Central Administrative Tribunal - Delhi
Aditya vs Comm. Of Police on 25 March, 2025
1
OA No. 4300/2015
Item No.11/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4300/2015
Reserved on: 28.02.2025.
Pronounced on: 25.03.2025.
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Aditya
Constable (Driver) in Delhi Police
PIS No. 28082740
Aged about 31 Years
S/o Sh. Tilak Ram Tomar
R/o 25-A/10, Bhola Nath Nagar,
Shahdara, Delhi ... Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Addl. C. P. (Operations)
PHQ, IP Estate, New Delhi.
3. Addl. DCP (PCR) GA
Through Commissioner of Police,
PHQ, IP Estate, New Delhi. ... Respondents
(By Advocate: Mr. A K Mishra)
2
OA No. 4300/2015
Item No.11/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A): -
By way of the present O.A. filed u/s 19 of the Administrative Tribunals Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs: -
"1. To quash and set aside the impugned Order initiating DE dt. 20.9.2011, Findings, Order of punishment dt. 25.7.2013 and Appellate order dt. 28.1.2015
2. To direct the respondents to restore to the applicant his original service and pay with all consequential benefits including promotion/seniority and arrears of pay.
3. To Award cost of the proceedings in favour of the applicant and pass such other and further orders as deemed it and proper in the circumstances of the case to meets the ends of justice."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application.
3. The brief facts of the present case are that the applicant is working as Constable (Driver) in Delhi Police. The applicant submits that he is duty bound to drive the PCR Van as per the instructions of I/C PCR Van as per the charter of duties for the post of Constable (Driver). He has no authority to interfere in the duties of other staff. It is further stated that the applicant along with ASI Sohan Lal I/C PCR Van and Constable Ravinder was posted at PCR Van V-32 during the intervening night 30/31.07.2011. At about 3:30 AM, I/C ASI Sohan Lal found one- 3 OA No. 4300/2015 Item No.11/C-II person (name known later on) Sh. Abhishek Jaiswal outside the Hotel Shangrila under the influence of liquor. He further adds that he was asked to stop the PCR Van by Sohan Lal, ASI. The applicant stopped the PCR Van. ASI Sohan Lal and Constable Ravinder brought Sh. Abhishek Jaiswal into PCR Van and asked the applicant to take the PCR Van to Hotel Eros, Janpath, where they dropped Sh. Abhishek Jaiswal. The applicant contends that he did not know more than mentioned above.
4. It is also mentioned that Preliminary Enquiry was conducted by Insp. Pradeep Singh in which it was alleged that the applicant misbehaved with Sh. Abhishek Jaiswal without specifying the acts of misbehavior and Constable Ravinder took Rs. 5,000/- (Five Thousand) from his pocket.
5. On the basis of the said Preliminary Enquiry Report, a Disciplinary Enquiry was initiated vide order dated 20.09.2011 (Annexure-A/1) against the applicant along with ASI Sohan Lal and Constable Ravinder. However, there was no allegation of any misbehavior by the applicant with Sh. Abhishek Jaiswal in thesummary of allegations. On denial of charges, a detailed enquiry was conducted by the enquiry officer who examined 11 PWs. Thereafter, the enquiry officer framed charges against the applicant on the same set of allegations as mentioned in summary of allegations. It is submitted that Enquiry Officer illegally and arbitrarily framed charges against the applicant 4 OA No. 4300/2015 Item No.11/C-II though there was neither any material nor any evidence to frame the charges against the applicant, which shows total non- application of mind on the part of the E.O. Thereafter, the applicant submitted his defense statement to the E.O. and requested for exoneration from the charges. The applicant further contends that the enquiry officer with malafide intention submitted his Findings (Annexure-A/2) to the Disciplinary Authority concluding therein that the charges leveled against the applicant stand proved without specifying the role played by the applicant. It is further contended that the finding of the E.O. are perverse in nature and is based on No-Evidence and the applicant has been held guilty on surmises and conjectures without applying his mind to the defense statement of the applicant and illegality proved the charges against him.
6. The Disciplinary Authority agreeing with the findings of the enquiry officer, issued a Show Cause Notice (SCN) to the applicant to make representation against the findings of the enquiry officer. In reply to the SCN, the applicant submitted a detailed representation and requested for exoneration from the charges. However, the Disciplinary Authority in utter violation of rules and regulations and also in violation of principle of natural justice and without considering the representation/defense of the applicant, proved the charges against the applicant vide order dated 25.07.2013 (Annexure-A/3) awarded the applicant 5 OA No. 4300/2015 Item No.11/C-II the penalty of forfeiture of 2 years of approved service permanently.
7. He further states that he submitted an appeal, annexed as Annexure-A/5 with the OA, against the order of punishment passed by the Disciplinary Authority praying for reconsideration of the case and to quash and set aside the impugned order of punishment. However, the Appellate Authority vide order dated 28.01.2015 (Annexure-A/4) rejected his appeal with a totally non-speaking and cryptic order. He also mentions that the mere reading of the same shows that the Appellate Authority had not applied its mind to the facts and legal points raised in the appeal and mechanically endorsed the perverse and untenable reasoning given by the Disciplinary Authority in agreeing with the findings of the EO, with a non-speaking and cryptic order.
