Central Administrative Tribunal - Delhi
Nasir Hussain vs Union Of India on 19 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2455/2009 M.A. NO.1655/2009 New Delhi, this the 19th day of March, 2010 CORAM: HONBLE MR. JUSTICE M. RAMACHANDRAN, V.C. (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Nasir Hussain, S/o Shri Aas Khan, R/o South Line, South District, New Delhi Applicant (By Advocate: Md. Rashid Saeed) versus 1. Union of India, Through Home Secretary, South Block, Ministry of Home, New Delhi 110 011 2. Commissioner of Police, New Delhi 3. Jt. Commissioner of Police, Southern Range, New Delhi 4. Dy. Commissioner of Police, South District, New Delhi Respondents (By Advocate: Shri Ram Kawar) ORDER (Oral) By Dr. Veena Chhotray, Member (A):
The applicant, a Constable in Delhi Police, is challenging the penalty of forfeiture of two years approved service permanently and the order regarding the period of suspension w.e.f. 15.5.2006 to 11.4.2007 being treated as not spent on duty for all purposes. The aforesaid punishment has been imposed on the basis of a charge arising out of a criminal case during the year 2006 relating to car thefts and their sale under forged documents; where during investigation it had been revealed that these criminal activities had been indulged in under the shelter and guidance of the applicant. The charges were held as proved during the inquiry under the Delhi Police (Punishment & Appeal) Rules, 1980. The Disciplinary Authoritys order dated 12.12.2008 imposing the aforesaid punishment has been upheld by the Appellate Authority vide its order dated 11.2.2009.
By way of relief, the OA seeks quashing of the Appellate Authoritys Order dated 11.2.2009 along with a direction for restoration of the services of the applicant with all consequential benefits. A declaration regarding the entitlement of the applicant to get damage for the illegal and arbitrary action on the part of the respondents has also been prayed for. The interim relief prayed for seeking immediate restoration of the forfeited service till the pendency of the present OA and for consideration of the suspension period in question as spent on duty, however, has not been granted.
2. The Departmental Enquiry in this case was initiated with the summary of allegations on 14.11.2006; the formal charge after examination of the listed PWs and considering the written defence statement of the delinquent was formulated by the Inquiry officer with the approval of DA and served on the charged official on 5.6.2008. The charge ran as follows:-
It is alleged against you Const. Nasir Hussain No.2205/SD PIS 28011476 that while you were posted at P.S. New Friends Colony, the theft of Motor Vehicle was increasing in the area of South Distt. On 13.5.2006 on a secret information accused Liyakat Ali S/o Ajmat Ali R/o Village Neem Khera PS Punhana Distt. Mewat, HR was arrested when he was in possession of an illegal .32 bore Pistol with 5 live cartridges. He was booked vide FIR No.279/06 dated 13.5.06 U/S 25/54/59 Arms Act PS New Friends Colony New Delhi. On interrogation he disclosed that he alongwith his associate namely Imran Khan has stolen many number of Car from the area of South Distt. During interrogation it was also noticed that accused Liyakat Ali has a close relation with you Const. Nasir Hussain and you frequently visited him. On 4.6.2006 accused Imran Khan @ Lala S/o Manjoor Ahmed associate of Liyakat Ali was arrested when he was in possession of a stolen M/Cycle and on formal search a buttandar knife was also recovered from his possession. He was booked vide FIR No.330/2006 U/S 411 IPC and FIR No.331/2006 U/S 25/54/59 Arms Act PS New Friends Colony, New Delhi. During interrogation accused Imran Khan @ Lala S/o Manjoor Ahmed R/o Village Rithore PS Dadri Distt. Gautambudh Nagar, UP disclosed that he along with Liyakat Ali has stolen many Car from the area of South Distt and they sold the Car to one Abu Zaffar at Lucknow on forged documents which were prepared by Liyakat Ali. 4 Cars were recovered from the possession of Abu Zaffar at Lucknow which were sold by Liyakat ali and Imran Khan. He further disclosed that Const. Nasir Hussain and Const. Jafruddin (who was previously posted at P.S. New Friends Colony and presently posted in VII Bn DAP) has close relation with Liyakat Ali and they frequently met them at the Flat of Liyakat Ali. With guidance and shelter of both Constable they had no problem to commit Crime in the area of South Distt. After the arrest of Liyakat Ali Const. Nasir Hussain leaked the information to him and he run away from his house. Both Constables were well known about the Crime committed by them.
The above act on the part of you const. Nasir Hussain, No.2205/SD amounts to gross misconduct, carelessness, negligence and unbecoming of a police officer, which renders you liable for punishment under the provision of Delhi Police (Punishment & Appeal) Rules-1980.
