By Hon’ble Mrs. Meera Chhibber, Member (J)
1. Both these OAs are being disposed of by a common judgment as they relate to the same incident, common inquiry was initiated, same arguments are advanced and even the counsel in both the cases are same.
2. The brief facts, as alleged by the applicants, are they were dealt with departmentally with the following allegations:-
“It has been alleged that SI Alam Singh No.D-2009 (PIIS No.29670067), HC Gopal Singh No.7571/DAP (Now 12145/DAP, PIS No.2888047), Ct. Suresh Chand, No.7603/DAP (PIS No.28891261), Ct. Kishan Pal Singh, No.2333/DAP (PIS No.28891343) and Ct. Rohtash Kumar, No.2601/DAP (PIS No.28902007) had been deputed to produce under trial prisoner Mohd. Imran @ Shiva S/o Rishalat Hussain R/o 101/290, Karnal Ganj Kanpur U.P. Lodged in Jail No.8, Central Jail Tihar New Delhi in the Court of ADJM Kanpur on 13.5.2008. After completing necessary formalities, the escort party took the custody of UTP Mohd. Imran from Jail No.8 on 11.5.2008 and reached Kanpur, UP by boarding over night train Reeva Express from New Delhi Railway Station. On 12.5.2008 the above said UTP was produced in the court of ADJM Kanpur in case FIR No.241/2006 under Section 364/302/201 IPC PS Karnal Ganj Kanpur UP. On 12.5.2008 the escort party boarded Shram Shakti train from Kanpur at 11.40 PM alongwith UTP for their return journey to New Delhi. SI Alam Singh devised a duty roster at his own in a plain paper vide which Ct. Suresh Chand, No.7603/DAP was given the custody of the UTP alongwith HC Gopal Singh No.7571/DAP from 12 mid night to 3.00 AM and Constable Kishan Pal Singh No.2333/DAP with Ct. Rohtash No.2601/DAP from 3 AM to 6 AM. When the train crossed the Yamuna Bridge in Delhi and was approaching Tilak Bridge Station, the train got slowed down near signal, the then UTP Mohd. Imran Khan @ Shiva wanted to go to the toilet. It was about 6 AM on 13.5.2008. Constable Kishan Pal No.2333/DAP who had the custody of the UTP alongwith Constable Rohtas No.2601/DAP took him to the toilet. All of a sudden, UTP Mohd. Imran @ Shiva gave a sudden jerk, pushed the Constable, freed himself and jumped from slow running train.
A telephonic information regarding the incident of the escape of this UTP was lodged with DO/IIIrd Bn. DAP by SI Alam Singh vide DD No.54-B dated 13.5.2008 at 1.50 PM. A case vide FIR No.165/2008 dated 13.5.2008 under Section 224 IPC, PS New Delhi was registered in this context on the statement of Constable Kishan Pal Singh No.2333/DAP.
For the above said lapse all the members of the escort party were placed under suspension and searching departmental enquiry was ordered vide No.5703-37/HAP (P-II)/III Bn. DAP dated 13.5.2008 and entrusted to Shri Surender Sharma ACP/III Bn. DAP who completed the enquiry and submitted his findings with the conclusion that the UTP escape occurred due to the negligence and carelessness of the whole escort party. The searching departmental enquiry was sent to Jt/CP/AP Delhi for seeking his approval under Rule 29 (3) of Delhi Police (Punishment and Appeal) Rules, 1980 vide office letter No.3169/HA/CandJ/Cell/III Bn. DAP dated 6.4.2008. In the meantime, SI Alam Singh No.D-2009 retired from the force on superannuation on 31.5.2008. After carefully examining the case the Jt/CP/AP Delhi accorded his approval dated 17.9.2008 to initiate a regular DE against the remaining Police Officials.
