Central Administrative Tribunal - Delhi
Attar Singh vs Comm. Of Police on 13 December, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 4105/2014
Reserved on 29.11.2019
Pronounced on 13.12.2019
Hon'ble Mr. S.N.Terdal, Member (J)
Hon'ble Mr. A.K.Bishnoi, Member (A)
Constable Attar Singh,
Age-53 yrs., No.5352/DAP
(PIS No. 29101871),
S/o Late Shri Amar Singh,
R/o Village & Post -Paali,
Distt- Rewari, Haryana. ... Applicant
(By Advocate: Mr. Sachin Chauhan )
VERSUS
1. Govt. of NCTD
Through The Commissioner of Police,
Delhi Police, PHQ, MSO Building,
IP Estate, New Delhi.
2. The Addl. Commissioner of Police,
Armed Police, Delhi
Through The Commissioner of Police,
Delhi Police, PHQ, MSO Building,
IP Estate, New Delhi.
3. The Dy. Commissioner of Police,
VII Bn. DAP: Delhi
Through The Commissioner of Police,
Delhi Police, PHQ, MSO Building,
IP Estate, New Delhi. .. Respondents
(By Advocate: Ms. Sumedha Sharma )
2 OA 4105/2014
ORDER
Hon'ble Mr. S.N.Terdal, Member (J):
We have heard Mr. Sachin Chauhan, counsel for applicant and Ms. Sumedha Sharma, counsel for respondents, perused the pleadings and all documents produced by both the parties.
2. In this OA, the applicant has prayed for the following reliefs:
"(a) To quash and set aside the order of disciplinary authority dated 25.11.2013 whereby the extreme punishment i.e. removal from service is imposed upon the applicant, order dated 26.09.14 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority & promotion and pay & allowances.
(b) To quash and set aside findings of the Enquiry Officer dated 18.09.2013.
(c ) To quash and set aside the order of initiation of Departmental Enquiry dated 08.01.2013.
[ Or/and Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
3 OA 4105/20143. The relevant facts of the case are that a departmental enquiry was initiated against the applicant for not disclosing details of his involvement in a criminal case in the attestation form while filling up the attestation form.
The detail of summary of allegation is extracted below:
"It is alleged against Const. Attar Singh No. 5352/DAP (PIS No.29101871) (Roll No. 942419) that he was selected in Delhi Police during the recruitment held in year 2010 and he joined the department on 14.06.10. At the time of filing of Attestation Form, he did not disclose any details regarding his involvement in any criminal case in the column No. 11(b) of the said form. Whereas in the beginning of the attestation form for the post of Const. (Exe.) Male in Delhi Police-2010, there is a column of warning, where it has been clearly mentioned that furnishing of false information or suppression of any factual information in the attestation form would be treated as a disqualification, it may render the candidate unfit for the service. Having received a compliant from one Sh. Bane Singh S/o Sh.Manohar Lal, r/o Vill-Pali, Distt. Rewari (Haryana) verification was got conducted through SI Deep Chand No. D-2015/7th Bn. DAP who reported that the said Const. is involved in case FIR No. 146/2009 dated 06.08.2009 u/s 323/325/34 IPC PS Khol, District- Rewari (Haryana) and he was also arrested in the said case on 11.08.2009. The said SI further reported that the charge-sheet In the above said case has already been put up in the Hon'ble court on 01.09.2009 and next date of hearing is fixed for 17.01.2013. The fact finding report submitted by the SI is contrary to what Const. Attar Singh had disclosed in the attestation form at column No. 11(b). Thus, he deliberately concealed his criminal involvement in the attestation form. Besides, he submitted a false undertaking that he was not involved in any criminal case at the time of obtaining the offer of appointment letter and succeeded in joining the department by adopting deceitful means.4 OA 4105/2014
The act of concealment of facts regarding involvement in a criminal case and of giving false undertaking on the part of Const. Attar Singh No. 5353/DAP amounts to grave misconduct rendering him unbecoming of a police officer in a disciplined force and therefore, he is liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules 1980.
