AI Structured Summary
Not yet generated for this judgment
Judgment
Hon’ble Mr. R. N. Singh, Member (J)
We have heard the learned counsels for the parties. With their assistance, we have also perused the pleadings available on record.
In the present Original Application, filed under Section 19 of the AT Act 1985, the applicant has prayed for the following relief(s):-
“1.To quash and set aside the impugned Findings dt.25.7.2014, Order of Punishment dt.11.11.2014 and Appellate Order dt.27.1.2016, Order of Punishment dt.24.2.2015 with Addendum dt. 1.4.2015 and Appellate Order dt.3.2.2016
2.To direct the respondents to restore to the applicant his original service/pay with all consequential benefits including promotion/seniority and arrears of pay.
(a)Award cost of the proceedings in favor of the applicant and pass such other and further orders as deemed it and proper in the circumstances of the case to meet the ends of justice.”
In opposition to the claim of the applicant, the respondents have filed counter reply, with a prayer therein for dismissal of the OA with cost in favour of the respondents. The applicant has filed a rejoinder reiterating his claim and the grounds pleaded in support thereof.
Undisputed facts are that while the applicant was working as Inspector (Ex.) under the respondents, departmental proceeding was initiated against him vide an order dated 26.04.2013. Based on the statement of allegations and keeping in view the statement of the prosecution witnesses, the Inquiry Officer framed the charges against the applicant as under:-
“I, Dr. Rajeev Sharma, Addl. Dy. Commissioner of Police-II, Central District, Delhi, Enquiry Officer charge you Inspr. Gian Chand, No. D/3339 (PIS No. 16940064) that while posted as Incharge Anti Human Trafficking Unit/Central District, Delhi on the intervening night of 11-12/02/2013, you performed the duty in connection with Lahore Bus Sewa at Dr. Ambedkar Bus Terminal. After performing your duty while going to your house at Seema Puri in an Auto Rickshaw, you lost your official Wireless Set (Tetra Net) Call Sign C-12 from your possession. You did not note down the numbet of the cute in which you were going it your home and u noi iake any medical aid from any hospital after you became unconscious. You also did not inform the PCR after gaining consciousness. A case FIR No. 91/13 dated 14/02/2013 u/s 379 IPC has been registered at PS Seema Puri, Delhi. The above act on the part of you, Inspr. Gian Chand, No. D/3339 (PIS No. 16940064) amounts to gross negligence, carelessness and dereliction in the discharge of your official duties, which renders you liable for punishment under the provision of Delhi Police (Punishment & Appeal) Rules, 1980.”
The applicant in his defense got examined three defense witnesses. The Inquiry Officer, vide his findings dated 25.07.2014, proved the charges levelled against the applicant with recommendation for action for major penalty against him. On receipt of the findings of the IO, the applicant submitted his representation and the disciplinary authority passed an order dated 24.02.2015 read with an addendum dated 01.04.2015, inflicting penalty of forfeiture of five years approved service permanently and with further order, for the period of his suspension, i.e., 05.03.2013 to 18.11.2013, to be treated as period not spent on duty for all intents and purposes. Aggrieved by the order passed by the disciplinary authority, the applicant submitted a statutory appeal dated 12.05.2015 raising therein various illegality/irregularity. The appellate authority vide order dated 03.02.2016, rejected the appeal on the grounds of limitation. Learned counsel for the applicant has argued as under:-
That the charges against the applicant are vague and not specific. He submits that the charges are that the applicant while going to his house after attending the duty has lost his official Wireless Set from his possession, whereas one FIR regarding theft of the said Wireless Set is admittedly registered being FIR No. 91/2013 dated 14.02.2013 u/s 379 IPC with PS Seemapuri, Delhi. In support of his arguments, he has placed reliance upon the law laid by the Hon’ble Apex Court in the case of Union of India & Ors. v/s Gyan Chand Chattar, reported in (2009) 12 SCC 78.
There is no allegation of any ill motive, acts of negligence or reckless negligence against the applicant and, therefore, whether the Wireless Set was lost and/or was stolen cannot be construed as a misconduct against the applicant in support of such argument. Learned counsel for the applicant has placed reliance on the law laid down by the Hon'ble Apex Court in the case of Inspector Prem Chand v/s Govt. of NCT of Delhi, reported in (2007) 4 SCC 566.
The applicant has been charged that after becoming unconscious on the fateful day and time, he did not take medical help. Such charges are not only result of non application of mind but also appears to be nothing but whimsical act on behalf of the respondents, inasmuch as, it cannot be even expected that a person who had become unconscious will be in a position to seek and/or have medical help. Similar is the position with regard to the charges against the applicant that he did not note down the number of the auto-rickshaw referred to in the charges.
The findings in the impugned report of the IO and/or the orders passed in the impugned order of penalty that the applicant did not inform the PCR about the incident is perverse, inasmuch as, admittedly the Police was informed and such information was recorded vide DD No. 15 PP dated 12.02.2013, which finds reference in the statement of PW-2.
