Central Administrative Tribunal - Delhi
Ct. Satish Kumar vs Govt. Of Nct Of Delhi on 10 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No. 2088/2010 This the 10th day of August 2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Ct. Satish Kumar (399/Crime )Now 2714/DAP), PIS No.28902055) s/o Sh. Daya Kishan r/o Village Alipur, Distt. Gurgaon, Haryana. Applicant (By Advocate: Sh. Sourabh Ahuja) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 2. Special Commissioner of Police, Armed Police, New Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, Crime & Railways, Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police, 3rd Bn. DAP, Delhi, Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 5. Deputy Commissioner of Police, (Vigilance/Delhi), Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate: Sh. B.P.N.Pathak) O R D E R
Honble Shri George Paracken:
This OA has been filed against the following orders issued by the respondents in the departmental proceedings initiated against the applicant:-
1. Annexure-1 order dated 26.11.2007 whereby a departmental enquiry was initiated against the applicant.
2. Annexure-2 findings dated Nil whereby the enquiry officer has proved the charge against the applicant.
3. Annexure-3 final order dated 3.7.2008 whereby forfeiture of 3 years approved service of the applicant permanently entailing proportionate reduction in his pay with immediate effect.
2. The brief facts of the case : A departmental enquiry was initiated against the applicant vide Annexure A-1 order dated 20.6.2011 under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 on the allegations that while he was posted at P.S./NDLS on 8.9.2007 at around 6.30 p.m. a lady, namely, Ms. Muskan wife of Mustan Khan R/o H.No.950, Gali No.2, Samrala Chowk, Sanjay Gandhi Colony, District Ludhiana, Punjab came to PS/NDLS and handed over a written complaint to the Duty Officer. In her complaint she mentioned that she came from Ludhiana and she had to go to Ghaziabad. While she was sitting on the bench at Platform No.1, a Constable in uniform whose nameplate showed his name Satish, came to her and asked why she was sitting there and also misbehaved with her. He started filthy talks and thereafter abused her. She further stated that the applicant seemed to have consumed liquor. The duty officer handed over the complaint to Additional SHO who entrusted the same to the SI Satish Chander for enquiry. He took the applicant to Lady Hardinge Medical College, New Delhi for medical examination where the Doctor examined him and opined in the MLC No.50481 smell of alcohol ++.
3. Thereafter, a departmental enquiry was initiated against the applicant. The enquiry officer considered the depositions of 6 prosecution witnesses and one defence witness. The applicant has also submitted his defence statement denying the charge made against him. After considering all the depositions of the PWs and DW and the defence statement of the applicant, the enquiry officer, vide Annexure A-2 in his report dated Nil, came to the conclusion that the charge against the applicant was proved. The relevant part of said report is as under:
The main allegation against delinquent Ct. Satish Kumar No. 399/Crime are that on 8.9.07 while he was posted at PS New Delhi Railway Station he misbehaved with a woman named Muskan on platform No. 1 and he had also consumed alcohol at that time. During the proceedings 6 PWs and one DW were examined. On the basis of the depositions of these PWs, DWs the allegations, charge, exhibits and pleas of the delinquent Constable, the discussion of evidence is as under:-
PW-1 Smt. Muskan the main complainant had confirmed that Ct. Satish Kumar misbehaved with her on 8.9.07 at platform No.1 New Delhi Railway Station. She had proved her complaint Ex. PW-1/A. PW-2 SI Satish Chand had confirmed the medical examination of delinquent Ct. Satish Kumar at Lady Harding Medical College vide MLC No. 50481, PW-3 Inspr. C.R. Meena who was Addl. SHO/ NDLS had clarified that the complaint of Smt. Muskan was marked to PW-2. PW-4 the duty officer of PS NDLS had confirmed that the complainant Muskan came to Police Station and he produced her before PW-3. PW-5 the reader to ACP/ Railway had got DD No. 13A dt. 8.9.07 PS NDLS Ex. PW-6/A (number has been marked wrongly) regarding suspension of delinquent lodged. PW-6 the Medical Report Technician Lady Harding Medical College had confirmed MLC No. 50481 of Satish Ex. PW-6/A and the result there on as Smell of alcohol ++ and he also identified signature of the concerned doctor. Nothing new emerged during cross examination of these PWs. DW-1 Smt. Anita who had shown her presence at platform No. 1 had deposed that the constable only asked the reason of their sitting there and not misbehaved with her and the complainant i.e. PW-1. She also ratified that he was not appearing to have consumed alcohol but her this deposition was overruled by medical report Ex. PW-6/A. Plea of the delinquent Const. that PW-1 was not examined before him has no stand as PW-1 was recalled and examined on 11.1.08 by the previous E.O. in the presence of delinquent constable and he had well availed the opportunity of cross examination on that day. Plea regarding proving of MLC is not maintainable as it was duly proved by the concerned official. Other pleas regarding his medical examination and smell of alcohol are having no force and he himself had admitted smell of alcohol in para 6 of the written defence statement because of cough syrup.
