Central Administrative Tribunal - Delhi
Const. Jagminder vs Union Of India on 18 February, 2009
Central Administrative Tribunal Principal Bench OA No.40/2008 New Delhi, this the 18th day of February, 2009. Honble Mr. Justice M.Ramachandran, Vice Chairman (J) Honble Dr. Ramesh Chandra Panda, Member (A) Const. Jagminder Ct. No. 1680/T (Now 7424/DAP) E-53, Amar Colony, Nagloi Delhi-41. Applicant. (By Advocagte : Shri Amit Anand Tiwari) Versus 1. Union of India, Through Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi. 2. Deputy Commissioner of Police Traffic (SR), Delhi, Through Joint Commissioner, Traffic Police, Police Head Quarter, I.T.O., New Delhi Respondents. (By Advocate : Shri P.K.Gupta) : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
Shri Jagminder, working as Constable [1680T (PIS No.28981942) now 7424/DAP) in Delhi Police, the Applicant herein, has been aggrieved by the orders of (i) the disciplinary authority dated 15.9.2005 (Annexure-A1) by which he was imposed a major penalty of forfeiture of one year of approved service permanently for a period of one year and (ii) appellate authority dated 6.9.2007 (Annexure-A2) by which his appeal was rejected under Section 19 of the Administrative Tribunals Act, 1985, he has prayed this Tribunal to (a) quash the order dated 15.9.2005 passed by the Disciplinary Authority and the order dated 6.9.2007 passed by the Appellate Authority and (b) pass such further orders as it may deem fit.
2. The facts of the case, as stated by the Applicant reveal that while the Applicant was posted during April to June 2004, at Ali More Pit of Kalkaji Traffic Circle as Constable, on 26.5.2004 one bus bearing number DL 1P 8360 was impounded in Darya Ganj Traffic Circle by the Traffic Police and was deposited at Old Police Lines (OPL) pit on the same day for 5 days vide DD No. 31 dated 26.5.2004 (Annexure-A/3) and was released at 3.40 PM on 31.5.2004 vide DD No. 29 dated 31.5.2004 (Annexure-A/4). It is stated that on 29.5.2004, one bus with number DL 1P 8360 came to Ali More Pit (where the Applicant was on duty as Pit Constable) for depositing the same as for the order dated 7.5.2004 for 8 days. The Applicant admitted the same to the Pit and made an entry (Annexure-A.5) on the reverse of the said notice No. 14439-44 dated 7.5.2004. The Applicants duty at Ali More Pit was over on the morning of 30.5.2004 and thereafter he did not perform duty at the Ali More Pit. T.I. Satbir Singh carried out inspection of the said pit on 1.6.2004 and found the said bus (DL 1P 8360) of the pit and recorded an entry to that effect. On 3.6.2004 made a complaint that the bus was another bus (DL-1P 1098) with fake number of DL 1P 8360 and alleged that the Applicant in connivance with the bus owner committed the misconduct. Respondent No.2 ordered (Annexure-A/6) a departmental inquiry on 28.10.2004 for gross misconduct under Delhi Police (Punishment and Appeal) Rules 1980. The Applicant having pleaded not guilty of the alleged charge, (Annexure-A/7), the Inquiry Officer (IO in short) examined 7 witnesses presented by Delhi Police and 2 defence witnesses. The IO in his Report dated 25.4.2005 (Annexure-A/10) concluded that the charge was not substantiated by the material on record. The Disciplinary Authority differed from the IOs finding, got the Applicants reply thereon and held the charge against the Applicant as proved and imposed the punishment of forfeiture of one year with proportion reduction in his pay from the stage of Rs.3425 to Rs.3350 and decided his suspension period from 9.6.2004 to 1.9.2005 as period not spent on duty, vide his order dated 15.9.2005 (Annexure-A/1). The Applicant preferred an appeal against the said order, which was decided by the Appellate Authority in his order dated 6.9.2007 (Annexure-A/2) and the appeal was rejected. Hence, the Applicant is before this Tribunal.
