W.P.(C) No.5124/2008 Page 1 of 29 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 19.11.2009 % Judgment delivered on: 12.01.2010 + W.P. (C) No.5124/2008 & C.M. No.9805/2008 GOVT. OF NCT OF DELHI & ORS. .....Petitioners Through: Mr. Mohammad Sajid, Advocate versus S.I. OM SINGH ….Respondent Through: Mr. Sachin Chauhan, Advocate CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may No be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? J U D G M E N T VIPIN SANGHI, J. 1. The petitioners assail the order dated 11.04.2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No.2627/2006, whereby the Tribunal has allowed the aforesaid Original Application filed by the respondent and quashed the disagreement note dated 05.06.2006 issued by the Disciplinary W.P.(C) No.5124/2008 Page 2 of 29 Authority, disagreeing with the findings of the Inquiry Officer; order of the Disciplinary Authority dated 13.07.2006 inflicting punishment of forfeiture of respondent‟s two years approved service permanently, entailing reduction in his pay from Rs.7425/- per month to Rs.7075/- per month and treating the period of his suspension as not spent on duty, and; the order dated 23.10.2006 passed by the Appellate Authority rejecting the respondent‟s departmental appeal against the aforesaid order of the Disciplinary Authority. 2. The respondent S.I. Om Singh was serving as a Sub- Inspector in Delhi Police at the relevant time. He along with H.C. Jasbir Singh, Const. Satender, Const. Dharambir Singh and Const. Rajender Singh had been put on escort duty on 08.09.2003 for producing Under Trial Prisoner (UTP) Jagminder Singh of Ludhiana before the concerned trial Court in case bearing FIR No.74/2000 under Sections 392/379/148/149 IPC registered at police station Rampura Phull, Punjab. The respondent was to lead the escort party. Vide D.D. No.27A dated 08.09.2003 the escort party had left for Bhatinda under the supervision of the respondent. During the production of the UTP in Court on 09.09.2003, he slipped away from the lawful custody of the escort party and a case bearing FIR No.464/2003 under Section 224/225 IPC P.S. Kotwali, Bhatinda, Punjab was registered in this regard. W.P.(C) No.5124/2008 Page 3 of 29 3. A searching departmental inquiry was ordered under Rule 29(1) of Delhi Police (Punishment and Appeal) Rules, 1980, which was entrusted to Sh. Ravi Dutt, ACP/HQ, III Bn. DAP, who conducted the same and submitted his report that the UTP had escaped from lawful custody of the escorting party due to their negligence and carelessness. It was found that the respondent S.I. Om Singh did not go with the escort party and had apparently managed his admission at Mohan Nursing Home, Yamuna Vihar, Delhi afterwards when he learnt that the UTP Jagminder Singh had escaped from custody. The UTP was engaged in various heinous crimes in Delhi, Ludhiana and Bhatinda. After perusing the searching departmental inquiry report, the Joint Commissioner of Police (AP), Delhi accorded approval for initiating a regular departmental inquiry, inter alia, against the respondent under Rule 29(3) of the Delhi Police (Punishment and Appeal) Rules, 1980. The respondent was also placed under suspension vide order dated 10.09.2003. However, he was reinstated in service on 17.02.2004. 4. Consequently, a departmental inquiry was initiated against the respondent on 17.10.2003 inter alia on the ground that he did not accompany the escort party entrusted with the task of taking the UTP to a Court in Bhatinda, Punjab, and then managed his own admission in a nursing home when he learnt that the aforesaid UTP had escaped from custody. The respondent S.I. Om W.P.(C) No.5124/2008 Page 4 of 29 Singh was charged with conduct amounting to grave misconduct, negligence, indiscipline and dereliction of his official duty. The other members of the escort party were also similarly charged. 5. The Inquiry Officer submitted his report returning his finding that the charge against the respondent S.I. Om Singh was not proved in view of his illness, but the charge against the other members of the escorting party stood proved without any shadow of doubt. 6. The Disciplinary Authority, however, did not agree with the finding of the Inquiry Officer in respect of the respondent and recorded a disagreement note dated 17.10.2003 which was sent to the respondent. The respondent represented against the said disagreement note. However, the Disciplinary Authority imposed a punishment of forfeiture of respondent‟s two years approved service. 