Central Administrative Tribunal - Delhi
Satish Kumar (49/L) vs Government Of Nct Of Delhi on 12 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 912/2010 NEW DELHI THIS THE 12th DAY OF OCTOBER, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) Satish Kumar (49/L), S/o Shri Dharamvir Singh Malik, R/o 59/17, F-4, New Rohtak Road, Karol Bagh, New Delhi-110005. Applicant. (By Advocate Shri Shyam Babu) Versus 1. Government of NCT of Delhi, Through its Chief Secretary, Players Building, I.P. Estate, New Delhi. 2. The Joint Commissioner of Police, (Northern Range) Police Headquarters, I.P. Estate, New Delhi. 3. Dy. Commissioner of Police (Central District) P.S. Darya Ganj, Delhi. 4. Additional Deputy Commissioner of Police, Central District, P.S. Darya Ganj, Delhi. Respondents. (By Advocate Mrs. Renu George) ORDER
Mr. G. George Paracken:
The reliefs sought by the applicant in this Original Application are as under:
call for the records of the case and quash/set aside the enquiry report 24th February, 2009 (Annexure-H), the impugned order of punishment dated 11.6.2009 (Annexure-A), the impugned appellate order dated 11.12.2009 (Annexure-B) and the order dated 5.12.2009 (Annexure-C);
grant all consequential reliefs/benefits to the Applicant which he is entitled in law and;
pass such other or further order (s) as may be deemed fit and proper in facts and circumstances of the present case.
2. According to the Summary of Allegations communicated to the applicant vide Annexure `F Memo dated 23.04.2007, the allegations against him, the list of witnesses and the list of documents by whom/which the aforesaid allegations were proposed to be proved by the disciplinary authority were as under:
ALLEGATIONS:
It is alleged against HC Satish Kumar No. 316/C that on 2.12.2006 while posted at P.S. I.P. Estate, he reached P.S. Karolbagh duty officer room and started talking with Const. Virender Kumar No. 1334/C, P.S. Karol Bagh. In the meantime Inspr. Ishwar Singh Beniwal, SHO/Karol Bagh came there and asked the purpose of his visit in the PS Karol Bagh from HC Satish Kumar No. 316/C. HC Satish Kumar No. 316/C was also found in drunken condition. Hence, he was got medically examined by SHO/Karol Bagh. His medical examination shows smell of alcohol (+). SI Ram Swaroop No. D-1792, duty officer and Ct Hazari Lal No. 1153/C, DD Writer of P.S. Karol Bagh weer present in the reporting room when HC Satish Kumar No. 316/C was found in drunken condition by Inspr. Ishwar Singh Beniwal, SHO/Karol Bagh, Delhi.
The above act on the part of HC Satish Kumar No. 316/C amounts to gross misconduct and unbecoming of a Police Officials which render him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980. LIST OF WITNESSES SI Ram Swaroop No. D/1792 D.O. P.S. Karol Bagh. He will depose that on 2.12.2006, he was Duty Officer of P.S. Karol Bagh and present at the time of incident.
Const. Hazari Lal No. 1153/C, P.S. Karol Bagh. He will depose that on 2.12.2006, he was DD writer of P.S. Karol Bagh and present at the time of incident.
SI Mahipal No. P.S. Karol Bagh. He will depose DD No. 76-B dt 2.12.2006, P.S. Karol Bagh.
Inspr. Ishwar Singh Beniwal, SHO/Karol Bagh. He will depose DD No. 78-B dt 2.12.2006 P.S. Karol Bagh and report about the conduct of HC Satish Kumar No. 316/C. Dr. H.R. Singh, CMO/LHMC. He will depose C.R. No. 59184/06 dt 6.12.2006, Lady Harding Medical College, Delhi reg. medical examination of HC Satish Kumar No. 316/C. SIP/Central Distt. He will depose of posting of HC Satish Kumar No. 316/C. LIST OF DOCUMENTS RELIED UPON Copy of statement of SI Ram Swaroop No. D-1792, P.S. Karol Bagh, Delhi.