8. The applicant states that the enquiry is in violation of Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980. It is submitted that the allegations leveled against amounts to commission of a cognizable offence in official discharge of their duties. But no-prior approval of the Addl. Commissioner of Police was obtained before ordering the departmental enquiry as required under Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980 which is clear from the Order dated 20.09.2011 in which neither the date of approval nor order number has been mentioned. There is no consideration to the 6 OA No. 4300/2015 Item No.11/C-II fact whether criminal case should be registered and investigated or only D.E. is to be initiated and criminal case should not be registered for reasons to be recorded as mandated under Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980.
9. The order initiating D.E. dated 20.09.2011 is completely silent about the compliance of provisions of Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980 since the compliance of rules cannot be simply imagined but it has to be shown on the papers that the Addl. Commissioner of Police had applied his mind on the issue and taken a considered decision to initiate only D.E. and not to register a criminal case for the reasons reduced into writing. Therefore, in the absence of the same, the D.E. is in violation of Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980 and is liable to be set aside/quashed.
10. It is further contended by the applicant that the charge against him is totally vague, unclear and unspecific since no specific act on the part of the applicant has been assigned or quoted which can be termed as misconduct except the incident of taking Rs. 5,000/- (Five Thousand) from the pocket of Sh. Abhishek Jaiswal by Constable Ravinder in moving PCR Van was seen by the applicant. However, this fact stands not proved in DE. Further, this fact is not feasible since the applicant was concentrating on his driving and he did not know as to what was going on the back seat while driving.
7OA No. 4300/2015 Item No.11/C-II
11. Learned counsel for the applicant has placed reliance on the order/judgment of the Hon'ble Apex Court in the case of UOI Vs. Gyan Chand Chattar,2009 (12) SCC 78 wherein it has been held that the charges of corruption/extortion are liable to be proved beyond reasonable doubt and to the tilt and such charges cannot be proved on the basis of preponderance of probabilities.
12. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
13. Counter reply has been filed by the respondents on 25.01.2016 wherein they have stated that a joint departmental enquiry was initiated against ASI Sohan Lal, Const. Ravinder and Const. (Driver) Aditya, (here-in-after called the applicant), under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980vide officer order dated 20.09.2011, on the allegations that during the intervening night of 30/31-7-2011, while posted in PCR Unit and deployed at PCRVan V-32, they stopped one Sh. Abhishek Jaiswal S/o Shri Ram Babu Jaiswal R/o 10/9-A, Idgarh, Hotel Sakshi, Allahabad (U.P) at about 3.30 A.M when he was coming out from Hotel Shangrila, Connaught Place, New Delhi after attending a party. The above-mentioned police officials enquired about his identity. He told PCR staff that he does not have any ID.Thereafter, PCR staff asked him to sit in PCR Van. He sat in PCR Van on the rear seat where delinquent 8 OA No. 4300/2015 Item No.11/C-II Const. Ravinder was also sitting. PCR staff took him one kilometer away from there and Const. Ravinder who was sitting with him took out Rs. 5,000/- (Five Thousand) from the pocket of his coat. This incident was also seen by the applicant and ASI Sohan Lal who were sitting on front seats of PCR Van. Later, they went away from the spot after getting him out from the PCR Van.
14. Thereafter, Sh. Abhishek Jaiswal reached Hotel Janpath and told this incident to Hotel Manager/Receptionist Mr. Rohit Niranjan, who informed PCR. The PCR call was received at PS Connaught Place vide DD No. 33-A dated 31.07,2011 in thisregard and was marked to SI Sunil Kumar who met complainant Sh. Abhishek Jaiswal and on enquiry, he came to know that the alleged incident was occurred outside Hotel Shangrila in the jurisdiction of PS Parliament Street, New Delhi. SI Sunil Kumar got lodged the PCR call in PS Parliament Street, New Delhi where it was lodged vide DD No. 31-A dated 31.07.2011 and entrusted to ASI Inder Pal Singh of PS Pt. Street forenquiry. ASI met the complainant and recorded his statement as mentioned above. ASI also got conducted medical examination of complainant Abhishek Jaiswal in R.M.L. Hospital in which doctor declared him having consumption of alcohol and also mentioned smell of alcohol in the MLC. Doctor has also taken blood sample of complainant and handed over to ASI Inder Pal Singh. ASI brought all these facts into the notice of 9 OA No. 4300/2015 Item No.11/C-II SHO/PS Parliament Street and kept the DD entry dated 31.07.2011 pending in order to verify the facts. On 01.08.2011, complainant Abhishek Jaiswal met Addl.CP/NDD in his office and narrated the whole incident to him. Addl. CP/NDD called Inspector Pradeep Singh, Vig. /NDD in his office and directed to conduct an enquiry in this matter by carrying out identification parade of all the PCR staff who was deployedat and around Shangrila Hotel on the intervening night of 30/31.07.2011. Accordingly, Shri Rajender Singh, ACP/PCR, New Delhi Zone was informed who has sent 7 PCR Van i.e. V-28, V-32, V-48, V- 52, V-7, Cobra-8 and Cobra-9 along with their staff (24 police personnel), whowere deployed on these PCR Vans on the night of 30/31.07.2011, under the supervision of SI Balbir Singh, Checking Officer, New Delhi Zone/PCR (Tiger-41) in the office of PG Cell/NDD. All these police personnel were shown tothe complainant out of them complainant identified three policepersonnel one by one who were standing at different places inthe group of 24 police personnel claiming that these threepolice personnel are responsible for the said act as alleged by him. The names of police personnel who were identified by the complainant were ASI Sohan Lal, Const. Ravinder Kumar and Const. (Dvr.) Aditya Kumar i.e. the applicant. These police officials were detailed on V-32 PCR Van on the intervening night of 30/31.07.2011. Complainant further identified that Const. 