The above act on the part of HC Gopal Singh No.7571/DAP (Now 12145/DAP, PIS No.28880447), Ct. Suresh Chand No.7603/DAP (PIS No.28891261), Ct. Kishan Pal Singh, No.2333/DAP (PIS No.28891343) and Ct. Rohtash Kumar, No.2601/DAP PIS No.28902007) amounts to gross misconduct, negligence, dereliction in the discharge of their official duties which render them liable to be dealt with departmentally under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980”.
3.The Inquiry Officer gave his report concluding therein that the charge stands proved against all the delinquents (page 25 at 31) by observing as follows:-
“Considering the merits of every facts and circumstance with open mind, it is found that UTP Mohd. Imran escaped from the custody of escort party at 6.00 AM on 13.5.2008 when the train was approaching at the Tilak Bride station, New Delhi. Ensuring custody of UTP was primarily the duty of Constable Krishan Pal, No.2333/DAP and Constable Rohtash, No.2601/DAP under whose personal custody UTP was at the time of escape as per Chitha and they do not deny or contest their custody. Therefore they namely Constable Krishan Pal No.2333/DAP and Rohtash No.2601/DAP are found guilty of careless, negligence and dereliction of duty.
However, a member of escort party every one is supposed to be equally alert and dutiful. Though HC Gopal Singh, No.7571/DAP and Constable Suresh Chand No.7603/DAP were not having custody of UTP Mohd. Imran @ Shiva, had they been alert and vigil, escape of UTP Mohd. Imran @ Shiva could have been prevented. Therefore, they are found to be guilty of carelessness and negligence”.
Copy of the findings was given to the delinquents to give their representations. The disciplinary authority vide order dated 15.9.2009 dismissed all the 4 applicants (page 20 to 22). Being aggrieved, they had filed the appeal but the same had also been rejected vide order dated 27.1.2010 (page 16).
4. Both these orders have been challenged by the applicants on the ground that admittedly Sub Inspector Alam Singh In-charge of the escort party had prepared a roster while traveling from Kanpur to Delhi whereby Constable Suresh Chand along with Head Constable Gopal Singh were made responsible for the custody of UTP from 12 mid night to 3 AM and Constable Kishan Pal Singh with Constable Rohtash from 3.00 A.M. to 6.00 A.M. Counsel for the applicants thus submitted that since the custody of Under Trial Prisoner (hereinafter referred to as UTP) was given to Constable Kishan Pal Singh and Constable Rohtash from 3.00 AM to 6.00 A.M., therefore, Constable Suresh Chand and Head Constable Gopal Singh cannot be held responsible if the UTP had escaped at 6.00 A.M. on 13.5.2008.
5. He next contended that the team was headed by SI Alam Singh but no enquiry was initiated against him simply on the ground that he had retired on 31.5.2008. Departmental enquiry could have been initiated against him even after his retirement, but by letting him off, the applicants have been discriminated against.
6. He next contended that it is evident from summary of allegations that respondents had only sought approval of Jt. Commissioner of Police whereas Rule 29 (3) of Delhi Police (Punishment and Appeal) Rules, 1980 stipulates that the Jt. Commissioner should apply his mind to the facts of the case and record his reasons as to why departmental enquiry should be initiated, which has not been done in the instant case, therefore, it vitiates the whole enquiry. Counsel for the applicants strenuously argued that in these circumstances Section 223 of IPC would be attracted, therefore, it was necessary for the Jt. Commissioner of Police to record reasons as to why departmental enquiry should be initiated.
7. He further submitted that Rule 29 (3) is distinct from Rule 15 (2) of Delhi Police (Punishment and Appeal) Rules, 1980 where only the approval is to be sought whereas Rule 29 (3) requires that Jt. Commissioner of Police should record his reasons. Since a particular procedure was laid down in the rules, it ought to have been given effect to in the same manner. To buttress his argument, he placed reliance on Gurudevdatta VKSSS Maryadit and Others Vs. State of Maharashtra reported in 2001 (4) SCC 534 (para 26) and Bhavnagar University Vs. Palitana Sugar Mill ( P) Ltd. and Others reported in 2003 (2) SCC 111 (para 40).
