Central Administrative Tribunal - Delhi
Sanjay Kumar vs Comm. Of Police on 21 April, 2023
1
OA 1123/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. 1123/2016
Reserved on: 11.04.2023
Pronounced on:21.04.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Sanjay Kumar
PIS No.28891730
HC in Delhi Police,
Aged about 47 years
S/o Late Shri Sukhbir Singh,
R/o R-541-42,
Raghubir Nagar,
New Delhi-27 ...Applicant
(Through Mr. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi
2. Addl. C.P. (F.R.R.O.)
PHQ, IP Estate, New Delhi
3. Insp. Shamsher Singh (EO)
Through Commissioner of Police,
PHQ, IP Estate, New Delhi ...Respondents
(Through Mrs. Sumedha Sharma, Advocate)
2
OA 1123/2016
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act 1985, the applicant has sought the following reliefs:
"1. To quash and set aside the Impugned Order initiating DE dt. 30.1.2014, Findings dt.
31.7.2014, Order of Punishment dt. 17.9.2014 and Appellate Order dt. 27.1.2016.
2. To direct the respondents to restore to the applicant his original service with all consequential benefits including promotion/ seniority and arrears of pay.
3. Award cost of the proceedings in favour of the applicant and pass such other and further orders as deemed fit and proper in the circumstances of the case to meet the ends of justice."
2. Brief facts of the case are that a regular departmental enquiry (DE) was initiated against Head Constable Sanjay Kumar, applicant in this case, on the allegation that on 30.10.2013, one person namely, Lal Narayan Rai approached F&R branch where the applicant was working for extension of Indian visa for some Nigerian nationals based on medical certificates. On suspicion, Shri Narayan Rai was interrogated and he told that he worked as a Customer Care Executive in Nova Medical Center, NCR Region Private Limited and had devised the way of making fake medical certificates and submitting them by using counterfeit stamps of the said hospital and used to charge Rs. 2000/- per case. Apart from 3 OA 1123/2016 blank papers of the letter head of Nova Medical Center, NCR Region Private Limited, stamps with impression of different medical offices were recovered from his possession. Subsequently he was handed over to local police and a case was registered under the relevant Sections of IPC in PS RK Puram, New Delhi. He also disclosed that previously several extensions were successfully obtained on fake medical certificates. On re-examining the extensions of Visas granted to Nigerian nationals during 1.01.2013 and 1.11.2013 on medical grounds various fake cases were detected wherein forged medical certificates were provided. Sh. Rai was arrested accordingly and after being released on bail in the above case, he was called and his statement was recorded, in which he revealed that while submitting fake medical certificates of Nigerian nationals for registration and visa extensions at FRRO, he used to approach the applicant and JIO-1 Mahesh Chand, an official of IB department, posted in F&R branch to facilitate his cases and used to give them Rupees 400-500 per case.
3. A DE was initiated against the applicant accordingly for misconduct. He was placed under suspension on 18.12.2013 and reinstated from suspension without prejudice to the DE pending against him vide office order dated 25.02.2014. DE initiated against him culminated into imposition of major penalty of forfeiture of two years approved service with cumulative effect entailing reduction in his pay. His 4 OA 1123/2016 suspension period was to be treated as not spent on duty for all intents and purposes vide order dated 17.09.2014 of the disciplinary authority (DA). Feeling aggrieved with the decision of DA, the applicant filed an appeal which was rejected by the Appellate Authority (AA), observing that the DA had passed a speaking and reasoned order. Hence this OA.
4. The applicant states that the DA in utter violation of the rules and regulations and also in violation of principles of natural justice and without considering the representation of the applicant proved the charges against him awarding the penalty of forfeiture of two years approved service permanently, which was rejected mechanically by the AA endorsing the perverse and untenable reasoning given by the DA.
5. The respondents in their counter have denied these grounds and asserted that the inquiry was done as per the laid down procedure and there is nothing to suggest that the penalty imposed was unjustified.
