Central Administrative Tribunal - Delhi
H.C. Azad Kumar, S/O Shri Kartar Singh vs Union Of India (Uoi), Through Its ... on 7 March, 2007
ORDER Shanker Raju, Member (J)
1. An order passed in the disciplinary enquiry (DE) on 27.3.2004 inflicted upon applicant, a Head Constable in Delhi Police, a major penalty of permanent forfeiture of four year's approved service permanently entailing reduction in pay and treatment of suspension period as not spent on duty as well as an order passed on 27.7.2004 by the appellate authority, upholding the punishment, are being assailed.
2. A brief factual matrix transpires that pending enquiry applicant was placed under suspension on 19.4.200, which was revoked on 21.6.2001. On a DE summary of allegations issued alleges misconduct against applicant insofar as his role of involvement in the criminal activities and disobedience of the lawful orders by not joining the investigation despite a notice has been served under Section 160 of Cr. PC upon him by the investigating officer, which had jeopardized the case and as a result thereof hidden story could not have come out. In the DE, 5 DWs were examined, including Inquiry Officer, Sub Inspector P.C. Yadav, who clearly stated that copy of the notice sent during the investigation of the case calling upon applicant to join investigation though acknowledged by him, has not been complied with.
3. PW-4 Constable Harish Chand has produced DD entries but failed to substantiate any DD entries where there has been a reference to information to applicant. A charge framed was defended by production of 4 DWs. Inspector Bahadur Singh who deposed that on 22.3.2001 applicant reached in the office to apprise the DCP about the facts of incident, who, in turn, asked him to produce applicant before the special staff. On being produced therein two witnesses had reported. After discussion of evidence, the following conclusion has been arrived at:
In view of the above discussion the charge of sale of Plot of 147 F, Village Kishan Garh, New Delhi by HC Azad Kumar's father Sh. Kartar Singh to captain Jai Parkash Dagar on the basis of forged papers was not proved.
It was proved that on 21.3.2001 an information was received at P.S. Vasant Kunj regarding the incident of firing at Plot No. 147 F, Village Kishan Garh, New Delhi vide D.D. No. 18 A dated 21.3.2001 in which one Trilok Singh was fired at by Vijay Pehlwan and his associates who had escaped in an Indica Car after firing at Tirlok Singh with the intention to kill him as he was the eyewitness/complainant in case FIR No. 408/2001 Under Section 302/307 IPC and 25/27/54/59 Arms Act, P.S. Vasant Kunj against Vijay and his family members. At the time of incident HC Azad Kumar and his cousin Sikandar were also present on the spot. There was some hidden story which could have been solved through interrogation as the role of HC Azad Kumar was found to be quite suspicious. Presence of HC Azad Kumar No. 1041/PCR and his cousin Sikandar at the time of incident has been proved who failed to justify their presence during the investigation of case No. 120/2001 Under Section 307/34 IPC and 25/27/54/59 Arms Act, P.S. Vasant Kunj, New Delhi by not joining the investigation of the case despite service of Notice Under Section 160 Cr. PC and lodging of reports in DD entry Register. He has not justified his presence and presence of his cousin Sikandar on the spot even during the conducting of D.E. proceedings. In his defence statement too he has not given any reason for his presence at Plot No. 147 F, Kishan Garh, New Delhi on 21.3.2001 at about 10.30 AM though PCR was informed by him, thus it becomes imperative for him to join the investigation of the above case as a police officer. His willfully not joining the investigation proves his grave misconduct, involvement in criminal activities, disobedience of lawful orders unbecoming of Police officer.
4. On representation against the enquiry report, the disciplinary authority (DA) imposed a major punishment on the ground that applicant who is deliberately avoiding the call of IO to join the investigation has disobeyed the orders.