8. He next contended that disciplinary authority had taken extraneous material into consideration, while passing the order of dismissal, namely, the letter written by the Railways, which was neither produced in the enquiry nor an opportunity was given to the delinquents to see the document, therefore, reliance on the said document vitiates the order passed by the disciplinary authority. Moreover, disciplinary authority had disagreed inasmuch as in the summary of allegations itself it was mentioned that the UTP got escaped from the train when it slowed down at Tilak Bridge whereas disciplinary authority has observed that the train had not slowed down. In case disciplinary authority disagreed with the summary of allegations, he ought to have given disagreement note, which, admittedly was not given in the instant case, therefore, on this ground also the order gets vitiated.
9. He next contended that none of the documents were proved in the enquiry, yet they have been relied upon. This also vitiates the enquiry.
10. In the end, counsel for the applicants submitted that degree of culpability had to be kept in mind while imposing the punishment but neither the disciplinary authority nor the appellate authority had considered this aspect of the matter whereas in other cases these facts were taken into consideration while imposing punishment on the other persons in such circumstances. To buttress this argument, he has placed reliance on the order passed by the authorities in the case of Constable Pramod Kumar No.7462/DAP (PIS No.28971618) (page 79).
11. Respondents have opposed this OA. They have stated from the perusal of Summary of Allegations, it is clear that the case was registered under Section 224 of the IPC whereas Rule 29 (3) talks about only of those situations where the case is filed under Sections 221, 222, or 223 of IPC. In these circumstances, it was not required for the Jt. Commissioner of Police to give his reasons. He could have initiated departmental enquiry in normal course.
12. As far as question of discrimination is concerned, counsel for the respondents stated that departmental enquiry has been initiated against SI Alam Singh also after following due procedure.
13. She further submitted that from the perusal of Summary of Allegations, it is clear that the incident had taken place at about 6.00 A.M. and not at 6.00 A.M., as is being suggested. Since the roster was only from 3.00 AM to 6.00 AM, so after 6.00 AM, all the persons were responsible to ensure that the UTP does not escape. In any case, roster even if prepared by the SI, did not mean that the others were not responsible for the safe custody of UTP. She referred to the statement of PW-6, i.e., Station Superintendent (page 29) who had stated that the train reached the station at 6.40 AM. The Railways letter had also stated that the train passed Tilak Bridge at about 6.25 AM, therefore, the contention of the counsel for the applicants that the custody of that particular person was from 3.00 A.M. to 6.00 A.M. cannot absolve them from their misconduct. She further submitted that the police personnel are trained persons, they were sent on duty to protect the custody of UTP. Even if it is accepted that the train had slowed down, they should have been more vigilant to ensure that the UTP did not escape. She further submitted that if the speed of the train was slow, it would have been easier for them to apprehend the UTP. It is not even disputed by them that the UTP, who was a hazardous criminal, had escaped while under their custody, therefore, they had rightly been given the punishment. She also submitted that no disagreement note was required because even the Inquiry Officer had held them guilty. Respondents have thus prayed that both the OAs may be dismissed.
14. We have heard both the counsel and perused the pleadings as well as the original record.
15. It is an admitted fact that an escort party consisting of Head Constable Gopal Singh, Constable Suresh Chand, Constable Kishan Pal Singh and Constable Rohtash Singh headed by SI Alam Singh was deputed to produce the UTP lodged in Jail No.8 Central Jail Tihar, New Delhi in the court of ADJM Kanpur on 13.5.2008. It goes without saying that when an escort party is detailed to take the safe custody of the UTP and to bring him back, it is the responsibility of each and every member of the escort party to be fully alert, vigilant and behave in a responsible manner so that the UTP does not escape en-route. It is also not disputed that the UTP escaped in spite of 5 members escort party having been detailed thus the charge stands proved.
16. We also do not find any procedural lapse either in conducting the enquiry or the reasoning given by authorities while imposing the punishment. Let us examine the contentions of applicants.