3. Shri Amit Anand Tiwari, the learned counsel for the Applicant contended that the case against the Applicant was that of no evidence. The I.O. has correctly concluded that as per the materials on record, the charge against the Applicant could not be substantiated. The Disciplinary Authority, not accepting the IOs finding committed serious error of law and he did not assign convincing reasons for dissenting/ differing from the said finding. He contended that the Disciplinary Authority shifted the responsibility from proving the guilt of the Applicant by the Respondent to the proving of innocence by the Applicant, by getting the non-existence material; basing on the surmises and conjectures; and by not considering the relevant evidence of PW-5, 6 and 7, the Disciplinary and Appellate Authorities failed to appreciate that the Applicant did not commit the misconduct of conniving with the bus owner in accepting a bus with fake number plate. He founded his contention on the basis of the fact that the Applicants duty/function was to accept at the Ali More Pit the deposit of the bus impounded by the Traffic Police and he was not responsible to cross check the details of the bus. Shri Tiwari pleaded that the OA should be allowed with all consequential benefits.
4. On the contrary, Shri P.K.Gupta, the learned counsel for the Respondents, strongly opposed Shri Tiwaris contentions, and submitted that the Disciplinary Authority having differed from the findings of the I.O., gave opportunity to the Applicant and having considered the response, came to the conclusion and imposed the penalty. The Appellate Authority, he contended, considered the appeal, afforded opportunity of personal hearing and rejected the appeal. Shri Gupta submitted the main DE file for our perusal.
5. Having heard the rival contentions, and perused the pleadings and the main DE file, we need to look into (i) the charge framed against the Applicant; (ii) the I.O.s Report and more specifically the findings; (iii) the disagreement note of the disciplinary authority; and (iv) the orders passed by the disciplinary and appellate authorities, to consider and determine in the first instance the only issue - Is this a case of no evidence? If we come to the conclusion that there are evidence in the disciplinary case, other aspects/contentions raised by Shri Tiwari will be considered.
6. On the basis of the allegation against the Applicant, the Deputy Commissioner of Police, Traffic (SR) Delhi vide his order dated 28.10.2004 (Annexure-A6) ordered a regular departmental enquiry against him, which was conducted by Shri Harish Kumar, Inspector, DE Cell of Delhi Police under the provisions of Delhi Police (Punishment and Appeal) Rules 1980. The following charge was framed against the Applicant: -
I, Inspector Harish Kumar E.O., D.E. Cell hereby charge you Ct. Jagminder No.1680/T was on duty on 29/5/04 at Ali More Pit. You informed the circle office that a bus No.DL 1P-8360 deposited at Ali More Pit for 8 days on 29/5/04 and lodged DD No.32/KKC dated 29/5/04. The said bus was impounded for violation Honble Supreme Courts directions U/s 66.1/19A M.V. Act and 7/177 M.V. Act vide challan No.AG-632208 dated 2/4/04 by ZO/SI Deepak Kumar and the bus permit was suspended by ACP/T-South Distt. On 7/5/04 vide order No.14439-44/ACP/T-South for 8 days.
Inspr. Satvir Singh Malik, TI/Kalkaji Circle conducted a surprise check at More Pit and noticed some foul Play. During Inquiry it was found that you Ct. Jagminder No.1680/T deposited a bus No.DL1P-1098 having engine No.16ZNCZKL12L and Chassis No.TXLOLHF 57314 with a fake number plate of DL1P-8360 falsely whereas the bus No.DL1P-8360 having chasis 359350AT210294SLP151-/52 was plying on route. Instead of depositing the bus No.DL1P-8360, you Constable parked bus No.DL1P B1098 by using duplicate number plate of bus No.DL1P 8360, and thus indulged in malpractice with the connivance of bus owner.
The above act on the part of you Ct. Jagminder No.1680/T (PIS No.28981942) amounts to gross misconduct, malafide, negligence and dereliction in discharge of your official duties, which renders you liable for punishment under the provision of Delhi Police (Punishment & Appeal) Rules, 1980.
(HARISH KUMAR) INSPECTOR/INQUIRY OFFICER D.E. CELL, DELHI
7. The IO having considered the evidence of prosecution and defence witnesses has discussed the evidence to reach the conclusion that the charge against Const. Jagminder No.1680/T is not substantiated. We extract here the relevant discussion part of the IOs Report as follows:-
In the present D.E. I have examined 7 PWs to support the prosecution evidence. Out of the 7 PWs, PW-1, PW-2, PW-3, PW-4 and PW-5 are all formal witnesses, who have deposed regarding challenging/impounding of the Bus No.DL-1P 8360 and PW-3 regarding duty of Const. Jagminder. PW-4 deposed regarding depositing of Bus in Darya Ganj Circle. He also deposed that as per record vide DD No.32 dated 29.5.04 Kalkaji Circle, the bus No.DL-1P 8360 was deposited in the Pit while Const. Jagminder Singh was on duty.
