Central Administrative Tribunal - Delhi
Head Constable Ved Pal vs Govt. Of Nct Of Delhi Through on 3 June, 2011
Central Administrative Tribunal Principal Bench OA No.141/2008 New Delhi, this the 3rd day of June, 2011 Honble Mr. George Paracken, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Head Constable Ved Pal PIS No.28824307 R/o A-67/2, Temple Colony, Samai Pur, Delhi-43. . Applicant. (By Advocate : Shri Anil Singal) Versus 1. Govt. of NCT of Delhi through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Addl. C. P. (Security) Security Main Lines, Vinay Marg, New Delhi. 3. Sh. B. K. Mishra (DANIPS Group B) Then DCP (8th Bn. DAP) Through Commissioner of Police, PHQ, IP Estate, New Delhi. 4. D.C.P. (8th Bn. DAP) Through Commissioner of Police, PHQ, IP Estate, New Delhi. Respondents. (By Advocate : Shri Chandermani Bhardwaj for Mrs. Rashmi Chopra) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
By this OA, Head Constable Ved Pal, the Applicant herein working in Delhi Police, has assailed; (i) the order dated 12.01.2006 (Annexure-A1) by which a Departmental Enquiry (DE) was initiated against him; (ii) the Enquiry Report dated 15.07.2006 (Annexure-A2) in which the charge against him was held as proved; (iii) the order dated 20.02.2007 (Annexure-A3) in which he was inflicted the penalty of forfeiture of 2 years of approved service; and (iv) the Appellate Authoritys order dated 30.08.2007 (Annexure-A4) whereby his appeal was rejected. Impugning these orders, he has approached this Tribunal in this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the relief to quash and set aside those orders and to direct the Respondents to restore to the Applicant his original service and pay with all consequential benefits like arrear of pay, seniority and promotion.
2. The brief facts of the case which led him to file the OA are that the joint DE was ordered against ASI (Driver) Sultan Singh, HC (Exe.) Krishan Pal and the Applicant vide office order No.937-51/HAP-8th Bn. DAP dated 12.01.2006 on the allegation that on 18.07.2004 they had not extended police help to Sh. Roshan Ali Malik r/o K-77, Sunder Nagari, Delhi-93, and others against some anti social elements and pick pockets. The specific allegation against them was that while posted in North West Zone of PCR they were detailed for duty on PCR Van-MPV C-65 in Mangol Puri area from 8 p.m. to 8 a.m. on 18.07.2004 and were present at red light point of Mangol Puri at about 9 p.m. On the same evening, Sh. Roshan Ali Malik R/o K-77 Sunder Nagari, Delhi-93 along with his friends S/Shri Ombir Lahoria, Amit Lahoria & Jagdamba Prasad were returning from Paschim Vihar, Jawala heri Market to Sunder nagri. When they had reached red light Chowk, Mangol Puri at 9 p.m. a pick pocket picked `1000/- from his pocket and another pick pocket took away mobile phone from the pocket of Amit. These pick pockets were caught red handed at the spot by the complainant with the help of his friends. These pick pockets attacked them and ran away. At that time, the PCR Van No.300/99 (C-65) was standing near the place of occurrence but PCR staff including the Applicant did not come to their help. The Applicant was in charge (I/C) of the said PCR Van. When he was approached for help, he refused to help them and told them that the pick pockets were armed with deadly weapons. HC Krishan Pal (Gunman) and ASI (Dvr) Sultan Singh were also present on duty in the same PCR Van. They failed to inform the Control Room and Senior Officers about the incident immediately and as such they did not perform their lawful duty. Initially, the DE was entrusted to Inspr. Roshan Lal and subsequently, the DE was transferred to Sh. Shakti Singh. The Enquiry Officer (EO) served the summary of allegation, list of witnesses and list of relied upon document on the Applicant on 5.4.2006, and thereafter examined six PWs. On the basis of evidence collected from PWs, with the approval of the competent authority the charge was served upon the Applicant on 29.05.2006. He did not admit the charge and submitted his defence statement. He also produced two DWs in his defence. The contentions put forth by them were considered by the EO who concluded holding the charge as fully proved. Tentatively, agreeing with the EOs findings, the enquiry report was served upon the Applicant to submit his representation. The Applicant alongwith his co-defaulter submitted their reply/representation on 14.08.2006. They were also given personal hearing by the Disciplinary Authority on 20.02.2007, where he stated that a lady, Smt. Raj Kumari due to enimity had foisted the entire case against him. The Disciplinary Authority having gone through, statement of PWs and DWs, the findings of the Enquiry Officer, the defence statement of the Applicant including other evidence and exhibits on record held the charge against the Applicant as proved and awarded the punishment of forfeiture of two years of approved service with cumulative effect, entailing proportionate reduction in his pay vide order dated 20.02.2007. Being aggrieved, the Applicant filed an appeal against the said order to the Appellate Authority who on examination of all the points, rejected the appeal vide order No.261-62/A.Cell/Addl.C.P. Security dated 30.08.2007. Therefore, after exhausting all departmental remedies the Applicant has come to the Tribunal in the present OA.