It is submitted by the counsel for the applicants that documents were not proved yet relied upon by the IO. This contention is wrong because records show that following documents were listed with the Summary of Allegations:-
“1.Enquiry Report dated 28.5.2008 of Shri Surender Sharma ACP/Adjt. III Bn. DAP.
2. Copy of Handcuff register on 11.5.2008.
3. Original Command Certificate 12.5.2008.
4. Out station Command Certificate dated 12.5.2008.
5. Copy of DD No.14A dated 11.5.2008, DD No.54-B dated 13.5.2008, DD No.2A dated 14.5.2008, DD No.34-B dated 11.5.2008, DD No.7-B dated 11.5.2008.
6. Copy of Court production dated 12.5.2008.
7. Copy of Parcha Talvi - ADJ-II Kanpur dated 15.5.2000.
8. Copy of Warrant No.762/2007.
9. Copy of FIR No.165/2008 dated 13.5.2008 u/s 224 IPC PS New Delhi Railway Station, New Delhi”.
The list of witnesses shows Shri Surender Sharma, Assistant Commissioner of Police who had given the report of searching departmental enquiry was a prosecution witness who had given his statement in the enquiry and had proved the enquiry dated 28.5.2008. Similarly Head Constable Sish Ram had proved the advance advance outstation command certificate whereby SI Alam Singh, Head Constable Gopal Singh, Constable Suresh Chand, Constable Krishan Pal and Constable Rohtash Kumar had to produce the UTP Mohd. Imran in Kanpur Court vide DD No.14-A after taking him from the Central Tihar Jail, New Delhi. He had also stated that the escort party was required to comply with the instructions given in the Command Certificate, according to which, the escort party was required to take maximum precaution, during the travel time and at the time of production in the court. It was also stated by Tilak Raj, Warden that he had handed over UTP Mohd. Imran to Head Constable Gopal Singh for production in the court of ADJM, Kanpur, UP on 12.5.2008. He had obtained signature of Head Constable Gopal Singh for having received the said UTP. Similarly Constable Subash had stated that he had issued handcuff to Constable Suresh Chand on 11.5.2008 after satisfying himself that he had to go on duty for production of UTP at Kanpur. An entry at Sl.No.12 in handcuff register dated 11.5.2008 was made by him which was counter signed by Constable Suresh Chand as token of having received the handcuff. Against this it was mentioned that handcuff has not been returned because UTP had escaped with handcuff. Similarly Head Constable Rajesh Kumar had stated in the enquiry that on 13.5.2008 vide DD No.54-B, at 1.50 PM, SI Alam Singh informed DO/VPL on telephone that UTP Mohd. Imran had escaped from the custody of escort party at about 6.00 A.M. from the running train from Shahdra Railway Station along with handcuff while they were coming back to Delhi by Shram Shakti Express from Kanpur. He had also stated that SI Alam Singh had recorded his arrival from Kanpur vide DD No.2A dated 14.5.2008 at 12.30 A.M. These DDs were thus produced by him. In reply to the cross examination this witness had specifically stated that he was on duty on 13.5.2008 and had also stated that he attended the telephone call given by SI Alam Singh who told him that UTP had escaped. It is also relevant to note that Shri Ramesh Chand, Station Superintendent, New Delhi, Railway Station had also appeared as a witness in the departmental enquiry who had stated that Shram Shakti Express Train No.2451 which arrived at New Delhi Railway Station from Kanpur enters Delhi from Anand Vihar and reached New Delhi Railway Station via Tilak Bridge. It had neither stopped at Anand Vihar nor at Tilak Bridge. He had specifically stated that this train does not pass through Shahdra Railway Station. On 13.5.2008 the train had followed the same official route. In reply to cross examination, he had stated the train had reached the station at 6.40 A.M. on 13.5.2008. The above facts clearly show the relied upon documents were proved in the enquiry. From above, it is clear that the first DD entry, which was recorded by SI Alam Singh was absolutely wrong because Shram Shakti Express Train did not even pass through Shahdra Station, which according to the DD Entry 54-B was the point where the UTP had escaped. It also shows that the Station Superintendent was also a prosecution witness in the enquiry and an opportunity was given to the delinquents to cross examine all the witnesses. In view of above, the allegation of the counsel for applicants that the documents were proved without examining the witnesses, is wrong and is rejected. The IO had given a finding that the charge is proved against all the delinquents. Copy of the enquiry report was duly given to all the delinquents for giving representation and they were heard in the OR also. Thus no procedural lapse in conducting the enquiry is found in the present case because full opportunity was given to the applicants at all stages to defend themselves.
