Central Administrative Tribunal - Delhi
Raj Kumar vs Comm. Of Police on 13 November, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1371 of 2014
This the 13th day of November, 2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Raj Kumar (aged about 43) (Head Constable)
S/o Late Sh. Puran Mal,
r/o Railway Station Kosli,
Shiv Colony, Near Happy School,
Distt. Rewari.
....Applicant
(By Advocate : Shri Ajesh Luthra)
VERSUS
1. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
2. Deputy Commissioner of Police,
South Distt.
P.S. Hauz Khas,
New Delhi.
3. Joint Commissioner of Police,
South Eastern Range,
PHQ, MSO Building,
IP Estate, New Delhi.
4. Special Commissioner of Police,
Admn.
PHQ, MSO Building,
IP Estate, New Delhi.
.....Respondents
(By Advocate : Ms. Harvinder Oberoi)
ORDER (Oral)
Ms. Nita Chowdhury, Member (A):
Heard Shri Ajesh Lurhra, learned counsel for the applicant and Ms. Harvinder Oberoi, learned counsel for the respondents.
22. By filing this OA, the applicant is seeking the following reliefs:-
"(a) quash and set aside the impugned order placed at Annexure A/1
(b) direct the respondents to immediately reinstate the applicant in service and order revocation of suspension with all consequential benefits including treatment of entire dismissal period and suspension period as spent on duty with consequential relief of full pay/salary and allowances for the said period (s)
(c) award costs of the proceedings and
(d) pass any other order/direction which this Hon‟ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
3. In the instant OA, the applicant is challenging the impugned order dated 24.3.2014, which reads as under:-
"On 04.03.2014 at 8.00 P.M., a T.V. programme (sting operation) NAMED „Operation Khaki‟ was shown by Live India T.V. Channel. In the sting operation, HC Raj Kumar. No.3047/SD of P.S. S.J. Enclave, South Distt. Was shown talking to reporters in a highly unprofessional manner, which has embarrassed the Police Department. A case vide FIR No.9/14 u/s 7/13 POC Act, 1988 P.S. Vigilance Unit has also been registered against him. For the above misconduct he was placed under suspension vide this office order No 2813-48/HAP(P-II)/SD, dated 05.03.2014.
The undersigned ordered a Preliminary Enquiry into the matter by Shri Kulbhushan Sharma, ACP/P.G. Cell/SD under Rule - 15(1) of Delhi Police (Punishment & Appeal) Rules, 1980, vide order No. 2254/SD/HAP (P- II), dated 05.03.2014. Shri Kulbhushan Sharma, ACP/P.G> Cell/SD completed Preliminary Enquiry and submitted his enquiry report on 06.03.2014, concluding therein that HC Raj Kumar, No. 3047/SD acted in a very unprofessional and unethical manner thereby causing huge embarrassment to the department. The identity of HC Raj Kumar was fixed by Ct. Mukesh, No.3812/SD (Chittha Munshi of P.S. S.J. Enclave).3
Though, careful and close scrutiny of contents of C.D. revealed that HC Raj Kumar did not demand or accept or promise to accept any money from the reporters, and further the context of conversation in the C.D. is not clear, however it has been established that contents of conversation attributed to HC Raj Kumar, No. 3047/SD amounts to grave misconduct on his part. Though there is lack of conclusive evidence at this stage against HC Raj Kumar, No.3047/SD, yet the contents of the video C.D. indicate his complicity while talking with reporters, in an unprofessional and unethical manner.
The above said act on the part of HC Raj Kumar, NO.3047/SD shows his criminal propensity and immoral attitude. He being member of disciplined force is responsible for protecting the society and citizens of this country from immoral and disreputable activities, but instead of discharging his duty honestly and sincerely, he has not only tarnished the image of Delhi Police, but has also rudely shaken the faith of the citizens in the entire police force, which is supposed to be their protector. He has acted in a most reprehensible manner, which is unexpected from the members of disciplined force and which is undoubtedly extremely prejudicial to the personal safety and security of the citizens.