Therefore, I, Dr. Mahesh Bhardwaj, Deputy Commissioner of Police, VII Bn. DAP order that a regular departmental enquiry be conducted against Const.Attar Singh No. 5352/DAP (PIS No. 29101871) by Sh. Inspr. Dhani Ram E.O/7th Bn. DAP on day today basis, under the provision of Delhi Police (Punishment & Appeal) Rules 1980, who will submit his findings expeditiously. A fortnightly progress of the departmental enquiry shall also be submitted to the undersigned regularly."
4. Along with the summary of allegation, list of witnesses and list of documents were served on the applicant. As the applicant did not admit the allegation, an Inquiry Officer was appointed. The Inquiry Officer who was initially appointed took voluntary retirement, as such subsequently another inquiry officer was appointed. The Inquiry Officer following the principles of natural justice and the rules governing the holding of the departmental enquiry examined PW-1 to PW-4 and DW-1 and DW-2 and took on record the defence statement given by the applicant and thereafter discussed and analyzed the deposition of the witnesses and came to the conclusion that the charge leveled against the applicant was proved 5 OA 4105/2014 beyond doubt vide his inquiry report dated 18.09.2013.
The discussions of the evidence and the conclusions are as follows:-
"Discussion of evidence:- In the DE mainly following points are to be probed:-
1. Whether Const. Attar Singh No. 5352/DAP applied for the post of Constable (Exe.) male in Delhi Police in 2010.
2. Whether Cont. Attar Singh No. 5352/DAP deliberately concealed his criminal involvement required in Column No.11 (b) of the Attestation From no. F-36 prior and joined the service of Delhi Police.
3. Whether Const. Attar Singh No. 5352/DAP submitted false undertaking by giving wrong information in Form No. F-83.
During the DE proceedings, after examination of PWs and perusal of documents relied upon, is quite clear that Const. Attar Singh No. 5352/DAP applied Ex.PW 1/A for the post of Constable (Exe.)Male in 2010, resulting which he is presently posted as a Constable (Exe.) at 7th Bn.DAP. Statement of PW 1 and PW 2 are on file supporting this contention.
It is proved up to the extent on inspecting the Column No. 11(b) of the Attestation Form (F-
36) Ex. PW 1/B filled by Const. Attar Singh which bears his signatures. Therein he has disclosed that no FIR is registered against him.
Const. Attar Singh No. 5352/DAP gave his undertaking through the Form of Undertaking F-83, Ex. PW 1/C that he neither involved in any criminal case nor arrested as well as not dealt with under any law in force in any criminal case. No criminal case or court proceeding is pending against him at present. Which is contrary to the report Ex.PW 3/B submitted by SI Deep Chand, which is self explanatory that Const. Attar Singh No. 5352/DAP was informed in a criminal case vide 6 OA 4105/2014 FIR No. 146/09 dated 06.08.2009 u/s 323/325/34/IPS PS Khol, Distt.-Rewari Haryana and he was arrested in said case on 11.08.2009. Charge sheet in the above said case is already been put in the concerned court on 01.09.2009. It shows that Const. Attar Singh deliberately concealed regarding his criminal involvement.
DW-1 and DW-2 produced by the Const Attar Singh No. 5352/AP in his defence have also stated that Const. Attar Singh was falsely implicated in the criminal case in 2009 nd later he joined Delhi Police. It shows that Const. Attar Singh intentionally/deliberately concealed the facts to join the service of Delhi Police, however it was the common fact known to each other in his village.
Const. Attar Singh has himself admitted in his defence statement that he didn't conceal the fact of criminal case intentionally but under the impression that if disclosed applicant may be denied employment.
Other pleas adopted by Const. Attar Singh in the form of citing a judgment of Supreme Court, turning the complainant false and a prayer that he may become jobless and his family would be rendered helpless if harsh decision is taken in this case. He has also prayed that prior to take any decision the outcome of the criminal case may also be awarded.
These pleas need not require the attention of the undersigned.
