Central Administrative Tribunal - Delhi
Surendra Singh vs Comm. Of Police on 11 October, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
OA No.83/2013
Order Reserved on: 18.09.2018
Pronounced on:11.10.2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Surendra Singh,
Ex. Constable (Dvr.) of Delhi Police,
PIS No.28082850,
Aged about 35 years,
S/o Sh. Sheopal,
R/o VPO: Talwana,
PS: Nimrana, Tehsil: Behror,
Distt. Alwar, Rajasthan.
-Applicant
(By Advocate Shri Anil Singal)
-Versus-
1. Govt. of NCT of Delhi through
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Addl. C.P. (PCR),
PHQ, IP Estate,
New Delhi.
3. Addl. DCP/DCP (PCR)
PCR Lines, Model Town-II,
New Delhi.
-Respondents
(By Advocate Shri Amit Anand)
ORDER
Shri K.N.Shrivastava, Member (A):
Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief: 2
(OA No.83/2013) "To quash and set aside the impugned orders as mentioned in Para-1 of O.A. and direct the respondents to restore to the applicant his original service and pay with all consequential benefits including promotion/seniority and arrears of pay."
2. The factual matrix of the case, as noticed from the records is as under:
2.1 The applicant joined Delhi Police as Constable (Driver) through a proper selection process. A complaint was received from one Shri Pawan Bhoop (Pawan Sharma), R/o Village and Post Office, Talwana, Tehsil Behror, District Alwar, Rajasthan in the Vigilance Branch/PCR, Delhi Police that the applicant had secured appointment in the Delhi Police by changing his date of birth and it was also alleged therein that the applicant's actual name is Sunder Singh and not Surender Singh and his date of birth is 11.08.1975 and not 01.11.1978 as per the records of Government Senior Secondary School, Kaysa, Alwar, Rajasthan. It was thus alleged that the applicant was over-aged at the time of his appointment and that he has secured the job by adopting deceitful means. 2.2 On the basis of the complaint, a Preliminary Enquiry (PE) was conducted, based on which the Disciplinary Authority decided to place the applicant under suspension vide order dated 13.04.2009.
Thereafter, the competent authority vide impugned Annexure A-1 order dated 18.06.2009 ordered a regular Departmental Enquiry (DE) against the applicant. Shri Chandra Shekhar, Inspector of 3 (OA No.83/2013) PCR, Delhi was appointed as Inquiry Officer (IO). The IO issued the Annexure A-2 summary of allegations which would read as under:
"It is alleged that a complaint of Sh. Pawan Sharma R/o Vill. & PO Talwana, Tehsil Behror, Rajasthan was received in Vigilance Branch/PCR with the allegations that Ct. (Dvr) Surender Singh No.9420/PCR joined Delhi Police after changing his date of birth and name by appearing in 10th class examinations three four times. During the enquiry of the complaint it is revealed that Ct (Dvr) Surender Singh No.9420/PCR submitted documents in the department showing his date of birth as 01.11.1978 and name as Surender Singh at the time of joining the service. Whereas his real date of birth is 11.08.1975 and name was Sunder Singh as per the school record of govt. Sr. Sec. School, Kaysa (Alwar) Rajasthan. He has in his way given false information to the department while being recruited in Delhi Police as driver. He was overage at the time of recruitment and he got his job in Delhi Police by adopting deceitful means.
The above act on the part of Ct. (Dvr) Surender Singh No.9420/PCR amount to gross misconduct, negligence and unbecoming of a Govt. Servant which renders him liable to be dealt with under the provision of Delhi Police (Punishment and Appeal) Rules, 1980."
2.3 A list of 12 witnesses and another list of 11 documents were furnished along with the summary of allegations to the applicant. Pursuant to the summary of allegations, the inquiry was conducted in which as many as 12 Prosecution Witnesses (PWs) were examined. The applicant also submitted his defence statement. The IO in his report dated 25.04.2011 (Annexure A-3) concluded that the charge against the applicant stands proved. The relevant portions of the inquiry report are extracted below:
"DISCUSSION:
This Departmental Enquiry was ordered against Ct. (Driver) Surender Singh No.9420/PCR, on receiving a complaint from Pawan Sharma r/o V&PO Talwana Tehsil Behror Distt. Alwar (Raj.). The complainant informed that Ct. (Driver) Surender 4 (OA No.83/2013) Singh S/o Sh. Sheopal Singh Rajput R/o V & PO Talwana Tah Behror Distt. Alwar (Raj.) passed 10th class, with the name Sunder Singh S/o Sheopal Singh and later on he changed his name as Surrender Singh to reduce this age and changed Date of Birth. In this process Ct. (Dvr) Surrender Singh passed 10th class on four times and got fake driving license from Guwahati. On receiving complaint DE was ordered simultaneously case FIR No.145/09 u/s 420/468/471 IPC PS I P estate was also registered, which is pending investigation and Ct. (Dvr.) Surender Singh no.9420/PCR got bail from the Court.
