Central Administrative Tribunal - Delhi
Desh Raj vs Govt. Of Nct Of Delhi on 2 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 4087/2010 New Delhi this the 2nd day of November, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Desh Raj, Constable (Driver) in Delhi Police, PIS No. 28912169 S/o Late Sh. Rampat, R/o WZ-927/C, Gali No. 16, Shah Nagar, Palam Colony, New Delhi-45. Applicant. (By Advocate Shri Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Special Commissioner of Police, Armed Police, Police Headquarter, I.P. Estate, New Delhi. 3. D.C.P (3rd Bn. DAP), Vikas Puri Police Line Complex, New Delhi. Respondents. (By Advocate Mrs. Harvinder Oberoi) O R D E R (Oral)
Shri G. George Paracken:
The applicant in this Original Application is aggrieved by the disciplinary proceedings culminated in the punishment of forfeiture of 10 years approved service permanently entailing proportionate reduction in his pay with immediate effect.
2. The respondents initiated a regular departmental inquiry against the applicant under the provisions of Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980 on the following allegations made against him:
It is alleged that on 14.11.07 Ct (Dvr) Desh Raj No. 7719/DAP accompanied by ASI (Tech) Raj Kumar No. 438/L and Ct Sanjeev Kumar No. 176/L proceeded to Burari Chowk on Govt. Vehicle TATA-407 No. DL-ILE-3947 vide DD No. 59 dt. 14.11.2007 to attend an off road Motorcycle which was being used by Inspr. K.C. Negi for OPD and admission checking in various Hospitals.
That the said vehicle No. DL-ILE-3947 while returning from Burari Chowk being driver by Ct. (Dvr) Desh Raj No. 7979/DAP was involved in an accident near Krishi apartments Vikas Puri as a result of which one lady Smt. Akashi W/o Late Triveni R/o A-96 Shiv Vihar, Vikas Nagar and a boy Govind S/o Late Ramdev were injured and both of them were rushed to DDU Hospital and both later expired in the Hospital. A case vide FIR NO. 434/07 U/S 279/337/304A IPC PS Vikash Puri was registered by the local police Ct. (Dvr) Desh Raj No. 7979/DAP, who was beaten up by the public was also taken to DDU Hospital where vide MLC NO. 20106 dt. 14.11.07 the Ct. (Dvr) was opined to be smell of Alcohol (+) present in breath by the examining Doctor. Ct. (Dvr) Desh Raj No. 7979/DAP was arrested in case FIR No. 434/07 U/S 279/337/304A IPC for causing death due to rash and negligent driving.
Thus Ct. (Dvr) Desh raj No. 7979/DAP by consuming alcohol during duty hours and causing a serious incident, resulting in loss or life of two persons has committed a violation of Rule-20 of CCS (Conduct) Rules, 1964.
The above act on the part of Ct. (Dvr) Desh Raj No. 7979/DAP amounts to gross misconduct, negligence, carelessness and dereliction in discharge of official duties for which he is liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rule-1980.
3. An inquiry was conducted. There were 07 PWs. However, there was no defence witness on behalf of the applicant. The Inquiry Officer, vide his Annexure A-2 report dated 27.08.2008, came to the conclusion that on the basis of the evidence which came on record, the charge of causing a serious accident with Govt. vehicle by consuming alcohol was proved against the applicant. On receipt of the copy of the aforesaid report, he made the Annexure A-7 representation dated 18.09.2008. However, the disciplinary authority, vide its Annexure A-4 order dated 03.05.2010, imposed the punishment of forfeiture of 10 (Ten) years approved service permanently entailing proportionate reduction in his pay with immediate effect. The Annexure A-9 appeal dated 31.05.2010 was rejected by the appellate authority, vide Annexure A-5 order dated 09.08.2010, upholding the order of the disciplinary authority.
