Central Administrative Tribunal - Delhi
Jai Prakash Sharma vs Commissioner Of Police on 27 July, 2011
Central Administrative Tribunal Principal Bench OA 70/2010 New Delhi, this the 27th day of July, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. R. C. Panda, Member (A) Jai Prakash Sharma Head Constable No. 208/E, Posted at 1st Bn. DAP S/o Sh. Rati Ram Sharma, R/o House No.8, Police Station Kalyan Puri, Delhi 110 091. Applicant (By Advocate: Dr. Ashwani Bhardwaj) Versus 1. Commissioner of Police, Police Headquarter, Indraprastha Estate, New Delhi. 2. Joint Commissioner of Police, New Delhi Range, Police Headquarter, Indraprastha Estate, New Delhi. 3. Dy. Commissioner of Police, East Distt., Delhi. Respondents (By Advocate: Mrs. Harvinder Oberoi) O R D E R Justice V.K. Bali, Chairman:
Sequel to regular departmental enquiry, Jai Prakash Sharma, applicant herein, has been inflicted punishment of withholding of next increment for a period of one year temporarily, vide orders dated 09.09.2008. Appeal against the order aforesaid came to be rejected by the appellate authority, vide orders dated 14.09.2009. These are the two orders that have been challenged in present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
2. Enquiry officer as per procedure prescribed in Delhi Police (Punishment & Appeal) Rules, 1980 after recording statements of PW-1 to PW-7, framed the following charge against the applicant:-
I, Inspector Anil Sharma, Addl. SHO/Krishna Nagar (E.O.) charge you Head Constable (Exe.) Jai Prakash, No. 208/E that on 29.08.06 a DD No. 39-A has been lodged regarding missing of two girls namely Pooja & Seeta and the DD entry was handed over to you HC Jai Prakash No.208/E for further enquiry by the Duty Officer HC Tejveer No.253/E. On 30.08.06 you HC Jai Prakash No.208/E came to know that both girls returned to their houses. On 12.09.06 the mother of one missing girl namely Seeta went to P.S. Kalyan Puri to give information about her daughter and a Dastyabi has been lodged of missing girl Seeta. Another missing girls parents did not inform about her daughter in P.S., hence you HC Jai Prakash, No. 208/E kept the DD No. 39-A dated 29.08.06 pending. On 04.09.06 when Sh. Dassu s/o Sh. Dharamdas the father of missing girl Pooja, gave complaint to Senior Officers against you HC Jai Prakash, No. 208/E and during enquiry the statements of the parents of both missing girls have been recorded, who alleged that you HC Jai Prakash never enquired the matter properly and also demanded money from Sh. Dassu. When you HC Jai Prakash No.208/E came to know about the complaint against you, after that you registered a case FIR No.513/06 u/s 342/354 IPC.
Though from the whole enquiry conducted by P.G. Cell/East it transpired that the case has not been registered in appropriate section of law as the case should have been registered under sections 363/366/506/34 IPC and also not in time. Hence you HC Jai Prakash No.208/E has not enquired the matter properly and also the case has not been registered timely and according to law.
The above act on the part of you HC Jai Prakash, No. 208/E amounts to gross misconduct, indiscipline, negligence and dereliction in the discharge of your official duty, which renders you liable for punishment under the provisions of Delhi Police (Punishment and Appeal Rules-1980.
3. Applicant, while availing opportunity given to him to lead evidence in defence, examined DW-1 to DW-6. Thereafter, the enquiry officer examined HC Ram Kishore as CW-1, Inspr. S.P. Rana as CW-2, and Sh. D.R. Birdhi as CW-3. In consideration of the evidence, the conclusion that was arrived at by the enquiry officer was that the charge against the applicant stood proved beyond any doubt.