During the DDE proceedings total twelve PWs were cited and all of them were examined. There was no person named as Pawan Sharma as mentioned in the complaint living in V & P O Talwana. PW-5 Pawan Bhup S/o Rama Nand R/o 146 Sampurn gram Talwana Teh. Behror Alwar (Raj.) is neighbour of Ct. (Driver) Surrender Singh deposed that he did not give any complaint regarding age of Ct. (Driver) Surrender Singh and the complaint was not signed by him. He also deposed that he knew Surender Singh from childhood and he was never named as Sunder Singh as mentioned in the complaint. PW 12 Sh. Ramesh Chand Yadav principal Govt. Sr. Sec. School Kaysa Alwar (Raj.) deposed that he did not recognize Ct. (Dvr.) Surrender Singh S/o Sheopal Singh and in this name, no person was student of the school. As per school record the T C verification Certificate and character Certificate were issued to Sunder Singh in 1995. Other PWs also deposed that they know Ct. (Driver) Surrender Singh with this name and they were not aware about change of name from Sunder Singh to Surender Singh. It is further submitted that the documents regarding age proof and educational qualification submitted for recruitment, which were issued from Board of Secondary Education Rajasthan with Date of Birth 1-11-78 as private candidate in the name of Surender Singh. Where as the complaint was filed against Sunder Singh, who was regular student of Govt. Sr. Sec. School Kaysa Alwar, passed 10th class with Date of Birth 11-8-75. The identity of the complainant could not established, hence the complaint is anonymous. The prosecution witnessed clearly could not established the fact that Sunder Singh with DOB 11-8- 75 and Surender Singh with DOB 1-11-78 is the same person.
The village Talwana is a small village and it is not possible that PWs living in same village, were not aware about Sunder Singh who was studying with other children of same village in govt. Shcool Kaysa suddenly eloped from the village and another person Surender Singh who never joined any school regularly and passed 10th class Board Exam. privately.
On the basis of facts on file and statements of PWs and above discussion Sunder Singh and Surender Singh is the same person and for getting job, he appeared in Board Exam. with new DOB. There is no record of birth in Village Panchyat or Tehsil. For the record of Date of Birth, 10th class certificate is a valid document. To reduce the age, the delinquent applied as private candidate in Board Examination and passed 10th class with 5 (OA No.83/2013) reduced age and new Date of Birth with new name. In this process he did not follow the legal procedure for changing name and Date of Birth. Hence he adopted illegal means either intentionally or ignorantly.
CONCLUSION After carefully going through the statements of Prosecution witnesses, evidence on record, defence statement, in view of above discussion and circumstantial evidence, I have come to the conclusion that DE charge framed against Ct (Driver) Surender Singh No.9420/PC, stands proved."
2.4 Acting on the IO's report, the Disciplinary Authority (DA), namely Additional Deputy Commissioner of Police (GA), Delhi vide his impugned Annexure A-4 order dated 27.05.2011 imposed the penalty of removal from service on the applicant. His statutory appeal was also dismissed by the Departmental Appellate Authority (AA), i.e., Additional Commissioner of Police, PCR/Delhi vide his Annexure A-5 order dated 21.09.2012.
2.5 A criminal case was also registered against the applicant by way of FIR No.145 dated 04.09.2009 under Sections 420/468/471 IPC at PS, I.P. Estate.
2.6 Aggrieved by the Annexures A-1, A-4, A-5 orders as well as Annexure A-2 summary of allegations and Annexure A-3 IO's report the applicant has approached the Tribunal, praying for the quashment of these orders as indicated in para-1 supra.
3. In support of the relief claimed, the applicant has broadly pleaded the following grounds:
6
(OA No.83/2013) 3.1 Annexure A-4 order of the DA is based on certain statements recorded in the PE but the DA has ignored the statements recorded during the regular DE. The DA has failed to notice that some of the witnesses have refuted their earlier statements recorded in the PE when they were deposing in the regular inquiry. The teacher of the Government Senior Secondary School, Kaysa, Alwar, Rajasthan, on whose alleged statement the applicant was dealt with departmentally, was never examined during the regular inquiry and as such a fatal error has occurred in the conduct of the inquiry. 3.2 The applicant was also denied an opportunity of cross-
examining the said teacher. PW-11 HC Hawa Singh, who had visited village Talwana, Tehsil Behror, District Alwar, Rajasthan and recorded the statement of the complainant Shri Pawan Bhoop. The said person has denied having sent any complaint against the applicant. PW-11 has also deposed that there was no evidence to connect the applicant with Shri Sunder Singh nor has he got the applicant identified by any witness at any point of time.