4. The applicant challenged the aforesaid impugned Inquiry Officers report and the orders of the disciplinary authority and the appellate authority on various grounds. The first ground raised by him is that it is a case of no evidence even though the Inquiry Officer has stated that the charge has been proved. In this regard, he has invited our attention to the depositions of all the PWs. As regards the first witness Inspector K.C. Negi is concerned, he was posted in 6th Bn DAP as Inspector on 14.11.2007 and according to him, he was not aware of the accident alleged to have been caused by the applicant. As far as the second PW SI Shish Ram is concerned, after the accident had occurred, he investigated the matter and arrested the applicant. He has also got the mechanical inspection of vehicle and recorded the statements of witnesses. Further, he kept the alcohol blood sample preserved by Doctor for any lises report from CFSL Calcutta. As far as the 3rd PW Constable Kevender is concerned, he was also not a witness of the accident. According to him, he produced original Roznamcha of 6th Bn. DAP on 14.11.1007 and proved DD No. 49A dated 14.11.2007 recorded on behalf of SI Shis Ram at 9.45 PM regarding accident of TATA 407 No. DL-HE 3947 and he also desired to inform the senior officers about it. The 4th respondent HC Surender Singh has also nothing to say about the accident or about the applicant. The 5th respondent Constable Parveen Kumar deposed that on the next day of the accident, he reached Vikas Puri Police Line and came to know that the aforesaid Vehicle met with an accident and it was parked there. In the clarifications sought by the applicant from EO, he stated that when he reached at Burari Chowk, he was in plain cloth. To the other clarification whether at that time, he had consumed alcohol or not, the answer was in the negative. PW-6 Ct. Warayen Singh stated that he was posted in control room of 3rd Bn. as Constable. He got information regarding off road of M/Cycle at Burari Chowk. He entered the same in log book and handed over QST to duty officer. The last Pw-7 Shri Desh Raj was a Medical Record Clerk of the DDU Hospital, Hari Nagar, New Delhi. He stated that he was performing duty of record clerk in DDU Hospital since last 6/7 years. On 14.11.2007, he was also on duty as record clerk. On that date, MLC No. 26006 of an unknown person was prepared by Dr. Manjan Gupta and MLC No. 26106 in r/o Desh Raj was prepared by Dr. Parvinder and MLC No. 26052 of Akashi was prepared by Dr. D.K. Dutt. He identified the signature of the doctors. He has also seen all those three MLCs in DE file and has handed over photocopy of these MLCs which are duly attested. The Enquiry Officer has also stated in his report that PWs 1,3,4,5 and 6 have only proved the record/DD entries showing departure of delinquent with the said vehicle and the information about accident, etc. PW-2 the IO had proved the concerned FIR Ex. PW-2/A and arrest of delinquent in that case. PW-7 had proved MLC Ex. PW-7/B and opinion of doctor as smell of alcohol (-) present in breath. He has, therefore, held that it was established that the delinquent Constable was driving which TATA-407 No. DL-ILE 3947 during the time of accident and was smelling of alcohol in breath.
5. As far as the disciplinary authoritys order is concerned, he has stated that the deposition of PW-7 Shri Desh Raj, Medical Record Clerk, DDU Hospital clearly proved that in the MLC No. 26106 of the applicant by Dr. Parvinder of the above hospital clearly proved that he had consumed alcohol on the alleged day and the presence of smell on his breath was found as (+). The disciplinary authority has also stated that there was no reason to disbelieve on the expert opinion of doctor of a prominent Govt. hospital. Therefore, he came to the conclusion that due to gross negligence and under influence of liquor, he met with the accident and two innocent persons had succumbed to their injuries in this accident. He considered the findings of the Inquiry Officer, defence statement, written representation of the applicant as well as facts and evidence on record. He was also heard in O.R. on 22.04.2010 when he stated that he was not at fault as he did not consume alcohol, the smell was from his clothes which came in contact with dirty persons of Jhuggi-Jhopri dwellers, as he was beaten up by them. However, according to the disciplinary authority, on scrutiny of findings of the Inquiry Officer, it was proved that he was under influence of alcohol while he was on duty. The doctor had opined in his MLC as Smell of Alcohol (+) present in breath. He has also stated in his order that presence of alcohol in his breath is violation of the CCS (Conduct) Rules, which affected his performance on duty and it resulted in death of two persons.
6. According to the appellate authority, the disciplinary authority has awarded the punishment after going through the defence statement/representation of the applicant and other evidence on record and the punishment awarded by him is justified. The said authority has also stated that it has been proved that he was under the influence of alcohol while he was on duty. The doctor of a prominent Govt. hospital opined in his MLC as Smell of Alcohol (+) present in breath. There was no reason to disbelieve on the expert opinion of a reputed Govt. Hospital.
7. The contention of the learned counsel for the applicant is that in spite of the depositions of the PWs not proving the allegations made against the applicant in any manner, the Inquiry Officer arbitrarily came to the conclusion that the charges have been proved. He has, therefore, submitted that the report of the Inquiry Officer is perverse and, therefore, the same has to be out-rightly rejected. The learned counsel for the applicant has also invited our attention to the Forensic Examination Report (`FRE for short) dated 09.01.2008 in this case. The result of the examination says Alcohol was not detected in the contents of the exhibit marked here as 1355/07. He has once again reiterated that this is a case of no evidence against the applicant and, therefore, the inquiry officers report as well as the impugned orders have to be quashed and set aside. According to him, none of the PWs have deposed that he had consumed liquor or he was under the influence of liquor while driving or the accident had taken place due to the consumption of liquor, as alleged against him. Further, his argument is that in the absence of the doctor who collected the blood sample and gave his opinion that Smell of Alcohol (+) present in breath cannot be believed unless he has been brought as a PW in the inquiry. In this regard, he submitted that it was the Doctor who collected the sample and opined that there was smell of alcohol and, therefore, he alone could depose and not his record clerk who has nothing to do with the accident who has been brought as a prosecution witness. Moreover, record clerk of the DDU who has been examined as PW-7 has only stated that he could identify the signature of the doctor concerned. Just because in the doctors opinion that there was a smell of liquor, it is not necessary that the applicant had consumed liquor. Whether a person has consumed liquor or he was under the influence of liquor when the accident took place can be proved only from the FRE. In the present case, the FRE clearly says that the alcohol was not detected in the contents of the exhibit marked as 1355/07. Therefore, in the face of the said report, the opinion of the doctor is not of any value particularly when he was not produced as a PW and he was a material witness in this case and the disciplinary authority should have ensured that he has been brought as a witness during the proceedings and his statement during the inquiry was recorded. If such an opportunity was arranged, the applicant also would have had the opportunity to cross examine the doctor.
