Central Administrative Tribunal - Delhi
Karan Singh vs Comm. Of Police on 14 December, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 90/2013
Reserved on 06.12.2018
Pronounced on 14.12.2018
Hon'ble Mr. K.N.Shrivastava, Member (A)
Hon'ble Mr. S.N.Terdal, Member (J)
Ex. Co. Karan Singh, Age 34 years
No.988/W (PIS No. 28981362),
S/o Shri Bhahadur Singh,
R/o Vill. & P.O. Kheri,
Khummar, District- Jhajjar,
Haryana. ... Applicant
(By Advocate: Mr. Sachin Chauhan )
VERSUS
Govt. of NCT of Delhi, through:
1. The Commissioner of Police,
Police Headquarters, I.P. Estate,
MS0 Building, New Delhi.
2. The Joint Commissioner of Police,
South-Western Range through
The Commissioner of Police,
Police Headquarters, I.P. Estate,
MS0 Building, New Delhi.
3. The Addl. Dy. Commissioner of Police,
West District through
The Commissioner of Police,
Police Headquarters, I.P. Estate,
MS0 Building, New Delhi. ... Respondents
(By Advocate : Ms. Vriti Anand and Neetu Mishra for Ms.Rashmi
Chopra)
ORDER
Hon'ble Mr. S.N.Terdal, Member (J):
We have heard Mr. Sachin Chauhan, counsel for applicant and Ms. Neetu Mishra for Mrs.Rashmi Chopra, counsel for respondents, perused the pleadings and all the documents produced by the parties.
2. In this OA, the applicant has prayed for the following reliefs: 2 OA 90/2013
"8.1 To quash and set aside the impugned order dated 6.7.2012 passed by Disciplinary Authority at A-1, order dated 15.11.12 passed by Appellate Authority at A-2 and to further direct the respondents to reinstate the applicant back in service to the post of Constable (Exe.) with all consequential benefits including seniority and promotion and pay and allowances.
8.2 To quash and set aside the findings of the Enquiry Officer.
8.3 To quash and set aside order dated 19.9.11 of initiation of D.E Or/and Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
3. The relevant facts of the case are that a departmental enquiry was initiated against the applicant under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 on the allegation that he remained absent for several months and earlier also for more than 8 months unauthorizedly and wilfully and even after issuing several absentee notices, he did not join for duty. The said allegation is extracted below:-
"It is alleged that applicant while posted at PS Ranholla, he absented himself unauthorisedly and wilfully vide DD No. 55-B, dated 11.02.2011 PS Ranholla. An absentee notice was issued to you vide this office No. 2306-09/SIP (West), dated 01.03.2011 with the direction to resume his duty at once failing which necessary departmental action will be taken against him. The copy of the absentee notice was received by his father on 06.03.11, but Constable Karan Singh No. 988/W did not resume his duty. An absentee notice vide No. 4456-58/SIP (W), dated 11.04.11 containing similar directions was issued. SHO Ranholla deputed Constable Sonu, No. 2319/W to deliver the absentee notice at his village. As per report of SHO/Ranholla vide No. 1212/SHO/RH, dated 20.04.11, Constable Karan Singh No. 988/W was not found at his home and his mother Smt. Krishana Devi met there who refused to accept the absentee notice. The constable ultimately resumed your duty vide DD No. 22-B dated 29.04.11 PS Ranholla after absenting himself for a period of 2 months 21 days 1 hour and 45 minutes, unauthorisedly and wilfully.3 OA 90/2013
Constable Karan Singh, No. 988/W again absented himself from duty vide DD No. 27-B dated 03.05.11 PS Ranholla. An absentee notice was issued to you vide this office No. 5892-94/SIP (W), dated 16.05.2011 with the direction to resume his duty at once failing which departmental action will be taken against him. SHO/Ranholla has reported vide his office No. 1650/SHO Ranholla dated 27.05.11 that ASI Mahender Singh No. 2461/D was deputed to deliver the said absentee notice. The ASI reached his native village where mother of Constable Shri Karan Singh was met who informed the ASI that she does not have any information about Karan Singh. Thereafter SHO/Ranholla was directed vide this office No. 6616/SIP (W) dated 09.06.2011 to depute a responsible officer to deliver the absentee notice to the constable at his village and also to record the village Pardhan and two other elders of the family members of the constable refuse to accept the absentee notices. The SHO/Ranholla deputed HC Subhash No. 436/W who reached the village of constable Karan Singh where his father met him who said that his son Karan Singh is not in his conrol and refused to accept the copy of absentee notice as well as to give any statement in writing. Constable Karan Singh No. 988/W has resumed his duty vide DD No. 31-B dated 16.11.11 PS Ranholla after absenting himself for a period of 6 months 13 days.