10 OA No. 4300/2015 Item No.11/C-II Ravinder Kumar took out Rs. 5,000/- (Five Thousand) from the pocket of his coat and other two were aware of his act and also that Ct. (Dvr.) Aditya Kumar misbehaved with him. Later, all the above mentioned three police personnel admitted their fault and made apology before the complainant and returned Rs. 5,000/- (Five Thousand) to him. Thereafter, statement of complainant was recorded wherein he stated that the erring police officials have made apology and returned his money so he does not want to get any criminal case registered against them, but he wanted that suitable departmental action may be initiated against them sothat they could not repeat such type of act in future withanyone. The above statement of complainant was signed by the erring police officials. In the enquiry, ASI Sohan Lal, Const. Ravinder Kumar, and Const. (Dvr.) Aditya were found guilty of taking money from the complainant. For the above misconduct, the applicant along with co-delinquents was placed under suspension w.e.f. 01.08.2011. Later on, the applicant was reinstated from suspension vide office order dated 17.02.2012 without prejudice to the departmental enquiry pending against him. Finally, the departmental enquiry was entrusted to Shri Baljeet Singh, ACP/DE Cell, Delhi vide order dated 07.06.2012, who completed the same after observing all usual formalities and submitted his findings concluding therein that charge leveled 11 OA No. 4300/2015 Item No.11/C-II against ASI Sohan Lal, Const. Ravinder Kumar, and the applicant Const.(Dvr.) Aditya is proved.
15. Tentatively, agreeing with the findings of the E.O, the findings were served upon the applicant vide this office letter dated 11.06.2013 for seeking his reply/representation(s), if any, against the findings of the E.O. within 15 days from the date of its receipt, failing which, it will be presumed that he has nothing to say in his defense and the decision will be taken on merit of the case. Further, he was also called upon to show cause as to why his suspension period from 01.08.2011 to 16.02.2012 should not be treated as period not spent on duty for all intents and purposes. The applicant received the same and submitted his representation. The disciplinary authority has carefully gone through the statements of PWs/charge/Exhibits, findings of E.O., representation submitted by the applicant as well as record placed on file. The applicant was also heard in O.R. on 16.07.2013. The Disciplinary Authority, in the light of facts and circumstances of the case awarded the punishment of forfeiture of two years approved service permanently in the time scale of pay to the applicant entailing proportionate reduction in his pay. His suspension period from 01.08.2011 to 16.02.2012 wasalso decided as period not spent on duty for all intents and purposes vide order dated 25.07.2013. The aggrieved applicant filed an 12 OA No. 4300/2015 Item No.11/C-II appeal against the above punishment which was considered and rejected by the Appellate Authority vide order dated 28.01.2015.
16. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
17. Learned counsel for the respondents' places reliance upon the order/judgment decided on 01.11.1995 by the Hon'ble Supreme Court in the matter of B. C. Chaturvedi Vs. Union of India & Ors., 1996 AIR 484. For facility of reference, the relevant paras of the same are read as under: -
"The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
.......Recently, in State bank of India & Ors. v. Samarendra Kishore Endow & Anr. [J] (1994) 1 SC 217], a Bench of this Court to which two of us (B.P. Jeevan Reddy & B.L. Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, 13 OA No. 4300/2015 Item No.11/C-II therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority.
xxxxxx The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa Ors. v. Bidyabhushan Mohapatra [AIR 1963 SC 779] held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable.
xxxxxxx ............. The court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur [(1972) 2 SCR 218].It is true that in Bhagat Ram v. State of Himachal Pradesh & Ors. [AIR 1983 SC 454], a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of Tamil Nadu [AIR 1989 SC 1137], a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court. while exercising the jurisdiction under Article 136 of the Constitutions, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India's case (supra), where the court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On 14 OA No. 4300/2015 Item No.11/C-II the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment.
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."
18. Learned counsel for the respondents' further places reliance upon the order/judgment decided on 25.10.1996 in the matter of State Bank of Bikaner & Jaipur Vs. Srinath Gupta & Anr., AIR 1997 Supreme Court 243.
