Central Administrative Tribunal - Delhi
Inspector Dharmendra Pal Singh ... vs Govt. Of Nct Of Delhi Through on 13 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2247/2013 New Delhi this the 13th day of February, 2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) 1. Inspector Dharmendra Pal Singh No.D/3229 (Under suspension) R/o Flat No. 206/C-19, Shalimar Garden, Extension-II, Sahibabad, Ghaziabad, UP 2. SI Mahabir Singh No. D/4460 (Under Suspension) R/o Barracks, PS Gandhi Nagar, Delhi. Applicants (By Advocate Ms. Jasvinder Kaur) VERSUS 1. Govt. of NCT of Delhi through Commissioner, Delhi Police, MSO Building, IP Estate, New Delhi. 2. Joint Commissioner of Police /SER PHQ, MSO Building, IP Estate, New Delhi. 3. Deputy Commissioner of Police Vigilance Police Bhawan, Asaf Ali Road, New Delhi. 4. Mr.Asif Mohd Ali, Addl. DCP-1 East District Enquiry Officer, Office of DCP East, Mandawali Fazalpur, IP Extension, Delhi. . Respondents (By Advocate Mrs. Harvinder Oberoi ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
In the present OA filed by him under Section 19 of the ATA, 1985, the applicant has made the following prayers:-
8.1. May pleased to quash and set aside impugned orders dated 11.06.2013 & 05.07.2013 issued by Respondent no.1 & 3 respectively.
8.2. May direct the Respondent No. 2 to substitute & replace the Enquiry officer (respondent No. 4);
8.3. May direct the Respondent No. 2 to provide the additional document more essentially Video recording of demonstration held on 18.04.2013 at PS Gandhi Nagar;
8.4. May pass such other further orders/directions deem fit and proper in the facts of the case in favour of the applicant and against the Respondents. Brief facts of the case are that a vigilance enquiry had been conducted by a team of officers from the Vigilance Unit, regarding the alleged lapses on the part of local police in handling the incident related to missing/kidnapping of a 5 year old girl from the area of PS Gandhi Nagar and offering payment of Rs.2000/- to the father of the victim to hush up the matter. The allegations gathered from various quarters such as press reports and visual media as summarized in vigilance enquiry final report read as under:-
* Delay in registration of FIR * Non compliance of the guidelines/procedural lapses on the part of the local police, if any.
* Lapses on the part of local police in providing assistance to the victims family in the recovery of child. * Lapses on the part of supervisory officers. * Allegations of bribe of Rs.2000/- by the local police to the victims father to hush up the matter.
The team of the officers which conducted the enquiry (ibid) summarized its findings as under:-
(i) There is nothing to suggest that there was any inordinate delay in the registration of the case. FIR which was done at 10PM on 15.4.2013 itself after carrying out the procedural formalities required to be done in such cases.
(ii) Though there was no specific lead but the IO SI Mahabir Singh and SHO/Gandhi Nagar failed to make spot enquiries during the crucial initial two days, which had serious implications.
(iii) There was no specific guidance given to the IO and the beat staff by the SHO/Gandhi Nagar and there was lack of sensitivity on the part of the concerned officers to show empathy to victims family and make immediate efforts to trace/recover the girl chilled as is warranted in such a serious crime.
(iv) The following procedural delays/inadequacies were committed in the process of initial investigation:-
(a) WT Message was flashed after delay of 19 hours for all the Police Stations in India with the description of the missing girl, which was acknowledged at East District Control Room on 16.4.2013 at 1715 hrs.
(b) Entry in the ZIPNET about the missing girl was made only on 19.4.2013 when the girl had already been found.
(c) Missing persons Squad was intimated about the missing girl only on 19.4.2013, that too when the girl had already been recovered.
(d) No enquiries were made on 15.4.2013 and 16.4.2013 by the IO or any other police officer, including the beat staff, in the building or in the neighborhood of the building complex where the victims family resides.
(e) No spot visit was made by the IO, SHO or any other police officer in the initial two days and the probable circumstances of disappearance of the girl chilled were not investigated.
(f) Mobile and Foot Patrolling parties in the area were not altered about the missing girl.
(v) The case investigation should have been closely and proactively monitored to ensure compliance of instructions as laid down in various Standing Orders/Circulars.
(vi) Inspr.Dharmendra Pal Singh, the then SHO PS Gandhi Nagar has given Rs.2000/- to Sh.Prabhansh Mahto on 18.4.2013 at SDN Hospital with the instructions not to make public noise about the incident. The other here police personnel, who are his junior colleagues and accompanied him to the hospital did not play any active role nor interacted with Sh. Prabhansh Mahto while making the payment. However, the allegation that money has been paid to hush-up the matter as appeared in the media has not been substantiated because by this time the FIR had already been registered, the child was traced and NGOs/members of Crisis Intervention Centre had already been associated.
