Central Administrative Tribunal - Delhi
Anuj Kumar vs Comm. Of Police on 5 December, 2022
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Item No. 12 (C-III) O.A. No. 2595/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
M.A No. 1746/2022 In
O.A. No. 2595/2021
This the 05th day of December, 2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Ct. Anuj Kumar,
PIS No.- 28071282
Aged about 34 years,
S/o. Sh. Rajender Singh,
R/o. VPO Lisarh Distt Muzaffarnagar,
Uttar Pradesh - 247 775 ...Applicant
(By Advocate : Mr. Setu Niket with Ms. Esha Mazumdar)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
New Secretariat,
New Delhi-110 001.
2. Commissioner of Police,
Delhi Police,
Police Headquarters, Jai Singh Road,
New Delhi-110 001.
3. Deputy Commissioner of Police
1st BN. DAP Delhi
ADMN Block, New Police Line,
Kingsway Camp, Delhi - 110 009. ....Respondents
(By Advocate : Mr. Amit Yadav)
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Item No. 12 (C-III) O.A. No. 2595/2021
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following main reliefs :-
"A. Call for records;
B. Quash and set aside order dated 15/10/2019 passed by Deputy Commissioner of Police 1st BN. DAP:
Delhi vide Order No. 9930-65/HAP(P-III)/Ist Bn. DAP, Delhi;
C. Quash and set aside findings dated 05.06.2015 and supplementary findings dated 01.12.2015."
2. The applicant was enlisted in the Delhi Police as a Constable on 01.08.2007. Later on he was confirmed. On 16.09.2013, he was falsely implicated in the riots in Muzaffar Nagar in FIR No. 291/13 u/s 395/436/295-A of IPC at Phugana Police Station, Muzaffar Nagar, U.P. On 08.01.2014 complainant Suleman S/o. Sh. Kamruddin filed an affidavit before the Senior Superintendent of Police Muzaffar Nagar stating that due to tension and undue pressure from the community members, he had falsely implicated the names in case FIR No. 291/13 PS Phugana. The SSP, Muzaffar Nagar intimated to the Commissioner of Delhi Police on 04.06.2014 about the registration of the FIR 3 Item No. 12 (C-III) O.A. No. 2595/2021 against the applicant. The departmental proceedings were conducted on 15.07.2014 and during this period the applicant was released on bail after his application was acceded to by the concerned Session Court. On 23.03.2015, the witness ASI Krishanpal had deposed that the applicant was never arrested by any Police, neither he was on anticipatory bail before the Hon'ble Court nor surrendered before Hon'ble Court or police. The inquiry officer submitted his report on 05.06.2015 wherein supplementary finding was also given. On 03.01.2016, the applicant replied to the supplementary finding stating to consider his former statement and documents submitted to the disciplinary authority Karawal Nagar. The disciplinary authority remanded back this matter again to the inquiry officer to hold a supplementary inquiry. On 14.01.2016, the Dy. Commissioner of Police awarded a major penalty of forfeiture of five years approved service permanently entailing proportionate reduction in his pay with immediate effect. The Additional Commissioner of Police has rejected his appeal on 29.06.2016. The District and Session Judge vide its order dated 27.05.2019 has acquitted the applicant 4 Item No. 12 (C-III) O.A. No. 2595/2021 thereafter the representation was made by the applicant under Rule 11 of the Delhi Police (Punishment and Appeal) Rules for setting aside the punishment. On 27.09.2019, the applicant wrote to the Jail Superintendent, Muzaffar Nagar seeking information regarding whether he was locked from 11.08.2014 to 26.08.2014 in District Jail, Muzaffar Nagar in FIR No. 291/13, thereby the Jail Superintendent informed that the applicant was never arrested in the proceedings for the above said period. It is alleged that the DCP concerned has mechanically passed the order. Thus, the applicant is seeking setting aside of this order.
3. Notices were issued to the respondents who put appearance through Mr. Amit Anand, learned counsel who has filed reply. In the reply it is stated that the concerned Commissioner of Delhi Police was informed that the riots took place on 04.06.2013. After conducting day to day basis inquiry, the applicant was awarded a reasonable opportunity by following principles of natural justice. As such in the interest of natural justice the findings was remanded back under Rule 16 (X) of Delhi Police (Punishment & Appeal) Rules, 1980 and Inspr. Deen Dayal 5 Item No. 12 (C-III) O.A. No. 2595/2021 was nominated to ascertain the information i.e., (i) what is the role of Const. (ii). Whether any evidence has come against him during investigation (iii). Whether charge has been framed upon him by the Court or not (iv). Whether arrested & remained in J/C or not (v). Whether any recovery has been effected from him or not (vi). TIP was carried out or not & (vii) present position of law etc.