He has earlier absented himself for 8 months & 15 days unauthorized & wilfully for which have been awarded the punishment of forfeiture of three years approved service permanently. It seems that he is a habitual absentee."
4. Along with the summary of allegation, list of witnesses and list of documents were furnished to the applicant. As the applicant did not plead guilty, an Inquiry Officer was appointed and departmental enquiry was held. The Inquiry Officer conducted the departmental enquiry as per the relevant rules and giving him sufficient opportunity following the principles of natural justice. The Inquiry Officer examined PW1 to PW7 and considered the defence statement of the applicant and after assessing and discussing the evidence came to the conclusion that the allegation against the applicant was proved. The disciplinary authority after furnishing the enquiry report and considering the representation made by the applicant against the 4 OA 90/2013 enquiry report and after hearing him personally in orderly room on 29.06.2012 and considering all the aspects raised by the applicant imposed a penalty of dismissal on the applicant with immediate effect vide order dated 06.07.2012. The appeal filed by the applicant was also dismissed by the appellate authority after hearing him in orderly room on 5.11.2012 vide order dated 15.11.2012.
5. The counsel for the applicant vehemently and strenuously contended that applicant was not keeping well during the days of absence and he had produced certain prescriptions at the time of defence and he has also submitted that because of some matrimonial dispute with his wife he was mentally not keeping well and, therefore, the absence was not at all wilful and on that basis the counsel for the applicant submitted that the punishment imposed is grossly disproportionate. In support of his contention, the counsel for the applicant has relied on the order dated 28.09.2018 passed by the Tribunal (PB) in the case of Vipin Kumar Vs. Govt. of NCTD through the Commissioner of Police and Ors. (OA No. 1133/2013). Counsel for the applicant referring to his defence statement before the IO submitted that in the inquiry report also it has come on record that the applicant was suffering from hypertension and illness. The counsel for the respondents pointed out that many of the prescriptions were not pertaining to the period of absence and that the matrimonial dispute is about 5 to 6 years prior to the period during which he had remained absent.
6. The counsel for the respondents strongly contended that the respondents organisation being a police force and strict discipline and 5 OA 90/2013 attendance and punctuality is backbone of the discipline and pointing out the fact that the applicant did not respond to absentee notices also, she submitted that the unauthorized absence was wilful also. In support of her contention, the counsel for the respondents relied upon the following judgments:
(1) Delhi High Court judgment in CWP 7295/2001 in Ex.
Const. Jakhruddin Vs. Lt. Governor, Delhi& Ors. (2) Order of Tribunal (PB) dated 12.12.2017 in the case of Rajbir Singh Vs. UOI & Ors (OA 617/2000).
7. The counsel for the applicant has not pleaded violation of any procedural provision in conducting the departmental enquiry.
8. The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross- examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the 6 OA 90/2013 former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof 7 OA 90/2013 given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC
484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel 8 OA 90/2013 (1964) 4 SCR 718: (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence." 9 OA 90/2013
9. In view of the facts and circumstances of the case and in view of the law laid down by the Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice and also in view of the submission made by the counsel for the respondent supported by the judgment produced by her referred to above, we are of the opinion that the punishment imposed is not grossly disproportionate to the alleged misconduct.
10. Accordingly, OA is dismissed. No order as to costs.
(S.N. Terdal) (K.N.Shrivastava) Member (J) Member (A) 'sk' .. .