| SooperKanoon Citation | sooperkanoon.com/55121 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Jan-16-2007 |
| Judge | M K Gupta, A A V.K. |
| Appellant | insp. Ishwar Singh S/O Shri Bhim |
| Respondent | Govt. of Nct of Delhi Though the |
3. Challenge is made to order dated 25.06.2004 passed by Additional Commissioner of Police, Security, New Delhi, inflicting punishment of forfeiture of five years approved service by deferment of increment permanently, which in turn has been upheld by appellate authority vide order dated 7.3.2005. Total 12 security personnel including applicants herein Inspectors Ishwar Singh, ASIs Diwan Chand & Balwant Bhai) were jointly proceeded against departmentally on the allegations that they miserably failed to prevent an unauthorized person to climb the dais and reach in the close proximity of the VVIP by breaking the security cordon during the function of National Awards organized by the Ministry of Human Resources Development held at the Convention Hall, Ashoka Hotel, New Delhi on 11.05.2001. These three applicants and others were members of Ring Round Team (hereinafter referred to as RRT). They were served with following charge memo: I, Sunil Garg, DCP/Security (PM) charge you Inspector Ishwar Singh, No. D-634, SI Lal Bahadur, No. D/2577, SI Nag Bhushan, D/3287, SI Rajeshwar Singh, No. 169/D, ASI Om Prakash, No. 3967/D, ASI Diwan Chand, 288/D, ASI Balwant Bhai, 2570/Sec., ASI Kalu Ram, 299/D, ASI Sansar Pal, 2594/Sec., HC Chand Singh, 29/Sec., Ct. Dharam Dev, 1404/Sec. That 'on 11.5.2001, Technology Day function to give away the national awards was organized by Ministry of Human Resource Development at Convention Hall, Ashoka Hotel, New Delhi. The Hon'ble Vice President of India arrived at place of function at 11.00 hrs.
and was received by Dr. Murli Manohar Joshi and Others and was conducted to dais. After lighting of lamp, invocation and address by Dr. Muril Manohar Joshi and others and was conducted to dais. After lighting of lamp, invocation and address by Dr. Murli and introduction of national awardees by the Secretary, the awardees were given awards for Technology Development Board, Science Technology Entrepreneurship Park and Biotech Awards by the Hon'ble Vice President of India. Thereafter, the Vice President launched a Car titled 'REWA' which was kept at a distance of 20-25 yards on the right side of dais. After launching the car, the Vice President was again conducted to dais. Suddenly, one person whose identify was later confirmed as Sandeep Jaidka threw a pastry on the face of Dr.
N.K. Sharma, MD/NRDC who was sitting in the 2nd row of central wing.
Thereafter, he climbed the stairs from center and reached the dais.
He gave one leaflet to the Vice President of India and another to Dr. Murli Manohar Joshi and shouted that derserving persons are being denied awards. He climbed down the dais from stairs and came out of the Convention Hall where he was nabbed by Security Police and was handed over to Local Police for necessary action.
The RR Team consisting of 6 Security personnel SI Nagbhushan, D/3282, SI Rajeshwar, 169/D, ASI Diwan Chand, 2288/D, ASI Balwant Bhai, 2570/Sec., ASI Kalu Ram, 2399/D and ASI Sansar Pal, 2594/Sec.
