Central Administrative Tribunal - Delhi
Constable Gandharv Singh vs Govt. Of Nctd Through on 17 April, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3032/2012 Reserved on:02.04.2013 Pronounced on: 17:04.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Constable Gandharv Singh S/o Shri Rasal Singh Age 43 years R/o D-562, Dabua Colony, NIT Faridabad, Haryana. Applicant. (By Advocate Shri Sachin Chauhan) Versus 1. Govt. of NCTD through The Commissioner of Police (DAP), Police Headquarters, I.P. Estate, MSO Building, New Delhi. 2. The Joint Commissioner of Police, Police Headquarter, I.P. Estate, MSO Building, New Delhi. 3. Dy. Commissioner of Police, SO to CP, Police Headquarters, I.P. Estate, M.S.O Building, New Delhi. 4. Dy. Commissioner of Police, Establishment, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. Respondents (By Advocate: Shri Amit Anand) O R D E R
Shri G. George Paracken:
In this Original Application the Applicant is challenging the orders dated 09.12.2009, 03.06.2011 and 16.11.2011 passed in the disciplinary proceedings initiated against him. By the order dated 09.12.2009, the disciplinary authority decided to institute a regular departmental enquiry against him. Orders dated 03.06.2011 and 16.11.2011 are passed by the Disciplinary Authority imposing upon him the punishment of dismissal from service and the Appellate Authority rejecting his appeal respectively.
2. The allegations against the Applicant contained in the aforesaid order dated 09.12.2009 are as under:-
It is alleged that a case FIR No. 37/02 u/s 306/420 IPC Paharganj was registered on the complaint of Sh. Balbir Singh S/o Sh. Ajit Singh R/o Vill. Bhatike, PS Chuganwan, Distt. Amritsar (Punjab) against Ct. Gandharv Singh No. 145/PHQ and others. The complainant alleged that one Sh. Sunil Gupta had cheated him in the name of arranging visa for Italy and demanded Rs.1,00,000/-. He had taken Rs. 60,000/- alongwith passport from the complainant. Sunil Gupta neither arranged visa nor had returned the money. After that the complainant met Ct. Gandharv Singh No. 145/PHQ through one Vinod Kumar of Badarpur on 15.12.2001. He alongwith Ct. Gandharv Singh No. 145/PHQ went to the residence of Sunil Gupta where Sunil Gupta told him that he will give cheques for an amount of Rs.1,18,000/- and the balance amount of Rs.60,000/- will be paid in cash, but the complainant has refused for the same. Thereafter, Ct. Gandharv Singh No. 145/PHQ had obtained two post dated cheques amounting to Rs.68,000/- and Rs.50,000/- from Sunil Gupta and kept the same with him who did not give the said cheques to the complainant and demanded Rs.20,000/- from him. The complainant obtained Rs.10,000/- from his relative and gave the same to Ct. Gandharv Singh No. 145/PHQ. But he did not give the cheques to him. On being harassed and threatened by the constable, the complainant suggested his wife to commit suicide with all family members for which she agreed. He also wrote a suicide note in Gurumukhi mentioning reason for committing suicide on which his wife put signatures in English. Thereafter, he killed his wife and two daughters by pressing their throat. He himself tried to commit suicide after fixing a rope on the fan, but was unsuccessful in his attempt. After that he cut both his wrists with blade and later on when he gain consciousness, he found himself in hospital. On the above grounds the above case was registered against the constable with other co-accused.
For this lapse, Ct. Gandharv Singh, 145/PHQ was placed under suspension w.e.f. 20.01.2002 i.e. from the date of his arrest vide this order No. 1109-1134/CR-III/PHQ dated 25.01.2002.
The above acts on the apart of Ct. Gandharv Singh, PHQ amounts to gross misconduct, high handedness, lack of professionalism, dereliction and unbecoming of a police officer which renders him liable for departmental to be taken against him in accordance with Rule as envisaged u/s 21 of Delhi Police Act, 1978.
I, R.A. Sanjeev, Deputy Commissioner of Police, SO to CP, hereby order that a regular departmental enquiry be drawn up against Constable Gandharv Singh, No. 145/PHQ acted by an Inspector of DE Cell to be nominated by DCP/DE Cell on day to day basis and submit his findings to the undersigned expeditiously.
