Central Administrative Tribunal - Delhi
Ct. Krishan Kumar S/O Prabhati Lal vs Government Of Nct Of Delhi Through on 12 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1680/2008 This the 12th day of May, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Ct. Krishan Kumar S/O Prabhati Lal, R/O Addl. Village Tattarpura, District Rewari, Haryana. Applicant ( By Shri Sachin Chauhan, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, Northern Range, through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 3. Addl. Deputy Commissioner of Police, Central District, through Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Krishan Kumar, a constable in Delhi police, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 23.8.2007 passed by Additional Deputy Commissioner of Police, Central District, the disciplinary authority, inflicting upon him punishment of forfeiture of one years approved service permanently entailing reduction in his pay from Rs.4135/- to Rs.4050/- per month with immediate effect, and further ordering that his period of suspension from 28.9.2005 to 6.2.2007 would be treated as period not spent on duty for all intents and purposes, and he would not be entitled for anything more except what he had already received during his suspension period in the shape of subsistence allowance, sequel to a regular departmental enquiry that was conducted against him; as also order dated 13.2.2008 passed by the Joint Commissioner of Police, Northern Range, vide which his appeal against the order aforesaid has since been rejected.
2. In the context of the limited controversy involved at this stage, it may not be necessary to give facts in detail. Suffice it may, however, to mention that the enquiry officer after recording evidence of SI Shri Ram (PW-1), Insp. Awanish Dwivdei (PW-2), Const. Kanwar Singh (PW-3), Jitender Sharma (PW-4), Dheeraj Sharma (PW-5) and Sanjay Chandra (PW-6), framed the following charge against the applicant:
I, Inspector Dara Singh, Addl. SHO/Hauz Qazi hereby charge you Constable Krishan Kumar No.955/C that at P.S. I.P. Estate on 9.9.2005 you were shown taking money by the Camera reporter of Sansani for getting the NCR issued while performing sentry duty at P.S. I.P. Estate New Delhi. Durint the enquiry evidence came on record against you constable Krishan Kumar No.955/C that you had accepted the money for issuing NCR.
The above said act on the part of you Constable Krishan Kumar No.955/C amounts to gross misconduct, negligence, dereliction of duty and irresponsible behaviour in performing his official duties which render you liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules, 1980. The applicant was given chance to submit his defence statement. He availed the opportunity and laid stress upon the following points:
1. The P.W. Inspt. Avnish Dwivedi was not the eye-witness to the occurrence.
2. The defaulter kept the money in his left pocket with his left hand and took out his purse from his back pocket to give the change to the person who wanted to have the change.
3. He returned 5 currency notes of Rs.100/- to that person, but that portion was out from the C.D.
4. The may who gave defaulter the money has not been shown.
5. No man has been examined to say that the defaulter was given money.
6. His 15 years service record is absolutely clean.
7. The cameraman who shot the C.D. was not examined.
8. The C.D. was edited in the studio.
9. The important portions, which prove his innocence, have been cut and blackened.
10. Mr. Sanjay Chandra was not in the list of PWs.
11. The D.E. order is in violation of Rule 15(3) of Delhi Police (Punishment and Appeal) Rules, 1980.
12. The defaulter was the sentry on the relevant day and had no relation to issue NCR.
13. It is a case of no evidence. Material witnesses have not been examined in the D.E. The enquiry officer discussed the evidence under caption discussion of evidence, as follows:
The PW-1 and 2 are formal witnesses. PW-3 stated that he saw the C.D. and recognized the defaulter taking money and keeping it in his pocket. PW-4 & 5 are not related to this programme which was launched on 9.9.2005. PW-6 disclosed that on 9.9.2005 he sent his camera man to Duty Officer P.S. I.P. Estate to get lodged the NCR. He remained outside the police station. On the basis of the information of the Cameraman he sent a report. The important facts of the C.D. were aired. The conclusion arrived at by the enquiry officer is as follows:
I have thoroughly gone through the evidence on record. There is force in the statement of the defaulter. The points raised by him are convincing. It is true that the actual camera man could not be known and examined and he was the only eye witness. Despite all such facts, it is also a truth that the camera caught the defaulter while pocketing the money. The C.D. seems to be true. The charge stands partly proved. The disciplinary authority after giving narration of facts culminating into report of the enquiry officer, dealt with the matter in the following manner:
From the evidence on record, it is true that the cameraman who prepared the CD could not be available during the DE proceedings as he had left the job and his whereabouts were not known to anybody. He was the only eye witness of the episode. Moreover, the performance of the CD prepared by the cameraman is very poor. But, the defaulter Constable Krishan Kumar has been shown taking money in the CD. Therefore, I, Surender Singh Yadav, Addl. DCP/Central Distt., Delhi, giving the benefit of doubt to const. Krishan Kumar No.955/C award him the punishment of forfeiture of his one year approved service permanently entailing reduction in his pay from Rs.4135/- P.M. to Rs.4050/- P.M. with immediate effect. His suspension period from 28.9.2005 to 6.2.2007 is treated as period not spent on duty for all intents & purposes. He is not entitled for anything more except what he has already received during his suspension period in the shape of subsistence allowance. The appellate authority dismissed the appeal, with the operative part of the order which reads, thus:
The appellant was heard in O.R. on 08.02.2008. He stated that he was on Sentry Duty and did change of a 500/- rupee note to 100 of Rs.5 notes each and did not take money. I have carefully gone through the record available on file. On perusal of the record it is evident that he had taken bribe and ample proof were there on record to substantiate the same. The appellant had brought a bad name to force. Hence, I do not find any plausible reason to alter the order of the disciplinary authority and reject the appeal.