In view of the aforementioned summary (conclusion) an enquiry was ordered against the applicant and a summary of allegation was served on him. The applicant made a representation to the enquiry officer to supply additional as well as deficient documents. He asked for 8 additional documents and 6 deficient documents. He also prayed for deferment of the hearing of enquiry on the ground of his ailment. When the enquiry officer turned down the request of the applicant for adjournment as well as supply of additional documents, he made a representation to the Joint Commissioner of Police requesting for advising the enquiry officer to provide him the copy of video clip of the demonstration dated 18.04.2013. The request so made by the applicant to Joint Commissioner of Police was not acceded to and he was informed accordingly. The communication sent by Deputy Commissioner of Police (Vigilance) Delhi to the Dy Commissioner of Police, East District, Delhi in this regard reads as under:-
Subject: Regarding supply of additional documents Inspect. (Exe.) Dharmendra Pal Singh No. D/3329 SI (Exe.) Mahabir Singh, No. 5569/D. Memo.
Kindly refer to your office No. 188/SO-Addl.DCP-1/E dated 27.5.2013 and No. 3885/SO/SER dated 27.5.2013 on the subject cited above.
The request regarding providing of additional documents has been considered but could not be acceded to by CP Delhi.
The Inspector and SI may please be informed accordingly. Even the Commissioner of Police also did not accept the request of the applicant for supply of additional documents. Thus, the applicant filed the present OA before this Tribunal. Learned counsel for the applicant vehemently contended that once the applicant has not committed any misconduct, he should get fair opportunity to defend himself at the stage of framing of charges itself. Ms. Jasvinder Kaur, learned counsel for applicant relied upon the judgment of Honble Delhi High Court in Jug Raj Singh Vs. The Delhi Administration Delhi and Others ( C.W. No.756-D/66 decided on 31.7.1999).
2. In the counter reply filed on behalf of respondents, it is stated that all the documents as requested by the applicant have been made available except the case diaries from 10.04.2013 to 17.04.2013. Regarding the video clipping, it is stated that the same was not available at PS Gandhi Nagar. Regarding the comments made on the role of media, the respondents have stated that they have no control over it.
3 We have heard learned counsel for parties and perused the record. We find that the applicant made a detailed representation to the enquiry officer itself informing him that he has lost faith in him. Thereafter, he made a representation dated 17.06.2013 to the Joint Commissioner of Police making a request for advise to EO to supply him the copy of Video clip.
4. As far as the request of change of enquiry officer is concerned, we find that in the communication dated 05.07.2013, no reason is mentioned for not accepting the request of applicant. Likewise also, in the communication dated 11.06.2013 whereby his request for supply of additional documents is rejected, no reason is indicated for not accepting the request of the applicant. It is true that after accusation, the applicant would have an opportunity to defend himself against the charges, but as has been viewed by theHonble Delhi High Court in Yug Raj Vs. The Delhi Administration, Delhi and Others (ibid), the applicant may not be denied the documents he seeks to rely upon to confront the PWs. For easy reference, para 4 of the judgment is extracted hereinbelow:-
4. In Trilok Nath v. Union of India C.A 322 of 1957 decided on 1.11.1960 by a Constitution Bench of the Supreme Court, it was held that the inquiry against the appellant was governed by Rule 55 of the CCS (CCA) Rules, 1930. This Rule also provided that the person charged shall be entitled to cross-examine the witnesses without further elaborating on the scope of the cross-examination. In construing this rule, the Supreme Court observed as follows:
This Rule requires that the public servant concerned must be afforded an adequate opportunity of defending himself *****. Further, the public servant so requires for his defence he is to be furnished with copies of all the relevant documents, viz document sought to be relied upon by the Inquiry Officer or required by the public servant for his defence. It is important to bear in mind the two classes of documents to which the public servant has a right in defending himself. In the first class are the documents on which the Inquiry Officer relies, that is to say documents which are intended to be used by the prosecution agency to prove the charges against the public servant. It is the stand of the defence in this case that a copy of the complaint made by Shri S.K.Sharma was not given to the petitioner because the Inquiry Officer did not rely upon it and it was not to be used to bring home the charges to the petitioner. But, this defene is inadequate in as much as it does not take into account the second class of documents to which the petitioner was entitled. In this second class fall the documents which, even if they are not relied upon by the Inquiry Officer to support the charges against the petitioner, are nevertheless required by the petitioner for his defence. The learned counsel for the respondent tried to argue that under the Punjab Police Rule 16.24 (1) (iii) the file of the preliminary investigation was not to form part of the departmental inquiry and, therefore, the report and the statement of Shri S.K.Sharma recorded therein were not supplied to the petitioner. This argument is untenable. The relevant rule only means that the record of the preliminary inquiry having come into existence behind the back of the petitioner, was not to be used in support of the charges in the departmental inquiry. This does not mean that documents required by the petitioner for cross-examination of the witnesses during the departmental inquiry were not to be furnished