Central Administrative Tribunal - Delhi
Shyam Sunder Hc In Delhi Police vs Govt. Of Nct Of Delhi on 4 December, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4431/2011 M.A.No.3326/2011 Reserved on 10.05.2012 Pronounced on 04.12.2012 Honble Mr. George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) Shyam Sunder HC in Delhi Police Aged about 39 years (PIS No.28931408) R/o 28/8, Babar Pur, Rana Pratap Gali, Shahdara, Delhi. ..Applicant (By Advocate: Shri Anil Singal) Versus 1. Govt. of NCT of Delhi through Commissioner of Police Police Head Quarters IP Estate, New Delhi 2. Joint Commissioner of Police (Traffic), PHQ IP Estate, New Delhi 3. DCP (Traffic) Police Headquarters IP Estate, New Delhi. ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R
Shri Sudhir Kumar, Member (A) The applicant of this OA is before us aggrieved that the order of punishment meted out to him is different than that in the case of other similarly situated persons, and hence this OA.
2. The applicant is a Head Constable (HC, for short) in Delhi Police. When he was posted in the office of Deputy Commissioner of Police, Traffic, a departmental enquiry was initiated against him along with HC Suraj Bhan, HC Rohtas Singh and Constable Narender Kumar through Annexure A-1 dated 11.02.2000, on the ground that on 15.12.1999, during surveillance by the Staff of Inspection Cell in the Traffic Division, they were found conducting unauthorized checking of commercial vehicles and collecting illegal money After that, the Inquiry Officer (IO, for short) circulated summary of allegations along with a list of witnesses, and a list of documents, through which the allegations against the applicant and others were sought to be proved. On denial of the charges, a detailed inquiry was conducted by the IO, who examined 7 prosecution witnesses, and then submitted his findings to the Disciplinary Authority, concluding therein that the charges levelled against him were proved.
3. The applicant has submitted that the findings of the IO are perverse in nature, and are based on no evidence, and that he has been held guilty on surmises and conjectures, without the IO applying his mind to the defence statement. However, the Disciplinary Authority accepted the report of the IO holding the charges against the applicant and others as proved, and vide order dated 17.02.2001, he had awarded the punishment of forfeiture of two years approved service, and in lieu of the punishment of forfeiture of two years approved service, permanently entailing reduction in the applicants pay by two stages from Rs.3500/- to Rs.3350/-, and further directing that he would not earn increments of pay during the period of reduction, and on expiry of this period, the reduction will have the effect of postponing his future increments.
4. The applicant then filed an appeal against the punishment before the Joint Commissioner of Police, Traffic, but the same was rejected by the Appellate Authority vide its order dated 18.03.2002. The applicant then approached this Tribunal in OA 1243/2002, which was decided on 28.01.2003, and the impugned orders of punishment were quashed by this Tribunal, and the case was remitted back to the Disciplinary Authority for imposition of punishment, with a direction that the respondents shall pass a fresh order on the point of punishment after giving notice to the applicant, within a period of two months. Thereafter, in obedience of this direction, through a show cause notice dated 05.03.2003, the applicant was called upon to show cause as to why a fresh order of punishment should not be passed, in lieu of punishment earlier awarded to him on 17.02.2001, with regard to the findings of the IO already served upon him on 08.08.2000, and against which he had already represented on 01.09.2000. In response to the show cause notice, the applicant submitted his reply on 13.03.2003, and he was also given an opportunity of personal hearing on 24.03.2003.
5. Though the applicant had raised some contentions in his reply to the Show Cause Notice, but during the personal hearing, he admitted wrong-doing on his part, and apologized for his fault. As a result, in compliance of the order of this Tribunal dated 28.01.2003, through the Disciplinary Authoritys order dated 25.03.2003, the applicant was awarded the punishment of forfeiture of two years approved service permanently entailing reduction in his pay by two stages,which immediately stood reduced from Rs.3500/- to Rs.3350/-. It was further ordered on 17.06.2003 that the suspension period of the Constable from 15.12.1999 to 25.04.2001 would be treated as period not spent on duty vide order dated 17.02.2001. The applicant has submitted that the orders of his punishment dated 25.03.2003 and 17.06.2003 are totally non-speaking and cryptic orders which did not take into consideration any of the grounds taken by him in his defence, but in effect the earlier punishment order dated 17.02.2001 was illegally allowed to remain in force.