7. The respondent then preferred an appeal before the Appellate Authority, who modified the penalty order, reducing the same to forfeiture of one year of service vide order dated 02.11.2004. The respondent then preferred O.A. No.3047/2004 before the Tribunal to challenge the penalty imposed on him. The Tribunal vide order dated 20.04.2006 remitted the case back to the Disciplinary Authority after quashing the note of disagreement W.P.(C) No.5124/2008 Page 5 of 29 dated 17.10.2003 and the consequential order dated 24.08.2004 passed by the Disciplinary Authority as well as the order of the Appellate Authority dated 02.11.2004 on the ground that the Disciplinary Authority had not recorded tentative reasons for issuing the disagreement note, but had predetermined the issue. The Disciplinary Authority was directed to pass a fresh order on the findings submitted by the Inquiry Officer. 8. Consequent upon the passing of the said order, the Disciplinary Authority recorded a fresh note of disagreement dated 05.06.2006. The respondent represented against the said note of disagreement. After considering the same the Disciplinary Authority passed the order of punishment dated 13.07.2006 and inflicted the punishment of forfeiture of two years approved service permanently. This order was upheld by the Appellate Authority vide order dated 17.10.2006. As aforesaid, all these orders were challenged by the respondent in O.A. No.2627/2006, which has been allowed by the Tribunal. 9. Learned counsel for the petitioner submits that the learned Tribunal, while passing the impugned order, has scrutinized the inquiry report, the evidence led in the departmental inquiry proceedings, the order passed by the Disciplinary Authority and the Appellate Authority as if the Tribunal was sitting in appeal over the W.P.(C) No.5124/2008 Page 6 of 29 same. He submits that it was beyond the jurisdiction of the Tribunal to have gone into the merits of the case so as to arrive at its own assessment with regard to the establishment of guilt of the respondent. He submits that it was not for the Tribunal to reach its own conclusion when the inquiry had been conducted by following the due procedure, in compliance with the principles of natural justice, and the findings recorded by the Disciplinary Authority and by the Appellate Authority were founded upon cogent evidence. He submits that when, on preponderance of probabilities, the guilt of the respondent stood established, it was not open to the Tribunal to re-appreciate the evidence for itself to arrive at its own finding that the charge framed against the respondent was not proved. 10. On the other hand, the submission of the learned counsel for the respondent is that the Tribunal was justified in examining the merits of the case so as to appreciate whether it was a case of “no evidence” or not. He submits that the Tribunal had itself noted in para 12 of the impugned order that the evidence of the witnesses had been considered not with a view to reappraise the evidence, but only to examine whether there was any evidence against the respondent to prove the charge framed by the Inquiry Officer and also to examine whether procedure followed in the inquiry conformed to the rules. W.P.(C) No.5124/2008 Page 7 of 29 11. Having heard learned counsels for the parties and perused the impugned order, as well as the record pertaining to the inquiry including the order passed by the Disciplinary Authority and the Appellate Authority, we are of the view that the Tribunal has overstepped its jurisdiction and has assumed the role of an Appellate Authority while scrutinizing the orders passed by the Disciplinary Authority and the Appellate Authority. 12. The charge framed against the respondent reads as follows: “I, K.S. Dalal, ACP/E.O. DE Cell, hereby charge you SI Om Singh No. D-3196, HC Jasbir Singh No. 7160/DAP, Const. Satender No. 2686/DAP, Ct. Dharambir No. 7526/DAP and Ct. Rajinder No.2221/DAP that while posted in IIIrd Bn DAP, you all were detailed on escort duty over UTP Jagminder Singh S/O Sh Ranjeet Singh R/O 14 Canadian Enclave Ferozpur Road, Ludhiana (Punjab) for producing before the concerned trial court in case FIR No.74/2000 u/s 392/379/148/149 IPC P.S. Ram Pura Pull, Distt. Bhatinda Punjab. You all constituting escort guard under the supervision of SI Om Singh No. D-3196 reportedly departed vide DD No. 27-A dated 8-9-2003 3rd Bn DAP, from Delhi to Bhatinda Punjab. But you, SI Om Singh, No.D/3196 knowingly and intentionally did not receive a service revolver from the Kot and did not proceed with the Escort Guard to Bhatinda with your, common intention. After production in the concerned court at Bhatinda on 9-9- 2003 the UTP Jagminder Singh ran away from the lawful custody of the remaining escort guard for which a case FIR No. W.P.