Central Administrative Tribunal - Delhi
Narender Pal vs Comm. Of Police on 20 March, 2023
Item No. 26/C-2 1 OA No. 2696/2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2696/2018
Today this the 20th day of March, 2023
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Narender Pal, Age-48+ years,
(PIS No. 28880858),
S/o Sh. Dharam Pal Singh,
R/o - Flat No. 6-C,
Pocket D-II,
Mayur Vihar,
Phase-III Delhi ... Applicant
(By Advocate: Mr. Sachin Chauhan with Ms Vaishali Sulkhlan)
Versus
1. Govt. of NCTD through
The Chief Secretary,
Govt. of NCTD,
A-Wing, 5th Floor,
Delhi Secretariat,
New Delhi-110113
2. The Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
3. The Joint Commissioner of Police,
South- Eastern Range: New Delhi
Through the Commissioner of Police,
PHQ, I.P. Estate,
New Delhi
4. The Addl. Dy. Commissioner of Police,
South-East District, New Delhi
New Delhi Range: New Delhi through
The Commissioner of Police,
PHQ, I.P. Estate,
New Delhi. ... Respondents
(By Advocate: Mr. Sameer Sharma)
Item No. 26/C-2 2 OA No. 2696/2018
ORDER (ORAL)
Hon'ble Mr. R. N. Singh, Member (J):
By way of the present OA, filed under Section 19 of the AT Act, 1985, the applicant has challenged the order dated 05.02.2013 vide which the departmental proceeding was initiated against him, the order dated 25.07.2013 vide which ex-parte proceeding was ordered in the said departmental inquiry, findings written by the Inquiry Officer on 14.09.2013, the order dated 17.10.2013 passed by the disciplinary authority imposing the penalty of dismissal from service upon the applicant, under challenged is also the order dated 11.02.2015 vide which the Appellate Authority has upheld the disciplinary authority's order dated 17.10.2013 and also the order dated 31.05.2018 whereby the applicant's representation to the respondents praying for re-visiting the penalty imposed upon him has been rejected by the respondents on the ground that there is no provision for second appeal. In the present OA, the applicant has prayed for setting aside the aforesaid impugned orders and has also prayed for direction to the respondents to re-instate him in service forthwith with all consequential benefits, including seniority, promotion, pay & allowances. The Item No. 26/C-2 3 OA No. 2696/2018 applicant has also prayed for awarding of cost in his favour and against the respondents.
2. Pursuant to the notice, respondents have filed counter reply and have opposed the claim of the applicant and also prayed for dismissal of the OA with cost against the applicant. The applicant has filed rejoinder and has reiterated his claim.
3. We have perused the pleadings available on record and we have also considered the submissions made by the learned counsels appearing on behalf of the respective parties.
4. Undisputed facts are that the applicant initially joined the service of the respondents as Constable in the year 1988 and subsequently, he was promoted to the post of Head-constable. While working as such, the name of the applicant, his mother and also one brother, namely, Mr. Virender Singh, who was then working as Constable under this very respondents, were involved in case FIR No. 813/2011 registered with PS, Shakarpur, Delhi, u/s 302/201/34 of IPC on 17.10.2011. Pursuant to the said FIR, a challan by the concerned police was filed u/s 173 Cr.P.C. and the learned Trial Court framed the charges against the said brother of applicant, namely, Virender Singh u/s 302/34 of IPC and charges u/s 201/34 of IPC Item No. 26/C-2 4 OA No. 2696/2018 were framed against the present applicant and his mother. Simultaneously, for the allegations similar to that in the present case FIR, disciplinary proceedings were initiated against the applicant. Pursuant to such order dated 05.02.2013, departmental inquiry proceeding was initiated against the applicant and finally the disciplinary authority passed the order of dismissal and the appellate authority has upheld the disciplinary order dated 17.10.2013 vide appeal order 11.02.2015. Learned Trial Court vide order dated 25.10.2017 (Annexure A-9) acquitted the applicant as well as his brother, co-accused Virender Singh, Constable and their mother in the said case FIR. Paragraph 8 of the order dated 25.10.2017 reads as under:-
"8. Thus, taking into consolidated stock of all material, particularly as discussed and conclusions in paragraphs no. 6.2 and 7 together, alongwith the position of law referred in paragraph no. 6.3 above, it is held that the charges could not have been proved beyond reasonable doubt, therefore, all the three accused persons namely Virender Singh, Narender Kumar and Smt. Sukhbiri are acquitted of charge u/s 201/34 IPC and accused persons Virender Singh and Smt. Sukhbiri are acquitted of charge u/s 302/34 IPC by extending them benefit of doubt."
5. On being acquitted from the said case FIR vide order dated 25.10.2017, the applicant preferred representation dated 14.04.2018 (Annexure A-8) wherein the applicant Item No. 26/C-2 5 OA No. 2696/2018 by quoting the provisions of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 and judgment of Larger Bench of this Tribunal in O.A. No. 2816/2008 in the case of Sukhdev Singh & Anr. Vs. Govt. of NCTD & Ors. decided on 18.02.2011, requests therein for re- visiting of the penalty imposed upon him and for his reinstatement in service with all consequential benefits. However, without dealing with any of the grounds raised by the applicant in the said representation, the respondents have passed impugned order dated 31.05.2018 (Annexure A-6) rejecting the claim of the applicant by merely stating that in view of the provisions of Rule 23 (2) of Delhi Police (Punishment and Appeal) Rule, 1980, there is no provision of second appeal. Keeping in view the aforesaid case FIR, brother of the applicant aforesaid Constable Virender Singh was suspended by the respondents and he was kept under suspension by the respondents till the final order dated 25.10.2017. Subsequent to the order of learned Trial Court, an order for initiation of the departmental proceeding was passed by the respondents against the co- accused constable Virender Singh and such departmental proceeding against the said Virender Singh, ultimately culminated vide an order dated 16.01.2019 (Annexure R-
1).