3. The prosecution witnesses were Shri Balbir Singh who has given evidence as the way he was cheated, Shri Sunil Gupta and Shri Vinod Kumar who were to give evidence about the amount and the cheques mentioned in the allegation, HC Om Prakash to produce the copy of FIR No.37/02 u/s 306/420 IPC, SI Ranjan Kumar Singh to prove the role of the Applicant in the case, Clerk, State Bank of India, Bhikaji Kama Place to produce the bank statement Account No.20411 of Sunil Gupta and the DD circular of DD No.27 dated 30.01.2002 to produce the same. List of documents relied upon were copy of FIR No.37/02 and copy of DD No.27. The following supplementary list of documents were also relied upon:-
(1) Statement of Shri Balbir Singh and Rukka for the registration of FIR No.37/02, PS Paharganj.
(2) Suicidal note of Balbir Singh in Gurmukhi script.
(3) Translation in Hindi of suicidal note of Balbir Singh.
(4) Disclosure statement of Gandharva Singh in FIR No.37/02, PS Paharganj.
(5) Disclosure statement of Sunil Gupta in FIR No.37/02, PS Paharganj.
(6) Seizure Memo cheques + Photocopy of cheques.
(7) Charge sheet.
(8) Statement of Vinod Kumar S/o Shri Hari Ram R/o H.No. 238, New Addition, NTPC, Badarpur, New Delhi.
4. Based on the deposition of all PWs who have been examined during the enquiry and the listed documents, the Applicant submitted his defence statement stating that the FIR No.37/2002 is pending trial. In another FIR No.36/02 u/s 302/209 IPC for committing murder of his wife and two children the Balbir Singh is the accused and he has been declared as a proclaimed offender, by the trial judge on 10.10.2008. Therefore, his alleged suicide note in Gurmukhi on which his wife put her signature in English carry no force. He was not given opportunity to cross-examine Balbir Singh either in the trial court or the Departmental Enquiry proceedings. Moreover, the said suicide note has never been subjected to any handwriting expert/FSL examination to prove that the same was written by Balbir Singh and the signature on it was the signature of his wife. Since the FIR No.37/02 was pending before the trial court, the said court alone is empowered to decide he was guilty u/s 306/420 of the IPC levelled against him otherwise it will an interference in the court proceedings. Therefore, the allegations made against him in the charge were never proved.
5. The Enquiry Officer submitted his report on 03.11.2010 holding that the aforesaid allegations against the Applicant were proved. The relevant part of his report is as under:-
The main allegations against Const. Gandharv, No. 145/PHQ are that (1) He obtained two post dated cheques amounting Rs.68,000/- and Rs.50,000/- from Sunil Gupta on behalf of complainant but kept the same with himself and demanded Rs.20,000/- from him. (2) The complaint gave Rs.10,000/- to Const. Gandharv Singh, No.145/PHQ. But he did not return the cheque to him. (3) On being harassed and threatened by Const. Gandharv Singh, No. 145/PHQ he killed his wife and two daughters by strangulating them and he tried to commit suicide after fixing a rope on the fan. He also wrote a suicide note in Gurmukhi mentioning reason for committing suicide. Five PWs have been examined where the statement and other documents available on file for two witnesses taken as evidence under rule 16.3 of Delhi Police and Punishment Rule,1980. Examinations of two witnesses namely (1) PW-6 Balbir Singh and (2) PW-7 Vinod Kumar were dropped since they did not appear in spite of best of efforts. Delinquent was informed too about this.
PW-1 has proved that a case FIR No.37/02 u/s 306/120 IPC was registered at P.S.Pahar Ganj wherein the delinquent Const. Gandharv Singh, No. 145/C was an accused in this case vide Ex.PW-1/A. PW-2 proved that he prepared a rukka and got registered a case FIR No.37/02 u/s 306/420 IPC. He seized suicidal note of Balbir Singh written in Gurmukhi and got translated in Hindi. He arrested the delinquent Const. Gandharv Singh and recorded his disclosure statement and delinquent helped the IO to recover two signed cheques issued in favour of Balbir Singh, charge sheet was prepared by the I.O. and he had filed the same in the court. I.O prepared the said documents vide Ex. PW-2/A to Ex.PW-2/B. PW-3 proved that PW-5 Sunil Kumar had the A/C No. 20411 (old A/C No.) and now new A/C No. 1035080 5717 vide Ex. PW-3/A in Bhikaji Kama Place Branch of State Bank of India. Cheques were issued from this account.
