1. Tulsi Ram, Assistant Sub Inspector in Delhi Police, the applicant herein, faced departmental enquiry on the orders issued by Deputy Commissioner of Police, Special Cell (SB), Delhi dated 9.7.2002 (Annexure A-1) which read as follows: It is alleged against ASI Tulsi Ram, No. 4673/D that while posted in West Distt. he used to go to the house of one Smt. Nirmalaa Rani r/o D-56, Bal Udyan Road, Uttam Nagar, New Delhi in connection with some official enquiries. Due to his frequent visits, intimacy between both of them developed. ASI Tulsi Ram falsely told her that he is a widower having two children who are studying at Kurukshetra, Haryana and by making deceiptful statements he mattied her on 6.2.96 at Hastsal Road, Uttam Nagar. In the month of Jan. 1997 ASI Tulsi Ram with his malafide intention and ulterior motive persuaded the complainant by misrepresenting the facts and managed to take away Rs. 1,40,000/- on the pretext that he is purchasing the agricultural land in his native village in Alwar and assured her to return the same soon. Thereafter Smt. Nirmala Rani came to know that ASI Tulsi Ram is already married having two children and a living wife. This fact annoyed her but the ASI threatened her to kill and rape her daughter, if she made any complaint against him and under these threat he again extorted Rs. 80,000/- and gold jewellery weighing 6 tolas from her. In this way ASI Tulsi Ram by taking advantage of his status in police department ruined the life of an innocent and helpless widow by cheating her fraudulently and causing wrongful loss of Rs. 2,20,000/- and 6 tolas of gold jewellery. In this regard Smt. Nirmala Rani made a complaint on 21.2.02 at Crime Against Women Cell, Nanak Pura vide complaint No. 1-N-C-West against the ASI. Aan enquiry was conducted by the Crime (Women) Cell where the allegations leveled against ASI Tulsi Ram were substantiated. He agreed in before Sh. T. Baxla, ACP to pay maintenance to the complainant but refused to give in writing. The complainant had also filed a complaint case against the ASI in the Hon'ble Court of Metropolitan Magistrate, Tis Hazari, Delhi.
The above act on the part of ASI Tulsi Ram, 4676/D amounts to gross misconduct and unbecoming of a Govt. servant, which renders him liable for departmental action in accordance with rule for punishment as envisaged under Section 21 of D.P. Act, 1978.
I, Ashok Chand, DCP/Spl.Cell(SB), therefore hereby order that ASI Tulsi Ram, No. 4676/D be dealt with departmentally by ACP Sh. B.S. Palta (CSS) who will conduct the D.E. on day-to-day basis as laid down in rule 16 of Delhi Police (Punishment and Appeal) Rules, 1980 and submit his finding expeditiously.
The enquiry officer, after recording evidence of the parties, came to the conclusion that the applicant had cohabited with Smt. Nirmala Rani.
The charge of deceitful marriage, extortion and criminal intimidation was held not substantiated. The disciplinary authority, however, held that applicant had cohabited with Smt. Nirmala Rani under some inducement, and concluded that he had committed an act of gross misconduct involving moral turpitude, and that the charge stood proved against him. That being so, the disciplinary authority imposed a penalty of forfeiture of five years' approved service permanently entailing reduction in his pay from Rs. 5200/- to Rs. 4700/-. Appeal preferred against the order of the disciplinary authority was also dismissed. Aggrieved of the orders referred to above, the applicant filed OA No. 505/2005 in this Tribunal, which was allowed vide order dated 8.8.2005 on the only ground considered at that stage that even though the enquiry officer had returned a finding that the applicant had cohabited with Nirmala Rani, the disciplinary authority, without recording any note of disagreement went on to hold that the charge stood proved. It was canvassed on behalf of the applicant through his counsel that there was not even a charge of cohabiting with Nirmala Rani, but the Tribunal did not think it proper or necessary to ponder and express any opinion on the contention of the Learned Counsel. It was held by the Tribunal that once, the disciplinary authority had proceeded on a premise without recording any note of disagreement, the impugned orders could not be sustained. That being so, the impugned orders were quashed with liberty to the disciplinary authority, if it deemed appropriate, to consider the facts and circumstances and pass such order as may be deemed proper within three months from 8.8.2005, when the order was passed by the Tribunal. It appears that the disciplinary authority deemed it proper to proceed against the applicant from the stage of submission of enquiry report. In the view of the disciplinary authority, the applicant was guilty of misconduct alleged against him, and, therefore, show cause notice dated 1.12.2005 was issued to him which contained the disagreement note. The applicant represented against the said show cause notice, but vide order dated 12.1.2006 (Annexure A-4), while holding that it had been amply proved that the defaulter deceitfully married Smt. Nirmala Rani though he was a married person having two children and a living wife, the disciplinary authority reiterated the punishment of forfeiture of five years' approved service permanently entailing proportionate reduction in his pay. Order dated 12.1.2006 passed by the disciplinary authority has since been confirmed by the appellate authority vide order dated 31.10.2006 (Annexure A-6). The applicant in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, seeks a writ in the nature of certiorari so as to quash order dated 24.7.2002 (Annexure A-1) initiating departmental enquiry against him; findings of the enquiry officer dated 31.12.2003 (Annexure A-2); show cause notice dated 1.12.2005 (Annexure A-3); order of punishment dated 12.1.2006 (Annexure A-4); and appellate order dated 31.10.2006 (Annexure A-5).