17. Counsel for the applicants argued vigorously that Rule 29 (3) of Delhi Police (Punishment and Appeal) Rules, 1980 has been violated in this case inasmuch as Rule 29 specifically deals with escape of prisoner from police custody. Under Rule 29 (3), the Additional Commissioner of Police was required to record reasons as to why departmental enquiry should be initiated against the delinquents whereas in the instant case respondents have only sought approval from the Joint Commissioner of Police which vitiates the whole enquiry because approval is distinct from taking a definite decision. Approval is mentioned in Rule 15 (2) of Delhi Police (Punishment and Appeal) Rules, 1980 whereas in Rule 29 (3) the requirement is that the Additional Commissioner should decide by recording reasons as to why departmental enquiry should be initiated. According to the counsel, the case would be covered under Rule 223 of the IPC.
18. We have applied our mind to this contention and find that Rule 26 to 30 of the Delhi Police (Punishment and Appeal) Rules, 1980 deal with suspension of subordinate ranks in different circumstances. The Heading of Rule 29 is “suspension in cases of escape of prisoners from police custody”. We are concerned with Rule 29 (3) here which can broadly be divided in 4 parts. (i) If searching departmental enquiry establishes negligence or connivance of UTP creating a presumption that an offence under Section 221, 222 and 223 of IPC has been committed, the police officer shall be prosecuted in a criminal court. The exception, however, is that if Additional Commissioner of Police decides otherwise, the officer shall be dealt with departmentally. (ii) The second part of this Rule states if the searching departmental enquiry establishes breach of discipline or misconduct not amounting to an offence under any of the sections of IPC mentioned above, the case shall ordinarily be dealt with departmentally. (iii) The third part of the Rule is the criminal prosecution of an upper subordinate shall not be undertaken without the sanction of the Additional Commissioner of Police. (iv) How such a person should be dealt with is also mentioned in the ivth part which suggests dismissal or removal from service shall normally follow a judicial conviction, for finding of guilt in a departmental enquiry for negligence resulting in the escape of a prisoner.
19. From above, it is clear that the exception has to be read with the first and third part as explained above, namely, whether the concerned police officer shall be prosecuted in a criminal case or not because in third part, it has been explained that the criminal prosecution of an upper subordinate shall not be undertaken without the sanction of the Additional Commissioner of Police.
20. The object of this rule is that the subordinate rank police officials should not unnecessarily be prosecuted in a criminal case unless it is sanctioned by the Additional Commissioner of Police. The reason is obvious because in Delhi Police Dy. Commissioner of Police deals with the public and lower subordinates in day to day functioning. It is possible that the Dy. Commissioner of Police may be biased against some subordinates because of getting daily inputs or complaints/reports etc. against them from public, therefore, in order to check that the Dy. Commissioner of Police does not get influenced by the daily or regular inputs or reports or complaints, it was decided that for prosecuting a subordinate in a criminal case, sanction should be taken from the Additional Commissioner of Police, who is next in the hierarchy above the Dy. Commissioner of Police. Therefore, the thrust of this rule to take sanction of the Additional Commissioner of Police for lodging a criminal case.