4. We are not going into the details of this case at this stage for the reason that there are glaring procedural flaws in conduct of the enquiry and that the disciplinary authority has decided the matter without application of mind, whereas the appellate authority has not taken into consideration any of the points raised by the applicant in his memorandum of appeal. Reading of discussion of evidence made by the enquiry officer would clearly reveal that the material witnesses other than court witnesses, who proved the records, had resiled and the finding of guilt came to be recorded against the applicant on the basis of the statement of witnesses recorded during DE by the PG Cell/East District. Court witnesses, referred to above, were examined to prove the statements of the witnesses recorded during the DE. We may make a mention in that regard to some of the observations made by the enquiry officer while discussing the evidence:-
PW-1 has totally resiled her earlier statement dated 05.09.2006 given in P.G. Cell East District. xxx xxxx xxx All the PWs who were examined during the course of DE have totally resiled from their earlier statements recorded by the officers of PG Cell East District and clearly proved that all these PWs have been win over by the defaulter with the connivance of DW-3 and DW-4 who have also given their highly favourable statement in respect of the defaulter Head Constable. There is no mention whatsoever as to what was the defence projected by the applicant and what was the depositions made by the defence witnesses, and these are, in our view, glaring procedural flaws. Be that as it may, as mentioned above, enquiry officer chose to rely on the statements of the court witnesses as in its view the complaint was enquired into by the independent agency of PG Cell under close superintendence of senior officers, and the finding that ultimately came to be recorded is that the applicant failed to register the case under the required sections of IPC and adopted dilatory tactics in registering a case under section 342/3534 IPC for which he is entirely responsible for the alleged lapses. There is neither any discussion of evidence of the defence witnesses nor any finding as regards the allegation made against the applicant for his demanding illegal gratification, and yet in an ultimate analysis the charge, as mentioned above which includes asking for illegal gratification, has also been held to be proved.
5. The disciplinary authority, after giving sequence of events resulting into report against the applicant, copy whereof was supplied to him who represented against the same, observed as follows:-
The main plea of the defaulters that the (1) None of the PW supported the allegations, (2) due consideration was not given to the DWs, (3) The Ld. E.O. examined P.G. Cell Officer and a man as Court Witness which is biased attitude of the E.O. The plea taken by the defaulter are not tenable. During the course of D.E. the PWs fully supported the allegations against the HC, the E.O. considered the statements given by the PWs during the course of enquiry in his findings and there is no reason of biasness of the E.O. as the court Witnesses were examined as per procedure under rules.
I, Ajay Chaudhry, Dy. Commissioner of Police, East Distt. Being disciplinary authority award the punishment of withholding next increment for a period of one year temporarily to H.C. Jai Prakash, 208/E. The appellate authority, after giving facts of the case culminating into order of punishment inflicted by the disciplinary authority, observed as follows:-
Following the appeal, I have heard the appellant in O.R. He has nothing new to add to what he has already submitted in writing. I have also gone through the appeal preferred by the appellant and the other file records and found the contentions of the appellant not convincing. Moreover, the charge against the appellant was proved beyond doubt during D.E. Therefore, I, do not find any reason to interfere with the decision of the disciplinary authority. Hence, the appeal is rejected.
6. The disciplinary authority, in our view, has not applied its mind at all while returning the verdict of guilt. It observed that during the course of DE, the PWs fully supported the allegations against the applicant and the enquiry officer considered the statements given by the PWs during the course of enquiry in his findings, and there is no reason of biasness of the enquiry officer as the court witnesses were examined as per procedure under rules. The disciplinary authority would not even care to read the entire report of the enquiry officer who, as mentioned above, returned a finding of guilt even on the basis of statements made by the court witnesses, but after clearly observing that all the witnesses stood resiled. The finding of guilt by the enquiry officer was not returned on the basis of the evidence recorded by him, as observed by the disciplinary authority. Insofar as the appellate authority is concerned, it would give no reason whatsoever. The points raised by the applicant in his memorandum of appeal have not been even mentioned, least discussed.
7. In view of the facts and circumstances of the case as mentioned above, we set aside the impugned orders dated 09.09.2008 and 14.09.2009 passed by disciplinary authority appellate authority respectively and remand the matter to the enquiry officer who would return a finding in favour or against the applicant after taking into consideration the entire evidence which would include depositions made by the defence witnesses. The enquiry officer, in our view, could not possibly return a finding that the witnesses were mixed up without referring to what was their statement. If the report is against the applicant once again on the basis of the depositions of the court witnesses only, who had recorded their statement as material witnesses during the course of DE, the disciplinary authority shall decide as to whether the evidence which was led before the enquiry officer would be taken into consideration or the one which was taken in the PE without giving any chance of cross-examination to the applicant by passing a reasoned order. If the disciplinary authority may return a verdict against the applicant, the appellate authority would decide the appeal, if the same is filed by the applicant, by giving reasons even though in brevity after taking into consideration all the points to be raised by the applicant in his memorandum of appeal. Since the enquiry against the applicant was ordered on 21.10.2006 and a period of more than four years has already gone by, the matter shall be taken on priority and final orders, as referred to above, shall be passed, as expeditiously as possible and preferably within a period of six months from the date of receipt of certified copy of this order.
9. With the directions, as ordained above, present Original Application stands disposed of.
(Dr. R.C. Panda) (V.K. Bali)
Member (A) Chairman
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