4. Pursuant to the notices issued, the respondents entered appearance and filed their reply in which, besides reiterating the allegations against the applicant, they have broadly averred as under:
7
(OA No.83/2013) 4.1 PW-11, HC Hawa Singh, had deposed during the course of the inquiry that for inquiring the matter he had visited the Talwana village as well as Government Senior Secondary School, Kaysa and had recorded evidence of several witnesses, including a teacher from Talwana village (native place of the applicant) who was earlier posted at Kaysa school. The teacher told that the applicant was staying in the Kaysa school as Sunder Singh and was later recruited in Delhi Police. The school record would indicate that the TC was issued to the regular student Shri Sunder Singh S/o Shri Sheo Pal Singh who had passed 10th class examination in 1994-95.
PW-12 Ramesh Chand Yadav, Principal of the Kaysa school had also deposed that according to the school records. Shri Surendra Singh S/o Shri Sheo Pal Singh was neither student of school nor had passed any examination from the said school. 4.2 During the pendency of the OA, the applicant was discharged in the criminal case by the Court of Abhilash Malhotra, MM-03 (Central) vide judgment dated 29.11.2017. The relevant portion of the judgment is extracted below:
"....In the departmental enquiry it is not established that Sunder Singh & Surender Singh are same person. The documents submitted by the accused at the time of applying for job are found genuine. In these circumstances, it is clear that from the admitted case of prosecution it could not be established that student Sunder and accused Surender are one and same person. Accordingly accused is discharged in present case." 8
(OA No.83/2013) 4.3 The applicant has placed on record a copy of the judgment of the Metropolitan Magistrate through MA No.180/18.
5. On completion of the pleadings, the arguments of learned counsel for the parties were heard on 18.09.2018. As per our direction, the respondents have placed on record a copy of the mark-sheet of 10th class issued to the applicant by Madhyamik Shiksha Board, Rajasthan (in short, Rajasthan Board).
6. We have considered the arguments of the learned counsel for the parties and have also perused the records. Admittedly, the applicant has secured appointment in Delhi Police on the basis of the 10th class mark-sheet issued to him by the Rajasthan Board in which the applicant's name has been indicated as Surendra Singh and his date of birth has been indicated as 01.11.1978. If there was any doubt regarding the authenticity of this mark-sheet, the respondents ought to have taken up the matter with the Rajasthan Board but they did not do so. Even the IO has observed in his report that the identity of the complainant could not be established; hence the complaint is to be construed as anonymous. The IO has further observed that the PWs could not establish that Sunder Singh with date of birth 11.08.1975 and Surendra Singh with date of birth 01.11.1978 is the same person. It is rather surprising that despite this observation made by the IO in the 'Discussion' column of his report, the IO has concluded that the charge against the 9 (OA No.83/2013) applicant stands proved. Clearly there is a mismatch between the finding and the conclusion. Taking note of this contradiction, the Metropolitan Magistrate vide his judgment referred to hereinabove has acquitted the applicant of the criminal charge.
7. We also observe that the evidence adduced by some of the witnesses during the visit of PW-11 HC Hawa Singh, including the Principal of Kaysa school, who purportedly had said that the applicant and Sunder Singh is one and the same person, have not been produced as witness during the regular inquiry and the applicant had not been provided the opportunity of cross-examining them.
8. In the conspectus of the discussions in the foregoing paras, we find that the applicant has been punished without any credible evidence. He has also been denied the opportunity of cross- examining certain crucial witnesses on the basis of whose depositions in the PE, he has been punished. Hence, in the interest of justice, we quash and set aside Annexure A-1, A-4 orders of the DA, A-5 order of the AA, A-2 summary of allegations and A-3 inquiry report and allow the OA. The respondents are directed to re-instate the applicant in service within a period of 04 weeks from the date of receipt of a certified copy of this order. We further direct that the applicant shall be entitled to all consequential benefits. As 10 (OA No.83/2013) regards salary emoluments during the removal period, we direct that the applicant shall be paid 50% of the total salary emoluments for the removal period but without any interest.
9. In view of the disposal of the OA, ancillary applications, if any, also stand disposed of.
10. There shall be no order as to costs.
(S.N. Terdal) (K.N. Shrivastava) Member (J) Member (A) 'San.'