Central Administrative Tribunal - Delhi
Hc Devender Kumar Tyagi vs Govt. Of Nct Of Delhi on 9 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.2231/2009 NEW DELHI, THIS THE 9th DAY OF MARCH 2010 HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) HC Devender Kumar Tyagi S/o Late Som Prakash Tyagi, R/o 282, Police Colony, Ashok Vihar Phase-I, Delhi-110052. Applicant. (Through Shri A.K. Trivedi, Advocate) VERSUS 1. Govt. of NCT of Delhi Through its Chief Secretary Delhi Secretariat, Delhi. 2. The Joint Commissioner of Police Delhi Police, Rashtrapati Bhawan, New Delhi. 3. The Dy. Commissioner of Police Delhi Police, R.P. Bhawan, New Delhi. North West District, Delhi. Respondents (Through Shri Nitesh Kumar Singh for Mrs. Avnish Ahlawat, Advocate) :O R D E R: MR. L.K. JOSHI, VICE CHAIRMAN (A):
We are called upon to answer a simple question in this OA, which is whether the appellate authority after finding very serious flaws in the inquiry report and coming to the conclusion that there was no evidence against the Applicant, could still maintain the order of the disciplinary authority albeit in a modified form by reducing the quantum of punishment.
2. The charge framed against the Applicant by the inquiry officer was that he gave unauthorized rest to Constables Jarnail Singh, Manoj Kumar, Sat Pal, Jai Bhagwan, Sanjeev and Omender Singh in the months of September and October 2006, when the Applicant was posted at the Rashtrapati Bhavan. The inquiry officer, on the basis of the statements of three witnesses for the prosecution and three witnesses for the defence came to the conclusion that the charges against the Applicant were established. The disciplinary authority inflicted the punishment of forfeiture of two years of the Applicants service permanently. Period of his suspension from 1.11.2006 to 28.05.2007 was also treated as period not spent on duty. The Applicant preferred an appeal against the aforementioned order of the disciplinary authority.
3. The appellate authority in his order dated 24.12.2008, inter alia, observed thus:
I have gone through the appeal, para-wise comments of the disciplinary authority, D.E. file and other relevant material available on record. I have also heard the appellant in orderly room on 12.9.2008. It is a matter of record that all these police personnel were granted rests on the above mentioned dates. But the question is that who was actually responsible for these lapses; the conclusion of the DE is not clearing this aspect. In the departmental enquiry, the E.O. seems to be in a hurry to conclude the DE to prove the sole responsibility of the appellant for these faults without going into the details of the circumstances of the each case. It is unbelievable that without the concurrence of the ACP/Inspr. Deployment, BHM could grant rest to anybody at his own sweet will as there was doubt on the conclusion. At this juncture, the following points emerged before the undersigned for consideration:-
1. None of the police personnel, who allegedly had been allowed to avail duty rest by the appellant, had been examined in the D.E.
2. The E.O. could not establish any link between the appellant and the police personnel who allegedly were permitted duty rest.
3. On further examination of record, it is found that during cross examination, Inspr. Ravindra Kumar (PW-3) has admitted that Duty Roster contains the signature of BHM, SI/Deployment, and Inspr. Deployment and the appellant alone had been held responsible while the Duty Roster is being maintained under the close supervision of the Inspr. Deployment.
4. The Daily Duty Proforma, available in the DE file, does not contain any ones signature. On cross examination, PW-3 had also admitted this fact.
5. Two Munishi constables were posted there to assist the BHM in the daily duties during that period. They have not been examined to find out the facts as PWs.
6. It is not clear from the DE proceedings that who was actually posted as Inspr. Deployment during the occurrence of such incidents as the anonymous complaints were received only on 26.10./2006 & 2.11.2006. The supervisory officers viz. Inspr. Deployment and SI. Deployment have not been examined to find out extent of the root into the system.
7. Inspr. Ravindra Kumar (PW-3) deposed that he was looking after the work of Inspr. Deployment from November -2006. But EO did not ascertain the name of Inspr. who had actually worked as Inspr./Deployment to verify the allegations to support the prosecution.
In view of the above mentioned facts and circumstances of the case, the proceeding of the prosecution evidence in the DE has been found to be perfunctory. Such malpractices in a disciplined force have damaged the credibility of the system and encouraged unscrupulous elements to resort to unfair means. Whereas on the other hand, the E.O. failed to bring concrete evidence against the appellant in the D.E. to prove his nexus with the staff for such a malpractice putting a question mark against the role of supervisory officers, particularly Inspr./Deployment. I have not found any evidence in the departmental enquiry that the appellant had directly indulged into the malpractices in granting duty rest to the staff. There may be probability of prevalence on the part of the appellant. However, as a BHM, he can not absolve himself from his official responsibilities. If he had been cautious about his responsibilities, this situation would have not arisen. In view of the overall facts and circumstances of the case, I hereby modify the punishment awarded to the appellant by the disciplinary authority to that of forfeiture of two years approved service temporarily instead of permanently to meet the end of justice.
4. We note at the outset that the appellate authority has himself committed a gross irregularity by calling the comments of the disciplinary authority and consider these before passing the order in appeal. The appellate authority has to decide the appeal after going only through the records of the case, including the order of the disciplinary authority. It is not expected that he would also seek the comments of the disciplinary authority, against whose order he is deciding the appeal, as it is likely to cause prejudice in his mind.
5. More importantly, after shredding the report of the inquiry officer on the basis of noticing seven serious procedural lapses, finding the prosecution evidence perfunctory and coming to the conclusion that there was no evidence against the Applicant, he could not have still maintained the punishment against the Applicant by modifying it a bit. His observation in the end that such a situation would not have arisen, had the Applicant been conscious about his responsibilities, is, to say the least, an unexplained volte face by him. The only course open for the appellate authority was to order a fresh inquiry.
6. The OA is allowed. The orders of the disciplinary and appellate authorities are quashed and set aside. The Respondents would, however, be at liberty to proceed afresh against the Applicant departmentally, if so advised. If it is decided by the Respondents to hold a fresh inquiry, fresh summary of allegations must be communicated to the Applicant within two months of the receipt of a copy of this order, failing which the inquiry would not be reopened, as it is an old matter and cannot be permitted to linger on indefinitely to the Applicants detriment. If fresh inquiry is initiated following the directions as above, it would be completed and orders of the disciplinary authority should be passed within two months of issuance of fresh summary of allegations, subject to the cooperation by the Applicant. In the eventuality of a de novo inquiry the consequential benefits would abide by the result of the fresh inquiry. However, if the de novo inquiry is not initiated within the time prescribed above, the Applicant would be eligible to all the consequential benefits, as if he was never punished and the period of suspension would also be treated as on duty. No costs.
(DR. DHARAM PAUL SHARMA) (L.K. JOSHI) MEMBER (J) VICE CHAIRMAN (A) /dkm/