1. Having its roots in a complaint made by one Shri Ashok Mittal and his wife against Constable Mohinder Singh, the late husband of Smt.
Santoshi Devi, the applicant herein, and Constable Chander Bhan on 7.5.1989, this case has rather a chequered history. The prolonged litigation spanned over a period of about nineteen years, it is the complaint of the applicant, had serious repercussions on her husband who was first driven to insanity and then to the disease of Tuberculosis, and ultimately to his death.
2. On the complaint of Ashok Mittal and his wife, a departmental enquiry against the two constables named above culminated into their removal from service. The joint Original Application filed by them in this Tribunal resulted in setting aside the impugned order with liberty to the respondents to initiate de novo enquiry. The respondents instead carried on with the same enquiry from the stage of defence, but ultimately both the constables were inflicted with punishment of withholding of one increment. Insofar as, Mohinder Singh, the husband of applicant is concerned, he did not agitate the matter further.
Chander Bhan, however, challenged the order of punishment, as mentioned above, in yet another Original Application, in which this Tribunal while adversely commenting upon the procedure adopted by the respondents in continuing the same enquiry from the defence stage reiterated its earlier direction of starting de novo enquiry. The respondents applied this order on both Chander Bhan and Mohinder Singh and the de novo enquiry this time resulted into their dismissal from service. Once again, Chander Bhan alone challenged the said order vide yet another Original Application, in which this Tribunal directed the respondents to reconsider the quantum of punishment. Pursuant to directions given by this Tribunal the respondents forfeited nine years' approved service of Chander Bhan, without dealing with the case of the applicant's husband. In other words, the order dismissing the applicant's husband from service remained intact. The applicant through her Learned Counsel has a serious complaint against the order of dismissal of her husband. It is urged that in any case the respondents cannot be permitted to take contradictory stands inasmuch as, when the applicant may plead that in consequence of the order passed by this Tribunal in the second OA filed by Chander Bhan the respondents could not resort to de novo enquiry against her husband as well, the respondents would contest the matter on the ground that even though in the OA filed by Chander Bhan when the impugned orders, which were common, were set aside, they could proceed against the applicant's husband as well, and when the applicant would contend that if that be the position in law, the benefit of the order passed by this Tribunal in the third OA should also be granted to her husband as well, the respondents would contest it by saying that the order was passed in the OA filed by Chander Bhan only. This conduct or attitude on the part of the respondents, Learned Counsel representing the applicant seriously contends, would not only be wholly illegal and contradictory in terms but would also be misleading and dishonest.
3. With a view to determine the plea raised by the Learned Counsel representing the applicant, as noted above, it would be useful to give the history of the case insofar as the same may be relevant in the context of submissions made by the Learned Counsel.
4. A complaint came to be lodged by Ashok Mittal that Const. Chander Bhan and Const. Mohinder Singh had misbehaved with him and his wife at about 2300 hours on 7.5.1989 at Man Singh Road/ Rajpath crossing and demanded Rs. 500/- failing which they threatened to book Ashok Mittal, who, apprehending danger to himself and his wife, handed over Rs. 500/- to them. Disciplinary enquiry was ordered against both the constables by DCP/New Delhi vide order dated 21.6.1989 under Rule 15.2 of the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980). The enquiry officer, after completion of the enquiry, held both the constables guilty of the charge. The disciplinary authority accepting the report of the enquiry officer, ordered their removal from service vide order dated 12.12.1990. The appeal preferred by them was dismissed on 23.4.1991. A joint OA bearing No. 1647/1991 came to be filed by both the constables. After considering the facts of the case, the Tribunal quashed the order with liberty to the respondents to initiate de novo enquiry, if so advised.
The operative part of the Tribunal's order reads as under: In the result these two OAs succeed and are allowed on the ground that the EO while conducting the departmental proceedings which resulted in the infliction of the impugned penalty had assumed the role of both judge as well as prosecutor and thereby the departmental proceedings were vitiated. The impugned orders are quashed and set aside. The respondents will, however, be free to initiate de-novo enquiry, if so advised, in which case the period since removal from service of the applicants will be dealt with as per rules applicable. No costs.
The respondents challenged the order of this Tribunal by filing SLP (C) No. 5726-27/1996 in the Hon'ble Supreme Court, which was dismissed by recording the following order: We have examined the original records. We see no ground to interfere with the impugned judgment of the Tribunal. The Tribunal has given option to the petitioner to have fresh enquiry against the respondents. The Special Leave Petitions are dismissed.