PW-5 was not cross-examined by the applicant; however, leading questions were put to him by the IO. However, thereafter no opportunity was accorded to the applicant for cross-examination and, therefore, findings of the Inquiry Officer and the impugned orders based on such inquiry report are vitiated. Learned counsel for the applicant has relied upon the judgment of a co-ordinate Bench of this Tribunal consisting one of us [Hon’ble Mr. R. N. Singh, Member (J)] dated 21.04.2023 in O.A. No. 1123/2016 titled Sanjay Kumar v/s Govt. of NCT of Delhi & Ors. The evidence led by the defense witnesses has not been considered and appreciated by the Inquiry Officer as well as the defense witnesses were not cross-examined by the prosecution and in this view of the matter, the statement of the defense witnesses should have been taken to be correct. In this regard, learned counsel for the applicant has placed reliance upon an order/judgment dated 18.12.2012 passed by the Hon'ble High Court of Delhi in W.P.(C) No. 7680/2010 titled GNCT of Delhi & Ors. v/s ASI Rambir Singh & Anr.
On the other hand, learned counsel for the respondents has vehemently disputed and denied the claim and arguments on behalf of the applicant. He has argued as under:-
That there is a thick contradiction in the statement of the applicant with regard to the place of the incident, i.e., where he had become unconscious.
There is a delay of approximately two days in registration of the FIR about the theft of the said Wireless Set. He further submits that the applicant remained unconscious for more than 2.5 hours.
The applicant in his defense has attempted to make a completely false and fabricated story.
The applicant has not only failed and neglected to seek and avail any medical help while he had become unconscious, but also even after having come to consciousness, he has not taken any medical help.
Even from the facts submitted by the applicant during the inquiry and available in the pleadings of the instant OA, his son, who was himself not an eye witness to the incident, came only next day of the incident to enquire whereabouts of his father, i.e., the applicant.
Though, after cross-examination of PW-2 was refused on the behalf of the applicant and certain questions were put to the PW-2 by IO, the IO had given opportunity to the applicant for cross-examination. He admits that such opportunity has not been given to the applicant in case of PW-5; however, it appears that the same might have been innocent mistake.
He submits that it was as per the facts reiterated by the applicant that when the applicant had become unconscious, he was extended help by some nearby fruit seller. However, the said fruit seller neither informed the doctor, the police, or the family members of the applicant about the incident nor did the applicant produce him as a defense witness. He further elaborates that said fruit seller was neither mentioned and referred by the applicant in his written complaint and/or at the time of registration of FIR.
We have considered the submissions made by the learned counsels for the parties.
From the aforesaid facts, it is evident that the charges against the applicant at one hand, is of loss of the said Wireless Set and on the other hand, the same respondents had lodged FIR regarding theft in respect of the said Wireless Set. From the charges levelled against the applicant, it is apparent that there is nothing against the applicant that he has been reckless in his act and/or he has got the said Wireless Set stolen/lost for any ulterior motive. The misconduct has been defined by the Hon'ble Apex Court in the case of Inspector Prem Chand (supra), and it is held that “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.”
We find that charge against the applicant about lost/theft of the Wireless Set is vague, inasmuch as, in the instant departmental proceedings, the applicant has been proceeded for loss of the Wireless Set, whereas simultaneously, the respondents have also lodged an FIR referred to hereinabove for theft of the same wireless set. It is also charged against the applicant that while he had become unconscious, he had not taken medical help. Such charge is found to be vague and even improbable, inasmuch as, a person, who is charged to have become unconscious is not expected to seek and/or avail medical advice. In this view of the matter, the charges leveled against the applicant are not found sustainable in view of the law laid down by the Hon’ble Apex Court in Gyan Chand Chattar (supra), wherein the Hon’ble Apex Court has ruled in para 35 as under:-
“35.In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.”
The statement of PW-5 reads as under:-
“PW-5 ASI (STORE) A.K. PREMI, 1797/COMN. (PIS NO. 27900138) I/C RADIO STORE/CENTRAL DISTRICT, DELHI. In his statement recorded on 02.09.13, he has stated that he is posted as I/C Radio Store/Central District since 2002. He brought Wireless Set Issue Register for ,the period .29.11.11 to 21.07.12 and as per this register, wireless set (Tetra DM 890 LJ 4216 was issued to Inspr. Gian Chand of 16.05.12 on temporary basis and since then, this set was with the Inspector. The relevant copy of the register has been cited as PW-5/A-1.
No cross-examination was made by the delinquent officer. However, the undersigned put forth the following questions to the PW-5 :-
Q. I- How many wireless sets issued from the Radio Store are not accounted for ?
Ans. Only one wireless set is not accounted for bearing No. 890TLJ4216.
Q. 2- To whom this wireless set was issued?
Ans. This set was issued to Inspr. Gian Chand and he has not returned it back so far.
