Central Administrative Tribunal - Delhi
Krishan Kumar vs Comm. Of Police on 18 February, 2019
CENTRAL ADMINITRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3490/2013
Reserved on 05.02.2019
Pronounced on 18.02.2019
Hon'ble Ms.Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Sh. Krishan Kumar,
S/o Bhoop Singh,
R/o Village Khatoti Kalan,
P.O. Hamidpur, Tehsil Narnaul,
Distt. Mohinder Garh,
Haryana. ... Applicant
(By Advocate: Mr. Ajesh Luthra )
VERSUS
1. Commissioner of Police,
PHQ, MSO Building, I.P.Estate,
New Delhi.
2. Joint Commissioner of Police
(South Western Range)
PHQ, MSO Building, I.P.Estate,
New Delhi.
3. Deputy Commissioner of Police
(South-West Distt.)
P.S. Vasant Vihar, New Delhi. .... Respondents
(By Advocate: Mr. Amit Anand)
ORDER
(Hon'ble Mr. S.N.Terdal, Member (J):
We have heard Mr. Ajesh Luthra, counsel for applicant and Mr. Amit Anand, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
2. In this OA, the applicant has prayed for the following reliefs:
"(a) quash and set aside the impugned orders and 2 OA 3490/2013
(b) Direct the respondents to reinstate the applicant forthwith with all consequential benefits including monetary and seniority benefits
(d) award costs of the proceedings and
(c) 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. The relevant facts of the case are that for remaining absent and for not resuming duty on 25.03.2010, and for receiving the three absentee notices and for not joining the new place of posting, treating the said conduct of the applicant as a gross misconduct, a summary of allegation was served on the applicant vide order dated 10.01.2012 by the disciplinary authority, namely, Addl. Dy. Commissioner of Police, South-West Distt., New Delhi where he was stated to have been transferred from Ist Bn., DAP and stood relieved vide DD No. 32 dated 01.02.2011. The summary of allegation is extracted below:-
"You, Ct. Krishan Kumar No.965/DAP, while posted in 'N' Coy., CPR, Kalyan Puri, Delhi Poceeded for one day C.L. dated 24/0/10 vide DD No. 18 dated 23/03/10 CPR, Kalyanpuri. You were to resume your duty on 25/03/10 but you neither resumed your duty nor given any information. You were marked absent vide DD No.17 dated 25/03/10 CPR Kalyanpuri. Three absentee notices No.5334-37/SIP/Ist Bn.DAP dated 13/04/11, 6368- 72/SIP/Ist. Bn. Dated 26/05/11 and 7289-7302/SIP/Ist./DAP dated 25/06/11 were sent to you at your native home address i.e. village-Khatoti, P.O.Hamindpur, Tehsil-Narnaul, Distt. Mahendergarh (Haryana) which were served upon you by Ct.Ugga Sain No. 3245/DAP in which it is clearly mentioned that you resume your duty at once. If you are ill, you should report to CMO, Civil Hospital, Mahendergarh (Hayana) for medical examination but you, neither resumed your duty nor reported to CMO Civil Hospital, Mahendergarh for medical examination. You were under transfer from Ist. Bn. DAP to South-West Distt, but you did not report in South-West Distt. And remained continue absent himself since 25/03/10. The above act on the part of you, Ct. Krishan Kumar No.965/DAP amounts to grave misconduct, indiscipline and an act of unbecoming of a police officer in the violation of CCS (Leave) Rules, 1972 & Standing Order No.111 which renders you liable to be dealt with 3 OA 3490/2013 departmentally under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980."
