Central Administrative Tribunal - Delhi
Ct. Rohtas Kumar vs Govt. Of Nct Of Delhi on 29 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1898/2009 With MA 1270/2009 New Delhi, this the 29th day of April, 2010 Honble Mr. Shanker Raju, Member (J) Honble Mrs. Veena Chhotray, Member (A) 1. Ct. Rohtas Kumar, (PIS No. 288228040), R/O House No. 180, Vill. Molerband, PO Badarpur, New Delhi-40. 2. Ct.(Dvr.) Daya Nand, (PIS No. 29860209), R/o House No. 211, Naharpur, Sector-7, Rohini, New Delhi. .. Applicants (By Advocate Shri Anil Singal ) VERSUS 1. Govt. of NCT of Delhi Through Commissioner of Police, PHQ, I.P. Estate, New Delhi. 2. Jt. Commissioner of Police Operations, PHQ, I.P. Estate, New Delhi. 3. Deputy Commissioner of Police, PCR, Police Headquarter, I.P. Estate, New Delhi. .. Respondents ( By Advocate Shri H.K.Gangwani ) O R D E R
Dr. Veena Chhotray, Member (A) The MA 1270/2009 has been filed by the applicants praying for filing a joint application, which is not opposed by the respondents. Accordingly MA is allowed.
The applicants before us are Constable (Exe.) Rohtas Kumar and Constable (Driver) Daya Nand challenging the penalty of forfeiture of two years approved service permanently entailing proportionate reduction in their pay. Further treating the suspension period from 29.2.2004 to 5.4.2004 as not spent on duty has also been challenged. The OA seeks quashing of the impugned orders i.e., disagreement note dated 23.07.2008, the order of punishment dated 3.10.2008 and appellate authority order dated 23.04.2009. Besides direction for restoration of their forfeited service and reduced pay with all consequential benefits, including seniority/promotion and arrears of pay have also been sought. Further award of costs in their favour and passing any further orders as deemed just in the circumstances of the case have been prayed.
2. This is the second round of litigation. Earlier on challenge to the same penalty and decision regarding suspension vide their OA No. 2492/2006, the Tribunal vide its order dated 17.12.2007 (Annex.A/4) had passed the following directions:
In view of the discussion made above, this OA is partly allowed. Orders dated 3.3.2005 and 17.8.2006 passed by the disciplinary and the appellate authorities respectively, are set aside. The matter is remitted to the disciplinary authority to evaluate the evidence afresh without taking into consideration the statements of PWs 1, 2 and 3 exhibited as Ex. PW-5/A. 5/B, 5/C and 5/D, and come to a conclusion with regard to the charge being proved or not on the basis of other evidence that has been recorded during the course of enquiry. There shall, however, be no orders as to costs. Additionally on the plea being raised by the applicants counsel regarding the applicants who were Gunman and driver having no direct responsibility of reporting the matter to the police and that they could not be given the same punishment as had been given to ASI Bansi Dhar, the in charge officer; the Tribunal had directed that the applicants may raise this issue also before the disciplinary authority which should take a decision thereon.
3. The brief facts of the case are that a joint departmental enquiry had been initiated against ASI (Exe.) Bansidhar, Constable (Exe.) Rohtas Kumar and Constable (Exe.) Daya Nand (the incharge officer, gunman and driver respectively) on 24.3.2004. As per the Summary of Allegations, the incident pertained to 27.2.2004 in which while being in charge of the PCR Van Zebra-89, the delinquents had chased a Maruti Car and with the help of villagers and a tractor pulled it out of a ditch. However, the fact of the said car being full of illicit liquor and the two occupants therein having been evacuated had not been reported either to the CPCR or the Zonal Control Room. The same had come to the notice of the authorities since while towing away the Maruti car, the driver of the tractor had had an altercation with the driver of an RTV and in which context a telephone call had been made to the concerned Police Station. This non reporting of the incident by the delinquents was alleged to be due to malafide intention on the part of delinquents as they had let off the criminals with some ulterior motives.
3.1 After a regular enquiry the charges were found as proved against applicants by Inquiry Officer report dated 27.12.2004. Agreeing with the same, the disciplinary authority had imposed the aforesaid penalty vide its order dated 3.3.2005 which had been upheld by the appellate authority vide its order dated 17.8.2006.