(C) No.5124/2008 Page 8 of 29 464/2003 u/s 224/225 IPC was registered in P.S. Kotwali Bhatinda. On receipt of this information you, SI Om Singh No. D-3196, managed your admission in Mohan Nursing Home Yamuna Vihar Delhi. As per rule 29 (i) of Delhi Police (Punishment & Appeal) Rules-1980 a searching enquiry was also conducted by Sh Ravi Dutt ACP/HQ IIIrd Bn. Who also established that the UTP has escaped from your lawful custody due to your negligence and carelessness. The above act on the part of all of you amounts to be a grave misconduct, negligence and dereliction in the discharge of your official duty which renders all of you liable to be punished under the provisions of Delhi Police (Punishment & Appeal) Rules-1980.” 13. In the departmental enquiry, various departmental witnesses/prosecution witnesses were examined and similarly the respondent examined various defence witnesses. The Inquiry Officer in his report exonerated the respondent while holding other personnel, entrusted with the task of escorting the UTP, guilty of negligence and misconduct. The case of the respondent was singled out on the ground that the respondent had been able to prove that he was not well. The medical record had been produced from Mohan Nursing Home by one Dr. Arun Aggarwal. The Inquiry Officer believed the medical record so produced. W.P.(C) No.5124/2008 Page 9 of 29 14. The Disciplinary Authority gave the following tentative reasons for disagreeing with the finding of the Inquiry Officer vis-à- vis the respondent: “1. The conclusion of the E.O. that the charge against SI Om Singh does not prove in view of his illness does not seem to be justified. If the defaulter did not pre-plan to avoid this duty and if he was not feeling well at New Delhi Railway Station, why did he not inform to the D.O./III Bn. DAP and to the Senior officers despite being the commanding officer of the escort party. Why did he not inform through other guard members if he was not in a position to do so himself. 2. Why was he admitted in Mohan Nursing Home, Yamuna Vihar, Delhi in a semi conscious condition from the New Delhi Railway Station which is far away i.e. 15 Kms. from there. Who admitted him in the Mohan Nursing Home as he was in semi- conscious condition and why did he prefer to admit him there and not in the nearest Govt./Private Hospitals & Nursing Homes just adjacent to New Delhi Railway Station. The whole story seems to be doubtful. 3. Before proceeding from Vikas Puri Police Lines to New Delhi Railway Station why did he not obtain the arms and ammunition from the VPL Kot. It appears as if he had no plans to proceed on his duty otherwise he should have observed the normal drill. 4. HC Jasbir Singh, No. 7160/DAP in his statement recorded by Sh. Ravi Dutt, ACP had stated that SI Om Singh had proceeded from the Railway Station to get some medicines, as he was not feeling well. SI Om Singh stated that in case he could not come back in time they should leave for W.P.(C) No.5124/2008 Page 10 of 29 Bhatinda with the UTP and he will reach direct Bhatinda in the court. Why HC Jasbir Singh should submit this report against the SI if it was not factually correct. 5. On 18.8.04 during O.R. all the four other defaulters of the guard party of SI Om Singh gave in writing the above facts mentioned at Sl. NO. 4 in the presence of SI Om Singh. HC Jasbir Singh has also disclosed in his statement that he has interacted with SI Om Singh from Bhatinda Court before production of UTP i.e. on 9.9.03 on his telephone No. 01398-275932 and enquired from him whether he was coming. Dr. Arun Aggarwal disclosed that he was admitted in hospital on 8.9.03 and discharged on 12.9.03 at 12 Noon. The statement of SI Om Singh seem to be tutored as why did he not state to HC Jasbir Singh that he was admitted in hospital and not in a position to reach at Bhatinda Court instead of saying that he was coming. This point create doubts about the varacity of the statement of SI Om Singh. 6. Dr. Arun Aggarwal from Mohan Nursing Home, Yamuna Vihar, Delhi appeared in the D.E. as DW-4 who disclosed that SI Om Singh was admitted in hospital on 8.9.03 and discharged on 12.9.03 at 12 Noon. He was admitted in his Nursing Home with chest pain and in a semi-conscious condition. He was having very much perspiration and chest pain at the time of admission and he was brought by an other man namely Surender Kumar. On 10.9.03 when the condition of SI Om Singh had improved then he had told that he was serving in Police Department and his office may be informed. He does not know whether any information was given to his office or not. There was no facility of outgoing telephone in the ICU and only intercoming facility was available there. The statement of the Dr. Arun Aggarwal W.P.