6. We have heard the learned counsels for the parties and gone through the pleadings available on record.
7. On perusal of record after hearing the learned counsels, it emerges that the primary contention of the applicant is about the procedure followed in the instant departmental 5 OA 1123/2016 inquiry, which was not done as per the prescribed rules. It is submitted by the learned counsel for applicant, that at least on four grounds the proceedings of the departmental inquiry were vitiated, which are as follows:
(i) there was violation of rule 16 (i) of Delhi Police (Punishment & Appeal) Rules 1980 in as much as a copy of the inquiry report was not supplied to the applicant.
(ii) the second lapse was regarding the cross-
examination of PW -6 by the concerned EO in violation of rule 16 of Delhi Police (Punishment & Appeal) Rules 1980.
(iii) thirdly, the only material witness PW-6 in his examination-in-chief categorically stated that he did not allege anything against the applicant in his earlier recorded statement. PW-6 further stated that his earlier recorded statement was recorded under pressure by the officer but the same was overlooked by the EO.
(iv) lastly, though the defence witnesses proved the innocence of the applicant, they were not cross- examined.
8. During the hearing, the learned counsel for the applicant makes his submission in the context of the aforementioned four grounds, including the alleged violation 6 OA 1123/2016 of procedure related to cross-examination of PW-6 by the EO. On this issue, learned counsel for the applicant has averred that after the cross-examination of PW-6 by the applicant, the EO illegally cross-examined PW-6 in violation of rule 16 of Delhi Police (Punishment and Appeal) Rules in order to fill up gap in the inquiry and to bring evidence against the applicant with the aim of achieving the objective of proving the charge. Thus the EO acted as a Prosecutor during DE proceedings against the well settled law that an EO cannot cross examine the PWs. It is argued that in ASI Sher Singh Vs. Govt. of NCT of Delhi, O.A.2827/2003 decided by Principal Bench of the Tribunal, it was observed as follows:
"8. We do not dispute the right of the enquiry officer to seek clarificatory questions. After all they are semi-judicial proceedings and the enquiry officer is not a silent spectator. However, if he intends to seek clarification, it should be so specifically indicated. The enquiry officer cannot start cross- examining the witnesses and then not permitting the delinquent thereafter a further right. It is this flaw which has crept into the proceedings which prompts us to conclude that in the facts before us, the impugned order cannot be sustained. The record reveals that the enquiry officer cross-examined Mohd. Hanif, applicant, PW-3 and even Sub-Inspector Amit Bikram from the CBI. The record does not reveal that the clarifications were being sought. It also does not reveal that further cross-examination in this regard was permitted."
Further the Hon'ble High Court of Delhi in Commissioner of Police and ors. Vs. Bikram Singh, W.P. (C) 3466/2010 observed as follows:
"10. It is well-settled that an Enquiry Officer does have a right to ask clarificatory questions as the Enquiry Officer is not supposed to act as a silent spectator. However, if he intends to seek clarification, he should say so specifically. He cannot cross- examine the witnesses and that also without permitting the charged official a further right to cross-examine the witnesses. The conduct of the Enquiry Officer thus caused a serious prejudice to the case of the respondent. The Tribunal rightly came 7 OA 1123/2016 to a conclusion that the enquiry report cannot be sustained because it suffers from basis procedural flaws and is violative of not only the principle of natural justice but also of the prescribed rules and the law as discussed in the impugned order."
9. In his submission, the learned counsel for the respondents has denied that there was any cross- examination of PW-6 by the EO as stipulated in rule 16 (iii),
(iv) and (v) of Delhi Police (Punishment & Appeal) Rules that the EO can put clarificatory questions to the witness and the questions asked by the EO were in the nature of clarification and not cross-examination.
Rule 16 (iii), (iv) and (v) of the aforesaid Rules is quoted below for ready reference:
"16.(iii) If the accused police of officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witnesses concerned. The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to elucidating the facts referred to in the statements of documents thus brought on record.
(iv) When the evidence in support of the allegations has been recorded the Enquiry Officer shall-
(a) If he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him or recommended his discharge to 8 OA 1123/2016 the Deputy Commissioner of Police or other officer, who may be so empowered or,
(b) Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.