19. It is apparent that the facts and circumstances of the cases relied upon by the learned counsel for the respondents i.e. B. C. Chaturvedi Vs. Union of India & Ors. and State Bank of Bikaner & Jaipur Vs. Srinath Gupta & Anr (supra) are not similar to the case in hand. Still in the above-mentioned judgements, observances to the principals of natural justice have been stressed as important measures to be adhered to while conducting Departmental inquiry. Accordingly, we have tested the pleadings filed in this OA by the parties within the scope and ambit of above-mentioned judgements diligently. 15 OA No. 4300/2015 Item No.11/C-II
20. The Disciplinary Authority while issuing punishment order dated 25.07.2013 (Annexure-A/3) stated as under: -
"The departmental enquiry was initially entrusted to Sh. Ram Chander Meena, ACP/CPCR/PHQ, Delhi to conduct the same on day to day basis and submit his findings expeditiously. Later on, the DE was transferred to DE Cell, Delhi and entrusted to Smt. Nirmal Kaur, ACP/DE Cell, Delhi vide order No.25437-41/CB-DE Cell dated 22-11-2011. Finally, the same was entrusted to Shri Baljeet Singh, ACP./DE Cell, Delhi vide order No. 8964-72/CB-DE Cell, dated 7-6-12, who completed the same after observing all usual formalities and submitted his findings concluding therein that charge leveled against delinquents ASI Sohan Lal, No. 5239/PCR, Const. Ravinder Kumar, No. 2144/PCR and Const. (Dvr.) Aditya, No. 9195/PCR is proved.
Tentatively, agreeing with the findings of the E.O, the findings were served upon all the delinquents ASI Sohan Lal, No. 5239/PCR, Const. Ravinder Kumar, No. 2144/PCR and Const. (Dvr.) Aditya, No. 9195/PCR vide this office U. O No. 10880- 82/HAP/P-II/PCR dated 11-6-2013 for seeking their replies/ representations, if any against the findings of the E.O) within 15 days from the date of its receipt, falling which it will be presumed that they have nothing to say in their defence and the decision will be taken on merit of the case. Further, they were also called upon to show cause as to why their suspension period from 1-8- 2011 to 16-2-2012 should not be treated as period not spent on duty for all intents and purposes. The delinquents received the same and submitted their representations which are identical to each other.
In their representations, they mainly pleaded that:-
1. That the Enquiry Officer directly jumped to the conclusion that the charge against them is proved at his own presumptions.
2. That the complainant left the amount in PCR Van and did not take back the said amount and made false allegations against PCR Staff.
The plea No. 1 put-forth by the delinquents are not admitted being baseless and incorrect. The Enquiry Officer after examining the statement of PWs, exhibits, defence statements and other evidences came on record during the departmental enquiry rightly proved the charge the delinquents.
The plea No. 2 put-forth by the delinquents are also not admitted being baseless and incorrect. From the depositions of PWs, it has 16 OA No. 4300/2015 Item No.11/C-II been proved that that while performing their official duty in the intervening night of 30/31-7-11 on PCR Van V-32 met with one Sh. Abhishek Jaiswal outside Hotel Shangrrilla, took Rs. 5,000/- from his coat pocket, misbehaved with him and later dropped him on the road. Shri Abhishek Jaiswal made complaint to senior officers who ordered enquiry which was conducted by Inspr. PG/NDD. During enquiry all the delinquents were identified by the complainant. In this regard identification proceedings was photographed and delinquents returned Rs.5,000/ - and also admitted their mistake. I have carefully gone through the D.E file, statements of PWs/DWs/Exhibits, charge, defence statements and other relevant record including representations of the delinquents available on file. They were also heard in O.R on 16- 7-2013. PW-8 deposed during the DE proceedings that Inspr. Pradeep Singh conducted enquiry into the complaint of Sh. Abhishek Jaiswal which was given to ASI Inder Pal Singh of PS Parliament Street and was recorded in the intervening night of 30/31-7-2011. Shri Abhishek Jaiswal was present during the enquiry in the office of Inspr.PG Cell/New Delhi District on 1-8- 2011, when 24 police personnel were produced by SI Balbir Singh (PW-9) of New Delhi Zone/PCR, who were on duty in the intervening night of 30/31-7-2011 on seven PCR Vans. The facts of the complaint were disclosed to them as well as SI Balbir Singh and complainant Sh. Abhishek Jaiswal was asked to identify three police personnel whose conduct was mentioned in his complaint. He identified three police personnel whose names were later on known as ASI Sohan Lal, No.5239/PCR, Const. Ravinder Kumar, No. 2144/PCR. and Const. (Dvr.) Aditya, No.9195/PCR. Complainant further stated that Const. Ravinder was sitting on the back seat of the wan who took out Rs. 5,000/, Const. Aditya misbehaved with him. Whereas ASI Sohan Lal was privy to the whole incident. After the identification, all the three police personnel felt sorry for the incident and confessed their fault and returned Rs. 5,000/- to the complainant Sh. Abhishek Jaiswal. The whole proceedings of identification was video graphed by Inspr. Pradeep Singh on 1-8-2011. Nine GC notes in the denomination of Rs. 500/- each and five notes of Rs. 100/- each were photocopied and PW 8 placed his signatures at Point-A on it alongwith three police personnel and complainant as well on the statement of complainant which was recorded by Inspr, Pradeep Singh, PW-11. PW-11, Inspr. Pradeep Singh deposed that on 1-8-2011 while posted in PG Cell/NDD, he was called by Addl. CP/NDD where he was introduced with one Sh. Abhishek Jaiswal. He was directed to enquire into his complaint by conducted identification parade of PCR staff. He verbally requested ACP/PCR to send the PCR Van staff in PG Cell/NDD, who were detailed for duty in New Delhi District in the intervening night 30/31-7-2011. On the request, 24 police personnel were sent to the office of PG Cell/NDD out of which 17 OA No. 4300/2015 Item No.11/C-II three police personnel namely ASI Sohan Lal, No. 5239/PCR, Const. Ravinder Kumar, No.2144/PCR and Const. (Dvr.) Aditya, No. 9195/PCR were identified by the complainant. All the three police personnel admitted their mistake and returned Rs. 5,000/- to the complainant.