It is the case of the applicant that the respondents, despite dismissal of the SLP filed by them, refused to comply with the directions issued by this Tribunal, constraining Mohinder Singh to file a contempt petition, and it is only then that he was reinstated in service and the period of suspension from 8.5.1989 to 11.12.1990 and the period of out of employment from 12.12.1990 to 7.8.1996 was to be decided later on.
It is further the case of the applicant that the respondents instead of dropping the whole proceedings or conducting de novo enquiry as per the liberty granted, continued with the previous enquiry from the defence stage. Mohinder Singh submitted to the said proceedings, even though under protest. Inspr. B. S. Rana was appointed as enquiry officer on 15.11.1996 to conduct the enquiry from the defence stage. He, however, acted as a prosecutor when he cross examined the defence witnesses. Be that as it may, the enquiry officer found Mohinder Singh as innocent.
He mentioned in his report that the opinion of legal adviser may be sought with regard to legality and validity of the enquiry from the defence stage, when the proceedings were quashed by this Tribunal, and which order was even upheld by the Hon'ble Supreme Court. It is the case of the applicant that in spite of seeking opinion on the report of the enquiry officer, the disciplinary authority arbitrarily changed the enquiry officer and ordered Inspr. Mahesh Kumar to prepare a report on the said enquiry. Inspr. Mahesh Kumar also did not conduct the enquiry but went through the entire file and submitted his report on 24.10.1997 drawing the following conclusion: Keeping in view the above discussion covering deposition of DWs and particularly the defence statement of defaulters, I am of the view that the procedural points raised by the defaulters carry more weight. Hence the charge against Constable Mohinder Singh No. 403/ND and Constable Chandra Bhan No. 403/ND cannot be proved due to serious procedural lacunas.
Disagreeing with the findings of the enquiry officer, the disciplinary authority again remitted the enquiry to the enquiry officer for considering certain points and submitting findings afresh in view of some clarifications. In the meantime, the enquiry officer was transferred from New Delhi District to East District as SHO/Gandhi Nagar, and as such, the enquiry was entrusted to Inspr. Raj Singh. He prepared the findings and submitted the same holding both the constables guilty of the charge framed against them. Accepting the report, the disciplinary authority punished the two constables with withholding of one increment for a period of one year without having effect on future increments, and their period of suspension was treated as not spent on duty and unemployment period during removal was also treated as dies non, vide order dated 5.10.1999. The appeal filed by the constables was rejected by the appellate authority vide order dated 3.3.2000. Chander Bhan alone challenged the orders by filing OA No.2508/2001 in this Tribunal, which was allowed vide order dated 28.8.2002 on the ground that despite a clear and unambiguous direction given by this Tribunal, instead of starting de novo enquiry, the enquiry officer again fell into grave error by starting the same from the defence evidence of the applicant. The respondents were given liberty, if deemed appropriate, to initiate de novo enquiry, as already permitted by the Tribunal in its earlier order dated 7.9.1995. In compliance of the order aforesaid, the orders of disciplinary and appellate authorities in respect of both Chander Bhan and Mohinder Singh were quashed and set aside by the concerned authority without prejudice to the de novo enquiry. Vide order dated 24.12.2002, Deputy Commissioner of Police, New Delhi District, ordered de novo enquiry against both the constables from the prosecution stage. The enquiry officer vide his report dated 30.5.2003 concluded that the charge against the constables stood proved. It is the case of the applicant that her husband Mohinder Singh submitted detailed representation to the Deputy Commissioner of Police on 15.7.2003 vide diary No. 484/54R, wherein it was pleaded that he could not have been proceeded against in de novo enquiry. When the circumstances stood so, Mohinder Singh became mentally depressed. He fell seriously ill and was under treatment of psychiatry department, RML Hospital w.e.f. 23.9.2003 under Dr. Dipayan Roy (MD), Senior Resident, Psychiatry. Copy of the OPD card dated 23.9.2003 has been annexed with the Application as Annexure-X. It is the case of the applicant that without considering any of the points raised by Mohinder Singh, an order inflicting punishment of dismissal from service was passed vide order dated 11.11.2003 (Annexure-III). The appeal preferred against the order aforesaid was dismissed on 30.1.2004. The applicant pleads that the appellate authority did not consider the points raised by her husband. It was specifically mentioned in the appeal that once he had not challenged the earlier orders when he was inflicted with the punishment of stoppage of one increment, there was no occasion to proceed against him. The condition of the applicant's husband meanwhile became very serious. He was taken to psychiatry department of RML Hospital again on 5.12.2003 and Dr.