3.2 Even though the aforesaid joint departmental enquiry as well as the penalty was against all the three accused, the challenge to the same in the earlier as well as the present OAs is only by the two constables. It is important to note that the 3rd charged official, in fact the main one; the ASI in-charge had not challenged these decisions.
3.3 In pursuance of the decision in the OA 2492/2006, the disciplinary authority vide its order dated 8.4.2008 entrusted the matter to the Inquiry Officer for supplementary findings (Annex.A-5). The Inquiry Officer while re-appraising the evidence adduced during the original departmental enquiry recorded detailed supplementary findings. By way of conclusion, it was held by the Inquiry Officer that the prosecution had failed to prove the charges against the applicants for want of concrete evidence about the applicants being present at the time of the alleged incident (Annex.A-6). This was, however, not agreed to by the disciplinary authority who issued a disagreement note dated 23.7.2008 (Annex.A.1). After considering the written representations of the applicants as well as giving them oral hearing the DA awarded the same punishment as earlier. The appeal against this decision was rejected by the appellate authority vide its order dated 23.4.2009. These decisions on the part of the DA and the AA have been challenged in the present OA.
4. On behalf of the respondents, a detailed counter affidavit has been filed. Learned counsels Shri Anil Singal and Shri H.K.Gangwani would appear on behalf of the applicants and the respondents respectively. We are passing this order after carefully perusing the submissions of the learned counsels as well as the material available before us on record.
5.1 While challenging the impugned orders, the OA has raised the ground of the same being arbitrary and in violation of the principles of natural justice and misreading of evidence. The rejection of the findings of the IO by the DA is stated to be on surmises and conjectures. As per ground 5.2 the charge in question does not stand proved against them and this was a case of no evidence. Non-grant of opportunity by the DA for making any representation before finally disagreeing with the findings of the IO had also been alleged. As per ground 5.11 there was violation of Sections 15 (3) and 16 (3) of the Delhi Police (P&A) Rules, since the statements recorded during the preliminary enquiry had been relied upon for arriving at the impugned decisions.
The main ground of challenge, however, is that even if the alleged misconduct is presumed to be true only the ASI concerned who was incharge of the PCR Van could be held responsible; thus there was an apparent arbitrariness on the part of the respondents since they had awarded the same punishment to the incharge ASI as well as the applicants who were only the Gunman and the Driver. These grounds have been reiterated in paragraphs 5.4, 5.6, 5.7, 5.8 and 5.16.
5.2 Learned counsel for the applicant Shri Anil Singal would emphasize two fold contentions. First, despite the Tribunals directions in the earlier OA for non consideration of the evidence of PWs 1, 2 and 3 in the PE, the DA had indirectly relied on the same evidence to hold the charges as proved. In this context, a violation of the prescribed rules under Sections 15 (3) and 16 (3) of the Delhi Police (P&A) Rules would also be contended. The other point of emphasis by the learned counsel would be the fact of wrong assignment of responsibility on the applicants which in fact could justly be attributable to the incharge officer only, in this case. Learned counsel would also insist that as per the evidence adduced during the enquiry, no charge had been proved against the applicants and the decision of this disagreement with the supplementary findings of the IO on the part of the DA was perverse.
\
6. The OA has been contested by the respondents rebutting the pleas taken in the OA. It has been asserted that the decision has been taken after due consideration in accordance with directions of the Honble Tribunal. It is further emphasized that this has been done after issue of proper Disagreement Note and giving an opportunity for defence to the charged officials both through the written representations as well as oral hearing before the disciplinary authority as well as appellate authority.
