Central Administrative Tribunal - Delhi
Ex. Si Devender Kumar No.2101/D vs Commissioner Of Police on 8 March, 2010
Central Administrative Tribunal Principal Bench OA No.1907/2009 New Delhi this the 8th day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Ex. SI Devender Kumar No.2101/D, S/o Sh. Ram Niwas Gupta, R/o 107/9, Kishan Garh, New Delhi-110 070. -Applicant (By Advocate Dr. Ashwani Bhardwaj) -Versus- 1. Commissioner of Police, Delhi Indraprastha Estate, New Delhi. 2. Addl. Commissioner of Police, Operations, Delhi, Indraprastha Estate, New Delhi. 3. Deputy Commissioner of Police, Communication, Delhi. -Respondents (By Advocate Shri Rishi Prakash) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, an ex-Sub Inspector in Delhi Police, by virtue of this OA has impugned enquiry report dated 4.6.1999 and an order dated 24.2.2006 passed by the disciplinary authority (DA) pursuant upon decision of the Delhi High Court in WPC No.22125-27/2005, dismissing him from service. Also assailed is an order passed in appeal on 6.5.2008, upholding the punishment.
2. Applicant, an ex-Sub Inspector in Delhi Police was earlier charged for an allegation of abusing and threatening his junior officer ASI Bal Ram vide summary of allegations issued on 29.6.1998. An enquiry was conducted and the enquiry officer (EO) held applicant guilty of the charge and the penalty imposed when took into consideration the previous bad record of applicant it was challenged before the Tribunal in OA-1807/2003, against which an appeal preferred was disposed of on 23.11.1005, directed the DA either to ignore the previous bad record or to consider it after remanding it back by making a specific charge. Applicant was reinstated on 12.1.2006 and thereafter the DA by an order passed on 24.2.2006 dismissed the applicant. The punishment imposed when affirmed in appeal gives rise to the present OA.
3. Learned counsel of applicant Dr. Ashwani Bhardwaj states that whereas applicant apart from the address of his native place at Hathras (UP) he has given his temporary address as 917, Sector-2, R.K. Puram, New Delhi yet the service was effected on a wrong address, i.e., 719, Sector-2, R.K. Puram, New Delhi and as the service at his native place is not a service in the eye of law because the postal remarks have come back without serving on the applicant it is stated that in the departmental enquiry ex-parte proceedings have been initiated and concluded by holding applicant guilty of charge without effecting service on applicant or on non-legal service, which has deprived him a legal opportunity and right to submit his defence, which in turn vitiates the consequent orders. Learned counsel has reserved all other grounds.
4. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that whatever may be the address available on record, the service has been effected, and as the applicant has not availed of the opportunity, enquiry has been completed in accordance with rules and the punishment imposed is commensurate with the misconduct.
5. In our considered view, communication on a wrong address is not a valid communication in law, as ruled by the Apex Court in Union of India v. S.P. Singh, 2008 (7) SCALE 668. No doubt, it is no more res integra that the temporary address of the applicant, as reflected in the order of dismissal, is 917, Sector-2, R.K. Puram, New Delhi, whereas the service has been effected on 719, Sector-2, R.K. Puram, New Delhi and a report that some Balwant Singh has been found living is not a valid service on the correct address. Leave apart, when the applicant has not been found and his address was not divulged, would not amount to any service. Accordingly, the ex-parte enquiry resorted to is without proper service on applicant and as applicant was deprived of his Fundamental Right in service jurisprudence as to cross-examination of witnesses and consideration and submission of his defence, the ex-parte proceedings on the basis of prosecution version, when resulted in enquiry, has vitiated the enquiry report as well as other documents. To establish that the address has not been correct on which alleged service has been effected by the respondents, we quote the following paragraph from dismissal order:
The DE was entrusted to Shri Naved Mumtaz the then ACP/Comm. Since the SI was running absent w.e.f. 10.6.98, the summary of allegation, list of PWs, list of documents and photo-copies of the documents to be relied upon were sent to him through postal authority at his two available addressed in Delhi viz. (a) 719, Sector-2, R.K. Puram, New Delhi & (b) 107/9, Kishan Garh, Vasant Kunj, New Delhi vide memo No.2808/R ACP/Comm.(Admn.) dated 29.6.98, but the same received back undelivered. After that the copies of above mentioned documents were sent through local police but the same were also received back with the report of local police (SHO/Vasant Kunj) that SI Devender Kumar, No.2101/D is not residing at given address and Aditya College of Technology is running at that address.
6. In the above view of the matter, as on this short ground we have come to the conclusion that the principles of natural justice have been violated and ex-parte enquiry is not apt in law, we have no option but to allow this OA to the extent that impugned orders are set aside. As a result thereof, applicant shall forthwith be reinstated in service. However, it shall not preclude the respondents, if so advised, to resume the proceedings from the stage of summary of allegations and in such an event, law shall take its own course. The interregnum shall be decided as per the outcome of the enquiry proceedings and in accordance with rules, instructions and law on the subject. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.