4. The Enquiry Officer Inspr. Deen Dayal submitted supplementary findings on 01.12.2015 concluding therein that the charge framed upon the applicant Constable is proved beyond any reasonable doubt. The Inquiry Officer in his supplementary findings also clarified each and every point as stated above.
5. A copy of supplementary findings was also sent to the applicant Constable vide U.O. No. 10699/HAP/P-I/1st Bn. DAP dated 09.12.2015 for submission of his further representation if any within a period of 10 days from the date of receipt which was received by him on 21.12.2015. The applicant submitted his reply on 03.01.2016 (received in this office on 05.01.2016) stating therein that his 6 Item No. 12 (C-III) O.A. No. 2595/2021 previous representation may be treated as his comprehensive reply.
6. The disciplinary authority carefully gone through the findings and supplementary findings of Enquiry Officer, representation of applicant and other record made available on DE file during enquiry. For the sake of natural justice, he was also again heard in O.R. on 12.01.2016. In his submission he had pleaded that (i) he has been falsely implicated in the case as on the day of incident i.e., on 07.09.2013 he was on duty in Special Staff/North-East Distt. The plea was considered and rejected as the applicant could not produce any document/record showing his presence on duty. Moreover, he has surrendered himself before the Hon'ble Court on 11.08.2014, arrested and was sent to judicial-custody as per the supplementary findings of the Enquiry Officer.
7. In second plea he stated that he got anticipatory bail from High Court of Allahabad on 26.08.2014 and was not arrested in this case. The plea was considered and rejected on the ground that the applicant could not 7 Item No. 12 (C-III) O.A. No. 2595/2021 produce any documentary paper regarding grant of anticipatory bail by the Hon'ble High Court. As per report of SSP/Special Investigation Cell, Muzaffar Nagar (UP) dated 28.10.2015 the applicant was arrested on 11.08.2014 and was sent to judicial custody which clearly shows that he remained in J/C from 11.08.2014 to 26.08.2014.
8. In third plea the applicant Constable stated that the Enquiry Officer has twisted the story and ignored the basic facts. The plea was considered and rejected as the findings of the E.O. are based on facts and documents made available during enquiry. The applicant Constable has arrested in this criminal case and investigation of the case and charge sheet filed against him before the Hon'ble Court further corroborating and establishing his involvement in criminal case which cannot be overlooked.
9. Lastly, it is submitted that they have conducted inquiry in proper manner and all opportunity was granted to the applicant and he has no case for interference by this Tribunal.
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Item No. 12 (C-III) O.A. No. 2595/2021
10. Rejoinder thereto has been filed reiterating the facts stated in the OA.
11. Heard learned counsel for the parties at length. The short issue raised in the present OA is whether the applicant was guilty for the absence and whether the charges framed against him are as per the factual position or not and whether the present punishment is sustainable in the eyes of law ?
12. Learned counsel for the applicant has drawn out attention to the order passed by the disciplinary authority. The applicant has stated that he was not present at the place of incident (riots) during this period on 16.09.2013. He came to know about the said registration of FIR some time on 08.06.2014. Prior to this, he took steps for getting interim bail whereas this position has already been informed to the Commissioner of Police by the SSP Muzaffar Nagar about the registration of FIR No. 291/13 against the applicant. He has drawn our attention to last paras of Order dated 14.01.2016 (annexed at page 78 and 79 of the OA). The same are reproduced below :- 9
Item No. 12 (C-III) O.A. No. 2595/2021 In fourth plea, he pleased that he could not inform the department about the said criminal case as he had thought that affidavit filed by the complainant Sulaiman has disposed off the matter. Plea is considered and rejected as affidavit filed by the complainant is a matter of investigation and on having been arrested and detained in judicial custody from 11.08.2014 to 26.08.2014 the delinquent Constable should have at least to informed the department but he failed to do so. In this way he has tried to keep the department in dark with some oblique motives.