6. The applicant filed an appeal against the said punishment but through Annexure A-5 order dated 12.05.2004, the Appellate Authority also rejected his appeal. The disciplinary proceedings thereby culminated.
7. Much later, his co-delinquent HC Rohtas filed a separate OA No. 94/2007 before this Tribunal, and this Tribunal ultimately quashed the impugned punishment order of HC Rohtas vide judgment dated 30.06.2009 (Annexure A-6). Another OA No. 2585/2004 had been filed by another co-delinquent of the present applicant, HC Suraj Bhan, which was still pending, and, therefore, that O.A. was also allowed by this Tribunal on the basis of that judgment vide order dated 06.08.2009 (Annexure A-7). The official respondents challenged the judgment dated 30.06.2009 in H.C. Rohtass case before the Honble High Court of Delhi vide Writ Petition (c) No. 152/2010, which came to be dismissed vide order dated 12.01.2010, as has been mentioned by the applicant in the OA. The official respondents also challenged the judgment dated 06.08.2009 in OA 2585/2004 H.C. Suraj Bhans case, by filing Writ Petition (c) No. 243/2010 before the Honble High Court of Delhi, which also came to be dismissed on 15.01.2010 (Annexure A-9). Those two judgments of this Tribunal thereby stood confirmed by the Honble High Court of Delhi on 12.01.2010 and on 15.01.2010, and were therefore implemented by the respondents by passing an order dated 27.01.2010 (Annexure A-10).
8. The 3rd co-delinquent of the present applicant Constable Narender Kumar then filed OA No. 631/2010 against the order of punishment dated 17.02.2001, and the Appellate Order dated 18.03.2002 along with an MA for condonation of delay. Based upon its earlier judgment dated 30.06.2009 in OA 94/2007 of H.C. Rohtas, and judgment dated 06.08.2009 in OA 2585/2004 of H.C. Suraj Bhan, this Tribunal allowed the OA 631/2010 also on 13.01.2011 and the respondents thereafter implemented the order of the Tribunal through Annexure A-11 orders dated 13.01.2011, 28.03.2011 & 10.05.2011.
9. The present applicant has now filed this second OA, seeking extension of the benefit of the above-mentioned three judgments to him also now, since all the co-delinquents were dealt with in a common inquiry. In doing so, the applicant has relied upon the following case law:-
a) All India Loco Running Staff Association Northern Railway Jodhpur Vs. The Union of India and another, 1985(2) SLJ 399 K.C. Sharma & Others Vs. UOI & Ors., 1997(6)SCC 721 Ashwani Kumar and Others Vs. State of Bihar and Ors., (1997)2 SCC 1 Kamlakar & Ors. Vs. U.O.I. & Ors, JT 1999(4)SC 486 State of Karnataka & Ors. Vs. C. Lalitha, 2006(1) SCT 596 (SC) Mohinder Singh and Another Vs. State of Punjab and Others, (2004)12 SCC 311 Munna Kumar Vs. State of Bihar, (2005)12 SCC 209 Smt. Sumitra Devi Vs. Lt. Governor of Delhi & Ors., WP(C) No. 16/2004 decided on 29.10.2007 by the Delhi High Court.