3. The main ground of challenge in the present case is that the charge had not been held as proved without any evidentiary material on record. The sole basis was a disclosure statement during the interrogations in the criminal case by the co-accused Imran Khan alleging a close relationship of the applicant with Liyakat Ali, main accused, and the help allegedly rendered in the illegal activity of car theft. However, this stand had been retracted by the said Imran Khan during the departmental enquiry. As per the delinquent, the fact of any such relationship had not been corroborated by any other independent evidence. A disclosure statement recorded in the absence of the delinquent and running counter to the deposition during the enquiry was averred not to have any evidentiary value at all. The conversion of the summary allegations into a charge by the Inquiry Officer as well as the subsequent finding of holding the same proved was contended to be mechanical and arbitrary. The same was also the allegations against the orders of the Disciplinary Authority and Appellate Authority, which according to the applicant, had not considered the defence submissions properly. The plea of apparent arbitrariness and discrimination had also been taken since even as per the alleged interrogations the other Constable involved in sheltering the accused viz. his predecessor, Constable Jafruddin against whom no action was taken by the respondents.
4. The OA has been contested by the respondents on whose behalf a counter affidavit has been filed. It is their stand that the OA is fit to be dismissed since the delinquent has been justifiably punished for a very serious charge on the part of a member of a disciplined Police Force. It is also averred that the inquiry in question has been duly conducted in accordance with the procedures prescribed by the rules and both the findings of the Inquiry Officer as well as the orders of the Disciplinary Authority and the Appellate Authority have been passed after affording reasonable opportunity for defence to the delinquent and consideration of relevant facts in a reasoned way. Hence, according to the respondents, there is no justification for any judicial intervention.
5. On behalf of the applicant, learned counsel Md. Rashid Saeed and for the respondents, the learned counsel, Shri Ram Kawar would appear before us and make the submissions. We are passing this order after considering the submissions by both the learned counsels as well as carefully perusing the material on record.
6. This was a case in which out of 6 PWs, 5 were Police personnel (posted in the concerned area previously at the time of the occurrence of the incident or presently at the time of holding the inquiry). They had deposed regarding the FIR, arrest and disclosure by the two criminal accused in their confessional statements in the aforesaid criminal case. Out of these two accused also only one viz. Imran Khan had been examined during the departmental enquiry and he had completely disowned his previous statement of making the allegations against the applicant. We also find along with the OA, a copy of the disclosure statement of the main accused Liyakat Ali (Annexure A/2) which does not contain mention of any such relationship. It is pertinent to note that this Liyakat Ali had not been made one of the prosecution witnesses nor had he been examined during the departmental enquiry.
The fact remains that the charge was only on the basis of the alleged confessional statement by the co-accused, Imran Khan (PW-5), who during the DE had entirely disclaimed the same. The relevant deposition as per the inquiry report is extracted below:
5. PW-V, Sh.Imramran Khan @ Lala S/o Manjoor Ahmad R/o Vill. Rithore Distt. Gautambudh Nagar, UP. He stated that he was arrested in case FIR No.330/06 U/S 411 IPC and 331/06 U/S Arms Act on 4.6.2006 of P.S. New Friends Colony. During the interrogation his confessional statement was recorded by the I.O. of the case at his own. He further stated that the I.O. falsely recorded his confession and he did not know the delinquent Const. Nasir Hussain previously. He has seen him today on the first time. The PW did not support the version of the prosecution at all. The rest pertained only to what purported to be the evidence of the registration of the FIR and the arrest and the investigations with regard to the criminal cases against Liyakat Ali and Imran Khan. Besides no other objective evidence like even the mobile number of the delinquent or the other predecessor Constable Jafruddin had been traced to enable the I.O. to ascertain the facts. This fact is clearly recorded in the inquiry report.
7. It is trite that disciplinary inquires partake the character of quasi-judicial proceedings. Even though the strict rules of Evidence Act are not applicable in such proceedings, still they are not only supposed to be guided by prescribed procedures regarding the mode of inquiry and imposition of punishment, but also come clean regarding the observance of the principles of natural justice. All materials logically probative have to be considered in these enquires. The tests applied are objectivity, fairness and the yardstick of a reasonable person acting reasonably. Even though the courts have not favoured adopting a hyper technical approach, the very purpose of such an inquiry gets defeated if the charge is held as proved in disregard of the evidence adduced during the DE.
Considering the facts before us, the present one is found to be such a case in which virtually the sole basis of holding the charge as proved was the disclosure statement of one of the co-accused Imran Khan in the criminal case which also had been completely retracted in course of the inquiry. It appears that the prosecution had not only failed to properly cross-examine this critical witnesses so as to extract more objective information from him; but also had not listed the main accused Liyakat Ali - with whom the alleged relationship had been levelled to establish its case.
In these circumstances, though most reluctantly, we are unable to hold the findings of the I.O. or the final orders of punishment as in consonance with law. The impugned order by the Appellate Authority is set aside which would resultantly also mean quashing of the basic order of penalty and the findings of the inquiry. However, since this decision is being taken mainly on the basis of technical reasons, without undermining the gravity of the charge, we would not be inclined to give the applicant the benefit of back-wages or treatment of the period of suspension as spent on duty for all purposes.
The OA stands disposed of in the aforesaid terms.
(VEENA CHHOTRAY) (M. RAMACHANDRAN)
MEMBER (A) VICE CHAIRMAN (J)
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