2. Shri Anil Singal, Learned Counsel representing the applicant, in support of the Application, contends that the show cause notice dated 1.12.2005 would manifest that the disciplinary authority had made up its mind before the applicant had responded to the show cause notice that the applicant was guilty of the charge framed against him, as the disagreement note was not tentative. The Learned Counsel also contends that once, this Tribunal in its order dated 8.8.2005 in OA No. 505/2005 made the directions given by it time bound, the proceedings conducted after the time limit expired would be wholly illegal and without jurisdiction.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and hotly contested the cause of the applicant.
There would be no need to give the pleadings made in the counter reply as the facts are not in dispute, and the matter has been contested only on the legal issues as mentioned above.
4. The show cause notice containing the disagreement note (Annexure A-3), after giving the factual position leading to recording of the disagreement note, recites that the record of departmental enquiry conducted against the applicant, findings of the enquiry officer and the facts and circumstances of the case had been considered afresh. The enquiry officer, it is mentioned, had held the applicant guilty of the charge that he cohabited with Mrs. Nirmala Rani, but the charge of deceitful marriage, extortion and criminal intimidation could not be substantiated, and that on a careful perusal of the DE file it revealed that the enquiry officer had failed to appreciate the evidence on record, which was sufficient to prove the charge framed and award the punishment to the applicant. The disciplinary authority then made a mention of as many as ten grounds on which it disagreed with the findings of the enquiry officer, and ultimately opined as under: In the light of above facts and circumstances of the case, it is clear that the Enquiry Officer had failed to evaluate the prosecution/defence evidence, based on documentary evidence and hastily concluded that only the charge of co-habitation by the delinquent ASI with Smt. Nirmala Rani is proved whereas no charge of co-habitation framed/served upon the delinquent. Moreover, the Enquiry Officer has submitted his findings based on the defence statement of the delinquent ASI (Exe.) by ignoring all the prosecution evidence, which make the undersigned tentatively disagree with the findings of the EO on the grounds mentioned above.
Let a copy of this disagreement note along with a copy of findings of EO be served upon ASI (Exe.) Tulsi Ram, No. 4676/D for making his representation as to why the charge framed against him should not be treated as stands proved on the basis of reasons/grounds of disagreement with the findings of EI, mentioned above. His representation, if any, should reach to the undersigned within 15 days from the date of receipt of this letter failing which it will be presumed that he has nothing to say in his defence and final decision will be taken on merits.
5. We have given our thoughtful consideration to the contentions of the Learned Counsel but are of the firm view that disagreement note dated 1.12.2005 is not conclusive of the view expressed by the disciplinary authority. It is only tentative as it is clearly recorded in the note itself that a decision would be taken on merits on receipt of representation made by the applicant, if any. When the disciplinary authority may disagree with the findings or conclusion arrived at by the enquiry officer, it would have no option but to mention so and give reasons therefor as well, as surely, without holding or opining so, the disagreement note would be neither valid nor legal. If the reasons of disagreement are not recorded, surely the delinquent would never come to know as to why the findings returned by the enquiry officer in the view of the disciplinary authority are not correct, and, therefore, it would be well nigh impossible for him to make a meaningful representation. It is too well settled proposition of law that a disagreement note sans reasons is bad in law and has to be set aside on that ground. That being so, the mere recording of reasons for disagreement cannot be taken as if the disciplinary authority had already made up its mind. The Learned Counsel representing the applicant, for his contention as noted above, would, however, rely upon a judgment of the Delhi High Court in CWP No. 2665/2002 and 4593/2001 in the matter of Commissioner of Police v. Const. Pramod Kumar and Anr.
/Const. Jag Pravesh and Anr. , decided on 19.9.2002. The facts of the case aforesaid reveal that the enquiry officer exonerated the delinquents from the charges in terms of his report dated 15.6.1997.