were also deployed under the supervision of Inspector Ishwar Singh for carrying out A.S. Check of Venue and after that to provide close protection to the VVIP during movement from Alighting Point to dais and back including other places, if any. The RR Team was to ensure that no unauthorized person gains access near the VVIP during the stay at the place of function including movement and at dais. They were also required to ensure that neither any media man nor any unauthorized persons is allowed access on the dais under any circumstances. The RR Team Staff was present in the close proximity of the VVIP, i.e. dais, but none of them had reacted to apprehend Sandeep Jaidka, who not only pasted the cake on the face of Shri N.K. Sharma but also distributed leaflets and climbed stairs when there was hardly any place for anyone to climb the dais. As such, they miserably failed to prevent an unauthorized person to climb the dais and reach in the close proximity of VVIP by breaking the security cordon. On enquiry, it was found that Mr. Jaidka had entered the Ashoka Hotel from Main Porch on Niti Marg. He entered the lobby of Hotel and went to Convention Hall through right side gallery leading towards entry from Panchsheel Marg and thereafter reached near Access Control located near glass gate, which is located at a distance of about 10 yards from alighting point. He entered the Convention Hall along with some Scientists while he was not having any Invitation Card. At around 11.20 hrs. he went to Pastry Shop located near the Coffee Shop and purchased a cake weighing = kg for Rs.177/- and came back through the same route. The Security personnel SI Lal Bahadur, ASI Om Prakash, HC Chand Singh and Ct. Dharam Dev allowed him and thus acted in a most negligent manner, whereas they were well aware that eatables were not allowed in as per laid down security norms. They also failed to inform the Sector Incharge as well as ACP I/C arrangement about the cake.
From the above, it is clear that staff deployed at Access Point have acted in a most negligent manner by allowing the cake in contravention of laid down security norms that eatables are not allowed inside. The RR staff miserably failed to prevent an unauthorized person to climb the dais and reach in the close proximity of the VVIP by breaking the security cordon which was a grave security lapse ion their part. The above act on their part amounts to gross negligence, carelessness and dereliction in the discharge of their official duties, which renders them liable to be dealt with departmentally under Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980.
4. An oral enquiry was held and on completion of said enquiry conducted under Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980, the Disciplinary Authority imposed aforesaid penalty, which had been affirmed by Appellate Authority rejecting the statutory appeal preferred by them. Being aggrieved by said orders, applicants instituted present OAs.
5. The basic grounds, on which aforesaid orders have been assailed, inter alia, are that departmental enquiry stood vitiated as the Inquiry Officer without jurisdiction and power amended the list of witnesses during the course of departmental enquiry, which caused great prejudice. The Inquiry Officer can call an additional witness only as a Court Witness & that too only after the defence statement has been submitted with an intention to clarify the facts deposed by PWs, but under no circumstance, can amend the list of PWs. Furthermore, no definite charge had been framed. On the contrary, the charge levelled was totally vague, unclear and unspecific since no act of negligence or dereliction of duty on part of applicants was specified. Statements of PW-2 and PW-3, namely, S/Shri S.S. Manan and O.P. Gautam, which were taken into consideration, could not have been relied upon since said witnesses were equally responsible for security lapse, if any.
Furthermore, said witnesses were interested parties and were liable to be dealt with departmentally as co-delinquents. In addition thereto, it is a case of no evidence and not a single witness deposed against applicants. The charge relating to throwing of cake on the face of Dr.
N.K. Sharma, MD, NRDC by one Shri Sandeep Jaidka did not amount to act of indiscipline as he came on the dais from the side of the stage from where the awardees were entering and the access to the stage was not handled by the RR Team. It was applicant, who pounced over Sandeep Jaidka and caught hold of him and handed over to local Police for appropriate action. Thus applicant discharged his duty in a most efficient manner and cannot be held responsible for any negligence.
Findings recorded by Inquiry Officer are vitiated for reasons that provisions of Section 138 of Delhi Police Act have been completed over-looked. Authorities had not taken into account the distance between the VVIP and the applicant on the day of function. Inquiry Officer recorded findings without assigning any reason. Furthermore, the concerned authority failed to appreciate that each individual in the RR Team is performing a specific job and a failure on the part of a single person in the discharge of his duty, which is specified, the entire team cannot be blamed for misconduct. He had not been held liable for lack of supervision, which was not either a charge or part of the charge framed against him.
6. Respondents contested the allegations made by applicants and resisted the plea raised by them. The RR Team consisted of six security personnel, who were deployed under the supervision the applicant (Insp.