3. Shri Anil Singal, the learned Counsel for the Applicant submits that the Applicant was appointed by an IPS Officer but the DE was initiated and penalty was imposed by Shri B. K. Mishra, DCP, a DANIPS Officer. The Disciplinary Authority was not an IPS Officer on 20.02.2007 when final order of punishment was passed. In support of this contention, he drew our attention to the OM dated 7.08.1959 to state that punishment order passed by a lower authority/functioning is void and liable to be quashed. He also placed his reliance on the judgment of this Tribunal in the matters of Suresh Kumar versus Commissioner of Police and Others [OA No.1818/2001 decided on 18.02.2002] and Ex. Constable Subhash Versus LG of Delhi and Others [OA No.102/2006 decided on 15.02.2007].
4. Referring to Rule 16 (1) of Delhi Police (Punishment and Appeal) Rules, Shri Singal contends that though a Preliminary Enquiry (PE) was conducted by Vigilance/PCR, the Applicant was not provided with a copy of the PE Report and the statements of witness examined in the PE. He hastened to add that it was reliably learned that no allegation could be proved in the PE. He contends that no disciplinary proceeding can be initiated against the Applicant when the allegations have not been proved in PE as held by this Tribunal in the case of Rajesh Kumar versus Government of NCT of Delhi [OA No.2546/2003 decided on 18.12.2003]. Thus, he contends that non supply of PE Report has vitiated the DE. It was stated that the Applicant requested EO to give him the PE Report but he was denied as the PE Report was not a relied on document by the prosecution. He, therefore, contends that non supply of the PE Report has greatly prejudiced the Applicant as he was deprived of reasonable opportunity to cross examine the PWs effectively and defend himself in the DE.
5. It is contended by Shri Singal that the DE has been vitiated as the Respondents have taken 2 sets of statement and he has been provided with one set of statements of Roshan Ali Malik, Jagadamba Prasad and Ombir Singh Lahoria not the 2nd set of statement. Further, he has not received the statement of Amit Lahoria along with summery of allegations. It is stated that as per the Standing Order (SO) No.125 dated 24.07.2001, the Applicant was entitled to get the Statements of Witnesses at least 3 days before their examination, which was not complied with by the concerned authorities. Another contention was that the EO and Respondents did not take into account the evidence of DWs and did not undertake proper analysis of evidence of PWs and DWs. The Respondents have already prejudged the issue even in issuing the DE order. Further, it was submitted that the material witnesses (SHO Mangol Puri and SI Sanjay Gaur) were not examined in the DE, as a result he lost the opportunity to cross examine them. Shri Singal further submits that as no FIR has been lodged on the complaints, it must be construed that no such incident ever took place. The absence of any such FIR would show that the higher authorities were of the opinion that there was no truth in the allegations made by the complainant. Referring to the Annexure-A9 of the Rejoinder filed by the Applicant, Shri Singal would submit that though the alleged incident took place on 18.07.2004, the alleged FIR No.576/2004 was only registered on 25.09.2004.