21. Even otherwise perusal of the record show that the searching departmental enquiry gave its report with the following conclusions:-
“From the above discussion, it is crystal clear that all the above members of the escort party failed to ensure proper safety of the UTP Mohd. Imran @ Shiva. They took the custody of this dangerous UTP in a very casual manner. Knowing the facts that this UTP was a previous escape, they diverted from the normal course of the guidelines because of which this UTP escaped from the lawful custody due to the negligence and carelessness on the part of the whole escort party consisting of SI Alam Singh, No.D-2009, HC Gopal Singh No.7571/DAP, Ct. Suresh Chand, No.7603/DAP, Ct. Kishan Pal Singh, No.811/NE (now 2333/DAP) and Ct. Rohtash Kumar, No.3824/T (now 2601/DAP).”
22. From above, it is clear the tenor of conclusion nowhere established commission of an offence under Section 223 but it suggested the escort party failed to ensure proper safety. In fact, no case under Section 223 was registered but case was registered against the accused under Section 224 of First part of Rule 29 (3) would not be attracted. It is the second part of Rule 29 (3) which would be attracted, namely, that if the searching departmental enquiry establishes a breach of discipline or misconduct not amounting to an offence under any of the sections of the IPC mentioned above, the case shall ordinarily be dealt with departmentally. It is relevant to note here that no criminal case was registered against the delinquents. The ACP had given his report after recording statements of 12 police officers including the Station Superintendent recording therein that the UTP was a dangerous criminal and extreme precaution should have been taken on the way. He had specifically noted that the Out Station Production Register maintained in the Central Jail Tihar, New Delhi showed two things very clearly, namely, (a) that the UTP is dangerous and extreme precaution should be taken on the way and (b) the UTP had already escaped from custody and a case FIR No.55/2007 under Section 223/224/120-B IPC already stands registered against him. He had further noted that the above fact was known to the party because this register was signed by constable Gopal Singh of the escort party. He had also noted that from the statement of Constable Kishan Pal and Constable Suresh it is clear that while being taken to the toilet, just prior to the escape, Constable Kishan Pal was holding the handcuff of the UTP in his hand and Constable Rohtash was behind him whereas Constable Kishan Pal should have placed his handcuff in his uniform belt which is a serious lapse. Similarly Constable Rohtash instead of walking behind Constable Kishan Pal should have gone ahead of him and blocked the exist door near the toilet. Since it was known to all the guard party that he had already escaped previously also and he is a dangerous criminal, the other guard members should have assisted these two constables and blocked all the exit ways. Had they been in their proper place, the escape could have been prevented. It is also noted that though escape had taken place at about 6.00 A.M., the information was given by SI only at 1.50 P.M. on 13.5.2008 after a delay of about 8 hours. It was also noted in this report that though SI Alam Singh had reported that UTP had escaped from Shahdra Railway Station at about 6.00 A.M. but Shram Shakti Express does not pass through Shahdra Railway Station, which fact was clarified by the Station Superintendent, Shri Ramesh Chand of New Delhi Railway Station. Thus in this enquiry no offence as such was established but a case of misconduct was made out on the ground that they did not follow the guidelines and were careless and negligent in their duty, therefore, in these circumstances, it was not required of the Additional Commissioner of Police to record any reasons for ordering initiation of DE.
23. It is further relevant to note that the above said Assistant Commissioner of Police was examined as a PW in the departmental enquiry but no questions were put to him to demolish the findings recorded by him. It is thus clear that the searching departmental enquiry had found them guilty of the misconduct and also breach of discipline because they did not follow the guidelines which ought to have been followed by him. In these circumstances, para (2) of Rule 29 (3) as explained above, would be attracted, according to which the case was ordinarily to be dealt with departmentally. Since the UTP had escaped, as an abundant caution, the matter was referred to the next higher authority, who approved departmental enquiry against the 4 delinquents which has not caused any prejudice to the applicants. Perusal of the file shows that the authority had applied its mind before approving the departmental enquiry. It is, therefore, wrong to suggest that Rule 29 (3) has been violated which would vitiate the enquiry. This contention is, therefore, rejected.