CONCLUSION:-
On the basis of the above discussion and the evidence adduced on file the charge against Const. Satish Kumar No. 399/Crime is proved.
4. Tentatively agreeing with the findings of the enquiry officer, a copy of the findings was served upon the applicant with a direction to submit his written representation, if any. He was also called upon to show cause as to why his suspension period should not be treated as not spent on duty for all intents and purposes.
5. Applicant submitted his representation against the findings on 9.6.2008. The main pleas put forward by him in his written representation are:
(1) The DW-1 Smt. Anita was the most important eye witness but her deposition was not believed by the enquiry officer and disciplinary authority. According to the said witness the applicant did not appear to have consumed liquor and he only asked the complainant Muskan Khan, the reasons of her sitting on the platform alone and he never misbehaved with her.
(2) The PW-1 Muskan Khan was not examined in the presence of the applicant by the enquiry officer.
(3) The MLC was proved by PW-6 Sh. Puran Mal, who was a Medical Report Technician and not the concerned doctor. While Dr. Shashi Kiran of Lady Harding Medical College has prepared the MLC dated 8.9.2007 in which she opined smell of alcohol ++. Sh. Puran Mal, the Medical Report Technician has only identified the signatures of the doctor on the MLC.
6. The other ground taken by the applicant was that the charge was quite vague. According to him when the allegation against him was that he has used abusive language against the complainant, the nature of the abusive language used should have been clearly stated in the charge itself. In this regard he has relied upon judgment of Apex Court in Ram Kishan Vs. Union of India and others, 1995 (6) SLR 52, the relevant part whereof is as under:
11. It is next to be seen whether imposition of the punishment of dismissal from service is proportionate to the gravity of the imputation. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of the abusive language. No straight jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case has to be considered on its own facts. What was the nature of the abusive language used by the appellant was not stated.
7. The applicant has also relied upon the judgment of Apex Court in M.V.Bijlani Vs. Union of India and others, (2006) 5 SCC 88 in support of his submission that the charge against him is very vague. The relevant part of said judgment is as under:
23. Evidently, the evidences recorded by the Enquiry Officer and inferences drawn by him were not commensurate with the charges. If it was a case of misutilisation or misappropriation, the Appellant should have been told thereabout specifically. Such a serious charge could not have been enquired without framing appropriate charges. The charges are otherwise vague. We have noticed hereinbefore that the High Court also proceeded on the basis that the non-maintenance of diary amounted to misutilisation of copper wire.
8. Relying upon the judgment of Punjab and Haryana High Court, Hans Raj Gupta Vs. State of Punjab, 1992 (1) SLR 146, the applicant has contended that Shri Puran Mal, Medical Report Technician, should not have been examined as prosecution witness as he was beyond the list of witnesses supplied to him. Therefore it was in violation of the principles of natural justice. The relevant part of the said judgment is as under:
Coming to the next point of violation of rules of natural justice, learned counsel took me through the enquiry report. As observed earlier, only Charanpal Singh Bawa was cited as a witness in the list of witnesses. Bhag Singh and Kishan Gopal, two officials of the Food & Supplies Department were also examined by the enquiry officer. Rule 8 (3) & (4) of the Punishment and Appeal Rules require that the list of witnesses and the list of reliance of documents is to be supplied to the delinquent officer. The purpose of this Rule is that the delinquent officer should not be taken by surprise and he should know as to who are the witnesses who are to appear against him and what documents will be produced to prove a particular charge. It is not clear from the record as to whether any previous statements, if any, which may have been recorded earlier were supplied to the petitioner. Examining of witnesses beyond the list of witnesses certainly prejudiced the petitioner. Even if it is assumed that there was no previous statement of Charanpal Singh Bawa, who had held the preliminary enquiry, the preliminary enquiry itself should be treated to be the previous statement of Charanpal Singh Bawa and it ought to have been supplied to the petitioner so that he could effectively cross-examine the said witness. As observed above, the report of the preliminary enquiry was not supplied to the petitioner. That being so, enquiry on this point also stands vitiated.