6. The Respondents through their reply affidavits on 29.04.2008 and 16.05.2011 have controverted the grounds raised by the Applicant. Shri Chandermani Bhardwaj appearing on behalf of Mrs. Rashmi Chopra, learned Counsel for the Respondents opposing the contentions advanced by Shri Anil Singal, submits that the main duty of the Applicant is to help the complainant and his friends immediately instead of shirking his responsibility by stating that the pick pockets were armed with deadly weapons. Due to Applicants negligence the pick pockets got opportunity to flee from the spot. To say that Applicant cannot move from their duty point without directions of CPCR, is plain and simple refusal to help the needy during the night hours.
7. Shri Bhardwaj would contend that there was a local enquiry on the complaint dated 23.07.2004 by Vigilance Branches of PCR and no PE was conducted. Hence, the initiation of DE, he submits, is not on the basis of PE. There was only one set of statements recorded by the EO and the same were supplied to the Applicant. He disputed the very existence of the 2nd set of statements. Hence, Shri Bhardwaj would contend that there was no possibility of listing PE Report less to speak of supplying the same to the Applicant.
8. Referring to the Applicants allegation that there was no FIR, he drew our attention to the Rejoinder filed by the Applicant which not only admitted the fact of FIR but also enclosed a copy of the FIR. His contention is that even if the FIR registration has been delayed, the same cannot be reason in support of the Applicant.
9. Shri Chandramani Bahrdwaj, learned counsel for Respondents would submit that the Disciplinary Authority and Appointing Authority in case of the Applicant is Deputy Commissioner of Police. It is immaterial whether the Appointing Authority belong to Indian Police Service and Disciplinary Authority did not belong to Indian Police Service, as both IPS and Danip Officers can hold the post of Deputy Commissioner of Police. Drawing our attention to Clause 4(1) of Delhi Police (Appointment and Recruitment) Rules, 1980, he submits that DCP is the Competent Authority to appoint the subordinate ranks of Delhi Police such as Sub-Inspectors, Head Constables and Constables and as such it is the Deputy Commissioner of Police who has acted as Disciplinary Authority in the case of the Applicant who is in the rank of Head Constable. In view of above contention, Shri Bhardwad submits that the Disciplinary Authority in the present case is Competent Authority, as per the Rule 6 of Delhi Police (Punishment and Appeal) Rules,1980.
10. It is contended that it was the prime duty of the Applicant to render assistance to the complainant and his friends immediately on receipt of a request about the said pick pockets taking place nearer to the place where the PCR Van was standing. Instead of assisting the complainant, the Applicant took shelter from his responsibility by saying that pick pockets are all with deadly weapons. His contention is that had the Applicant acted promptly, the pick pockets would have been arrested even right at the spot. It is his negligence by which the pick pockets got an opportunity to flee from the place. As such the refusal of the Applicant to help the needy, he defeated the very purpose of a posting of PCR Staff.
11. Refuting the contentions of Shri Singhal that Applicant was not supplied with the Preliminary Enquiry Report, Shri Bhardwaj would submit that no such Preliminary Enquiry was ordered nor there was any Preliminary Enquiry Report, as such there was no need to even list the PA report in the list of documents alongwith the charge memo, less to speak out giving a copy of the same to the Applicant, he only submits that there was a local enquiry made on the complaint dated 23.07.2004 by Vigilance Branch of the PCR and the said local enquiry is not the Preliminary Enquiry. He submits that the Departmental Enquiry was initiated against the Applicant and other staff on the basis of the complaint received from complainant dated 23.07.2004. He further adds that, as per their records, each and every statement recorded during the course of Departmental Enquiry was given to the Applicant against proper acknowledgement by the EO. In case the Applicant was in need of other documents, he was at liberty to request the EO in writing. He did not do so in the DE but at this stage such plea that he was not given other documents is not admissible as per law. He further submits that the EO took into account the evidence that has been received during the Enquiry from the PWs and DWs and has properly recorded his findings holding the charge as proved. In the present case the Disciplinary Authority after receiving response of the Applicant got agreed with the EOs finding and imposed the penalty of forfeiture of two years of approved service. The appeal of the Applicant was also decided by the Appellate Authority on 30.08.2007 whereby his appeal was rejected. His submission is that all the Authorities concerned followed the principles of natural justice and the punishment imposed on the Applicant is proportionate to the proved mis-conduct. The counsel for Respondents relied on the judgment of Honble Supreme Court in the case of Ram Kishan Vs. UOI & Ors. (1995-6-SCC-157) and the judgment of this Tribunal in the case of Jai Kishan Vs. Commissioner of Police and Others (OA No.1614.2001 decided on 30.01.2002). In view of above, he submits that the OA is a fit case to be dismissed.