PW-4 proved that he had brought the copy of order no. 265-281/HAR/P & L dated 12.11.2009 which shows that daily diary register from the period between 01.04.1998 to 31.03.2007 was deposited for destruction by recycling.
PW-5 proved that in December-2001 Balbir Singh alongwith delinquent Const. Gandharv Singh came to his office and wanted to settle the account.
Shri Balbir Singh and Sh. Vinod Kumar cited as witness in this DE against delinquent have not joined DE proceedings. Balbir Singh is declared as proclaimed offender in case FIR No.36/02 and 37/02 of PS Pahar Ganj. Summon to PW Balbir Singh could also not be served at his native place where it was reported that Balbir Singh has not been in village for 3-4 years. About PW Vinod Kumar summon could not be served to him in spite of best efforts. Keeping in view of unnecessary delay in this DE proceeding their statements and relevant papers available in file have been taken on record under Rule 16.3 of Delhi Police of Punishment Rule 1980. Their examinations have been dropped from the DE proceeding. PW Babir Singh and PW Vinod Kumar have been cited as PW-6 and PW-7 respectively.
Defence statement produced by the delinquent has been considered and was found not tenable completely.
On the basis of depositions of PWs and documents placed on file it is established that a criminal case vide FIR No. 37/2002 u/s 306/420 IPC PS Pahar Ganj was registered against delinquent constable Gandharv, No. 145/PHQ by PW-1 and PW-2 vide PW-1/A. PW-2 arrested the delinquent Const. Gandharv, No. 145/PHQ in case FIR No. 37/2002 PS Pahar Ganj, seized suicidal note of Balbir Singh written in Gurmukhi and got translated into Hindi. He recorded the disclosure statement of delinquent and delinquent helped the I.O to recover two signed cheques issued in favour of Balbir Singh by PW-5. He prepared the chargesheet and filed the same in the court. IO prepared the said documents vide Ex. PW-2/A to Ex. PW-2/I. Sunil Kumar had an account in Bhikaji Kama Place branch of State Bank of India proved by PW-3 vide Ex. PW-3/A. The said two cheques were of the A/C of Sunil Kumar which was recovered from delinquent. The daily diary of the period between 01.04.1998 and 31.3.2007 is already destructed proved by PW-4 vide Ex.PW-4/A and Ex. PW-4/B. PW-5 proved that delinquent Const. Gandharv Singh alongwith complainant Balbir Singh came to his office in the middle of December-2001. He agreed to issue two cheques in the name of Balbir Singh but he was hostile in saying that he had given these two cheques to Balbir Singh vide Ex. PW-2/E. The documents collected by I.O., statement recorded by IO from PW-6 and PW-7 have already been exhibited by the I.O vide Ex. PW-2/A to Ex. PW-2/I under the rule 16.3 of Delhi Police of Punishment Rule 1980 in their unavailability during the DE proceedings.
The above acts clearly indicate towards gross misconduct, high handedness, and dereliction in discharge of official duties and unbecoming of a police officer.
Conclusion After carefully going through the statement of PWs, documents placed on record and defence statement of delinquent Const. Gandharv Singh, No. 145/PHQ and evidence on record, I have come to the conclusion that the charge framed against Const. Gandharv Singh, No.145/PHQ is proved.
6. The Disciplinary Authority tentatively agreed with the aforesaid enquiry report and furnished a copy of the same to the Applicant vide Respondents U.O. dated 02.10.2010. The Applicant submitted his representation against the same on 06.01.2011. After considering the said report and the representation, the Disciplinary Authority, vide its order dated 03.06.2011, imposed the penalty of dismissal from service on the Applicant with immediate effect. His suspension period from 20.01.2002 till date was also treated as period not spent on duty for all intents and purposes. By order dated 16.11.2011, the Appellate Authority has also rejected the appeal made against the order of the Disciplinary Authority stating that there was no reason to interfere with it.