Therefore, keeping in view of above discussion, facts and circumstances of the case and agreeing with the findings of the Enquiry Officer, I Umesh Kumar, Addl. Dy. Commissioner of Police, GA, PCR, Delhi award punishment of forfeiture of one year approved service temporarily for a period of one year in the time scale of pay to ASI Sohan Lal, No. 5239/PCR with immediate effect, entailing proportionate reduction in his pay and award punishment of forfeiture of two years approved service permanently in the time scale of pay to Const. Ravinder Kumar, No. 2144/PCR and Const. (Dvr.) Aditya, No. 9195/PCR with immediate effect, entailing proportionate reduction in their pay from Rs. 9,260/-PM (including grade pay) to Rs. 8,720/- PM (including grade pay) and from Rs. 9,260/- PM (including grade pay) to Rs. 8,720/- PM including grade pay) respectively, which in my view will meet ends of justice. The suspension period of all the three above mentioned police personnel from 1-8-2011 to 16- 2-2012 is decided as period not spent on duty for all intents and purposes.
Let a copy of this order be given to ASI Sohan Lal, No. 5239/PCR, Const. Ravinder Kumar, No. 2144/PCR and Const. (Dvr.) Aditya, No. 9195/PCR, free of cost. They can file an appeal to Addl. Commissioner of Police/PCR, Delhi against this order within 30 days from the date of its receipt by enclosing a copy of this order, if they so desire."
21. The applicant filed an appeal (Annexure-A/5) against the punishment order. The Appellate Authority vide order dated 28.01.2015 (Annexure-A/4) decided his appeal. For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"The appellant has taken the pleas:-
(1) That the impugned punishment order of disciplinary authority is illegal, unconstitutional and not sustainable in the eyes of the law. The punishment has been awarded by ignoring the submissions of star witness Sh. Ahishek Jaiswal (PW-10). 18 OA No. 4300/2015
Item No.11/C-II Hence, it required to be quashed and set-aside in the interest of justice.
The plea advanced by the appellant is not tenable. The disciplinary authority has carefully gone through the statements of PWs/charge/exhibits/findings of the E.O. and representation submitted by the appellant as well as record placed on file and in the light of facts and circumstances of the case awarded such punishment to the appellant which is well commensurate with the misconduct committed by him.
(2) That as per duty charter appellant has to drive the PCR van and has no authority to intervene in the duty of the other staff. I/C Van is responsible for the affairs of the duty of PCR van. The appellant was duty bound to drive the vehicle as per directions/order of I/C Van. The misconduct of other staff cannot be attributed on the part of the appellant but the disciplinary authority imposed similar punishment as awarded to-Gunman Const. Ravinder Kumar considering his misconduct. As such the punishment order is illegal and bad in law. The allegation/charge against the appellant that Sh. Abhishek Jaiswal reached hotel Janpath and told this incident to the hotel Manager/Receptionist Mr. Rohit Niranjan who informed PCR has not been proved at all (PW-10) Sh. Abhishek Jaiswal (the complainant) during DE proceedings has not mentioned anything in this regard. The facts on record as were explained by the appellant regarding reaching of Sh. Abhishek Jaiswal at hotel-Bros; Janpath have not been taken into consideration or verified during the enquiry. The physical condition of Sh. Abhishek Jaiswal was not so sound and hewas not even able to reach hotel Bros by walking as he was under the influence of liquor and he himself admitted these facts during the DE proceedings. The disciplinary authority has not taken into account appropriately these facts and awarded such punishment in haste to the appellant. Hence, the same is required to be quashed and set aside.