17.1 Since the matter is being considered in the second round in accordance with the directions of the Tribunal in the OA 2492/2006., a brief summing up of the observations in that case would be in order. Before that, however we would like to reproduce the charge as framed by the IO after examination of the PWs and with an opportunity to the charged officials for cross examination. The charges run as following:
I, ACP Shish Ram, Enquiry Officer, charge you, ASI Banshi Dha, No. 710/D (PIS No.28680279), Const. Rohtash Kumar, No. 2976/PCR (PIS No. 28822804) and Const. (Dvr.) Daya nand, No. 4660/PCR (PIS No. 29860209) that while posted in South West Zone/PCR, you were detailed for duty on PCR Van (Zeba-89) from 9AM to 8 PM on 27.2.2004 as Incharge van, gunman and driver. At about 6/7 PM, PCR van, (Zebra-89) was allegedly seen chasing a white colour maruti car No. DL-4C-H/6895 on Chawla-Nanak Heri Road. The said car fell down in the ditch at it lost balance after crossing village Badu Sarai near a bridge. The staff of PCR van Zebra-89 requested some villagers to help them to lift with the help of tractor as it could not be taken out manually. The said maruti car No. DL-4CH-68989 was full of illicit liquor and two persons who were traveling that car, were evacuated from the car by the PCR staff and made to sit in the PCR van. After that Nardeep @ Nitu s/o Shri Surender Singh r/o Village- Badu Sarai brought his tractor at the spot and PCR staff, with the help of villagers, tractor and ropes, took out the maruti car from the ditch and towed it to safer place. The staff of PCR, neither informed CPCR nor Zonal control room during and after the incident. Shri Nardeep @ Nitu found one reliance mobile phone at the spot near maruti car and handed over it Const. (Dvr.) Daya Nand, who reportedly returned to accused as it relates to them and also intimated the name of one accused Satish to Inspr. S.K. Rathi during the enquiry conducted by him. It clearly shows that the intention of PCR staff was malafide and they have let off the criminals in the Maruti car for some ulterior motive. While towing away the Maruti car, the driver of the tractor had an altercation with the driver of one RTV No. DL-IV-8638 which was coming from opposite side and because of the narrow road, they were not able to pass each other. The driver of RTV called the police and that it how the entire incident came to notice.
The above act on the part of you, ASI Banshi Dha, No. 710/D, Const. Rohtash Kumar, No. 2976/PCR and Const. (Dvr.) Daya Nand No. 4660/PCR amounts to grave misconduct, negligence, carelessness, malafide intention, dereliction in the discharge of your official duties and unbecoming of a police officer for which you, all the above mentioned police personnel are liable to be punished under the provisions of Delhi Police (Punishment and Appeal) Rules-1980. ( as extracted from Annex.A-6) 7.2 While passing the first order, the Tribunal had gone into at some length in the evidence adduced in the enquiry. In the defence plea, the reliance placed by the respondents upon the earlier statements of PWs 1, 2 and 3 recorded during the PE in preference to the depositions made by them while appearing before the IO had been objected to. On the other hand, the contention of the respondents counsel was that even from the part of statements made by PWs 1, 2 and 3 during the course of the enquiry read with the statements made by other witnesses and documents, the charges against the applicants would still be proved. Weighing the counter pleas, the Tribunal had found it a case requiring reevaluation. However it was considered proper in the first instance that such re-evaluation should be done only by the administrative authorities rather than the exercise being undertaken by the Tribunal. In this background the following observations of the Tribunal extracted from para 6 of the order are relevant:
We are of the considered view that such an exercise has primarily to be done by the concerned authorities. If perhaps, with the statements of the PWs exhibited as Ex.PQW-5/A,5/B, 5/C and 5/D it could be held that it is a case of no evidence, we might have proceeded to determine the controversy in issue, but as to whether the charge is proved against the applicants even if the statements mentioned above are not taken into consideration being inadmissible is the moot point, we would leave this exercise to be done by the disciplinary authority.
As regards the plea of equity in fixing of responsibility among the three charged officials without taking any definite view in the matter, it had been opined that since the matter was being remitted to the disciplinary authority, the same plea could be raised by the applicants before it for an appropriate decision.
7.3 It would be suffice to note at this point that while passing the earlier order there is no inkling of a closed mind, on the part of the Tribunal, regarding tenability or otherwise of the impugned decision. Further even with regard to the evidence of PWs 1, 2 and 3 before the IO, the Tribunal has not arrived at any conclusion. The embargo placed was only on reliance on the statements given by these PWS during the PE.
8.1. This was a case in which in the original report of the IO, the charges against all the three accused had been held as proved and the original order of penalty had been imposed by the DA after agreeing with the findings of the IO. However, with the exercise of the supplementary findings undertaken in pursuance of the directions of the Tribunal, the charges have not been held as not proved. This has not been agreed to by the DA as considering it a fit case for disagreement with the subsequent findings. It is in this context that the supplementary findings assume critical importance.
8.2 At the outset, we may clarify that in this case there has been no fresh enquiry or de novo enquiry, even though this would be one of the grounds taken by the applicants before the DA. The exercise has been confined to reexamination and re-appreciation of the evidence adduced during the original joint departmental enquiry itself. The other related plea taken by the COs of not being involved in the fresh departmental enquiry is not relevant either.