(C) No.5124/2008 Page 11 of 29 seem to be tutored as why did he not enquire about Surender Kumar who took the SI to Mohan Nursing Home, Yamuna Vihar from New Delhi Railway Station i.e. 15 Kms far away from Station. Why any well- wisher public person had not taken the SI to nearest hospital/Nursing Home. Why did Dr. Arun Agagrwal not lodge the complete residential address of Mr. Surender Kumar in his official record. Dr. Arun Aggarwal of Mohan Nursing Home, Yamuna Vihar, Delhi received the patient in semi-conscious condition for treatment through unknown person then why did he not report the matter to PCR & Local Police. These points create doubts about the varacity of the statement of Shri Arun Aggarwal. 7. Why did SI Om Singh not obtain the permission of the competent authority as specified in rule 19 (5) of Leave Rules, 1972 after coming into senses.” 15. The respondent represented in response to the disagreement note. The Disciplinary Authority considered the representation made by the respondent and passed the order imposing the said penalty. While dealing with the plea taken by the respondent, that the evidence had been overlooked and that he was sought to be punished merely on the basis of suspicion and surmise, and while dealing with the medical record and the doctor‟s evidence relied upon by the respondent, the Disciplinary Authority in his order dated 13.07.2006 held as follows: “The plea taken by the defaulter is not tenable. There are sufficient material/information are available on record to prove the charge against the W.P.(C) No.5124/2008 Page 12 of 29 SI. Before proceeding from VPL to New Delhi Railway Station he did not obtain the arms and ammunition from the VPL Kot which is the violation of rules, practices and instructions issued from time to time. It is clear that this was the pre-plan of the defaulter that he will not proceed for Bhatinda from New Delhi Railway Station. As per his plea, he was admitted in the Nursing Home on 08.09.2003 in the evening whereas the UTP had escaped on 09.09.03. HC Jasbir Singh in his statement recorded by Shri Ravi Dutt, ACP, had stated that SI Om Singh had proceeded from the Railway Station to get some medicines, as he was not feeling well. SI Om Singh stated that in case he could not come back in time they should leave for Bhatinda with the UTP and he will reach direct Bhatinda in the court. It makes clear that SI Om Singh was not in a mood to proceed to Bhatinda with the guard party as Incharge guard. It shows that SI Om Singh had managed with guard party that he will be available in Delhi and after production they may intimate him for completing the assigned job. But incidentally UTP escaped from the lawful custody of the guard party and when the guard party informed him over phone, he (SI Om Singh) immediately managed his admission in Mohan Nursing Home, Yamuna Vihar as he is residing at Shahdara. On 18.08.2004 during O.R. all the four other defaulters of the guard party of SI Om Singh gave in writing the above facts. HC Jasbir Singh has disclosed in his statement that he has interacted with SI Om Singh from Bhatinda Court before production of UTP on Telephone No.01398-275932 and enquired from him whether he was coming or not who told that he was coming. It is also clear that he was not admitted in the Mohan Nursing Home and manipulated the medical papers to save him from the allegation. It is clear that SI Om Singh has fabricated the story in view of the statement of lower subordinates of his guard party who have given in writing against him in his presence. Being a senior officer and Incharge guard he should have come to assemble at VPL and got issued the arms and ammunition and further proceeded for New Delhi Railway Station but he did not do so. When at New Delhi Railway Station he stated to the guard party that he is not feeling well and gone to take W.P.(C) No.5124/2008 Page 13 of 29 medicines, at that time he could have telephonically informed to the DO/III Bn. or any other senior officer of this battalion to provide his substitute immediately but he did not do so. The statement of the Dr. Arun Aggarwal seem to be tutored as why did he not enquire about Surender Kumar who took the SI to Mohan Nursing Home, Yamuna Vihar from New Delhi Railway Station i.e. 15 Kms. far away from Station. Why any well-wisher public person had not taken the SI to nearest hospital/Nursing Home. Why did Dr. Arun Aggarwal not lodge the complete residential address of Mr. Surender Kumar in his official record? Dr. Arun Aggarwal of Mohan Nursing Home, Yamuna Vihar, Delhi received the patient in semi-conscious condition for treatment through unknown person then why did he not report the matter to PCR & local Police. These points create doubts about the veracity of the statement of Shri Arun Aggarwal. If the defaulter was not feeling well at New Delhi Railway Station he should have informed to the department immediately and should have asked for his substitute as commanding officer of the escort party, but he did not do so. He did not seek leaves/permission as per leave rule 19(5) which envisage that an application alongwith a copy of medical certificate be made and orders of the competent authority awaited and the leaves be availed after due sanction.” 