The involvement of HC Raj Kumar, No. 3047/SD in such a shameful activity has eroded the faith of common people in police force and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The defaulter HC has acted in a manner, highly unbecoming of a police official.
After such act of serious misconduct, if the defaulter HC Raj Kumar, No.3047/SD is allowed to be continued in police force, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter HC as there is a reasonable belief that no witness/complainant would come forward to depose against him.
In the backdrop of the position explained above, it is crystal clear that HC Raj Kumar, No.3047/SD is a public servant of immoral bent of mind and there is every possibility that any witness/complainant would not come forward to depose against him in case a departmental enquiry is initiated. It is under these sets of compelling circumstances, the rules under Section 4 311(2)(b) of Constitution of India have been invoked in this case for the sake of justice. HC Raj Kumar, No. 3047/SD has become a liability to the department and should be dismissed. It would be both in the interest of general public and society as well as for the establishment of rule of law, which is expected by public at large. In my opinion he is unfit to be retained in the police force any more. Therefore, I B.S. Jaiswal, Dy. Commissioner of Police, South Distt., New Delhi do hereby DISMISS defaulter HC Raj Kumar, No. 3047/SD (PIS No. 28930496) from service with immediate effect under section 311 (2)(b) of the Constitution of India. His suspension period from the date of suspension to the date of issue of this order is treated as „period not spent on duty‟ for all intents and purposes. He will deposit all Government belongings i.e. Identity Card, CGHS Card and uniform articles with the department forthwith. He is not in possession of Govt. accommodation.
xxx xxx xxx xxx xxx Let a copy of this order be given to HC Raj Kumar, No.3047/SD (PIS No.28930496) free of cost. He can file an appeal against this order to the Joint C.P./South- Eastern Range, New Delhi within 30 days of its receipt on a non-judicial stamp paper by enclosing a copy of this order, if he so desires."
4. Counsel for the applicant vehemently argued that the aforesaid impugned order is grossly illegal, unconstitutional, arbitrary and unjustified as respondents have themselves stated in the impugned order that the applicant did not demand or accept or promised to accept any money and also the fact they have stated in the impugned order that the context of conversation in CD are not clear and therefore it is an admitted by the respondents that there is lack of conclusive evidence.
54.1 Counsel further submitted that irrespective of the above, the respondents were legally bound to conduct a regular departmental enquiry against the applicant. Counsel further contended that neither effort has been made by the authorities to initiate a regular DE nor there is any material on which it can be said that the applicant has created such an atmosphere by either threatening or intimating or influencing the witness on which a reasonable belief can be formed that the witnesses are not likely to come forward.
4.2 Counsel also contended that the aforesaid allegations of misconduct not only vague but also based on conjecture and surmises.
4.3 Counsel further submitted that even where the T.V.
channels refused to make available their reporters to depose in the departmental enquiry, this Hon‟ble Tribunal in its Full Bench Judgment in „Ghoos Mahel‟ telecast cases, viz. A.K. Jain vs. GNCT of Delhi and others, along with many other connected cases, held that the same is not a valid ground to dispense with holding of a regular DE.
4.4 Counsel also submitted that punishment imposed upon the applicant is based upon the said CD. However, the said CD at best can be a piece of evidence which is required to be brought in the inquiry and proved in accordance with law as regards its authenticity, non-tempering etc. is concerned.
64.5 Counsel also placed on reliance on the judgments of the Apex Court in the cases of Tulsi Ram Patel and Deepak Kumar as also of this Tribunal‟s Full Bench decision in A.K. Jain‟s case.
4.6 Counsel lastly contended that keeping in view the respondent‟s narration in the impugned order that the applicant has not demanded or accepted or promised to accept any money and that the contents of conversation too, are not clear as also that there is no evidence against the applicant and further inquiry has been wrongly dispensed with, the applicant is entitled for reinstatement.
