Central Administrative Tribunal - Delhi
Naresh Kumar S/O Late Sh. Jagmal Singh vs Commissioner Of Police on 30 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2991/2009
New Delhi, this the 30th day of March, 2010
HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A)
HONBLE DR.DHARAM PAUL SHARMA, MEMBER (J)
Naresh Kumar S/o Late Sh. Jagmal Singh,
R/o H-21, Police Station Hauz Khaz,
New Delhi-110016. Applicant
(By Advocate: Shri P.D. Puggal )
VERSUS
1. Commissioner of Police,
Delhi, PHQ, New Delhi.
2. Addl. Commissioner of Police
(Operations), PHQ, New Delhi.
3. Deputy Commissioner of Police,
Police Control Room, PHQ,
New Delhi. Respondents
(By Advocate Shri Ram Kawar)
ORDER
Mr. L.K.Joshi, Vice Chairman (A) Constable Naresh Kumar, the Applicant herein, has been awarded a punishment of forfeiture of his five years service permanently, which has been upheld in appeal against the said order. Period of his suspension from 16.05.2008 to 24.12.2008, the date of the order, has also been treated as period not spent on duty. The orders of the disciplinary and appellate authorities have been impugned in this OA filed under Section 19 of the Administrative Tribunals Act, 1985.
2. The following summary of allegations was served on the Applicant.
It is alleged against ASI (Exe.) Sube Singh, No. 5173/PCR (PIS No.28740432), HC (Exe.) Birender Singh, No. 910/PCR (PIS No. 28760192) and Const. (Exe.) Naresh Kumar, No. 2821/PCR (PIS No. 28911304) that they, while posted at South West Zone/PCR, were detailed for duty on the PCR Van Zebra-25 on 16.5.2008 as I/C Van, Gunman and Driver respectively. There was a complaint against the staff of Zebra-25 that they were demanding money from the owner of Kothi Nos. E-14/19 and E-14/20, Vasant Vihar, New Delhi on the pretext of renovation/construction. Hence, on the direction of Senior Officers, Sh. Rajbir Singh Jakhar, the then Inspr./South West Zone/PCR (now ACP) alongwith SI Kuldeep Singh, No. D/3738, Checking Officer/SWZ/PCR (Tiger-47) reached the given address for enquiry and met Owner Sh.S.S.Singh, who stated that the staff of PCR Van Zebra-25 often comes there and demanding money in the name of renovation/construction and also threatens to inform MCD/NDMC if he refuses to pay them. Sh. Rajbir Singh Jakhar called the above staff of Zebra- 25 through wireless set and on reaching the spot they were identified by the complainant Sh. S.S. Singh. The complainant further told that Const. Naresh Kumar, No. 2821/PCR visited his office on 16.5.2008 in between 3 to 4 P.M. in a state of intoxication and the remaining staff remained sitting in the PCR Van outside his office. Const. Naresh Kumar, No. 2821/PCR was demanding money and creating nuisance. On this Const. Naresh Kumar No. 2821/PCR was got medically examined at Sufdarjang Hospital through SI Kuldeep Singh, Checking Officer vide MLC No. 92320 dated 16.5.2008 upon which the Doctor opined alcohol level by Breath Analysis Test No. 1950 is 11 mg%. The PCR staff is being briefed/directed time and again not to go on the construction sites but the above staff of Zebra-25 failed to obey the instructions/directions of the Senior Officers. For the above misconduct, they have been placed under suspension vide DD No. 27 dated 16.5.2008 read with formal order issued vide No. 8631-65/HAP (P-II)/PCR dated 22.5.2008.
The above act of omission and commission on the part of ASI (Exe.) Subey Singh, No. 5173/PCR, HC (Exe.) Birender Singh, No. 910/PCR and Const. (Exe.) Naresh Kumar, No. 2821/PCR amounts to grave misconduct, indulgence in corrupt activities, unbecoming of a police officer and dereliction in the discharge of their official duty for which they are liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
3. The complaint dated 16.05.2008 from one Sh.S.S.Singh, on the basis of which the inquiry was initiated is reproduced below:
The Inspector PCR (South West Zone) Dear Sir, This is to inform you that one gentleman namely Naresh (Constable Driver) of PCR Z-25 of Vasant Vihar, New Delhi has been coming to us on numerous time and has been harassing us and asking us for money every time and has also collected money from me several times. Our office is in E 14/20 Basement Vasant Vihar. We have already deposited conversion charges and parking fee to MCD- but still this gentleman (Naresh) comes and tells us that there is complaint against us and demands money by naming various senior officers that money required by them. He has also taken money from us on numerous occasions. Sd/ (S.S.Singh) E 14/20 Vasant Vihar Basement 16.5.2008 (Shiv Shankar Singh ).