Copy of statement of Ct. Hazari Lal No. 1153/C. Copy of report of Inspr. Ishwar Singh Beniwal, SHO/Karol Bagh, Delhi.
Copy of DD No. 76-B dt 2.12.2006, P.S. Karol Bagh regarding medical examination of HC Satish Kumar No. 316/C. Photocopy of medical examination (C.R. No. 59184/06) of HC Satish Kumar No. 316/C dt 2.12.2006 of Lady Harding Medical College, Delhi.
Copy of DD No. 78-B dt 2.12.2006, P.S. Karol Bagh.
3. During the enquiry proceedings, all the aforesaid prosecution witnesses except witness No. 5, namely, Dr. H.R. Singh, have made their depositions. The applicant has, therefore, made the objection before the enquiry officer in not calling Dr. H.R. Singh, who was a listed Prosecution Witness and who alone could have proved the medical examination of the applicant made vide CR No. 59184/06 which was also a listed document furnished to him along with the summary of allegations.
4. However, the enquiry officer in his `Discussion of Evidence has not considered the aforesaid contention of the applicant at all and came to the conclusion that the charge against him was fully proved beyond any doubt. The relevant part of the Enquiry Officers report containing the discussion of evidence and conclusions is as under:
During the D.E. proceedings and on examination of P.Ws it is found that defaulter HC had visited P.S. Karol Bagh on 02.12.2006 and he was posted at P.S. I.P. Estate on that day.
It was also proved that defaulter HC got access to the Chittha of P.S. Karol Bagh without any permission from the Duty Officer of the Police Station. It is obligatory on his part that before getting access to the chittha he might have taken approval of the immediate supervisory officer of the Police Station i.e. D.O. who has actual control over this document.
The Medical Examination of the defaulter HC Satish Kumar was conducted at 10.30 P.M. on 02.12.06 vide C.R. No. 59184/06, clearly indicates that he was under influence of liquor. HC Satish Kumar has produced one Doctor in his defence who stated that defaulter HC had been under his treatment since 12.10.06 to 07.12.06 and he was being treated for allergy, cough and appetite disease. One Medicine `Bayers contains 10% of alcohol and prescribed to take 5 ml at a time which does not have much smell for a long time. The influence of liquor and in the inebriated stage, the Medical examination indicates that he has consumed enough liquor before coming to the P.S. Karol Bagh as the smell of alcohol was coming out of his mouth even at the time of his Medical Examination which was conducted at 10.30 P.M. while he was detained at 9.30 P.M. in the D.O. Room, and was sent for Medical Examination. As far as reliance over the statement of Ct. Virender No. 1334/C is concerned as quoted by defaulter HC in his defence statement, he was duly examined during the preliminary enquiry and his evidence is not admissible being a motivated witness.
I have carefully gone through the deposition made by the PWs in their examination-in-chief as well as in their cross examination, exhibits brought on the record and DWs produced by the defaulter. I am of the firm opinion that the charge against HC Satish Kumar No. 316/C, is fully proved beyond any doubt.
5. The applicant has made the Annexure-I representation dated 27.03.2009 to the disciplinary authority against the aforesaid Enquiry Officers report pointing out that the enquiry officer has failed to consider his plea that Dr. H.R. Singh, the Medical Officer who was a listed witness was not produced by the prosecution during the enquiry proceedings and as such he lost the opportunity to cross examine him to bring out the truth.