5. Counsel for the respondents submitted that the impugned order has been passed by the respondents in accordance with the provisions of Rules as the disciplinary authority is empowered to invoke the aforesaid provisions of Article 311(2)(b) of the Constitution of India and reasons have been recorded in the impugned order by the disciplinary authority for not holding the regular inquiry in the matter as such the impugned cannot be said to be illegal, arbitrary and unjustified.
5.1 Counsel for the respondents further submitted that a copy of the impugned order was given to the applicant free of cost on 25.3.2014 with a direction that he can file an appeal against the same to the Joint C.P./South-Eastern Range, New Delhi within 30 days from the date of receipt on a non-judicial 7 stamp paper by enclosing a copy of the said impugned order, if he so desires. The applicant has not filed appeal against the impugned order to the appellate authority within the stipulated time and filed this OA on 21.4.2014 without exhausting the departmental remedy of filing an appeal to the appellate authority, available with him.
6. The similar issues as raised in this OA have already been adjudicated by this Tribunal in OA No.926/2008 and vide Order dated 4.12.2009 this Tribunal observed as under:-
"6. We have heard both the counsel and perused the pleadings as well.
7. At the outset we may note that reference was made to the Full Bench by framing the question whether in the facts and circumstances of the case, the power conferred by clause (b) of the 2nd proviso to Article 311 (2) of the constitution read with Rule 19 of the CCS (CCA) Rules, 1965 can be justifiably invoked and the impugned order can be sustained, therefore, the same issue as raised in this OA was the subject matter before the Full Bench. After hearing all the parties, a detailed and reasoned judgment has been delivered by the Full Bench on 31.8.2009 in a batch of cases, leading case being OA No. 2546/2006. Counsel for the applicant submitted this case is fully covered by the aforesaid judgment.
8. Perusal of the judgment shows that in all those cases also, the applicants were either from Tihar Central Jail or from the Department of Trade and Taxes, Government of NCT of Delhi and they were all dismissed due to the sting operation conducted by the channel Aaj Tak on 8.3.2005 by attracting Article 311 (2)(b) of the Constitution. Facts insofar as cases pertaining to the Department of Trade and Taxes are concerned were extracted from the case of A.K. Jain vs. Govt. of NCT of Delhi in OA No. 2546/2006. Shri A.K. Jain was suspended vide office order dated 9.3.2005 and FIR No. 8 12/2005 was registered against him amongst others under Sections 7, 12 and 13 of the Prevention of Corruption Act, 1988 read with Section 120-B IPC with PS Anti Corruption Branch, Old Secretariat, Delhi. He was reinstated on 11.8.2006 and was again placed under suspension vide order dated 25.8.2006 in the said case. He was arrested in connection with FIR 12/2005 and was dismissed from service by invoking power under Article 311 (2)(b) of the Constitution vide order dated 8.9.2006. The appeal was dismissed. He had challenged these orders before the Tribunal on the ground that there was no justification to dispense with the enquiry and he could not have been dismissed without giving him an opportunity to defend himself. The matter was very hotly contested by the respondents. They submitted that the applicant therein was shown on the television accepting money in lieu of favours to be extended either to the dealers registered with the department or those approaching on their behalf in contravention of the provisions of Delhi Sales Tax Act, 1975/Central Sales Tax, 1956 read with the provisions of Central Civil Services (Conduct) Rules 1964 and, therefore, the applicant was rightly dismissed from service by invoking Article 311 (2)(b) of the Constitution because channel Aaj Tak was not cooperating.
