Central Administrative Tribunal - Delhi
Subhash Chand vs Comm. Of Police on 6 January, 2022
1 O.A. No.1725 of 2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1725
1725 of 2015
Orders reserved on : 07.12.2021
Orders pronounced on ::06.1.2022
.2022
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Ex. Ct. Subhash Chand,
s/o Shri Jai Singh,
R/o - Vill: Khanpur, PO : Butrada,
Distt.: Shamli (UP).
... Applicant
(through Advocate Shri Viraj R. Datar
Datar, senior counsel with
Ms. Meenal Duggal)
Duggal
Versus
us
1. Govt. of NCT of Delhi,
Through It's Chief Secretary,
Delhi Secretariat, Delhi.
2. The Additional Commissioner of Police,
Security, New Delhi.
3. The Deputy Commissioner of Police,
Security, New Delhi.
... Respondents
(through Advocate Shri Anuj Kumar Sharma
Sharma)
2 OA No.1725/2015
ORDER
Hon'ble Mr. R.N. Singh, Member (J) The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, to challenge the Enquiry Officer's report (Annexure A/7), impugned order dated 8.4.2013 (Annexure A-1) whereby a penalty of dismissal from service has been imposed upon the applicant with immediate effect and also the order dated 28.1.2015 (Annexure A-2) vide which the applicant's appeal preferred against the aforesaid penalty order has been rejected by the Appellate Authority.
2. Brief facts of the case, as stated in the OA, are that the applicant was enlisted as Constable in Delhi Police on 13.12.1993. While the applicant was working as Constable in Delhi Police, a complaint of Mohd. Nasir - an accused in Case FIR No.1092/06 u/s 21/61/85 NDPS Act, PS Lajpat Nagar was received by the respondents through the learned Court of Shri M.K. Nagpal, ASJ, Special Judge, NDPS Act, Saket Court Complex, New Delhi, the Disciplinary Authority vide Order dated 10.10.2011 (Annexure A-3) ordered initiation of departmental inquiry against the applicant and Insp. Raj 3 OA No.1725/2015 Rani, SHO/Metro Rithala was appointed as inquiry officer to conduct inquiry into the matter. Accordingly, a summary of allegations (Annexure A-4) was served upon the applicant which reads as under:-
"It is alleged against Ct. Subhash Chand No.447/RB (Now 153/DRP), (PIS 28932022) that while posted at RP Bhawan, a complaint of Mohd. Nasir - an accused in case FIR No.1092/06 u/s 21/61/85 NDPS Act, PS Lajpat Nagar was received from the Hon'ble Court of Shri M.K. Nagpal, ASJ, Special Judge, NDPS Act, Saket Court Complex, New Delhi for enquiry onto the allegation from an officer not below the rank of ACP. Hence, an enquiry was conducted by ACP/PG Cell/SED which revealed that ct. Subhash Chand who was already married to Reena Devi r/o Village Sinoli, Bagpat UP, is having close relations with Mrs. Sheeba, wife of Mohd. Nasir and was also in regular touch with Sheeba as indicated in the call details collected during enquiry. Constable Subhash Chand had even stayed for about 20 days with Nisar, his wife and their two minor daughters in her rented house at F-54, Ganga Sagar, Meerut, UP. Nasir initially allowed his stay at this house but later on resented his stay due to his conduct and it was after lot of ill will the constable left this house. The frequency and the period of conversation between Shaaba (9759502512 & 9027408409) and Ct. Subhash (9810283840) vice-versa clearly indicate their intimacy. The act of Ct. Subhash about staying with an accused and his family members against whom the constable had tendered his evidence in the NDPS Court and having intimacy with his legally wedded wife is highly improper and unbecoming of a police officer.
Further, it is alleged that although being legally married to one Reena Devi d/o Ram Pal Singh r/o village Sinoli, Bhagpat, UP, in January 1998 and having two children from this wedlock, Ct. Subhash without divorcing his wife Reena devi again got married to one Mustak Malik d/o Shri 4 OA No.1725/2015 Gulam Rasul Malik r/o J-4/80A 1st Floor, Malviya Nagar, Delhi (Mob. 9910343632) in feb. 2008 at Dargah Sariff in Ajmer, Rajasthan with whom he stayed in a house in Malviya Nagar Delhi as husband and wife from feb.2008 to Oct. 2010. He did not inform the second marriage to the department and there by violated by rule 21 of CCS (Conduct) Rules.