i) Maharaj Krishan Bhatt and Another Vs. State of Jammu and Kashmir and Others, (2008) 9 SCC 24 J) Sengara Singh and Others Vs. State of Punjab and Others, (1983) 4 SCC 225
9. The applicant has taken the ground that the impugned orders of the respondents are illegal, arbitrary, malafide, unjustified, unreasonable, in violation of principles of natural justice, and based on misleading evidence, as they have failed to appreciate that the applicant is also entitled for the same relief which was given to the other three co-delinquents, and that since both the charges as alleged in the order of punishment against them were common, and, therefore, once the charges against the other three co-delinquents do not stand established, the same charges cannot at all be held to be sustained against the applicant alone. He has, therefore, submitted that both the order of the Disciplinary Authority imposing punishment and the Appellate order are liable to be set side. Another ground taken by the applicant is that the whole enquiry was vitiated, and held in violation of Rule 15(2) of Delhi Police (Punishment & Appeal) Rules, 1980, as after the preliminary enquiry conducted against him had disclosed the commission of a cognizable offence by the applicant in the course of discharge of his official duties, prior approval of the Additional Commissioner of Police was required to be obtained before ordering the DE as per Rule 15(2) of Delhi Police (Punishment & Appeal) Rules, 1980, but that no such approval appears to have been obtained, and no order number and date of order has been mentioned by the respondents which would go to show that the approval had been obtained.
11. The applicant has taken the further ground that the enquiry was further vitiated, because the IO had illegally cross examined the Prosecution Witness-7, and the Defence Witnesses, which is against the settled law, and in doing so he had assumed the role of the prosecutor also without any competence, and had thus exceeded his jurisdiction. It was further submitted that the enquiry was also vitiated as the IO had taken into consideration the earlier statement of the witnesses recorded during the preliminary enquiry, whereas under Rules 15(3) and 16(3) of Delhi Police (Punishment & Appeal) Rules, 1980, the statements recorded during the preliminary enquiry can be brought on record and considered only when the witnesses are no longer available, and not when they are available and are examined during the departmental enquiry. Further ground has been taken that the IO has relied more upon the statements recorded in preliminary enquiry, in preference to the statements recorded during the departmental enquiry, which is in violation of Rules 15(3) and 16 (3) of Delhi Police (Punishment & Appeal) Rules, 1980, as well as the principles of natural justice, which would go to show that there was no appropriate evidence in the departmental enquiry, by which his guilt could be proved, and therefore, the whole inquiry is liable to be set aside.
12. He has taken the further ground that the IO had examined 7 PWs, which are beyond the list of witnesses as initially supplied to him, as the IO had illegally examined Constable Rakesh Kumar as PW-5, beyond the original list of witnesses, and the same had greatly prejudiced the case of the applicant, and was also in violation of principles of natural justice, and, therefore, the whole enquiry is liable to be set aside and quashed. The applicant has also taken the ground that he is entitled to the same relief as has since been given to his co-delinquents, since the charges, the evidence and the initial orders of punishment were joint/common among them, and has prayed that the orders of punishment are liable to be set aside also, qua the applicant also with all consequential benefits, that had been given by the respondents to the co-delinquents of the applicant vide orders dated 27.01.2010, 28.03.2011 and 10.05.2011. In the result, he has, therefore, prayed for the following reliefs:
1. To quash and set aside the impugned orders as mentioned in Para-1 of O.A. and direct the respondents to restore to the applicant his original pay, and increments with all consequential benefits including promotion/seniority and arrears of pay.
2. To award cost in favor of the applicant.
3. To pass any order or orders which this Honble Tribunal may deem just & equitable in the facts & circumstances of the case.
13. The applicant has filed MA No. 3326/2011 also, in which he has admitted the delay of 7 years and 6 months in filing the present OA, by stating as follows:
1. That the applicant has filed the OA before this Honble Tribunal in the filing of which delay of 7 years and 6 months has occurred for which the present MA for condonation is being filed. The contents of accompanying OA be treated as part of this application also.
2. That the applicant is filing this present application for condonation of delay on the following grounds:-
A) Because co-defaulter HC Rohtas filed OAs before this Honble Tribunal and ultimately in OA No.94/07 this Honble Tribunal was pleased to quash the impugned orders vide Judgment dt. 30.6.2009.
B) Because on the basis of Judgment dt. 30.6.2009 in OA No.94/07 the OA No.2585/04 filed by HC Suraj Bhan another codefaulter was also allowed by this Honble Tribunal vide Judgment dt. 6.8.2009.
C) Because the respondents challenged the Judgment dt. 30.6.2009 in OA No. 94/07 by filing WP(C) No.152/10 before the High Court of Delhi but the same was dismissed on 12.1.2010 only.