4. Alongwith summary of allegation, lists of witnesses and list of documents were served on the applicant. The applicant did not admit the summary of allegation. The respondents appointed the inquiry officer. The Inquiry Officer following the relevant rules regarding conducting the departmental enquiry as well as complying with the principles of natural justice examined PW 1 to PW-4 and gave an opportunity to applicant to produce his DWs, but however, the applicant did not produce any DWs. The inquiry officer also examined one court witness. He submitted his written statement. In the written statement he has pleaded that he was sick and was under treatment of a doctor in Rajsthan, as such he could not apply for leave. The Inquiry Officer after analysing the evidence before him, and considering the defence statement of the applicant held that the charge levelled against the applicant was proved. Copy of the inquiry report was furnished to the applicant. Thereafter, the disciplinary authority going through the entire material on record, inquiry report and the representation made by the applicant against the same and hearing the applicant in orderly room on 20.07.2012 recording his reasons imposed a penalty of dismissal from service on the applicant vide order dated 25.07.2012. The appeal filed by the applicant was dismissed by the appellate authority by reasoned and speaking order after hearing the applicant in orderly room on 26.02.2013 vide order dated 12.03.2013.
5. The counsel for the applicant vehemently and strenuously contended that in the summary of allegation, no where the 4 OA 3490/2013 respondents have stated that there is wilful absence nor they have stated unauthorised absence, as such the counsel submitted that the entire disciplinary proceeding, including all the orders be set aside. The counsel for the applicant further submitted that as the applicant was under medical treatment and he has produced several documents in support of he having taken medical treatment in Rajasthan. In support of his contention, he relied on the following judgements of the Hon'ble Supreme Court:
"(1) Krushnakant B.Parmar Vs.Union of India and Ors ( 2012) 3 SCC 178) (2) Chhel Singh Vs. M.G.B.Gramin Bank (2014(8) SCALE 485)
6. We have perused the entire departmental enquiry proceedings. Though the word "wilful" and "unauthorised" have not been specifically used in the summary of allegation. But, however, from the conduct of the applicant recorded in the summary of allegation, namely, that he had remained absent and he had neither resumed for duty nor reported to CMO, Civil Hospital, Mahendergarh, Haryana for medical treatment nor he had received three absentee notices which were ultimately sent to his native address. This conduct demonstrates that his absence was wilful. In view of these peculiar facts and circumstances in this case, the law laid down by the Hon'ble Supreme Court in the above said cases is not applicable.
7. The counsel for the applicant equally vehemently submitted that the applicant as on the date of 10.01.2012 was not working under the Addl. Dy. Commissioner of Police (South-West Distt.) because though he was relieved on 1.2.2011 from Ist Bn. DAP., but however, he had 5 OA 3490/2013 not reported under the said disciplinary authority, as such relying on Rule 14 (4) of Delhi Police (Punishment & Appeal) Rules, 1980, the counsel for the applicant contended that the summary of allegation is issued by an authority who is not competent to issue the same. We are not convinced about the submissions of the counsel for the applicant, in view of the fact that applicant was transferred and was relieved from Ist Bn.AP on 01.02.2011, he should have reported to the place where he was transferred and once he has been relieved from Ist Bn.DAP after transferred he should be deemed to have come under the jurisdiction of the place where he has been transferred, namely, under the Addl. Dy. Commissioner of Police (South-West Distt.), in view of the same, the submissions of the learned counsel for the applicant do not hold water.
8. Learned counsel for the respondents equally vehemently and rightly contended that in the uniformed forces, an employee who remained absent for a long time and thereafter if he pleads that he was sick or under medical treatment as such he could not be treated as wilfully or unauthorized absent; shall not be countenanced. In support of his contention, he relied upon the judgment of Hon'ble Supreme Court in the case of Union of India and Ors Vs. Pradeep Sharma ( Civil Appeal No.(s) 8353-8354 of 2013).
9. 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:-6 OA 3490/2013
"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 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 7 OA 3490/2013 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 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 8 OA 3490/2013 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 (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 alsoendorsed 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;9 OA 3490/2013
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."
10. In view of the facts and circumstances of the case narrated above 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, the OA requires to be dismissed.
11. Accordingly, OA is dismissed. No order as to costs.
( S.N.Terdal) (Nita Chowdhury) Member (J) Member (A) 'sk' ....