) are at all applicable to the facts of the present case wherein the defaulters produced DW-I (Dinesh Kumar Tomar) who had stated that the motorcycle belonged to him and that he had parked it on the Ghziabad border and that the sum of Rs.6350/- was kept in the motorcycle was his. He was not cross-examined by the prosecution. So on the peculiar facts 10 OA No.1526/2013 and in the special circumstances of that case, it was observed that there is no alternative but to accept the same and Writ Petition filed by GCNT of Delhi and Others was dismissed by Delhi High Court.
15. Similarly, in the case of U.O.I. and Others Vs. G. Krishna 2005(3) ATJ 359, the Andhra Pradesh High Court has held that while appreciating the evidence, the entire legal evidence has to be considered and if the finding is recorded without there being any evidence, such a finding cannot be sustained.
16. There can hardly be any dispute with regard to the indicated observations but the same would not come to the rescue of the applicant. In the instant case, the EO has appreciated the evidence of the parties in the right perspective and discussed the evidence in detail. He has considered the cross-examination of the prosecution witnesses and came to the definite conclusion that the questions put to them (PWs) in cross-examination are not directly relatable to the subject matter of the charges.
17. As regards the statement of DW-1 Smt. Seema and DW- 2 Ghanshyam Sehgal are concerned, EO has categorically recorded the findings that both the DWs produced by the delinquent are not residing near the house of delinquent. Both the DWs are planted and do not speak the truth. They 11 OA No.1526/2013 failed to reveal the cause as to how injured sustained injuries and who caused the injuries to them.
18. Moreover, it is now well settled principle of law that one line here and there in cross-examination of witnesses which is irrelevant and foreign to the crux of the charge, ipso facto, is not sufficient to ignore the entire cogent evidence produced on record by the prosecution. Above all, neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedings.
19. The Hon'ble Apex Court while considering the jurisdiction of judicial review and rule of evidence in the case of B.C. Chaturvedi Vs. U.O.I. & Others AIR 1996 SC 484 has ruled as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is 12 OA No.1526/2013 based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
20. The learned counsel has also pointed certain insignificant contradictions in the statement of the prosecution witnesses which are not sufficient to discard the cogent evidence of the department. Moreover, the jurisdiction of this Tribunal to interfere with disciplinary matters or punishment awarded in DE proceedings cannot be equated with appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authorities as to whether they are arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice, the Tribunal has no power to substitute its own discretion for that of the authority. 13 OA No.1526/2013
21. Therefore, if the epitome of the evidence produced by the parties during the enquiry is put together, then conclusion is inescapable that charges framed against the delinquent stand proved during the course of enquiry.
22. Likewise, the next argument of the learned counsel that applicant was departmentally punished for the same charges which were subject matter of criminal case and as Hon'ble High Court of Delhi has quashed the FIR in question on the basis of settlement between the parties, therefore, the impugned orders deserve to be set aside in view of Rule 12 of D.P. Rules, is not only devoid of merit but misplaced as well. Rule 12 postulates that when a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge on the evidence cited in a criminal case, whether actually, led or not, unless criminal charge has failed on technical ground or in the opinion of the Court, or the Deputy Commissioner of Police, the prosecution witnesses have been won over, or the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned or evidence cited in the criminal case discloses facts unconnected with the charge in the court which justifies departmental proceedings on a different charge or additional evidence for departmental proceedings is available. 14 OA No.1526/2013
23. A plain and meaningful reading of Rule 12 would reveal that a police officer is entitled to protection under Rule 12 only in case he has been tried and honourably acquitted by the criminal courts & other indicated conditions are fulfilled and not otherwise. A bare perusal of the order dated 13th August, 2013 rendered in Crl.M.C. No.3128/2013 of Hon'ble High Court of Delhi (Annexure R-1) would reveal that the settlement between accused (applicant) and others was arrived at as they entered into a compromise deed dated 30.07.2013. On the basis of settlement and compromise deed, the FIR in question, was conditionally quashed subject to payment of a cost of Rs.25,000/- to be paid by the petitioners (therein). Therefore, it cannot possibly be saith that quashing of FIR on the basis of settlement/compromise deed on payment of Rs.25,000/- as cost would amount to trial and acquittal (emphasis supplied) by the criminal court so as to attract the provisions of Rule 12 of D.P. Rules ibid as urged on behalf of the applicant. On the contrary, by way of settlement and entering into the compromise deed, the allegations of prosecution version would be deemed to have been admitted by the applicant and his other co-accused. Consequently, Rule 12 of D.P. Rules is not at all applicable and would not come to the rescue of the applicant in the present case.
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24. Finally, the Disciplinary Authority has recorded cogent reasons dealing with the relevant evidence of the parties, provided adequate opportunities at appropriate stages to the applicant. Thereafter, we hold that both the Disciplinary as well as Appellate Authority have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. As such, no interference is warranted by this Tribunal in the obtaining circumstances of the case.
25. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
26. In the light of the aforesaid reason, we find that there is no merit in the OA and it deserves to be and is hereby dismissed, as such. No costs.
(K.N. SHRIVASTAVA) (JUSTICE M.S. SULLAR) MEMBER (A) MEMBER (J) Rakesh