9. The Full Bench after noting various contentions of the parties, observed as follows:-
"13. We are also inclined to accept the contention raised on behalf of the applicants that the decision to dispense with the enquiry has been made post-haste and as a short-cut to give marching orders to the employees. In that context it may be noted that all the employees were suspended and criminal cases under Sections 7, 12 and 13 of Prevention of Corruption Act read with Section 120-B IPC were registered against them. The applicants have placed on records the list of witnesses, who had to be examined in the court seized of the criminal trial. Admittedly, those who carried out the sting operations are cited as witnesses. The statements of all these witnesses were recorded under Section 161 Cr.PC. They fully cooperated with the prosecution not 9 only in making statement under Section 161 Cr.PC, but in supplying the material available with them as well. Even though, we are conscious that the provisions contained in Cr.PC are such that a person cannot refuse to be a witness if his evidence may be relevant in a criminal trial, and if he may refuse, he can be prosecuted as well, but the fact that those who carried out the sting operation were cooperating and despite the letter dated 19.4.2005 of the news channel Aaj Tak, had willingly made their statements and supplied the material, ought to have been a factor for consideration by the concerned authorities. Surely, if they were cooperating in criminal trial, there should have been no hesitation on their part to make statement in the departmental enquiry. In the circumstances as mentioned above, there ought to have been some efforts made to persuade the company to spare its employees to depose in the departmental enquiry. We are absolutely sanguine that those very employees of the channel Aaj Tak who had dared to carry out the sting operation of such dimensions and scale as the present one, would have not felt shy of making deposition before the enquiry officer. The authorities, however, even though would take in one case four months and in the other a year and a half to dispense with the enquiry, but never thought in that direction. It is conceded that no request was ever made to the channel Aaj Tak that in a case of this kind when those who daringly carried out the sting operation, were appearing in the criminal trial as witnesses, they should also be spared for some time to make their statements before the enquiry officer. Records of this case also reveal that almost on the heels of the TV telecast pertaining to the Jail department, the High Court of Delhi took suo motu notice of the matter and issued notice to the Chief Secretary, Government of NCT of Delhi; Director General (Prisons), Delhi; Secretary, Department of Justice, Ministry of Home Affairs, government of India. The notice was issued on 6.5.2005 for 24.5.2005. Notice was also issued to the producer of News Channel Aaj Tak C/o T.V. Today Network to 10 produce before the court copy of the unedited and complete version of the telecast (audio and visual) on the subject. When the matter came up before the High Court on 24.5.2005, Shri Sushil Salwan, who appeared for T.V. Today Network, handed over copy of the edited CD which was telecast, and unedited CD with source masked to the learned standing counsel, Ms. Mukta Gupta, who stated that the CDs would be viewed and further appropriate action as required, would be taken. The CDs were ordered to be kept in safe custody subject to further directions. The order passed on 24.5.2005 as also the earlier order referred to above, would show that the High Court was mainly concerned with the security in Jail. Insofar as, the employees are concerned, it appears that action to be taken against them was left to the concerned authorities. The TV channel Aaj Tak when asked by the High Court to produce the material available with it, it promptly brought everything before the court. Once again, we are conscious that the directions issued by the High Court could be only disobeyed at the risk of contempt proceedings and, therefore, perhaps the TV channel had no option but for to obey the orders. What, however, emerges from the facts as mentioned above, is that the employees of T.V. Today Network were cooperating without any murmur and presenting themselves wherever required. This fact ought to have been taken into consideration by the concerned authorities, and we have no doubt in our mind that if all this factual background was taken into consideration, even a little effort made on the part of the concerned authorities for employees of the news channel Aaj Tak to cooperate would have succeeded. There does not appear to be any reason for employees of Aaj Tak not to appear before the enquiry officer when they were appearing and cooperating in every enquiry, investigation or trial. In the context of the facts and circumstances of this case, we are of the firm view that the reasons for dispensing with the enquiry were inadequate and wholly insufficient. The primary ground for 11 dispensing with the enquiry as mentioned above, cannot possibly sustain. Once, we have returned a finding that the reasons for dispensing with the enquiry are an outcome of ignorance of law and against factual position in the context of the facts and circumstances of the case in hand, there may not be need to deal with the matter any further."
