Shishu Pal vs Govt. Of NCTD And Ors

S.N. Terdal, J

We have heard Mr. Sachin Chauhan, counsel for applicant and Mrs. Sumedha Sharma counsel for respondents, perused the pleadings and all the documents produced by both the parties.

Applicant has filed this OA, thereby praying for the following reliefs:

"i) To set aside the impugned order dated 19.4.10 whereby the major punishment i.e. forfeiture of four years approved service permanently entailing proportionate reduction in his pay from Rs.10,840/-to Rs.9,620/- with immediate effect is imposed upon the applicant at A-2 and order dated 12.10.12 whereby the appeal of the applicant is rejected by the Appellate Authority thus causing great prejudice to the applicant at A-3 and to further direct the respondents that the forfeited years of service be restored as it was never forfeited with all consequential benefits including seniority and promotion and pay and allowances.

ii) To set aside the finding of enquiry officer A-4.

iii) To set aside the order of initiation of D.E dated 30.11.10 at A-1.

Or/and

iv) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."

The relevant facts of the case are that for not keeping the stock register and distribution register up to date and not maintaining expenditure register in spite of giving sufficient time and for not obeying the orders of the superiors, a summary of allegation was served on the applicant. The said summary of allegation is extracted below:

"It is alleged against HC Shishu Pal, No.5/OD that while working in General Branch (G-1) dealing with the purchase/stationary store and General Store items etc. Since the record of his seat was found incomplete for making/disposal of such items in the relevant stock Register ever since the creation of this Distt. He was given time again and again, was asked by HAG/OD to complete his record. When HC Shishu Pal failed to abide with the directions of HAG, he was onwardly directed by Inspr./ Admn., ACP/HQ and Addl. DCP/OD on various occasions, verbally as well as in writing to complete his record. The details of such written directions are as under:

Sl.No.

Directed by

Vide No & Date

1.

HAG/OD

14520-21/Genl/OD dt.24.03.08

2.

INSPR./ADMN/OD

15263-64/OD dt.28.03.08

3.

HAG, INSPR.ADMN, ACP/HQ A.DCP/OD

On his leave application on 23.04.08

4.

ACP/HQ

22628/Genl.(I) dt.23.05.08

The HC instead of completing his record took one pretext or the other that he would be completing such record by 31.03.08 and again stated that he would be doing so after availing three days C.L. as per his statement on 23.04.08. But all gone in vain and Inspr. Admn. forwarded his application with his above statement to ACP/HQ stating that the HC has already been afforded three opportunity to complete his record, right from 26.03.08 to 23.05.08 but in spite of giving him sufficient time about two months, he could not complete his job and was transferred to Complaint Branch for his such insubordination and dereliction to his duty.

During the course of enquiry statement of Sh.Vinod Kumar Inspr. Admn. SI Rajender Singh etc. taken, which revealed that HC Shishu Pal No. 5/OD was posted as I/C Stationery Cum Purchasing Clerk in HAG Branch/OD on 14.09.07. After creation of Outer Distt. On 11.1.08 SI Rajender Singh was Posted as HAG/OD, after assuming the charge when he checked the Stock Register and Distribution Register maintained by HC Shishu Pal, the entries were found incomplete and HC Shishu Pal did not make any Expenditure Register which was prepared to enter about details of the purchasing bills. This matter was brought into the notice of Inspr.Admn., ACP/HQ and Addl. DCP/OD also. In this regard the HC was directed vide letter Nos.(1) 14520-21/Genl.OD dated 24.03.08 by HAG, (2) 15263-64/HAG-OD dated 28.03.08 by Inspr.Admn., (3) On his leave application on 23.04.08 by ACP/HQ A.DCP/OD and (4) 22628/Genl.(1)/OD dated 23.05.08 by ACO/HQ.

Subsequently, HC was transferred to HAC Branch/OD vide order No. 7814-24/Estt (1)/OD dated 19.04.08 and he was directed to hand over the charge of Stationery Store to ASI Tej Prakash. On 23.04.08 HC applied for 3+2 days C.L. on which he was directed by HAG to complete the entries in Stock and Distribution Register and prepared Expenditure Register. On which HC requested that he would complete the entries in registers after arrival from CL. That written assurance of the HC was forwarded to Inspr. Admn. Who also forwarded after giving note that despite three opportunities given to complete entries in the registers of Stationery Store. HC could not do so. On which ACP/HQ forwarded his assurance to Addl.DCP/OD mentioning therein that HC has not handed over his charge before completing the registers, he first completely hand over the charge and Inspr.Admn. to ensure it and submit a report in this regard. HC can apply C.L. after that. In addition ACP/HQ issued a letter No. 22628/Genl.(1) OD dated 23.05.08 in which he again directed HC Shishu Pal to complete the entries in HAG Br. From 26.05.08 but during that period he could not complete the entries. Stock-cum- nDistribution register checked randomly and found incomplete some of the photocopies obtained.