Ishwar Singh) for carrying out A.S.- check of the venue and after that to provide CPT to the VVIP during movement from alighting point to dais and back including other places, if any. The said team was employed to ensure that no unauthorized person gains access near the VVIP during stay at the place of function including movement. The team members were also required that neither any media men nor any unauthorized person had access on the dais in any circumstances. The RR Team staff was present in close proximity of the VVIP, i.e. the dais. There were a number of flower pots kept on the front stairs and as such there was hardly any place for any one to climb on the dais. As such the said team miserably failed to prevent an unauthorized person (Sandeep Jaidka) to climb on the dais and reach in close proximity of the VVIP by breaking security cordon, which was a grave security lapse on their part. Respondents in their counter affidavit rebutted the allegation that findings of enquiry authority were without any evidence or perverse or disciplinary / appellate authorities did not properly appreciate the enquiry report and the evidence on record. The appellate authority concluded that punishment awarded to all of them was justified and commensurate with gravity of misconduct committed.
Reasonable opportunity of hearing was provided to each of them and proceedings were conducted in accordance with provisions of rules in vogue. The plea taken by applicants in their defence statements and representations against findings of Enquiry Officer were taken into consideration while imposing punishment and the punishment imposed was justified based on testimony of PWs, DWs and other materials brought on record. Shri Paldan, Add. DCP (HQ) who conducted the PE in the present case was examined as PW-4 in presence of applicants and they were also allowed to cross-examine said PW. Thus, the plea raised that there was infraction of rules in examining said PW is neither valid nor the E.O.had violated any provisions of rules and regulations. Shri Jaidka not only pasted the cake on the face of Shri N.K. Sharma, but also distributed leaflets and climbed on the dais breaking security cordon, which is a gross negligence, carelessness and dereliction in discharge of official duties. Applicants contention that Shri Sandeep Jaidka did not do any act of indiscipline is far from truth and is totally baseless and unjustified. Applicant is trying to shift responsibility on the shoulder of other Police Officers, which may mitigate his misconduct. He cannot be allowed to escape from his responsibility as supervisor of RR Team. His contention that every member of RR Team had definite and specified duties and he was not responsible for any negligence, carelessness and dereliction of duty, is unjustified. Since there was a common enquiry and a common punishment order was passed by Disciplinary Authority after analyzing all aspects of case and contentions raised therein, there is no scope for judicial interference and, therefore, it was prayed that OAs deserve to be dismissed.
7. Shri Ajesh Luthra, learned Counsel appearing for respondents vehemently contended that as two members of the Team had filed a common OA No. 1504/2005 challenging orders which are the subject matter of present proceedings, and which OA had been dismissed vide order dated 03.11.2006, applicants are entitled to be treated similarly and said order dated .3.11.2006 be equally applied in the facts and circumstances of present cases.
8. We have heard learned Counsel for the parties and perused the pleadings on record including order dated 03.11.2006 passed by a Coordinate Bench of this Tribunal in OA No. 1504/2005 Rajeshwar and Anr. v. Govt. of NCT of Delhi and Ors.
9. Before proceeding further, it would be expedient to notice the manner in which aforesaid OA had proceeded after noticing the facts and contentions raised by the parties. Relevant paragraphs 6 to 12 reads thus: 6. We have heard the learned Counsel for the parties and have perused the record.
7. It is now well settled that the scope of the power of judicial review is vested in this Tribunal is not very large. In exercise of power of judicial review, the Tribunal reviews the deficiencies in the decision making process and not the decision itself. The Tribunal does not act as an appellate authority and does not appreciate the evidence or consider its adequacy or inadequacy. The Tribunal will not interfere with the decision of the administrative authority simply because the decision is not correct in the eye of the Tribunal. It may interfere with the order if there are material irregularities in the procedure followed which have caused prejudice to the delinquent in his defence or the principles of natural justice have been violated, i.e. the free and fair treatment and hearing has not been provided to him. The Tribunal may also interfere where the decision of the authority is not based on evidence or it is perverse. The Tribunal may also interfere with the order if some extraneous material has been taken into account or the order has been passed on the dictates of some superior authorities.