The statement of PW-6, Inspr. S.S. Malik and PW-7 Hem Raj are worth perusal. PW-6 Inspr. S.S. Malik has deposed that the Bus No.DL-1P 8360 was deposited on 29.5.04 by the owner of the bus, but the fact is that the bus was deposited with the No.plate of DL-1P 8390. Secondly the report of Inspr. S.S.Malik is full of contradictions and is untrustworthy. As reported by him he suspected some foul play, then whey he did not check it. It is also incorrect that he bus was deposited in Ali More Pit with the same registration number. The fact is that he did not know anything from the date of depositing of the bus on 29-5-04 till somebody complained/informed him. It is a fact on record that the bus was deposited in the Ali More Pit by MIIC vide DD No.32 dated 29-5-04 Kalkaji Circle and the same has been agreed by him. But the fact is that on 1.6.04 vide DD No.37 Kalkaji Circle he has mentioned that he checked vehicles in the Pit and found them in order. Now the question raises that if the vehicles in the Pit were in tact, why he did not mention in his report in the DD No.37 dated 1.6.04. This clearly shows that even Inspr. S.S. Malik did not know about it. Inspr. S.S. Malik PW-6 was right to mention in his report on 1-6.-04 if there was any foul play in DD No.37 in which he had agreed that the buses/vehicles are intact. If he is right, then he is either protecting his staff officer for recording incorrect information and to save his staff for the negligence committed by them.
From the scrutiny of record i.e. DD No.32 dated 29-5-04, the bus bearing No. plate DL-1P 8360 was got parked by MHC/Kalkaji Circle DD No.37 dated 10-6-04 written by Inspr. S.S.Malik also shows that he found the vehicles in the Pit in perfect order. DW-1 Sh. Rajinder Kumar has also corroborated the above facts which are on record. The defaulter Ct. Jagminder No.1680/T was not duty at the Pit since 1-6-04, till the bus with fake No. was detected.
From the facts and circumstances in this case it has been found that the owner/driver of Bus No.DL-1P 8360 deposited the bus in the Pit due to the negligence of the staff of Kalkaji Circle for which Ct. Jagminder No.1680/T cannot be held responsible for this lapse. The statement of PW-7, DW-1 record vide DD No.32 dated 29-5-05-04 and DD No.37 dated 1-6-04 of Kalkaji Circle are sufficient to believe that the charge against Const. Jagminder No. 1680/T is not proved.
8. The Disciplinary Authority did not agree with the findings of the I.O. and opined that the conclusion so arrived by the IO was inconsistent to the evidence on record. He sent his disagreement note to the Applicant, received his representation and heard him on 1.9.2005 and analysed the contentions raised by him for passing the final order. The relevant parts of his orders, in the context, are reproduced below :-
..An Exhibit PW-2/A is an ample evidence that bus NO. DL-1P 8360 was deposited by the defaulter and an entry to this effect was made in his hand. The evidence led by PWs 5 & 6 is of immense importance to arrive at a fair and logic conclusion but the EO erred in evaluating these evidence in positive way because when bus No.DL-1P8360 was reportedly taken into possession by the defaulter at Pit, the said bus was already deposited in Darya Ganj Traffic Circle
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The next contention is that the bus No.DL-1P 8360 shown deposited in the Darya Ganj Circle may have been deposited by the owner by using fake number plate. During O.R. the defaulter has not adduced any fresh plea and claimed his innocence and requested for his exoneration from the charge by deciding his suspension period as period spent on duty. The contentions advanced by the defaulter are of no avail because the fact-finding report given by PW-6 and brought on record as Exhibit PW-6/A proves the plain guilt of the defaulter. There is no explanation from him to rebut the charge said specific charge. The evidence brought on record by way of Exhibit PW-2/A further goes to prove that the defaulter has deposited bus No.DL-1P 8360 in the Pit with fake number plate because the said bus was already deposited in Darya Ganj Traffic Circle on 26.5.2004 vide DD No.31/DGC dated 26.5.2004 pursuant to permit suspension orders passed by ACPIT (Central) vide order No.5930-34/R.ACPIT/Central dated 26.5.2004.
