Central Administrative Tribunal - Delhi
Hc(Exe.) Satender Singh vs Gnct Of Delhi on 23 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2903 of 2010
New Delhi this the 23rd day of September, 2010
Honble Shri Shailendra Pandey, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
HC(Exe.) Satender Singh,
(103/DAP, PIS No.28911570)
Presently posted at 1st Bn. DAP,
S/o Sh.Balbir Singh,
R/o Village & PO Sinoli,
Distt. Baghpat, UP.
Group C, aged-41 yrs.
....Applicant
(By Advocate: Shri Saurabh Ahuja)
VERSUS
GNCT of Delhi
Through Commissioner of Police,
Police Headquarters, I.P.Estate,
MSO Building,New Delhi
AdditionalCommissioner of Police,
Traffic, Delhi
Through The Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O.Building, New Delhi
Deputy Commissioner of Police,
Traffic (NR), Delhi
through The Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O.Building, New Delhi
Respondents
O R D E R
Dr. Dharam Paul Sharma, Member (J) Consequent upon imposition of minor penalty of censure by the disciplinary authority vide order dated 23.6.2009 as at Annexure-2 and rejection of his appeal thereagainst by the appellate authority vide order dated 02.12.2009 as at Annexure-3, the applicant has filed this application challenging both these orders.
2. The applicant, a Head Constable in Delhi Police, was served upon a show cause notice dated 28.3.2009 as at Annexure -1 calling upon applicant to show cause as to why his conduct should not be censured for the lapse mentioned in the said notice. The lapse referred to in the show cause notice, is as follows:
On 2.12.2008 a surveillance conducted by PRG (Vig) at T-Point Chandgi Ram Akhara, motor cyclist with a lady on M/C No.UA-04D-6664 was stopped by HC satender Kumar 334-T and was detained for approximately 45 minutes. Then he was challaned for Rs.100/-. The motor-cyclist, Mr. Amit Verma told the PRG team that the HC had taken Rs.150/- from him and gave him receipt of Rs.100/- only for not challaning him under harsher sections. He did not give his statement claiming the lady with him was unwell and they had already been detained for a long time. Private vehicles bearing numbers PBO8A UDO122 and HR 60A 6300 were picking up passengers at Mukarba Chowk in front of police booth, in the presence of HC Naseem Khan of PS Samaypur Badli.
The above act on the part of Inspr. Sanket Kaushik, 3280-D, ASI Pratap Singh, 2827/T, HC Satender, 334/T, Ct. Shailender, 1365/T, Ct. Manik Sathe, 3474/T amounts to gross negligence, misconduct, carelessness and dereliction in the discharge of their official duties.
3. In his reply to show cause notice dated 08.04.2009 as at Annexure-5, the applicant has denied the charge and claimed that he had challaned the motor-cyclist for Rs.100 as he violated the traffic signal and did not misbehave with him. It has further been stated that after challan, the said motor-cyclist was stopped by three persons who disclosed their identity as posted in PRG (Vigilance) and enquired as to how much money he paid in lieu of the said challan. The motorcyclist told that he had been challaned for Rs.100/- and paid the same to the applicant. He overheard that these three persons (members of PRG (Vig.)) were accusing the motorcyclist that he was telling a lie and he had paid Rs.150/- and not Rs.100/- for the said challan. The disciplinary authority did not find this reply as convincing and confirmed the show cause notice whereby the conduct of the applicant has been censured.
4. The applicant filed an appeal against this, a copy of which is as at Annexure-6 wherein the applicant denied the charge and submitted that Shri Amit Verma, motor-cyclist neither orally nor in wirting made any complaint in this respect to S.I Prakash Roy and HC Vinod Kumar who were the members of the Survelliance team. The applicant was also heard by the appellate authority in O.R on 27.11.2009 and having gone through the records of the case, the appellate authority did not find the reply of the applicant as convincing because Sh. Amit Verma had stated before the PRG team about demanding Rs.50/- extra and accepted for not challaning him under harsher sections. The PRG team had requested Amit Verma to give his statement but he stated that the lady with him was ill and he had to take her to hospital without any further delay as he had already been detained for long time and were feeling uncomfortable. The appellate authority did not find any reason to interfere with the order passed by the disciplinary authority and accordingly rejected the appeal, being devoid of merits.