D) Because the above-mentioned Judgments passed by this Honble Tribunal in favour of the co-defaulters and confirmed by the Honble High Court of Delhi have been implemented also by the respondents in favour of only the applicants therein but not in respect of the applicant who is also similarly situated.
E) Because Ct. Narender also filed OA No.631/10 against the Order of punishment dt. 17.2.2001 and Appellate Order dt. 18.3.2002 before this Honble Tribunal with MA for condonation of delay. This Honble Tribunal vide Judgment dt. 13.1.2011 on the basis of Judgment dt. 30.6.2009 in OA No. 94/07 and Judgment dt. 6.8.2009 in the OA No. 2585/04, was pleased to allow the OA No. 631/10. The respondents vide their Orders dt. 28.3.2011 & 10.5.2011 was pleased to implement the Judgment dt. 13.1.2011 but not in respect of the applicant who is also similarly situated.
Therefore, the orders of punishment were not challenged by filing the OA within the prescribed period for this purpose since the applicant was waiting for the outcome of the cases filed by the co-defaulter.
F) Because the applicant has a very good case in his favor on merits.
G) Because no prejudice has been caused and will be caused to the respondents if the delay in filing the present application is condoned.
H) Because the applicant will suffer an irreparable loss and injury in case the delay in filing the present petition is not condoned.
I) Because the delay even if existing, as per the Supreme Court in Ajaib singh Vs Sirhind. 1999(3) JT 38, instead of dismissing the petition merely on the ground of delay, this Honble Tribunal can appropriately mould the relief.
J) Because the delay in filing the accompanying petition is neither intentional nor deliberate but only due to the reasons mentioned above.
14. The applicant had, therefore, submitted that he has a very good case in his favour on merits, and no prejudice would be caused to the respondents, if the delay in filing the present original application is condoned, but rather he will suffer an irreparable loss and injury in case the delay in filing the OA is not condoned. It has been further stated by the applicant that the delay is neither intentional nor deliberate, but has occurred only due to the reasons mentioned above, and the delay, even if it is existing, as per the ratio laid down by the Honble Supreme Court in Ajaib Singh vs. Sirhind 1993 (3) JT 38, instead of dismissing the petition merely on the ground of delay, this Tribunal can appropriately mould the relief.
15. The respondents filed their counter reply on 08.02.2012, and defended their actions on the ground that the standard of proof as required in a Departmental Enquiry is that of pre-ponderance of probabilities, and not of proof beyond any reasonable doubt, and that the strict rules of procedures in respect of proof do not apply to a departmental enquiry, and, therefore submitted that this Tribunal may not interfere with the punishment imposed upon the applicant, and may not re-appreciate the evidence, and come to its own conclusion, with the following judgments being cited on their behalf:-
1 Union of India vs. Sardar Bahadur 1972 Vol.2 Supreme Court Reports page 225.
Union of India Vs.A Nagamalleshwara Rao reported in AIR 1998 Supreme Court page 111.
B.C.Chaturvedis case 1995 Vol.6 SCC page 749.
Parmanandas case AIR 1989 SC 1185.
State of Tamil Nadu Vs.S.Subramanyan 1996 Vol.7 SCC page 509.
State of Tamil Nadu Vs.K.V.Perumal 1996 Vol.5 SCC page 474.
State Bank of India vs. S.K.Endlow 1994 Vol.2 SCC page 537.
16. It was further submitted that this application is in essence barred by Sections 19, 20 and 21 of the Administrative Tribunals Act, 1985, and is liable to be dismissed in favour of the official respondents. Describing once again the facts of the instant case, the respondents had submitted that once the delinquency of all the four police officials, including the applicant, was found to be true from the findings of the preliminary enquiry, a common disciplinary enquiry was instituted, and the IO submitted his findings that the charges framed against the applicant and his co-delinquents is clearly substantiated beyond any doubt, and the Disciplinary Authority had also thereafter agreed with the findings of the IO, and passed his order dated 10.02.2001. Once again describing the sequence of case law, as already discussed above, it was submitted that after the applicants first OA No. 1243/2002 had been allowed, and directions had been issued to the respondents to pass a fresh order of punishment upon the applicant, during the personal hearing given to the applicant on 24.03.2003, though he had raised his contentions as made out in the written reply submitted on 13.03.2003, but later he had admitted his guilt, and had apologized for his fault during the personal hearing, because of which a punishment was imposed upon the applicant.