to him. In fact, the petitioner was supplied with copies of statements of other witnesses examined in the preliminary inquiry. He was denied the copies of the report and the evidence of Shri S.K.Sharma alone from the record of the preliminary inquiry. The Punjab Police Rule 16.24 (1)(iii) clearly states that the petitioner was allowed access to files and papers for formulating his own documentary evidence and that he was to be supplied copies of documents subject to the ordinary rules regarding copying fees. There is no doubt that the relevant rules themselves confer on the petitioner the right to ask for copies of relevant documents which are to be used to contradict the witnesses to be examined against him in the departmental inquiry. An important aspect of his defence is to cross-examine witnesses against him by using their previous statements to contradict them. It would be seen, therefore, that there is absolutely no explanation and no defence made by the Inspector General of Police against the contention of the petitioner that the denial of those two documents to him disabled him from defending himself and thereby amounted to a contravention of the Punjab Police Rule 16.24 (1) (iii) as also the rules of natural justice I further find that the furnishing of documents of the public servant under the enquiry for the purpose of cross examination was also held to be essential for effective cross examination by a Division Bench of the Punjab High Court in Union of India V.Gurbachan Singh LPA 88 D of1965 decided on 17.10.1966. Since the entire emphasis put forth by learned counsel for applicant during the hearing was on the Video clip/Video recording of the demonstration dated 18.04.2013, we asked her about the particulars of the person who recorded the incident. On a specific question, learned counsel for the applicant could give the name of Constable Mr. Anil Singh. We summoned the said constable along with the Video clip. He produced the same on 12.11.2013. We ourselves browsed the same ( pen drive) and asked the applicant to hand over the same to learned counsel for respondents and the disciplinary authority was directed to take a view on the same. Pursuant to our orders, the Dy. Commissioner of Police, DE Cell, Delhi passed the following order:-
After perusal the order dated 12.11.2013 passed by the Principal Bench, Central Administrative Tribunal (CAT) in OA No.2247/2013, MA No.1745/13- Dharmendra Pal Singh & others Vs. Govt of NCT of Delhi & others, the disciplinary authority (Joint CP/ER) passed the following observations, for necessary action.
The video recording of the demonstration dated 18.4.2013 at PS/Gandhi Nagar done by Const. Anil Singh and produced before the Honble Tribunal and kept in his personal custody, is not on the Govt. record. He had not deposited the same in the Malkhana of the Police Station. As such he was neither cited as Prosecution Witness nor the CD in question was mentioned as a relied upon documents in the said D.E. initiated against Inspr. Dharmendra Pal Singh. The applicant Inspr. Dharmendra Pal Singh is at liberty to produce the CD through Const. Anil Singh by citing him as Defence Witness as per provisions contained in Rule 17 (v) of Delhi Police (Punishment and Appeal) Rules, 1980, if he so desire. The enquiry officer will give due consideration to the defence witness and documentary evidence produced by the delinquent in his defence in the D.E. proceedings which is pending with enquiry officer.
Let the Honble Tribunal be apprised accordingly. We are conscious that after accusation the applicant would be having an opportunity to defend himself, but in view of the aforementioned judgment of the Delhi High Court if a delinquent can defend himself against accusation itself and seeks to rely upon certain documents to do so, he may not be deprived of opportunity merely because he would have an opportunity to defend himself after framing of charges. Nevertheless, since the respondents are not prepared at all to accept the Videography done by Constable Anil Singh, applicant would procure the same himself from the said Constable and rely upon it to confront the evidence of the prosecution. It is not in dispute that in Rule 16 (iii) of Delhi Police (D&A) Rules, 1980, there is specific provision for cross examination of the PWs. For easy reference, said rule is extracted hereinbelow:-
16 (iii) If the accused police 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 statement 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 witness 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. It is settled position of law that justice should not only be done but seem to be done. Though, it is the responsibility of those who are there in the system to discharge their duties with utmost devotion, sincerity, honesty fairness and punctuality to serve the public, but when there is any lapse alleged on part of any Government employee/officer in the system, the weightage should be given to the steps taken by the vigilant citizen /individual in accordance with rules of law. The facts gathered from press reports, visual media and mood of the mob need to be assessed with extra care and caution while taking action against those who have the responsibility to maintain and enforce the law and order. When a concern is needed to be shown for the slackness shown by the Government official while discharging his official functions, the official should also be not made to feel that his version would not be heard at all.
5. In the circumstances, we dispose of the OA with direction to disciplinary authority to give personal hearing to applicant regarding his grievance against the enquiry officer and take a fair view in the matter. The applicant would be at liberty to obtain the copy of videography from Mr. Anil Kumar and use the same in confronting the evidence of the prosecution while defending himself in the enquiry proceedings. No costs.
( A.K.Bhardwaj ) (Sudhir Kumar) Member (J) Member (A) sk