16. The Tribunal, in paragraph 8 of the impugned order refers to various statements made by the witnesses during the course of enquiry. The Tribunal also extracted portions from the enquiry report, wherein the Inquiry Officer had put the responsibility of informing the higher authorities about the absence of the respondent in the escort party on the other personnel, and not on the respondent. The Tribunal was also of the view that the statement of H.C. Jasbir Singh to the effect that, before the production of the UTP in the concerned court at Bhatinda on W.P.(C) No.5124/2008 Page 14 of 29 09.09.2003, he had called the respondent and enquired from him whether he was coming or not, and that the respondent had replied that he was coming, could not have been taken into account as the said statement had been made by H.C. Jasbir Singh to the Disciplinary Authority and not during the enquiry proceedings. The Tribunal held that the respondent had not been granted sufficient opportunity to refute the statement made by H.C. Jasbir Singh before the Disciplinary Authority and therefore, the same could not be relied upon. The Tribunal held the procedure adopted by the Disciplinary Authority to be in violation of Rule 16(x) of the Delhi Police (Punishment and Appeal) Rules, 1980. 17. Pertinently, the fact that the respondent had intentionally not collected arms and ammunitions from the “kot” like the other members of the escort party, which according to the Disciplinary and Appellate Authorities demonstrated the intention of the respondent not to accompany the escort party from the beginning, was brushed aside by the Tribunal by observing “The other argument that the Applicant intentionally did not collect arms and ammunition from the ‘Kot’ need not necessarily prove that he had intended from the outset not to accompany the escort party to Bhatinda”. W.P.(C) No.5124/2008 Page 15 of 29 18. The Tribunal in paragraph 11 of the impugned order, while dealing with the aspect that the respondent did not inform the superior officers about his illness and the fact that he had not accompanied the escort party observed: “However, it is seen from the evidence of the witnesses that the Applicant had told the members of the escort party that he was going to get some medicines and after that he met Surender and told him to take him to hospital. It is quite possible that at this point of time he was perhaps not in a position to inform the senior officers himself about his illness and he was also not with the members of the escort party. As mentioned above, the enquiry officer has also noted this point and case the responsibility on the escort guards for not informing the Applicant‟s controlling officers.” (emphasis supplied) 19. The Tribunal, while dealing with the aspect of the respondent being admitted to Mohan Nursing Home, Yamuna Vihar, Delhi, which was at a distance of about 15 kms. from the railway station and not to a private or government hospital near the railway station itself, relied upon the statement of DW-5 Surender Kumar and also opined that the medical record could not be disbelieved merely because there were loose ends and unanswered questions with regard to the admission of the respondent in Mohan Nursing Home, Yamuna Vihar, Delhi. The Tribunal observed that it was for the prosecution to have cross-examined Dr. Arun Aggarwal of Mohan Nursing Home on those aspects and the petitioner having W.P.(C) No.5124/2008 Page 16 of 29 failed to do so, it cannot disbelieve the medical record produced by Dr. Arun Aggarwal, DW-4. 20. Even if we were to assume for the sake of argument, that the statement of H.C. Jasbir Singh recorded before the Disciplinary Authority (to the effect that he had spoken to the respondent on his phone on 09.09.2003 before producing the UTP in the concerned court at Bhatinda to enquire whether the respondent was coming to Bhatinda, and that the respondent had informed him that he would be joining the escort party) were to be ignored, that by itself does not lead to the conclusion that there was no dereliction of duty on