9. The Appellate Authority considered the appeal of the Applicant and identified 2 grounds as relevant and heard him before rejecting the appeal. The grounds are viz (i) that the Inquiry officer after evaluating all the evidence on record minutely and applying his mind has very rightly concluded in his finding that the charge against appellant is not substantiated. The discussion of evidence made by Inquiry Officer in his finding is self explanatory; (ii) that the disciplinary authority has given full credence to the deposition made by Inspector Satbir S. Malik, TI/KKC and totally overlooked the submission made in the defence statement by the appellant.
10. At this stage, we examine the legal issue raised by the Counsel for the Applicant that the disciplinary case is a case of no evidence. We note that the power of this Tribunal to interfere in the matters of disciplinary proceedings is very limited. This Tribunal, while deciding the OA No.2689 of 2006 decided on 2-2-2009 went through many judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred in the said OA are viz: 1. B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; 2. State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; 3. State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; 4.Om Kumar versus Union of India (2001) 2 SCC 386); 5. M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; 6. State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; 7. Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; 8. Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; 9. Union of India Versus S.S. Ahluwalia[2007 SCC (7) 257] ; and 10. Moni Shankar versus Union of India [2008 SCC (3) 484]. We note that the common thread running through the decisions of the Honourable Apex Court is that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless it is found to be suffering from certain procedural, legal, statutory improprieties. On certain grounds only the Tribunal can closely scrutinize the relevance and irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle and the like. Some of the guiding principles in the subject are as follows:-
* The Tribunal cannot interfere with the findings of the Inquiry Officer which is based on evidence and substitute its own independent findings.
* When the findings of the disciplinary authority or the appellate authority are based on some evidence, the Tribunal cannot re appreciate the evidence and substitute its own findings.
* Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made.
* When an inquiry is conducted on the charge(s) of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered/concerned to determine -Whether the inquiry was conducted by the competent officer? Or -Whether rules of natural justice have been complied with? Or -Whether the findings/conclusions are based on some evidence or no evidence to reach a finding/conclusion? Or -Whether the mode of inquiry is in violation of statutory rules? Or -Whether the findings are arbitrary or utterly perverse?
* Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings.
* When the Inquiry Officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty of the charge.
* The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding is based on the same.
* In case of an appeal, the Appellate Authority has co-extensive power to re appreciate the evidence and the nature of punishment.
* The Tribunal can interfere with the decision of the Disciplinary/Appellate/Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards.
* The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
* The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets the requirement of burden of proof, namely preponderance of probability.
11. We note the foregoing legal position that this Tribunal is not an Appellate forum to examine the evidence gathered in the inquiry bit by bit but we have the power to see whether there is even the minimum evidence to invoke the doctrine of probability of preponderance. If the case has no evidence against the Applicant we are legally duty bound to interfere and such step cannot amount to the re appreciation of the evidence. As already identified by us, we take up the issue - is this a case of no evidence, for our initial consideration and determination.
12. We examine the evidence of PW-5, PW-6 and PW-7 on the basis of which charge against the Applicant was proved.
13. PW-5 is Constable Ved Prakash (2897/T) working as Clerk (Munshi) in Darya Ganj Traffic Circle gave the evidence that the bus with number DL-1P 8360 was impounded for 5 days on 26.5.2004 and was released on 31.5.2004 and was again impounded on the same date for 20 days. We find that this bus was at the Pit in Darya Ganj Circle from 26.5.2004 on wards for 25 days and was not on the route as alleged in the charge against the Applicant.
14. Shri Hemraj (Driver of the bus) PW-7 in the enquiry has tendered his evidence that .on 29.5.2004 on being asked by the owner of the bus NO.DL-1P 8360, I took the bus along with copy of notice to Kalkaji Circle. There, H C Varinder Singh directed to me to deposit the bus at Ali More Pit and thereafter I went and deposited bus No.DL-1P 8360 there. At that point of time Ct. Jagminder was on duty as Ct. Pit. After 4, 5 days T.I. Shri S.S. Malik called me and the owner to T.I. Office and got me to write any statement. I wrote what T.I. and owner dictated me. Exhibit PW-7/A in the Photostat copy of the same. This has been falsely got written from meI do not know who changed the number plate. From the above statement we note that the bus driver took the bus with the number plate of DL-1P 8360 as directed by the owner. Thus it can be presumed that the fake number plate DL-1P 8360 was in the bus even before that left the owners place on 29-5-2004. The said bus with fake number plate passed through HC Varinder Singh at Kalkaji Traffic circle and reached the pit where the Applicant was working. The Disciplinary Authority, we note, has not considered this relevant fact which would have exposed whether the bus owner has put the fake number plate even before the bus strated from his place.