CONCLUSION:
I have carefully gone through the depositions made by the PWs in their examination-in-chief as well as in their cross examination, exhibits brought on record and DWs produced by the defaulter besides his defence statement. In view of the above discussion I'm of the firm view that delinquent Const. Attar Singh deliberately concealed his criminal involvement in the Attestation Form, besides he submitted a false undertaking that 7 OA 4105/2014 he was not involved in any criminal case at the time of obtaining the offer of appointment and succeeded in joining the department by adopting deceitful means. Thus the charge against Const. Attar Singh No. 5352/DAP is fully proved beyond doubts."
The report of enquiry was served on the applicant to enable him to file representation against the inquiry report.
The applicant submitted his representation against the inquiry report. The disciplinary authority considering the entire evidence and the entire departmental proceedings and taking into account the representation submitted by the applicant to the inquiry report and also hearing the applicant in orderly room on 20.11.2013 imposed a penalty of removal from service vide order dated 25.11.2013. The relevant portion of the order of the disciplinary authority is extracted below:
"Now, let us discuss his forgone defence pleas one by one with the following rebuttal, (i) The EO has mentioned the defence contention of the delinquent in his findings, although in brief but he has succeeded in proving the charges on the basis of evidence adduced by him during the DE proceedings.
(ii) Admittedly, the delinquent was not having requisite qualification to join the department as Constable due to his involvement in a criminal case u/s 325 IPC, so he gave false information to the department at the time of recruitment process. It is also relevant to mention here that there is a policy of PHQ, circulated vide SO No. 398/2010 that candidature will be cancelled of a candidate who does not disclose the fact of his involvement or arrest in any criminal case. (iii) This plea of the delinquent carries no force as offence u/s 325 IPC is not a minor one and it has been carried vide PHQ's 8 OA 4105/2014 SO No. 398/2010 as a serious offence involving moral turpitude, which makes a candidate unsuitable for the police department. (iv) the case u/s 325 IPC is still pending against the delinquent in the court of law and the court has not concluded the trial of the case. Hence, there seems to be no cogent reason to question the credibility of Sh. Bane Singh at this stage. (v) the plea of the delinquent is unenable in view of the facts that filing of any 'istagasa' or counter case against Sh. Bane Singh does not mitigate the fact that he is facing trial of an offence u/ 325 IPC. (vi) this plea of the delinquent does not inspire any confidence. Whether or not the case u/s 325 IPC is genuine & it is to be decided by the court of law. As of now it is fact that the delinquent was selected and subsequently joined in the police department on the basis of wrong information furnished by him. (vii) Being an ex-army man the delinquent must have shown faith in truth rather than to hide the vital information pertaining to his arrest and pendency of a criminal case against him.
Had he given correct information to the department regarding pendency of a criminal case of 325 IPC against him, his candidature would have been cancelled being a matter of policy of the police department as per PHQ's SO No. 398/2010. (viii) Every case has its own uniqueness. There seems to be no case where a criminal case u/s 325 IPC is pending against a candidate and even than he was allowed by any Court to join Delhi Police. (ix) This aspect that Sh.Bane Singh had filed a false case against the delinquent is yet to be seen by the court of law and only a court can decide that. Hence, no merit is found in the instant plea. (x) Perusal of the Judgment of Hon'ble Supreme Court in the case titled Commissioner of Police Vs. Sandeep Kumar reveals that Sandeep Kumar had applied for the post of HC (Min.) in 1999 and in the application form he furnished information that no case was pending against him and that he was never arrested in any case etc. whereas a case u/s 325 IPC had been registered against him and his family members. He got acquitted from the court in the year 1998. After he was qualified in all tests he disclosed the fact the very first time through the attestation form. In contrast, the delinquent never disclosed the fact of his involvement in a criminal case at any stage and succeeded in joining Delhi Police by adopting 9 OA 4105/2014 deceitful means. Therefore, it is evident from the perusal of this judgment that the case of the delinquent is completely different from that of Sandeep Kumar.
In view of above it is established beyond any doubt that the delinquent knowingly hid the fact of his arrest and involvement in a criminal case and furnished false information both in application form and attestation form during the selection and joining process for the post of Const. (Exe.) in Delhi Police. Therefore, I am of the considered view that the delinquent Constable was recruited to as Constable (Exe.) on the basis of false eligibility shown by him. Therefore, I Dr. Mahesh Bhardwaj IPS award him a punishment of removal from the service with immediate effect."