It further alleged that Ct. Subhash had purchased house number J 4/80A, first floor, Khirki Extension, New Delhi for a sum of Rs.19,50,000/- the name of Muskan from one Pushpender Arora, a property dealer after his marriage with Muskan and, where he stayed with his second wife Muskan D/o Sh. Gulam Rasul from Feb. 2008 to Oct 2010. He did not intimate the department about the purchase of this property in violation of CCS (Conduct Rules.
The above acts on the part of Ct. Subhash Chand N 153/DRP amounts to gross misconduct, negligence and unbecoming of police officers and which renders him liable for departmental action under the provisions of Delhi Police Punishment and Appeal) Rules 1980."
Thereafter charge was framed against the applicant vide letter dated 28.8.2012 (Annexure A/5). The applicant submitted a detailed defence statement dated 24.9.2012 (Annexure A/6) denying all the allegations levelled against him and also, according to him, brought out the irregularities in conducting the inquiry, as he has clearly demonstrated in his reply that Mohd. Nasir is a Hardcore criminal and his statement is not to be believed and the statement of Mohd. Nasir has not been corroborated by any of the witnesses in the inquiry and he has also 5 OA No.1725/2015 specifically taken a plea that the department/enquiry officer has relied upon a number of statements of prosecution witnesses given in preliminary inquiry, including Smt. Muskan Malik who had been alleged to have married with the applicant and those witnesses have not appeared in the disciplinary inquiry proceedings and, therefore, the applicant has been deprived of an opportunity to cross examination those prosecution witnesses.
3. After conclusion of the disciplinary enquiry, the Enquiry Officer submitted its report to the Disciplinary Authority which was supplied to the applicant vide order dated 2.1.2013. Being aggrieved by the aforesaid report of the Enquiry Officer, the applicant has submitted his representation dated nil (Annexure A/8) to the Disciplinary Authority. However, according to the applicant, the Disciplinary Authority, without examining thoroughly the findings of Inquiry Officer and without properly considering the representation/defence of the applicant, agreed with the findings of the Inquiry Officer by giving consideration to extraneous matter and proceeded to impose the penalty of dismissal from service 6 OA No.1725/2015 upon the applicant vide impugned order dated 8.4.2013. Against the aforesaid order of the Disciplinary Authority, the applicant preferred an appeal dated 6.5.2013 (Annexure A/9) to the Appellate Authority. However, the Appellate Authority has also not considered the facts and grounds raised by the applicant in his appeal and accepted the findings of the EO and Disciplinary Authority. Hence, the present OA is filed by the applicant for redressal of his grievances.
4. Pursuant to notice issued by this Tribunal, the respondents have filed their reply. The applicant has also filed his rejoinder.
5. During the course of hearing, learned Senior Counsel for the applicant has submitted though various grounds have been raised by the applicant in the present OA to challenge the impugned order(s), however, the main ground is that the Enquiry Officer, has considered the statements of some of the main witnesses recorded during preliminary inquiry and the same in the disciplinary inquiry proceedings, is clearly in violation of the provisions of Rule 16 (iii) of the Delhi Police (Punishment & Appeal) Rules, 1980. To substantiate the claim of the applicant, learned 7 OA No.1725/2015 counsel has drawn our attention to the provisions of Rule 16 (iii) of the Rules ibid, which reads as under:-
"(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 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 statement 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 or documents thus brought on record."
Further the learned counsel for the applicant by referring to the aforesaid report submitted by the Enquiry Officer has submitted that as per the summary of allegations along with which a list of witnesses is also provided in which as many as 21 names of prosecution witnesses are 8 OA No.1725/2015 mentioned, however, the Enquiry Officer has examined only 16 witnesses and relied upon the statements of remaining five prosecution witnesses, namely, Ms. Muskan Malik, Mohd. Yamin, Smt. Sahin Khan, Rashid and Smt. Reen Devi allegedly recorded during the preliminary inquiry, which is utter disregard to the law on the subject as application of provisions of Rule 16 (iii) of the Rules ibid are condition precedent. Learned counsel has further submitted that the said five witnesses are very important witnesses in the disciplinary proceedings case and from the inquiry report as well as the order of the disciplinary authority, it is not found that in spite of the best efforts these witnesses could not brought to lead their evidence in the said disciplinary enquiry, which is one of the preconditions as enumerated in Rule 16 (iii) of the Rules ibid. In support of the claim of the applicant, though various judgments have been brought on record, however, the learned senior counsel for the applicant had relied upon the judgment of the Hon'ble Supreme Court in the case of Kuldeep Kumar vs. Commissioner of Police, reported in (1999) 2 SCC 10, only.