15. On the clarificatory question put by the I.O. to Shri S.S. Malik (PW-6), he stated that in general case possibility of the bus to have been deposited with the false number plate cannot be ruled out. We find the Disciplinary Authority has not considered this relevant fact which would have exposed whether the bus was having false number plate when it was deposited in Ali More Pit, as the evidence rendered by the driver of the bus revealed that he drove the bus with the number plate of DL 1P 8360 to the Kalkaji Circle and subsequently to the said Pit.
16. We find from the evidence of Shri S.S. Malik (PW-6) who submitted his report (PW-6/A) on the basis of which the disciplinary action was initiated against the Applicant that PW-6 conducted detailed enquiry to know that the bus in question was already impounded in Darya Ganj Circle. We wonder how the Applicant as Constable in the Pit would know the impounding of the said bus in a different circle and parked in a different pit? PW-6s evidence during the enquiry does not reveal any aspect of the Applicants connivance with the bus owner to get the false number plate in the said bus.
17. The Applicant did not deposit the bus; he only accepted the deposit of the bus at the Pit from the driver. The bus (DL-1P 8360) was not plying on route on 29.5.2004 (this is part of the charge against the Applicant) whereas the said was impounded in Darya Ganj Traffic Circle even before that date and released only on 31.5.2004 to impounded again on the same day for 20 more days. Even the said part of the charge is, in our opinion, prima facie wrong. It is very interesting to note that the onus of proving the charge was shifted to the Applicant from the Respondent by the Disciplinary Authority. The Respondents have not brought out any evidence in support of the charge that the Applicant was indulged in malpractice with the connivance of bus owner.
18. We find that the Disciplinary Authority has given credibility to irrelevant matters and ignored the relevant facts some of which have indicated above to arrive at a fair decision. Further, the Disciplinary Authority has not unraveled the facts which are more relevant to the disciplinary case. Some of those are as follows:-
* The bus with number DL-1P 8360 vide order dated 7.5.2004 was brought to be deposited at Ali More Pit on 29.5.2004 who was responsible for the belated surrender? Obviously, the owner of the bus or the driver can only answer this.
* The Applicant was at the Ali More Pit up to morning of 30.5.2004. TI Satbir Singh inspected on 1.6.2004 and noted the presence of the bus (DL-1P 8360). He reported the fake number of the bus on 3.6.2004. Why did not he report that on 1.6.2004? Did he check properly the bus on 1.6.2004?
* Was the Applicant on 29.5.2004 in know of the fact that the bus with number DL-1P 8360, was already deposited in Old Police Line (OPL) Pit of Daryaganj Traffic Circle?
* Was the Applicant aware of the fake number of the bus deposited in the Ali More Pit?
19. In view of the total facts and circumstances of the case and legal examination of the evidence in the case, we are of the considered conclusion that the Disciplinary Authority while disagreeing with the IOs Report and finding, has not brought out any evidence to show the probability of preponderance in support of the charge against the Applicant. Even the Appellate Authority has not analysed the available facts and in a routine manner has supported the decision of the Disciplinary Authority and rejected the appeal.
20. In the result, the Respondents case fails and the Applicant succeeds. Since we find that this is a case of no evidence and the Applicant cannot be found fault with, we are of the considered view that no purpose would be served by remitting the case to the Disciplinary Authority to process a de nova departmental action.
21. Thus, the Original Application is allowed, the charge against the Applicant, orders of the Disciplinary and Appellate Authorities are quashed and set aside. The Respondents are directed to grant the Applicant (a) all consequential benefits, and (b) to treat the period of suspension 9.6.2004 to 1.9.2005 as the period spent on duty for pay and allowances and all other service benefits. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (M. Ramachandran) Member (A) Vice Chairman (J) /jk/