The Hon'ble Supreme Court elaborately discussed the courts powers of the judicial review and in disciplinary proceedings in the case of B.C. Chaturvedi v. U.O.I. and Ors. and in para 12 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
8. In the background of the above principles of law, we may now examine the facts of the present case. Though the applicants in their OA at places have alleged that the finding of the Enquiry Officer was not based on any evidence or it was perverse, but has not been able to substantive this allegation. In the OA itself the applicants have admitted that one of the two PW-2 had supported the case of the department though another witness PW-3 had made a contradictory statement. The applicants have tried to highlight the discrepancy in the statements of PW-2 and PW-3 and have submitted that the statement of PW-2 was not credit worthy. But he has forgotten that the Tribunal is not hearing an appeal, therefore, will not be able to appreciate which of the two witnesses PW-3 or PW-2 was speaking the truth or whether the testimony of PW-2 who is supporting the allegations made in the charge should or should not be believed. It is the job of the appellate authority and not the scope of the judicial review to appreciate or reappreciate the evidence recorded during the enquiry. In the OA the applicants have also alleged that one of the witness PW-4 who had conducted the preliminary enquiry has been examined but has not mentioned that the copy of the preliminary enquiry report was served on them. It is not the law that only the witnesses, which have been cited or the documents, which have been mentioned in the list annexed to change memorandum alone, could be relied upon and used in the enquiry.
Additional witnesses or documents could be produced but the principles of natural justice should be observed before new evidence is taken into consideration. In this case it cannot be said that no opportunity was given to the applicant to meet the new evidence or any prejudice has been caused to the applicant by examining PW-4.
9. The applicants have also submitted that Sandeep Jaidka, the person who made unauthorised entrance into the dais and is the basis of this departmental proceeding, has been examined by these applicants as their witnesses in defence. Applicants have tried to find contradiction and discrepancies between the statement of the departmental witnesses to prove his allegation that the charges were not correct and there was no security lapse or dereliction of duty or lack of devotion to duty on the part of these applicants. We are afraid this Tribunal in its power of judicial review will not be able to appreciate the evidence which has been produced by the respondents and the applicants and should record its own finding to reach to a different conclusion. The enquiry authority has appreciated the entire evidence and has reached a finding with which the disciplinary authority and the appellate authority have agreed.
The Tribunal will not find it possible to substitute the findings by recording its own finding on appreciation of the evidence.
10. Learned Counsel for the applicants has drawn our attention to the sketch of the dais, Annexure-E to the OA and has shown the position of the applicant No. 1 and the applicant No. 2 which are marked by figure 10 and figure 1 encircled and it is fervently argued that the PSOs of the VVIPs, the Hon'ble Vice President and Human Resource Development Minister, who were positioned just behind the VVIPs, have not been proceeded in a departmental proceeding and further that the applicant No. 1, who was standing on one side whereas the entry point to the dais was at place No. 7 which is far away from him, could not be accused of not reaching promptly. In fact, the argument of the learned Counsel for the applicants is that the individual position of the PSOs has not been discussed at all.
We do not find any substance in this argument since the applicants were members of the RRT who were deployed for protecting the dais from intrusion by any unauthorized person. They had the joint liability and if they fail to protect the dais and stop unauthorized entry into it, they as members would be responsible for it and they cannot absolve themselves of the liability on the ground that any of them was standing at a distance from the place from where some persons had made the entry into the dais. The team has a joint responsibility and an individual could be absolved only if it could be established that any of the team members had clandestinely entered into some conspiracy and facilitated the intruder's entry into the dais without the knowledge and act of omission and commission of the others. It is a case where members of RR Team were jointly responsible. When the responsibility of the team was joint, individual position of the applicants would not have made any difference.
11. The learned Counsel for the respondents has referred to the order of this Tribunal dated 12.7.2005 in OA 1470/2005 filed by one ASI Om Prakash but he was not a member of the RR Team.
12. In view of the above discussion we hold that OA has no merit. It is dismissed but without any order as to costs.
10. A perusal of aforementioned judgment would establish that contention raised by applicants that findings of the Inquiry Officer were based on no evidence or perverse has been rejected. Similarly, examination of PW-4, who conducted preliminary enquiry, was not found to be illegal merely for the reason that his name did not figure in list of witnesses annexed to Charge Memorandum. Moreover, we find justification in the contention raised by Shri Ajesh Luthra, Ld.