5. The appellate authority dealing with all the contentions of applicant clearly ruled that despite notice under Section 160 of Cr. PC applicant had never appeared before the IO for investigation and as he was on medical rest, his present at the scene of crime caused doubt on his version. Accordingly, the punishment imposed was upheld.
6. Learned Counsel of applicant stated that the testimony of DW-2 and PW-4 have not been considered and the IO on merely suspicion and surmises recorded a finding, which has been agreed to by the DA. Learned Counsel has also assailed violation of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980.
7. Learned Counsel would contend that when the charge of forged sale of plot has not been established, there is no witness who has seen applicant at the spot of crime and as applicant had presented himself before the Additional DPC after notice under Section 160 Cr. PC has not evaded any investigation on 22.3.2001. Accordingly, it is stated that OA be allowed.
8. On the other hand, learned Counsel of respondents vehemently opposed the contentions and stated that, as applicant does not make out cognizable offence in relation with the public on discharge of duties, Rule 15 (2) of the Rules is not applicable. It is also stated that applicant despite notice has not joined the investigation and the testimony of PW-4 and PW-2 do not substantiate his defence, failure to join investigation is a grave misconduct, for which punishment imposed is after following the due process of law and is commensurate with the misconduct.
9. We have carefully considered the rival contentions of the parties and perused the material on record.
10. In the disciplinary proceedings we are precluded from examining the correctness of the charge or re-appreciating the evidence. We can interfere only when there is violation of rules of substantive procedure causing prejudice and the finding is perverse, based on 'no evidence'.
11. As regards violation of Rule 15 (2) of the Rules, the condition precedent is that a PE shall disclose a cognizable offence against applicant in discharge of his official duties in relation with the public. As these conditions are not satisfied, the contention raised of violation of Rule 15 (2) of the Rules, cannot be countenanced, as the allegations are disobeying the orders and involvement in the criminal activities. The main ingredient of the charge against applicant is not responding to the investigation despite service of notice. The allegations do not disclose any cognizable offence in relation with the public.
12. As a police officer it is incumbent upon him to diligently discharge the duties attached to the post. Even if a police officer is not on duty, yet it does not absolve him from acting in a manner of becoming a police officer and when in an investigation of a criminal case he is called upon to give his version, non-response thereto would certainly be a dereliction of duty.
13. As we find that a phone call was made from the mobile of applicant to PCR and one of his nephews was there and as evidence on record show that applicant was also present on the spot, he would have been instrumental in bringing the correct facts of occurrence had he joined the investigation. When an investigating agency like police investigates into a case, Section 160 Cr. PC empowers the police officer, investigating the crime, to call upon any person to assist and to disclose information regarding any commission of the offence reported. It is not disputed that applicant had received the notice, yet he has not gone for investigation before the IO Shri Yadav, who has clearly deposed as such in the enquiry. There is no enmity against applicant of Shri Yadav to have deposed falsely. The testimony of PW-4 as to non-mentioning of intimation to applicant of DD entry would not mitigate the fact of notice under Section 160 Cr. PC served upon applicant. He had merely reported to the Additional DCP but has not cooperated with the IO, the testimony of DW-2 Inspector Bahadur Singh is relevant only to the extent of applicant having attended the office of Additional DCP and thereafter special staff, but as this witness has left the place, further what has been transpired has come through the evidence of PW-2 P.C. Yadav. The IO has recorded a detailed finding, which is neither perverse and is based on evidence.
14. The DA has also recorded a reasoned order. Had applicant attended the office with Inspector Bahadur Singh and was available for investigation before the IO of the case, there would have been no necessity to issue notice under Section 160 Cr. PC. The order passed is reasoned.
15. The appellate authority has also discussed the contentions of applicant and recorded a reasoned order. We do not find the punishment imposed disproportionate to the misconduct. Accordingly, being satisfied about the adoption of the due procedure in the enquiry, the punishment imposed and confirmed in appeal is apt in law, requiring no judicial interference. Accordingly, OA is dismissed. No costs.