Therefore, keeping in view of all facts and circumstances I am of the considered view that delinquent Constable has involved himself in above heinous crime which is not expected from police personnel and a member of a uniformed organization. A police person is supposed to protect the public and property but contrary to the ethics of policeman as well as good human being, the delinquent Constable himself involved in above serious-criminal case which amounts to grave misconduct. Apart the delinquent Constable also deliberately and intentionally did not inform the department about his involvement in criminal case which is further violation of CCS (Conduct) Rules.
Therefore, considering all facts of the case I am f the view that the delinquent has committed an act unbecoming of Police Officer and deserve a major penalty which I believe will work as a deterrence and curb such kind misdeeds to some extent. As such in consonance with the findings of Enquiry Officer, I, Brahm Singh, Deputy Commissioner of Police/1st Bn. DAP, Delhi award punishment forfeiture of 05 (five) years approved service permanently to Const. Anuj, No. 845/DAP entailing proportionate reduction in his pay with immediate effect."
13. The applicant immediately after receipt of this order preferred an appeal stating this factual position to the appellate authority and pressed upon para 11 of his appeal 10 Item No. 12 (C-III) O.A. No. 2595/2021 (annexed at page 88 of the OA). The same is reproduced as under :-
"11. That from the perusal of the Punishment Order of the Punishing Authority issued vide order No. 244-60/HAP/P- I/1st Bn. DAP dated 14.01.2016 in para 8 and 10 it has been wrongly mentioned by the Punishing Authority that the Appellant was remained in JC w.e.f. 11.08.2014 to 26.08.2014 whereas the appellant had surrendered himself on 11.08.2014 in the court of Session Judge, Muzaffar Nagar, U.P. vide Crl. Misc. Bail Application No. 3067/2014 and was granted Interim Bail on 11.08.14 and on the main application for bail was kept for record till 26.08.14. Copy of Court's order dt. 11-8-14 is enclosed for your kind information. On 26-08-14 I was granted permanent/regular Bail but from the Hon'ble Court on 26- 8-14, copy of Court's order is enclosed for your kind information. Hence I did not remain in JC during the period from 11-8-14 to 26-8-14, therefore, the allegations are false and the too harsh server punishment awarded to me may kindly be quashed and set aside. Moreover the appellant while remained posted in Special Staff North- East Distt, had performed his duties in PS Seema Puri and on the date of incident I was present in PS Seema Puri, copy of the Chitha is enclosed for your kind information which could prove that one person cannot remain present at two placed on the same date and time and hence the entire story is false and baseless against me."
14. Even the applicant has categorically informed to the appellate authority regarding the factual error that Hon'ble High has granted the bail but, that has gone into deaf ear of the appellate authority and he has simply rejected the case of the applicant. This fact has also been brought to the knowledge of the inquiry officer vide his representation dated Nil. But, the inquiry officer failed to give any 11 Item No. 12 (C-III) O.A. No. 2595/2021 response to this. Similarly, disciplinary authority as well as appellate authority also did not give any response.
15. The issue raised in the present OA regarding involvement of the applicant in this incident which took place on 16.09.2013 is erroneous on the basis of the record itself. Even the applicant was acquitted also still the department was bent upon to impose penalty of forfeiture of five years approved service permanently, which is highly improper and illegal. Thus, we hereby set aside both the orders of disciplinary authority as well as appellate authority. We have never come across such a case where a bad and blind observation is made by the disciplinary authority who is discharging the duties of a quasi judicial nature despite being informed by the applicant as no one should be vexed twice under the rules.
16. Keeping in view the facts and circumstances of the case, we allow this OA with the observation that the orders of the disciplinary authority and appellate authority are hereby set aside and cost of Rs.10,000/- each is imposed on concerned Deputy Commissioner of Police as well as on 12 Item No. 12 (C-III) O.A. No. 2595/2021 Additional Commissioner of Police for non-adherence to the proceedings which was raised before them as one after other factual error has been committed by them. The concerned Commissioner of Police is directed to make recovery of the said cost of Rs.10,000/-imposed, from their salary and the same deduction shall be deposited in the Prime Minister's Relief Fund. The same shall be informed in writing by the respondents to this Tribunal. This exercise shall be completed by the respondents within a period of thirty days from the date of receipt of a certified copy of this order. The respondents are further directed to pay back all the monetary benefits to the applicant with 6% interest within a period of two months from the date of receipt of certified copy of this order.
Pending MA(s) if any, stands dispose of accordingly.
(Dr. Chhabilendra Roul) (Ashish Kalia) Member (A) Member (J) /Mbt/