12. We have carefully considered the contentions of the rival parties and with the help of their counsels, we perused the pleadings as well.
13. The main controversy raised in this OA is that Incompetent Authority has inflicted the penalty on the Applicant. The counsel for Applicant very labouriously argued his case to say that the OA should be allowed mainly on this ground that Appointing Authority in case of the Applicant was IPS Officer, whereas the Disciplinary Authority was DANIPS Officer. He terms the Disciplinary Authority lower functionary being DANIPS Officer than the Appointing Authority, an IPS Officer. In this context, it is appropriate for us to take the extract of Clause 4(1) of Delhi Police (Appointment and Recruitment) Rules, 1980 and Rule 6 of Delhi Police (Punishment and Appeal ) Rules, 1980 in order to determine this controversy. The said Rules read as follows :-
I Clause-4:- General (i) Appointing Authorities : The following authorities shall be competent to make appointments to various subordinate ranks of Delhi Police :-
Class of police officers Authority of whom the power of appointment is delegated The extent of delegation
(i) Inspector Addl. CP Full Powers subject to the rules framed thereunder
(ii) S.I. (i) DCP
(ii) Add. DCP
(iii) Principal/PTS
(iv) Any other officer of equivalent rank.
-DO-
(iii) ASI -DO- -DO- (iv) HC -DO- -DO- (v) Constable -DO- -DO-
II Rule 6. Classification of punishment and authorities competent to award them- (1) Punishments mentioned at Serial Nos.(i) to (vii) above shall be deemed major punishment and may be awarded by an officer of the rank of the appointing authority or above after a regular departmental enquiry.
14. In view of this statutory Rule position, it is crystal clear that Deputy Commissioner of Police/Additional Deputy Commissioner of Police/ Principal PTS and any other officer of equivalent rank is the Appointing Authority for Head Constable. The Applicant being Head Constable at the crucial time when the disciplinary case was initiated against him and decided, Deputy Commissioner of Police was the Appointing Authority for him. So far as, the Disciplinary Authority to impose punishment in Sl. No.1 to 7 under the Delhi Police (Punishment and Appeal) Rules, 1980, the Rule 6 is very clear that the delinquent officer can be imposed the penalty by an officer of the rank of Appointing Authority or above after regular DE. In the present case, it is noted that Shri B.K. Mishra, Deputy Commissioner of Police, 8th Bn. DAP ; Delhi has imposed penalty of forfeiture of two years of approved service with cumulative effect entailing proportionate reduction in his pay vide his order dated 20.02.2007. The Disciplinary Authority is not lower in rank but equal in rank with the Appointing Authority. Source of recruitment and service to which they belong do not establish any seniority-juniority. It is the post held by the officer concerned which determines whether he is competent or not. For the above reasons, we come to the considered conclusion that Competent Authority has passed the penalty order in the disciplinary case against the Applicant. In this context the judgments relied on by the counsel for the Applicant in the matters of Suresh Kumars case (supra) and Ex. Constable Subhashs case (supra) do not come to his help.