8. In this regard, the learned counsel for the applicant has relied upon the judgment of the Apex Court in Hardwari Lal Vs. State of UP & Ors. (JT 1999 (8) SC 418) and its operative part is as under:
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
4. However, Shri Goel, the learned Addl. Advocate General, State of Uttar Pradesh, has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant.
5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service. Considering the fact of long lapse of time before the date of dismissal and reinstatement, and no blame can be put only on the door of the respondents, we think it appropriate to award 50 per cent of the back salary being payable to the appellant. We thus allow the appeal filed by the appellant. However, there shall be no order as to costs.
9. Further, he has relied upon the order of this Tribunal in OA 332/2003 S.K. Mishra Vs. Union of India & Ors. (2004 (2) SLJ 488) wherein the judgment in the case of Hardwari Lal (supra) was also considered. The relevant part of the said order is as under:
5. We have considered the rival contentions and perused the relevant record of the enquiry produced by the respondent. It appears from the record that the respondents have not made any efforts to procure the presence of Shri Nandan Singh and Shri B.P. Singh, TTE who indeed are material witnesses. Shri Nandan Singh was to indicate whether Shri Nandan Singh was transferred in the AC coach from Jhansi or from Bina and why and how he had paid Rs.2000/-. Similarly, Shri B.P. Singh, TTE was in-charge of the sleeper coach. He too was a material witness to show whether Shri Nandan Singh was traveling in sleeper coach to Bina or not. Applicant had requested for calling these witnesses vide Annexure A-6 dated 27.7.2000 which was rejected vide Annexure A-7 dated 24.8.2000. These witnesses indeed are material witnesses to establish the charges against applicant. They were neither called by the enquiry officer nor was applicant given an opportunity to call them as defence witnesses, for this, we draw support from Hardwari Lal Vs. State of U.P. 1999 (8) SCC 582: 1999 (2) SCSLJ 360.
10. He has also relied upon the judgment of the Apex Court in Roop Singh Negi Vs. Punjab National Bank & Ors. (2009 (2) SCC 570) having its relevant part as under:
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
11. The respondents in their reply have stated that the pleas taken by the applicant are frivolous. They have also stated that the departmental inquiry was conducted within the ambit of the rules contained in Delhi Police (Punishment and Appeal) Rules, 1980 and S.O. No. 125 of Delhi Police. As per the provisions of S.O. No. 125 of Delhi Police, there is no legal bar in simultaneously holding the departmental enquiry and criminal proceedings. They have also stated that the E.O. has rightly rejected his request of keeping the instant D.E. in abeyance. Further, during his official duty, he consumed alcohol and as a result accident took place and it was a very serious lapse on his part and it could not be tolerated at any cost. Being a member of a disciplined force, he should not have done so. He has also violated CCS (Conduct) Rules, 1964. Though, initially the DE was kept in abeyance by the disciplinary authority till the criminal case FIR No. 404/2007, u/s 279/337/304-A IPC P.S. Vikas Puri, New Delhi, registered against him, is decided vide this office order No. 98-127/HAP (P-II)/III Bn. DAP dated 06.01.2009, later on, the same was re-opened by the disciplinary authority vide this office order No. 1530-60/HAP (P-III)/III Bn. DAP dated 11.02.2010 in the light of PHQ, circular No. 1342-1408/R-B. PHQ dated 22.09.2009.
12. Further, according to the respondents, the result of the blood sample negated the theory that he did not drink or had not consumed liquor. The plea taken by the defaulter applicant was not plausible and carry no weight. Moreover, during the D.E. proceedings, by the deposition of PW-7 Sh. Desh Raj, Medical record clerk, DDU Hospital, it was clearly proved that in the MLC No. 26106 of the applicant prepared by DR. Parvinder of the above hospital, it has been opined that he had consumed alcohol on the alleged day and the presence of smell on his breath was found as positive (+). There is no reason to disbelieve on the expert opinion of a reputed Govt. hospital. Therefore, due to his gross negligence and influence of liquor, he met with the accident and two innocent persons had succumbed to their injuries.