HC Shishu Pal, No. 5/OD did not complete the entries in Stock Register, Distribution Register and also did not maintain Expenditure Register. Inspite of the above said written directions by the senior officers; he neither completed his record on one pretext or the other nor followed the directions/order of the senior officers. He wasted an opportunity of two months period for completing the record from 26.03.08 to 23.05.08. It shows that he took the directions/order of the senior officers in a casual manner and he is in habit of insubordination to senior officers.

The above act on the part of Shishu Pal N. 5/OD amounts to grave misconduct, negligence, carelessness, dereliction in discharging of his official duties, professional incompetence and unbecoming of a police official which render him to liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules-1980."

Alongwith the summary of allegation, list of documents and list of witnesses were also served on the applicant. Subsequently, as per the rules, an Inquiry Officer was appointed to conduct the enquiry. The Inquiry Officer following the procedural rules and principles of natural justice conducted the enquiry proceedings and taken the deposition of 6PWs and discussed the deposition and defence statement given by the applicant and came to the conclusion that the charge leveled against the applicant was proved vide his enquiry report dated 6.10.2009. The relevant portion of the Enquiry Report is extracted below:

"... From the deposition of above independent PWs it is categorically proved that the delinquent H.C (Min.) Shishu Pal, No. 5/OD was asked verbally and well as through written communications by senior officers to complete the Stock Register, Distribution Register of stationery articles, which also includes non standard articles and also to prepare the Expenditure Register but he failed to complete the task on one pretext or other. In last he was directed vide letter No. 22628/G(I) dated 23.5.2008 to complete the record failing which disciplinary action will be initiated against but all in vain. Accordingly the instant departmental enquiry was initiated against him for not completing the record. The averments of the delinquent H.C. in his defence statement are considered in depth but the same are not found satisfactory. His claim that the deposition of ASI Tej Prakash about not giving the charge of non standard stationery item is not the part of allegations is rebutted on the grounds that he was posted as I/C Stationery and Purchase Clerk during the relevant time. He was responsible for maintenance of Stock Register and Distribution Register relating to Standard as well as Non Standard stationery articles. As per deposition of PW-3 ASI Tej Prakash the delinquent H.C. has handed over the charge of other Standard Stationery Articles and Computer articles to him on 23.4.2008 as per Stock and Distribution Register. However the delinquent H.C. refused to give the charge of other stationery articles (i.e. non standard stationery articles) on one pretext or other despite giving ample opportunities to him. If as per contention of the delinquent H.C. he had given the charge of Stationery Store then for which stationery store he was seeking time for completion of record. The official dealing with the purchase/stationery store and General Store items etc. is responsible to maintain both Standard and Non Standard stationery store. But the delinquent H.C. though handed over the charge of Standard Stationery articles including computer items but he failed to complete the record of Non Standard Stationery Articles. The delinquent H.C. was also responsible for preparation of Expenditure Register in which the Bills of purchased item are required to be entered date wise but he failed to do so. For argument sake if his contention that in other Distt./Unit expenditure register is being prepared by Accounts Branch is to be believed then also he should have brought the matter to the notice of senior officers at the initial stage but he neither do so nor prepared the Expenditure Register at his own sweet will. The contention of the delinquent H.C. that after transfer from General Branch to Complaint Branch he never requested for providing time (for handing over the charge) and it is not mandatory that once a person is relieved on transfer to other Branch will be coming back to complete his previous pending records itself speaks that he was not interested to complete the record. Otherwise, it was his prime duty to complete the record of his all stationery store including non standard stationery items well before his relieving to other Branch.

In view of the above detailed discussion with reasoning on defence pleas taken by the delinquent, corroborations made by PWs and other material evidence placed on the D.E. file it is proved beyond doubt that delinquent H.C. Shishu Pal, No. 5/OD did not complete the entries in Stock Register. Distribution Register in respect of Non Standard Stationery Articles and also failed to maintain Expenditure Register in spite of verbal and written direction by the senior officer time to time.

Conclusion The charge framed against delinquent H.C (Min.) Shishu Pal, No. 5/OD is stands fully substantiated during the D.E. proceedings."