24. Counsel for the applicants next contended that admittedly SI Alam Singh was left out even though he was heading the escort party only on the ground that he had retired in the meantime but retirement does not preclude initiation of a departmental enquiry. The applicants have thus been discriminated against inasmuch as no action has been taken against SI Alam Singh. Though in the counter affidavit this aspect has not been dealt with but perusal of the departmental file shows that initially the Special CP had given the remarks “no departmental enquiry can be ordered against the retired person” but subsequently the matter was examined and it was found that DE can be initiated against SI Alam Singh also as such permission of Govt. of NCT of Delhi was required to be taken. In view of the above, DCP on 31.10.2011 ordered departmental action against SI (Alam Singh) No.D/2009 under Rule 9 of CCS (Pension) Rules.
25. From above, it is clear that departmental action has been initiated against SI Alam Singh also simply because departmental enquiry is being initiated against SI Alam Singh subsequently, it would not make the orders bad in law as against applicants specially when the charge against the delinquents stands fully proved. It is mentioned in Rule 29 (3) itself that if a person is found guilty of escape of the UTP, dismissal or removal from service shall normally be imposed for such negligence.
26. Counsel for the applicants next contended that the relative degree of responsibility has not been appreciated by the authorities. In order to substantiate his argument he relied on order dated 12.4.2007 passed in the case of one Constable Parmod Kumar. Even otherwise the authorities failed to appreciate that the in-charge SI Alam Singh had prepared a roster of duties while travelling back from Kanpur to New Delhi under which from 12 mid night to 3.00 A.M. Head Constable Gopal Singh along with Constable Suresh Chand and from 3.00 A.M. to 6.00 A.M. Constable Kishan Pal Singh with Constable Rohtash were responsible for the custody of the UTP. Since the UTP had escaped at 6.00 A.M., Head Constable Gopal Singh and Constable Suresh Chand cannot be held responsible with the same degree as Constable Kishan Pal Singh and Constable Rohtash, who were having the responsibility of safe custody of the UTP. This contention is noted to be rejected because all the 5 persons were detailed on an escort duty to ensure that the UTP is taken to the ADJM’s Court at Kanpur and brought back to the Central Jail Tihar, New Delhi in a safe custody and does not escape enroute. Even if it is admitted that SI Alam Singh had prepared a roster, the roster would be only to ensure convenience of the escort party. This roster would not mean that while the responsibility was fixed for 2 persons, the others would be absolved of their responsibility. It was not mentioned in the roster that the other two persons would not be responsible for the safe custody of the UTP. In any case, as per their own version, the duties were distributed only from 12 mid night to 3.00 A.M. and from 3.00 A.M. to 6.00 A.M. Would it mean that after 6.00 AM no one would be responsible for the safe custody of the UTP? The answer is obviously no. It goes without saying that the very purpose of sending an escort party of persons to ensure safe custody of the UTP so all were equally responsible. Moreover, it is not as if the UTP had escaped exactly at 6.00 A.M. On the contrary, the allegation is that he escaped about 6.00 A.M. About 6.00 A.M. could mean either before or after 6.00 A.M. also. Even otherwise it is relevant to note that in the letter received from Divisional Operation Manager(Coaching), Delhi dated 19.8.2009 addressed to the Dy. Commissioner of Police, it was clearly mentioned that that Shram Shakti Express Train No.2451 from Kanpur to New Delhi passed from Tilak Bridge station at 6.25 A.M. on 13.5.2008. It was further mentioned that neither the train had slowed down or stopped at Tilak Bridge station. Since this letter was issued in official capacity, we, therefore, have no reason to doubt the correctness of same. In view of above, it cannot be accepted that the UTP had escaped at 6.00 A.M. sharp, as is being suggested by the counsel for the applicants. Admittedly, after 6.00 A.M. it was the duty of all the members of the party to be alert, vigilant and careful. At about 6.00 A.M., full day emerges in the month of May. Since applicants were fully aware that the UTP is a dangerous criminal and had escaped earlier also from the custody, they should have taken extra care, if the UTP wanted to go to the toilet at around 6.00 A.M. when admittedly train was about to reach the New Delhi Railway Station. The very purpose of sending the party of 5 persons with the UTP was to ensure his safe custody so that he does not escape again. If only the delinquents had taken extra care to stand on the door, it would not have been possible for the UTP to escape from the running train. The very fact that in spite of escort party consisting of 5 persons, the UTP escaped from the custody, it shows, they were not alert or vigilant in their duties. In any case, since all the 5 persons constitute the escort party, they were all equally responsible for the safe custody of the UTP. Since it is not even disputed by the applicants that the UTP escaped while under their custody, the charge stands proved against all the delinquents. In these circumstances, no case is made out for interference by the Tribunal. This contention is also rejected.