Dipayan Roy advised complete rest for one month and prescribed psychiatric medicines, as would be evident from Annexure-X. Husband of the applicant then fell seriously ill and could not manage his own affairs. In addition to the psychiatric illness, he became completely weak bodily also, and one of his illnesses was diagnosed in June, 2004 as TB. He underwent treatment of TB as well. The TB treatment card dated 23.6.2004 has been placed on record as AnnexurXII. Mohinder Singh never recovered thereafter and died on 19.10.2005. The proof of his treatment from Rao Tularam Memorial Hospital, Jaffarpur, New Delhi has also been placed on record as Annexure-XIII (collectively). Chander Bhan, meanwhile, challenged the order of his removal from service when he filed OA No. 1910/2004 in this Tribunal. Vide order dated 13.5.2005, while quashing and setting aside impugned orders, the Tribunal remitted the case to the disciplinary authority to reconsider the penalty imposed on the charged constable. Pursuant to the directions issued by this Tribunal, as mentioned above, Chander Bhan was inflicted with the punishment of forfeiture of nine years' service and was reinstated in service vide order dated 19.8.2005. Even though, the pleadings and the points raised thereupon are numerous, there would be no need to give further details of the facts, as at this stage, the contention of the Learned Counsel as noted above, is limited to one mentioned in opening para of the judgment.
5. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. The facts on which the contentions as above have been raised by the Learned Counsel representing the applicant are not at all in dispute. We may, however, mention the part of pleadings made in the counter reply which is relevant to the issues raised in the Application and canvassed during the course of arguments. It is pleaded that this Tribunal in the second OA filed by Chander Bhan alone, bearing No. 2508/2001 vide judgment dated 28.2.2002 held that 'the OA is allowed on the grounds that despite a clear and unambiguous direction given by the Tribunal instead of starting a de-novo enquiry, the enquiry officer fell into a grave error by starting the same from the defence evidence of the applicant'. The Tribunal further directed that if deemed appropriate, the respondents may initiate de novo enquiry as already advised in terms of the direction of the Tribunal vide order dated 7.9.1996. In compliance of order dated 28.2.2002 passed by the Tribunal in OA No. 2508/2001, order dated 5.10.1999 of the disciplinary authority and order dated 3.3.2000 were quashed and set aside by DCP/New Delhi District, vide order dated 24.12.2002 and de novo enquiry was ordered. On the pleadings as mentioned above, Shri Luthra, Learned Counsel representing the respondents contends that even though, OA No. 2508/2001 might have been filed by Chander Bhan only, but once the orders impugned therein were common to Chander Bhan and Mohinder Singh, the de novo enquiry had necessarily to be conducted against both. Insofar as not according the same treatment to Mohinder Singh as was meted out to Chander Bhan pursuant to the directions issued in the third Application (OA No. 1910/2004) filed by Chander Bhan (second by him alone) and not giving the benefit to Mohinder Singh by the order that came to be passed with regard to Chander Bhan in consequence of the said order, is concerned, it is pleaded that Chander Bhan had approached this Tribunal when he filed OA No. 1910/2004 against the order of dismissal dated 11.11.2003 and rejection of the appeal dated 30.1.2004, but Mohinder Singh did not approach the Tribunal against these orders. This Tribunal vide its judgment dated 13.5.2005 in OA No. 1910/2004 had set aside the order of the disciplinary authority in respect of Chander Bhan only and remitted the case to the disciplinary authority for reconsidering any penalty other than dismissal. Thereafter, the case was referred to Law Department of the Government of NCT of Delhi for seeking legal opinion, and upon receipt of the same, vide letter dated 8.5.2005 conveyed by PHQ vide endorsement dated 10.8.2005, the order of dismissal passed by the disciplinary authority on 11.11.2003 as well as order dated 30.1.2004 passed by the appellate authority, so far as the same related to Chander Bhan, were quashed and set aside and he was reinstated in service, vide order 19.8.2005. Chander Bhan, as mentioned above, was inflicted punishment of forfeiture of nine years' approved service.
6. We have heard the Learned Counsel representing the parties and with their assistance examined the records of the case.