The plea advanced by the appellant is not tenable. On the night intervening 30/31.07.2011 the appellant while posted in PCR Unit and deployed at PCR van (V-32), stopped one Sh. Abhishek Jaiswal s/o Sh, Ram Babu Jaiswal, r/0 10-9-A, Idgah, Hotel Sakshi, Allahabad (UP) at around 3.30 AM when he was coming out from hotel Shangrilla, Cannought Place, New Delhi after attending a party. The staff of above said MPV enquired about his identity. He told PCR staff that he does not have any ID. Thereafter, PCR staff asked him to sit in PCR van. He sat in PCR van on the rear seat where delinquent Const. Ravinder, No. 2144/PCR was also sitting. PCR staff took him one Km. away from there and Const. Ravinder, No. 2144/PCR who was sitting with him took out Rs. 5000/- from the pocket of his coat. This 19 OA No. 4300/2015 Item No.11/C-II incident was also seen by the appellant Const. (Dvr.) Aditya Kumar, No. 9195/PCR and ASI Sohan Lạl, No-5239/PCR, who were sitting on front seats of PCR van. Later, they went away from the spot after getting him out from the PCR van. Thereafter, Sh. Abhishek Jaiswal reached Hotel Janpath and told this incident to hotel Manager/Receptionist Mr. Rohit Niranjan, who informed PCR. The PCR call was received at PS Connaught Place vide DD No. 33-A dated 31.07.2011 in this regard and was marked to SI Sunil Kumar, No. D/4756 who met complainant Sh. Abhishek Jaiswal and on enquiry, he came to know that the alleged incident was occurred outside hotel Shangrilla in the jurisdiction of PS Parliament Street, New Delhi. SI Sunil Kumar got lodged the PCR call in PS Parliament Street, New Delhi there it was lodged vide DD No.31-A dated 31.07.2011 and entrusted to ASI Inder Pal Singh of PS Pt. Street for enquiry. ASI met the complainant and recorded his statement as mentioned above. ASI also got conducted medical examination of complainant Abhishek Jaiswal in RML Hospital vide MLC No. 117168/11 in which Dr. declared him having consumption of alcohol and also mentioned smell of alcohol + on the MLC. Dr. has also taken blood sample of complainant and handed over to ASI Inder Pal Singh. ASI brought all these facts into the notice of SHO of PS Parliament Street and kept the DD entry pending vide DD No.8-A dated 31.07.2011 in order to verify the facts. On 01.08.2011 complainant Abhishek Jaiswal met worthy Addl. CP/NDD in his office and narrated the incident to him. Worthy Addl. CP/NDD: called Inspr. Pradeep Singh, Vigilance/NDD in his office and directed to conduct an enquiry in this matter by carrying out Identification parade of all the PCR staff who was deployed at and around Shangrilla Hotel on the intervening night of 30/31.07.2011.. Accordingly, Sh. Rajender Singh, ACP/PCR, New Delhi Zone (Mobile No. 8750871761) was informed who has sent 07 PCR van i.e. V-28, V-32, V-48, V-52, V-7, Cobra-8 and Cobra-9 alongwith their staff (24 police personnel), who were deployed on these PCR Vans on the night of 30/31.07.2011, under the supervision of SI Balbir Singh, No. 1444/D, Checking Officer, New Delhi Zone/PCR (Tiger-41) in the office of P.G. Cell/NDD. All these police personnel were shown to the complainant out of them complainant identified 03 police personnel one by one who were standing at different places in the group of 24 police personnel claiming that these 03 police personnel are responsible for the said act as alleged by him. Video recording of whole proceeding was also got prepared by Inspr. Vigilance/NDD. The names of police personnel who were identified by the complainant were ASI Sohan Lal, No.5239/PCR, Const. Ravinder Kumar, No. 2144/PCR and Const. (Dvr.) Aditya Kumar, No.9195/PCR (the appellant). The police officials were detailed on V-32 PCR van on the intervening nightof 30/31.07.2011. The complainant further identified that Const. Ravinder Kumar took out Rs. 5,000/- from 20 OA No. 4300/2015 Item No.11/C-II the pocket of his coat and other two were aware of his act and also that Const. (Dvr.) Aditya Kumar, No. 9196/PCR misbehaved with him. Later, all three above police personnel admitted their fault and made apology before the complainant and returned Rs. 5,000/- to him (09 currency notes of Rs. 500/- each and five currency notes of Rs. 100/- each).Thereafter the complainant got recorded his statement stating that the erring police officials have made apology and returned his money so he does not want to get any criminal case registered against them, but he wanted that suitable departmental action may be initiated against them so that they could not repeat such type of act in future with anyone. The above statement of complainant was signed by the erring police officials also after reading it. Thereafter, photocopies of all currency notes have been signed by the complainant as well as erring police officials. The above proceedings were conducted in the presence of SI Balbir Singh, No. No. 1444/D, PCR/New/Delhi Zone, ASI Inder Pal Singh, No. 1935/ND of PS Parliament Street and ASI Ram Niwas, No. 1521/ND ofP.G. Cell/NDD and they also signed all the above mentioned documents. From the enquiry, ASI Sohan Lal, No. 5239/PCR, Const. Ravinder Kumar, No. 2144/PCR and Const. (Dvr.) Aditya Kumar, No. 9195/PCR were found guilty of taking money from the complainant without his will. For the above-misconduct, the appellant alongwith co- delinquent were placed under suspension vide DD/No.37 dated 01.08.2011, NDZ/PCR read with order No.21932-66/HAP (P-II)/ PCR dated 19.08.2011. Later on, the appellant was re-instated from suspension vide order No. 2800-2831/HAP (P-II)/PCR dated 17.02.2012 without prejudice to the departmental enquiry pending against him, (3) That Inspr. Pradeep Singh (PW-11) has admitted the following facts during DE proceedings:-
(i) No identification memo. in respect of identified persons was prepared. No information was lodged in the Roznamcha in this regard. No Gazetted Office was present at the time of identification.
