Central Administrative Tribunal - Delhi
Through His Son Abhimanyu Tyagi) vs The Commissioner Of Police on 12 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No 4154/2012 MA 3488/2012 New Delhi this the 12th day of May, 2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) Pramod Tyagi (ASI No. 2538/N/28850580), S/o Shri Braham Dutt Tyagi, Presently lodged Central Jail No.3, Tihar, New Delhi. R/o G-7, Gali No.7, Village Wazirabad, Delhi-110085 Through his son Abhimanyu Tyagi) Applicant (By Advocate Shri Gyanendra Singh ) VERSUS 1. The Commissioner of Police (Delhi Police) Police Headquarters, MSO Building, I.P. Estate, New Delhi. 2. The Joint Commissioner of Police, North District, Through Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, North District, Through Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. Respondents (By Advocate Ms. Rashmi Chopra ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J) :
One Shri Gulam Nabi, father of deceased Zulfikar submitted a complaint to the SSP and D.M/Ghaziabad (UP). On preliminary enquiry into the allegation contained therein, a zero FIR under section 364/302 IPC was registered at PS Kavi Nagar, Ghaziabad (UP) and was subsequently transferred to Delhi Police for further necessary action. From the allegation in the complaint, it could be revealed that the applicant (ASI, Pramod Tyagi, No 2538/N), Constable Sudesh Pal Rana No.810/N and Ct. Suraj Pal No. 2021/N posted in Operation Cell and Ct. Ashok Kumar No. 1089/N posted in Distt. Lines had played key role in the encounter of Mr. Nazakat s/o Mr. Babu r/o Village Haaval, PS, Pilkhua, District, Ghaziabd (UP) and Mr. Zulfikar s/o Mr. Gulam Nabi, r/o village Ajraba, PS Mundali, District Meerut (UP). Since the applicant did not inform the officers, i.e. Inspector of Operational Cell or ACP/ Operational Cell, North West before departing to the spot of incidence, the conduct of applicant as well as other members of the team in conducting the encounter without informing their departure to Supervisory Officers was considered as grave misconduct and high handedness resulting in bad name to the entire police force. Their continuation in the force was considered likely to cause further irreparable loss to the functioning of the credibility of Delhi Police.
2. In the facts and circumstances of the case, it was considered that it was not reasonably practicable to conduct a regular departmental enquiry. Accordingly, the competent authority passed order dated 9.08.2006 dismissing the applicant from service along with others under Article 311 (2) (b) of the Constitution. The appeal preferred by the applicant against the penalty order was rejected in terms of the order dated 5.06.2008. Applicant filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 after four and a half years. The period of limitation prescribed in Section 21 of the Administrative Tribunals Act, 1985 for filing OA before the Tribunal is one year. Thus, the OA is hopelessly barred by limitation. The only reason mentioned in the application for condonation of delay is that the applicant was under custody since he was arrested on 28.11.2011. The order of appellate authority was passed on 5.06.2008. There is no explanation given by the applicant for not approaching the Tribunal between 05.06.2008 and 28.11.2011.
3. Mrs. Rashmi Chopra, learned counsel for the respondents produced a copy of the judgment dated 12.07.2010 passed by the Court of Shri Dharmesh Sharma, ASJ-II, North Delhi in the criminal case registered vide FIR No. 383/06 at PS, Timarpur. In the said order, the applicant has been shown as proclaimed offender. The accused who participated in the trial were convicted under Section 302 IPC read with Section 120, under section 201 IPC read with section 120B. Since the applicant was absconding and declared as proclaimed offender, he could not be subjected to the Trial. While pronouncing the final verdict, the learned ASG-II, North District, Delhi had arrived at the following conclusions:-
92. In view of the detailed discussion and the evidence on the record, the prosecution has been able to establish the following facts and circumstances against the accused persons:-
Accused Ashok was holding a grudge against the deceased Nazakat and Zulfikar @ Zulfi for the killing of his younger brother Devender at their hands:-
That accused Ashok had knowledge that the deceased Nazakat and Zulfikhar would come to the Gaziabad Court to appear in the pending trial on the charge of killing Devender, the younger brother of accused on 31.07.2006;
That accused Ashok entered into a criminal conspiracy with co-accused Suraj Pal who was his batch mate and ASI Pramod Tyagi (PO) besides accused Sudesh Rana to abduct or take them away from the City Court Ghaziabad where the duo were to appear on 31..07.2006 in the pending trial.