10. The judgments relied upon by the respondents were also dealt with by the Full Bench and were distinguished on the point of video footage, it was further observed by the Honble Full Bench as follows:-
"Reliance upon video footage of the sting operation came up for direct discussion before this Tribunal in OA No.2353/2006 decided on 5.10.2007 in the matter of Constable Jagdish Kumar v Government of NCT of Delhi & Others. We held that the video film would come within the words and expressions used for document in Section 3 of the Indian Evidence Act, 1872, and the evidentiary value of video film shall have to be examined similarly as a document is examined. We held that It is too well known that documents would provide far better evidence than the oral evidence provided the authenticity of documents is beyond question. If, therefore, there may be a doubt with regard to the genuineness of a document, the same would have no evidentiary value. With regard to evidentiary value of video films, much case law is not available, but the genuineness of the video film would be the first test, and unless it is so proved, in our considered view, it may not have much evidentiary value. Raw footage of a video film seen by someone who is to appreciate the evidence may have some evidentiary value, but, the edited version of the video film cannot be made the sole basis for returning a finding. Unless, therefore, corroborated, it would have no evidentiary value. In Raja Ram Pal v Speaker, Lok Sabha & Others [(2007) 3 SCC 184], the Honble Supreme Court while relying upon the video film, observed that the concerned committee had taken care not to proceed on the edited 12 versions of the video recordings and the committee insisted on raw video footage of different sting operations and drew conclusions after viewing the same. In the present case, the concerned authorities, which aspect we will deal with in the later part of the judgment, did not make any efforts to find out that the material provided to them so called edited and unedited versions of the sting operation, was genuine."
11. Reliance was placed on the judgment of Honble Supreme Court in the case of Sudesh Kumar Vs. State of Haryana & Others reported in 2005 (11) SCC 525 wherein the services of the appellant were dismissed by resorting to provisions of Article 311 (2)(b) of the Constitution dispensing with the enquiry on the ground that it was not practicable to hold the enquiry as complainant was a foreigner, who was likely to leave the country and that he had been threatened by the appellant yet the order of dismissal was set aside. It was further held that subjective satisfaction of authority for dispensing with departmental enquiry must be based on objective criteria as held by the Honble Supreme Court in the case of Tarsem Singh Vs. State of Punjab and Others reported in 2008 (2) SCC (L&S) page 140. Since respondents had relied on the judgment of Honble Supreme Court in the case of R.K. Anand and Another Vs. Registrar, Delhi High Court that was also dealt with. Dealing with the contention of the respondents that if it was the case of the employees that the sting operation was bogus, they ought to have proceeded against the TV channel Aaj Tak for defamation and also by filing criminal case against them and the very fact that they kept quiet over the issue would be an implied admission on their behalf of the misconduct alleged against them, the Full Bench observed as follows:-
"We may observe at the very outset that the concerned authorities had such evidence in their possession which may substantially prove the guilt of the employees, does not appear to be a ground to dispense with the enquiry. If that was to be so, no enquiry may be held in any sting operation. Such course to be adopted would be fraught with 13 dangerous propositions and evil propensities. The media, and in particular the electronic media, would then assume the role of complainant, prosecutor and judge, all rolled in one. The basic or fundamental governance, be it administrative or judicial, in our country is based upon checks and balances. If the media is to be made so powerful without any checks and balances, some times, if not always, most innocent citizens may suffer having been framed up."
It was thus held:-
"In our considered view, no one in this country can be condemned without being heard. No doubt, insofar as the employees are concerned, enquiry against them can be dispensed with, but that has to be based upon cogent grounds to be mentioned in writing, and we do not accept the contention raised by Shri Khanna that if the evidence available with the prosecution or the department may clearly show it to be a case of delinquency of an employee, it would be a good ground to dispense with the enquiry.
In the present case also, at the most, availability of the evidence, overwhelming according to the respondents, but disputed by the applicants, is also one of the grounds for dispensing with the enquiry. The first and the foremost reason is that the employees of the news channel Aaj Tak would not appear. If the first and the primary reason for dispensing with the enquiry is to be rejected, the second with regard to availability of clear evidence with the respondents against the employees, cannot sustain.
We do not find that the employees were given any opportunity to deny the allegations leveled against them. Surely, they were not issued even a show cause before passing the order of dismissal. There was thus, no show cause, no enquiry, nor even a fact-finding enquiry by associating the employees, therefore, they had no occasion or opportunity to deny the allegations made against them. The opportunity that came in 14 the way of the employees was when they filed their appeals, and secondly when they filed present Original Applications in this Tribunal. By the time, the employees had filed their appeals they might have seen the telecast of the programme aired by the channel Aaj Tak. While filing their appeals thus, they could not go beyond stating that the CD containing the alleged role attributed to them is a fabrication."