7. It is clear from the pleadings made in the counter reply read with contentions raised by Shri Luthra, Learned Counsel representing the respondents, that the respondents would defend their action of proceeding against Mohinder Singh as well even though, the orders to do so by conducting de novo enquiry came to be passed on the OA filed by Chander Bhan alone, for the reason that the orders challenged by Chander Bhan were common to him and Mohinder Singh, and once, they were set aside and de novo enquiry was ordered, the respondents would have no choice but to proceed against both. It is also clear from the pleadings and the contentions raised by Shri Luthra that when the orders of dismissal from service pursuant to de novo enquiry came to be passed against both the constables, and once Chander Bhan alone filed an OA, which was disposed of with direction to reconsider the quantum of punishment, the consequential relief pursuant to directions with regard to reduction in punishment by forfeiture of nine years service came to be recorded only in respect of Chander Bhan, as it is in his case only that the directions came to be issued, even though the order which was, once again, subject matter of challenge before the Tribunal by Chander Bhan, was common. We are of the firm view that the respondents have contested the cause of the applicant, the widow of Const. Mohinder Singh, on wholly untenable, illegal and unjustified grounds. The stand taken by the respondents while defending their action on both occasions when orders came to be passed by this Tribunal in OAs filed by Chander Bhan alone, are contradictory and indeed border on dishonesty.
8. The first sentence of the judgment of this Tribunal in OA No.2508/2001 filed by Chander Bhan alone, reads as under: Applicant Chander Bhan is aggrieved by the order of the Deputy Commissioner of Police. By virtue of the said order, a punishment of withholding of one increment for a period of one year without affecting future increments had been imposed.
The Tribunal after recording the submissions of the Learned Counsel representing the applicant with regard to direction given in the earlier OA No. 1647/1991 for de novo enquiry, reproduced the relevant part of the earlier order as follows: In the result these two OAs succeed and are allowed, on the ground that the E.O., while conducting the departmental proceedings which resulted in the infliction of the impugned penalty, had assumed the role of both judge as well as prosecutor, and thereby the departmental proceedings were vitiated. The impugned orders are quashed and set aside. The respondents will however be free to initiate a de novo enquiry, if so advised, in which case the period since removal from service of the applicants will be dealt with as per rules applicable. No costs.
The Tribunal then noted that it was unfortunate that despite clear and unambiguous direction given by the Tribunal instead of starting de novo enquiry, the enquiry officer again fell into grave error by starting the same from the defence evidence of the applicant. The operative part containing the directions reads as follows: Resultantly, the present OA is allowed. It is directed that if deemed appropriate, the respondents may initiate de novo enquiry as already advised in terms of the direction of this Tribunal dated 7.9.1995. No costs.
It is significant to mention that the Tribunal clearly recorded that Chander Bhan was aggrieved of the order inflicting punishment of one increment for a period of one year without affecting future increments.
The OA was allowed and the direction that ultimately came to be issued was that the respondents may initiate de novo enquiry, if deemed appropriate. The reading of the entire order would show that there is no mention of the impugned orders being set aside or quashed. Despite the position being as such, the respondents would plead and the counsel would urge that inasmuch as, the orders impugned in the OA were common to Chander Bhan and Mohinder Singh, the same having been set aside, the respondents would have no choice but to proceed against both Chander Bhan and Mohinder Singh. In the third OA (second filed by Chander Bhan alone) bearing No. 1910/2004 decided on 13.5.2005, the Tribunal after repelling the main contention raised on behalf of the applicant, came to consider the quantum of punishment. It may be recalled that when pursuant to the directions given by this Tribunal in the first OA No.1647/1991 jointly filed by Chander Bhan and Mohinder Singh, the enquiry that proceeded resulted into punishment of withholding of one increment. When, however, Chander Bhan alone challenged the said order, the de novo enquiry that commenced, culminated into an order of dismissal from service. It is in that context it was urged in the third OA (2nd OA filed by Chander Bhan alone) bearing No. 1910/2004 that the drastic fluctuation in the award of punishment was not understandable.
On the contention aforesaid, the Tribunal observed thus: 20. However, in the case in hand, we find that the set of charges leveled against the applicant has remained the same all through, i.e., at the time of the award of punishment of removal from service and subsequently, when it was ordered for withholding of one increment temporarily for a period of one year without any effect on future increments and now when the order of dismissal has been passed. Maybe, it is so because the persons exercising the power of disciplinary authority have been different at different times. This drastic fluctuation in the award of punishment prompts us to believe that there should not be such a drastic variation for the same set of charges in the inquiries held at different times. Further, the Learned Counsel for applicant has argued on this point and has submitted that the extreme penalty of dismissal in the peculiar background of the case deserves to be interfered with especially keeping in view the fact that earlier the applicant had been awarded the punishment only of withholding of one increment temporarily for a period of one year without any effect on future increments.
21. In this view of the matter, therefore, while we quash and set aside the impugned orders, we remit the case back to the disciplinary authority to re-consider whether any penalty other than dismissal would meet the ends of justice. This may be done within a period of three months from the date of receipt of a copy of this order.