17. It was further submitted by the respondents that it has been held in a catena of judgments that an aggrieved party has to approach the Court within the statutory period prescribed, since after the expiry of that period, the Court cannot grant relief, as prayed for. In this context, it was submitted that the law is established that delay defeats equity, and parties are expected to pursue their rights and remedies promptly, and if they slumber over their rights, the Courts should decline to interfere, since the delay deprives of the remedy available, and if the remedy is lost, the right is also lost. It was further submitted that the Honble Apex Court has held that repeated representations given to various authorities do not furnish a fresh cause of action to file a Writ Petition. In saying so, they had cited the following judgments:
1.State of Punjab Vs.Gurdev Singh (1991) 4 SCC page 1
2. UOI Vs. Ratan Chandra Samanta JT 1993 (3) SC page 418.
Harish Uppal Vs. UOI JT 1994 (3) page 126.
Ratan Chandra Samanta JT 1993 (3) SC page 418.
Ajay Walia Vs. State of Haryana & Ors. JT 1997 (6) SC 592 D.C.S.Negi Vs. Union of India & Ors.
18. It was further submitted that as per the judgment & order dated 07.03.2011, the Honble Apex Court had in Special Leave Petition No. 3709/2011 in D.C.S.Negi vs. Union of India & Others held that the Tribunal required to meet the point of delay upfront, and even the fact that the objection of limitation is not raised by the respondent/non applicant is not at all relevant, since the Tribunal cannot abdicate his duty to act in accordance with the statute under which it has been established. It was further submitted that since the respondent authorities have themselves modified his punishment when the applicant had, during personal hearing, accepted his mistake, and apologized for his misconduct, there was no reason for this Tribunal to interfere with the orders already passed, just because some orders had been passed in respect of certain co-defaulters/co-delinquents of the applicant, for implementing the orders of the Courts in their cases. It was further denied that there was any mistake in conducting the disciplinary enquiry, since as per Rule 16(v) of the Delhi Police (Punishment & Appeal) Rules, 1980, the IO is empowered to cross examine the witnesses to clear ambiguities or to test their veracity. It was further submitted that just because the judgments passed by the Honble Courts in respect of co-delinquents of the applicant have been implemented by giving consequential benefits to them, there was not even a prima facie case for the applicant to seek any relief from this Tribunal, and it was prayed that the OA may be dismissed with costs.
19. The respondents also filed a reply to the MA No.3326/2011 for condonation of delay, in which they reiterated their contentions, and again cited the cases of State of Punjab vs. Gurudev Singh (supra), Union of India vs. Ratan Chandra Samanta (supra) and Harish Uppal vs. Union of India (supra) and the case of DCS Negi (supra). It was further submitted that when the applicant has himself admitted that the delay of 7 years and 6 months has occurred in his filing the present petition, and merely the ground of his having been waiting for the outcome of the cases filed by the co-delinquents is no excuse for filing this petition after 7 years and 6 months, under the Apex Courts judgment in DCS Negi (supra), both the application for condonation of delay, as well as OA, deserve to be dismissed.
20. The applicant filed a rejoinder on 27.02.2012, more or less reiterating his contentions, but denying that he had ever admitted his guilt, as projected by the Disciplinary Authority with mala fide intention in its order, which was challenged by the applicant in his appeal also, which was illegally rejected by the Appellate Authority. The learned counsel for the applicant had also filed a compilation of the judgments already cited above in Para-9.
21. Heard the case in detail. It was argued vehemently on the lines of the pleadings, and no new points were advanced during the arguments.
22. Before we take up the case on merit, in view of the admitted delay of 7 years and 6 months in the applicant having filed this OA, while the applicant was waiting for the outcome of the cases filed before the various Courts by his co-delinquents, we have to deal with the aspect of the delay, as required of us in view of the direction of the Apex Court in the case of DCS Negi (supra).