The applicant filed an appeal. The appellate authority also after considering the entire material once over again and also considering his appeal and hearing the applicant in orderly room on 24.09.2014 rejected the appeal vide order dated 26.09.2014. The applicant challenging the inquiry report and disciplinary authority's order as well as appellate authority's order filed the present OA. After filing of this original application on 12.01.2016, the Court of Addl. Chief Judicial Magistrate, Rewari acquitted the applicant in the criminal case after trial. The said criminal case is the one about which the applicant had not disclosed in the attestation form.
10 OA 4105/20145. The counsel for the applicant vehemently and strenuously contended that as the applicant was subsequently acquitted as narrated above and that the applicant had put in unblemished service in the Army before he was appointed in Delhi Police and that he was working in the lower rank as Sepoy and innocently and inadvertently without any bad intention he had not disclosed about the pendency of the criminal case in the attestation form and, therefore, in view of the law laid down by the Hon'ble Supreme Court in the case of Avtar Singh Vs. Union of India and Ors ( 2016) 8 SCC 471), his OA be allowed and the respondents be directed to reconsider the punishment imposed on him. On the basis of the above facts he further submitted that the punishment of removal from service imposed on him is shockingly disproportionate, in support of which he specifically brought to our notice, para 14 of the judgment of Hon'ble Supreme Court passed in the case of Avtar Singh (supra) which is referred to in the judgment of Hon'ble High Court of Delhi in the case of Parshant Deep Vs. High Court of Delhi in Writ Petition (Civil ) No. 1960/2019). The relevant portion of which is extracted below:-
11 OA 4105/2014"14. The question, thus, would be whether merely because the petitioner had failed to provide the requisite information in the first instance itself, his services could be terminated without even examining the relevant factors, including the nature of the offence, his subsequent acquittal, as also the fact that he himself had furnished the said information prior to his joining service. In this regard, it may be appropriate to refer to the relevant paragraphs of the decision of the Supreme Court in Avtar Singh (supra), which are reproduced herein below:- "
29. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation W.P.(C)No.1960.19 Page 10 of 17 form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which 12 OA 4105/2014 does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kinds of cases......."
(Emphasis supplied)
6. The counsel for the respondents equally vehemently and strenuously contended that from the perusal of the said attestation form and from the warning given in the attestation form itself at para 11(b) and the applicant coming from disciplined force, namely, Armed service and being appointed in disciplined force, namely, Delhi Police non-disclosure of true facts in attestation form is very serious aspect and in view of specific provision applicable in such cases enumerated in Standing Orders issued by the Police Headquarter from time to time, the punishment of removal of service is not disproportionate and there is no need for reconsideration of the penalty of removal imposed on the applicant after holding due departmental enquiry on the basis of the above said acquittal order dated 12.01.2016 in the said criminal case. In support of her contention, she specifically brought to our notice para 38.9 of the law laid down by the Hon'ble Supreme Court in the above said case of Avtar Singh (supra) which is extracted below:
13 OA 4105/2014"In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form."
In view of the facts and circumstances narrated above and in view of the specific provisions of Standing Officers of Police Headquarter which has been duly followed by the disciplinary authority, we are of the view that this OA is devoid of merit.
7. With regard to the disciplinary proceedings, the counsel for the applicant has not brought our notice violation of principles of natural justice or violation of any procedural rules governing the conduct of the departmental enquiry.
8. 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:-
"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 14 OA 4105/2014 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 15 OA 4105/2014 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 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 16 OA 4105/2014 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 or of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support 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 17 OA 4105/2014 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 also endorsed 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;
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;
18 OA 4105/2014
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."
9. In view of the facts of the case narrated above and in view of the law laid down by 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.
10. Accordingly, OA is dismissed. No order as to costs.
(A.K.Bishnoi) (S.N. Terdal) Member (A) Member (J) 'sk' ...