13. The presumption of the E.O. is arbitrary and unjustified. The doctor of the hospital was never examined by the E.O. The plea taken by the defaulter const. is discursive and not maintainable. The E.O. examined 8 PWs and recorded their statements in the presence of the defaulter according to due procedure of the departmental enquiry and ample opportunities were given to him by the E.O. to cross examine these PWs. The charge leveled and served upon the defaulter has been proved on the basis of evidence/documentary evidence adduced during the D.E proceedings. Finding no need of the deposition of the doctor of DDU Hospital, he was not called by the E.O during the D.E proceedings as it was proved in his MLC that he had consumed alcohol during the alleged day. This documentary evidence, which was issued by a reputed Govt. hospital is sufficient to prove that on the alleged day, he consumed alcohol while driving caused an accident in which, two innocent lives were succumbed to their injuries, which is a serious lapse on his part.
14. The disciplinary authority after having carefully gone through the findings of the E.O., defence statements, written representation of the applicant as well as facts and evidence brought on record of the D.E. file. The applicant was also heard in O.R on 22.04.2010. During personal hearing, he stated the same things as contained in his written representation. During personal hearing, he added that he was not at fault. He did not consume liquor, the smell was from his clothes which came in contact with dirty persons of Jhuggi-Jhopri dwellers, as he was beaten up by them. On scrutiny of file and findings of the EO. It is proved that he was under the influence of alcohol while he was on duty. The doctor had opined in his MLC as smell of Alcohol (+) present in breath. The plea taken by the applicant that smell as on his clothes is wrong and after thought. As per CCS (Conduct Rules, a Govt. servant shall:
strictly abide by any law relating to intoxicating drinks or drugs in force in any area in which he may happen to be for the time being.
Not to be under the influence of any intoxicating drink or drug during the course of his duty and shall also take due care that the performance of his duties at any time is not effected in any way by influence of such drink of drug.
15. Presence of alcohol in his breath is violation of CCS (Conduct) Rules, which effect his performance on duty and which resulted in death of two persons. The main pleas preferred by the defaulter are also not tenable for the reasons recorded above. The charge has already been proved in the departmental enquiry. For the above misconduct, he deserves severe punishment which may teach lesson to others. Hence, keeping in view of the overall facts and circumstances, the disciplinary authority ordered to award the punishment of forfeiture of 10 years approved service permanently to the applicant entailing proportionate reduction in his pay vide order No. 6366-6400/HAP (P-II) Bn. DAP dated 03.05.2010.
16. Aggrieved by the above said orders, the applicant had filed an appeal before Special CP/AP, Delhi. The appellate authority considered the appeal filed by him and also heard him in OR. Considering the facts of the case and material available on file the appellate authority found no reasons to interfere with the orders of the disciplinary authority. Hence, the appeal of the applicant was rejected vide order No. F.XVI/34/2010/485-88/P.sec/Spl. CP/AP dated 04.08.2010.
17. We have heard the learned counsel for the applicant Shri Anil Singal and the learned counsel for the respondents Mrs. Harvinder Oberoi. We are constrained to note that while there was no evidence at all against the applicant in the inquiry proceedings. In spite of it, the Inquiry Officer came to a totally perverse conclusion that the charges leveled against him have been proved. As held by the Apex Court, High Court of Delhi and this Tribunal in the aforesaid judgments, non production of the material witness is a serious lapse on the part of the prosecution. Secondly, tendering a document without having the author of that document available is another serious flaw.
18. We, therefore, fully agree with the learned counsel for the applicant that this is a case of no evidence. The disciplinary authority has not even considered the fact that the Inquiry Officer has not appreciated the Forensic Examination Report already available in the case. The disciplinary authority has not even made a mention of the document like the Forensic Examination Report wherein it was stated ALCOHOL WAS NOT DETECTED IN THE CONTENTS OF THE EXHIBIT MARKED HERE AS 1355/07. We also find that the appellate authority has considered the issue in an absolutely mechanical manner and without application of mind. He has also stated that it was proved that the applicant was under the influence of liquor while he was on duty whereas the Forensic Examination Report was contrary to it.
19. In the above facts and circumstances of the case, the impugned Inquiry Officers report, orders of the disciplinary as well as the appellate authority are quashed and set aside. Consequently, we direct the respondents to restore the entire forfeited service of the applicant with all consequential benefits including seniority/promotion. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order.
20. However, in the circumstances of the case, we do not intend to award any cost of litigation.
(Mrs. Manjulika Gautam) ( G. George Paracken ) Member(A) Member (J) `SRD