15. Another principal issue that was raised relates to the non-supply of Preliminary Enquiry Report to the Applicant alleging that the whole disciplinary proceeding has been vitiated by the above. Associated issues to this point is the non-supply of 2nd set of statements of the persons examined in the PE. The close scrutiny of the pleadings disclosed that there was no Preliminary Enquiry but there was a local enquiry conducted by the Vigilance/PCR. As per the Delhi Police (Punishment and Appeal) Rules, the Preliminary Enquiry needs to be ordered as per the Rules. In the present case the Applicant has not been in a position to demonstrate as to when the Preliminary Enquiry was ordered and conducted by whom. Further, the allegations issued to him and the charge memo issued by the Competent Authority later on did not list such Preliminary Enquiry Report in support of the prosecution. Further, neither the Enquiry Officer nor the Disciplinary and Appellate Authorities have relied on any such report in their findings against the Applicant. Thus, the contention that Applicant was not supplied with PE report and 2nd set of statement of person does not hold ground and is, therefore, rejected.
16. It has been contended that the statement of PWs and DWs had not been carefully examined by the EO was not true. The EO examined the statement of PW-1, 2 and 6 who have clearly stated that instead of helping the victims, the Applicant scared them by his irresponsible statement that the pick pockets were armed with deadly weapons. Without going to the incident spot, how did he know that the pick pockets had deadly weapons. The PCR Van had a Gunman at that point of time. It is seen from the evidence that the Applicant was reluctant to help them. There is no need for any independent witness to prove the point. The EO has also analyzed the evidence on record as to why the statements of DWs cannot be accepted. The Enquiry Officer has rightly pointed out that it is the duty and responsibility of the staff on the PCR Van to take action immediately against such incidents and at the same time inform the Control Room about the facts to get police reinforcement as per the situation. The grounds of Applicant is totally unacceptable. We have gone through the stand taken by him in his submissions during the oral hearing which revealed that the entire case was engineered by Smt. Raj Kumari due to her enmity with him. We note that this ground was totally irrelevant in the absence of any evidence and there was no link between the parties concerned.
17. The Enquiry Officer conducting the enquiry has very clearly found that the Applicant alongwith his colleagues was present in the PCR Van nearer to the scene of incident. He was also having Gunman with him in the PCR Van to ensure that the Picket Pockets could be arrested but saying that the Pick Pockets were armed with deadly weapons, he did not attempt even to help the complainant and others. This is dereliction of duty and the code of conduct prescribed for the police man has not been adhered to by the Applicant. The Enquiry Officer holding the charge as proved cannot be faulted by the Applicant in the OA.
18. It is noticed that the FIR has been registered on the complaint. Belated registration of FIR does not in any manner affects the disciplinary case against the Applicant.
19. At this stage, we may refer to the code of conduct, Delhi Police are duty bound to follow. The PCR Vans with Police staff stand in a place as friends of Public to be very prompt and to attend to the needs of the public. The Applicant in the present OA was incharge HC of the team in the PCR Van. He should have attended to the request of the complainant. But he did not on a ground on which he had no knowledge. It would be appropriate for us to cite the relevant paragraphs of the Code of Conduct meant for Policeman which read as follows :-
5. The primary duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.
The first needs no reiteration. The efficiency of the police does not lie in the instentatiousness with which any work is done, or the show of police power, but in being able to strike at the root and prevent the occasions which necessitate the use of police power. It is erroneously held that good detection alone constitutes good work. But far batter than detention is prevention.
6. The police must recognize that they are members of the public, with the only difference that in the interest of the community and on its behalf they are employed to give full time attention to duties which are normally incumbent on every citizen to perform.
7. The police should realize that the efficient performance of their duties will be dependent on the extent of ready co-operation they receive from the public. Thus is turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence. The extent to which they succeed in obtaining public co-operation will diminish proportionately the necessity of the use of physical force or compulsion in the discharge of their functions.
8. The police should be sympathetic and considerate to all people and should be constantly mindful of their welfare. They should always be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth or social standing.
Apart from doing their duty as law enforcement officers the police must be helpful to the public on all occasions and consider this to be as much their duty as it to enforce a particular law. The assistance should be given to all without making any discrimination between poor and rich. These have been reproduced here to remind the Policemen on duty what they should promptly attend to as friends of people.
20. Considering the above facts and circumstances of the case, and for the reasons given within along with our analysis, we are of the considered opinion that the Applicant has not made out a case in his support calling for our interference. Resultantly, the OA is liable to be dismissed and we order accordingly. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (George Paracken)
Member (A) Member (J)
/rk/