That accused Sudesh Rana was associated in the conspiracy since he was shooter himself and the encounter was to be projected as a genuine one;
That PW-2 Irfan categorically deposed that he had seen accused Ashok at around Noon at City Civil Court, Ghaziabad; and accused Ashok had every reason to be there and he has not accounted for his whereabouts the entire day on 31.07.2006;
That deceased Nazakat and Zulfikar @ Zulfi had come to the City Civil Court, Ghaziabad in a UP Roadways Bus from Pilkhwa;
That the all accused persons except accused Ashok were posted in the Operation Cell and acting under the directions of Team Leader ASI Pramod Tyagi IPO) and accused Ashok was posted nearby in the North District Lines;
That accused ASI Pramod Tyagi (PO) left the office of Operation Cell along with HC Yashpal, Ct. Sudesh Rana, Ct. Satish, Ct. Ravinder and Ct. Pradeep Kumar besides Ct. Naresh Driver in the tempo traveler no.DLIV 2879 vide DD no.11 dated 31.07.2006 at about 12 O Clock Noon;
That the evidence by way of call records of the accused persons indicate that all of them except accused Pradeep crossed the borders and were present at or around City Civil Court, Ghaziabad sometimes after 12.00p.m to 2.30p.m and the call records indicate that they were then moving towards Delhi;
That the postmortem reports Ex.PW 13/A and PW 13/B besides opinion of the Medical Board Ex PW 13/C irrefutably bring out that the deceased persons were fired at from a close range;
That the deceased persons were killed in a fake police encounter within two hours of their abduction;
That the conspiracy was executed at a carefully chosen place which was not busy with traffic;
That there was a delay of about half and hour in reporting the matter to the PCR which suggest that once the accused persons were satisfied that he deceased Nazakat and Zulfikar @ Zulfi were not alive only then the PCR was informed;
That all the accused persons were found present at the spot including accused Suraj Pal soon after the news of police encounter broke out when PW-44 SI Rajnesh and PW-45 Inspector H.S. Rawat started their investigation.
That the theory of the police encounter was also falsified from the fact that the Maruti Car bearing No.DL3CN 2034 ExP-19 was not in a running condition and was most probably planted by the main conspirators in order to give a true colour to the entire theory of encounter;
That the accused persons soon after the incident conducted themselves in the manner clearly indicating that they were all participants in the encounter;
That accused Ashok and accused Suraj Pal had been in contact with each other all the time on 31.07.2006 besides being in contact with accused ASI Pramod Tyagi (PO), and accused Ct. Sudesh Rana and the duration of time in exchange of calls indicate this meetings of mind and concerted action; and call records indicating that the accused ASI Pramod Tyagi and Ashok reached the place of occurrence separately;
That accused ASI Pramod Tyagi (PO) and accused Ct. Sudesh Rana used their service revolvers in the killings of the two deceased persons namely Nazakat and Zulfikar @ Zulfi;
That though the main conspirators were accused Ashok along with Ct. Suraj Pal besides accused ASI Pramod Tyagi (PO) and Ct. Sudesh Ranka, the other accused namely, Ct.Naresh, Ct. Pradeep Sharma, Ct. Yashpal, Ct. Ravinder and Ct. Satish appear to have stood by the main conspirators in helping them with the abduction of the deceased Nazakat and Zulfikar @ Zulfi and then giving different versions about the encounter;
That during the investigation, the accused persons were arrayed for Test Identification Parade out they refused thereby denying the prosecution an opportunity to establish the identity of the real offenders; it may be that if accused Suraj Pal, Sudesh Rana had been arrayed for Test Identification Parade, at the earliest opportunity when the things were afresh and the witnesses were not polluted, they could have identified the real offenders. Learned counsel for the respondents further submitted that the applicant is still in custody. Once the applicant filed the present Original Application on 7.12.2012, when he had been arrested by the police on 28.11.2011 and is still in custody, the ground taken in para 3 of the application is hardly acceptable to condone the delay. Prior to 28.11.2011, the applicant had more than three years time to approach the Court. The period of limitation for filing the OA before the Tribunal is one year. Thus, much before the arrest of the applicant, the period of limitation for challenging the impugned orders was over. A person who remained absconding to avoid the arrest and the trial in the criminal case and is finally arrested after conclusion of the trial in respect of co-accused cannot be given the benefit of absconding or arrest while considering an application for condonation of the delay. In other words, the absconding cannot be a ground to condone the delay in filing an application under Section 19 of the Administrative Tribunals Act, 1985. As has been viewed by Honble Supreme Court in N.Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123)), it is axiomatic that condonation of delay is a matter of discretion of the Court. Length of delay is no matter and the acceptability of the explanation is the only criteria. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long time can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion. In P.K.Ramachandran vs. State of Kerala (1997) 7 SCC 556), Honble Supreme Court reversed the order passed by the High Court of condonation of delay of 565 days in filing of an appeal by the State against the decree passed by the Subordinate Court and observed:-
Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds.
4. In Maniben Devraj Shah Vs. Municipal Corporation of Briham Mumbai (2012) 5 SCC 157), Supreme Court referred to some of the judicial precedents and observed:
What needs to be emphasized is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
In view of the aforementioned, we are not inclined to condone the delay, MA is rejected. As a result, OA is also dismissed.
( A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) sk