9 OA No.1725/2015
6. With the assistance of counter reply, Shri Anuj Kumar Sharma, learned counsel for the respondents, has submitted that Enquiry Report, Disciplinary and Appellate Authorities orders are based on evidence on record and there is no illegality in the same. He has further submitted that Disciplinary and Appellate Authorities have elaborately discussed the case in the orders passed by them, as is evident from the orders annexed as Annexures A/1 and A/2) and as such the instant OA deserves to be dismissed. Although counsel for the respondents has not disputed the fact that the above mentioned five prosecution witnesses were not examined during the disciplinary inquiry and their preliminary inquiry statements were taken into consideration by the Enquiry Officer while returning the findings in his enquiry report, but he has submitted that there is sufficient evidence on record which proved the guilt of the applicant. He also submitted that reliance placed by the counsel for the applicant on the judgment of the Hon'ble Apex Court in the case of Kuldeep Singh (supra) is not applicable to the facts of this case. Lastly, he submitted that the present OA deserves to be dismissed by this Tribunal. 10 OA No.1725/2015
7. We have heard learned counsels for the parties and perused the pleadings on record. Since the main plea of the learned senior counsel for the applicant is that no efforts were made by the enquiry officer to examine the abovementioned five witnesses and only on the basis of statements of other prosecution witnesses and the statements of the said five witnesses recorded during preliminary inquiry, the enquiry officer returned the finding of guilt against the applicant. As the said five witnesses are very relevant in the present case, this Tribunal vide Order dated 1.10.2021, directed the respondents to produce the relevant file of the disciplinary proceedings initiated against the applicant. The said file is produced by the respondents. However, Shri Anju Kumar Sharma, learned counsel for the respondents has not been able to show from the said records that there is definite finding(s) that in spite of best efforts, prosecution has not been able to examine the witnesses whose preliminary inquiry statements have been taken into consideration while recording the findings by the inquiry officer. 11 OA No.1725/2015
8. We have also perused the judgment of the Hon'ble Apex Court in the case of Kuldeep Singh (supra) wherein in paras 26, 27, 28 and 32, it has been held as under:-
"26. Non-production of the complainants is sought to be justified with reference to Rule 16(3) of the Delhi Police (F&A) Rules, 1980. Rule 18(3) is an under:-
"If the accused police officer does not admit the misconduct, the E.O. 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 E.O. 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 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 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 E.O. may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record."
27. This Rule, which lays down the procedure to be followed in the departmental 12 OA No.1725/2015 enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to crossexamine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured.
28. Rule 16(3) is almost akin to Sections 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition-precedent" for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised.
.....
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either 13 OA No.1725/2015 during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross- examine that witness."
9. From the above, it is ample clear that reliance on previous statement of the witnesses cannot be taken into account for proving the guilt of the accused/delinquent official in view of the law laid down by the Hon'ble Apex Court in Kuldeep Singh (supra) wherein their Lordships have clearly ruled that the IO was not right in bringing on record the so called previous statement of the witnesses. The judgment of the Hon'ble Apex Court in Kuldeep Singh (supra) has been followed by this Tribunal in order/judgment dated 25.02.2010 in OA 1064/2008 titled Ct. Krishan Kumar Vs GNCTD & Ors. and further in order/judgment dated 19.05.2016 in 0A 3620/2013 titled Head Constable Ram Dayal & Anr. Vs GNCTD & Ors. and order/judgment of the Hon'ble High Court of Delhi dated 20.01.2010 in WP (C) No. 3591/2001, Jai Bhagwan Vs Commissioner of Police & Ors..
10. In view of the aforesaid facts and circumstances and settled position of law on the issue involved in the instant 14 OA No.1725/2015 case, leaving all other grounds raised in the instant OA open, we are of the considered opinion that the OA deserves to be partly allowed and the same is accordingly partly allowed. The enquiry Officer's Report (Annexure A/7), impugned orders dated 8.4.2013 (Annexure A/1) and 28.1.2015 (Annexure A/2) passed by the Disciplinary and Appellate Authorities are quashed and set aside. The applicant shall be entitled for the consequential benefits in accordance with the relevant rules and instructions on the subject. However, it is made clear that the respondents shall be at liberty to proceed in the disciplinary proceedings from the appropriate stage in accordance with the rules and provisions on the subject.
11. In the facts and circumstances, there shall be no order as to costs.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/