23. While in the cases of all the other three co-delinquents of the applicant, the punishment orders under challenge were the first common order of punishment dated 17.02.2001 by the Disciplinary Authority and the order dated 18.03.2002 of the Appellate Authority, the present applicant had already challenged those orders in his first OA No. 1243/2002, and since that O.A. was allowed, those orders were quashed qua the applicant through this Tribunals order dated 28.01.2003. Thereafter, as per directions of this Tribunal, fresh orders of punishment only qua the present applicant were passed by the Disciplinary Authority on 25.03.2003, which was confirmed by the Appellate Authority on 12.05.2004. Since the applicant has now challenged in this O.A. these later orders dated 25.03.2003 and 12.05.2004, his case stands on a different footing than that of the three co-delinquents.
24. The delay in his challenging the second set of orders of punishment in his case has been accepted by the applicant himself. The Honble Apex Court has in its order in the case of Harish Uppal vs. Union of India (supra) categorically laid down the law that the Court should help those who are vigilant, and not those who are indolent. The parties are expected to pursue their rights and remedies promptly, and if they just slumber over their rights, the Court should decline to interfere. Further, the Honble Apex Court had laid down the law in the case of D.C.S.Negi (supra) as follows:
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application in is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non applicant is not at all relevant.
25. In the instant case it is clear that the applicant had never laid a challenge in time to the second set of punishment orders passed in his case on 25.03.2003 and on 12.05.2004. Therefore, it is clear that in the instant case, in view of the law as laid down by the Honble Apex Court in Harish Uppal vs. Union of India (supra) and in D.C.S.Negi (supra), we cannot entertain this OA in view of the delay caused by the applicant on his own in challenging the second set of punishment orders passed in his case, only because he was waiting for the result of the challenge laid to the first common order of their punishment by his three co-delinquents, which had already been quashed qua the applicant on 28.01.2003 by this Tribunal.
26. There is also one more aspect of the case. The applicant had earlier approached this Tribunal in OA 1243/2002, which was decided on 28.01.2003, whereby the impugned punishment orders were quashed qua the applicant, and the case was remitted back to the Disciplinary Authority to pass a fresh order of imposition of punishment against the applicant, which was passed by the Disciplinary Authority vide order dated 25.03.2003. Therefore, since the conduct of the disciplinary enquiry, the report of the IO, and the acceptance of the report of the IO by the Disciplinary Authority, were not set aside by this Tribunal in its order dated 28.01.2003 in OA 1243/2002, all the contentions of the applicant in regard to the enquiry being vitiated on account of reasons as submitted by him, as described in detail in paragraphs 10,11 and 12/above, are hit by the principle of res judicata, and the applicant cannot now be allowed to again approach this Tribunal to be able to re-agitate those matters, which had already attained finality in so far as he was concerned, after a judicial review of those disciplinary proceedings through this Tribunals orders dated 28.01.2003, in which only the orders of the applicants punishment were quashed, but not the conduct of the disciplinary enquiry itself, or the enquiry report, or the agreement of the Disciplinary Authority with the report of and the conclusions of the IO.
27. Therefore, without going into the details of the ratio decidendi of the voluminous case laws filed by the learned counsel for the applicant, we have to hold that this Tribunal is bound by the directions of the Honble Apex Court to reject the case of the applicant on the point of delay, and that even otherwise, most of the contentions raised by him, and the grounds taken by him in the present OA, are already hit by the principle of res judicata, as mentioned above. The applicant cannot also seek any parity with the three co-delinquents of his, in whose cases the first common orders of their punishment (alongwith the present applicant) have since been set aside by this Tribunal, and also upheld by the Honble Delhi High Court, since that common order of punishment had already been set aside qua the applicant much earlier, and the present delayed challenge has been laid by the applicant only to the second set of punishment orders passed in his case in the years 2003 and 2004. Therefore, the OA No.4431/2011 and the MA No. 3326/2011 are both rejected, but there shall be no order as to costs.
(Sudhir Kumar) (G.George Paraken) Member (A) Member (J) /kdr/