7. The Applicant has challenged the aforesaid impugned orders in this Original Application on various grounds. According to him, the very allegations made against him were factually incorrect. The Disciplinary Authority has in fact proceeded against him on the basis that the allegations/charges made against him vide FIR No.37/2002 dated 10.01.2002 were under section 306/420 IPC but actually the charge against him in the said FIR was only u/s 383 IPC and it reads as under:-
FIR No.37/02P.S.: P.G. CHARGE I, Alok Agarwal, Metropolitan Magistrate, Delhi do hereby charge you Gandharav Singh S/o Shri Risul Singh, as under:-
That in the year 2002 you intentionally put Balbir Singh in fear of not returning the cheques amounting to Rs.1,18,000/- kept by you (which were received without your mitigation from Sunil Kumar Gupta) and you thereby dishonestly induced Balbir Singh to deliver sum of Rs.20,000/- and you thereby committed an offence punishable u/s 384 IPC and with my cognizance.
And I hereby direct you to be tried by this Court for the aforesaid offence.
MM: Delhi 4.8.2005.
Further, according to the Applicant, when the charge against him in the criminal case was only under Section 384 of IPC, the Disciplinary Authority could not have proceeded against him on the basis that the allegations contained in the said FIR against him was under Section 306/420 of the IPC. Thus, according to the Applicant, the very foundation of the charge against him in the departmental proceedings is a non-existent one.
8. The other ground taken by the learned counsel for the Applicant is that there was considerable unexplained delay in initiating departmental proceedings against him. While the allegation against him was that the FIR No.37/02 u/s 306/420 IPC was registered against him in the year 2002, the respondents deliberately did not take any departmental action against him for over 7 years. In this regard he relied upon the order of the co-ordinate bench of this Tribunal in OA No. 2727/2010 Joseph Kuok Vs. U.O.I & Others decided on 16.05.2011. The relevant part of the said order is as under:-
5. After considering the rival contentions, this Tribunal observed as follows-:-
15. The Honourable Supreme Court has considered the issue about the delay in issuing the chargesheet after considerable delay in a catena of cases. In State of Madhya Padesh Vs. Bani Singh and Another, (1991) 16 ATC 514, while considering the order of the Tribunal quashing the chargesheet because of delay of 12 years in issuing the chargesheet, the Honourable Supreme Court held thus:
4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal. The facts in P.V.Mahadevan Vs. M.D, T.N. Housing Board, (2005) 6 SCC 636 were that disciplinary action was proposed against the petitioner in the year 2006 for some alleged misconduct in the year 1990. The Honourable Supreme Court considered the precedents of Bani Singh (cited supra), adverted to above and State of A.P. Vs. N.Radhakrishnan, (1998) 4 SCC 154. Paragraph 19 of N. Radhakrishnan has been quoted in the judgement in P.V.Mahadevan (cited supra), as reproduced below:
19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. (emphasis added) The Honourable Supreme Court upheld the order of the Tribunal quashing the chargesheet on the ground that there was hardly any explanation worth considering as to why the delay occurred. The Honourable Supreme Court, following N. Radhakrishnan (cited supra) held thus in P.V.Mahadevan (supra):
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. (emphasis added) In State of Punjab Vs. Chamanlal Goel, 1995 (2) SCC 570, the Honourable Supreme Court considered a similar case of delay in initiating departmental proceedings and held thus in paragraph 9:
9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. (emphasis added) In Meera Rawther Vs. State of Kerala, 2001 (1) SLR 518, the Honourale High Court of Kerala held thus:
13. The Court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar Vs. Y.B. Zala and others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a pre-vision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice. (emphasis added) In the instant OA, the detailed show cause notice was issued on 3.12.1999, after investigation by DRI in 1998. CBI also conducted investigations but found nothing incriminatory against the Applicant. During this period, all the records of the case and the witnesses were available. The Respondents have failed to explain why disciplinary proceedings could not be initiated at this time especially considering the fact that the DRI was able to issue a detailed charge sheet. Also, investigations by the CBI also would have yielded some material on the basis of which departmental enquiry could have been initiated, if the Respondents so desired. The case under the Customs Act, 1962 culminated in exonerating the applicant with a specific observation that departmental enquiry should be initiated against him in August, 2003. Even then the Respondents did not move although such advice was rendered. We do not think that the Respondents have been able to explain the delay in issuing the charge sheet.