(ii)No seizure memo of the amount allegedly returned to Sh.
Abhishek Jaiswal was prepared and also no information was lodged in the Roznamcha in this regard.
(iii) No seizure memo was prepared in respect of the photocopies of G.C. Notes. The CD in question prepared by PW-11 was not testified from FSL. From the perusal of CD it is clear that Sh. Abhishek Jaiswal has not pin pointed at the appellant and he was in suspicion. The CD was tempered with for ulterior motive and used against the appellant as evidence. The chief statement recorded during DE proceedings of Sh. Abhishek Jaiswal has not 21 OA No. 4300/2015 Item No.11/C-II been taken into consideration. The punishment order issued on the basis of CL prepared by PW-11 is illegal in the eyes of law and the same is required to be quashed and set aside. The plea advanced by the appellant is not tenable. From the depositions of PWs, it has been proved that while performing their official duties in the intervening night 30/31.07.2011 on PCR van (V-32) the appellant alongwith co-delinquents met with one Sh. Abhishek Jaiswal outside hotel Shangrilla, took Rs.5000/- from the pocket of his coat, misbehaved with him and later dropped on the road. Sh.Abhishek Jaiswal made complaint to senior officers who ordered enquiry in the matter which was conducted by Inspr. P.G. Cell/NDD. During enquiry the appellant and co-delinquents were identified by the complainant. In this regard, identification proceedings was photographed and delinquents returned Rs. 5,000/- and also admitted their mistake. I have carefully gone through the appeal submitted by the appellant, statements of PWs and entire record available in the file. He was also heard in OR on 27.01.2015. During OR he said nothing new except already mentioned, in the appeal. In view of above discussion and from the statements of PWs as well as material/evidence came on record during D.E. proceedings, it has clearly been proved that in the intervening night of 30/31.07.2011 the appellant and co-delinquent were performing duty on.PCR Van (V-32), met with one Sh. Abhishek Jaiswal outside Hotel shangrilla, took Rs. 5,000/- from the pocket of his coat, misbehaved with him and later dropped on the road. During identification parade the complainant identified all three police personnel out of 24. After identification, all the three delinquents admitted their mistake and returned the money to the complainant in the presence of PW-11. I, therefore, do not find any reason to interfere with the punishment order of the disciplinary authority. Hence the appeal is rejected Let the appellant be informed accordingly."
22. We are aware of the law laid down by the Hon'ble Supreme Court in the matter of B. C. Chaturvedi Vs. Union of India & Ors. (supra) and State Bank of Bikaner & Jaipur Vs. Srinath Gupta & Anr.(supra) relied upon by the learned counsel for the respondents and agree that the disciplinary authority, and on appeal the appellate authority, being fact- 22 OA No. 4300/2015 Item No.11/C-II finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. We also hold the view that this Tribunal while adjudicating a matter of this nature where a punishment has been imposed upon the applicant after Departmental Inquiry, needs to apply itself with open eyes to examine whether such an inquiry is conducted following the principles of natural justice and the findings/conclusions drawn by the Inquiry Authority are based on the logical outcomes of facts and material during the course of inquiry proceedings. The Tribunal while adjudicating such matters needs to follow an approach which is not pedantic.
23. In the impugned order dated 20.09.2011, (Annexure A-1), it is stated that the applicant (Constable Driver Aditya Kumar) has misbehaved with the complainant (Shri Abhisekh Jaiswal). It is also mentioned that the applicant along with two other co- workers, one of them ASI Sohan Lal, who is the senior in the PCR team of 03 officials, are found guilty of taking money from the complainant without his will. In this case, a joint inquiry was conducted against all the 03 (three) delinquent employees including the applicant. The role and responsibilities of each 23 OA No. 4300/2015 Item No.11/C-II employee is an important factor while framing charge against them. The statements and cross examination of PW-8 & 9 confirms that identification parade of 24 police personnels, who were on night duty on 30/31.07.2011 was conducted and the complainant identified from distance the three employees including the applicant. Deposition of these witnesses confirm of having returned an amount of Rs. 5,000/- (Five thousand) to the above-mentioned complainant. While recording his observation on the deposition of witnesses, the inquiry officer in his report has also recorded the brief on cross examination of PW-10, who is an important material witness and is also complainant. During the course of inquiry, he has stated that he cannot recollect the incident of 30/31.07.2011 night as he was under the influence of liquor. It is further recorded in the report of inquiry officer that PW-10 has stated that no identification proceedings were conducted in his presence but his signatures were taken. It is further stated that neither he read the statement nor it was read over to him. It is mentioned that the PW-10 (Abhisekh Jaiswal) never met the present delinquents. While discussing the evidence, Shri Baljeet Singh, ACP, DE Cell, Delhi has recorded on internal page 10 of Annexure-A/2 that from the deposition of PW-10, the sequence of events has been proved as well as proceedings conducted during the inquiry on his complaint though had denied the involvement of delinquents in taking his 24 OA No. 4300/2015 Item No.11/C-II money. While concluding the inquiry, the inquiry officer has proved the charge against the delinquent officials including the applicant.