8.3. In this case there were 6 PWs out of which three were from the public and three from the police officials. In the supplementary findings, the IO (who incidentally was a different officer from the original IO) has recorded at length the deposition of each PW, as revealed from the original enquiry proceedings. The depositions of PWs, 1, 2 and 3 (public witnesses) had confirmed the broad sequence of events in this case; which meant the falling of the white Maruti car in the ditch and its being pulled out with the efforts of villagers, particularly PW 1, Nardeep with the help of a tractor; the heated exchange between the said Nardeep and the driver of the RTV that had arrived on the spot at the time of the alleged occurrence; besides arrival of the Police from PS Najafgarh. It is further noted that PW 2 and 3 had confirmed about the presence of PCR van at the time of the incident. PW 1 while confirming the same in his chief examination had subsequently denied it in the cross-examination. Again, about the incriminating evidence regarding the Maruti Car containing illicit liquor, PW 3 had mentioned it in the affirmative though nothing on this account was revealed from the examination in Chief or cross-examination of the PW-1 and 2. The PW-3 had also mentioned about the said Maruti Car carrying illicit liquor. While PW 1 had denied recognizing the accused, PWs 2 and 3 had made no statements on that account. Despite, all these 3 PWs disclaiming the claims of the earlier statements during the PE, the above facts had come out even during the depositions of these PWs before the inquiry officer.
8.4 The remaining three witnesses were public officials. PW-4 was HC Sukhpal Singh, who on the basis of the records, had deposed regarding the posting and duty of the defaulters on the day on the given PCR van. PW-5 was the Inspector Shri S.K. Rathi who had been entrusted to inquire into the complaint on 29.2.2004 at the direction of the SHO Najafgarh P.S. in the entire incident. This PW had made the preliminary enquiry and in his deposition before the IO he had stood by his earlier report regarding the incident as well as the versions reportedly made by the three PWs during the enquiry. This had also included the identification of the three Charged officials as well as the Maruti carrying illicit liquor. The stand of the applicants that these PWs were now resiling from their earlier stand which they had duly given in the earlier enquiry was reiterated. PW-6 was Inspector Mohd. Iqbal, SHO, Najafgarh who had deposed on the basis of the enquiry got conducted on receipt of the PCR call through SI Narain Singh into the incident of 27.2.2004. The facts regarding the altercation between the driver of the RTV and the truck driver, the chase of the Maruti car by the PCR van, its falling in the ditch and subsequent extraction as also the incriminating facts of illicit alcohol being carried in the Maruti Car had been corroborated by this PW. He had also deposed that there had been no report about this incident to the PCR. The SHO had further mentioned about the same Maruti car being found abandoned subsequently with illicit liquor in which case FIR under Excise Act was also registered. He had deposed before the IO about submitting report to the senior officers in this matter.
8.5 The above facts have been narrated in detail only to show that even as per the exercise of re-appreciation of evidence adduced during the enquiry undertaken now, not only there were certain important averments coming from the same PWs, but also from the documentary and circumstantial evidence which went to prove the fact of the incidents and that there were evidence to prove the charges against the three accused officials.
In this background, however, the finding on the conclusion arrived at by the Inquiry Officer seems not only in haste but also reflect non-consideration of the relevant facts as adduced during the enquiry:
As per the judgment of Honble CAT dated 17.12.2007, I have gone through the evidence brought on file by previous E.O. The statements of PW-1,2,3, the only public witnesses taken during the DE proceedings have been considered. None of them have supported the prosecution and even did not recognize the defaulters during the enquiry. The prosecution has also failed to prove, the alleged efforts made by the defaulters to win over the prosecution witnesses.
The charge leveled against Const. (Exe.) Rohtash Kumar No. 2976/PCR and Const. Daya Nand 4660/PCR are not proved because there is no concrete evidence to prove that both the above mentioned constables were present there at the time of alleged incident. We would like to drive home at this stage that while holding the charges as not proved in his supplementary findings, the IO had failed to consider the relevant evidence adduced during the enquiry.
9. It is trite law that the departmental enquiry, held to be quasi-judicial in nature, is only a means to arrive at certain factual findings in relation to the charges, after giving due opportunity of defence to the charged officials. The responsibility of the final decision rests on the disciplinary authority. While, ordinarily the DA acts in accordance with the IOs findings but he is by no means bound by the same. On the other hand, it is absolutely within the legitimate domain of the DA to disagree from the findings of the IO and arrive at the final decision, which of course has to be a reasoned one and after giving a reasonable opportunity of defence to the charged officials.