(v) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time, not exceeding two working days, to prepare a list of such witnesses together with a summary of the facts they will testify and to produce them at his expense in 10 days. The enquiry officer is empowered to refuse to hear any witnesses whose evidence he considers to be irrelevant or unnecessary in regard to the specific charge. He shall record the statements of those witnesses whom he decides to admit in the presence of the accused officer who shall be allowed to address question to them, the answers to which shall be recorded; provided that the enquiry officer may cause to be recorded by any other Police Officer superior in rank to the accused officer the statements of a witness whose presence cannot be secured without delay, expenses or inconvenience and may bring such statements on record. When such a procedure is adopted, the accused officer may be allowed to draw up a list of questions he wishes to be answered by such witnesses. The enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer and he will be allowed to take notes."
10. To ascertain the veracity of the submissions made by both the parties regarding cross-examination of PW-6, we requested the respondents to place before us the relevant departmental proceeding file on 11.04.2023.
11. We have perused the DE file which runs into 55 pages, excluding exhibits and miscellaneous papers. It starts with the order sheet dated 3.02.2014 stating that a DE was initiated against the applicant vide order dated 30.01.2014, which was entrusted to the EO. Subsequently, various orders containing the proceedings on different dates have been mentioned, followed by summary of allegations. The deposition/examination of various PWs are at pages 9 to 28, 9 OA 1123/2016 which shows that altogether 11 PWs deposed and were cross- examined by the applicant through his Defence Assistant Shri Rohtash Singh, retired ACP, Delhi Police, in most of the cases. But when we come to PW-6, after the cross- examination by Defence Assistant, the said Shri Rohtash Singh, there is another cross-examination as indicated in the records of relevant departmental enquiry captioned as follows:
"Cross by EO Inspr. Shamsher Singh"
Following this about 11 questions have been posed to him by EO. It may be mentioned here that one of the crucial submissions by the respondents to establish that there was no violation of any procedure pertaining to departmental inquiry, was that the EO had only put clarificatory questions to the witnesses and hence the DE was in line with rule 16
(iii), (iv) and (v) of Delhi Police (Punishment & Appeal) Rules 1980.
12. During the course of hearing also, learned counsel for the respondents built his case submitting that there was no cross-examination of PW-6. But the perusal of the relevant departmental proceeding record is contrary to the submission made through the counter affidavit as well as during the hearing by the learned counsel for the respondents, as it is clearly mentioned at page 6 of the proceedings that EO Inspector Shamsher Singh cross-examined PW-6. It is not in 10 OA 1123/2016 doubt that the EO with a view to obtain clarification can put questions to the Prosecution Witnesses (PWs) as also the Defence Witnesses (DWs) but in that case also he should permit the delinquent employee to cross-examine such witnesses on those clarifications.
13. Also, if the EO conducts a regular examination-in-chief by leading the PW through the prosecution case, or puts leading questions to the departmental witness or puts suggestive questions to prove the prosecution case, the EO acts as prosecution thereby vitiating the inquiry. The EO is an independent arbiter, who ordinarily is supposed to remain aloof and not involve himself especially in the process of examination and cross-examination of any particular witness. In the instant case EO indulged in the act of cross- examining PW-6 as is also evident not only from the above mentioned caption "Cross by EO Inspr. Shamsher Singh" but also from the tone and tenor of the questions asked. Also if the claim of the respondent is that the questions were clarificatory in nature, opportunity should have been accorded to the delinquent employee to cross-examine such witness, but the same was not done. This takes us to the conclusion that the departmental proceeding has been vitiated on the aforementioned counts.
14. We have not gone into the merit of other three grounds taken by the applicant as it is clear that departmental inquiry 11 OA 1123/2016 has not been held according to the procedure prescribed and due procedure has not been followed in the instant case.
15. In view of the above, the OA is partly allowed and the impugned order initiating DE dated 30.01.2014, findings dated 31.07.2014 and the orders passed by the DA and the AA dated 17.09.2014 and 27.01.2016 are set aside. The applicant will be entitled for all consequential benefits. However, the respondents will be at liberty to restart the departmental proceedings from the stage it was vitiated and in accordance with law. There shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member(J) /dkm/