The disciplinary authority after considering the representation of the applicant with respect to enquiry report and hearing the applicant personally in the orderly room passed a reasoned order imposing a penalty of forfeiture of four years approved service permanently entailing proportionate reduction in his pay from Rs. 10840/- to Rs.9620/- with immediate effect vide order dated 19.04.2010. The relevant portion of the said order dated 19.04.2010 is extracted below:

".... I have carefully gone through the statements of PWs, findings of E.O., defence statement and other material brought on DE file. The Charged Officer was also heard in Orderly Room, where he did not adduce any fresh plea, which he has already taken in his written representation. He has mainly contended that ASI Tej Prakash No 188/D has stated regarding not taking of charge of Non standard stationery items, which is quite baseless in view of the allegations made in the D.E. order. He also adduced the plea that the allegations are only for not maintaining the Register of Stock Distribution and Expenditure Register. On the other hand PW-4, HAD/OD has stated that he (HC Shishu Pal) has not prepared Expenditure Register and I.O. Stationery Register. He also stated that as per letter no.14520-21/Genl/OD dated 24.3.2008 and 15263-64/HAG/OD dated 28.3.2008, he was directed to complete the Stock Register of Stationery Store upto 31.3.2008 only. Hence, the allegations about preparing of Non Standard Form and Expenditure Register are quite illegal and irrelevant. He also advanced the plea that as per the Office Procedure, supervisory staff must supervise his subordinates in routine manner but in this case they failed to do so. Inspr./Admn. has also failed to write against him regarding non completion of Stock Register. He has also contended that he has complied order No. 22628/Genl.-1/OD dated 23.5.08 as per the best efforts and he has never requested for providing time after transfer to Complaint Branch neither it is mandatory that once a person is relieved on transfer to other Branch, he will be coming back to complete his previous pending records. He further stated that the Expenditure Register is being maintained by Accounts Branch and it is irrelevant to thrash the work of Accounts Branch on I/C Stationery.

The above pleas put forth by the delinquent H.C. (Min.) Shishu Pal, No. 5/OD are not found tenable. Briefly and simply speaking the charge against the delinquent H.C.(Min) is that while posted in General Branch, he did not complete entries in Stock Register, Distribution Register and also did not maintain Expenditure Register. Inspite of repeated written directions by the senior officers, he neither completed the record on one pretext or the other nor followed the directions/orders of the senior officers. He wasted an opportunity of two months period for completing the record from 26.3.08 to 23.5.08. It shows that he took the directions/orders of the senior officers in a casual manner and he is in the habit of insubordination to senior officers.

It is a matter of record that H.C.(Min.) Shishu Pal No. 5/OD was posted as I/C Stationery-cum-Purchasing Clerk in HAG Branch/OD on 14.9.07 after creation of Outer District. On assuming the charge by SI Rajender Singh as HAG/OD on 11.1.2008, he checked the Stock Register and Distribution Register maintained by HC(Min) Shishu Pal and the entries were found incomplete. Though he had given the charge of Standard Stationery Articles to ASI Tej Prakash on 23.4.08 ( upto 31.3.08) but he did not given the charge of Non Standard Stationery Articles. HC (Min) Shishu Pal also had also not prepared the Expenditure Register, which is required to enter about details of the purchasing bills. This matter was brought into the notice of ACP/HQ and Addl.DCP/OD also. The H.C. was also directed to hand over the charge vide letter nos. 14520-21/Genl.OD dated 24.3.08, 15263-64/HAG/OD dated 26.3.08, on his leave application on 23.4.08 by ACP/HQ and Addl. DCP/OD.

Subsequently, the H.C. was transferred to Complaint Branch/OD vide order No. 7814-24/Estt.(1)/OD dated 19.4.08 and he was directed to hand over the charge of Stationery Store to ASI Tej Prakash. On 23.4.08 he applied for 3+2 days Casual Leve, on which he was directed to complete the entries in Stock and Distribution Registers and prepare Expenditure Register. Upon this the HC requested that he would complete the entries in registers after arrival from C.L. This written assurance of the H.C was forwarded to Inspr./Admn., who also forwarded after giving note that despite three opportunities given to complete entries in the registers of Stationery Store, the H.C. could not do so. On this ACP/HQ forwarded his assurance to Addl. DCP/OD mentioning therein that HC has not handed over his charge before completing the registers, he first completely hand over charge then proceed for C.L. On this Addl. DCP/OD passed order that "he should handover the charge and Inspr. Admn to ensure it and submit a report in this regard. HC can apply C.L.after that". Consequent upon transfer of H.C. (Min) Shishu Pal, No 5/OD from General Branch/OD to Complaint Branch/OD, ACP/HQ vide order No. 22628/Genl.(i) OD dated 23.5.08 had directed the HC to report in General Branch/OD for 04 days w.e.f. 26.5.08 and complete the record failing which disciplinary action will be initiated against him but all goes in vain and the HC did not complete the entries.