9. He has also relied upon the order of this Tribunal in RA No. 27/2012 in OA No. 1844/2011 Hari Singh Vs. U.O.I. and Another decided on 08.01.2013. The operative part of the said order reads as under:-
10. We have heard both the counsel on the OA itself and perused the additional documents brought on record. On the basis of the same, we are satisfied that the OA deserves to be allowed on the ground of inordinate and unexplained delay in issuance of charge sheet by the respondents. As is clear, the incident pertains to the year 1998. Action against the exporting firm was taken by the respondents in the year 2000 and on the basis of the report from DRI in 2003, it was decided to conduct departmental proceedings against 23 departmental officers. Even if we count the delay from the year 2003 when the decision to initiate proceedings had been taken, the charge sheet was issued only in the year 2011 after a lapse of eight years. As mentioned in the order dated 19.12.2011, it is settled law that unexplained and inordinate delay in issuance of the charge sheet is violative of the principles of natural justice. The following citations support our view:
S.No. Name of the case Citation/Case No.
1. State of Madhya Pradesh V. Bani Singh & Anr. 1990 (Supp) SC 738
2. State of A.P. V. N.Radhakishan (1998) 4 SCC 154
3. P.V. Mahadevan V. MD, TN Housing Board (2005) 6 SCC 636
4. State of Punjab & Ors. V. Chaman Lal Goyal (1995) 2 SCC 570
5. Inderjit Singh & Ors. V. Food Corporation of India & Ors. 2002 (4) SLR 233
6. Meera Rawther V. State of Kerala 2001 (5) SLR 518
7. Rajbir Singh Gill V. State of Punjab 1999 (7) SLR 422
8. Irfan Ahmed V. UOI & Ors. O.A. No.689/2005
9. UOI V. Irfan Ahmed W.P. No.2079/2007
10. UOI V. Irfan Ahmed SLP Civil CC 1918/2010
11. B.J. Shelat V. State of Gujarat & Ors. 1978 Lab. I.C. 824
12. UOI & Ors. V. J. Ahmed 1979 SCR (3) 504
13. M.S. Bhatia V. UOI & Ors. O.A. 1087/2009
14. UOI & Ors. V. M.S. Bhatia WP) No.750/2010 We are also taking note of OA No.2727/2010, Joseph Kuok Vs. Union of India and anr. which pertained to the same incident and which was allowed on the ground of inordinate and unexplained delay.
11. Accordingly, being satisfied that there was no satisfactory explanation for delay of almost eight years in issuance of charge sheet, we allow the OA setting aside and quashing the OM dated 25.02.2011. The applicant will be allowed all consequential benefits thereafter. No costs.
10. The Applicant has also submitted that even though he was supplied with a list of 7 Prosecution Witnesses (PW for short) including Shri Balbir Singh who was supposed to give evidence as to how the Applicant cheated him, Shri Sunil Gupta and Shri Vinod Kumar who were required to give statements regarding the amount of the cheques mentioned in the allegations, Head Constable Om Prakash who was required to produce FIR No.37/2002 u/s 306/420 IPC PS PG New Delhi, SI Ranjan Kumar Singh who was required to prove the role of the Applicant in the case, the concerned clerk of the State Bank of India, Bhikaji Kama Place, New Delhi who was required to produce the bank statement of Account No.20411 of Shri Sunil Gupta and DD Writer of DD No.27 dated 30.01.2002, the most important and the only material witnesses Shri Balbir Singh and Shri Vinod Kumar were not produced during the enquiry at all.