27. Counsel for the applicants next contended that while passing the order dated 15.9.2009, disciplinary authority had taken into account extraneous material inasmuch as he had referred to the letter written by the Divisional Operation Manager whereas this letter was never shown to the delinquents, therefore, the penalty order gets vitiated for having taken extraneous material. He further submitted that the disciplinary authority had observed that the train neither slowed down nor stopped at the Tilak Bridge while in the Summary of Allegations it was mentioned that train slowed down at Tilak Bridge. Since disciplinary authority had given a different finding with regard to the running of the train, as such disciplinary authority ought to have given a disagreement note before imposing penalty. Not having done so, the order becomes bad in law. This contention is also wrong because it is not only in the letter written by the Divisional Operation Manager that the timing of the train had been mentioned but it was stated even by the Station Superintendent, Ramesh Chand, who had appeared as a prosecution witness in the departmental enquiry that the train Shram Shakti Express had reached New Delhi station on 13.5.2008 at 6.40 A.M. The train had not passed through Shahdra Railway Station. It had neither stopped at Anand Vihar nor at Tilak Bridge, therefore, it cannot be stated that any extraneous material had been taken into consideration by the disciplinary authority which did not form part of the enquiry. Instead of referring to the statement of Station Superintendent, if disciplinary authority has referred to the letter written by the Divisional Operation Manager dated 19.8.2009, it makes no difference. Crux of the letter written by the Divisional Operation Manager and the statement given by the Station Superintendent, Shri Ramesh Chand, who appeared as a witness in the departmental enquiry, are almost the same. In any case, whether the train was running slow or was fast is not at all relevant. The charge against the delinquents is that the UTP had escaped from their custody from the train. This aspect is not even disputed by the delinquents, therefore, even if there are some abrasions in the noting of the facts and circumstances in the order of the disciplinary authority, it would not vitiate the enquiry or the order of the punishment. The IO had also held the charge stands proved against the delinquents so has been held by the disciplinary authority. Simply because disciplinary authority had noted the train had not slowed down, it did not require a disagreement note as alleged by the counsel for the applicants. This contention is also rejected.
28. Counsel for the applicants next contended that degree of culpability had to be kept in mind while imposing the punishment as was done in other cases. To substantiate his case he had placed reliance on the order passed in the case of Constable Prem Kumar. Perusal of the order at page 79 shows the escort party was detailed to escort two Juveniles from Observation Home whereas in the instant case applicants were escorting a hazardous criminal who had escaped earlier also from the police custody, therefore, they cannot compare their case with the case of escape of a Juvenile. After all, each case has to be decided on the basis of the facts of that case. In the instant case since all the 4 delinquents were responsible for the escape of said UTP from their custody, they were all equally responsible for the custody of UTP. It cannot be said that one was more responsible than the other because they had gone as an escort party, therefore, each would be equally responsible. This contention also does not have any merit. The same is accordingly rejected.
29. In view of above discussion, we find no good ground to interfere in this case. The same is accordingly dismissed. No order as to costs. Let a copy of this order be placed in both the files.