3. What clearly emerges from the facts as fully detailed above is that insofar as the enquiry officer is concerned, there is no conclusion drawn with regard to proof or otherwise of the charge framed against the applicant in discussion of evidence. Insofar as, the conclusion is concerned, the enquiry officer finds force in the statement of the applicant, and further goes on to observe that the points raised by him were convincing, and further that the cameraman could not be known and examined who was the only eye witness. Even after so observing, the enquiry officer would mention that despite all such facts, it was also a truth that the camera caught the applicant pocketing the money, and that the CD seemed to be true, and, therefore, the charge stood partly proved. What part of the charge has been proved and what part has not been proved, there is no mention. This Tribunal has taken a view in OA Nos.535A & 656 of 2004 decided on 17.11.2004 in the matter of Constable Harpal Singh & Another v Union of India & Others that finding like part of the charge is proved, without mentioning as to which part of the charge is proved, would be too vague and indefinite finding, and that while making a report, specific finding should be arrived at and the disciplinary authority is also expected to simultaneously look into this fact rather than accepting the same as presented. We are in respectful agreement with the view taken by the Division Bench in the OAs aforesaid. That apart, in the present case, the disciplinary authority while mentioning that from the evidence on record, it was proved that the cameraman who prepared the CD could not be available during the DE proceedings as he had left the job and his whereabouts were not known to anybody, and that he was the only eye witness of the episode, and moreover the performance of the CD prepared by the cameraman was very poor, only mentioned that the applicant nonetheless has been shown taking money in the CD. It is not understandable, if that is so, how the disciplinary authority gave benefit of doubt to the applicant, and also at the same time, gave him punishment as mentioned above. Ms. Jyoti Singh, learned counsel representing the respondents, would, however, contend that the disciplinary/appellate authorities who are police officers only, may not be well versed with law, and the observation made by the disciplinary authority that the applicant was to be given punishment of forfeiture of one year service by giving him benefit of doubt, can, at the most, be said to be not happily worded. Preceding the sentence as mentioned above, the disciplinary authority held the applicant guilty on the basis of his being seen taking money in the CD. The learned counsel argued that once, the disciplinary authority had held the applicant guilty even though, only on the basis of the CD which had shown him taking money, the benefit of doubt appears to be only towards quantum of punishment, as otherwise, when the applicant was found taking bribe, he ought to have been dismissed from service. It is further urged by the learned counsel that present is a case of admission. The applicant admitted taking money but gave an explanation for the same that some one had demanded change of Rupees five hundred note from him, and that he had given the same to him, which part was intentionally omitted in the CD. Once, the applicant had made admission of accepting money, the explanation given by him had to be examined, and if so examined, the same would not appear to be acceptable, as the applicant gave no name of the person who had demanded change of Rupees five hundred note from him, nor the reason why such a demand was made. There may be some merit in the contention of the learned counsel, but from the kind of findings that have been recorded by the disciplinary authority, the order passed by it cannot possibly sustain. If the charge against the applicant was proved only as he was seen taking money in the CD, a proper finding in that regard based upon evidence ought to have been recorded. The disciplinary authority had already made observations like the cameraman who prepared the CD could not be available during the DE proceedings, and that he was the only eye witness, and further that performance of the CD was also poor. All these observations tend to show that no implicit faith could be placed upon the CD. Be that as it may, if the said piece of evidence was to be relied upon, then there ought to have been some discussion on the plea raised by the applicant that the CD was edited. Insofar as, admission and explanation of the applicant is concerned, there is no discussion on the same as that aspect was not even taken into consideration by any of the authorities. Insofar as, the appellate authority is concerned, it only observed that from perusal of the records, it would be evident that the applicant had taken bribe, and that ample proof was available on record to substantiate the same. What was the evidence on record which would prove the applicant taking bribe has not been mentioned. What record was examined by the appellate authority is also not know, as surely there is no discussion of evidence at all.
4. In totality of facts and circumstances of this case, we are of the firm view that the impugned orders dated 23.8.2007 and 13.2.2008 passed by the disciplinary and appellate authorities respectively, need to be set aside and quashed. Ordered accordingly. Present, however, is not a case which may be allowed in toto. The interest of justice would be served, if the respondents, if they may so choose, pass fresh orders, which exercise, in the first instance, of course, has to be done by the disciplinary authority, and if a finding of guilt has to be recorded, the same shall be done on the basis of evidence, and surely after taking into consideration the defence projected by the applicant. The explanation given by the applicant for accepting money shall also be taken into consideration. If the respondents may not choose to do the exercise as mentioned above, surely, the applicant will be entitled to all consequential benefits. However, if the respondents may choose to pass fresh orders, which will be in the light of the observations as made above, consequential reliefs would abide the final event. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/