9. Further he has submitted that mere production of document is not enough but it has to be proved by examining the witness. In this regard, he has relied upon judgment of Apex Court in Roop Singh Negi Vs. Punjab National Bank and others, 2009 (2) SCC 570, the relevant part of which is as under:
14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The Enquiry Officer performs a quasi- judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
10. The respondents in the reply have refuted all the submissions made by the applicant. They have submitted that the deposition of the defence witness was not believable. They have submitted that even though she has stated that applicant did not seem to be under the influence of liquor, it was proved during the medical examination that he was smelling alcohol and according to MLC report the smell of alcohol is ++. They have also submitted that the deposition of DW-1 was found ambiguous by the enquiry officer as the applicant might have managed to produce her to depose in his favour during the departmental enquiry and therefore, her testimony was not found credible. They have also denied the contention of the applicant that PW-1 was not examined in his presence by the enquiry officer. On the other hand, respondents have submitted that PW-1 was recalled and examined on 11.1.2008 by the enquiry officer in the presence of the applicant and he has availed the opportunity to cross-examine her on that date. As regards deposition of Puran Mal, Medical Report Technician is concerned, they have submitted that he had only identified the signature of the doctor who conducted the medical examination. As regards the smell of alcohol, it has been submitted that the contention of the applicant that he had consumed cough syrup was not believable as it was noted during the medical examination that there was smell of alcohol. They have also submitted that the charge against the applicant is based on statement of prosecution witness and the enquiry officer has rightly held that he was guilty of the charge. The disciplinary authority has also carefully gone into the findings of the enquiry officer as well as the representation submitted by the applicant. The applicant was also heard in O.R. on 19.6.2008. However, during personal hearing also he did not advance any fresh plea what he has already taken in his written statement. It is stated that the Police Department is constituted to serve the people, preserve their rights to live peacefully and safely. The society expects the policeman to protect citizens from crime. The involvement of policeman in such an act of misbehaviour with a woman will totally erode the faith of the common people in the Police Department. Instead of protecting the molestation of a woman, the applicant misbehaved with her and tried to outrage her modesty which was not only shameful but intolerable also. Hence, disciplinary authority imposed the punishment ordering forfeiture of 3 years approved service entailing proportionate reduction in his pay and the suspension period was also decided as period not spent on duty. The appellate authority has also considered and rejected the appeal as he could not come out with any new material except the pleas already taken before the enquiry officer as well as the disciplinary authority.
11. We have heard the learned counsel for the applicant and also the counsel for the respondents. The departmental proceedings are quasi-judicial proceedings and the findings of the enquiry officer shall be supported by the evidence which has come on record. The charges against the applicant are that he misbehaved with PW-1 who made the complaint against him on 8.9.2007; he talked to her in filthy language and abused her and he was smelling alcohol. As held by the Apex Court in Ram Kishans case (supra), the abusive language used is to be understood in the environment in which it was used and the nature of the abusive language used is to be stated. Moreover, the DW-1 who was stated to be present at the place of occurrence of the incident deposed that the applicant did not misbehave with the complainant and he only asked her the reason for her sitting there. The enquiry officer has simply brushed aside her deposition, without any justifiable reasons. There were no other independent witnesses to prove the charges against the applicant. As regards the charges that the applicant was smelling of alcohol as per the M.L.C. report, admittedly, the same was prepared by Dr. Shashi Kiran of Lady Hardinge Hospital. She has not been produced as a prosecution witness. Instead one Puran Mal, Medical Report Technician was a prosecution witness. According to he himself, he has proved only the signature of the doctor. In a departmental proceeding, it is not sufficient to tender documents by the prosecution but contents of the same have to be proved as held by the Apex Court in Roop Singh Negis case (supra). By not producing the doctor who has prepared the M.L.C., as a witness by the prosecution, the applicant has lost his valuable right of cross examining her. In these circumstances, the report of the enquiry officer is perverse and based on no independent evidence.
12. We, therefore, allow this OA and set aside Annexure A-2 findings of the enquiry officer dated `nil and Annexure A-3 order of the disciplinary authority dated 3.07.2008. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken ) Member (A) Member (J) `sd