The disciplinary authority disagreed with the findings of the enquiry officer. Upon recording his conclusion, the disciplinary authority issued a show cause notice, and on receipt of representation from the delinquents, inflicted a major punishment of permanent forfeiture of five years' approved service with cumulative effect upon them. The appeal preferred against the order of punishment was dismissed, thus constraining the delinquents to file an Original Application in this Tribunal. The Tribunal relying upon the decision of the Hon'ble Supreme Court in Yoginath D. Bagde v. State of Maharashtra agreed with the contention of the delinquents that in the notice to show cause the authority had arrived at a final conclusion, and the same was not a tentative one. The High Court extracted the findings recorded in the disagreement note and on the basis thereof held that the same was not tentative. The conclusion arrived at by the concerned authority in its disagreement note was also taken into consideration to arrive at the finding that the same was not a tentative one. Such is not the case in hand. The concerned authority after making mention of the reasons for disagreement, clearly recorded that the same were tentative and final conclusion would be arrived at only on receipt of representation that may be made by the applicant. The Learned Counsel also places reliance on some decisions of the Tribunal, but there would be no need to make detailed mention of facts of the said cases, as surely, whether the disagreement note is tentative or final expression of opinion, would depend upon facts of each case.
6. We find the second contention of the Learned Counsel, as noted above, with regard to illegality of the proceedings beyond the time fixed by the Tribunal in its order dated 8.8.2005 in OA No. 505/2005 to be equally devoid of merit. The concluding paragraph of the order passed by the Tribunal reads as follows: 6. Consequently, we quash the impugned orders and direct that, if deemed appropriate, the disciplinary authority may reconsider the facts and circumstances and pass such order, as may be deemed appropriate within three months from today. Applicant would be entitled to the consequential benefits.
Copy of the judgment recorded by this Tribunal in the OA aforesaid was received by the department on 19.8.2005. The orders passed by the disciplinary and the appellate authorities in consequence of directions issued by the Tribunal were quashed on 29.9.2005. Consequent upon decision to proceed against the applicant from the stage of submission of enquiry report, disagreement note was recorded on 1.12.2005.
Decision to proceed against the applicant afresh from the stage as mentioned above was thus taken within three months from the directions issued by this Tribunal. There is no mandate issued by this Tribunal that if the respondents were to proceed with the enquiry, the same also must be concluded within three months from the date of passing of the order. The direction, as mentioned above, was to reconsider the facts and to pass such orders as may be deemed appropriate. In all fairness to the Learned Counsel representing the applicant, we may mention that for his contention, the Learned Counsel relied upon a judgment of this Tribunal (Jaipur Bench) in H. S. Shekhawat v. Union of India and Ors.
[2004 (1) Administrative Total Judgments 458], which, in our view, has no parity to the facts of the present case. In the case aforesaid, the applicant was ignored for promotion pending departmental enquiry. He was constantly striving for justice, as the proceedings were dropped against him but yet another chargesheet was issued. In wake of the facts that the applicant was ignored for promotion on account of departmental proceedings which were not being concluded for number of years, a direction came to be issued to complete the enquiry within the stipulated time. It is in that context that observations came to be made by the Tribunal that once, specific time has been stipulated by the court of law for completion of disciplinary proceedings, the department is bound to complete the same within such time, otherwise the proceedings would be null and void. There would be no need to comment upon the observations made by the Jaipaur Bench, however, suffice it to say that the facts in the present case have no parity with the facts of the case before that Bench.
7. Before we may part with this order, we would like to mention that the applicant was married and had two children and a living spouse. The finding recorded by the disciplinary authority is that he married Nirmala Rani by falsely representing to her that he was a widower. The enquiry officer had returned a finding that the applicant had cohabited with Nirmala Rani, but the charge of deceitful marriage, criminal intimidation and extortion was not substantiated. Cohabitation of the applicant with Nirmala Rani when he had a living spouse would in itself be misconduct. The Hyderabad Bench of this Trubunal in OA No. 27/94 in its judgment dated 9.8.1994 had taken the following view while dealing with misconduct of an employee having sexual relationship with a woman not confined to legal wedlock: Though it would be ideal if sexual relationship is confined to legal wedlock, there is no law in our country which makes sexual relationship is confined to legal wedlock, there is no law in our country which makes sexual relationship of two adult individuals of different sex, unlawful unless the relationship is adulterous or promiscuous. If a man and a woman are residing under the same roof and if there is no law prohibiting such a residence, what transpires between them is not a concern of their employer. Such a life, if accepted by the society at large, without any displeasure or grudge, then it cannot be said that there is any moral turpitude involved in their living. In this case, there is no case that on account of the applicant living with Smt. K. R. Aruna, his reputation among the general public has been lowered or that, the public has been looking down on his conduct as immoral one. Therefore, even if factually, the allegation that the applicant who is already married to another woman is living with Smt. K. R. Aruna is proved to be true, we are of the considered view that, that alone will not justify a finding that the applicant is guilty of misconduct deserving departmental action and punishment.
The Hon'ble Supreme Court recorded its total disapproval of the above observation made by the Tribunal (Ministry of Finance and Anr. v. S. B.Ramesh ). That being so, even if, therefore, report of the enquiry officer as such is accepted, the applicant had indulged in the misconduct.
9. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.