Counsel that Full Bench of this Tribunal in Ex. Head Constable Vijay Singh and Ors. v. Union of India and Ors. 1997-2001 A.T. Full Bench Judgments 340, after noticing the rule position in Delhi Police as well as the law laid down on said subject besides other rules like CCS (CCA) Rules and Railway Servants (Disciplinary & Appeal) Rules observed that mere omission of naming a witness in the list of witnesses does not preclude the prosecution to examine a witness at a later stage when his deposition is found necessary in the interest of justice. Rule 16 (viii) of Delhi Police (Punishment & Appeal) Rules, 1980 permits the inquiry officer to examine additional witnesses, who were not named in the list of witnesses, who are called 'court witnesses', to clarify the evidence of the witnesses who are named in the list of witnesses. The Full Bench further observed that if the matter is considered in the aforementioned aspect, in each case it has to be seen whether any grievance was made by the applicant during the entire enquiry before the final order was passed, before the enquiry officer or before the disciplinary authority, whether he was handicapped for cross examining the witnesses or for any other reason on the ground that the brief details of the evidence were not supplied or even before the appellate or the revisional authorities any such complaint was made. It should be seen whether the applicant had, in fact, cross examined the witnesses.
The Full Bench also observed that the requirement of supplying brief details of evidence to be led by the prosecution witnesses together with the lists of prosecution witnesses is not a mandatory requirement but is directory. It is not in dispute in present cases that applicants had cross-examined said PW-4 and at no point of time raised the objection/grievance about any handicap in examination of such person.
It was not either established as to what prejudice was caused to them by examination of PW-4.
11. Applicants' further contention that PW-2 and PW-3 were not proceeded against departmentally although they were fully responsible for the incident in question, did not find favour from the Coordinate Bench. In normal circumstances, when challenge is made to the proceedings by some of the persons, who were proceeded departmentally, out of a large number of persons involved therein, the outcome of their cases & findings recorded are equally applicable or extendable to co-delinquents. But in certain circumstances, different grounds and contentions may be raised by other parties. There is no requirement of rule or law that all persons involved in same incident would not be covered or governed by a decision taken by competent authority like Tribunal or Court in respect of one person merely because different/distinct contentions are raised by others. In the given factsw and circumstances, it may become necessary to address additional and different grounds raised in subsequent proceedings. In our considered opinion, the distinction sought to be made by Shri Sachin Chauhan and Shri Arun Bhardwaj, learned Counsel for applicants to the judgment of Coordinate Bench of this Tribunal in Rajeshwar and Anr v.Govt. of NCT of Delhi and Ors in OA 1504/2005 (supra) is misplaced and cannot be accepted as the basic ground for which said OA was dismissed had been that this Tribunal in its power of judicial review will not be able to appreciate the evidence which has been produced by Respondents and Applicants. Furthermore, court cannot recast its own findings to reach a different conclusion. We are in agreement with the Coordinate Bench that the enquiring authority appreciated the entire evidence and had reached a finding with which the disciplinary and appellate authorities agreed to. The Coordinate Bench of the Tribunal, in specific, recorded a finding that applicants had the joint liability and if they fail to protect the dais and stop unauthorized entry into it, they as members would be responsible for it and they cannot absolve themselves of the liability on the ground that any of them was standing at a distance from the place from where some persons had made the entry into the dais. The team has a joint responsibility xxxxxxxx. This finding is applicable to co-applicants also. Shri Sachin Chauhan, learned Counsel also tried to draw distinction stating that SI Usha Rani had been absolved by the disciplinary authority and, therefore, different treatment was meted out to them. Shri Ajesh Luthra, learned Counsel for respondents rightly pointed out that SI Usha Rani was not a part of RR Team and, therefore, her case is not comparable with applicants.
12. In view of the discussion made hereinabove, we do not find any reason and justification in applicants' contentions. The Coordinate Bench judgment in OA No. 1504/2005 dated 03.11.2006 rendered in similar facts and circumstances arising out of same incident is binding upon us. Therefore, we hold that there is no merit in these Applications and accordingly OAs are dismissed. No costs.