5. In his application, the applicant has challenged the impugned orders on the grounds, inter alia, that this is a case of no misconduct and no evidence against the applicant. The story against the applicant is concocted one. There was no oral or written complaint by Amit Verma, the complainant nor his statement has been recorded by PRG Team. There is no public witness. The applicant was not searched nor was any recovery made from him. The disciplinary authority has not applied his mind as the defence of the applicant has been ignored and the order of penalty is cryptic. The penalty has serious adverse effect on his career. The respondents have not given due consideration to the fact that the applicant has been awarded Bravery Medal for preventing a bank robbery at the risk of his life. It has been submitted that the applicant has been punished on the basis of enquiry conducted at his back. The documents relied upon including enquiry report and the statements recorded in the enquiry have not been supplied to him. This also vitiated the enquiry and the applicant has been prejudiced in his defence.
6. The learned counsel for the applicant has referred to a number of cases. These include Roop Singh Negi Vs. Punjab National Bank and others (2009(2) SCC 570) wherein it has been, inter alia, held that departmental enquiry is quasi-judicial proceeding in nature. Another case referred to by the learned applicants counsel is M.V. Bijlani Vs. Union of India and others (2006 (5) SCC 88) wherein nature of departmental enquiry, functions, powers and duties of Enquiry Officer have been elaborated. The applicants counsel further referred to the case of Sher Bahadur Vs. Union of India and others (2002 (7) SCC 142) wherein it has been, inter alia, held that the evidence and proof required in the departmental enquiry must be of such nature as it must link the charged officer with the alleged misconduct otherwise, it would be no evidence in law. Lastly, the applicants counsel has referred to the case of Prakash Chand ASI in Delhi Police Vs. Govt. of NCT of Delhi (OA No.422/2004 along with other connected cases) decided by the Principal Bench of this Tribunal on 14.10.2004 wherein while upholding the validity of Rule 6(ii) of the Rules referred to above, a word of caution was stated as follows:
Though the said Rule provides a summary procedure as compared to the detailed departmental proceedings under Rule 16 but it cannot be used so as to impose penalties which may otherwise not be permissible. Doctrine of lifting the veil will come into play. If a smokescreen appears as would be seen from the individual cases to keep away the truth, in the background or any such fact is noticed, the Tribunal would tear off the mask and would see the real face of the transaction. On the strength of these averments, the learned counsel appearing for the applicant prayed for quashing and setting aside of the impugned orders with consequential benefits.
7. The question that arises for consideration in this matter is that even if the background facts as narrated by the applicant in his application are ex facie taken as correct has the applicant made out a prima facie case for the grant of the reliefs prayed for.