Item No. 26/C-2 6 OA No. 2696/2018
6. In the said order dated 06.01.2019 qua the brother of the applicant constable Virender Singh, the competent authority has recorded that the Inquiry Officer in his findings has not proved the charges against the delinquent accused, material witness including family members of the deceased have not supported the allegations. Further when the father of the deceased was called by the respondents, who appeared in person on 11.01.2019, has reiterated that his daughter was ill for the last about one year prior to her death and he suspects nobody. It has further been recorded that doctor in his statement before the Learned Trial Court has stated that deceased Smt Santosh was diagnosed operated case of congenital heart disease with mixed connective tissue disorder with diffuse cutaneous scleroderma, infections like acute otitis media, urinary tract infections and many more ailments including interstitial lung disease and it could be possible to lead to death because of ailments as well as its complications.
7. It has further been recorded that allegations against the said constable Virender Singh are not proved in the case and after recording this the Competent Authority has exonerated the said constable Virender Singh from the charges leveled against him and his suspension period was also decided as period 'spent on duty' for all purposes Item No. 26/C-2 7 OA No. 2696/2018 and the said constable Virender Singh has been restored to his position under the respondents.
8. Mr. Sachin Chauhan, learned counsel appearing for the applicant, submits that departmental inquiry itself was not completed against the applicant in accordance with the relevant rules and the same was also in violation of principles of natural justice. However, when the departmental proceedings were completed by way of the impugned punishment orders, once the applicant, who was charged with the offences with lesser gravity than alleged against his said brother was acquitted and he was exonerated by the Learned Trial Court, it was incumbent upon the respondents to re-visit the penalty even at their own, however they failed to do so and passed a cryptic order inspite of his representation and thus, the OA.
9. He has further argued that allegations against the brother of the applicant, i.e. Constable Virender Singh, was more serious inasmuch as he was charged for offences u/s 302/34 of the IPC whereas the applicant was charge sheeted in the said case FIR only for offence u/s 201/34 of the IPC and when the said brother of the applicant, co accused constable Virender Singh, has been exonerated not only by the Learned Trial Court in the said case FIR but also by the department in the said departmental proceeding initiated against him, it was Item No. 26/C-2 8 OA No. 2696/2018 more necessary for the respondents to re-visit the order of penalty passed in the case of the present applicant.
10. To argue that once the person facing the grave charges has been exonerated, the applicant cannot be discriminated in the matter of disciplinary proceedings and ultimately the penalty awarded to him is required to be revisited, he has placed reliance on the judgment of Hon'ble Apex Court in Civil Appeal No. 3186/2008 in the case of Man Singh Vs State of Haryana & Ors. decided on 01.05.2008.
11. On the other hand, learned counsel for the respondents submits that though in the counter reply, it has been contended by the respondents that the OA is barred by limitation, however, in the facts and circumstances, he is not pressing such objection on behalf of the respondents. He admits that the OA is within limitation. He also does not dispute that keeping in view the facts and circumstances, as precisely noted hereinabove by us, the respondent were duty bound to re-visit the penalty inflicted upon the applicant, after the applicant was acquitted by the Learned Trial Court on 25.10.2017, particularly keeping in view the provisions of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 coupled with the judgment of Larger Bench of this Tribunal in the case of Sukhdev Singh (supra).
Item No. 26/C-2 9 OA No. 2696/2018 He is having no objection, if the impugned order dated 31.05.2018 is set aside and the matter is remitted to the respondents in order to enable them to consider the matter and pass a fresh reasoned and speaking order. Paras 19 & 20 of judgment of the Hon'ble Apex Court in the case of Man Singh (supra) read as under:-
"19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal Item No. 26/C-2 10 OA No. 2696/2018 mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service.
20. In the backdrop of the above-mentioned facts and circumstances of the case, we are of the view that the order of the disciplinary authority imposing punishment upon the appellant for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order are unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality. The High Court has failed to appreciate and consider the precise legal questions raised by the appellant before it and dismissed the Second Appeal by unreasoned judgment. The judgment of the High Court, therefore, confirming the judgments and decrees of the first appellate court and that of the trial court is not sustainable. The appellant deserves to be treated equally in the matter of departmental punishment initiated against him for the acts of omissions and commissions vis-à-vis HC Vijay Pal, the driver of the vehicle."
12. In the aforesaid facts, law laid down by the Hon'ble Apex Court in Man Singh (supra) and keeping in view the order passed by the respondents dated 16.01.2019 in the matter of co accused constable Item No. 26/C-2 11 OA No. 2696/2018 Virender Singh, after the acquittal of the applicant and his said brother by the Learned Trial Court vide order dated 25.10.2017, we are of the considered view that the impugned orders dated 17.10.2013, 11.03.2015 and 31.05.2018 deserve to be set aside. The same are accordingly set aside. The applicant shall be entitled for consequential benefits i.e. reinstatement in service, etc. as accorded to the co-accused Constable Virender Singh. The said exercise shall be completed by the respondents as expeditiously as possible and preferably within 8 weeks from receipt of copy of this order.
13. OA is partly allowed in the aforesaid terms. However, there shall be no order as to costs.
(Sanjeeva Kumar) (R. N. Singh)
Member (A) Member (J)
/neetu/