11. Another contention of the learned counsel for the Applicant is that there was no evidence at all against the Applicant from any independent witnesses on the allegations made against him. The PW-1, HC Shyambir Singh was a formal witness and he has only stated that he was posted at PS Paharganj as MHC ( R) and he brought the copy of the FIR No.37/02 u/s 306/420 IPC which has been marked as Exhibit PW-1/A. The PW-2, SI Ranjan Kumar Singh was the Sub Inspector posted in PS Pahar Ganj on the relevant date, i.e. 19.01.2002 and his evidence was not reliable. According to him, he along with Inspector V.K. Dham, SHO/ PS Pahar Ganj reached Hotel Paradise for investigation of another case FIR 36/02 u/s 302/309 IPC registered against Shri Balbir Singh and they met him there. According to him, he recorded the statement of Shri Balbir Singh and thereafter prepared rukka which was marked as Exhibit PW-2/A and registered FIR 37/02 u/s 306/420 IPC. SI Ranjan Kumar Singh has further stated that he had arrested Sunil Gupta who had disclosed that the Applicant had taken two cheques worth Rs.68,000/- and Rs.50,000/-. The disclosure statement of Sunil Gupta was marked as Exhibit PW-2/B. He also seized suicide note of Shri Balbir Singh written in Gurmukhi and translated into Hindi which were marked as Exhibit PW-2/C and PW-2/D. He arrested the Applicant who disclosed and helped to recover those two signed cheques. The disclosure statement of the Applicant was also marked as Exhibit PW-2/E and both the recovered cheques were marked as Exhibit PW-2/F and PW-2/G. Both the cheques were issued in favour of Shri Balbir Singh by Shri Sunil Gupta from his account No.20411. Thereafter, the charge was prepared after completion of investigation and the same was filed in the court. The copy of the challan was marked as Exhibit PW-2/H. The statement of Shri Vinod Kumar was also obtained and marked as Exhibit PW-2/I. According to the Enquiry Officers report, during the cross examination by the Applicant, SI Ranjan Kumar Singh stated that the Applicant had taken him to his house and produced 2 cheques from his almirah. The other PW was Shri Sunil Gupta. According to him, Shri Balbir Singh used to visit his office for business. In the middle of December, 2001, Bablir Singh along with Applicant went to his office and wanted to settle the account. Accordingly, two post dated cheques amounting to Rs.1,18,000/- were given to Shri Balbir Singh. During cross examination, Shri Sunil Gupta submitted that only at the time of his arrest he came to know that the Applicant was working as Constable in Delhi Police. He has also stated that the Applicant never intimidated or pressurized him in issuing the cheques to Shri Balbir Singh. However, according to the enquiry report, both Shri Balbir Singh and Shri Vinod Kumar were not produced as PWs. While Shri Balbir Singh was declared a proclaimed offender in case FIR No.36/02 and 37/02 of PS Pahar Ganj as per the report of the IO/SI Ranjan Kumar Singh, the summons issued to Shri Vijay Kumar could not be served in spite of best efforts.
12. The learned counsel for the Applicant has submitted that Shri Balbir Singh and Shri Vinod Kumar were material witnesses in the case. In fact Shri Balbir Singh was the complainant and his complaint was that Shri Sunil Gupta cheated him. Further, allegation was that Shri Balbir later met the Applicant through one Shri Vinod Kumar. Later on, Shri Balbir Singh and the Applicant went to the residence of Shri Sunil Gupta and the Applicant obtained two cheques from Shri Sunil Gupta. However, the respondents purposely did not produce them before the Enquiry Officer. He has further stated that when the alleged incident had happened in the year 2002 but Shri Balbir Singh absconded only in 2007 and he was declared as a proclaimed offender in FIR No.36/02 and 37/02 of PS Pahar Ganj against him. According to the learned counsel, if the enquiry was held at the appropriate time in the year 2002, there would have been no difficulty or problem in producing Shri Balbir Singh and Shri Vinod Kumar. He has, therefore, submitted that non-production of Shri Balbir Singh and Shri Vinod Kumar in this case was intentional and it substantially prejudiced the case against him.