9. Even though, the orders impugned in the second OA No. 2508/2001 (first filed on behalf of Chander Bhan alone) which were common to Chander Bhan and Mohinder Singh, were not set aside, the respondents would yet treat the same to be so and proceed not only against Chander Bhan but Mohinder Singh as well. When, however, the third OA nearing No. 1910/2004 (second by Chander Bhan alone) was disposed of and the impugned orders, which too were common to both, were specifically set aside, the respondents would accord benefit of the same only to Chander Bhan.
10. In the facts and circumstances of this case, we are of the considered view that the respondents committed patent illegality, writ large on the face of record. Having held so, the question that still needs to be answered is as to what course should be followed. Should this Tribunal set aside the impugned orders and direct the respondents to treat Mohinder Singh at par with his co-delinquent Chander Bhan, or while setting aside the orders, the Tribunal should confirm order dated 5.10.1999 passed by the disciplinary authority inflicting punishment of withholding of one increment for one year, which was confirmed by the appellate authority vide order dated 3.3.2000. Having pondered over the issue, we have come to the conclusion that we need to choose the second course, as that would be in consonance with law. Orders dated 5.10.1999 and dated 3.3.2000 passed by the disciplinary and the appellate authorities inflicting punishment of withholding of one increment for one year, insofar as Mohinder Singh is concerned, had attained finality. They were not subject matter of challenge by Mohinder Singh nor the punishment suggested therein was ever thought to be interfered by the authorities themselves. Chander Bhan alone had challenged those orders and the benefit or otherwise of that judgment can be relatable only to him. The Tribunal while dealing with OA No. 2508/2001 (second in series and first on behalf of Chander Bhan alone) clearly mentioned that Chander Bhan was aggrieved of the order inflicting punishment of withholding of one increment for one year. The orders impugned by him as such were not set aside. Legally or technically speaking, thus, the said orders could not be made applicable to Mohinder Singh, the late husband of the applicant. This is the precise view that has been taken by none other than the respondents on legal advice, when the third OA No. 1910/2004 (second by Chander Bhan alone) came to be disposed of by this Tribunal. That is indeed the correct view and had to be followed, particularly when Mohinder Singh when alive was taking that position, specifically mentioned in his representation to disciplinary authority and his appeal challenging the order dated 11.11.2003, and by the applicant when she made a representation after his death. It is unfortunate that the respondents at no stage even dealt with the same.
11. Before we may part with this order, we may deal with one of the preliminary objections which alone has been raised during the course of arguments on behalf of the respondents. It is stated that the present Application is barred by limitation as per provisions contained in Section 21 of the Administrative Tribunals Act, 1985. The pleaded and uncontroverted facts reveal that during pendency of the de novo enquiry commenced pursuant to orders passed by this Tribunal in OA No.2508/2001 filed by Chander Bhan, the applicant became insane and a patient of Tuberculosis. He died on 19.10.2005. He was not in a position to challenge the orders in such a terrible mental and physical position. On his demise, his widow moved a representation which dismissed on 20.4.2006. It is not the case of the respondents that the present OA is beyond the period of limitation prescribed under Section 21 of the Administrative Tribunals Act, from the date of rejection of representation. That apart, as a matter of abundant caution, the applicant has filed MA No. 437/2007 seeking condonation of delay, if the same may be involved in filing the present Application. The mental and physical state as also the death of the applicant's husband has been mentioned therein. The same need not be reiterated. The respondents have filed reply to the said application wherein it has been pleaded that the applicant has failed to substantiate the plea of mental state of her late husband as alleged by her, and furthermore, even though some documents have been annexed with the OA indicating that the deceased was under treatment of TB, but the said reason cannot justify non-availing of the legal remedy within time by the deceased husband of the applicant, and, therefore, the averments made in the application are afterthought and concocted. The applicant has indeed placed on record documentary proof of mental and physical state of her husband, as also his death certificate. The application contains more than sufficient cause for condoning the delay, if any.
12. For the reasons mentioned above, this Application is allowed.
Impugned order dated 11.11.2003 passed by the disciplinary authority and the one passed by the appellate authority on 30.1.2004 inflicting the punishment of dismissal from service are quashed, and orders dated 5.10.1999 and dated 3.3.2000 passed by the disciplinary and the appellate authority inflicting punishment of withholding of one increment for one year, are restored. Since it is the case of the applicant that the impugned orders have resulted into starvation for self and family, we order that the consequential reliefs that may accrue to the applicant as the widow of late Mohinder Singh, a constable in Delhi Police, be accorded to her as expeditiously as possible, and not later than two months from today.