24. A Standing Order No. A-20 issued by the Respondents, which mandates impartiality, fairness, and reliance on evidence while conducting inquiries. The instructions contained in Standing Order No. A-20 reads as under:-
I. The findings should be based only on evidence brought on record.
The evidence has to be weighed and evaluated carefully, intelligently, dispassionately and impartially.
II. The enquiry officer has to draw his inferences and record his reasoned conclusions, and while doing so, the defence evidence has also to be considered appropriately. The assessment of evidence and arguments on each charge should be done under separate headings.
III. The enquiry officer should then forward the findings in duplicate along with the DE file to the concerned disciplinary authority. The Standing Order further clearly says that all enquiries judicial, departmental or other, into the conduct of the individuals must conform to the basic principle of natural justice, these are:-
a. The person proceeded against must be given a fair and reasonable opportunity to defend himself. b. The person charged with the duty of holding the enquiry must discharge his duty without bias and certainly without vindictiveness. He must conduct himself objectively and dispassionately, not merely during the procedural stages of the inquiry, but also in dealing with 25 OA No. 4300/2015 Item No.11/C-II the evidence and the material on record when drawing up the final report.
c. The conclusion must rest on the evidence and not on matters outside the record.
d. The conclusion must rest on the evidence and it must not be based on a misreading or misinterpretation of the evidence. Justice should not only be done but should appear to have been done.
25. A perusal of Enquiry Officer's report placed as Annexure- A/2 (Pages 17 to 26) reveals that the Enquiry Officer has abruptly come to the conclusion that charges framed against the applicant namely, Constable (Driver) Aditya is proved. In so far as the allegation against the applicant is concerned, such conclusion of Enquiry Officer is not based on the evidence adduced during the course of the enquiry and particularly in wake of complete denial of incident by PW-10 i.e. Shri Abhishek Jaiswal who is also the complainant in the matter. We come to the conclusion that the enquiry is conducted in a biased manner in gross disregard to the facts which came up during the course of the enquiry.
26. It is clear from the proceedings of inquiry that there is complete non-application of mind by the Inquiry Officer, he has failed to conduct inquiry in an impartial manner. When during the course of inquiry, there is no adverse material with regard to allegations against the applicant, how the charge against him is held to be proved in absence of any material. Further, when the 26 OA No. 4300/2015 Item No.11/C-II complainant himself has denied everything even the identification parade, getting back money from the delinquents and never having met the present delinquents, how the charge against the applicant has been proved. This clearly shows the high handedness of the Inquiry Officer.
27. Further, neither the Disciplinary Authority nor the Appellate Authority applied their mind on the report submitted by the Enquiry Officer. Disciplinary Authority imposed a punishment of forfeiture of two years approved service permanently in the time scale of par to Constable (Driver) Aditya, No. 9195/PCR with immediate effect, entailing proportionate reduction in his pay from Rs. 9,260/- per month (including Grade Pay) to Rs. 8,720/- per month (including Grade Pay). The Appellate Authority while deciding the appeal of the applicant has stated in the appellate order that it has clearly been proved that that in the intervening night of 30/31.07.2011 the appellant and co-delinquent were performing duty on. PCR Van (V-32), met with one Sh. Abhishek Jaiswal outside Hotel Shangrila, took Rs. 5,000/- from the pocket of his coat, misbehaved with him and later dropped on the road. During identification parade the complainant identified all three police personnel out of 24. After identification, all the three delinquents admitted their mistake and returned the money to the complainant in the presence of PW-11. I, therefore, do not find 27 OA No. 4300/2015 Item No.11/C-II any reason to interfere with the punishment order of the disciplinary authority. Hence, the appeal is rejected. However, as per the version of PW- 10 mentioned by the Enquiry Officer in his report dated 17.05.2013 (Annexure-A/2) (pages 17-26), neither the allegation of payment of Rs. 5,000/- nor the facts of identification of the applicant as delinquent employee through any identification parade has been confirmed.
28. In view of above, the present O.A. is allowed with the following directions: -
i. Order of punishment dated 25.07.2013 (Annexure-
A/3) and Appellate Order dated 28.01.2015 (Annexure-A/4) are quashed and set aside.
ii. The respondents are directed to restore the original service of the applicant with his pay and other consequential benefits including promotion/seniority arrears of pay as soon as possible and preferably within four weeks of receipt of copy of this Order.
iii. However, there shall be no order as to costs.
Associated M.A., if any, also stands disposed of accordingly.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/