10. In the disagreement note the DA has mainly relied on the depositions of PW-5, Inspr. S.K. Rathi and PW-6 to hold the charges as proved. While the learned counsel Shri Singal would aver that the DA had indirectly still relied on the statement of PWs 1,2, 3 during the PE, he would have nothing to say about the other ground of the deposition by the PW-6 relied on by the DA to hold the charges as proved.
On the point of equity in the fixing of responsibility, the disciplinary authority had taken the following stand:-
The contentions raised by the defaulters do not inspire any confidence, thus could not be accepted. However, it is correct that they are Gunman and Driver respectively but if ASI Bansi Dhar, I/C Van did not inform about the incident it was the prime responsibility of the defaulters i.e. Gunman and Driver to inform the Comman Room or their senior officers about the incident, if they were not a party to it and should have taken legal action againstthe culprits but they did not do so and trying to shirk their responsibilities which indicates their ulterior motive in the whole episode..
On these grounds, the retention of the same penalty had been found to be justified. The appellate authority while considering the appeal had also not found any justification for interference with the order of the DA.
11. As per settled law the standard of proof in disciplinary proceedings is different from that in criminal case. While in the former it is only preponderance of probability, in the latter it is proof beyond doubt. Again it is trite that strict rules of evidence are not applicable in the disciplinary proceedings. On the other hand, the criteria is that there should be some evidence to prove the charges, which would satisfy the test of a reasonable person acting reasonably. Besides, it is also settled law that once there has been found to be some evidence to prove the charges, after giving reasonable opportunity of defence to the delinquent, the judicial fora ordinarily do not have a cause for intervention. However re-appreciation of evidence, though normally not resorted to, is not outside the purview of judicial review when rendered absolutely necessary.
11. Before arriving at the final conclusion in this case a word about the provisions of Section 15 (3) and 16 (3) would be relevant. Section 15 (3) deals on the subject of preliminary enquiries. Section 15 (3) runs as follows:
15 (1) xxx xxx (2) xxx xxx (3) The suspected police officer may or may not be preset at a preliminary enquiry but when present he shall not cross examine the witness. The file of preliminary enquiry shall not form part of the formal departmental record, but statements therefrom may be brought on record of the departmental proceedings when the witnesses are no longer available. There shall be no bar to the Enquiry Officer brining on record any other documents from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. All statements recorded during the preliminary enquiry shall be signed by the person making them and attested by the enquiry officer The point to note is that even as per the provisions of Section 15 (3) certain situations have been stipulated under which the enquiry officer can bring on record any documents from the file of the PE and the same is not totally ruled out. Again Section 16 deals with the procedure in departmental enquiries, provides certain scope for consideration of the earlier statements of the witnesses.
12. In the light of the forgoing, we are of the considered view that as was envisaged by the Tribunal in its earlier order, even on re-appreciation of evidence there is found to be reasonable case to prove the charges against the applicants. This is so without relying upon the statements of PWS 1,2, 3 during the PE. Thus, the contention regarding violation of Rules 15 (3) and 16 (3) of the Delhi Police (P&A) Rules would cease to be an issue.
We find that the supplementary findings of the IO have been arrived at in haste and do not consider the evidence adduced during the enquiry comprehensively enough. Similarly even in the orders of the DA the reasons for holding the charges as proved limit themselves only to some while leaving out several others. However, the net effect remains about the justifiability of holding the charges as proved.
There is, however, one aspect by which we would like to qualify our view i.e. in respect of the principle of equity in the fixation of responsibility. Admittedly among all the three charged officials, the main responsibility for reporting of the entire episode rested with the officer incharge rather than on the supporting staff, the driver and the gunman. In this case all the three accused have been given the same penalty which does not seem to be fair and reasonable. As per settled law, whenever justified, in judicial review there can be a review of quantum of punishment.
13. In view of the foregoing, we are of the view that the ends of justice would be served by remitting the matter once again to the Disciplinary Authority for reconsideration only on the ground of proportionality of punishment. Hence, the DAs Order as well as the AAs Order in their present from are set aside to the limited extent of the quantum of punishment. Accordingly, the respondents are directed to pass a revised order keeping our observations in view within a period of 3 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU) MEMBER (A) MEMBER (J) sk