4. The argument advanced before us by the learned counsel for the Applicant is that the principles of natural justice have been given a go by in the instant case in as much as the Applicant was denied the opportunity of cross-examining PW-3, ACP Shri Rajbir Singh Jakhar. It is contended that on the day the aforementioned witness was examined, the Applicants defence assistant was admitted in the ICU of some hospital and could not be present. The request of the Applicant to defer the cross examination of Shri Rajbir Singh Jakhar was rejected. The Applicant made a representation to the Deputy Commissioner of Police (DCP) on 3.05.2008, in which it was stated that the Applicants defence assistant Sh. Henry Wilson was seriously ill on the day of examination of Shri Rajbir Singh Jakhar. As a result the Aplicant could not cross-examine the main witness. A request for the recall of the witness had been made to the inquiry officer also on 3.09.2008. However, there was no response to the representation of the Applicant. The same point was mentioned in the statement of defence before the inquiry officer. It is contended that the inquiry officer dismissed the Applicants plea in his report merely by observing that the Applicant was trying to delay the proceedings. The same view has been taken by the disciplinary authority.
5. The second argument of the learned counsel for the Applicant is that the charge of consumption of alcohol by him has not been substantiated. The doctor who had examined the Applicant was not examined in the inquiry. A clerk of the hospital was examined instead as PW-4, who has stated that there was no mention of slurring of the Applicants speech or abnormal speech in the report. His blood was not tested. It is not stated that level of alcohol by breathanalyzer test, which came to 11mg % was within the prescribed limit or excessive. The report has also stated that the Applicant was well oriented. It is also urged that the Applicant was taking cough syrup, which contains alcohol. There was, therefore, no evidence to prove the alleged misconduct.
6. The learned counsel has also cited the judgements of the Honourable Supreme Court in Management of Aurofood Pvt. Ltd. Vs. S. Rajulu, 2008 (2) Supreme 784 and Rajasthan State Road Transport Corporation and Anr. Vs. Bal Mukund Bairwa, 2009 (2) Supreme 766 to buttress the argument that in disciplinary proceeding the charged employee is entitled to fair hearing and principles of natural justice should be complied with.
7. The learned counsel for the Respondents, per contra, would fervently defend the action of the Respondents by urging that the date of the inquiry had been fixed in advance. The Applicant only stated before the inquiry officer that his defence assistant was away. He was given opportunity to consult the defence assistant telephonically and then cross examine the witness. The applicant, however, refused. It is also stated that the Applicant never produced any proof that his defence assistant was in the ICU, when he later made this claim. The appellate authority had also mentioned this aspect in his order.
8. It is an accepted tenet of the administrative jurisprudence that all administrative action should be informed by the principles of natural justice. The Honourable Supreme Court had laid down this ratio in Maneka Gandhi Vs. Union of India and another (1978) (1) SCC 248 and the principle has been effectively reiterated in the judgment cited by the Applicant to advance his cause. However, we may observe that both the judgments do not directly cover the facts of this case.
9. The inquiry was indeed pre-scheduled. The Applicant had full information about it. The Applicant only informed the inquiry officer that his defence assistant, Shri Wilson was away. It was not as if he had been suddenly taken ill. There was, in fact, no mention of illness, as seen from the record. The Applicant never produced any document, at any stage of the disciplinary proceedings that his defence assistant was severely incapacitated by illness. The appellate authority has recorded in his order that:
The contention raised by the appellate that on the day of DE proceeding his Defence Assistant was lying in ICU and it was not possible for him to get advise (sic) on mobile phone does not inspire any confidence as he has not submitted any confidence as he has not submitted any documentary evidence in this regard to support his version.
10. We are of the view that, even if the statement of the aforementioned witness is disregarded, there would still be preponderance of probability of the Applicants misconduct of intimidation and coercion of a citizen, on the basis of the evidence of the complainant, Sh.S.S.Singh, PW-5, who has been cross-examined by the Applicants defence assistant.
11. However, the charge that the Applicant was intoxicated, when he met Sh.S.S.Singh, the complainant, has not been proved. There is no evidence for it, except the complainants version. ACP, Rajbir Singh, PW-3 has only mentioned that the complainant alleged that the Applicant was drunk. He has not given any opinion about the Applicants drunkenness on the basis of the latters speech and gait etcetera. The report of the doctor has mentioned the following:
Conscious/Oriented Pulse 90/min B P 126/80 mm Hg Illegible No slurring of speech/abnormal speech Gait normal Alcohol level by Breath Analyzer Test No. 1950 is 11 mg % .
None of witnesses has testified about the level of alcohol 11 mg% to be excessive or within the prescribed limit. The disciplinary and appellate authorities have also not given any opinion about this aspect. The appellate authority has just observed that:
it is worthless to challenge the opinion of a qualified SMO of Govt. Hospital, who examined the Appellant through Breath Analyzer Test and opined that the alcohol level of Ct. Naresh Kumar was as 11 mg %, which amounts to a strong material evidence against the appellant.
The doctor, who examined the Applicant for intoxication has not appeared before the inquiry officer. Only she could have explained the significance of the level of alcohol recorded in the breath analyzer test . Other parameters, as noted above, are normal. We are, therefore, of the considered opinion that the charge of the Applicant being under the influence of alcohol has not been proved.
12. On the basis of the above discussion, the OA partly succeeds. The impugned orders are quashed and set aside, only on the ground that there was no evidence about the Applicant being under the influence of alcohol. The case is remitted back to the disciplinary authority to reconsider the quantum of punishment on the basis of our observations above. Consequential benefits shall abide by the final order passed pursuant to the above directions. The disciplinary authority will pass the order within two months from the receipt of a certified copy of this order.
( Dr. Dharma Paul Sharma) ( L.K.Joshi) Member (J) Vice Chairman (A) sk