6. The disciplinary authority, however, after having considered the findings of the enquiry officer held that the medical examination of the defaulter Head Constable confirmed Smell of alcohol (+). However, it did not make any mention about his aforesaid representation pointing out the failure on the part of the prosecution to produce the listed witness Dr. H.R. Singh and denial of opportunity to him to cross examine him. The relevant part of the Annexure A order of the disciplinary authority dated 11.06.2009 is as under:
I have carefully gone through the findings of the E.O. and other material/evidence available on the record of D.E. file. I have perused his written representation also. The allegations against him is that he had consumed alcohol and visited the D.O. Room of P.S. Karol Bagh and was found in drunken condition by the then Inspr./SHO Ishwar Singh Beniwal. The medical examination of the defaulter Head Constable confirmed Smell of alcohol (+). Consequently summary of allegations was served upon him and he was dealt with departmentally. The enquiry officer submitted his findings. The E.O. has proved the charge. During O.R. he took the plea that he had consumed some medicine due to which smell of alcohol was coming out of his mouth. This plea of the defaulter H.C. is not convincing enough to offset the charge of consuming of alcohol as he never told this fact to the medical officer at the time of examination. I have also perused the statements of PWs and DWs. Therefore, I, Jaspal Singh, Dy. Commissioner of Police, Central District, Delhi hereby inflict Head Const. Satish Kumar, No. 316/C a punishment of stoppage of one increment for a period of one year without cumulative effect. His above suspension period is also decided as period not spent on duty for all intents and purposes.
7. Thereafter, the applicant made a statutory appeal dated nil against the aforesaid order of the disciplinary authority taking various grounds including the ground that there was failure on the part of the prosecution, enquiry officer as well as the disciplinary authority to consider his plea regarding non production of the listed witness Dr. H.R. Singh. The relevant part of the said appeal is as under:
10. On the contrary the doctor who had examined the applicant was cited as a prosecution witness but was not brought in the witness box. This has caused a serious prejudice to the applicant because her report has been taken into account without the author of the report being made available for cross-examination. In Modula India Vs. Kamakshya Singh Deo 1988 SC 619 the Supreme Court held that the evidence of the prosecution witness becomes admissible only after it has passed through the test of cross examination. Their Lordships further held that It is a well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination. Since doctors report to the extent that there was smell of alcohol in applicants mouth was taken into consideration, applicant had every right to cross examine the doctor concerned. Hence depriving the applicant of a legitimate right is in plain violation of principles of natural justice. This very failure on the part of the prosecution has rendered the enquiry vitiated. In this context applicant would want your kind attention to what worthy C.P. Delhi has said in S.O No. 125, which he issued on 8.10.08 in his own signatures. At page 1 last para he has said that the rules mentioned above have to be kept in mind carefully along with Article 311 of the Constitution of India by all the disciplinary authorities to ensure that procedure and instructions/circulars issued on the subject matter mentioned above are followed meticulously. Any failure/lapse to strictly adhere to the procedure, either willfully or through gross negligence may vitiate the entire departmental proceedings rendering them null and void.
8. The appellate authority vide Annexure B order dated 11.12.2009 rejected his appeal stating that there was no reason to interfere in the order of the punishing authority. It further stated in its order that the appellant had consumed liquor and misbehaved with the then SHO/Karol Bagh Ishwar Singh. It has also stated in the said order that if the appellant had taken the medicine which contains alcohol, he was supposed to have explained that to the doctor who had examined him. The relevant part of the said order is as under:
HC. Satish Kumar No. 316/C was heard in O.R. He mainly pleaded that he was not feeling well and was under treatment at Dr. B.D. Attam Hospital & Medical Research Centre Pvt. Ltd. 10 Pragati Market, Ashok Vihar-II, New Delhi. The medicine taken by him as per advice of Doctor contains 10% alcohol which resulted in smell of alcohol (+) when he was got medically examined. I have gone through the appeal preferred by the appellant and other material available on file. The appellant had consumed liquor and misbehaved with the then SHO/Karol Bagh, Sh. Ishwar Singh which is not acceptable in any circumstances. Had he taken the medicine which contains alcohol, he was supposed to explain that to the doctor who had examined him. Hence, the plea taken by him is after thought. In the circumstances, I have no reason to interfere in the order of punishing authority and reject the appeal.