After examining these 05 PWs, the allegations seemed to be substantiated, hence, charge was framed upon the delinquent Inspr. Gian Chand, No. D/3339 under rule 16 (iv) (b) of Delhi Police (Punishment & Appeal Rules, 1980 after getting it approved from the Competent Authority and a copy of the same was served to the delinquent on 23.11.13, which reads as under.”
From the aforesaid statement of the PW-5, it is evident that after the said witness was not cross-examined, the IO has raised certain questions, but he has not accorded opportunity to the applicant for the cross-examination of such witness. Such action of the IO is found to be in violation of the settled legal position, wherein the Tribunal after considering the judgment of this Tribunal in O.A. No. 2827/2003 titled ASI Sher Singh v/s Govt. of NCT of Delhi & Ors., judgment of the Hon’ble High Court of Delhi titled Commissioner of Police & Ors. v/s Bikram Singh in W.P.(C) 3466/2010 decided on 16.07.2010 and also the provisions of Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980, has held in para 13 as under:-
“13.Also, if the EO conducts a regular examination-in-chief by leading the PW through the prosecution case, or puts leading questions to the departmental witness or puts suggestive questions to prove the prosecution case, the EO acts as prosecution thereby vitiating the inquiry. The EO is an independent arbiter, who ordinarily is supposed to remain aloof and not involve himself especially in the process of examination and cross-examination of any particular witness. In the instant case EO indulged in the act of cross-examining PW-6 as is also evident not only from the above mentioned caption "Cross by EO Inspr. Shamsher Singh" but also from the tone and tenor of the questions asked. Also if the claim of the respondent is that the questions were clarificatory in nature, opportunity should have been accorded to the delinquent employee to cross-examine such witness, but the same was not done. This takes us to the conclusion that the departmental proceeding has been vitiated on the aforementioned counts.”
The defense witness number one, i.e., DW-1, namely, Head Constable Radhey Lal had stated during the inquiry as under:-
“DW-1 HC RADHEY, LAL, NO. 323/C (PIS NO. 28822264) AHTU/CENTRAL DISTRICT
In his statement recorded on 20.01.14, he has stated that he is posted as Reader to Inspr. AHTU/Central since last two and half years. On 12.02.13, he was present in the office of AHTU and at about 12:30 PM, one Sehdev Sharma.s/o Inspr. Gian Chand Sharma came to the office and informed him that his father has not reached home since yesterday. He informed his son that on the previous day, his father was deployed at LBS. Then, HC Radhey Lal along with his son went to Control Room/Central District where Duty Officer informed that Inspr. Gian Chand has telephonically informed to Control Room that yesterday night, while he was going back home, his wireless set and mobile phone were stolen and in this connection, he was present in the area of PS Seema Puri. This information was conveyed to his son by HC Radhey Lal.
No cross-examination was made by the Enquiry Officer.”
It is evident that no cross-examination was made by the Inquiry Officer/prosecution. Same has been the situation with regard to the statement made by DW-2 and DW-3. In absence of anything revealed by such witnesses, particularly DW-1 during cross-examination, the evidence of such defense witnesses was required to be taken as to be correct. In this regard, learned counsel for the applicant has right to place reliance on the judgment of the Hon'ble High Court of Delhi in the case of ASI Rambir Singh & Anr., (supra), wherein the Hon'ble High Court in para 13 has held as under:-
“13.If one were to examine the deposition of DW1 Dinesh Kumar Tomar, it is apparent that he has stated that the motorcycle belonged to him and that he had parked it on the Ghaziabad border and that the sum of Rs. 6,350/-, that was kept in the motorcycle, was his. Since this testimony has gone unchallenged, there is no alternative but to accept the same. If that is done, then the petitioners have no case.”
Furthermore, we also find that while returning the allegations as proved, the Inquiry Officer has not appreciated the evidence on behalf of the applicant at all.
We have also considered the submissions made by the learned counsel for the respondents. With regard to contradiction of place of unconsciousness and/or the registration of FIR after a day or two, we are of the considered view that the same were not the subject matter of charges leveled against the applicant, and therefore the same are out of context with regard to the submissions of the learned counsel for the respondents that the applicant has submitted a false and fabricated story, we are of the considered view that once the departmental inquiry was initiated against the applicant, the onus lied on the prosecution to prove the allegations, and it was not that the applicant was required to prove his innocence. Same is the position with regard to as to why the applicant has not taken any medical aid and assistance even after recovering his consciousness. Same was not the allegation against the applicant, therefore, any defense or reason in this regard was not at all expected from the applicant.
In view of the facts and circumstances and the above judgments referred to and relied on behalf of the applicant, the present OA deserves to be allowed and the same is, accordingly, allowed with following orders:-
Impugned orders dated 25.07.2014, 11.11.2014, 27.01.2016, 24.02.2015, 01.04.2015 and 03.02.2016 are set aside.
The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject.
The aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within six weeks from the date of receipt of a certified copy of this order.
However, in the facts and circumstances, there shall be no order as to costs.