8. The relevant rules as contained in the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter referred to as the Rules) expressly provide for separate procedure for imposition of minor penalty on one hand and the major penalty on the other. Censure is one of the minor penalties that can be imposed under the Rules. It is not the case of the applicant that the procedure prescribed for awarding of minor penalty as aforesaid have not been complied with. Admittedly, the applicant has been served upon a show cause notice giving him ample opportunity to show cause against the proposed penalty. Rule 5 of the Rules prescribes the penalty of censure as has been mentioned at Serial No. (viii). Sub Clause (ii) of Rule 6 of the Rules provides that the punishment mentioned at Serial No.(viii) shall be called minor punishment and shall be awarded by the authorities as specified in sub-section (i) of Section 21 of the Delhi Police Act,1978 after serving a show cause notice giving reasonable time to the defaulter and considering his written reply as well as oral deposition, if any for which opportunity shall be afforded on request. Rule 8 of the Rules provides principles for inflicting penalties. Clause (f) to Rule 8 as it relates to Censure provides that the punishment of censure shall be supported by a formal order in the order book and shall not be awarded unless the officer concerned has been given an opportunity to explain his conduct in the manner prescribed in Rule 6 (ii) above. Rule 25 of the Rules provides for orders on appeal which enjoins upon the appellate authority to pass order on appeal containing the reasons therefor. It is not the case of the applicant that the procedural requirement for imposition of minor penalty of censure has not been complied with. Nor it is his case that the punishment has not been imposed by the competent authority. The correctness and legality of the orders impugned herein have to be examined on the basis of evidence put forth by the concerned parties on the basis of which said orders have been passed. While reviewing the orders of the disciplinary authority, this Tribunal does not sit in appeal over these orders. Nor the ambit of judicial review provides for reappraisal of evidence. Judicial review is directed against the decision making process rather than the decision itself. The judicial powers to interfere with disciplinary decisions are circumscribed by well known factors. If decisions of the disciplinary authorities are found to be within legal parameters and the alleged misconduct stands proved even on preponderance of evidence and probabilities these powers would not ordinarily be invoked. We find support for these views from the judgement of Honble Supreme Court in the case of Chairman and Managing Director, V.S.P & others Vs. Goparaju Sri Prabhakara Hari Babu, JT 2008 (4) SC 51.
9. Having gone through the impugned orders, we do not find any infirmity in the orders of disciplinary authority and of the appellate authority. It is open to the authorities concerned to take action on the basis of the report of the PRG team as per the applicable rules even in the absence of written complaint. It is an established preposition of law that the guilt of the delinquent official is not required to be proved to the hilt in departmental actions wherein orders are passed on the preponderance of evidence. It is well settled that rules of evidence do not apply to departmental enquiries wherein the only test is compliance wit the principles of natural justice and compliance with the rules governing such enquiries. Where a departmental action is based on a statement, it is for the disciplinary authority to determine whether that statement is voluntary and true and that authority indeed found the statement to be voluntary and true, it will be entitled to act upon the said statement especially in the absence of any material to the contrary. Reference in this regard may be made to the case of Kuldip Singh Vs. Statement of Punjab (1996) 10 SCC 659 wherein the statement admitting links with terrorists though not admissible for having been made to the police during investigation under Evidence Act, was held sufficient to dismiss the concerned Head Constable from service even without holding any enquiry in exercise of the powers under Article 311 (2), second proviso, Cl. (b) and (3) for the disciplinary authority recorded its satisfaction that the said statement was voluntary and true. It is not the case of the applicant that the members of the surveillance team have any animosity against him or any motive or purpose to complaint against him. There is no reason to fabricate a case against the applicant. It was open to the applicant to obtain true version from the motorcyclist with a view to controvert the veracity of the report of the surveillance team especially when he himself had stated to have overheard the members of the PRG team accused the motor- cyclist for telling lie. The cases of Roop Singh Negi, M.V.Bijlani and Sher Bahadur (Supra) relate to regular departmental enquiry, as such, distinguishable on facts as well as law. As a matter of fact, the case of M.V.Bijlani (Supra) goes against the applicant for it has been, inter alia, held in this case that the disciplinary proceedings, being quasi-criminal in nature, there should be some evidence to prove the charge. Though proof beyond all reasonable doubt as required in criminal trial is not necessary in departmental proceedings, the charges in the said proceedings has to be proved by preponderance of probability. It was further held that the Enquiry Officer performs a quasi-judicial function and as such upon analyzing the documents he must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. The case of Prakash Chand (Supra) wherein the validity of Rule 6(ii) of the Rules has been upheld, is also not of much help to the applicant as no case of lifting the veil has been made out by the applicant.
10. For the aforesaid reasons, we are of the considered view that the applicant has not been able to make a prima facie case warranting interference with the impugned orders. The application is, therefore, dismissed being devoid of merits. No order as to costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey) Member(J) Member(A) /usha/