12. The case of R.K. Anand was distinguished by the Full Bench by observing as follows:-
"The contemnors before the Court were highly established lawyers knowing their rights under law. Even if they had not proceeded against the TV channel NDTV, a presumption of guilt may arise because of their conduct. The same, however, cannot be said with regard to the employees whose only anxiety would be to save their jobs. They have no financial resources nor expertise in law, as the contemnors before the Honble High Court and Supreme Court may have had."
13. In view of the discussion made above, the Full Bench allowed all the OAs. The orders passed by the disciplinary or the appellate authorities were set aside and quashed. However, liberty was given to the respondents to proceed against the applicants departmentally by observing that there can be only zero tolerance for corruption, but before a person is thrown away by such a stigma which may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure. It was also made clear that even though the orders were being set aside but no orders of reinstatement of the employees were being passed. Since the applicants were under suspension before their services were terminated, they would remain under suspension and may at the most be entitled to subsistence allowance from the date they were dismissed. It was further made clear that it would be exclusively up to the authorities to continue their suspension during the pendency of the departmental enquiry against them. The authorities were directed to conduct the enquiry on day-to-day basis and pass final order, in sofar 15 as, at least the disciplinary authority is concerned, as expeditiously as possible within a period of six months from the date of judgment. It was further clarified that if the employees do not cooperate then for reasons to be recorded the respondents might proceed ex-parte against them or seek orders on that behalf from this Tribunal.
14. If the facts of the case in hand are examined in the light of above judgment, it is seen the applicant was also dismissed from service in exercise of the powers conferred by Article 31 (2)(b) of the Constitution read with Rule 19 of CCS (CCA) Rules, after dispensing with the enquiry on the basis of telecast of a Television Programme dated 8.32005 captioned with Ghoos Mahal on channel Aaj Tak wherein applicant was shown accepting money in lieu of favours to be extended either to the dealers registered with the department or those approaching on their behalf in contravention of the provisions of Delhi Sales Tax Act, 1975/Central Sales Tax, 1956 read with the provisions of Central Civil Services (Conduct) Rules 1964. In the order dated 8.9.2006 (page 22) it is specifically mentioned that Shri Anil Kumar, i.e., the applicant is placed under suspension vide order dated 7.9.2006 and further case FIR NO.12/2005 registered under Sections 7, 12 and 13 of the Prevention of Corruption Act 1988 (49 of 1988) read with Sections 120-B IPC with the Police Station, Anti Corruption Branch, Old Secretariat, Delhi.
15. From the perusal of the above order, it is clear that this case is fully covered by the judgment delivered by the Full Bench in the case of A.K. Jain in OA No. 2546/2006, therefore, this OA has to be decided in terms of the judgment dated 31.8.2009 of Full Bench in OA No. 2546/2006, therefore, the order, by which applicant was dismissed from service and the appellate orders whereby his appeals were rejected are quashed and set aside. However, liberty is given to the respondents to proceed against the applicant departmentally. The applicant may not be reinstated. He may be kept under suspension and at best he would be entitled to subsistence allowance from the date he was dismissed. The enquiry should be completed as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this 16 order by holding it on day-to-day basis. It is made clear that if the applicant does not cooperate with the respondents then for the reasons to be recorded, the respondents may proceed ex-parte against him or seek orders in this behalf from the Tribunal.
16. With the above directions, OA is partly allowed. No costs."
7. In view of the above facts and circumstances of this case, we are of the considered opinion that the instant OA is squarely covered by the aforesaid Order of this Tribunal in OA No.926/2008 decided vide Order dated 4.12.2009 (supra).
Accordingly, this OA is allowed to the extent as observed by this Tribunal in para 15 of OA No.926/2008 (supra). There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury)
Member (J) Member (A)
/ravi/