13. Respondents have filed their reply stating that the departmental enquiry was initiated against the Applicant vide order dated 9.12.2009 on the allegations that a case FIR No. 37/02 u/s 306/420 IPC PS Pahar Ganj was registered against him on the complaint of one Shri Balbir Singh against him and others. The complainant alleged that one Shri Sunil Gupta had cheated him for arranging visa for Italy and demanded Rs.1,00,000/- and took Rs.60,000/- alongwith passport from him. Shri Sunil Gupta neither arranged visa nor returned the money. After that the complainant met the applicant through one Vinod Kumar of Badarpur on 15.12.2001. He alongwith the Applicant went to the residence of Sunil Sunil Gupta where Shri Sunil Gupta told him that he would give cheques for an amount of Rs.1,18,000/- and the balance amount of Rs.60,000/- would be paid in cash but the complainant refused to accept it. Thereafter, the Applicant obtained two post dated cheques amounting to Rs.68,000/- and Rs.50,000/- respectively from Sunil Gupta and kept them with him and did not give to the complainant but demanded Rs.20,000/- from him. The complainant obtained Rs.10,000/- from his relative and gave the same to the Applicant but the Applicant again did not give the cheques to him. On being harassed and threatened by the Applicant, the complainant suggested his wife to commit suicide with all family members for which she agreed. He also wrote a suicide note in Gurmukhi mentioning reason for committing suicide on which his wife put signatures in English. Thereafter, he killed his wife and two daughters by pressing their throat. He himself tried to commit suicide after fixing a rope on the fan, but was unsuccessful in his attempt. After that he cut both his wrists with blade and later on when he regained consciousness, he found himself in hospital.
14. As far as the enquiry proceedings are concerned, the respondents have submitted that during the said proceedings out of the 7 PWs, 5 PWs were examined in the presence of the Applicant and he also cross-examined those PWs. PWs 6 &7 were not traced despite best efforts made by the Enquiry Officer. Having no other option except to drop them from the arrayed list of PWs, the Enquiry Officer framed the charge on the basis of evidence in Departmental Enquiry file and served the same upon the applicant duly approved by the disciplinary authority. The Applicant did not submit any of list of DWs. However, he submitted his final defence statement. The Enquiry Officer completed the proceedings and submitted his finding concluding therein that the charge framed against the Applicant stands proved.
15. We have heard the learned counsel for the Applicant, Shri Sachin Chauhan and the learned counsel for the Respondents, Shri Amit Anand. We have also perused the judgments relied upon by the Applicant as well as the records produced by the respondents. First of all, we see the allegations made against the Applicant are based on false premises. As per the record, FIR 37/2002 was registered against Shri Balbir Singh, Shri Sunil Kumar Gupta and the Applicant under Sections 306 and 420 of IPC on 20.1.2002. The offence under Section 306 of IPC is abetting the commission of suicide and the offence under Section 420 is cheating and thereby dishonestly inducing delivery of property, or the making, alterations or destructions of a valuable security. Both are cognizable and non-bailable offences. While the punishment for the former is imprisonment for 10 years and fine and for the latter it is imprisonment for 7 years and fine. However, the trial court under vide order dated 04.08.2005 charged Shri Balbir Singh and Shri Sunil Gupta under FIR 37/2002 only under Section 420 IPC and the Applicant was charged under Section 384 IPC. The offence under the said section is extortion which is cognizable and non-bailable carrying the punishment of imprisonment for 3 years or fine or both. Therefore, the statement of the Disciplinary Authority while initiating the departmental enquiry against the Applicant vide FIR 37/2002 u/s 306/420 IPC was pending against him was without application of mind and factually incorrect. While initiating the Disciplinary Proceedings against Applicant on 09.12.2009, the Disciplinary Authority was not even aware that the charge against the Applicant in the criminal trial was only u/s 384 of IPC and not under Section 306 and 420 of IPC. Even the Enquiry Officer continued with the enquiry on the presumption that the charge against the Applicant continued to be under Sections 306 and 420 IPC in his report, he has, therefore, stated that it was established that a criminal case vide FIR 37/2002 under sections 306 and 420 IPC was registered against the Applicant. It is a well settled legal preposition that in a case, if the foundation is removed, the entire superstructure would fall. In Badrinath Vs. Government of Tamil Nadu 2000 (8) SCC 395 the Apex Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically. It is, therefore, seen that the Disciplinary Authority has ordered departmental enquiry against the Applicant without proper application of mind. The allegations/charges were vague. The findings of the Enquiry Officer are also factually incorrect. On this important ground alone the order initiating the departmental proceedings against the Applicant, the charge made against the Applicant in the departmental proceedings, the Enquiry Officers report, the Disciplinary Authoritys order and Appellate Authoritys order are liable to be quashed and set aside.