9. The applicant has assailed the aforesaid enquiry officers report dated 24.02.2009, disciplinary authoritys order dated 11.06.2009 and the appellate authoritys order dated 11.12.2009 on various grounds. However, during the course of arguments, learned counsel for the applicant Shri Shyam Babu has emphasized only ground that in the absence of examination of Dr. H.R. Singh, CMO/LHMC and his cross examination by the applicant during the enquiry proceedings, enquiry officer could not have held that the charge against him was proved to the extent that he was found in drunken condition and he was got medically examined by SHO Karol Bagh. He has also argued that in the absence of deposition by the doctor, the allegation made against him in the charge that his medical examination shows smell of alcohol also remains unsubstantiated and unproved. As such, the enquiry officer has misconducted the case by arbitrarily proving the charge that the applicant was found in drunken condition and he was got medically examined by SHO Karol Bagh and his medical examination shows smell of alcohol.
10. The respondents in their reply have repeated what was stated in the order of the disciplinary authority. They have stated that the medical examination of the applicant was conducted vide CR No. 59184/06 which clearly indicates that he was under the influence of liquor. Besides, their contention was that the applicant has accepted that he was medically examined and has not challenged that the report was given by Dr. H.R. Singh, CMO. Hence there was no need to cite Dr. H.R. Singh as a prosecution witness. They have also stated that the doctor who was produced as a defence witness by the applicant had stated that he was under his treatment since 12.10.2006 to 7.12.2006 and he was being treated for allergy, cough and appetite disease. The medicine `Nayers contains 10% of alcohol and is prescribed to take 5 ml. at a time which does not have much smell for a long time but the medical examination indicates that he had consumed enough liquor before coming to P.S. Karol Bagh as the smell of alcohol was coming out of his mouth even at the time of the medical examination which was conducted at 10.30 PM while he was detained at 9.30 PM in the D.O. Room.
11. We have heard the learned counsel for the applicant Shri Shyam Babu and the learned counsel for the respondents Mrs. Renu George. According to Shri Shyam Babu, the crux of the charge against the applicant was that he has consumed liquor and there was smell of alcohol coming out from his mouth but the said charge has never been proved during the departmental proceedings as the only material witness who could have proved the said charge and the authenticity of the medical report during the departmental enquiry was Dr. H.R. Singh who was listed as the prosecution witness but was not produced. His further argument was that the non production of the said material witness and the resultant denial of opportunity to the applicant to cross examine him has prejudicially affected his interests in the departmental proceedings.
12. In this regard, he has relied upon a judgment of the Apex Court in Modula India Vs. Kamakshya Singh Deo (1988 (4) SCC 619), it was held as under:
It is a well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination
13. He has also relied upon a judgment of the Apex Court in Bachubhai Hassanalli Karyani Vs. State of Maharashtra (1972 SCC (Cri.) 178) in support of his argument that mere smell of alcohol does not indicate that one is under the influence of drinking. In the said case, the deposition of the Doctor was considered. According to the doctor, a person could smell alcohol without being under the influence of drinking. The Apex Court has also observed that no urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis was produced by the prosecution.
14. We consider that the submission of the learned counsel for the applicant has merit. In a departmental proceedings, the documents relied upon for proving the charge have to be proved by the witness concerned who is authorized to do. In this case, it was specifically stated in the list of documents and the list of witness that Dr. H.R. Singh would prove the medical report. However, the disciplinary authority miserably failed to produce the said listed witness to prove the said listed document. Neither any other prosecution witness was competent to prove the said medical report nor the same was even attempted to be proved during the disciplinary proceedings. When, admittedly the said witness was not produced by the enquiry officer and the said document remained unproved, the finding of the enquiry officer to the contrary that the charge is proved against the applicant can only be considered as a perverse one. We, therefore, allow the OA and quash and set aside the enquiry officers report dated 24.02.2009 and the orders of the disciplinary authority as well as the appellate authority dated 11.06.2009 and 11.12.2009 respectively. There shall be no order as to costs.
( Shailendra Pandey) ( G. George Paracken ) Member (A) Member (J) SRD