From the depositions of independent PWs, it is categorically proved during the D.E proceedings that the delinquent H.C. was asked verbally as well as through written communications by senior officers to complete the Stock Register, Distribution Register of Stationery Articles, which also includes non standard articles as well as to prepare the Expenditure Register but he failed to complete the task deliberately on one pretext or the other for the reasons best known to him. In last he was directed vide order no. 22628/Genl. (1)/OD dated 23.5.08 to complete the record failing which disciplinary action will be initiated against him but all in vain. Accordingly, the instant D|E has been initiated against him.

The averments of the delinquent H.C. in his written representation against the findings of E.O have been considered in depth. His contention that giving the charge of non standard items is not the part of allegations is rebutted on the counts that he was posted as I/C Stationery and Purchase Clerk, it was his responsibility to maintain Stock Register and Distribution Register relating to Standard as well as Non Standard Stationery Articles. As per deposition of PW-3, ASI Tej Prakash, the delinquent H.C has handed over the charge of Standard Stationery Articles and Computer Articles to him 23.4.08 (upto 31.3.08) as per Stock and Distribution Register. However, the delinquent H.C refused to give the charge of other stationery articles (i.e. non standard stationery articles) on one pretext or other despite giving ample opportunities to him. As per contention of the delinquent H.C., he had given the charge of Stationery Store then for which stationery store he was seeking time for completion of record. The official dealing with the purchase of stationery store and General Store items etc. is responsible to maintain both Standard and Non Standard Store. But the delinquent H.C. though handed over the charge of Standard Stationery Articles but he did not complete the record of Non Standard Stationery Articles. The contention of the delinquent H.C. that in other Distt./Unit Expenditure Register is being prepared by Accounts Branch and he is not responsible for preparation of said Register is rebutted on the grounds that being dealing assistant he should have brought this fact to the notice of senior officer at the initial stage itself but he neither do so nor prepared the Expenditure at his own volition. Besides, the contention of the delinquent H.C. that after transfer from General Branch to Complaint Branch, he never requested for providing time (for handing over the charge) and it is not mandatory that once a person is relieved on transfer to other Branch will be coming back to complete the record clearly speaks of his indiscipline and his attitude that he was not interested to complete the record. Otherwise, it was his prime duty to complete the record of his all Stationery Store including non Standard Stationery items well before his relieving to other Branch. It is conclusively proved during the D.E proceedings that the delinquent was given many directions and opportunity on 24.3.08 by HAG/OD, on 28.3.08 by Inspr. /Admn. and on 23.4.08 & 23.5.08 by ACP/PG Cell/OD in writing and verbally but despite given total time of more than two months, he opted for willful defiance and misconduct.

Keeping in view of above discussion and over all facts and circumstances of the case, I am of the considered opinion that there is conclusive evidence on record to hold delinquent HC(Min) guilty of the charge. Therefore, I, B.K.Singh, Addl. Dy. Commissioner of Police (1), Outer Distt. hereby impose the penalty of forfeiture of four years approved service permanently entailing proportionate reduction in his pay from Rs.10,840/- to Rs. 9620/- upon HC (Min) Shishu Pal, No. 5/OD with immediate effect, which would meet the end of justice." The appeal filed by the applicant was dismissed by the appellate authority by a speaking order after considering his appeal and hearing him in orderly room vide order dated 12.10.2012.

The counsel for the applicant strenuously submitted that it was not his responsibility to maintain the expenditure register and it is the responsibility of the Accounts Branch to maintain the same under the rules. That in so far as the major items where entire procedure for procuring were duly completed he had made entries in the stock register and distribution register. However, in so far as non standard articles are concerned where there is no invoice or bill he could not complete the stock register and the distribution register.

Counsel for the respondents has taken us through the deposition of some of the witnesses. From the perusal of the deposition of all the witnesses, it is amply clear that the charge leveled against the applicant is established. The disciplinary authority and the appellate authority have dealt with the grounds raised by the applicant in the impugned orders dated 19.04.2010 and 12.10.2012 respectively. The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"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 eye of the Court. When an inquiry is conducted on charges of a 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 be 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of 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.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry 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 (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), 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".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts of the case and in view of the law laid down by the Hon'ble Supreme Court referred to above and as the counsel for the applicant has not brought to our notice any violation of the procedural rules or principles of natural justice, the enquiry report cannot be faulted with.

The counsel for the applicant further strenuously submitted that the penalty is disproportionate in view of the charge levelled against the applicant. We are of the opinion that in view of the fact that there is no allegation of any mis-appropriation against the applicant and that the only allegation is he has not maintained the stock register upto date in spite of giving sufficient opportunities to do the same and in spite of the specific orders of the superior authorities, penalty imposed on the applicant is grossly disproportionate. As such we are of the view that instead of forfeiture of four years approved service permanently, the forfeiture of two years approved service permanently would meet the end of justice. We direct the respondents to give the applicant consequential benefits of reduction of penalty, as stated above.

Accordingly, OA is disposed of. No order as to costs.