16. Further, it is seen that the alleged incident of torture by the Applicant has taken place on 19.01.2002 as per the copy of the FIR 37/2002 registered on 20.01.2002 available on the record. There is no explanation as to why there was inordinate delay of nearly 8 years on the part of the Respondents in initiating the departmental proceedings against the Applicant u/s 21 of the Delhi Police Act, 1978 vide Memo dated 09.12.2009. In Kundan Lal Vs. Delhi Administration (1976 Lab.IC 811), the Honble High Court of Delhi held that unexplained delay in issuing charge sheet amounts to denial of reasonable opportunity for defence and the order of the disciplinary authority is liable to be quashed on that ground alone. Same is the principle held by the Apex Case in the case of State of M.P. Vs. Bani Singh and Another 1990 Supp. SCC 738, State of A.P. Vs. N. Radhakishan JT 1998 (3) SCC 123, P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SC 636 and M.V. Bijlani Vs. Union of India 2006 (5) SCC 88. In the present case the prejudice caused to the Applicant due to unexplained delay in initiating the disciplinary proceedings is writ large on the face of it. Again, we consider that there is merit in the contention of the Applicants counsel that there is no evidence against the Applicant. Except PW-2 SI Ranjan Kumar Singh, all others were formal witnesses. They do not say anything about the charge against the Applicant. PW-2 was the Investigating Officer in both FIR 36/2002 and FIR 37/2002 and he is an interested witness. According to him, he met the complainant Shri Balbir Singh. He recorded his statement. He also arrested the accused Shri Sunil Gupta. Further, according to PW-2 he arrested the Applicant who disclosed and helped to recover the two cheques issued in favour of Shri Balbir Singh. However, Shri Sunil Gupta himself has stated before the Enquiry Officer that he gave the cheques to Shri Balbir Singh and not to the Applicant. It is a well settled law that there should be some credible evidence in the departmental enquiry to prove the charge. They should also be legally admissible. The only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the Applicant before PW-2 which is not sufficient. The examination and cross-examination of Shri Balbir Singh and Shri Vinod Kumar only would have revealed whether the Applicants alleged involvement was there or not. We, therefore, do not find any credible evidence to support the charge against the Applicant. As the Enquiry Officer has held that the charge against the Applicant was proved in spite of the above position, we can treat the said report only as perverse.
17. According to PW-2, he has seized the suicide note of Shri Bablbir Singh and produced it as Exhibit PW-2/C. It is a well settled principle that mere tendering a document is not sufficient in a departmental proceeding. The contents of the documentary evidence have to be proved by examining the witness. As held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 without examining and cross-examining the witness, his statement cannot be taken into consideration. Again as held by the Apex Court in the said judgment, the confessional statement alleged to have been made by the Applicant before the Police Officer is also not sufficient to prove the charge. Further, as held by the Apex Court in Hardwari Lal Vs. State of U.P. & Others 1999 (8) SCC 582, in the absence of other material evidence it is not sufficient to come to the conclusion arrived at by the Enquiry Officer. Failure to examine the material witnesses Shri Balbir Singh and Shri Vinod Kumar is a serious flaw in the entire enquiry proceedings. The Enquiry Officer, while discharging his function as a quasi-judicial authority must have arrived at his conclusion only after analysing the documents and holding that there had been a preponderance of probability to prove the charges on the basis of some admissible and credible evidence. We are, therefore, of the considered view that the Enquiry Officers report is perverse and it has to be rejected as the same is based on no evidence against the Applicant to substantiate the allegations made against him. The Disciplinary Authoritys order and the Appellate Authoritys order based on the said enquiry report also cannot be sustained.
18. In view of the above position, the OA is allowed. Consequently, the impugned order dated 09.12.2009 whereby a departmental enquiry was initiated against the Applicant in respect of the allegation in FIR 37/02 dated 10.01.2002 u/s 306/420 IPC PS Paharganj, Delhi, the order of Disciplinary Authority dated 03.06.2011 whereby the extreme punishment, i.e., dismissal from service is imposed upon the Applicant and the order dated 16.11.2011 whereby the appeal of the Applicant against the order of dismissal from service is rejected by the Appellate Authority thus causing great prejudice to the Applicant are quashed and set aside. Further, it is directed that the Respondents shall reinstate the Applicant back in service immediately with all consequential benefits except back wages. The Respondents shall also pass appropriate orders in compliance of the aforesaid directions within a period of one month from the date of receipt of a copy of this order.
19. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh